EXHIBIT 10.1
AGREEMENT
This Agreement (the "Agreement") is made and entered into this 25th day of July,
2005, by and between World Golf League, Inc., a wholly owned subsidiary of N/A
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(including its successors, heirs and assigns) (collectively, "Company") and
Xxxxxx Productions, Inc. (d/b/a Xxxxxx Entertainment) ( "Xxxxxx ").
Recitals
1. Xxxxxx is a wholly owned subsidiary of Xxxxxx Communications
Corporation, which owns and operates a network of television stations
and provides programming to its over-the-air broadcast television
stations and cable and satellite television systems within the United
States that together reach approximately 85 million US households (the
"Network").
2. Company produces on its own or through other entities a certain
television program, which is referred to as "WGL MILLION DOLLAR
SHOOTOUT", which is more specifically defined and set forth on Exhibit
"A", attached hereto and made a part hereof (the "Program").
3. Company desires to broadcast the Program on the Network and
Xxxxxx desires to provide Company broadcast time on the Network for
the Program.
NOW, THEREFORE, for and in consideration of the covenants contained herein and
other good and valuable consideration, the receipt and sufficiency of which is
hereby acknowledged, Company and Xxxxxx hereby covenant and agree as follows:
A. Purchase of Time
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1. During the Term (defined below), Xxxxxx shall provide exclusively
to Company the following time on the Network for Company's exhibition
of the Program (the "Time Purchased"): Monday 7pm to 8pm Eastern and
Pacific (6pm to 7pm Central and Mountain), which the express
understanding that in some cases the satellite and cable operators
will only carry the Eastern time zone feed of the Network.
2. As consideration for the Time Purchased, Company shall pay to
Xxxxxx the following amounts:
(a) a license fee in the amount **** (the "License Fee") net
cash. [The license fee is calculated as follows: ****.]
(b) The License Fee shall be paid by Company to Xxxxxx as *****.
3. Company will provide Xxxxxx with the Program for broadcast during
the Time Purchased, (a list of such programs with log lines is
attached as Exhibit "A"). The form and content of the Programs shall
conform to Xxxxxx'x Broadcast Standards and Practices Guidelines
(attached hereto as Exhibit "B") and incorporated by reference herein
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as well as Xxxxxx'x Delivery Requirements (attached hereto as Exhibit
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"C"). The running times for each one (1) hour programming including
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all commercial spots shall not exceed fifty seven minutes (57:00),
with the understanding that the balance of up to three (3) minutes per
hour may be covered by cable/satellite local advertising avails, TV
station legal Ids and on-air promotions of other programming which
broadcasts on the Network. Company shall comply with delivery
specifications and coordinate with Xxxxxx'x XX of Operation or such
other designee of Xxxxxx. Company shall deliver to Xxxxxx two (2)
acceptable, digi-beta tapes of each Program suitable for broadcast,
complete with closed captioning for the hearing impaired. In addition
to two (2) acceptable digi-beta airing masters (shipped to Xxxxxx at
Company's expense), Company will provide Xxxxxx with reasonably
available, standard promotional materials to promote the Program
subject to any contractual limitations. Xxxxxx and its affiliates will
have the right during the Term to utilize clips (up to two minutes in
length per clip), as well as stills from the clips and photographs, to
promote carriage of the Program on the Network without charge.
4. Xxxxxx may refuse to broadcast any Program or portion of any
Program which, in its judgment, is contrary to the public interest
and/or the Xxxxxx Commercial/Programming Policy Standard attached
hereto as Exhibit B, as the same may be modified in whole or in part.
Xxxxxx will have 48 hours following the delivery to Xxxxxx of any
Program within which to preview the Program and deliver its content
objections, if any, to Company. In such event, Company shall be
obligated to provide substitute Program material acceptable to Xxxxxx.
Nothing in this Agreement shall confer upon Company or its employees
or agents any right, directly or indirectly, to control, supervise or
direct any aspect of the management operation of the Network or the
stations that comprise the Network and such management and operation
shall be and remain the sole responsibility of, and under the control
and direction of, Xxxxxx.
