EXHIBIT 10.8a
NBC TV NETWORK
July 11, 1995
Multimedia, Inc.
and
Multimedia Entertainment, Inc.
c/o WLWT
000 Xxxx Xxxxx Xxxxxx
Xxxxxxxxxx, Xxxx 00000
RE: WLWT (Cincinnati, Ohio)
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Gentlemen:
The following shall comprise the agreement between us for the affiliation
of television broadcasting station WLWT (Multimedia Entertainment, Inc. and WLWT
collectively herein called "Station") with the NBC Television Network (herein
called "NBC") and shall supersede and replace our prior agreement dated March 1,
1990, 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 at 3:00 A.M., New York
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City time as of the 29th day of August, 1994, and, unless sooner terminated as
provided in this Agreement, it shall remain in effect for a period of six (6)
years thereafter. It shall then be renewed on the same terms and conditions for
a further period of four (4) years and for successive further periods of four
(4) years each, unless and until either party shall, at least six (6) months
prior to the expiration of the initial or 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 news and entertainment
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.-2:15 A.M.
Saturday - 11:30 P.M.-1:00 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 - 8:00-10:00 A.M. and 6:30-7:00 P.M.
Sunday - 8:00-10:00 A.M. and 6:30-7:00 P.M.
Daytime: Monday thru Friday - 1:00-3:00 P.M.
Saturday - 11:00 A.M.-12:00 Noon
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 pre-existing 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 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
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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 but not limited to 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 Paragraphs 3(b) or 3(d) below.
(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
twenty-four (24) hours in the aggregate of NBC programs during the Prime Time
Programmed Time Period, for any reason other than the live coverage of news
events (the "Prime Time Preemption Amount"); provided, however, that Station
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shall be permitted to make additional preemptions for the broadcast of
Cincinnati Reds baseball games (the "Cincinnati Reds Games"); provided, further,
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that the availability of the foregoing proviso to Station is conditioned upon
Station's compliance with the provisions of Paragraph 3(d) below. 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.
Notwithstanding the foregoing, Station agrees that in no event shall it preempt
any NBC movie scheduled by NBC for broadcast during the Prime Time Programmed
Time Period to broadcast any other movie.
(c) The Station hereby agrees to accept and clear all weekend sports
programming offered to the Station by NBC outside the Programmed Time Periods
("NBC Sports Programming"), except for (i) NBC sports programming which directly
conflicts with Station's coverage of sports events and special events or other
programs of particular local interest (collectively, such coverage of such
sports events and special events other than the Station's broadcast of
Cincinnati Reds Games are referred to below as "Special Programs") and (ii) as
provided in Paragraph 3(d) below with respect to the Cincinnati Reds Preemption
Amount. Notwithstanding the foregoing clause (i), the parties hereto
acknowledge that the definition of "Special Programs" shall be interpreted
consistent with Station's prior programming practice. Station agrees not to
broadcast more than thirty-five (35) hours of Special Programs outside the
Programmed Time Periods in the aggregate during any
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Broadcast Year during the term of this Agreement which would conflict with NBC
Sports Programming outside the Programmed Time Periods (the "Sports Preemption
Amount"); provided, however, that if NBC materially increases the aggregate
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total number of hours of NBC Sports Programming from the aggregate total number
of scheduled hours during the 1993-1994 Broadcast Year (the "1993-1994 NBC
Sports Programming Schedule"), Station shall have the right to preempt NBC
Sports Programming for the broadcast of one (1) additional hour of Special
Programs for each one (1) additional hour of NBC Sports Programming in excess of
the hours of programming included in NBC's 1993-1994 Sports Programming
Schedule.
(d) Station shall have the right to preempt NBC programming for the
broadcast of Cincinnati Reds Games; provided, however, that in each Broadcast
Year during the term of this Agreement, the number of programming hours included
for purposes of determining such preemption amount shall not exceed the
aggregate number of programming hours scheduled by Station for the broadcast of
fifty-five (55) Cincinnati Reds Games during the 1994 Major League Baseball
season (the "Cincinnati Reds Preemption Amount"); and provided, further, that in
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each Broadcast Year during the term of this Agreement, the number of hours of
programming included in such Cincinnati Reds Preemption Amount utilized in a
specific daypart shall be approximately the same as the number of hours of such
programming scheduled for broadcast by Station during the 1994 Major League
Baseball season. Station agrees to regularly discuss with NBC the coordination
of the scheduling of Cincinnati Reds Games and NBC programming in order to set
program priorities and reduce the impact of preemptions of NBC programming by
Station, and Station will advise NBC of the broadcast schedule of Cincinnati
Reds Games for each Major League Baseball Season during the term hereof promptly
after the determination of each such schedule.
