CHARTER AFFILIATE AFFILIATION AGREEMENT
Execution
Copy
CHARTER
AFFILIATE AFFILIATION AGREEMENT
THIS
AGREEMENT (the “Agreement”),
made
as of the 6th
day of
March, 2006 (the “Effective
Date”),
is by
and between The TUBE Music Network, Inc., a Florida corporation (the
“Network”),
and
Tribune Broadcasting Company, a Delaware corporation (“Affiliate”),
regarding the television programming service currently known as “The TUBE” (the
“Service”).
The
parties hereby mutually agree as follows:
1. |
DEFINITIONS:
|
In
addition to any other defined terms in this Agreement, the following terms
shall
have the following meanings when used in this Agreement:
“Acquired
Station”
means
any Broadcast Television station that is acquired by Affiliate after the
Effective Date.
“Affiliate
Advertising Share”
has
the
meaning set forth in Exhibit
D.
“Affiliate
Launch Date”
means
the date on which the Service is initially transmitted by the first of
Affiliate’s Stations.
“Affiliate
Transactional Share”
has
the
meaning set forth in Exhibit
D.
“Broadcast
Television”
means
traditional, free, FCC-licensed, over-the-air broadcast television.
“Charter
Affiliate”
means
a
Broadcast Television station or station group that (i) entered into an
affiliation agreement with the Network on or before the date of this Agreement,
and/or (ii) is owned, operated or licensed to Xxxxxxxx Television Group, Inc.
or
an affiliate thereof.
“Costs”
means
all losses, liabilities, claims, costs, damages and expenses, including fines,
forfeitures, reasonable attorneys’ and expert witness fees, disbursements and
court or administrative costs.
“Designated
Market Area”
or
“DMA”
means
a
particular market area or classification to demarcate local television markets
as defined by Xxxxxxx Media Research, Inc. from time-to-time, or, if DMA falls
from general or standardized usage, a replacement term to demarcate local
television markets in a substantially similar manner which shall be determined
by the parties in good faith.
“Licensed
Community”
has
the
meaning set forth in Section 3(a).
“Local
Advertising”
has
the
meaning set forth in Section 8(c).
“MVPD”
means
a
multichannel video program distributor as such term is set forth in 47 C.F.R.
§76.905(d) of the rules of the Federal Communications Commission (“FCC”).
“Network’s
Advertising Revenue”
means
the gross dollar amount of collections received by or credited to Network from
the sale by Network of commercial advertising time included in the Service,
less
actual agency representative fees and sales commissions. For clarification,
Network’s Advertising Revenue shall not include accounts receivable or Network’s
Transactional Revenue.
“Network’s
Transactional Revenue”
means
the gross dollar amount of revenue actually received by Network (e.g.,
net of
the cost of goods and services and all fulfillment costs associated with the
sale of such goods and services) from (i) the sale of products and services
by
way of direct response telephone orders from the toll-free number included
on
the Service, and (ii) e-commerce sales of products and services by or on behalf
of Network over the Internet originating from Network’s website (i.e.,
URL
xxx.xxxxxxxxx.xxx or any replacement or supplemental URL) or Affiliate’s
website, in all cases, originating from within the Zip Codes in the DMA of
the
Station(s) transmitting the Service, and from Zip Codes in the DMA of any
MVPD(s) that carry a Station if, at the time of the sale, Network does not
have
an affiliation with a Broadcast Station that is transmitting the Service and
whose Licensed Community is located in such DMA.
“Primary
Feed”
means
the audio and video presentations of each Station’s primary one-way over-the-air
digital television signal (which signal may be in either standard definition
or
high definition television (as such term is defined by the Advanced Television
Systems Committee) format).
“Promotional
Spots”
has
the
meaning set forth in Section 8(a).
“Service”
means
the television programming service provided by Network as defined in the
preamble to this Agreement.
“Station(s)”
means
a
Broadcast Television station licensed to Affiliate or a subsidiary of Affiliate
by the FCC that provides or is capable of providing the Service to the Licensed
Community that it is licensed to serve.
“TV
Households”
means
the number of television households in a given DMA as determined by Xxxxxxx
Media Research, Inc. (which, as of the date hereof, is published annually by
Xxxxxxx Media Research, Inc. as the Xxxxxxx Media Research Local Universe
Estimates (US)) or, if Xxxxxxx Media Research, Inc. ceases to publish the number
of television households in a DMA, a replacement term to determine the number
of
television households in local television markets in a substantially similar
manner which shall be determined by the parties in good faith.
“Zip
Code(s)”
means
a
specific geographic delivery area defined by the United States Postal Service,
which consists of a five (5)-digit zip code plus a four (4)-digit add-on
code.
2. |
TERM,
EXTENSION AND RENEWAL:
|
(a)
Initial
Term.
Unless
terminated earlier in accordance with the terms of this Agreement, the “Term”
of
this
Agreement shall consist of, collectively, the Initial Term and the Renewal
Term,
if applicable. The “Initial
Term”
shall
commence upon the Effective Date and shall expire on March 31, 2011.
|
2
(b)
Renewal
Term.
If
Affiliate fails to notify Network of its desire that this Agreement terminate
on
its expiration date, at least six (6) months before the expiration date, this
Agreement will automatically renew, upon the same terms and conditions, for
an
additional four (4) -year
period (“Renewal
Term”).
(c)
If
the Term is renewed as described in Section 2(b), Network and Affiliate will
negotiate exclusively and in good faith concerning further renewal of this
Agreement upon mutually-agreed terms and conditions; provided, that unless
Network and Affiliate otherwise agree in writing, the exclusive negotiation
period will end six (6) months before the expiration of the Term.
3. |
GRANT
OF RIGHTS; ACQUIRED STATIONS:
|
(a)
Network hereby grants to Affiliate the exclusive right via Broadcast
Television,
and Affiliate hereby accepts such exclusive right and the obligation during
the
Term to broadcast the Service via Broadcast Television (i) over the transmission
facilities of each Station identified on Exhibit
A,
which
is licensed by the FCC to serve the community for each such Station (the
“Licensed
Community”),
for
receipt by TV Households in the DMA in which the Licensed Community is located,
as such DMA is identified on Exhibit
A,
and
(ii) over the transmission facilities of any Acquired Station, except to
the
extent that, as of the date Affiliate notifies Network in writing of its
binding
agreement to acquire such Acquired Station, (A) another Broadcast Television
station in the same DMA as the Acquired Station has exclusive rights to
broadcast the Service, or (B) the Acquired Station is obligated to broadcast
other material that precludes it from also carrying the Service. Affiliate
shall
telecast the Service from each Station’s origination transmitter and antenna for
free over-the-air television reception, and by other customary means used
by
each Station to transmit its signal in its DMA (e.g.,
FCC-licensed translators and fiber or microwave connections to MVPDs).
Notwithstanding the foregoing, Affiliate shall have the right to authorize,
and
shall use reasonable efforts to obtain, carriage of the Service’s signal by
MVPDs that retransmit digital Broadcast Television signals in the DMA of
each
Station that transmits the Service, which Service signal shall be transmitted
by
Affiliate together with the Primary Feed. Affiliate’s failure to obtain such
carriage by any MVPD shall not be deemed a breach of this Agreement. Affiliate
shall endeavor to secure carriage of the Service by MVPDs on the most highly
penetrated level of digital service. Further, Affiliate shall have the right
to
authorize carriage of the Service’s signal on a nonexclusive basis by MVPDs that
retransmit a Station’s Primary Feed outside the Station’s DMA, and that are
carrying the Station’s analog signal as of the date of this Agreement.
