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Exhibit 10.70
[CNN LOGO AND LETTERHEAD]
AGREEMENT
This agreement when fully executed, shall constitute the understanding and
agreement between Cable News Network, Inc. ("CNN") and Diversity Entertainment
Television/Atlanta L.L.C. ("DETV/ATL") concerning the broadcast of CNN
programming on DETV/ATL's large screen video display located at Underground
Atlanta in Atlanta, Georgia (the "Display"). In exchange for good and valuable
consideration, the sufficiency and receipt of which are hereby acknowledged CNN
and DETV/ATL agree as follows:
1. THE PROGRAMMING. CNN will permit DETV/ATL to broadcast CNN Headline News news
segments (the "Programming") on the Display in accordance with the Headline News
Programming Schedule, attached hereto as Exhibit "A". Nothing in this Agreement
shall require CNN to produce programming specifically for DETV/ATL to fulfill
its obligations to provide the Programming hereunder.
2. DETERMINATION OF PROGRAMMING CONTENT: COPYRIGHT. CNN shall have absolute and
complete discretion, editorial and otherwise, with respect to the content and
production of the Programming, all segments included therein and the arrangement
of the segments. CNN shall have absolute discretion to determine the frequency
with which the Programming shall be updated or otherwise revised, consistent
with the parties' mutual objective for the Programming to remain generally
current. DETV/ATL agrees and acknowledges that the sole right of copyright in,
and all rights of copyright with respect to the Programming shall belong to CNN
and DETV/ATL shall not acquire or obtain any copyright or other proprietary or
ownership interests therein or thereto by virtue of the exercise by DETV/ATL of
the rights granted to it in this Agreement.
3. RESERVATION OF RIGHTS. DETV/ATL acknowledges that no rights are granted to
DETV/ATL with respect to the Programming except those rights expressly granted
in this Agreement All rights, licenses and interests in, to and with respect to
the Programming, the elements and parts thereof and the media of exhibition not
specifically granted to DETV/ATL are hereby reserved to CNN. DETV/ATL shall not
edit the Programming, remove any portions, or insert any materials in, the
Programming whatsoever.
4. FORCE MAJEURE. The transmission of the Programming is also subject to events
of force majeure (including, without limitation, fire flood, casualty, lockout,
strike, labor condition, unavoidable accident, national calamity, mechanical or
other breakdown of electrical or sound equipment, failure or delay on the part
of supplier, delay in or lack of transportation, export embargo, riot war, civil
commotion, act of God, the act of any legally constituted authority) or any
other interruption beyond CNN's reasonable control. In the event that any of the
Programming transmission is delayed as a result of the foregoing, CNN shall use
commercially reasonable efforts to transmit the Programming as soon as
practicable, but shall not be held liable to DETV/ATL for any failure to so
transmit the Programming, if CNN has made said commercially reasonable efforts.
5. THE DISPLAY. DETV/ATL shall, at its own cost and expense, pick-up the
satellite feed and cause to be broadcast on the Display the Programming and any
such "special reports" Programming created by CNN to which the parties may, from
time to time, agree. The Programming shall be broadcast on the Display
throughout each day along with the Promo Time (see below) and DETV/ATL shall
update the Programming each day in accordance with the Headline News Programming
Schedule provided in Exhibit "A". CNN shall have the right to prior approval of
all Display advertisers which advertise immediately before, during or
immediately following the Programming, such approval not to be unreasonably
withheld or delayed and to be given or denied
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within 24 business hours (business hours running 8:30am to 5:30pm ET Monday to
Friday, excluding statutory holidays) of receipt by CNN of a request for
approval from DETV/ATL. CNN shall approve all graphics, print and other
advertisements which may be used by DETV/ATL to advertise the broadcast of CNN
Programming on the Display. DETV/ATL warrants that all such programming shall be
consistent with DETV/ATL's then current standards and practices and shall not be
obscene, or defamatory, or derogatory to or critical of CNN or any officer,
director, agent, employee, affiliate, parent or subsidiary of CNN or of any
program or publication produced or distributed by CNN or any of the foregoing
entities. DETV/ATL shall direct all requests for approval under this Paragraph 5
to the attention of Xxxxxxx Xxxxxxxx or Xxxxx Xxxxxxxx at CNN. A breach by
DETV/ATL of this paragraph 5 is a material breach of the contract.
