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Exhibit 10.193.1
PROGRAMMING AGREEMENT
THIS PROGRAMMING AGREEMENT is made this 26th day of January, 1998, by
and between XXXXXX COMMUNICATIONS OF CHICAGO-38, INC., a Florida corporation
("Xxxxxx"), and CHRISTIAN COMMUNICATIONS OF CHICAGOLAND, INC., an Illinois
corporation (the "Programmer").
WHEREAS, Xxxxxx owns and operates Television Station WCFC-TV, Chicago,
Illinois (the "Station"), pursuant to authorizations for the Station issued by
the Federal Communications Commission (the "FCC Licenses");
WHEREAS, affiliates of Xxxxxx own and operate a television broadcast
network, PAX NET ("Network"), that provides programming to television stations
throughout the country;
WHEREAS, Programmer is the prior licensee and owner of the Station and
produces television programming;
WHEREAS, Xxxxxx acquired the Station and the FCC Licenses from
Programmer pursuant to that certain Asset Exchange Agreement between Xxxxxx and
Programmer dated January 26, 1998 (the "Exchange Agreement");
WHEREAS, Programmer is knowledgeable and experienced in the production
of programming for broadcast on the Station and the Network and is familiar with
the needs and interests of the community of license and other areas served by
the Station; and
WHEREAS, Xxxxxx has agreed under the Exchange Agreement to provide
Programmer with broadcast time on the Station and the Network for the broadcast
of Christian programming that is in conformity with FCC policies and consistent
with the terms of this Programming Agreement.
In consideration of the mutual covenants and agreements set forth
herein, and other good and valuable consideration, the receipt and sufficiency
of which are hereby acknowledged, the parties hereto agree as follows:
1. Programmer's Representations and Warranties. Programmer has all
requisite power and authority to execute and deliver this Agreement and to
perform and comply with all of the terms, covenants, and conditions to be
performed and complied with by Programmer hereunder. The execution, delivery,
and performance of this Agreement by Programmer have been duly authorized by all
necessary actions on the part of Programmer. This Agreement has been duly
executed and delivered by Programmer and constitutes the
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legal, valid, and binding obligation of Programmer, enforceable against it in
accordance with its terms.
2. Xxxxxx'x Representation and Warranties. Xxxxxx has all requisite
power and authority to execute and deliver this Agreement and to perform and
comply with all of the terms, covenants, and conditions to be performed and
complied with by Xxxxxx hereunder. The execution, delivery, and performance of
this Agreement by Xxxxxx has been duly authorized by all necessary actions on
the part of Xxxxxx . This Agreement has been duly executed and delivered by
Xxxxxx and constitutes the legal, valid, and binding obligation of Xxxxxx,
enforceable against it in accordance with its terms.
3. Term. The effective date of this Agreement shall be [insert date of
Closing under Asset Exchange Agreement] and this Agreement shall continue in
force for a term of ten (10) years from that date (the "Term") unless otherwise
terminated as set forth below.
4. Control of Programming. Programmer acknowledges and agrees that
Xxxxxx, as licensee of the Station and the other stations that comprise the
Network, is required by the FCC to control the operation of the Station and such
other Network stations, and that such control includes, but is not limited to,
the right to reject or refuse to broadcast all or such portions of the
Programmer's Christian programming which Xxxxxx believes to be contrary to the
public interest. Programmer also acknowledges Xxxxxx'x obligations under the
Communications Act of 1934, as amended, and the rules, regulations and policies
of the FCC to broadcast from time to time programming of local or national
importance, and Programmer agrees that Xxxxxx shall have the right to approve
the content of Programmer's Christian programming and any commercial matter and
to refuse to broadcast or preempt Programmer's Christian programming to
broadcast programming of greater local or national importance or to broadcast
such other programming required by the rules and regulations of the FCC.
5. Program Time. During the Term, Xxxxxx shall make available to
Programmer broadcast time upon the Station or the Network, if applicable, as set
forth in Attachment I to this Agreement. Programmer shall deliver such
programming, at its expense, to the Station's or Network's transmission
facilities or other authorized remote control points as designated by Xxxxxx.
