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EXHIBIT 10.17
PROGRAM LICENSE AGREEMENT
THIS PROGRAM LICENSE AGREEMENT dated as of November 13, 1998 between
NATIONAL INTERFAITH CABLE COALITION, INC., a Maryland not-for-profit corporation
("NICC") whose address is 00 Xxxxxxx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, and
ODYSSEY HOLDINGS, L.L.C., a Delaware limited liability company ("Licensee"),
whose address is 00 Xxxxxxx Xxxxx, 0xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000.
The parties hereby agree as follows:
1. In consideration of the sum of ten ($10) dollars paid to NICC and
for other good and valuable consideration, as more fully set forth pursuant to
an agreement between the parties dated as of the date hereof (the "Company
Agreement"), NICC hereby grants to Licensee the rights in the United States, its
territories and possessions to exhibit by means of traditional cable or digital
transmission or by any other means or method of television transmission now or
hereafter known, including over-the-air broadcast, (to the extent NICC possesses
such rights pursuant to the rights agreements with owners of programs furnished
to NICC), the programming set forth in Schedule A annexed hereto and made a part
hereof, (the "Programs") on THE ODYSSEY CHANNEL (or successor thereto) in
accordance with the terms hereinbelow set forth. As used herein "Programs" shall
have the same meaning as "NICC Programming" in the Company Agreement. With
respect to over-the-air programming, Licensee will pay any required residual or
step-up payments for such over-the-air use. Schedule A shall be amended from
time to time by adding additional programs, their respective terms of license,
and their license fees, if
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any. License fees for programs in addition to the minimum number of hours of
programming to be delivered by NICC for the annual program license fee, if any,
may be funded in whole or in part by Licensee for license fees to be agreed
upon.
The rights granted under the License include, without limitation, the
following:
(i) The right to use the title or titles by which each Program
is or may be known or identified.
(ii) The right to use and perform any and all music, lyrics,
and musical compositions contained in each Program and/or recorded in
the soundtrack thereof in connection with the distribution,
exhibitions, advertising, publicizing and exploitation of such Program.
(iii) The right to edit the videotapes of the Programs but
only to the extent necessary for purposes of timing and commercial
insertions, provided that Licensee will not edit out the copyright
notice or credits.
(iv) The right to publicize and advertise each Program
throughout the Territory during the Term, including without limitation,
the right in the Territory for the purpose of advertising, publicizing
and exploiting each Program to:
(A) Literary Material: Publish and to license and authorize
others to publish any synopses, summaries, adaptations, and excerpts
from each Program and from any literary or dramatic material included
in such Program in newspapers, magazines, trade periodicals, booklets,
press books and any other
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periodicals and in all other media of advertising and publicity not
exceeding 2,500 words in length.
(B) Radio and Television: Broadcast by radio and television
for advertising purposes and to license and authorize others to so
broadcast any parts or portions of each Program not exceeding five (5)
minutes in length (unless otherwise notified by NICC) and any literary
or dramatic material included in the Program or upon which the Program
was based alone or in conjunction with other literary, dramatic or
musical material.
(C) Names and Likenesses: Use and license and authorize others
to use the name, physical likeness and voice (and any simulations or
reproduction thereof) of any party rendering services in connection
with each Program for the purpose of advertising, publicizing or
exploiting the Program, subject to NICC's prior approval, not to be
unreasonably withheld.
(D) Use of Name and Trademarks: To use Licensee's name and
trademark on the positive prints of the Program and in trailers
thereof, and in all advertising and publicity relating thereto, in such
a manner, position, form and substance as Licensee may elect.
(E) Commercials: To permit commercial messages to be exhibited
during and after the exhibition of each Program.
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(F) Trailers: To cause trailers for the Programs and prints
thereof to be manufactured, exhibited and distributed by every means,
medium, process, method and device now or hereafter known.
The License shall be exclusive to Licensee during the Term against all
forms of exhibition and distribution in the Territory through any medium, means
or instrumentalities now or hereafter known, including, but not limited to,
cable, pay-per-view, over-the-air broadcast and super-stations.
