EXHIBIT 10.19
PROGRAMMING INCLUSION AGREEMENT
This Programming Inclusion Agreement ("Agreement") is entered into as
of March 2, 2000 by and between Fifth Avenue Channel, a Florida corporation
("FAC") and America's Voice, Inc., the owner and distributor of America's
Voice(TM) ("Network").
WHEREAS, FAC produces financial news and information programming for
distribution via television; and,
WHEREAS, FAC wishes to include some of it's programming as a portion of
the programming currently distributed by Network, subject to all terms,
restrictions, provisions and/or conditions applicable to the operating
procedures of Network including, without limitation, those imposed on Network by
its various distribution sources; and,
WHEREAS, Network, subject to the terms and conditions of this
Agreement, is willing to include certain FAC programming within the distribution
of its Network Programming.
NOW THEREFORE, in consideration of die mutual covenants, conditions and
agreements set forth herein, it is agreed as follows:
1. DEFINITIONS.
For purposes of this Agreement, the following definitions shall apply:
1.1 "FAC Programming" means television programming presented by FAC
to Network's facility for inclusion with Network's programming
and which will consist exclusively of programs from FAC. All
FAC programming presented hereunder is strictly limited to the
principal audio and video signal of that specifically defined
herein and at no time, regardless of the circumstances, will
FAC attempt to present any other programming for inclusion by
Network throughout the Term of this Agreement.
1.2 "Network Programming" means programming distributed by Network
within the United States, -its territories and possessions;
provided, however, it is understood and agreed that satellite
distribution contained within the Network Distribution will
spill over outside or beyond such geographic boundaries (e.g.,
into Canada and Mexico) and such spillover, in and of itself,
does not and shall not violate this Agreement.
1.3 "Network Distribution" means the various sources, by which
Network does or may distribute Network Programming.
1.4 "Party" will mean a named party to this Agreement, its agents,
employees, officers, directors, successors and assigns.
1.5 "Subscriber" is any person, entity and/or location, including.
without limitation, residences, commercial establishments and
non-residential buildings, and the individual lodging rooms of
hotels, motels, dormitories, hospitals, and nursing homes, who
receive Network Programming as a result of the Network
Distribution. Except as set forth herein, neither Network nor
the Agency of Record makes any representations or warranties
with respect to a total number of present or future Subscribers,
or the number of residential., commercial or other
non-residential Subscribers. As of the date hereof, Network hits
represented its current Subscriber Count as detailed in the
attached Exhibit A. FAC understands and accepts that Subscriber
counts, or any other real number reference to Subscribers is an
approximation and subject to change.
1.6 "Term- shall mean a period of five (5) years commencing March 6,
2000 and continuing through March 5, 2005.
1.7 "Agency of Record" shall mean Xxxxxx Group, Inc.
1.8 "Promotional Announcement" shall mean an announcement of 10
seconds in duration promoting FAC or FAC Programming for
insertion in Network Programming.
1.9 Subject to the terms and conditions of this Agreement, FAC
Programming will be inserted into the Network Programming
between the hours of 10:00 am ET and 12:00 pm (noon) ET, Mondays
through Fridays contained within March 6, 2000 through April 15
2000. On or before April 160', 2000, FAC Programming inclusion
within the Network Programming will increase to between the
hours of 6:00 am ET and 6:00 pm ET, Mondays through Fridays
throughout the Term, or any modification thereof. ("Scheduled
Time")
2. DELIVERY AND INCLUSION OF FAC PROGRAMMING
2.1 FAC warrants the absolute and undisputed right to distribute,
transmit or otherwise display FAC Programming and hereby grants
to Network and Network accepts the right, to distribute, exhibit
or otherwise display FAC Programming before Subscribers
throughout the Term, or any extension thereof. At all times,
regardless of the circumstances, FAC shall remain solely liable
for the FAC Programming, including, without limitation,
production, content and delivery of such to Network. FAC shall
indemnify, defend and hold both Network and the Agency of Record
harmless from and against any and all claims, liability, loss or
expense relating to or arising from tile FAC Programming or the
inclusion of FAC Programming by Network. FAC shall secure in
advance all right--., licenses, permissions, releases, and
consents (including without limitation, all those pertaining to
copyright, trademark, and music performance and
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synchronization rights) necessary and appropriate for
distribution of FAC Programming in accordance with the terms of
this Agreement.
