Exhibit 10.17
FOX BROADCASTING COMPANY
STATION AFFILIATION AGREEMENT
April 20, 2001
Fisher Broadcasting-Georgia, LLC
WXTX-TV
6524 Buena Vista Road
Columbus, GA 31907
Attention: General Manager
This sets forth the terms and conditions of the agreement between Fox
Broadcasting Company ("Fox"), on behalf of itself, Fox Children's Network, Inc.
("FCN") and Fox News Network, L.L.C. ("FNN"), and Fisher Broadcasting-Georgia,
LLC ("Licensee"), for the carriage of programming over the facilities of
Licensee's television station WXTX ("Station"). As used in this Agreement, the
terms "program", "programming" and "Fox programming" and any derivations thereof
shall mean, unless specifically indicated otherwise, the programming of Fox and
the programming of FCN, and all terms of this Agreement shall apply to both.
1. Fox Programming: Fox will deliver to the Station for free over-the-air
television broadcasting, programming which Fox and FCN make available to Station
for broadcasting in the community to which Station is presently licensed by the
FCC, which is Columbus, GA. The selection, scheduling, substitution and
withdrawal of any program or portion thereof shall at all times remain within
Fox's sole discretion and control. Licensee shall not and shall not authorize
others to broadcast or otherwise use any program (or part thereof) or other
material supplied by Fox except as specified in this Agreement, and without
limiting the foregoing, Station may broadcast Fox programming only: (i) as
scheduled by Fox, (ii) over Station's facilities in the Community specified
above in this Paragraph 1 ("Station's Community"), and (iii) by free
over-the-air television broadcasting.
2. Delivery: Fox will transmit the programming hereunder by satellite and shall
keep Licensee apprised of both the satellite and transponder being used for that
transmission. Any and all costs of whatever kind that Station incurs to pickup
the programming from the satellite and rebroadcast it shall be the sole
responsibility of Licensee.
3. Carriage & Preemption:
(a) (1) On the dates and at the times scheduled by Fox, Licensee agrees
to broadcast over Station's facilities in its entirety, in the
form transmitted by Fox, without interruption, deletion,
compression, addition, squeezing, alteration or other changes
(except for adding Licensee's commercial announcements to the
extent permitted by this Agreement) the Fox signal,
and all the program-related Fox content contained therein,
delivered by Fox to Station during Programmed Time Periods and
New Programmed Time Periods in accordance with this Agreement,
including without limitation, all Fox programs (including without
limitation, all commercial announcements, Fox i.d.'s, and Fox
promos and credits) and all other material, information and
program-related data included by Fox in the Fox signal.
(2) Without limitation of subparagraph (1) immediately above, Station
must not, in retransmitting the Fox signal, degrade or reduce the
quality of the signal's video, audio and other program-related
components, and (without limitation to the foregoing provisions
of this sentence) Station must, with regard to digital
television: (i) retransmit the Fox signal to deliver video and
audio of a quality equal to that of the Fox signal's video and
audio if viewed and heard at the point the signal is delivered to
Station, and (ii) with respect to all program-related components
of the signal other than the video and audio, retransmit the Fox
signal at not less than the number of megabits per second
specified by Fox for the applicable Fox content.
(b) Fox 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 (for programming other than FCN and Daytime programming, the
specified times apply for the Eastern or Pacific Time Zones, and the
Mountain and Central Time Zones are one hour earlier; for FCN and
Daytime programming, the specified times apply to all Time Zones,
unless Fox agrees otherwise):
Daytime: 9-10 A.M. Monday thru Friday and Sunday
Prime Time: 7-10 P.M. Sunday
8-10 P.M. Monday thru Saturday
Late Night: 11 P.M.-12:00 A.M. Monday thru Saturday
FCN: 7:00 A.M.-8:00 A.M. Monday thru Friday
3:00 P.M.- 5:00 P.M. Monday thru Friday
8:00 A.M.-12:00 Noon Saturday
Weekend, Allstar &
Post Season Sports: As scheduled for Station by Fox, including
pre-game and post-game shows.
2
Subject to the preemption rights in Paragraph 11 below, Licensee shall
broadcast over Station for the term of this Agreement, during the
Programmed Time Periods, all Fox programing specified by Fox, except
to the extent that Licensee is broadcasting programing pursuant to
(and within the specific limits of a commitment expressly set forth on
Exhibit A (for non-sports programming) or Exhibit B (for sports
programming) to this Agreement (but not including any extension or
renewal of such commitment by option extension or otherwise). If any
Fox programming is not broadcast in its Programmed Time Period due to
any such commitment, Licensee shall broadcast that Fox programming in
the "make good" time period specified in Exhibit A or B, as
applicable.
(c) Without limiting subparagraph (b) above, each time that Licensee for
any reason fails to (or advises Fox it will not) telecast any Fox
programming as provided for in this Agreement, then upon Fox's
request, Licensee shall telecast that programming (or replacement
programming selected by Fox) and the commercial announcements
contained in it, in a substitute time period that is within the same
A.C. Nielsen broadcast ratings week as, and that is of a quality and
rating value as nearly as possible equal to that of, the time period
during which the programming was not telecast. Licensee shall give Fox
at least 72 hours advance notice that it intends not to broadcast any
Fox programming and in such notice shall identify the substitute time
period that Licensee selects, which time period shall be subject to
Fox's prior approval. Notwithstanding anything to the contrary in this
Agreement, if Licensee does not fully comply with the foregoing, then,
without limitation to any other rights of Fox under this Agreement or
otherwise, Fox 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. In addition
to the foregoing, with respect to programming for broadcast within the
New Programmed Time Periods (as defined in subparagraph 3(e) below),
Fox will provide Licensee with a minimum of six months notice for each
program addition, and Licensee shall be required to advise Fox within
ten days of receiving notification if Licensee does not wish to
televise said programming as scheduled by Fox. If Licensee refuses to
broadcast any program within a New Programmed Time Period for any
reason other than (i) a program conflict specified in subparagraph
3(e) below, or (ii) those specified in Paragraph 11 below, then Fox
shall have the right to terminate this Agreement upon six months prior
notice to Licensee.
