EXHIBIT 10.2
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[NBC TV NETWORK LETTERHEAD]
August 28, 1995
Heritage Media Corp.
x/x XXXX
0 Xxxxxxxxxx Xxxxx
Xxxxxxxxxxx, Xxx Xxxx 00000
RE: WPTZ (Plattsburgh, New York)
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Gentlemen:
The following shall comprise the agreement between us for the
affiliation of your television broadcasting station WPTZ (you and WPTZ
collectively herein called "Station") with the NBC Television Network (herein
called "NBC") and shall supersede and replace our prior agreement dated JULY 1,
1989, except for the most recent amendment with respect to network non-
duplication protection under Federal Communications Commission ("FCC") Rules
Section 76.92.
1. Term. This Agreement shall be deemed effective as of 3:00 A.M.,
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New York City time on the 1st day of January, 1995, and, unless sooner
terminated as provided in this Agreement, it shall remain in effect for a period
of seven (7) years thereafter. It shall then be renewed on the same terms and
conditions for a further period of three (3) years and for successive further
periods of three (3) years each, unless and until either party shall, at least
twelve (12) months prior to the expiration of the then current term, give the
other party written notice that it does not desire to have this Agreement
renewed for a further period.
2. NBC Programming.
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(a) NBC shall deliver to Station for free, over-the-air television
broadcasting all programming which NBC makes available for broadcasting in the
community to which Station is presently licensed by the FCC, except as otherwise
expressly provided herein.
(b) NBC commits to supply sufficient programming throughout the term
of this Agreement for the hours presently programmed by it (the "Programmed Time
Periods"), which Programmed Time Periods are as follows (the specified times are
all local time in Station's community of license):
Prime Time: Monday thru Saturday - 8:00 - 11:00 P.M.
Sunday - 7:00 - 11:00 P.M.
Late Night: Monday thru Thursday 11:35 P.M. - 2:05 A.M.
Friday - 11:35 P.M. - 2:35 A.M.
Saturday - 11:30 P.M. - 1 A.M.
News: Monday thru Friday - 5:30 - 6:00 A.M.,
7:00-9:00 A.M. and 6:30 - 7:00 P.M.
Saturday - 6:30-7:00 P.M.
Sunday - 9:00-11:00 A.M. and 6:30-7:00 P.M.
Daytime: Monday thru Friday - 11:00 A.M.-12:00
Noon and 1:00 P.M. - 3:00 P.M.
Saturday - 10:00 A.M.-11:00 A.M.
The selection, scheduling, substitution and withdrawal of any program
or portion thereof delivered to Station during the Programmed Time Periods shall
at all times remain within the sole discretion and control of NBC. The parties
acknowledge that local and network programming needs may change during the term
of this Agreement, and each party agrees throughout the term to negotiate in
good faith with the other party any proposed modification of the Programmed Time
Periods.
(c) In addition to the programming supplied pursuant to Paragraph 2(b)
above, NBC shall offer Station throughout the term of this Agreement a variety
of sports, special events and overnight news programming for television
broadcast at times other than the Programmed Time Periods. Station shall have
the right of first refusal with respect to any such programming good for
seventy-two (72) hours as against any other television station located in
Station's community of license or any television program transmission service
furnishing a television signal to Station's community of license, including, but
not limited to, any community antennae television system, subscription
television service, multipoint distribution system and satellite transmission
service. Station shall notify NBC of its acceptance or rejection of NBC's offer
of such programming as promptly as possible. Station's acceptance of NBC's
offer shall constitute Station's agreement to broadcast such programming in
accordance with the terms of such offer and this Agreement. Notwithstanding any
other provision in this Agreement, no preexisting acceptance of NBC programming
shall be superseded or otherwise affected by this Agreement, and those
acceptances shall remain in full force and effect. With respect to NBC programs
outside the Programmed Time Periods (either offered or already contracted for
pursuant to this Agreement), nothing herein contained shall prevent or hinder
NBC from (i) substituting one or more sponsored or sustaining programs, in which
event NBC shall offer such substituted program or programs to Station in
accordance with the provisions of this Paragraph 2(c), or (ii) canceling one or
more such NBC programs; provided, however, that NBC shall exercise all
reasonable efforts to give Station at least three (3) weeks prior written notice
of such substitution or cancellation. Station shall not be obligated to
broadcast, and NBC shall not be obligated to continue to deliver, subsequent to
the termination of this Agreement, any programs which NBC may have offered and
which Station may have accepted during the term hereof.
3. Station Carriage in Programmed Time Periods.
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(a) Station agrees that, subject only to the preemption rights set
forth herein, including Station's unqualified right to preempt for local live
coverage of news events, Station shall broadcast over Station's facilities all
NBC programming supplied to Station for broadcast in the Programmed Time Periods
on the dates and at the times the programs are scheduled by NBC, except to the
extent that Station is actually broadcasting programming pursuant to (and within
the specified limits of) a commitment contemplated by Paragraph 3(b) below.
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(b) As an inducement for NBC to enter into this Agreement, Station
covenants, represents and warrants to NBC that during any Broadcast Year (as
hereinafter defined) during the term hereof, Station shall preempt no more than
fifteen (15) hours in the aggregate of NBC programs during the Prime Time
Programmed Time Period for any reason other than for the live coverage of news
events (the "Prime Time Preemption Amount"). For the purposes of this
Agreement, a "Broadcast Year" shall mean a twelve (12) month period during the
term hereof which commences on any September 1 during the term hereof and which
ends on August 31 of the immediately following year. Station hereby confirms
that its rights and obligations under this Paragraph 3(b) are consistent with
its rights and obligations referred to in Paragraph 4(c) below.
