EXHIBIT 10.11
ESPN INC.
PRODUCTION FACILITIES AGREEMENT
THIS AGREEMENT, dated as of October 15, 1998, is between SMA Realtime,
Inc. a New York corporation, with offices at 000 Xxxxxx xx xxx Xxxxxxxx, Xxx
Xxxx, Xxx Xxxx, 00000 ("SMA"), and ESPN, Inc., a Delaware corporation, with
offices at ESPN Plaza, Bristol, Connecticut 06010-7454 ("ESPN").
SMA hereby agrees to provide to ESPN the services and facilities described
below in accordance with the BASIC PROVISIONS set forth below and the attached
GENERAL TERMS AND CONDITIONS.
BASIC PROVISIONS
I. THE SHOOT
(a) SMA will provide the facilities, equipment and manpower specified in
Section II (collectively, the "Services".) in connection with the
production of television programs (or portions thereof) forming a part
of ESPN's SportsCentury Project (the "Programs").
(b) Dates, Times, and Site: The Services shall be made available at SMA's
business location/studio facility at 000 Xxxxxx xx xxx Xxxxxxxx, Xxx Xxxx,
Xxx Xxxx (the "Site"); and shall be available to ESPN no fewer than forty
(40) days (each 9:00 a.m. to 5:00 p.m.- except Fridays, which shall be
11:30 a.m. to 7:30 p.m. -- minimum) for shooting (each a "Shoot Day"). In
addition (and at no additonal charge hereunder), the Facilities, Equipment
and such Manpower as is necessary for the purpose, shall be available as
necessary to allow ESPN to conduct walk-throughs, camera tests, graphic
and film tests and other tests to satisfy itself regarding the readiness
and suitability of the Facilities (including, without limitation, the
Virtual Set) and Equipment for the Shoot Days. In connection with such
testing, ESPN shall have the right to make, retain, and utilize
audiovisual recordings for test and review purposes. SMA represents and
warrants that all of the Services shall be available to ESPN on the dates
set forth in Schedule A attached hereto. As soon as ESPN has determined a
reasonable number of additional dates on which it wishes to use the
Services, it will so notify SMA. SMA shall make the Services available to
ESPN on such dates and will not cause or allow any of the applicable
Services to be utilized in connection with any other services that would
conflict with their availability to ESPN. Notwithstanding the foregoing,
if at the time that ESPN notifies SMA of such additional dates, SMA has
an existing, binding commitment to make the Services available to a third
party which commitment, despite SMA's commercially reasonable efforts,
cannot be rescheduled, then SMA shall inform ESPN of all then-available
dates and ESPN shall have the right to select dates from
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among them, one for each date as to which such a conflict exists. SMA
acknowledges that ESPN's specifications may necessitate access to
Facilities, Manpower and/or Equipment in addition to those specified
herein or at times other than during regular business hours. Should ESPN
require services in addition to those specified hereunder, SMA will
provide such services on an "as-needed" basis at rates no less favorable
than those offered to other customers for equivalent services.
(c) ESPN will provide all "above the line" personnel and announcers and
other elements not specifically provided for in Section II, below, for
production of the Programs at SMA's Site.
(d) All Manpower specified in Section II below will perform its duties
related to the Programs under ESPN's supervision and control. All
Facilities, Equipment and Manpower will be available to ESPN on all days
Monday through Sundays.
II. FACILITIES, EQUIPMENT AND MANPOWER
(a) Facilities: SMA shall construct a "virtual set" pursuant to and in
conformity with designs and specifications provided by ESPN (the "Virtual
Set") and to ESPN's reasonable satisfaction. The Virtual Set shall be
completed no later than December 7, 1998. Facilities shall include: a
studio and stage reasonably satisfactory to ESPN, both incorporating the
Virtual Set; associated full control room; videotape playback and record;
full voiceover facilities; and the complete Orad computer system.
(b) Equipment:
Camera
Audio equipment(of reasonable professional quality, equal to or
better than that customarily utilized in programming telecast on the ESPN
Network)
Light and Grip
Ultimatte Three (3) BetaSP VTRs
One (1) DigiBeta VTR
Teleprompter
SGI RE3 Computer
Digital Disc Recorder
Control Room
(c) Manpower:
Production Coordinator
Lighting Director
Camera Operator
Gaffer
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EIC/SVO
Technical Director
SGI Director
Teleprompter Operator
(d) Other Terms and Services: Video raw stock as required by ESPN.
III. COMPENSATION
For the Facilities, Equipment and Manpower supplied to it by SMA as
specified above in Paragraph II, ESPN shall pay SMA as follows:
(a) For construction of the Virtual Set: $ within thirty days
following the execution hereof.
