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Exhibit 10.35
December 16, 1994
WJAC, Inc.
c/o WJAC-TV
0000 Xxxxxxx Xxxx
Xxxxxxxxx, Xxxxxxxxxxxx 00000
Gentlemen:
In connection with that certain Affiliation Agreement (the
"Agreement") dated December 16, 1994 between NBC Television Network ("NBC") and
WJAC, Inc., licensee of television broadcast station WJAC-TV, Johnstown,
Pennsylvania (collectively, the "Station"), the Station and NBC hereby agree as
follows:
1. NBC hereby confirms that Paragraphs 2 and 3 of the Agreement
notwithstanding, the Station shall not be obligated to clear "Meet the
Press" (or any replacement programming) until January 8, 1995.
Commencing as of January 8, 1995, Station agrees to clear "Meet the Press"
(or any replacement programming) each Sunday in its Live Time Period as
scheduled by NBC in accordance with Paragraphs 2 and 3 of the Agreement.
2. Each defined term used herein without definition shall have the meaning
assigned to such term in the Agreement.
Please indicate your acceptance of the foregoing by signing in the
space indicated below.
Very truly yours,
NBC TELEVISION NETWORK
By: /s/ Xxxxxx X. Xxxxx
--------------------------------
Name: Xxxxxx X. Xxxxx
Title: Sr. Vice President of
Affiliate Relations
The foregoing has been reviewed by, and is acceptable to, WJAC, Inc.
By: /s/ Xxxxx X. Xxxxxxx, Xx.
---------------------------------
Name: Xxxxx X. Xxxxxxx, Xx.
Title: President
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December 16, 1994
WJAC, Inc.
c/o WJAC-TV
0000 Xxxxxxx Xxxx
Xxxxxxxxx, Xxxxxxxxxxxx 00000
RE: WJAC-TV (Johnstown, Pennsylvania)
Gentlemen:
The following shall comprise the agreement between us for the
affiliation of your television broadcasting station WJAC-TV (you and WJAC-TV
collectively herein called "Station") with the NBC Television Network (herein
called "NBC") and shall supersede and replace our prior agreement dated
December 30, 1989, except for the most recent amendment with respect to network
non-duplication protection under Federal Communications Commission ("FCC")
Rules Section 76.92.
1 Term. This Agreement shall be deemed effective as of 3:00 A.M., New
York City time on the 1st day of November, 1994, and, unless sooner
terminated as provided in this Agreement, it shall remain in effect
for a period of ten (10) years thereafter. It shall then be renewed
on the same terms and conditions for a further period of five (5)
years and for successive further periods of five (5) years each,
unless and until either party shall, at least twelve (12) months prior
to the expiration of the then current term, give the other party
written notice that it does not desire to have this Agreement renewed
for a further period.
2. NBC Programming.
(a) NBC shall deliver to Station for free, over-the-air television
broadcasting all programming which NBC makes available for
broadcasting in the community to which Station is presently
licensed by the FCC, except as otherwise expressly provided herein.
(b) NBC commits to supply sufficient programming throughout the term of
this Agreement for the hours presently programmed by it (the
"Programmed Time Periods"), which Programmed Time Periods are as
follows (the specified times are all local time in Station's community
of license):
Prime Time: Monday thru Saturday - 8:00 - 11:00 P.M.
Sunday - 7:00 - 11:00 P.M.
Late Night: Monday thru Thursday - 11:35 P.M. - 2:05 A.M.
Friday - 11:35 P.M. - 2:35 A.M.
Saturday - 11:30 P.M. - 1:00 A.M.
News: Monday thru Friday - 6:00 - 6:30 A.M.,
7:00 - 9:00 A.M., and 6:30 - 7:00 P.M.
Saturday - 7:00 - 9:00 A.M. and 6:30 - 7:00 P.M.
Sunday - 8:00 - 10:00 A.M. and 6:30 - 7:00 P.M.
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Daytime: Monday thru Friday - 10:00 A.M. - 12:00 Noon and
1:00 - 3:00 P.M.
Saturday - 10:00 A.M. - 12:30 P.M.
The selection, scheduling, substitution and withdrawal of any program
or portion thereof delivered to Station during the Programmed Time Periods
shall at all times remain within the sole discretion and control of NBC. The
parties acknowledge that local and network programming needs may change during
the term of this Agreement, and each party agrees throughout the term to
negotiate in good faith with the other party any proposed modification of the
Programmed Time Periods.