(c) The Station hereby agrees to accept and clear all sports
programming offered to the Station by NBC outside the Programmed Time Periods
("NBC Sports Programming"), except for NBC sports programming which directly
conflicts with Station's coverage of sports events and special events of
particular local interest (collectively, such coverage of such sports events and
special events are referred to below as "Special Programs"). Station agrees not
to broadcast more than fifteen (15) hours of Special Programs outside the
Programmed Time Periods in the aggregate during any Broadcast Year during the
term of this Agreement which would conflict with NBC Sports Programming outside
the Programmed Time Periods (the "Sports Preemption Amount").
(d) Notwithstanding the foregoing provisions of subparagraphs (b) and
(c) above and without limiting the provisions thereof, Station agrees that, in
any one (1) month period during a Broadcast Year, Station's preemptions of NBC
Prime Time programs and NBC Sports Programming shall not exceed 20% of,
respectively, the Prime Time Preemption Amount and the Sports Preemption Amount,
unless otherwise consistent with Station's programming practice.
(e) Throughout the term of this Agreement, upon the expiration or
termination (without giving effect to any renewal term) of any of Station's
existing contractual commitments for non-NBC programming broadcast by Station
during the hours 9:00 A.M.-4:00 P.M., Monday through Friday, and for the
remaining term of this Agreement, Station agrees to give good faith
consideration to the clearance of an additional one (1) hour of XXX xxxxxxx
programming Monday through Friday during such 9:00 A.M.-4:00 P.M. time period so
that Station would clear up to a maximum of four (4) hours of XXX Xxxxxxx
weekday programming during such hours. In the event Station agrees to clear
such additional one (1) hour of NBC Monday through Friday Daytime Programming,
such additional one (1) hour shall then become part of the Daytime Programmed
Time Period for purposes of Paragraphs 2 (b) and 3 (a) hereof.
(f) Throughout the term of this Agreement, upon the expiration or
termination (without giving effect to any renewal term) of any of Station's
existing contractual commitments for non-NBC programming currently broadcast on
Saturday mornings and for the remaining term of this Agreement, Station agrees
to give good faith consideration to clearance of "Saturday Today" (or any
replacement programming) in the Live Time Period for such programming as
scheduled by NBC. In the event that Station clears "Saturday Today" (or any
replacement programming), "Saturday Today" (or any replacement programming)
shall then become part of the Saturday News Programmed Time Period for purposes
of Paragraphs 2(b) and 3(a) hereof.
(g) Throughout the term of this Agreement, upon the expiration or
termination (without giving effect to any renewal term) of any of Station's
contractual commitments for non-NBC programming broadcast by Station on Saturday
mornings and for the remaining term of this Agreement, Station agrees to give
good faith consideration to the clearance of additional one-half hours of NBC
Saturday Daytime programming so that Station would clear up to a maximum of two
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and one-half (2 1/2) hours of NBC Saturday Daytime programming. In the event
Station agrees to clear such additional one-half hours of NBC Saturday Daytime
Programming, such additional one-half hours shall then become part of the
Saturday Daytime Programmed Time Period for purposes of Paragraphs 2(b) and 3(a)
hereof.
4. Preemptions.
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(a) In the event that Station, for any reason, fails to broadcast or
advises NBC that it will not broadcast any NBC programming as provided herein,
then, in each case, Station, upon notice from NBC to Station, shall broadcast
such omitted programming and the commercial announcements contained therein (or
any replacement programming and the commercial announcements contained therein)
during a time period or periods which the parties shall promptly and mutually
agree upon and which shall, to the extent possible, be of a quality and rating
value comparable to that of the time period or periods at which such omitted
programming was not broadcast as provided herein. In the event that the parties
do not promptly agree upon a time period or periods as provided in the preceding
sentence, then, without limitation to any other rights of NBC under this
Agreement or otherwise, NBC shall have the right to license the broadcast rights
to the applicable omitted programming (or replacement programming) to another
television station located in Station's community of license.
(b) In the event that Station preempts or fails to clear or broadcast
any NBC programming as provided herein for any reason other than: (i) the live
coverage of local news events, (ii) as permitted by Paragraphs 3(b), 3(c) or
3(d) above, (iii) force majeure as provided for in Paragraph 12 below, or (iv)
because: (A) the programming is delivered in a form which does not meet accepted
standards of good engineering practice; (B) the programming does not comply with
the rules and regulations of the FCC; or (C) Station reasonably believes that
such programming would not meet prevailing contemporary standards of good taste
in its community of license, then, without limiting any other rights of NBC
under this Agreement or otherwise, upon NBC's request, Station shall pay NBC, or
NBC may deduct or offset from any amounts payable to Station hereunder or under
any other agreement between Station and NBC (or an entity controlling,
controlled by or under common control with NBC), an amount equivalent to NBC's
loss in net advertising revenues attributable to the failure of Station to
broadcast such program in Station's market as scheduled by NBC, which amount
shall be calculated in accordance with Exhibit A hereto. Without limiting or
affecting any other determination of a material breach hereunder, any failure by
Station to pay any amount due under this Paragraph 4(b) shall be deemed a
material breach of this Agreement, and NBC shall have the option, exercisable in
its sole discretion upon thirty (30) days' written notice to Station, to either
(x) terminate Station's right to broadcast any one or more series or other NBC
programs, as NBC shall elect, and, to the extent and for the period(s) that NBC
elects, thereafter license the broadcast rights to such series or other NBC
program(s) to any other television station or stations located in Station's
community of license or (y) unless the breach is cured within such thirty (30)
day period, terminate this Agreement. Station acknowledges that NBC programming
previously broadcast by Station has been consistent with the standards set forth
in the foregoing clause (C); Station also agrees that Station's reasonable
belief that an NBC program does not meet such standards will be based on a
substantial difference in such program's style and content from NBC programs
previously broadcast by Station, unless the relevant standards in the Station's
community of license have changed.