(e) Upon the expiration or termination of any of Station's existing
contractual commitments (it being understood that Station's renewal of an
existing commitment shall not be deemed an expiration or termination) for non-
NBC programming broadcast by the Station during the hours of 8:00 A.M.-4:00 P.M.
("Other Programming"), the Station agrees to clear additional XXX Xxxxxxx
programming Monday through Friday in the Live Time Period for such programming
as scheduled by NBC (the "Additional Daytime Programs") until such time as
Station clears a total of four (4) hours of XXX Xxxxxxx programming Monday
through Friday, except to the extent that Station broadcasts, in the hours
formerly utilized for the broadcast of such Other Programming:
(i) programming which is distributed by a syndicator other than
Multimedia Entertainment, Inc. ("Multimedia Entertainment") and which is in
its second or subsequent year of actual distribution; or
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(ii) Multimedia Programming; As used herein, "Multimedia
Programming" shall mean programming produced syndicated or distributed by
Multimedia Entertainment; provided that Multimedia Entertainment is a
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direct or indirect subsidiary of Multimedia, Inc. ("Multimedia") and the
majority of the outstanding shares of voting stock of Multimedia is
beneficially owned, directly or indirectly by the holders of such majority
stock interest as of the date hereof ("Current Multimedia"), provided,
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however, that if Multimedia Entertainment is owned or controlled by a
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person or entity other than the Current Multimedia (a "Third Party Owner"),
"Multimedia Programming" shall mean (A) programs being produced, syndicated
or distributed by Multimedia Entertainment or (B) programs actually in
development by Multimedia Entertainment, in each case as of the date of
this Agreement.
In the event of any such additional clearance of XXX Xxxxxxx programming by
Station, the time period for such additional clearance shall then be added to
the Daytime Programmed Time Period for purposes of Paragraphs 2(b) and 3(a) of
the Agreement. Notwithstanding the foregoing, if any Additional Daytime Program
(including any replacement programming) does not achieve an X.X. Xxxxxxx Co.
rating of three (3) DMA (as defined by Xxxxxxx) Households (HH) or more by the
second ratings sweeps periods (i.e. November, February, or May ratings periods)
following such additional clearance by Station (the "Three Rating") during any
full Broadcast Year in which such program is broadcast by Station, the Station
may, no earlier than one year after Station commences its broadcast of such NBC
program, cancel its clearance of such NBC Program and enter into an agreement to
broadcast programming set forth in clauses (i) or (ii) of this Paragraph 3(c);
provided that in the event NBC replaces such NBC program, Station agrees to
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clear such replacement program in accordance with the procedure as set forth in
this Paragraph 3(e).
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 use reasonable efforts
to 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 right
of NBC under this
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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; provided,
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however, that the maximum amounts payable by Station to NBC pursuant to this
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Paragraph 4(b) shall not exceed (i) with respect to the first three hours of
preemptions of NBC programs, in the aggregate, in any Broadcast Year in excess
of the preemption amounts set forth in Paragraphs 3(b), 3(c) and 3(d) hereof
(the "Three Hour Amount"), an amount equal to the aggregate of the compensation
that would have been payable by NBC to Station pursuant to Paragraph 5 hereof
and any additional consideration payable to Multimedia pursuant to Paragraph 6
hereof, if Station had not preempted such NBC programming and (ii) with respect
to any and all preemptions in excess of the Three Hour Amount, an amount equal
to the product of (x) two (2) times (y) such amounts set forth in (i) above in
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respect of such preempted NBC programming. Notwithstanding the foregoing, NBC
shall not deduct or offset from any amounts payable to Station or Multimedia
hereunder any amounts with respect to NBC's loss in net advertising revenues due
to Station's preemption of NBC programs in connection with Station's broadcast
of Cincinnati Reds Games in compliance with Paragraphs 3(b), 3(c) or 3(d)
hereof. Station acknowledges that NBC programming previously broadcast by
Station has been generally 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.