2.2 FAC, at it sole cost and expense, shall deliver FAC Programming
via domestic communications satellite GE1 Transponder 5 or any
other mutually acceptable satellite delivery system to Network.
Network has. advised FAC that Network will require specific
digital reception equipment to successfully receive FAC
Programming for inclusion of FAC Programming with Network
Programming distributed to Subscribers. FAC has agreed to
provide Network with any and all such equipment necessary to
receive and/or decompress, the FAC Programming signal, solely at
FAC's own risk and expense, including without limitation, the
initial cost of equipment, shipping expenses, and any cost(s)
for maintenance and/or repair. Equipment provided by FAC
pursuant to this Agreement is and shall remain the property of
FAC and. within sixty (60) days of the date of expiration of the
Term will be returned to FAC, as directed by FAC at FAC's
expense. The Parties understand and agree that material revision
to the manner in which FAC delivers FAC Programming to Network
will not be permitted without (he advance written consent of
Network. In no event., other titan a Force Majeure Event, shall
FACS failure to deliver FAC Programming to Network relieve FAC
of it; payment obligations under this Agreement.
2.3 Subject to the terms and conditions of this Agreement, Network
shall use commercially reasonable efforts to insert FAC
Programming into Network Programming for display or FAC
Programming before Subscribers during the Scheduled Time,
throughout the Term; provided that FAC Programming is and
continues to be transmitted in free access mode throughout the
Term of this Agreement. Network shall have no obligation to
include FAC Programming if FAC Programming is scrambled, or if
access to FAC Programming is otherwise restricted in any way.
Network shall not have any obligation to include all or any
portion of the FAC Programming if FAC fails to make payment in
compliance with this Agreement. Network shall have the absolute
right to refuse to include or to continue to include any part of
the FAC Programming that Network reasonably determines contains
programming or material which is inappropriate, undesirable, or
negatively impacts Network or its Affiliates in any tangible or
intangible manner. FAC acknowledges and agrees that Network has
no obligation to include all or any part of the FAC Programming
which is now. or at any time hereafter may be, prohibited under
applicable local, state or federal laws or regulations,
including without limitation statutes, laws, rules, regulations
or orders enforced, administered, promulgated or pronounced by
the Federal Communications Commission ("FCC").
2.4 FAC understands mid agrees that Network may edit and/or delete
all or any portion of the FAC Programming necessary to ensure
that FAC
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Programming will comply with any and all technical standards
applicable to all Network Programming, including but not limited
to Network's standard commercial insertion format and related
Que. tones. Network may pre-empt FAC Programming, in its
discretion, for inclusion or national public emergency
information, the relay of breaking national news information
and/or insertion of a maximum of sixty (60) promotional or other
commercial spot(s) per week promoting Network or Network
Programming. Further, Network may pre-empt FAC Programming if
and when required by the FCC or any other governing body with
jurisdiction over the display of Network Programming and/or
during any Force Majeure Event.
2.5 FAC Programming will be listed as the program information
displayed in any electronic programming guide providing program
information space to Network during the Scheduled Time.
2.6 Throughout the Term, Network will cooperate in the promotion of
FAC programming by including sixty (60) Promotional
Announcements per week, scheduled at Network's discretion. Such
promotional Announcements will (a) be produced and provided by
FAC., solely at its own expense, in the format specified by
Network, (b) comply with all Network Programming requirements
and/or FAC Programming requirements, including but not limited
to that warranted in Section 4.2 infra; (c) will be delivered to
Network at least ten (10) days prior to the proposed date the
Promotional Announcement(s) are to be included in Network
Programming, and (d) be subject to approval by Network prior to
inclusion in any Network Programming. Network shall have no
obligation to include Promotional Announcements unless and until
such time as FAC provides Promotional Announcements in
accordance with the terms and conditions of this Agreement. In
addition to the inclusion of Promotional Announcements, if
provided by FAC, and in an effort to further promote FAC
Programming, Network will also make available one (1) bonus hour
each Sunday through out the Term between 9:00 pm ET and 9:00 pm
FT for inclusion of FAC Programming.