(c) With respect to programs offered or already contracted for
pursuant to this Agreement, nothing herein contained shall be construed to
prevent or hinder Licensee from: (i) rejecting or refusing any NBC program which
Station reasonably believes to be unsatisfactory or
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unsuitable or contrary to the public interest, or (ii) substituting a program
which, in Station's opinion, is of greater local or national importance;
provided, however, that Station shall give NBC written notice of each such
rejection, refusal or substitution, and the reason therefor, at least three (3)
weeks in advance of the scheduled broadcast, or as soon thereafter as possible
(including an explanation of the cause for any lesser notice). Station confirms
that its determination that a substitute program is of greater local or national
importance shall be based on Station's reasonable good faith judgment.
5. Station Compensation. In further consideration of Station's
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performance of its obligations under this Agreement NBC shall compensate Station
as follows:
(a) (i) NBC shall pay Station for Station's broadcast of each network
sponsored program or portion thereof (except those specified in Paragraph
5(b) below) which is broadcast during the Live Time Period therefor the
amount resulting from multiplying the following:
(A) Station's Network Station Rate, which is $1150; by
(B) The percentage set forth in the compensation matrix table
attached hereto as Exhibit B (the "Compensation Table") opposite
the applicable time period; by
(C) The fraction of an hour substantially occupied by such program or
portion thereof; by
(D) The fraction of the aggregate length of all Commercial
Availabilities during such program or portion thereof occupied by
Network Commercial Announcements.
As used herein, "Live Time Period" shall mean the time period or
periods as specified by NBC for the broadcast of a program by Station;
"Commercial Availability" shall mean a period of time made available by NBC
during a network sponsored program for one or more Network Commercial
Announcements; and "Network Commercial Announcement" shall mean a
commercial announcement broadcast over Station during a Commercial
Availability and paid for by or on behalf of one or more of NBC's network
advertisers, not including, however, announcements consisting of
billboards, credits, public service announcements, promotional
announcements and announcements required by law.
(ii) For each network sponsored program or portion thereof (except
those specified in Paragraph 5(b) below) which is broadcast by Station
during a time period other than the Live Time Period therefor, NBC reserves
the right, in its sole discretion, to withhold payment of compensation for
such program. If NBC does not withhold payment of compensation for such
program, NBC shall pay Station as if Station had broadcast the program or
portion thereof during such Live Time Period, except that if the percentage
set forth in the Compensation Table opposite the time period during which
Station broadcasts the program or portion thereof is less than that set
forth opposite such Live Time Period, NBC shall pay Station on the basis of
the time period during which Station broadcasts the program or portion
thereof.
(b) NBC shall pay Station such amounts as NBC and Station shall agree
upon for all network sponsored programs broadcast by Station consisting of:
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(i) Sports programs;
(ii) Special events programs, and
(iii) Programs for which NBC specifies a Live Time Period
which straddles any of the time period categories in the Compensation
Table.
(c) (i) On or about the fifteenth day of the last month of each
calendar quarter during the term hereof, subject to the timely receipt of
reports requested under Paragraph 10 below, NBC shall pay Station, by
electronic transfer or such other means as NBC shall determine, an estimate
of the amounts due hereunder for such calendar quarter. NBC shall make the
appropriate adjustment for the payment actually due for such calendar
quarter in the payment of the estimated amount due for the next calendar
quarter. NBC shall calculate the amounts due hereunder on a weekly basis
and shall report such amounts to Station within a reasonable period of time
after the close of each month during the term.
(ii) From the amounts otherwise payable to Station hereunder, NBC
shall deduct for each week during each calendar quarter of the term hereof
a sum equal to 217% of Station's Network Station Rate provided in
subparagraph 5(a)(i)(A) above (the "Waiver Percentage"). This deduction
shall be calculated on a weekly basis, with 4.2857 as the agreed number of
weeks per month, and shall be reported to Station with the reports due
under subparagraph 5(c)(i) above. NBC shall make other deductions from the
amounts otherwise payable to Station hereunder for additional services made
available by NBC and utilized by Station such as, but not limited to, NBC
News Channel.
(d) (i) Subject to the limitations set forth below, NBC reserves the
right as part of a general rate revision to reevaluate and change at any
time: (A) the percentages set forth in the Compensation Table, or (B) the
Waiver Percentage set forth in subparagraph 5(c)(ii) above, by giving
written notice to Station at least thirty (30) days prior to the effective
date of such change. Notwithstanding the foregoing, NBC agrees that
(X) the Compensation Table attached hereto as Exhibit B shall be
modified during the term of this Agreement only as mutually agreed to by NBC and
Station; and
(Y) NBC may increase the Waiver Percentage only by reason of an
increase in NBC's technical costs of delivering programming to the NBC
Television Network; provided that any such increase in the Waiver Percentage
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shall be subject to review by the NBC Affiliate Board.
(ii) Notwithstanding anything contained in subparagraph 5(d)(i) to the
contrary, the parties acknowledge that the payment of compensation to
Station hereunder is in consideration of certain commitments by Station,
including commitments regarding Station's local news program schedule and
promotion of NBC programming as respectively set forth in Exhibits C and D
attached hereto, which Exhibits are incorporated herein by this reference.
