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EXHIBIT 10.18
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STATION AFFILIATION AGREEMENT
Dated as of March 15, 1998
ACME Television Holdings, LLC
00000 Xxxxx Xxxxxxxxx, Xxxxx 000
Xx. Xxxxx, XX 00000
Attention: Xxxx Xxxxx
The following shall comprise the agreement between The WB Television Network
Partners, L.P. dba The WB Television Network ("WB," "we," or "us"), and ACME
Television Holdings, LLC ("Affiliate" or "you") for the affiliation of your
television station WTVK ("Station") with WB for carriage of WB programming. The
Federal Communications Commission ("FCC") has issued a broadcast license
("License") to you to operate Station in Fort Xxxxx, Florida, the community in
which Station is licensed by the FCC ("Community of License"). All references in
this Agreement to "WB program(s)" and "WB programming" and any variations
thereof shall mean the programming made available by WB under this Agreement.
1. WB Programming: WB will make available to Affiliate WB programs for
free over-the-air broadcast and broadcast by any other means by Station
in the Community of License during the term of this Agreement. During
such term, except as otherwise provided herein, WB grants Affiliate the
exclusive right to have Station broadcast the WB programming in the
Community of License only as scheduled by WB over free over-the-air
television and by such other technological means as are available to
Affiliate for broadcast in the Community of License so long as Station
broadcasts the WB programming for over-the-air television.
Notwithstanding the foregoing, until such time that WB offers
exclusivity against the signal of WGN to
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its affiliates, WB may allow the signal of WGN to be imported into the
Community of License. WB shall have the sole discretion to select,
schedule, substitute and/or withdraw WB programming or any portion(s)
thereof. WB shall also have the right to authorize any television
broadcasting station, regardless of the community in which it is
licensed by the FCC, to broadcast any presentation of a subject we deem
to be of immediate national significance including, but not limited to,
a Presidential address. Except as provided herein, during the term of
this Agreement Affiliate shall be the sole affiliate of WB for
transmission for exhibition on television of WB programming in the
Community of License.
2. Program Carriage:
(a) We agree to make available for broadcast by Station WB
programming for the hours programmed by WB at the times and
dates scheduled by WB throughout the term of this Agreement.
You acknowledge that the times and roll-out dates set forth in
this Agreement are approximate only and you agree to have
Station broadcast WB programs irrespective of whether WB
meets, fails to meet or otherwise varies from the anticipated
program schedule set forth herein; provided, however, that WB
hereby agrees not to accelerate such anticipated program
schedule. To the extent WB makes available such WB programming
for broadcast, this Agreement both obligates us to make
available such WB programs to Station and obligates Station to
broadcast such WB programs over-the-air pursuant to the terms
of this Agreement.
(b) Subject to the exceptions set forth in subparagraph 2(e) and
the right of preemption set forth in subparagraph 2(f),
Station shall broadcast WB programs on the dates and at the
times scheduled by WB. Station shall broadcast WB programs in
their entirety,
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WB Affiliation Agreement
Dated as of February 25, 1998
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including but not limited to WB commercial announcements, WB
identifications, program promotional material, and credit
announcements contained in such programs, without interruption
or deletion or addition of any kind, except for the commercial
announcements that Station is allowed to add pursuant to
Paragraph 5. Notwithstanding the foregoing, you may substitute
other WB promotional announcements in lieu of program
promotional material that is inaccurate as it pertains to
Station's schedule. No commercial announcement, promotional
announcement or public service announcement will be broadcast
by Station during any interval within a WB program, which
interval is designated by WB as being for the sole purpose of
making a station identification announcement.
(c) The Scheduled Program Times of WB programming and the
anticipated roll-out dates of that programming are set forth
as follows (the specified times apply for the Eastern and
Pacific Time Zones; the Mountain and Central Time Zones are
one hour earlier for Prime Time and Latenight programming
only, except as otherwise agreed by us):
Prime Time: 7:00 p.m. - 10:00 p.m. Sunday;
8:00 p.m. - 10:00 p.m. Monday
through Saturday. Two nights, to be
designated by us, during the
1994/1995 broadcast year (one night
in January 1995 with the second
night commencing during the third
quarter of 1995); one additional
night commencing during the
1995/1996 broadcast year; and one
additional night during each
broadcast year thereafter until
seven nights of programming are made
available.