3. FEES & REPORTS.
3.1 For the programming inclusion services set forth in Section 2.3
above, PAC shall pay to the Agency of Record on a monthly basis
an Annual Fee in the amount of one million nine hundred and
twenty thousand dollars ($1,920,000.00) per year throughout the
Term of the contract.
3.1.1 (example) Compute the average hourly rate for the
applicable month by dividing the Annual Fee by 3,120 (the
number of hours during the Scheduled Time in a. year)
(e-g. [1,920,000.00/ 3,120]= $615.38; then
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3.1.2 Compute the gross monthly fee by multiplying the average
hourly rate by the total number of hours of Scheduled Time
in the related month; mid
3.1.3 For each hour of time in the Scheduled Time during which
Network pre-empts or otherwise does not include FAC
Programming (including as a result of it Force Majeure
Event), the gross monthly fee shall be reduced by an
amount equal to the average hourly rate determined above.
Partial hours shall be rounded-to the nearest whole hour.
The result shall be the Monthly Fee, which shall be due
and payable to the Agency of Record as set forth in
Section 3.2, below.
3.2 Not later than five (5) business days prior to the beginning of
each month (the "Due Date") during the Term, FAC shall pay to
tile Agency of Record in U.S. Dollars via wire transfer an
advanced payment for inclusion of; (1) $75.000 for the first
month of inclusion, (2) $115,000.00 for the second month of
inclusion and (3) $160,000.00 for die third and each succeeding
month of inclusion throughout the Term (e.g. for inclusion of
FAC Programming starting on March 6th a wire transfer will be
received by the Agency of Record for $75,000.00
contemporaneously to execution of this Agreement by FAC, by tile
27th of March a wire transfer for $115,000.00 will be received
by the Agency of Record for inclusion in April; by April 24th a
wire transfer will be received by the Agency of Record for
$160,000.00 for inclusion in May and so on for each succeeding
month through out the Term. A Statement of Performance for March
actual billing will be issued by Network by the 15th of April
from which FAC will pay the difference of the actual billing for
March mid the pre-paid amount of $75,000, then a Statement of
Performance for April will be issued by Network by the 15th of
May from which FAC will pay the difference of the actual billing
for April and the pre-paid amount of $115,000.00, and then a
Statement of Performance for May will be issued by the Network
by the 15th of June from which FAC will pay the difference of
the actual billing for May and tile pre-paid amount of
$160,000.00; this will then be the procedure for each coming
month throughout the Term.)
3.3 Each month, Network shall submit a Statement of Performance to
FAC and the Agency of Record by the fifteenth (15th) day of the
month, which details for the previous month the days and times
the FAC Programming was included with die Network Programming in
accordance with section 2.3 above.
3.4 Upon receipt of the Statement of Performance, FAC shall
calculate the Monthly Fee for the month detailed in the
Statement of Performance and remit such fee (less the applicable
advanced payment) to the Agency of Record not later than the
20th of each month, the Due Date. If the
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Monthly Fee is less than the applicable advanced payment,
Network will apply a transmission credit against the next
advanced payment.
3.5 If any payment due under this Agreement is not received by the
Agency of Record in full on the Due Date(s), then such overdue
amount shall be subject to an interest charge at the rate of
1.5% per month until the date payment is actually received.
Acceptance of any such interest charge paid by FAC shall in no
event constitute a waiver by Network of any default with respect
to such overdue amount.
3.6 Within a timely manner, Agency of Record shall promptly disburse
93.75/o of any and all payments received from FAC directly to
Network. At no time, regardless of the circumstances is Agency
of Record liable to make any payment(s) to Network not
previously received from FAC. The sole obligation of the Agency
of Record pursuant to. this Agreement is strictly limited to the
timely processing of payment(s) received by FAC.
