EXHIBIT 10.1
------------
[NBC TV NETWORK LETTERHEAD]
March 20, 1996
Xxxxx Television of Salinas
Monterey License, L.P.
and
c/o KSBW
000 Xxxx Xxxxxx
Xxxxxxx, Xxxxxxxxxx 00000
RE: KSBW (Salinas, California)
Gentlemen:
The following shall comprise the agreement between us for the
affiliation of your television broadcasting station Xxxxx Television of Salinas-
Monterey License, L.P. and KSBW collectively (herein called "Station") with the
NBC Television Network (herein called "NBC").
1. Term. This Agreement shall be deemed effective as of 3:00 A.M.,
New York City time on the 17th day of January, 1996 (the "Effective Date"), and,
unless sooner terminated as provided in this Agreement, it shall remain in
effect through December 31, 2005. It shall then be renewed on the same terms
and conditions for a further period of five (5) years and for successive further
periods of five (5) years each, unless and until either party shall, at least
twelve (12) months prior to the expiration of the then current term, give the
other party written notice that it does not desire to have this Agreement
renewed for a further period.
2. NBC Programming.
(a) NBC shall deliver to Station for free, over-the-air television
broadcasting all programming which NBC makes available for broadcasting in the
community to which Station is presently licensed by the FCC, except as otherwise
expressly provided herein.
(b) NBC commits to supply sufficient programming throughout the term
of this Agreement for the hours presently programmed by it (the "Programmed Time
Periods"), which Programmed Time Periods are as follows (the specified times are
all local time in Station's community of license):
Prime Time: Monday thru Saturday - 8:00-11:00 P.M.
Sunday - 7:00-11:00 P.M.
Late Night: Monday thru Thursday - 11:35 P.M.-2:05 A.M.
Friday - 11:35 P.M.-2:35 A.M.
Saturday - 11:30 P.M.-1:00 A.M.
News: Monday thru Friday - 5:30-6:00 A.M.,
7:00-9:00 A.M. and 5:30-6:00 P.M.
Saturday - 7:00-9:00 A.M. and 5:30-6:00 P.M.
Sunday - 7:30-9:30 A.M. and 5:30-6:00 P.M.
Daytime: Monday thru Friday - 10:00-11:00 A.M.
and 12:00 Noon-2:00 P.M.
Saturday - 9:00-9:30 A.M. and 10:00-11:30 A.M.
The selection, scheduling, substitution and withdrawal of any program
or portion thereof delivered to Station during the Programmed Time Periods shall
at all times remain within the sole discretion and control of NBC. The parties
acknowledge that local and network programming needs may change during the term
of this Agreement, and each party agrees throughout the term to negotiate in
good faith with the other party any proposed modification of the Programmed Time
Periods.
(c) In addition to the programming supplied pursuant to Paragraph 2(b)
above, NBC shall offer Station throughout the term of this Agreement a variety
of sports, special events and overnight news programming for television
broadcast at times other than the Programmed Time Periods. Station shall have
the right of first refusal with respect to any such programming good for
seventy-two (72) hours as against any other television station located in
Station's community of license or any television program transmission service
furnishing a television signal to Station's community of license, including, but
not limited to, any community antennae television system, subscription
television service, multipoint distribution system and satellite transmission
service. Station shall notify NBC of its acceptance or rejection of NBC's offer
of such programming as promptly as possible. Station's acceptance of NBC's
offer shall constitute Station's agreement to broadcast such programming in
accordance with the terms of such offer and this Agreement. Notwithstanding any
other provision in this Agreement, no pre-existing acceptance of NBC programming
shall be superseded or otherwise affected by this Agreement, and those
acceptances shall remain in full force and effect. With respect to NBC programs
outside the Programmed Time Periods (either offered or already contracted for
pursuant to this Agreement), nothing herein contained shall prevent or hinder
NBC from (i) substituting one or more sponsored or sustaining programs, in which
event NBC shall offer such substituted program or programs to Station in
accordance with the provisions of this Paragraph 2(c), or (ii) canceling one or
more such NBC programs; provided, however, that NBC shall exercise all
reasonable efforts to give Station at least three (3) weeks prior written notice
of such substitution or cancellation. Station shall not be obligated to
broadcast, and NBC shall not be obligated to continue to deliver, subsequent to
the termination of this Agreement, any programs which NBC may have offered and
which Station may have accepted during the term hereof.