The programming rights granted to Programmer hereunder shall be exclusive to
Programmer and Programmer's programming shall be limited to Christian programs
produced, co-produced or acquired by Programmer the content of which shall be
dedicated to communicating Judeo-Christian values. Without limiting the
generality of the foregoing, Programmer shall not resell such programming time
to any party nor permit such time to be used for "paid programming" without the
written consent of Xxxxxx, and Xxxxxx and Programmer agree that any disputes
between Xxxxxx and Programmer regarding any proposed sale of such programming
time shall be decided by the Review Board pursuant to the procedures set forth
in Section 18 hereof.
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6. Sales. Programmer's national and local advertising availabilities
broadcast on the Station will be those within the first 58 minutes of each hour
of Programmer's programming on the Station. Programmer's advertising
availabilities during Programmer's programming on the Network will be as
follows:
(i) For the hour of Programmer's programming on the Network
indicated in Section (a)(iii) of Attachment I (Sunday through Thursday, 12:00
midnight to 1:00 a.m.), half (i.e., seven minutes) of the availabilities within
the first 58 minutes of such hour within all of the United States covered by the
Network (except the Chicago DMA) and all of the availabilities within the first
58 minutes of such hour in the Chicago DMA; and
(ii) For the second hour of Programmer's programming on the Network
indicated in Section (a)(v) of Attachment I (Monday through Saturday from 6:00
a.m. to 7:00 a.m.), all of the availabilities within the first 58 minutes of
such hour.
Upon the execution of this Agreement, Programmer shall execute and deliver the
Representation Agreement in the form of Attachment II hereto, pursuant to which
Programmer agrees to utilize the PAX NET Sales Representative for all national
and network spot sales broadcast during Programmer's programming on the Station
or the Network and to pay PAX NET Sales Representative a 15% commission for all
such spot sales. Notwithstanding the foregoing, Programmer may provide to a
sponsor of Programmer's programming on the Station or on the Network, with the
written consent of Xxxxxx, Programmer's national advertising availabilities
within the time that the programming sponsored by such sponsor will be broadcast
(the "Sponsored Programming") on the Station or the Network. Xxxxxx and
Programmer agree that any disputes between them regarding any such Sponsored
Programming shall be decided by the Review Board pursuant to the procedures set
forth in Section 18 hereof. Programmer shall have the right to sell and retain
all revenue from all local advertising availabilities broadcast on the Station
during its programming.
7. Indemnification; Force Majeure.
(a) Programmer's Indemnification. Programmer shall indemnify and
hold harmless Xxxxxx from and against (i) any and all claims, losses, costs,
liabilities, damages, forfeitures and expenses (including reasonable legal fees
and other expenses incidental thereto) of every kind, nature and description
(collectively, "Damages") resulting from Programmer's breach of any
representation, warranty, covenant or agreement contained in this Agreement or
(ii) any claim for slander, defamation or similar causes of action as a result
of the broadcast of the Programming on the Station or Network.
(b) Xxxxxx'x Indemnification. Xxxxxx shall indemnify and hold
harmless Programmer from and against any and all Damages resulting from Xxxxxx'x
breach of any representation, warranty, covenant or agreement contained in this
Agreement.
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(c) Limitation. Neither Xxxxxx nor Programmer shall be entitled to
indemnification pursuant to this section unless such claim for indemnification
is asserted in writing delivered to the other party.
(d) Force Majeure. Any failure or impairment of the Station's or
Network's facilities or any delay or interruption in the broadcast of the
Programming, in whole or in part, due to Acts of God, strikes, lockouts,
material restrictions by any governmental authority, civil riot, floods,
earthquakes or other natural disasters and any other cause not reasonably within
the control of Xxxxxx, or for power reductions necessitated for maintenance of
the Station or the other stations in the Network, or for maintenance of other
stations located on the tower from which the Station or the other stations in
the Network will be broadcasting, shall not constitute a breach of this
Agreement.
