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EXHIBIT 6.30
CHANNEL USE AND PROGRAMMING AGREEMENT
FOR
DOMINION "SKY ANGEL" HIGH POWER DIRECT BROADCAST SATELLITE
TELEVISION AND RADIO SYSTEM
Programmer:
AMERICAN INDEPENDENT NETWORK
Dated: November 19, 1997
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TABLE OF CONTENTS
Recitals............................................................... -5-
1. Grant of Rights..................................................... -5-
A. Channel Use Allocation....................................... -5-
B. Programming License and Transmission Rights.................. -6-
C. Territory.................................................... -7-
D. Signal Transmission and Delivery............................. -7-
E. Conditions to Broadcast Commencement Date.................... -7-
F. Term of Agreement............................................ -8-
2. Termination of Channel Use Rights................................... -8-
A. Termination Events........................................... -8-
B. Termination Procedure........................................ -8-
3. Subject to Echo Star Agreement...................................... -8-
4. Programming......................................................... -9-
5. No Ownership Rights................................................. -9-
6. Exclusivity......................................................... -9-
7. Promotion........................................................... -9-
A. Promotional Activities........................................ -9-
B. Use of Names and approvals.................................... -10-
8. Restrictions........................................................ -10-
A. Restriction on Transfers..................................... -10-
B. Content Restrictions......................................... -10-
C. Redundancy................................................... -10-
D. Advertising Limitation....................................... -10-
9. Preemption.......................................................... -11-
10. Dominion Spots and Identification................................... -11-
11. Performance and Copyright Royalties................................. -11-
12. Interpretation According to Governing Statutes...................... -11-
13. Technical and Programming Standards............................. ... -11-
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14. Representations, Warranties, and Covenants .......................... -11-
A. Mutual Representations, Warranties, and Covenants .............. -11-
B. Ministry Programmer Warranties and Covenants ................... -12-
15 Indemnification
A. By the Ministry Programmer ..................................... -12-
B. By Dominion .................................................... -12-
C. Indemnification Procedures ..................................... -13-
D. Survival of Right to Indemnification ........................... -14-
E. Affiliates ..................................................... -14-
16. Termination
A. Termination for Breach or Default .............................. -14-
B. Opportunity to Cure ............................................ -15-
17. Limitation of Liability ............................................. -15-
A. Limitation on Type of Damages .................................. -15-
18. Force majeure Events ................................................ -15-
19. Nondisclosure of Confidential Information ........................... -15-
20. Miscellaneous ....................................................... -16-
A. Satellite Operations ........................................... -16-
B. Satellite Transmissions ........................................ -16-
C. Government Approvals ........................................... -16-
D. Notices ........................................................ -00-
X. Xxxxxxxxx Law .................................................. -17-
F. Arbitration .................................................... -18-
G. Headings ....................................................... -19-
H. Assignment ..................................................... -19-
I. Counterparts ................................................... -19-
J. Private Parties ................................................ -19-
K. No Third Party Beneficiaries, etc. ............................. -19-
L. No Implied Waiver .............................................. -19-
M. Entire Agreement ............................................... -00-
X. Xxxxxxxxxxx .................................................... -20-
O. Amendment and Modification ..................................... -20-
P. Further Assurances ............................................. -20-
Q. Relationship of the Parties..................................... -20-
R. Invalidity ..................................................... -20-
S. Conformance to FCC Rules ....................................... -20-
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CHANNEL USE AGREEMENT FOR
HIGH-POWERED DIRECT BROADCAST SATELLITE
This Agreement is entered into this 1st day of August, 1997, by and between
American Independent Network, (hereafter "Programmer" or from time to time
"AIN"), 0000 Xxxxxxx Xxxxxxx, Xxxxx 000, Xxxxx Xxxxx, XX 00000, and Dominion
Foundation, Inc. (hereinafter "DFI" and from time to time "Dominion") located
at 0000 Xxxxx Xxxxxxxxx Xxxxx, Xxxxx 000, Xxxxxx, Xxxxxxx 00000.
Recitals
A. Dominion Foundation, Inc. is an IRC 501(c)(3) Florida religious
non-profit corporation having a sublease of high-powered direct broadcast
satellite (DBS) transmission spectrum, identified as the "Sky Angel DBS
Television System," from Dominion Video Satellite, Inc., an FCC licensed
high-powered DBS licensee.
B. The fully licensed DBS transmission spectrum of Dominion Video
Satellite, Inc., is known and referred to herein as the "Dominion DBS
Television System" and operates pursuant to a DIRECT BROADCAST SERVICE
TRANSPONDER LEASE, CHANNEL USE AND PROGRAMMING AGREEMENT, by and between
EchoStar Satellite Corporation and Dominion Video Satellite, Inc. dated July
18, 1996, and referred to herein as the "EchoStar Agreement."
C. The EchoStar Agreement provides for the use of EchoStar's frequencies
licensed from the Federal Communications Commission (FCC) on the EchoStar II
Satellite until the launch and operation of EchoStar III (expected to be
November 1997), and thereafter on EchoStar III with Dominion Video Satellite's
frequencies licensed from the FCC for the life of the satellite.
D. Dominion Foundation wishes to make broadcast time available to certain
religious ministries and family oriented programmers, pursuant to the Dominion
ministry purposes, in consideration, among other things, of those ministries
committing to promote the Dominion project to their constituency.
