EXHIBIT 10.17
CARRIAGE AGREEMENT
THIS CARRIAGE AGREEEMNT (the "Agreement") is entered in to this 23rd
day of March, 2000 by and between Comcast Cable Communications, Inc., a
Pennsylvania corporation ("Comcast"), and 5th Avenue Channel Corp., a Florida
corporation ("5th Avenue") with reference to the following recitals:
WHEREAS, Comcast owns and operates, either directly or through its
affiliates, the cable television systems identified on Schedule A attached
hereto (each a "System" and collectively the "Systems"); and
WHEREAS, 0xx Xxxxxx produces and transmits via satellite a live two (2)
hour financial news program Monday through Friday, 10 a.m. - 12 noon Eastern
Standard time (the "Service"); and
WHEREAS, 0xx Xxxxxx desires to cablecast the Service over the channels
designated on the Systems identified on Schedule A ("Channels") in accordance
with the terms and conditions set forth herein; and
WHEREAS, Comcast has reviewed the Service currently being transmitted
via satellite and deems it to be acceptable for carriage in the manner
contemplated in this Agreement.
NOW THEREFORE, in consideration of the mutual promises and covenants
contained in this Agreement, 5th Avenue and Comcast agree as follows:
1. CARRIAGE OF THE SERVICE.
(a) Comcast hereby agrees during the term of this Agreement to carry
the Service over the Channels on the Systems.
(b) Carriage of the Service shall commence on April 3, 2000 (the
"Effective Date").
(c) All rights to the Channels not specifically granted to 0xx Xxxxxx
under this Agreement are expressly reserved to Comcast and are exercisable by
Comcast at any time.
(d) Comcast reserves the right to change or reassign the Channels on
the System or Systems on which the Service is carried upon sixty (60) days
notice to 0xx Xxxxxx and provided further that Comcast may, in the event it
becomes necessary due to technical considerations, change the initial channel
designation on a System or Systems.
(e) 0xx Xxxxxx shall not use the Channels except to provide the Service
in accordance with the terms of this Agreement. 0xx Xxxxxx assumes complete
responsibility for the content of the Service and Comcast undertakes no
responsibility or duty for prescreening or monitoring the Service.
Notwithstanding the foregoing, Comcast reserves the right to preempt, without
notice to 0xx Xxxxxx or liability to Comcast, any portion of the Service which
Comcast believes, in its reasonable discretion, violates applicable law or does
not comply with this Agreement.
2. TERM OF AGREEMENT.
Unless sooner terminated pursuant to the provisions of this Agreement,
the term of this Agreement shall be for a period of one (1) year from the
Effective Date. This Agreement may be extended or renewed by mutual agreement of
the parties in writing.
3. COMPENSATION AND BILLING.
As consideration for the carriage of the Service on the Channels, 0xx
Xxxxxx shall pay Comcast $5,000 per month (the "Carriage Fee"). The Carriage Fee
shall be payable in advance on the first of each month during the term hereof
without notice or demand therefore. Carriage Fees not received within then (10)
days of the due date shall bear interest at the lesser of eighteen percent (18%)
per annum or the highest interest rate permitted by law.
4. TECHNICAL REQUIREMENTS.
(a) 0xx Xxxxxx shall be responsible for and provide all equipment and
personnel necessary to produce and deliver via satellite a signal carrying its
Service to the Systems.
(b) 0xx Xxxxxx shall comply with all applicable rules, opinions,
policies or decisions of the FCC (including, but not limited to, rules relating
to signal strength and quality) or any other regulatory or judicial body having
jurisdiction over it or its Service and all applicable federal, state or local
laws, regulations or ordinances.
(c) Upon request, 0xx Xxxxxx shall promptly furnish to Comcast all
information with respect to the Service which may be useful I the preparation of
any reports or other documents that Comcast may be required or requested to file
with any federal, state or local governmental agency.
