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EXHIBIT 10.1
NBC Network
00 Xxxxxxxxxxx Xxxxx
Xxx Xxxx, XX 00000
000-000-0000
March 2, 0000
XXX Xxxxxxxxxxxx, Inc.
c/o KRBC-TV
0000 Xxxxx 00xx Xxxxxx
Xxxxxxx, Xxxxx 00000
Re: KRBC-TV (Abilene, Texas)
Gentlemen:
In connection with the Affiliation Agreement (the "Agreement") dated
December 20, 1995 between NBC Television Network ("NBC") and STC Broadcasting,
Inc. (as successor-in-interest to Abilene Radio & Television Company), licensee
of television broadcast station KRBC-TV (collectively, the "Station") and the
agreement dated December 20, 1995 with respect to its satellite station KACB
(San Angelo, Texas), NBC and the Station agree to the following provisions and
to amend the Agreement, effective as of the date hereof, as set forth below:
1. The expiration date of the term set forth in Paragraph 1 of
the Agreement is hereby changed from July 31, 2005 (the "Original Expiration
Date") to December 31, 2010.
2. Notwithstanding anything to the contrary set forth in
Paragraph 5 of the Agreement, during the twelve-month period commencing on the
Original Expiration Date and each subsequent twelve-month period thereafter
during the term of the Agreement, the aggregate amount of compensation payable
by NBC to the Station shall be equal to the greater of (i) the aggregate amount
of compensation actually paid by NBC to the Station during the twelve-month
period immediately preceding the Original Expiration Date and (ii) an amount
equal to (a) the Compensation Factor (as defined below) for such twelve-month
period multiplied by (b) the Station's then-current NBC Percent as determined
in accordance with Exhibit A annexed hereto and made a part hereof (the "NBC
Percent"). For purposes of this Agreement, the following definitions shall also
apply:
(a) The "Compensation Factor" for any twelve-month period
referred to above shall be an amount equal to (i) the aggregate compensation
actually paid by NBC during the immediately preceding twelve-month period to
all NBC Affiliates in the Measured Markets (as defined below) divided by (ii)
the sum of all such NBC Affiliates' respective NBC Percents.
(b) The "Measured Markets" for purposes of any calculation
hereunder shall mean the ten markets immediately above the Station and the ten
markets immediately below the Station, when ranked on the basis of their total
audience delivery of the NBC Television Network.
3. The Station hereby agrees to enter into good faith negotiations
with NBC with respect to the appointment and authorization of NBC regarding the
negotiation of agreements related to the grant of retransmission rights to the
broadcast signal of the Station with multiple system operators ("MSO's") and
other cable television systems whose subscribers are located within or without
the ADI of the Station who would be able to receive the Station's signal.
4. In the event that at any time during the term of the Agreement,
NBC seeks to replace or supplement its current form of affiliation agreement or
arrangements with the NBC Affiliates, generally, with other contractual
arrangements, including, without limitation, participation in a joint venture or
other similar arrangement between NBC and its NBC Affiliates, Station agrees to
enter into good faith negotiations with NBC with respect to such other
arrangements,
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so long as the minimum number of NBC Affiliates whose consent to such
arrangements is determined to be required by NBC have agreed to so participate.
5. Each defined term used herein without definition shall have
the meaning assigned to such term in the Agreement.
Except as provided herein, the Agreement is hereby affirmed and shall
remain in full force and effect.
Very truly yours,
NBC TELEVISION NETWORK
By: /s/ Xxxx X. Xxxxxx
------------------------------
Name: Xxxx X. Xxxxxx
Title: VP Affiliate Relations
The foregoing has been reviewed by,
and is acceptable to:
STC BROADCASTING, INC.
BY: /s/ Xxxxxxxxx X. Xxxxxxxxx
-------------------------------
Name: Xxxxxxxxx X. Xxxxxxxxx
Title: Vice President
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NBC TV NETWORK
December 20, 1995
Abilene Radio & Television Stations Inc.
and
Abilene Radio & Television Co.