(c) In addition to the programming supplied pursuant to Paragraph 2(b)
above, NBC shall offer Station throughout the term of this Agreement a variety
of sports, special events and overnight news programming for television
broadcast at times other than the Programmed Time Periods. Station shall have
the right of first refusal with respect to any such programming good for
seventy-two (72) hours as against any other television station located in
Station's community of license or any television program transmission service
furnishing a television signal to Station's community of license, including,
but not limited to, any community antennae television system, subscription
television service, multipoint distribution system and satellite transmission
service. Station shall notify NBC of its acceptance or rejection of NBC's
offer of such programming as promptly as possible. Station's acceptance of
NBC's offer shall constitute Station's agreement to broadcast such programming
in accordance with the terms of such offer and this Agreement. Notwithstanding
any other provision in this Agreement, no pre-existing acceptance of NBC
programming shall be superseded or otherwise affected by this Agreement, and
those acceptances shall remain in full force and effect. With respect to NBC
programs outside the Programmed Time Periods (either offered or already
contracted for pursuant to this Agreement), nothing herein contained shall
prevent or hinder NBC from (i) substituting one or more sponsored or sustaining
programs, in which event NBC shall offer such substituted program or programs
to Station in accordance with the provisions of this Paragraph 2(c), or (ii)
canceling one or more such NBC programs; provided, however, that NBC shall
exercise all reasonable efforts to give Station at least three (3) weeks prior
written notice of such substitution or cancellation. Station shall not be
obligated to broadcast, and NBC shall not be obligated to continue to deliver,
subsequent to the termination of this Agreement, any programs which NBC may
have offered and which Station may have accepted during the term hereof.
3. Station Carriage in Programmed Time Periods.
(a) Station agrees that, subject only to preemption rights contained in
Paragraph 4(c) below, including Station's unqualified right to preempt for
local live coverage of news events, Station shall broadcast over Station's
facilities all NBC programming supplied to Station for broadcast in the
Programmed Time Periods on the dates and at the times the programs are
scheduled by NBC, except to the extent that Station is actually broadcasting
programming pursuant to (and within the specified limits of) a commitment
contemplated by Paragraph 3(b) below.
(b) As an inducement for NBC to enter into this Agreement, Station
covenants, represents and warrants to NBC that during any Broadcast Year (as
hereinafter defined) during the term hereof, Station shall preempt no more than
thirty (30) hours in the
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aggregate of NBC programs during the Prime Time Programmed Time Period for any
reason other than for the live coverage of news events (the "Prime Time
Preemption Amount"). For the purposes of this Agreement, a "Broadcast Year"
shall mean a twelve (12) month period during the term hereof which commences on
any September 1 during the term hereof and which ends on August 31 of the
immediately following year. Station hereby confirms that its rights and
obligations under this Paragraph 3(b) are consistent with its rights and
obligations referred to in Paragraph 4(c) below.
(c) The Station hereby agrees to accept and clear all sports programming
offered to the Station by NBC outside the Programmed Time Periods ("NBC Sports
Programming"), except for NBC sports programming which directly conflicts with
Station's coverage of sports events and special events of particular local
interest (collectively, such coverage of such sports events and special events
are referred to below as "Special Programs"). Station acknowledges the
substantial investment in network sports programming to be incurred during the
term of this Agreement in order to provide Station with network-quality sports
programming. Station further acknowledges that in view of NBC's substantial
investment in network sports programming and Station's rights under this
Paragraph 3(c), Station does not foresee any need to substitute programming of
any kind for NBC sports Programming, except as follows with respect to Special
Programs. Station agrees not to broadcast more than fifty (50) hours of
Special Programs outside the Programmed Time Periods in the aggregate during
any Broadcast Year during the term of this Agreement which would conflict with
NBC Sports Programming outside the Programmed Time Periods (the "Sports
Preemption Amount").
(d) Notwithstanding the foregoing provisions of subparagraphs (b) and (c)
above and without limiting the provisions thereof, Station agrees that, in any
one (1) month period during a Broadcast Year, Station's preemptions of NBC
Prime Time programs and NBC Sports Programming shall not exceed 20% of,
respectively, the Prime Time Preemption Amount and the Sports Preemption
Amount, unless otherwise consistent with Station's programming practice.
4. Preemptions.
(a) In the event that Station, for any reason, fails to broadcast or
advises NBC that it will not broadcast any NBC programming as provided herein,
then, in each case, Station, upon notice from NBC to Station, shall broadcast
such omitted programming and the commercial announcements contained therein (or
any replacement programming and the commercial announcements contained therein)
during a time period or periods which the parties shall promptly and mutually
agree upon and which shall, to the extent possible, be of a quality and rating
value comparable to that of the time period or periods at which such omitted
programming was not broadcast as provided herein. In the event that the
parties do not promptly agree upon a time period or periods as provided in the
preceding sentence, then, without limitation to any other rights of NBC under
this Agreement or otherwise, NBC shall have the right to license the broadcast
rights to the applicable omitted programming (or replacement programming) to
another television station located in Station's community of license.
