EXHIBIT 10.4
PROGRAMMING AND SERVICES AGREEMENT
----------------------------------
This Programming Agreement (the "Agreement") is effective as of the 1st day
of January, 1998 ("Effective Date") by and between College Television Network,
Inc. (formerly known as UC Television Network Corp.) ("CTN"), a Delaware
corporation with its principal place of business at 0000 Xxxx Xxxxxxx Xxxxx,
Xxxxx 000, Xxxxxxx, Xxxxxxx 00000, and Xxxxxx Private Networks, Inc., a Georgia
corporation with its principal place of business at Xxx XXX Xxxxxx, X.X. Xxx
000000, Xxxxxxx, Xxxxxxx 00000-0000 ("Xxxxxx"). (CTN and Xxxxxx are
collectively referred to herein as the "Parties").
W I T N E S S E T H :
- - - - - - - - - -
WHEREAS, CTN owns and operates the College Television Network (formerly
known as UCTV) (the "Network") which provides television programming targeted to
college students in a place-based single channel viewing environment in common
areas on college campuses "Network Facilities");
WHEREAS, CTN desires that Xxxxxx provide certain program and editorial
content to CTN for exhibition on the Network as further described below
("Programs");
WHEREAS, Xxxxxx desires to provide such Programs to CTN on the terms set
forth in this Agreement for exhibition on the Network;
THEREFORE, in consideration of the mutual covenants contained herein and
the mutual benefits to be derived therefrom and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties hereby agree as follows:
X. Xxxxxx Obligations.
------------------
(a) Production. Xxxxxx shall produce and provide to CTN for distribution
----------
on the Network a fully produced and packaged Program for each non-
holiday school day (based upon a mutually agreed upon school calendar
running from approximately mid-August to mid-May) during the Term of
this Agreement. Each Program shall contain: (i) two (2) general news
segments, each of which shall be approximately two and a half minutes
in duration; (ii) two (2) sports segments, each of which shall be
approximately two and a half minutes in duration; (iii) one (1)
animated "short" or cartoon, which shall be subject to the reasonable
approval of CTN and shall be approximately seven (7) minutes in
duration; (iv) opening and closing graphics for each segment; and (v)
anchor backgrounds behind the news and sports segments.
The Programs shall be of broadcast quality according to generally
accepted industry standards and shall be comparable in production
quality to other Xxxxxx-produced programs. The host, the format and
the set for the Programs, as well as the graphics included as part of
the Programs, shall be subject to the reasonable
-1-
approval of CTN. The Programs shall be produced accordingly; any
changes that would impact the budget must be agreed upon and Xxxxxx
will only be obligated to implement the same if commercially
reasonable and for an agreed upon increase in the Fee. Xxxxxx shall
have absolute and complete editorial discretion with respect to the
content, production, editing and updating of the Programs. In
addition, it is expressly acknowledged and agreed that the Cable News
Network ("CNN") or other appropriate TPNI-affiliated logo ("Xxxxxx
Marks") shall appear on-screen at all times in the Programs to
identify the source for the same and that such logos shall be of a
size generally accepted in the television industry; such Xxxxxx Marks
may not be used with any other on-air programming or elements included
in the Network.
Without assuming any obligation whatsoever, from time to time during
the Term, Xxxxxx agrees to consider requests from CTN to permit CTN to
air live breaking news appearing on CNN on the Network in lieu of
Programs. Such permission shall be granted, if at all, on a case-by-
case basis and pursuant to any limitations CNN deems appropriate. All
technology and costs associated with carriage of the live CNN feed
shall be the responsibility of CTN; Xxxxxx will use reasonable efforts
to inform CTN of the costs (to the extent of its knowledge) in
advance.
(b) Administrative Responsibilities. From January 1, 1998, through the
-------------------------------
completion of the school year in May 1998 ("Interim Period"), Xxxxxx
hereby agrees to perform certain administrative and distribution
responsibilities on behalf of CTN. Specifically, Xxxxxx agrees to
receive a reasonable amount of third party programming elements from
CTN ("CTN Content") for inclusion on the Network and encode and
transmit the same with the Programs as further provided in Paragraph
(c) below. In no event shall the CTN Content encoding and
distribution process require more than one hundred twenty (120)
minutes of distribution time per month, inclusive of any
retransmission of said CTN Content, absent the separate written
agreement of both parties. After May 1998, Xxxxxx shall have no
responsibility whatsoever to encode, distribute or otherwise process
any CTN Content for the Network.
