Exhibit 10.5
SATELLITE SERVICES AGREEMENT
This Agreement made as of the _____ day of ________, 1998 is by and
between Califa Entertainment Group, Inc., with offices at ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇ ▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇ ("Califa") and Directrix, Inc., a Delaware
corporation with offices at ▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇
▇▇▇▇▇ ("Directrix").
Whereas, Playboy Enterprises, Inc. ("PEI") and Spice Entertainment
Companies, Inc. ("Spice") have entered into an Agreement and Plan of Merger
("Merger Agreement") dated as of May 29, 1998 that provides, among other
things, for PEI to acquire all of the outstanding common stock of Spice, and
the Merger Agreement and the Transfer and Redemption Agreement (the "Transfer
Agreement") between Spice and Directrix and dated the same date as the Merger
Agreement, provide that Spice will transfer, to Directrix among other assets,
Spice's digital operations and playback center (the "Operations Facility")
and a General Instruments Digicipher II Integrated Encoder System (exclusive
to Califa unless otherwise approved by Califa in writing) capable of
compressing at least four (4) MPEG 2 channels (the "Encoder System"). The
Merger Agreement requires as a condition precedent to the closing ("Closing")
thereunder, that Spice distribute, as part of the merger consideration, the
Directrix stock to its stockholders in partial redemption of their shares of
Spice common stock. Directrix will operate the Operations Facility after the
Closing.
Whereas, prior to the Closing, Spice handled playback for its three
television Network known prior to the Closing as Spice, the ▇▇▇▇ & Eve
Channel and Spice Hot (the "Spice Networks") from its Operations Facility.
The Spice Networks signal was terrestrially transported to the Atlantic
Communications, Inc. ("Atlantic") Northvale, New Jersey uplink facility (the
"Uplink Facility") over diverse redundant fiber optic paths pursuant to an
Agreement between Atlantic and Spice dated as of February 24, 1997 (the
"Atlantic Agreement"). The Spice Networks signal was encrypted and digitally
compressed using the Encoder System which is leased from Vendor Capital Group
under an equipment lease dated July 24, 1996 ("Equipment Lease Agreement")
and is maintained by General Instruments ("GI") under a maintenance agreement
(the "Encoder System Maintenance Agreement"). Atlantic also provided uplink
of the digitally compressed Spice Networks signal under the Atlantic
Agreement to Transponder 7 on a satellite commonly known as T4 and owned and
operated by Loral SKYNET.
Whereas, PEI is currently unwilling to acquire the Spice Hot network (the
"Network") pursuant to the Merger Agreement and to induce Playboy to enter
into the Merger Agreement, Spice has agreed to enter into an Asset Purchase
Agreement dated as of May 29, 1998 pursuant to which Califa will acquire the
assets of the Network prior to the Closing;
Whereas, Directrix and Califa mutually desire for Directrix to provide a
complete transmission service for the Network, including playback,
encryption, compression, terrestrial connectivity and uplink services;
Now, therefore, it is mutually agreed as follows:
1. SATELLITE SERVICES: Califa hereby grants to Directrix, and Directrix
hereby accepts the right, and the obligation in consideration for the
Satellite Services Fee (hereafter defined), to provide Playback, Compression
and Encryption, Terrestrial Connectivity, Authorization (possibly only
temporarily), and to Uplink the Network (collectively the "Satellite
Services"). All Satellite Services provided hereunder by Directrix or
Directrix's subcontractors shall be under Califa's sole direction and
control, and Califa shall be entitled to have a Califa representative at the
Operations Facility at any time. Directrix shall provide the Satellite
Services hereunder on a twenty-four (24) hour per day, seven (7) days per
week basis in a timely and efficient manner that rises at least to the level
of, in all material respects, the past practices and procedures of Spice for
the Spice Network prior to the Closing. Directrix shall consult with Califa
as problems regarding the Satellite Services arise. Additionally, Directrix
shall provide a 24 hour a day, 7 day a week toll-free telephone number for
both routine and emergency service calls, and regularly provide Califa with a
log of such calls. In the event that Califa elects not to utilize Directrix
to provide Authorization services, such telephone number shall be for
Califa's use only.
