STATION AFFILIATION AGREEMENT
Dated as of September 24, 1997
ACME Holdings of St. Louis, LLC
0000 Xxxxxxx Xxxx.
Xx. Xxxxx, Xxxxxxxx 00000
Attention: Xxxx Xxxxx
The following shall comprise the agreement between The WB Television Network
Partners, L.P. dba The WB Television Network ("WB," "we," or "us"), and ACME
Holdings of St. Louis, LLC ("Affiliate", "ACME" or "you") for the affiliation of
television station KPLR ("Station") with WB for carriage of WB programming. The
Federal Communications Commission ("FCC") has issued a broadcast license
("License") to Koplar Communications, Inc. ("KCI") to operate Station in St.
Louis, the community in which Station is licensed by the FCC ("Community of
License"). All references in this Agreement to "WB program(s)" and "WB
programming" and any variations thereof shall mean the programming made
available by WB under this Agreement. ACME programs Station KPLR pursuant to a
Local Marketing Agreement with Koplar Communications, Inc. ACME represents and
warrants that it has the right to enter into this Station Affiliation Agreement
and to perform each and every of the terms and conditions set forth herein in
its capacity as the holder of the Local Marketing Agreement.
1. WB Programming: WB will make available to Affiliate WB programs for
free over-the-air broadcast and broadcast by any other means by
Station in the Community of License during the term of this Agreement.
During such term, except as otherwise provided herein, WB grants
Affiliate the exclusive right to have Station broadcast the WB
programming in the Community of License only as scheduled by WB over
free over-the-air television and by such other technological means as
are available to Affiliate for broadcast in the Community of License
so long as Station broadcasts the WB programming for over-the-air
television. Notwithstanding the foregoing, for an initial period,
until such time that WB offers exclusivity against the signal of WGN
to its affiliates, WB may allow the signal of WGN to be imported into
the Community of License. WB shall have the sole discretion to select,
schedule, substitute and/or withdraw WB programming or any portion(s)
thereof. WB shall also have the right to authorize any television
broadcasting station, regardless of the community in which it is
licensed by the FCC, to broadcast any presentation of a subject we
deem to be of immediate national significance including, but not
limited to, a Presidential
address. Except as provided herein, during the term of this Agreement Affiliate
shall be the sole affiliate of WB for transmission for exhibition on television
of WB programming in the Community of License.
2. Program Carriage:
(a) We agree to make available for broadcast by Station WB
programming for the hours programmed by WB at the times and dates
scheduled by WB throughout the term of this Agreement. You
acknowledge that the times and roll-out dates set forth in this
Agreement are approximate only and you agree to have Station
broadcast WB programs irrespective of whether WB meets, fails to
meet or otherwise varies from the anticipated program schedule
set forth herein; provided, however, that WB hereby agrees not to
accelerate such anticipated program schedule. To the extent WB
makes available such WB programming for broadcast, this Agreement
both obligates us to make available such WB programs to Station
and obligates Station to broadcast such WB programs over-the-air
pursuant to the terms of this Agreement.
(b) Subject to the exceptions set forth in subparagraph 2(e) and the
right of preemption set forth in subparagraph 2(f), Station shall
broadcast WB programs on the dates and at the times scheduled by
WB. Station shall broadcast WB programs in their entirety,
including but not limited to WB commercial announcements, WB
identifications, program promotional material, and credit
announcements contained in such programs, without interruption or
deletion or addition of any kind, except for the commercial
announcements that Station is allowed to add pursuant to
Paragraph 5. Notwithstanding the foregoing, you may substitute
other WB promotional announcements in lieu of program promotional
material that is inaccurate as it pertains to Station's schedule.
No commercial announcement, promotional announcement or public
service announcement will be broadcast by Station during any
interval within a WB program, which interval is designated by WB
as being for the sole purpose of making a station identification
announcement.
(c) The initial Scheduled Program Times of WB programming and the
anticipated roll-out dates of that programming are set forth as
follows (the specified times apply for the Eastern and Pacific Time
Zones; the Mountain and Central Time Zones are one hour earlier for
Prime Time and Latenight programming only, except as otherwise
agreed by us):
Prime Time: 7:00 p.m. - 10:00 p.m. Sunday;
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8:00 p.m. - 10:00 p.m. Monday through Saturday.
Two nights, to be designated by us, during the
1994/1995 broadcast year (one night in January
1995 with the second night commencing during the
third quarter of 1995); one additional night
commencing during the 1995/1996 broadcast year;
and one additional night during each broadcast
year thereafter until seven nights of programming
are made available.