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(c) With respect to programs offered or already contracted for
pursuant to this Agreement, nothing herein contained shall be construed to
prevent or hinder Station from: (i) rejecting or refusing any NBC program which
Station reasonably believes to be unsatisfactory or 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 as possible (including and 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 $___,880; 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
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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
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:
(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 117% 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
NNC News Channel.
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(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.
(e) The parties agree that the letter dated April 21, 1994 from NBC to
Station relating to NBC's "Affiliate Olympic Contribution Plan" shall continue
to effect with respect to Station and that the Station's contribution amount
shall remain in effect during the applicable time periods as set forth therein.
6. Additional Consideration. In consideration of Multimedia causing
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Station to enter into this Agreement and Station's performance of its
obligations under this Agreement, NBC agrees to pay to Multimedia 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
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(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 the 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 soley for NBC's economic benefits.
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 os 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.
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(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 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 following written notice to Station and an opportunity for Station to
respond, 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.
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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 therein, 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 unfavorable 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 attorney's fees) arising
out of the use by Station, in accordance with this Agreement, of any program or
other 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 affiliate 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
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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; provided, however, that NBC agrees to not unreasonably
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withhold its consent to an assignment of this Agreement by Station and;
provided, further, that NBC's consent shall not be required in the event that
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Station assigns its rights and obligations hereunder to a direct or indirect
subsidiary of Multimedia, and the majority of the outstanding shares of voting
stock of Multimedia continues to be owned and controlled by the current holders
of such majority stock interest. Without limiting the foregoing or the
provisions of Paragraph 16(b) below, the parties agree that NBC shall not have
been deemed to have unreasonably withheld its consent or unreasonably terminated
this Agreement if it withholds its consent to an assignment of this Agreement or
terminates this Agreement pursuant to Paragraph 16(b) below if the assignee or
transferee of the Station or control of the Station's license is an entity which
(i) is a Network (as defined below), (ii) is directly or indirectly controlled
by, controls or is under common control with a Network (a "Common Control
Entity"), (iii) has a significant direct or indirect beneficial ownership
interest in a Network or a Common Control Entity, or (iv) is an entity in which
a Network or a Common Control Entity has a significant direct or indirect
beneficial ownership interest. Any purported assignment by Station without such
consent shall be null and void and not enforceable against NBC. In the event of
any such permitted assignment, the assignee shall deliver to NBC an assumption
agreement in form satisfactory to NBC. As used herein, "Network" shall refer to
any of the CBS,
13
ABC, Fox, Warner or UPN broadcast television networks or any other broadcast
television "network" as defined by the FCC.
(b) 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 such assignment or
transfer; provided that NBC agrees not to unreasonably exercise such termination
--------
right. 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 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 agrees to include
as a condition of any proposed assignment, sale or transfer of Station
(including any assignment or transfer of control of Station's license) a
contractually binding provision that the assignee or transferee shall provide
the foregoing assumption agreement. 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 or Multimedia 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,
-------------------------------------
cause, or permit, without NBC's consent, any program or other material furnished
to Station hereunder to be recorded,
14
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:
(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 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.
(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.
15
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. Termination. Without limiting any other remedy which may be available
-----------
hereunder or at law, either Station or NBC may terminate this Agreement,
effective at any time by giving the other party at least thirty (30) days' prior
written notice in the event that such other party materially breaches any or its
obligations hereunder, unless such breach is cured within such thirty (30) day
period.
21. 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).
22. 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.
23. Notices. Any notices hereunder shall be in writing and shall be given
-------
by personal delivery, facsimile, 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, faxed with receipt acknowledged,
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.
24. Captions. The captions of the paragraphs in this Agreement are for
--------
convenience only and shall not in any way affect the interpretation hereof.
25. 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
16
discharged, except as specifically provided herein or by an agreement in writing
signed by the parties hereto.
26. 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.
27. 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.
17
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/
--------------------------------
AGREED:
MULTIMEDIA ENTERTAINMENT, INC.
By: s/
--------------------------
MULTIMEDIA, INC.
By: s/
---------------------------
18
EXHIBIT "A"
-----------
ECONOMIC ADJUSTMENTS
Adjustments due to an Unauthorized Preemption of an NBC program (as
utilized in Paragraph 4(b) of the Agreement) will be calculated using the
following two factors:
1. "Station's NBC delivery percentages" 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 NBC delivery percentage is multiplied by the program revenue
to yield the dollar adjustment. An example:
Station preempts "Program X"
Station's NBC Network delivery % = 2.1%
NBC'S revenue for "Program X = $900,000
$900,000 x 2.1% = $18,900 payment to NBC
19
EXHIBIT "B"
WLWT, CINCINNATI, OHIO
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 13.38%
-----------------------------------------------------------------------
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.