3. Station Carriage in Programmed Time Periods.
(a) Station agrees that, subject only to the preemption rights
contained in Paragraph 4(c) below, including Station's unqualified right to
preempt for local live coverage of news events, Station shall broadcast over
Station's facilities all NBC programming supplied to Station for broadcast in
the Programmed Time Periods on the dates and at the times the programs are
scheduled by NBC, except to the extent that Station is actually broadcasting
programming pursuant to (and within the specified limits of) a commitment
contemplated by Paragraph 3(b) below. As used herein, the "live coverage of
local news events" with respect to Station's preemption rights shall in no event
refer to the addition of scheduled local news programs as part of Station's
regular continuing program schedule.
(b) As an inducement for NBC to enter into this Agreement, Station
covenants, represents and warrants to NBC that during any Broadcast Year (as
hereinafter defined) during the term hereof, Station shall preempt no more than
fifteen (15) hours in the aggregate of NBC programs during the Prime Time
Programmed Time Period for any reason other than for the live coverage of news
events (the "Prime Time Preemption Amount"). For the purposes of this
Agreement, a "Broadcast Year" shall mean a twelve (12) month period during the
term hereof which commences on any September 1 during the term hereof and which
ends on August 31 of the immediately following year. Station hereby confirms
that its rights and obligations under this Paragraph 3(b) are consistent with
its rights and obligations referred to in Paragraph 4(c) below.
(c) The Station hereby agrees to accept and clear all sports
programming offered to the Station by NBC outside the Programmed Time Periods
("NBC Sports Programming"), except for NBC sports programming which directly
conflicts with Station's coverage of sports events and special events of
particular local interest (collectively, such coverage of such sports events and
special events are referred to below as "Special Programs"). Station
acknowledges the substantial investment in network sports programming to be
incurred during the term of this Agreement in order to provide Station with
network-quality sports
2
programming. Station further acknowledges that in view of NBC's substantial
investment in network sports programming and Station's rights under this
Paragraph 3(c), Station does not foresee any need to substitute programming of
any kind for NBC Sports Programming, except as follows with respect to Special
Programs. Station agrees not to broadcast more than three (3) hours of Special
Programs outside the Programmed Time Periods in the aggregate during any
Broadcast Year during the term of this Agreement which would conflict with NBC
Sports Programming outside the Programmed Time Periods (the "Sports Preemption
Amount"); provided, however, that in the event that, in any Broadcast Year
during the term of this Agreement, NBC schedules a substantially greater number
of hours of NBC Sports Programming than scheduled during the 1993-1994 Broadcast
Year, NBC agrees that the Sports Preemption Amount shall be increased
proportionately for such Broadcast Year to reflect such increase in the
aggregate number of hours of NBC Sports Programming in such Broadcast Year.
(d) Notwithstanding the foregoing provisions of subparagraphs (b) and
(c) above and without limiting the provisions thereof, Station agrees that, in
any three (3) month period during a Broadcast Year, Station's preemptions of NBC
Prime Time programs and NBC Sports Programming shall not exceed 50% of,
respectively, the Prime Time Preemption Amount and the Sports Preemption Amount,
unless otherwise consistent with Station's programming practice.
(e) Commencing as of the earlier of (i) September 15, 1996 or (ii) the
expiration or termination (without giving effect to any renewal term) of any of
Station's existing contractual commitments for non-NBC programming currently
broadcast by Station Monday through Friday during the hours 9:00 A.M.-2:00 P.M.
and which were in existence as of September 15, 1995, Station shall clear one
(1) additional hour of NBC programming Monday through Friday, during the hours
of 9:00 A.M.-2:00 P.M. (the "Fourth Daytime Hour"); provided, that Station shall
broadcast such additional NBC programming in the same sequence as scheduled by
NBC. The Fourth Daytime Hour shall then become part of the Daytime Programmed
Time Period for purposes of Paragraphs 2(b) and 3(a) hereof.
(f) It is expressly understood that commencing with the Effective
Date, Station will, subject to the next sentence, be compensated on the basis
that station is clearing the Fourth Daytime Hour notwithstanding that such
clearance may be deferred as provided for in Paragraph 3(e) hereof. In the
event that Station fails to comply with its obligation to clear the Fourth
Daytime Hour as of September 15, 1996, NBC shall deduct $35,000, on an
annualized basis, from the compensation payable to Station hereunder, which
amount represents the approximate net amount of NBC's lost advertising revenues
by reason of Station's non-clearance of four hours of XXX Xxxxxxx programming;
such deduction shall continue until such clearance by Station. A prorated
portion of such amount shall be deducted on a quarterly basis from Station's
quarterly compensation payments payable pursuant to Paragraph 5 hereof.
