EXHIBIT 10.4
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[NBC TV NETWORK LETTERHEAD]
August 28, 1995
Heritage Media Corp.
c/o WNNE-TV
XXX 0000
Xxxxx Xxxxx Xxxxxxxx, Xxxxxxx 00000
RE: WNNE-TV (Hartford, Vermont)
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Gentlemen:
The following shall comprise the agreement between us for the
affiliation of your television broadcasting station WNNE-TV (you and WNNE-TV
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.,
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New York City time on the list day of January, 1995, 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.
2. NBC Programming.
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(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 A.M.
News: Monday thru Friday - 5:30-6:00 A.M.,
7:00-9:00 A.M. and 6:30-7:00 P.M.
Saturday - 6:30-7:00 P.M.
Sunday - 9:00-11:00 A.M. and 6:30-
7:00 P.M.
Daytime: Monday thru Friday - 11:00 A.M.-12:00
Noon and 1:00 P.M. - 3:00 P.M.
Saturday - 10:00 A.M.-11:00 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 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 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.
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(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.
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(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
eighty (80) 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 I 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 fifteen (15) 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").
(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) Throughout the term of this Agreement, 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
during the hours 9:00 A.M.-4:00 P.M., Monday through Friday, and for the
remaining term of this Agreement, Station agrees to give good faith
consideration to the clearance of an additional one (1) hour of XXX xxxxxxx
programming Monday through Friday during such 9:00 A.M.-4:00 P.M. time period so
that Station would clear up to a maximum of four (4) hours of XXX Xxxxxxx
weekday programming during such hours. In the event Station agrees to clear
such additional one (1) hour of NBC Monday through Friday Daytime Programming,
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.
(f) Throughout the term of this Agreement, upon 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 on
Saturday mornings and for the remaining term of this Agreement, Station agrees
to give good faith consideration to clearance of "Saturday Today" (or any
replacement programming) in the Live Time Period for such programming as
scheduled by NBC. In the event that Station clears "Saturday Today" (or any
replacement programming), "Saturday Today" (or any replacement programming)
shall then become part of the Saturday News Programmed Time Period for purposes
of Paragraphs 2(b) and 3(a) hereof.
(g) Throughout the term of this Agreement, upon the expiration or
termination (without giving effect to any renewal term) of any of Station's
contractual commitments for non-NBC programming broadcast by Station on Saturday
mornings and for the remaining term of this Agreement, Station agrees to give
good faith consideration to the clearance of additional one-half hours of NBC
Saturday Daytime programming so that Station would clear up to a maximum of two
and one-half (2 1/2)
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hours of NBC Saturday Daytime programming. In the event Station agrees to clear
such additional one-half hours of NBC Saturday Daytime Programming, such
additional one-half hours shall then become part of the Saturday Daytime
Programmed Time Period for purposes of Paragraphs 2(b) and 3(a) hereof.
4. Preemptions.
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(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 (v)
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 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. 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
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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. No Station Compensation. Station's agreements hereunder are in
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consideration of NBC's agreement to make the programming referred to herein
available to Station on the terms and conditions set forth herein. Accordingly,
Station shall not be entitled to any monetary compensation in connection with
its broadcast of NBC programming as provided for herein. The parties
acknowledge that NBC's agreements to Station hereunder are also 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 B and C 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 B or (B) does not fulfill
such commitments as are set forth in Exhibit C in all years during the term of
this Agreement, NBC reserves the right to terminate this Agreement on ninety
(90) days' prior written notice to Station.
6. Local Commercial Announcements. Subject to the following
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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 D 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 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
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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
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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
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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 Federal Communications Commission ("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 addition to
any other remedies hereunder or at law, assess damages against Station in an
amount which is appropriate in view of the nature of the specific violation.
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
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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
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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
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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 tending to degrade him or her in
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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,
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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
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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.
14. Change in Operations. Station represents and warrants that it
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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.
15. Assignment.
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(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 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
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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
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
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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,
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further, that at such time as NBC adopts a term in substitution for the term
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"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.
