EXHIBIT 10.2
April 17, 1995
PRIMARY TELEVISION AFFILIATION AGREEMENT
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▇▇▇▇▇▇ Broadcasting Inc.
TELEVISION STATION: KATU - Portland, Oregon
Gentlemen:
The following shall constitute the agreement between American Broadcasting
Companies, Inc. ("ABC" or "we") and ▇▇▇▇▇▇ Broadcasting Inc. ("you"), in order
that your station may continue to serve the public interest, convenience and
necessity. We and you hereby mutually agree upon the following plan of network
cooperation which shall replace, effective September 1, 1994, the affiliation
agreement between you and us dated May 31, 1989, as amended:
I. NETWORK AFFILIATION AND PROGRAM SERVICE
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A. PRIMARY AFFILIATION. You agree to serve as our primary affiliate to
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broadcast Network Television Programs, in the community to which your station is
licensed by the Federal Communications Commission, subject to the conditions and
limitations set forth herein. As used in this Agreement, Network Television
Programs means television programs which are part of the network schedule for
the then current September to September television season, broadcast on a
national television basis and in the time period established for such broadcast
by ABC. (Network Television Programs will also be referred to herein as "network
programs," "television programs," "programs" or "programming" or in the singular
of such terms.)
B. FIRST CALL RIGHTS. To enable you to serve as our primary affiliate,
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we agree to offer you first call on the right to broadcast Network Television
Programs, in the time period established by ABC for their broadcast, in the
community to which your station is licensed by the Federal Communications
Commission ("First Call Rights"), for reception by the general public in places
to which no admission is charged. Notwithstanding the foregoing, ABC shall have
the right to authorize any television broadcasting station, regardless of the
community to which it is licensed by the FCC, to broadcast any network
presentation of a subject we deem to be of immediate national significance
including, but not limited to, a Presidential address.
1. You agree that, within 15 days of the date of our offer of a First
Call Right to a regularly scheduled network program, you will advise us of your
acceptance (if requested to do so by the terms of our offer) or rejection. With
respect to any network program not regularly scheduled, you will advise us of
your acceptance or rejection of our offer of a First Call night within 72 hours
(exclusive of Saturdays, Sundays and holidays) after such offer has been
received at your station. However, if the first broadcast referred to in our
offer is scheduled to
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occur within less than 15 days after the date of our offer with respect to
regularly scheduled network programs or less than 72 hours after our offer has
been received at your station with respect to network programs not regularly
scheduled, you shall notify us of your acceptance or rejection of such offer as
promptly as possible, but in no event after the first broadcast time specified
in such offer. Acceptance by you of our offer of a First Call Right shall
constitute your agreement to broadcast subject network program in accordance
with the terms of this Agreement and of our offer to you. As an ABC primary
affiliate, you are obligated to accept the substantial majority of the ABC
network programs offered to you, provided, that the obligation does not apply to
network programming offered to you above the level of such programming offered
to ABC affiliates generally on the effective date of this Agreement. Your
failure to do so shall constitute a material breach of this Agreement entitling
ABC, in addition to all other remedies, to terminate this Agreement on fourteen
(14) days written notice to you.
2. You will be offered "First Call Rights" with respect to:
a. Network Sponsored Programs. "Network sponsored programs", as used in
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this Agreement, shall mean those Network Television Programs which contain
one or more commercial announcements paid for by or on behalf of one or
more ABC Network advertisers.
You agree to broadcast network sponsored programs in their entirety,
including but not limited to the network commercial announcements ordered
for your station, network identifications, program promotional material or
credit announcements contained in such programs which you accept, without
interruption or deletion or addition of any kind. Notwithstanding the
foregoing, you may substitute other ABC Network promotional announcements
in lieu of program promotional material which is inaccurate as it pertains
to your station. It is also understood that no commercial announcement,
promotional announcement or public service announcement will be broadcast
by you during any interval within a network program designated by ABC as
being for the sole purpose of making a station identification announcement.
b. Network Sustaining, Cooperative and Spot Carrier Programs.