5. CROSS CHANNEL PROMOTION.
During the term hereof and provided 5th Avenue is not in default in
payment of the Carriage Fee, 5th Avenue shall receive seventy-five (75), thirty
(30) second spots per week to be cablecast on one or more satellite delivered
programming services selected by Comcast and carried on the Systems on which
Comcast inserts local advertising spots. A representative sample of the current
satellite services on which the spots may run is set forth on Schedule B
attached hereto. Such satellite services are subject to change from time to time
in connection with changes to Comcast's programming lineup. 5th Avenue shall
provide promotional advertising materials consistent with Comcast's applicable
business policies related to such advertising and shall be solely responsible
for the content thereof. 5th Avenue's promotional advertising material shall be
subject to Comcast's reasonable prior approval. Upon request by 5th Avenue,
Comcast agrees to tag 0xx Xxxxxx promotional advertising materials with specific
Channel information. Comcast agrees to include a listing of the Service, time
and channel designation in its electronic on-screen program guide.
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6. TERMINATION.
This Agreement may be terminated by Comcast upon the occurrence of any
of the following events:
(i) 0xx Xxxxxx breaches any provision of this Agreement,
including any warranty or representation, and such breach continues uncured for
thirty (30) days after written notice;
(ii) The technical quality of the Service fails to meet FCC
specifications or becomes unacceptable to Comcast in its reasonable discretion
and such failure continues for ten (10) days after written notice;
(iii) 0xx Xxxxxx changes the service to a format other than
financial news and information without Comcast's prior written consent; or
(iv) Comcast is unable to continue to provide the Channel due
to any governmental law, rule, regulation, judgement of any court, must carry
requirement, retransmission consent requirement or any reason beyond the control
of Comcast of if Comcast's Franchise for a particular system (or Systems) is
forfeited, surrendered or terminated for any reason.
(b) This Agreement may be terminated by 0xx Xxxxxx upon thirty (30)
days written notice to Comcast.
7. LIMITATION OF COMCAST'S LIABILITY.
This Agreement shall not under any circumstances create any rights in
any party other than 5th Avenue. In no case shall Comcast be liable to 0xx
Xxxxxx for any direct, consequential or punitive losses, claims, damages,
expenses or liabilities or for any act beyond Comcast's reasonable control.
8. RIGHTS, LICENSES AND PERMISSIONS.
(a) 0xx Xxxxxx warrants and represents to Comcast that the Service and
any materials used by 0xx Xxxxxx and included as part of the Service or any
promotional materials will not infringe any copyrights (including, without
limitation, synchronization rights and performing rights), rights of privacy,
use and distribution rights, rights to the use of any trademark, trade name,
service xxxx, or patent, or any other property right or other right whatsoever
of any person, corporation, firm or other entity.
(b) 0xx Xxxxxx shall be responsible at its own expense for obtaining
all consents, authorizations, licenses and permits necessary for providing the
Service and shall make available to Comcast, upon request, copies of any such
consents, authorizations, licenses and permits.
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9. INDEMNIFICATION.
0xx Xxxxxx shall hold Comcast, its parent, subsidiaries and affiliates,
and their respective officers, directors, partners, agents and employees
harmless, and defend and indemnify them from any and all liabilities, losses,
damages, suits, actions, claims, judgments, costs and expenses (including legal
fees and costs) whatsoever arising from or related to (a) the Service, (b) 5th
Avenue's breach of this Agreement or (c) violation of the protected rights of
any third party, including, without limitation, any liabilities, losses,
damages, suits, actions, claims, judgments, costs or expenses based upon libel,
slander, invasions of privacy, false or misleading advertising, or violation or
infringement or copyrights, trademarks, trade names, service marks, patents or
other property rights or other rights whatsoever.
10. USE OF COMPANY NAME.
0xx Xxxxxx shall not use Comcast's name, service marks or trade names
in the Service, 0xx Xxxxxx advertising, promotion or publicity in any medium of
public communication, including, but not limited to, print and electronic media,
without the prior written consent of Comcast which shall not be unreasonably
withheld.