8. Termination. This Agreement may be terminated by either Xxxxxx or
Programmer by written notice to the other upon the occurrence of any of the
following:
(a) the written consent of both parties;
(b) there has been a material change in FCC rules, policies or
precedent that would cause this Agreement to be in violation thereof and such
change, is in effect and not the subject of an appeal or further administrative
review and this Agreement cannot be reformed, in a manner reasonably acceptable
to Programmer or Xxxxxx, to remove and/or eliminate the violation; or
(c) If Programmer ceases to be a not-for-profit Christian
organization.
9. Assignment.
(a) Neither this Agreement nor any of the rights, interests or
obligations of either party hereunder shall be assigned, encumbered,
hypothecated or otherwise transferred without the prior written consent of the
other party (it being understood that no such consent of Programmer is required
upon any sale of all or substantially all of the assets of the Station or a sale
of all of the issued and outstanding capital stock of Xxxxxx or any sale of all
or substantially all of the Network stations); provided, however, that Xxxxxx
shall be required to assign its rights and interests hereunder, with respect to
Programmer's programming to be broadcast on the Station, including programming
to be broadcast on a portion of the Station's DTV allocation as set forth in
Section II of Attachment I hereto, to any party that acquires the FCC license
for the Station and, with respect to Programmer's programming to be broadcast on
the Network, to any party that acquires the Network, and in each case such party
shall expressly agree to assume the obligations of Xxxxxx hereunder.
(b) This Agreement shall be binding upon and inure to the benefit of
the parties hereto and their respective successors and permitted and required
assigns.
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10. Counterparts. This Agreement may be executed in one or more
counterparts, each of which will be deemed an original but all of which together
will constitute one and the same instrument.
11. Entire Agreement. This Agreement embodies the entire agreement and
understanding of the parties relating to the provision of programming for the
Station and the Network. No amendment, waiver of compliance with any provision
or condition hereof, or consent pursuant to this Agreement will be effective
unless evidenced by an instrument in writing signed by the parties.
12. Headings. The headings are for convenience only and will not
control or affect the meaning or construction of the provisions of this
Agreement.
13. Governing Law. The obligations of Xxxxxx and Programmer are
subject to applicable federal, state and local law, rules and regulations,
including, but not limited to, the Communications Act of 1934, as amended, and
the Rules and Regulations of the FCC. The construction and performance of the
Agreement will be governed by the laws of the State of Florida.
14. Notices. All notices, demands and requests required or permitted to
be given under the provisions of this Agreement shall be (i) in writing, (ii)
sent by telecopy (with receipt personally confirmed by telephone), delivered by
personal delivery, or sent by commercial delivery service or certified mail,
return receipt requested, (iii) deemed to have been given on the date telecopied
with receipt confirmed, the date of personal delivery, or the date set forth in
the records of the delivery service or on the return receipt, and (iv) addressed
as follows:
To Programmer: Christian Communications of Chicagoland, Inc.
00 X. Xxxxxx Xxxxxx
Xxxxxxx, XX 00000
Facsimile: (000) 000-0000
Telephone: (000) 000-0000
To Xxxxxx: Xxxxxx Communications of Chicago-38, Inc.
000 Xxxxxxxxxx Xxxx Xxxx
Xxxx Xxxx Xxxxx, Xxxxxxx 00000
Facsimile: (000) 000-0000
Telephone: (000) 000-0000
or to any such other or additional persons and addresses as the parties may from
time to time designate in a writing delivered in accordance with this Section
14.
15. Severability. If any provision of this Agreement or the
application thereof to any person or circumstances shall be invalid or
unenforceable to any extent, the remainder of
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this Agreement and the application of such provision to other persons or
circumstances shall not be affected thereby and shall be enforced to the
greatest extent permitted by law. In the event that the FCC alters or modifies
its rules or policies in a fashion which would raise substantial and material
question as to the validity of any provision of this Agreement, the parties
hereto shall negotiate in good faith to revise any such provision of this
Agreement with a view toward assuring compliance with all then existing FCC
rules and policies which may be applicable, while attempting to preserve, as
closely as possible, the intent of the parties as embodied in the provision of
this Agreement which is to be so modified.
