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EXHIBIT 4.8
MASTER AGREEMENT
FOR OVERNIGHT PROGRAMMING, USE OF DIGITAL CAPACITY
AND
PUBLIC INTEREST PROGRAMMING
This MASTER AGREEMENT FOR OVERNIGHT PROGRAMMING, USE OF DIGITAL CAPACITY
AND PUBLIC INTEREST PROGRAMMING (the "Agreement") is dated as of September 10,
1999 between THE CHRISTIAN NETWORK, INC., a Florida not-for-profit corporation,
and XXXXXX COMMUNICATIONS CORPORATION, a Delaware corporation ("PCC"), all of
the Persons (as defined below) which are on the date hereof or may from time to
time become Subsidiaries (as defined below) of PCC, including, without
limitation, the Subsidiaries listed on Exhibit A hereto (collectively, the "PCC
Subsidiaries" and collectively with PCC, "PCC").
RECITALS
A. PCC owns the television stations set forth on Exhibit B hereto.
B. PCC is entering into various agreements with the National Broadcasting
Company, Inc. ("NBC") pursuant to which NBC is making an investment in PCC. In
connection with the PCC-NBC Agreements, the parties are entering into this
Agreement with the consent and approval of NBC.
C. All parties to this Agreement, including the Licensees of the
Stations, acknowledge that CNI has substantial experience and expertise in
producing high quality broadcast television programming and public interest
programming of both a commercial and non-commercial nature, including public
affairs, children's, instructional and educational programming, for nationwide
distribution to television stations and that, since its inception as an owner
and operator of television broadcast stations seven years ago, PCC has
broadcast on its stations CNI's public interest programming pursuant to
individual station affiliation agreements and the parties to this Agreement,
including the Licensees of the Stations acknowledge that such programming is
instructional and educational and constitutes suitable programming in the
public interest.
D. The FCC imposes public interest obligations on all television stations
requiring television stations to provide programming that meets the public
interest, convenience and necessity, address community issues with responsive
programming, provide three hours weekly of children's educational programming,
and adhere to the restrictions on the airing of indecent programming.
E. The Telecommunications Act of 1996 provides that these public interest
obligations of television stations extend to their digital operations, and the
FCC has announced that it may adopt new public interest rules for digital
television.
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F. The Advisory Committee on Public Interest Obligations of Digital
Broadcasters was created by the White House pursuant to Executive Order and has
sent its Final Report to the FCC recommending that additional public interest
obligations be imposed on digital television stations. The FCC has announced
that it will initiate a proceeding to consider these recommendations.
G. PCC has determined that the public interest, convenience and necessity
would be served by the continued overnight broadcast of CNI Programming on the
Stations which includes instructional and educational programming. It is in the
best interests of PCC to satisfy its public interest obligations and such
additional obligations as may be imposed on PCC in the digital future through
the broadcast of CNI Programming on the Stations. PCC and CNI have agreed that,
subject to the terms and conditions set forth herein, PCC shall grant to CNI
the right to broadcast CNI Programming on the Stations in analog overnight or
in digital on 0.6 MHz of spectrum.
AGREEMENTS
In consideration of the mutual covenants set forth herein and other good
and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto intending to be legally bound agree as
follows:
SECTION 1. DEFINITIONS. All capitalized terms not defined elsewhere in
this Agreement shall have the meanings ascribed to such terms in this Section
1.
(a) "Act" means the Communications Act of 1934, as amended or any
successor Congressional Act regulating communications.
(b) "CNI" means, collectively, The Christian Network, Inc., a
Florida not-for-profit corporation, one or more for-profit or not-for-profit
Subsidiaries of CNI that exist on the date hereof or that CNI may create from
time to time and any successors of CNI and such Subsidiaries.
(c) "CNI Digital Channel" means a portion of each Station's
digital television capacity consisting of 0.6 MHz made available to CNI for 24
hours per day, seven days per week and should any future action by the FCC or
Congress reduce the digital spectrum allocated to each Station the CNI Digital
Channel shall be reduced proportionately.
(d) "CNI Overnight Programming" means programming that is to be
broadcast overnight on the Stations consisting of entertainment, instructional,
educational and other family-values based programming of CNI's selection that
does not include excessive or gratuitous violence, explicit sex or foul
language.
(e) "CNI 24-hour Digital Programming" means programming that is
to be broadcast on the CNI Digital Channel consisting of entertainment, public
affairs, children's instructional, educational and other family-values based
programming of
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CNI's selection that does not include excessive or gratuitous violence,
explicit sex or foul language.
(f) "CNI Program" means each television program in the CNI
Overnight Programming or CNI 24-hour Digital Programming.
(g) "CNI Programming" means the collective television programs in
CNI Overnight Programming or CNI 24-hour Digital Programming.
(h) "Digital Transition Period" shall mean, for each Station, the
period commencing on the date that the Station first broadcasts a digital
signal to the general public on a consistent basis and ending upon the
effective date of the Station's return of its analog channel to the FCC.
(i) "DMA" means a Designated Market Area as determined by Xxxxxxx
Media Research or such successor designation of television markets that may in
the future be recognized by the FCC or Congress for determining television
markets.
(j) "FCC" means the Federal Communications Commission or any
successor agency thereto.
(k) "First Stage" shall mean, for each Station, the period of time
commencing upon the Effective Date of this Agreement and continuing until the
date on which CNI commences use of the CNI Digital Channel on that Station.
(l) "License" means a license or permit issued by the FCC to
operate a television station covered by this Agreement in an analog or digital
mode and any successors thereto.
(m) "Licensee" means any entity holding a License as of the date
of this Agreement or subsequent thereto.
(n) "PCC Converted Station" means any Station that is converted
to an affiliate of a television broadcast network other than PAX TV.
(o) "Person" means an individual, partnership, corporation,
business trust, limited liability company, trust, unincorporated association,
venture, governmental authority or other entity of whatever nature.
(p) "Replacement Coverage" means, with respect to any Station,
the delivery of such Station's CNI Programming by free over-the-air broadcast
transmissions or by a multi-channel distribution system, or by any combination
thereof, to substantially the same number of households in the Station's DMA
that received the Station's CNI Programming prior to the commencement of
Replacement Coverage as determined by an ITS Terrain Study or any other widely
accepted industry methodology for calculating a Station's signal coverage.
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(q) "Second Stage" shall mean, for each Station, the period of
time after CNI's use of the CNI Digital Channel on that Station commences.
(r) "Single Majority Shareholder" means a Person who has the
right to vote shares of Voting Stock having more than 50% of the Total Voting
Power of all of the outstanding voting stock and voting capital stock
equivalents of PCC whether or not such shares are issued to such person. For
the purpose of this definition, "Total Voting Power" shall mean, with respect
to PCC, the total number of votes which may be cast in the election of
directors of PCC if all securities entitled to vote in the election of such
directors (excluding shares of Preferred Stock that are entitled to elect
directors only upon the occurrence of customary events of default) are present
and voted.
(s) "Station" means any television station set forth on Exhibit B
hereto together with any other television station acquired from time to time by
PCC after the date hereof and prior to any FCC-approved transfer of control of
PCC where Xxxxxx X. Xxxxxx ("Xxxxxx") is no longer PCC's Single Majority
Shareholder (other than any pro forma transfer of control of PCC; provided,
however, that Xxxxxx remains PCC's single majority shareholder). Except as
otherwise provided herein, any Station that becomes a PCC Converted Station
shall continue to be a "Station" following such conversion for the purposes of
this Agreement.
(t) "Subsidiaries" means, with respect to any Person, a
corporation, partnership or other Person of which shares of stock or other
ownership interests having ordinary voting power to elect a majority of the
board of directors or other managers of such corporation, partnership or other
Person are at the time owned, or the management of which is otherwise
controlled, directly or indirectly, through one or more intermediaries, or
both, by such Person.
SECTION 2. OVERNIGHT PROGRAMMING.
(a) Grant and Acceptance of Rights. With respect to each Station,
during the First Stage of this Agreement for such Station, CNI has the right to
provide the CNI Overnight Programming and grants to PCC the right and license,
and PCC accepts the obligation, to broadcast the CNI Overnight Programming, in
the primary analog and primary digital format until the Second Stage, and PCC
will broadcast the CNI Overnight Programming on each Station, seven days per
week on an overnight basis from 1:00 am to 6:00 am, Eastern and Pacific time
(or 12:00 am to 5 am, Central and Mountain Time), except that for PCC Converted
Stations the time of broadcast shall be from 1:30 am to 6:00 am, local time (or
12:30 am to 5 am, Central and Mountain Time).