Notwithstanding the provisions of the preceding sentence, (1) Affiliate shall
not authorize an MVPD to deliver the Service to subscribers outside the
Station’s DMA in areas in which the Station, pursuant to FCC rules, is not
“significantly viewed,” if the MVPD receives the Station’s signal via satellite,
and (2) any agreement by Affiliate for out-of-DMA carriage of the Service
shall
require that the MVPD’s authorization from Affiliate to carry the Service
terminate upon the initial over-the-air transmission of the Service by a
Broadcast Television station whose Licensed Community is located within the
DMA
of the pertinent MVPD system if such station has exclusive rights to broadcast
the Service in such DMA. Network shall provide Affiliate with at least 45
days’
advance written notice of such Broadcast Television’s station’s initial
over-the-air transmission of the Service and Affiliate shall provide such
notice
to the pertinent MVPD. In the event Affiliate owns more than one Station
in any
DMA (a
“Duopoly
Market”),
then
Affiliate, at its option, shall have the right to determine which of its
Stations in such DMA shall broadcast the Service; it being understood that
Affiliate shall have no obligation to broadcast the Service over more than
one
of its Stations in any particular DMA.
3
(b) Any
Acquired Station that is transmitting the Service at the time of acquisition
by
Affiliate shall (subject to the provisions of the preceding paragraph concerning
Duopoly Markets) continue to transmit the Service and become a “Station”
hereunder. Any existing agreement between or among Network and any one or more
third parties applicable to such Station for the transmission of the Service
shall terminate and cease to be effective upon its acquisition by Affiliate.
Any
Acquired Station in a DMA that is not transmitting the Service at the time
of
acquisition by Affiliate shall likewise become a “Station” hereunder upon
acquisition and shall commence transmitting the Service within one hundred
eighty (180) days after the acquisition is consummated, unless, as provided
in
3(a) above, (A) another Broadcast Television station in the same DMA as the
Acquired Station has exclusive rights to broadcast the Service, or (B) the
Acquired Station is obligated to broadcast other material that precludes it
from
also carrying the Service. If condition (A) or (B) applies, the Acquired Station
shall have no obligations hereunder, and Network shall have the right to license
the transmission of the Service to another Broadcast Television station in
such
DMA, including on an exclusive basis. Notwithstanding the foregoing, if
condition (A) applies, unless the existing affiliate is a Charter Affiliate,
Network shall give Affiliate at least six (6) months’ prior written notice of
the impending expiration of an existing affiliate’s affiliation agreement and,
upon such notice, Affiliate shall have the option to add the pertinent Acquired
Station as a “Station” hereunder as of the date of expiration of the existing
affiliate’s affiliation agreement, provided that Affiliate exercises such right
in writing at least four (4) months prior to the expiration of the existing
affiliate’s affiliation agreement.
(c) Except
as
expressly provided in Section 3(a), Affiliate shall not have the right (i)
to
subdistribute or otherwise sublicense the Service, or (ii) to transmit or
otherwise distribute the Service by any technology (other than Broadcast
Television), or on an interactive, time-delayed, “video-on-demand” or similar
basis. For purposes hereof, “video-on-demand”
means
the transmission of a television signal by means of a point-to-point
distribution system containing audiovisual programming chosen by a viewer for
reception on a viewer’s television receiver, where the scheduling of the
exhibition of the programming is not predetermined by the distributor, but
rather is at the viewer’s discretion.
(d) Except
as
expressly provided in Sections 3(a) and 3(b) and this Section 3(d), Network
shall not have the right to distribute or otherwise license the Service for
reception in a Station’s DMA, including distributing the Service directly
through an MVPD in a Station’s DMA, other than through this license to
Affiliate. Without limiting the generality of the preceding sentence, Network
shall not distribute or authorize third parties to distribute the Service to
subscribers by any technology (other than Broadcast Television and transmission
by an MVPD), on an interactive, time-delayed (other than multiple time-zone
feeds of the Service), “video-on-demand” or similar basis, as an audio-only
service (e.g.,
radio)
or over the Internet. For purposes of clarification, a promotional or marketing
“stunt” simulcasting a live or special event, or brief excerpts of the Service
made available on a non-subscription basis for promotional purposes shall not
be
prohibited by this Section 3(d) or any other provision herein.
4
(e) Network
hereby grants Affiliate during the Term a royalty-free, fully paid up,
non-transferable, non-exclusive license to use the Marks (as defined in Section
8(e)) in any advertising and promotional materials undertaken in connection
with
Affiliate’s transmission of the Service, provided that such use complies with
the terms and conditions of Section 8(e).
(f) Upon
execution of this Agreement, Affiliate shall promptly complete and deliver
to
Network a notice of launch (in the form attached hereto in Exhibit
B)
for
each Station (“Launch
Notice”)
and
subsequently launch the Service on each Station listed on Exhibit
A (subject
to the provisions of 3(a) above concerning Duopoly Markets) no later than the
Launch Date set forth opposite each Station on Exhibit
A
(for
each Station, the “Launch
Date”).
In
addition, Affiliate shall promptly complete a Launch Notice for any Acquired
Station that is subsequently added to this Agreement.
(g)
Each
Station, by the terms of this contract, shall be entitled to invoke the
protection against duplication of Service programming imported under the
compulsory copyright license as provided in Sections 76.101 and 76.123 of the
FCC Rules.
(h)
Each
Station transmitting the Service shall have the right to broadcast the Service
on its Primary Feed, in addition to its broadcasts under Section 3(a). Such
broadcasts shall be subject to all terms and conditions of this Agreement,
including Sections 4(e) and 8(c).
4. |
CONTENT
OF THE SERVICE:
|
(a)
Content.
Throughout the Term, the Service shall be a professionally produced,
advertiser-supported television service with programming consisting
of
music videos, occasional programs discussing, reviewing and/or relating to
music
and concerts, related interstitial programming, promotional announcements
and
commercial announcements in the amounts specified herein, 24 hours a day,
seven
days a week, primarily targeted to reach adults ages 25-54. Subject to the
preceding sentence and other provisions of this Agreement, the selection,
scheduling, renewal, substitution and withdrawal of any content on the Service
shall at all times remain within Network’s sole discretion and control.
(b) Local
Programming.
Affiliate, at its own cost, shall be provided with thirty (30) minutes per
week
on the Service, on the same day and at the same time each week, as determined
by
Network in consultation with Affiliate, for the insertion of programming by
Affiliate that is complementary to the Service (“Local
Programming”),
at
Affiliate’s option. Service programming will be provided during this thirty (30)
-minute period for Stations that do not insert Local Programming. It is
anticipated that, at a future date to be mutually agreed upon by the parties,
Affiliate shall have the right to expand such Local Programming to one (1)
hour
per week. Affiliate shall be solely responsible for the insertion on a timely
basis of the Local Programming into the signal of the Service at the Stations
transmitting the Service. Affiliate shall retain all revenue derived from
sponsorship of the Local Programming. Affiliate shall apply the same broadcast
standards to the Local Programming that it applies to each Station’s broadcasts
over the Primary Feed. Without limiting the immediately preceding sentence,
Local Programming shall not consist of or contain infomercials, home shopping
or
direct on air sales programming that are not directly related to music and
concerts.
5
(c) Preemption.
Affiliate shall retain the right to elect not to transmit any programming on
the
Service over the broadcast facilities of a Station if Affiliate reasonably
believes that such programming is unsatisfactory or unsuitable or contrary
to
the public interest, or in order to substitute a program which, in Affiliate’s
judgment, is of greater local or national importance. Affiliate agrees to notify
Network either before or as soon as reasonably practicable after Affiliate
exercises such right.
(d) Children’s
Programming.
(i) Network
will provide as part of the Service the minimum number of hours of “Core
Programming,” as defined in 47 C.F.R. §73.671(c), as the same may be amended
from time to time (“Core
Children’s Programming”),
and
will comply with related requirements of the definition of “Core Programming” in
order to enable Affiliate to comply with the “safe harbor” established by law or
FCC regulation, solely with regard to the Service and as a result of the
broadcast by the Stations of the Service on each such Station’s free,
over-the-air, multicast feed.
