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EXHIBIT 10.1(4)
CBS TELEVISION NETWORK
A Division of CBS Inc.
AFFILIATION AGREEMENT
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CBS TELEVISION NETWORK, A Division of CBS Inc., ▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇,
▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ("CBS"), and WWL-TV, INC., ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ("Broadcaster"), licensed to operate television
station WWL-TV at NEW ORLEANS, LOUISIANA on channel number 4 ("Affiliated
Station"), hereby mutually covenant and agree, as of the 9TH day of DECEMBER,
1994, as follows:
1. Offer, Acceptance and Delivery of Network Programs.
Broadcaster shall have a "first call" on CBS network television programs
("Network Programs") as follows:
(a) Offer of Network Programs.
CBS shall offer to Broadcaster for broadcasting by Affiliated Station
those Network Programs which are to be broadcast on a network basis by any
television broadcast station licensed to operate in Affiliated Station's
community of license. (See Rider I.)
(b) Acceptance of Network Programs.
As to any offer described in Paragraph 1(a) of this Agreement,
Broadcaster may accept such offer only by notifying CBS, by means of CBS's
computer-based communications system, of such acceptance within 72 hours
(exclusive of Saturdays, Sundays and holidays), or such longer period as CBS
may specify therein, after such offer; provided, however, that, if the first
broadcast referred to in such offer is scheduled to occur less than 72 hours
after the making of the offer, Broadcaster shall notify CBS of the acceptance
or rejection of such offer as promptly as possible and in any event prior to
the first broadcast time specified in such offer. Such acceptance shall
constitute Broadcaster's agreement that Affiliated Station will broadcast such
Network Program or Programs in accordance with the terms of this Agreement and
of such offer, and so long, as Affiliated Station so broadcasts such Network
Program or Programs, CBS will not, subject to its rights in the program
material, authorize the broadcast thereof on a network basis by any other
television broadcast station licensed to operate in Affiliated Station's
community of license; provided, however, that CBS shall have the right to
authorize any television broadcast station, wherever licensed to operate, to
broadcast any Network Program consisting of an address by the President of the
United States of America on a subject of public importance or consisting of
coverage of a matter of immediate national concern. If, as to any Network
Program offered hereunder, Broadcaster does not notify CBS as provided for in
this Paragraph l(b), Broadcaster shall have no rights with respect to such
Network Program, and CBS may offer such Network Program on the same or
different terms to any other television broadcast station or stations licensed
to operate in Affiliated
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Station's community of license; provided, however, that, if any Network Program
offered hereunder is accepted, by Affiliated Station, upon any other terms or
conditions to which CBS agrees in writing, then the provisions of this
Agreement shall apply to the broadcast of such Network Program except to the
extent such provisions are expressly varied by the terms and conditions of such
acceptance as so agreed to by CBS.
(c) Delivery of Network Programs.
Any obligation of CBS to furnish Network Programs for broadcasting by
Affiliated Station is subject to CBS's making of arrangements satisfactory to
it for the delivery of Network Programs to Affiliated Station.
2. Payment to Broadcasters.
(a) Definitions.
(i) "Live Time Period" means the time period or periods
specified by CBS in its initial offer of a Network
Program to Broadcaster for the broadcast of such
Network Program over Affiliated Station; (ii)
"Affiliated Station's Network Rate" shall be
$ [ ** ] and is used herein solely for purposes of
computing payments by CBS to Broadcaster; (iii)
"Commercial Availability" means a period of time made
available by CBS during a Network Commercial Program
for one or more Network Commercial Announcements or
local cooperative commercial announcements; and (iv)
"Network Commercial Announcements" means a commercial
announcement broadcast over Affiliated Station during
a Commercial Availability and paid for by or on
behalf of one or more CBS advertisers, but does not
include announcements consisting of billboards,
credits, public service announcements, promotional
announcements and announcements required by law.
(b) Payment for Broadcast of Programs.
For each Network Commercial Program or portion thereof, except those
specified in Paragraph 2(c) hereof, which is broadcast over Affiliated Station
during the Live Time Period therefor and the Live Time Period for which is set
forth in the table below, CBS shall pay Broadcaster the amount resulting from
multiplying the following:
(i) Affiliated Station's Network Rate; by
(ii) the percentage set forth below opposite such time
period (which, unless otherwise specified, is
expressed in Affiliated Station's then-current local
time); by
(iii) the fraction of an hour substantially occupied by
such program or portion thereof; by
(iv) the fraction of the aggregate length of all Commercial
Availabilities during such program or portion thereof
occupied by Network Commercial Announcements.