(b) PCC Converted Station. If at any time during the First Stage
a Station becomes a PCC Converted Station, notwithstanding such conversion,
such Station shall continue to broadcast the CNI Overnight Programming in
accordance with Section 2(a) unless and until CNI receives Replacement
Coverage. If Replacement Coverage is provided with respect to any Station that
becomes a PCC Converted Station and such Replacement Coverage subsequently
ceases as a result of such
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coverage at any time having materially failed to satisfy the definition of
Replacement Coverage or otherwise such PCC Converted Station shall commence CNI
Overnight Programming broadcasts effective upon the cessation of Replacement
Coverage and shall continue such CNI Overnight Programming broadcasts until CNI
again receives Replacement Coverage or CNI commences use of the CNI Digital
Channel in accordance with Section 3 hereof.
(c) Manner of Broadcast. Except to the extent Replacement
Coverage (as defined in Section 1(p)) consists of a multi-channel distribution
system, each Station shall broadcast the CNI Overnight Programming from the
Station's originating transmitter and antenna for free over-the-air television
home reception and associated carriage by cable or other multi-channel
distribution system within the Station's DMA.
(d) Must Carry; Retransmission Consent.
(1) PCC or the Licensee of any Station may grant consent to
the retransmission of the Station's signal by a cable system or other
multi-channel distribution system pursuant to the provisions of Section 6 of
the 1992 Cable Act provided that such retransmission consent provides for
carriage of CNI Overnight Programming on the same terms and conditions
applicable to the Station's primary channel at no cost to CNI.
(2) Any Station may elect in the future mandatory carriage
("must-carry") pursuant to Section 76.64 (or other such applicable Section) of
the FCC Rules, for either its analog signal or for its digital signals, whether
on a digital tier or not, and, in such event, such Station shall make all
commercially reasonable efforts to enforce those must carry rights and shall
take all necessary steps to ensure that CNI Overnight Programming or digital
programming is entitled to such must-carry on an equal basis with the Station's
analog or primary digital channel, as applicable.
(3) The parties acknowledge that the FCC has a pending
rulemaking proceeding in CS Docket No. 98-120 regarding digital broadcast
television must-carry requirements for cable television operators. PCC will use
commercially reasonable efforts to see that the CNI Overnight Programming is
entitled to non-discriminatory must-carry rights relative to the rights
provided to the Station as a result of that or any other FCC must-carry
proceeding, or any statutory enactment, including, without limitation, cable
carriage or where applicable, carriage by any multi-channel distribution
system, in a manner that provides the widest possible viewer receipt of the CNI
Overnight Programming during the Digital Transition Period and carriage in both
the analog and digital format that is equal to the Station's analog or primary
digital channel, as applicable.
(e) Digital Channel for the First Stage. During the Digital
Transition Period, with respect to the digital and analog channels allocated to
each Station by the FCC for use in broadcasting a digital television signal of
such Station, PCC shall cause the Station to broadcast the CNI Overnight
Programming as required hereunder simultaneously over both the analog and the
digital channel. Notwithstanding the
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Station's return of its analog channel at the end of the Digital Transition
Period, except as set forth in Section 3, the Station shall continue to
broadcast the CNI Overnight Programming over the Station's digital channel,
whether that channel uses HDTV, ATV, or some other digital broadcast format;
provided that, in the event that PCC engages in multi-casting during the First
Stage of this Agreement, the CNI Overnight Programming shall be on the primary
digital channel visible to the viewer. Digital broadcasts of the CNI Overnight
Programming pursuant to Section 2(a) shall continue until such time as CNI
commences use of the CNI Digital Channel (as that term is defined below in
Section 3).
(f) Licensee Discretion and Preemptions of CNI Overnight
Programming. CNI recognizes that the Licensee of each Station has full
authority to control such Station under currently applicable law. The Licensee
of each Station shall have the right to reject any portion of the CNI Overnight
Programming that such Licensee reasonably believes to be unsatisfactory,
unsuitable or contrary to the public interest (an "Unsuitable Program"). In the
event of any such rejection, the Licensee shall give CNI written notice of such
rejection at least 7 days in advance of the scheduled broadcast or as soon as
possible. Any portion of the CNI Overnight Programming may be deemed by the
Licensee to be an Unsuitable Program only if: (i) such Licensee reasonably
believes that the telecast of such CNI Overnight Programming would violate
applicable governmental laws, rules, regulations or published policies or (ii)
if in such Licensee's reasonable judgment preemption of such portion of the CNI
Overnight Programming is required in order for the Station to meet a
programming obligation imposed by the FCC that cannot otherwise be met by the
Station and the Licensee provides a written explanation for its determination.
No CNI Overnight Programming may be deemed by the Licensee to be an Unsuitable
Program based on program performance or ratings, advertiser reactions or the
availability of alternate programming which such Licensee believes to be more
profitable or attractive than such CNI Overnight Programming. If such Licensee
refuses to broadcast any Unsuitable Program, CNI shall have the right to
provide substitute CNI Programming to the Station from the previously approved
CNI Programming which shall be provided to PCC at least 30 days in advance of
the scheduled broadcast or as soon as possible. The Licensee may also preempt
the CNI Overnight Programming to provide the broadcast of live reports of a
fast breaking news event free of commercial announcements or any promotional
announcements for the Station or its network.
SECTION 3. USE OF CNI DIGITAL CHANNEL. During the Second Stage of this
Agreement as applicable to each Station, PCC shall make available to CNI for
CNI's use the CNI Digital Channel. CNI shall have the right to retain all
income and donations received by CNI in connection with its use of the CNI
Digital Channel of the Stations. PCC agrees that CNI's right to use the CNI
Digital Channel is part of the essence of this Agreement.
(a) Commencement of Use of CNI Digital Channel. Upon any Station
engaging in multi-casting using two multi-cast channels, from the Station's 6
MHz
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television channel, PCC shall immediately make available to CNI (the third
channel) the CNI Digital Channel for such Station.
(b) PCC Converted Station. If at any time during the Second Stage
a Station becomes a PCC Converted Station, notwithstanding such conversion,
such Station shall continue to have the carriage obligations for the CNI
Digital Channel as set forth in this Agreement except to the extent CNI has
been provided with Replacement Coverage, and CNI shall continue to have the
right to provide CNI Programming.
(c) Programming of CNI Digital Channel. CNI shall have the right
to program each Station's CNI Digital Channel with CNI 24-hour Digital
Programming. The parties hereto acknowledge that the FCC has not yet
implemented specific public interest obligations for the use of the digital
spectrum by television stations. Accordingly, the actual CNI Programs supplied
by CNI for the CNI Digital Channel of each Station will be subject to change
from time to time as reasonably decided by CNI so as to satisfy the public
interest obligations (including, without limitation, children's programming
obligations) as they may be imposed by the FCC on the use of the digital
spectrum by such Station. The parties hereto acknowledge that the CNI
Programming contains commercial and non-commercial aspects and contains
programming that is educational and instructional in nature. Subject to change
in order to satisfy the FCC's public interest obligations (including, without
limitation, children's programming obligations), CNI has the right to provide
up to 90 minutes per week of public affairs programming on the CNI Digital
Channel for broadcast between the hours of 6:00 a.m. and Midnight; three (3)
hours per week of children's programming for broadcast during core programming
hours suitable for compliance with FCC regulations implementing the Children's
Television Act or any successor law; and thirteen (13) hours per week of
instructional/educational programming, provided, however, that in the event
that CNI's use of the CNI Digital Channel is preempted pursuant to Section 3(f)
or (g) hereof, CNI will have the right to not provide any public affairs and
children's programming. The programming to be broadcast on the CNI Digital
Channel shall conform in all material respects with applicable laws, including
the Act and the rules, regulations and published policies of the FCC. Subject
to the foregoing, CNI shall not be required to produce or deliver any news
programming for broadcast on the Stations or provide broadcast access to
political candidates. CNI may use the CNI Digital Channel of each Station for
free-over-the-air video television service, data casting to the extent that it
is wholly integrated with the CNI Programming and its content is relevant to
the CNI Programming and to obtain associated carriage by cable or other
multi-channel distribution system and may not use the CNI Digital Channel of
any Station for any non-video, non-data casting or non-broadcast uses except
with the prior written consent of PCC, such consent not to be unreasonably
withheld.
