Affiliation Agreement [Amendment] - Spice Inc. and Satellite Services Inc.
AMENDMENT
to
Affiliation Agreement between
SPICE, INC.
and
SATELLITE SERVICES, INC.
WHEREAS, Spice, Inc. ("Spice") and Satellite Services, Inc. ("Affiliate")
entered into the Affiliation Agreement dated November 1, 1992, as amended by the
parties pursuant to Amendment No. 1 dated September 29, 1994 and the letter
agreements between the parties dated, respectively, July 18, 1997 and December
18, 1997 (the "Agreement"), under which Spice licensed the use of its Spice
programming service (the "Spice Service") to SSI;
WHEREAS, Affiliate further entered into certain affiliation agreements with (i)
AdultTVision, Inc. ("AdulTVision") dated February 12, 1997 (the "AdulTVision
Agreement"), under which AdulTVision licensed the use of its AdulTVision
programming service (the "AdulTVision Service") to SSI, and (ii) Adam & Eve
Communications, Inc. ("Adam & Eve") dated October 17, 1994 (the "Adam & Eve
Agreement"), under which Adam & Eve licensed the use of its Adam & Eve
programming service (the "Adam & Eve Service") to SSI, and (iii) Califa
Entertainment ("Califa") dated February 9, 2000 (the "Califa Agreement"), under
which Califa licensed the use of its "Hot Network" and "Hot Zone" programming
services (the "Hot Services") to SSI, which Califa Agreement was acquired by an
affiliate of Spice in a July 6, 2001 transaction;
WHEREAS, the parties acknowledge and agree that Spice is the successor in
interest to AdulTVision, Inc. and Adam & Eve Communications, Inc.;
WHEREAS, the parties acknowledge and agree that Affiliate was acquired by
Comcast Corporation, and Affiliate's offices now are located at 1500 Market
Street, Philadelphia, Pennsylvania 19102; and
WHEREAS, Spice and Affiliate now desire to amend the Agreement per this
amendment (the "Amendment") to include carriage of the Spice Service, the former
AdulTVision Service and former Adam & Eve Service (collectively, the "Spice 2
Service"), the Hot Services, and other X rated and XX rated programming services
offered by Spice.
NOW, THEREFORE, in consideration of the foregoing and the mutual promises and
covenants contained herein, and for other good and valuable consideration, the
receipt and sufficiency of which is hereby acknowledged, Spice and Affiliate
hereby agree as follows:
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1. This Amendment shall become effective upon the date of the last signature
written below (the "Amendment Effective Date").
2. Capitalized terms used in this Amendment, unless otherwise defined herein,
shall have the meanings set forth in the Agreement.
3. The Agreement, as amended, contains the entire agreement of the parties
with respect to the subject matter thereof and supersedes all prior and
contemporaneous agreements, understandings and communications between the
parties. Without limiting the foregoing, the parties hereby expressly
agree that the AdulTVision Agreement, the Califa Agreement, and the Adam &
Eve Agreement referenced in the preamble to this Amendment, including,
without limitation, all exhibits and amendments thereto, are hereby
cancelled and shall be of no further force and effect (the "Terminated
Agreements").
4. Except as expressly modified herein, all terms of the Agreement shall
remain in full force and effect. In the event of a conflict between the
terms and conditions of this Amendment and the Agreement, the terms of
this Amendment shall govern.
5. The first sentence of Section 1(a) of the Agreement is deleted in its
entirety and replaced with the following:
(a) Grant of Rights. Network hereby grants to Affiliate, and
Affiliate hereby accepts, the following rights relating to any X
rated and XX rated programming services offered by Network,
including, without limitation, such programming currently offered by
Network under the names "Spice", "Spice 2", "Spice Platinum", "Spice
Ultimate", "Spice Hot", "Spice Live" and "Spice HD", and any other X
rated and XX rated programming services that may be offered by
Network (or commonly-controlled entity) from time to time (including
the VOD Content and the HVOD Content (as such terms are defined
herein), as applicable), whether in their current format or in any
other analog, digitized, compressed, modified, replaced or otherwise
manipulated format (collectively, the "Service"):
6. Section 1(a)(i) shall be amended by adding the following parenthetical
immediately following the phrase "whether now existing or developed in the
future": *****. Furthermore, Distribution Technology shall not include
distribution to personal mobile and cellular handheld devices (provided
that personal mobile and cellular handheld devices will not include
Short-Range Wireless Devices, as defined below). *****. "Set-Top Box"
means a device that connects to, or is integrated as part of, a television
or other video output display device ("Display Device") and also connects
to the source of Affiliate's audio/visual signal, the content of which
then is displayed on the Display Device. A Set Top Box located at a
Subscriber's premises may be connected through short-range wireless
technology to one or more Set-Top Boxes and/or Display Devices authorized
by Affiliate for use in and around a Subscriber's premises ("Short-Range
Wireless Devices").