3.7 "Neither Network nor the Agency of Record shall have any
responsibility or assume any liability for the determination,
calculations, collection and remittance to proper taxing
authorities of any sales, use, or other taxes related to arising
out of the FAC Programming. Any and all taxes or fees due in
connection with or levied upon FAC Programming are the solo and
absolute responsibility of FAC.
3.8 Except as set forth in paragraph 3.4 above, in no event shall
FAC offset any amounts due Network or any of its Affiliates from
FAC for any reason, against any sums owed to FAC by Network or
any of its Affiliates.
4. REPRESENTATIONS, WARRANTIES AND INDEMNIFICATION.
4.1 FAC and Network each represents and warrants to the other that
(a) it will comply with all of its representations, warranties,
obligations, covenants, and responsibilities herein contained,
(b) it has the power and authority to enter into this Agreement
and to fully perform its obligations; and (c) the individual
executing this Agreement on its behalf has the authority to do
so.
4.2 FAC represents, warrants, and covenants to Network that (a) it
has not and will not during the Term enter into an agreement or
arrangement which will limit the full performance of its
obligations under this Agreement; (b) the FAC Programming will
not contain any material, which is libelous, slanderous,
defamatory, obscene, or indecent, nor will it contain any
elements of illegal gaining activities; (c) all applicable fees
for performance and synchronization rights to musical
compositions contained in the FAC Programming have been paid and
will continue to be paid to the applicable music performance
societies during the term of this Agreement and Network shall
have no responsibility or liability for any
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services, elements, or products performed, synchronized or
provided by any person, firm, or corporation or for the making
of any payments to any person arising from die FAC Programming;
(d) it will not, without prior written consent, use the name of
Network or any of its Affiliates (or allow such name to be used)
or make any statements with respect to Network or any of its
Affiliates (or allow such statements to be made) in the FAC
Programming or in any media or at any other time or place so as
to state or imply (i) that Network is in any way responsible for
the production of, or content of, any of the FAC Programming;
(ii) that Network endorses, or is responsible for, any products,
services or other benefits promoted or advertised in connection
with the FAC Programming; or (iii) that FAC is employed by, the
agent of, or in any way under the control or direction of
Network; (e) nothing contained in or related to the FAC
Programming, nor any exercise of the rights granted by FAC
hereunder will (i) violate, infringe or conflict with any rights
of any person or entity, including, without limitation, any
copyright, literary, musical, dramatic, artistic, trademark.
contract, privacy or publicity rights, or the rights to be free
from unfair competition or defamation, or any other property or
personal right; or (ii) result in any liability monetary or
otherwise, to Network, any Affiliate of Network of the Agency of
`Record; (f) it shall not knowingly or willfully engage in any
activity or business transaction which is damaging to Network's
image or goodwill., and it will not take, authorize, or permit
to be taken, any action which would or could in any way impair
any of the rights licensed to Network hereunder, and (g) it
shall comply in all material respects with all applicable
governmental statutes, laws, rules, regulations, ordinances,
codes, directives, mid orders (whether federal, state,
municipal, or otherwise) relating to the subject matter of this
Agreement.
4.3 Network represents, warrants, and covenants to FAC that: (a) it
will not, without prior written consent, use the name of FAC or
any of its Affiliates (or allow such name to be used) or make
any statements with respect to FAC or any of its Affiliates (or
allow such statements to be made) in any media or at any other
time or place so as to state or imply that Network is employed
by, the agent of, or in any way under the control or direction
of FAC; (b) except as otherwise permitted in this Agreement, it
shall not knowingly or willfully engage in any activity or
business transaction which is damaging to FAC's image or
goodwill,; and (c) it shall comply in all material respects with
all applicable governmental statutes, laws, rules, regulations,
ordinances, codes, directives, and orders- (whether federal..
state or local) relating to the subject matter of this
Agreement.