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WB Affiliation Agreement
Dated as of February 25, 1998
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Children's: 7:00 a.m. - 8:00 a.m.; 7:30 a.m. - 8:30
a.m.; or 8:00 a.m. - 9:00 a.m. (at WB's
election) Monday through Friday; 3:00 p.m. -
5:00 p.m. Monday through Friday; 8:00 a.m. -
12:00 noon Saturday; Weekday mornings (one
hour) and Saturday mornings (three hours)
commencing September 1995; One additional
Saturday hour commencing September 1996;
Monday through Friday afternoons (two hours)
commencing September 1997. It is anticipated
that the additional Children's programming
will commence in approximately the second
week of September.
Latenight: 11:00 p.m. - 12:00 midnight Monday through
Friday, commencing not earlier than 1997 and
subject to the approval of the WB
Affiliate's Council (as defined in Paragraph
13 below).
(d) Notwithstanding the roll-out schedule for Children's afternoon
programming in subparagraph (c) above, WB's supply of
Children's afternoon programming shall be subject to the
expiration of the current agreements between WB affiliates and
suppliers of Children's afternoon programming. Station agrees
not to extend or renew any agreement it may have with such
suppliers for such programming during the term of this
Agreement if such renewal or extension would interfere with
the broadcast of the WB Children's afternoon programming.
(e) You confirm that as of the date of this Agreement you have no
commitments, except those listed in Schedule 1 hereto, which
would impede Station's broadcasting all WB programming made
available during the term of this
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WB Affiliation Agreement
Dated as of February 25, 1998
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Agreement. If any WB programming is not broadcast by you '
because of any such commitment expressly described in Schedule
1 (but excluding extensions by exercise of options by
Affiliate [but not by the programming licensor] or otherwise),
then such programming shall be broadcast in a time period upon
which you and we shall mutually agree and which shall be of
quality and rating value comparable to that of the Scheduled
Program Times. These programs will not be considered preempted
for purposes of subparagraph 2(f).
(f) Notwithstanding anything in this Agreement to the contrary,
nothing in this Agreement shall be construed to prevent or
hinder Affiliate from (i) rejecting or refusing any WB program
which Affiliate reasonably believes to be unsatisfactory or
unsuitable or contrary to the public interest or (ii)
substituting a program which, in Affiliate's opinion, is of
greater local or national importance. In such an event, you
shall provide us with advance written notice of any such
rejection, refusal or substitution, no later than 14 days
prior to the air date of such programming, except where the
nature of the substitute program makes such notice
impracticable (e.g., coverage of breaking news or other
unscheduled events) or the programming has not been made
available to you by such date, in which cases you agree to
give us as much advance notice as the circumstances permit.
Such notice shall include a statement of the reasons you
believe that the rejected WB programming is unsatisfactory or
unsuitable or contrary to the public interest, and/or that a
substituted program is of greater local or national
importance. In view of the limited amount of WB programming to
be supplied pursuant to this Agreement (at least until such
time as the full WB programming schedule has been rolled out)
you acknowledge that you do not foresee any need to substitute
programming of greater local or national
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Dated as of February 25, 1998
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importance for WB programming, except in those circumstances
requiring live coverage of fast-breaking news events or very
infrequent special events.
To the extent you substitute another program for a WB program
as permitted under subparagraph 2(f)(ii), then you will
broadcast such omitted program and the commercial
announcements contained therein (or any replacement
programming provided by WB and the commercial announcements
contained therein) during a time period upon which you and we
shall promptly and mutually agree and which shall be of
quality and rating value comparable to that of the preempted
program's Scheduled Program Time. In the event that the
parties do not promptly agree upon such a time period after
reasonable consultation in good faith and after taking into
account the practical alternatives under the circumstances,
then, without limiting any other rights of WB under this
Agreement or otherwise, we shall have the right to license the
broadcast rights to the applicable omitted programming (or
replacement programming) to another television station located
in the Community of License.
In addition, if three or more episodes of a program series are
preempted by you as permitted hereunder in any thirteen-week
period, for any reasons other than force majeure as provided
in Paragraph 6, we shall have the right, upon 60 days prior
written notice, to terminate your right to broadcast that
program series and to withdraw all future episodes of that
series. Such thirteen-week periods shall be measured
consecutively from the first broadcast date of the program
series in question. If we subsequently place such a series on
another station in the Community of License, we reserve the
right not to offer you the broadcast rights to that series for
subsequent broadcast seasons.
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WB Affiliation Agreement
Dated as of February 25, 1998
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In addition to all other remedies, to the extent one or more
episodes of a program series is preempted by you in violation
of (i.e., other than as permitted under) this Paragraph 2, we
shall have the right, upon 30 days prior written notice, to
terminate your right to broadcast the remainder of the program
series and withdraw all future episodes of that series from
you.