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2. DEFINITIONS:
a. Compression and Encryption: Directrix's compression and encryption
of the Network by means of a Directrix-provided Encoder System and
authorization computer configured as part of the Encoder System.
Directrix shall provide, through GI or another Califa-approved
subcontractor, maintenance and repair of the Encoder System in
accordance with terms of the Encoder System Maintenance Agreement.
Directrix shall be responsible for all software license fees and
maintenance costs in connection with the Encoder System and
authorization computer.
b. Playback: Playback of the Network from the Operations Facility
twenty-four (24) hours per day and seven (7) days per week, from an
MPEG 2 video file server and redundant real time Betacam SP playback
for the movies and an emergency continuity reel, updated monthly,
for the interstitial programming elements, using the programming
elements for the Network provided by Califa as described
hereinbelow. The Operations Facility shall be manned by on-site
technicians during all operating hours. The Network shall be
monitored to maintain playback, uplink and downlink continuity and
quality. Redundant equipment, an uninterruptable power supply,
generator back-up and standard broadcast operating controls and
procedures shall be used to ensure program continuity. Telephone
access and a technical contact shall be available on a twenty-four
(24) hour basis.
c. Terrestrial Connectivity: Directrix shall provide fiber optic
terrestrial connectivity for the Network from the Operations
Facility to the Atlantic Uplink Facility, pursuant to the
Terrestrial Agreements (hereafter defined).
d. Authorization: Authorizations and deauthorizations for the Network's
transmission to cable head ends, direct to home platforms and any
other users authorized and designated by Califa shall be immediately
implemented by Directrix upon Califa's instruction from a Califa
supplied list of Califa personnel authorized to provide such
instructions. Califa may, upon notice to Directrix, modify the list
from time to time. Directrix shall be responsible for including the
authorization/deauthorization data into the signal to be uplinked to
Transponder 7 and for access control to General Instrument or any
subsequent operator of the control center for the Network. Califa
shall have the right upon forty-five (45) days prior written notice
to Directrix to discontinue receiving the Authorization services
from Directrix, and to instead either secure another provider or
provide this service itself via modem to the Digicipher II
compression hardware provided by Directrix hereunder, which modemed
service shall be done in a manner acceptable to Directrix. Califa
shall be responsible for any errors in Authorization services and
for any damage to the Encoder System or the authorization computer
if such errors or damages are directly caused by Califa accessing
the authorization computer as provided for in the preceding sentence.
e. Uplink: Directrix shall provide the Network with twenty-four (24)
hour per day, seven (7) days per week uplink services to Transponder
7 or its replacement to be designated by Califa pursuant to the
Atlantic Agreement, or an agreement with another subcontractor
subject to Califa's prior written approval.
3. RELATED AGREEMENTS: As provided for in the Merger Agreement and the
Transfer Agreement and with respect to the Atlantic Agreement, the Encoder
System Maintenance Agreement, the Equipment Lease Agreement (as it relates to
the Encoder System only) and any other agreements that Spice had entered into
with third parties for the provision of services which comprise the Satellite
Services (collectively the "Existing Service Agreements") Spice shall: (i)
terminate one or more of the Existing Service Agreements or (ii) cause one or
more of the Existing Service Agreements to be assigned to Directrix so that,
in either case, Spice shall have no further obligations or liability under
any of the Existing Service Agreements following the Closing.
a. Atlantic Agreement: Directrix shall enter into an agreement with
Atlantic (or an agreement with another subcontractor subject to
prior written approval from Playboy
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Entertainment Group, Inc. ("Playboy") who is contracting separately
with Directrix to provide Satellite Services for the existing Spice
network and a new Spice network) before the Closing pursuant to
which Atlantic shall provide Uplink services twenty-four (24) hours
per day, seven (7) days per week from the Atlantic Uplink Facility.