Children's: 7:00 a.m. - 8:00 a.m.; 7:30 a.m. - 8:30 a.m.; or 8:00
a.m. - 9:00 a.m. (at WB's election) Monday
through Friday;
3:00 p.m. - 5:00 p.m. Monday through Friday;
8:00 a.m. - 12:00 noon Saturday;
Weekday mornings (one hour) and Saturday
mornings (three hours) commencing September
1995; One additional Saturday hour commencing
September 1996; Monday through Friday
afternoons (two hours) commencing September
1997. It is anticipated that the additional
Children's programming will commence in
approximately the second week of September.
Latenight: 11:00 p.m. - 12:00 midnight Monday through Friday,
commencing not earlier than 1997 and subject to
the approval of the WB Affiliate's Council (as
defined in Paragraph 13 below).
(d) Notwithstanding the roll-out schedule for Children's afternoon
programming in subparagraph (c) above, WB's supply of Children's
afternoon programming shall be subject to the expiration of the
current agreements between WB affiliates and suppliers of Children's
afternoon programming. Station agrees not to extend or renew any
agreement it may have with such suppliers for such programming
during the term of this Agreement if such renewal or extension would
interfere with the broadcast of the WB Children's afternoon
programming.
(e) You confirm that as of the date of this Agreement you have no
commitments, except those listed in Schedule 1 hereto, which
would impede Station's broadcasting all WB programming made
available during the term of this Agreement. If any WB
programming is not broadcast by you because of any such
commitment expressly described in Schedule 1 (but excluding
extensions by exercise of
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options by Affiliate [but not by the programming licensor] or
otherwise), then such programming shall be broadcast in a time
period upon which you and we shall mutually agree and which
shall be of quality and rating value comparable to that of the
Scheduled Program Times. These programs will not be considered
preempted for purposes of subparagraph 2(f).
(f) Notwithstanding anything in this Agreement to the contrary,
nothing in this Agreement shall be construed to prevent or hinder
Affiliate from (i) rejecting or refusing any WB program which
Affiliate reasonably believes to be unsatisfactory or unsuitable
or contrary to the public interest or (ii) substituting a program
which, in Affiliate's opinion, is of greater local or national
importance. In such an event, you shall provide us with advance
written notice of any such rejection, refusal or substitution, no
later than 14 days prior to the air date of such programming,
except where the nature of the substitute program makes such
notice impracticable (e.g., coverage of breaking news or other
unscheduled events) or the programming has not been made
available to you by such date, in which cases you agree to give
us as much advance notice as the circumstances permit. Such
notice shall include a statement of the reasons you believe that
the rejected WB programming is unsatisfactory or unsuitable or
contrary to the public interest, and/or that a substituted
program is of greater local or national importance. In view of
the limited amount of WB programming to be supplied pursuant to
this Agreement (at least until such time as the full WB
programming schedule has been rolled out) you acknowledge that
you do not foresee any need to substitute programming of greater
local or national importance for WB programming, except in those
circumstances requiring live coverage of fast-breaking news
events or very infrequent special events. To the extent you
substitute another program for a WB program as permitted under
subparagraph 2(f)(ii), then you will broadcast such omitted
program and the commercial announcements contained therein (or any
replacement programming provided by WB and the commercial
announcements contained therein) during a time period upon which
you and we shall promptly and mutually agree and which shall be
of quality and rating value comparable to that of the preempted
program's Scheduled Program Time. In the event that the parties do
not promptly agree upon such a time period after reasonable
consultation in good faith and after taking into account the
practical alternatives under the
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circumstances, then, without limiting any other rights of WB under
this Agreement or otherwise, we shall have the right to license
the broadcast rights to the applicable omitted programming (or
replacement programming) to another television station located in
the Community of License.
In addition, if three or more episodes of a program series are
preempted by you as permitted hereunder in any thirteen-week period,
for any reasons other than force majeure as provided in Paragraph 6,
we shall have the right, upon 60 days prior written notice, to
terminate your right to broadcast that program series and to
withdraw all future episodes of that series. Such thirteen-week
periods shall be measured consecutively from the first broadcast
date of the program series in question. If we subsequently place
such a series on another station in the Community of License, we
reserve the right not to offer you the broadcast rights to that
series for subsequent broadcast seasons.
In addition to all other remedies, to the extent one or more
episodes of a program series is preempted by you in violation of
(i.e., other than as permitted under) this Paragraph 2, we shall
have the right, upon 30 days prior written notice, to terminate your
right to broadcast the remainder of the program series and withdraw
all future episodes of that series from you.