(c) Delivery. Xxxxxx shall deliver the Programs and the CTN Content
--------
(during the Interim Period only) to CTN for distribution on the
Network on the dates set forth on the Delivery Schedule attached
hereto as Exhibit "X' and incorporated herein by reference. During
the Interim Period, Xxxxxx shall deliver the Programs, along with any
CTN Content, to CTN for daily (school day only) broadcast prior to the
scheduled air time via internet feed (or other mutually acceptable
means) to the Xxxxxx satellite facilities in Germantown, Maryland for
CTN's subsequent distribution to the Network Facilities.
After the Interim Period, Xxxxxx shall deliver the Programs to CTN on
a daily school day basis prior to the scheduled air time on a mutually
agreed upon schedule via fiber or other appropriate means of delivery
selected by Xxxxxx to the
-2-
Xxxxxxxx Production facility in Atlanta, Georgia, or such other
location as directed by CTN so long as CTN agrees to pay any cost
differential to Xxxxxx associated with the alternate place of
delivery, for CTN's inclusion on the Network and distribution to the
Network Facilities. CTN shall provide Xxxxxx a commercially reasonable
period of time to switch to an alternate location should CTN elect to
use a facility other than Xxxxxxxx so that Xxxxxx can make all
necessary arrangements.
(d) In addition, Xxxxxx agrees to provide CTN one (1) crew day (up to five
(5) hours) per month for use by CTN in producing the CTN Content so
long as CTN provides Xxxxxx seven (7) days' advanced written notice of
the need for such crew and with the express understanding that the
crew will be made available in the Atlanta metropolitan area only. In
addition, Xxxxxx will provide a maximum of five (5) hours edit time
per month for use by CTN in the production of the CTN Content. Such
edit time will include use of an editor and facilities at times and
locations designated by Xxxxxx in its reasonable sole discretion.
Neither the production nor the edit time will accumulate from month to
month; accordingly, such time will be forfeited if CTN fails to use
such services in any given month.
II. CTN Obligations
---------------
(a) CTN Content. The CTN Content provided by CTN hereunder may include
-----------
music videos, commercials and other programming elements for
distribution on the Network as CTN deems appropriate; provided,
however, CTN agrees that the CTN Content shall be generally consistent
with the production quality and journalistic integrity of the Programs
and in compliance with all applicable laws, rules and regulations. At
Xxxxxx'x discretion, certain CTN Content may be included in the
Programs. CTN shall be solely responsible for providing a host and
graphics for any CTN Content at its sole cost and such person shall
have no right whatsoever to represent himself or herself as a
representative or employee of Xxxxxx or any of its affiliates. It is
further agreed that CTN may, at its sole cost, secure an anchor to
work with Xxxxxx to host the segments contained in the Programs at no
charge to Xxxxxx, subject to Xxxxxx'x reasonable approval. Subject to
the details in Paragraph I above, CTN shall be solely responsible for
the CTN Content including the production thereof (and all rights,
licensing, clearance and payment issues related thereto), the assembly
of the same with the Programs, and distribution of the Network to the
Network Facilities.
(b) Distribution of CTN Content. During the Interim Period, CTN shall be
---------------------------
solely responsible for providing the CTN Content to Xxxxxx in a timely
manner for encoding and distribution to the Xxxxxx facility.
(c) Reception and Re-Distribution to Network Facilities. During the
---------------------------------------------------
Interim Period, CTN shall be solely responsible for the reception of
Programs and CTN Content at the Xxxxxx NOC and all equipment and costs
related thereto. Following the
-3-
Interim Period and throughout the remainder of the Term, CTN shall be
solely responsible for delivering any CTN Content to the Xxxxxxxx
facility or any alternate facility selected by CTN as contemplated by
Paragraph I(c) above. At all times during the Term, subject to
Xxxxxx'x performance of its delivery obligations hereunder, CTN shall
be responsible for assembling the Network and distributing the same to
the Network Facilities, as well as all costs associated with the
foregoing activities.
(d) Quality of Signal. It shall be CTN's responsibility to ensure that
-----------------
the Network signal meets generally accepted broadcast industry
standards for DBS such that the signal provided to the Network
Facilities is generally consistent with the quality of signal provided
by Xxxxxx (excluding any HDTV standards) for its other cable
programming services.
(e) Installation of Network Facilities. Subject to Xxxxxx'x express
----------------------------------
distribution obligations set forth in Paragraph l(c) above, CTN shall
be solely responsible for the installation of all equipment necessary
to distribute and exhibit the Network at the Network Facilities as
contemplated hereunder. CTN shall use its reasonable best efforts to
use first rate quality equipment and shall include a sound system
sufficient to deliver a clear and audible signal to the intended
viewing area. It is expressly understood that CTN shall have no
rights whatsoever to use any Xxxxxx Marks on the television monitors
or other equipment installed by or on behalf of CTN at the Network
Facilities.
