AMENDED AND RESTATED PROGRAM LICENSE AGREEMENT
This AMENDED AND RESTATED PROGRAM LICENSE AGREEMENT is
entered into as of October 1, 1996 by and between DENNEVAR B.V., a
Netherlands corporation, (hereinafter "Licensor") and THE UNIVISION NETWORK
LIMITED PARTNERSHIP, a Delaware limited partnership ("Licensee"), and amends
and restates that certain PROGRAM LICENSE AGREEMENT made as of the 17th day
of December, 1992 by and between Licensor and Licensee.
WHEREAS, Licensor has or will have rights in the United
States of America, including all territories and possessions thereof other
than Puerto Rico (the "Territory"), to license certain television programs in
the Spanish language or with Spanish subtitles produced by and to be produced
by CORPORACION VENEZOLANA DE TELEVISION, C.A. (VENEVISION) ("CVT") and other
entities controlled by CVT (CVT and all of the companies it controls, and
Licensor being hereinafter referred to collectively as "Venevision").
WHEREAS, Licensee operates the Univision Spanish language
television network and the Galavision Spanish language television network of
affiliated television broadcast stations and cable television systems (such
networks being hereinafter referred to as the "Networks" and those television
broadcast stations affiliated with such Networks that are now or hereafter
directly or indirectly majority owned and operated by Univision
Communications Inc. ("UCI") or a direct or indirect subsidiary of UCI or with
respect to which UCI or a direct or indirect subsidiary of UCI has the right
to designate a majority of the board or similar governing body, and in each
case, which broadcast in the Spanish language format being hereinafter
referred to as the "Stations") and desires to acquire the right to broadcast
certain of the programs produced, to be produced or otherwise marketed by
Licensor over the Networks in the Territory and Licensor is willing to grant
such a license upon the terms, provisions and conditions herein set forth.
WHEREAS, Univisa, Inc. ("Univisa") is simultaneously herewith
entering into an Amended and Restated Program License Agreement, dated as of
the date hereof (the "Univisa Agreement"), with the Licensee to license
certain television programming for broadcast over the Networks.
NOW, THEREFORE, in consideration of the mutual promises and
covenants herein contained, the parties hereto agree as follows:
1. RIGHT OF FIRST OFFER OF PROGRAMMING.
1.1 Pursuant to the terms and conditions hereof,
Licensor hereby grants Licensee the option to obtain an exclusive license for
the broadcast over the Networks in the Territory of all Programs (as
hereinafter defined). The option may be exercised as follows:
(a) First, Licensee will have a first option to
accept for exclusive license in the Territory, subject to all the other terms
and conditions of this Agreement: (i) Programs in an amount that, when
aggregated with Programs accepted pursuant to Section 1.1(a) of the Univisa
Agreement, will be sufficient to fill 18 hours of programming per day in
aggregate for the two Networks combined, and (ii) any news Programs.
(b) Second, Licensee will have a first option,
subject to all the other terms and conditions of this Agreement, to accept
for exclusive license in the Territory, any Programs in an amount which, when
aggregated with the amount of Programs accepted pursuant to paragraph (a)
above, will be sufficient to satisfy the representation and warranty included
in Section 7.3 hereof.
1.2 For purposes of this Agreement only:
(a) "Programs" means (i) programs initially
produced in the Spanish language or programs with Spanish subtitles produced
by third parties or co-produced by Venevision with third parties to which
Venevision owns sole television broadcast rights in the Territory (and which
is not a Co-Produced Program (as defined below)); (ii) all television
programs in the Spanish language or programs with Spanish subtitles,
previously produced directly or indirectly by or for Venevision and to be
produced directly or indirectly by or for Venevision for broadcast at any
time to which Venevision or Licensor owns television broadcast rights in the
Territory and which are available for broadcast including, without
limitation, in the following categories: novelas, musicals, variety shows,
situation comedies, game shows, talk shows, children's shows, news shows,
cultural and educational programs, and sports programs; and (iii) movies
produced by Venevision and for which Venevision or Licensor owns the
television broadcast rights in the Territory, from and after the time that
such movies become available for free television broadcast in the Territory.
Each Program shall be available for license to Licensee in the Territory
pursuant to the terms of this Agreement upon the first to occur of (i) the
date when such Program is initially broadcast by Venevision or (ii) the date
when such Program is first made available for broadcast by any third party.
Except as provided in the following paragraph, if Licensor or Venevision
shall produce directly or indirectly any Spanish Language or Spanish
subtitled programming for broadcast in the Territory it shall be deemed a
Program subject to the terms and conditions of this Agreement.
The term "Programs" does not include Special Programs (other
than Venevision Produced U.S. Special Programs, as defined below),
Co-Produced Programs or Default Programs (each as defined below) or local
news or public affairs programs (it being understood that all such local
programs will be produced or acquired by Licensee or its affiliated
stations). "Co-Produced Programs" means programs originally produced for
broadcast in the Spanish language or with Spanish subtitles, previously
produced, or to be produced, by Venevision for broadcast pursuant to
co-production agreements with unaffiliated third parties or produced by
unaffiliated third parties (in each case, other than
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any broadcaster in and to the Territory) (i) under which Venevision does not
own the right to permit the broadcast of such program in the Territory and/or
(ii) under which Venevision is required to share with such third parties the
revenue derived from the broadcast of such program in the Territory. No
program that would otherwise be a Program under Section 1.2(a)(ii) shall
become a Co-Produced Program solely because Venevision or Licensor licenses
or sells distribution rights in the Territory prior to or during production
of such program and neither Venevision nor Licensor shall enter into any
agreement to the contrary. In order for a program to be a Co-Produced
Program, some material underlying property right of such program must be
provided by such unaffiliated third party and such unaffiliated third party
must participate in the development and production of the Program in exchange
for such third party's distribution rights in the Territory or participation
in distribution revenues from the Territory. Nothing contained in this
Agreement shall prevent Licensor or Venevision from licensing broadcast
rights (in exchange for cash or in-kind services or property other than
Programs) for territories other than the Territory to programs initially
produced in the Spanish language or programs with Spanish language subtitles
that are developed and produced in the Territory by unaffiliated third party
producers located in the Territory, including broadcasters, provided that
neither Licensor nor Venevision has participated in any way in the
development or production of any such program. Venevision agrees that it
will use its good faith efforts not to structure agreements with respect to
programs in a manner intended to cause such programs not to be considered
Programs hereunder.