(g) Nothing in this Agreement shall be construed to prevent or hinder WB
from (i) substituting one or more WB programs for previously
scheduled WB programs, in which event WB will make the substituted
programs available to Station pursuant to the provisions of
Paragraph 1 and Paragraph 3; (ii) cancelling one or more WB
programs; or (iii) postponing any scheduled roll-out dates of WB
programming. Further, nothing in this Agreement shall be construed
to obligate WB (x) to provide a minimum or specific number of WB
programs; (y) to commence providing WB programming on any particular
date; or (z) to expand the amount of WB programming pursuant to a
specified timetable.
3. Delivery: WB agrees to make available the WB programming for satellite
transmission. WB shall incur no costs regarding the satellite downlink
and broadcast by Station; Station shall incur no up-link costs with
regard to the delivery of the WB programming.
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4. Promotion:
(a) We will provide you with on-air promotional announcements ("WB
Promos") for WB programming, which WB Promos are intended for
broadcast during Station's broadcast of non-WB programming. You
agree to provide an on-air promotional schedule consistent with
our recommendations. You shall maintain complete and accurate
records of all WB Promos that are broadcast. Upon request by WB
for those records, you shall provide copies of all such records
to WB within two weeks of such request.
(b) You shall budget Station's advertising availabilities in such a
manner as to enable Station to broadcast additional WB Promos
during periods in which Station is deemed a "Subperformer."
Station shall be deemed to be a "Subperformer" from the time its
"sweeps rating" is below the average prime time rating for all WB
affiliated broadcast stations until such time as Station's sweeps
rating is no longer below the average prime time rating for all
WB affiliated broadcast stations. The Station's sweeps rating
means the Station's average X.X. Xxxxxxx rating for the most
recently completed sweeps period for adults 18-49 for all prime
time hours programmed by WB. For such time as Station remains a
Subperformer, Station shall: (i) broadcast, during each one-half
hour of all periods of each day that Station is broadcasting
non-WB programming, at least one (1) 30-second Promo (or Promos
aggregating 30 seconds, to the extent we so elect) for Station's
local, syndicated or WB programming; and (ii) broadcast during
all periods when Station is broadcasting non-WB programming WB
Promos for not less than:
Prime Time Hours Programmed by WB
2 hours - 20% of 100% 4 hours - 25% " 6 hours - 30% " 8 hours
- 35% " 10 hours - 40% " 12 hours* - 45% "
(* 12 or more hours)
(the "Applicable Percentage") of the total, aggregate gross ratings
points ("GRPs") for all the promotional announcements broadcast by
Station ("Aggregate Promotional GRPs") within the periods in which
non-WB
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programming is being broadcast. The specific WB Promos broadcast by
Station and the number of broadcasts of each WB Promo may be
specified by WB and the broadcast of the WB Promos shall be made so
that the Aggregate Promotional GRPs allocated to WB Promos are
distributed fairly and reasonably across the periods when non-WB
programming is being broadcast. For such time as Station's sweeps
rating ranks Station within the bottom 50% (ranked highest to
lowest) of those WB affiliated broadcast stations that are
Subperformers, then the Applicable Percentage for Station shall be
not less than 55% of 100% of the Aggregate Promotional GRPs. The WB
Promos broadcast during each half-hour of non-WB programming, as
required by this subparagraph 4(b), may be counted toward Station's
Applicable Percentage. Station shall continue to air WB Promos under
this schedule until Station is no longer a Subperformer, as defined
above.
(c) In addition to providing WB Promos, we shall make available for
your use, at reasonable cost, such other promotional and sales
materials as we and you may mutually consider appropriate. You
shall not delete any copyright, trademark, logo or other notice,
or any credit included in any such materials relating to WB, and
you shall not exhibit, display, distribute or otherwise use any
trademark, logo or other material or item delivered pursuant to
this Paragraph 4 or otherwise, except as instructed by us at the
time.
(d) Commencing on the first date that WB programming is aired by Station
and for the remaining term of this Agreement, Station shall identify
itself as a WB affiliate, both on and off-the-air. Prior to the
"Launch Date" (as defined in subparagraph 9(b)), Station shall
identify itself as a WB affiliate only after WB gives Affiliate
permission to do so and only in a manner reasonably directed by WB.
Prior to the Launch Date, Affiliate shall not, without the express
written permission of WB, make any disclosures to the press or
business community or issue any press announcements about Station's
affiliation with WB.
5. Commercial Announcements:
(a) With respect to WB programming, the parties to this Agreement shall
be entitled to insert the following number of commercial
announcements (Station's allotment includes station breaks but
excludes 5-second prime time station identification breaks at the
beginning of each hour):
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(1) Prime Time (as defined in subparagraph 2(c)) hour (pro-rated
for half-hour programs):
You shall have the right to insert six 30-second
commercial announcements. WB shall have the right to
insert eighteen 30-second commercial announcements.
