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EXHIBIT 10.18
CBS TELEVISION NETWORK
A Division of CBS Inc.
AFFILIATION AGREEMENT
CBS TELEVISION NETWORK, A Division of CBS Inc., 00 Xxxx 00 Xxxxxx, Xxx Xxxx,
Xxx Xxxx 00000 ("CBS"), and TELEVISION STATION PARTNERS, L.P., 000 Xxxxxxxx
Xxxxxx, Xxxxxxxxx, Xxx Xxxx 00000 ("Broadcaster"), licensed to operate
television station WROC-TV at Rochester, New York on channel number 8
("Affiliated Station"), hereby mutually covenant and agree, as of the 12th day
of January, 1995, as follows:
1. Offer, Acceptance and Delivery of Network Programs.
Broadcaster shall have a "first call" on CBS network television programs
("Network Programs") as follows.
(a) Offer of Network Programs.
CBS shall offer to Broadcaster for broadcasting by Affiliated Station
those Network Programs which are to be broadcast on a network basis by any
television broadcast station licensed to operate in Affiliated Station's
community of license.
(b) Acceptance of Network Programs.
As to any offer described in Paragraph 1(a) of this Agreement,
Broadcaster may accept such offer only by notifying CBS, by means of CBS's
computer-based communications system, of such acceptance within 72 hours
(exclusive of Saturdays, Sundays and holidays), or such longer period as CBS
may specify therein, after such offer; provided, however, that, if the first
broadcast referred to in such offer is scheduled to occur less than 72 hours
after the making of the offer, Broadcaster shall notify CBS of the acceptance
or rejection of such offer as promptly as possible and in any event prior to
the first broadcast time specified in such offer. Such acceptance shall
constitute Broadcaster's agreement that Affiliated Station will broadcast such
Network Program or Programs in accordance with the terms of this Agreement and
of such offer, and so long as Affiliated Station so broadcasts such Network
Program or Programs, CBS will not, subject to its rights in the program
material, authorize the broadcast thereof on a network basis by any other
television, broadcast station licensed to operate in Affiliated Station's
community of license; provided, however, that CBS shah have the right to
authorize any television broadcast station, wherever licensed to operate, to
broadcast any Network Program consisting of an address by the President of the
United States of America on a subject of public importance or consisting of
coverage of a Matter of immediate national concern. If, as to any Network
Program offered hereunder, Broadcaster does not notify CBS as provided for in
this Paragraph l(b), Broadcaster shall have no rights with respect to such
Network Program, and CBS may offer such Network Program on the same or
different terms to any other television broadcast station or stations licensed
to operate in Affiliated Station's community of license;
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provided, however, that, if any Network Program offered hereunder is accepted,
by Affiliated Station, upon any other terms or conditions to which CBS agrees
in writing, then the provisions of this Agreement shall apply to the broadcast
of such Network Program except to the extent such provisions are expressly
varied by the terms and conditions of such acceptance as so agreed to by CBS.
(c) Delivery of Network Programs.
Any obligation of CBS to furnish Network Programs for broadcasting by
Affiliated Station is subject to CBS's making of arrangements satisfactory to
it for the delivery of Network Programs to Affiliated Station.
2. Payment to Broadcasters.
(a) Definitions.
(i) "Live Time Period" means the time period or periods
specified by CBS in its initial offer of a Network
Program to Broadcaster for the broadcast of such
Network Program over Affiliated Station; (ii)
"Affiliated Station's Network Rate" shall be $1,440
and is used herein solely for purposes of computing
payments by CBS to Broadcaster; (iii) "Commercial
Availability" means a period of time made available
by CBS during a Network Commercial Program for one or
more Network Commercial Announcements or local
cooperative commercial announcements; and (iv)
"Network Commercial Announcements" means a commercial
announcement broadcast over Affiliated Station during
a Commercial Availability and paid for by or on
behalf of one or more CBS advertisers, but does not
include announcements consisting of billboards,
credits, public service announcements, promotional
announcements and announcements required by law.
(b) Payment for Broadcast of Programs.