(d) Rights of Carriage. PCC shall cause the Stations to broadcast
the CNI Digital Channel from the Stations' originating transmitters and
antennas for free over-the-air television home reception and associated
carriage by cable, multi-channel distribution system or any other delivery
system as may be developed in the future within the Station's DMA. PCC shall
broadcast the CNI Digital Channel on the same basis as the other multi-cast,
multi-channel digital services of that Station and shall not
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discriminate in its broadcast transmission of the CNI Digital Channel, provided
that in no event shall the CNI Digital Channel be entitled to more than 0.6
MHz. CNI shall not be obligated to drop its First Stage overnight carriage and
to commence use of the CNI Digital Channel until the number of households in
the DMA capable of receiving the CNI Digital Channel off-air or by cable
carriage or other multi-channel video programming distributor pursuant to must
carry or retransmission consent reaches twenty-five percent (25%) of the total
number of households in the DMA. The Station shall be permitted to employ
digital technology that allows it to use the Stations' spectrum more
efficiently, provided that such use shall not in any way degrade the quality or
the extent of delivery to viewers of the CNI Digital Channel or any other
aspect of CNI's use of the CNI Digital Channel.
(e) Must Carry; Retransmission Consent. The parties acknowledge
that the FCC has a pending rulemaking proceeding in CS Docket No. 98-120
regarding digital broadcast television must-carry requirements for cable
television operators during and after the Digital Transition Period and in a
multi-cast, multi-channel environment.
(1) PCC or the Licensee of any Station may grant consent to
the retransmission of the Station's signal by a cable system or other
multi-channel distribution system pursuant to the provisions of Section 6 of the
1992 Cable Act, provided that PCC uses commercially reasonable efforts to see
that the retransmission consent provides for carriage of CNI 24-hour Digital
Programming on terms at least as favorable as the carriage afforded to the
primary channel or any of the multi-cast channels using the Station's 6 MHz
television channel and at no cost to CNI.
(2) Any Station may elect in the future mandatory carriage
("must carry") pursuant to rules adopted by the FCC. PCC will use commercially
reasonable efforts to see that the CNI 24-hour Digital Programming shall be
entitled to non-discriminatory must-carry rights relative to those secured by
the Station, including, without limitation, carriage by cable or other
multi-channel distribution system in a manner that provides the widest possible
viewer receipt of the CNI 24-hour Digital Programming. PCC and the Station
Licensees agree to use commercially reasonable efforts to fulfill the intent of
the parties with respect to must-carry rights. At a minimum, the CNI 24-hour
Digital Programming shall be entitled to non-discriminatory carriage by cable or
other multi-channel distribution system relative to that afforded to the primary
channel or any of the multi-cast channels using the Station's 6 MHz television
channel, provided that in no event shall the CNI Digital Channel be entitled to
more than 0.6 MHz. The parties also acknowledge that there is pending in
Congress legislation regarding digital broadcast television must-carry
requirements for satellite multi-channel video programming providers during and
after the Digital Transition Period and in a multi-cast, multi-channel
environment.
(3) PCC or the Licensee of any Station may grant consent to
the retransmission of the Station's signal by a satellite system or other
multi-channel distribution system, provided that the retransmission consent
provides for carriage of CNI 24-hour Digital Programming that is
non-discriminatory relative to the carriage afforded to the primary channel or
any of the multi-cast channels using the Station's 6
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MHz television channel and at no cost to CNI, provided that in no event shall
the CNI Digital Channel be entitled to more than 0.6 MHz.
(4) Any licensed Station may elect mandatory carriage ("must
carry") pursuant to laws adopted by Congress. PCC will use commercially
reasonable efforts to see that the CNI 24-hour Digital Programming shall not be
discriminated in any must-carry rights selected by the Station, including,
without limitation, carriage by satellite systems in a manner that provides the
widest possible viewer receipt of the CNI 24-hour Digital Programming. PCC
agrees to take all commercially reasonable steps necessary to fulfill the intent
of the parties with respect to must-carry rights. At a minimum, the CNI 24-hour
Digital Programming shall be entitled to the most favorable carriage afforded to
the primary channel or any of the multi-cast channels using the Station's 6 MHz
television channel, provided that in no event shall the CNI Digital Signal be
entitled to more than 0.6 MHz.
(f) Licensee Discretion and CNI Digital Channel Preemption. CNI
recognizes that the Licensee of each Station has full authority to control such
Station under currently applicable law. PCC agrees that, should the law or FCC
rules, policies or interpretations change to permit users of digital broadcast
spectrum to control directly their own use of the spectrum, this subsection
shall no longer apply. Until such change, however, the following provisions
shall apply to the minimum extent required by the FCC (if at all), the parties
intending that CNI would have absolute control of the CNI Digital Channel under
this Agreement if and to the extent permitted by law. The Licensee of each
Station shall have the right to reject any portion of the CNI 24-hour Digital
Programming to be broadcast on such Station which such Licensee reasonably
believes to be an Unsuitable Program. In the event of any such rejection by a
Licensee, the Licensee shall give CNI written notice of such rejection at least
7 days in advance of the scheduled broadcast or as soon as possible. Any
portion of the CNI 24-hour Digital Programming may be deemed by the Licensee to
be an Unsuitable Program only if: (i) such Licensee reasonably believes that
the telecast of such CNI Programming from the CNI 24-hour Digital Programming
would violate applicable governmental laws, rules, regulations or published
policies or (ii) if in such Licensee's reasonable judgment preemption of such
CNI Programming from the CNI 24-hour Digital Programming is required in order
for the Station to meet the public interest programming obligations imposed by
the FCC that cannot otherwise be met by the Station and the Licensee provides a
written explanation for its determination. No CNI 24-hour Digital Programming
may be deemed by Licensee to be an Unsuitable Program based on program
performance or ratings, advertiser reactions or the availability of alternate
programming which such Licensee believes to be more profitable or attractive
than such CNI 24-hour Digital Programming. If such Licensee refuses to
broadcast any Unsuitable Program, CNI shall have the right to provide
substitute CNI Programming to the Station from the previously approved CNI
Programming. The Licensee may also preempt the CNI 24-hour Digital Programming
to provide the broadcast of live reports of a fast breaking news event free of
commercial announcements or any promotional announcements for the Station or
its network.
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(g) HDTV Preemption Rights. On a PCC Converted Station, CNI's use
of the CNI Digital Channel may be preempted only in the following circumstance:
(i) use of the CNI Digital Channel is required for HDTV broadcasts and there is
no other technologically feasible means (including use of any other portions of
the 6 MHz digital channel other than the CNI Digital Channel, or the use of
other equipment or technologies, such as digital compression equipment) to
achieve the HDTV broadcast without use of the CNI Digital Channel; provided,
however, that PCC and Licensees agree to use commercially reasonable efforts to
avoid preemption of the CNI Digital Channel for HDTV broadcasts if it is
technologically feasible at the time of any such preemption to broadcast HDTV
in the 1080i picture format with less than 6 MHz of spectrum; (ii) any
preemptions of the CNI Digital Channel for HDTV broadcasts do not exceed twelve
(12) hours of each broadcast day; and (iii) CNI receives as much notice as is
commercially reasonable of any preemptions for HDTV broadcasts.
(h) Provision of Alternate Spectrum. Nothing in this Agreement is
intended to restrict or limit the use of digital technology to permit the more
efficient use of the Station's digital spectrum so long as such technology does
not in any way degrade the quality of any CNI Program or limit the amount of
programming time on or CNI's right to use the 0.6 MHz spectrum in the CNI
Digital Channel. Without limiting the generality of the foregoing, alternate
spectrum may be substituted for the CNI Digital Channel ("Alternate Spectrum"),
provided that the Alternate Spectrum is reasonably comparable in all respects,
including geographic coverage and audience reach, signal quality to viewers,
channel position and free reception, and provided that, if the Alternate
Spectrum consists of a broadcast station other than a PCC Station, the Licensee
of such broadcast station agrees in writing to be bound by all of the terms of
the individual Station Agreement. If the Alternate Spectrum provided by the
other Station shall become unavailable or unsuitable for longer than a period
of thirty (30) consecutive days, for use by the CNI Digital Channel as provided
herein, CNI shall have the right to have the CNI Digital Channel carried on the
PCC Station as provided for in this Agreement and the individual Station
Agreement reinstated.