17. Limitations on Retransmission Consent. In consideration of the
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grant by NBC to Station of the non-duplication protection provided in recent
amendment to this Agreement of even date herewith
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with respect to non-duplication protection under FCC Rules Section 76.92 (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 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
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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
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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
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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.
21. Notices. Any notices hereunder shall be in writing and shall be
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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
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for convenience only and shall not in any way affect the interpretation hereof.
23. Entire Agreement. The foregoing constitutes the entire agreement
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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 may not be changed, modified, renewed, extended or
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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
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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.
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:
HERITAGE MEDIA CORP.
By:/s/ [ILLEGIBLE]
---------------
10
EXHIBIT "A"
-----------
ECONOMIC ADJUSTMENTS
Adjustments due to a preemption of an NBC program referred to in
Paragraph 4(b) of the Agreement will be calculated using the following two
factors:
1. "Station's NBC delivery percentage" which is the Station's
audience contribution to NBC Network programs expressed as a percentage. (This
is the same NBC delivery percentage used in the annual compensation evaluation.)
2. "Program revenue" which is the average NBC Network revenue for the
preempted program. (NOTE: Program revenue will be the average revenue per
program based on total annual revenue for that program, except revenue for each
prime time program, which will be adjusted for the day of the week and the
quarter in which the program is aired.)
Station's NBC delivery percentage is multiplied by the program revenue
to yield the dollar adjustment. An example:
Station preempts "Program X"
Station's NBC Network delivery % = 2.1%
NBC'S revenue for "Program X" = $900,000
$900,000 x 2.1% = $18,900 payment to NBC
EXHIBIT "B"
-----------
WNNE-TV NEWS PROGRAMS
Monday - Friday
---------------
12:00 Noon-12:30 P.M.
6:00-6:30 P.M.
11:00-11:35 P.M.
Saturday
--------
6:00-6:30 P.M.
11:00-11:30 P.M.
EXHIBIT "C"
-----------
January 4, 1995
Xx. Xxxxxx X. Xxxxxxx
President & Gen. Mgr.
WPTZ-TV
0 Xxxxxxxxxx Xxxxx
Xxxxxxxxxxx, XX 00000
Dear Xxx:
Enclosed is a supply of forms for the 1995 2,600 Promotion Plan. As we did last
year, you will have the added benefit of being able to count some or all of your
compensation GRP's towards a primetime promo swap depending on which plan you
choose with the Advertising & Promotion Department.
If you have any questions, please feel free to contact me.
Sincerely,
/s/ [ILLEGIBLE]
ML/me
cc: Xxxx Xxxxxxx
Attachments
-------------------------------------------------------------------------------
1995 PRIMETIME PROMOTION
PLANNING WORKSHEET
-------------------------------------------------------------------------------
PLEASE RETURN COMPLETED FORM