* Effective February 2, 1996 Affiliated Station's Network Rate will be
increased to $ [ ** ]. (See Rider II.)
** Confidential information has been omitted and filed separately with the SEC.
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Table
Monday through Friday
6:00 a.m. - 9:00 a.m . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7%
9:00 a.m. - 11:00 a.m . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15%
11:00 a.m. - 3:00 p.m . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6%
3:00 p.m. - 5:00 p.m . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12%
5:00 p.m. - 7:00 p.m . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15%
7:00 p.m. - 10:00 p.m . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28%
10:00 p.m. - 11:00 p.m . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15%
Saturday
7:00 a.m. - 8:00 a.m. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7%
8:00 a.m. - 5:00 p.m. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12%
5:00 p.m. - 7:00 p.m. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15%
7:00 p.m. - 10:00 p.m. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28%
10:00 p.m. - 11:00 p.m. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15%
Sunday
10:30 a.m. - 5:00 p.m. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12%
5:00 p.m. - 6:00 p.m. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15%
6:00 p.m. - 10:00 p.m. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28%
10:00 p.m. - 11:00 p.m. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15%
For each Network Program or portion thereof, except those specified in
Paragraph 2(c) hereof, which is broadcast by Affiliated Station during a time
period other than the Live Time Period therefor and the Live Time Period for
which is set forth in the table above, CBS shall pay Broadcaster as if
Affiliated Station had broadcast such program or portion thereof during such
Live Time Period, except that:
(i) if the percentage set forth above opposite the time
period during which Affiliated Station broadcast such
program or portion thereof is less than that set
forth opposite such Live Time Period, then CBS shall
pay Broadcaster on the basis of the time period
during which Affiliated Station broadcast such
program or portion thereof; and
(ii) if the time period or any portion thereof during
which Affiliated Station broadcast such program is
not set forth in the table above, then CBS shall pay
Broadcaster in accordance with Paragraph (c) hereof.
(c) Payment or Broadcast of Other Programs.
For the following programs, the percentages listed below (rather than
those daypart percentages set forth in the table in Paragraph 2(b) hereinabove)
shall be used in computing payment to Affiliated Station:
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Monday-Friday Daytime Game shows . . . . . . . . . . . . . . . . . 15%
Monday-Friday Continuing Dramas . . . . . . . . . . . . . . . . . 6%
Monday-Friday Late Night Daypart . . . . . . . . . . . . . . . . . 10.0% per telecast for live
clearance or 12.8% per telecast for
delayed clearance
Monday-Friday CBS EVENING NEWS . . . . . . . . . . . . . . . . . . 5%
CBS Sports programs . . . . . . . . . . . . . . . . . . . . . . . 0%
CBS SUNDAY MORNING and FACE THE NATION . . . . . . . . . . . . . . 8%
Notwithstanding the payment obligations set forth in Paragraph 2(b)
above, CBS shall pay Broadcaster such amounts as specified in CBS's program
offer for Network Programs broadcast by Affiliated Station consisting of (i)
special event programs (including, but not limited to, such programs as awards
programs, mini-series, movie specials, entertainment specials, special-time-
period broadcasts of regularly-scheduled series, and news specials such as
political conventions, election coverage, presidential inaugurations and
related events), (ii) paid political programming, and (iii) programs for which
CBS specified a Live Time Period, or which Affiliated Station broadcast during
a time period, any portion of which is not set forth in the table above.
(d) Deduction.
From the amounts otherwise payable to Broadcaster hereunder, there
shall be deducted, for each week of the term of this Agreement, a sum equal to
168% of Affiliated Station's Network Rate.
(e) Changes in Rate.
CBS may reduce Affiliated Station's Network Rate in connection with a
re-evaluation and reduction of the Affiliated Station Network Rate of CBS's
affiliated stations in general, by giving Affiliated Station at least thirty-
days' prior notice of such reduction in Affiliated Station's Network Rate in
which event Broadcaster may terminate this Agreement, effective as of the
effective date of any such reduction, on not less than fifteen-days' prior
notice to CBS. In order to reflect differences in the importance of
compensation payments to stations in markets of varying size, the size of any
general reduction of the Network Rate of CBS's affiliated stations pursuant to
this Paragraph 2(e) may vary to a reasonable degree according to each station's
market-size category (i.e., 1-50, 51-100, 101-150 or 151+) Further, CBS agrees
that in the event of such an across-the-board rate reduction, Affiliated
Station's Network Rate shall be reduced according until thirty days after the
effective date of the reduction, at which time, unless an additional
corresponding benefit of equal value has accrued to the station, the Network
Rate shall be restored to the previous level and a retroactive adjustment shall
be made to make up the compensation difference.