In the event that Station (A) materially reduces its local news program
schedule as set forth in Exhibit C or (B) does not fulfill such commitments
as are set forth in Exhibit D in all years during the term of this
Agreement, NBC reserves the right to decrease Station's Network Station
Rate by notifying Station in writing at least ninety (90) days prior to the
effective date of such change.
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6. Additional Consideration. In consideration of Station entering into
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this Agreement and Station's performance of its obligations under this
Agreement, NBC agrees to pay Station the additional amounts (the "Additional
Payments") set forth on Exhibit E hereto, subject to the provisions thereof.
7. Local Commercial Announcements. Subject to the following sentence,
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NBC agrees that during each quarter during the term of this Agreement, the
average weekly number of minutes available for Station's local commercial
announcements in and adjacent to regularly scheduled NBC programming in each
daypart (with pro-rated adjustments for national sports programming, special
news coverage or other special events) shall not be less than ninety-five
percent (95%) of the average weekly number of minutes for the applicable daypart
during the 1993-94 Broadcast Year as set forth in Exhibit F attached hereto
(except if the reduction is due to a change in applicable government
regulations). In the event of a reduction in the average weekly number of
minutes available for Station's local commercial announcements in and adjacent
to regularly scheduled NBC programming which causes NBC not to be in compliance
with the foregoing provision, NBC agrees to offset the effects of such reduction
by providing Station with a comparable economic benefit, which benefit may take
the form of local coverage of NBC promotional announcements, an increase in the
amount of Station's preemptions permitted under Paragraphs 3 (b), 3 (c) or 3 (d)
hereof, or other form of benefit. The foregoing provisions of this Paragraph 7
are not intended to facilitate any disproportionate change by NBC in the
allocation of the number of minutes available for Station's local commercial
announcements in and adjacent to regularly scheduled NBC programming among
different time periods in any daypart, if such change is solely for NBC's
economic benefit.
8. Delivery. NBC shall transmit the programming hereunder by satellite
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and shall notify Station as to both the satellite and transponder being used for
such transmission, and the programming shall be deemed delivered to Station when
transmitted to the satellite. Where, in the opinion of NBC, it is impractical
or undesirable to furnish a program over satellite facilities, NBC may deliver
the program to Station in any other manner, including but not limited to, in the
form of motion picture film, video tape or other recorded version, postage
prepaid, in sufficient time for Station to broadcast the program at the time
scheduled. Such recordings shall be used only for a single television broadcast
over Station, and Station shall comply with all NBC instructions concerning the
disposition to be made of each such recording received by Station hereunder.
9. Conditions of Station's Broadcast. Station's broadcast of NBC
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programming shall be subject to the following terms and conditions:
(a) Station shall not make any deletions from, or additions or
modifications to, any NBC program furnished to Station hereunder or any
commercial, NBC identification, program promotional or production credit
announcements or other interstitial material contained therein, nor broadcast
any commercial or other announcements (except emergency bulletins) during any
such program, without NBC's prior written authorization. Station may, however,
delete announcements promoting any NBC program which is not to be broadcast by
Station, provided that such deletion shall be permitted only in the event and to
the extent that Station substitutes for any such deleted promotional
announcements other announcements promoting NBC programs to be broadcast by
Station.
(b) For purposes of identification of Station with the NBC programs,
and until written notice to the contrary is given by NBC, Station may
superimpose on various Entertainment programs, where designated by NBC, a single
line of type, not to exceed fifty (50) video lines in height and situated in the
lower eighth raster of the video screen, which single line shall include (and
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be limited to) Station's call letters, community of license or home market,
channel number, and the NBC logo. No other addition to any Entertainment
program is contemplated by this consent, and the authorization contained herein
specifically excludes and prohibits any addition whatsoever to News and Sports
programs, except identification of Station as provided in the preceding sentence
as required by the FCC.
(c) The placement and duration of station-break periods provided for
locally originated announcements between NBC programs or segments thereof shall
be designated by NBC. Station shall broadcast each NBC program delivered to
Station hereunder from the commencement of network origination until the
commencement of the terminal station break.
(d) In the event of the confirmation by NBC of any violation by
Station of any of the provisions of this Paragraph 9, NBC may, in its reasonable
discretion, withhold an amount of compensation otherwise due Station under
Paragraph 5 above which is appropriate in view of the nature of the specific
violation, it being understood that the amount withheld for any violation shall
not exceed the total compensation due Station for the week in which such
violation occurs. Nothing herein contained shall limit the rights of Station
under Paragraph 4(c) above.
10. Station Reports. Station shall submit to NBC in writing, upon forms
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provided by NBC, such reports as NBC may request covering the broadcast by
Station of programs furnished to Station hereunder.
11. Music Performance Rights. All programs delivered to Station pursuant
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to this Agreement shall be furnished with all music performance rights necessary
for broadcast by Station included. Station shall have no responsibility for
obtaining such rights from ASCAP, BMI or other music licensing societies insofar
as the programs delivered by NBC to Station for broadcasting are concerned. As
used in this paragraph, "programs" shall include, but shall not be limited to,
program and promotional material and commercial and public service announcements
furnished by NBC. Station shall be responsible for all music license
requirements for any commercial and public service announcements or other
material inserted by Station within or adjacent to the programs as permitted
under the terms of this Agreement, except for cut-ins produced by or on behalf
of NBC and inserted by Station at NBC's direction.