16. No Joint Venture. Nothing in this Agreement shall be deemed to
create a joint venture between Xxxxxx and the Programmer.
17. Guaranty.
(a) Guaranty. Xxxxxx Communications Corporation ("PCC") irrevocably
guarantees (the "Guaranty"), as principal and not as surety, to Programmer, its
successors and permitted assigns full and prompt performance by Xxxxxx (which
for all purposes hereof shall include all Affiliates thereof and any assignee(s)
of Xxxxxx permitted under Section 9) of all of its obligations under or pursuant
to this Agreement in accordance with the terms hereof (the "Guaranteed
Obligations"). The Guaranty shall apply and survive until all obligations of
Xxxxxx under this Agreement are performed and satisfied in accordance with the
terms hereof. PCC hereby waives any provision of any statute or judicial
decision otherwise applicable hereto which restricts or in any way limits the
rights of any obligee against a guarantor or surety following a default or
failure of performance by an obligor with respect to whose obligations the
guarantee is provided. To the fullest extent permitted by applicable law, PCC
hereby waives diligence, presentment to, demand of payment from and protest of
any Guaranteed Obligation, and also waives notice of acceptance of its guarantee
and notice of protest for nonpayment. To the fullest extent permitted by
applicable law, the obligations of PCC hereunder shall not be affected by (a)
the failure of Programmer to assert any claim or demand or to enforce any right
or remedy against Xxxxxx pursuant to the provisions of this Agreement or
otherwise and (b) any rescission, waiver, amendment or modification of, or any
release from any of the terms or provisions of this Agreement, unless consented
to in writing by Programmer and Xxxxxx.
(b) Representations and Warranties of PCC. PCC hereby represents
and warrants to Programmer as follows: (i) PCC is a corporation duly organized,
validly existing and in good standing under the laws of the State of Delaware
and has the requisite corporate power and authority to execute, deliver and
perform this Guaranty according to its terms; (ii) the execution, delivery and
performance of this Guaranty and the consummation of the transactions
contemplated hereby by PCC have been duly authorized by all necessary corporate
action on the part of PCC; (iii) this Guaranty has been duly executed and
delivered by PCC and constitutes the legal, valid and binding obligation of PCC
enforceable against PCC in accordance with its terms, except as the
enforceability of this Guaranty may be affected by bankruptcy, insolvency or
similar laws affecting creditors' rights generally and
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by judicial discretion in the enforcement of equitable remedies; and (iv) the
execution, delivery and performance of this Guaranty: (1) do not require the
consent of any third party, (2) do not conflict with the Certificate of
Incorporation or bylaws of PCC, and (3) do not conflict in any material respect
with, result in a material breach of, or constitute a material default under any
law, judgment, order, ordinance, injunction, decree, rule, regulation or ruling
of any court or governmental authority applicable to PCC or any material
contract or agreement to which PCC is a party or by which PCC may be bound.
18. Review Board.
(a) Any dispute between Xxxxxx and Programmer arising out of
or relating to (i) the content of Programmer's programming and of any
commercials or other announcements provided by Programmer for broadcast on the
Station, including, without limitation, Programmer's solicitation of donations,
contributions and other fund raising activities contained in Programmer's
programming, and (ii) any proposed sale by Programmer of programming time to any
other party, including, without limitation, the proposed sale of programming
time to be used for "paid programming," that cannot be resolved by Programmer
and Xxxxxx, may be referred by Programmer or Xxxxxx to the Review Board (as
defined below). The decision of the Review Board with respect to any matter that
is subject to review pursuant to the preceding sentence shall be final and
binding on Xxxxxx and Programmer. Notwithstanding any provision in this
Agreement to the contrary, the Review Board shall not have jurisdiction over
Xxxxxx'x exercise of its authority pursuant to Section 4 hereof.