Notwithstanding the foregoing, the parties recognize that some of the
Programs furnished pursuant to this Agreement may be furnished without cost to
NICC or may be substantially subsidized by faith groups. In this regard, it is
agreed that with respect to programs provided by the faith groups without cost
to NICC, or for which NICC pays less than one-third of the production costs of
such programs, the rights to such free or heavily subsidized programs so
obtained by NICC may be non-exclusive if NICC's rights to such programs are
non-exclusive.
The Term of this Agreement shall commence on the Effective Date hereof
and shall terminate when the Company Agreement is terminated.
Pursuant to the terms of the Company Agreement, Licensee will advance
to NICC an annual program license fee of $5 million dollars, which amount will
be adjusted each year according to the terms of the Company Agreement. The
program license fee shall be payable to NICC in equal quarterly installments on
the first day of each contract or calendar quarterly period as mutually agreed,
commencing on the date of execution of this Agreement or January 1, 1999. The
advance will be treated as an advance payment against Programs undertaken to be
produced
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or acquired by NICC and licensed to Licensee after the closing of the Company
Agreement. NICC shall not use the advance or any portion thereof for any
purpose other than to produce and/or acquire Programs and any activities
directly or indirectly related thereto (e.g., obtaining E&O insurance and
developing new programs). NICC shall furnish no less than two hundred (200)
hours of programming per year in consideration of license fees paid by Licensor
pursuant to the Company Agreement. Programming shall comply with Licensee's
technical standards and quality requirements for programs of comparable genre
and budget. Such programming shall be selected by NICC in consultation with
Licensee, a sufficient number of days prior to the calendar quarter in which
such programming is to be exhibited as mutually determined by the parties. In
the event NICC fails to deliver any programming in accordance with the terms of
this Agreement (e.g., fails to deliver any or sufficient programming, fails to
deliver the programming in a timely manner, such programming does not meet
Licensee's technical standards or the delivery or use of such programming
violates the rights of a third party) then, in addition to all of Licensee's
rights and remedies under this Agreement, Licensee shall have the right to
substitute for such NICC programming any programming it chooses in its sole
discretion.
2. NICC represents that it has the right and authority to grant the
rights granted to Licensee hereunder, and the license to televise all of the
Programs with the right to sublicense those rights to Licensee as herein
provided. NICC further represents and warrants that (i) Licensee's exercise of
its rights hereunder will not violate or infringe any right of any third party,
(ii) each of the Programs is, or upon delivery will be, completely finished,
fully edited and titled and fully synchronized with dialogue, sound and music
and in all respects ready and of a
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quality, both artistic and technical, adequate for commercial public exhibition;
and (iii) all claims and rights of owners of copyright or other rights
appearing, used or recorded in each Program have been, or prior to delivery will
be, fully paid and discharged.
3. The respective terms (unless earlier terminated as provided in
Paragraph 9 below) of the licenses for the Programs are set forth with respect
to each such Program on Schedule A. Upon the expiration of the term for a
particular Program, the license herein shall terminate with respect to that
Program.
4. For each Program delivered by NICC to Licensee hereunder, NICC shall
furnish the Program materials specified in Schedule B, appended hereto and made
a part hereof at least thirty (30) days prior to the initial scheduled date of
telecast; provided Licensee has notified NICC of such date. Such materials, if
broadcast or duplicating materials, will be of network quality and in a format
designated in Schedule B. Licensee will examine the materials, and if they are
technically defective, Licensee will return the materials to NICC at NICC's
cost, and NICC will furnish acceptable replacement materials. NICC will be
responsible for all costs associated with the creation and manufacture of the
Program materials.
5. To the extent there are any conflicts between the terms and
conditions of this Program License Agreement and the terms and conditions of the
Company Agreement, the terms and conditions of the Company Agreement will
prevail.