For each Network Commercial Program or portion thereof, except those
specified in Paragraph 2(c) hereof, which is broadcast over Affiliated Station
during the Live Time Period therefor and the Live Time Period for which is set
forth in the table below, CBS shall pay Broadcaster the amount resulting from
multiplying the following:
(i) Affiliated Station's Network Rate; by
(ii) the percentage set forth below opposite such time
period (which, unless otherwise specified, is
expressed in Affiliated Station's then-current local
time); by
(iii) the fraction of an hour substantially occupied by
such program or portion thereof; by
(iv) the fraction Of the aggregate length of all
Commercial Availabilities during such program or
portion thereof occupied by Network Commercial
Announcements.
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Table
Monday through Friday
7:00 a.m. - 10:00 a.m. . . . . . . . . . . . . . . 11.2%
10:00 a.m. - 12:00 p.m. . . . . . . . . . . . . . . 15%
12:00 p.m. - 4:00 p.m. . . . . . . . . . . . . . . . 6%
4:00 p.m. - 5:00 p.m. . . . . . . . . . . . . . . . 12%
5:00 p.m. - 8:00 p.m. . . . . . . . . . . . . . . . 15%
8:00 p.m. - 11:00 p.m. . . . . . . . . . . . . . . . 30%
11:00 p.m. - 12:00 a.m. . . . . . . . . . . . . . . 15%
Saturday
8:00 a.m. - 9:00 a.m. . . . . . . . . . . . . . . . 7%
9:00 a.m. - 5:00 p.m. . . . . . . . . . . . . . . . 12%
5:00 p.m. - 8:00 p.m. . . . . . . . . . . . . . . . 15%
8:00 p.m. - 11:00 p.m. . . . . . . . . . . . . . . . 30%
11:00 p.m. - 12:00 a.m. . . . . . . . . . . . . . . 15%
Sunday
11:30 a.m. - 5:00 p.m. . . . . . . . . . . . . . . . 12%
5:00 p.m. - 7:00 p.m. . . . . . . . . . . . . . . . 15%
7:00 p.m. - 11:00 p.m. . . . . . . . . . . . . . . . 30%
11:00 p.m. - 12:00 a.m. . . . . . . . . . . . . . . 15%
For each Network Program or portion thereof, except those specified in
Paragraph 2(c) hereof, which is broadcast by Affiliated Station during a time
period other than the Live Time Period therefor and the Live Time Period for
which is set forth in the table above, CBS shall pay Broadcaster as if
Affiliated Station had broadcast such program or portion thereof during such
Live Time Period, except that:
(i) if the percentage set forth above opposite the time
period during which Affiliated Station broadcast such
program or portion thereof is less than that set
forth opposite such Live Time Period, then CBS shall
pay Broadcaster on the basis of the time period
during which Affiliated Station broadcast such
program or portion thereof; and
(ii) if the time period or any portion thereof during
which Affiliated Station broadcast such program is
not set forth in the table above, then CBS shall pay
Broadcaster in accordance with Paragraph 2(c) hereof.
(c) Payment for Broadcast of Other Programs.
For the following programs, the percentages listed below (rather than
those daypart percentages set forth in the table in Paragraph 2(b) hereinabove)
shall be used in computing payment to Affiliated Station:
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Monday-Friday Daytime Game shows . . . . . . . . . . . . . . . . . 15%
Monday-Friday Continuing Dramas . . . . . . . . . . . . . . . . . 6%
Monday-Friday Late Night Daypart . . . . . . . 20.0% per telecast for
live clearance or 15.0%
per telecast for
delayed clearance
Monday - Friday CBS EVENING NEWS . . . . . . . . . . . . . . . . . 5%
CBS Sports programs . . . . . . . . . . . . . . . . . . . . . . . 0%
CBS SUNDAY MORNING and FACE THE NATION . . . . . . . . . . . . . . 8%
Notwithstanding the payment obligations set forth in Paragraph 2(b)
above, CBS shall pay Broadcaster such amounts as specified in CBS's program
offer for Network Programs broadcast by Affiliated Station consisting of (i)
special event programs (including, but not limited to, such programs as awards
programs, mini-series, movie specials, entertainment specials,
special-time-period broadcasts of regularly-scheduled series, and news specials
such as political conventions, election coverage, presidential inaugurations
and related events), (ii) programs for which CBS specified a Live Time Period,
or which Affiliated Station broadcast during a time period, any portion of
which is not set forth in the table above.