(g) Nothing in this Agreement shall be construed to prevent or
hinder WB from (i) substituting one or more WB programs for
previously scheduled WB programs, in which event WB will make
the substituted programs available to Station pursuant to the
provisions of Paragraph 1 and Paragraph 3; (ii) cancelling one
or more WB programs; or (iii) postponing any scheduled
roll-out dates of WB programming. Further, nothing in this
Agreement shall be construed to obligate WB (x) to provide a
minimum or specific number of WB programs; (y) to commence
providing WB programming on any particular date; or (z) to
expand the amount of WB programming pursuant to a specified
timetable.
3. Delivery: WB agrees to make available the WB programming for satellite
transmission. WB shall incur no costs regarding the satellite downlink
and broadcast by Station; Station shall incur no up-link costs with
regard to the delivery of the WB programming.
4. Promotion:
(a) We will provide you with on-air promotional announcements ("WB
Promos") for WB programming, which WB Promos are intended for
broadcast during Station's broadcast of non-WB programming.
You agree to provide an on-air promotional schedule consistent
with our recommendations. You shall maintain complete and
accurate records of all WB Promos that are broadcast. Upon
request by WB for those records, you shall provide copies of
all such records to WB within two weeks of such request.
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(b) You shall budget Station's advertising availabilities in such
a manner as to enable Station to broadcast additional WB
Promos during periods in which Station is deemed a
"Subperformer." Station shall be deemed to be a "Subperformer"
from the time its "sweeps rating" is below the average prime
time rating for all WB affiliated broadcast stations until
such time as Station's sweeps rating is no longer below the
average prime time rating for all WB affiliated broadcast
stations. The Station's sweeps rating means the Station's
average X.X. Xxxxxxx rating for the most recently completed
sweeps period for adults 18-49 for all prime time hours
programmed by WB. For such time as Station remains a
Subperformer, Station shall: (i) broadcast, during each
one-half hour of all periods of each day that Station is
broadcasting non-WB programming, at least one (1) 30-second
Promo (or Promos aggregating 30 seconds, to the extent we so
elect) for Station's local, syndicated or WB programming; and
(ii) broadcast during all periods when Station is broadcasting
non-WB programming WB Promos for not less than:
Prime Time Hours Programmed by WB
2 hours - 20% of 100%
4 hours - 25% "
6 hours - 30% "
8 hours - 35% "
10 hours - 40% "
12 hours* - 45% "
(* 12 or more hours)
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(the "Applicable Percentage") of the total, aggregate gross
ratings points ("GRPs") for all the promotional announcements
broadcast by Station ("Aggregate Promotional GRPs") within the
periods in which non-WB programming is being broadcast. The
specific WB Promos broadcast by Station and the number of
broadcasts of each WB Promo may be specified by WB and the
broadcast of the WB Promos shall be made so that the Aggregate
Promotional GRPs allocated to WB Promos are distributed fairly
and reasonably across the periods when non-WB programming is
being broadcast. For such time as Station's sweeps rating
ranks Station within the bottom 50% (ranked highest to lowest)
of those WB affiliated broadcast stations that are
Subperformers, then the Applicable Percentage for Station
shall be not less than 55% of 100% of the Aggregate
Promotional GRPs. The WB Promos broadcast during each
half-hour of non-WB programming, as required by this
subparagraph 4(b), may be counted toward Station's Applicable
Percentage. Station shall continue to air WB Promos under this
schedule until Station is no longer a Subperformer, as defined
above.
(c) In addition to providing WB Promos, we shall make available
for your use, at reasonable cost, such other promotional and
sales materials as we and you may mutually consider
appropriate. You shall not delete any copyright, trademark,
logo or other notice, or any credit included in any such
materials relating to WB, and you shall not exhibit, display,
distribute or otherwise use any trademark, logo or other
material or item delivered pursuant to this Paragraph 4 or
otherwise, except as instructed by us at the time.
(d) Commencing on the first date that WB programming is aired by
Station and for the remaining term of this Agreement, Station
shall identify itself as a WB affiliate, both on and
off-the-air. Prior to the
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"Launch Date" (as defined in subparagraph 9(b)), Station shall
identify itself as a WB affiliate only after WB gives
Affiliate permission to do so and only in a manner reasonably
directed by WB. Prior to the Launch Date, Affiliate shall not,
without the express written permission of WB, make any
disclosures to the press or business community or issue any
press announcements about Station's affiliation with WB.
5. Commercial Announcements:
(a) With respect to WB programming, the parties to this Agreement
shall be entitled to insert the following number of commercial
announcements (Station's allotment includes station breaks but
excludes 5-second prime time station identification breaks at
the beginning of each hour):
(1) Prime Time (as defined in subparagraph 2(c)) hour
(pro-rated for half-hour programs):
You shall have the right to insert six 30-second
commercial announcements. WB shall have the right to
insert eighteen 30-second commercial announcements.
