EXHIBIT 10.20
FACILITY USE AND PRODUCTION PERSONNEL AGREEMENT
BETWEEN GLOBECAST NORTH AMERICA INCORPORATED
AND 5TH AVENUE CHANNEL, CORP.
AGREEMENT, made as of the 10th day of January 2000, by and between
GlobeCast North America Incorporated, a Delaware corporation, having its
principal office at 0000 XX 00xx Xxxxxx Xxxxx, Xxxxxxx 00000 ("The Facility"),
hereinafter referred to as "GlobeCast", and 5th Avenue Channel, Corp., a Florida
corporation with its principle office at 0000 XX 000xx Xxxxxx, Xxxxx Xxxxx,
Xxxxxxx 00000, hereinafter referred to as "CUSTOMER".
WHEREAS, CUSTOMER produces certain audio and video programming (the
"Program") and desires to contract for production facilities and personnel; and
WHEREAS, GlobeCast owns and operates a full service telephone and
production center and is in the. business of providing production facilities and
program origination services to programmers; and
WHEREAS, CUSTOMER desires to obtain such services from GlobeCast, and
GlobeCast desires to provide such services to CUSTOMER (the "Service") upon the
terms and conditions set forth herein as well as the GlobeCast Standard Terms
and Conditions hereby incorporated by reference;
NOW, THEREFORE, in consideration of the mutual covenants contained
herein and upon receipt of good and valuable consideration specified herein, the
parties hereto agree to the specifications, terms and conditions set forth
herein.
1. PRODUCTION STUDIO AND CONTROL ROOM AND PRODUCTION PERSONNEL (NOTE:
ALL DIMENSIONS STATED THROUGHOUT THIS AGREEMENT ARE APPROXIMATE.) CUSTOMER shall
have an unlimited license during the term of this Agreement to use one (1) 70'
by 40' Production Studio and Control Room at the Facility. GlobeCast shall
provide the equipment outlined in Exhibit A, and maintain such equipment in good
working order. Electrical consumption and air conditioning are included in the
monthly charge for the facility and GlobeCast will provide basic television
lights as listed in Attachment C. GlobeCast will provide UPS and generator
electrical backup for all appropriate equipment utilized by Customer within the
confines of the Production Studio and Control Room. As part of this Facility Use
Agreement, GlobeCast grants CUSTOMER the right to use the break rooms and first
floor bathrooms for their intended purposes. CUSTOMER will provide its own sets
and GlobeCast will have no responsibility or liability for same.
GlobeCast shall provide Technical Equipment as set forth in Attachment
A for the purpose of producing a live television show/programming that is NTSC,
SMPTE, & FCC compliant.
This license to use the Production Studio and Control Room is granted
for the limited purpose of enabling the parties hereto to render and receive the
services outlined in this Agreement and creates no landlord/tenant relationship
of any kind between the parties.
GlobeCast shall provide English speaking or bilingual Production
Personnel for a standard 40 hour work week Monday through Friday as set forth in
Attachment B. Overtime charges will be $50.00 (fifty dollars) per hour, or part
thereof, for technical directors. Overtime charges for all other personnel will
be at the rate of $30.00 (thirty dollars) per hour, or part thereof. It is
understood that Production Personnel will be under the direction of CUSTOMER'S
show director and line producer subject to the limitations of Section 19 below.
2. DRESSING ROOM CUSTOMER will have an unlimited license during the
term of this Agreement to use one (1) 204 sq. ft. lockable Dressing Room at the
Facility. Said Dressing Room will contain three (3) changing rooms and a
built-in hanging closet.
This license to use the Dressing Room is granted for the limited
purpose of enabling the parties hereto to render and receive the services
outlined in this Agreement and creates no landlord/tenant relationship of any
kind between the parties. GlobeCast shall have no responsibility for any
personal items left within said Dressing Room.
3. MAKE-UP ROOM CUSTOMER will also have an unlimited license during the
term of this Agreement to use one (1) 216 sq. ft. Make-Up Room at the Facility.
This license to use the Make-Up Room is granted for the limited purpose
of enabling the parties hereto to render and receive the services outlined in
this Agreement and creates no landlord/tenant relationship of any kind between
the parties.