(d) Deduction.
From the amounts otherwise payable to Broadcaster hereunder, there
shall be deducted, for each week of the term of this Agreement, a sum equal to
168% of Affiliated Station's Network Rate.
(e) Changes in Rate.
CBS may reduce Affiliated Station's Network Rate in connection with 2
re-evaluation and reduction of the Affiliated Station Network Rate of CBS's
affiliated stations in general, by giving Affiliated Station at least thirty-
days' prior notice of such reduction in Affiliated Station's Network Rate in
which event Broadcaster may terminate this Agreement, effective as of the
effective date of any such reduction, on not less than fifteen-days' prior
notice to CBS. In order to reflect differences in the importance of
compensation payments to Stations in markets of varying size, the size of any
general reduction of the Network Rate of CBS's affiliated Stations pursuant to
this Paragraph 2(e) may vary to a reasonable degree according to each station's
market-size category (i.e., 1-50, 51-100, 101-150 or 151 +). Further, CBS
agrees that in the event of such an across-the-border rate reduction,
Affiliated Station's Network Rate shall be reduced accordingly until thirty
days after the effective date of the reduction, at which time; unless
additional corresponding benefit of equal value has accrued to the station, the
Network Rate shall be restored to the previous level and a retroactive
adjustment shall be made to make up the compensation difference.
(f) Time of Payment.
CBS shall make the payments hereunder reasonably promptly after the
end of each four-week or five-week accounting period of CBS for Network
Commercial Programs broadcast during such accounting period.
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(g) Reports.
Broadcaster shall submit to CBS in the manner requested by CBS such
reports as CBS may reasonably request concerning the broadcasting of Network
Programs by Affiliated Station.
3. Term and Termination.
(a) Term.
The term of this Agreement shall be the period commencing on February
1, 1995 and expiring on January 31, 2005; provided, however, that, unless
Broadcaster or CBS shall notify the other at least six months prior to the
expiration of the original period or any subsequent five-year period that the
party giving such notice does not wish to have the term extended beyond such
period, the term of this Agreement shall be automatically extended upon the
expiration of the original period and each subsequent extension thereof for an
additional period of five years. Notwithstanding any provision of any offer or
acceptance under Paragraph I hereof, upon the expiration or any termination of
the term of this Agreement, Broadcaster shall have no right whatsoever to
broadcast over Affiliated Station any Network Program.
(b) Termination on Transfer of License or Interest in Broadcaster.
Broadcaster shall notify CBS forthwith if any application is made to
the Federal Communications Commission relating to a transfer either of any
interest in Broadcaster or of Broadcaster's license for Affiliated Station. In
the event that CBS shall reasonably disapprove of the proposed transferee, CBS
shall have the right to terminate this Agreement effective as of the effective
date of any such transfer (except a transfer within the provisions of Section
73.3540(f) of the Federal Communications Commission's present Rules and
Regulations) by giving Broadcaster notice thereof, and of its reasons for
disapproving of the proposed transferee, within thirty days after the date on
which Broadcaster gives CBS notice of the making of such application. If CBS
does not so terminate this Agreement, Broadcaster shall, prior to the effective
date of any such transfer of any interest in Broadcaster or of Broadcaster's
license for Affiliated Station, and as a condition precedent to such transfer,
procure and deliver to CBS, in form reasonably satisfactory to CBS, the
agreement of the proposed transferee that, upon consummation of the transfer,
the transferee will unconditionally assume and perform all obligations of
Broadcaster under this Agreement. Upon delivery of said agreement to CBS, in
form satisfactory to it, the provisions of this Agreement applicable to
Broadcaster shall, effective upon the date of such transfer, be applicable to
such transferee.
Broadcaster's obligations to procure the assumption of this Agreement
by any transferee of Affiliated Station as a condition precedent to such
transfer shall be deemed to be of the essence of this Agreement; further,
Broadcaster expressly recognizes that money damages will be inadequate to
Compensate CBS for the breach of such obligation, and chat CBS shall
accordingly be entitled to equitable relief to enforce the same.
(c) Termination on Change of Transmitter Location, Power,
Frequency or Hours of Operation of Affiliated Station.