(b) "broadcast" or "network broadcast" means all
electronic forms or other means now known or hereafter developed of
transmission and re-transmission, including but not limited to over-the-air
television, cable television, low power television, multi-point distribution
systems, wire, fiber optics, microwave, and satellite, except for purposes of
delivery of the Programs pursuant to Section 4.
(c) "Affiliate" of a person means any person
that directly or indirectly controls, is controlled by, or is under common
control with the person in question. For the purposes of this definition,
"control", when used with respect to any person, means the power to direct
the management and policies of such person, directly or indirectly, whether
through the ownership of voting securities, by contract or otherwise.
Affiliate shall not mean any television station that has entered into an
affiliation agreement with the Networks but is otherwise not an Affiliate of
UCI any Person that controls CVT or any person under common control with, but
not directly or indirectly controlled by, CVT.
1.3 Licensor and its Affiliates shall have the right
and ability to, and to permit others to: (i) transmit or re-transmit in any
electronic form or other means, from any television station in Venezuela, or
via satellite which receives its signal from any earth station or other
facility in Venezuela, any Programs which may also be covered by this
Agreement, notwithstanding the fact that such transmissions or
re-transmissions may be viewed in the Territory, provided that neither
Licensor nor its Affiliates consent to the re-transmission of such Programs
by any television station in the Territory or by any cable
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system in the Territory; and (ii) market and promote and otherwise generate
revenues (including, but not limited to the sale of advertising time)
attributable to the ability of viewers in the Territory to receive such
Programs.
2. NOTIFICATION, ACCEPTANCE AND LICENSING OF PROGRAMMING.
Not less than once in each calendar quarter during the term of this
Agreement, Licensor will deliver a written notice (an "Availability Notice")
to Licensee specifying all Programs which (a) have become available for
license by Licensee since the delivery of the preceding Availability Notice
or (b) may no longer be available to Licensee on an exclusive basis. Such
notice shall be accompanied, if practicable, by a video tape pilot or
representative episode of each of the new Programs (except for live
Programs). If Licensee desires to license any Programs, it must notify
Licensor of its acceptance in writing (an "Acceptance") within thirty days of
receipt of the Availability Notice. Such Acceptance shall specify the name
of the Accepted Program, the name of the Network on which it is to be
broadcast, the date and time period in which Licensee intends to commence the
broadcast of the Accepted Program (which date shall be not more than 180 days
from the date of Acceptance with respect to Programs other than novelas and
shall be not more than 270 days from the date of Acceptance with respect to
novelas), and such other information as may reasonably be requested by
Licensor. An Acceptance shall constitute the exercise by Licensee of its
option for the Program(s) accepted and upon receipt by Licensor of such
Acceptance, the Program(s) covered by each such Acceptance shall without
further action be automatically licensed to Licensee on the terms and
conditions of this Agreement. Subject to the terms and conditions set forth
herein, Licensee shall have exclusivity in the carriage of all accepted
Programs ("Accepted Programs") for broadcast in the Territory from the date
of acceptance to the conclusion of the applicable Broadcast Period. If no
such Acceptance is received with respect to any or all available Programs,
Licensor shall be free to license all such unaccepted Programs ("Unaccepted
Programs") to others in the Territory for not more than one run over a period
of one year (which license, in the case of novelas, may also provide for one
rerun), subject to Licensee's right of first refusal described in Section 3;
provided, however, that during the Broadcast Period of a Program licensed by
Licensee, Licensor shall not license any other person or entity to broadcast
in the Territory reruns of such Program or other Programs of the same series
as such Program.
In order to avoid the "warehousing" of Programs by the
Licensee, (A) Licensee shall not issue Acceptance Notices without specifying
the intended broadcast commencement date and time period; however, Licensee
shall have the right at any time for any bona fide reason, on not less than
10 days' written notice to Licensor at least 60 days prior to the intended
broadcast date, (i) to switch dates and times among previously Accepted
Programs or among previously Accepted Programs and programs acquired from
another source, provided that after giving effect to such switch all other
requirements with respect to broadcast and scheduling of Programs contained
in this Agreement continue to be satisfied and/or (ii) to rescind Acceptance
with respect to any Program, and to issue an Acceptance Notice with respect
to a substitute Program, provided that (x) the substitute
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Program shall be broadcast in the time slot originally reserved for the
rescinded Program and (y) the rescinded Program shall thereafter constitute a
Default Program, (B) Licensee shall not issue Acceptance Notices with respect
to more Programs than it is capable of airing over the Networks; and (C)
Licensee shall not broadcast any First-Run Program (other than news) on
either of the Networks (X) between the hours of 1:00 a.m. and 9:00 a.m.
unless Licensee can demonstrate that it is commercially reasonable to
broadcast such program during such period or (Y) during any other time period
during which Licensee cannot reasonably expect the 70% broadcast coverage
requirement described in the following paragraph to be satisfied.
Subject to the preceding paragraph, with respect to any
Accepted Program, Licensee must commence the broadcast of the Program on one
of the Networks over at least 70% of such Network's coverage (as determined
by the number of Hispanic television households potentially reached by the
applicable Network) within 180 days following notice of its Acceptance
(except for novelas where the time for commencement may be extended for an
additional 90 days because of scheduling problems) and shall continue to
broadcast the Program without substantial interruption over such minimum of
70% Network coverage until the conclusion of the Broadcast Period (as defined
below). Should Licensee fail to comply with the broadcast commencement, 70%
coverage and continuous broadcast provisions of this paragraph, Licensee's
license with respect to the Program (a "Default Program") shall be terminated
10 days following written notice of non-compliance unless Licensee
demonstrates compliance or excusable non-compliance with such provisions. In
the event of termination, the Default Program shall be subject to re-license
by Licensor to others at any time or from time to time (without any right of
first refusal or other right applicable to Licensee, whether pursuant to
Section 3 or otherwise). The parties acknowledge that this provision is
designed to avoid "warehousing" of product by Licensee and that in the event
Licensee breaches the provisions of this paragraph, Licensor's damages are
incapable of calculation and the remedies set forth herein are appropriate
under the circumstances.
For purposes of this Agreement only:
(a) "Broadcast Period" means (i) for novelas
or other Programs with a plot line continuing through more than one episode,
the time necessary to broadcast all episodes on a continuing basis without
substantial interruption and (ii) for all other programs (excluding
one-program shows), (x) for weekly programs, the time period necessary to
broadcast 26 episodes of the Program without substantial interruption, which
under normal circumstances is expected to be 26 continuous weeks and (y) for
daily programs (Monday through Friday), 26 weeks.