6. All rights in and to the Programs not herein specifically licensed
to Licensee, are reserved to NICC for its use and disposition.
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7. A. Licensee agrees to indemnify, defend and hold harmless NICC and
its officers, directors, employees, agents, licensees, successors and assigns,
from and against any losses, judgments, settlements, damages, costs and expenses
(including reasonable attorney's fees), resulting from any claim relating solely
to Licensee's exercise of rights in the Programs or any claims by the owners of
the Programs, other than with respect to any matter for which NICC has agreed to
indemnify Licensee hereunder.
B. NICC agrees to indemnify and hold harmless Licensee and its
officers, directors, employees, agents, licensees, successors and assigns from
and against any losses, judgements, settlements, damages, costs and expenses
(including reasonable attorney's fees), resulting from any breach of a material
representation, warranty or obligation of NICC.
8. NICC at its own expense, shall procure and maintain in full force
and effect at all times during the term of this agreement, with a responsible
insurance carrier acceptable to Licensee, an errors and omissions liability
insurance policy with respect to Licensee's cablecasting or other transmission
services with a limit of liability of not less than one million/three million
dollars insuring against (without limitation) any claims that may arise with
respect to its cablecasting of the Programs. Such insurance policy shall be
written for the benefit of Licensee and NICC and shall provide for at least 30
days' prior written notice to the parties of the cancellation or substantial
modification thereof. NICC shall deliver a certificate of such insurance to
Licensee promptly upon issuance of said insurance policy, and from time to time
upon reasonable request by Licensee, promptly shall furnish to Licensee evidence
of the maintenance of said insurance policy.
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9. A. NICC shall have the right to terminate this License Agreement in
the event that any of the following shall occur:
(i) Licensee or its successors or assigns shall discontinue or
substantially discontinue its cable television operations.
(ii) Licensee files a petition in bankruptcy, is adjudicated a
bankrupt, becomes insolvent, makes an assignment for the benefit of
creditors, or if a receiver, liquidator, or trustee is appointed for
its business or assets, or Licensee otherwise takes advantage of any
insolvency law or similar law for the protection of debtors, or suffers
a petition of bankruptcy to be filed against it.
(iii) Licensee defaults in any of its obligations hereunder
and does not cure same within thirty (30) days after receiving written
notice from NICC specifying the default. Any termination pursuant to
this subparagraph shall be without prejudice to NICC's rights to
pursue other remedies, including the right to recover damages and to
obtain injunctive relief.
B. Licensee may not terminate this License Agreement and Licensee's
remedies, in the event of any breach by NICC, shall be limited to an action at
law for monetary damages except upon liquidation of the assets of Licensee.
11. This Agreement shall not be modified or waived, in whole or in
part, except in a writing signed by both parties. A waiver by either party of
any breach or default by the other party shall not be construed as an ongoing
waiver or waiver of any other breach or default. All notices required or
permitted to be given pursuant to this agreement shall be deemed
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sufficiently given when delivered personally during a business day to the
address first above written (or such other address as to which notice is given
pursuant to these provisions), or three days after the posting thereof by
first-class mail (postage prepaid), or on the first business day following the
sending of a telefax, or on the day of receipt of overnight courier service.
This agreement shall be governed by and construed in accordance with the law of
the State of New York applicable to contracts made and wholly to be performed
therein, constitutes the entire understanding of the parties with respect to the
subject matter hereof, and supersedes any prior oral or written understandings
or agreements with respect thereto. This agreement does not constitute a
partnership, joint venture, or agency between the parties, nor shall either
party be bound or become liable because of any representation, action, or
omission of the other.
IN WITNESS WHEREOF, the parties have caused this Program License
Agreement to be executed by their respective duly authorized officers as of the
date first above written.
NATIONAL INTERFAITH CABLE
COALITION, INC.
By: /s/ XXXXX X. XXXXXXXX
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Its
ODYSSEY HOLDINGS, L.L.C.
By: /s/ XXXXXXXX X. XXXXXX
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Its President and CEO
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