NOW, THEREFORE, in consideration of the mutual promises and covenants contained
herein, and for other good and sufficient consideration, receipt of which is
hereby acknowledged, the parties hereto agree as follows:
1. Grant of Rights
A. Channel Use Allocation. Subject to the terms and conditions of
this Agreement, Dominion hereby allocates to the Programmer and the Programmer
hereby accepts the following high-powered DBS broadcast time:
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(1) Upon the commencement of Dominion's broadcasting from
EchoStar III, located at 61.5 degrees X.X., one (1) twenty-four (24) hours per
day, seven days per week high powered direct broadcast satellite digital
channel shall be allocated to AIN on Echo-Star III for DBS transmission to the
continental United States.
(2) Once the digital channel is initiated on Echo-Star III, the
term of this Channel Use Agreement shall be an initial trial period of six
months followed by successive one year renewals as set froth in paragraph 1 F,
and continuing for the life of the satellite or any replacement satellite in
the event of any launch or post launch failure of Echo-Star III.
(3) Dominion reserves the right to use any orbital position and
any available satellite to provide the Continental U.S. DBS transmission
contemplated hereunder.
(4) The digital channels shall be used for Christian and family
programming as follows:
(a) Christian Programming shall be defined as audio and/or
video programming which has as its overriding focus, Christian religious
content, and which is only marketed to appeal to the Christian theme and
content.
(b) Family programming shall be defined as audio and/or
video programming which has or would meet the criteria for a "G" rating
(General Audience) under the United States audio and video rating system.
(c) The one channel shall have the same format and
programming as the currently existing AIN broadcast on Spacenet 3, channel 2,
and as changed or modified in the normal course of business by the Ministry
Programmer from time to time. Additionally, the existing AIN satellite
broadcast may be modified at the Programmer's facility or at the Dominion
network center specifically for Sky Angel broadcast by mutual consent of the
parties (hereinafter "the Programming").
(5) The digital channel shall be included in the Dominion DBS
Sky Angel Television System programming which is made available to households
for a Dominion Sponsorship Program Activation, as established in Dominion's
sole discretion, with no other charges or costs to the individual households
receiving Dominion programming (such households are referred to as "Dominion
Households"). Unless expressly provided for in this agreement, or in the event
Dominion creates a monthly charge for individual channel programming in the
future, no programming on these channels shall have a pay-per-view, or
additional cost of any kind whatsoever, charged by the Ministry Programmer, to
such Dominion Programmer, to such Dominion Households in order to receive such
programming; provided, however, that nothing shall prevent the sale of goods
and services or other paid advertising which are compatible with the "G" rating
criteria and/or the overriding Christian and ministry purposes of Dominion.
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(6) When the Sky Angel audience reaches 500,000 sponsor
households, the parties hereto agree to negotiate in good faith a mutually
agreeable revenue sharing formula to be applied to paid advertising revenues
and over the air DBS sales revenues based on the Sky Angel audience compared to
the total Programmer's audience.
B. Programming License and Transmission Rights. For purposes of
direct broadcast satellite transmission (DBS), the Ministry Programmer hereby
grants to Dominion the right and license to:
(1) receive the Programmer's programming, as set forth in
paragraph 1A(5), via the Programmer's transmission or tape method in a
descrambled form;
(2) transmit the signal of the Programming in a digitally
compressed, encrypted format via satellite at a compression rate and picture
quality determined in the sole discretion of Dominion, which compression rate
and picture quality determined in the sole discretion of Dominion, which
compression rate may be changed from time to time;
(3) activate and deactivate consumer or commercial equipment
Integrated Receiver Descramblers (IRDs) for unencrypted exhibition of the
Programming as transmitted via the satellite;
(4) solicit, directly or through its agent or assignee, Program
Activation Fees for the Programming as a part of the Sky Angel DBS Television
System, which amounts shall be established in the sole discretion of Dominion
and may be changed from time to time, and conduct certain customer service
functions for Dominion sponsors.
(5) contract with broadcast and cable system affiliates and
non-affiliates of the Programmer to use the Sky Angel DBS signal as a
"back-haul" signal for retransmission of the Programmer's programming, in whole
or part, over local terrestrial broadcast, cable outlets, or closed cable-type
systems such as prisons and hospitals. Any such retransmission shall require
written authorization from the Programmer granting appropriate consent to the
retransmission, and the retransmitting entity shall be required to abide by
any and all of the policies, procedures, fees, and agreements of Dominion, as
established or modified from time to time, for such retransmission purposes.
C. Territory. The license and transmission rights granted herein
shall be exclusive for DBS in North America and non-exclusive for the rest of
the world. Dominion's DBS transmission of the Programmer's programming pursuant
to this agreement shall be for the geographic boundaries of the United States,
its territories, possessions and commonwealth (the "Territory"). Dominion
makes no commitment to carry any of the Programming on international
transmissions, however, the Programmer agrees to allow Dominion, in Dominion's
sole discretion, to use any or all of the Programming for inclusion of the
Programming in any international broadcast that may be initiated in the future.
It is understood and agreed that the satellite signal will spill over outside or
beyond such geographic boundaries, e.g., into Canada, Mexico, the Caribbean and
Central America, and, such
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spillover, in and of itself, does not and shall not create a violation of this
provision nor derive any rights on behalf of the Programmer by virtue of this
circumstance for inclusion in Dominion international broadcasts.
D. Signal Transmission and Delivery. The Programmer shall, at their
sole cost and expense, deliver a readily retransmittable broadcast signal,
within industry quality standards, to Dominion's transmission and origination
center, designated by Dominion from time to time, via satellite or fiber optic
line. The Programmer reserves the right to change signal delivery technology and
shall use reasonable efforts to provide Dominion with ninety (90) days prior
written notice of such change. Any additional costs, expense, or equipment
required by Dominion to accommodate said change shall be paid for by the
Programmer.