(b) "without substantial interruption" means that
the Programs will be scheduled and run on a continuing periodic basis except
for occasional network preemption to accommodate one-time specials or
programs which, because of their nature or timeliness or because of FCC
Rules, must in Licensee's reasonable judgment be broadcast in lieu of the
regularly scheduled Program.
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3. RIGHT OF FIRST REFUSAL. If any other person or entity
wishes to accept for broadcast in the Territory any Unaccepted Programs which
Licensor has offered to it pursuant to Section 2, Licensor shall send a
written notice (a "Second Chance Notice") to Licensee specifying the name of
any such Programs and the license terms offered by such person or entity that
wishes to accept such Unaccepted Programs. Licensee shall have a right of
first refusal, good for three business days from receipt of the Second Chance
Notice to acquire such Unaccepted Program, subject to the same conditions
offered by such other person or entity, for the Program Royalty (as defined
in Section 5) plus the amount, if any, by which the license fee offered by
such other person or entity exceeds the Program Royalty attributable to
combined net time sales for the time slot in which such Program is broadcast.
Any such Unaccepted Programs which are not accepted in writing by Licensee
within three business days of receiving a Second Chance Notice may be
licensed to such other person or entity. Rights to exploit Unaccepted
Programs will be granted to other persons or entities for not more than one
run over a period of one year (provided that, in the case of novelas, such
rights may include the right to one rerun), and if the same Program is
offered thereafter in the Territory, it will once again be offered to
Licensee pursuant to Section 1 hereof. All episodes of a novela which are to
be shown within one year from the showing of the first episode shall be
deemed to be the same Program for the purposes of the requirement to offer
all programming first to Licensee.
4. DELIVERY, EXPENSES AND USE OF PROGRAMS.
4.1 Following Licensee's acceptance of Programs
pursuant to Sections 2 or 3 of this Agreement, Licensor shall deliver to
Licensee, at Licensee's expense, and in accordance with Licensee's reasonable
and customary instructions, a visual and aural reproduction of each such
Program or Program episode via satellite or video tape suitable for broadcast
and formatted for U.S. broadcast in accordance with past practices, at least
ten days prior to Licensee's scheduled broadcast, except for live broadcasts
or as otherwise agreed by the parties. Programs will be deemed delivered by
Licensor when transmitted to the satellite when actually received if shipped
by freight, or when made available through permission to re-transmit the
signal of an affiliate of Licensee.
4.2 Licensee agrees that as soon as practicable
following receipt of each satellite transmission or video tape delivery, it
will examine it to determine whether it is physically suitable for
broadcasting and notify Licensor immediately upon detecting any defect
rendering such copy unsuitable for telecast. In such cases, Licensor shall
promptly deliver at its own expense either a physically suitable tape or
(except in the case of novelas) a tape of another Program in the same series,
subject to verification of the defect.
4.3 Licensee agrees to return each video tape
delivered by Licensor to Licensor on the reels and in the containers in which
it was shipped, in the same condition as received, reasonable wear and tear
through proper use excepted, as soon as practicable after telecast. Licensee
shall pay all costs of returning the tapes to
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Licensor. Should Licensor request that the video tape be sent to a location
other than Licensor's warehouse, Licensor will bear responsibility for
shipping costs above those which would have been applicable for shipping the
video tape to Licensor's warehouse.
4.4 The video tapes shall at all times remain
the property of Licensor subject to Licensee's rights as herein provided.
The risk of loss, damage, destruction or disappearance of any tape shall be
borne by Licensee from the time of delivery to Licensee until the return
thereof to Licensor or Licensor's designee and as to any tape or part thereof
lost, stolen, destroyed or damaged after delivery to Licensee and before the
return thereof, Licensee shall pay Licensor the cost of replacement thereof,
which payment shall be limited to the cost of replacing the raw video tape.
4.5 Licensee will not, and will not authorize
others to copy, duplicate or re-license any Program unless necessary for
Licensee's own network broadcast. Any duplicate or copy of any part of the
Program (including trailers) made by Licensee for its own purposes will be
erased following the broadcast of the Program. Upon receipt of written
request from Licensor, an officer of Licensee shall certify in writing the
destruction of all such copies.
4.6 Licensor will furnish to Licensee glossy
prints of still photos, synopses, casts and all other promotional material
for the promotion and exploitation of the Programs, if available. Licensor
grants to Licensee the right to use and license others to use Licensor's name
and, unless Licensee is advised by Licensor that the rights of Licensor are
limited (in which case, to the extent not limited), to use and license others
to use the name and likeness of, and biographical material concerning, each
star, featured performer, writer, director and producer in the Programs and
the titles of each program and fictitious persons and locales therein, for
advertising and publicity, of the Programs, and any broadcaster or sponsor
thereof, but not for direct endorsement of any product or service, provided
that any such use will protect the copyrights of Licensor. To the extent
available to Licensor after reasonable efforts, Licensor will furnish
Licensee with music cue sheets for the Programs and the information necessary
for administration of rights payments and compliance with Section 507 of the
Federal Communications Act of 1934, as amended concerning broadcast matter
and disclosures required thereunder, insofar as that Section applies to
persons furnishing program material for television broadcasting ("Section
507"). Subject to the foregoing and subject to Licensor's reasonable prior
approval, Licensee shall have the right to produce its own promotional
material for or from the Programs.
4.7 Licensee agrees to include in its broadcast
of Accepted Programs all copyright notices and all credits made part of each
Accepted Program including but not limited to stars, directors, producers and
writers. Licensee shall exhibit the Accepted Program as delivered in the
Spanish language or with Spanish subtitles and no change, alteration or
addition may be made to any Program without Licensor's consent except as may
be necessary for the insertion of commercials during natural breaks in the
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Program, or except as may be necessary to comply with Licensee's broadcast
standards and practices and applicable government rules and regulations.
4.8 Subject to Section 7.1 and 7.3 and
Licensee's remedies for a breach thereof, Licensor may, at its sole and
absolute discretion, withdraw any Program and terminate any license with
respect to such Program if Licensor reasonably determines that the broadcast
thereof is likely to: (i) infringe the rights of third parties, (ii) violate
any law, court order, governmental regulation or ruling of any governmental
agency, (iii) otherwise subject the Licensor to any material liability. In
addition, Licensor reserves the right to withdraw any Program prior to the
conclusion of the applicable Broadcast Period if, for any reason, the program
is no longer being produced by or available to Venevision or Licensor. In
the event of any such withdrawal or termination, Licensor shall give Licensee
as much notice as possible, and the parties shall have no obligations to each
other with regard to Programs not produced, subject to Section 7.1 and 7.3
and Licensee's remedies for a breach thereof. No Program that is withdrawn
pursuant to this Section 4.8 shall be relicensed to a third party in the
Territory without being first offered to Licensee pursuant to Section 1.