(2) Children's:
Weekday half-hour:
You shall have the right to insert six 30-second
commercial announcements (or other material
constituting "commercial matter" under the FCC's
regulations). WB shall have the right to insert six
30-second commercial announcements.
Weekend half-hour:
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You shall have the right to insert five 30-second
commercial announcements (or other material
constituting "commercial matter" under the FCC's
regulations). WB shall have the right to insert five
30-second commercial announcements and one 15-second
commercial.
(3) Latenight (as defined in subparagraph 2(c)):
You will receive half the total number of commercial
announcements as specified by WB or less as mutually
agreed to.
(b) If the amount of commercial advertising, commercial matter or
other non-program time included in WB programming is reduced
for any reason (including but not limited to the adoption or
modification of statutes or regulations or any other
governmental action), then we shall be entitled to reduce the
number of commercial announcements available to you to the
extent necessary to provide WB and Affiliate with the same
proportionate amount of commercial time (inclusive of station
breaks with respect to Affiliate) that each party is entitled
to under this Agreement.
(c) Your broadcast over Station of the commercial announcements
included by us in WB programming is of the essence to this
Agreement, and nothing contained in this Agreement (other than
in subparagraph 2(f)) shall limit our rights or remedies
relating to your failure to so broadcast said commercial
announcements. You shall maintain complete and accurate
records of all commercial announcements broadcast as provided
herein. Within two weeks following each request by us
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therefor, you will submit copies of all such records to WB.
6. Force Majeure: WB shall not be liable for failure to make available any
programming or any portion(s) thereof, and Station shall not be liable
for failure to broadcast any such programming or any portion(s)
thereof, by reason of any act of God, equipment failure, action or
claims by any third person, labor dispute, law, governmental regulation
or order, or other cause beyond either party's reasonable control
("force majeure event"). If due to any force majeure event, we
substantially fail to make available all of the programming to be
delivered to Affiliate under the terms of this Agreement, or you
substantially fail to broadcast such programming as scheduled by WB for
four consecutive weeks, or for six weeks in the aggregate during any
12-month period, then the "non-failing" party may terminate this
Agreement upon thirty 30 days prior written notice to the "failing"
party so long as such notice is given at any time prior to the
"non-failing" party's receipt of actual notice that the force majeure
event(s) has ended; provided further, however, that notwithstanding the
above provisions, you shall not have any right to so terminate this
Agreement, upon a force majeure event or otherwise, if we: (i) fail to
make available a minimum or specific number of WB programs; (ii) fail
to commence making available WB programming on any particular date;
(iii) fail to expand the amount of WB programming pursuant to a
specified timetable; (iv) substitute one or more WB programs for
previously scheduled WB programs; (v) cancel one or more WB programs;
or (vi) postpone the roll-out of any WB programming.
7. Assignment or Transfer of Affiliate Agreement and/or Station License:
(a) Assignment or Transfer of Affiliation Agreement: This
Agreement shall not be assigned by Licensee without
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Dated as of February 25, 1998
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the prior written consent of WB. Any purported assignment by
Licensee without such consent shall be null and void, shall
not be enforceable against WB, and shall not relieve Licensee
of all its obligations hereunder.
(b) Assignment or Transfer of Station License: If any application
is made to the Federal Communications Commission (FCC)
concerning a purported, attempted or actual transfer of
control or assignment of the Station license, you shall notify
us immediately in writing of the filing of such application.
Unless the transfer of control or assignment is one provided
for by Section 73.3540 (f) of the FCC's current rules and
regulations (a "short form" assignment or transfer of control
that does not involve a material assignment or transfer of
control), we shall have the right to terminate this Agreement
upon twenty (20) days' advance notice to you, at any time
after the filing of such application. If WB does not terminate
this Agreement on or before twenty days before the effective
date of such transfer, this Agreement shall be deemed to have
been fully assigned to the transferee or assignee of Station's
license and such transferee or assignee will assume and
perform all of the obligations and duties contained in this
Agreement without limitation of any kind, as of the effective
date of transfer. In addition, if Licensee fails, prior to the
effective date of the transfer, to procure in a written form
satisfactory to WB the agreement of the assignee or transferee
to assume and perform this Agreement in its entirety without
limitation of any kind, or fails to immediately notify WB of
the application to transfer control or assign the Station
license, then Licensee shall remain fully responsible for the
full performance of all provisions of the Agreement during the
full term of the Agreement as set forth in Paragraph 9, and in
the event of non-
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performance, Licensee shall be considered in material breach
of this Agreement and WB shall have all rights and remedies
available for such breach, including but not limited to
specific performance and damages.