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7. The last sentence of Section 1(a)(iii) of the Agreement is deleted in its
entirety.
8. A new Section 1(a)(iv) of the Agreement is hereby added as follows: *****
9. The second sentence of Section 2(a) of the Agreement is deleted in its
entirety and replaced with the following:
The Initial Term of this Agreement shall commence upon the date of
execution hereof and shall terminate on December 31, 2015, unless
terminated sooner pursuant to the terms of this Agreement.
10. The first sentence of Section 4(e) of the Agreement is deleted in its
entirety and replaced with the following:
Each System or other distribution facility or enterprise may offer
the Service, (i) as a Subscription (defined in Section 5(a)(vii)
below) service; (ii) as a Pay-per-view (defined in Section 5(a)(vi)
below) service marketed and sold in any of the ways described in
Section 5(a)(vi); and/or (iii) notwithstanding anything to the
contrary in this Agreement, as a VOD (defined in Section 5(a)(xiii)
below) service. The Service may be sold in combination with other
services (e.g., in a package of services or in a tier); provided
that the Service, and/or viewing segments of the Service as
described in Section 5(a)(vi) and 5(a)(xiii), must always also be
available for sale through each television distribution facility
selling the Service under this Agreement on a purely a la carte
basis.
11. In the last two sentences of Section 4(f) of the Agreement, the phrase
"home taping" shall be replaced by "home taping and / or digital
recording." Additionally, the following shall be added to the end of the
last sentence:
"; or (iii) authorizing Subscribers to use devices and/or
functionality (whether provided by Affiliate or otherwise) that
enables such Subscribers to engage in lawful duplication, digital
recording and/or playback of the Service or any portions thereof for
non-public viewing of such content."
12. The following language is hereby added as Section 4(i) of the Agreement:
(i) Affiliate shall have the right to make any VOD Content and HVOD
Content titles offered by Network available to any subscriber on a
VOD basis. Network shall be responsible under this Agreement and
that certain Affiliation Agreement between Playboy Entertainment
Group, Inc. and Affiliate dated February 10, 1993, as amended (the
"Playboy Agreement") collectively for supplying to Affiliate a
minimum of ***** of VOD Content (defined in
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Section 5(a)(xiii) below) and a minimum of ***** of HVOD Content
(defined in Section 5(a)(xiii) below) at any given time, which shall
be refreshed on a ***** basis such that at least ***** of the VOD
Content and HVOD Content is changed each month; provided, however,
that Network shall make commercially reasonable efforts to
accommodate Affiliate's requests concerning (i) the types of
programming to be included in the VOD Content and HVOD Content; (ii)
the total amount of VOD Content and HVOD Content that is made
available by Network; and (iii) the amount and extent to which the
Programs comprising the VOD Content and HVOD Content are refreshed.
Unless Affiliate notifies Network in writing that it desires for the
VOD Content and/or HVOD Content to include X rated, XX.5 rated,
and/or XXX Programs, the VOD Content and HVOD Content will include
only XX rated Programs (as such ratings designations are generally
understood in the industry). Network shall at all times offer to
make available to Affiliate any adult content made available by
Network to any other United States distributor for subscribers to
view on an VOD basis (including other versions of content provided
to Affiliate with a different editing standard). Notwithstanding
anything to the contrary in this Agreement, Network hereby agrees
that Affiliate shall at all times, and at any time during the Term,
have the absolute right to air or offer or to cease airing or
offering any VOD Content or HVOD Content to any individual and/or
System(s). Affiliate, at its own expense, shall obtain and install
equipment necessary to distribute the VOD Content and HVOD Content
to such subscribers from the server in each System's headend.