SECTION 4. PROVISIONS APPLICABLE TO CNI OVERNIGHT PROGRAMMING AND CNI
DIGITAL CHANNEL
(a) Term. This Agreement shall become effective as of the date of
execution of this Agreement and, except as set forth in Section 6(d) hereof,
shall continue in effect for a period of fifty years and will thereafter
automatically renew for successive periods of ten years, unless and until one
of the following events occur (a) CNI or its permitted successors or assigns
cease to exist; (b) CNI commences a proceeding for voluntary or involuntary
liquidation and dissolution; (c) CNI ceases to provide family values-based
programming with no excessive or gratuitous violence, no explicit sex and no
foul language in accordance with the CNI Statement of Mission and Purpose
attached hereto as Exhibit C; or (d) the FCC licenses for a majority of the
Stations are revoked.
(b) Delivery and Distribution. CNI shall produce, acquire and
deliver the CNI Overnight Programming and the CNI 24-hour Digital Programming
to each
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Station at CNI's expense using commercially reasonable and industry accepted
delivery methods. CNI will provide the CNI Programming to the PAX TV network
master control or other master control location specified by PCC, at CNI's
expense, in order to permit the inclusion of the CNI Programming in the network
feed for delivery to the Stations. For any Station that does not receive a PAX
TV or other network feed, CNI shall provide the CNI Programming to such Station
via CNI satellite delivery or other industry accepted delivery method at CNI's
expense. If the PCC network programming subsequently originates from other
network facilities, the CNI Programming shall be provided to that facility by
satellite delivery or other industry accepted delivery method at CNI's expense.
The Licensee of each Station shall install and maintain at its expense the
equipment which is necessary to receive, decode, decompress and distribute
standard analog and digital programming on the Station or on the CNI Digital
Channel of such Station. The Licensee of each Station shall within five (5)
business days of filing any application with the FCC notify CNI in writing of
any proposed change in the Station's facilities. The Licensee of each Station
shall not change the facilities of such Station in a manner that could
materially adversely affect CNI's rights under this Agreement with respect to
such Station without CNI's consent. To the extent that CNI prepares local
public affairs programming for some or all of the Stations, such Stations shall
incorporate this programming into the CNI Programming being broadcast by the
Stations at the times selected by CNI, via tape or other insertion method.
(c) Website Hyperlinks. While Xxxxxx is the Single Majority
Shareholder of PCC, (i) each Station that utilizes an Internet website will
provide at the Station's expense a first screen hyperlink to the CNI Internet
website, and (ii) if a majority of the Stations are affiliated with a
television network that utilizes an Internet website, such network shall
provide at the network's expense a first screen hyperlink to the CNI Internet
website. CNI shall at its sole expense provide the graphic material required to
establish the hyperlinks described in this section. CNI's website shall conform
in all respects to the CNI Mission Statement and Statement of Purpose.
(d) Licensee Operation of Station. To the extent required by law,
the Licensee of each Station shall be responsible for the Station's compliance
with all applicable laws, including the Act and the rules, regulations and
published policies of the FCC. Nothing in this Agreement shall abrogate the
unrestricted authority of such Licensee to discharge its obligations to the
public and to comply with all applicable laws and the rules, regulations and
policies of the FCC. The Licensee of each Station shall coordinate with CNI any
announcements required to be aired by the FCC during the programming being
provided by CNI. In the event that any Station preempts or rejects any CNI
Programming, as provided for in this Agreement, the Station's substitute
programming will be inserted at its own expense in the CNI Programming via
insertion at the Station in the manner and at the times designated by CNI and
in all respects acceptable to CNI. CNI shall have the right to provide the
Station with such information concerning CNI's programming and advertising as
is necessary to assist the Station to prepare information and materials
required to be placed in the Station's public inspection file or filed with the
FCC, including without limitation, the Station's quarterly issues and program
lists; information concerning the broadcast of children's educational and
informational programming; and documentation of compliance with commercial
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limits applicable to certain children's television programming and political
broadcast material to the extent CNI is required to broadcast political
programming or advertisements by applicable law. CNI's rights hereunder will be
exercised in a manner to assist in the Station's compliance with all applicable
laws, rules, regulations and published policies of the FCC. If a Station
reasonably determines that the CNI Programming does not comply with FCC
requirements relating to children's or public affairs programming, then the
Station may, at its sole expense, provide substitute programming via insertion
at the Station for placement within the CNI Programming at such times as CNI
determines is appropriate provided that such programming complies with CNI's
family values-based programming with no excessive or gratuitous violence, no
explicit sex and no foul language.
(e) Children's Television Advertising. Subject to changes in
applicable laws, rules, regulations and published policies of the FCC, CNI
agrees that it will not broadcast on any Station advertising within programs
originally designed for children aged 12 years and under in excess of the
amounts permitted under applicable FCC rules, and will take all steps necessary
to pre-screen children's educational and institutional programming broadcast
during the hours it is providing such programming, to establish that
advertising is not being broadcast in excess of the applicable or any future
FCC rules.
(f) Payola. CNI agrees that it will not accept any consideration,
compensation, gift or gratuity of any kind whatsoever, regardless of its value
or form, including, but not limited to, a commission, discount, bonus,
material, supplies or other merchandise, services or labor (collectively
"Consideration"), whether or not pursuant to written contracts or agreements
between CNI and merchants or advertisers, unless the payer is identified in the
program for which Consideration was provided as having paid or furnished such
Consideration, in accordance with applicable laws and the rules, regulations
and published policies of the FCC.
(g) Cooperation on Programming. CNI and the Licensee of each
Station mutually acknowledge their interest in ensuring that such Station
serves the needs and interests of viewers in the service area of the Station
and agree to cooperate to provide such service. The Station may request, and
CNI shall have the right to provide, information to the Station concerning
CNI's programs as are responsive to community issues so as to assist the
Station in the satisfaction of its public service programming obligations. CNI
may also provide the Station with information necessary to enable the Station
to prepare programming-related records and reports required by the FCC. Upon
CNI's request, the Station shall provide CNI with notarized quarterly reports
in a form reasonably acceptable to CNI on the Station's compliance with its
obligations under this Agreement including, but not limited to, its carriage of
the CNI Programming.
(h) Unauthorized Copying. PCC and the individual Licensees shall
not, and shall not authorize others to, record, copy or duplicate any
programming and other material furnished by CNI hereunder, in whole or in part,
and shall take all reasonable
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precautions to prevent any such recording, copying or duplicating (except for
copying by viewers for home viewing).
(i) Programming Changes. CNI shall have the right, in its sole
discretion, subject to Section 2(f) or 3(f), as applicable, to (i) modify,
cancel or replace any CNI Program, so long as any such modified or replacement
programming is similar in context in all material respects to CNI's existing
family values-based programming with no excessive or gratuitous violence, no
explicit sex and no foul language, or (ii) change the day or time period during
which any CNI Program is scheduled to be broadcast but only within the time
periods during which PCC is obligated to air CNI Programming. Any program
delivered by CNI in place of any CNI Program regularly scheduled for broadcast
by CNI shall be considered a CNI Program.
(j) Promotion. CNI and PCC will promote the broadcast of the CNI
Overnight Programming and the CNI Digital Channel in a cooperative manner. PCC
agrees to consider and, to the extent it deems consistent with the public
interest, convenience and necessity, follow guidelines established by CNI with
respect to the promotion of the CNI Overnight Programming or the CNI Digital
Channel in each Station's service area, including without limitation,
on-the-air promotion, billboards, radio, and newspapers or other printed
advertisements, announcements or promotions provided, however, that PCC is not
obligated to spend any funds on any promotional efforts for CNI or CNI
Programming. While Xxxxxx is the single majority shareholder of PCC, PCC agrees
to air two ten-second CNI promotional announcements on a run of schedule basis
daily during the First Stage only.
(k) Programming. All rights in and to the CNI Overnight
Programming or the CNI 24-hour Digital Programming not specifically granted to
PCC in this Agreement are reserved to CNI for its exclusive use. All right,
title and interest in and to the CNI Overnight Programming and the CNI 24-hour
Digital Programming will remain the property of CNI, subject only to PCC's
right and obligation to broadcast the CNI Overnight Programming and transmit
the CNI 24-hour Digital Programming in accordance with this Agreement.
(l) Trademark License. CNI hereby licenses PCC and the Station
Licensees to use certain of its trade names, trademarks and service marks (the
"CNI Marks") in connection with the performance of their obligations under this
Agreement, subject to the following conditions. Use of the CNI Marks shall
inure solely to the benefit of CNI. PCC and the Station Licensees acknowledge
and agree that uniform and high standards of quality of use of the CNI Marks
are necessary in order to maintain the public image and widespread reputation
of the CNI Marks. PCC and the Station Licensees agree that they will not use
the CNI Marks in a manner that might tend to reflect negatively on the CNI
Marks and/or CNI; it being expressly recognized by PCC and the Station
Licensees that CNI presents family values-based programming with no excessive
or gratuitous violence, no explicit sex and no foul language.