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i) We will from time to time offer you live or recorded Network
Television Programs identified as sustaining programs, cooperative
programs or spot carrier programs. Except as set forth below in
subparagraphs (ii) and (iii), you agree to broadcast such programs
which you accept in their entirety without interruption or deletion or
addition of any kind.
ii) The network sustaining programs which we may offer to you may not,
without our prior written consent, be sold by your station for
commercial sponsorship or interrupted for commercial announcements or
used for any purpose other than sustaining broadcasting.
iii) You may carry the cooperative or spot carrier programs on the same
basis as regular sustaining programs or you may offer them for
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commercial sponsorship on terms and conditions specified by us at the
time such programs are offered to you.
C. PROGRAM DELIVERY. By means satisfactory to us, we will arrange, at our
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own expense, for programs to be delivered to your station.
II. TERM
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This agreement shall become effective at 3:00 AM, NYT, on the lst day of
September, 1994, and shall continue until 3:00 AM, NYT, on the 1st day of
September, 2004.
III. NETWORK STATION COMPENSATION
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Your compensation will be determined by the formula set forth in Schedule
A attached hereto and made a part hereof.
A. Your network station rate, the table of daypart percentages and the
network weekly deduction set forth in Schedule A (respectively, the "Original
Network Station Rate," the "Original Percentages" and the "Original Network
Deduction") shall be used to calculate your compensation provided that the
following conditions are satisfied:
1. Your station will maintain the same level of clearances of ABC
network programs as it did in the 1993-1994 television season (i.e., the last
two quarters of 1993 and the first two quarters of 1994).
2. Your station's preemption levels for network prime-time and sports
programming will not exceed one hundred (100) half hours for each year (measured
from September 1 to August 31 of the following year) during the term of this
Agreement.
3. Nightline will be regularly scheduled to clear on a "live" basis.
B. 1. If you fail to satisfy any of the conditions set forth in paragraph
A of this Section, and we give you written notice of such failure, you shall
have ninety (90) days from receipt of such notice to return to complying fully
with such conditions. If at the end of such ninety (90) day period, you fail to
return to complying fully with such conditions, in addition to the remedy set
out in paragraph C of this Section, we will have the right then and periodically
thereafter to reevaluate and change (a) your station's network station rate, (b)
the percentages set forth in the Table in Schedule A, or (c) your station's
network weekly deduction, by notice to you in writing to such effect. If the
effect of such changes, alone or in combination with any other previous such
changes, would be to decrease your annual network compensation under Schedule A,
using the Original Network Station Rate, the Original Percentages and the
Original Network Deduction, by more than 25%, you may, if you so elect,
terminate this Agreement by giving us prior written notification within forty-
five (45) days after the date of our notice to you, provided
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that such termination will not be effective less than one hundred twenty (120)
days after your notice is received by us.
If after your compensation has been reduced in accordance with
paragraph B(1) of this Section, you thereafter return to complying fully with
all of the conditions set forth in paragraph A of this Section, your
compensation will (subject to the rights reserved to us under paragraphs B(1)
and C of this Section) be calculated by using the Original Network Station Rate,
the Original Percentages and the Original Network Deduction.
C. Your Original Network Station Rate will be increased if the aggregate
annual compensation paid by us to all ABC primary affiliates (not including
payments by us under any bonus compensation programs in force during the term of
this Agreement) (the "Aggregate Affiliate Compensation"), calculated annually
for the period January 1 through December 31 beginning for the year ending
December 31, 1996, exceeds by more than fifteen percent (15%) the Aggregate
Affiliate Compensation paid during the year ending December 31, 1995 (the "1995
Compensation"). In that event, your Original Network Station Rate will be
increased, effective January 1 of the same year, by the percent difference
between the 1995 Compensation and the most recently calculated Aggregate
Affiliate Compensation minus fifteen percent (15%) (and minus any previous
increase made to your Original Network Station Rate under this subparagraph).
D. If you fail at any time to satisfy any of the conditions set forth in
paragraph A of this Section, and we give you written notice of such failure, you
shall have ninety (90) days from receipt of such notice to return to complying
fully with such conditions. If by the end of such ninety (90) day period, you
fail to return to complying fully with such conditions, we shall have the right,
in our sole discretion, in addition to the remedy set forth in paragraph B of
this Section, to terminate this Agreement upon no less than two hundred seventy
(270) days written notice to you.