A signed copy of the Atlantic Agreement shall be attached hereto as
Exhibit "A".
b. Encoder System Lease: Pursuant to the terms of the Transfer and
Redemption Agreement, Directrix shall enter into a lease agreement
before the Closing pursuant to which Directrix shall lease the
Encoder System for the Network for the duration of the Term. A
signed copy of the Encoder System Lease shall be attached hereto as
Exhibit "B".
c. Encoder System Maintenance Agreement: Directrix shall enter into an
agreement with GI, or an agreement with another subcontractor
subject to Playboy's prior written approval, for GI to provide
twenty-four (24) hour per day, seven (7) day per week maintenance of
the Encoder System for the duration of the Term. A copy of the
Encoder System Maintenance Agreement shall be attached hereto as
Exhibit "C".
d. Terrestrial Agreements: Directrix shall enter into agreements for
redundant, diverse path fiber optic terrestrial connectivity from the
Operations Facility to the Atlantic Facility for the duration of the
Term. Copies of the Terrestrial Agreements shall be attached hereto
collectively as Exhibit "D".
Directrix agrees that in the event Directrix is notified that it is in
breach or default of any of the above agreements, or any other agreements
related to the Satellite Services, Directrix shall immediately notify
Califa of such notice. Directrix's failure to comply with the foregoing
shall be deemed a material breach of this Agreement.
4. SUB-CONTRACTORS: Directrix agrees to provide Califa with a list of all of
its subcontractors prior to the Closing, which list of subcontractors shall
be deemed approved and attached hereto as Exhibit "E". Directrix shall not
have the right to engage any other subcontractors than those on the approved
list, nor shall Directrix permit its subcontractors to further subcontract
their responsibilities. In the event that Directrix wishes to change
subcontractors or engage a new subcontractor, then Directrix shall seek
Califa's prior written approval, not to be unreasonably withheld. Subject to
any rights for default Califa may have under this Agreement, in the event
that a Directrix subcontractor directly causes Directrix to be in default of
Paragraph 11 [Uptime], then Directrix shall have the right to change such
subcontractor once without seeking Califa's prior written approval.
Furthermore, Directrix shall provide in its agreements with its
subcontractors that in the event of any default by Directrix that affects the
Network, Califa shall receive notice of such default as provided in the
paragraph [Notices], and an opportunity to cure Directrix's default. Califa
and Directrix agree that, notwithstanding Califa's right to cure Directrix's
default, Califa shall not cure such default until Directrix has had a
reasonable opportunity to cure such default following the subcontractor's
written notice of Directrix's default, and such cure has not been effected.
If Califa does cure such a Directrix default, Califa shall have the right to
offset any out-of-pocket costs incurred by Califa in effecting such cure
against any future payments to Directrix.
5. TERM: The initial term of this Agreement shall commence simultaneously
with the Closing and shall end twenty-four (24) months thereafter at 12
p.m.(the "Term"). In addition to any other remedies it may have under this
Agreement, in law or in equity, Califa may terminate this Agreement, in the
event that Directrix has materially breached any of its obligations hereunder
and such breach (which shall be specified in such notice) is not cured by
Directrix within ten (10) days of such notice.
6. CONTENT OF THE SERVICE: Califa shall, in its sole discretion, include
such programming in the Network as it deems appropriate. Directrix shall have
no right to alter, substitute, delete or otherwise modify the content of the
Network as provided by Califa. Califa shall have the exclusive right to
extend, reduce or otherwise change the hours during which the Network are
distributed to end users of the Network. Califa shall have the right to store
any air masters and materials at the Operations Facility that have an active
air date and Califa shall remove the air masters and materials from the
Operations Facility within thirty (30) days of Califa's reasonable
determination that such tapes no longer have an active air date. Directrix
shall not exhibit
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or transmit any Network programming at any time other than as scheduled by
Califa, without express written permission by Califa. Directrix hereby
acknowledges that from time to time Califa may modify the programming to be
supplied as part of the Network without prior notice, and Califa shall not be
held liable in any way by Directrix for such changes. Directrix shall not be
responsible for pre-screening any of the videotapes delivered by Califa to
Directrix pursuant to Paragraph 7 [Delivery to Directrix].