(b) The Review Board shall consist of five members appointed
in accordance with the procedures set forth in this paragraph. Xxxxxx and
Programmer shall each designate two Review Board members, each of whom shall be
ordained ministers. The four Review Board members designated by Xxxxxx and
Programmer shall then designate a fifth ordained minister who shall act as
Chairman of the Review Board. Xxxxxx shall have the right, in its sole
discretion, to replace at any time either Review Board member designated by
Xxxxxx upon written notice to Programmer. Programmer shall have the right, in
its sole discretion, to replace at any time either Review Board member
designated by Programmer upon written notice to Xxxxxx. Unless replaced by
written agreement of Xxxxxx and Programmer, the Chairman shall serve for a term
not to exceed one (1) year from his or her designation. The Review Board must
replace or re-elect the Chairman on each anniversary of his or her designation
in accordance with the procedures set forth in this Section.
(c) In the event of any dispute that is subject to review
under this Section 18, either Programmer or Xxxxxx may commence review hereunder
by delivering notice to the other party and each member of the Review Board (a
"Review Notice"). The Review Board's consideration of any dispute under this
provision shall commence no later than fifteen (15) days after Xxxxxx or
Programmer has provided a Review Notice to the other party and the Review Board
members. Any information provided by Xxxxxx or Programmer
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to the Review Board shall be submitted in writing and a copy of which shall be
simultaneously provided to the other party. The Review Board decision shall be
issued as expeditiously as possible, but in no event later than thirty (30)
business days after delivery of the Review Notice. The Review Board shall base
its decision, which shall require the affirmative vote of no less than 3 Review
Board members, on the terms of this Agreement, shall render its decision in
writing, and shall deliver a copy of its decision to Programmer and Xxxxxx.
Programmer and Xxxxxx agree to cooperate fully with the Review Board to resolve
any dispute. Programmer and Xxxxxx shall each pay one-half of all costs or
expenses incurred by the Review Board.
[THE REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement the
day and year first above written.
XXXXXX: XXXXXX COMMUNICATIONS
OF CHICAGO-38, INC.
By: /s/ Xxxxxx X. Xxxxxx
-----------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Chairman
PROGRAMMER: CHRISTIAN COMMUNICATIONS OF
CHICAGOLAND, INC.
By: /s/ Xxxxx X. Xxxx
-----------------------------------
Name: Xxxxx X. Xxxx
Title: President
XXXXXX COMMUNICATIONS CORPORATION
HEREBY JOINS IN THE EXECUTION OF THE
FOREGOING AGREEMENT TO AGREE TO THE
PROVISIONS OF SECTION 17 ONLY, AS OF
THE DATE FIRST ABOVE WRITTEN.
GUARANTOR: XXXXXX COMMUNICATIONS
CORPORATION
By: /s/ Xxxxxx X. Xxxxxx
-----------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Chairman
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ATTACHMENT I
I. Program Time on the Station and PAX NET
(a) If, as of the date (the "Closing Date") Xxxxxx acquires WCFC (the
"Station") from Programmer pursuant to the Asset Exchange Agreement dated
as of January 26, 1998, among Xxxxxx, Programmer and Xxxxxx Communications
Corporation ("PCC") and any time thereafter until the tenth anniversary of
the Closing Date, Programmer's programming is provided to less than 1.6
Million unduplicated cable (or other multichannel service provider)
households in the Chicago Designated Market Area ("Chicago Cable Homes"),
Programmer shall have the following programming rights (the "Programming
Rights") on the Station and PAX NET, as the case may be:
(i) If Programmer's programming is provided to 1.4 Million or more Chicago
Cable Homes but less than 1.6 Million Chicago Cable Homes, then Xxxxxx
shall broadcast on the Station one hour of Programmer's programming
each day, Monday through Saturday, from 6:00 a.m. to 7:00 a.m. and
one hour of Programmer's programming on Sunday from 9:00 a.m. to
10:00 a.m.;
(ii) If Programmer's programming is provided to 1.2 Million or more
Chicago Cable Homes but less than 1.4 Million Chicago Cable
Homes, then Xxxxxx shall broadcast on the Station the
Programmer's programming referred to in clause (a)(i) above
plus one additional hour of Programmer's programming per day,
seven days per week, from 10:00 a.m. to 11:00 a.m.;
(iii) If Programmer's programming is provided to 1 Million or more Chicago
Cable Homes but less than 1.2 Million Chicago Cable Homes, then Xxxxxx
shall broadcast on the Station the Programmer's programming referred
to in clauses (a)(i) and (ii) above plus one hour of Programmer's
programming, Sunday through Thursday, from 12:00 midnight to 1:00 a.m.