(f) Encoding and Related Equipment. CTN has provided Xxxxxx with certain
------------------------------
MPEG encoding and related equipment necessary for Xxxxxx'x performance
of its obligations hereunder, which equipment is identified on
Schedule I attached hereto ("CTN Equipment"). CTN shall maintain all
such CTN Equipment in good working order throughout the Term and shall
repair or replace any m functioning equipment in a timely manner upon
notice from Xxxxxx. Xxxxxx shall not be responsible for any delays
caused by problems with the CTN Equipment. After the Interim Period,
Xxxxxx shall return the CTN Equipment to CTN in substantially the same
condition CTN delivered to Xxxxxx, normal wear and tear excepted.
III. Representations and Authorizations
----------------------------------
(a) By CTN:
------
CTN represents and warrants to Xxxxxx: (i) that it is the owner and
operator of the Network; (ii) that it has the full power and authority
to execute, deliver and perform under this Agreement and to consummate
any and all transactions provided for herein; (iii) that the
execution, delivery and performance of this Agreement and the
consummation of any and all transactions contemplated by this
Agreement, and the fulfillment of and compliance with the terms and
conditions of this Agreement do not and will not violate or conflict
with, or
-4-
constitute a material breach of or default under, any existing
contracts or commitments to which CTN is a party or by which it may be
bound; (iv) to the best of CTN's knowledge, neither the CTN Content
nor TPNI's use and distribution of the same as authorized hereunder
will violate or infringe any third party's right of copyright,
trademark, service xxxx, patent or other proprietary rights or
constitute to defamation or invasion of privacy or publicity rights of
any person or entity; and (v) it will secure all rights and licenses
from and make all necessary payments to any third party in connection
with use of the CTN Content as contemplated hereunder (including,
without limitation, guild payments).
(b) By Xxxxxx:
---------
Xxxxxx represents and warrants to CTN: (i) that it has the full power
and authority to execute, deliver and perform under this Agreement and
to consummate any and all transactions provided for herein; (ii) that
the execution, delivery and performance of this Agreement and the
consummation of any and all transactions contemplated by this
Agreement, and the fulfillment of and compliance with the terms and
conditions of this Agreement do not and will not violate or conflict
with, or constitute a material breach of or default under, any
existing contracts or commitments to which Xxxxxx is a party or by
which it may be bound; (iii) that, to the best of Xxxxxx'x knowledge,
the Programs (excluding any CTN Content therein) and CTN's use thereof
as authorized hereunder do not violate any third party's right of
copyright, trademark, service xxxx, patent or other proprietary rights
or constitute a defamation or invasion of privacy or publicity rights
of any person or entity; (iv) it will secure all rights and licenses
from and make all necessary payments to any third party in connection
with the use of the Programs (excluding any CTN Content included
therein) as contemplated hereunder (including guild payments, but
expressly excluding any public performance licenses or payments); and
(v) that the non-dramatic performing rights to each musical
composition in each Program (excluding any CTN Content included
therein) are: (a) controlled by ASCAP, BMI or SESAC; (b) controlled by
Xxxxxx to the extent necessary to permit CTN's use of the Programs as
authorized hereunder; or (c) in the public domain. To the extent
public performance rights and clearances to musical compositions and
recordings necessary for CTN's use of the Programs are not controlled
by Xxxxxx, CTN acknowledges that such public performances rights and
clearances are not granted herein, and CTN shall, at its sole cost and
expense, secure all public performance licenses (and pay related fees)
necessary for the exhibition by CTN of each musical composition
contained in any Program.
IV. Term
----
The term of this Agreement shall commence on the Effective Date and shall
continue for a period of five (5) years through December 31, 2002 (the
"Term").
-5-
V. Fee and Payment Schedule
------------------------
(a) Fee. As consideration for the Programs supplied to CTN under this
---
Agreement, CTN agrees to pay Xxxxxx an annual fee of Five Hundred
Thousand Dollars ($500,000) (the "Fee") during each of the first three
(3) years of the Term, and an annual Fee of Seven Hundred Thousand
Dollars ($700,000) in years 4 and 5 of the Term.
(b) Payment. The annual Fee shall be payable in twelve (12) equal monthly
-------
installments, with the first monthly payment payable on January 10,
1998, and each monthly installment thereafter payable on or before the
10th day of each subsequent calendar month during the Term.