(b) For the purposes of this Agreement, an "Authorized Preemption" shall
mean: any failure to broadcast due to force majeure as provided for in
Paragraph 12 below, any preemption permitted by Paragraphs 3(b), 3(c) or 3(d)
above, and any preemption permitted by Paragraph 4(c) below. Any other
preemption or failure to broadcast any
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NBC programming shall be deemed an "Unauthorized Preemption" and, without
limiting any other rights of NBC under this Agreement or otherwise, upon NBC's
request, Station shall pay NBC, or NBC may deduct or offset from any amounts
payable to Station hereunder or under any other agreement between Station and
NBC (or an entity controlling, controlled by or under common control with NBC),
an amount equivalent to NBC's loss in net advertising revenues attributable to
the failure of Station to broadcast such program in Station's market as
scheduled by NBC, which amount shall be calculated in accordance with Exhibit A
hereto. Any failure by Station to pay any amount due under this Paragraph 4(b)
shall be deemed a material breach of this Agreement, and NBC shall have the
option, exercisable in its sole discretion upon thirty (30) days written notice
to Station, to either (i) terminate Station's right to broadcast any one or
more series or other NBC programs, as NBC shall elect, and, to the extent and
for the period(s) that NBC elects, thereafter license the broadcast rights to
such series or other NBC program(s) to any other television station or stations
located in Station's community of license or (ii) unless the breach is cured
within such thirty (30) day period, terminate this Agreement.
(c) With respect to programs offered or already contracted for pursuant to
this Agreement, nothing herein contained shall be construed to prevent or
hinder Licensee from: (i) rejecting or refusing any NBC program which Station
reasonably believes to be unsatisfactory or unsuitable or contrary to the
public interest, or (ii) substituting a program which, in Station's opinion, is
of greater local or national importance; provided, however, that Station shall
give NBC written notice of each such rejection, refusal or substitution, and
the reason therefor, at least three (3) weeks in advance of the scheduled
broadcast, or as soon thereafter as possible (including an explanation of the
cause for any lesser notice). Programming shall be deemed to be unsatisfactory
or unsuitable or contrary to the public interest only if: (A) it is delivered
in a form which does not meet accepted standards of good engineering practice;
(B) it does not comply with the rules and regulations of the FCC; or (C)
Station reasonably believes that such programming would not meet prevailing
contemporary standards of good taste in its community of license. Station
acknowledges that NBC programming previously broadcast by Station has been
consistent with the foregoing standards; Station also agrees that Station's
reasonable belief that an NBC program does not meet such standards will be
based on a substantial difference in such program's style and content from NBC
programs previously broadcast by Station, unless the relevant standards in the
Station's community of license have changed. Station confirms that no NBC
programming shall be deemed to be unsatisfactory, unsuitable or contrary to the
public interest based on programming performance or ratings, advertiser
reaction or the availability of alternative programming (including, but not
limited to, sporting events, program length commercials and infomercials, and
other paid programming) which Station believes to be more profitable or more
attractive. Station acknowledges the substantial investment in network
programming to be incurred during the term of this Agreement in order to
provide Station with network-quality news, public affairs, entertainment,
sports, children's and other programming during the Programmed Time Periods.
Station further acknowledges that in view of NBC's substantial investment in
network programming, the amount of broadcast time available to Station outside
the Programmed Time Periods and Station's rights under Paragraph 3(b) above,
Station does not foresee any need to substitute programming of any kind for NBC
programming, except in those circumstances requiring local live coverage of
news events.
5. Station Compensation. In further consideration of Station's
performance of its
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obligations under this Agreement NBC shall compensate Station as follows:
(a) (i) NBC shall pay Station for Station's broadcast of each network
sponsored program or portion thereof (except those specified in Paragraph 5(b)
below) which is broadcast during the Live Time Period therefor the amount
resulting from multiplying the following:
(A) Station's Network Station Rate, which is $1950; by
(B) The percentage set forth in the compensation matrix table
attached hereto as Exhibit B (the "Compensation Table") opposite the
applicable time period; by
(C) The fraction of an hour substantially occupied by such program
or portion thereof; by
(D) The fraction of the aggregate length of all Commercial
Availabilities during such program or portion thereof occupied by
Network Commercial Announcements.