4.9 The license granted to Licensee with respect
to each Accepted Program (other than novelas) shall be for one Network
broadcast of each Program or Program episode, subject only to FCC rules and
regulations and to tape delay in certain of Licensee's affiliated outlets to
accommodate time zone differences. In addition, within 24 hours of the
original broadcast, Licensee may broadcast a repeat of any Program, free of
the restrictions contained herein regarding Network coverage. Except as
herein provided, without the express permission of Licensor, not to be
unreasonably withheld, no Program or Program episode may be rerun during any
Broadcast Period.
Notwithstanding the prohibition on reruns during a Broadcast
Period, Licensee will have the option at the end of any Broadcast Period to
license one (1) rerun of each novela (herein "Protected Rerun"). Such option
must be exercised in writing not later than thirty (30) days before the end
of the Broadcast Period for each such novela. The terms of such Protected
Rerun license shall be the same as for the original license, except that the
time during which the broadcast must commence will be one (1) year instead of
one hundred and eighty (180) days.
5. ROYALTIES.
5.1 Except as set forth in Section 5.2 below,
Licensee shall pay Licensor a royalty (the "Program Royalty") in cash for the
Programs offered to it in an aggrgate amount equal to 5.5% of combined net
time sales (as defined below) for the period commencing on the date hereof
and ending on December 31, 1996, 6.75% of combined net time sales for the
period commencing on January 1, 1997 and ending on December 31, 1997, and
7.5% of combined net time sales for all periods commencing on or after
January 1, 1998 until the termination of this Agreement. For purposes of
this Agreement, "combined net time sales" shall mean all time sales of the
Stations and the
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Networks, including barter and trade and television subscription revenue
(including, without limitation, satellite subscription revenue), less
advertising commissions, Special Event Revenue (as defined below), music
license fees, outside affiliate compensation, and taxes (other than
withholding taxes) paid by Licensee pursuant to Section 5.5 hereof and
similar taxes paid by the Stations calculated in accordance with U.S.
generally accepted accounting principles ("GAAP"). Notwithstanding the
foregoing, no revenues of the Galavision Network received prior to the
closing of the acquisition of the assets of the Galavision Network by
Licensee pursuant to the Galavision Network Option Agreement between Univisa
and Licensee entered into as of December 17, 1992 shall be included in
combined net times sales for purposes of computing the Program Royalty.
Unless otherwise agreed in writing between the parties, barter and trade
sales shall be valued at the fair market value of the goods or services
received by the Licensee or the Stations.
5.2 Notwithstanding Section 5.1 above, to the
extent from time to time specified in a writing signed by both Licensor and
Univisa and delivered to Licensee, the amounts of the Program Royalties
payable in accordance with Sections 5.1 of this Agreement and the Univisa
Agreement may be changed by Licensor and Televisa, so long as the aggregate
of the amounts of such Program Royalties under this Agreement and the Univisa
Agreement does not exceed for any period twice the applicable amount computed
in accordance with Section 5.1 of this Agreement. Licensor and Univisa shall
not deliver such a writing more than twice a year.
5.3 Program Royalties shall be paid currently on
a monthly basis on the twelfth business day after the end of each month in a
single payment to Licensor based upon the parties' good faith best estimate
at such time of the amounts accrued. Appropriate adjustment (the
"Adjustment") will be made to Program Royalties on a quarterly basis within
45 days after the end of each quarter, and the full amount thereof shall be
paid or credited, as the case may be, with the next monthly payment of
Program Royalties for any difference between the amounts so paid and those
finally determined to have accrued. In all cases, the calculation of the
Adjustment will be made as promptly as practicable by Licensee, and in the
event of any disputes the determination shall be made by a nationally
recognized independent certified public accounting firm mutually selected by
Licensor and Licensee (or, if they fail to designate such a firm within 10
days after written notice of a dispute, by such firm designated by the
President of the American Arbitration Association (or his designee)), whose
determination will be final and binding upon the parties. The fees and
expenses of such firm shall be paid one-half by Licensor and one-half by
Licensee, unless such firm determines it would be more equitable to otherwise
allocate such fees and expenses.
5.4 All payments made pursuant to this section
shall be in cash in U.S. currency with accompanying back-up information in
reasonable detail of combined net time sales for the applicable period. Such
payments shall be calculated as provided above regardless of the amount of
Programs licensed hereunder or whether any such Programs are broadcast. In
order to assure compliance with the terms of this Agreement, Licensor shall
have the right to receive once each year a certificate from Licensee's
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independent certified public accounting firm, which certificate shall attest
to the combined net time sales for the year. Licensee shall pay for the
preparation of such certificate and its delivery to Licensor. Licensor may
request additional certificates and services either from Licensee's
accounting firm or from a firm of certified public accountants chosen by
Licensor. The fees and expenses of the certified public accountants
providing such additional certificates and performing such additional
services pursuant to this Section 5.4 shall be paid by Licensor, unless such
verification results in an adjustment in Licensor's favor equal or greater
than 5% of the amount originally computed by Licensee, in which case such fee
will be paid by Licensee. Licensee agrees to provide any certified public
accountants designated by Licensor with access to all business records of
Licensor related to the computation of combined net time sales. Licensor
agrees to maintain the confidentiality of all information learned from
Licensee in connection with the performance of this Agreement, other than
information (i) which becomes public (unless it becomes public because of a
breach of this covenant by Licensor), (ii) which otherwise becomes known to
Licensor (unless Licensor knows that the information has been disclosed in
violation of a confidentiality agreement with Licensee), or (iii) which
Licensor is required by law, order or administrative law request or by stock
exchange rule or regulation to divulge.
5.5 Any and all sums payable on account of
sales, use or other similar taxes arising out of or relating to the licensing
or exhibition by Licensee of the Programs, in addition to any personal
property or other tax assessed or levied by any governmental unit arising out
of or relating to the storage or possession of the Programs thereof by
Licensee shall be paid by Licensee.
5.6 Licensee may deduct and withhold from any
payment to or for the account of Licensor with respect to the Program
Royalties such amounts as it in good faith determines it is required to
withhold with respect to such payment under applicable United States and
state tax withholding laws, and shall promptly remit such amounts to the
appropriate taxing authority. Within 30 days of any such remittance Licensee
shall furnish to Licensor the original or certified copy of a receipt
evidencing payment, or other evidence of payment reasonably satisfactory to
Licensor. If Licensor has timely filed with Licensee a duly completed Form
4224, 1001, W-8 or W-9, of the Internal Revenue Service (or successor form
thereto) or has complied with applicable procedures under state law,
entitling it to exemption from, or a reduced rate of, withholding under the
applicable law or regulations, the amount withheld shall be accordingly
limited. Licensee shall cooperate in any reasonable manner requested by
Licensor to minimize Licensor's withholding tax liability.