4. OFFICE SPACE GlobeCast will provide CUSTOMER Office Space within the
Production Studio described in item 1 above. CUSTOMER will have twenty-four
hour, seven day per week license during the term of this Agreement to use this
dedicated Office Space for the purposes of supporting the activities of
CUSTOMER. CUSTOMER may place news editing equipment and graphics stations in
this portion of the Production Studio. However, CUSTOMER must provide adequate
replacement cost insurance on its equipment. Although GlobeCast provides various
methods of security within its Miami facility to monitor incoming and outgoing
personnel movements and to attempt to prevent unauthorized access to the
facility, such security measures are not designed to protect CUSTOMER's
equipment or personnel and GlobeCast makes no representations or warranty of any
kind that the stated security measures can or will prevent unauthorized access
or protect CUSTOMER's equipment and/or personnel. In no event shall GlobeCast be
responsible or liable in any way for the security of CUSTOMER's equipment or
personnel.
(a) FURNITURE AND FIXTURES. GlobeCast shall provide telephone
instruments only. CUSTOMER is responsible for providing phone lines,
furniture and fixtures, and office equipment including computers for
CUSTOMER's use. CUSTOMER acknowledges and agrees that GlobeCast shall
have no responsibility for any lost, stolen or damaged CUSTOMER
property.
(b) ALTERATIONS. CUSTOMER shall. make no alterations other than adding
phone lines to the licensed premises without prior written consent of
GlobeCast. CUSTOMER warrants that the addition of such phone lines will
not interfere in any way with existing GlobeCast phone lines and that
CUSTOMER shall be liable for necessary repairs to such phone lines if
they are damaged by CUSTOMER's installation.
(c) PARKING. CUSTOMER personnel working at the Facility shall use the
parking lot on the north side of the Facility.
(d) JANITORIAL SERVICES. GlobeCast will provide CUSTOMER with standard
janitorial services within the areas of GlobeCast's facility that are
addressed herein.
5. REVOCATION OF LICENSE. The license to use GlobeCast's facilities
shall automatically be revoked without notice upon the expiration or termination
of this Agreement. CUSTOMER specifically and knowingly waives any rights or
privileges afforded under Chapter 83 of 1994 Florida Statutes relating to
landlord/tenant relationships. Upon such revocation of the license, GlobeCast
shall provide CUSTOMER a reasonable time frame to retrieve all of its property
from the Facility.
6. TERM. The term of this Agreement shall be for one (1) year and shall
begin on February 1, 2000 and end on January 31, 2001. This Agreement shall
automatically renew for an additional one year period (until January 31, 2002)
unless CUSTOMER provides GlobeCast with written notice of its intent not to
renew at least 90 days in advance of the initial expiration date of this
Agreement.
7. CHARGES. For the services and facilities set forth herein for the
initial one year term of this Agreement, CUSTOMER shall pay to GlobeCast
$780,000.00 in twelve equal monthly installments of $65,000.00. During the
initial "set-up" month of this Agreement GlobeCast reserves the right to use the
Production Studio and Dressing and Make-up Rooms for a maximum of ten (10) days,
such days to be determined solely at the discretion of GlobeCast with 24 hour
prior notice to CUSTOMER. In the event that CUSTOMER exercises its option to
renew this Agreement in a timely manner for the additional one-year term
specified herein, CUSTOMER shall pay to GlobeCast the sum of $840,000.00 for the
one year renewal term in twelve equal monthly installments of $70,000.00. The
above referenced charges do not include federal, state or local sales or use
taxes, Universal Service Charges, fees or assessments which may now or hereafter
be levied on the Service and shall be the responsibility of CUSTOMER.
GlobeCast agrees to provide CUSTOMER with Occasional Services at 15%
below Rate Card when and if requested by CUSTOMER.
In the event that CUSTOMER uses the Production Studio or any of
GlobeCast's technical or production equipment on a Saturday or Sunday, GlobeCast
will invoice CUSTOMER and CUSTOMER shall pay GlobeCast an additional charge of
$1,000.00 per day (without crew) for each Saturday or Sunday that the Production
Studio is used.
All recurring monthly charges shall be paid to GlobeCast on the first
day of each month the service is to be performed (i.e., charges for the period
November 1 - November 30 are due November 1).
8. DEPOSIT. CUSTOMER shall pay GlobeCast the sum of $130,000.00 at the
time of execution of this Agreement, $65,000.00 of which shall be applied to
CUSTOMER's first payment and $65,000.00 of which shall be held by GlobeCast and
applied to either (a) the final payment(s) due GlobeCast. or (b) the first
payment to GlobeCast in the event of CUSTOMER's default, as provided under this
Agreement. Such deposit is not an advance rent charge or a measure of
GlobeCast's damages in the event of CUSTOMER's default. CUSTOMER waives the
right to receive any interest on this amount.