(ii) Network
represents and warrants that if it supplies to Affiliate any programming
produced primarily for children 12 years old or younger, such programming shall
comply with the FCC’s commercial limits, including 47 C.F.R. §73.670, as the
same may be amended from time to time, including limits on the amount of
commercial matter and the prohibitions on host-selling, program-length
commercials and the display of website addresses.
(iii) At
the
end of each calendar quarter, Network will provide to Affiliate a copy of the
Service’s schedule of Core Children’s Programming planned for the following
calendar quarter, together with a certification indicating the amount of Core
Children’s Programming made available to Affiliate during the preceding quarter
and certifying that any programming produced primarily for children 12 years
old
or younger, as provided by Network, complied with the FCC’s rules. Network will
provide copies of program logs or other documentation substantiating the amount
of Core Children’s Programming or the amount of commercial matter in any Network
program or program segment subject to the commercial limits, promptly upon
request by Affiliate.
(e) Advertising.
Except
for the Local Advertising and advertising broadcast in Local Programming,
Network shall have the exclusive right and authority to sell all of the
advertising on the Service and shall share a portion of Network’s Advertising
Revenue generated from such sales with Affiliate in accordance with the terms
of
this Agreement. A Station will not be obligated to broadcast advertising that
does not comply with the Station’s generally applicable broadcast standards.
Network and Affiliate will cooperate in a good-faith effort to ensure that
all
Network advertising meets Stations’ broadcast standards. Without limiting the
generality of the foregoing sentence, Network will not accept political or
controversial-issue advertising, or advertising promoting distilled spirits
or
gambling, without Affiliate’s prior written approval.
(f) Program
Service Information.
Network
must provide to a reputable program information services entity a program
schedule for the Service.
6
(g) Closed
Captioning; Program Ratings.
Network
shall provide full-time closed captioning for the Service in all programming
and
at all times for which captioning is required by applicable law as applied
to
the Service. Network also shall display and encode program ratings for the
Service using the industry-standard “V-chip” ratings system.
5. |
DELIVERY
AND DISTRIBUTION OF THE SERVICE:
|
(a)
During the Term, Network, at its expense, shall deliver a 24 hours per day,
7
days per week signal of the Service by transmitting it via AMC-3 or
another domestic satellite commonly used for transmission of television
programming to Broadcast Television stations. The signal of the Service,
including any program-related data and enhancements, shall be contained in
no
more than a 5.0 megabits-per-second (“mbps”)
stream
of data and shall consist of a resolution of no less than 480 x 720i. Network’s
failure, for reasons other than force majeure, to deliver a signal meeting
the
requirements of this Section 5(a) for more than twelve (12) hours in any
consecutive thirty (30) day period without the written consent of Affiliate
shall constitute a material breach of this Agreement, not subject to the
cure
provisions of Section 10(d); provided, however that Affiliate shall provide
Network with notice of each event in which Network fails to deliver a signal
meeting the requirements of this Section 5(a) as soon as reasonably practicable.
(b) Exhibit
C
sets
forth the specific equipment necessary for each Station to receive the signal
of
the Service (the “Receiving
Equipment”).
At
Affiliate’s option, Network shall furnish and install, at its expense, or
reimburse Affiliate for its cost of furnishing and installing, the Receiving
Equipment to each Station that transmits the Service, provided that the
Receiving Equipment for all of the Stations initially listed on Exhibit
A
shall
not exceed, in the aggregate, one hundred twenty-five thousand dollars
($125,000.00) (the “Equipment
Reimbursement Cap”).
At
Affiliate’s option, Network also shall furnish and install, or reimburse
Affiliate for its cost of furnishing and installing, Receiving Equipment for
any
Acquired Station not transmitting the Service at the time of acquisition by
Affiliate, at a cost not to exceed three thousand five hundred dollars
($3,500.00). Affiliate, at its expense, shall furnish all other equipment and
facilities necessary for the receipt of the satellite transmission of the signal
of the Service and the delivery of such signal to TV Households in each
Station’s DMA. In addition, each Station shall be responsible, at its sole
expense, for installing, maintaining or repairing the Receiving Equipment during
the Term. Affiliate shall cause each of the Stations to maintain and repair
the
Receiving Equipment in good working condition, at its sole cost, as necessary
and appropriate to maintain the ability of the Receiving Equipment to receive
the signal of the Service from its initial satellite and transponder without
interruption during the Term. If Network changes the satellite, transponder
or
encryption method used to transmit the Service and if the Receiving Equipment
or
other existing equipment will not be suitable for receiving the Service after
the changes are implemented, with respect to such Station(s), Network agrees
to
furnish and install at its expense, or reimburse Affiliate for its reasonable
cost of furnishing and installing, Receiving Equipment suitable for receiving
the Service after the changes are implemented, without regard to the Equipment
Reimbursement Cap; provided, however, that with respect to new equipment made
necessary by a satellite, transponder or encryption method change, which
equipment may be used to receive the signals of other television services
carried by such Station, Network shall be obligated to reimburse Affiliate
only
for Network’s pro-rata share of the cost of such equipment (based on the total
number of television services being received by such affected System and
utilizing such new equipment within ninety (90) days of the effective date
of
such change).
7
(c) Each
Station transmitting the Service shall transmit a good-quality video and audio
signal of the Service, but in no event shall such Station be required to deliver
a signal of a technical quality higher than the technical quality of the video
and audio signal of the Service as delivered by Network hereunder.
(d) Each
Station agrees to transmit the Service on a full-time basis 24 hours per day,
7
days per week, except in cases of force majeure, emergency broadcasts, when
a
Station’s Primary Feed is not being transmitted, as provided in 4(c) above, or
when a Station must stop broadcasting for maintenance or repairs. Each Station
will provide Network with up to 5.0 mbps, but, at all times, not less than
2.0
mbps, for this purpose, except as required in infrequent and exceptional
circumstances resulting from a Station’s carriage of the primary television
network with which such Station is affiliated with regard to its Primary Feed
(e.g.,
ABC,
CBS, NBC and Fox). Except for a Station’s Local Advertising Time and Local
Programming, station identification messages, and as except provided in 4(c)
and
4(e) above, each Station shall transmit the Service without alteration, editing
or delay.
(e)
Network
agrees to transmit SCTE 35-compliant DPI commands within the Service that will
trigger insertion of Local Advertising and rejoin commands to signal the return
to Network programming. Network also will deliver a separate set of SCTE
35-compliant commands to trigger local insertion and removal of station
identification messages on the hour, and station logos before and after
commercial breaks. To ensure clean switching, Network will ensure that switch
commands occur coincident with transmission of an “I”-frame from the network
MPEG 2 encoder.
(f) Each
Station that transmits the Service may superimpose over the programming on
the
Service a transparent station identification logo/“bug” that does not materially
interfere with the Service or any graphics or other data therein.
(g) Affiliate
and each Station shall take the same security measures to prevent the
unauthorized or otherwise unlawful copying or taping of the Service (or any
portion thereof) by others as it takes to protect the Primary Feed transmitted
by such Station. Network acknowledges that Affiliate and the Stations do not,
as
of the Effective Date, take any such security measures.
6. |
NO
FEES; REVENUE SHARE:
|
(a)
Neither Affiliate nor any Station shall pay any fees to Network for any
rights granted under this Agreement.
(b) In
consideration of the terms and conditions set forth herein, Network shall pay
Affiliate (i) the Affiliate Advertising Share, and (ii) the Affiliate
Transactional Share, each as provided in Exhibit
D.
7. |
REPORTS;
AUDITS:
|
(a)
Affiliate shall promptly notify Network in writing of any MVPD that has
agreed
to
retransmit the Service. Network and Affiliate thereafter shall cooperate
in an
effort to secure the MVPD’s agreement to provide to Network and Affiliate,
within thirty (30) days following each calendar quarter during the Term,
a
certified report stating the number of households
that receive the Service from such MVPD (“Digital
Cable Subscriber Households”)
in the
DMA of a Station on average over such quarter (“Report”).