20
EXHIBIT "C"
-----------
WLWT NEWS PROGRAMS
Monday - Friday
----------------------------
6:00 A.M. 7:00 A.M.
12:00 Noon 12:30 P.M.
5:00 P.M. 6:30 P.M.
11:00 P.M. 11:35 P.M.
Saturday
--------
7:00 A.M. 8:00 A.M.
10:00 A.M. 11:00 A.M.
6:00 P.M. 6:30 P.M.
11:00 P.M. 11:30 P.M.
Sunday
------
7:00 A.M. 8:00 A.M.
10:00 A.M. 11:00 A.M.
6:00 P.M. 6:30 P.M.
11:00 P.M. 11:35 P.M.
Notwithstanding the foregoing, NBC agrees that Station may reduce or change
such local news program schedule so long as Station broadcasts at all times
during the term of the Agreement, local news programs of at least thirty (30)
minutes in length as a lead-in to "The Today Show" (or replacement programming),
"NBC Nightly News" (or any replacement programming) and NBC's Late Night
Programming.
21
EXHIBIT "E"
------------
ADDITIONAL PAYMENTS
-------------------
In consideration of Multimedia, Inc. ("Multimedia") causing Station to
enter into this Agreement and the Station's performance of its obligations
hereunder, and subject to the Station's compliance with each of its commitments
regarding clearance and preemption of NBC programming as set forth in this
Agreement (which the parties expressly agree and acknowledge are the essence of
this Agreement), NBC agrees to pay Multimedia, for each quarter during the term
of this Agreement, (i) an Additional Payment Amount as calculated herein and
(ii) if applicable, certain amounts pursuant to Paragraph 5 of this Exhibit E:
1. The "Additional Payment Amount" for each quarter shall equal the
product of (a) the total during such quarter of the hours broadcast live by the
Station of NBC Prime Time programming for which compensation is payable,
multiplied by (b) the Station's Additional Payment Rate (as defined below).
2. The Station's "Additional Payment Rate" shall be calculated by
dividing (a) the Gross Additional Consideration for the Station as set forth
below by (b) the difference of 1100 Prime Time Hours (i.e. assumed number of
compensable hours of NBC programming in a Broadcast Year) minus all Prime Time
preemptions permitted under Paragraphs 3(b) and 3(d) of the Agreement for such
year.
3. With respect to each Broadcast Year during the initial term of this
Agreement, the Gross Additional Consideration for the Station in any Broadcast
Year during the initial term of this Agreement shall be the difference between
(a) the "Total Amount" (as defined below) for such Broadcast Year and (b) the
amount of compensation payable for such Broadcast Year calculated on the basis
of Station's Network Station Rate as of the date hereof, the Compensation Table
set forth as Exhibit B to this Agreement and Station's agreed clearance levels
for NBC programming for such year (giving effect to all preemptions permitted
under Paragraphs 3(b), 3(c) and 3(d) of this Agreement) for such Broadcast Year.
For 1996 and other years in which there are Olympic or other special event
programs for which compensation is not payable, such programs will be treated as
if they are compensable for purposes of calculating the amount of Station's
compensation pursuant to the foregoing clause (b) of this Paragraph 3. The
"Total Amount" shall be as set forth for each Broadcast Year during the initial
term of this Agreement:
22
Broadcast Year Total Amount
-------------- ------------
1994-1995 $1,500,000
1995-1996 $1,900,000
1996-1997 $1,900,000
1997-1998 $1,900,000
1998-1999 $1,900,000
1999-2000 $2,100,000
provided, that if Station enters into, renews or is bound by any agreement,
commitment or understanding to broadcast Cincinnati Reds Games for any portion
of the 1996 Major League Baseball season or any season thereafter, the Total
Amount shall be reduced by $1,000,000 for each such Broadcast Year. If, after
such reduction, Station's compensation payable pursuant to Paragraph 5 of the
Agreement exceeds the Total Amount, NBC shall not be obligated to pay any
"Additional Payment Amount" to Multimedia.