6. CNN ADVERTISING. In exchange for the Programming, DETV/ATL shall broadcast on
the Display fifteen and/or thirty second (:15, :30) commercial or identification
segments for CNN, produced and supplied by CNN, so that a total of sixty seconds
of CNN commercials or identification segments are broadcast on the Display each
hour of its operation ("Promo Time"). Without limiting the foregoing, CNN may
also display the CNN logo and program identification throughout each segment of
CNN Programming. The Promo Time may be used by CNN, its parent, subsidiaries and
companies wholly owned by its parent or any division thereof. CNN may not resell
or assign the Promo Time to any other third party, however it may utilize the
Promo Time where spots involve a third party and include CNN, its parent,
subsidiary or any company wholly owned by its parent or any division thereof.
Where a spot involves a third party as above contemplated, DETV/ATL shall have
the right to approve that promotional spot prior to its broadcast on the
Display, such approval not to be unreasonably withheld or delayed and to be
given or denied within 24 business hours (business hours running 8:30am to
5:30pm ET Monday to Friday, excluding statutory holidays) of receipt of a
request for approval from CNN. CNN shall direct all requests for approval under
this Paragraph 6 to the attention of Xxxxxx Xxxxxxx at DEWY/ATL.
7. EXCLUSIVITY. DETV/ATL hereby grants to CNN the exclusive right to provide
national and international news programming for broadcast on the Display during
the term of this Agreement.
8. PRE-EMPTION. DETV/ATL may pre-empt the broadcast of Programming and Promo
Time on the Display, upon the occurrence of any force majeure, as previously
defined, or for scheduled maintenance of the Display, or where prior written
permission is obtained from CNN.
9. RIGHT OF FIRST REFUSAL. DETV/ATL hereby grants CNN a right of first refusal
with respect to the opportunity to provide Programming if DETV/ATL or one of its
affiliate or subsidiary companies establishes video displays in locations other
than that of Underground Atlanta. DETV/ATL shall give CNN written notice of its
intent to operate any such additional display, shall extend to CNN terms and
conditions similar to those set forth in this Agreement and CNN shall have sixty
(60) days from the date of receipt of such notice from DETV/ATL to accept such
opportunity in writing.
10. TERM. This Agreement shall commence on February 9, 1998 and run through and
including February 8, 1999 (the "Term"). Notwithstanding the foregoing, either
party may terminate this Agreement for any reason by giving ninety days prior
written notice thereof to the other, or immediately upon written notice to the
other party in the event the other materially breaches its obligations hereunder
and such breach is not cured within ten business days to the reasonable
satisfaction of the party giving notice.
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11. INDEMNITY. DETV/ATL shall indemnify, defend and hold CNN and its affiliates,
subsidiaries and parent, and their respective officers, directors, agents and
employees, harmless from and against any and all loss, cost, claims, damages,
liabilities, demands or expenses arising from or incident to DETV/ATL's
operation of the Display, except for any claim by a third party relating to the
content of the Programming. CNN shall indemnify, defend and hold harmless
DETV/ATL and its affiliates, subsidiaries and its parents and their respective
officers, directors, agents and employees, harmless from and against any and all
loss, cost, claims, damages, liabilities, demands or expenses arising from or
incident to the content and production of the Programming except for claims
arising as a result of any editing, modification or other unauthorized use of
the Programming by any of such indemnities, or the use of the Programming by any
of such indemnities other than in accordance with the rights expressly granted
to DETV/ATL in this Agreement. Each party may enter into subcontract
arrangements to perform their respective duties hereunder; provided, however,
that the subcontracting party shall remain responsible for its performance
herein and any such subcontract arrangement shall not relieve the subcontracting
party of any of its duties or obligations under this Agreement
12. NOTICES. Notices to DETV/ATL shall be made via first class mail, hand
delivery, express mail or facsimile to the address shown above. Notices to CNN
shall be made via first class mail, hand delivery, express mail or facsimile to
the Attention of Xxxxxxx Xxxxxxxx, Cable News Network, Inc., Xxx XXX Xxxxxx, Xxx
000000, Xxxxxxx, XX 00000, with copies of all notices to Xxxxxx Broadcasting
System, Inc., Attention: Legal Department/CNN Advertising at the foregoing CNN
address.