If an
MVPD fails to submit a Report, Network and Affiliate shall estimate the number
of Digital Cable Subscriber Households receiving the Service pursuant to
paragraph I.1. of Exhibit
D.
8
(b) Network
shall submit to Affiliate, within forty-five (45) days of the end of each
calendar quarter during the Term, a statement reporting for such calendar
quarter the following information on a Station-by-Station basis: (i) Network’s
Advertising Revenue, (ii) the Affiliate Advertising Share, (iii) Network’s
Transactional Revenue, (iv) the average number of households receiving the
Service through each MVPD in each DMA served by a Station, as calculated herein,
and (v) the Affiliate Transactional Share. If this Agreement terminates on
any
date other than at the end of a calendar quarter, Network shall supply such
statement as of the date of termination, within forty-five (45) days thereafter,
and this obligation shall survive the termination of this Agreement until
Affiliate receives such statement.
(c) Affiliate
shall submit to Network, within forty-five (45) days of the end of each calendar
quarter, a report on behalf of each Station with respect to the Promotional
Spots aired by each Station during such calendar quarter, setting forth the
date
and time each such Promotional Spot aired on the Primary Feed.
(d)
Audit.
(i)
During the Term and for one (1) year thereafter, Network shall maintain accurate
and complete books and records in accordance with generally accepted accounting
principles and practices that shall contain sufficient information to enable
an
auditor to verify, for the period under audit, Network’s Advertising Revenue,
Network’s Transactional Revenue, the Affiliate Advertising Share, the Affiliate
Transactional Share and the accuracy of the amounts paid by Network to Affiliate
hereunder, including under Exhibit
D
(collectively, the “Revenue
Share Records”).
Upon
not less than thirty (30) days’ prior written notice and not more than once in
any calendar year, Affiliate shall have the right, at its sole cost and expense,
during the Term and for one (1) year thereafter, to examine during normal
business hours the books and records of Network for up to the prior calendar
year and the then-current calendar year solely to the extent reasonably
necessary to verify the Revenue Share Records.
(ii) Any
audit
conducted pursuant to this Section 7(d) shall be conducted by Affiliate’s
corporate audit staff or an independent auditing firm designated by Affiliate
(in each case, an “Auditor”).
Any
such audit shall be subject to the provisions of this Section 7(d) and the
confidentiality provisions of Section 12, and the Auditor shall execute, in
advance, a confidentiality agreement that obligates it to maintain the
confidentiality of the terms of this Agreement and the information acquired
during the course of the audit. Any officer, employee, consultant or agent
of
Affiliate that has access to an audit report (who shall be limited to those
who
are members of Affiliate’s corporate audit staff and have a specific need to
know the contents thereof) shall also execute a confidentiality agreement
consistent with the prior sentence.
9
(iii)
Network and Affiliate shall use good faith efforts to resolve any dispute
arising
from an audit conducted pursuant to this Section 7(d). Any litigation by
Affiliate with respect to amounts owing by Network in respect of an audit
must
be brought within one (1) year after the Auditor completes its on-site review
at
Network’s offices, or Affiliate will be deemed to have waived its right, whether
known or unknown, to collect any shortfalls from Network for the period(s)
audited; provided, however, that such limitation shall not apply to intentional
misconduct by Network or its agents or employees.
8. |
PROMOTION;
AFFILIATE ADVERTISING:
|
(a)
Affiliate shall actively promote the Service consistent with its business
judgment,
including the broadcast by each Station transmitting the Service of an
average
of at least ten (10) thirty (30)-second promotional announcements per week
for
the Service (“Promotional
Spots”)
on the
Station’s Primary Feed, including the Station’s analog signal for so long as the
Station broadcasts an analog signal, on a run-of-station basis, commencing
no
later than the first air date of the Service on the applicable Station.
Affiliate will submit program listings for the Service to local print and
on-screen guides. Additionally, Affiliate will provide a link to Network’s
website (i.e.,
URL
xxx.xxxxxxxxx.xxx or any replacement or supplemental URL) on the websites
of
each of the Stations.
(b) Network
shall produce and deliver the Promotional Spots to each Station at least two
(2)
weeks prior to the first air date, and on a regular basis thereafter, in a
format mutually agreed with Affiliate and in a broadcast-ready state. Affiliate
or a Station also may prepare its own Promotional Spots and other promotional
materials, which, if using any programming from the Service, must be approved
in
advance by Network, such approval not to be unreasonably withheld. Network
and
Affiliate agree to consult on a regular basis during the Term concerning the
content of the Promotional Spots, promotional materials and on Network and
Affiliate promotional strategies, and Affiliate shall cease airing particular
Promotional Spots or using particular promotional materials upon the reasonable
objection of Network to such Promotional Spots or the use of such promotional
materials.
(c) Network
shall provide to each Station that transmits the Service for local advertising
sales, public service announcements, newsbreaks, station-produced vignettes
or
promotion one (1) minute of commercial announcement time per hour (“Local
Advertising”),
normally at the same approximate time each hour of the broadcast day. Affiliate
shall have the right to retain for itself all the proceeds derived from the
sale
of Local Advertising. Affiliate agrees not to sell commercial time to or for
the
benefit of direct competitors of the Service (e.g.,
music
video networks carried by MVPDs such as MTV, VH1 and Fuse). All Local
Advertising shall comply with the pertinent Station’s generally applicable
broadcast standards and Affiliate shall be solely responsible for all Local
Advertising and all liabilities associated therewith, including insertion,
trafficking, billing and collection activities relating to the Local Advertising
and for the content of the material inserted into the Local Advertising.
(d) Network,
from time to time, may undertake marketing tests and surveys, rating polls
and
other research in connection with the Service. With respect to any tests,
surveys or research that apply to any Station or DMA for which Network seeks
Affiliate’s cooperation, Network shall notify Affiliate of the nature and scope
of each such project and Affiliate, to the extent permitted by applicable law
and agreements by which Affiliate or a Station is bound, shall cooperate in
such
research by rendering such assistance as Network may reasonably request and
which Affiliate can reasonably provide without incurring any additional expense.
Network shall, promptly following receipt, provide the full results of any
such
research to Affiliate, on a confidential basis, unless Network is prevented
from
doing so by a confidentiality agreement or applicable law.
10
(e) Affiliate
acknowledges that the name and xxxx “The
TUBE”
(and
the names of certain programs that appear in the Service and any subsequently
selected names or marks for the Service and accompanying websites)
(collectively, the “Marks”)
are
the exclusive property of Network and its suppliers and that Affiliate has
not
and will not acquire any ownership thereof by reason of this Agreement. Provided
they do not infringe the marks of Affiliate or an affiliate of Affiliate,
Affiliate shall not directly or indirectly question, attack, contest or in
any
other manner impugn the validity of the Marks or Network’s rights in and to the
Marks and shall reasonably cooperate with Network’s quality control, monitoring
and inspection of the use of the Marks. Any and all goodwill arising from
Affiliate’s use of the Marks shall inure solely to the benefit of Network.
Affiliate shall submit to Network representative samples of Affiliate’s
promotional materials mentioning or using the Marks (other than materials
provided by Network to Affiliate, if any) and shall cease using the Marks in
a
particular manner upon the reasonable objection of Network to the use of the
Marks in such manner. Uses of the Marks in routine promotional materials, such
as program guides and program listings, shall be deemed approved unless Network
specifically notifies Affiliate to the contrary. Network shall acquire no rights
in any of Affiliate’s marks by virtue of this Agreement.