As used herein, "Live Time Period" shall mean the time period or
periods as specified by NBC for the broadcast of a program by Station;
"Commercial Availability" shall mean a period of time made available by NBC
during a network sponsored program for one or more Network Commercial
Announcements; and "Network Commercial Announcement" shall mean a commercial
announcement broadcast over Station during a Commercial Availability and paid
for by or on behalf of one or more of NBC's network advertisers, not including,
however, announcements consisting of billboards, credits, public service
announcements, promotional announcements and announcements required by law.
(ii) For each network sponsored program or portion thereof (except those
specified in Paragraph 5(b) below) which is broadcast by Station during a time
period other than the Live Time Period therefor, NBC reserves the right, in its
sole discretion, to withhold payment of compensation for such program. If NBC
does not withhold payment of compensation for such program, NBC shall pay
Station as if Station had broadcast the program or portion thereof during such
Live Time Period, except that if the percentage set forth in the Compensation
Table opposite the time period during which Station broadcasts the program or
portion thereof is less than that set forth opposite such Live Time Period, NBC
shall pay Station on the basis of the time period during which Station
broadcasts the program or portion thereof.
(b) NBC shall pay Station such amounts as NBC and Station shall agree upon
for all network sponsored programs broadcast by Station consisting of:
(i) Sports programs;
(ii) Special events programs, and
(iii) Programs for which NBC specifies a Live Time Period which
straddles any of the time period categories in the Compensation Table.
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(c) (i) On or about the fifteenth day of the last month of each
calendar quarter during the term hereof, subject to the timely receipt of
reports requested under Paragraph 10 below, NBC shall pay Station, by
electronic transfer or such other means as NBC shall determine, an estimate of
the amounts due hereunder for such calendar quarter. NBC shall make the
appropriate adjustment for the payment actually due for such calendar quarter
in the payment of the estimated amount due for the next calendar quarter. NBC
shall calculate the amounts due hereunder on a weekly basis and shall report
such amounts to Station within a reasonable period of time after the close of
each month during the term.
(ii) From the amounts otherwise payable to Station hereunder, NBC
shall deduct for each calendar quarter during the term hereof a sum equal to
217% of Station's Network Station Rate (the "Waiver Percentage"). This
deduction shall be calculated on a weekly basis, with 4.2857 as the agreed
number of weeks per month, and shall be reported to Station with the reports
due under subparagraph 5(c) (i) above. NBC shall make other deductions from
the amounts otherwise payable to Station hereunder for additional services made
available by NBC and utilized by Station such as, but not limited to, NBC News
Channel.
(d) (i) Subject to the limitations set forth in the following
sentence, NBC reserves the right as part of a general rate revision to
reevaluate and change at any time: (A) the Network Station Rate set forth in
subparagraph 5(a) (i) above, (B) the percentages set forth in the Compensation
Table, or (C) the Waiver Percentage set forth in subparagraph 5(c)(ii) above,
by giving written notice to Station at least thirty (30) days prior to the
effective date of such change. Notwithstanding the foregoing, NBC agrees that:
(X) the Compensation Table attached hereto as Exhibit B shall be modified
during the term of this Agreement only as mutually agreed to by NBC and Station
or as may be recommended by the NBC Affiliate Board; and (Y) NBC may increase
the Waiver Percentage only by reason of an increase in NBC's technical costs of
delivering programming to the NBC Television Network; provided that any such
increase in the Waiver Percentage shall be subject to review by the NBC
Affiliate Board.
(ii) Notwithstanding anything contained in subparagraph 5(d)(i) to
the contrary, the parties acknowledge that the payment of compensation to
Station hereunder is in consideration of certain commitments by Station,
including commitments regarding Station's local news program schedule and
promotion of NBC programming as respectively set forth in Exhibits C and D
attached hereto, which Exhibits are incorporated herein by this reference. In
the event that Station does not fulfill (A) the commitments set forth in
Exhibit C or (B) such commitments as are set forth in Exhibit D in all years
during the term of this Agreement, NBC reserves the right to decrease Station's
Network Station Rate and the percentages in the Compensation Table and to
increase Station's Waiver Percentage by notifying Station in writing at least
ninety (90) days prior to the effective date of such change.
6. Additional Consideration. In consideration of Station's entering into
this Agreement and Station's performance of its obligations under this
Agreement, NBC agrees to pay to WJAC, Inc. the additional amounts (the
"Additional Payments") set forth on Exhibit E hereto.