E. Conditions to Broadcast Commencement Date. The Programmer agrees
that the conditions set forth in Attachment I, which is attached hereto and
incorporated herein by reference, must be fulfilled by the Programmer to the
reasonable satisfaction of Dominion prior to the start of broadcasting the
Programming.
F. Term of Agreement. The term of this Agreement shall be initially
for six months on a trial basis and thereafter on a yearly renewal which will
automatically renew without action by either party. Any non-renewal shall be
communicated in writing ninety days prior to the renewal date.
2. Termination of Channel Use Rights.
A. Termination Events. The Programmer's rights to the allocation of
the channel under this Agreement shall terminate in Dominion's reasonable
discretion in the event of the occurrence of any of the following:
(1) the Programmer fails to provide programming for the channel
for greater than 24 hours, unless the failure is due to natural catastrophe,
such as hurricanes, tornados and floods, fire, solar disturbances, sun outages,
externally caused interference, satellite component failure or other similar
technical failures beyond the reasonable control of the Programmer, and which
the Programmer could not have prevented by adhering to common industry
practices, or as a result of Dominion's breach of this Agreement;
(2) the use operating life of the satellite ends;
(3) the Programmer is in breach of a material term of this
Agreement and all applicable cure periods have expired, and if no cure period
is specified, such breach remains unremedied for 30 days after written notice
thereof; and
(4) the failure of the Programmer to reasonably follow through
with the intended and agreed upon promotional activities, specified in
paragraph 7, to promote the SKY ANGEL DBS TELEVISION SYSTEM to their
constituency and/or audience.
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B. Termination Procedure. Termination shall occur upon written
notification to the Programmer indicating the reason for termination, any cure
periods that are applicable, and the exact date of termination at which time
Dominion shall have no further responsibility to allocate time to the Programmer
and both parties shall be released from any further liability to each other,
unless expressly stated elsewhere in this Agreement.
3. Subject to EchoStar Agreement. The Programmer acknowledges that this
Agreement is subject to the EchoStar Agreement dated July 18 1996, and agrees
that the use of the one (1) digital channel allocated to the Programmer
hereunder is subject to all of the provisions of that confidential Agreement,
in particular the Christian program content limitation. Dominion reserves the
absolute and sole right to make such decisions under said agreement as are
necessary and proper to maintain the Dominion's consumer programming
responsibilities while giving, to the fullest extent possible, proportionate
consideration to the Programmer for broadcast spectrum allocation in relation
to all other programmers in the event of such things as transponder or
satellite failure. In the event of any change in the amount or location of DBS
spectrum controlled by Dominion, Dominion agrees to continue the Programmer's
allotted time, under the same terms and conditions as this agreement, using any
DBS spectrum that Dominion is able to secure and if less time is available then
previously allotted to all ministry and family programmers, then on a prorata
basis, to the degree technically and reasonably possible, of the
Programmer's allotment compared to the total available time just prior to the
reduction.
4. Programming. The Programmer, or their affiliates, shall, at their
sole cost and expense, create or secure programming for the one (1) digital
channel allocated hereunder which is fully compatible with the overriding
Christian and family mission and purpose of Dominion. It is understood that the
channel is to have family entertainment, family enrichment, sports and cultural
content with a predominant inclusion of movies with a "G" rating. At no time
shall there be any overt liquor commercials, psychic services, "love lines" type
services, or programming that would highlight the occult or satanic subjects.
Dominion reserves the right, immediately or upon 30 days written notice when
possible, to preempt any programming whatsoever, that would materially violate
the ministry purpose or statement of faith of Dominion, that results in a
material number of subscriber complaints, or that would be in violation of any
provision of the EchoStar Agreement.
5. No Ownership Rights. The Programmer agrees that no ownership
rights are being transferred to the channels, but only the right to program the
channels in accordance with this Agreement. Accordingly, no further programming
rights shall be transferred, leased, assigned, gifted, sold or in any other
manner transferred to any other third party or entity and any attempted
transfer shall be void.
6. Exclusivity. Subject to any statutorily imposed mandatory
transmissions (such as "must carry"), the Programmer shall use Dominion
exclusively for any direct to home DBS satellite broadcast transmission
utilizing a one meter or smaller satellite receiving antennae. Any use of the
Dominion DBS satellite signal for backhaul purposes of the Programmer's
programming, in whole or in part, shall be solely by written mutual consent of
the parties and pursuant to the Dominion DBS
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Sky Angel Retransmission Agreement, fee schedules, policies, and procedures as
may be established from time in the sole discretion of Dominion.
7. Promotion.
A. Promotional Activities. The Programmer shall cooperate to the
fullest extent possible with the promotion of the Dominion "SKY ANGEL DBS
TELEVISION SYSTEM" project to the constituency and audience of the Programmer.
This would include, but not be limited to, one or more, or in combination of,
the following: inclusion of Dominion literature and brochures in Programmer
mailings, endorsements, TV and/or radio promotion spots, use of the Programmer's
name in national promotions, inclusion of a Sky Angel identifying "bug" on the
air, etc. The amount of air time required pursuant to this paragraph shall be
mutually agreed on by the parties, and the amount of mailings at the
Programmer's expense shall not exceed two (2) per twelve (12) month period.
Additional specific promotional efforts are detailed on Attachment 3, attached
hereto and hereby incorporated by reference.