12. Force Majeure. Neither Station nor NBC shall incur any liability
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hereunder because of NBC's failure to deliver, or the failure of Station to
broadcast, any or all programs due to failure of facilities, labor disputes,
government regulations or causes beyond the reasonable control of the party so
failing to deliver or to broadcast. Without limiting the generality of the
foregoing, NBC's failure to deliver a program for any of the following reasons
shall be deemed to be for causes beyond NBC's reasonable control: cancellation
of a program because of the death, illness or refusal to appear or perform of a
star or principal performer thereon, or because of such person's failure to
conduct himself or herself with due regard to social conventions and public
morals and decency, or because of such person's commission of any act or
involvement in any situation or occurrence tending to degrade him or her in
society, or bringing him or her into public disrepute, contempt, scandal or
ridicule, or tending to shock, insult or offend the community, or tending to
reflect unfavorably upon NBC or the program sponsor.
13. Indemnification. NBC shall indemnify, defend and hold Station, its
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parent, subsidiary and affiliated companies, and their respective directors,
officers and employees, harmless from and against all claims, damages,
liabilities, costs and expenses (including reasonable attorneys, fees) arising
out of the use by Station, in accordance with this Agreement, of any program or
other
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material as furnished by NBC hereunder, provided that Station promptly notifies
NBC of any claim or litigation to which this indemnity shall apply, and that
Station cooperates fully with NBC in the defense or settlement of such claim or
litigation. Similarly, Station shall indemnify, defend and hold NBC, its
parent, subsidiary and affiliated companies, and their respective directors,
officers and employees, harmless with respect to material added to or deleted
from any program by Station, except for cut-ins produced by or on behalf of NBC
and inserted by Station at NBC's direction. These indemnities shall not apply
to litigation expenses, including attorneys, fees, which the indemnified party
elects to incur on its own behalf. Except as otherwise provided herein, neither
Station nor NBC shall have any rights against the other for claims by third
persons, or for the non-operation of facilities or the non-furnishing of
programs for broadcasting, if such non-operation or non-furnishing is due to
failure of equipment, actions or claims by any third person, labor disputes, or
any cause beyond such party's reasonable control.
14. Station's Right of First Negotiation. Throughout the term of this
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Agreement, NBC shall give Station prompt notice of any determination by NBC to
engage in new over-the-air broadcast ventures within Station's community of
license (whether or not involving the transmission of television programs, but
excluding any acquisition of an ownership interest in any broadcast television
station) (a "Broadcast Venture"). NBC shall negotiate exclusively with Station
in good faith, for a period of time following such notice to Station as shall be
determined by NBC to be appropriate to the circumstances and as shall be
specified in such notice, with respect to Station's participation on a financial
and/or operational basis in any such Broadcast Venture within Station's
community of license before NBC may enter into any such negotiations with a
Third Party (as defined below) within such community of license. "Third Party"
shall mean any person or entity other than an NBC Party; "NBC Party" shall mean
any of NBC, National Broadcasting Company, Inc. or their respective parent,
subsidiary, affiliated, related or successor entities.
15. Change in Operations. Station represents and warrants that it holds a
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valid license granted by the FCC to operate the Station as a television
broadcast station; such representation and warranty shall constitute a
continuing representation and warranty by Station. In the event that Station's
transmitter location, power, frequency, programming format or hours of operation
are materially changed at any time so that Station is of less value to NBC as a
broadcaster of NBC programming than at the date of this Agreement, then NBC
shall have the right to terminate this Agreement upon thirty (30) days prior
written notice to Station.
16. Assignment.
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(a) This Agreement shall not be assigned without the prior written
consent of NBC, and any permitted assignment shall not relieve Station of its
obligations-hereunder. Any purported assignment by Station without such consent
shall be null and void and not enforceable against NBC.
(b) Station agrees to include as a condition of any proposed
assignment, sale or transfer of Station (including any assignment or transfer
referred to in Paragraph 16(c) below other than a "short-form" assignment) a
contractually binding provision that the assignee or transferee shall assume and
become bound by this Agreement for (i) the remainder of the then-current term of
this Agreement or (ii) three (3) years from the date of said assignment or
transfer, whichever period is greater. Station acknowledges that any such
assignment, sale or transfer which does not so provide for such assumption and
for NBC's right to extend the term of this Agreement will cause NBC irreparable
injury for which damages are not an adequate remedy. Therefore, Station agrees
that NBC shall be entitled to seek an injunction or similar relief from any
court of competent jurisdiction
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restraining Station from committing any violation of this Paragraph 16(b).
(c) Station agrees that if any application is made to the FCC
pertaining to an assignment or a transfer of control of Station's license, or
any interest therein, Station shall immediately notify NBC in writing of the
filing of such application. Except as to "short form" assignments or transfers
of control made pursuant to Section 73.3540(f) of the FCC Rules, NBC shall have
the right to terminate this Agreement in the event of any assignment or
transfer. Station agrees, except in the case of "short form" assignments or
transfers of control, that promptly following Station's notice to NBC, Station
(i) shall arrange for a meeting between NBC and the proposed assignee or
transferee to review the financial and operating plans of the proposed assignee
or transferee, and (ii) shall procure and deliver to NBC, in form satisfactory
to NBC, the agreement of the proposed assignee or transferee that, upon
consummation of the assignment or transfer of control of the Station's license,
the assignee or transferee will assume and perform this Agreement in its
entirety without limitation of any kind. If Station complies with its
obligations set forth in the preceding sentence and NBC does not terminate this
Agreement upon written notice to Station within the thirty (30) day period
following the later of the meeting with the proposed assignee or transferee or
the delivery to NBC of a satisfactory assumption agreement, NBC shall be deemed
to have consented to the assignment or transfer of control.