IV. NETWORK NON-DUPLICATION PROTECTION
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You shall be entitled to network non-duplication protection provided as and
to the extent set forth in Rider One to this Agreement, which is attached hereto
and made a part hereof.
V. CUT-IN ANNOUNCEMENTS AND LOCAL TAG SERVICES
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A. CUT-IN ANNOUNCEMENTS. "Cut-In Announcements", as used herein, shall
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mean the substitution of a special commercial in place of a regularly
scheduled network commercial.
1. Upon at least twenty-four (24) hours' notice, you shall, at our
request, furnish such personnel and equipment as may be necessary to (a)
broadcast cut-in announcements from your station alone, or (b) originate from
your station cut-in announcements to one or more other stations, without regard
to whether or not your station is requested to broadcast said cut-in
announcement(s) . Notwithstanding anything contained in this Agreement, you may
refuse to broadcast any such cut-in announcement in the community to which your
station is licensed by the FCC if, in your opinion, it is not in the public
interest, convenience or necessity, but you shall
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nevertheless furnish such personnel and equipment as may be necessary to
originate such cut-in announcements from your station to one or more other
stations.
2. Cut-in announcements shall be broadcast only when authorized by
us and then only in accordance with the instructions furnished to you. You will
be supplied, as promptly as possible, with the material and instructions for
these announcements.
3. We may cancel any order for cut-in announcements without
liability on our part, provided we do so upon not less than twenty-four (24)
hours' notice to you, failing which, we will pay you the compensation you would
have received if the announcements had continued as scheduled for twenty-four
(24) hours following receipt by you of such notice of cancellation.
4. For each program during which such cut-in announcements are
included, we shall pay you in accordance with the applicable table set forth in
Schedule B hereto and hereby made a part hereof.
B. LOCAL TAG SERVICES. "Local Tag Announcements", as used herein, shall
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mean a visual commercial announcement, made by you on behalf of a local dealer
of a network advertiser, not exceeding ten seconds of a one-minute network
commercial announcement or five seconds of a thirty-second network commercial
announcement projected by means of a slide and not utilizing more than two (2)
slides.
1. Upon at least twenty-four (24) hours, notice, you shall, at our
request, furnish such personnel and equipment as may be necessary to broadcast
"local tag announcements".
2. Local tag announcements shall be broadcast in accordance with
our instructions. The network advertiser shall supply to you or purchase from
you, as promptly as possible, the slide(s) for each local tag announcement.
Local tag announcements shall not be accompanied by oral announcements unless
the network advertiser shall make direct requests of you therefor and shall have
assumed sole responsibility for payment of such oral announcements.
3. We may cancel any order for local tag announcements without
liability on our part provided we do so upon not less than twenty-four (24)
hours, notice to you, failing which we will pay you the compensation you would
have received if the local tag announcements had continued as scheduled for
twenty-four (24) hours following receipt by you of such notice of cancellation.
4. For each local tag announcement which you broadcast, we shall
compensate you in accordance with the applicable table set forth in Schedule B
hereto and hereby made a part hereof.
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VI. GENERAL
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A. We may at any time, upon notice to you, substitute for any scheduled
network program another network program, except that if such other network
program in our judgment involves a special event of public interest or
importance, no such notice is required. No compensation will be paid to you for
the scheduled program or for the substitute program unless such substitute
program is a network sponsored program in which event you shall be compensated
in accordance with the terms or formula, whichever is applicable, set forth in
Schedule A hereof.
B. Nothing contained in this Agreement shall be construed to prevent or
hinder us, at any time upon notice to you as soon as practicable, from canceling
one or more network programs, whether sponsored or sustaining, in which event
you shall receive no compensation for any such canceled network sponsored
program(s).
C. With respect to network programs offered or already accepted pursuant
to this Agreement, nothing herein contained shall be construed to prevent or
hinder you from exercising your rights under Federal Communications Commission
rules to:
1) reject or refuse network programs which you reasonably believe to be
unsatisfactory, unsuitable or contrary to the public interest; or
2) substitute a program, which in your good faith opinion, is of greater
local or national importance, including, but not limited to, coverage of
news events and local public affairs programming.