4.4 PAC shall indemnify, defend and hold Network, its Affiliates,
the Agency of Record and their respective officers. directors,
employees, agents and shareholders, and its and their respective
assigns, heirs, successors and legal representatives harmless
from and against, any and all costs, losses, liabilities,
damages, lawsuits, judgments, claims, actions, penalties, fines
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and expenses (including without limitation, interest, penalties,
reasonable attorneys fees and all monies paid in the
investigation, defense or settlement of any or all of the
foregoing) ("Claims") by third parties, that arise out of or are
incurred in connection with any of the following whether actual
or alleged: (i) the breach of any of FAC's representations,
warranties, or covenants contained herein; (ii) any purchase,
contracts, debt and/or obligation made by FAC; (iii) the failure
of PAC to comply with any provision of this Agreement; (iv) any
claim brought by FAC's employees or agents for compensation
and/or damages arising out of the expiration or termination of
this Agreement; (v) FAC's violation of any Laws; (vi) any claim
related in any way to the provision of FAC Programming or any
programming by FAC, including claims of or against, product
manufacturers, purchasers or distributors, or (vii) any claim
related in any way to a drawing, sweepstakes, lottery or other
game of chance sponsored, permitted or suffered by PAC or
otherwise related to FAC Programming. no provisions of this
Sect-ion 4.4 shall survive termination of this Agreement.
4.5 Network shall indemnify, defend and hold FAC, the Agency of
Record and their respective officers, directors, employees,
agents and shareholders. and its and their respective assigns,
heirs, successors and legal representatives harmless from and
against, any and all costs, losses, liabilities, damages,
lawsuits, judgments. claims, actions, penalties, fines and
expenses (including without limitation, interest, penalties,
reasonable attorney's fees and all monies paid in the
investigation, defense or settlement of any or all of the
foregoing) ("Claims") by third parties, that arise out of or are
incurred in connection with any of the following whether actual
or alleged: (i) the breach of any of Network's representations,
warranties or covenants contained herein; (ii) any purchase,
contracts, debt and/or obligation made by Network; (iii) the
failure of Network to comply with any provision of this
Agreement; (iv) any claim brought by Network's employees or
agents for compensation and/or damages arising out of the
expiration or termination of this Agreement; or (v) Network's
violation of any Laws. The provisions of this Section 4.5 shall
survive termination of this Agreement
4.6 Network shall not be liable for any failure of performance of
any production or post-production facility, microwave, uplink,
or downlink facility and/or any facility within the Network
Distribution, -which is not solely within the control of
Network. In addition, Network shall not be liable under any
circumstances for: (i) libel, slander, infringement of
copyright, invasion of privacy, disparagement or any other act
or omission of FAC arising from or in connection with the
inclusion or reception of the FAC Programming or any
communication by FAC (which has the sole and absolute
responsibility for the video production services and program
material and content being produced for inclusion as FAC
Programming);
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or (ii) unlawful or unauthorized use of Network's facilities or
services by FAC or any agent, partner, employee or distributor.
4.7 IN NO EVENT SHALL NETWORK OR FAC OR ANY AFFILIATE OF NETWORK OR
FAC BE LIABLE FOR ANY EXEMPLARY OR PUNITIVE DAMAGES. IN NO EVENT
SHALL ANY PROJECTIONS OR FORECASTS BY EITHER PARTY BE BINDING AS
COMMITMENTS OR PROMISES.
5. TERMINATION
5.1 FAC may terminate this Agreement for any reason, with or without
cause, upon ninety (90) days' written notice to Network. Network
may terminate this Agreement for any reason, with or without
cause, upon one hundred and eighty (180) days' written notice to
FAC.