7. Local Commercial Announcements.
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Station shall at all times during the term of this Agreement be
entitled to the same number of local commercial announcements in and adjacent
to NBC programming as are made available to NBC affiliates generally at such
time. In the even of a material reduction in the total aggregate duration in
minutes of all local commercial announcements available to Station in any
Broadcast Year (as compared with the prior Broadcast Year) in and adjacent to
regularly scheduled NBC programming then offered (not including national sports
programming and other special events), the effects of which reduction are not
offset by comparable economic benefit to the Station, Station's sole remedy
shall be the right to terminate this Agreement upon ninety (90) days written
notice, which notice may be served by Station within sixty (60) days after the
end of any Broadcast Year in which such material reduction occurs. The parties
agree, however, that if such comparable economic benefit is received by Station
prior to the end of such ninety (90) day notice period, such termination shall
not become effective.
8. Delivery. NBC shall transmit the programming hereunder by satellite and
shall notify Station as to both the satellite and transponder being used for
such transmission, and the programming shall be deemed delivered to Station
when transmitted to the satellite. Where, in the opinion of NBC, it is
impractical or undesirable to furnish a program over satellite facilities, NBC
may deliver the program to Station in any other manner, including but not
limited to, in the form of motion picture film, video tape or other recorded
version, postage prepaid, in sufficient time for Station to broadcast the
program at the time scheduled. Such recordings shall be used only for a single
television broadcast over Station, and Station shall comply with all NBC
instructions concerning the disposition to be made of each such recording
received by Station hereunder.
9. Conditions of Station's Broadcast. Station's broadcast of NBC programming
shall be subject to the following terms and conditions:
(a) Station shall not make any deletions from, or additions or
modifications to, any NBC program furnished to Station hereunder or any
commercial, NBC identification, program promotional or production credit
announcements or other interstitial material contained therein, nor broadcast
any commercial or other announcements (except emergency bulletins) during any
such program, without NBC's prior written authorization. Station may, however,
delete announcements promoting any NBC program which is not to be broadcast by
Station, provided that such deletion shall be permitted only in the event and
to the extent that Station substitutes for any such deleted promotional
announcements other announcements promoting NBC programs to be broadcast by
Station.
(b) For purposes of identification of Station with the NBC programs, and
until written notice to the contrary is given by NBC, Station may superimpose
on various Entertainment programs, where designated by NBC, a single line of
type, not to exceed fifty (50) video lines in height and situated in the lower
eighth raster of the video screen, which single line shall include (and be
limited to) Station's call letters, community of license or home market,
channel number, and the NBC logo. No other addition to any Entertainment
program is contemplated by this consent, and the authorization contained herein
specifically excludes and prohibits any addition whatsoever to News and Sports
programs, except identification of Station as provided in the preceding
sentence as required by the FCC.
(c) The placement and duration of station-break periods provided for
locally
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originated announcements between NBC programs or segments thereof shall
be designated by NBC. Station shall broadcast each NBC program delivered to
Station hereunder from the commencement of network origination until the
commencement of the terminal station break.
(d) In the event of the confirmation by NBC of any violation by Station of
any of the provisions of this Paragraph 9, NBC may, in its reasonable
discretion, withhold an amount of compensation otherwise due Station under
Paragraph 5 above which is appropriate in view of the nature of the specific
violation, it being understood that the amount withheld for any violation shall
not exceed the total compensation due Station for the week in which such
violation occurs. Nothing herein contained shall limit the rights of Station
under Paragraph 4(c) above.
10. Station Reports. Station shall submit to NBC in writing, upon forms
provided by NBC, such reports as NBC may request covering the broadcast by
Station of programs furnished to Station hereunder.
11. Music Performance Rights. All programs delivered to Station pursuant to
this Agreement shall be furnished with all music performance rights necessary
for broadcast by Station included. Station shall have no responsibility for
obtaining such rights from ASCP, BMI or other music licensing societies insofar
as the programs delivered by NBC to Station for broadcasting are concerned. As
used in this paragraph, "programs" shall include, but shall not be limited to,
program and promotional material and commercial and public service
announcements furnished by NBC. Station shall be responsible for all music
license requirements for any commercial and public service announcements or
other material inserted by Station within or adjacent to the programs as
permitted under the terms of this Agreement, except for cut-ins produced by or
on behalf of NBC and inserted by Station at NBC's direction.