(m) Changes in Law, FCC Rules and Policies. The parties
acknowledge that governing law may change the manner in which users of the
digital
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capacity on broadcast stations are regulated and the scope of Licensee
discretion over a station's digital capacity. In the event that the rules,
regulations or published policies of the FCC, the provisions of the Act, or any
other applicable law are changed in a manner that materially and adversely
affects this Agreement, then CNI may, at its option and in its sole discretion,
(1) terminate this Agreement without any liability whatsoever, effective upon
the effective date of the change in applicable law but that otherwise complies
with the terms and conditions of this Agreement; or (2) change the CNI
Overnight Programming or CNI 24-hour Digital Programming in a manner that
conforms to the policies and requirements of the change in applicable law; or
(3) enter into good faith negotiations with PCC seeking to convert CNI's rights
to the CNI Digital Channel to an ownership interest if the parties can reach a
mutually acceptable agreement, if and to the extent permitted by governing law
or (4) seek any appropriate waiver of the FCC's rules to permit this Agreement
to continue unchanged. Without limiting the foregoing in any way, if, in the
future, the Stations' digital broadcast spectrum becomes sublicensable, CNI
shall have the right to enter into good faith negotiations with PCC to attempt
to reach a mutually acceptable agreement to convert the CNI Digital Channel on
each Station to such FCC sublicense, if and to the extent permitted by
governing law. In this Agreement and subject to the negotiations referred
above, the parties intend that CNI shall have all right, title and interest in
and to the CNI Digital Channel to the fullest extent permitted by applicable
provisions of the Act, and the rules, regulations and policies of the FCC
promulgated thereunder (collectively with the Act, the "Communications Law") as
the Communications Law may be amended or interpreted from time to time subject
to CNI and PCC negotiating a mutually acceptable agreement. If, at any time
following the date of this Agreement, the Communications Law is amended to
permit CNI to acquire the CNI Digital Channel for each Station then CNI shall
have the right to enter into good faith negotiations with PCC to attempt to
reach a mutually acceptable agreement to convert the CNI Digital Channel on
each Station to such FCC sublicense, if and to the extent permitted by
governing law to CNI. Upon the consummation of such conveyance, neither PCC,
CNI nor the applicable Station Licensee shall have any further obligation
hereunder except to transmit the CNI Programming. The parties hereto further
acknowledge that CNI may seek whatever rule or law changes are necessary to
permit CNI to be the sublicensee or owner of the CNI Digital Channel and that
the other parties to this Agreement will not oppose or otherwise seek to impede
such rule or law change in any manner whatsoever. To the extent that revisions
in the Communications Law or changes in the technology employed by television
stations occur such that the Stations utilize a transmission or broadcast
method different from the current analog or anticipated digital methods, the
parties acknowledge that it is their intent that CNI retain its rights to
broadcast the CNI Programming over the Stations to the full extent provided by
this Agreement, to the extent commercially reasonable, by amending or modifying
the terms and conditions of this Agreement, if necessary, to effectuate that
intent. It is expressly understood that the parties intend that CNI's rights
under this Agreement will not be adversely affected in the future by law or
technological changes.
(n) Broadcast in Entirety. Subject to the preemption rights under
this Agreement, PCC agrees to cause the Stations licensed to broadcast in its
entirety, without any editing, delay, addition, alteration or deletion, the CNI
Programming,
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including the primary video and accompanying audio portions of the signal; all
CNI identification; all commercial spots and noncommercial announcements; all
promotional material; all data casting transmissions to the extent that it is
wholly integrated with the CNI Programming and its content is relevant to the
CNI Programming; all copyright and trademark notices; all sponsorship
identification announcements; all credits and xxxxxxxx; all information in the
Vertical Blanking Interval to the extent that it is wholly integrated with the
CNI Programming and its content is relevant to the CNI Programming; any and all
video anywhere within digital signal; and any other proprietary material of any
kind or nature included therein.
SECTION 5. REPRESENTATIONS AND WARRANTIES; COVENANTS; INDEMNIFICATIONS
(a) Representations, Warranties and Covenants of CNI. CNI
represents and warrants to PCC as follows:
(1) CNI has full power and authority to execute and deliver
this Agreement and to consummate the transactions contemplated hereby. The
execution and delivery of this Agreement and the consummation of the
transactions contemplated hereby by CNI have been duly and validly authorized
by CNI. This Agreement has been duly and validly executed and delivered by CNI
and constitutes a legal, valid and binding agreement of CNI enforceable against
CNI in accordance with its terms, except as such enforceability may be affected
by bankruptcy, insolvency or similar laws affecting creditors' rights generally
and by judicial discretion in the enforcement of equitable remedies.
(2) There is no requirement applicable to CNI to obtain any
permit, authorization, consent or approval of, any governmental or regulatory
authority or any other third party as a condition to the consummation by CNI of
the transactions contemplated by this Agreement.
(3) The execution, delivery and performance of this
Agreement by CNI will not (with or without the giving of notice, the lapse of
time or both) (i) conflict with its organizational documents, (ii) result in a
default (or give rise to any right of termination, cancellation or
acceleration) under any of the terms, conditions or provisions of any note,
bond, mortgage, agreement or lease to which CNI is a party or by which it is
bound, or (iii) violate any statute, law, rule, regulation (including any rule
or regulation of the FCC), order, writ, injunction or decree applicable to CNI.
(4) CNI owns the complete exhibition and broadcast rights
to the CNI Programming and that there is no contract with any other person
which will in any way interfere with any broadcast rights granted under this
Agreement and the CNI Programming does not infringe upon any trademark, service
xxxx, trade name or copyright and does not violate the private, civil or
property rights, the rights of privacy or publicity or any other rights of any
third party and conforms to the CNI Statement of Mission and Purpose.
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(5) CNI shall comply in all material respects with the
Communications Law.
(6) As of the date hereof, CNI qualifies as an organization
described in Section 501(c)(3) of the Internal Revenue Code of 1986, as
amended.
(b) Representations and Warranties of PCC. PCC represents and
warrants to CNI as follows:
(1) PCC has full power and authority to execute and deliver
this Agreement and to consummate the transactions contemplated hereby. The
execution and delivery of this Agreement and the consummation of the
transactions contemplated hereby by PCC have been duly and validly authorized
by all necessary action on the part of PCC. This Agreement has been duly and
validly executed and delivered by PCC and constitutes a legal, valid and
binding agreement of PCC enforceable against it in accordance with its terms,
except as such enforceability may be limited by bankruptcy, insolvency or
similar laws affecting creditors' rights generally and by judicial discretion
in the enforcement of equitable remedies.
(2) There is no requirement applicable to PCC to obtain any
permit, authorization, consent or approval of, any governmental or regulatory
authority or any other third party as a condition to the consummation by PCC of
the transactions contemplated by this Agreement and PCC is required to make a
filing with the FCC with respect to this Agreement.
(3) The execution, delivery and performance of this
Agreement by PCC will not (with or without the giving of notice, the lapse of
time or both) (i) conflict with its organizational documents, (ii) result in a
default (or give rise to any right of termination, cancellation or
acceleration) under any of the terms, conditions or provisions of any note,
bond, mortgage, agreement or lease to which it is a party or by which any of
its assets are bound, or (iii) violate any statute, law, rule, regulation,
order, writ, injunction or decree applicable to PCC.
(4) PCC is on the date hereof the parent of the Licensee of
each Station listed on Exhibit B.
(c) Covenants Relating to Licenses. The Licensee of each Station
hereby warrants that during the term of this Agreement, it will operate its
Station in compliance in all material respects with all applicable laws,
including the Act and the rules, regulations and published policies of the FCC.
During the term of this Agreement, PCC shall not enter into any commitments
that would prevent it from carrying out its obligations under this Agreement.
At the expense of CNI, the Licensee of each Station shall file at CNI's request
any and all applications or other filings with the FCC or at the local, State
and Federal level that CNI requests in order for CNI to fully receive all
benefits contemplated by this Agreement. Such Licensee shall diligently
prosecute such applications or other filings.
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(d) PCC's Indemnification. PCC shall indemnify and hold harmless
CNI and its affiliates, shareholders, directors, officers, employees and agents
from and against any and all claims, losses, costs, liabilities, damages,
forfeitures and expenses (including reasonable legal fees and other expenses
incidental thereto) of every kind, nature and description (collectively,
"Damages") resulting from PCC's breach of any representation, warranty,
covenant, agreement or obligation contained in this Agreement.