c/o KRBC-TV
Xxx 000 Xxxxxxx, Xxxxx 00000
Gentlemen:
In connection with that certain Affiliation Agreement (the "Agreement")
dated December 20, 1995, between NBC Television Network "NBC") and Abilene Radio
&, Television Co., licensee of television broadcast station KRBC-TV,
(collectively, the "Station"), the Station and NBC hereby agree as follows:
1. NBC will reimburse Station for up to $50,000 per year of
Station's expenditures for advertising and off-air promotion of Station and NBC
programming (the "Promotion Amount"); provided, however, that Station agrees to
provide, in each such year, on-air promotion of NBC -programming on the Station
in an amount equal to the Promotion Amount reimbursed by NBC for such year. Such
on-air Promotion shall be in addition to Station's commitments pursuant to NBC's
"2600 GRP's" promotion plan and the amount of such on-air promotion shall be
calculated based upon Station's standard rates charged to unaffiliated third
parties for comparable advertising time, after giving effect to all customary
and usual discounts and other rate reductions; provided that the maximum
aggregate amount payable by NBC to Station relating to such reimbursement for
advertising and off-air promotion of Station shall not exceed $50,000 for each
year during the term of the Agreement. Station shall furnish NBC with reports
and other applicable documentation to substantiate the amount of all Promotional
Amounts to be reimbursed by NBC hereunder. All amounts owed by NBC pursuant to
the foregoing shall be paid by NBC to Station on a quarterly basis within thirty
(30) days after the end of the calendar quarter in which NBC receives such
applicable documentation for incurred Promotional Amounts.
2. NBC agrees that Station's net annual compensation during the
term of the Agreement shall not be less than $245,000, after deduction of the
applicable annual amounts for the Waiver Percentage and NBC News Channel Fees;
provided that such annual compensation amount shall be reduced to $235,000 in
years in which NBC offers Olympic programming. The foregoing annual compensation
target amount is based on the following assumptions:
(i) The Station performs all of its obligations
and commitments under the Agreement and complies with each and every of its
commitments regarding clearance and preemption of NBC programming as set forth
in the Agreement; specifically, the foregoing amount assume that the Station is
broadcasting NBC programming live in all of the Programmed Time Periods
applicable to the Station and NBC Sports Programming as provided for in the
Agreement, except for the permitted "Prime Time Preemption Amounts" and "Sports
Preemption Amounts" (as such terms are defined in the Agreement);
(ii) The Station fulfills its commitments set
forth in the Agreement regarding local news programming and pursuant to NBC's
"2600 GRPs" promotion with respect to promotion of NBC programming; and
(iii) The foregoing annual compensation amounts may
not be achieved in years in which a significant portion of NBC programming
consists of news coverage in addition to regularly scheduled news programming.
3. NBC agrees to make available to Station marketing, research and
promotion expertise in connection with moving KRBC-TV's 5:00 P.M. weekday local
news program to 6:00 P.M. and generally making satellite station KABC a more
effective presence in its market.
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4. Station agrees, during the first year of the Agreement, to
begin working with NBC to further "brand" the Station as an "NBC Station" in its
market through cooperative efforts in areas such as on-air promotion, unified
graphic design, use of the NBC peacock logo and NBC identification.
5. 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/ Xxxx X. Xxxxxxx
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Name: Xxxx X. Xxxxxxx
Title: Sr. VP Affiliate Relations
The foregoing has been reviewed by,
and is acceptable to,
Abilene Radio & Television Co.
By: /s/ Xxxx Xxxxxx
------------------------
Name: Xxxx Xxxxxx
Title: President
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NBC TV NETWORK
December 20, 1995
Abilene Radio & Television Stations Inc.
and
Abilene Radio & Television Co.
c/o KRBC-TV
Xxx 000
Xxxxxxx, Xxxxx 00000
Gentlemen:
RE: KRBC-TV (Abilene, Texas)
The following shall comprise the agreement between us for the
affiliation of your KRBC-TV television broadcasting station KRBC-TV (Abilene
Radio & Television Co. ("Abilene") and KRBC-TV collectively herein called
"Station") with the NBC Television Network (herein called "NBC") and shall
supersede and replace our prior agreement dated May 1, 1990, 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 effective as of 3:00 A.M., New
York City time on the 1st day of August, 1995 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 - 7:00-10:00 P.M.
Sunday - 6:00-10:00 P.M.
Late Night: Monday thru Thursday 10:35 P.M.-12:35 A.M.
Friday - 10:35 P.M. - 12:35 A.M.
Saturday - 10:30 P.M.-12:00 Midnight
News: Monday thru Friday - 6:30-7:00 A.M.,
7:00-9:00 A.M. and 5:30-6:00 P.M.
Saturday - 7:00-9:00 A.M. and 5:30-6:00 P.M.