(g) Upon the expiration or termination (without giving effect to any
renewal) of any of Station's existing contractual commitments for non-NBC
programming currently broadcast by Station on Saturday mornings and for the
remaining term of this Agreement, Station agrees to consider in good faith,
prior to entering into any new or renewed commitments for the broadcast of non-
NBC programming on Saturday mornings, the clearance of additional XXX xxxxxxx
programming on Saturdays (the "Additional Saturday Daytime Programming") so that
station would clear up to a maximum of two and one-half (2 1/2) hours of
Saturday XXX Xxxxxxx programming. In the event that Station clears any
Additional Saturday Daytime Programming, such programming shall then become part
of the Saturday Daytime Programmed Time Period for purposes of Paragraphs 2(b)
and 3(a) hereof.
4. Preemptions.
(a) In the event that Station, for any reason, fails to broadcast or
advises NBC that it will not broadcast any NBC programming as provided herein,
then, in each case, Station, upon notice from NBC to Station, shall broadcast
such omitted programming and the commercial announcements contained therein (or
any replacement programming and the commercial announcements contained therein)
during a time period or periods which the parties shall promptly and mutually
agree upon and which shall, to the extent possible, be of a quality
3
and rating value comparable to that of the time period or periods at which such
omitted programming was not broadcast as provided herein. In the event that the
parties do not promptly agree upon a time period or periods as provided in the
preceding sentence, then, without limitation to any other rights of NBC under
this Agreement or otherwise, NBC shall have the right to license the broadcast
rights to the applicable omitted programming (or replacement programming) to
another television station located in Station's community of license.
(b) For the purposes of this Agreement, an "Authorized Preemption"
shall mean: any failure to broadcast due to force majeure as provided for in
Paragraph 12 below, any preemption permitted by Paragraphs 3(b), 3(c) or 3(d)
above, and any preemption permitted by Paragraph 4(c) below. Any other
preemption or failure to broadcast any NBC programming shall be deemed an
"Unauthorized Preemption" and, without limiting any other rights of NBC under
this Agreement or otherwise, upon NBC's request, Station shall pay NBC, or NBC
may deduct or offset from any amounts payable to Station hereunder or under any
other agreement between Station and NBC (or an entity controlling, controlled by
or under common control with NBC), an amount equivalent to NBC's loss in net
advertising revenues attributable to the failure of Station to broadcast such
program in Station's market as scheduled by NBC, which amount shall be
calculated in accordance with Exhibit A hereto; provided, however, NBC agrees
that in the event Station broadcasts such preempted NBC program in another time
period as NBC and Station may agree upon pursuant to Paragraph 4(a) hereof, a
portion of such amount equivalent to NBC's loss in net advertising revenues may
be offset by any increase in NBC's net advertising revenues attributable to such
broadcast by Station. Any failure by station to pay any amount due under this
Paragraph 4(b) shall be deemed a material breach of this Agreement, and NBC
shall have the option, exercisable in its sole discretion upon thirty (30) days'
written notice to Station, to either (i) terminate Station's right to broadcast
any one or more series or other NBC programs, as NBC shall elect, and, to the
extent and for the period(s) that NBC elects, thereafter license the broadcast
rights to such series or other NBC program(s) to any other television station or
stations located in Station's community of license or (ii) unless the breach is
cured within such thirty (30) day period, terminate this Agreement.
(c) With respect to programs offered or already contracted for
pursuant to this Agreement, nothing herein contained shall be construed to
prevent or hinder Station from: (i) rejecting or refusing any NBC program which
station reasonably believes to be unsatisfactory or unsuitable or contrary to
the public interest, or (ii) substituting a program in Station's opinion, is of
greater local or national importance; provided, however, that Station shall give
NBC written notice of each such rejection, refusal or substitution, and the
justification therefor at least three (3) weeks in advance of the scheduled
broadcasts or, if such notice is not possible, as soon thereafter as possible
(including an explanation of the cause for any lesser notice). Programming
shall be deemed to be unsatisfactory or unsuitable or contrary to the public
interest only if it: (A) is delivered in a form which does not meet accepted
standards of good engineering practice; (B) does not comply with the rules and
regulations of the FCC; or (C) differs substantially in style and content from
NBC programming which Station has broadcast previously and which Station
reasonably believes would not meet prevailing contemporary standards of good
taste in its community of license. Station confirms that no NBC programming
shall be deemed to be unsatisfactory, unsuitable or contrary to the public
interest based on programming performance or ratings, advertiser reaction or the
availability of alternative programming (including, but not limited to, sporting
events, program length commercials and infomercials, and other paid programming)
which Station believes to be more profitable or more attractive. Station
acknowledges the substantial investment in network programming to be incurred
during the term of this Agreement in order to provide Station with network-
quality news, public affairs, entertainment, sports, children's and other
programming during the Programmed Time Periods. Station further acknowledges
that in view of NBC's substantial investment in network programming, the amount
of broadcast time available to Station outside the Programmed Time Periods and
Station's rights under Paragraph 3(b) above, Station does not foresee any need
to substitute programming of any kind for NBC programming, except in those
circumstances requiring local live coverage of news events.