8. Unauthorized Copying: You shall not, and shall not cause or authorize
others to record, copy or duplicate any programming or other material
we furnish pursuant to this Agreement, in whole or in part, and you
shall take all reasonable precautions to prevent any such recording,
copying or duplication. Notwithstanding the foregoing, if Station is
located in the Mountain Time Zone you may pre-record WB programming for
later broadcast at the times scheduled by us. You shall erase all such
pre-recorded programming promptly after its scheduled broadcast.
Notwithstanding the above provisions, Station may make a non-broadcast
quality recording of its entire broadcast day for archival, file and
reference purposes and uses only, which copy shall be kept in Station's
possession at all times.
9. Term:
(a) The term of this Agreement shall commence on March 15, 1998
(the "Launch Date") and shall continue for 60 months
thereafter (the "initial period") . The term of this Agreement
may be extended for additional successive periods of two years
each, by us, in our sole discretion, giving written notice of
such extension to you at least 120 days prior to the
expiration of the then-current period; provided, however, that
if, within 30 days of your receipt of the notice of extension,
you, in your sole discretion, give us written notice that you
reject such extension, then the extension notice shall not be
effective and this Agreement shall terminate upon expiration
of the then-current period.
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(b) The "Launch Date" shall be defined as the date on which WB
makes WB programming available to Affiliate for broadcast by
Station on a regularly scheduled basis.
(c) Each "Contract Year" hereunder shall be an annual period
during the term of this Agreement. The First Contract Year is
the annual period beginning with the start date of the term of
license; the Second Contract Year is the annual period
commencing one year after the start date of the term of
license, etc.
(d) WB shall, within its sole discretion and without liability,
have the right to terminate this Agreement so long as we (i)
provide sixty days prior written notice to you and (ii) are
either: (A) ceasing operation as a television network; or (B)
substantially restructuring the ownership of the television
network.
(e) Notwithstanding anything to the contrary contained in this
Agreement, upon the termination or expiration of the term of
this Agreement, all of your rights to broadcast or otherwise
use any WB program or any trademark, logo or other material or
item hereunder shall immediately cease and neither you nor
Station shall have any further rights whatsoever with respect
to any such program, trademark, logo, material or item.
10. Applicable Law: The obligations of you and WB under this Agreement are
subject to all applicable federal, state, and local laws, rules and
regulations (including, but not limited to, the Communications Act of
1934, as amended, and the rules, regulations and policies of the FCC)
and this Agreement and all matters or issues collateral thereto shall
be governed by the laws of the State of California without regard to
California's conflict of law rules. The
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California State Courts and the U.S. District Courts located in
California shall have jurisdiction over the interpretation of this
Agreement or with regard to any dispute arising under this Agreement.
The venue for any such action concerning this Agreement shall be in the
County of Los Angeles, California.
11. Station Acquisition by WB: During the term of this Agreement, WB agrees
that neither we nor Time Warner Inc. nor any of its subsidiary
companies will acquire, as defined by the attribution rules of the FCC,
a television broadcast station licensed in the Community of License.
12. Change in Operations: In the event that Station's transmitter location,
power, frequency, programming format or hours of operation are
materially changed at any time during the term of this Agreement so
that Station is of materially less value to us as a broadcaster of WB
programming than at the date of this Agreement, then we shall have the
right to terminate this Agreement upon 30 days prior written notice.
You shall notify WB immediately in writing if application is made to
the FCC to modify in a material manner the transmitter location, power
or frequency of Station or if Affiliate plans to modify in a material
manner the hours of operation of Station. If you fail to notify us as
required herein, then we shall have the right to terminate this
Agreement by giving you 30 days prior written notice.
At any time during the term if Station is off the air, or operating at
less than fifty percent (50%) of its licensed power, for a period of 12
hours or longer, Station must immediately notify WB. WB may terminate
this agreement upon thirty (30) days prior written notice in the event
that Station is off the air for a period exceeding seven (7) days or if
is operating at less than fifty percent (50%) of its full licensed
power for a period exceeding seven (7) days. Affiliate will install a
satellite antenna
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and receiver of sufficient quality, in the exclusive judgment of WB, to
receive a network quality signal from WB. Affiliate shall also use
switches, microwaves and all other transmission equipment necessary to
telecast a network quality picture. If, in the exclusive judgment of
WB, the picture or sound quality of Station's transmission is
insufficient, WB will provide Station with notice of the deficiency,
and Station shall have thirty (30) days to cure. In the event that
Station should fail to cure then WB may cancel this agreement upon
thirty (30) days written notice.