12. Force Majeure. Neither Station nor NBC shall incur any liability
hereunder because of NBC's failure to deliver, or the failure of Station to
broadcast, any or all programs due to failure of facilities, labor disputes,
government regulations or causes beyond the reasonable control of the party so
failing to deliver or to broadcast. Without limiting the generality of the
foregoing, NBC's failure to deliver a program for any of the following reasons
shall be deemed to be for causes beyond NBC's reasonable control: cancellation
of a program because of the death, illness or refusal to appear or perform of a
star or principal performer thereon, or because of such person's failure to
conduct himself or herself with due regard to social conventions and public
morals and decency, or because of such person's commission of any act or
involvement in any situation or occurrence tending to degrade him or her in
society, or bringing him or her into public disrepute, contempt, scandal or
ridicule, or tending to shock, insult or offend the community, or tending to
reflect unfavorably upon NBC or the program sponsor.
13. Indemnification. NBC shall indemnify, defend and hold Station, its
parent, subsidiary and affiliated companies, and their respective directors,
officers and employees, harmless from and against all claims, damages,
liabilities, costs and expenses (including reasonable attorneys' fees) arising
out of the use by Station, in accordance with this Agreement, of any program or
other material as furnished by NBC hereunder, provided that Station promptly
notifies NBC of any claim or litigation to which this indemnity shall apply,
and that Station cooperates fully with NBC in the defense or settlement of such
claim or litigation. Similarly, Station shall indemnify, defend and hold
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NBC, its parent, subsidiary and affiliated companies, and their respective
directors, officers and employees, harmless with respect to material added to
or deleted from any program by Station, except for cut-ins produced by or on
behalf of NBC and inserted by Station at NBC's direction. These indemnities
shall not apply to litigation expenses, including attorneys' fees, which the
indemnified party elects to incur on its own behalf. Except as otherwise
provided herein, neither Station nor NBC shall have any rights against the
other for claims by third persons, or for the non-operation of facilities or
the non-furnishing of programs for broadcasting, if such non-operation or
non-furnishing is due to failure of equipment, actions or claims by any third
person, labor disputes, or any cause beyond such party's reasonable control.
14. Station's Right of First Negotiation. Throughout the term of this
Agreement, NBC shall give Station prompt notice of any determination by NBC to
engage in new over-the-air broadcast ventures within Station's community of
license (whether or not involving the transmission of television programs, but
excluding any acquisition of an ownership interest in any broadcast television
station) (a "Broadcast Venture"). NBC shall negotiate exclusively with Station
in good faith, for a period of time following such notice to Station as shall
be determined by NBC to be appropriate to the circumstances and as shall be
specified in such notice, with respect to Station's participation on a
financial and/or operational basis in any such Broadcast Venture within
Station's community of license before NBC may enter into any such negotiations
with a Third Party (as defined below) within such community of license. "Third
Party" shall mean any person or entity other than an NBC Party; "NBC Party"
shall mean any of NBC, National Broadcasting Company, Inc. or their respective
parent, subsidiary, affiliated, related or successor entities.
15. Change in Operations. Station represents and warrants that it holds a
valid license granted by the FCC to operate the Station as a television
broadcast station; such representation and warranty shall constitute a
continuing representation and warranty by Station. In the event that Station's
transmitter location, power, frequency, programming format or hours of
operation are materially changed at any time so that Station is of less value
to NBC as a broadcaster of NBC programming than at the date of this Agreement,
then NBC shall have the right to terminate this Agreement upon thirty (30) days
prior written notice to Station.
16. Assignment.
(a) This agreement shall not be assigned without the prior written consent
of NBC, and any permitted assignment shall not relieve Station of its
obligations hereunder. Any purported assignment by Station without such
consent shall be null and void and not enforceable against NBC.
(b) Station agrees to include as a condition of any proposed assignment or
transfer a contractually binding provision that the assignee or transferee
shall assume and become bound by this Agreement for (i) the remainder of the
then-current term of this Agreement or (ii) three (3) years from the date of
said assignment or transfer, whichever period is greater. Station acknowledges
that any such assignment or transfer which does not so provide for such
assumption and for NBC's right to extend the term of this Agreement will cause
NBC irreparable injury for which damages are not an adequate remedy. Therefore,
Station agrees that NBC shall be entitled to seek an injunction or similar
relief from any court of competent jurisdiction restraining Station from
committing any violation
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of this Paragraph 16(b).
(c) Station agrees that if any application is made to the FCC pertaining
to an assignment or a transfer of control of Station's license, or any interest
therein, Station shall immediately notify NBC in writing of the filing of such
application. Except as to "short form" assignments or transfers of control
made pursuant to Section 73.3540(f) of the FCC Rules, NBC shall have the right
to terminate this Agreement in the event of any assignment or transfer.