5.2 This Agreement may be terminated by either Party (the "Affected
Party"), upon the occurrence of any of the following with
respect to the other party (the "Other Party"): (i) the Other
Party commits a payment default which is not cured within ten
(10) days of receipt of written notice from the Affected Party;
or (ii) the Other Party defaults on any obligation or breaches
any representation, warranty or covenant in this Agreement
(regardless of whether breach or default of such obligation,
representation.. warranty or covenant is designated as giving
rise to a termination right), and such default or breach, if
curable, is not cured within thirty (30) days of receipt of
written notice from the Affected Party specifying the nature of
the default or breach. The Parties agree that all obligations,
representations, warranties and covenants contained in this
Agreement, whether or not specifically designated as such, are
material to the agreement of the Parties to enter into and
continue this Agreement.
5.3 If this Agreement terminates for any reason, then both Parties
shall: (a) immediately discontinue all use of the trademarks
associated with the other Party or (b) deliver to the other
Party, all tangible things of every kind in possession or
control of such Party that bear any of the other Party's
trademarks; and (c) FAC shall pay all sums due Network and/or
Network shall refund any amount due FAC within twenty (20) days
based upon the services rendered and sums paid to termination.
6. INSURANCE. Throughout the Term, FAC, at its own expense, shall
procure and maintain with a reputable insurance carrier, a standard broadcast
liability insurance policy (including errors and omissions coverage typical for
such policies and transactions of this type) with a limit of liability of not
less than S3,000.,000.00. FAC shall name Network as on additional insured and
provide evidence of such upon written request from Network- Further. FAC shall
immediately notify Network of the cancellation or substantial modification of
such policy and/or policies.
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7. Notices. All notices and other communications hereunder shall be in
writing and will be deemed received upon actually being received if personally
delivered, when successful transmission has been confirmed if sent by facsimile,
after the first business day if dispatched by overnight courier service., or at
the end of die third business day after being deposited in the U.S. mails;
provided that all notices and other communications shall be addressed to the;
other Party substantially as follows:
If to Network: America's Voice, Inc.
Attention: Mr. Xxx Xxxxxx, Chairman & CEO
000 Xxxxxx Xxxxxx, X. X.
Xxxxxxxxxx, X.X. 00000
Facsimile: (000) 000-0000
If to FAC: Fifth Avenue Channel
Attention: Mr. Xxx Xxxxx, President
0000 XX 000"x Xxxxxx
Xxxxx Xxxxx, XX 00000
Facsimile; (000) 000-0000
With a courtesy copy to:
Fifth Avenue Channel
Attention: Mr. Xxxx Xxxxxx
0000 XX 000xx Xxxxxx
Xxxxx Xxxxx, XX 00000
Facsimile: (000) 000-0000
Copies of any and all notices and communications hereunder shall be
forwarded to. the Agency of Record as follows:
Xxxxxx Group, Inc.
Attention, Xxx. Xxxxx Xxxxxx,
Vice President & CFO
0000 Xxxxxxx Xxxxxx
Xxxxxx, XX 00000
Facsimile. (000) 000-0000
8. RELATIONSHIP OF PARTIES. Nothing herein shall be deemed to create,
and the Parties do not intend to create any relationship of partners or joint
venturers as between themselves or any "affiliate" relationship between Network
and FAC.
9. FORCE MAJEURE. Neither Party will be liable to the other Party under
(be terms of this Agreement for any delay or failure to perform, when such delay
or failure is due IX) any cause beyond the control of the Party for whose
performance is so affected, including, without limitation, act of God or of the
public enemy, acts of any local, county, state, federal or other government and
it sovereign or contractual capacity, fire, floods, adverse weather conditions
(including but not limited to solar flares or sun outages with respect to
satellite transmission interference), sabotage, acts of terrorism, acts of third
parties, strikes, freight
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embargoes, whole or partial satellite malfunctions, or uplink failure (each, a
"Force Majeure Event"). FAC shall not be liable for any Fees during any Force
Majeure Event that prevents display of FAC programming to Subscribers during the
Scheduled Time. Any Party who suffers a loss from any Force Majeure Event will
use their best efforts to immediately cure the condition, which prevents their
performance. If for reasons beyond its control any Party to this Agreement
cannot satisfy its contractual obligations for even consecutive days or 15 days
within each calendar quarter, the other Party may cancel the Agreement upon 15
days' written notice. For purposes of this Agreement, the Parties have agreed
that a substantial reduction (e.g. 50% or more) to the number of Subscribers;
able to receive Network Programming detailed in Exhibit A, shall in fact
constitute a Force Majeure Event thereby subjecting this Agreement to
cancellation by FAC upon 15 day's written notice to Network.