(f) Time of Payment.
CBS shall make the payments hereunder reasonably promptly after the
end of each four-week or five-week accounting period of CBS for Network
Commercial Programs broadcast during such accounting period.
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(g) Reports.
Broadcaster shall submit to CBS in the manner requested by CBS such
reports as CBS may reasonably request concerning the broadcasting of Network
Programs by Affiliated Station.
3. Term and Termination.
(a) Term.
The term of this Agreement shall be the period commencing on October
4, 1994 and expiring on [ ** ] provided; however, that, unless
Broadcaster or CBS shall notify the other at least six months prior to the
expiration of the original period or any subsequent five-year period that the
party giving such notice does not wish to have the term extended beyond such
period, the term of this Agreement shall be automatically extended upon the
expiration of the original period and each subsequent extension thereof for an
additional period of five years. Notwithstanding any provision of any offer or
acceptance under Paragraph 1 hereof, upon the expiration or any termination of
the term of this Agreement, Broadcaster shall have no right whatsoever to
broadcast over Affiliated Station any Network Program.
(b) Termination on Transfer of License or Interest in Broadcaster.
Broadcaster shall notify CBS forthwith if any application is made to
the Federal Communications Commission relating to a transfer either of any
interest in Broadcaster or of Broadcaster's license for Affiliated Station. In
the event that CBS shall reasonably disapprove of the proposed transferee, CBS
shall have the right to terminate this Agreement effective as of the effective
date of any such transfer (except a transfer within the provisions of Section
73.3540(f) of the Federal Communications Commission's present Rules and
Regulations) by giving Broadcaster notice thereof, and of its reasons for
disapproving of the proposed transferee, within thirty days after the date on
which Broadcaster gives CBS notice of the making of such application. If CBS
does not so terminate this Agreement, Broadcaster shall, prior to the effective
date of any such transfer of any interest in Broadcaster or of Broadcaster's
license for Affiliated Station, and as a condition precedent to such transfer,
procure and deliver to CBS, in form reasonably satisfaction to CBS, the
agreement of the proposed transferee that, upon consummation of the transfer,
the transferee will unconditionally assume and perform all obligations of
Broadcaster under this agreement. Upon delivery of said agreement to CBS, in
form satisfactory to it, the provisions of this Agreement applicable to
Broadcaster shall, effective upon the date of such transfer, be applicable to
such transferee.
Broadcaster's obligations to procure the assumption of this Agreement
by any transferee of Affiliated Station as a condition precedent to such
transfer shall be deemed to be of the essence of this Agreement; further,
Broadcaster expressly recognizes that money damages will be inadequate to
compensate CBS for the breach of such obligation, and that CBS shall
accordingly be entitled to equitable relief to enforce the same.
(c) Termination on Change of Transmitter Location, Power,
Frequency or Hours of Operation of Affiliated Station.
** Confidential information has been omitted and filed separately with the SEC.
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Broadcaster shall notify CBS forthwith if application is made to the
Federal Communications Commission to modify the transmitter location, power or
frequency of Affiliated Station or Broadcaster plans to modify the hours of
operation of Affiliated Station. CBS shall have the right to terminate this
Agreement, effective upon the effective date of such modification, by giving
Broadcaster notice thereof within thirty (30) days after the date on which
Broadcaster gives CBS notice of the application or plan for such modification.
If Broadcaster fails to notify CBS as required herein, then CBS shall have the
right to terminate this Agreement by giving Broadcaster thirty (30) days'
notice thereof within thirty (30) days of the date on which CBS first learns of
such application.
(d) Termination in the Event of Bankruptcy.
Upon one (1) month's notice, CBS may terminate this Agreement if a
petition in bankruptcy is filed by or on behalf of Broadcaster, or Broadcaster
otherwise takes advantage of any insolvency law, or an involuntary petition in
bankruptcy if filed against Broadcaster and not dismissed within thirty (30)
days thereafter, or if a receiver or trustee of any of Broadcaster's property
is appointed at any time and such appointment is not vacated within thirty (30)
days thereafter (it being understood that Broadcaster will have a similar right
of termination upon the occurrence of any such event with respect to CBS).