5. Station Compensation. In further consideration of Station's
performance of its obligations under this Agreement NBC shall compensate Station
as follows:
4
(a) (i) NBC shall pay Station for Station's broadcast of each network
sponsored program or portion thereof (except those specified in
Paragraph 5(b) below) which is broadcast during the Live Time Period
therefor the amount resulting from multiplying the following:
(A) Station's Network Station Rate, which is $1,210; by
(B) The percentage set forth in the compensation matrix table
attached hereto as Exhibit B (the "Compensation Table") opposite
the applicable time period; by
(C) The fraction of an hour substantially occupied by such program or
portion thereof; by
(D) The fraction of the aggregate length of all Commercial
Availabilities during such program or portion thereof occupied by
Network Commercial Announcements.
As used herein, "Live Time Period" shall mean the time period or
periods as specified by NBC for the broadcast of a program by Station;
"Commercial Availability" shall mean a period of time made available by NBC
during a network sponsored program for one or more Network Commercial
Announcements; and "Network Commercial Announcement" shall mean a
commercial announcement broadcast over Station during a Commercial
Availability and paid for by or on behalf of one or more of NBC's network
advertisers, not including, however, announcements consisting of
billboards, credits, public service announcements, promotional
announcements and announcements required by law.
(ii) For each network sponsored program or portion thereof (except
those specified in Paragraph 5(b) below) which is broadcast by Station
during a time period other than the Live Time Period therefor, NBC
reserves the right, in its sole discretion, to withhold payment of
compensation for such program. If NBC does not withhold payment of
compensation for such program, NBC shall pay Station as if Station had
broadcast the program or portion thereof during such Live Time Period,
except that if the percentage set forth in the Compensation Table
opposite the time period during which Station broadcasts the program
or portion thereof is less than that set forth opposite such Live Time
Period, NBC shall pay Station on the basis of the time period during
which Station broadcasts the program or portion thereof.
(b) NBC shall pay Station such amounts as NBC and Station shall
agree upon for all network sponsored programs broadcast by Station
consisting of:
(i) Sports programs;
(ii) Special events programs, and
(iii) Programs for which NBC specifies a Live Time Period which
straddles any of the time period categories in the Compensation Table.
(c) (i) On or about the fifteenth day of the last month of each
calendar quarter during the term hereof, subject to the timely receipt
of reports requested under Paragraph 10 below, NBC shall pay Station,
by electronic transfer or such other means as NBC shall determine, an
estimate of the amounts due hereunder for such calendar quarter. NBC
shall make the appropriate adjustment for the payment actually due for
such calendar quarter in the payment of the estimated amount due for
the next calendar quarter. NBC shall calculate the amounts due
hereunder on a weekly basis and shall report such amounts to Station
within a reasonable period of time after the close of each month
during the term.
(ii) From the amounts otherwise payable to Station hereunder, NBC
shall deduct for each week during each calendar quarter of the term
hereof a sum equal to 217% of Station's Network Station Rate provided
in subparagraph 5(a)(i)(A) above (the "Waiver Percentage").
5
This deduction shall be calculated on a weekly basis, with 4.2857 as
the agreed number of weeks per month, and shall be reported to Station
with the reports due under subparagraph 5(c)(i) above. NBC shall make
other deductions from the amounts otherwise payable to Station
hereunder for additional services made available by NBC and utilized
by Station such as, but not limited to, NBC News Channel.
(d) (i) NBC reserves the right as part of a general rate revision to
reevaluate and change at any time the Waiver Percentage set forth in
subparagraph 5(c)(ii) above, by giving written notice to Station at
least thirty (30) days prior to the effective date of such change;
provided that NBC may increase the Waiver Percentage only by reason of
an increase in NBC's technical costs of delivering programming to the
NBC Television Network; provided further that any such increase in the
Waiver Percentage shall be subject to review by the NBC Affiliate
Board.