Network, at its own expense, shall deliver the VOD Content and HVOD
Content in compliance with generally accepted standards of good
practice and according to parameters specified in the CableLabs
Video On Demand Content Specification Version 1.0 ("CLI 1.0") or
future releases thereof, including all applicable digitally encoded
non-video data attributes ("Meta Data"). Network shall deliver the
VOD Content and HVOD Content via either of the following methods, as
selected by Network at its sole option, upon advance written notice:
(i) satellite or program master to the Comcast Media Center ("CMC")
in Denver, Colorado, or (ii) FTP directly to a point or points
designated by Affiliate. The maximum MPEG 2 encoding data rate shall
be 3.75 mbps, provided that Network agrees that when it becomes
commercially feasible or industry standard to do so, then Network
will encode at a maximum rate of 3.375 mbps. Network shall bear all
costs in connection with the encoding of, and the transport to
applicable Systems of, the VOD Content and HVOD Content regardless
of the method of delivery (and to the extent necessary to ensure
Network's compliance with the provisions of this sentence (including
if Network elects to deliver unencoded VOD Content and HVOD Content
to the CMC), Network shall enter into an agreement, and/or maintain
any existing agreement, with the CMC concerning the CMC's services
related to such encoding and transport).
13. The following language is hereby added as Section 4(j) of the Agreement:
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(j) Network shall be responsible for any and all royalties and/or
other fees payable to any applicable programming licensor(s) for
content included in the VOD Content and HVOD Content (including,
without limitation, residuals or other payments to guilds or unions,
rights for music clearances, including but not limited to Network's
through-to-the-viewer performance rights, synchronization rights,
and mechanical rights, and all other content-based fees, payments,
or obligations arising out of the activities contemplated by this
Agreement), and Affiliate shall have no responsibility or liability
for any such royalties or fees, including any content-based
royalties or fees associated with distribution of the VOD Content or
HVOD Content via VOD, except for fees payable to Network in
accordance with Section 5 of this Agreement. Network acknowledges
that Affiliate may, from time to time, direct Network not to include
as part of the VOD Content or HVOD Content any particular Program
that Affiliate reasonably determines does not meet the intent of the
rating such Program has been given or otherwise may cause Affiliate
business, political, or operational difficulty; provided, however,
that such Program shall count toward Network's satisfaction of its
obligations hereunder to provide at least ***** of VOD Content and
at least ***** of HVOD Content for the period of time during which
such Program was scheduled to be made available as part of the VOD
Content or HVOD Content. The VOD Content and HVOD Content shall not
contain any sponsorships or advertising, except sponsorship or
advertising for the Service permitted under this Agreement or the
Spice Agreement.
14. The second sentence of Section 5(a) of the Agreement is hereby deleted in
its entirety and replaced with the following:
The Fees shall be calculated, stated, and reported separately for each
category of subscriber.
15. The third sentence of each of Sections 5(a)(i), 5(a)(ii), 5(a)(iii) and
5(a)(iv) of the Agreement, which contain the definitions of, respectively,
"PPV Satellite Fees", "Service Satellite Fees", "PPV Cable Fees" and
"Service Cable Fees", are hereby deleted.
16. Section 5(a)(v) of the Agreement is deleted in its entirety and replaced
with the following:
(a)(v) "Fees" means the fees payable by Affiliate to Network, as described
in Section 5(b) below. Fees payable by Affiliate to Network during a
Renewal Term are referred to as Renewal Fees.
17. Section 5(a)(ix) of the Agreement is deleted in its entirety and replaced
with the following:
Deleted without implication.
18. The following language is hereby added as Section 5(a)(xiii) of the
Agreement:
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(a)(xiii) "VOD" means the authorization of a subscriber to receive
the VOD Content or HVOD Content that is chosen by a subscriber for
display to that subscriber. For purposes hereof, the "VOD Content"
shall mean all content delivered by Network to Affiliate for
delivery to subscribers on a per-Program basis in exchange for a
per-viewing fee. For purposes hereof, the "HVOD Content" shall mean
all high-definition content delivered by Network to Affiliate for
delivery to subscribers on a per-Program basis in exchange for a
per-viewing fee. A "Program" shall mean an individual feature film,
direct-to-video programming (including a movie), extended-length
video, live performance or production, or other audio-visual
program; provided, however, that each such Program shall be (i)
professionally produced, commercial free, high quality heterosexual
male- or couple-targeted adult-oriented content intended only for
adult consumers because of its sexual content; and (ii) at least
twenty (20) minutes in duration.