13. WB Affiliates Council: You, with the other affiliates of WB, shall form
a WB Affiliates Council (the "Council"), which shall be comprised of
representatives from five different affiliates of WB.
14. Non-Liability of Council Members: To the extent the Council and its
members are acting in their capacity as such, then the Council and each
member so acting shall not have any obligation or legal or other
liability whatsoever to you in connection with this Agreement,
including without limitation, with respect to the Council's or such
member's approval or non-approval of any matter, exercise or
non-exercise of any right or taking of or failing to take any other
action in connection therewith.
15. Warranties and Indemnities:
(a) WB agrees to indemnify, defend and hold Affiliate harmless
against and from all claims, damages, liabilities, costs and
expenses arising out of the use by Station under this
Agreement of any WB program or other material furnished by WB
under this Agreement, provided that Affiliate promptly
notifies WB of any claim or litigation to which this indemnity
shall apply, and provided further that Affiliate cooperates
fully with WB in the defense or settlement of such
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claim or litigation. Affiliate agrees to indemnify, defend and
hold WB harmless against and from all claims, damages,
liabilities, costs and expenses with respect to Affiliate's
operation of the Station or any material furnished, added or
deleted to or from WB programming by Affiliate. This indemnity
shall not apply to litigation expenses, including attorneys'
fees, that the indemnified party elects to incur on its own
behalf. Except as otherwise provided in this Agreement,
neither Affiliate nor WB shall have any rights against the
other for claims by third persons, or for the failure to
operate facilities or to furnish WB programs if such failure
is the result of a force majeure event as defined in Paragraph
6. Furthermore, notwithstanding any other provisions of this
Agreement, Affiliate shall not have any rights against WB for
claims by third parties or Affiliate arising out of any
actions or omissions of WB permitted under subparagraph 2(g).
(b) You agree to maintain for Station such licenses, including
performing rights licenses as now are or hereafter may be in
general use by television broadcasting stations and are
necessary for you to broadcast the television programs which
we furnish to you hereunder. We will clear all music in the
repertory of SESAC, ASCAP and BMI used in our programs,
thereby licensing the broadcasting of such music in such
programs over Station. You will be responsible for all music
license requirements (and all other permissions) for any
commercial or other material inserted by you within or
adjacent to WB programs in accordance with this Agreement.
(c) You warrant that the License is in good standing and you agree
to comply with all relevant statutes and FCC rules and
requirements so as to maintain the License in good standing.
In the event you are found to have
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materially violated any laws or FCC rules or requirements
(after the exhaustion of all appeals so long as Station
retains the License during the pendency of such appeal), the
effect of which is that Station is of materially less value to
us as a broadcaster of WB programming than as of the date of
this Agreement, then we shall have the right to terminate this
Agreement upon 30 days prior written notice. You shall notify
us immediately of any action by the FCC imposing any
forfeitures or other sanction(s) on Station or you including
but not limited to short-term renewals, revocation or denial
of renewal.
(d) You warrant that all information delivered by you to us in
connection with this Agreement shall be true and correct in
all material respects.
(e) You warrant that execution of this Agreement and performance
of its obligations will not violate or result in a default
under (i) any material agreement or instrument to which you
are party or (ii) any statute, ordinance, governmental rule or
regulation in any material respect, or order, judgment,
injunction, decree or ruling of any court or administrative
agency applicable to you, which default would materially
interfere with the performance of your obligations hereunder.
(f) You warrant that you are not a party to any legal action or
other proceeding before any court or administrative agency
which could prohibit the performance of your obligations under
this Agreement.
16. Retransmission Consent: If any law, governmental regulation or other
action permits you to elect to require any cable television system or
other multichannel video program distributor to obtain your consent to
such system's
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or distributor's retransmission of Station's broadcast of
either Station's signal as a whole or any WB programming included
therein, then Affiliate and WB agree to negotiate in good faith
regarding whether such consent is to be given (including without
limitation, whether you shall or shall not, in lieu of requiring
consent, elect to require any cable system to comply with any "must
carry" rules, regulations or laws) and, if so, the terms under which
such consent is to be given (including without limitation, the amount
and type of compensation, if any, to be paid by the system or
distributor for such consent and whether any of that compensation shall
be shared between you and us).