(2) Children's:
Weekday half-hour:
You shall have the right to insert six 30-second
commercial announcements (or other material constituting
"commercial matter" under the FCC's regulations). WB
shall have the right to insert six 30-second commercial
announcements.
Weekend half-hour:
You shall have the right to insert five 30-second
commercial announcements (or other material constituting
"commercial matter" under the FCC's regulations). WB
shall have the right to insert five 30-second commercial
announcements and one 15-second commercial.
(3) Latenight (as defined in subparagraph 2(c)):
You will receive half the total number of commercial
announcements as specified by WB or less as mutually
agreed to.
(b) If the amount of commercial advertising, commercial matter or
other non-program time included in WB programming is reduced for
any reason (including but not limited to the adoption or
modification of statutes or regulations or any other governmental
action), then we shall be entitled to reduce the number of
commercial announcements available to you to the extent necessary
to provide WB and Affiliate with the same proportionate amount of
commercial time (inclusive of station breaks with respect to
Affiliate) that each party is entitled to under this Agreement.
(c) Your broadcast over Station of the commercial announcements
included by us in WB programming is of the essence to this
Agreement, and nothing contained in this Agreement (other than in
subparagraph 2(f)) shall limit our rights or remedies relating to
your failure to so broadcast said commercial announcements. You
shall
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maintain complete and accurate records of all commercial
announcements broadcast as provided herein. Within two weeks
following each request by us therefor, you will submit copies of
all such records to WB.
6. Force Majeure: WB shall not be liable for failure to make available
any programming or any portion(s) thereof, and Station shall not be
liable for failure to broadcast any such programming or any portion(s)
thereof, by reason of any act of God, equipment failure, action or
claims by any third person, labor dispute, law, governmental regulation
or order, or other cause beyond either party's reasonable control
("force majeure event"). If due to any force majeure event, we
substantially fail to make available all of the programming to be
delivered to Affiliate under the terms of this Agreement, or you
substantially fail to broadcast such programming as scheduled by WB for
four consecutive weeks, or for six weeks in the aggregate during any
12-month period, then the "non-failing" party may terminate this
Agreement upon thirty 30 days prior written notice to the "failing"
party so long as such notice is given at any time prior to the
"non-failing" party's receipt of actual notice that the force majeure
event(s) has ended; provided further, however, that notwithstanding the
above provisions, you shall not have any right to so terminate this
Agreement, upon a force majeure event or otherwise, if we: (i) fail to
make available a minimum or specific number of WB programs; (ii) fail
to commence making available WB programming on any particular date;
(iii) fail to expand the amount of WB programming pursuant to a
specified timetable; (iv) substitute one or more WB programs for
previously scheduled WB programs; (v) cancel one or more WB programs;
or (vi) postpone the roll-out of any WB programming.
7. Assignment or Transfer of Affiliate Agreement and/or Station License:
(a) Assignment or Transfer of Affiliation Agreement: This Agreement
shall not be assigned by Licensee without the prior written consent
of WB. Any purported assignment by Licensee without such consent
shall be null and void, shall not be enforceable against WB, and
shall not relieve Licensee of all its obligations hereunder.
(b) Assignment or Transfer of Station License: If any application is
made to the Federal Communications Commission (FCC) concerning a
purported, attempted or actual transfer of control or assignment
of the Station license, you shall notify us immediately in
writing of the filing of such application. Unless the transfer of
control or assignment is one provided for by Section 73.3540 (f)
of the FCC's current rules and regulations
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(a "short form" assignment or transfer of control that does not
involve a material assignment or transfer of control), we shall
have the right to terminate this Agreement upon twenty (20) days'
advance notice to you, at any time after the filing of such
application. If WB does not terminate this Agreement on or before
twenty days before the effective date of such transfer,
this Agreement shall be deemed to have been fully assigned to the
transferee or assignee of Station's license and such transferee
or assignee will assume and perform all of the obligations and
duties contained in this Agreement without limitation of any kind,
as of the effective date of transfer. In addition, if Licensee
fails, prior to the effective date of the transfer, to procure
in a written form satisfactory to WB the agreement of the assignee
or transferee to assume and perform this Agreement in its entirety
without limitation of any kind, or fails to immediately notify WB
of the application to transfer control or assign the Station
license, then Licensee shall remain fully responsible for the
full performance of all provisions of the Agreement during the
full term of the Agreement as set forth in Paragraph 9, and in
the event of non-performance, Licensee shall be considered in
material breach of this Agreement and WB shall have all rights
and remedies available for such breach, including but not limited
to specific performance and damages.