5. In the event Company has not made payment of the License Fee on a
timely basis as set forth herein, Xxxxxx may immediately terminate
this Agreement (without the requirement of any notice as provided for
in Paragraph M below), and accordingly refuse to broadcast the
Programs. In the event of the termination of the Agreement by Xxxxxx
as set forth in the proceeding sentence, Company shall immediately
forfeit any portion of the License Fee previously paid to Xxxxxx'x
benefit and the remaining balance of the Licensee Fee shall become
accelerated and immediately due and payable to Xxxxxx. The
aforementioned shall not limit any remedy or claim for damages that
Xxxxxx may have against Company due to breach of this Agreement, at
law or in equity.
B. Representations, Warranties, and Obligations of Company
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1. Company represents and warrants it owns and/or controls the
copyrights in or to the Programs or has been authorized to grant the
rights herein granted under copyright and will own and/or control such
copyrights for the duration of the Term such that Xxxxxx may exercise
its rights granted herein. Company will provide the Program to Xxxxxx
free and clear of any existing or future third party payments,
residuals, guild payments, liens and/or encumbrances. None of the
Programs (or any material contained in them) to be provided by Company
under this Agreement during the Purchased Time (as defined herein)
does or will violate, infringe upon, or give rise to any adverse claim
with respect to, any right whatsoever (including, without limitation,
any copyright, trademark, service xxxx, literary, dramatic, musical or
motion picture right, right of privacy or publicity, contract right or
so-called "moral rights of authors") of any person or entity or
violate any law
2. All of the Programs (and any material contained in them) provided
by Company under this Agreement will comply with all federal, state
and local laws, including, but not limited to, the Communications Act
of 1934, as amended, the rules and policies of the Federal
Communications Commission ("FCC"), as well as applicable libel,
slander, obscenity, deceptive advertising or false representations
statutes, regulations and policies. Company acknowledges that FCC
regulations restrict commercial advertising during programming
designed for children 12 years old and younger not only in the amount
of commercial time (twelve minutes per hour during the week and 10.5
minutes per hour on weekends) but also the content of such advertising
(e.g. host selling and program length commercials). If such ratings
information exists, Company will deliver to Xxxxxx upon execution of
the Agreement the verified ratings information for the Programs as
governed by applicable FCC regulations and laws. Finally, FCC
regulations restrict the appearance of certain internet website
addresses during such children's programming.
3. Company shall indemnify, defend and hold harmless Xxxxxx against
all claims, demands, liabilities, suits, damages, costs, or expenses
of any kind, resulting from or relating to the Programs or other
material furnished by Company for broadcast on the Network under this
Agreement including any fine or forfeiture imposed by the FCC based
upon the content of any Program resulting from:
a) Any false or misleading statements or
representations contained in any Program provided by
Company.
b) Any failure of Company or its clients to deliver
any advertised product or service in compliance with
the terms of the applicable advertisement within the
time period advertised.
c) Any infringement of any rights held by any third
party, including but not limited to, actions for
copyright or trademark infringement or actions for
unfair competition.
d) Any breach of any representation, warranty or
other obligation contained herein.
This indemnity shall include, but not be limited to, all
reasonable costs and attorney's fees incurred in connection with any
such claim. Company represents and warrants that it has the full
right, power and authority to enter into and fully perform this
Agreement, free and clear of claims or restrictions by any other
person, entity or governmental agency.
4. Company will defend, at its own expense, any legal action or
proceeding arising out of any breach or alleged breach of any warranty
described above in this Section so long as Xxxxxx: (i) notifies
Company promptly of any such claim or of the commencement of any such
action proceeding; (ii) delegates complete and sole authority to
Company or its clients to defend or settle such claims, actions, or
proceedings (except for claims involving the FCC); and (iii)
cooperates fully with Company or its clients in the defense of any
such claims.
5. Company warrants and represents that it shall not disclose to any
third party (other than its affiliated entities, directors, officers
and employees, in their capacity as such) any information with respect
to the financial terms and provisions of this Agreement except to the
extent necessary to comply with law or the valid order of a court of
competent jurisdiction.