Sunday - 7:00-9:00 A.M. and 5:30-6:00 P.M.
Daytime: Monday thru Friday - 9:00-10:00 A.M.
and 11:00 A.M.-2:00 P.M.
Saturday - 9:00 A.M.-11:30 A.M.
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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 preexisting 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 the preemption
rights set forth herein, including Station's unqualified right to preempt for
Station's live coverage of local 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. As used herein, the "live coverage of
local news events" with respect to Station's preemption rights shall in no event
refer to the addition of scheduled local news programs as part of Station's
regular continuing program schedule.
(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 twelve (12) hours in the 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 the provisions of 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 agrees
not to broadcast more than three (3) 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 40% of, respectively, the Prime Time Preemption Amount and
the Sports Preemption Amount, unless otherwise consistent with Station's
programming
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practice. In addition, Station agrees that in no event shall Station preempt
NBC programming for any programming offered or syndicated by any other
broadcast television network; provided that such agreement by Station shall
only be deemed in effect to the extent consistent with applicable law.
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) In the event that Station preempts or fails to
clear or broadcast any NBC programming as provided herein for any reason other
than: (i) the live coverage of local news events, (ii) as permitted by
Paragraphs 3(b), 3(c) or 3(d) above, (iii) force majeure as provided for in
Paragraph 11 below, or (iv) because: (A) the programming is delivered in a form
which does not meet accepted standards of good engineering practice; (B) the
programming 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, then, 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. Without limiting or affecting any other determination of a material
breach hereunder, any failure by Station to pay any amount due under this
Paragraph 4(b) shall be deemed a material breach of this Agreement. In the event
of Station's material breach of this Agreement, without limiting any other of
NBC's rights of NBC under this Agreement or otherwise, NBC shall have the
option, exercisable in its sole discretion upon thirty (30) days' written notice
to Station, to either (x) 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 I community of license or (y) unless the breach is cured
within such thirty (30) day period, terminate this Agreement. Station
acknowledges that NBC programming previously broadcast by Station has been
consistent with the standards set forth in the foregoing clause (C); 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.
(c) With respect to programs offered or already
contracted for pursuant to this Agreement, nothing erein contained shall be
construed to prevent or hinder Station 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). Station confirms that its
determination that a substitute program is of greater local or national
importance shall be based on Station's reasonable good faith judgment.
5. Station Compensation. In further consideration of
Station's performance of its 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:
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(A) Station's Network Station Rate, which is $610; 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.
(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 9 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 week during each calendar quarter of the term hereof
a sum equal to 217% of Station's Network Station Rate provided in subparagraph
5(a)(i)(A) above (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.
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(d) (i) As part of NBC's customary annual performance
evaluation of the NBC affiliated broadcast television stations (collectively,
the "NBC Affiliates"), NBC may decrease or increase the Pool (as defined below)
only by a percentage amount which is equal to or less than the corresponding
percentage decrease or increase, as applicable, in the Adult Audience Delivery
(as defined below) during the prior Broadcast Year as compared to the Adult
Audience Delivery during the Broadcast Year immediately preceding such prior
Broadcast Year. Notwithstanding the foregoing, (A) any such adjustment in the
amount of the Pool for any calendar year during the term of this Agreement shall
not exceed five percent (5%) of the amount of the Pool for the prior calendar
year, and (B) the 1994 Pool amount shall remain in
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effect during calendar years 1995 and 1996. As used herein, "Pool" shall mean,
with respect to any calendar year, the aggregate of the Network Station Rates
for all NBC Affiliates during such calendar year, and "Adult Audience
Delivery," with respect to any Broadcast Year, shall mean the Adult 18-49
audience delivery of all NBC Affiliates as measured by the average of the NSI
Sweeps in November, February and May during such Broadcast Year or such other
demographic that becomes the primary selling demographic for Prime Time by the
NBC Television Network; provided that in the event NBC changes its Primary
Selling Demographic with respect to a Broadcast Year during the term hereof,
NBC shall announce such change during July preceding the commencement of such
Broadcast Year.