9. |
WARRANTIES
AND
INDEMNITIES:
|
(a)
Network and Affiliate each represents and warrants to the other that (i)
it is
duly organized, validly existing and in good standing under the laws of the
state under which it is organized; (ii) it has the power and authority to
enter
into this Agreement and to perform fully its obligations hereunder; (iii)
it is
under no contractual or other legal obligation that shall in any way interfere
with its full, prompt and complete performance hereunder; (iv) the individual
executing this Agreement on its behalf has the authority to do so; and (v)
the
obligations created by this Agreement, insofar as they purport to be binding
on
it, constitute legal, valid and binding obligations enforceable in accordance
with their terms.
(b) Network
further represents and warrants to Affiliate that it holds all necessary rights
and licenses in and to the materials transmitted to Affiliate as part of the
Service and such rights and licenses are sufficient to permit the transmission
of the Service in the DMA of each of the Stations as contemplated herein,
without infringing the copyright or other rights of any person.
(c) Affiliate
further represents, warrants and covenants to Network that (i) it has the power
and authority to cause each Station, including any Acquired Station, to perform
fully its obligations hereunder; and (ii) it holds and will continue to hold
all
necessary rights and licenses (A) to operate the Stations and permit the
broadcast of the Service in the DMA of each of the
Stations and (B) to broadcast the Local Programming and Local Advertising as
contemplated herein.
11
(d) Affiliate
and Network shall each indemnify, defend and forever hold harmless the other,
the other’s parent, subsidiary and affiliated companies and each of the other’s
(and the other’s parent, subsidiary and affiliated companies’) respective
present and former officers, shareholders, directors, employees, consultants,
partners and agents (“Network
Indemnitees”
and
“Affiliate
Indemnitees,”
respectively), against and from any and all Costs incurred as a result of
third-party claims arising out of any breach of any term of this Agreement
or of
any warranty, covenant or representation contained herein.
(e) Without
limiting Section 9(d), Network shall indemnify, defend and forever hold harmless
the Affiliate Indemnitees from and against any and all Costs arising directly
or
indirectly out of third-party claims (i) that the transmission by Affiliate
of
the Service as contemplated herein infringes the rights of any person, (ii)
based on the content of the Service and any promotional material provided by
Network to Affiliate (including the Promotional Spots), as furnished by Network
and transmitted by Affiliate and each Station in accordance with the terms
and
conditions of this Agreement (i.e.,
not
based upon any deletions, modifications or additions by Affiliate or any
Station), including any claim that such content or material is obscene,
indecent, libelous, or slanderous, or violates any right of privacy or
publicity, copyright, trademark or any other proprietary, literary, or dramatic
right of any person or any rule or regulation of the FCC, and (iii) relating
to
any contest, sweepstakes or other promotion conducted by Network. Affiliate
shall, to like extent, indemnify, defend and forever hold harmless the Network
Indemnitees for Costs arising directly or indirectly out of third-party claims
relating to (A) any deletion, addition or other modification of content,
programming or other material by Affiliate to the Service, including Local
Advertising and Local Programming, (B) any editing or deletion of program or
promotional material by Affiliate contrary to Network’s instructions, (C)
Promotional Spots and/or other promotional materials prepared by Affiliate,
and
(D) any contest, sweepstakes or other promotion conducted by Affiliate in
connection with Network and/or the Service.
(f) A
party
claiming indemnity under this Section 9 must give the indemnifying party prompt
notice of any claim, and the indemnifying party shall, unless the parties
otherwise agree, assume the full defense of any claims to which its indemnity
applies. The indemnified party, at the indemnifying party’s cost, will cooperate
fully with the indemnifying party in the defense or settlement of any such
claim. Subject to the foregoing, the indemnified party may participate in the
defense, through counsel of its choice, at its own expense.
(g) The
representations, warranties and indemnities contained in this Section 9 shall
continue throughout the Term and the indemnities shall survive the termination
of this Agreement, regardless of the reason for such termination.
(h) Network
has procured, and shall maintain during the Term, at its sole expense,
Commercial General Liability insurance at liability limits of not less than
$1,000,000 each occurrence and $2,000,000 in the aggregate. Additionally,
Network will procure on or before the Affiliate Launch Date, and shall maintain
during the Term, at its sole expense, Errors and Omissions insurance that covers
Network’s media activities at a liability limit of $1,000,000 in any one (1)
policy period. Affiliate shall be named as an additional insured on the
policies, and, prior to the
Affiliate Launch Date, shall receive certificates evidencing such insurance,
providing that such coverage will not be cancelled or materially changed except
upon 30 days’ prior written notice to Affiliate.
12
10. |
TERMINATION:
|
(a)
In
addition to Network’s other rights to terminate this Agreement, Network
may,
by
providing Affiliate with thirty (30) days’ prior notice, terminate this
Agreement if Affiliate is in material breach of this Agreement, provided that
Affiliate shall have thirty (30) days from Network’s notice specifying in detail
the nature of such breach to cure such breach; provided, however, if such breach
is confined to a single breach by a Station or group of Stations during the
Term, then Network shall have the right to terminate this Agreement only as
to
such Station or Stations, but if Affiliate willfully and repeatedly materially
breaches any of the material provisions of this Agreement, then Network, at
its
option, shall have the right to terminate this Agreement in its entirety or
only
as to such breaching Station or Stations.
(b) Network
retains the right at all times during the Term to discontinue its distribution
of the Service in its entirety and to terminate this Agreement and all other
affiliates’ agreements on at least ninety (90) days’ prior notice without any
liability therefor to Affiliate, other than amounts payable hereunder which
accrued prior to such termination, including amounts payable pursuant to Section
6(b) and Exhibit
D.
(c) In
the
event that a Station initially listed on Exhibit
A
does not
launch the Service by the Launch Date as required by Section 3(f) other than
as
a result of a force majeure event pursuant to Section 13(e), Network shall
have
the right to terminate this Agreement only as to such Station, but if three
(3)
or more Stations initially listed on Exhibit
A
do not
launch the Service by the pertinent Launch Date for each such Station as
required by Section 3(f) for reasons other than force majeure, Network, at
its
option, shall have the right to terminate this Agreement in its entirety or
only
as to such Station or Stations. In the event that Network terminates this
Agreement as to a particular Station or several Stations, or in its entirety
pursuant to Sections 10(a) or (c), Affiliate shall, within thirty (30) days
of
termination, at its option either reimburse Network for the cost of all
equipment or return such equipment related to such Station(s) that was paid
for
by Network pursuant to Section 5(b) herein.
(d) In
addition to Affiliate’s other rights to terminate this Agreement, Affiliate may,
by providing Network with thirty (30) days’ prior notice, terminate this
Agreement if Network is in material breach of this Agreement, provided that
Network shall have thirty (30) days from its receipt of Affiliate’s written
notice specifying in detail the nature of such breach to cure such breach;
provided, however, if such breach is confined to a Station or group of Stations
during the Term, then Affiliate shall have the right to terminate this Agreement
only as to such Station or Stations, but if Network willfully and repeatedly
materially breaches any of the material provisions of this Agreement, then
Affiliate, at its option, shall have the right to terminate this Agreement
in
its entirety or only as to such breaching Station or Stations.
(e)
Notwithstanding anything to the contary in this Section 10, any breach involving
failure to pay any amount due hereunder must be cured within ten (10) days
after
notice. A breach involving Network’s failure to pay an amount due to Affiliate
pursuant to Section 6 above
or
Exhibit
D
hereto
shall be deemed a breach as to Affiliate rather than a particular Station or
Stations.
13
11.
|
NOTICES |
Any
notice given under this Agreement shall be in writing, shall be sent postage
prepaid by certified mail, return receipt requested, or by hand delivery, or
by
Federal Express or similar overnight delivery service, to the other party,
at
the following address (unless either party at any time or times designates
another address for itself by notifying the other party pursuant to the
provisions of this Section 11, in which case all notices to such party
thereafter shall be given at its most recently so designated address):
To
Network:
|
The
TUBE Music Network, Inc.
|
|
0000
Xxxx Xxxxxxx Xxxxx Xxxx, Xxxxx 000
|
||
Xx.
