[FIRESTONE COMMUNICATIONS LETTERHEAD]
July 14, 2006
Xx. Xxxxx X. Xxxxxxx XX
Chief Operating Officer
USFR Media Group
000 Xxxx Xxx Xxxx., Xxxxx 000
Xxxxxxx, XX 00000
Dear Xxxx,
In accordance with our telephone conversation, I have outlined the terms of our
agreement to enter into an additional short-term renewal of our existing
Agreement for network origination, uplink, transponder services and rental
space. Therefore, effective immediately we agree to extend our present Agreement
under the existing terms of the Agreement with no modifications except to extend
the term of the Agreement and any other modifications agreed to in that certain
Agreement extension dated July 12, 2005. All other terms and conditions of the
existing Agreement dated April 17, 2003 shall not be affected and shall continue
in full force as defined in the existing Agreement.
1) The term of the Agreement shall be extended until December 31, 2006
with no increase in the monthly fees. The Monthly cost will remain
________ per month.
2) America One agrees to provide FCI with written notice of its intent to
not renew the existing Agreement or to enter into another extension by
no later than December 1, 2006.
AGREED BY: AGREED BY:
/s/ Xxxxxxx Xxxxxxxxx /s/ Xxxxx Xxxxxxx XX
------------------------------ ------------------------------
FIRESTONE COMMUNICATIONS, INC. U.S.F.R. MEDIA GROUP
Xxxxxxx Xxxxxxxxx Xxxxx Xxxxxxx XX
CEO Date: 7/28/06 President Date: 7/28/06
--------- ---------
0000 Xxxxxxx Xxxxxxx, Xxxxx 000, Xxxx Xxxxx, XX 00000
PH: 000-000-0000 FAX 000-000-0000
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[FIRESTONE COMMUNICATIONS LETTERHEAD]
XXXXXXX X. XXXXXXXX
President
February 21, 2006
Xx. Xxxxx X. Xxxxxxx XX
Chief Operating Officer
USFR Media Group
000 Xxxx Xxx Xxxx.
Suite 610
Houston, TX 77056
Dear Xxxx,
Thank you for your time on the telephone last Friday. In accordance with our
telephone conversation I have outlined the terms of our agreement to enter into
a short-term renewal of our existing Agreement for network origination, uplink,
transponder services and rental space. Therefore, effective immediately we agree
to extend our present Agreement under the existing terms of the Agreement with
no modifications except to extend the term of the Agreement and any other
changes modifications agreed to in that certain Agreement extension dated July
12, 2005. All other terms and conditions of the existing Agreement, dated April
17, 2003, shall not be affected and shall continue in full force as defined in
the existing Agreement.
1) The term of the Agreement shall be extended until June 30, 2006
with no increase in the monthly fees. The monthly cost will remain
________ per month.
2) America One agrees to provide FCI with written notice of its intent to
not renew the existing Agreement or to enter into another extension by
no later than June 1, 2006.
AGREED BY: AGREED BY:
/s/ Xxxxxxx X. Xxxxxxxx /s/ Xxxxx X. Xxxxxxx XX
------------------------------ ------------------------------
FIRESTONE COMMUNICATIONS, INC. U.S.F.R. MEDIA GROUP
XXXXXXX X. XXXXXXXX XXXXX X. XXXXXXX XX
PRESIDENT DATE: 2-21-06 PRESIDENT DATE: 2/23/06
--------- ---------
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6125 Airport Freeway o Fort Worth, TX 76117
o Main: 000-000-0000 o FAX 000-000-0000
--------------------------------------------------------------------------------
FIRESTONE COMMUNICATIONS, INC. AND
XXXX NETWORK SERVICE AGREEMENT
This "Service Agreement" between XXXX NETWORK, INC., a Texas corporation
("XXXX") and XXXXXXXXX COMMUNICATIONS, INC., a Delaware corporation ("FCI") is
effective as of the date signed by XXXX and FCI, "The Parties", below (Effective
Date.).
1. SERIVCE PROVIDED
During the Service Term (as described hereto), FCI will provide to XXXX (i)
a full time digitally compressed channel on its Transponder Protected With
Special Preemptible Provision Service, (ii) a full time C-band digital
(video/two audio, including audio subcarriers, if available) uplink system from
FCI's Forth Worth location to uplink VOTH's programming to the satellite space
described herein and (iii) master control services to play VOTH's programming
into the digital uplink system described herein, and to insert taped programs
into the playing equipment or to load onto the server on a 24 hours per day, 7
days per week basis (collectively, the "Service"). The Transporder and technical
performance criteria are more fully described in that certain Satellite
Transponder Service Agreement dated ______, between ____________ and FCI (the
"________________ Agreement") and this Service Agreement is subject to the terms
and conditions of the __________ Agreement. FCI may elect to provide service on
a different satellite transponder as mutually agreeable to the parties. Prior to
commencing use of the Service, XXXX shall, at its expense, provide FCI with any
unscrambling devices that may be required for signal monitoring.