8. Unauthorized Copying: You shall not, and shall not cause or authorize
others to record, copy or duplicate any programming or other material
we furnish pursuant to this Agreement, in whole or in part, and you
shall take all reasonable precautions to prevent any such recording,
copying or duplication. Notwithstanding the foregoing, if Station is
located in the Mountain Time Zone you may pre-record WB programming for
later broadcast at the times scheduled by us. You shall erase all
such pre-recorded programming promptly after its scheduled broadcast.
Notwithstanding the above provisions, Station may make a non-broadcast
quality recording of its entire broadcast day for archival, file and
reference purposes and uses only, which copy shall be kept in Station's
possession at all times.
9. Term:
(a) The term of this Agreement shall commence on September 24, 1997 and
shall continue for ten (10) years thereafter. The term of this
Agreement may be extended for additional successive periods of two
years each, by us, in our sole discretion, giving written notice of
such extension to you at least 120 days prior to the expiration of
the then-current period; provided,
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however, that if, within 30 days of your receipt of the notice of
extension, you, in your sole discretion, give us written notice that
you reject such extension, then the extension notice shall not be
effective and this Agreement shall terminate upon expiration of the
then-current period.
(b) The "Launch Date" shall be the date on which WB first makes WB
programming available to Affiliate for broadcast by Station on a
regularly scheduled basis.
(c) Each "Contract Year" hereunder shall be an annual period during the
term of this Agreement. The First Contract Year is the annual period
beginning on the Launch Date; the Second Contract Year is the annual
period commencing one year after the Launch Date, etc.
(d) WB shall, within its sole discretion and without liability, have the
right to terminate this Agreement so long as we (i) provide sixty
days prior written notice to you and (ii) are either: (A) ceasing
operation as a television network; or (B) substantially
restructuring the ownership of the television network.
(e) Notwithstanding anything to the contrary contained in this
Agreement, upon the termination or expiration of the term of this
Agreement, all of your rights to broadcast or otherwise use any WB
program or any trademark, logo or other material or item hereunder
shall immediately cease and neither you nor Station shall have any
further rights whatsoever with respect to any such program,
trademark, logo, material or item.
(f) In the event of any conflict between the terms of this Agreement and
the terms of that Agreement between WB and KCI dated June 28, 1994
(the "KCI SAA") then the terms of this Agreement shall supersede the
terms of the KCI SAA, which runs until January 11, 2005. However, if
for any reason this Agreement shall be deemed invalid then the terms
of the currently existing KCI SAA shall continue to be of full force
and effect until January 11, 2005.
10. Applicable Law: The obligations of you and WB 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, regulations and policies of the FCC)
and this Agreement and all matters or issues collateral thereto shall
be governed by the laws of the State of California without regard to
California's conflict of law rules. The California State Courts and
the U.S. District Courts located in California shall have jurisdiction
over the interpretation of this Agreement or with regard to any dispute
arising under
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this Agreement. The venue for any such action concerning this Agreement
shall be in the County of Los Angeles, California.
11. Station Acquisition by WB: During the term of this Agreement, WB agrees
that neither we nor Time Warner Inc. nor any of its subsidiary companies
will acquire, as defined by the attribution rules of the FCC, a television
broadcast station licensed in the Community of License.
12. Change in Operations: In the event that Station's transmitter
location, power, frequency, programming format or hours of operation
are materially changed at any time during the term of this Agreement so
that Station is of materially less value to us as a broadcaster of WB
programming than at the date of this Agreement, then we shall have the
right to terminate this Agreement upon 30 days prior written notice.
You shall notify WB immediately in writing if application is made to
the FCC to modify in a material manner the transmitter location, power
or frequency of Station or if Affiliate plans to modify in a material
manner the hours of operation of Station. If you fail to notify us as
required herein, then we shall have the right to terminate this
Agreement by giving you 30 days prior written notice. At any time during
the term if Station is off the air, or operating at less than fifty
percent (50%) of its licensed power, for a period of 12 hours or longer,
Station must immediately notify WB. WB may terminate this agreement
upon thirty (30) days prior written notice in the event that Station
is off the air for a period exceeding seve (7) days or if is operating
at less than fifty percent (50%) of its full licensed power for
a period exceeding seven (7) days. Affiliate will install a satellite
antenna and receiver of sufficient quality, in the exclusive judgment of
WB, to receive a network quality signal from WB. Affiliate shall also use
switches, microwaves and all other transmission equipment necessary to
telecast a network quality picture. If, in the exclusive judgment of WB,
the picture or sound quality of Station's transmission is insufficient, WB
will provide Station with notice of the deficiency, and Station shall have
thirty (30) days to cure. In the event that Station should fail to cure
then WB may cancel this agreement upon thirty (30) days written notice.