Xxxxxxxxxx, XX 00000
|
||
Attn:
Xxxx X. Xxxxxx, CFO
|
||
Facsimile
Number: (000) 000-0000
|
||
cc:
Xxx Xxxxxxx, President and CEO
|
||
Facsimile
Number: (000) 000-0000
|
||
To
Affiliate:
|
Tribune
Broadcasting Company
|
|
000
Xxxxx Xxxxxxxx Xxxxxx
|
||
Xxxxxxx,
XX 00000
|
||
Attn:
Xxxx Xxxxxxxxxx
|
||
Facsimile
Number: (000) 000-0000
|
||
cc:
Xxxxxxx X. Xxxxxx
|
||
Facsimile
Number: (000) 000-0000
|
Notices
given by hand delivery shall be deemed received upon delivery to the addressee.
Notices given by certified mail shall be deemed received on the date specified
on the return receipt. Notices given by Federal Express or similar overnight
delivery service shall be deemed received on the next business day following
delivery of the notice to such service with instructions for overnight delivery.
12.
|
CONFIDENTIALITY: |
Neither
Affiliate nor Network shall disclose (whether orally or in writing, or by press
release or otherwise) to any third party outside their respective companies
(other than their respective officers, directors and employees, in their
capacity as such, and their respective auditors, consultants, financial
advisors, lenders, potential buyers or investors and attorneys; provided,
however, that the disclosing party agrees to be responsible for any breach
of
the provisions of this Section 12 by any of such parties) the terms of this
Agreement (other than the existence hereof) except: (a) to the Auditor as
provided in Section 7(d); (b) to the extent necessary to comply with the valid
order or compulsory process of an administrative agency or a court of
competent
jurisdiction, in which event the party making such disclosure shall so notify
the other as promptly as practicable (and, if possible, prior to making such
disclosure); (c) in accordance with the regulations of any securities exchange
on which such party (or its parent company) is listed, or otherwise as required
by law; (d) in order to enforce its rights pursuant to this Agreement; or (e)
if
mutually agreed by Affiliate and Network, in advance of such disclosure, in
writing. This Section 12 shall survive the termination of this Agreement. The
parties agree to issue a mutually agreeable press release concerning this
Agreement upon execution of this Agreement.
14
13. |
MISCELLANEOUS:
|
(a)
Assignment;
Binding Effect; Reorganization.
This
Agreement shall be binding
on the respective transferees and successors of the parties hereto, except
that
neither this Agreement nor either party’s rights or obligations hereunder shall
be assigned or transferred by either party without the prior written consent
of
the other party. Affiliate agrees to use reasonable efforts to obtain the
agreement of any proposed assignee or transferee that, upon consummation
of the
assignment or transfer of control of the FCC license for any Station, such
assignee or transferee shall negotiate in good faith with Network for continued
rights to broadcast the Service over the affected Station. It will not be
a
breach of this Agreement, and Affiliate will not be required to accept a
lower
price or different terms in a proposed acquisition, if the proposed assignee
or
transferee does not accept this condition. Affiliate agrees to give Network
timely notice of the filing of an assignment or transfer of control application
with the FCC.
(b) Entire
Agreement; Amendments; Waivers; Cumulative Remedies.
This
Agreement, including the Exhibits attached hereto, contains the entire
understanding of the parties hereto and supersedes and abrogates all
contemporaneous and prior understandings of the parties, whether written or
oral, relating to the subject matter hereof. This Agreement may not be modified
except in a writing executed by both parties hereto. No waiver of any breach
of
any provision hereof shall be or be deemed to be a waiver of any preceding
or
subsequent breach of the same or any other provision of this Agreement. The
failure of Affiliate or Network to enforce or seek enforcement of the terms
of
this Agreement following any breach shall not be construed as a waiver of a
subsequent breach of the same or any other terms of this Agreement. All
remedies, whether at law, in equity or pursuant to this Agreement shall be
cumulative.
(c) Governing
Law.
The
obligations of Affiliate and Network under this Agreement are subject to all
applicable federal, state and local laws, rules and regulations, and this
Agreement and all matters or issues collateral thereto shall be governed by
the
laws of the State of New York applicable to contracts to be entirely performed
therein.
(d) Relationship.
Neither
party shall be, or hold itself out as, the agent of the other or as joint
venturers under this Agreement. Nothing contained herein shall be deemed to
create, and the parties do not intend to create, any partnership, association,
joint venture, fiduciary or agency relationship between Affiliate and Network,
and neither party is authorized to or shall act toward third parties or the
public in any manner which would indicate any such relationship with the other.
(e) Force
Majeure.
Neither
Affiliate nor Network shall have any rights against the other party hereto
for
the non-operation of facilities or the non-furnishing of the Service if such
non-operation
or non-furnishing is due to an act of God; inevitable accident; fire; weather;
lockout; strike or other labor dispute; riot or civil commotion; action or
inaction of government or governmental instrumentality (whether federal, state
or local); failure of performance by a common or private carrier; material
failure or unavailability in whole or in part of technical facilities, software
or equipment which are material to the transmission of the Service; or other
cause beyond either party’s reasonable control (financial inability is
excepted). A party will have the right to terminate this Agreement as to the
affected Station(s), by notice to the other, if the other party’s inability to
perform continues for thirty (30) days or more; provided, that Network may
not
terminate this Agreement due to a Station’s failure to launch the Service for
reasons specified solely in this Section 13(e) unless such Station is unable
to
launch the Service for ninety (90) days or more beyond the applicable Launch
Date.
15
(f) No
Inference Against Author.
Network
and Affiliate each acknowledge that this Agreement was fully negotiated by
the
parties and, therefore, no provision of this Agreement shall be interpreted
against any party because such party or its legal representative drafted such
provision.
(g) No
Third-Party Beneficiaries.
The
provisions of this Agreement are for the exclusive benefit of the parties hereto
(including the Stations) and their permitted assigns, and no third party shall
be a beneficiary of, or have any rights by virtue of, this Agreement.
(h) Headings.
The
titles, headings of the sections and defined terms in this Agreement are for
convenience only and shall not in any way affect the interpretation of this
Agreement. Any reference in this Agreement to “Section” or an “Exhibit”
shall,
unless the context expressly requires otherwise, be a reference to “Section” in,
or an “Exhibit”
to,
this Agreement. Forms of the word “include” mean “including without limitation;”
and references to “hereunder,” “herein,” “hereof,” and the like, refer to this
Agreement.
(i) Non-Recourse.
Notwithstanding anything contained in this Agreement to the contrary, it is
expressly understood and agreed by the parties hereto that each and every
representation, warranty, covenant, undertaking and agreement made in this
Agreement was not made or intended to be made as a personal representation,
undertaking, warranty, covenant, or agreement on the part of any individual,
and
any recourse, whether in common law, in equity, by statute or otherwise, against
any individual is hereby forever waived and released.
(j) LIMITATION
OF LIABILITY.
NOTWITHSTANDING ANY OTHER PROVISION IN THIS AGREEMENT TO THE CONTRARY, NEITHER
PARTY SHALL BE LIABLE TO THE OTHER PARTY FOR INCIDENTAL, CONSEQUENTIAL, PUNITIVE
OR SPECIAL DAMAGES (INCLUDING LOSS OF PROFITS OF REVENUES, OR DAMAGES TO OR
LOSS
OF PERSONAL PROPERTY) IN ANY CAUSE OF ACTION ARISING OUT OF, RELATED TO, OR
IN
CONNECTION WITH A DEFAULT UNDER OR A BREACH OF THIS AGREEMENT.
(k) Taxes.
Network
shall not be liable for, and Affiliate shall pay and hold harmless Network
from,
any federal, state or local taxes, surcharges, levies or any other charges
which
are based upon revenues derived by operations of Affiliate or each Station.
