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EXHIBIT 10.16
[NBC LETTERHEAD]
July 10, 1995
WEYI Associates c/o WEYI-TV
0000 Xxxx Xxxxxxx Xxxx
Xxxx, Xxxxxxxx 00000
RE: WEYI-TV (Saginaw, Michigan)
Gentlemen:
The following shall comprise the agreement between us for the
affiliation of your television broadcasting station WEYI-TV (you and WEYI-TV
collectively herein called "Station") with the NBC Television Network (herein
called "NBC").
1. Term. This Agreement shall be deemed effective as of
January 16, 1995 (the "Effective Time"), and, unless sooner terminated as
provided in this Agreement, it shall remain in effect for a period of seven (7)
years thereafter. It shall then be renewed on the same terms and conditions for
a further period of three (3) years and for successive further periods of three
(3) 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. Station represents and warrants that its affiliation agreement
with the CBS Television Network ("CBS") and any and all related commitments,
agreements and understandings are terminated and of no further force or effect
as of the Effective Time.
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):
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Prime Time: Monday thru Saturday - 7:00-10:00 P.M.
Sunday - 6:00-10:00 P.M.
Late Night: Monday thru Thursday - 10:35 P.M.-1:05 A.M.
Friday - 10:35 P.M.-1:35 A.M.
Saturday - 10:30 P.M.-12:00 Midnight
News: Monday thru Friday - 6:30-7:00 A.M.,
7:00-9:00 A.M. and 6:30-7:00 P.M.
Saturday - 7:00-9:00 A.M. and 6:30-7:00 P.M.
Sunday - 9:00-10:00 A.M., 11:00 A.M.-12:00
Noon and 6:30-7:00 P.M.
Daytime: Monday thru Friday - 10:00-11:00 A.M. and
1:00-3:00 P.M.
Saturday - 10:00 A.M.-12:30 P.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, video
distribution system operated by a common carrier 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 preexisting 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
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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 set forth herein, 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.
(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 twenty (20) 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 agrees
not to broadcast more than ten (10) 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").
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(d) Notwithstanding the foregoing provisions of
subparagraphs (b) and (c) above and without limiting the provisions thereof,
Station agrees that, in any one (1) month period during a Broadcast Year,
Station's preemptions of NBC Prime Time programs and NBC Sports Programming
shall not exceed 20% of, respectively, the Prime Time Preemption Amount and the
Sports Preemption Amount, unless otherwise consistent with Station's
programming practice.
(e) In the event that NBC replaces "The Other Side,"
Station shall clear such replacement NBC programming upon the expiration or
termination (without giving effect to any renewal term) of any of Station's
existing contractual commitments for non-NBC programming broadcast by Station
Monday through Friday during the hours of 9:00 A.M - 3:00 P.M. Such additional
one (1) hour shall then become part of the 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 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) In the event that Station preempts or fails to clear
or broadcast any NBC programming as provided herein for any reason other than:
(i) the live coverage of local news events, (ii) as permitted by Paragraphs
3(b), 3(c) or 3(d) above, (iii) force majeure as provided for in Paragraph 11
below, or (iv) because: (A) the programming is delivered in a form which does
not meet accepted standards of good engineering practice; (B) the programming
does not comply with the rules and regulations of the FCC; or (C) Station
reasonably believes that such programming would not meet prevailing
contemporary standards of good taste in its community of license, then, 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
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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. Without limiting or affecting any other
determination of a material breach hereunder, 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 (x) 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 (y) unless the breach is cured within such thirty (30) day period,
terminate this Agreement. Station acknowledges that NBC programming previously
broadcast by Station has been consistent with the standards set forth in the
foregoing clause (C); Station also agrees that Station's reasonable belief that
an NBC program does not meet such standards will be based on a substantial
difference in such program's style and content from NBC programs previously
broadcast by Station, unless the relevant standards in the Station's community
of license have changed.
(c) With respect to programs offered or already
contracted for pursuant to this Agreement, nothing herein contained shall be
construed to prevent or hinder Licensee 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 which, 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 reason therefor, at least three (3) weeks in
advance of the scheduled broadcast, or as soon thereafter as possible
(including an explanation of the cause for any lesser notice). Station confirms
that its determination that a substitute program is of greater local or
national importance shall be based on Station's reasonable good faith judgment.
5. Station Compensation. In further consideration of Station's
performance of its obligations under this Agreement NBC shall compensate
Station as follows:
(a) (i) NBC shall pay Station for Station's broadcast of
each network sponsored program or portion thereof (excellent 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 $680; by
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(B) The percentage set forth in the compensation matrix
table attached hereto as Exhibit 3 (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.
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(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 9 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"). 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) As part of NBC's customary annual performance
evaluation of the NBC affiliated broadcast television stations
(collectively, the "NBC Affiliates"), NBC may decrease or increase the
Pool (as defined below) only by a percentage amount which is equal to
or less than the corresponding percentage decrease or increase, as
applicable, in the Adult Audience Delivery (as defined below) during
the prior Broadcast Year as compared to the Adult Audience Delivery
during the Broadcast Year immediately preceding such prior Broadcast
Year. Notwithstanding the foregoing, (A) any such adjustment in the
amount of the Pool for any calendar year during the term of this
Agreement shall not exceed five percent (5%) of the amount of the Pool
for the prior calendar year, and (B) the 1994 Pool amount shall remain
in effect during calendar years 1995 and 1996. As used herein, "Pool"
shall mean, with respect to any calendar year, the aggregate of the
Network Station Rates for all NBC Affiliates during such calendar
year, and "Adult Audience Delivery," with respect to any Broadcast
Year, shall mean the Adult 18-49 audience delivery of all NBC
Affiliates as measured by the average of the NSI Sweeps in November,
February and May during such Broadcast Year or such other demographic
that becomes the primary selling demographic for Prime Time by the NBC
Television Network; provided that in the event NBC changes its Primary
Selling Demographic with respect to a Broadcast
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Year during the term hereof, NBC shall announce such change during
July preceding the commencement of such Broadcast Year.