(ii) Notwithstanding anything contained in subparagraph 5(d)(i) to the
contrary, the parties acknowledge that the payment of compensation to
Station hereunder is in consideration of certain commitments by
Station, including commitments regarding Station's local news program
schedule and promotion of NBC programming as respectively set forth in
Exhibits C and D attached hereto, which Exhibits are incorporated
herein by this reference. In the event that Station does not fulfill
(A) the commitments set forth in Exhibit C or (B) such commitments as
are set forth in Exhibit D in all years during the term of this
Agreement, NBC reserves the right to decrease Station's Network
Station Rate by notifying Station in writing at least ninety (90) days
prior to the effective date of such change; provided that NBC
acknowledges that it shall act in a reasonable manner consistent with
its evaluation of NBC affiliated broadcast stations generally.
6. Additional Consideration. In consideration of Station entering into
this Agreement and Station's performance of its obligations under this
Agreement, NBC agrees to pay to Station the additional amounts (the "Additional
Payments") set forth on Exhibit E hereto, subject to the provisions thereof.
7. Local Commercial Announcements. Subject to the following sentence,
NBC agrees that during each quarter during the term of this Agreement, the
average weekly number of minutes available for Station's local commercial
announcements in and adjacent to regularly scheduled NBC programming in each
daypart (with pro-rated adjustments for national sports programming, special
news coverage or other special events) shall not be less than ninety-five
percent (95%) of the average weekly number of minutes for the applicable daypart
during the 1993-94 Broadcast Year as set forth in Exhibit F attached hereto
(except if the reduction is due to a change in applicable government
regulations). In the event of a reduction in the average weekly number of
minutes available for Station's local commercial announcements in and adjacent
to regularly scheduled NBC programming which causes NBC not to be in compliance
with the foregoing provision, NBC agrees to offset the effects of such reduction
by providing Station with a comparable economic benefit, which benefit may take
the form of local coverage of NBC promotional announcements, an increase in the
amount of Station's Authorized Preemptions, or other form of benefit. The
foregoing provisions of this Paragraph 7 are not intended to facilitate any
disproportionate change by NBC in the allocation of the number of minutes
available for Station's local commercial announcements in and adjacent to
regularly scheduled NBC programming among different time periods in any daypart,
if such change is solely for NBC's economic benefit.
8. Delivery. NBC shall transmit the programming hereunder by satellite
and shall notify Station as to both the satellite and transponder being used for
such transmission, and the programming shall be deemed delivered to Station when
transmitted to the satellite. Where, in the opinion of NBC, it is impractical
or undesirable to furnish a program over satellite facilities, NBC may deliver
the program to Station in any other manner, including but not limited to, in the
form of motion picture film, video tape or other recorded version, postage
prepaid, in sufficient time for Station to broadcast the program at the time
scheduled. Such recordings shall be used only for a single television broadcast
over Station, and Station shall comply with all NBC instructions concerning the
disposition to be made of each such recording received by Station hereunder.
6
9. Conditions of Station's Broadcast. Station's broadcast of NBC
programming shall be subject to the following terms and conditions:
(a) Station shall not make any deletions from, or additions or
modifications to, any NBC program furnished to Station hereunder or any
commercial, NBC identification, program promotional or production credit
announcements or other interstitial material contained therein, nor broadcast
any commercial or other announcements (except emergency bulletins) during any
such program, without NBC's prior written authorization. Station may, however,
delete announcements promoting any NBC program which is not to be broadcast by
station, provided that such deletion shall be permitted only in the event and to
the extent that Station substitutes for any such deleted promotional
announcements other announcements promoting NBC programs to be broadcast by
Station.
(b) For purposes of identification of Station with the NBC programs,
and until written notice to the contrary is given by NBC, Station may
superimpose on various Entertainment programs, where designated by NBC, a single
line of type, not to exceed fifty (50) video lines in height and situated in the
lower eighth raster of the video screen, which single line shall include (and be
limited to) Station's call letters, community of license or home market, channel
number, and the NBC logo. No other addition to any Entertainment program is
contemplated by this consent, and the authorization contained herein
specifically excludes and prohibits any addition whatsoever to News and Sports
programs, except identification of Station as provided in the preceding sentence
as required by the FCC.
(c) The placement and duration of station-break periods provided for
locally originated announcements between NBC programs or segments thereof shall
be designated by NBC. Station shall broadcast each NBC program delivered to
Station hereunder from the commencement of network origination until the
commencement of the terminal station break.
(d) In the event of the confirmation by NBC of any violation by
Station of any of the provisions of this Paragraph 9, NBC may, in its reasonable
discretion, withhold an amount of compensation otherwise due Station under
Paragraph 5 above which is appropriate in view of the nature of the specific
violation, it being understood that the amount withheld for any violation shall
not exceed the total compensation due Station for the week in which such
violation occurs. Nothing herein contained shall limit the rights of Station
under Paragraph 4(c) above.