(b) For all Facilities, Equipment and Manpower provided by SMA under
this Agreement, ESPN shall pay SMA $ per Shoot Day, payable as
follows: (i) $ (the "Shoot Day Deposit") within the later of
delivery of the Virtual Set pursuant to Section II(a), above, and thirty
days of execution hereof ($ of which shall be attributable to each
anticipated Shoot Day) and (ii) $ per Shoot Day within forty-five
days after ESPN's receipt of an invoice from SMA for each Shoot Day
actually used, which invoicing shall occur no more frequently than weekly.
ESPN shall be entitled to an evaluation period from the date of completion
of the Virtual Set through and including January 31, 1999 (the "Evaluation
Period"). At any time during the Evaluation Period, ESPN shall be
entitled to terminate this Agreement for any reason or no reason, in its
sole discretion, with no further obligation to SMA hereunder and shall be
entitled to an immediate refund of that portion of the Shoot Day Deposit
attributable to Shoot Days not used. If ESPN does not terminate this
Agreement during the Evaluation Period and SMA performs all of its
obligations under this Agreement, ESPN agrees to pay SMA for at least
twenty-five (25) Shoot Days in the aggregate, being $ (the
"Guaranteed Amount") except where actual usage of less than twenty-five
Shoot Days results from SMA's failure to make the Services available to
ESPN on a sufficient number of mutually agreeable dates. Subject to the
foregoing sentence, upon expiration of this Agreement, SMA shall invoice
ESPN for the difference between the sums paid by ESPN pursuant to this
Section III(b) (including the Shoot Day Deposit) and the Guaranteed Amount
and ESPN shall pay such amount within thirty days after its receipt of
such invoice.
(c) For video raw stock supplied by SMA at ESPN's request, SMA shall
invoice ESPN at a rate no less favorable than that offered to any other
SMA customer.
(d) ESPN represents and warrants that, to the best of its knowledge and
belief, the manufacturers' exemption under New York State laws regarding
sales taxes applies to the entire subject matter of this agreement. If
the New York Department of Taxation and Finance
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("NYDTF") makes a final assessment to the contrary, ESPN shall reimburse
SMA for the portion of such assessment directly attributable to the sales
taxes assessed on this transaction, but the foregoing is conditioned on
SMA's promptly notifying ESPN if NYDTF questions the applicability of the
exemption and affording ESPN a full and continuing right to participate
in all phases of dealing with NYDTF in determining the taxability of this
transaction.
IN WITNESS WHEREOF the parties hereto have executed this Agreement as of
the day and year first written above.
SMA REALTIME INC. ESPN, INC.
By: By:
------------------- -------------------------
Xxxxxx Xxxx
Executive Vice President
Production
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GENERAL TERMS AND CONDITIONS
1. THE EVENTS
ESPN may delete or add Shoot Days to those listed in Paragraph I of the
BASIC PROVISIONS and may change the Dates previously listed from time to time
and at any time upon ten days' prior notice to SMA, but, except as provided in
I(b) of the BASIC PROVISIONS, SMA may decline without penalty to render its
service hereunder for any added Shoot Days or changed Dates by giving ESPN seven
days' prior notice. Failure to give ESPN such notice shall be deemed to be
acceptance by SMA of such additions or changes.
2. THE SHOOT
(a) Only "below-the-line" (and "above-the-line" if appropriate) personnel
and elements approved by ESPN shall be used by SMA in the furnishing of services
under this Agreement. ESPN hereby approves of the named personnel, if any, and
elements specified above in Paragraph II of this Agreement.
(b) SMA shall be fully responsible for paying all persons providing
services hereunder at least the amount required under any union or guild
collective-bargaining agreement and for the exercise of ESPN's rights
hereunder, if any.
(c) SMA shall deliver the Equipment and Manpower to the applicable Site at
or before the Time and Date specified above in Paragraph I. "Production Day"
shall mean a twenty-four hour period beginning with the later of the Time
specified in Paragraph I or the actual time of delivery of the Equipment and
Manpower by SMA and each succeeding twenty-four hour period in which the use of
the Equipment and Manpower is required by ESPN under this Agreement.
3. TERM AND TERMINATION
(a) The term of this Agreement shall commence on the date hereof and
end on January 31, 2000.
(b) Subject to the terms of III(b), in the BASIC PROVISIONS regarding
compensation, ESPN may terminate this Agreement upon seven days' prior written
notice to SMA or immediately upon any breach of its terms by SMA by so
notifying SMA.
4. COMPENSATION
(a) The payments specified by Paragraph III of the BASIC PROVISIONS are
intended by the parties to be the entire and only amounts payable to SMA for
its services under this Agreement. No additional payments shall be made for
rental equipment or meal penalties, or overtime charges for personnel or any
other extra charges except as
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specifically agreed to by ESPN in advance in writing on ESPN's standard
contract amendment form (attached) only.