We shall not compensate you for any such program you have refused or rejected or
for which you have substituted a program which is of greater local or national
importance. With respect to programs already accepted hereunder, you shall give
us prompt notice of any such refusal, rejection or substitution no later than
fourteen (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), in which case you agree to give
us as much advance notice as possible under the circumstances. Such notice
shall include a statement of the reason(s) you believe that a rejected or
refused network program is unsatisfactory, unsuitable or contrary to the public
interest, and/or that a substituted program is of greater local or national
importance.
In addition to all other remedies, we shall have the right, upon thirty
(30) days' notice, to terminate your "First Call Rights" on a series of Network
programs already accepted hereunder and withdraw all future episodes of that
series if one or more individual program episode(s) of such series is preempted
by you for any reason other than those set forth in (a) and (b) above.
We shall also have the right, upon thirty (30) days' notice, to terminate
your "First Call Rights" concerning a series of Network programs already
accepted hereunder and to withdraw all future episodes of that series if three
or more individual program episodes of such series are pre-empted by you in any
thirteen-week period, whether or not such pre-emptions are for the reasons
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set forth in (a) and (b) above. Such thirteen-week periods shall be measured
consecutively from the first broadcast date of the program series in question.
We reserve the right not to offer you the "First Call Rights" for the next
broadcast season on any series of Network program as to which we have terminated
your "First Call Rights" and withdrawn future episodes of that series pursuant
to this Paragraph and which has been placed by ABC on another station serving
your market.
D. You will submit to us in writing, upon forms provided by us for
that purpose, such reports covering network programs broadcast by your station
as ABC may request from time to time. To verify your carriage of network
commercial announcements, identifications and program promotional material, we
may require delivery by you, within five (5) days of our request, of copies of
your official station logs, air checks or broadcast tapes.
E. Neither you nor we shall incur any liability hereunder because of
our failure to deliver, or your failure to broadcast, any or all network
programs due to:
(1) failure of facilities
(2) labor disputes, or
(3) causes beyond the control of the party so failing to deliver
or broadcast.
F. You agree to notify us of any application made to the Federal
Communications Commission to modify your station's transmitter location, power,
frequency or hours of operation within ten (10) days of the filing of such
application. In the event that the transmitter location, power, frequency or
hours of operation of your station are changed permanently at any time so that
your station is of less value to us as a network outlet than it is as of the
effective date of this agreement, including but not limited to, as a result of
additional overlap of your station's broadcast signal with that of another ABC
affiliate, we will have the right to terminate this Agreement upon thirty (30)
days, advance written notice.
G. Unless we exercise our right of termination set forth in this
paragraph, this Agreement shall be binding on any assignee or transferee of your
station's license. You agree not to assign or to transfer any of the rights or
privileges granted to you under this Agreement without our prior consent in
writing, which consent shall not be unreasonably withheld. You also agree that
if any application is made to the Federal Communications Commission pertaining
to an assignment or a transfer of control of your license, or any interest
therein, you shall notify us in writing immediately of the filing of such
application. Except as to assignments or transfers of control comprehended by
Section 73.3540(f) of the Rules and Regulations of the Federal Communications
Commission, we shall have the unilateral right to terminate this Agreement
effective as of the effective date of any assignment or transfer of control
(voluntary or involuntary) of your license or any interest therein, provided ABC
shall have given you notice in writing of such termination within thirty (30)
days after we have been advised that such application for assignment or transfer
has been filed with the Federal Communications Commission. If you fail to notify
us of the assignment or transfer of control of your station's license, we shall
have the unilateral right, as a non-exclusive remedy, to terminate this
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Agreement within thirty (30) days of receiving notice of said assignment or
transfer or control. We shall not seek to renegotiate this Agreement or to
impose upon the proposed assignee or transferee any obligations or standards of
performance not provided in this Agreement as a condition to ABC's consent to
the assignment or transfer of the rights and privileges granted to you under
this Agreement.
If ABC elects not to accept the proposed assignee or transferee, then
ABC shall give you notice of termination as set forth above and such termination
shall be effective upon the effective date of the assignment or transfer of
control of your station's license to such assignee or transferee. If ABC elects
to accept the proposed assignee or transferee, you agree that you shall not
consummate any assignment or transfer of control of your station's license until
you have procured and delivered to us, in form satisfactory to us, the
acknowledgment of the proposed assignee or transferee that, upon consummation of
the assignment or transfer of control of your station's license, the assignee or
transferee will assume and perform this Agreement in its entirety without
limitation of any kind. You agree that in view of the uniqueness of the plan of
network cooperation set forth in this Agreement and the fact that money damages
would be inadequate to compensate ABC for the breach of your obligations
hereunder, in addition to all other remedies, ABC shall be entitled to obtain
equitable relief to enforce the obligations set forth in this paragraph.