Additionally, during the Service Term (as described hereto), FCI will
provide, as part of the Service Agreement, office space for a maximum of 15 XXXX
employees in areas and sizes pursuant to the terms of a lease agreement dated of
even date herewith. The initial location of XXXX employees, is designated in
Attachment X. XXXX will furnish all necessary office furniture and equipment to
conduct their business and shall pay all out-of-pocket costs and expenses (e.g.,
long distance telephone service, copies, etc.) incurred by such XXXX employees.
2. EQUIPMENT
XXXX agrees to purchase and install, at its cost, all necessary equipment
dedicated specifically for the XXXX uplink described in Section 1 above. This
equipment will include but is not limited to a PowerVu Encoder, Multiplexer,
Modulator, hardware and connectors, and appropriate redundancy therefore
(collectively, the "XXXX Equipment"). All XXXX Equipment shall remain the
property of XXXX but shall be utilized by FCI for the XXXX uplink described in
Section I above. All costs, fees, expenses and charges incurred in connection
with the maintenance and repair of the XXXX Equipment shall be the sole
responsibility of XXXX. All costs, fees, expenses and charges incurred in
connection with the maintenance and repair of non XXXX Equipment and XXXX
equipment being utilized exclusively by FCI, shall be the sole responsibility of
FCI.
FCI will have a "first right of refusal" to purchase any XXXX Equipment
that XXXX decides to sell or trade. The sales price for any such equipment will
be determined by taking the average price from at least two independent
suppliers of comparable equipment based upon written quotations from each
supplier and averaging the quotations of the two. In the event no market value
exists for said equipment, XXXX will assign a fair sales price. If for any
reason FCI is using equipment belonging to XXXX and XXXX elects to remove it
from the FCI premises, XXXX shall provide at least 30 days written notice.
XXXX, at its expense, will furnish adequate insurance for the XXXX
Equipment, employees, and property that will be located at the FCI facility.
FCI shall provide all necessary equipment for the XXXX uplink, except the
XXXX Equipment and any other equipment listed on Attachment B.
Lease Agreement will detail the insurance obligations of both FCI and XXXX.
3. TERM
The term of this Service Agreement (the "Service Term") will commence on
June 01, 2003 and shall be in effect for a period of 14 months lasting until
August 31, 2004 ("Initial Term"), unless earlier terminated as provided herein.
This Service Agreement shall automatically renew for an additional term of
twelve months upon the expiration of the Initial Term or any renewal term unless
either party provides to the other party sixty days prior written notice of
their intent to not renew the Service Agreement. The second term period will
renew with the same terms contained herein except for additional payment terms
stated below in Section 5 Payment.
4. NOTICES
All notices requiring immediate attention may be given by telephone
followed by written notification. All other notices and requests will be in
writing delivered to the address set forth below or to such other address as the
party may designate.
If to XXXX: If to FCI:
XXXX Network, Inc. Firestone Communications, Inc.
Attention: Xxxxx Xxxxxx Attention: Xxxxxxx Xxxxxxxx
777 Post Oak 0000 Xxxxxxx Xxxxxxx #000
Xxxx. Suite 800 Houston TX, 77056 Fort Worth, TX 76117
Telephone: 000 000 0000 Telephone: 000 000 0000
Fax: 000 000 0000 Fax: 000 000 0000
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5. PAYMENT
XXXX shall pay to FCI a monthly recurring service charge of _______ per
month during the Service Term. Payment shall be due on the last day of each
month in advance of the following month, thereafter.
XXXX shall pay to FCI an initial payment in the amount of ________ as a
transmission deposit that shall be due on May 15, 2003. Said payment shall be
applied to the final month of the final term period of Service Agreement.
XXXX shall pay the first monthly service fee of _________ for the first
month of the Service Term, June 2003, no later than May 31, 2003.
Upon the automatic renewal of the Service Agreement, as stated in Section
3, at the end of the Initial Term of the Service Agreement the monthly recurring
service charge will be increased to __________ for the duration of the Service
Agreement.