(c) Nonpayment. In addition to its other contractual rights and rights at
----------
law or in equity, in the event of CTN's continuing failure after
written notice to pay Xxxxxx the Fee payable hereunder for a period of
forty-five (45) days after the due date, Xxxxxx may, at its
discretion, suspend performance of its obligations hereunder until
full payment has been received.
VI. Ownership
---------
(a) Ownership and Copyright of the Programs. It is expressly acknowledged
---------------------------------------
and agreed that, as between CTN and Xxxxxx, Xxxxxx shall own and
retain, throughout the universe, and in perpetuity, the exclusive
ownership of all rights and title in and to the Programs and the
Xxxxxx Marks, including all rights of trademark, copyright and
copyright renewal. Xxxxxx'x exclusive ownership and control of the
Programs and Xxxxxx Marks shall be absolute and without any further
obligation whatsoever to CTN or to any third party except as
specifically provided herein. All goodwill associated with the
Programs and the Xxxxxx Marks and the distribution of the same on the
Network shall inure to the sole benefit of Xxxxxx.
It is expressly acknowledged and agreed that, as between CTN and
Xxxxxx, CTN shall own and retain, throughout the universe, and in
perpetuity, the exclusive ownership of all rights and title in and to
the CTN Content and the CTN Marks, including all rights of trademark,
copyright and copyright renewal. CTN's exclusive ownership and control
of the CTN Content and CTN Marks shall be absolute and without any
further obligation whatsoever to Xxxxxx or to any third party except
as specifically provided herein. All goodwill associated with the CTN
Content and the CTN Marks and the distribution of the same on the
Network shall inure to the sole benefit of CTN.
(b) Xxxxxx Content License. Xxxxxx hereby grants to CTN a license to
----------------------
distribute the Programs and any Xxxxxx Marks contained therein on the
Network during the scheduled air dates solely for display on
television monitors located in the
-6-
Network Facilities without the assessment of any viewing charge or
access fee. CTN shall air the Programs in their entirety as delivered
by Xxxxxx and shall not edit, insert material into, or otherwise alter
the material contained in the Programs. CTN may not exhibit, display,
distribute or otherwise use any Programs or any portion thereof on
the Network in any respect after the date upon which such Programs are
initially exhibited without the written consent of Xxxxxx. In addition
to the foregoing, CTN may also use portions of the Programs and the
designated Xxxxxx Marks to advertise or promote the Network, subject
to Xxxxxx'x prior written approval as to the specific use. Such
promotional rights may include use of limited, non-time sensitive
portions of the Programs on a promotional CTN website subject to
Xxxxxx'x prior written approval. Notwithstanding the foregoing, during
the Term, CTN may use Xxxxxx'x name and/or Xxxx solely to identify
Xxxxxx as a programming source for the Network in its promotional
materials without Xxxxxx'x prior written consent as to each such use
with the understanding that such use shall not be derogatory to or
critical of Xxxxxx or its affiliates and must be consistent with the
terms of the relationship established hereunder ( M.., no
endorsement).
No other rights in or to the Programs or the Xxxxxx Marks are granted
or implied to CTN by this Agreement. Xxxxxx hereby reserves all rights
in and to the programming footage and other material included in the
Programs (excluding any CTN Content) and, hereby reserves the right to
exercise, market, exploit or otherwise dispose of such rights in any
manner it deems appropriate without limitation or restriction;
provided, however, in no event will Xxxxxx use any customized
programming elements created specifically for CTN or the Network for
any purpose other than marketing or promotional activities without the
prior approval of CTN.
(c) Withdrawal Rights. Xxxxxx may, in its absolute discretion,
-----------------
permanently or temporarily withdraw any Program or any portion thereof
from distribution on the Network by written notice to CTN at any time
as it deems necessary or advisable in the exercise of its sound
business judgment and any such withdrawals, interruption, delay or
interference shall not constitute or be deemed to be a breach of this
Agreement; provided, however, that Xxxxxx agrees to use its best
efforts to deliver a substitute Program as soon as possible.
In the event Xxxxxx withdraws (and fails to replace) or fails to
deliver any Programs in a timely manner, Xxxxxx shall, upon the
written demand of CTN, reimburse or credit CTN for: (i) the pro-rata
portion of the Fee allocable to such Program; and (ii) actual lost
advertising revenue from advertising time which actually has been sold
with respect to such Program to the extent make goods are unavailable,
provided that CTN can document and verify such loss to Xxxxxx'x
reasonable satisfaction.