7. DELIVERY TO DIRECTRIX: Califa shall create and provide Directrix with
fully-edited, ready-for-air Beta SP videotapes of all Network programming
elements with a slate at the start of the tape reasonably prior to any
scheduled air date. Califa shall notify Directrix which audio standards are
utilized on the air masters. The Network may include all films, shows,
interstitial materials, music, graphics, programming and any other elements
necessary for Directrix to assemble and playback the Network as a complete
twenty-four (24) hour per day, seven (7) day per week adult channel that meets
the industry accepted RS250(b) standard. Directrix shall meet or exceed the
RS250(b) standard in the transmission of the Network to Transponder 7.
Califa shall retain sole ownership of all videotapes, equipment and other
material provided to Directrix, including all copyrights therein, and Califa
shall have access at no charge to and the right to the return of all such
videotapes, equipment and materials promptly following Califa's request.
8. INSURANCE: During the Term, Directrix shall secure and maintain the
following insurance:
a. Insurance naming Califa as an additional insured and loss payee with
respect to Califa's interest covering the risk of loss of or damage to
all videotapes for the replacement value of the tape stock and the cost
to redub the videotapes as well as for the cost of the equipment and
materials furnished by Califa, equipment and material furnished by
Califa; and
b. General liability insurance naming Califa as an additional insured
covering personal injury and other accidents or liability that might
occur during the course of Directrix's performance of this Agreement.
Such insurance policies shall have liability limits of at least one
million dollars ($1,000,000) and Directrix shall be responsible for all
deductibles thereunder. On or before the Closing, Directrix shall provide
Califa with copies of certificates of such insurance reasonably acceptable to
Califa. Furthermore, Directrix shall provide Califa with certificates of
insurance evidencing that Directrix's subdistributors have liability policies
with a minimum limit of one million dollars ($1,000,000).
9. PAYMENTS: In consideration of the Satellite Services rendered herein,
Califa shall remit to Directrix the following amounts on or before the first
day of each month for the Satellite Services are to be provided by Directrix
during that month (individually and collectively, the "Satellite Services
Fee"):
a. In consideration of Directrix providing the Uplink services for the
Network, Califa shall remit to Directrix the sum of Five Thousand
Dollars ($5,000.00) per month;
b. In consideration of Directrix providing the Playback services for the
Network, Califa shall remit to Directrix the sum of Ten Thousand
Dollars ($10,000) per month;
c. In consideration of Directrix providing the Terrestrial Connectivity
services for the Network, Califa shall remit an amount equal to
Directrix's out-of-pocket cost of obtaining such services in
accordance with the Terrestrial Connectivity Agreement;
d. In consideration of Directrix providing the Compression and
Encryption services for the Network, Califa shall remit to Directrix
the sum of Five Thousand Dollars ($5,000) per month up to and
including the Satellite Services Fee due on or before July 1, 1999,
except that Playboy shall not be obligated to remit the above amount
for the Satellite Services Fees payable on or before September 1,
1998;
e. In consideration of Directrix providing Authorization services for the
Network, Califa shall remit
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the sum of One Thousand and Five Hundred Dollars ($1,500) per month,
which sum shall only be paid for months during which Directrix actually
provides such service, and prorated in the event such service is
provided for less than a full month.
The above amounts are predicated upon all of the Network being uplinked to
Transponder 7, or its successor. If Directrix is required to uplink one (1)
or more of the Network to a separate transponder from the other Network, the
parties shall mutually agree upon a different fee structure.
In addition to any remedies that Directrix may have at law, in the event
that Califa should fail to remit payment as provided above, Directrix
shall provide Califa with written and telephonic notice of such failure
as provided herein, in which case Califa shall have ten (10) days within
which to cure such failure. If Califa does not cure such failure within
ten (10) days, Directrix may, in addition to any other remedies it may
have, either terminate this Agreement, or, as a condition precedent to
continuing to provide the services herein, require payment of 1) the
overdue payment and 2) a security deposit equal to one (1) month of the
current Satellite Services Fee. In addition to Califa's right to
terminate this Agreement prior to the completion of the Term for
Directrix's assignment or breach, with no payment liability, including as
provided in Paragraph 11 [Uptime], or an event of force majeure, Califa
may terminate for any other reason provided that if such termination is
not due to Directrix's breach or assignment or an event of force majeure,
Califa shall remit the Satellite Services Fee balance of the Term to
Directrix on a monthly basis as provided herein. If Califa terminates for
reasons of breach or assignment as provided herein, Califa shall be
entitled to a pro rata refund, including any security deposit, of the
Satellite Services Fee.