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Broadcaster shall notify CBS forthwith if application is made to the
Federal Communications Commission to modify the transmitter location, power or
frequency of Affiliated Station or Broadcaster plans to modify the hours of
operation of Affiliated Station. CBS shall have the right to terminate this
Agreement, effective upon the effective date of such modification, by giving,
Broadcaster notice thereof within thirty (30) days after the date on which
Broadcaster gives CBS notice of the application or plan for such modification.
If Broadcaster falls to notify CBS required herein, then CBS shall have the
right to terminate this Agreement by giving Broadcaster thirty (30) days'
notice thereof within thirty (30) days of the date on which CBS first learns of
such application.
(d) Termination in the Event of Bankruptcy.
Upon one (1) month's notice, CBS may terminate this Agreement if a
petition in bankruptcy is filed by or on behalf of Broadcaster, or Broadcaster
otherwise takes advantage of any insolvency law, or an involuntary petition in
bankruptcy is filed against Broadcaster and not discussed within thirty (30)
days thereafter, or if a receiver or trustee of any of Broadcaster's property
is appointed at any time and such appointment is not vacated within thirty (30)
days thereafter (it being understood that Broadcaster will have a similar right
of termination upon the occurrence of any such event with respect to CBS).
(e) Termination in the Event of Breach.
Each party, effective upon notice to the other, may, in addition to
its other rights, terminate this Agreement if any material representation,
warranty or agreement of the other party contained in this Agreement has been
breached.
4. Use of Network Programs.
(a) General.
Broadcaster shall not broadcast any Network Program over Affiliated
Station unless such Network Program has first been offered by CBS to
Broadcaster for broadcasting over Affiliated Station and has been accepted by
Broadcaster in accordance with this Agreement. Except with the prior written
consent of CBS, Broadcaster shall neither sell any Network Program, in whole or
in part, or any time therein, for sponsorship, nor otherwise use Network
Programs except as specially authorized in this Agreement. Affiliated Station
shall not. broadcast any commercial announcement or announcements during any
interval, within a Network Program, which is designated by CBS to Affiliated
Station as being for the sole purpose of making a station identification
announcement. Broadcaster shall, with respect to each Network Program broadcast
over Affiliated Station, broadcast such Network Program in its entirety
(including but not limited Lo commercial announcements, billboards, credits,
public service announcements, promotional announcements and network
identification), without interruption, alteration, compression, deletion or
addition of any kind, from the beginning of the Network Program to the final
system cue at the conclusion of the Network Program. Nothing herein shall be
construed as preventing Broadcaster's deletion of (i) part of a Network Program
in order to broadcast an emergency announcement or
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news bulletin; (ii) a promotional announcement for a Network Program not to be
broadcast over Affiliated Station (provided that Affiliated Station shall
broadcast an alternative promotional announcement for CBS network programming
in place of the deleted promotional announcement); (iii) such words, phrases or
scenes as Broadcaster, in the reasonable exercise of its judgment, determines
it would not be in the public interest to broadcast over Affiliated Station;
provided, however, that Broadcaster shall not substitute for any material
deleted pursuant to this clause (iii) any commercial or promotional
announcement of any kind whatsoever; and provided further that Broadcaster
shall notify CBS of every such deletion within 72 hours thereof. Broadcaster
shall not, without CBS's prior written consent, authorize or permit any Network
Program, recording, or other material Furnished by CBS to Broadcaster or
Affiliated Station hereunder to be recorded, duplicated, rebroadcast,
retransmitted or otherwise used for any purpose whatsoever other than
broadcasting by Affiliated Station as provided herein; except that Broadcaster
may assert a right to carriage of Affiliated Station's signal by a cable system
pursuant to the provisions of Section 4 of the Cable Consumer Protection and
Competition Act of 1992 ("the 1992 Cable Act") and may, to the extent permitted
by paragraph 4(b) hereof, grant consent to the retransmission of such signal by
a cable system or other multichannel video programming distributor, as defined
by said Act, pursuant to the provisions of Section 6 thereof.
(b) Retransmission Consent.