6. Company represents and warrants that is shall not re-sell or
license the Programs or any rights under this agreement to a third
party and that any such attempt shall be deemed a breach of this
Agreement.
7. Company represents and warrants that it has the full right,
power, and authority to enter into and fully perform this Agreement,
free and clear of claims or restrictions by any other person, entity,
or governmental agency.
C. Representations, Warranties, and Obligations of Xxxxxx.
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1. Xxxxxx represents and warrants that, as of the date of this
Agreement, its Network will reach no less than 85,000,000 television
households and that each of these households is fully capable of
receiving programming during the Time Purchased.
2. Xxxxxx or its representative shall supply Company, prior to the
start of the agreed upon service, a market list for the Network's
coverage areas and identify which markets are carried via cable versus
an over-the-air broadcast station.
3. Xxxxxx shall notify Company, immediately upon recognition, of any
material technical difficulties or material picture quality
inadequacies experienced during Time Purchased, to the extent that the
Programming does not meet reasonable broadcast standards.
4. Xxxxxx shall not at any time disclose for any purpose (other than
for the purpose of compliance with or enforcement of this Agreement)
any terms or provisions of this Agreement or of Company's secrets or
confidential technology, proprietary information, client information,
prices, or any other matter or thing owned by Company or its clients,
the use of disclosure of which might reasonably be construed to the
contrary to the best interest of Company and its clients.
5. Xxxxxx shall indemnify, defend, and hold Company harmless from
all liabilities, claims, costs, damages, and expenses relating to any
breach by Xxxxxx of any provision or representation in this Agreement.
This indemnity shall include, but not be limited to, all reasonable
costs and attorney's fees incurred in connection with any such claim.
6. Xxxxxx represents and warrants that it has the full right, power
and authority to enter into and fully perform this Agreement, free and
clear of claims or restrictions by any other person, entity or
governmental agency.
D. Survival of Provisions:
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All warranties and representations contained herein shall survive
any termination, cancellation, or expiration of the Term of this
Agreement for the period of six months.
E. Term:
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1. The term ("Term") of this Agreement shall be for seven (7)
consecutive weeks beginning Monday, January 23, 2006 and ending on
March 6, 2006. Licensee may terminate this Agreement at any time prior
to September 23, 2005. In such event of termination, Licensee shall
immediately refund any portions of the Licensee previously paid by
Licensor to Licensee.
2. The Company programming shall continue to be aired throughout the
Term during the Time Purchased on the Network regardless of any change
of controlling ownership in Xxxxxx or Xxxxxx Communications
Corporation. Notwithstanding the foregoing, in the event of any change
of controlling ownership of Xxxxxx or Xxxxxx Communications
Corporation, Xxxxxx shall have a right to terminate this Agreement
upon two (2) months advance written notice to Company prior to
commencement of the Term.
F. Attorney's Fees
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In the event legal proceedings are instituted in connection with
this Agreement, the prevailing party shall be entitled to an award of
its reasonable attorney's fees at all trial and appellate levels.
G. Modifications
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The terms of this Agreement may not be changed, modified, or
amended orally, except through a written instrument, signed by the
party against whom the enforcement of the change, modification, or
amendment is asserted.
H. Section 507
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Company acknowledges Section 507 of the Communications Act, which
requires any employee who accepts and or agrees to accept from any
person or entity (other than the network) any money, service or other
valuable consideration in return for broadcasting any matter, Company
shall announce in the Program(s) that the matter was paid for or
furnished by the person or entity from whom the matter of compensation
was received.
I. Governing Law
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This Agreement shall be governed by and construed in accordance
with the laws of the State of Florida (including, without limitation,
matters of validity, construction, effect, performance and remedies)
or where applicable, by Federal Law, all as applicable to agreements
made and to be performed entirely within the State of Florida.
J. Exclusive Jurisdiction
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It is expressly agreed and understood by the parties hereto that
the state and federal courts of Palm Beach County, Florida shall have
the sole and exclusive jurisdiction and venue over all controversies,
proceedings, or other actions arising out of or in any manner related
to this Agreement. The parties hereby waive any defense of lack of
personal jurisdiction or improper venue with respect to such courts.