19. Section 5(b) (including Sections 5(b)(i) through 5(b)(iii)) of the
Agreement is deleted in its entirety and replaced with the following:
(b) For each Service Cable Subscriber or Service Satellite
Subscriber, Affiliate will pay Network the applicable Revenue Share
Percentage (as defined in Section 5(d)) of Gross Receipts, less the
deductions described in Section 5(g), subject to a monthly minimum
of ***** per Service Cable Subscriber or Service Satellite
Subscriber, which Fees (as defined below) shall not be subject to
rate caps. When the Service is sold to a Service Cable Subscriber or
Service Satellite Subscriber in combination with other services for
a package charge (as, for example, in a tier or in a package of a la
carte or other services), the Gross Receipts deemed to be
attributable to a Service Cable Subscriber or Service Satellite
Subscriber for the Service shall be equal to the total Gross
Receipts for the tier or package of services sold in combination
with the Service, multiplied by a fraction, the numerator of which
is the a la carte retail charge for the Service otherwise charged
for the pertinent System and the denominator of which is the
numerator plus the aggregate of the a la carte retail charges
otherwise charged by the pertinent System for the other services
included in the tier or package of a la carte or other service. In
addition, if Affiliate provides the Service to multiple dwelling
complexes, including, but not limited to, apartment buildings, on a
bulk-rate basis, the number of Service Satellite Subscribers or
Service Cable Subscribers (as the case may be) attributable to each
such bulk-rate subscriber shall be equal to the total monthly retail
rate charged a complex for the Service divided by the standard
monthly retail rate charged a non-bulk rate Service Satellite
Subscriber or Service Cable Subscriber (as the case may be) for the
Service in the applicable System or by the pertinent Satellite
distributor, as the case may be.
20. Section 5(c) (including Sections 5(c)(i) through 5(c)(iii)) of the
Agreement is deleted in its entirety and replaced with the following:
(c) For each PPV Cable Subscriber and each PPV Satellite Subscriber
who receives and pays for one (1) technically satisfactory viewing
of one (1) viewing segment of
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the Service, including by means of VOD, Affiliate will pay Network
the Network Share of the Gross Receipts paid by such PPV Cable
Subscriber and each PPV Satellite Subscriber to Affiliate. "Network
Share" shall equal the applicable Revenue Share Percentage (as
defined in Section 5(d)) of the Gross Receipts paid by each such
subscriber but not less than ***** per PPV Cable Subscriber or PPV
Satellite Subscriber, and ***** for each VOD transaction), except
that such amount paid by each PPV Cable Subscriber or each PPV
Satellite Subscriber (as the case may be) shall be subject to
reduction as provided in Section 5(g) below.
21. Section 5(d) of the Agreement is deleted in its entirety and replaced with
the following:
(d) For purposes hereof, "Revenue Share Percentage" shall mean
*****. Notwithstanding the foregoing, Revenue Share Percentage shall
mean ***** effective upon the first date upon which Affiliate offers
both (A) at least ***** of the TV-SVOD Content (as such term is
defined in the Playboy Agreement) for distribution of Playboy TV
(the "Playboy Service")) in connection with a subscription to the
Playboy Service in systems comprising at least ***** of the basic
cable television subscribers within Systems that offer adult content
on a VOD basis (i.e., VOD content that is rated X or a more explicit
editing standard, other than such VOD content that is included as
part of an SVOD offering from a premium service provider not
targeted exclusively to adult audiences (e.g., Cinemax, Showtime))
(such systems, the "Adult VOD-Enabled Systems"), and the parties
agree that the number of basic television subscribers in the Adult
VOD-Enabled Systems shall be deemed to be *****, and (B) at least
***** of the VOD Content offered, at a minimum, via a branded entry
point (i.e., the name "Playboy" or "Spice," but not necessarily
using a logo) in systems comprising at least ***** of the basic
cable television subscribers within the Adult VOD-Enabled Systems
((A) and (B) together, the "Carriage Incentive Benchmarks");