Broadcaster may grant consent to the retransmission of Affiliated
Station's signal by a cable system or other multichannel video programming
distributor pursuant to the provisions of Section 6 of the 1992 Cable Act
(hereafter "retransmission consent"), provided that one of the following
conditions applies at the time retransmission consent is granted:
(i) The cable system or other multichannel program service on
which Affiliated Station's signal is to be retransmitted
serves television homes within Affiliated Station's television
market;
(ii) the majority of television homes served by the Cable system or
other multichannel program service on which Affiliated
Station's signal is to be retransmitted are within a county,
or community in which Affiliated Station's signal is, and has
been since October 5, 1992, "significantly viewed" as defined
in Section 76.54 of the FCC's rules; or
(iii) the cable system or other multichannel program service on
which Affiliated Station's signal is to be retransmitted
carried such signal on October 5, 1992, and does not receive
such signal by satellite delivery.
Notwithstanding anything to the contrary in the foregoing, in no case
shall retransmission consent be granted to a television receive-only Satellite
service, or a direct broadcast satellite service, if Affiliated Station's
signal is to be retransmitted by such service to television homes outside of
Affiliated Station's television market other than "unserved household(s)," as
that term is defined in
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Section 119(d) of Xxxxx 00, Xxxxxx Xxxxxx Code, as in effect on October 5,
1992. For purposes of this paragraph, a station's "television market" shall be
defined in the same manner as set forth in Sections 76.55(e) and 76.59 of the
FCC's rules.
(c) Taped Recordings of Network Programs.
When authorized to make a taped delayed broadcast of a Network Program,
Broadcaster shall use Broadcaster-owned tape to record the Network Program when
transmitted by CBS only for a thin single broadcast by Affiliated Station and
shall erase the Program recorded on the tape with 24 hours of broadcasting the
Network Program and observe any limitations which CBS may place on the
exploitation of the Network Program so recorded and erased.
5. Rejection, Refusal, Substitution and Cancellation of Network Programs.
(a) Rights of Broadcaster and CBS.
With respect to Network Programs offered to or already accepted
hereunder by Broadcaster, nothing in this Agreement Shall be construed to
prevent or hinder:
(i) Broadcaster from rejecting or refusing any such
Network Program which Broadcaster reasonably believes
to be unsatisfactory or unsuitable or contrary to the
public interest, or from substituting a program
which, in Broadcaster's opinion, is of greater local
or national importance; or
(ii) CBS from substituting one or more other Network
Programs, in which event CBS shall offer such
substituted program or programs to Broadcaster
pursuant to the provisions of Paragraph 1 hereof; or
(iii) CBS from canceling one or more Network Programs.
(b) Notice.
In the event of any such rejection, refusal, substitution or
cancellation by either party hereto, such party shall notify the other thereof
as soon as practicable by telex or by such computer-based communications system
as CBS may develop for notifications of this kind. Notice given to CBS shall be
addressed to CBS Affiliate Relations.
6. Disclosure of Information.
CBS shall endeavor in good faith, before furnishing any Network Program, to
disclose to Broadcaster information of which CBS has knowledge concerning the
inclusion of any matter in such Network Program for which any money, service or
other valuable consideration is directly or indirectly paid or promised to, or
charged or accepted by, CBS or any employee of CBS or any other person with
whom CBS deals in connection with the production or preparation of such Network
Program. As aimed in this Paragraph 6, the term "service or other valuable
consideration" shall not include any service or property, furnished without
charge or at a normal charge for use in, or in connection
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with, any Network Program "unless it is so furnished in consideration for an
identification in a broadcast of any person, product, service, trademark, or
brand name beyond an identification which is reasonably related to the use of
such service or property on the broadcast," as such words are used in Section
317 of the Communications Act of 1934 as amended. The provisions of this
Paragraph 6 requiring the disclosure of information shall not apply in any case
where, because of a waiver granted by the Federal Communications Commission, an
announcement is not required to be made under said Section 317. The inclusion
in any such Network Program of an announcement required by said Section 317
shall constitute the disclosure to Broadcaster required by this Paragraph 6.