(e) Termination in the Event of Breach.
Each party, effective upon notice to the other, may, in addition to
its other rights, terminate this Agreement if any material representation,
warranty or agreement of the other party contained in this Agreement has been
breached.
4. Use of Network Programs.
(a) General.
Broadcaster shall not broadcast any Network Program over Affiliated
Station unless such Network Program has first been offered by CBS to
Broadcaster for broadcasting over Affiliated Station and has been accepted by
Broadcaster in accordance with this Agreement. Except with the prior written
consent of CBS, Broadcaster shall neither sell any Network Program, in whole or
in part, or any time therein, for sponsorship, nor otherwise use Network
Programs except as specifically authorized in this Agreement. Affiliated
Station shall not broadcast any commercial announcement or announcements during
any interval, within a Network Program, which is designated by CBS to
Affiliated Station as being for the sole purpose of making a station
identification announcement. Broadcaster shall, with respect to each Network
Program broadcast over Affiliated Station, broadcast such Network Program in
its entirety (including but not limited to commercial announcements,
billboards, credits, public service announcements, promotional announcements
and network identification), without interruption, alteration, compression,
deletion or addition of any kind, from the beginning of the Network Program to
the final system cue at the conclusion of the Network Program. Nothing herein
shall be construed as preventing Broadcaster's deletion of (i) part of a
Network Program in order to broadcast an emergency
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announcement or news bulletin; (ii) a promotional announcement for a Network
Program not to be broadcast over Affiliated Station (provided that Affiliated
Station shall broadcast an alternative promotional announcement for CBS network
programming in place of the deleted promotional announcement); (iii) such
words, phrases or scenes as Broadcaster, in the reasonable exercise of its
judgment, determines it would not be in the public interest to broadcast over
Affiliated Station; provided, however, that Broadcaster shall not substitute
for any material deleted pursuant to this clause (iii) any commercial or
promotional announcement of any kind whatsoever; and provided further that
Broadcaster shall notify CBS of every such deletion within 72 hours thereof.
Broadcaster shall not, without CBS's prior written consent, authorize or permit
any Network Program, recording, or other material furnished by CBS to
Broadcaster or Affiliated Station hereunder to be recorded, duplicated,
rebroadcast, retransmitted or otherwise used for any purpose whatsoever other
than broadcasting by Affiliated Station as provided herein; except that
Broadcaster may assert a right to carriage of Affiliated Station's signal by a
cable system pursuant to the provisions of Section 4 of the Cable Consumer
Protection and Competition Act of 1992 ("the 1992 Cable Act") and may, to the
extent permitted by paragraph 4(b) hereof, grant consent to the retransmission
of such signal by a cable system or other multichannel video programming
distributor, as defined by said Act, pursuant to the provisions of Section 6
thereof.
(b) Retransmission Consent.
Broadcaster may grant consent to the retransmission of Affiliated
Station's signal by a cable system or other multichannel video programming
distributor pursuant to the provisions of Section 6 of the 1992 Cable Act
(hereafter "retransmission consent"), provided that one of the following
conditions applies at the time retransmission consent is granted:
(i) the cable system or other multichannel program service on
which Affiliated Station's signal is to be retransmitted
serves television homes within Affiliated Station's television
market;
(ii) the majority of television homes served by the cable system or
other multichannel program service on which Affiliated
Station's signal is to be retransmitted are within a county or
community in which Affiliated Station's signal is, and has
been since October 5, 1992, "significantly viewed" as defined
in Section 76.54 of the FCC's rules; or
(iii) the cable system or other multichannel program service on
which Affiliated Station's signal is to be retransmitted
carried such signal on October 5, 1992, and does not receive
such signal by satellite delivery.
Notwithstanding anything to the contrary in the foregoing, in no case
shall retransmission consent be granted to a television receive-only satellite
service, or a direct broadcast satellite service, if Affiliated Station's
signal is to be retransmitted by such service to television homes outside of
Affiliated Station's television market other than "unserved household(s)," as
that term is defined in Section 119(d) of Title 17,
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United States Code, as in effect on October 5, 1992. For purposes of this
paragraph, a station's "television market" shall be defined in the same manner
as set forth in Sections 76.55(e) and 76.59 of the FCC's rules.