provided, however, that if a System offers at least ***** of the
TV-SVOD Content and such System (or another System (i.e., whether
this occurs in a single System or as a combination of two separate
Systems)) offers at least ***** of the VOD Content before *****,
then the Revenue Share Percentage shall mean *****, provided
further, however, that if Affiliate fails to achieve the Carriage
Incentive Benchmarks on or before *****, then the Revenue Share
Percentage shall be deemed to be ***** between ***** and Affiliate
shall be required to remit to Network outstanding amounts
retroactive to ***** for those Systems that are not offering either
at least ***** of the TV-SVOD Content in connection with a
subscription to the Service, or at least ***** of the VOD Content
***** as of *****Agreement.
22. Section 5(f) of the Agreement is deleted in its entirety and replaced with
the following:
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(f) The Fees that are attributable to Gross Receipts based on
Subscription services payable by Affiliate to Network hereunder
shall be due and payable forty-five (45) days after the end of the
calendar month to which they relate. The Fees that are attributable
to Gross Receipts based on PPV or VOD services payable by Affiliate
to Network hereunder shall be due and payable forty-five (45) days
after the last day of the calendar month which includes the last day
of the Reporting Period. The term "Reporting Period" shall mean the
days from the end of each System's or Satellite distributor's prior
monthly reporting period (which date may vary in each System or for
each Satellite distributor from the 20th of the calendar month to
the last day of the calendar month) to the end of the System's or
Satellite distributor's then current monthly reporting period.
Affiliate shall have the right, however, to make adjustments to any
month's payment in an amount equal to the portion of a previous
month's Fees which represent an overpayment or underpayment.
23. The following shall be added as a new last sentence of Section 5(g) of the
Agreement:
In addition, the Gross Receipts attributable to purchases of VOD
Content or HVOD Content shall be equal to the total amount of
per-viewing fees billed by Affiliate to the VOD subscribers for
viewing of the VOD Content or HVOD Content, less any technical
credits given by Affiliate to such subscribers pursuant to this
Section. In the event of a substantiated, technological failure
within the transmission system for delivering VOD Content or HVOD
Content to subscribers resulting in the substantial interruption or
termination of an exhibition of a Program, Affiliate may, in its
discretion, offer a technical credit to the subscriber affected
thereby not to exceed the amount charged to the affected subscriber
and shall maintain documentation in support of the granted technical
credit.
24. The phrase "PPV Satellite Fees, PPV Cable Fees, Service Satellite Fees and
Service Cable Fees" is deleted in its entirety from Sections 5(h) and 5(i)
and replaced in each instance with the term "Fees".
25. Section 6(a) of the Agreement (including Sections 6(a)(i) through
6(a)(iv)) is deleted in its entirety and replaced with the following:
(a) For all Reporting Periods, Affiliate shall send to Network along
with the payments, if any, due under Section 5 hereof, informational
statements. Each statement shall set forth information necessary to
the calculation of the Fees and Renewal Fees paid, which shall
include but not be limited to:
i. the total number of PPV purchases for the applicable
month;
ii. to the extent necessary to determine the Fees payable by
Affiliate, the number of basic cable television
subscribers served by Adult VOD-
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Enabled Systems, and the number of Adult VOD-Enabled
Systems offering the VOD Content and/or the SVOD Content
in connection with a subscription to the Playboy
Service, for the applicable month;
iii. the average number of Service Cable Subscribers and
Service Satellite Subscribers for the applicable month;
and
iv. the total number of VOD purchases and the names of the
titles (or other appropriate identifier) for each VOD
purchase, for the applicable month.
26. Section 7(a)(ii) of the Agreement is deleted in its entirety and replaced
with the following:
(a)(ii) Deleted without implication.
27. In Section 7(d)(ii) of the Agreement is deleted in its entirety and
replaced with the following:
(d)(ii) Network shall have the right to run ***** of commercial time
per hour. In the event that Network elects to run more than ***** of
commercial time per hour, Network shall make available ***** of
commercial time per hour to Affiliate for Affiliate's use. With the
exception of the ***** per hour granted above, the Service shall not
contain any advertising, including but not limited to audio text
services, merchandise sales, Internet services and other such
products. Notwithstanding the foregoing, during the "breaks" between
movies and/or other programs, the Service may contain the following
audio text spots: (x) if the break is less than or equal to ***** in
length, audio text spots not exceeding ***** in the aggregate during
such break; and (y) if the break is greater than ***** in length,
audio text spots not exceeding ***** in the aggregate during such
break; provided that, in either case, Network shall not interrupt
any programming to air the audio text spots, and each audio text
spot shall be accompanied by a visual (if not moving video) element.