Subject to the limitations set forth below, NBC reserves the
right as part of a general rate revision to reevaluate and change at
any time: (A) the Network Station Rate set forth in subparagraph
5(a)(i)(A) above, (B) the percentages set forth in the Compensation
Table, or (C) 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. Notwithstanding the
foregoing, NBC agrees that:
(X) In no event during the term of this Agreement shall
the percentage of the Pool represented by Station's Network
Station Rate (the "Station's Pool Percentage") be reduced to
an amount which will result in (aa) if Station's Rate Index
(as defined below) is less than 1 as of the date hereof, a
Rate Index less than Station's Rate Index as of the date
hereof or (bb) if Station's Rate Index is 1 or more as of the
date hereof, a Rate Index of less than 1; and provided
further, that NBC shall be permitted to reduce Station's
Network Station Rate pursuant to subparagraph 5(d)(ii) below.
As used herein, "Rate Index" shall mean the number obtained by
dividing (cc) Station's Pool Percentage by (dd) Station's "NBC
Percent" (i.e. the relative contribution to NBC (expressed as
a percentage) as determined in NBC's customary annual
performance evaluation of all NBC Affiliates);
(Y) the Compensation Table attached hereto as Exhibit B
shall be modified during the term of this Agreement only as
mutually agreed to by NBC and Station or as may be recommended
by the NBC Affiliate Board; and
(Z) 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 that any
such increase in the waiver Percentage shall be subject to
review by the NBC Affiliate Board.
(ii) Notwithstanding the foregoing provisions of
subparagraph 5(d)(i), Station's Network Station Rate shall remain at
$680 with respect to calendar years 1995 and 1996, subject to the
provisions of subparagraph 5(d)(iii) below. Commencing in 1997 and for
each subsequent calendar year during the initial term of the
Agreement, the Station's Network Station Rate shall be adjusted on an
annual basis based on the Station's average of the consecutive
November, February and May average X.X. Xxxxxxx Co. Prime Time Ratings
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for Adult 18-49 viewers in thousands ("Prime Time Audience Delivery")
for the preceding full Broadcast Year ended prior to the date of such
adjustment. Accordingly, subject to the provisions of subparagraph
5(d)(iii) below and subject to Station's compliance with each of its
commitments regarding clearance and preemption of NBC programming as
set forth in this Agreement and notwithstanding the foregoing
provisions of subparagraph 5(d)(i), commencing in calendar year 1997,
NBC shall increase the Station's Network Station Rate by the
appropriate amount (if any) so that the resulting increased Network
Station Rate exceeds $680 by a percentage which equals the difference
of (A) Station's Prime Time Audience Delivery for the preceding full
Broadcast Year minus (B) either (1) with respect to the adjustment
which may be made in calendar year 1997, Station's Prime Time Audience
Delivery as a CBS affiliate for the 1993-1994 Broadcast Year or (2)
with respect to the adjustments which may be made in each subsequent
calendar year during the initial term of this Agreement, the higher of
(x) Station's Prime Time Audience Delivery as a CBS affiliate for the
1993-1994 Broadcast Year or (y) the Station's Prime Time Audience
Delivery as an NBC affiliate for the 1995-96 Broadcast Year.
(iii) 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 (A) materially reduces its local news program schedule as set
forth in Exhibit C or (B) does not fulfill 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.
6. 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 E
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
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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 preemptions
permitted under Paragraphs 3(b), 3(c) or 3(d) hereof, or other form of benefit.
The foregoing provisions of this Paragraph 6 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.
7. 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.
8. 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 any 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
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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 ocher 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 8, 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.
9. 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.
10. 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.
11. 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
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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 xxxxxxx, 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 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.
12. 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.
13. 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)
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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.
14. 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 (e.g. changing to a
"home shopping" channel 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.
15. 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. 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 Station (including any assignment or
transfer referred to in Paragraph 15(c) below) 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 injunction or similar relief from any court of competent
jurisdiction restraining Station from committing any violation of this
Paragraph 15(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 FCC Rules, NBC shall have
the right to terminate this Agreement in the event of any assignment or
transfer. Station agrees, except in the case of "short form" assignments or
transfers of control, that promptly following Station's notice to NBC, Station
(i) shall arrange for a meeting between NBC and the proposed assignee or
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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 to Station under this
Agreement with respect to obligations arising after the effective date of such
assignment and assumption.
16. 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.
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17. 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-Duplication
Agreement") 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 17(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 "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.
18. Remedies for Unauthorized Copying and Transmission. If Station
violates any of the provisions set forth in Paragraphs 16 and 17 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.
19. 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).
20. Waiver. A waiver by either of the parties hereto of a breach of
any provision of this Agreement shall not be deemed to
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constitute a waiver of any preceding or subsequent breach of the same provision
or any other provision hereof.
21. 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 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.
22. Captions. The captions of the paragraphs in this Agreement are
for convenience only and shall not in any way affect the interpretation hereof.
23. 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-Duplication
Amendment under FCC Rules Section 76.92. 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.
24. 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.
25. 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.
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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: [ILLEGIBLE]
------------------------------------
AGREED:
WEYI ASSOCIATE
By: [ILLEGIBLE]
-----------------------------------
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