(e) CNI's Indemnification. CNI shall indemnify and hold harmless
PCC, the Station Licensees and their affiliates, shareholders, directors,
officers, employees and agents from and against any and all Damages resulting
from (i) CNI's breach of any representation, warranty, covenant, agreement or
obligation contained in this Agreement, (ii) any action taken by CNI or its
employees and agents with respect to the Stations, or any failure by CNI or its
employees and agents to take any action with respect to the Stations,
including, without limitation, Damages relating to violations of any applicable
laws or any rule, regulation or policy of the FCC, slander, defamation or other
claims relating to programming provided by CNI and CNI's broadcast and sale of
advertising time on the Stations or (iii) CNI's programming on the Stations.
(f) Limitation. No party shall be entitled to indemnification
pursuant to subsections (e), (f) and (g) unless such claim for indemnification
is asserted in writing delivered to the other parties.
(g) Indemnification. If upon presentation of a claim for
indemnity hereunder, the party against whom indemnification is requested does
not agree that all or part of such claim is subject to the indemnification
obligations imposed upon it pursuant to this Agreement, it shall promptly so
notify the party claiming to be entitled to indemnification hereunder.
Thereupon, the parties shall attempt in good faith to resolve their dispute,
including where appropriate, reaching an agreement as to that portion of the
claim, if any, which all concede is subject to indemnification. To the extent
that the parties are unable to reach agreement, the parties shall have all
remedies available at law or in equity.
SECTION 6. MISCELLANEOUS PROVISIONS
(a) Agreement Challenge. If this Agreement is challenged at the
FCC or in any court of law or equity, whether or not in connection with any
Station's License renewal, transfer or assignment application, PCC, CNI and the
Station Licensee, current or subsequent, shall defend this Agreement and the
parties' performance thereunder either individually, or at their option,
jointly, throughout all FCC and Court proceedings. The parties hereto agree
that they shall take no action to support in any manner, such a challenge to
this Agreement. If portions of this Agreement do not receive the approval of
the FCC or the Courts, or are otherwise determined to be invalid, then the
parties shall reform this Agreement as necessary to satisfy the FCC's or the
Court's concerns to the extent consistent with the parties' agreements
hereunder or, at CNI's option and expense, seek reversal of the FCC or Court
decision and approval from the full FCC or the Court.
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(b) Confidential Review. Upon any Station's request, CNI shall
acquaint the Licensee of such Station with the nature and type of the
programming provided by CNI. The Station shall be entitled to review at its
discretion from time to time on a confidential basis any of CNI's programming
material it may reasonably request. CNI may provide the Station with copies of
all correspondence and complaints received from the public (including any logs
of telephone complaints), and copies of all program logs and promotional
materials. However, nothing in this section shall entitle PCC or any Station to
review the internal corporate or financial records of CNI.
(c) Station Agreements with Respect to CNI Programming. On the
date of execution of this Agreement, each Licensee of a Station listed on
Exhibit B hereto shall enter into an Agreement for Overnight Programming, Use
of Digital Capacity and Public Interest Programming in the form of Exhibit D
attached hereto (the "Station Agreement") with respect to such Station. If PCC
acquires or otherwise becomes the Licensee of any television station after the
date hereof and prior to any transfer of control of PCC, including any
transfer, resulting in Xxxxxx no longer being PCC's Single Majority
Shareholder, the Licensee of such Station shall become a party to this
Agreement by executing the Joinder Agreement in the form of Exhibit E hereto
and shall enter into a Station Agreement with CNI with respect to such Station
on the date on which PCC acquires or otherwise becomes the Licensee of such
Station.
(d) Termination. In addition to the termination provisions set
forth elsewhere in this Agreement, this Agreement may be terminated as set
forth below by PCC or CNI or any licensed Station by written notice to the
other party upon the occurrence of any of the following:
(1) if this Agreement with respect to such Station is
declared invalid or illegal in whole or substantial part by an order or decree
of an administrative agency or court of competent jurisdiction and such order
or decree has become final and no longer subject to further administrative or
judicial review;
(2) with the mutual consent of PCC, the Station Licensee
and CNI with respect to such Station; or
(3) by PCC, if the CNI Overnight Programming or CNI 24-hour
Digital Programming fails to comply with CNI's Statement of Mission and Purpose
(attached hereto as Exhibit C), and CNI has not cured such deficiency within 6
months after written notice thereof from PCC to CNI.
Any termination of this Agreement with respect to any Station shall not
affect the continued validity or enforceability of this Agreement with respect
to the other Stations. No party shall have the right to terminate this
Agreement except as provided in this Section 6(d).
(e) Remedies for Breach. If there is a material breach by any
party hereto of its representations, warranties, covenants or agreements set
forth in this Agreement with respect to any licensed Station, the nonbreaching
party shall provide
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the breaching party notice of such breach and the breaching party shall have 30
days thereafter to cure such breach. If such breach is not cured within such
30-day period, the nonbreaching party may bring an action for specific
performance of this Agreement or for injunctive relief. PCC and CNI
specifically recognize that in the event any party hereto shall refuse to
perform its obligations under this Agreement, monetary damages will not be
adequate, given that the essence of this Agreement is the right of CNI for
carriage of the CNI Overnight Programming and CNI 24-hour Digital Programming.
In the event of any action to enforce this Agreement, each nonperforming party
hereby waives the defense that there is an adequate remedy at law. In no event
shall any party hereto have the right to terminate this Agreement with respect
to any Station as a result of a breach of this Agreement, except as
specifically set forth in this Agreement. A breach of this Agreement with
respect to any Station shall not be deemed a breach of this Agreement with
respect to any other Station. Nothing contained in this subsection shall affect
any party's rights to indemnification for a breach of this Agreement as set
forth in this Agreement.
(f) Force Majeure. Any failure or impairment of any Station's
facilities or any delay or interruption in the broadcast of programs, or
failure at any time to furnish facilities or programming, in whole or in part,
for broadcast, due to Acts of God, strikes, lockouts, material or labor
restrictions by any governmental authority, civil riot, floods and any other
cause not reasonably within the control of PCC, CNI or the Station Licensee, or
for power reductions necessitated for maintenance of any Station or for
maintenance of other stations located on the tower from which such Station is
broadcasting, shall not constitute a breach of this Agreement, provided that
the party which is unable to perform as a result of a force majeure event shall
use commercially reasonable efforts to restore promptly full compliance by such
party with the terms of this Agreement.
(g) Assignments. It is the intent of the parties that the rights
and obligations of PCC under this Agreement shall be transferred or assigned to
PCC's assignees, transferees or successors in interest, including, without
limitation, each successive Licensee of each Station whether or not such
Licensee is owned or controlled by PCC, and shall not be disavowed by PCC or
any assignee, transferee or successor in interest to PCC.
(1) Upon any transfer of control or the assignment of the
License of any Station, the assignee, transferee or successor in interest shall
assume and perform in its entirety the Station Agreement; provided that, if any
transfer of control or assignment of License of any Station is attempted
without assumption and performance of the Station Agreement, such transfer or
assignment shall be deemed null and void and the transaction shall be invalid,
and CNI shall have all remedies available at law and equity.
(2) PCC (and each assignee, transferee or successor in
interest subsequent to PCC) shall include the following provision in any
contract or other agreement for the sale, transfer of control or assignment of
License of any Station (and shall require that each succeeding assignee,
transferee, or successor in interest include
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the following provision in any contract or other agreement for the sale,
transfer or control or assignment of License of any Station):
[THE PURCHASER, TRANSFEREE, ASSIGNEE OR SUCCESSOR IN INTEREST OF
THIS STATION'S LICENSE AND/OR ASSETS ACKNOWLEDGES THAT IT HAS RECEIVED
ACTUAL NOTICE OF THE MASTER AGREEMENT FOR OVERNIGHT PROGRAMMING, USE OF
DIGITAL CAPACITY AND PUBLIC INTEREST PROGRAMMING BY AND BETWEEN THE
CHRISTIAN NETWORK, INC., AND XXXXXX COMMUNICATIONS CORPORATION ("PCC"),
AND THE PCC SUBSIDIARIES AND THE RELATED STATION AGREEMENT WITH THE
STATION LICENSEE AND REPRESENTS AND WARRANTS THAT IT WILL ASSUME THE
STATION AGREEMENT AND ALL RIGHTS AND OBLIGATIONS CONTAINED IN IT AND, IF
IT SHOULD TRANSFER CONTROL OF THE LICENSEE OR SELL THE STATION'S ASSETS
IN THE FUTURE TO A THIRD PARTY, IT SHALL REQUIRE THAT THIS LANGUAGE BE
INCLUDED IN THE AGREEMENT AND THAT THE THIRD PARTY ENTER INTO THE
ASSUMPTION AGREEMENT.]