(c) Taped Recordings of Network Programs.
When authorized to make a taped delayed broadcast of a Network
Program, Broadcaster shall use Broadcaster-owned tape to record the Network
Program when transmitted by CBS only for a single broadcast by Affiliated
Station and shall erase the Program recorded on the tape within 24 hours of
broadcasting the Network Program and observe any limitations which CBS may
place on the exploitation of the Network Program so recorded and erased.
5. Rejection, Refusal, Substitution and Cancellation of Network Programs.
(a) Rights of Broadcaster and CBS.
With respect to Network Programs offered to or already accepted
hereunder by Broadcaster, nothing in this Agreement shall be construed to
prevent or hinder:
(i) Broadcaster from rejecting or refusing any such
Network Program which Broadcaster reasonably believes
to be unsatisfactory or unsuitable or contrary to the
public interest, or from substituting a program
which, in Broadcaster's opinion, is of greater local
or national importance; or
(ii) CBS from substituting one or more other Network
Programs, in which event CBS shall offer such
substituted program or programs to Broadcaster
pursuant to the provisions of Paragraph 1 hereof; or
(iii) CBS from canceling one or more Network Programs.
(b) Notice.
In the event of any such rejection, refusal, substitution or
cancellation by either party hereto, such party shall notify the other thereof
as soon as practicable by telex or by such computer-based communications system
as CBS may develop for notifications of this kind. Notice given to CBS shall be
addressed to CBS Affiliate Relations.
6. Disclosure of Information.
CBS shall endeavor in good faith, before furnishing any Network Program, to
disclose to Broadcaster information of which CBS has knowledge concerning the
inclusion of any matter in such Network Program for which any money, service or
other valuable consideration is directly or indirectly paid or promised to, or
charged or accepted by, CBS or any employee of CBS or any other person with
whom CBS deals in connection with the production or preparation of such Network
Program. As used in this Paragraph 6, 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 Network
Program
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"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 words are used in Section 317 of the
Communications Act of 1934 as amended. The provisions of this Paragraph 6
requiring the disclosure of information shall not apply in any case where,
because of a waiver granted by the Federal Communications Commission, an
announcement is not required to be made under said Section 317. The inclusion
in any such Network Program of an announcement required by said Section 317
shall constitute the disclosure to Broadcaster required by this Paragraph 6.
7. Indemnification.
CBS will indemnify Broadcaster from and against any and all claims, damages,
liabilities, costs and expenses arising out of the broadcasting, pursuant to
this Agreement, of Network Programs furnished by CBS to the extent that such
claims, damages, liabilities, costs and expenses are (i) based upon alleged
libel, slander, defamation, invasion of the right of privacy, or violation or
infringement of copyright or literary or dramatic rights; (ii) based upon the
broadcasting of Network programs as furnished by CBS, without any deletions by
Broadcaster; and (iii) not based upon any material added by Broadcaster to such
Network Programs (as to which deletions and added material Broadcaster shall,
to the like extent, indemnify CBS, all network advertisers, if any, on such
Network Program, and the advertising agencies of such advertisers).
Furthermore, each party will so indemnify the other only if such other party
gives the indemnifying party prompt notice of any claim or litigation to which
its indemnity applies; it being agreed that the indemnifying party shall have
the right to assume the defense of any or all claims or litigation to which its
indemnity applies and that the indemnified party will cooperate fully with the
indemnifying party in such defense and in the settlement of such claim or
litigation. Except as herein provided to the contrary, neither Broadcaster nor
CBS shall have any rights against the other party hereto for claims by third
persons or for the non-operation of facilities or the non-furnishing of Network
Programs for broadcasting if such non-operation or non-furnishing is due to
failure of equipment, action or claims by any third person, labor dispute or
any cause beyond such party's reasonable control.
8. News Reports Included in Affiliated Station's Local News Broadcasts.
As provided in the agreements pertaining to CBS Newsnet and CBS
regional news cooperatives (but as a separate obligation of this Affiliation
Agreement as well), Broadcaster shall make available, on request by CBS News,
coverage produced by Affiliated Station of news stories and breaking news
events of national and/or regional interest, to CBS News and to regional news
cooperatives operated by CBS News. Affiliated Station shall be compensated at
CBS News' then-prevailing rates for material broadcast by CBS News or included
in the national Newsnet service.