K. Entire Agreement
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Company and Xxxxxx hereby represent and warrant that no
representations or warranties have been made by or relied on by either
of them pertaining to the subject matter of this Agreement, other than
those representations and warranties specifically set forth in this
Agreement. All prior statements, representations and warranties, if
any, are totally superseded and merged into this Agreement, and this
Agreement represents the final and sole agreement of Company and
Xxxxxx with respect to the matters that are the subject hereof.
L. Construction of Agreement
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The parties hereto represent and warrant that all of the terms of
this Agreement were negotiated at arm's length, and were prepared and
executed without fraud, duress, undue influence or coercion of any
kind exerted by either of Company or Xxxxxx upon the other. The
execution and delivery of this Agreement is the free and voluntary act
of each Company and Xxxxxx.
M. Termination.
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In addition to the rights provided to Xxxxxx under Paragraph A.5.
herein, this Agreement may be terminated prior to the expiration of
the Term under the following circumstances:
1. Violation of terms and conditions. In case of breach or violation
by either party of any of the terms, conditions, or covenants
undertaken in this Agreement, the innocent party shall have the right
to terminate this Agreement by giving fourteen (14) days' written
notice and opportunity to cure to the other party, specifying the
particulars of such breach or violation (five (5) days' notice for
payment default) and provided that such breach or violation is not
cured within said aforementioned notice period, then this Agreement
will effectively terminate at the end of said notice period; or
2. Bankruptcy or reorganization. This Agreement shall be terminated
at the option of either party if the other party files or is the
subject of an involuntary petition in bankruptcy, or a petition or
answer seeking reorganization or an arrangement with creditors under
the bankruptcy laws in the United States, or applies for or consents
to the appointment of a receiver or trustee in contemplation of its
dissolution or liquidation of its assets, or makes a general
assignment for the benefit of creditors, or is adjudicated bankrupt or
insolvent, or indicates in writing that it is unable to pay its
obligations as they mature.
N. Notices.
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All notices given or required to be given under this Agreement
shall be in writing and sent by personal delivery or overnight mail,
postage prepaid, to the parties given in this Agreement or at such
other addresses as may subsequently be specified in writing.
Company World Golf League, Inc.
c/o Xxx Xxxxxx
NorthStar Vision, Inc.
XX Xxx 00000
Xxxx Xxxxx Xxxxxxx, XX 00000
Xxxxxx Xxxxxx Productions, Inc.
000 Xxxxxxxxxx Xxxx Xxxx
Xxxx Xxxx Xxxxx, XX 00000
Attn: Legal Department
O. Neither party may assign its rights or obligations under this
Agreement without first receiving the advance written approval of the
other party, provided however that Xxxxxx shall have the right to
assign any or all of their rights or obligations hereunder to
effectuate the purposes of this Agreement, provided that such assignee
agrees to assume all of Xxxxxx'x obligations to Company under this
Agreement. Notwithstanding anything above to the contrary, Xxxxxx may
assign its interest in this Agreement, or any rights and obligations
hereunder, without Company's consent, to an entity with which Xxxxxx
or Xxxxxx Communications Corporation is merged or consolidated or
controlled by or which acquires all or substantially all of Licensee
or Xxxxxx Communications Corporation.
P. Force Majeure.
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Neither party shall be liable to the other for failure to supply
the Programs, failure of broadcasting services or failure to comply
with any provisions of this Agreement or inability to perform any
obligations provided in this Agreement, where the parties prevented
from doing so by reason of acts of God, weather conditions, strikes,
accidents, acts of government authorities, or other causes beyond
control of such party. All requirements as to notice and other matters
requiring performance within a specified period shall be automatically
extended to accommodate the period during which such clause existed.
WORLD GOLF LEAGUE, INC. XXXXXX PRODUCTIONS, INC.
By: /s/ Xxxxxxx Xxxxxxx By:/s/ Xxxx Xxxx
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Print Name: Xxxxxxx Xxxxxxx Print Name: Xxxx Xxxx
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Title: CEO Title:General Counsel
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Date: 07-25-05 Date: 08-01-05
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