13. WB Affiliates Council: You, with the other affiliates of WB, shall form a
WB Affiliates Council (the "Council"), which shall be comprised of
representatives from five different affiliates of WB.
14. Non-Liability of Council Members: To the extent the Council and its
members are acting in their capacity as such, then the Council and each
member so acting shall not have any obligation or legal or other
liability whatsoever to you in connection with this Agreement,
including without limitation, with respect to the Council's or such
member's approval or
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non-approval of any matter, exercise or non-exercise of any right
or taking of or failing to take any other action in connection therewith.
15. Warranties and Indemnities:
(a) WB agrees to indemnify, defend and hold Affiliate harmless
against and from all claims, damages, liabilities, costs and
expenses arising out of the use by Station under this Agreement
of any WB program or other material furnished by WB under this
Agreement, provided that Affiliate promptly notifies WB of any
claim or litigation to which this indemnity shall apply, and
provided further that Affiliate cooperates fully with WB in the
defense or settlement of such claim or litigation. Affiliate
agrees to indemnify, defend and hold WB harmless against and
from all claims, damages, liabilities, costs and expenses with
respect to Affiliate's operation of the Station or any material
furnished, added or deleted to or from WB programming by
Affiliate. This indemnity shall not apply to litigation expenses,
including attorneys' fees, that the indemnified party elects to
incur on its own behalf. Except as otherwise provided in this
Agreement, neither Affiliate nor WB shall have any rights against
the other for claims by third persons, or for the failure to
operate facilities or to furnish WB programs if such failure
is the result of a force majeure event as defined in Paragraph 6.
Furthermore, notwithstanding any other provisions of this
Agreement, Affiliate shall not have any rights against WB for
claims by third parties or Affiliate arising out of any actions or
omissions of WB permitted under subparagraph 2(g).
(b) You agree to maintain for Station such licenses, including
performing rights licenses as now are or hereafter may be in
general use by television broadcasting stations and are necessary
for you to broadcast the television programs which we furnish to
you hereunder. We will clear all music in the repertory of
SESAC, ASCAP and BMI used in our programs, thereby licensing the
broadcasting of such music in such programs over Station. You
will be responsible for all music license requirements (and all
other permissions) for any commercial or other material inserted
by you within or adjacent to WB programs in accordance with this
Agreement.
(c) You warrant that the License is in good standing and you agree to
comply with all relevant statutes and FCC rules and requirements
so as to maintain the License in good standing. In the event you
are found to have materially violated any laws or FCC rules or
requirements (after
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the exhaustion of all appeals so long as Station retains the License
during the pendency of such appeal), the effect of which is that
Station is of materially less value to us as a broadcaster of WB
programming than as of the date of this Agreement, then we shall
have the right to terminate this Agreement upon 30 days prior
written notice. You shall notify us immediately of any action by the
FCC imposing any forfeitures or other sanction(s) on Station or you
including but not limited to short-term renewals, revocation or
denial of renewal.
(d) You warrant that all information delivered by you to us in
connection with this Agreement shall be true and correct in all
material respects.
(e) You warrant that execution of this Agreement and performance of
its obligations will not violate or result in a default under (i)
any material agreement or instrument to which you are party or
(ii) any statute, ordinance, governmental rule or regulation in
any material respect, or order, judgment, injunction, decree or
ruling of any court or administrative agency applicable to you,
which default would materially interfere with the performance of
your obligations hereunder.
(f) You warrant that you are not a party to any legal action or other
proceeding before any court or administrative agency which could
prohibit the performance of your obligations under this Agreement.
16. Retransmission Consent: If any law, governmental regulation or other
action permits you to elect to require any cable television system or
other multichannel video program distributor to obtain your consent to
such system's or distributor's retransmission of Station's broadcast of
either Station's signal as a whole or any WB programming included
therein, then Affiliate and WB agree to negotiate in good faith
regarding whether such consent is to be given (including without
limitation, whether you shall or shall not, in lieu of requiring
consent, elect to require any cable system to comply with any "must
carry" rules, regulations or laws) and, if so, the terms under which
such consent is to be given (including without limitation, the amount
and type of compensation, if any, to be paid by the system or
distributor for such consent and whether any of that compensation shall
be shared between you and us).
17. Network Non-Duplication Protection: During the term of this Agreement,
Affiliate shall be entitled to network non-duplication protection, as
provided by Sections 76.92 through 76.97 of the FCC's rules, against
the presentation of any WB
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program by a cable system during the period commencing one day before and
ending fourteen (14) days after receipt of such WB program by Station.