B. Use of Names and Approvals. The Programmer agrees to permit
Dominion to use the Programmer's name, trade names and trademarks to market the
Programming.
8. Restrictions. The broadcast time and channel allocation stated above
shall be for the life of the satellite subject to the following restrictions:
A. Restriction on Transfers. The DBS Sky Angel air time shall not
be sold, gifted, assigned or transferred to any third party, nor used for any
unrelated non-commercial and/or commercial purpose without the express written
permission of Dominion. Notwithstanding the foregoing, this paragraph shall not
be construed to preclude sponsorships for programming, short-form advertising,
underwriting or promotional or other such costs, or joint ventures
(collectively referred to as "subprogrammers" of the Programmer), so long as
there is not direct payment for DBS Sky Angel air time which has been gifted to
the Programmer that would be other than subprogrammers, over which the
Programmer has supervision and content oversight, and other such relationships
that already exist or are developed in the future in the normal course of
business and by which the Programmer programs their existing AIN 24-hour
broadcast. Any attempted transfer shall be void.
B. Content Restrictions. The DBS Sky Angel air time shall have
program content that is supportive of and compatible with the ministry
statement and purpose of Dominion and be fully consistent with Biblical
Christianity as expressed in the Dominion Statement of Faith (Attachment 2).
C. Redundancy. In the event of substantial redundancy of programs
among the various channels of the Sky Angel DBS Television System, and upon
written notice to the Programmer, the parties hereto agree to cooperate in
reducing the redundancy or shifting the program schedule, if at all possible,
for the benefit of the entire Sky Angel System.
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D. Advertising Limitation. The Programmer shall be allowed sole
discretion for purposes of advertising and promotions, however, all program
content and advertising content shall be in accordance with the program content
criteria specified herein and shall be reasonable subject to review and mutual
agreement based on viewer response.
9. Preemption. In addition to other preemption provisions contained
herein, Dominion reserves the right to preempt the broadcast time during any
period that the Programmer fails to deliver the acceptable quality signal to
the Dominion uplink facility.
10. Dominion Spots and Identification. Dominion reserves the right, at
Dominion's sole expense, to include an identification "bug" on the Programmer's
DBS channel, permanently, or from time to time, in order to identify the
broadcast as a Sky Angel transmission. Reasonable efforts shall be made by
Dominion to use and locate the "bug" so as not to conflict with other
identifiers from the Programmer. The Programmer agrees to insert Dominion Sky
Angel spots, station identifications, and promotional programs in an amount and
frequency to be determined by mutual agreement of the parties, using the
Programmer's best efforts to gain wide exposure of Sky Angel in all day parts
and through all available transmission outlets.
11. Performance and Copyright Royalties. For any DBS retransmission of
an existing program, television channel or portion thereof, originated by the
Programmer, the Programmer shall be fully responsible for all statutorily
required performance royalties to be paid to any licensing agency for video and
audio performances. The parties agree and acknowledge that, to the fullest
extent allowed by law, any retransmission shall be on a non-royalty basis for
any applicable satellite carrier compulsory licensing for delivery of the
programming to the consumer. The Programmer shall comply with all statutory and
regulatory matters, such as closed captioning, etc., existing or propagated in
the future by the FCC, congress or other governmental body.
12. Interpretation According to Governing Statutes. This agreement and
all of its provisions shall be interpreted consistent with and be subject to
the Federal Communications Commission, the Internal Revenue Service and all
other applicable Federal, State and local laws, statutes, rules, regulations,
and ordinances.
13. Technical and Programming Standards. All programming shall conform
to industry standards, and all Dominion generated program criteria, for quality
of content, production, and transmission signal.
14. Representations, Warranties, and Covenants.
A. Mutual Representations, Warranties, and Covenants.
Each of the parties represents, warrants, and covenants to the
other that:
(1) it has and will continue to have the right to enter
into and fully perform this Agreement;
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(2) it has not and will no during the Term enter into an
agreement or arrangement which might tend to limit the full performance of its
obligations hereunder;
(3) it is and will remain in full compliance with all
applicable local, state and federal laws and regulations;
(4) it is under no obligation and will not become subject to
any obligation that might interfere with its performance of this Agreement;
(5) it will comply with all of its representations, warranties,
obligations, covenants, and responsibilities herein contained.
B. Programmer Warranties and Covenants.
(1) The Programmer warrants and covenants that it has the legal
right to offer the identified programming for broadcast by Dominion on the Sky
Angel Television System, that the Programming will not be defamatory nor will
it contain any material which violates any copyright, right of privacy or
literary or dramatic right of any person or entity. The Programmer warrants
that all applicable use fees, license fees, or fees for music performance
rights have been paid by the Programmer and will continue to be paid by the
Programmer to the applicable music performance societies (i.e. ASCAP, BMI,
SESAC) or other third parties during the term of this Agreement.
(2) The Programmer represents and agrees that it will not take,
authorize or permit to be taken, or fail to take, any action which would or
might in any way impair any of the rights licensed or sub-licensed to Dominion
hereunder.
(3) Nothing contained in this Agreement, nor any exercise of
the rights granted to Dominion hereunder in accordance with the terms of this
Agreement, will violate, infringe or conflict with any rights of any person or
entity, including, without limitation, any copyright, literary, musical,
artistic, trademark, contract, privacy or publicity rights, or the rights to be
free from unfair competition or defamation, or any other property or personal
rights or result in any liability, monetary or otherwise, to Dominion or
Dominion's affiliates.