In addition, Network shall be permitted to refer viewers to
Network's and its affiliated companies' websites for scheduling
information regarding the Service and may refer generally to the
websites (e.g., "Visit our website at Playboy.com"); provided that,
such referrals shall not contain any advertising, promotions or
sales.
28. The following language shall be added to the end of Section 7(f),
"provided that Network shall not be restricted from making incidental
references to other services affiliated with Network as part of Network's
regular programming."
29. The Affiliate contact information at Section 11 of the Agreement is
deleted in its entirety and replaced with the following contact
information:
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To Affiliate: Satellite Services, Inc.
c/o Comcast Cable
1500 Market Street
Philadelphia, PA 19102
Attention: Senior VP, Programming
With a copy to:
Comcast Cable
1500 Market Street
Philadelphia, PA 19102
Attention: General Counsel
To Network: Playboy Entertainment Group, Inc.
2706 Media Center Drive
Los Angeles, CA 90065
Attention: President
With a copy to:
Playboy Enterprises, Inc.
680 North Lake Shore Drive
Chicago, IL 60611
Attention: General Counsel
30. Section 13(b) of the Agreement is deleted in its entirety and replaced
with the following:
(b) In the event that (i) Network acquires or otherwise obtains
operating control of, any programming service other than the Service
(an "Other Service"), and (ii) such Other Service is merged into, or
otherwise combined with, the Service, in each case so that there is
only one surviving service, then (a) if the Service is the surviving
service, then this Agreement shall remain in full force and effect
and any agreement concerning distribution of the Other Service shall
be terminated and the parties thereto shall be discharged of any
further obligations and/or liabilities thereunder as of the date of
such merger or combination; or (b) if the Other Service is the
surviving service in such merger or combination, (x) if Affiliate
has (at the time of such merger, combination, or acquisition) an
affiliation agreement concerning distribution of the Other Service,
then such affiliation agreement for the Other Service shall remain
in full force and effect, and this Agreement shall be terminated and
the parties hereto shall be discharged of any further obligations
and/or liabilities hereunder as of the date of such merger, or (y)
if Affiliate does not have an affiliation agreement concerning
distribution of the Other Service, then Affiliate shall have the
option to elect to have this Agreement continue to apply to such
Other Service or to negotiate a new agreement to apply to such Other
Service. In the event that Network acquires or otherwise exercises
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operating control over an Other Service, and such Other Service is
not merged into, or combined with, the Service, then (A) this
Agreement shall not apply to the distribution of such Other Service,
and (B) Affiliate shall not be entitled, by virtue of such merger or
combination, to distribute the Service under any agreement governing
Affiliate's distribution of such Other Service.
31. The first sentence of Section 13(d) of the Agreement shall be modified to
read as follows:
(d) This Agreement, as amended, contains the entire understanding of
the parties and supersedes and abrogates all contemporaneous and
prior understandings of the parties, whether written or oral,
relating to the subject matter hereof, including that certain prior
agreement between Comcast Programming and Spice, Inc. made as of
October 1, 1999, as amended, which expired September 30, 2004 (the
"Prior Comcast Agreement").
32. The following sentences are hereby added to the end of Section 13(g) of
the Agreement:
1) Affiliate acknowledges that it is specifically granted the terms of
this Section 13(g) in consideration for the provisions set forth in
Section 5(d) of this Agreement. Additionally, Affiliate hereby
agrees that, in consideration for the Fees granted pursuant to this
Agreement, as amended, Affiliate shall *****.
The above notwithstanding ***** shall apply only if *****. Furthermore,
Affiliate's *****.
33. The following language is hereby added as Section 13(l) of the Agreement:
(l) No Press Releases. Neither party shall issue any press release,
announcement or statement to the public or any third party regarding
the business relationship of the parties as set forth herein or the
transactions described in this Agreement without the advance written
consent of the other party, except to the extent such disclosure or
statement is required by law.