Station agrees, except in the case of "short form" assignments or transfers of
control, that promptly following Station's notice to NBC, Station (i) shall
arrange for a meeting between NBC and the proposed assignee or transferee to
review the financial and operating plans of the proposed assignee or
transferee, and (ii) shall procure and deliver to NBC, in form satisfactory to
NBC, the agreement of the proposed assignee or transferee that, upon
consummation of the assignment or transfer of control of the Station's license,
the assignee or transferee will assume and perform this Agreement in its
entirety without limitation of any kind. If Station complies with its
obligations set forth in the preceding sentence and NBC does not terminate this
Agreement upon written notice to Station within the thirty (30) day period
following the later of the meeting with the proposed assignee or transferee or
the delivery to NBC of a satisfactory assumption agreement, NBC shall be deemed
to have consented to the assignment or transfer of control.
17. Unauthorized Copying and Transmission. Station shall not authorize,
cause, or permit, without NBC's consent, any program or other material
furnished to Station hereunder to be recorded, duplicated, rebroadcast or
otherwise transmitted or used for any purpose other than broadcasting by
Station as provided herein. Notwithstanding the foregoing, Station shall not
be restricted in the exercise of its signal carriage rights pursuant to any
applicable rule or regulation of the FCC with respect to retransmission of its
broadcast signal by any cable system or multichannel video program distributor
("MVPD"), as defined in Section 76.64(d) of the FCC Rules, which (a) is located
within the Area of Dominant Influence ("ADI"), as defined by Arbitron, in which
Station is located, or (b) was actually carrying Station's signal as of April
1, 1993, or (c) with respect to cable systems, serving an area in which Station
is "significantly viewed" (as determined by the FCC) as of April 1, 1993;
provided, however, that any such exercise pursuant to FCC Rules with respect to
NBC programs shall not be deemed to constitute a license by NBC. NBC reserves
the right to restrict such signal carriage with respect to NBC programming in
the event of a change in applicable law, rule or regulation.
18. Limitations on Retransmission Consent. In consideration of the grant by
NBC to Station of the non-duplication protection provided in the most recent
amendment to this Agreement, Station hereby agrees as follows:
(a) Station shall not grant consent to the retransmission of its
broadcast signal by any cable television system, or, except as provided in
Paragraph 18(b) below, to any other MVPD whose carriage of broadcast signals
requires retransmission consent, if such cable system or MVPD is located
outside the ADI to which Station is assigned, unless Station's signal was
actually carried by such cable system or MVPD as of April 1, 1993. or, with
respect to such cable system, is "significantly viewed" (as determined by the
FCC) as of April 1, 1993; provided, however, that at each renewal of the
Agreement, in the event Station can demonstrate to NBC that it is
"significantly viewed" (as determined by the FCC) in areas in addition to those
in which it was "significantly viewed" as of April 1, 1993 ("Additional Viewing
Areas"), NBC agrees that it will negotiate
12
in good faith with Station regarding a possible extension of Station's grant of
the right to retransmit its broadcast signal to cable systems in the Additional
Viewing Areas.
(b) Station shall not grant consent to the retransmission of its broadcast
signal by any MVPD that provides such signal to any home satellite dish user,
unless such user is located within Station's own ADI or is an "unserved
household" as defined in Section 119(d) or any successor provision of Title 17
of the United States Code.
19. Remedies for Unauthorized Copying and Transmission. If Station violates
any of the provisions set forth in Paragraphs 17 and 18 above, NBC may, in
addition to any other of its rights or remedies at law or in equity under this
Agreement or any amendment thereto, terminate this Agreement by written notice
to Station given at least ninety (90) days prior to the effective date of such
termination.
20. Applicable Law. The obligations of Station and NBC under this Agreement
are subject to all applicable federal, state, and local laws, rules and
regulations (including, but not limited to, the Communications Act of 1934, as
amended, and the rules and regulations of the FCC), and this Agreement and all
matters or issues collateral thereto shall be governed by the law of the State
of New York applicable to contracts negotiated, executed and performed entirely
therein.
21. Waiver. A waiver by either of the parties hereto of a breach of any
provision of this Agreement shall not be deemed to constitute a waiver of any
preceding or subsequent breach of the same provision or any other provision
hereof.
22. Notices. Any notices hereunder shall be in writing and shall be given by
personal delivery, overnight courier service, or registered or certified mail,
addressed to the respective addresses set forth on the first page of this
Agreement or at such other address or addresses as may be specified in writing
by the party to whom the notice is given. Such notices shall be deemed given
when personally delivered, delivered to an overnight courier service or mailed,
except that notice of change of address shall be effective only from the date
of its receipt.