9. REPRESENTATIONS AND WARRANTIES OF GLOBECAST. GlobeCast represents
and warrants to CUSTOMER that:
(a) This Agreement has been duly authorized by all necessary corporate
action on the part of GlobeCast and has been executed and delivered by
duly authorized officers of GlobeCast and this Agreement constitutes a
legal, valid and binding obligation of GlobeCast;
(b) GlobeCast has and shall continue to have during the term of this
Agreement all necessary contractual rights to provide the Service to
CUSTOMER hereunder;
(c) GlobeCast is under no contractual or other legal obligation which
shall in any way interfere with its full, prompt and complete
performance hereunder; and
(d) In the event of equipment failure or GlobeCast's failure to provide
service that results in CUSTOMER interruption of service, GlobeCast
will use its best efforts to restore service and will provide CUSTOMER
with credit for actual time of interruption of service as defined in
the GlobeCast Standard Terms and Conditions. GlobeCast's sole liability
will be in the form of pro-rata credits for interruption of service.
(e) GlobeCast will carry a minimum of $1,000,000 of general liability
and property insurance at all times during the term of this Agreement.
GlobeCast shall provide CUSTOMER a certificate of insurance as evidence
of insurance.
10. REPRESENTATIONS AND WARRANTIES OF CUSTOMER. CUSTOMER represents and
warrants to GlobeCast that:
(a) This Agreement has been duly authorized by all necessary corporate
action on the part of CUSTOMER and has been executed and delivered by
duly authorized officers of CUSTOMER and this Agreement constitutes a
legal, valid and binding obligation of CUSTOMER;
(b) CUSTOMER has and shall continue to have during the term of this
Agreement all necessary contractual rights to carry out the provisions
of this Agreement, including, but not limited to, obtaining all
necessary rights, licenses, clearances and releases; and
(c) CUSTOMER is under no contractual or other legal obligation which
shall in any way interfere with its full, prompt and complete
performance hereunder.
11. INDEMNITY. CUSTOMER and GlobeCast shall indemnify, defend and save
each other and its officers, directors and agents harmless from suits, actions,
damages, liability, losses, expenses and causes of action of every nature
whatsoever arising from or caused by any negligent or willful act or emission by
either party or its officers, agents, employees, representatives or independent
contractors in any manner connected with this Agreement or the use of the
Service including, but not limited to, any claims, demands and causes of action
of every nature whatsoever which may be made upon, sustained or incurred by
either party by reason of any breach, violation, omission or non-performance of
any material terms, covenant or conditions hereof on the part of either party or
by reason of any negligent or willful acts or omissions.
12. DEFAULT. In the event that CUSTOMER fails to pay GlobeCast in full
the sums due and payable hereunder, or fails to observe and perform any of the
material terms, covenants and/or conditions of this Agreement, CUSTOMER shall be
in default of this Agreement and shall be subject to a monthly interest charge
of 1.5% on the overdue balance. Upon such default, GlobeCast shall give CUSTOMER
a written notice which describes the default and which requires CUSTOMER to cure
said default within fifteen (15) calendar days. In the event that CUSTOMER fails
to cure the default within the stated time, GlobeCast may cease to provide The
Service and further, may pursue any available remedy under law or equity and
demand from CUSTOMER all sums already due.
13. FORCE MAJEURE. With reference to Section 11.1 of the incorporated
GlobeCast Standard Terms and Conditions, GlobeCast shall not be liable for any
failure of performance due to causes beyond its commercially reasonable control
including, but not limited to, fires, strikes, labor unrest, embargoes, civil
commotion. rationing or other order or requirements, acts of civil or Military
authorities, acts of God, the unavailability to GlobeCast of the facilities or
services used to provide the Service, or other contingencies beyond the
reasonable control of GlobeCast. If service that is interrupted by Force Majeure
events cannot be restored within three (3) calendar days, GlobeCast will use its
best effort to assist CUSTOMER in finding a temporary facility for production of
its program but does not guarantee that such facility will be found and shall
have no obligation to pay for CUSTOMER's use or expenses related to said
facility. Under the stated conditions, while CUSTOMER is using the temporary
facility instead of GlobeCast's facility, CUSTOMER will be responsible for
paying the temporary facility rather than paying GlobeCast. Immediately upon
CUSTOMER's return to GlobeCast's facility, CUSTOMER shall again be responsible
for making prompt payment to GlobeCast as set forth above in Section 7.