(3) The assignee, transferee or successor in interest of any
Station shall assume the Station Agreement by an Assumption Agreement in form
and substance acceptable to CNI, which shall include, without limitation, the
venue, jurisdiction and assignment provisions of this Agreement. The Licensee
of each Station shall notify CNI (i) within forty-eight (48) hours of the
execution of any contract seeking the FCC's consent to a change of control or
assignment of the Licensee of such Station; (ii) within 5 business days of the
filing of any application seeking such consent; and (iii) within 5 business
days of the FCC grant of any such application. Except for transfers of control
and assignments of licenses described in Section 73.3540(f) of the FCC's
current rules and regulations, CNI may terminate this Agreement with respect to
any Station as of the effective date of a transfer of control or assignment of
the licenses of such Station upon written notice to the applicable Licensee.
Any termination by CNI of this Agreement with respect to any one Station in
accordance with the previous sentence shall not affect the continued validity
and enforceability of this Agreement with respect to any other Station.
(4) This Agreement shall not be assignable by CNI without the
prior written consent of PCC.
(h) Public Notice. PCC and the Licensee of each Station shall provide
notice to the general public of this Agreement by (i) filing a copy of this
Agreement with the FCC in the publicly available records of each Station; (ii)
placing a copy of this Agreement in the Station's public inspection file; (iii)
listing this Agreement on each Station's Ownership Report filed with the FCC and
attaching a copy to each Ownership Report filing; (iv) acknowledging the
existence of this Agreement in each quarterly issues/programs list placed in the
Station's public file; and (v) filing a copy of this Agreement at the local,
State and Federal level as requested by CNI, including any UCC or similar
filings.
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(i) Counterparts. This Agreement may be executed in one or more
counterparts, each of which will be deemed an original but all of which
together will constitute one and the same instrument.
(j) Amendment. No amendment, waiver of compliance with any
provision or condition hereof, or consent pursuant to this Agreement will be
effective unless evidenced by an instrument in writing signed by the parties
hereto.
(k) Compliance with Copyright Act. CNI represents and warrants to
PCC that CNI has full authority to broadcast the CNI Programming on the
Stations and that CNI shall not broadcast any material in violation of the
Copyright Act. All music supplied by CNI shall be (i) licensed by ASCAP, SESAC
or BMI; (ii) in the public domain; or (iii) cleared at the source by CNI. CNI
shall be responsible for the payment of all synchronization license fees and
master use license fees. The Licensee of each Station will maintain and pay for
ASCAP, BMI and SESAC music performance licenses as necessary. The right to use
the programming and to authorize its use in any manner shall be and remain
vested in CNI.
(l) Headings. The headings are for convenience only and will not
control or affect the meaning or construction of the provisions of this
Agreement.
(m) Governing Law. The Agreement shall be governed by the laws of
the State of Delaware (without regard to the choice of law provisions thereof)
subject to applicable federal law and the rules, regulations and published
policies of the FCC.
(n) Notices. Any notices required by this Agreement will be in
writing and will be deemed given when personally delivered, or if mailed by
certified or registered mail, return receipt requested, when deposited in the
mail postage prepaid, to the addresses listed below. If telecopied, notice will
be deemed given when telecopied and confirmed by telephone, or if sent by
courier or express mail service, when deposited with such courier or express
mail service.
If to PCC: PCC Communications Corporation
000 Xxxxxxxxxx Xxxx Xxxx
Xxxx Xxxx Xxxxx, XX 00000-0000
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
With a copy to: National Broadcasting Company, Inc.
00 Xxxxxxxxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx
Telephone:
Telecopy:
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If to CNI: The Christian Network, Inc.
00000 X.X. Xxxxxxx 00 Xxxxx
Xxxxx 000
Xxxxxxxxxx, XX 00000-0000
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
(o) Severability. If any provision of this Agreement or the
application thereof to any person or circumstances shall be invalid or
unenforceable to any extent, the remainder of this Agreement and the
application of such provision to other persons or circumstances shall not be
affected thereby and shall be enforced to the greatest extent permitted by law.
In the event that the FCC alters or modifies its rules or policies in a fashion
that would raise substantial and material questions as to the validity of any
provisions of this Agreement, the parties hereto shall negotiate in good faith
to revise any such provision of this Agreement with a view toward assuring
compliance with all then existing FCC rules and policies that may be
applicable, while attempting to preserve, as closely as possible, the intent of
the parties as embodied in the provisions of this Agreement which is to be so
modified, provided, however, that CNI shall be afforded the opportunity to seek
any waiver of the FCC rules or policies to permit the continuation of this
Agreement unchanged or with changes acceptable to CNI and the other parties to
this Agreement shall not oppose or impede such waiver requests. The invalidity
of this Agreement with respect to any Station shall not affect the validity of
this Agreement with respect to any other Station.
(p) Cooperation. The parties hereto shall cooperate fully with
each other and their respective counsel and accountants in connection with any
steps required to be taken under this Agreement and will use their respective
best efforts to perform or fulfill all conditions and obligations to be
performed or fulfilled by them under this Agreement.
(q) Exclusivity. Other than this Agreement and the Station
Agreements, CNI shall not enter into any agreement or commitment pursuant to
which CNI or an affiliate thereof shall permit any television station to
broadcast the CNI Programming in any DMA in which the Stations are located;
provided, however, that nothing in this Agreement shall prevent CNI from
offering the CNI Programming for carriage by private or master antenna cable
service located in or serving any Station's DMA but outside of such Station's
Grade B contour. In areas outside of a Station's current coverage area but
within such Station's DMA, CNI may offer the CNI Programming to full or low
power television stations or multi-channel distribution system, including
direct broadcast satellite service, cable and any other future multi-channel
video program distributors.
(r) Expenses. Each party hereto shall bear its own expenses,
costs, fees and taxes incurred in connection with the execution, delivery and
performance of this Agreement.
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(s) Consent to Jurisdiction; Waiver of Jury Trial. Each of the
parties hereto and any individual Station Licensee irrevocably submit to the
exclusive jurisdiction of the United States District Court for the District of
Delaware and the Superior Court of New Castle County, Delaware and/or the
Chancery Court of New Castle County, Delaware, for the purposes of any suit,
action or other proceeding arising out of this Agreement or any transaction
contemplated hereby. Each of the parties hereto agrees, to the extent permitted
under applicable rules of procedure, to commence any action, suit or proceeding
relating hereto either in the United States District Court for the District of
Delaware, or if such suit, action or other proceeding may not be brought in
such court for jurisdictional reasons in the Superior Court of New Castle
County, Delaware and/or the Chancery Court of New Castle County, Delaware. Each
of the parties hereto further agrees that service of any process, summons,
notice or document by U.S. registered mail to such party's respective address
set forth above shall be effective service of process for any action, suit or
proceeding in Delaware with respect to any matters to which it has submitted to
jurisdiction pursuant to this Section. Each of the parties hereto irrevocably
and unconditionally waives any objection to the laying of venue of any action,
suit or proceeding arising out of this Agreement or the transactions
contemplated hereby in the Superior Court of New Castle County, Delaware and/or
the Chancery Court of New Castle County, Delaware, or the United States
District Court for the District of Delaware, and hereby further irrevocably and
unconditionally waives and agrees not to plead or claim in any such court that
any such action, suit or proceeding brought in any such court has been brought
in an inconvenient forum. Each of the parties hereto irrevocably waives the
right to a jury trial in connection with any suit, action or other proceeding
arising out of this Agreement or any transaction contemplated hereby.
(t) Entire Agreement. This Agreement, the schedules hereto, and
all documents to be delivered by the parties pursuant hereto, collectively
represent the entire understanding and agreement of the parties hereto with
respect to the subject matter hereof. This Agreement cannot be amended,
supplemented, or changed except by an agreement in writing that makes specific
reference to this Agreement and which is signed by the party against whom
enforcement of any such amendment, supplement, or modification is sought.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
-23-
24
IN WITNESS WHEREOF, the parties hereto have executed this Agreement the
day and year first above written.
XXXXXX COMMUNICATIONS
CORPORATION
By:
--------------------------------
Name:
THE CHRISTIAN NETWORK, INC.