H. Your rights under this Agreement are limited to the First Call Rights to
Network Television Programs pursuant to the terms herein. You agree not to
authorize, cause, permit or enable the use of any program which we supply to you
herein for any purpose other than broadcasting by your station pursuant to the
terms herein, in the community to which your station is licensed by the Federal
Communications Commission, for reception by the general public in places to
which no admission is charged. You agree when you are authorized to tape a
program for subsequent broadcast that the recording will be broadcast not more
than once in its entirety and will be erased within six (6) hours of use. All
rights not specifically granted to you by this Agreement shall be retained by
ABC.
I. Except with our prior written consent and except upon such terms and
conditions as we may impose, you agree not to authorize, cause, permit or enable
anything to be done whereby a recording on film, tape or otherwise is made or a
recording is broadcast, of a program which has been, or is being, broadcast on
our network, or a rebroadcast is made of the broadcast transmission of your
station during any hours when your station is broadcasting a program provided by
ABC.
J. With respect to any and all promotional material issued by you or under
your direction or control, you agree to abide by any and all restrictions of
which we advise you pertaining to the promotion of a network program(s)
scheduled to be broadcast by you in your community, including, but without
limitation, on-the-air promotion, billboards, and newspaper or other printed
advertisements, announcements or promotions.
K. You agree to maintain for your television station such licenses,
including performing rights licenses as now are or hereafter may be in general
use by television broadcasting stations and necessary for you to broadcast the
television programs which we furnish to you hereunder. we will clear all music
in the repertory of ASCAP and of BMI used in
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our network programs, thereby licensing the broadcasting of such music in such
programs over your station. You will be responsible for all music license
requirements for any commercial or other material inserted by you within or
adjacent to our network programs in accordance with this agreement.
L. The furnishing of film or tape recorded programs hereunder is contingent
upon our ability to make arrangements satisfactory to us for the film or tape
recordings necessary to deliver the programs to you. Such film or tape recorded
programs shall be used only for a single television broadcast over your station.
Positive prints of film or tape recorded programs are to be shipped by us,
shipping charges prepaid, and you agree to return to us or to forward to such
television station as we designate, shipping charges prepaid, each print or copy
of said film or tape recording received by you hereunder, together with the
original reels and containers furnished therewith. You will return or forward
all prints in the same condition as received by you, ordinary wear and tear
excepted, immediately after a single TV broadcast over your station. In the
event you damage a print of any film or tape recorded program which is delivered
to you, or fail to return or forward the original reels and containers furnished
therewith, as aforesaid, you agree to pay the cost of replacing the complete
print, original reels and/or containers as and when billed by us.
M. No inducements, representations or warranties except as specifically set
forth herein have been made by any of the parties to this Agreement. This
Agreement constitutes the entire contract between the parties hereto and no
provision thereof shall be changed or modified, nor shall this Agreement be
discharged in whole or in part, except by an agreement in writing, signed by the
party against whom the change, modification or discharge is claimed or sought to
be enforced; nor shall any waiver of any of the conditions or provisions of this
Agreement be effective and binding unless such waiver shall be in writing and
signed by the party against whom the waiver is asserted, and no waiver of any
provision of this Agreement shall be deemed to be a waiver of any preceding or
succeeding breach of the same or of any other provision.
N. All notices, demands, requests or other communications which may be or
are required to be given or made by ABC or you pursuant to this Agreement
(except for our program offers and your notices of acceptance or rejection, if
required, of such offers and any other program information or program
administration communications) shall be delivered (postage or fee prepaid) by
first-class mail, express mail, express delivery service or by facsimile
transmission addressed as follows:
(a) If to you:
▇▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇
President and Chief Executive Officer
▇▇▇▇▇▇ Broadcasting Inc.
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Phone: ▇▇▇-▇▇▇-▇▇▇▇ / Fax: ▇▇▇-▇▇▇-▇▇▇▇
with copies (which shall not constitute notice) to:
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▇▇▇▇▇▇ Companies Inc.