Neither Affiliate nor Station shall be liable for, and Network shall pay and
hold Affiliate and each Station harmless
from, any federal, state or local taxes, surcharges, levies or any other charges
which are based upon revenues derived by operations of Network.
16
(l) Right
of First Refusal.
In the
event Network decides to offer any new television programming channels (the
“New
Channels”),
then
Affiliate shall have ninety (90) calendar days from Affiliate’s receipt of
Network’s comprehensive business plan for such New Channels to determine whether
Affiliate desires to enter into an agreement with respect to the New Channels.
At the expiration of the ninety (90)-day period, Affiliate’s right of first
refusal shall expire. If, during said ninety (90)-day period, Affiliate notifies
Network in writing of its desire to add the New Channels to this Agreement,
then
both parties shall work diligently together and in good faith to enter into
an
agreement within ninety (90) days of such notice to include the terms and
conditions pursuant to which the New Channels may be distributed by Affiliate.
If, having used good faith diligent efforts, Affiliate and Network have failed
to enter into such an agreement within such ninety (90)-day period, then neither
party shall have an obligation to continue such negotiations or enter into
an
agreement with respect to the New Channels.
(m) Matter
Broadcast.
Federal
law and FCC regulations require Network to disclose to Affiliate, and the
Stations to disclose to their audiences, the identity of any person or entity
that has given anything of value to Network or anyone associated with the
Service in exchange for the inclusion of a product, service, trademark, brand
name, or other program material in the Service. Network agrees to disclose
to
Affiliate, in writing, the existence, source and nature of any payments or
other
consideration received in connection with the production of the Service. Such
disclosure shall be made prior to the time such matter is broadcast, so that
each Station can satisfy its disclosure obligations under federal law.
Notwithstanding anything to the contrary herein, proper disclosure in the
content of the Service will satisfy Network’s disclosure obligations to
Affiliate under this Section 13(m), provided Network agrees to provide full
details to Affiliate immediately upon request.
(n) Counterparts.
This
Agreement may be executed in counterparts, each of which will have the full
force and effect of a fully-executed original. This Agreement may be executed
by
each or either party by delivering signed signature pages thereof to the other
party by facsimile. Any party delivering an executed counterpart of this
Agreement by facsimile shall also deliver to the other party an original
executed counterpart of this Agreement, but the failure to do so does not affect
the validity, enforceability or binding effect of this Agreement.
[Remainder
of page intentionally left blank.]
17
The
parties hereto have executed this Agreement to be effective as of the Effective
Date.
AFFILIATE: | NETWORK: | |||
TRIBUNE BROADCASTING COMPANY | THE TUBE MUSIC NETWORK, INC. | |||
By:
|
/s/
Xxxx X. Xxxxxxx
|
By: |
/s/
Xxx Xxxxxxx
|
|
Title:
|
President
|
Title: |
President
|
|
|
|
|
|
[Signature
page: Charter Affiliate Affiliation
Agreement by and between
The
TUBE Music Network, Inc. and Tribune Broadcasting
Company]
18
EXHIBIT
A
To
Affiliation Agreement By and Between
Tribune
Broadcasting Company and
The
TUBE Music Network, Inc.
Dated
as of March 6, 2006
STATION
IDENTIFICATION
Call
|
Street Address |
Launch
|
||||
DMA
|
Letters
|
Date
|
||||
WPIX
|
000
X. 00xx Xx., 00xx xxxxx, Xxx Xxxx, XX 00000
|
6/1/06
|
||||
Los
Angeles
|
KTLA
|
0000
Xxxxxx Xxxx., Xxx Xxxxxxx, XX 00000
|
6/1/06
|
|||
Chicago
|
WGN
|
0000
X. Xxxxxxx Xx., Xxxxxxx, XX 00000
|
7/1/06
|
|||
Philadelphia
|
WPHL
|
0000
Xxxxxxxxxx Xxx., Xxxxxxxxxxxx, XX 00000
|
7/1/06
|
|||
Boston
|
WLVI
|
00
Xxxxxxxxx Xxxx., Xxxxxx, XX 00000
|
6/1/06
|
|||
Dallas-Fort
Worth
|
KDAF
|
0000
Xxxx Xxxxxxxxx Xxx., Xxxxxx, XX 00000
|
7/1/06
|
|||
Washington,
D.C.
|
WBDC
|
0000
Xxxxxxxxx Xxx. X.X., Xxxxxxxxxx, XX 00000
|
8/15/06
|
|||
Atlanta
|
WATL
|
Xxx
Xxxxxx Xxxxx, Xxxxxxx, XX 00000
|
7/15/06
|
|||
Houston
|
KHWB
|
0000
Xxxxxxxx Xx., Xxxxxxx, XX 00000
|
7/15/06
|
|||
Seattle-Tacoma
|
KCPQ
KTWB
|
0000
Xxxxxxxx Xxx. X., Xxxxxxx, XX 00000
|
7/15/06
|
|||
Miami-Ft.
Lauderdale
|
WBZL
|
0000
Xxx Xx., Xxxxxxxxx, XX 00000
|
7/15/06
|
|||
Denver
|
KWGN
|
0000
X. Xxxxxx Xxx, Xxxxxxxxx Xxxxxxx, XX 00000
|
6/1/06
|
|||
Sacramento-Stockton-Modesto
|
KTXL
|
0000
Xxxxxxxxxx Xx., Xxxxxxxxxx, XX 00000
|
8/1/06
|
|||
St.
Louis
|
KPLR
|
0000
Xxxx Xx., Xx. Xxxxx, XX 00000
|
8/1/06
|
|||
Portland,
OR
|
KWBP
|
00000
X.X. Xxxxxx Xx., Xxxxxxxxx, XX 00000
|
6/15/06
|
|||
Indianapolis
|
WXIN
WTTV
WTTK
|
0000
Xxxxxxx Xx., Xxxxxxxxxxxx, XX 00000
|
6/15/06
|
|||
San
Diego
|
KSWB
|
0000
Xxxxxxxx Xx., Xxx Xxxxx, XX 00000
|
6/15/06
|
|||
Hartford
& New Haven
|
WTIC
WTXX
|
Xxx
Xxxxxxxxx Xxxxxx, Xxxxxxxx, XX 00000
|
8/15/06
|
|||
Grand-Rapids-Kalamazoo-Battle
Creek
|
WXMI
|
0000
Xxxxx Xx. X.X., Xxxxx Xxxxxx, XX 00000
|
6/15/06
|
|||
Harrisburg-Lancaster-Lebanon-York
|
WPMT
|
0000
X. Xxxxx Xx., Xxxx, XX 00000
|
7/1/06
|
|||
Albany-Schenectady-Xxxx
|
WEWB
|
00
Xxxxxxxxx Xxxxx Xxxx., Xxxxxx, XX 00000
|
8/1/06
|
19
EXHIBIT
B
To
Affiliation Agreement By and Between
Tribune
Broadcasting Company and
The
TUBE
Music Network, Inc.
Dated
as
of March 6, 2006
LAUNCH
NOTICE
BROADCAST
LAUNCH FORM
STATION
NAME:
|
STATION
GROUP OWNER:
|
STATION
MAILING ADDRESS:
|
|
PHONE
NUMBER:
|
FAX
NUMBER:
|
GENERAL
MANAGER:
|
MARKETING
CONTACT:
|
ENGINEER
|
PHONE
(IF DIFFERENT):
|
EMAIL ADDRESS: | |
AREAS
SERVED (PLEASE INCLUDE ZIP CODES):
|
|
DMA: | |
FILL OUT THE LINE BELOW FOR ONE EARTH STATION RECEIVE SITE (EACH ADDITIONAL SITE REQUIRES A SEPARATE FORM) | |
Do
you have an antenna capable of receiving a C band feed from AMC-3
Transponder 17 located at 87 degrees west? YES____
NO____
|
|
Do you have space for an additional antenna on
your roof
or in your antenna farm? YES____ NO____
|
|
Does this space have a good southern exposure looking at 95 degrees? YES____ NO____ | |
Do you have the resources to install the antenna? YES____ NO____ | |
STREET ADDRESS (Shipping Address): | |
CITY/STATE/ZIP: | COUNTY: |
LAUNCH
DATE: ______________
|
CHANNEL
NUMBER:
______________
|
|
|
|
SIGNATURE:
|
TITLE:
|
DATE:
|
Email
COMPLETED FORM to xxxxxxxxxx_0000@xxxxx.xxx
20
EXHIBIT
C
To
Affiliation Agreement By and Between
Tribune
Broadcasting Company and
The
TUBE
Music Network, Inc.