-7-
VII. Advertising Time and Content
----------------------------
Except as provided in this paragraph, CTN shall have the right to sell all
advertising time on the Network and to retain all revenue derived
therefrom. Nonetheless, CTN will use reasonable efforts to avoid placing
any advertising on the Network in or adjacent to the Programs for any
twenty-four hour news network. Notwithstanding CTN's control of the
advertising on the Network, it is expressly acknowledged and agreed that
CTN shall provide Xxxxxx with two (2) thirty second promotional spots per
day on the Network (at no charge) for promotional advertising for products
or services or cable networks owned and/or operated by Time Warner. Xxxxxx
will receive one of the promotional spots in the morning daypart and the
other in the afternoon daypart, with rotational placement (as scheduled by
CTN) within each daypart so as to provide exposure during different time
slots within each daypart. CTN further agrees to provide Xxxxxx additional
thirty (30) second spots on the Network (at no charge) for its promotional
spots on an as available basis out of advertising inventory (up to a
maximum of one (1) thirty second spot per hour). CTN will make available
to Xxxxxx upon reasonable request reports tracking the -placement of all
such promotional spots on the Network. Finally, without assuming any
obligation whatsoever, from time to time during the Term, CTN will explore
the possibility of providing additional promotional opportunities to
Xxxxxx in other media vehicles utilized by CTN in connection with the
Network.
VIII. Exclusivity, Right of First Negotiation
---------------------------------------
CTN hereby agrees that Xxxxxx shall be the exclusive programming supplier
of news programming and a non-exclusive provider of sports and cartoon
programming for the Network during the Term of this Agreement; provided,
however, that such exclusivity shall not prevent CTN from obtaining and
exhibiting local news segments produced by colleges and universities.
Furthermore, though Xxxxxx is a nonexclusive provider of sports
programming for the Network, CTN agrees that Xxxxxx shall provide the
majority of all sports news programming Q e., daily sports news reporting
with an anchor) on the Network.
CTN hereby grants Xxxxxx a right of first negotiation to continue as a
news and sports programming provider for the Network after the Term of
this Agreement. Accordingly, at least sixty (60) and no more than one
hundred twenty (120) days prior to the expiration of the Term, CTN shall
notify Xxxxxx in writing of its intent to include news and/or sports
programming on the Network after the Term and shall negotiate in good
faith with Xxxxxx on an exclusive basis for a period of not more than
thirty (30) days from Xxxxxx'x receipt of such notice to arrive at an
agreement pertaining to Xxxxxx'x continuing as a news and sports
programming supplier for the Network. If CTN and Xxxxxx are unable to
reach an agreement within said thirty (30) day period, CTN may then pursue
negotiations with a third party. The foregoing right of first negotiation
shall be null and void and of no further force or effect if this Agreement
is terminated early in accordance with its terms.
-8-
IX. Indemnification
---------------
(a) By Xxxxxx. Xxxxxx hereby agrees to indemnify, defend, protect, save
---------
and hold harmless CTN, and its agents, officers, directors, employees,
successors, licensees, assignees and attorneys, from and against, any
and all liabilities, losses, damages, costs or expenses of any nature
whatsoever, including, without limitation, reasonable attorneys' fees
(including, without limitation, an applicable share of in-house
attorneys' costs and expenses) and court costs, whether fixed or
contingent, threatened or actual, known or unknown, liquidated or
unliquidated, of any kind or nature whatsoever (collectively,
"Claims"), imposed on, incurred by, or asserted against CTN or the
foregoing individuals arising out of or related to a third party claim
that (i) the Programs (excluding any CTN Content included therein)
infringe or violate any copyright, trademark, patent or other
intellectual property right of any third party or are considered
libelous or defamatory to a third party; (ii) any Xxxxxx Xxxx
infringes any copyright, trademark, patent or other intellectual
property fight of any third party; (iii) Xxxxxx is in breach or
alleged breach of any representation, warranty, covenant or obligation
by it contained in or made pursuant to this Agreement; (iv) the
Programs (excluding any CTN Content contained therein) fail to comply
with any applicable laws, rules or regulations; or (v) Xxxxxx'x
activities hereunder caused any bodily injury and/or property damage.