Attn.: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇, ▇▇.
President and Chief Executive Officer
▇▇▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Phone: ▇▇▇-▇▇▇-▇▇▇▇ / Fax: ▇▇▇-▇▇▇-▇▇▇▇
▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇, Esq.
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Leader & ▇▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇., ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Phone: ▇▇▇-▇▇▇-▇▇▇▇ / Fax: ▇▇▇-▇▇▇-▇▇▇▇
(b) If to ABC:
▇▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Senior Vice President
Affiliate Relations
ABC Television Network
▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Phone: ▇▇▇-▇▇▇-▇▇▇▇ / Fax: ▇▇▇-▇▇▇-▇▇▇▇
with a copy (which shall not constitute notice) to:
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, Esq.
Capital Cities/ABC, Inc.
Law & Regulation Department
▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Phone: ▇▇▇-▇▇▇-▇▇▇▇ / Fax: ▇▇▇-▇▇▇-▇▇▇▇
or to such other person, address or facsimile number as you or ABC may
designate by written notice.
O. This Agreement and all questions relating to its validity,
interpretation, performance, and enforcement (including, without limitation,
provisions concerning limitations of action), shall be governed by and
construed in accordance with the laws of the State of New York, notwithstanding
conflict-of-laws doctrines of any state or other jurisdictions to the contrary.
P. Upon termination of this Agreement, the consent theretofore granted to
broadcast our network programs or use ABC logos or trademarks shall be deemed
immediately withdrawn and you shall have no further rights of any nature
whatsoever in such programs, logos or trademarks.
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Q. We mutually acknowledge that, in view of the uniqueness of the plan of
network cooperation set forth in this Agreement, in the event that the
obligations of either party under this Agreement are not performed in accordance
with its terms, the other party would not have an adequate remedy at law and
therefore agree that any aggrieved party shall be entitled to specific
performance of the terms hereof in addition to any other remedy to which it may
be entitled at law or in equity.
R. You agree to indemnify and hold ABC and its parent corporation,
subsidiaries and their respective officers, directors, agents and employees,
successors and assigns harmless from and against any and all claims made against
us and all damages, liabilities, costs and expenses incurred as a result of such
claims, including reasonable attorney's fees, arising out of the broadcast by
ABC of any material supplied by you to ABC in accordance with this Agreement,
and we agree to indemnify and hold you and your parent corporation, subsidiaries
and their respective officers, directors, agents and employees, successors and
assigns harmless from and against any and all claims made against you and all
damages, liabilities, costs and expenses incurred as a result of such claims,
including reasonable attorney's fees, arising out of the broadcast by you of any
material provided by ABC to you in accordance with this Agreement. It is
understood that the foregoing indemnities shall apply only with respect to
materials that are broadcast without change from the form and content in which
such materials were originally provided and in strict conformance to any
instructions or limitations given by the party providing the material. The
parties also agree to indemnify and hold harmless the other, as well as their
parent companies, subsidiaries, officers, directors, agents and employees,
successors and assigns, from and against any and all claims, or portion thereof,
made and all damages, liabilities, costs and expenses incurred including
reasonable attorneys fees, arising exclusively out of or solely as a result of
any material editing, lead-ins, or other contextual changes made to such
material without the consent of the originating party. Each party will notify
the other promptly of any litigation or claim to which such indemnity applies
and will cooperate fully in the defense at the other party's request. The
provisions of this paragraph shall survive the expiration or sooner termination
of this Agreement.
S. Nothing in this Agreement shall create any partnership, association,
joint venture, fiduciary or agency relationship between ABC and you.
If, after examination, you find that the arrangement herein proposed is
satisfactory to you, please indicate your acceptance on the copy of this letter
enclosed for that purpose and return that copy to us.
Very sincerely yours,
AMERICAN BROADCASTING COMPANIES, INC.