The geographic zone of network non-duplication protection shall be the
Designated Market Area ("DMA") (as defined by Xxxxxxx) in which your
Station is located or any lesser zone mandated by Sections 76.92 and
73.658(m) of the FCC's rules as those rules exist as of the date of this
Agreement. Network non-duplication protection shall extend only to WB
programs that Station is carrying in accordance with the terms of this
Agreement and such protection shall be subject to the terms and
provisions of subparagraph 2(f). You are under no obligation to exercise
in whole or in part the network non-duplication rights granted herein.
Notwithstanding anything to the contrary in this paragraph, no non-
duplication protection is provided against the signal of WGN until
such time that WB offers exclusivity against the signal of WGN to its
affiliates.
18. Affiliation Ratings Payments. Affiliate agrees to pay to WB an annual
payment, based on the Station's television market ratings, for WB prime
time programming, commencing with the initial broadcast by Station of such
programming, all as defined and set forth in the "Annual Ratings Payment"
Exhibit attached hereto. These payments are intended to compensate WB for
the WB programming and are in no way intended to, nor do they, confer on
WB any ownership or other equity interest in Station.
19. Notices and Reports:
(a) In addition to any other reports or forms requested herein, you will
provide to us in writing, in the manner reasonably requested by WB,
such reports covering WB programs broadcast by Station as we may
request from time to time. To the extent we provide you forms for
such purpose, you shall provide such reports on these forms.
(b) All notices, reports or forms required or permitted hereunder to
be in writing shall be deemed given when personally delivered
(including, without limitation, by overnight courier or other
messenger or upon confirmed receipt of facsimile copy) or on the
date of mailing postage prepaid, addressed as specified below, or
addressed to such other address as such party may hereafter
specify in a written notice. Notice to Affiliate shall be to the
address set forth for Affiliate on page 1 of this Agreement.
Notice to WB shall be to: The WB Television Network, 0000 Xxxxxx
Xxxxxxxxx, Xxxxxxx, Xxxxxxxxxx, 00000, Attention: General
Counsel.
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20. Miscellaneous:
(a) Nothing contained in this Agreement shall create any partnership,
association, joint venture, fiduciary or agency relationship between
the parties hereto.
(b) Nothing contained in this Agreement nor the conduct of any officer,
director, agent or employee of either WB or Affiliate shall be
deemed to create or to constitute ownership by WB, in whole or in
part, of Affiliate, Station or the License or in any way constitute
a derogation of the rights, duties and responsibilities imposed upon
Affiliate. Nothing in this Agreement shall be deemed to delegate to
WB, directly or indirectly, any right to control the perations of
Station.
(c) You shall at all times permit us, in connection with WB programming,
without charge, to place on, maintain and use at Station's premises,
at our expense, such equipment as WB shall reasonably require.
Station shall operate such equipment for us, to the extent we
reasonably request, and no fee shall be charged by Station therefor.
(d) No waiver of any failure of any condition or of the breach of any
obligation hereunder shall be deemed to be a waiver of any preceding
or succeeding failure of the same or any other condition, or a
waiver of any preceding or succeeding breach of the same or any
other obligation.
(e) Each and all of the rights and remedies of WB and Affiliate under
this Agreement shall be cumulative, and the exercise of one or
more of said rights or remedies shall not preclude the exercise
of any other right or remedy under this Agreement, at law or in
equity. Notwithstanding anything to the contrary contained in
this Agreement, in no event shall either party hereto be entitled
to recover any lost profits or consequential damages because of a
breach or failure by the other party, and except as expressly
provided in this Agreement to the contrary, neither WB nor
Affiliate shall have any right against the other with respect to
claims by any third person or other third entity.
(f) Paragraph headings are included in this Agreement for convenience
only and shall not be used to interpret this Agreement or any of the
provisions hereof, nor shall they be given any legal or other
effect.
(g) This Agreement, including all Exhibits attached hereto,
constitutes the entire understanding between WB and
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Affiliate concerning the subject matter hereof and shall not be
amended, modified, changed, renewed, extended or discharged except
by an instrument in writing signed by the parties or as otherwise
expressly provided herein. No inducement, representations or
warranties except as specifically set forth herein have been made
by either party to this Agreement to the other.This Agreement
replaces any and all prior and contemporaneous agreements, whether
oral or written, pertaining to the subject matter hereof.
(h) This Agreement may be executed in counterparts, with the Agreement
being effective when each party hereto has executed a copy and
delivered that copy to the other party hereto.