5.7 If Licensee is more than 30 days late in
paying any amount due to Licensor under this Section 5, such late amounts
shall thereafter bear interest at a rate equal to LIBOR plus 5%, plus any
applicable withholding.
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6. SPECIAL PROGRAMS AND CO-PRODUCED PROGRAMS.
6.1 For purposes of this Agreement:
(a) "Special Programs" means special
programs such as the World Cup, other sporting events, political conventions,
election coverage, parades, pageants, special variety shows and other
non-episodic and non-continuing shows.
(b) "Non-Venevision-Produced Special
Programs" means Special Programs not produced directly or indirectly by or
for Venevision.
(c) "Venevision-Produced U.S. Special
Programs" means Venevision-Produced Special Programs for which Licensor has
adequate rights to license such Special Programs to Licensee under the terms
of this Agreement.
(d) "Venevision-Produced Non-U.S.
Special Programs" means Venevision-Produced Special Programs for which
Licensor does not have adequate rights to license such Special Programs to
Licensee under the terms of this Agreement.
(e) "Venevision-Produced Special
Programs" means Special Programs directly or indirectly produced by or for
Venevision.
(f) "Special Event Revenue" means net
time sales for Non-Venevision-Produced Special Programs and
Non-Televisa-Produced Special Programs as defined in the Univisa Agreement
broadcast by Licensee on either Network.
6.2 Licensor shall use its best efforts, and
shall cause its Affiliates to use their best efforts, to coordinate its
Non-Venevision-Produced Special Program acquisitions with those of Licensee,
so as to permit Licensee to participate therein and to acquire rights in the
Territory to such programs on an advantageous basis and on terms satisfactory
to Licensee; PROVIDED, HOWEVER, that the obligation to use "best efforts"
shall not be interpreted to include any obligation of Licensor or its
Affiliates to expend additional money to permit Licensee's participation or
to acquire rights on an advantageous basis.
6.3 Venevision-Produced U.S. Special Programs
shall be "Programs" for all purposes of this Agreement.
6.4 At the request of Licensee, Licensor shall
use its best efforts, and shall cause its Affiliates to use their best
efforts, to acquire broadcast rights in the Territory on terms satisfactory
to Licensee for Venevision-Produced Non-U.S. Special Programs and any
Co-Produced Program that falls within clause (i) (but not clause (ii)) of the
definition of "Co-Produced Program" in Section 1.2 (a); provided, however,
that the obligation to use its "best efforts" shall not be interpreted to
include any obligation of Licensor to expend additional money, except to the
extent reimbursed by the "Special
11
Event Fee" (as defined below). Such programs accepted by Licensee shall be
licensed hereunder to Licensee for the Program Royalty plus a fee (the
"Special Event Fee") in the amount of the cost to Licensor of the acquisition
of broadcast rights in the Territory to such program, such costs to be
determined by the parties in good faith based on the portion of the total
amount paid by Licensor for broadcast rights that is reasonably allocated to
the acquisition of broadcast rights in the Territory.
6.5 Licensor shall offer Licensee in accordance
with all applicable provisions of this Agreement all Co-Produced Programs
that fall within clause (ii) of the definition of "Co-Produced Program" in
Section 1.2(a) for which program Licensor has or can obtain adequate rights
and licensing authority to offer such programs to Licensee in compliance with
the terms and conditions of this Agreement, except that the Program Royalty
specified in Section 5 hereof shall not include the license fee for
Co-Produced Programs. Compensation to Licensor for all Co-Produced Programs
accepted by Licensee shall be computed and paid in accordance with such terms
as the parties may mutually agree in writing. If the parties are unable to
agree on the royalty for any Co-Produced Program within 10 days after such
program is offered by Licensor, such program may be sold to others in the
Territory, so long as Licensor in good faith determines that the terms and
conditions applicable to such sale are more favorable to the Licensor than
those offered by the Licensee in writing within such 10-day period.
7. REPRESENTATIONS AND WARRANTIES OF LICENSOR.
7.1 Licensor hereby agrees, warrants and represents
as follows:
(a) Subject to Section 1.4 hereof
Licensor is free to enter into and fully perform this Agreement;
(b) Licensor has or will have the right
to grant to Licensee the broadcast rights to the Accepted Programs in the
Territory set forth in this Agreement, including but not limited to the
necessary literary, artistic, technological and intellectual property rights
and has secured or will secure all necessary written consents, permissions
and approvals for incorporation into such Programs of the names, trademarks,
likenesses and/or biographies of all persons, firms, products, companies and
organizations depicted or displayed in such Programs, and any preexisting
film or video footage produced by third parties;
(c) There are no and will not be any
pending claims, liens, charges, restrictions or encumbrances on the Accepted
Programs that conflict with the broadcast rights granted hereunder to such
Programs in the Territory;
(d) Licensor has paid or will pay all
compensation, residuals, reuse fees, synchronization royalties, and other
payments which must be made in connection with the Accepted Programs and in
connection with exploitation of the rights herein granted to Licensee to any
third parties including, but not limited to, musicians,
12
directors, writers, producers, announcers, publishers, composers, on-camera
and off-camera performers and other persons who participated in production of
such Programs, and to any applicable unions, guilds or other labor
organizations; PROVIDED, HOWEVER, that Licensor has not acquired performing
rights for performance in the Territory of the music contained in such
Programs, which rights shall be obtained by Licensee; PROVIDED, FURTHER,
however, that Licensor warrants and represents that all music is available
for licensing through ASCAP, BMI or SESAC (or any successor or similar entity
in the United States) or is in the public domain or is owned or controlled by
Licensor to the extent necessary to permit broadcasts hereunder in the
Territory and no additional clearance or payment is required for such
broadcast;
(e) The main and end titles of the
Accepted Programs and all publicity, promotion, advertising and packaging
information and materials supplied by Licensor will contain all necessary and
proper credits for the actors, directors, writers and all other persons
appearing in or connected with the production of such Programs who are
entitled to receive credit and comply with all applicable contractual, guild,
union and statutory requirements and agreements;
(f) Exercise of the broadcast rights to
the Accepted Programs in the Territory will not infringe on any rights of any
third party, including but not limited to copyright, patent, trademark,
unfair competition, contract, property, defamation, privacy, publicity or
"moral rights" (to the extent such moral rights are recognized by U.S. law);
(g) Except to the extent expressly
permitted by this Agreement, Licensor has not and will not grant or license
to others, and will not itself exercise, any rights to broadcast the Accepted
Programs in or to the Territory;
(h) Each and every one of the
representations and warranties made by Licensor herein shall survive the
Broadcast Period for each Accepted Program;
(i) To the extent Section 507 (as
defined in Section 4.6 above) is applicable, no Accepted Program includes or
will include any matter for which any money, service or other valuable
consideration is directly or indirectly paid or promised to Licensor by a
third party, or accepted from or charged to a third party by Licensor, unless
such is disclosed in accordance with Section 507. Licensor shall exercise
reasonable diligence to inform its employees, and other persons with whom it
deals directly in connection with such programs, of the requirements of
Section 507; provided, however, that no act of any such employee or of any
independent contractor connected with any of the programs, in contravention
of the provisions of Section 507, shall constitute a breach of the provisions
of this paragraph unless Licensor has actual notice thereof and fails
promptly to disclose such act to Licensee. As used in this paragraph, the
term "service or other valuable consideration" shall not include any service
or property furnished without charge or at a nominal charge for use in, or in
connection with, any of
13
the programs "unless it is so furnished in consideration for an
identification in a broadcast of any person, product, service, trademark or
brand name beyond an identification which is reasonably related to the use of
such service or property on the broadcast," as such terms are used in Section
507. No inadvertent failure by Licensor to comply with this paragraph shall
be deemed a breach of this Agreement; and
(j) For purposes of this Section 7.1
only, "Accepted Programs" shall be deemed to include Venevision Produced U.S.