(b) By CTN. CTN hereby agrees to indemnify, defend, protect, save and
------
hold harmless Xxxxxx and its agents, officers, directors, employees,
successors, licensees, assignees and attorneys, from and against, any
and all Claims imposed on, incurred by, or asserted against Xxxxxx or
any of the foregoing individuals arising out of or related to a third
party claim that (i) the CTN Content infringes or violates any
copyright, trademark, patent or other intellectual property right of
any third party or are considered libelous or defamatory to a third
party; (ii) any CTN trademark, service xxxx, tradename or logo
provided by CTN for the Network infringes any copyright, trademark,
patent or other intellectual property right of any third party; (iii)
the Network and/or CTN's distribution of the same fails to comply with
any applicable laws, rules or regulations (except to the extent such
noncompliance relates solely to the Programs); (iv) any equipment or
installation activities related to the distribution and/or exhibition
of the Network caused any bodily injury and/or property damage; or (v)
CTN is in breach or alleged breach of any representation, warranty,
covenant or obligation by it contained in or made pursuant to this
Agreement.
X. Termination. This Agreement may be terminated as follows:
-----------
(a) By Either Party. Either Party may terminate this Agreement if the
---------------
other party is in material default in the performance of its material
obligations hereunder or in material breach of its representations,
warranties and/or covenants hereunder if
-9-
such default or breach remains uncured after receipt of thirty (30)
days' written notice from the non-defaulting party.
(b) By Xxxxxx. Xxxxxx may terminate this Agreement:
---------
(i) on ninety (90) days prior written notice to CTN if the quality
and/or content of the CTN Content or the advertising included on
the Network significantly deteriorates from the current quality,
or if the operations of the Network are significantly below the
level of the current operations, so as to have a material adverse
affect on the goodwill of Xxxxxx or one of its programming
affiliates. For purposes of this Paragraph, significant
deterioration in quality and/or content of the CTN Content shall
mean changes that are objectionable such that colleges and
universities are canceling their affiliation with CTN and which
are materially below the quality of any programming currently
being provided by Xxxxxx or one of its programming affiliates; or
(ii) on ninety (90) days written notice to CTN in the event of a
proposed CTN assignment to a Xxxxxx "Competitor" as defined in
Paragraph XII(g) below.
(c) By CTN. CTN may terminate this Agreement:
------
(i) on ninety (90) days written notice to Xxxxxx if the quality
and/or content of the Programs (taken as a whole in each case)
delivered by Xxxxxx significantly deteriorates from the current
quality of the Programs. For purposes of this Paragraph,
significant deterioration in quality of the Programs shall mean
changes that are materially below the quality of any programming
currently being provided by Xxxxxx or one of its news programming
affiliates; or
(ii) upon the effective date of any sale or other disposition of
substantially all of the CTN assets or CTN stock to any third
party or the merger of CTN with any third party entity
unaffiliated with CTN, by ninety (90) days prior written notice
to Xxxxxx, provided that, CTN pays Xxxxxx an aggregate amount
equal to nine (9) monthly payments at the applicable Fee rate for
the period commencing on the effective date of termination or the
amount representing the unpaid portion of the aggregate Fee
payable through expiration of the Term, whichever is less. It is
expressly agreed that such amount shall be deemed to be
liquidated damages, not a penalty, for CTN's early termination of
this Agreement. It is further expressly agreed and understood
that Xxxxxx shall have no production or other obligations to CTN
as of the effective termination date.
(d) Effect. In the event of termination of this Agreement by Xxxxxx for a
------
CTN breach or pursuant to Paragraph X(b)(i) above, Xxxxxx shall (in
addition to its other legal
-10-
and equitable rights and remedies available) be entitled to receive
payment for all outstanding costs and expenses incurred by Xxxxxx in
connection with producing the Programs to date, as well as all actual
out-of-pocket closing costs associated with terminating production and
delivery of the Programs to CTN (such costs to include, without
limitation, severance payments, if necessary, in accordance with
Xxxxxx standard policies, and remaining capital costs outstanding),
upon presentment of proper documentation; provided, however, that in
no event shall CTN's payment pursuant to this provision exceed the
amount representing the unpaid portion of the aggregate Fee payable
through expiration of the Term. It is expressly understood and agreed
that such payment shall be deemed to be liquidated damages, not a
penalty, for CTN's failure to fulfill its obligations hereunder.
XI. Non-Compete. During the term of this Agreement, Xxxxxx agrees that it will
-----------
not provide a customized news product developed specifically for college
students to any college or university for exhibition on a place-based
television network or program service that is directly or indirectly
competitive with the Network. Without modifying the foregoing, it is
expressly understood and agreed that the delivery of Xxxxxx-affiliated
programming services to colleges and universities in the normal course of
business without further customization shall not violate the foregoing
covenant. Furthermore, Xxxxxx'x non-compete shall continue for a period of
six (6) months following any termination of this Agreement by CTN as a
result of a material breach by Xxxxxx or pursuant to Paragraph X(c)(i) of
this Agreement.