11. INSURANCE.
(a) 5th Avenue shall, upon request by Comcast, obtain and pay premiums
for errors and omissions insurance in such amounts as are required in the
television industry generally for similar endeavors to insure 0xx Xxxxxx and
Comcast against any liability resulting from the Service, 5th Avenue's
activities, wrongful acts, errors or omissions in connection with 5th Avenue's
distribution of the Service over the Channels pursuant to this Agreement and
from any consequences resulting from the material contained in the Service.
(b) Upon request, 0xx Xxxxxx shall provide to Comcast a certificate of
the insurance required by subparagraph (a) naming Comcast as an additional
insured. Such insurance shall provide Comcast with thirty (30) days prior
written notice of any cancellation or non-renewal of the insurance. If Comcast
receives notice of such termination or non-renewal, Comcast shall have the right
to terminate this Agreement or to pay the premiums for such insurance and obtain
reimbursement from 5th Avenue.
12. NOTICES.
Any notices pursuant to this Agreement shall be validly given or served
if in writing and sent by registered or certified mail, or via nationally
recognized overnight courier, postage prepaid, to the following addresses:
(a) If to Comcast:
Comcast Cable Communications, Inc.
000 Xxxxxx Xxxxxx, Xxxxxxxx X
Xxxxx, XX 00000
Attention: Xxxx Xxxxxxxx
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With a copy to:
Comcast Cable Communications, Inc.
0000 Xxxxxx Xxxxxx
Xxxxxxxxxxxx, XX 00000
Attention: Legal Department
(b) If to 0xx Xxxxxx:
0xx Xxxxxx Channel Corp.
0000 X.X. 000xx Xxxxxx
Xxxxx Xxxxx, XX 3316
Attention: Xxx Xxxxx
or to such other addresses as either party may designate to the other in
writing. Delivery of any notice shall be deemed to be effective on the date set
forth on the receipt of registered, certified or overnight mail.
13. MISCELLANEOUS.
(a) GOVERNING LAW. This Agreement and the rights and obligations of
Comcast and 5th Avenue in connection herewith shall be interpreted in accordance
with federal law and the laws of the Commonwealth of Pennsylvania.
(b) INDEPENDENT CONTRACTOR. Nothing contained in this Agreement shall
create any association, partnership, joint venture or principal/agent
relationship between 5th Avenue and Comcast, it being understood that the
parties are, with respect to each other, independent contractors.
(c) INTEGRATION. This writing represents the entire agreement and
understanding of the parties with respect to the subject matter hereof, it may
not be altered or amended except by an agreement in writing signed by both
parties.
(d) BINDING EFFECT. This Agreement shall be binding upon and shall
inure to the benefit of the parties and their respective heirs, successors,
representatives and assigns. Notwithstanding the foregoing, this Agreement may
not be assigned by 0xx Xxxxxx without the prior written consent of Comcast,
provided, that Comcast may, without obtaining 5th Avenue's consent, assign this
Agreement to any affiliate of Comcast or to any person or entity purchasing all
or substantially all of the assets of the System or Systems.
(e) SEVERABILITY. If any part of any provision of this Agreement is
invalid or unenforceable under applicable law, the provision shall be
ineffective only to the extent of such invalidity or unenforceability without in
any way affecting the remaining parts of the provision or this Agreement.
(f) COUNTERPARTS. This Agreement may be executed in counterparts, in
which case all such counterparts shall constitute one and the same instrument.
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IN WITNESS WHEREOF, and intending to be legally bound, the parties have
executed this Carriage Agreement as of the date first above written.
COMCAST CABLE COMMUNICATIONS, INC.
By:
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Name: Xxxxxxx Xxxxx
Title: Senior Regional Vice President
5TH AVENUE CHANNEL CORP.
By:
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Name:
Title: President and CEO
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