At the conclusion of the Term, the parties shall negotiate in good faith
regarding the Satellite Services Fee in the event that Califa, in its
sole discretion, elects to continue receiving the Satellite Services from
Directrix.
10. REPORTS: Directrix shall provide Califa with a discrepancy report on a
daily basis relating to any of the Satellite Services. All of Directrix's
records and accounts relating to the Network shall be available for
inspection and copying and for audit by Califa and its representatives during
normal business hours, at any time, during the term of this Agreement and for
three (3) year thereafter. In addition to the foregoing, Directrix will
supply to Califa such additional information relating to the Network as
Califa may reasonably request from time to time and as Directrix may
reasonably obtain. It is expressly understood that Directrix's obligation to
provide reports to Califa in a timely manner in accordance with this
Paragraph 10 is a material obligation of Directrix hereunder.
11. UPTIME: The Satellite Services described herein shall be provided for
each Network on a uninterrupted basis 99.999% of each twelve (12) month
period during the Term, commencing on the first day the Satellite Services
are provided to Califa, except for interruptions or other problems in such
services due in whole or in part to Califa failing to provide the air
masters, or because of the quality or content of the Air Masters or because
of downtime or other interruption of facilities or services not provided by
Directrix or its subcontractors beyond their reasonable control. In the event
that, for reasons other than those described above, Directrix fails to
provide the Satellite Services, Califa shall be entitled to discount the
total monthly Satellite Services Fee for all Satellite Services rendered by
Directrix payable on the first day of the next calendar month by an amount
equal to the total Satellite Services Fee divided by the number of
hours/minutes in that month, and multiplied by the number of hours/minutes
for which Directrix failed to provide any of the Satellite Services for the
Network. Notwithstanding the forgoing, in the event that Directrix fails to
provide the Satellite Services for the Network for an aggregate amount of
time exceeding .001% on a cumulative basis per twelve (12) month period of
the Term, such failure shall be deemed a material breach of this agreement
and Califa shall be entitled to immediately terminate this Agreement and be
entitled to any remedies available to it pursuant to this agreement or by
law, with two exceptions: a) Califa shall not have the right to terminate the
Agreement for Directrix's first failure to provide Satellite Services so long
as such first failure does not exceed two (2) continuous hours; and b) in the
event that Directrix's failure to provide the Satellite Services for greater
than .001% on a cumulative basis per twelve (12) month period of the Term is
directly caused by one of Directrix's subcontractors, then Directrix shall
have the one-time right to replace the defaulting contractor without Califa's
prior approval and, so long as the total failure to provide the Satellite
Services after going into default does
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not exceed two (2) hours (i.e. the total down time is no more than .001% of
the twelve (12) month period plus two (2) hours), then Califa shall not have
the right to terminate the Agreement.
12. OPTIONAL SERVICES: In the event that Califa shall elect to engage a third
to provide 1) traffic library and quality control services; 2) satellite
security; 3) network integration and scheduling; 4) creative services; 5)
duplication, editing and encoding for the Network or 6) all services relating
to the distribution of the Network or other adult programming via regionally
deployed video file servers linked to cable systems or multichannel video
programming providers, Califa agrees it shall engage Directrix to provide
such services, provided that Directrix can provide such services at
effectively the same level of quality and effectively at or below the price
that such third party would provide such services when such quality and
prices are evaluated taking into account all circumstances that would affect
such quality and price. Such evaluation shall be made by Califa in its sole
reasonable discretion.
13. FORCE MAJEURE: Neither party shall be liable to the other party for
damages of any kind which are due to causes beyond the party's reasonable
control, including, without limitation, acts of god; natural disasters,
governmental acts or omissions, national emergencies, insurrections, riots,
or wars; strikes, lock-outs or other labor difficulties or because of the
negligent or intentional acts or omissions of the other party, provided,
however, that in the case of such other party's acts or omissions, each party
shall use its reasonable best efforts to continue to comply with all of its
respective obligations hereunder. The Term of this Agreement shall be
suspended during the period when a party is unable to fulfill its obligations
hereunder by reason of the occurrence of force majeure event. Should the
force majeure event continue for a minimum of fifteen (15) days in the
aggregate and either party is unable to perform its obligations hereunder
during such time, then the other party, in its sole discretion, may terminate
this Agreement.