Subject to the limitations set forth below, 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)(A) 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) In no event during the term of this Agreement shall the percentage of the
Pool represented by Station's Network Station Rate (the "Station's Pool
Percentage") be reduced to an amount which will result in (aa) if Station's
Rate Index (as defined below) is less than 1 as of the date hereof, a Rate
Index less than Station's Rate Index as of the date hereof or (bb) if Station's
Rate Index is 1 or more as of the date hereof, a Rate Index of less than 1; and
provided further, that NBC shall be permitted to reduce Station's Network
Station Rate pursuant to subparagraph 5(d)(ii) below. As used herein, "Rate
Index" shall mean the number obtained by dividing (cc) Station's Pool
Percentage by (dd) Station's "NBC Percent" (i.e. the relative contribution to
NBC (expressed as a percentage) as determined in NBC's customary annual
performance evaluation of all NBC Affiliates);
(Y) 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
(Z) 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 (A) materially reduces its local news program schedule
as set forth in Exhibit C, or (B) does not fulfill 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 by notifying Station in
writing at least ninety (90) days prior to the effective date of such change.
(e) Notwithstanding the foregoing, Station acknowledges that in
the event that ownership or control of KACB (San Angelo, Texas) is sold or
otherwise transferred to a party other than an entity controlled by or under
common control with Abilene Radio & Television Station Inc., NBC shall have the
right to reduce Station's Network Station Rate as appropriate to reflect the
reduced coverage area of KRBC-TV (i.e., on a combined basis with KACB,).
6. Local Commercial Announcements. Subject to the following
sentence, NBC agrees that during each quarter during the term of this
Agreement, the average weekly number of minutes available for Station's local
commercial announcements in and adjacent to regularly scheduled NBC programming
in each daypart (with pro-rated adjustments for national sports programming,
special news coverage or other special events) shall not be less than
ninety-five percent (95%) of the average weekly number of minutes for the
applicable daypart during the 1993-94 Broadcast Year as set forth in Exhibit E
attached hereto (except if the reduction is due to a change in applicable
government regulations). In the event of a reduction in the average weekly
number of minutes available for Station's local commercial announcements in and
adjacent to regularly scheduled NBC programming which causes NBC not to be in
compliance with the foregoing provision, NBC agrees to offset the effects of
such reduction by providing Station with a comparable economic benefit,
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which benefit may take the form of local coverage of NBC promotional
announcements, an increase in the amount of station's preemptions permitted
under Paragraphs 3(b), 3(c) or 3(d) hereof, or other form of benefit. The
foregoing provisions of this Paragraph 6 are not intended to facilitate any
disproportionate change by NBC in the allocation of the number of minutes
available for Station's local commercial announcements in and adjacent to
regularly scheduled NBC programming among different time periods in any
daypart, if such change is solely for NBC's economic benefit.
7. 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.
8. 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 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 8, 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 contained in this Paragraph 8(d) shall
limit the rights of Station under Paragraph 4(c) above.
9. 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.
10. 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 ASCAP, 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
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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.
11. 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.
12. 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 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.
13. 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.
14. 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.
15. Assignment.
(a) This Agreement shall not be assigned without
the prior written consent of NBC which will not be unreasonably withheld, 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, sale or transfer of ownership or control of Station (including any
assignment or transfer referred to in Paragraph 15(c) below other than a
"short-form" assignment) 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
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assignment or transfer, whichever period is greater. Station acknowledges that
any such assignment, sale 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 of this Paragraph 15(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.
(d) NBC agrees that in the event of a sale or transfer of
all or substantially all of the assets or business of NBC (whether structured
as a sale or transfer of equity or assets of NBC), NBC agrees to assign this
Agreement to the purchaser or transferee and to cause such purchaser or
transferee to assume NBC's obligations hereunder; provided that the foregoing
agreement shall not apply in the event that this Agreement becomes an
obligation of such purchaser or transferee by operation of law. Upon such
assignment and assumption, NBC shall have no liability to Station under this
Agreement with respect to obligations arising after the effective date of such
assignment and assumption.
16. Unauthorized Copying and Transmission. Except for the
rebroadcasting of Station's signal by KACB pursuant to the Satellite Agreement
dated the date hereof, as attached as Exhibit F hereto (the "Satellite
Agreement"), 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; and provided, further, that at such time as NBC
adopts a term in substitution for the term "ADI" by reason of any similar
action by the FCC or other appropriate authority, such substitute term shall
replace the references to "ADI" herein. 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.
17. 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 17(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 this
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 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.
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(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.
18. Remedies for Unauthorized Copving and Transmission. If
Station violates any of the provisions set forth in Paragraphs 16 and 17 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.
19. 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 (without regard to principles of conflicts of laws).