Dated
as
of March 6, 2006
RECEIVING
EQUIPMENT
• |
C-Band
Antenna equipped with appropriate feed assembly and 45-degree digitally
compatible LNB
|
• |
150
Feet of RG6 Coaxial Cable
|
• |
Integrated
receiver/decoder, including MPEG 2 standard definition decoder
that can
decode an AC3 encoded audio stream at 384 kbps (the audio stream
to be
delivered by Network), and an unscrambled DVB-compliant ASI
output.
|
• |
De-icing
equipment and/or radomes at the following Stations (and any later-acquired
stations where climatologically WXIN/WTTV/WTTK, Indianapolis; WPHL-TV,
Philadelphia; WGN-TV, Chicago; WXMI, Grand
Rapids.
|
21
Execution
Copy
EXHIBIT
D
To
Affiliation Agreement By and Between
Tribune
Broadcasting Company and
The
TUBE
Music Network, Inc.
Dated
as
of Xxxxx 0, 0000
XXXXXXX
SHARE
Commencing
on the Affiliate Launch Date and thereafter throughout the Term, Network shall
pay to Affiliate the following amounts:
I. |
Affiliate
Advertising Share.
|
1. |
Determining
Affiliate Advertising Share.
Commencing with the calendar quarter beginning on April 1, 2006 and
for
each calendar quarter thereafter during the Term, Network shall pay
to
Affiliate the Affiliate Advertising Share. For purposes hereof, the
“Affiliate
Advertising Share”
shall be determined by multiplying fifteen percent (15%) of Network’s
Advertising Revenue for such calendar quarter by a fraction, the
numerator
of which is the total number of Digital Cable Subscriber Households
in the
DMA(s) of the Station(s) transmitting the Service pursuant to this
Agreement, and the denominator of which is the total number of Digital
Cable Subscriber Households in all of the DMAs in which Network has
a
broadcast television station affiliate that is transmitting the Service.
If
a Station commences transmitting the Service on other than the first
day
of a calendar quarter, then the Affiliate Advertising Share for such
quarter shall be further prorated based on the number of days in
such
quarter that such Station transmitted the Service. For purposes of
this
Exhibit
D,
The number of Digital Cable Subscriber Households shall be determined
by
the certified report supplied by each MVPD distributing the service,
described in Section 7(a) of the body of this Agreement. In the event
that
such report is not received by Network with respect to each and every
MVPD
that carries the Service, then, for purposes of this Exhibit
D,
the number of Digital Cable Subscriber Households shall be determined
as
follows:
|
a. |
In
the event that the total number of linear digital video subscribers
served
by an MVPD that distributes the Service is not broken out by DMAs
in such
MVPD’s reported data, then, for purposes of this Exhibit
D,
the number of Digital Cable Subscriber Households for such non-reporting
MVPD shall be equal to the product of (x) the number of TV Households
receiving linear video services from such MVPD’s systems that carry the
Service in the pertinent DMA as set forth in a Xxxxxxx report such
as
FOCUS multiplied by (y) the National Digital Cable Penetration Percentage
most recently reported by such MVPD. The “National
Digital Cable Penetration Percentage”
shall be equal to the quotient of (i) the total number of subscribers
to
linear digital video services as most recently publicly reported
by such
MVPD, divided by (ii) the total number of TV Households receiving
linear
video services from such MVPD as most recently publicly reported
by such
MVPD.
|
22
b.
In the event that a particular MVPD does not report its total number
of
subscribers to linear digital video services and total number of
TV
Households receiving linear video services, then, for purposes of
this
Exhibit
D,
the number of Digital Cable Subscriber Households for such non-reporting
MVPD shall be equal to the product of (x) the number of TV Households
receiving linear video services served by such MVPD’s systems that carry
the Service as set forth in a Xxxxxxx report such as FOCUS multiplied
by
(y) a national digital cable penetration estimate from Kagan Research,
LLC.
|
c.
In the event that a more accurate independent publicly available
source
for determining the number of television households that receive
the
Service through a subscription cable service hereafter becomes available,
the parties may mutually agree to use such source in lieu of the
foregoing.
|
2. |
Payment.
The Affiliate Advertising Share, if any, shall be payable quarterly
and
shall be due no later than forty-five (45) days following the end
of each
calendar quarter for which a payment
is due. If this Agreement is terminated during a calendar quarter,
the
amount payable
shall be determined as of the termination
date.
|
|
II. |
Affiliate
Transactional Share.
|
1. |
Determining
Affiliate Transactional Share.
Commencing with the calendar quarter beginning on April 1, 2006 and
for
each calendar quarter thereafter during the Term, Network shall pay
to
Affiliate the Affiliate Transactional Share. For purposes hereof,
the
“Affiliate
Transactional Share”
means fifteen percent (15%) of Network’s Transactional Revenue for the
pertinent calendar quarter.
|
2. |
Payment.
The Affiliate Transactional Share, if any, shall be payable quarterly
and
shall be due no later than forty-five (45) days following the end
of each
calendar quarter for which a payment
is due. If this Agreement is terminated during a calendar quarter,
the
amount payable
shall be determined as of the termination
date.
|
23
EXHIBIT
E
To
Affiliation Agreement By and Between
Tribune
Broadcasting Company and
The
TUBE
Music Network, Inc.
Dated
as
of March 6, 2006
ADDITIONAL
TERMS AND CONDITIONS
Music
Rights and Copyright Indemnification
Without
limiting Network’s indemnification obligations as set forth in the body of this
Agreement:
Network
agrees to indemnify the Affiliate Indemnitees against any and all Costs arising
out of any (i) third-party claims that Network’s music performance rights
licenses with ASCAP, BMI and SESAC (or directly with the applicable composer(s)
and publisher(s)) do not cover music performances through to the viewers of
the
Service; and (ii) written agreement between Affiliate and an MVPD for the
retransmission of the Service (together with the Primary Feed as provided in
Section 3(a) of the body of the Agreement) solely within the Station’s DMA, or
where the Station’s signal is deemed “significantly viewed” pursuant to FCC
rules, pursuant to which Affiliate is obligated to indemnify such MVPD against
any Incremental Copyright Cost (as defined below) resulting directly from the
retransmission of the Service by such MVPD in the Station’s DMA. For purposes
hereof, “Incremental
Copyright Cost”
shall
mean the difference, if any, between (A) the copyright royalties that would
be
payable by the MVPD in the Station’s DMA without carriage of the Service, and
(B) the copyright royalties that would be payable by such MVPD in such DMA
with
the carriage of the Service. Network hereby authorizes Affiliate to enter into
such an agreement if, in Affiliate’s reasonable and good faith judgment, such an
agreement is necessary to obtain an MVPD’s consent to carry the Service. For
purposes of clarification, ASCAP, BMI and SESAC are and shall be considered
“third parties.” Network represents and warrants that it has and throughout the
Term will have a valid through-to-the-viewer music performance rights license
with ASCAP and BMI (and any other society that may license such rights for
music
contained in the Service) (or directly with the applicable composer(s) and
publisher(s)) covering all of the music contained in the Service. Network has
commenced negotiations for a through-to-the-viewer music performance rights
license with SESAC and expects to attain such license within a reasonable period
of time.
24