14. TRADEMARK APPROVAL: Directrix has not and will not acquire any
proprietary rights in any of the trade names, trademarks, service marks or
logos associated with Califa by reason of this Agreement or otherwise.
Directrix further acknowledges the great value of the goodwill associated
with the marks, and that any additional goodwill in the marks which may be
created through the use of the marks by Directrix shall inure to the sole
benefit of Califa and/or its parent as the case may be.
15. REPRESENTATIONS AND WARRANTIES: Califa and Directrix each represent and
warrant to the other that each has the requisite power and authority to enter
into this Agreement and to perform fully its respective obligations
hereunder, and that this Agreement has been duly executed by it and
constitutes a valid obligation enforceable against it in accordance with the
terms hereof.
Califa represents and warrants to Directrix that it will exercise its
best efforts to ensure that the Network as supplied to Directrix pursuant to
this Agreement, if and when presented by Directrix in the manner and at the
times permitted herein, will contain no libelous or slanderous material and
will not violate any copyright, right of privacy or literary or dramatic
right of any person.
16. INDEMNIFICATION:
a. Directrix and Califa shall each indemnify, defend and forever hold the
other, its affiliated corporations and other entities, partners,
officers, directors, employees and agents (collectively the
"Indemnitees") harmless from all liabilities, claims, costs, damages
and expenses (including without limitation, reasonable counsel fees of
counsel of Califa's choice) (collectively "Claims") of third parties
arising from the performance of each party, or its subcontractors
hereunder, provided that in each case where such indemnification is
sought:
i. the Indemnitee promptly notifies the other of the Claim to which
the indemnification relates;
ii. the party giving indemnification rights to the other shall control
fully any litigation, compromise, settlement or other resolution
or disposition of such Claim; and
iii. the Indemnitee fully cooperates with the reasonable requests of
the other party in its defense of such claim.
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b. Notwithstanding the above, Califa's indemnification of Directrix
will be valid in the event of a prosecution or claim involving an
allegation of violation of the laws insofar as the content of the
Service is concerned, provided that:
i. Prompt telephone contact be made with Califa's President at (818)
908-0481, or other numbers hereafter specified by Califa. Such
telephone notification should be immediately followed with a
letter containing copies of all papers that have been served and
giving complete information then available regarding the incident.
ii. Califa will not be responsible in cases where there is any
admission of guilt by anyone charged with violation of the law as
to the content of the Network except with Califa's prior written
consent. Settlement or dismissal of any case will not be allowed,
except with Califa's prior written consent.
iii. Actual or prospective parties involved in such prosecution shall
make no voluntary disclosure regarding support or lack thereof by
Califa under this policy.
c. In no event shall either Party be liable in contract, tort, or
otherwise for any special, incidental or consequential damages
(including, but not limited to, lost profits), whether foreseeable or
not, occasioned by any defect or delay in delivery of the services or
any other cause whatsoever unless such damages arise in connection with
such party's gross negligence, willful misconduct, or bad faith.
17. GOVERNING LAWS, OBLIGATIONS, ETC.: This Agreement shall be governed by and
interpreted under the laws of the State of New York.
18. ASSIGNMENT: Neither party may assign this Agreement without the express
written consent of the other, such consent not to be unreasonably withheld.
Additionally, if Directrix directly or indirectly transfers a substantial
portion of the assets or business relating to Directrix's provision of the
Satellite Services, Directrix's rights and obligations under this Agreement
may not be assigned to the acquirer thereof without Califa's prior consent,
such consent shall not be unreasonably withheld. In determining whether to
consent or withhold consent to such a transfer, Califa may take into account
factors in addition to the identity of the acquirer including, but not
limited to, its desire to have the Satellite Services provided for in the Los
Angeles Metropolitan area. In the event Califa does not consent to such
transfer, Califa shall have the right to terminate this Agreement upon thirty
(30) days prior written notice to Directrix. Califa may not assign this
Agreement or any portion of its rights or obligations without Directrix's
consent, not to be unreasonably withheld. Notwithstanding the foregoing, if a
proposed assignee of Califa's rights and obligations hereunder agrees to be
bound by the terms and provisions of this Agreement and Califa remain
secondarily liable for the obligations of the assignee, Directrix shall not
be entitled to withhold its consent to such assignment.