15. Indemnification.
A. By the Programmer. Dominion and its affiliates, and its and
their respective officers, directors, shareholders, employees and agents, and
its and their respective successors, assigns, heirs and legal representatives
("Dominion" for purposes of this Section), shall be indemnified and saved
harmless by the Programmer from and against all loss, liability, damage and
expense, including reasonable counsel fees and disbursements, due to:
(1) the gross negligence or willful misconduct by the
Programmer, its officers, directors, shareholders, employees or agents in
connection with any provision or the intent
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of this Agreement;
(2) any willful violation by the Programmer of FCC regulations
relating to the use of the Dominion DBS Rights;
(3) the content of the programming or other material
transmitted or supplied by the Programmer pursuant to this Agreement; or
(4) any claim by any third party against Dominion arising out
of the breach of any representation, warranty, covenant or agreement made by
the Programmer to Dominion in this Agreement.
(5) any claim by any third party against Dominion resulting
from the operation by the Programmer of any backhaul facilities, equipment, or
contracts related to the backhaul and entered into by the Programmer and other
third parties.
(6) the distribution or transmission of any Programming
supplied by the Programmer which violates or requires payment for use or
performance of any copyright, right of privacy, or literary, music performance
or dramatic right.
B. By Dominion. The Programmer and its affiliates, and any and all
of its and their respective officers, directors, shareholders, employees and
agents, and any and all of its and their respective assigns, successors, heirs
and legal representatives ("Programmer" for purposes of this Section), shall be
indemnified and saved harmless by Dominion from and against all loss,
liability, damage and expense, including reasonable counsel fees and
disbursements, due to:
(1) the gross negligence or willful misconduct by Dominion or
its officers, directors, employees, agents and shareholders in connection with
any provision or intent of this Agreement;
(2) any violation by Dominion of FCC regulations relating to
the Dominion DBS Rights; or
(3) any claims by any third party against Dominion arising out
of the breach of any representation, warranty, covenant or agreement made by
Dominion to the Programmer in this Agreement.
(4) the distribution by Dominion of the Programming (except
with respect to claims relating to the content of the Programming for which the
Programmer is responsible.
C. Indemnification Procedures. The party required to provide
indemnification hereunder (the "Indemnifying Party") shall promptly defend any
claims against the party entitled to
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indemnification hereunder (the "Indemnified Party") with counsel of the
Indemnifying Party's choosing at its own cost and expense. The Indemnified Party
shall cooperate with, and assist as reasonably requested by, the Indemnifying
Party in the defense of any such claim, including the settlement thereof on a
basis stipulated by the Indemnifying Party (with the Indemnifying Party being
responsible for all costs and expenses of defending such claim or making such
settlement); provided, however, that:
(1) the Indemnifying party will not, without the Indemnified Party's
consent, settle or compromise any claim or consent to any entry of judgment
which does not include the giving by the claimant or the plaintiff to the
Indemnified Party of an unconditional release from liability with respect to
such claim;
(2) the Indemnified Party shall be entitled to participate in the
defense of any such claim and to employ counsel to assist in the handling of
such claim; and
(3) the Indemnified Party shall have the right to pay, settle or
compromise any such claim as to itself, provided that in such event the
Indemnifying Party shall be relieved of any liability or obligation which would
otherwise then or thereafter have existed or arisen under this paragraph in
respect of such claim.
D. SURVIVAL OF RIGHT TO INDEMNIFICATION. The provisions of this
Section 15 shall survive any termination of this Agreement.
E. AFFILIATES. As used herein, "affiliates" shall mean, as to any person
or entity, any other person or entity directly or indirectly controlling,
controlled by or under common control (i.e., the power to direct the affairs by
reason of ownership of voting stock, by contract, interlocking Directors, or
otherwise) with such person or entity and any member, director, officer,
employee, attorney, or agent of such person or entity.
16. TERMINATION.
A. TERMINATION FOR BREACH OR DEFAULT. Subject to "B" below and paragraph
2 herein, upon thirty (30) days prior written notice either party may, in
addition to any other rights or remedies it may have, terminate this Agreement
in the event:
(1) the other party has made any material misrepresentation;
(2) the other party has breached any of its material warranties,
covenants or material obligations; or
(3) the other party becomes insolvent or seeks relief under any
insolvency statute, is placed in receivership or liquidation, or makes any
assignment for the benefit of creditors.
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B. Opportunity to Cure. Upon receiving written notice of termination
due to breach or default as specified herein, the notified party shall use its
reasonable efforts to immediately commence to cure such breach or default;
provided however, that the notified party shall have up to a maximum of thirty
(30) days, if needed, from the receipt of such notice to cure the breach or
default or if such cure cannot be reasonably completed in such period, but the
defaulting party has commenced and is diligently pursuing such cure, then for
such longer period necessary to complete such cure, in no event to exceed
ninety (90) days in total, unless extended by the parties by written consent.
If such breach or default is timely cured, the notice of termination shall be
null and void.
17. Limitation of Liability.
A. Limitation on Type of Damages. Neither party shall be liable to
the other party, for any direct, indirect, incidental, consequential, special
or other similar damages, including, but not limited to, damages resulting from
loss of actual or anticipated revenues or profits, or loss of business,
customers, or goodwill, delay in the commencement of performance hereunder, or
failure of any of the EchoStar or DVS Satellites to perform.