10. Station Reports. Station shall submit to NBC in writing, upon forms
provided by NBC, such reports as NBC may request covering the broadcast by
Station of programs furnished to Station hereunder.
11. Music Performance Rights. All programs delivered to Station pursuant
to this Agreement shall be furnished with all music performance rights necessary
for broadcast by Station included. Station shall have no responsibility for
obtaining such rights from ASCAP, BMI or other music licensing societies insofar
as the programs delivered by NBC to Station for broadcasting are concerned. As
used in this paragraph, "programs" shall include, but shall not be limited to,
program and promotional material and commercial and public service announcements
furnished by NBC. Station shall be responsible for all music license
requirements for any commercial and public service announcements or other
material inserted by Station within or adjacent to the programs as permitted
under the terms of this Agreement, except for cut-ins produced by or on behalf
of NBC and inserted by Station at NBC's direction.
12. Force Majeure. Neither Station nor NBC shall incur any liability
hereunder because of NBC's failure to deliver, or the failure of station to
broadcast, any or all programs due to failure of facilities, labor disputes,
government regulations or causes beyond the reasonable control of the party so
failing to deliver or to broadcast. Without limiting the generality of the
foregoing, NBC's failure to deliver a program for any of the following reasons
shall be deemed to be for causes beyond NBC's reasonable control: cancellation
of a program because of the death, illness or refusal to appear or perform of a
star or principal performer thereon, or because of such person's failure to
conduct himself or herself with due regard to social conventions and public
morals and decency, or because of such person's commission of any act or
involvement in any situation or occurrence
7
tending to degrade him or her in society, or bringing him or her into public
disrepute, contempt, scandal or ridicule, or tending to shock, insult or offend
the community, or tending to reflect unfavorably upon NBC or the program
sponsor.
13. Indemnification. NBC shall indemnify, defend and hold Station, its
parent, subsidiary and affiliated companies, and their respective directors,
officers and employees, harmless from and against all claims, damages,
liabilities, costs and expenses (including reasonable attorneys' fees) arising
out of the use by Station, in accordance with this Agreement, of any program or
other material as furnished by NBC hereunder, provided that Station promptly
notifies NBC of any claim or litigation to which this indemnity shall apply, and
that Station cooperates fully with NBC in the defense or settlement of such
claim or litigation. similarly, Station shall indemnify, defend and hold NBC,
its parent, subsidiary and affiliated companies, and their respective directors,
officers and employees, harmless with respect to material added to or deleted
from any program by Station, except for cut-ins produced by or on behalf of NBC
and inserted by Station at NBC's direction. These indemnities shall not apply
to litigation expenses, including attorneys' fees, which the indemnified party
elects to incur on its own behalf. Except as otherwise provided herein, neither
Station nor NBC shall have any rights against the other for claims by third
persons, or for the non-operation of facilities or the non-furnishing of
programs for broadcasting, if such non-operation or non-furnishing is due to
failure of equipment, actions or claims by any third person, labor disputes, or
any cause beyond such party's reasonable control.
14. Station's Right of First Negotiation. Throughout the term of this
Agreement, NBC shall give Station prompt notice of any determination by NBC to
engage in new over-the-air broadcast ventures within Station's community of
license (whether or not involving the transmission of television programs, but
excluding any acquisition of an ownership interest in any broadcast television
station) (a "Broadcast Venture"). NBC shall negotiate exclusively with Station
in good faith, for a period of time following such notice to Station as shall be
determined by NBC to be appropriate to the circumstances and as shall be
specified in such notice, with respect to Station's participation on a financial
and/or operational basis in any such Broadcast Venture within Station's
community of license before NBC may enter into any such negotiations with a
Third Party (as defined below) within such community of license. "Third Party"
shall mean any person or entity other than an NBC Party; "NBC Party" shall mean
any of NBC, National Broadcasting Company, Inc. or their respective parent,
subsidiary, affiliated, related or successor entities.
15. Change in Operations. Station represents and warrants that it holds a
valid license granted by the FCC to operate the Station as a television
broadcast station; such representation and warranty shall constitute a
continuing representation and warranty by Station. in the event that Station's
transmitter location, power, frequency, programming format or hours of operation
are materially changed at any time so that Station is of less value to NBC as a
broadcaster of NBC programming than at the date of this Agreement, then NBC
shall have the right to terminate this Agreement upon thirty (30) days' prior
written notice to Station.
16. Assignment.
(a) This Agreement shall not be assigned without the prior written
consent of NBC, and any permitted assignment shall not relieve Station of its
obligations hereunder; provided, however, NBC agrees that it shall not
unreasonably withhold its consent to an assignment by Station. Any purported
assignment by Station without such consent shall be null and void and not
enforceable against NBC.