19. NOTICES: All notices, requests, demands, consents, directions and other
communications provided for hereunder shall be in writing, delivered by means
of U.S. certified mail, return receipt requested or personal delivery or
facsimile verified with a confirmation of receipt. All notices to either
party must also be made telephonically to the first individual for each party
listed below, provided that if such individual is unavailable to receive such
telephonic notice, such unavailability shall not negate the effectiveness of
the written notice.
a. Califa Entertainment Group, Inc.
▇▇▇▇▇ ▇▇▇▇▇ ▇▇. ▇▇▇▇▇ ▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: President
▇▇▇-▇▇▇-▇▇▇▇: ▇▇▇▇▇ ▇▇▇▇▇▇
With a copy to:
▇▇▇▇, Weiss, Rifkind, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
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Attention: ▇▇▇▇▇ ▇▇▇▇▇, Esq.
(▇▇▇) ▇▇▇-▇▇▇▇: ▇▇▇▇▇ ▇▇▇▇▇, Esq.
and
▇▇▇▇▇▇▇, Green, Fahringer, Roll, Salisbury & Cambria LLP
▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇.
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
b. Directrix, Inc.
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▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Chairman,
(▇▇▇) ▇▇▇-▇▇▇▇: ▇▇▇▇▇ ▇▇▇▇▇▇▇
With a copy to:
Kramer, Levin, Natfalis & ▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇,
ATTN: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, Esq.,
(▇▇▇) ▇▇▇-▇▇▇▇: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, Esq.
or, as to each party, at such other address as shall be designated by such
party in a written notice to the other party. All notices shall, when mailed
or faxed, be deemed effective on the date deposited in the mail or on the
date receipt of such fax is so confirmed.
20. CONFIDENTIALITY: Neither Califa nor Directrix shall disclose to any third
party (other than its respective employees, in their capacity as such),
without the other party's written approval, any information with respect to
the terms and provisions of this Agreement except: (i) to the extent
necessary to comply with law or the valid order of a court of competent
jurisdiction, in which event the party making such disclosure shall so notify
the other and shall seek confidential treatment of such information, (ii) as
part of its normal reporting or review procedure to its parent company, its
auditors and its attorneys, provided, however, that such parent company,
auditors and attorneys agree to be bound by the provisions of this paragraph
and (iii) in order to enforce its rights pursuant to this Agreement.
21. MISCELLANEOUS: This Agreement constitutes the entire agreement between
the parties hereto, and may not be modified or changed except in a writing
executed by all parties hereto. This Agreement supersedes any prior written
or oral understanding between the parties. Each party acknowledges that it is
entering into this Agreement in reliance only upon the provisions herein set
forth, and not upon any covenants, representations, warranties or other
considerations not set forth herein. The headings, captions and arrangements
used in this Agreement are, unless specified otherwise, for convenience of
reference only and shall not be deemed to limit, amplify or modify the terms
of this Agreement nor affect the meaning thereof. This Agreement describes a
contractual, independent contractor/distributor relationship and nothing
contained herein shall be deemed to create any partnership, joint venture,
employment or similar relationship between the parties. This Agreement may be
executed in one or more counterpart copies, including by facsimile, and each
counterpart together with all other counterparts shall constitute a
fully-executed Agreement.
8
DIRECTRIX, INC. CALIFA ENTERTAINMENT GROUP, INC.
By: By:
--------------------------------- --------------------------------
Title: Title:
------------------------------ -----------------------------
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EXHIBIT "E"
Subco's Subcontractors
Subcontractor Name Subcontractor Address Telephone/Fax No. Contact Name
------------------ --------------------- ----------------- ------------
1.
2.
3.
4.
10