XII. General Provisions
------------------
(a) Force Majeure. Neither party shall be liable to the other for any
-------------
failure to perform under this Agreement caused by or due to an event
of force majeure, such as any act of God, inevitable accident, fire,
lockout, strike or other labor dispute, riot or civil commotion, act
of public enemy, failure of transportation facilities, enactment,
rule, order or act of government or governmental instrumentality
(whether domestic or international and whether federal, state or
local, or the international equivalent thereof), failure of technical
facilities, including satellite failures or feed failures, or any
other cause of any nature whatsoever beyond the control of the Parties
hereto which was not avoidable.
(b) Notices. All notices which either party hereto is required or may
-------
desire to give to the other party hereunder shall be in writing and
shall be given either by personal delivery (including by means of
overnight delivery services), telegram, telex (toll prepaid), telecopy
or other electronic means with confirmation of delivery or by
registered or certified mail (postage prepaid). Such notices shall be
deemed given on the date delivered, telegraphed, telexed, telecopied
or otherwise delivered by electronic means or, if mailed, on the date
received. Until further notice in accordance with this provision, all
notices given hereunder shall be addressed to Turner and CTN as
follows:
-11-
TO TURNER:
---------
Xxxxxx Private Networks, Inc.
Ms. Xxxxxxx Xxxxxx
Xxx XXX Xxxxxx
Xxx 000000
Xxxxxxx, Xxxxxxx 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
cc: Office of the General Counsel
Xxxxxx Broadcasting System, Inc.
One XXX Xxxxxx, 00 Xxxxx
X.X. Xxx 000000
Xxxxxxx, Xxxxxxx 30348-5366
Attn.: General Counsel
Telephone (000) 000-0000
Facsimile (000) 000-0000
TO CTN:
------
College Television Network, Inc.
0000 Xxxx Xxxxxxx Xxxxx
Xxxxx 000
Xxxxxxx, Xxxxxxx 00000
Attn.: Xx. Xxxxx Xxxxx
Telephone (000) 000-0000
Facsimile (000) 000-0000
cc: Xxxx X. Xxxxxxx, Esq.
Xxxxxx, Xxxxxxx & Xxxxxx, L.L.P.
1600 Atlanta Financial Center
0000 Xxxxxxxxx Xxxx, XX
Xxxxxxx, Xxxxxxx 00000
Telephone (000) 000-0000
Facsimile (000) 000-0000
(c) Severability. Nothing contained in this Agreement shall be construed
------------
to require the commission of any act contrary to law, statute,
ordinance, order or regulation, and wherever there is any conflict
between any provision of this Agreement and any of the foregoing,
contrary to which the Parties hereto have no legal right to contract,
such law, statute, ordinance, order or regulation shall prevail;
provided, however, in such event: (a) the provision of this Agreement
so affected shall be limited only to the extent necessary to permit
compliance with the minimum legal requirement; (b) no other provisions
of this Agreement shall be affected thereby; and (c) all such other
provisions shall continue in full force and effect. The
-12-
Parties shall negotiate in good faith to replace any invalid, illegal
or unenforceable provision with a valid provision, the effect of which
comes as close as possible to that of such invalid, illegal or
unenforceable provision.
(d) Further Documents. Each party hereto shall execute any and all
-----------------
further instruments which either party may deem reasonably necessary,
desirable or proper to carry out the purposes of this Agreement.
(e) Prior Agreements, Waivers, Paragraph Headings, Modification. This
-----------------------------------------------------------
Agreement supersedes all prior agreements and understandings between
the Parties hereto, whether oral or written, pertaining to the subject
matter hereof No waiver of any term or condition of this Agreement
shall be construed as a waiver of any other term or condition hereof,
nor shall any waiver of any default under this Agreement be construed
as a waiver of any other default hereunder. The descriptive headings
of the paragraphs of this Agreement are for convenience only and do
not constitute a part of this Agreement. This Agreement may be
modified only by a written instrument executed by the Parties hereto.
(f) Governing Law. This Agreement shall in all respects be governed by,
-------------
and construed in accordance with, the laws of the State of Georgia
applicable to contracts.