Special Programs to the extent broadcast by Licensee.
7.2 Licensor further agrees that, while it has
no obligation to do so, if it secures a producer's (Errors and Omissions)
liability policy covering the Programs, or any part thereof, it will cause
Licensee to be named as an additional insured on such policy and will cause a
certificate of insurance to be promptly furnished to Licensee, provided,
however, that the inclusion of Licensee as an additional insured does not
result in any additional cost or expense to Licensor. Licensor will notify
Licensee when such insurance is obtained and, after obtained if canceled.
Any such insurance as to which Licensee is an additional insured shall be
primary as to Licensee and not in excess of or contributory to any other
insurance provided for the benefit of or by Licensee.
7.3 Licensor warrants that the amount of
Programs made available throughout the term hereunder for license hereunder,
when aggregated with (i) the amount of Programs (as defined in the Univisa
Agreement) made available for license by Univisa pursuant to the Univisa
Agreement, (ii) any local-produced programming by the Stations to the extent
such locally produced programming is used on either of the Networks, (iii)
any programs produced by Licensee, and (iv) any programs purchased by
Licensee other than from Licensor, will be sufficient (when including an
estimated six hours of repeat broadcasting) to fill a twenty-four hour a day,
seven day a week time schedule for each of the Univision Network and the
Galavision Network (as currently operated), which such time schedules as
between the two networks shall be separate and non-duplicative.
8. INDEMNIFICATION.
8.1 Licensor agrees to hold Licensee, its
partners, the partners of any partnership that is a partner of Licensee,
officers, employees, and agents and the shareholders, officers, directors,
employees and agents of the partners or any corporation or partnership that
is a partner of Licensee (collectively the "Licensee Indemnitees"), harmless,
from any claims, deficiencies, assessments, liabilities, losses, damages,
expenses (including, without limitation, reasonable fees and expenses of
counsel) (collectively "Losses") which any Licensee Indemnitee may suffer by
reason of Licensor's breach of, or non-compliance with, any covenant or
provision herein contained or the inaccuracy of any warranty or
representation made in this Agreement and any such damages shall be reduced
by: (i) the amount of any net tax benefit ultimately accruing to Licensee on
account of Licensee's payment of such claim; (ii) insurance proceeds which
Licensee has
14
or will receive in connection with such claim, and (iii) any recovery from
third parties in connection with such claim; PROVIDED, HOWEVER, that Licensor
shall not delay payment of its indemnification obligations hereunder pending
resolution of any tax benefit or insurance or third party claim if Licensee
provides Licensor with an undertaking to reimburse Licensor for the amount of
any such claim ultimately received; and PROVIDED, FURTHER, that Licensee
shall have no obligation to obtain any such insurance proceeds or recovery
from third parties if and to the extent Licensor is subrogated (in form and
substance satisfactory to Licensor) to Licensee claims in respect of such
insurance or third parties.
8.2 Licensee agrees to indemnify Licensor, its
direct and indirect shareholders and all officers, directors, employees and
agents of any of the foregoing (the "Licensor Indemnitees") against and hold
the Licensor Indemnitees harmless from any and all Losses incurred or
suffered by any Licensor Indemnitee arising out of a breach by Licensee of
the representations, warranties, covenants or agreements made or to be
performed by it pursuant hereto, or arising out of any program or commercial
material (apart from the Programs) furnished by Licensee and any such damages
shall be reduced by: (i) the amount of any net tax benefit ultimately
accruing to Licensor on account of Licensor's payment of such claim; (ii)
insurance proceeds which Licensor has or will receive in connection with such
claim, and (iii) any recovery from third parties in connection with such
claim; PROVIDED, HOWEVER, that Licensee shall not delay payment of its
indemnification obligations hereunder pending resolution of any tax benefit
or insurance or third party claim if Licensor provides Licensee with an
undertaking to reimburse Licensee for the amount of any such claim ultimately
received; and PROVIDED, FURTHER, that Licensor shall have no obligation to
obtain any such insurance proceeds or recovery from third parties if and to
the extent Licensee is subrogated (in form and substance satisfactory to
Licensee) to Licensor claims in respect of such insurance or third parties.