(c) NBC agrees that in the event of a sale or transfer of all or
substantially all of the assets or business of NBC (whether structured as a sale
or transfer of equity or assets of NBC), NBC agrees to assign this Agreement to
the purchaser or transferee and to cause such purchaser or transferee to assume
NBC's obligations hereunder; provided that the foregoing agreement shall not
apply in the event that this Agreement becomes an obligation of such purchaser
or transferee by operation of law. Upon such assignment and assumption, NBC
shall have no liability to Station under this Agreement with respect to
obligations arising after the effective date of such assignment and assumption.
17. Unauthorized Copying and Transmission. Station shall not authorize,
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cause, or permit, without NBC's consent, any program or other material furnished
to Station hereunder to be recorded, duplicated, rebroadcast or otherwise
transmitted or used for any purpose other than broadcasting by Station as
provided herein. Notwithstanding the foregoing, Station shall not be restricted
in the exercise of its signal carriage rights pursuant to any applicable rule or
regulation of the FCC with respect to retransmission of its broadcast signal by
any cable system or multichannel video program distributor ("MVPD"), as defined-
in Section 76.64(d) of the FCC Rules, which (a) is located within the Area of
Dominant Influence ("ADI"), as defined by Arbitron, in which Station is located,
or (b) was actually carrying Station's signal as of April 1, 1993, or (c) with
respect to cable systems, serving an area in which Station is "significantly
viewed" (as determined by the FCC) as of April 1, 1993; provided, however, that
any such exercise pursuant to FCC Rules with respect to NBC programs shall not
be deemed to constitute a license by NBC; and provided, further, that at such
-------- -------
time as NBC adopts a term in substitution for the term "ADI" by reason of any
similar action by the FCC or other appropriate authority, such substitute term
shall replace the references to "ADI" herein. NBC reserves the right to
restrict such signal carriage with respect to NBC programming in the event of a
change in applicable law, rule or regulation.
18. Limitations on Retransmission Consent. In consideration of the grant
-------------------------------------
by NBC to Station of the non-duplication protection provided in the most recent
amendment to this Agreement, Station hereby agrees as follows:
10
(a) Station shall not grant consent to the retransmission of its
broadcast signal by any cable television system, or, except as provided in
Paragraph 18(b) below, to any other MVPD whose carriage of broadcast signals
requires retransmission consent, if such cable system or MVPD is located outside
the ADI to which Station is assigned, unless Station's signal was actually
carried by such cable system or MVPD as of April 1, 1993, or, with respect to
such cable system, is "significantly viewed" (as determined by the FCC) as of
April 1, 1993; provided, however, that at each renewal of this Agreement, in the
event Station can demonstrate to NBC that it is "significantly viewed" (as
determined by the FCC) in areas in addition to those in which it was
"significantly viewed" as of April 1, 1993 ("Additional Viewing Areas"), NBC
agrees that it will negotiate in good faith with Station regarding a possible
extension of Station's grant of the right to retransmit its broadcast signal to
cable systems in the Additional Viewing Areas.
(b) Station shall not grant consent to the retransmission of its
broadcast signal by any MVPD that provides such signal to any home satellite
dish user, unless such user is located within Station's own ADI or is an
"unserved household" as defined in Section 119(d) or any successor provision of
Title 17 of the United States Code.
19. Remedies for Unauthorized Copying and Transmission. If Station
--------------------------------------------------
violates any of the provisions set forth in Paragraphs 17 and 18 above, NBC may,
in addition to any other of its rights or remedies at law or in equity under
this Agreement or any amendment thereto, terminate this Agreement by written
notice to Station-given at least ninety (90) days prior to the effective date of
such termination.
20. Applicable Law. The obligations of Station and NBC under this
--------------
Agreement are subject to all applicable federal, state, and local laws, rules
and regulations (including, but not limited to, the Communications Act of 1934,
as amended, and the rules and regulations of the FCC), and this Agreement and
all matters or issues collateral thereto shall be governed by the law of the
State of New York applicable to contracts negotiated, executed and performed
entirely therein (without regard to principles of conflicts of laws).
21. Waiver. A waiver by either of the parties hereto of a breach of any
------
provision of this Agreement shall not be deemed to constitute a waiver of any
preceding or subsequent breach of the same provision or any other provision
hereof.
22. Notices. Any notices hereunder shall be in writing and shall be given
-------
by personal delivery, overnight courier service, or registered or certified
mail, addressed to the respective addresses set forth on the first page of this
Agreement or at such other address or addresses as may be specified in writing
by the party to whom the notice is given. Such notices shall be deemed given
when personally delivered, delivered to an overnight courier service or mailed,
except that notice of change of address shall be effective only from the date of
its receipt.
23. Captions. The captions of the paragraphs in this Agreement are for
--------
convenience only and shall not in any way affect the interpretation hereof.
24. Entire Agreement. The foregoing constitutes the entire agreement
----------------
between Station and NBC with respect to the subject matter hereof, all prior
understandings being merged herein, except for the most recent amendment with
respect to network nonduplication protection under FCC Rules Section 76.92. This
Agreement may not be changed, modified, renewed, extended or discharged, except
as specifically provided herein or by an agreement in writing signed by the
parties hereto.