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
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Accepted this 21st day of
April, 1995
Licensee: ▇▇▇▇▇▇ Broadcasting Inc.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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Title: ▇▇▇▇▇▇ Broadcasting Inc., President & CEO
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RIDER ONE
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You shall be entitled to network non-duplication protection, as defined by
Rule 76.92 of the Federal Communications Commission Rules, as follows:
a. The geographic zone of network non-duplication protection shall be the
Area of Dominant Influence ("ADI") (as defined by Arbitron) in which your
station is located, or any lesser zone pursuant to any geographic
restrictions contained in the Federal Communications Commission rules and
regulations, now or as subsequently modified.
b. Network non-duplication protection shall extend to all ABC television
network programs that you broadcast in accordance with this Agreement.
Protection shall not extend to individually preempted programs of an
otherwise cleared series.
c. Network non-duplication protection shall begin 48 hours prior to the
live time period designated by us for broadcast of that network program by
your station, and shall end at 12:00 Midnight on the seventh day following
that designated time period.
You are under no obligation to exercise in whole or in part the network non-
duplication rights granted under this Agreement.
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SCHEDULE A
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STATION COMPENSATION
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(a) We will pay you within a reasonable period of time after the close of each
four or five week accounting period, as the case may be, for broadcasting
each network sponsored program or portion thereof hereunder, except those
specified in paragraph (b) hereof, which is broadcast over your station
during the live time period* therefor, the amount resulting from
multiplying the following:
(i) Your network station rate of $2,491.00 or such other rate
applicable pursuant to the terms of Section III of the
Agreement; by
(ii) the percentage set forth in the table below opposite such
applicable time period or such other percentage applicable
pursuant to the terms of Section III of the Agreement; by
(iii) the fraction of an hour substantially occupied by such
program or portion thereof; by
(iv) the fraction of the aggregate length of all commercial
availabilities** during such program or portion thereof
occupied by network commercial announcements***
* Live time period, as used herein, means the time period or
periods as specified by us in our initial offer of a network
program for the broadcast of such program over your station.
** Commercial availability, as used herein, means a period of time
made available by us during a network sponsored program for one
or more network commercial announcements or local cooperative
commercial announcements.
*** Network commercial announcement, as used herein, means a
commercial announcement broadcast over your station during a
commercial availability and paid for by or on behalf of one or
more of our network advertisers, not including, however,
announcements consisting of billboards, credits, public service
announcements, promotional announcements, and announcements
required by law.
For each network sponsored program or portion thereof, except those specified in
paragraph (b) hereof, which is broadcast by your station with our consent during
a time period other than the live time period therefor, we will pay you as if
your station had broadcast such program or portion thereof during such live time
period, except that:
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(i) if the percentage set forth above opposite the time period during
which your station broadcast such program or portion thereof is
less than that set forth opposite such live time period, then we
will pay you on the basis of the time period during which your
station broadcast such program or portion thereof.
(b) Payment For Other Programs
--------------------------
We will establish such compensation arrangements as we and you shall agree upon
prior to the expiration of the applicable periods of time for program
acceptance, as set forth in Paragraph I(B) of this affiliation agreement, for
all network sponsored programs broadcast by your station consisting of:
(i) Sports programs;
(ii) special events programs (including, but not limited to, special
news programs, awards programs, entertainment specials and
miniseries);
(iii) programs for which we specified a live time period, which time
period straddles any of the time period categories in the table
in paragraph (a) above; and
(iv) any other programs which we may designate from time to time.
(c) Deductions
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(i) From the amounts we are to pay you for station compensation
hereunder, we shall throughout the term of this affiliation
agreement deduct during each accounting period a sum equal to
168% of your station's network rate, or such other percentage
applicable pursuant to the terms of Section III of the
Agreement, for each week of said period.
(ii) We will deduct a sum equal to the total of whatever fees, if
any, may have mutually been agreed upon by you and us with
respect to local cooperative commercial announcements broadcast
during the applicable accounting period for which your station
is being compensated.
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TABLE
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PACIFIC
MONDAY through FRIDAY
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Sign-on to 10:00 a.m. - 7%
10:00 a.m. to 12:00 N - 16.30%
12:00 N to 3:00 p.m. - 6%
3:00 p.m. to 8:00 p.m. - 10%
8:00 p.m. to 11:00 p.m. - 30%
11:00 p.m. to Sign-off - 15%
Saturday Sunday
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Sign-on to 9:00 AM - 5% Sign-on to 9:00 a.m. - 5%
9:00 AM to 2:00 PM - 8% 9:00 AM to 2:00 PM - 6%
2:00 PM to 6:00 PM - 15% 2:00 PM to 5:00 PM - 15%
6:00 PM to 8:00 PM - 10% 5:00 PM to 7:00 PM - 10%
8:00 PM to 11:00 PM - 30% 7:00 PM to 11:00 PM - 30%
11:00 PM to Sign-off - 15% 11:00 PM to Sign-off - 15%
All times in this paragraph are expressed in terms of your station's then
current local time.