5. EXCLUSIVITY
As between SMA and ESPN, all rights to any audio-video Program(s) produced
of the Events by ESPN (the "Programs"), including any property rights therein,
shall be exclusive to ESPN, and SMA shall not deliver any such Programs or
convey any interest in any Program to any third person without ESPN's prior
written consent. ESPN shall be the sole owner thereof and shall have the right
to affix to each Program a notice designating ESPN as the owner of the
copyright. Nothing in this Agreement shall require ESPN to actually distribute
such Program(s), and ESPN shall have discharged its obligations to SMA under
this Agreement by paying to it the compensation provided above in Paragraph M
in. accordance with the terms of this Agreement.
6. WARRANTIES
(a) Each party represents and warrants to the other that it has the right
to enter into this Agreement and perform all of its obligations under it.
(b) SMA represents and warrants to ESPN (i) that it has obtained, or will
obtain, and will faithfully perform all its obligations under all necessary and
appropriate clearances, licenses, rights agreements, union, guild and other
collective bargaining agreements, employment and other agreements involving all
elements of the Program(s) to be provided by SMA under this Agreement and all
persons and services in connection with it (ii) that ESPN's exercise of its
rights under this Agreement will not give rise to any obligations or
liabilities with respect thereto, and (iii) that all of ESPN's rights under
this Agreement can be fully and freely exercised without any claim of future
payment of any kind with respect to any of the Program(s).
(c) ESPN represents and warrants to SMA that it has obtained, or will
obtain, and will faithfully perform all its obligations under all necessary and
appropriate clearances, licenses, and rights agreements involving all elements
of the set design to be provided by ESPN to SMA under this Agreement.
(d) SMA acknowledges that this Agreement's scope is limited to its
specific subject matter and it does not entitle either SMA or ESPN to any future
rights or expectations with respect to each other except as explicitly provided
herein.
7. FORCE MAJEURE
If the staging of any Shoot Day should be prevented or cancelled due to an
act of God, inevitable accident, strike or other labor dispute, fire, riot or
civil commotion, government action or decree, inclement weather, failure of
technical, production or television equipment, or for any other reason beyond
the control of SMA or ESPN, then neither
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SMA nor ESPN shall be obligated in any manner to the other with respect to the
Shoot Day (including any compensation for the Shoot Day), but all other rights
ESPN may have in this Agreement shall remain in effect and shall not be
affected in any manner. If, however, any of the Shoot Days should be postponed
or delayed due to one of the causes enumerated above, then ESPN shall have the
right to elect to cause SMA to provide the services and facilities specified in
the BASIC PROVISIONS in connection with the Shoot Day on its rescheduled date
in accordance with all the terms hereof or to not provide the services and
facilities specified in the BASIC PROVISIONS in connection with the rescheduled
Shoot Day, in which case ESPN shall not be obligated in any manner to SMA
therefor (including for payment), but all ESPN's other rights in this Agreement
shall survive.
8. INDEMNIFICATION
A. ESPN and SMA will each indemnify, defend and hold harmless the other,
the other's officers, directors, employees, shareholders, parent and
affiliated companies, agents and contractors from any and all claims,
costs, liabilities, judgments, losses, demands, expenses or damages
(including reasonable attomeys' fees), including those for, but not limited
to, bodily injury, including death resulting therefrom, personal injury and
property damage arising out of any act, omission or negligence, any breach
or alleged breach of this Agreement, performance of the obligations
hereunder, or any misrepresentation made by it herein.
B. In any case in which indemnification is sought hereunder:
(i) the party seeking indemnification shall promptly notify the
indemnifying party of any claim or litigation to which the
indemnification relates; and
(ii) the party seeking indemnification shall afford the
indemnifying party the opportunity to participate in and at the
indemnifying party's option, fully control any compromise,
settlement, litigation or other resolution or disposition in such
claim or litigation, but the indemnifying party shall not make any
agreement that prospectively compromises or limits the other party's
substantive rights without such party's prior, written consent
(which shall not be unreasonably withheld); in no case shall any
such compromise or limitation implicate rights, obligations or
property beyond the subject matter of this Agreement.