9. Non-Duplication of Network Programs.
(a) For purposes of this paragraph, a television station's
"Network Exclusivity Zone" shall mean the zone within thirty-five (35) miles of
the station's reference points, or, in the case of a "small market television
station," as defined in Section 76.92 of the FCC rules, the zone within 55
miles of said reference
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points; provided, however, that in no case shall the "Network Exclusivity Zone"
include an area within the Designated Market Area ("DMA"), as most recently
determined by the ▇.▇. ▇▇▇▇▇▇▇ Company, of another CBS Television Network
Affiliate. A station's "reference points" for purposes of this paragraph shall
be as defined in Section 73.658(m) of the FCC rules, and shall be deemed to
include, with respect to a station in a hyphenated market, the reference points
of each named community in that market.
(b) Broadcaster shall be entitled to exercise, within Affiliated
Station's Network Exclusivity Zone, the protection against duplication of
network programming, as provided by Sections 76.92 through 76.97 of the FCC
rules, with respect to a Network Program during the period beginning one (1)
day before and ending seven (7) days after the delivery of such Network Program
by CBS to Broadcaster; provided, however, that such right shall apply only to
Network Programs broadcast in the live time period as offered or on no more
than a one day delay as accepted by CBS; and provided further that nothing
herein shall be deemed to preclude CBS from granting to any other broadcast
television station licensed to any other community similar network
non-duplication rights within that station's network Exclusivity Zone, and
Broadcaster's aforesaid right of network non-duplication shall not apply with
respect to the transmission of the programs of another CBS affiliate (current
or future) by a "community unit," as that term is defined by the rules of the
FCC, located (wholly or partially) within the area in which Broadcaster's
Network Exclusivity Zone overlaps the Network Exclusivity Zone of that other
CBS affiliate.
(c) Broadcaster's network non-duplication rights under this
paragraph shall be subject to cancellation by CBS on six (6) months written
notice to Broadcaster. Any such cancellation by CBS shall not affect any of the
other rights and obligations of the parties under this Agreement.
10. Assignment, Conveyance and Conditions for Use of Descramblers.
(a) For value received, CBS hereby conveys, transfers, and assigns
to Broadcaster, all of its rights, title and interest in and to the tangible
personal property consisting of two (2) Videocipher 1B Descramblers (the
"Descramblers") subject to the following conditions:
(i) Broadcaster may not assign its rights in the
Descramblers to any party without CBS's written
approval.
(ii) At the termination or expiration of this Agreement,
Broadcaster's rights in the Descramblers shall cease
and Broadcaster shall take appropriate steps to
assign the Descramblers to CBS.
(b) Broadcaster shall use Descramblers solely in connection with
the broadcast rights granted and specified in the Agreement.
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(c) CBS makes no warranties whatsoever, either express or implied,
in respect of the equipment including, but not limited to, any warranties of
merchantability or fitness for a particular purpose.
(d) Broadcaster shall be solely responsible for any and all
installation and other related costs or charges in connection with the use and
installation of the Descramblers. Broadcaster shall at all times use and
maintain the Descramblers as instructed by CBS and the manufacturer and shall
use its best efforts to assure that the Descramblers are kept in good condition
and that no tampering with the Descramblers or other breach of security, as
defined in subparagraph (g) below, occurs. Broadcaster shall promptly notify
the CBS Satellite Management Center by telephone of any defect or failure in
the operation of the Descramblers and shall follow such procedures as are
established by CBS for the replacement or repair of the Descramblers. CBS shall
be responsible for the cost of correcting any defect or of rectifying any
failure of the Descramblers to operate during the Term of the Agreement,
provided that Broadcaster shall be responsible for any costs associated with
its failure to follow the prescribed procedures.
(e) In addition to its rights under paragraph 7 of the Agreement,
CBS will not be liable for any damages resulting from the operation of the
Descramblers or from the failure of the Descramblers to function properly or,
any loss, cost or damage to Broadcaster or others arising from defects or
non-performance of the Descramblers.
(f) If Broadcaster makes any use of the Descramblers in violation
of the terms and conditions of this Agreement, said use shall be a material
breach of this Agreement.
(g) Should Broadcaster's willful acts or negligence result in any
breach in the security of the two Descramblers covered by this Agreement, such
breach of security shall be a material breach of this Agreement. Breach of
security shall include but not be limited to any theft of all or part of the
Descramblers, any unauthorized reproduction of all or part of the Descramblers,
any unauthorized reproduction of the code involved in descrambling the network
feed from CBS to Broadcaster, or any related misappropriation of the physical
property or intellectual property contained in the Descramblers.