TO YOUR REGIONAL DIRECTOR'S ATTENTION AT
FAX NO. (000) 000-0000
CALLS/MARKET: REGIONAL DIRECTOR:
------------------------------
PROMOTION PLAN ESTIMATE
------------------------------
HH GRP'S
2600
FIRST QUARTER GRP'S ______________
SECOND QUARTER GRP'S ______________
THIRD QUARTER GRP'S ______________
FOURTH QUARTER GRP'S ______________
TOTAL AMOUNT GRP'S ( )
--------------
TOTAL GRP'S
(OVER)/UNDER TARGET ==============
COMMENTS:
NOTE THAT THE GRP'S PER QUARTER SHOULD BE WITHIN A RANGE OF MINIMUM OF 325
HH GRP'S TO A MAXIMUM OF 975 HH GRP'S
-------------------------------------------------------------------------------
1995 PRIMETIME PROMOTION
-------------------------------------------------------------------------------
PLEASE RETURN COMPLETED FORM NO LATER THAN THE
15TH OF THE MONTH FOLLOWING THE END OF EACH QUARTER
TO YOUR REGIONAL DIRECTOR'S ATTENTION AT
FAX NO. (000) 000-0000
CALLS/MARKET: REGIONAL DIRECTOR:
--------------------------
FIRST QUARTER SUBMISSION
DUE
APRIL 15, 1995
--------------------------
HH GRP'S
--------
TOTAL AMOUNT GRP'S 2600
FIRST QUARTER DELIVERY --------
BALANCE TO GO ========
SIGNED:
NAME:
TITLE:
NOTE THAT THE GRP'S PER QUARTER SHOULD BE WITHIN A
RANGE OF MINIMUM OF 325 HH GRP'S TO A MAXIMUM OF 975 HH GRP'S
-------------------------------------------------------------------------------
1995 PRIMETIME PROMOTION
-------------------------------------------------------------------------------
PLEASE RETURN COMPLETED FORM NO LATER THAN THE
15TH OF THE MONTH FOLLOWING THE END OF EACH QUARTER
TO YOUR REGIONAL DIRECTOR'S ATTENTION AT
FAX NO. (000) 000-0000
CALLS/MARKET: REGIONAL DIRECTOR:
---------------------------
SECOND QUARTER SUBMISSION
DUE
JULY 15, 1995
---------------------------
HH GRP'S
--------
TOTAL AMOUNT GRP'S 2600
FIRST QUARTER DELIVERY ________
SECOND QUARTER DELIVERY
BALANCE TO GO ========
SIGNED:
NAME:
TITLE:
NOTE THAT THE GRP'S PER QUARTER SHOULD BE WITHIN A
RANGE OF MINIMUM OF 325 HH GRP'S TO A MAXIMUM OF 975 HH GRP'S
--------------------------------------------------------------------------------
1995 PRIMETIME PROMOTION
--------------------------------------------------------------------------------
PLEASE RETURN COMPLETED FORM NO LATER THAN THE
15TH OF THE MONTH FOLLOWING THE END OF EACH QUARTER
TO YOUR REGIONAL DIRECTOR'S ATTENTION AT
FAX NO. (000) 000-0000
CALLS/MARKET: REGIONAL DIRECTOR:
------------------------
THIRD QUARTER SUBMISSION
DUE
OCTOBER 15, 1995
------------------------
HH GRP'S
--------
TOTAL AMOUNT GRP'S 2600
FIRST QUARTER DELIVERY
SECOND QUARTER DELIVERY
THIRD QUARTER DELIVERY
TOTAL GRP'S TO DATE ( )
--------
BALANCE TO GO ========
SIGNED:
NAME:
TITLE:
NOTE THAT THE GRP'S PER QUARTER SHOULD BE WITHIN A
RANGE OF MINIMUM OF 325 HH GRP'S TO A MAXIMUM OF 975 HH GRP'S
1995 PRIMETIME PROMOTION
--------------------------
PLEASE RETURN COMPLETED FORM NO LATER THAN THE
15TH OF THE MONTH FOLLOWING THE END OF EACH QUARTER
TO YOUR REGIONAL DIRECTOR'S ATTENTION AT
FAX NO. (000) 000-0000
CALLS/MARKET: REGIONAL DIRECTOR:
---------------------------
FOURTH QUARTER SUBMISSION
DUE
JANUARY 15, 1995
---------------------------
HH GRP'S
--------
TOTAL AMOUNT GRP'S 2600
FIRST QUARTER DELIVERY
SECOND QUARTER DELIVERY
THIRD QUARTER DELIVERY
FOURTH QUARTER DELIVERY
TOTAL GRP'S TO DATE ( )
-----------
AMOUNT (OVER)/UNDER
ANNUAL TARGET
SIGNED:
NAME:
TITLE:
NOTE THAT THE GRP'S PER QUARTER SHOULD BE WITHIN A
RANGE OF MINIMUM OF 325 HH GRP'S TO A MAXIMUM OF 975 HH GRP'S
EXHIBIT "D"
LOCAL INVENTORY
REGULAR SCHEDULED PROGRAMS
Weekly Weekly
Units Minutes
------ --------
Primetime 106 53'
Late Night 215 107' 30"
Daytime 115 57' 30"
News 219 109' 30"