11
25. Confidentiality. The parties agree to use their best efforts to
---------------
preserve the confidentiality of this Agreement and of the terms and conditions
set forth herein, and the exhibits annexed hereto, to the fullest extent
permissible by law. The parties recognize that Section 73.3613 of the FCC's
Rules and Regulations requires the filing with the FCC of television network
affiliation agreements by each affiliate, but are unaware of any requirement for
the filing of exhibits annexed to such affiliation agreements. In the event
that the FCC should request either party to file said exhibits, that party shall
give prompt notice to the other, and shall submit said exhibits to the FCC with
a request that said exhibits be withheld from public inspection pursuant to
Section 0.459 of the FCC's Rules and Regulations on the grounds that said
exhibits contain confidential commercial or financial information that would
customarily be guarded from competitors and not be released to the public.
26. Counterparts. This Agreement may be signed in any number of
------------
counterparts with the same effect as if the signature to each such counterpart
were upon the same instrument.
If the foregoing is in accordance with your understanding, please
indicate your acceptance on the copy of this Agreement enclosed for that purpose
and return that copy to NBC.
Very truly yours,
NATIONAL BROADCASTING COMPANY, INC.
By: /s/ [ILLEGIBLE]
---------------
AGREED:
HERITAGE MEDIA CORP.
By: /s/ [ILLEGIBLE]
-------------------------------------
12
EXHIBIT "A"
-----------
ECONOMIC ADJUSTMENTS
Adjustments due to a preemption of an NBC program referred to in
Paragraph 4(b) of this Agreement will be calculated using the following two
factors:
1. "Station's NBC delivery percentage" which is the Station's
audience contribution to NBC Network programs expressed as a percentage. (This
is the same NBC delivery percentage used in the annual compensation evaluation.)
2. "Program revenue" which is the average NBC Network revenue for
the preempted program. (NOTE: Program revenue will be the average revenue per
program based on total annual revenue for that program, except revenue for each
prime time program, which will be adjusted for the day of the week and the
quarter in which the program is aired.)
Station's preempts "Program X"
Station's NBC Network delivery % = 2.1%
NBC revenue for "Program X" = $900,000
$900,000 x 2.1% = $18,900 payment to NBC
00
XXXXXXX "X"
XXXX, XXXXXXXXXXX, XXX XXXX
Compensation Matrix
-------------------
(NETWORK STATION RATE ____________ X HOURS CARRIED X % BELOW)
MON - SUN 6PM - 11PM* 30%
------------------------------------------------------------------------------
MON - SUN 5PM - 6PM* 15%
11PM - 1AM
SAT - SUN 4PM - 5PM
------------------------------------------------------------------------------
MON - FRI 9AM - 5PM 12.81%
------------------------------------------------------------------------------
SUN 7AM - 4PM** 10.5%
SAT 2PM - 4PM
------------------------------------------------------------------------------
SAT 7AM - 2PM** 7.88%
------------------------------------------------------------------------------
NIGHTLY NEWS MON - FRI 0%
NIGHTLY NEWS SAT - SUN 10%
------------------------------------------------------------------------------
TONIGHT SHOW 7.5%
------------------------------------------------------------------------------
LATE NIGHT 10.25%
------------------------------------------------------------------------------
FRIDAY NIGHT 4.75%
------------------------------------------------------------------------------
LATER 4%
------------------------------------------------------------------------------
SATURDAY NIGHT LIVE 6.67%
------------------------------------------------------------------------------
* EXCLUDING NIGHTLY NEWS
** EXCLUDING SATURDAY AND SUNDAY TODAY
All times above are expressed in terms of your station's then current local
time.
00
XXXXXXX "X"
-----------
XXXX NEWS PROGRAMS
Monday - Friday
---------------
12:00 Noon-12:30 P.M.
6:00-6:30 P.M.
11:00-11:35 P.M.
Saturday
--------
6:00-6:30 P.M.
11:00-11:30 P.M.
15
[NBC TV NETWORK LETTERHEAD]
December 6, 1994
Xx. Xxxxxx X. Xxxxxxx
President and General Manager
WPTZ
Television Drive
Plattsburgh, N.Y. 12901
Dear Xxx:
This letter agreement is to confirm our understanding regarding the long-term
affiliation of the NBC Television Network and WPTZ.
1. Term
----
(a) Initial Term: Seven (7) years, commencing on January 1, 1995.
(b) Renew for an additional three (3) years if neither party gives 12-
month notice before expiration of the initial term.
(c) Except for notice of non-renewal and other rights of termination
specified in the agreement, firm contract on both sides (removing each
party's rolling right of termination on 12-month notice).
2. Programmed Time Periods:
-----------------------
NBC will continue to provide programming for all the time periods it
currently programs.
3. Clearance:
---------
WPTZ will clear live all. NBC programming in time periods in which such
programming is currently offered, subject to WPTZ's preemption rights get
forth below
4. Preemptions:
------------
(a) WPTZ has the unqualified right to preempt NBC programming for live
coverage of news events.
(b) WPTZ will have complete discretion on preemptions in Prime Time up to
a total of 30 hours per year in addition to live coverage of news
events.
(c) WPTZ agrees to clear all NBC Weekend Sports programs; provided,
---------
however, that WPTZ will have complete discretion on preemptions of NBC
-------
Weekend Sports up to a total of 15 hours per year.
16
(d) WPTZ agrees that no more than 20% of the foregoing permitted
preemptions per year shall occur in any one (1) month period.
(e) NBC may withhold compensation for any program not broadcast live. In
addition to any compensation permitted to be withhold by NBC, in the
event of any preemption in excess of the amounts provided in
Paragraphs 4(b), (c) and (d) above, WPTZ will pay NBC a sum equivalent
to NBC's loss in net advertising revenues attributable to WPTZ's
failure to broadcast the program as scheduled by NBC. (The formula
for calculating such sum will be specified in the long-form
affiliation agreements.)