7. Indemnification.
CBS will indemnify Broadcaster from and against any and all claims, damages,
liabilities, costs and expenses arising out of the broadcasting, pursuant to
this Agreement, of Network Programs furnished by CBS to the extent that such
claims, damages, liabilities, costs and expenses are (i) based upon alleged
libel, slander, defamation, invasion of the right of privacy, or violation or
infringement of copyright or literary or dramatic rights; (ii) based upon the
broadcasting of Network Programs as furnished by CBS, without any deletions by
Broadcaster; and (iii) not based upon any material added by Broadcaster to such
Network Programs (as to which deletions and added material Broadcaster shall,
to the like extent, indemnify CBS, all network advertisers, if any, on such
Network Program, and the advertising agencies of such advertisers).
Furthermore, each party will so indemnify the other only if such other party
gives the indemnifying party prompt notice of any claim or litigation to which
its Indemnity applies; it being agreed that the indemnifying party shall have
the right to assume the defense of any or ill claims or litigation to which its
indemnity applies and that the indemnified party will cooperate fully with the
indemnifying parry in such defense and in the settlement of such claim or
litigation. Except as herein provided to the contrary, neither Broadcaster nor
CBS shall have any rights against the Other party hereto for claims by third
persons or for the non-operation of facilities or the non-furnishing of Network
Programs for broadcasting if such non-operation or non-furnishing is due to
failure of equipment, action or claims by any third person, labor dispute or
any cause beyond such party's reasonable control.
8. News Reports Included in Affiliated Station's Local News Broadcasts.
As provided in the agreements pertaining to CBS Newsnet and CBS
regional news cooperatives (but as a separate obligation of this Affiliation
Agreement as well), Broadcaster shall make available, on request by CBS News,
coverage produced by Affiliated Station of news stories and breaking news
events of national and/or regional interest, to CBS News and to regional news
cooperatives operated by CBS News. Affiliated Station shall be compensated at
CBS News' then-prevailing rates for material broadcast by CBS News or included
in the national Newsnet service.
9. Non-Duplication of Network Programs.
(a) For purposes of this paragraph, a television station's
"Network Exclusivity Zone" shall mean the zone within thirty-five (35) miles of
the station's reference points, or, in the case of a
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"small market television station," as defined in Section 76.92 of the FCC
rules, the zone within 55 miles of said reference points; provided, however,
that in no case shall the "Network Exclusivity Zone" include an area within the
Area of Dominant Influence (ADI), as determined by Arbitron and published in the
then-current edition of its Television ADI Market Guide, of another CBS
Television Network Affiliate. A station's "reference points" for purposes of
this paragraph shall be as defined in Section 73.658(m) of the FCC rules, and
shall be deemed to include, with respect to a station in a hyphenated market,
the reference points of each named community in that market.
(b) Broadcaster shall be entitled to exercise, within Affiliated
Station's Network Exclusivity Zone, the protection against duplication of
network programming, as provided by Sections 76.92 through 76.97 of the FCC
rules, with respect to a Network Program during the period beginning one (1)
day before and ending seven (7) days after the delivery of such Network Program
by CBS to Broadcaster; provided, however, that such right shall apply only to
Network Programs broadcast in the live time period as offered or on no more
than a one day delay as accepted by CBS; and provided further that nothing
herein shall be deemed to preclude CBS from granting to any other broadcast
television station licensed to any other community similar network
non-duplication rights within that station's Network Exclusivity Zone, and
Broadcaster's aforesaid right of network non-duplication shall not apply with
respect to the transmission of the programs of another CBS affiliate (current
or future) by a "community unit," as that term is defined by the rules of the
FCC, located (wholly or partially) within the area in which Broadcaster's
Network Exclusivity Zone overlaps the Network Exclusivity Zone of that Other
CBS affiliate.
(c) Broadcaster's network non-duplication rights under this
paragraph shall be subject to cancellation by CBS on six (6) months written
notice to Broadcaster. Any such cancellation by CBS shall not affect any of the
other rights and obligations of the parties under this Agreement.
10. Assignment, Conveyance and Conditions for Use of Descramblers.
(a) For value received, CBS hereby conveys, transfers, and assigns
to Broadcaster, all of its rights, title and interest in and to the tangible
personal property consisting of two (2) Videocipher 1B Descramblers (the
"Descramblers") subject to the following conditions:
(i) Broadcaster may not assign its rights in the
Descramblers to any party without CBS's written
approval.