(i) The parties hereto agree that Station will be treated in a manner
which is the same as, or similar to, other WB affiliates with
respect to the following terms and conditions of this Agreement:
Station's allotment of commercial announcements, promotion
announcement procedures, WB program carriage (except as to items
identified in each Station's Schedule 1), delivery requirements,
assignment restrictions and retransmission consent. The parties
hereto acknowledge that the "most favored" protection that is
granted to Station in this subparagraph (i) relates only to the
Affiliation Agreement and not to any agreements of any other
nature that may exist between WB and any third party.
Notwithstanding the provisions of this subparagraph (i) Station
acknowledges that the Affiliation Agreement for "Superstation"
WGN may contain terms in addition to and different from the terms
contained in this Affiliation Agreement. The premises and
rationale for preparation of the "Annual Ratings Payment" Exhibit
will be the same for all WB affiliates, however it is
acknowledged that each affiliate will have a different schedule
of payment amounts under these Plans based on each station's base
year calculation. Additionally, guarantee payments will only be
required of stations in the top 15 markets.
IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement
as of the day and year first written above.
THE WB TELEVISION NETWORK PARTNERS ACME HOLDINGS OF ST. LOUIS, LLC.
L.P. dba THE WB TELEVISION NETWORK
("WB") ("Affiliate")
/s/ Xxxx Xxxxxx /s/ Xxxxxxx X. Xxxxx
By:________________________________ By:________________________________
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Authorized Agent President & COO
Title:_____________________________ Title:_____________________________
September 26, 1997 9/26/97
Date:______________________________ Date:______________________________
KOPLAR COMMUNICATIONS, INC.
By:________________________________
Title:_____________________________
Date:______________________________
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ANNUAL RATINGS PAYMENT EXHIBIT
As part of the consideration to WB for the WB programming, Licensee agrees to
make annual payments to WB based on Station's television market ratings (the
"TMR Payments") for adults 18-49 for the prime time broadcast periods of WB
programming commencing with the initial broadcast by Station of WB programming.
Such payments shall partially compensate WB for the WB programming by
calculating the value and/or profitability added to Station as a result of its
affiliation with WB and pay to WB 25% of such added value and/or profitability.
Such payments are not intended to, nor do they, confer in WB any ownership
interest in Station. All defined terms used herein shall have the same meaning
as set forth in the Agreement unless otherwise defined herein. The TMR Payments
shall be calculated and paid as follows:
A. Calculation of TMR Payment Amount: At the end of each successive
Contract Year commencing on the Launch Date, the "Average Rating"
for each such Contract Year shall be determined by taking the
average of Station's television ratings (adults 18-49) for the
prior November, February, and May sweeps periods of such Contract
Year as reported on the Xxxxxxx Station Index ("NSI"), as
processed, refined, re-formatted or re-configured by that
application commonly known as the "SNAP System," but only with
respect to those prime time hours programmed by WB under the
Agreement. Based on the Station's Average Rating for each
Contract Year and the number of hours programmed by WB in that
Year, Station shall owe WB the amount (the "TMR Amount") set
forth in the table attached hereto as the Annual Ratings Payment
Exhibit-Table. For example, in the particular case of Station,
if the adults 18-49 rating for WB programmed hours is 3.0 for a
particular Contract Year, and WB is programming 11 hours per week
during such Year, then the TMR payment that will be due and owing
for such Year is $186,007.00. In the event that the TMR Payment
for any particular Contract Year has increased or decreased from
the prior year's TMR Payment disproportionately in comparison to
the increase or decrease over such period in the profitability of
Station's WB furnished prime time programming (after giving
effect to any increase in the number of WB prime time programming
hours between the two periods), then either WB or Station may
request that the Station's financial results and operational
information be audited and reviewed by WB. Promptly after such
audit and review, WB and Station shall meet to discuss such
financial results and operational information of Station and in
good faith seek to adjust the then currently due TMR Payment to
reflect the intent of these Payments as set forth in the
introductory paragraph to this Exhibit.
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B. TMR Payment: The TMR Amount for each Contract Year shall be payable
by Licensee to WB within 15 days following WB's delivery to Licensee
of an invoice for the TMR Amount, which invoice shall be delivered
by WB not earlier than the release by NSI or any successor ratings
index of the ratings for the fourth and final sweeps period of such
Contract Year.
C. No NSI Ratings: In the event there are no NSI ratings available,
then Licensee and WB shall use those standard television market
ratings which are generally available and used by national and/or
regional advertisers for purposes of calculating advertising
payments to television stations.
D. Continuing Obligation. Licensee's obligation to make the above TMR
Payments on the basis set forth herein shall survive any termination
of this Agreement by WB, any sale or transfer of any Station assets
and/or any ownership interest in the Station and shall remain
binding on any successor Station owner, which successor remains an
affiliate and is approved by WB in its discretion as otherwise set
forth in the Agreement.
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