18. Force Majeure Events. Dominion shall not be liable for any failure or
delay in performance or unavailability due to Force Majeure as defined in this
Article. The term "Force Majeure" as used in this Agreement shall mean events
beyond the commercially reasonable control and without the fault or negligence
of Dominion, and includes without limitation the following: acts of God; acts
of Dominion's contractors, subcontractors, suppliers or satellite lessors;
fire, flood, natural catastrophe; acts of any Government, including the FCC, in
its sovereign and regulatory capacity; national emergencies; riots; war;
strikes; labor disputes; solar disturbances; sun outages; externally caused
interference; the unavailability of service to Dominion pursuant to the FCC
Rules and Regulations published at 47 CFR 64.401 during emergency conditions
such as major natural or man-made disasters and emergencies involving United
States national defense and security; Satellite component failure including
failure or interruption of satellite propulsion, electrical or other common
systems; the unavailability to Dominion of the facilities or services used to
provide service such as may result from the repointing, removal from service or
relocation of any of the Satellites in order to meet the requirements of the
U.S. Government.
19. Nondisclosure of Confidential Information. Except as contemplated in
the promotional support by the Programmer, each of the parties to this
Agreement covenant and agree that from and after the date hereof, it will hold
as strictly confidential, and will not, without the prior written consent of
each of the other parties, disclose to any party (except directors, officers,
employees and financial, legal or other advisors who need to know such
information in connection with the actions contemplated by the Agreement):
(a) the fact that the parties have entered into this Agreement or
any information regarding the existence, terms and conditions or status of the
transactions provided for herein or any discussions or negotiations with
respect thereto; or
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(b) any proprietary information of any of the parties obtained by
the other parties in connection with this Agreement or the transactions
contemplated hereby, including without limitation, business plans, financial
information or projections, research and/or scientific information or know-how,
products, services, customers, suppliers, prices, discoveries, inventions or
trade secrets of any nature.
Any violation of this section by any party to this Agreement shall constitute a
breach of this Agreement by such party. Notwithstanding the above, any party to
this Agreement shall have the right to disclose the fact of the existence of
this Agreement, together with the minimum amount of other information deemed
necessary by securities or FCC counsel to such party, if securities or FCC
counsel in good faith determines that public disclosure of the information is
necessary under U.S. federal securities laws, or FCC laws, rules or
regulations, applicable to such party. Disclosure of such information shall be
coordinated in advance with all other parties. Further, Dominion shall be
permitted to disclose the existence of this Agreement, and the general terms
thereof, to potential strategic partners, to its investment bankers, and in
promotional efforts.
20. Miscellaneous.
A. Satellite Operations. During the Term of this Agreement, the
technical operations of the Satellites may require occasional interruption of
service in order to protect the health and performance of the Satellites, to
act in accordance with the Satellite's operational procedures, or otherwise to
comply with contractual obligations. To the extent practicable and technically
feasible, the Programmer shall be given at least forty-eight (48) hours'
written notice of such interruption. Dominion will use its reasonable efforts
to minimize the disruption of the Dominion transponders on the Satellites.
There shall be no liability to Dominion for such interruptions.
B. Satellite Transmissions. If during the term of this Agreement,
Dominion is directed by the FCC or any other governmental agency to cease or
modify its satellite transmissions, Dominion shall immediately notify the
Programmer of such order and the Programmer shall hold Dominion harmless for
compliance with such order.
C. Government Approvals. Notwithstanding any provision of this
Agreement to the contrary, the execution and delivery of this Agreement is
subject to receipt by the parties hereto of all authorizations, consents and
approvals of all federal, state and local governmental agencies and authorities
which may be required to be obtained in order to permit the consummation of the
transactions contemplated by this agreement, including without limitation
those of the FCC if so required, now or in the future.
D. Notices. All notices hereunder shall be in writing and shall be
deemed to have been duly given:
(1) on actual receipt, if personally delivered or sent by
overnight courier;
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(2) on the date received by facsimile if received by 5:30 p.m.
Eastern time on such date, or on the next day if received after 5:30 p.m.
Eastern time; or
(3) on the fourth (4th) business day following mailing by
registered or certified United States mail, postage prepaid, addressed to the
parties at the following addresses or such other addresses as shall be
specified in writing in accordance with Section of this Agreement:
If to Dominion:
Dominion Foundation
Pelle Karlsson, President
0000 Xxxxx Xxxxxxxxx Xxxxx, Xxxxx 000
Xxxxxx, Xxxxxxx 00000
(000) 000-0000
FAX (000) 000-0000
With a copy to:
Xxxxx Xxxxxxx, Esquire
0000 Xxxxx Xxxxxxxxx Xxxxx, Xxxxx 000
Xxxxxx, Xxxxxxx 00000
(000) 000-0000
FAX (000) 000-0000
If to the Programmer:
American Independent Network
Attn: Dr. Xxx Xxxxxxx, CEO
0000 Xxxxxxx Xxxxxxx, Xxxxx 000
Xxxx Xxxxx, XX 00000
(000) 000-0000
FAX (000) 000-0000
E. Governing Law. The relationship between the parties including
all disputes and claims under this Agreement shall be interpreted, enforced and
construed in accordance with the laws of the State of Florida without giving
effect to its conflicts of law provisions. Any and all disputes arising out of
or in connection with the interpretation, performance or the nonperformance of
this Agreement, and any and all disputes arising out of or in connection with
transactions in any way related to this Agreement and/or the relationship
between the parties shall be litigated solely and exclusively before the United
States District Court for the District of Florida, and if the arbitration
provisions of this Agreement are found to be applicable, such arbitration shall
be interpreted, enforced and construed in accordance with the laws of the State
of Florida. The parties agree and voluntarily consent to the exclusive personal
jurisdiction and venue
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of such Courts for such purposes, and waive, fully and completely, any right to
dismiss and/or transfer any action pursuant to 28 U.S.C. Section 1404 or 1406
(or any successor statute). The Programmer hereby waives any other jurisdiction
and venue to which it may be entitled by virtue of domicile or otherwise.