17. Network Non-Duplication Protection: During the term of this Agreement,
Affiliate shall be entitled to network non-duplication protection, as
provided by Sections 76.92 through 76.97 of the FCC's rules, against
the presentation of any WB program by a cable system during the period
commencing one day before and ending fourteen (14) days after receipt
of such WB program by Station. The geographic zone of network
non-duplication protection shall be the Designated Market Area ("DMA")
(as defined by Xxxxxxx) in which your Station is located or any lesser
zone mandated by Sections 76.92 and 73.658(m) of the FCC's rules as
those rules exist as of the date of this Agreement. Network
non-duplication protection shall extend only to WB programs that
Station is carrying in accordance with the terms of this Agreement and
such protection shall be subject to the terms and provisions of
subparagraph 2(f). You are under no obligation to exercise in whole or
in part the network non-duplication rights granted herein.
Notwithstanding anything to the contrary in this paragraph, no
non-duplication protection is provided against the signal of WGN until
such time that WB offers exclusivity against the signal of WGN to its
affiliates.
18. Affiliation Ratings Payments. Affiliate agrees to pay to WB an annual
payment, based on the Station's television
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Dated as of February 25, 1998
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market ratings, for WB prime time programming, commencing with the
initial broadcast by Station of such programming, all as defined and
set forth in the "Annual Ratings Payment" Exhibit attached hereto.
These payments are intended to compensate WB for the WB programming and
are in no way intended to, nor do they, confer on WB any ownership or
other equity interest in Station.
19. Notices and Reports:
(a) In addition to any other reports or forms requested herein,
you will provide to us in writing, in the manner reasonably
requested by WB, such reports covering WB programs broadcast
by Station as we may request from time to time. To the extent
we provide you forms for such purpose, you shall provide such
reports on these forms.
(b) All notices, reports or forms required or permitted hereunder
to be in writing shall be deemed given when personally
delivered (including, without limitation, by overnight courier
or other messenger or upon confirmed receipt of facsimile
copy) or on the date of mailing postage prepaid, addressed as
specified below, or addressed to such other address as such
party may hereafter specify in a written notice. Notice to
Affiliate shall be to the address set forth for Affiliate on
page 1 of this Agreement. Notice to WB shall be to: The WB
Television Network, 0000 Xxxxxx Xxxxxxxxx, Xxxxxxx,
Xxxxxxxxxx, 00000, Attention: General Counsel.
20. Miscellaneous:
(a) Nothing contained in this Agreement shall create any
partnership, association, joint venture, fiduciary or agency
relationship between the parties hereto.
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(b) Nothing contained in this Agreement nor the conduct of any
officer, director, agent or employee of either WB or Affiliate
shall be deemed to create or to constitute ownership by WB, in
whole or in part, of Affiliate, Station or the License or in
any way constitute a derogation of the rights, duties and
responsibilities imposed upon Affiliate. Nothing in this
Agreement shall be deemed to delegate to WB, directly or
indirectly, any right to control the operations of Station.
(c) You shall at all times permit us, in connection with WB
programming, without charge, to place on, maintain and use at
Station's premises, at our expense, such equipment as WB shall
reasonably require. Station shall operate such equipment for
us, to the extent we reasonably request, and no fee shall be
charged by Station therefor.
(d) No waiver of any failure of any condition or of the breach of
any obligation hereunder shall be deemed to be a waiver of any
preceding or succeeding failure of the same or any other
condition, or a waiver of any preceding or succeeding breach
of the same or any other obligation.
(e) Each and all of the rights and remedies of WB and Affiliate
under this Agreement shall be cumulative, and the exercise of
one or more of said rights or remedies shall not preclude the
exercise of any other right or remedy under this Agreement, at
law or in equity. Notwithstanding anything to the contrary
contained in this Agreement, in no event shall either party
hereto be entitled to recover any lost profits or
consequential damages because of a breach or failure by the
other party, and except as expressly provided in this
Agreement to the contrary, neither WB nor Affiliate shall have
any right against the other
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with respect to claims by any third person or other third
entity.
(f) Paragraph headings are included in this Agreement for
convenience only and shall not be used to interpret this
Agreement or any of the provisions hereof, nor shall they be
given any legal or other effect.
(g) This Agreement, including all Exhibits attached hereto,
constitutes the entire understanding between WB and Affiliate
concerning the subject matter hereof and shall not be amended,
modified, changed, renewed, extended or discharged except by
an instrument in writing signed by the parties or as otherwise
expressly provided herein. No inducement, representations or
warranties except as specifically set forth herein have been
made by either party to this Agreement to the other. This
Agreement replaces any and all prior and contemporaneous
agreements, whether oral or written, pertaining to the subject
matter hereof.
(h) This Agreement may be executed in counterparts, with the
Agreement being effective when each party hereto has executed
a copy and delivered that copy to the other party hereto.
IN WITNESS WHEREOF, the parties hereto have duly executed this
Agreement as of the day and year first written above.