10. JURISDICTION. This Agreement shall be governed and construed in
accordance with the laws of Washington, D.C., except that any conflict of law
rule of that jurisdiction that may require reference to the laws of some other
jurisdiction shall be disregarded. Exclusive jurisdiction for all disputes
under, or relating to this Agreement shall be in the county, state or federal
courts located within Washington D.C. The Parties consent to the in personam
jurisdiction of said courts for the purposes of any such litigation. Should any
litigation be commenced between the Parties to enforce or interpret this,
Agreement, or the right and duties of either Party in relation thereto, the
Party prevailing in such litigation shall be entitled, in addition to such other
relief as may be granted, to a reasonable sum as and for attorneys' fees which
shall be determined by the Court in such litigation or in a separate action
brought for that purpose.
11. MISCELLANEOUS
11.1 Neither Party shall assign its interest in or obligations
under this Agreement without the prior written consent of the
other Party, such consent not to unreasonably withheld.
11.2 Any waiver by either Party of any term of condition of this
Agreement shall not be deemed or construed as a continuing
waiver or a waiver of any subsequent breach.
11.3 Any provision of this Agreement which logically would be
expected to survive termination or expiration, shall survive
for a time period reasonable under the circumstances, whether
or not such survival is specifically provided for elsewhere in
this Agreement.
11.4 This Agreement may be executed in several counterparts, each
of which shall be deemed an original, but an of which together
shall constitute one and the same instrument.
11.5 The terms, conditions and exhibits of this Agreement, will be
kept confidential by the Parties and will not be disclosed by
either Party to any third party, except (a) as may be required
by any court order, governmental agency or federal, state or
local law, statute or regulation,
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(b) to a Party's accountants, auditors, agents, legal counsel
and parent companies, and (c) in the normal mid ordinary
course of business (e.g. to qualified prospective lenders and
investors), provided that the disclosing Party shall use
commercially reasonable efforts to ensure that the person(s)
to whom such disclosures are made shall keep such terms and
conditions confidential. The foregoing confidentiality
obligations will survive termination or expiration of this
Agreement for three (3) years.
11.6 This Agreement may not be modified except by written
instrument, executed by both Parties.
11.7 The invalidity or unenforceability of any provision of this
Agreement shall not affect the validity or enforceability of
any other provision thereof.
11.8 The section and other headings contained in this Agreement are
for reference purposes only and shall not affect the meaning
or interpretation of the Agreement.
11.9 The Parties acknowledge that Network has filed for protection
under the provisions of Chapter 11 of the United States
Bankruptcy Code and that this Agreement may or may not be
subject to rules, jurisdiction and approval of the United
States Bankruptcy Court or approval by a Bankruptcy Trustee.
11.10 The obligations of the Parties hereto shall be subject to
obtaining and maintaining all necessary regulatory and other
governmental approvals and authorizations, including any
required by the U.S. Federal Communications Commission.
11.11 Network has agreed that should, at any time throughout the
Term, Network finds itself unable to perform under any
separate agreement relating to participants of the Network
Distribution, Network will provide as much advance notice as
is practicable under the circumstances to FAC and further
grant FAC the option to full-fill Network's obligations under
such agreements with terms and conditions relative thereto to
be negotiated under separate agreement.
11.12 This Agreement sets forth the entire understanding of the
Parties with respect to the subject matter hereof and
supersedes all prior understandings and agreements, oral or
written, between them.
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IN WITNESS WHEREOF, the Parties have duly executed this Agreement as of
the date first set forth above.
AMERICA'S VOICE, INC. FIFTH AVENUE CHANNEL
By: By:
------------------------------- -----------------------------------
Its: Its:
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