Exhibit 10.12
Advertising Insertion Agreement (Xxxxxx Cable Company)
ADVERTISING INSERTION AGREEMENT
THIS AGREEMENT made and entered into as of this the 3rd day of May
2000, by and between Avalon Media Group, Inc., a Tennessee Corporation
(hereinafter referred to as "AMG") and Xxxxxx Cable Company (hereinafter
referred to collectively as "Operator").
W I T N E S S E T H:
WHEREAS, Operator owns and operates one or more cable television
systems serving Houston County, GA and Xxxx Co., GA, and its surrounding
communities (hereinafter referred to as the "System")
WHEREAS, AMG desires to acquire the right to sell advertising time on
certain cable television channels on Operator's System.
NOW THEREFORE, in consideration of the premises and of the exchange of
mutual promises, covenants, representations and warranties herein contained, the
receipt of which are specifically acknowledged by the parties hereto, said
parties intending to be bound thereby, do hereby covenant and agree as follows:
1. SELL OF ADVERTISING TIME
Operator hereby agrees with AMG, and by this Agreement does hereby
grant to AMG, subject to the terms and conditions hereinafter set forth, the
exclusive right to market and sell all advertising time made available to
Operator for insertion, and to insert commercials and advertisements on all
cable television channels on Operator's System that now or may hereinafter carry
the signals set forth on Exhibit A hereto. Operator also agrees and does hereby
grant to AMG the right to market, sell and insert commercials on any and all
additional cable television channels that carry signals not listed on Exhibit A,
but that Operator may hereinafter offer on its System to its subscribers during
the term of this Agreement.
2. EQUIPMENT
AMG shall install and maintain all equipment necessary to play and
insert commercials at the head-end(s) of Operator's System for the purpose of
inserting and transmitting advertising messages to Operator's subscribers.
Operator will make available at its head-end(s) such space as is reasonably
necessary for the installation and operation of such equipment and shall provide
access to AMG upon reasonable notice for equipment repairs, maintenance and any
other activity necessary to perform the purposes of this Agreement.
3. INTERRUPTION OF SERVICE
Any failure, interruption or degradation in transmitting cable
programming over the System in which advertising messages have been or may be
inserted, either in whole or in part, resulting from technical difficulties or
failure of any of Operator's equipment will be promptly brought to the attention
of Operator and Operator shall use its reasonable efforts to correct the same as
soon as reasonably possible. AMG specifically understands the Operator may
deliver some or all of the said programming as part of a tier service or in a
scrambled format and agrees that such tiering or scrambling shall not be
considered degradation of signal quality as compared to transmission of other
System channels. Operator shall not be
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liable to AMG for any failure, interruption or degradation in System
programming.
4. INDEMNITY
AMG shall indemnify and hold Operator harmless from and against any and
all claims, damage or liability, arising out of this Agreement and adjudicated
to be caused by AMG, including counsel fees and the cost and expense of any
legal action, for (i) libel, slander, invasion of privacy, improper trade
practices, illegal competition, infringement of copyright of licenses, or any
other wrongful conduct, (ii) any violation of any laws or regulations, federal,
state, or local, by AMG including but not limited to resulting from the
transmission of material supplied or produced by AMG not withstanding any prior
review or approval by Operator of any material inserted by AMG or (iii) any
breach of this Agreement by AMG.
Operator shall indemnify and hold AMG harmless from and against any and
all claims, damage or liability, arising out of this Agreement and adjudicated
to be caused by Operator, including counsel fees and the cost and expense of any
legal action for (i) libel, slander, invasion of privacy, improper trade
practices, illegal competition, infringement of copyright of licenses, or any
other wrongful conduct, (ii) any violation of any laws or regulations, federal,
state, or local, by Operator including but not limited to resulting from the
transmission of material supplied or produced by Operator not withstanding any
prior review or approval by AMG of any material inserted by AMG or Operator or,
(iii) any breach of this Agreement by Operator.
5. LICENSES OF OPERATOR
This Agreement is subject to the terms of all licenses and franchises
held by Operator and to all applicable federal, state, and municipal laws,
regulations, and decisions, either presently in existence or enacted, made, or
enforced hereafter, including the regulations and action of all governmental
administrative agencies and commissions having jurisdiction.
6. LICENSES OF AMG: FORM OF CONTRACT
(a) AMG agrees that it will obtain any necessary local business
licenses required for the sale and insertion of advertisements as described
herein and if any other license is required, will promptly obtain same a it may
become necessary. AMG represents and warrants that it has or will have the right
to utilize for transmission any advertising materials so inserted.
(b) AMG covenants and agrees that (i) it shall submit to Operator for
its approval any form of contract used to sell advertising time on Operator's
System to its customers; and (ii) all sales of advertising time shall be made
pursuant to such approved form of contract without material modification
thereto.
7. NOTICES
Any notice or demand under the terms of this Agreement, which must or
may be given or made by a party hereto shall be made in writing ad shall be
delivered by hand or by certified mail, return receipt requested, addressed to
the respective parties as follows:
OPERATOR: XXXXXX XXXXXX
XXXXXX CABLE COMPANY
0000 XXXXXXXXX XXXX
XXXXXX XXXXXX, XX 00000
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With Copy to: __________________________
__________________________
__________________________
__________________________
TO AMG: Avalon Media Group, Inc.