GlobeCast's liability to CUSTOMER shall be limited to pro rata credit for time
off-air. In the event that service cannot be restored within thirty (30)
calendar days from its initial interruption CUSTOMER shall have the option, upon
written notice to GlobeCast, to be released from this Agreement. If CUSTOMER
requests release from this Agreement, GlobeCast shall have no further duty or
liability to CUSTOMER and CUSTOMER shall have no duty or liability to GlobeCast
other than to make timely payment of all sums already due and payable to
GlobeCast
14. NO WAIVER. The failure of either party to insist on strict
performance of any covenant or condition hereof, or to exercise any option
herein contained shall not be construed as a waiver of such covenant, condition
or option in any other instance.
15. ATTORNEYS' FEES TO PREVAILING PARTY. In the event either party has
reason to bring a claim or action against the other party to enforce the terms
and conditions of this Agreement the prevailing party shall be entitled to
recover from the other party all costs, expenses and reasonable attorneys' fees
that may be incurred or paid by such prevailing party. All references in this
Agreement to attorneys' fees shall include, but not be limited to, court costs,
technical consultant fees and expenses at, before and through all trial and
appellate levels and post judgment proceedings and regardless of whether or not
any action may be instituted.
16. ENTIRE AGREEMENT AND MODIFICATION. This Agreement along with
Attachments A, B and C, attached and hereby incorporated by inclusion and
reference, and the GlobeCast Standard Terms and Conditions incorporated by
reference as modified below, constitutes the entire agreement between the
parties with respect to the subject matter hereof. This Agreement may be
modified only by a written instrument executed by the parties.
With reference to the GlobeCast Standard Terms and Conditions ("T &
C's") incorporated by reference in the third recital paragraph on page one of
this Agreement, the parties agree as follows:
1. Sections 1 through 4 of the T & C's are not applicable to this
Agreement.
2. Section 13 of this Agreement takes precedent over Section 9.1 of the T
& C's.
3. Where Section 10. 1 of the T & C's gives CUSTOMER 3 days to cure, the
CUSTOMER is hereby granted 15 days to cure.
4. The second sentence of Section 12.4 of the T & C `s is hereby stricken.
17. TITLES. Titles of paragraphs herein are for convenience only and
shall not in any way limit or otherwise affect the interpretation of this
Agreement or any paragraph hereof.
18. INDEPENDENT CONTRACTORS. CUSTOMER and GlobeCast are independent
contractors with respect to each other and nothing herein shall create any
association, partnership joint venture or agency relationship between them.
Neither party is authorized to commit, bind, or speak on behalf of the
other, except and only to the extent that it has been specifically authorized to
do so in advance from time to time, and unless so authorized, neither party
shall perform any act which might result in any third party believing that it is
an employee, agent or representative of the other party, or have the power to
contract or incur any commitment or obligation for and on behalf of the other
party.
Because CUSTOMER and GlobeCast are independent contractors with respect
to each other, neither party is eligible for, nor to receive any, employee
benefits of the other party. CUSTOMER will not withhold any amount attributable
to the compensation hereunder for any benefit program or for any municipal,
state or federal tax purpose, and GlobeCast shall be solely responsible for
fulfilling all such tax obligations, including, without limitation, any payroll
taxes
or state or federal unemployment insurance and social security taxes imposed in
connection with the compensation provided hereunder.
Because GlobeCast is an independent contractor with respect to CUSTOMER
GlobeCast shall be responsible for determining GlobeCast's employees' rates of
pay, promotions, discipline, fringe benefits, hiring, hours of work,
supervision, work rules, vacations, training, uniforms, direction, assignments
and day-to-day control of working conditions and operations.
19. NOTICES. All notices required to be given hereunder shall be given
in writing (unless otherwise specified herein) and sent by personal delivery,
first class mail, overnight courier or facsimile to the addresses below or to
such other address as either party may send to the other party by like notice.
Notice shall be deemed given on the day of mailing, personal delivery, sending
by courier or facsimile thereof.
If to GlobeCast: GlobeCast North America Incorporated
0000 X.X. 00xx Xxxxxx
Xxxxx, XX 00000
Attention: Xxxxx Xxxxxxxxx, COO
With Copy To: Xxxxx Xxxxxxx, Esq.