(ii) At the termination or expiration of this Agreement,
Broadcaster's rights in the Descramblers shall cease
and Broadcaster shall take appropriate steps to
assign the Descramblers to CBS.
(b) Broadcaster shall use the Descramblers solely in connection
with the broadcast rights granted and specified in the Agreement.
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(c) CBS makes no warranties whatsoever, either express or implied,
in respect of the equipment including, but not limited to, any warranties of
merchantability or fitness for a particular purpose.
(d) Broadcaster shall be solely responsible for any and all
installation and other related costs or charges in connection with the use and
installation of the Descramblers. Broadcaster shall at all times use and
maintain the Descramblers as instructed by CBS and the manufacturer and shall
use its best efforts to assure that the Descramblers are kept in good condition
and that no tampering with the Descramblers or other breach of security, as
defined in subparagraph (g) below, occurs. Broadcaster shall promptly notify
the CBS Satellite Management Center by telephone of any defect or failure in
the operation of the Descramblers and shall follow such procedures as are
established by CBS for the replacement or repair of the Descramblers. CBS shall
be responsible for the cost of correcting any defect or of rectifying any
failure of the Descramblers to operate during the Term of the Agreement,
provided that Broadcaster shall be responsible for any costs associated with
its failure to follow the prescribed procedures.
(e) In addition to its rights under paragraph 7 of the Agreement,
CBS will not be liable for any damages resulting from the operation of the
Descramblers or from the failure of the Descramblers to function properly or,
any loss, cost or damage to Broadcaster or others arising from defects or
non-performance of the Descramblers.
(f) If Broadcaster makes any use of the Descramblers in violation
of the terms and conditions of this Agreement, said use shall be a material
breach of this Agreement.
(g) Should Broadcaster's willful acts or negligence result in any
breach in the security of the two Descramblers covered by this Agreement, such
breach of security shall be a material breach of this Agreement. Breach of
security shall include but not be limited to any theft of all or part of the
Descramblers, any unauthorized reproduction of all or part of the Descramblers,
any unauthorized reproduction of the code involved in descrambling the network
feed from CBS to Broadcaster, or any related misappropriation of the physical
property or intellectual property contained in the Descramblers.
11. General.
(a) As of the beginning of the term hereof, this Agreement takes
the place of, and is substituted for, any and all television affiliation
agreements heretofore existing between Broadcaster and CBS concerning
Affiliated Station, subject only to the fulfillment of any obligations
thereunder relating to events occurring prior to the beginning of the term
hereof. This Agreement cannot be changed or terminated orally and no waiver by
either Broadcaster or CBS of any breach of any provision hereof shall be or be
deemed to be a waiver of any preceding or subsequent breach of the same or any
other provision of this Agreement.
(b) The obligations of Broadcaster and CBS under this Agreement
are subject to all applicable federal, state and local law, rules and
regulations (including but not limited to the Communications Act of 1934 as
amended and the Rules and Regulations of the Federal Communications Commission)
and this Agreement and all matters or issues collateral thereto shall
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be governed by the law of the State of New York applicable to contracts
performed entirely therein.
(c) Neither Broadcaster nor CBS shall be or be deemed to be or
hold itself out as the agent of the other under this Agreement.
(d) Unless specified otherwise, all notices given hereunder shall
be given in writing, by personal delivery, mail, telegram, telex system or
private wire at the respective addresses of Broadcaster and CBS set forth
above, unless either party at any time or times designates another address for
itself by notifying the other party thereof by certified mail, in which case
all notices to such party shall thereafter be given at its most recently so
designated address. Notice given by mail shall be deemed given on the date of
mailing thereof with postage prepaid. Notice given by telegram shall be deemed
given on delivery of such telegram to a telegraph office with charges therefor
prepaid or to be billed to the sender thereof. Notice given by private wire
shall be deemed given on the sending thereof.
(e) The titles of the paragraphs in this Agreement are for
convenience only and shall not in any way affect the interpretation of this
Agreement.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the
date first above written.
TELEVISION STATION PARTNERS, L.P. CBS TELEVISION NETWORK
A Division of CBS Inc.
By: [ILLEGIBLE] By: [ILLEGIBLE]
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