(b) Station agrees to include as a condition of any proposed
assignment, sale or transfer of ownership or control of Station (including,
without limitation, any assignment or transfer referred to in Paragraph 16(c)
below other than a "short-form" assignment) a contractually binding provision
that the assignee or transferee shall assume and become bound by this Agreement
for (i) the remainder of the then-current term of this Agreement or (ii) three
(3) years from the date of said assignment or transfer, whichever period is
greater. Station acknowledges that any such assignment, sale or transfer which
does not so provide for such assumption and for NBC's right to extend the term
of this Agreement will cause NBC irreparable injury for which damages are not an
adequate remedy. Therefore, Station agrees that NBC shall be entitled to seek
an
8
injunction or similar relief from any court of competent jurisdiction
restraining Station from committing any violation of this Paragraph 16(b).
(c) Station agrees that if any application is made to the FCC
pertaining to an assignment or a transfer of control of Station's license, or
any interest therein, Station shall immediately notify NBC in writing of the
filing of such application. Except as to "short form" assignments or transfers
of control made pursuant to Section 73.3540(f) of the current FCC Rules, NBC
shall have the right to terminate this Agreement in the event of any assignment
or transfer; provided that NBC agrees not to unreasonably exercise such right of
termination. Station agrees that promptly following Station's notice to NBC,
Station (i) except in the case of "short form" assignments or transfers of
control, shall arrange for a meeting between NBC and the proposed assignee or
transferee to review the financial and operating plans of the proposed assignee
or transferee, and (ii) shall procure and deliver to NBC, in form satisfactory
to NBC, the agreement of the proposed assignee or transferee that, upon
consummation of the assignment or transfer of control of the Station's license,
the assignee or transferee will assume and perform this Agreement in its
entirety without limitation of any kind. If Station complies with its
obligations set forth in the preceding sentence and NBC does not terminate this
Agreement upon written notice to Station within the thirty (30) day period
following the later of the meeting with the proposed assignee or transferee or
the delivery to NBC of a satisfactory assumption agreement, NBC shall be deemed
to have consented to the assignment or transfer of control.
(d) NBC agrees that in the event of a sale or transfer of all or
substantially all of the assets or business of NBC (whether structured as a sale
or transfer of equity or assets of NBC), NBC agrees to assign this Agreement to
the purchaser or transferee and to cause such purchaser or transferee to assume
NBC's obligations hereunder; provided that the foregoing agreement shall not
apply in the event that this Agreement becomes an obligation of such purchaser
or transferee by operation of law. Upon such assignment and assumption, NBC
shall have no liability under this Agreement with respect to obligations arising
after the effective date of such assignment and assumption.
17. Unauthorized Copying and Transmission. Station shall not authorize,
cause, or permit, without NBC's consent, any program or other material furnished
to Station hereunder to be recorded, duplicated, rebroadcast or otherwise
transmitted or used for any purpose other than broadcasting by Station as
provided herein. Notwithstanding the foregoing, Station shall not be restricted
in the exercise of its signal-carriage rights pursuant to any applicable rule or
regulation of the FCC with respect to retransmission of its broadcast signal by
any cable system or multichannel video program distributor ("MVPD"), as defined
in Section 76.64(d) of the FCC Rules, which (a) is located within the Area of
Dominant Influence ("ADI"), as defined by Arbitron, in which Station is located,
or (b) was actually carrying Station's signal as of April 1, 1993, or (c) with
respect to cable systems, serving an area in which Station is "significantly
viewed" (as determined by the FCC) as of April 1, 1993; provided, however, that
any such exercise pursuant to FCC Rules with respect to NBC programs shall not
be deemed to constitute a license by NBC; and provided, further, that at such
time as NBC adopts a term in substitution for the term "ADI" by reason of any
similar action by the FCC or other appropriate authority, such substitute term
shall replace the references to "ADI" herein. NBC reserves the right to
restrict such signal carriage with respect to NBC programming in the event of a
change in applicable law, rule or regulation.