34. The following language is hereby added as Section 13(m) of the Agreement:
(m) Release of Claims. Network, on behalf of itself, its parent,
subsidiary and other affiliated companies and each of their
respective officers, directors, employees, partners, agents,
shareholders, representatives, successors, predecessors and assigns
(collectively, the "Network Releasing Parties") hereby voluntarily
and forever completely remises, relinquishes, releases and forever
discharges Affiliate, its parent, subsidiary and affiliated
companies and each of their respective present and former officers,
directors, employees, partners, agents, shareholders,
representatives, successors, predecessors and
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assigns (collectively, the "Affiliate Released Parties"), of and
from any and all claims (including claims for conversion liability),
demands, losses, penalties, costs, expenses (including, without
limitation, reasonable attorneys' fees), interest, damages, actions,
causes of action and liabilities, whether at law or in equity,
whether based on contract, statute, tort, or strict liability, and
whether for compensatory, special, punitive, statutory or any other
damages or remedies, whether known or unknown, accrued or unaccrued,
foreseen or unforeseen, contingent or non-contingent, direct or
indirect, whether heretofore asserted or not, or arising by
assignment, operation of law or otherwise, that are based on,
connected to, arising out of or related to the payment, alleged
failure to pay or alleged liability for the payment of any Fees,
Renewal Fees, license fees or any other charges or payments
whatsoever by Affiliate on account of the Systems to Network for the
Service (including any feeds or multiplex signals thereof) for the
period prior to, and including, *****. Network shall indemnify,
defend, and hold the Affiliate Released Parties harmless from and
against any claim brought by a Network Releasing Party, and/or by
any person or entity, under any actual or purported assignment,
subrogation or other right of substitution by or under a Network
Releasing Party, against an Affiliate Released Party relating to the
claims released in this Section 13(m), and Network's indemnification
shall be subject to the provisions of Sections 8(h) herein.
35. Exhibit A shall be deleted in its entirety and replaced with Exhibit A
attached hereto.
36. Exhibit B-1 (Programming Schedule) shall be deleted in its entirety and
replaced with Exhibit B-1 (Programming Schedule) attached hereto.
37. The parties acknowledge that those Majority-Owned Systems distributing the
Service pursuant to the Terminated Agreements or the Prior Comcast
Agreement are hereby added to the Agreement as of the Amendment Effective
Date.
AGREED TO AND ACCEPTED BY THE PARTIES AS OF THE LAST DATE WRITTEN BELOW.
SPICE, INC. SATELLITE SERVICES, INC.
By: James F. Griffiths By: Jennifer T. Gaiski
Name: James F. Griffiths Name: Jennifer T. Gaiski
Title: President Title: Vice President, Programming
Date: 9/26/05 Date: 9/26/05
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EXHIBIT A
to
Affiliation Agreement
by and between
Spice, Inc.
And
Satellite Services, Inc.
dated as of November 1992, as amended
SYSTEM QUALIFICATIONS
Affiliate represents and warrants that, with respect to each System listed on
Schedule 1 hereto, Comcast Corporation, or any person or entity controlling,
controlled by, or under common control with Affiliate or Comcast Corporation,
now or hereafter (Affiliate, Comcast Corporation and each such person or entity
a "Comcast Entity"), (i) owns or has the right to acquire ownership of, directly
or indirectly, a minimum of ten percent (10%) of such System; and (ii) with
respect to Systems that are less than fifty percent (50%) owned, has been
authorized to execute decisions on behalf of such System with respect to the
Service. In the event Affiliate's direct or indirect equity interest in a System
or in the entity managing such System decreases below the level required by the
immediately preceding sentence, and provided Affiliate's interest does not
decrease to zero, such System shall continue to qualify for inclusion on
Schedule 1 as long as Affiliate's interest in such System increases to the level
required hereunder within eighteen (18) months of such decrease. In the event
Affiliate, or any of the entities that owns or manages systems or enterprises
that qualify hereunder, effects a corporate separation, reorganization or
restructuring (including, without limitation, by a distribution of stock, or
other assets or rights, to its shareholders, partners or joint venturers), the
systems or enterprises of the entity resulting from such transaction (including
all interim and supporting entities) and/or all of such resulting entities, in
the aggregate, will qualify under the system qualifications set forth herein, so
as to continue to qualify to distribute the Service under the terms and
conditions hereof, as if such separation, reorganization or other restructuring
had not occurred. Any system that satisfies the qualifications of this Exhibit A
and in which a Comcast Entity owns more than fifty percent (50%) interest shall
be referred to as a "Majority-Owned System."
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