and one hour of Programmer's programming on Friday and Saturday from
1:00 a.m. to 2:00 a.m., and Xxxxxx shall broadcast on PAX NET one hour
of Programmer's programming per day, Sunday through Thursday, from
12:00 midnight to 1:00 a.m.;
(iv) If Programmer's programming is provided to more than one but
less than 1 Million Chicago Cable Homes, then Xxxxxx shall
broadcast on the Station four hours of Programmer's
programming per day as follows:
(1) One hour of Programmer's programming, Monday through Saturday,
from 6:00 a.m. to 7:00 a.m. and one hour of Programmer's
programming on Sunday from 9:00 a.m. to 10:00 a.m.;
(2) Two hours of Programmer's programming, seven days per week, from
10:00 a.m. to noon; and
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(3) One hour of Programmer's programming, Sunday through Thursday,
from 12:00 midnight to 1:00 a.m. and one hour of Programmer's
programming, Friday and Saturday, from 1:00 a.m. to 2:00 a.m.;
(v) If Programmer's programming is provided to more than one but less
than 1 Million Chicago Cable Homes, Xxxxxx shall broadcast on PAX
NET one hour of Programmer's programming, Monday through Saturday,
from 6:00 a.m. to 7:00 a.m. and one hour of Programmer's
programming, Sunday through Thursday, from 12:00 midnight to 1:00
a.m.;
(vi) If Programmer's programming is not provided to any Chicago Cable
Homes on August 28, 1998, then Xxxxxx shall broadcast on the Station
and PAX NET Programmer's programming as provided in clause (a)(iv)
and (v) above;
(vii) The above times for the Station are Central and the above times for
PAX NET shall be consistent with the schedule utilized by the other
national television networks for their stations in the same or
similar markets as the PAX NET stations. PAX NET includes all
stations owned or time-brokered by PCC or its subsidiaries.
(b) On the Closing Date, Xxxxxx shall deposit in escrow with First Union
National Bank (the "Escrow Agent"), pursuant to an Escrow Agreement in
form and substance acceptable to Xxxxxx, Programmer and the Escrow Agent,
one of the following sums, less any reduction in either such sum pursuant
to paragraph (b)(i) below: $15,000,000, if, on the Closing Date,
Programmer's programming is not provided to any Chicago Cable Homes, or
$6,000,000, if, on the Closing Date, Programmer's programming is provided
to more than one but less than 1 Million Chicago Cable Homes. The amount,
if any, deposited by Xxxxxx with the Escrow Agent on the Closing Date and
all interest earned thereon is referred to herein as the "Escrow Money."
(i) Any amounts paid by Xxxxxx, in its sole discretion, prior to the
Closing Date to purchase cable carriage in the Chicago DMA for
Programmer's programming shall be credited against the amount
Xxxxxx is required to deposit with the Escrow Agent pursuant to
paragraph (b) above. Between the Closing Date and September 30,
1999, Xxxxxx, in its sole discretion, may withdraw and spend all or
part of the Escrow Money to purchase cable carriage in the Chicago
DMA for Programmer's programming, and Programmer shall join with
Xxxxxx in providing such written instructions to the Escrow Agent
as may be required for such payments. The balance remaining in
the escrow as of September 30, 1999, if any, is the "Escrow
Balance";
(ii) If Programmer's programming is provided to more than one but less
than 1 Million Chicago Cable Homes on August 28, 1999, Xxxxxx and
Programmer shall instruct the Escrow Agent to pay Programmer up to
$6,000,000 of the
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Escrow Balance, if any, on September 30, 1999, and to pay to
Xxxxxx any amount remaining in escrow after such payment to
Programmer;
(iii) If Programmer's programming is not provided to any Chicago
Cable Homes on August 28, 1999, Xxxxxx and Programmer shall
instruct the Escrow Agent to pay Programmer up to $15,000,000
of the Escrow Balance, if any, on September 30, 1999, and to
pay to Xxxxxx any amount remaining in escrow after such
payment to Programmer; and
(iv) If Programmer's programming is provided to 1 Million or more
Chicago Cable Homes on August 28, 1999, Xxxxxx and Programmer
shall instruct the Escrow Agent to disburse the Escrow Balance
to Xxxxxx on September 30, 1999, and Xxxxxx shall have no
further obligations under this paragraph (b).