THE WB TELEVISION NETWORK PARTNERS ACME TELEVISION HOLDINGS, LLC
L.P. dba THE WB TELEVISION NETWORK
("WB") ("Affiliate")
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Dated as of February 25, 1998
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By: /s/ Xxxx Xxxxxx By: /s/ Xxxxxxx Xxxxx
-------------------------------- ------------------------------------
Title: Authorized Agent Title: President & CEO
-------------------------------- ------------------------------------
Date: Date: 3/19/98
-------------------------------- ------------------------------------
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WB Affiliation Agreement
Dated as of February 25, 1998
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ANNUAL RATINGS PAYMENT EXHIBIT
As part of the consideration to WB for the WB programming, Licensee agrees to
make annual payments to WB based on Station's television market ratings (the
"TMR Payments") for adults 18-49 for the prime time broadcast periods of WB
programming commencing with the initial broadcast by Station of WB programming.
Such payments shall partially compensate WB for the WB programming by
calculating the value and/or profitability added to Station as a result of its
affiliation with WB and pay to WB 25% of such added value and/or profitability.
Such payments are not intended to, nor do they, confer in WB any ownership
interest in Station. All defined terms used herein shall have the same meaning
as set forth in the Agreement unless otherwise defined herein. The TMR Payments
shall be calculated and paid as follows:
A. Calculation of TMR Payment Amount: At the end of each
successive Contract Year commencing on the Launch Date, the
"Average Rating" for each such Contract Year shall be
determined by taking the average of Station's television
ratings (adults 18-49) for the prior November, February, and
May sweeps periods of such Contract Year as reported on the
Xxxxxxx Station Index ("NSI"), as processed, refined,
re-formatted or re-configured by that application commonly
known as the "SNAP System," but only with respect to those
prime time hours programmed by WB under the Agreement. Based
on the Station's Average Rating for each Contract Year and the
number of hours programmed by WB in that Year, Station shall
owe WB the amount (the "TMR Amount") set forth in the table
attached hereto as the Annual Ratings Payment Exhibit-Table.
For example, in the particular case of Station, if the adults
18-49 rating for WB programmed hours is ___ for a particular
Contract Year, and WB is programming 00
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Dated as of February 25, 1998
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hours per week during such Year, then the TMR payment that
will be due and owing for such Year is $___________. In the
event that the TMR Payment for any particular Contract Year
has increased or decreased from the prior year's TMR Payment
disproportionately in comparison to the increase or decrease
over such period in the profitability of Station's WB
furnished prime time programming (after giving effect to any
increase in the number of WB prime time programming hours
between the two periods), then either WB or Station may
request that the Station's financial results and operational
information be audited and reviewed by WB. Promptly after such
audit and review, WB and Station shall meet to discuss such
financial results and operational information of Station and
in good faith seek to adjust the then currently due TMR
Payment to reflect the intent of these Payments as set forth
in the introductory paragraph to this Exhibit.
B. TMR Payment: The TMR Amount for each Contract Year shall be
payable by Licensee to WB within 15 days following WB's
delivery to Licensee of an invoice for the TMR Amount, which
invoice shall be delivered by WB not earlier than the release
by NSI or any successor ratings index of the ratings for the
fourth and final sweeps period of such Contract Year.
C. No NSI Ratings: In the event there are no NSI ratings
available, then Licensee and WB shall use those standard
television market ratings which are generally available and
used by national and/or regional advertisers for purposes of
calculating advertising payments to television stations.
D. Continuing Obligation. Licensee's obligation to make the above
TMR Payments on the basis set forth herein shall survive any
termination of this Agreement by WB,
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any sale or transfer of any Station assets and/or any
ownership interest in the Station and shall remain binding on
any successor Station owner, which successor remains an
affiliate and is approved by WB in its discretion as otherwise
set forth in the Agreement.
E. Calculation Of Baseline (IF APPLICABLE): It is recognized that
Station is a start-up, and that ratings data is not available
to track Station's historical performance during three
previous ratings periods. The parties have agreed that
notwithstanding anything to the contrary set forth above, the
Baseline for the calculation of the TMR payments will be
calculated as follows: During the __________ 199__ and
___________199__ and ____________ 199__ sweeps periods the
average ratings (Adults 18-49) for the nights that are not
programmed by WB will set the baseline number for the
computation of the TMR payment. The difference between the
baseline and the average rating for WB programmed nights
during the February, May and November sweeps period will
determine the amount that is due to WB, during the first year
and during all subsequent years. The calculation of ratings
under this paragraph shall be as reported on the Xxxxxxx
Station Index ("NSI") as processed, refined, reformatted, or
reconfigured by that application commonly known as the "SNAP
System".
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WB Affiliation Agreement
Dated as of February 25, 1998
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