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SCHEDULE B
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COMPENSATION FOR CUT-IN AND LOCAL TAG ANNOUNCEMENT(S)
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A. CUT-IN ANNOUNCEMENTS
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I. With respect to programs broadcast by you during the time period(s)
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specified by us in our initial offer for such programs.
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For each local cut-in announcement you broadcast within a program, which
program is broadcast during the time period(s) specified by us in our
initial offer for such program, we will pay you the amount resulting from
multiplying your network station rate (set forth in Section II of the
agreement) by the percentage for cut-in announcements) set forth in the
applicable Table in Section C below opposite such applicable time period.
II. With respect to programs broadcast by you with our consent during time
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period(s) other than that specified by us in our initial offer of such
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programs.
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For each local cut-in announcement you broadcast within a program, which
program is broadcast by you with our consent during a time period other
than that specified by us in our initial offer of such program, we will pay
you an amount as set forth in Section A.I. above, except that:
(i) if the percentage set forth in the applicable Table in
Section C below for cut-in announcement(s) opposite the time
period during which your station actually broadcast the program
in which you broadcast or originated such cut-in announcement(s)
is less than that set forth opposite the applicable time period
specified in our initial offer of such program, then we will pay
you for each cut-in announcement(s) on the basis of the time
period during which your station actually broadcast such
program.
III. With respect to programs broadcast by you in a time period which
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straddles any of the time period categories set forth in the applicable
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Table in Section C below.
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In the event that we offer you a program for broadcast in a time period
which straddles any of the time period categories set forth in the
applicable Table in Section C below, and you broadcast such program within
which you also broadcast or originate one or more cut-in announcements),
we will pay you such amounts as we and you shall have agreed upon prior to
your broadcast or origination of such cut-in announcement(s).
LOCAL TAG ANNOUNCEMENTS
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I. With respect to programs broadcast by you during the time period(s)
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specified by us in our initial offer for such programs.
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For each local tag announcement you broadcast within a program, which
program is broadcast during the time period(s) specified by us in our
initial offer for such program, we will pay you the amount resulting from
multiplying your network station rate (set forth in Section II of the
agreement) by the percentage for each local tag announcement set forth in
the applicable Table in Section C below opposite such applicable time
period.
II. With respect to programs broadcast by you with our consent during -time
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period(s) other than that specified by us in our initial offer of such
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programs.
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For each local tag announcement you broadcast within a program, which
program is broadcast by you with our consent during a time period other
than that specified by us in our initial offer of such program, we will pay
you an amount as set forth in Section B.I. above, except that:
(i) if the percentage set forth in the applicable Table in Section C
below for each local tag announcement opposite the time period during
which your station actually broadcast the program in which you
broadcast such local tag announcement is less than that set forth
opposite the applicable time period specified in our initial offer of
such program, then we will pay you for each local tag announcement on
the basis of the time period during which your station actually
broadcast such program.
III. With respect to programs broadcast by you in a time period-which straddles
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any of the time period categories set forth in the applicable Table in
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Section C below.
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In the event that we offer you a program for broadcast in a time period
which straddles any of the time period categories set forth in the
applicable Table in Section C below, and you broadcast such program within
which you also broadcast one or more local tag announcement (s) , we will
pay you such amounts as we and you shall have agreed upon prior to your
broadcast of such local tag announcement(s).
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C. COMPENSATION TABLE FOR CUT-IN OR LOCAL TAG ANNOUNCEMENTS
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Cut-In Announcements
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Monday through Sunday 6:00 p.m. to 11:00 p.m. - 18.75%
All other times - 7.50%
Local Tag Announcements
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Monday through Sunday 6:00 p.m. to 11:00 p.m. - 9.38%
All other times - 3.75%
All times in this paragraph are expressed in terms of your station's then-
current local time.
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