In-House Counsel
GlobeCast North America Incorporated
0000 X.X. 00xx Xxxxxx
Xxxxx, XX 00000
If to CUSTOMER: 5th Avenue Channel
0000 XX 000xx Xxxxxx
Xxxxx Xxxxx, XX 00000
Attention: Xxx Xxxxxx,
V.P. of Television and
Xxxx Xxxxxx, COO
20. GOVERNING LAW. This Agreement shall be exclusively governed,
construed and enforced by and under the laws of the State of Florida. Should it
be necessary to file a lawsuit to enforce the terms of this Agreement, or which
relates to or concerns this Agreement or the rights or obligations thereunder,
venue and jurisdiction shall be restricted to the eleventh judicial circuit in
the Florida state court system in Miami-Dade County, Florida.
21. SURVIVAL. All terms and provisions of this Agreement shall, to the
maximum extent reasonably necessary to fulfill the intent of the parties hereto,
survive the termination hereof.
22. PARTIAL INVALIDITY. In the event any clause, or any portion of this
Agreement be held invalid by any Court such invalid clause or portion hereof
shall have no effect upon the validity and enforcement of the other provisions
of this Agreement, and the invalid clause, or portion hereof shall be severed
from this Agreement, so that the remaining provisions shall continue to bind the
parties hereto.
23. CONFIDENTIALITY. All proprietary information, other than as set
forth below, disclosed to GlobeCast within the parameters of this Agreement as
well as CUSTOMER's Work Product shall be considered confidential and held in
strict confidence by GlobeCast. GlobeCast shall use such information only as
needed to perform its obligations under this Agreement, and shall use all
commercially reasonable efforts to prevent such information from being disclosed
to third parties other than those to whom it must be disclosed subject to
Government or Court Order or Audit. GlobeCast will notify CUSTOMER immediately
if it receives a subpoena or other legal process about such information and will
cooperate in any reasonable effort by CUSTOMER to comply with or contest the
legal process. All expenses related to the contesting of such process by
CUSTOMER shall be paid solely by CUSTOMER.
The following information shall not be considered confidential:
1. Information which is public knowledge as of the date of
execution of this Agreement.
2. Information which hereafter becomes public knowledge, unless
as a result of the fault of GlobeCast.
3. Information which is now in the possession of GlobeCast
without any obligation of confidentiality.
4. Information which is hereafter rightfully disclosed to
GlobeCast by a third party, but only to the extent that the
use or disclosure thereof has been or is rightfully authorized
by that third party; or
5. Information which CUSTOMER and GlobeCast agree in writing is
not confidential.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the
day and year first above written.
5"`Avenue Channel GlobeCast North Amenica Incorporated
By: By:
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AMENDMENT AND ADDENDUM TO THE FACILITY USE
AND PRODUCTION PERSONNEL AGREEMENT
BETWEEN GLOBECASE NORTH AMERICA
INCORPORATED AND 0XX XXXXXX XXXXXXX, XXXX.
DATED JANUARY 10, 2000
This Amendment dated March 1, 2000 is intended by the parties to modify the
Facility Use and Production Personnel Agreement Between GlobeCast North America
Incorporated and 5th Avenue Channel Corp. ("The Agreement") as follows:
Section 1. PRODUCTION STUDIO AND CONTROL ROOM AND PRODUCTION PERSONNEL, 2nd
paragraph is amended to read:
GlobeCast shall provide Technical Equipment as set forth in Attachment
A and Attachment B for the purpose of producing a live television
show/programming that is NTSC, SMPTE, & FCC compliant.
Section 7. CHARGES, is amended as follows:
After the amount of $70,000.00 in the next to the last sentence of the 1st
paragraph, the following is added:
In consideration for the additional equipment set forth in Exhibit B,
that GlobeCast is providing to CUSTOMER for its use during the term of
this Agreement and for GlobeCast's agreement to provide CUSTOMER with a
daily downlink of the ABC1 news feed for a 10-12 hour block each day,
Monday through Friday, and the lease of additional Xxxxxx/ASC server
equipment and router, CUSTOMER agrees to pay GlobeCast $84,000.00 in
twelve (12) equal monthly installments of $7,000.00 in addition to the
payments set forth above. The last payment of $7,000.00 will be paid to
GlobeCast on the first day of the thirteenth (13th) month following the
execution of this original Agreement.
All other terms and conditions of The Agreement shall remain as originally
written or as were modified by hand on the date of execution and as attested to
by the handwritten initials of the parties upon The Agreement.
SIGNATURES ON FOLLOWING PAGE
AGREED TO AND ACKNOWLEDGED THIS _______ DAY OF MARCH, 2000 BY:
0xx Xxxxxx Xxxxxxx, Xxxx. XxxxxXxxx Xxxxx Xxxxxxx Incorporated
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Signature Signature
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Printed Name Printed Name
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