Further, should the Programmer bring a suit or action in any state other than
the State of Florida, the Programmer admits and agrees that upon application by
Dominion such suit shall be dismissed without prejudice and filed in a Court in
the State of Florida. In the event the United States District Court for the
District of Florida, does not have subject matter jurisdiction of said matter,
such matter shall be litigated solely and exclusively before the appropriate
state court of competent jurisdiction located in Xxxxxxx County, State of
Florida.
F. Arbitration. At the election of either party, any matter not
resolved amicably between the parties to the satisfaction of both parties,
shall be subject to mandatory binding arbitration of the Christian Conciliation
Service of the Christian Legal Society. If said Christian Conciliation Service
is unable or unwilling to perform the arbitration, then within ten (10) days of
receipt of notice from the electing party, each party shall select a Christian
arbitrator, and within five (5) days thereafter the two (2) selected
arbitrators shall select a third (3rd) Christian arbitrator. The parties hereby
express their desire that the arbitration be concluded on an expedited basis.
The decision of a majority of the arbitrators shall be considered the decision
of all. Such arbitration shall proceed in accordance with the Arbitration Rules
of the Christian Conciliation Service, or if they are unable to perform said
arbitration, then according to the Commercial Rules of the American Arbitration
Association then pertaining (the "Rules"), except to the degree that the
parties mutually agree otherwise or that the Christian arbitrators decide to
modify to better carry out the Christian intention of Biblical dispute
resolution, and pursuant to the following procedures:
(1) The minimum amount of discovery deemed necessary by the
arbitrators shall be allowed in arbitration.
(2) All proceedings before the arbitrators shall be held in
Naples, Florida.
(3) The costs and fees of the arbitration, including attorneys'
fees, shall be allocated by the arbitrators, as they deem reasonably
appropriate.
(4) No award or decision by the arbitrators shall extend beyond
the scope of the dispute submitted to arbitration as provided herein, or
constitute a revision of other terms of this Agreement.
(5) The award rendered by the arbitrators shall be binding on
the parties, shall be final, and judgment may be entered in accordance with
applicable law and in any court having jurisdiction thereof.
(6) The existence and resolution of the arbitration shall be
kept confidential by the parties in the same manner as confidential information
is required to be kept
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under this Agreement, and shall also be kept confidential by the arbitrators.
G. Headings. The headings of the Sections of this Agreement have
been inserted for convenience of reference only and do not constitute a part of
this Agreement. All pronouns and any variations thereof shall be deemed to
refer to the masculine, feminine, neuter, singular, or plural, as the identity
of the person may require.
H. Assignment. This Agreement is binding upon the heirs, legal
representatives, successors and permitted assigns of the Programmer and
Dominion. This Agreement shall not be assigned by either party without the
express written consent of the non-assigning party. Any other attempted
assignment shall be void.
I. Counterparts. This Agreement may be executed in two or more
counterparts by different parties hereto in separate counterparts, with the
same effect as if all parties had signed the same document. All such
counterparts shall be deemed an original, shall be construed together and shall
constitute one and the same instrument.
J. Private Parties. The parties hereto acknowledge that the terms
of this Agreement offered hereunder have been privately offered and will be
privately furnished on a non-common carrier basis. Neither the Programmer nor
Dominion regard any representations, offers or undertakings made by the other
hereunder to be in the nature of offers of common carriage. Neither the
Programmer nor Dominion shall attempt, now or in the future, to assert through
legal process, directly or indirectly, that the relationship hereunder between
themselves involves common carriage.
K. No Third Party Beneficiaries, etc. Nothing contained in this
Agreement shall be deemed or construed to create any rights, obligations, or
interests in or any benefits for third parties, or to create the relationship of
principal and agent, partnership or joint venture or of any other fiduciary
relationship or association between the parties.
L. No Implied Waiver. Neither the waiver by a party of a breach of
or a default under any of the provisions of this Agreement, nor the failure of
a party, on one or more occasions, to enforce any of the provisions of this
Agreement or to exercise any right, remedy, or privilege hereunder, shall
thereafter be construed as a waiver of any subsequent breach or default of a
similar nature, or as a waiver of any such provisions, rights, remedies, or
privileges hereunder. No failure or delay on the part of a party in exercising
any right, power, or privilege hereunder, and no course of dealing between the
parties, shall operate as a waiver thereof, nor shall any single or partial
exercise of any right, power, or privilege hereunder preclude any other or
further exercise thereof or the exercise of any other right, power, or
privilege. No change, waiver or discharge hereof shall be valid unless in
writing and signed by an authorized representative of the party against whom
such change, waiver or discharge is sought to be enforced. A waiver by any
party of any of the covenants, conditions, or contracts to be performed by the
other or any breach thereof shall not be construed to be a waiver of any
succeeding breach thereof or of any other covenant, condition, or contract
herein contained. No change, waiver, or discharge hereof shall be valid unless
in writing and signed by an
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authorized representative of the party against such change, waiver, or
discharge is sought to be enforced.
M. Entire Agreement. This Agreement contains the entire agreement among
the parties with respect to the transactions contemplated herein, and
supersedes and merges herein all prior oral or written agreements, commitments,
or understandings with respect to the matters provided for herein and therein.