0000 Xxxxxxxxxxx Xxxx, Xxxxx 0000
Xxxxxxxxxxx, XX 00000
Attn: Xxxxx X. Xxxxxxx
With Copy to: __________________________
__________________________
__________________________
__________________________
8. AMOUNT AND METHOD OF PAYMENT
(a) For and in consideration of the rights granted to AMG as provided
herein, AMG will pay Operator 25% (twenty-five percent) of the gross collected
monthly advertising sales' revenues generated in Operator's System. For purposes
hereof, "gross collected monthly advertising sales' revenues" shall mean all
charges including but not limited to monetary charges and the full retail value
of any property, tangible or intangible, traded or exchanged by AMG in lieu of
monies received for advertising time.
(b) Not withstanding the foregoing, sales of advertising time with
respect to programming on local channels for which a special fee is paid by
Operator to program suppliers to the System shall be subject to separate terms
to be agreed upon by AMG and Operator.
(c) During the term hereof, AMG will supply to Operator reports with
respect to sales of advertising avails in Operator's System by the fifteenth day
of each month following the month the advertising avails were sold together with
it check payable to Operator for the amount due under subparagraph (a) hereof.
(d) In the event any amount payable to Operator hereunder is not paid
when due, said sum shall bear interest at the rate of 1 1/2% per month until
such sum is paid. Upon request, Operator may inspect the books and records of
AMG pertaining to the sales revenues of Operator's System under this Agreement,
at any time during normal business hours at the AMG office designated herein
above.
9. NON-AGENCY
The parties hereto acknowledge and agree that neither is the agent for
the other nor does either have the right to bind the other pursuant to this
Agreement with regard to any third parties.
10. TERM OF AGREEMENT
This Agreement shall be for a period of five (5) years from the date
hereof unless sooner terminated as provided herein.
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In the event AMG has satisfactorily performed its obligations under
this Agreement, AMG may renew this Agreement for an additional one (1) year term
upon giving Operator written notice of intent to renew within 30 days of the
expiration of the five (50 year period described above.
11. TERMINATION
(a) This Agreement may be terminated for cause by Operator by giving
thirty (30) days written notice to AMG in the event AMG fails to
cure within 30 days from the date of default any of the for cause
Termination Events as defined in this paragraph 11.
(b) Termination Events are defined and limited to the following:
(1) The filing of a petition for bankruptcy or for
reorganization under any state or federal bankruptcy or similar laws with
respect to AMG, AMG making an assignment for the benefit of its creditors, the
appointment of any receiver, trustee, liquidator or custodian for all or a
substantial part of AMG's property, and the same shall not have been vacated
within thirty (30) days.
(2) A breach of the terms of this Agreement by AMG which breach
is not cured within thirty (30) days after the occurrence thereof.
(3) A violation by AMG of any of Operator's franchise
agreements.
(4) AMG's failure to account and remit to Operator within sixty
(60) days after the end of each month, the gross monthly advertising sales
payments provided for herein.
12. ENTIRE AGREEMENT
This Agreement and the attachments hereto set forth the entire
understanding of the parties and any oral or written communications not
contained in this Agreement shall have no force or effect. This Agreement may
only be modified by written agreement signed by both parties.
13. REPRESENTATIONS AND WARRANTIES
(a) AMG hereby represents and warrants to Operator that advertising
inserted in the System will not violate any state, federal or local laws or
regulations and will be in compliance with all state, federal and local
guidelines, if any. AMG further covenants, agrees and warrants to Operator that
the advertising inserted in the System pursuant to this Agreement will contain
no libelous or slanderous material and will not violate any copyright, right of
privacy or literacy or dramatic right of any person or any franchise or other
agreement of Operator.
(b) AMG and Operator hereby represent and warrant to the other that
they each have the full right, power and authority to enter into this Agreement
and that the same has been duly executed and delivered.
14. WAIVER
The waiver of either party of a breach of violation of any provision of
this Agreement shall not operate or be construed as a waiver of any subsequent
breach or violation thereof.
15. SUCCESSORS AND ASSIGNS
The provisions of this Agreement shall be binding upon any assigns or
successors in interest except
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that AMG may not assign this Agreement without the written consent of Operator.
16. SITUS
This Agreement shall be construed and interpreted in accordance with
the laws of the State of Tennessee.
IN WITNESS WHEREOF, the undersigned have executed this Agreement as of
the day and year first above written.
XXXXXX CABLE COMPANY AVALON MEDIA GROUP, INC
BY: /s/ XXXXXX XXXXXX BY: /s/ XXXXX XXXXXXX
---------------------------- ----------------------------
ITS: VICE PRESIDENT ITS: PRESIDENT
---------------------------- ----------------------------
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EXHIBIT A
1. XXXX
0. CNN
3. TNT
4. USA
5. TNN
6. HEADLINE NEWS
7. MTV
8. NICKELODEON
9. DISCOVERY
10. SPORTS SOUTH
11. VHI
12. A&E
13. FAMILY
14. WEATHER
15. CNBC
16. LIFETIME
17. CMT
18. COMEDY
19. E!
20. FX
21. HGTV
22. TRAVEL
23. HISTORY CHANNEL
24. LEARNING CHANNEL
25. ANIMAL PLANET
26. AMERICAN MOVIE CLASSICS
27. NOSTALGIA CHANNEL
28. SCI-FI NETWORK
29. BET
30. ESPN2
31. (MISCELLANEOUS REGIONAL SPORTS NETWORKS)
32. (MISCELLANEOUS RELIGIOUS NETWORKS)
33. GOLF NETWORK
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