13. HEADINGS. The headings contained in this Agreement are inserted solely for
convenience purposes and shall not affect the meaning or construction of this
Agreement.
14. MISCELLANEOUS. The terms and conditions of this Agreement constitute the
entire agreement between the parties with respect to the subject matter hereof
and supersede all prior agreements or understandings, whether written or oral,
between them concerning same.
A waiver of any breach of this Agreement or of any of the terms or conditions by
either party hereto shall not be deemed a waiver of rights of said party to
demand strict compliance with the terms hereof. No waiver by a party of any of
the terms or conditions of this Agreement in any instance shall be deemed or
construed to be a waiver of such term or condition in the future, or of any
subsequent breach of said provision or of any other provision in this Agreement.
All rights and remedies contained in this Agreement shall be cumulative and
shall not limit any other right or remedy to which a party may be entitled.
These terms and conditions will enure to the benefit of, and be binding upon,
the parties and their respective successors. Nothing contained herein shall
create any association, partnership, or agency or joint venture between the
parties. Neither party hereto shall represent itself as the associate, partner,
agent or joint venturer of the other in any way whatsoever. This Agreement may
not be assigned by DETV/ATL without the prior written consent of CNN.
This Agreement shall be interpreted according to the laws and decisions of the
State of Georgia, applicable to agreements made and to be performed therein. The
parties agree that the federal courts in the State of Georgia shall have
personal jurisdiction over the parties with respect to, and that venue shall be
proper in such courts with respect to, and that such courts shall be the
exclusive forum for the resolution of any matter or controversy arising from or
with respect to this Agreement.
Any of these terms and conditions which are prohibited or unenforceable in any
jurisdiction will, as to that jurisdiction, be limited in effect to the extent
of such prohibition or unenforceability without invalidating the remaining terms
and conditions or affecting their validity or enforceability in any other
jurisdiction.
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RECOMMENDATION FOR HEADLINE NEWS PROGRAMMING SCHEDULE
Headline News Total
Programming Minutes Minutes Minutes
Time Minutes/Hour Mon - Fri Saturday Sunday
7am -- --
7:30am 15 75
8am -- --
8:30am 15 75
9am -- --
9:30am -- --
10am 30 150
10:30am -- --
11am -- --
11:30am -- --
12noon -- -- --
12:30pm 15 75 15 15
1pm -- -- --
1:30pm -- -- --
2pm 30 150 30 30
2:30pm -- -- --
3pm -- -- --
3:30pm -- -- --
4pm 30 150 30 30
4:30pm -- -- --
5pm -- -- --
5:30pm 15 75 15 15
6pm -- -- --
6:30pm 15 75 15 15
7pm -- -- --
7:30pm -- -- --
8pm 30 150 30 30
8:30pm -- -- --
9pm -- -- --
9:30pm -- -- --
10pm 30 150 30 30
10:30pm -- -- --
11pm -- -- --
11:30pm -- -- --
225 1,125 165 165
WEEKLY PROGRAMMING MINUTES = 1,680
WEEKLY PROMOTIONAL ADVERTISING MINUTES = *109
*Not represented in above chart.
Equals one 60 second unit per hour per day.
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If this letter confirms your understanding of the agreement between us, please
indicate this by signing where indicated.
Sincerely,
CABLE NEWS NETWORK, INC.
By: /s/ Xxxxxxxxxx Xxxxxxxx
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Its: Director, Domestic Marketing
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Date:02-09-98
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CONFIRMED AND AGREED TO:
DIVERSITY ENTERTAINMENT TELEVISION/ATLANTA L.L.C.
By: Xxxxxx X. Xxxxxxx
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Its: President & General Manager
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Date: 02/12/98
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