20. Waiver. A waiver by either of the parties hereto of a
breach of any provision of thi9 s Agreement shall not be deemed to constitute a
waiver of any preceding or subsequent breach of the same provision or any other
provision hereof.
21. 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.
22. Captions. The captions of the paragraphs in this Agreement
are for convenience only and shall not in any way affect the interpretation
hereof.
23. 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 nonduplication protection under FCC Rules Section 76.92
and the Satellite Agreement. 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.
24. 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 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.
25. 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.
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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/ Xxxx Xxxxxxx
-----------------------------
ABILENE RADIO & TELEVISION STATIONS, INC.
By :
---------------------------------
ABILENE RADIO & TELEVISION CO.
By: /s/ Xxxx Xxxxxx
---------------------------------
President
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EXHIBIT "A"
ECONOMIC ADJUSTMENTS
Adjustments due to a preemption of or other failure to
broadcast an NBC program referred to in Paragraph 4(b) of this 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 multiplied 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
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EXHIBIT "B"
KRBC-TV, ABILENE, TEXAS
Compensation Matrix
(NETWORK STATION RATE __________ X HOURS CARRIED X % BELOW)
MON - SUN 6PM - 11PM* 30%
--------------------------------------------------------------------------------
MON - SUN 5PM - 6 PM* 15%
11PM - 1AM
SAT - SUN 4PM - 5PM
--------------------------------------------------------------------------------
MON - FRI 9AM - 5PM 11.06%
--------------------------------------------------------------------------------
SUN 7AM - 4PM** 10.5%
SAT 2PM - 4PM
--------------------------------------------------------------------------------
SAT 7AM - 2PM** 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
**EXCLUDING SATURDAY AND SUNDAY TODAY
All times above are expressed in terms of your station's then current local
time.
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EXHIBIT "C"
KRBC-TV NEWS PROGRAMS
Monday - Friday
6:00-6:30 A.M
10:00-10:30 P.M.
Saturday
10:00-10:30 P.M.
Sunday
10:00-10:30 P.M.
NBC acknowledges that KACB does not maintain its own local news operations and
currently broadcasts KRBC-TV local news programs, but in the event KACB
discontinues its broadcast of KRBC-TV local news programs, NBC confirms that
notwithstanding anything contained in Paragraph 5 of this Agreement to the
contrary, Station shall not be deemed in breach of its obligation as set forth
in Paragraph 5(d)(ii) solely by reason of such discontinuance.
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30 Rockefeller Plaza A Division of XXXXX X. Xxxxx
Xxx Xxxx, XX 00000 National Broadcasting Director
000 000-0000 Company, Inc. Regional Affiliate Relations
NBC
TV NETWORK
EXHIBIT "D"
January 11, 1995
Xx. Xxxx Xxxxxxx
Promotion Director
KRBC-TV
0000 X. 00xx Xx.
Xxxxxxx, Xxxxx 00000
Dear Xxxx
Enclosed in this folder you will find copies of the forms which must be
submitted each quarter in order for you to participate in the primetime
promotion plan, which, when executed entitles the station to 10% of its annual
compensation.
Just to briefly review the concept: the idea is to earmark local promotion time
with a NATIONAL value of $11 million dollars (equal to 10% of the total
compensation pool for all stations) to support NBC's primetime line-up,
especially the 10 PM NYT head-ins to your local news.
The forms are essentially the same as 1994's. There is a PLANNING WORKSHEET for
all four quarters which should be filled out with your projected GRP delivery
for each quarter, meeting the annual 2600 GRP total. Please return the
completed form to me. Then, you'll also find individual PER-QUARTER forms which
should be submitted no later than the 15th of the month following the quarter
just ended. Simply fill in your GRP's, give us any comments or qualifying
statements, sign the form at the bottom and fax it to (000) 000-0000, the
number at the top of each form.
Please, call me should you have questions or comments.
Thank you for your cooperation in 1994 and let's do it to them again this year!
Sincerely,
cc- Xxx Xxxx
Xxxxxxx Xxxxx, NBC
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EXHIBIT "E"
LOCAL INVENTORY
REGULAR SCHEDULED PROGRAMS
Weekly Weekly
Units Minutes
-----------------------
Primetime 106 53'
Late Night 215 107' 30"
Daytime 115 57' 30"
News 219 109' 30"
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EXHIBIT "F"
SATELLITE AGREEMENT
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