5. Compensation and Additional Consideration:
-----------------------------------------
The Compensation Rate of WPTZ will remain at current levels, subject to
NBC's customary right of review. Subject to WM's compliance with its
commitments regarding clearance and preemption as set forth herein, NBC
will pay WPTZ as additional consideration, on a pro rata basis for each
hour of NBC Prime Time programming broadcast live by WPTZ for which
compensation is payable, the following amounts:
1995 - $100,000 1999 - $266,700
1996 - $141,700 2000 - $308,400
1997 - $183,400 2001 - $350,000
1998 - $225,000
In the event the agreement is renewed for an additional three-year period
commencing January 1, 2002, compensation and additional consideration will be
payable as provided above, except that the amount of additional consideration
payable on a pro rata, basis for each hour of NBC Prime Time programming
broadcast live by WPTZ for which compensation is payable will be as follows:
2002 - $390,000
2003 - $432,000
2004 - $476,100
17
6. Local Inventory:
----------------
NBC agrees that the format of local avails in its regularly scheduled
programming will continue during the term or be offset with a comparable
economic benefit to WPTZ.
7. Right of First Negotiation:
--------------------------
WPTZ will have the right of first negotiation with respect to any new NBC
over-the-air broadcast venture (whether or not involving the transmission
of television programs) which requires participation on a financial or
operating basis by a Third Party (i.e., a party other than a parent,
subsidiary or affiliated entity of NBC, Inc.) within WPTZ's community of
license.
8. Change of Control:
-----------------
WPTZ will notify NBC of any application for FCC approval of assignment or
transfer of control of WPTZ's license and, subject to NBC's right of
termination, will adhere to an orderly procedure regarding the assignment
of the affiliation agreement, including securing the now owner's assumption
of the affiliation agreement and assuring that the term of the new owner's
affiliation will be at least three years.
9. Confidentiality:
---------------
Each party will treat this term sheet as confidential and will not disclose
any of its terms without the other party's prior consent.
10. Other Provisions:
----------------
This is a binding letter agreement. The parties contemplate entering into
long-form affiliation agreements which with incorporate the provisions
contained herein and other terms and conditions of WPTZ's affiliation with
NBC not inconsistent with such provisions.
Sincerely,
/s/ Xxxx Xxxxxx
-----------------------------------
Xxxx Xxxxxx
Agreed and Accepted:
HERITAGE MEDIA INC.
Licensee of WPTZ
By: /s/ [ILLEGIBLE]
-----------------------------------
18
[NBC TV NETWORK LETTERHEAD]
May 27, 1993
HERITAGE MEDIA,INC.
PLATTSBURGH, NEW YORK
Re: WPTZ
Gentlemen:
The following shall constitute an amendment to the television network
affiliation agreement (the "Agreement") between the licensee of Station WPTZ
("Station") and National Broadcasting Company, Inc. ("NBC"), effective as of
January 01, 1990.
1. During the term of the Agreement, Station shall, by the terms of this
amendment, be entitled to invoke protection against the simultaneously
duplication of NBC's network programming as carried by Station imported within a
radius from Station's designated community of license as defined in Section
73.606 of the Rules of the Federal Communications Commission ("FCC") to the
maximum geographic extent from said community of license permitted under the
present Sections 76.92 and 73.658(m) of the FCC's Rules and in accordance with
the terms and conditions of said Rules.
2. Either party shall have the right to terminate this amendment (a) on
December 31, 1996, by written notice to the other on or before June 30, 1996,
for any reason whatsoever; or (b) at any other time during the term of the
Agreement, by written notice to the other given at least 60 days prior to the
effective date such termination, but only in the evenly of the following:
(i) Station grants consent to the retransmission of its broadcast
signal by and cable television system or, except as provided in subparagraph
2(b) (ii) below, to any other multichannel video program distributor ("MVPD"), a
defined in Section 76.64(d) of the FCC Rules, whose carriage of broadcast
signals requires retransmission consent, and such cable system or MVPD is
located outside the Area of Dominant Influence ("ADI"), as defined by Arbitron,
to which Station is assigned, unless Station's signal is actually carried by
such cable system or MVPD as of April 1, 1993, or, with respect to such cable
system, is "significantly viewed" (as determined by the FCC) as of April 1,
1993; provided, however, that at each renewal of the Agreement, in the event
Station can demonstrate to NBC that it is "significantly viewed" (as determined
by the FCC) in areas in addition to those in which it was "significantly viewed"
as of April 1, 1993 ("Additional Viewing Areas"), NBC agrees that it will
negotiate in good faith with Station regarding a possible extension of Station's
grant of the right to retransmit its broadcast signal to cable systems in the
Additional Viewing Areas; or
(ii) Station grants consent to the retransmission of its broadcast
signal by any MVPD that provides such signal to any home satellite dish user,
unless such user is located within Station's own ADI or is an "unserved
household" as defined in Section 119(d) or any successor provision of Title 17
of the United States Code.
19
Any notice of termination under paragraph 2(b) hereof given by either party may
be withdrawn by such party if, as of the effective date provided therein, the
circumstances giving rise to such party's right of termination no longer exist.
To the extent that any term of the Agreement is inconsistent with the terms
of this amendment, this amendment shall prevail. Except as notified by this
amendment, the Agreement shall remain in full force and effect.
Very truly yours,
NATIONAL BROADCASTING COMPANY, INC.
By: /s/ [ILLEGIBLE]
---------------
AGREED AND ACCEPTED:
HERITAGE MEDIA, INC.
By: /s/ [ILLEGIBLE]
------------------------------
20
