270 Legal [Sample Agreements]

THIS AMENDED AND RESTATED PROGRAM SUPPLY AND TRADEMARK LICENSE AGREEMENT (this “Agreement”) is entered into on November 10, 2006, between Playboy Entertainment Group, Inc., a Delaware corporation (“PEGI”), and Playboy TV-Latin America, LLC, a California limited liability company (including its subsidiaries, collectively the “Company”).

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1. DEFINITIONS.

In this Agreement (including the Recitals hereto) the following terms will
have the following meanings unless otherwise stated:

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“Adult-Oriented” means, with respect to a Channel or program, that such Channel or program features content that is comparable to or more explicit than the content that is exhibited on the Channels in the Territory as of the date of this Agreement; it being understood that content that would be rated no more restrictively than “R” by the Motion Picture Association of America as such rating standards are currently in effect is not “Adult-Oriented” content.

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“Basic Cable” has the meaning currently or hereafter commonly understood in the television industry, but will also include for all purposes of this Agreement any broadcast or other transmission (whether by satellite or otherwise) to television sets or other television devices, now or hereafter known, of a program service (other than any free television terrestrial broadcast station) (a) that is included as part of a package of program services for which members of the public pay a periodic fee for the right to receive such package of program services, and (b) for which program service a separate fee is not generally charged for the right to receive the particular service in question.

“Blocked Funds” has the meaning set forth in Section 7.4.

“Branded” means a television service or Program where Licensor’s or any Licensor Affiliate’s name or trademarks currently existing or hereafter created by Licensor or its Affiliates are used in connection, or closely associated, with such television service or Program, or any related advertising.

“Branded Channels” means the PTVLA Channels, the Playboy Lifestyle Channel and the Spice Channels.

“Branded Company Originated Marks” has the meaning set forth in Section 3.7.

“Branded Format Programming” has the meaning set forth in Section 2.1(f).

“Caribbean Basin” means the following territories: Anguilla, Antigua and Barbuda, Aruba, Barbados, Bermuda, the British Virgin Islands, the Cayman Islands, Cuba, Dominica, Dominican Republic, Grenada, Haiti, Jamaica, Montserrat, St. Kitts & Nevis, St. Lucia, St. Vincent and the Grenadines, Trinidad and Tobago, and the Turks and Caicos Islands.

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“CPI” means the Consumer Price Index for all Urban Consumers as released by the Bureau of Labor Statistics, U.S. Department of Labor. If the Bureau of Labor Statistics, U.S. Department of Labor (i) substantially revises the methodology (in contrast to benchmark adjustments or other corrections of previously published data), (ii) discontinues publication of any of the data referred to above or (iii) temporarily discontinues publication of any of the data referred to above, the parties shall select a substitute for the revised or discontinued data, in order to provide substitute data to lead to the same adjustment result, insofar as possible, as would have been achieved by continuing the use of the original data as it may have fluctuated had it not been revised or discontinued.

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“Force Majeure” has the meaning set forth in Section 13.1.

“Format Rights” has the meaning set forth in Section 2.1(f).

“G-Channel” has the meaning set forth in the Company Operating Agreement.

“Home Video Rights” has the meaning set forth in Section 4.2.

“Hot Brands” means those trademarks listed under “Hot Trademark” on Schedule 3.1 attached hereto.

“IP – Validity Dispute” has the meaning set forth in Section 12.1.

“License Fees” has the meaning set forth in Section 7.

“Licensed Programming” means collectively, the Existing Library, the New Programs, the Acquired Movies, Playboy Branded Format Programming, the Alta Loma Programs (subject to Section 2.1(g)), Wallpaper and any other Programs which may be made available to the Company hereunder.

“Licensor” means PEGI and any of its Affiliates that hold any of the rights licensed hereunder or which may provide services hereunder, or such successor or assignee as may be permitted herein.

“Licensor Additional Marks” has the meaning set forth in Section 3.8.

“Licensor Indemnified Parties” has the meaning set forth in Section 8.2(b).