8.3 The following procedures shall govern all
claims for indemnification made under any provision of this Agreement. A
written notice (an "Indemnification Notice") with respect to any claim for
indemnification shall be given by the party seeking indemnification (the
"Indemnitee") to the party from which indemnification is sought (the
"Indemnitor") within thirty (30) days of the discovery by the Indemnitee of
such claim which Indemnification Notice shall set forth the facts relating to
such claim then known to the Indemnitee (provided that failure to give such
Indemnification Notice as aforesaid shall not release the Indemnitor from its
indemnification obligations hereunder unless and to the extent the Indemnitor
has been prejudiced thereby). The party receiving an Indemnification Notice
shall send a written response to the party seeking indemnification stating
whether it agrees with or rejects such claim in whole or in part. Failure to
give such response within ninety (90) days after receipt of the
Indemnification Notice shall be conclusively deemed to constitute
acknowledgment of the validity of such claim. If any such claim shall arise
by reason of any claim made by third parties, the Indemnitor shall have the
right, upon written notice to Indemnitee within 30 days after receipt of the
Indemnification Notice, to assume the
15
defense of the matter giving rise to the claim for indemnification through
counsel of its selection reasonably acceptable to Indemnitee, at Indemnitor's
expense, and the Indemnitee shall have the right, at its own expense, to
employ counsel to represent it; PROVIDED, HOWEVER, that if any action shall
include both the Indemnitor and the Indemnitee and there is a conflict of
interest because of the availability of different or additional defenses to
the Indemnitee, the Indemnitee shall have the right to select separate
counsel to participate in the defense of such action on its behalf, at the
Indemnitor's expense. The Indemnitee shall cooperate fully to make available
to the Indemnitor all pertinent information under the Indemnitee's control as
to the claim and shall make appropriate personnel available for any
discovery, trial or appeal. If the Indemnitor does not elect to undertake
the defense as set forth above, the Indemnitee shall have the right to assume
the defense of such matter on behalf of and for the account of the
Indemnitor; PROVIDED, HOWEVER, the Indemnitee shall not settle or compromise
any claim without the consent of the Indemnitor, which consent shall not be
unreasonably withheld. The Indemnitor may settle any claim at any time at
its expense, so long as such settlement includes as an unconditional term
thereof the giving by the claimant of a release of the Indemnitee from all
liability with respect to such claim.
9. TERM. The term of this Agreement shall be until December 17,
2017. Any license in effect for any Program at the date of termination of
this Agreement shall continue through the Broadcast Period for such Program,
with no right of re-license or extension at the end thereof, and all of the
rights and obligations of the parties under this Agreement with respect to
such license will continue through the Broadcast Period for such Program, it
being agreed that the parties shall enter into mutually satisfactory royalty
arrangements with respect to the Broadcast Period following the termination
of this Agreement in order to compensate Licensor for the use of Programs
during such period and, if the parties are unable to agree upon such royalty
arrangements, the amount thereof shall be determined based on prevailing
market conditions.
In addition this Agreement may be terminated by either party in the
event that the other party (i) materially breaches its obligations hereunder
and fails to cure such breach within 180 days of notice thereof (90 days for
failure to pay the Program Royalty when due) by the party seeking termination
(which notice shall describe the breach in reasonable detail); PROVIDED,
HOWEVER, that the inaccuracy of any of Licensor's representations and
warranties contained in Section 7 hereof shall not be deemed to be a breach
of its obligations for purposes of this Section 9 to the extent that Licensor
satisfies its indemnification obligations with respect to such inaccuracy, or
(ii) asserts Force Majeure under Section 10 as a relief from substantially
all of its obligations hereunder for a period in excess of one year. Any
notice of material breach referred to in (i) above shall concurrently be sent
to the Managing Agents for any lenders providing financing to the Stations
and the Networks, and the Managing Agents on behalf of such lenders shall
have the right to cure such alleged material breach within such 90-day or
180-day cure period. Any notice of termination for Force Majeure pursuant to
(ii) above shall concurrently be sent to such Managing Agents.
16
10. FORCE MAJEURE. Neither party hereto shall be liable for or
suffer any penalty or termination of rights hereunder by reason of any
failure or delay in performing any of its obligations hereunder if such
failure or delay is occasioned by compliance with governmental regulation or
order, or by circumstances beyond the reasonable control of the party (except
in the case of Section 7.3 a Force Majeure Event affecting Univisa shall be
deemed to be a Force Majeure Event beyond the reasonable control of Licensor)
so failing or delaying, including but not limited to acts of God, war,
insurrection, fire, flood, accident, strike or other labor disturbance,
interruption of or delay in transportation (a "Force Majeure Event"). Each
party shall promptly notify the other in writing of any such event of force
majeure, the expected duration thereof, and its anticipated effect on the
party affected and make reasonable efforts to remedy any such event, except
that neither party shall be under any obligation to settle a labor dispute.
If Licensor is prevented by a Force Majeure Event from delivering any
Accepted Program to Licensee, the running of the time period for purposes of
computing the applicable Broadcast Period for such Program shall be suspended
and, if such Force Majeure Event prevents Licensor from delivering any
substitute Programs to Licensee, then Licensee's obligations to pay the
Program Royalty under Section 5.1 hereof shall be reduced (but not below
zero) for the time period or periods so affected to the extent necessary to
compensate Licensee for the cost of obtaining substitute programming. Any
notice of Force Majeure sent pursuant to this Section 10 shall concurrently
be sent to the Managing Agents referred to in Section 9 above.
11. MODIFICATION. This Agreement shall not be modified or waived
in whole or in part except in writing signed by an officer of the party to be
bound by such modification or waiver.
12. WAIVER OF BREACH. A waiver by either party of any breach or
default by the other party shall not be construed as a waiver of any other
breach or default whether or not similar and whether or not occurring before
or after the subject breach.
13. JURISDICTION; VENUE; SERVICE OF PROCESS. Each of the parties
irrevocably submits to the jurisdiction of any California State or United
States Federal court sitting in Los Angeles County in any action or
proceeding arising out of or relating to this Agreement or the transactions
contemplated hereby, and irrevocably agrees that any such action or
proceeding may be heard and determined only in such California State or
Federal court. Each of the parties irrevocably waives, to the fullest extent
it may effectively do so, the defense of an inconvenient forum to the
maintenance of any such action or proceeding. Each of the parties
irrevocably appoints CT Corporation System (the "Process Agent"), with an
office on the date hereof at 000 Xxxx 0xx Xxxxxx, Xxx Xxxxxxx, XX 00000 as
his or its agent to receive on behalf of him or it and his or its property
service of copies of the summons and complaint and any other process which
may be served in any such action or proceeding. Such service may be made by
delivering a copy of such process to any of the parties in care of the
Process Agent at the Process Agent's above address, and each of the parties
irrevocably authorizes and directs the Process Agent to accept such service
on its behalf. As an alternate method of service,
17
each of the parties consents to the service of copies of the summons and
complaint and any other process which may be served in any such action or
proceeding by the mailing or delivering of a copy of such process to such
party at its address specified in or pursuant to Section 14. Each of the
parties agrees that a final judgment in any such action or proceeding shall
be conclusive and may be enforced in other jurisdictions by suit on the
judgment or in any other manner provided by law.