All charges hereunder are exclusive of taxes, duties and other fees or
charges levied by any governmental authority on the Service or the facilities
used to provide the Service. XXXX will pay directly or reimburse FCI for all
such taxes, duties and other fees or charges that may be levied against FCI.
Notwithstanding the foregoing, real, income and personal property taxes on FCI's
facilities, operations, business and equipment are specifically excluded from
the foregoing and are not subject to any payment or reimbursement by XXXX.
6. CREDITS FOR INTERRUPTIONS
XXXX shall receive from FCI credits for continuous interruptions in service
of ________________, calculated by dividing the number of minutes of
interruption by 43,200 and then multiplying that fraction by ________.
Notwithstanding anything in this Service Agreement to the contrary, FCI's
failure to provide or maintain the Service shall be excused by governmental
orders, civil commotions, acts of God, and other circumstances beyond FCI's
reasonable control, including but not limited to, the failure of any _________
satellite or any of its space segments, or, in the case of any Preemtible space
segment, its preemption by the satellite service provider ________________.
7. TERMINATION
In addition to any rights of termination provided in this Service
Agreement, in the event either party materially breaches this Service Agreement
and fails to cure such breach within thirty (30) days after receipt of written
notice thereof (except that if XXXX fails to pay amounts due hereunder, such
cure period shall be reduced to fifteen (15) business days) the other party may
immediately terminate this Service Agreement by giving the breaching party
written notice thereof after the applicable cure period has expired. In the
event of termination by FCI due to a breach of this Service Agreement by XXXX,
FCI in its sole discretion, and as its sole and exclusive remedy, all other
remedies being hereby waived, may either elect to (i) pursue any rights and
remedies it may have at law, in equity or otherwise or (ii) recover from
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XXXX an amount equal to the net present value (as of the date of such
termination) of the remaining unpaid service charges, computed as if this
Service Agreement remained in effect until the Projected Termination Date,
utilizing a discount rate of 5% per annum (Termination Value). Notwithstanding
any other provision of this Service Agreement, this Service Agreement may be
terminated by either party (the "Affected Party"), in its discretion, without
liability or cost, at any time after any of the following occurrences, with
respect to the other party (the "Other Party"):
(i) the filing of a petition in bankruptcy, or for reorganization by
or against the Other Party under any bankruptcy act; the assignment by the
Other Party for the benefit of its creditors, or the appointment of a
receiver, trustee, liquidator or custodian for all or a substantial part of
the Other Party's property, and the order of appointment is not vacated
within thirty (30) days; or the assignment or encumbrance by the Other
Party of this Service Agreement contrary to the terms hereof, or
(ii) if FCI discontinues operation of the Service for a continuous
fourteen day period, or XXXX discontinues operation and distribution of the
XXXX service, in either which case neither party shall have any further
liability to the other not withstanding any existing provisions for
nonpayment.
8. GENERAL PROVISIONS
INDEMNITY. XXXX acknowledges and agrees that it is solely responsibile for
the content of VOTH's or VOTH's contractors, subcontractors or customers
(collectively "Customer") transmissions using any Service. XXXX shall indemnify,
protect and defend FCI and its officers, directors, shareholders, employees and
agents (collectively, the "Indemnified Parties") and release and hold the
Indemnified Parties harmless from and against (i) any and all claims, damages,
demands, penalties, obligations, suits, actions, causes of action, judgments,
losses and liabilities of every kind and nature whatsoever, whether known or
unknown, and whether foreseeable or unforeseeable, that at any time may be
incurred or suffered by the Indemnified Parties, or that at any time may be
commenced or obtained against the Imdenified Parties, by reason of, arising out
of or in any way related to the performance or non-performance by XXXX or any
officer, director, employee or agent of XXXX of the terms and conditions of this
Service Agreement, the programming or content submitted by XXXX or VOTH's
contractors, subcontractors or customers, transmissions on behalf of XXXX, or
the use of FCI's facility and (ii) any and all costs or expenses, including
without limitation, reasonable attorneys' fees and court costs, that the
Indemnified Parties at any time may pay or incur in connection with or arising
out of any of the foregoing.
LIABILITY. The liability of FCI arising out the furnishing of the Service,
including, but not limited to mistakes, omissions, interruptions, delays, errors
or other defects or representations or arising out of the failure to furnish the
service, and whether caused by acts of commission or omission, shall be limited
solely to the allowances for interruptions set forth in Section 6 of this
Service Agreement. Such allowances for interruption shall be the form, intent,
and purpose of its surviving provisions.