23. Captions. The captions of the paragraphs in this Agreement are for
convenience only and shall not in any way affect the interpretation hereof.
24. Entire Agreement. The foregoing constitutes the entire agreement between
Station and NBC with respect to the subject matter hereof, all prior
understandings being merged herein, except for the most recent amendment with
respect to network non-duplication protection under FCC Rules Section 76.92.
This Agreement may not be changed, modified, renewed, extended or discharged,
except as specifically provided herein or by an agreement in writing signed by
the parties hereto.
25. Confidentiality. The parties agree to use their best efforts to preserve
the confidentiality of this Agreement and of the terms and conditions set forth
herein, and the exhibits annexed hereto, to the fullest extent permissible by
law. The parties recognize that Section 73.3613 of the FCC's Rules and
Regulations requires the filing with the FCC of television network affiliation
agreements by each affiliate, but are unaware of any requirement for the filing
of exhibits annexed to such affiliation agreements. In the event that the FCC
should request either party to file said exhibits, that party shall give prompt
notice to the other, and shall submit said exhibits to the FCC with a request
that said
13
exhibits be withheld from public inspection pursuant to Section 0.459 of the
FCC's Rules and Regulations on the grounds that said exhibits contain
confidential commercial or financial information that would customarily be
guarded from competitors and not be released to the public.
26. Counterparts. This Agreement may be signed in any number of counterparts
with the same effect as if the signature to each such counterpart were upon the
same instrument.
If the foregoing is in accordance with your understanding, please
indicate your acceptance on the copy of this Agreement enclosed for that
purpose and return that copy to NBC.
Very truly yours,
NATIONAL BROADCASTING COMPANY, INC.
By: /s/ Xxxxxx X. Xxxxx
----------------------------------
AGREED:
WJAC, Inc.
By: /s/ Xxxxx X. Xxxxxxx, Xx.
---------------------------
14
EXHIBIT "A"
Adjustments due to an Unauthorized Preemption of an NBC program (as
utilized in Paragraph 4(b) of the Agreement) will be calculated using the
following two factors:
1. "Station's NBC delivery percentage" which is the Station's audience
contribution to NBC Network programs expressed as a percentage. (This is the
same NBC delivery percentage used in the annual compensation evaluation.)
2. "Program revenue" which is the average NBC Network revenue for the
preempted program. (NOTE: Program revenue will be the average revenue per
program based on total annual revenue for that program, except revenue for each
prime time program, which will be adjusted for the day of the week and the
quarter in which the program is aired.)
Station's NBC delivery percentage is multipled by the program revenue
to yield the dollar adjustment. An example:
Station preempts "Program X"
Station's NBC Network delivery % = 2.1%
NBC's revenue for "Program X" = $900,000
$900,000 x 2.1% = $18,900 payment to NBC
15
EXHIBIT "B"
WJAC-TV, JOHNSTOWN, PENNSYLVANIA
Compensation Matrix
(NETWORK STATION RATE $1950 X HOURS CARRIED X % BELOW)
MON - SUN 6 PM - 11 PM 30%
--------------------------------------------------------------------------------
MON - SUN 5 PM - 6 PM * 15%
11 PM - 1 AM
SAT - SUN 4 PM - 5 PM
--------------------------------------------------------------------------------
MON - FRI 9 AM - 5 PM 13.12%
--------------------------------------------------------------------------------
SUN 7 AM - 4 PM 10.5%
SAT 2 PM - 4 PM
--------------------------------------------------------------------------------
SAT 7 AM - 2 PM 7.88%
--------------------------------------------------------------------------------
NIGHTLY NEWS MON - FRI 0%
NIGHTLY NEWS SAT - SUN 10%
--------------------------------------------------------------------------------
TONIGHT SHOW 7.5%
--------------------------------------------------------------------------------
LATE NIGHT 10.25%
--------------------------------------------------------------------------------
FRIDAY NIGHT 4.75%
--------------------------------------------------------------------------------
LATER 4%
--------------------------------------------------------------------------------
SATURDAY NIGHT LIVE 6.67%
--------------------------------------------------------------------------------
*EXCLUDING NIGHTLY NEWS
All times above are expressed in terms of your station's then current local
time.
16
EXHIBIT "C"
WJAC-TV NEWS PROGRAMS
Monday - Friday
6:30 - 7:00 A.M.
12:00 Noon - 12:30 P.M.
5:30 - 6:30 P.M.
11:00 - 11:35 P.M.
Saturday
6:00 - 6:30 P.M.
11:00 - 11:30 P.M.
Sunday
6:00 - 6:30 P.M.
11:00 - 11:35 P.M.