4. The Additional Payment Amount for the Station shall be paid to
Multimedia on a quarterly basis at the time compensation is payable to the
Station. In calculating the Additional Payment Amount for a quarter during a
particular Broadcast Year, NBC shall estimate the amount of compensation
referred to in Paragraph 3(b) of this Exhibit E. In the event that such
estimated amount differs from the actual amount referred to in such Paragraph
3(b), NBC shall make an appropriate or decrease to the Additional Payment Amount
sayable in respect of the final quarter during a year to give effect to such
difference between such estimated and actual amounts.
5. In the event that Station accepts and clears NBC Programming outside
the Programmed Time Periods in effect as of the date hereof" for which
compensation is payable pursuant to Paragraph 5 (a)(i) of this Agreement
("Additional Clearances"), NBC agrees to pay Station in respect of such
Additional Clearances an amount equal to (a) the product of (i) the Imputed Rate
times (ii) the number of hours of such Additional Clearances of NBC Programming
minus (b) the compensation otherwise payable to Station pursuant to Paragraph
5(a)(i) of this Agreement in respect of such Additional Clearances utilizing
Station's actual Network Station Rate. The "Imputed Rate" shall mean the
Network Station Rate that would yield total compensation (without giving effect
to any Additional Payments) equal to the Total Amount based on Station's 1994
clearances and Station's Compensation Table in effect as of the date hereof.
23
EXHIBIT "F"
LOCAL INVENTORY
REGULAR SCHEDULED PROGRAMS
Weekly Weekly
Units Minutes
------ --------
Primetime 106 53'
Late Night 215 107' 30"
Daytime 115 57' 30"
News 219 109' 30"
24
July 11, 1995
Multimedia, Inc.
and
Multimedia Entertainment, Inc.
c/o WLWT
000 Xxxx Xxxxx Xxxxxx
Xxxxxxxxxx, Xxxx 00000
Gentlemen:
In connection with that certain Affiliation Agreement (the "Agreement")
dated July 11, 1995 between NBC Television Network ("NBC"), Multimedia, Inc. and
Multimedia Entertainment, Inc., licensee of television broadcast station WLWT,
Cincinnati Ohio (collectively, the "Station"), the Station and NBC hereby agree
as follows:
1. NBC hereby confirms that Paragraphs 2 and 3 of the Agreement
notwithstanding, the Station shall be Permitted to:
(a) broadcast "Late Night with Xxxxx X'Xxxxx" (or any replacement
programming) up to one hour later than its scheduled Live Time Period; provided,
--------
however, that the Station broadcasts programming produced, syndicated or
-------
distributed by Multimedia during the scheduled Live Time Period for such NBC
programming;
(b) broadcast "Later with Xxxx Xxxxxxx" (or any replacement programming)
and "Friday Night" (or any replacement programming) after the Station's
broadcast of "Late Night with Xxxxx X'Xxxxx" (or any replacement programming)
(i.e. the Station shall be permitted to broadcast such programs up to one hour
later than their respective scheduled Live Time Periods in the event that
Station delays the broadcast of "Late Night with Xxxxx X'Xxxxx" (or any
replacements programming) pursuant to clause (a) above);
(c) not broadcast "The Other Side" or "Leeza" (or any respective
replacement programming) in the daytime (9:00 a.m. to 4:00 p.m. local time)
Monday through Friday time period; provided, the provisions of Paragraph 3(e) of
--------
the Agreement shall apply to the foregoing programming; and
(d) not broadcast "Saved By The Xxxx-B (second half hour)," "California
Dreams," or "Inside Stuff" (or any respective replacement programming) on
Saturdays.
25
2. Each defined term used herein without definition shall have the meaning
assigned to such term in the Agreement.
Please indicate your acceptance of the foregoing by signing in the space
indicated below.
Very truly yours,
NBC TELEVISION NETWORK
By: s/
----------------------------------
Name:
Title:
The foregoing has been reviewed by, and is acceptable to:
MULTIMEDIA ENTERTAINMENT, INC.
By: s/ Xxxxxx X. Xxxxx, Xx.
-----------------------
Name: Xxxxxx X. Xxxxx, Xx.
Title: Vice President
MULTIMEDIA, INC.
By: s/ Xxxxxx X. Xxxxx, Xx.
-----------------------
Name: Xxxxxx X. Xxxxx, Xx.
Title: Vice President
26