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SEVERABILITY. If any provision of this Service Agreement or the application
thereof to any person or circumstance shall, to any extent, be invalid or
unenforceable, the remainder of this Service Agreement, or the application of
such provision to persons or circumstances other than those as to which it is
held invalid or unenforceable, shall not be affected thereby, and each provision
of this Service Agreement shall be valid and enforceable to the fullest extent
permitted by law.
NO AGENCY, REPRESENTATIVE OR JOINT VENTURE. XXXX and FCI are independent
contractors engaged in the operation of their own respective businesses. Neither
the making of this Service Agreement nor the performance of any part or
provision thereof shall (i) be construed to constitute or represent that XXXX is
or shall be considered to be the employee, agent, master or servant of FCI for
any purpose, or that FCI is or shall be considered to be the employee, agent,
master or servant of XXXX for any purpose (ii) be construed to constitute or
represent that XXXX has any authority to enter into any contract,
representation, understanding, act or deed, assume any obligation or make any
warranties or representations on behalf of FCI or represent that FCI has any
authority to enter into any contract, representation, understanding, act or
deed, assume any obligation or make any warranties or representations on behalf
of XXXX or (iii) be deemed to establish or create a joint venture, partnership
or fiduciary relationship between XXXX and FCI.
ENFORCEMENT. The failure of either party thereto to enforce or insist upon
compliance with any of the provisions of this Service Agreement or the waiver
thereof in any insurance shall not be construed by the other party as a general
waiver or relinquishment of any other provision of this Service Agreement, but
the small shall, nonetheless be and remain in full force and effect.
ASSIGNMENTS. Neither party shall, without the prior written consent of the
other party, which will not be unreasonably withheld, assign its interest in or
the rights to or obligation under this Service Agreement to a third party.
AMENDMENTS. This Service Agreement shall not be amended, changed, modified,
terminated or discharged in whole or in part, except by an instrument in writing
duly executed by the parties hereto, or their respective successors or permitted
assigns.
ENTIRE AGREEMENT. This Service Agreement and any exhibits constitutes the
entire Service Agreement between the parties as to the subject matter hereof and
supersedes and merges all prior oral or written Service Agreements between the
parties hereto.
GOVERNING LAW. This Service Agreement shall be construed and governed by
the laws of the State of Texas without regard to the choice of law rules
thereof. The parties hereto acknowledge and agree that the rule of construction
to the effect that any ambiguities
5
are resolved against the drafting party shall not be employed in the
interpretation of this Service Agreement; and the terms and provisions of this
Service Agreement shall be construed fairly as to all parties hereto and not in
favor of or against any party, regardless of which party was generally
responsible for the preparation of this Service Agreement.
ATTORNEY'S FEES. If any suit, appeal, or other action is commenced by a
party to establish, maintain, or enforce any right or remedy arising from this
Service Agreement, the losing party shall pay all reasonable attorney's fees and
litigation or appeal expenses incurred therein by the prevailing party, to the
extent awarded by the court or other decision maker.
EXECUTION AND DELIVERY. This Service Agreement may be executed in one or
more counterparts, all of which taken together shall constitute one and the same
Service Agreement. Signatures to this Service Agreement may be transmitted by
electronic means, and such signatures shall be treated as original signatures
for all purposes.
IN NO EVENT SHALL FCI OR XXXX BE LIABLE TO THE OTHER OR ANY THIRD PARTY FOR
ANY INDIRECT, SPECIAL OR CONSEQUENTIAL DAMAGES, INCLUDING BUT NOT LIMITED TO
LOSS OF PROFITS OR INCOME OR POTENTIAL BUSINESS OPPORTUNITIES, REGARDLESS OF THE
NATURE OF THE CLAIM OR THE ACTION, ARISING FROM VOTH'S USE OF THE SERVICE,
WHETHER OR NOT SUCH OTHER PARTY SHALL HAVE HAD ANY KNOWLEDGE, ACTUAL OR
CONSTRUCTIVE, THAT SUCH DAMAGES MIGHT BE INCURRED.
IN WITNESS WHEREOF, the parties hereto have executed this Service Agreement
as of the day and year written below and the persons signing warrant that they
are duly authorized to sign for and on behalf of the respective parties.
XXXX NETWORK INC. HISPANIC TELEVISION NETWORK, INC.
D/B/A FIRESTONE COMMUNICATIONS, INC.
/s/ Xxxxx X. Xxxxxxx XX /s/ Xxxxxxx X. Xxxxxxxx
---------------------------------- ----------------------------------------
Xxxxxxx X. Xxxxxxxx, President
Date 4-17-03 Date 4-17-03
--------------------- --------------------------
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