C. SMA shall, at its own expense, carry liability insurance of the
following types and limits under the Agreement:
(i) worker's compensation insurance covering all persons employed by
it in connection with the furnishing by it of the services under the
Agreement in compliance with and in the maximum amounts and form
specified by the state law
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of the state in which such persons render such services and employers'
liability insurance with a limit of not less than $100,000.00 per
occurrence covering its employees; and
(ii) comprehensive general liability insurance covering all liability
for bodily injury including death resulting therefrom, personal
injury and property damage to third parties, having a combined
single limit for injuries to any persons of not less than
$3,000,000.00 for all claims arising out of the same accident or
occurrence, which insurance shall include ESPN as an additional
named insured;
SMA shall provide ESPN with certificates of insurance showing compliance
with the foregoing requirements. Such certificates shall provide no less
than thirty days' prior notice to ESPN by the insurance company in the
event of any material change or cancellation of the required insurances. All
such insurance shall cover ESPN, its affiliated companies and the officers,
directors, employees and agents of all the foregoing. The insurance required
to be carried by SMA shall be primary and noncontributory with any similar
insurance carried by ESPN and shall be written on an occurrence basis and
form.
D. ESPN shall, at its own expense, carry liability insurance of the
following types and limits under the Agreement:
(i) worker's compensation insurance covering all persons employed by ESPN
in connection with its production of the Programs, in compliance with and
in the maximum amounts and form specified by the state law of the state in
which such persons render such services and employers liability of the
state in which such persons render such services and employers' liability
insurance with a limit of not less than $100,000.00 per occurrence covering
its employees.
ESPN shall provide SMA with a certificate of insurance showing compliance
with the foregoing requirements.
9. INDEPENDENT CONTRACTORS
SMA and ESPN are independent contractors with respect to each other, and
nothing in this Agreement shall create any association, partnership, joint
venture or agency relationship between them. As between ESPN and SMA, all
persons employed by SMA in connection with its performance under this Agreement
shall be SMA's employees and SMA shall be fully responsible for them, except as
otherwise explicitly provided in this Agreement.
10. FINANCIAL DISCLOSURE
In conformity with Section 507 of the U.S. Federal Communications Act
concerning broadcasting matters and disclosure required thereunder, SMA
warrants and represents
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that it has not accepted or agreed to accept, and will not permit its
employees, agents, representatives, contractors, or affiliate entities to
accept any monies, services, or other consideration for the inclusion of any
commercial material or matter in or as part of any Programs(s).
11. ENTIRE AGREEMENT AND AMENDMENT
This Agreement contains the full and complete understanding of the parties
to it, supersedes all prior agreements and understandings whether written or
oral pertaining to its subject matter and cannot be modified or amended except
by a written instrument signed by each party, substantially in the form of the
ESPN standard amendment attached hereto.
12. NOTICE
All notices and other communications from either party to the other under
this Agreement shall be in writing and shall be deemed received when delivered
in person or three days after mailing, postage prepaid, addressed to the other
party at the address specified at the beginning of this Agreement, or at such
other address as that other party may supply by written notice.
13. ASSIGNMENT
SMA shall not assign any of its rights or obligations under this Agreement
without the prior written consent of ESPN, and any purported assignment without
such prior written consent shall be null and void and of no force or effect.
14. GOVERNING LAW AND INTERPRETATION
This Agreement shall be governed by the laws of the State of Connecticut.
The language of all parts of this Agreement shall in all cases be construed as
a whole according to its fair meaning and not strictly for or against any of
the parties.
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SCHEDULE A
SCHEDULED SHOOT DAYS AS OF THE DATE HEREOF
December 16, 1998
December 21, 1998
January 18, 1998
February 3, 1998
February 18, 1998
February 24, 1998
February 25, 1998
Xxxxx 0, 0000
Xxxxx 22, 1998
April 7, 1998
April 14,1998
April 23, 1998
April 28, 1998
May 2,1998
May 7,1998
May 10, 1998
May 19, 1998
May 26, 1998
June 25, 1998
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ESPN, INC.
AMENDMENT TO STANDARD ESPN PRODUCTION FACILITIES AGREEMENT
THIS AMENDMENT, dated as of _____ is made to the production facilities
agreement dated as of ________, (the "Agreement") between ESPN and SMA and is
made a part thereof.
A. ESPN hereby requests and authorizes the following additional Equipment,
Manpower, and/or supplies for the Production Day(s) on ________of the Shoot
covered by this Agreement:
ITEM COST
______________________ _________________________
______________________ _________________________
______________________ _________________________
______________________ _________________________
B. ESPN hereby authorizes time in excess of __ hours for the Production Day(s)
on _________ for the following Manpower:
[date(s)]
____________________________
____________________________
____________________________
____________________________
C. ESPN hereby requests and authorizes that the Services requirements be
changed as follows:
______________________________________
______________________________________
______________________________________
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D. Sums payable by ESPN as a consequence of rendered services authorized by
this Amendment shall be paid by ESPN's mailing its check to SMA within sixty
days of ESPN's receiving SMA's invoice therefor.
[Full legal name for SMA:] ESPN, INC.
By ________________________ By __________________________
Title _____________________ Title _______________________
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