14. NOTICES. All notices and other communications required or
permitted hereunder shall be in writing, shall be deemed duly given upon
actual receipt, and shall be delivered (a) in person, (b) by registered or
certified mail (air mail if addressed to an address outside of the country in
which mailed), postage prepaid, return receipt requested, (c) by a generally
recognized overnight courier service which provides written acknowledgment by
the addressee of receipt, or (d) by facsimile or other generally accepted
means of electronic transmission (provided that a copy of any notice
delivered pursuant to this clause (d) shall also be sent pursuant to clause
(b)), addressed as set forth in Schedule 1 or to such other addresses as may
be specified by like notice to the other parties.
15. ASSIGNMENTS. Either of the parties may assign its rights
hereunder and delegate its duties hereunder, in whole or in part, to an
Affiliate capable to perform the assignor's obligations hereunder, and either
of the parties may assign its rights hereunder and delegate its duties
hereunder to any person or entity to which all or substantially all of such
party's businesses and assets are pledged or transferred. No such assignment
or delegation shall relieve any party of its obligations hereunder. Any such
assignment or delegation authorized pursuant to this Section 15 shall be
pursuant to a written agreement in form and substance reasonably satisfactory
to the parties and to the Managing Agents referred to in Section 9 above.
Except as otherwise expressly provided herein, neither this Agreement nor any
rights, duties or obligations hereunder may be assigned or delegated by any
of the parties, in whole or in part, whether voluntarily, by operation of law
or otherwise; PROVIDED, HOWEVER, that Licensor may assign, grant a security
interest in or otherwise transfer its rights to payment hereunder in
connection with one or more financings. Any attempted assignment or
delegation in violation of this prohibition shall be null and void. Subject
to the foregoing, all of the terms and provisions hereof shall be binding
upon, and inure to the benefit of, the successors and assigns of the parties.
Nothing contained herein, express or implied, is intended to confer on any
person other than the parties or their respective successors and permitted
assigns, any rights, remedies, obligations or liabilities under or by reason
of this Agreement.
16. GOVERNING LAW. This Agreement and the legal relations among
the parties shall be governed by and construed in accordance with the laws of
the State of California applicable to contracts between California parties
made and performed in that State, without regard to conflict of laws
principles.
17. FURTHER ASSURANCES. Each party hereto agrees to execute any
and all additional documents and do all things and perform all acts necessary
or proper to further
18
effectuate on evidence this Agreement including any required filings with the
U.S. Copyright Office.
18. COUNTERPARTS. This Agreement may be executed in counterparts,
each of which shall be an original instrument and all of which, when taken
together, shall constitute one and the same agreement.
19. SEVERABILITY. If any provision of this Agreement, or the
application thereof, shall for any reason or to any extent be invalid or
unenforceable, then the remainder of this Agreement and application of such
provision to other persons or circumstances shall continue in full force and
effect and in no way be affected, impaired or invalidated; provided that the
aggregate of all such provisions found to be invalid or unenforceable does
not materially affect the benefits and obligations of the parties of the
Agreement taken as a whole.
20. SPECIFIC PERFORMANCE. The parties hereto agree that
irreparable damage may occur in the event that any of the provisions of this
Agreement were not performed in accordance with their specific terms or were
otherwise breached. It is accordingly agreed that the parties may be
entitled to an injunction or injunctions to prevent breaches of this
Agreement and to enforce specifically the terms and provisions hereof in any
court of the United States or any state having jurisdiction pursuant to
Section 13, this being in addition to any other remedy to which they are
entitled at law or in equity.
21. ACKNOWLEDGEMENT OF SECURITY INTEREST. Pursuant to the
financing documents referred to in Section 9 above, the Administrative Agent
(for the benefit of the various lenders) has been granted a security interest
in and to all of Licensee's rights in this Agreement. The parties hereto
acknowledge and consent to the grant of such security interest.
22. PARTICIPATION AGREEMENT. All the terms and conditions of this
Agreement shall at all times be subject to the terms and conditions of the
Participation Agreement of even date herewith among Univision Television
Holdings, Inc., A. Xxxxxxx Xxxxxxxxx, Grupo Televisa, S.A., and Messrs.
Xxxxxxx X. Xxxxxxxx and Xxxxxxx X. Xxxxxxxx, and if there is any
inconsistency between any terms and conditions of this Agreement and the
terms and conditions of the Participation Agreement, the Participation
Agreement shall prevail.
23. VENEVISION ADVERTISING. Advertising time which is not sold to
advertisers or used by the Network or the Stations for their own purposes
will be made available without charge to Venevision and its Affiliates.
Other than as set forth in the following sentence, such time may be used for
promotion or direct sale (i.e., telemarketing) of products or services now or
hereafter owned or being provided by Venevision or its Affiliates (including,
without limitation, theatrical motion pictures produced or being distributed
by any of them). Such time, however, will not be available for any product
or service that is marketed primarily by telemarketing that was not owned or
being provided by Venevision or its Affiliates as of December 17, 1992, and
provided, further, that such time may be preempted by the Network or any
Station to the extent that
19
such time is to be sold to a paying advertiser. Venevision and its
Affiliates will be permitted to purchase for such purposes advertising time
which cannot be preempted by the Network or the Stations for the lowest spot
rate then being offered for a non-preemptable spot in the program during
which such time is sold. Venevision may not, however, directly or indirectly
make such free or purchased time available to Persons other than its
Affiliates. All material provided for broadcast by Venevision or its
Affiliates shall comply with the quality standards for unaffiliated
advertisers established by the Network or the Stations from time to time.
The Board of Directors of Licensee, by a vote which includes, in addition to
any other required vote of directors, the affirmative vote of a majority of
the Class T Director(s) (so long as a Class T Voting Conversion (as defined
in the Restated Certificate of Incorporation of UCI) has not occurred) or a
majority of the Class V Director(s) (so long as a Class V Voting Conversion
(as defined in the Restated Certificate of Incorporation of UCI) has not
occurred, may make such rules in connection with the use of such time by
Venevision and its Affiliates as it determines to be appropriate, including,
without limitation, rules for the fair allocation of such time between
Venevision and [Televisa] and their respective Affiliates.
IN WITNESS WHEREOF, the parties have set their hands as of the day
and year first above written.
DENNEVAR, B.V.
By: [ILLEGIBLE]
----------------------------------
Title: Attorney-in-fact
-------------------------------
THE UNIVISION NETWORK LIMITED
PARTNERSHIP
By: The Univision Network Holding
Limited Partnership
Its: General Partner
By: [ILLEGIBLE]
----------------------------------
Its: Managing Director
---------------------------------
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