By:
--------------------------------
Name:
[THE REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK]
25
Channel 29 of Charleston, Inc.
Channel 42 of Little Rock, Inc.
Channel 56 of Orlando, Inc.
Channel 64 of Scranton, Inc.
Xxxxxx Media Corporation of
Florida, Inc. (90% interest)
Hispanic Broadcasting, Inc.
Ocean State Television, L.L.C.
Xxxxxx Akron License, Inc.
Xxxxxx Albany License, Inc.
Xxxxxx Atlanta License, Inc.
Xxxxxx Boston License, Inc.
Xxxxxx Buffalo License, Inc.
Xxxxxx Chicago License, Inc.
Xxxxxx Communications License Company, LLC
Xxxxxx Communications Odessa-30, Inc.
Xxxxxx Communications of Akron-23, Inc.
Xxxxxx Communications of Albany-55, Inc.
Xxxxxx Communications of Atlanta-14, Inc.
Xxxxxx Communications of Boston-60, Inc.
Xxxxxx Communications of Buffalo-51, Inc.
Xxxxxx Communications of Charleston-29, Inc.
Xxxxxx Communications of Chicago-38, Inc.
Xxxxxx Communications of
Dallas-68, Inc. (80% interest)
Xxxxxx Communications of Denver-59, Inc.
Xxxxxx Communications of Greensboro-16, Inc.
Xxxxxx Communications of Greenville-38, Inc.
Xxxxxx Communications of Honolulu-66, Inc.
Xxxxxx Communications of Houston-49, Inc.
Xxxxxx Communications of Kansas City-50, Inc.
Xxxxxx Communications of Knoxville-54, Inc.
Xxxxxx Communications of Little Rock-42, Inc.
Xxxxxx Communications of Los Angeles-30, Inc.
Xxxxxx Communications of Minneapolis-41, Inc.
Xxxxxx Communications of
Oklahoma City-62, Inc.
Xxxxxx Communications of Philadelphia-61, Inc.
Xxxxxx Communications of Phoenix-13, Inc.
Xxxxxx Communications of Portland-22, Inc.
Xxxxxx Communications of Portland-23, Inc.
Xxxxxx Communications of
Providence-69, Inc. (50% interest)
Xxxxxx Communications of
Salt Lake City-30, Inc.
Xxxxxx Communications of San Antonio-26, Inc.
Xxxxxx Communications of San Xxxx-65, Inc.
Xxxxxx Communications of Scranton-64, Inc.
Xxxxxx Communications of Spokane-34, Inc.
Xxxxxx Communications of St. Croix-15, Inc.
Xxxxxx Communications of Syracuse-56, Inc.
Xxxxxx Communications of Tulsa-44, Inc.
Xxxxxx Communications of Washington-66, Inc.
Xxxxxx Communications Television, Inc.
Xxxxxx Denver License, Inc.
Xxxxxx Greensboro License, Inc.
Xxxxxx Greenville License, Inc.
Xxxxxx Hawaii License, Inc.
Xxxxxx Houston License, Inc.
Xxxxxx Kansas City License, Inc.
Xxxxxx Knoxville License, Inc.
Xxxxxx Los Angeles License, Inc.
Xxxxxx Minneapolis License, Inc.
Xxxxxx Oklahoma City License, Inc.
Xxxxxx Philadelphia License, Inc.
Xxxxxx Phoenix License, Inc.
Xxxxxx Salem License, Inc.
Xxxxxx Salt Lake City License, Inc.
Xxxxxx San Xxxx License, Inc.
Xxxxxx Spokane License, Inc.
Xxxxxx Tulsa License, Inc.
Xxxxxx Washington License, Inc.
Xxxxxxx Broadcasting Company of Albuquerque
South Texas Vision, L.L.C.
Syracuse Minority Television, Inc.
United Broadcast Group II, Inc.
WinStar Christiansted, Inc.
WinStar Odessa, Inc.
WinStar Waterville, Inc.
By:
------------------------------
Name:
26
EXHIBIT A
SUBSIDIARIES
27
EXHIBIT B
STATIONS
28
EXHIBIT C
CNI STATEMENT OF MISSION AND PURPOSE
29
EXHIBIT D
FORM OF STATION AGREEMENT
30
EXHIBIT E
FORM OF JOINDER AGREEMENT
31
MASTER AGREEMENT
===============================================================================
FOR OVERNIGHT PROGRAMMING, USE OF DIGITAL CAPACITY
AND
PUBLIC INTEREST PROGRAMMING
BY AND BETWEEN
THE CHRISTIAN NETWORK, INC.
AND
XXXXXX COMMUNICATIONS CORPORATION
SEPTEMBER 10, 1999
===============================================================================
32
TABLE OF CONTENTS
PAGE
SECTION 1. DEFINITIONS.......................................................................... 2
SECTION 2. OVERNIGHT PROGRAMMING................................................................ 4
(a) Grant and Acceptance of Rights....................................................... 4
(b) PCC Converted Station................................................................ 4
(c) Manner of Broadcast.................................................................. 5
(d) Must Carry; Retransmission Consent................................................... 5
(e) Digital Channel for the First Stage.................................................. 5
(f) Licensee Discretion and Preemptions of CNI Overnight
Programming.......................................................................... 6
SECTION 3. USE OF CNI DIGITAL CHANNEL........................................................... 6
(a) Commencement of Use of CNI Digital Channel........................................... 6
(b) PCC Converted Station................................................................ 7
(c) Programming of CNI Digital Channel................................................... 7
(d) Rights of Carriage................................................................... 7
(e) Must Carry; Retransmission Consent................................................... 8
(f) Licensee Discretion and CNI Digital Channel Preemption............................... 9
(g) HDTV Preemption Rights............................................................... 10
(h) Provision of Alternate Spectrum...................................................... 10
SECTION 4. PROVISIONS APPLICABLE TO CNI OVERNIGHT PROGRAMMING
AND CNI DIGITAL CHANNEL.............................................................. 10
(a) Term................................................................................. 10
(b) Delivery and Distribution............................................................ 10
(c) Website Hyperlinks................................................................... 11
(d) Licensee Operation of Station........................................................ 11
(e) Children's Television Advertising.................................................... 12
(f) Payola............................................................................... 12
(g) Cooperation on Programming........................................................... 12
(h) Unauthorized Copying................................................................. 12
(i) Programming Changes.................................................................. 13
(j) Promotion............................................................................ 13
(k) Programming.......................................................................... 13
-1-
33
TABLE OF CONTENTS
(CONTINUED)
PAGE
(l) Trademark License.................................................................... 13
(m) Changes in Law, FCC Rules and Policies............................................... 13
(n) Broadcast in Entirety................................................................ 14
SECTION 5. REPRESENTATIONS AND WARRANTIES; COVENANTS;
INDEMNIFICATIONS..................................................................... 15
(a) Representations, Warranties and Covenants of CNI..................................... 15
(b) Representations and Warranties of PCC................................................ 16
(c) Covenants Relating to Licenses....................................................... 16
(d) PCC's Indemnification................................................................ 17
(e) CNI's Indemnification................................................................ 17
(f) Limitation........................................................................... 17
(g) Indemnification...................................................................... 17
SECTION 6. MISCELLANEOUS PROVISIONS............................................................. 17
(a) Agreement Challenge.................................................................. 17
(b) Confidential Review.................................................................. 18
(c) Station Agreements with Respect to CNI Programming................................... 18
(d) Termination.......................................................................... 18
(e) Remedies for Breach.................................................................. 18
(f) Force Majeure........................................................................ 19
(g) Assignments.......................................................................... 19
(h) Public Notice........................................................................ 20
(i) Counterparts......................................................................... 21
(j) Amendment............................................................................ 21
(k) Compliance with Copyright Act........................................................ 21
(l) Headings............................................................................. 21
(m) Governing Law........................................................................ 21
(n) Notices.............................................................................. 21
(o) Severability......................................................................... 22
(p) Cooperation.......................................................................... 22
(q) Exclusivity.......................................................................... 22
-ii-
34
TABLE OF CONTENTS
(CONTINUED)
PAGE
(r) Expenses............................................................................. 22
(s) Consent to Jurisdiction; Waiver of Jury Trial........................................ 23
(t) Entire Agreement..................................................................... 23
Exhibit A - Subsidiaries
Exhibit B - Stations
Exhibit C - CNI Statement of Mission and Purpose
Exhibit D - Form of Station Agreement
Exhibit E - Form of Joinder Agreement
-iii-
35
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