(c) The parties agree that Xxxxxx shall use the Carriage Agreement attached
hereto as Exhibit A (the "Carriage Agreement") to seek to obtain
carriage of Programmer's programming on the "first tier" of Chicago
cable or other multichannel provider systems (a "System Operator"). The
Carriage Agreement shall be negotiated and may be modified, by Xxxxxx,
with the consent of Programmer, which consent shall not be unreasonably
withheld or delayed, in such manner as may be necessary to obtain such
carriage.
(d) Carriage of Programmer's programming on Chicago Cable Homes shall be
measured monthly (through Xxxxxxx data, other recognized sources or
affidavits and audits supplied by the System Operator) during the
period ending on the tenth anniversary of the Closing Date. Upon the
request of Xxxxxx, Programmer shall obtain such affidavits or seek such
audits from the System Operators in accordance with the terms of the
Carriage Agreement. Programming Rights shall fluctuate up or down in
accordance with the number of unduplicated Chicago Cable Homes as
outlined in (a) above and shall be commenced or terminated, as the case
may be, within thirty (30) days of the change in the number of Chicago
Cable Homes that results in such commencement or termination.
Programming Rights shall not commence and no adjustment upward in
Programming Rights will be made if a Carriage Agreement is terminated
as a result of a breach by Programmer or a System Operator prior to the
contract expiration date or earlier termination right of a System
Operator. If, as a result of a loss of Chicago Cable Homes, the
Programming Rights on PAX NET are added back at any time, Xxxxxx at its
option may, in lieu of granting such Programming Rights on PAX NET,
purchase those rights for an amount equal to the product of (i) $10
(less $1.00 per year over the ten year period commencing on the Closing
Date) and (ii) the difference between 1.2 million and the number of
Chicago Cable Homes carrying Programmer's programming immediately after
the carriage loss.
(e) Programmer shall not be permitted to broadcast a program on the
Station at the same time such program is carried by a System Operator,
and Programmer shall take such actions, at Programmer's expense, that
are required to prevent such duplication of its programs.
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II. DTV Time On the Station
For a period of ten years commencing on the date the FCC permits the
Station to utilize its DTV allocation for simultaneous multichannel
broadcasting, if ever, Xxxxxx shall provide Programmer with a digital channel
(the "Digital Channel") on the Station, subject to the following:
(i) The frequency of the Digital Channel shall be determined by
Xxxxxx, but the bandwidth shall not be less than the Station's
primary digital channel;
(ii) The provision of the Digital Channel to Programmer shall be
subject to all then applicable restrictions and requirements of
the FCC;
(iii) Programmer shall reimburse Xxxxxx for Programmer's Portion of the
demonstrated, direct out-of-pocket operating costs and expenses
incurred by Xxxxxx that are attributable to the broadcast of the
Digital Channel (for the purpose of this provision, "Programmer's
Portion" shall mean the percentage determined by dividing the
bandwidth of the Station's entire DTV allocation into the
bandwidth of the Digital Channel); and
(iv) The programming restrictions contained in Sections 4 and 5 of
the preceding Programming Agreement shall apply to the
programming provided by Programmer for broadcast on the Digital
Channel.
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