(g) Assignments. Neither Party shall voluntarily assign any of its rights
-----------
or obligations hereunder, without the prior written consent of the
other party; however, in the event of a merger or a sale of all or
substantially all of the assets or stock by a Party or its
shareholders, such Party may assign this Agreement to such entity
without the prior approval of the other Party upon ninety (90) days
advance written notice to the other Party and subject to the other
Party's termination right hereunder if the proposed assignee is a
"Competitor." For purposes of this provision and the termination
right, a "Competitor" shall be defined as any entity reasonably deemed
to compete with the primary business of CTN, in the case of a Xxxxxx
assignment, or any entity in the business of providing national news
and/or sports programming in the United States, in the case of a CTN
assignment. Any attempted assignment, delegation or transfer in
derogation hereof shall be null and void. Subject to the foregoing,
this Agreement shall be binding upon the successors and assigns of the
Parties.
(h) Confidentiality. During the term of this Agreement and for a period
---------------
of three (3) years thereafter, neither CTN nor Xxxxxx shall disclose
to any third party any information regarding the terms and conditions
of this Agreement or any other confidential, non-public information
disclosed by a party to the other party during the Term, except: (i)
to the minimum extent necessary to comply with the law or valid court
order; (ii) as part of its normal reporting or review procedure to its
board members, shareholders, lenders, auditors and attorneys; or (iii)
in order to enforce its rights or perform its obligations under this
Agreement.
-13-
(i) Publicity. Any information released to the public regarding this
---------
Agreement or the matters covered hereby, including, without
limitation, press releases, must be agreed upon and approved by both
Parties in writing in advance as to timing, content and the necessity
therefor. Notwithstanding the foregoing, each Party may disclose
information related to this Agreement to its owners or investors as
required under applicable securities laws.
(j) Survival. All representations, warranties and indemnities contained
--------
herein or made by either party in connection herewith shall survive
the execution, delivery, suspension, expiration and termination of
this Agreement or any provision hereof.
(k) Relationship of Parties. Nothing herein shall be deemed to create an
-----------------------
employment, joint venture, agency or partnership relationship between
the parties hereto. The Parties hereto acknowledge and represent that
they are independent contractors with respect to each other.
COLLEGE TELEVISION NETWORK, INC. XXXXXX PRIVATE NETWORKS, INC.
By: /s/ Xxxxx Xxxxx By: /s/ Xxxxxxx Xxxxxx
---------------------------- --------------------------
Title: Chief Executive Officer Title: Senior Vice President
-14-
EXHIBIT "A"
DELIVERY SCHEDULE
It is understood that Xxxxxx shall, on average, provide 154 Programs per
school year. Such Programs shall be provided for each non-holiday school day.
It is understood and agreed that no Programs shall be produced or delivered
during the months of June or July of any year of the Term. Delivery shall begin
in mid-August and continue through Mid-May (with the exception of holiday
breaks), with exact dates to be agreed upon by the parties. Delivery of each
Program is currently scheduled to take place on the day before the scheduled air
date; such time may be changed by the mutual agreement of the Parties.
Specifically, after the Interim Period, Xxxxxx will use commercially reasonable
efforts to deliver one (1) general news segment and one (1) sports segment each
morning for exhibition that afternoon on the Network, with the remaining general
news segment and sports segment to be delivered that afternoon for exhibition
the following morning on the Network.
-15-
SCHEDULE 1
CTN EQUIPMENT
See Attached
-16-
. Goldstar VGA monitor model 1423 Plus, s/n MC-30901684
. SONY video monitor model PVM-1350, s/n 2000927
. SONY video cassette player model UVW-1600, s/n 10827
. Optimus stereo amplified speakers
. Xxxxxx four-input A/V switcher
. Xxxxxx one-to-three video distribution amplifier
. Cisco 2524 router with DSU/CSU T1 module, 14ft RJ45 patch cable
. Xxxxx Systems Match Box impedance matching interface adapter
. IBM Server 320 model 8640 OYO, s/n 2363527
1.2 GB Quantum Fireball hard drive
Optibase MPEG Lab Suite Encoder, s/n 1500694
Keyboard and Mouse
Optibase PCMotion Decoder, s/n 1251801
Artisoft AE-2 Ethernet controller card
IBM 14.4 modem
Xxxxxx DirecPC adapter, s/n 027008
Diamond Stealth 64 VGA adapter
BusLogic PCI SCSI-2 adapter
9 GB Micropolis hard drive model 1991 AV
2 GB Micropolis hard drive model 3221 AV
Colorado Jumbo 250 QIC-80 tape drive
Pioneer 4X CD-ROM drive, IDE interface
. Mastercom Audio Interactive, Stereo MultiBand, Dynamics Processor Model MDX
4000, s/n 61139825
-17-