Each party acknowledges that it has read, understands and agrees to the terms
and conditions of this Agreement. Each party represents that it has the full
power and authority to enter into this Agreement, and intends to be bound by
all of the terms and conditions of this Agreement. Further, each party
acknowledges that the delivery of this Agreement by that party has not been
induced by any representations, statements, warranties, or agreements other
than those expressly set forth herein.
N. Ambiguities. This Agreement and the Exhibits hereto have been drafted
jointly by the parties and in the event of any ambiguities in the language
hereof, there shall be no inference drawn in favor of either party.
O. Amendment and Modification. Except as otherwise specifically provided
in this Agreement, this Agreement may be amended or modified only by a writing
executed by the parties hereto which, by its terms, expressly modifies, alters
or amends any term or provision contained herein. The parties agree to make
best efforts to amend this Agreement as may be necessary to comply with the
rules, regulations, or policies of the FCC.
P. Further Assurances. Each of the parties hereby agrees to take or cause
to be taken such further actions, to execute, acknowledge, deliver, and file or
cause to be executed, acknowledged, delivered, and filed such further documents
and instruments, and to use best efforts to obtain such consents, as may be
necessary or as may be reasonably requested in order to fully effectuate the
purposes, terms, and conditions of this Agreement, whether before, at, or after
the occurrence of the transactions contemplated by this Agreement.
Q. Relationship of the Parties. Each of the parties to this Agreement
have borne their own expenses in the preparation and negotiation of this
Agreement, including but not limited to legal, accounting, fees and expenses
(if any), and other costs (except as provided elsewhere in the case of breach
of, or default under, this Agreement by a party). Each of the parties to this
Agreement represent and warrant that they are aware of no brokers or finders
fees which might be payable by either of them and that nothing in this
Agreement shall be deemed to create, and the parties hereto do not intend to
create, any relationship of partnership, joint venture, agency or
employer/employee, nor shall any similar relationship be deemed to exist
between them.
R. Invalidity. If any provision of this Agreement or any attachment
hereto is held by a court of competent jurisdiction to be illegal or invalid,
said provision shall be deemed to be severed and deleted; and neither such
provision, its severance, or deletion shall affect the validity of the
remaining provisions of this Agreements and attachments.
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S. Conformance to FCC Rules. To the extent that any provision of this
Agreement is in violation of any FCC rule, regulation, decree, order or
otherwise, such provision shall automatically be rewritten, to the minimum
extent necessary, consistent with the FCC Rules so that the principal benefits
of the provision continue to accrue to the benefit of the affected party.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the
date and year first above written.
Programmer
American Independent Network
Date: November 19, 1997
-----------------------------
by: [SIG]
-----------------------------
Corporate Officer CEO
Dominion Foundation, Inc.
Date: 12-1-97
-----------------------------
by: [SIG]
-----------------------------
Corporate Officer
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ATTACHMENT 1
CONDITIONS
1. The Programmer shall give evidence of a valid and enforceable contract for
transmission of their broadcast signal over Spacenet 3 Channel 2 for reception
at the designated Dominion uplink facility, for the term of this Agreement.
2. The Programmer shall execute a conformed copy of the Dominion Statement of
Faith indicating their acceptance of said statement as the one of the basis of
evaluation of all program content, in addition to the "G" rating under the
United States audio and video rating system.
3. The Programmer shall supply evidence of its legal corporate existence and
most recent SEC information filing.
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ATTACHMENT 2
STATEMENT OF FAITH
DOMINION SKY ANGEL TELEVISION SYSTEM
STATEMENT OF FAITH
DOMINION FOUNDATION, INC.
WE BELIEVE:
THE BIBLE IS THE INSPIRED AND ONLY INFALLIBLE AND AUTHORITATIVE
WRITTEN WORD OF GOD.
THERE IS ONE GOD, ETERNALLY EXISTENT IN THREE PERSONS; GOD THE FATHER, GOD
THE SON, AND GOD THE HOLY SPIRIT.
IN THE DEITY OF OUR LORD XXXXX XXXXXX, IN HIS VIRGIN BIRTH, IN HIS SINLESS
LIFE, IN HIS MIRACLES, IN HIS VICARIOUS AND ATONING DEATH, IN HIS BODILY
RESURRECTION, IN HIS ASCENSION TO THE RIGHT HAND OF THE FATHER, IN HIS
PERSONAL FUTURE RETURN TO THIS EARTH IN POWER AND GLORY.
IN THE SANCTIFYING POWER OF THE HOLY SPIRIT BY WHOSE INDWELLING THE
CHRISTIAN IS ENABLED TO LIVE A HOLY AND VICTORIOUS LIFE.
THE ONLY MEANS OF BEING CLEANSED OF SIN AND RECEIVING THE FREE GIFT OF
ETERNAL LIFE IS THROUGH REPENTANCE AND FAITH IN THE PRECIOUS SHED BLOOD OF
XXXXX XXXXXX AND ACCEPTING HIM AS PERSONAL SAVIOR AND LORD.
Date: 11/19/97 Programmer Acknowledgment: [SIG]
-------- --------------------
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ATTACHMENT 3
SPECIFIC PROMOTIONAL ACTIVITIES
(Yet to be determined, please give us a more complete list of what you are
prepared to do)
1. Airline magazines.
2. Christian periodicals.
3. Bartered radio spot time.
4. Chicago Tribune TV Guide coverage.
5. National on air 30 sec and 60 sec Sky Angel spots transmitted to 150+
stations.
6. Web page hot links.
7. Mailing list use for Sky Angel mailings.
8. Etc.?????
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