18. Limitations on Retransmission Consent. In consideration of the grant
by NBC to Station of the non-duplication protection provided in the amendment to
this Agreement of even date herewith (the "Non-Dupe Amendment"), Station hereby
agrees as follows:
(a) Station shall not grant consent to the retransmission of its
broadcast signal by any cable television system, or, except as provided in
Paragraph 18(b) below, to any other MVPD whose carriage of broadcast signals
requires retransmission consent, if such cable system or MVPD is located outside
the ADI to which Station is assigned, unless Station's signal was actually
carried by such cable system or MVPD as of April 1, 1993, or, with respect to
such cable system, is "significantly viewed" (as determined by the FCC) as of
April 1, 1993; provided, however, that at each renewal of the Agreement, in the
event Station can demonstrate to NBC that it is "significantly viewed" (as
determined by the FCC) in areas in addition to those in which it was
9
"significantly viewed" as of April 1, 1993 ("Additional Viewing Areas"), NBC
agrees that it will negotiate in good faith with Station regarding a possible
extension of Station's grant of the right to retransmit its broadcast signal to
cable systems in the Additional Viewing Areas.
(b) Station shall not grant consent to the retransmission of its
broadcast signal by any MVPD that provides such signal to any home satellite
dish user, unless such user is located within Station's own ADI or is an
"unserved household" as defined in Section 119(d) or any successor provision of
Title 17 of the United States Code.
19. Remedies for Unauthorized Copying and Transmission. If Station
violates any of the provisions set forth in Paragraphs 17 and 18 above, NBC may,
in addition to any other of its rights or remedies at law or in equity under
this Agreement or any amendment thereto, terminate this Agreement by written
notice to Station given at least ninety (90) days prior to the effective date of
such termination.
20. Applicable Law. The obligations of Station and NBC 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 and regulations of the FCC), and this Agreement and.
all matters or issues collateral thereto shall be governed by the law of the
State of New York applicable to contracts negotiated, executed and performed
entirely therein (without regard to principles of conflicts of laws).
21. Waiver. A waiver by either of the parties hereto of a breach of any
provision of this Agreement shall not be deemed to constitute a waiver of any
preceding or subsequent breach of the same provision or any other provision
hereof.
22. Notices. Any notices hereunder shall be in writing and shall be given
by personal delivery, overnight courier service, or registered or certified
mail, addressed to the respective addresses set forth on the first page of this
Agreement (and, with respect to Station, with a copy to Xxxxx & Xxxxxxx, 000
00xx Xxxxxx, X.X., Xxxxxxxxxx, XX 00000, Attention: Xxxxxxx X. Xxxxxx, Xx.) or
at such other address or addresses as may be specified in writing by the party
to whom the notice is given. Such notices shall be deemed given when personally
delivered, delivered to an overnight courier service or mailed, except that
notice of change of address shall be effective only from the date of its
receipt.
23. Captions. The captions of the paragraphs in this Agreement are for
convenience only and shall not in any way affect the interpretation hereof.
24. Entire Agreement. The foregoing constitutes the entire agreement
between Station and NBC with respect to the subject matter hereof, all prior
understandings being merged herein, except for the Non-Dupe Amendment. This
Agreement shall supersede the provisions of the Agreement dated June 13, 1995
between NBC and EP Communications, Inc. (as the prior owner of KSBW), which
Agreement was assigned to and assumed by Xxxxx Television of Salinas-Monterey
License, L.P. This Agreement may not be changed, modified, renewed, extended or
discharged, except as specifically provided herein or by an agreement in writing
signed by the parties hereto.
25. Confidentiality. The parties agree to use their best efforts to
preserve the confidentiality of this Agreement and of the terms and conditions
set forth herein, and the exhibits annexed hereto, to the fullest extent
permissible by law. The parties recognize that Section 73.3613 of the FCC's
Rules and Regulations requires the filing with the FCC of television network
affiliation agreements by each affiliate, but are unaware of any requirement for
the filing of exhibits annexed to such affiliation agreements. In the event
that the FCC should request either party to file said exhibits, that party shall
give prompt notice to the other, and shall submit said exhibits to the FCC with
a request that said exhibits be withheld from public inspection pursuant to
Section 0.459 of the FCC's Rules and Regulations on the grounds that said
exhibits contain confidential commercial or financial information that would
customarily be guarded from competitors and not be released to the public.
10
26. Counterparts. This Agreement may be signed in any number of
counterparts with the same effect as if the signature to each such counterpart
were upon the same instrument.
If the foregoing is in accordance with your understanding, please
indicate your acceptance on the copy of this Agreement enclosed for that purpose
and return that copy to NBC.
Very truly yours,
NATIONAL BROADCASTING COMPANY, INC.
By: /s/ [ILLEGIBLE]
_____________________________________
AGREED:
By: Xxxxx Broadcasting Partners, L. P.
Its General Partner
/s/ XXXXX X. XXXX
____________________________________
By: Xxxxx Broadcasting Group, Inc.
Its General Partner
/s/ XXXXX X. XXXX
____________________________________
11