“Licensor Trademarks” means the trademarks and the registrations or pending registrations therefor, as listed under such heading in Schedule 3.1 hereto, owned by Licensor or to which Licensor has all necessary rights to grant the license as set forth herein, and the Licensor Additional Marks.

“Lifestyle Oriented” means, with respect to content, Programs or advertising supported Channels, such content, Program, or advertising supported Channel, that is primarily focused on themes associated with the attitudes and values of a group of persons or social classification, including without limitation, habits of consumption, dress, recreation and way of living; it being understood that Lifestyle Oriented content does not include “Adult-Oriented” content.

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“Media” means all forms of linear and nonlinear television exhibition, transmission and distribution whether now existing or developed in the future and whether on a subscription, pay-per-view, video-on-demand or free basis, including but not limited to the following: (i) conventional VHF or UHF television broadcast, (ii) Basic Cable and pay cable, (iii) “over the air pay” subscription television (STV), (iv) direct broadcasting by satellite (DBS), (v) master antenna television systems (MATV), (vi) multipoint distribution services (MDS), (vii) multichannel multipoint distribution services (MMDS), (viii) satellite master antenna television systems (SMATV), (ix) microwave transmission and (x) IP television encrypted to a set top box. Solely with respect to the Playboy Lifestyle Business (other than the Playboy Lifestyle Channel), Media shall include the Playboy Lifestyle Media as defined below. Notwithstanding the foregoing, except as provided herein, in the Program Supply Agreement or any Related Documents, Media shall exclude Streaming.

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“Playboy Brands” means those trademarks listed under the heading “Playboy Marks” on Schedule 3.1 attached hereto.

“Playboy Competition” has the meaning set forth in Section 3.9(b).

“Playboy Lifestyle Business” has the meaning set forth in the Company Operating Agreement.

“Playboy Lifestyle Channel” means the television program service containing Playboy Lifestyle Programming Services to be launched by the Playboy Lifestyle Companies in the Territory and which may be named “Playboy Lifestyle Channel” or any other name including names using Licensor Trademarks permitted hereunder and approved by the Management Committee.

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“Spice Network” means collectively, Spice Digital Networks, Club Jenna, Spice:xcess, fresh! and shorteez, and successor networks, if any, as PEGI may include from time-to-time, as programmed by PEGI.

“Streaming” means the delivery of audio and/or visual programming whether in real time or by program download (including, but not limited to, RealVideo, any format that operates on the Windows Media Player or any other streaming or direct download audio and/or visual software) through the data delivery protocol known as TCP/Internet Protocol or any successor or replacement protocol to any recipient for purposes of viewing.

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2. GRANT OF PROGRAM LICENSE.

2.1. Grant. Upon and subject to the terms and conditions set forth in this Agreement and to Licensor’s retained rights pursuant to Section 2.5, Licensor hereby grants to the Company and the Company hereby accepts an exclusive license during the Term (or until Licensor loses its rights in or to any Licensed Programming) to distribute, exhibit and display the Licensed Programming on the Company Service subject to the terms herein. Notwithstanding anything to the contrary in this Agreement, without the express written permission of Licensor, the Company shall not be entitled to use the Licensed Programming in connection with the Playboy Lifestyle Business except for Licensed Programming that is suitable for the Playboy Lifestyle Channel containing Lifestyle Oriented content subject to Licensor’s ability to grant such rights.

(a) Existing Library. Licensor represents and warrants that the Existing Library consists of all Programs for which Licensor (and/or its Affiliates) owns rights in the Media in the Territory as of March 31, 2002, including (but not limited to) Playboy, Spice and Hot Branded Programs and adult films licensed by Licensor and its Affiliates and any other programming or content, including Wallpaper, and the Acquired Movies as set forth on Schedule 2.1(a) attached hereto.

(b) New Programs. Each Fiscal Year Licensor and/or its Affiliates will produce or acquire the rights in the Media in the Territory to New Programs. The parties acknowledge that the content, style, mix and budget of the 180 program hours of New Programs provided to the Company pursuant to Section 2.1(e) shall meet the category mix specifications detailed in Schedule 2.1(b) (Programming Delivery Based on 2001 Categories).
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