11. General.
(a) As of the beginning of the term hereof, this Agreement takes
the place of, and is substituted for, any and all television affiliation
agreements heretofore existing between Broadcaster and CBS concerning
Affiliated Station, subject only to the fulfillment of any obligations
thereunder relating to events occurring prior to the beginning of the term
hereof. This Agreement cannot be changed or terminated orally and no waiver by
either Broadcaster or CBS of any breach of any provision hereof shall be or be
deemed to be a waiver of any preceding or subsequent breach of the same or any
other provision of this Agreement.
(b) The obligations of Broadcaster and CBS under this Agreement
are subject to all applicable federal, state and local law, rules and
regulations (including but not limited to the Communications Act of 1934 as
amended and the Rules and Regulations of the Federal Communications Commission)
and this
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Agreement and all matters or issues collateral thereto shall be governed by the
law of the State of New York applicable to contracts performed entirely
therein.
(c) Neither Broadcaster nor CBS shall be or be deemed to be or
hold itself out as the agent of the other under this Agreement.
(d) Unless specified otherwise, all notices given hereunder shall
be given in writing, by personal delivery, mail, telegram, telex system or
private wire at the respective addresses of Broadcaster and CBS set forth
above, unless either party at any time or times designates another address for
itself by notifying the other party thereof by certified mail, in which case
all notices to such party shall thereafter be given at its most recently so
designated address. Notice given by mail shall be deemed given on the date of
mailing thereof with postage prepaid. Notice given by telegram shall be deemed
given on delivery of such telegram to a telegraph office with charges therefor
prepaid or to be billed to the sender thereof. Notice given by private wire
shall be deemed given on the sending thereof.
(e) The titles of the paragraphs in this Agreement are for
convenience only and shall not in any way affect the interpretation of this
Agreement.
(f) In the event that CBS enters into an affiliation agreement
with respect to any other station (including a CBS Owned television station)
which contains terms more favorable to such other station than those afforded
to Affiliated Station in this Agreement with respect to exclusivity to be
provided against the distribution and exhibition of Network Programs within
such other station's Designated Market Area (as defined by ▇.▇. ▇▇▇▇▇▇▇
Company) by any cable television system, MMDS, SMATV, DBS, satellite
distribution system, video dialtone system, telephone company system or any
other non-broadcast distribution or exhibition system now known or hereafter
developed, then CBS shall promptly offer in writing to amend this Agreement to
conform to such more favorable terms. It is expressly understood that this
subparagraph shall have no application to terms in any other CBS affiliation
agreement dealing with matters other than the program exclusivity discussed in
the preceding sentence. It is further understood that, within a reasonable time
of the execution hereof, the CBS Television Network will enter an affiliation
agreement with each of the CBS Owned television stations.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the
date first above written.
WWL-TV, INC. CBS TELEVISION NETWORK
A Division of CBS Inc.
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇, ▇▇. By: /s/ [ILLEGIBLE]
-------------------------- ------------------------------
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RIDER I
Subject to Section 73.658 of the FCC's rules, Broadcaster agrees that
Affiliated Station will (i) broadcast LATE SHOW WITH ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ in the
live time period offered by CBS effective September, 1995; (ii) broadcast LATE,
LATE SHOW WITH ▇▇▇ ▇▇▇▇▇▇ upon its premiere on January 9, 1995 on no more than
an hour and a half delay from the live time period in which the program is
offered by CBS, and will broadcast ▇▇▇▇▇▇ by September, 1996, or earlier should
the time period become available, on no more than a half hour delay from the
live time period in which the program is offered by CBS; (iii) limit
one-time-only preemptions of primetime Network programs to no more than 10
hours per year; and (iv) maintain its clearance of other Network programs at
the level existing as of the date hereof.
RIDER II
It is expressly understood that such Network Rate of $ [ ** ] will
generate $ [ ** ] in annual net compensation at full live clearance of the
existing Network program schedule (which shall be understood to exclude CBS
THIS MORNING, Monday - Friday, 7am - 9am, CNYT and ten (10) hours of
one-time-only primetime preemptions per year) and normal full sellout of
Network inventory.
** Confidential information has been omitted and filed separately with the SEC.