(d) Under this Agreement, an "Approved Preemption" shall mean: any failure
to broadcast due to force majeure under Paragraph 7 below, any
preemption permitted by Exhibit A or B hereto that is "made good" in
accordance therewith and any preemption permitted by Paragraph 11
below. Any other preemption or failure to broadcast any Fox
programming is an "Unauthorized Preemption" and without limiting any
other rights of Fox under this Agreement or otherwise, if
3
within any 12-month period during the term of this Agreement, Station
makes three (3) or more Unauthorized Preemptions of any Fox
programming (or Licensee or Station states, either in general or
specific terms, that Station intends to make such Unauthorized
Preemptions or Fox reasonably concludes, based upon Licensee's or
Station's actions or otherwise, that such Unauthorized Preemptions
will occur), Fox may, upon 30 days' prior written notice to Licensee,
elect to either: (1) terminate Station's right to broadcast any one or
more series or other Fox programs, as Fox shall elect, and, to the
extent and for the period(s) that Fox elects, thereafter license the
broadcast rights to the applicable series or other Fox programs to any
other television station or stations located in Station's Community,
or (2) terminate this Agreement.
(e) Licensee shall broadcast over Station's facilities all Fox programming
to be offered during time periods not presently programmed by Fox
("New Programmed Time Periods"), subject to Fox providing to Licensee
at least six months notice prior to delivering any additional
programming within these time periods. Furthermore, if Licensee has
entered into any agreement(s) prior to an announcement by Fox to
program a specific time period and the agreement(s) is (are) for
barter programming that Licensee is required by the terms of the
agreement(s) to broadcast during a New Programmed Time Period, then
Licensee shall not be required to broadcast the new Fox programming
within the same time period, and the provisions of subparagraph 3(c)
of this Agreement shall govern; provided, however, in any such
instance(s) Licensee agrees not to renew or otherwise extend its
rights to broadcast such conflicting programming within a New
Programmed Time Period.
(f) Commencing seven days from each request by Fox to Licensee for such
negotiation, Licensee and Fox will negotiate in good faith for a
period of 60 days in connection with Licensee's transmission or
retransmission of Fox programs or other data, information or content
(or any combination of the foregoing) using Station's digital
broadcast spectrum or signal capacity other than as provided for under
subparagraph 3(a) above (the "New Plan"), which use will not commence
earlier than six months from the date of such request. If Fox and
Licensee are unable to agree on the New Plan within the 60-day
negotiation period, Fox will have the right at any time to terminate
this Agreement on six months prior notice to Licensee.
4. Promotion:
(a) Fox will provide Licensee with on-air promotional announcements, which
may be for any Fox programming ("Fox Promos"), including without
limitation, any FCN programming, for broadcast in Station's non-Fox
programming. Licensee shall use its good faith, best efforts to
provide an on-air promotional schedule
4
consistent with Fox's recommendations and in coordination with Fox,
and to budget Station's annual advertising funds so as to enable
Station to participate, on a year-round basis, in Fox's "co-op"
advertising plan. Without limitation to the foregoing, in each
instance, if any, that Fox determines that Station's "Sweeps Rating"
(as defined below) is below the average Sweeps Rating for all Fox
affiliated stations, then Station shall be deemed to be "Performing
Below Average" and shall, within 15 days of Fox giving Licensee
written notice thereof, commence full compliance with the following:
(1) Station shall not broadcast, during each one-half hour of all
periods that Station is not broadcasting Fox programming (the "Non-Fox
Time Periods"), less than one (1) thirty (30) second promotional
announcement (or promotional announcements aggregating 30 seconds, to
the extent Fox so elects) for Station's local, syndicated or Fox
programming, and (2) during all Non-Fox Time Periods, Licensee shall
broadcast Fox Promos for not less than 45% of 100% (the "Applicable
Percentage") of the total, aggregate "gross ratings points" for all
the promotional announcements broadcast by Licensee ("Aggregate
Promotional GRP's") within the Non-Fox Time Periods (the specific Fox
Promos broadcast by Licensee and number of broadcasts of each Fox
Promo shall be, to the extent Fox elects, as specified by Fox, and the
broadcasts of the Fox Promos shall be made so that the GRP's allocated
thereto are distributed fairly and reasonably across the Non-Fox Time
Periods); provided, however, that if Station's Sweeps Rating ranks
Station within the bottom 50% (ranked highest to lowest) of those Fox
affiliated stations that are Performing Below Average, then the
Applicable Percentage for Station shall be not less than 55% of 100%
of said Aggregate Promotional GRP's. Licensee's full compliance with
the immediately foregoing sentence shall continue until Licensee is no
longer Performing Below Average, as determined by the most recent
Sweeps Rating. For purposes hereof, the "Sweeps Rating" shall mean for
each station the average A.C. Nielsen rating for the most-current
completed "sweeps" period for Adults 18-49 for all prime time hours
programmed by Fox. Licensee agrees to maintain complete and accurate
records of all promotional announcements broadcast as provided herein.
Within two (2) weeks following each request by Fox therefor, Licensee
will submit copies of all such records to Fox. Notwithstanding
anything to the contrary in (and without limitation to the above
provisions of) this subparagraph 4(a), and as a material term of this
Agreement, Licensee shall, in coordination with Fox, cause Station to
broadcast in the one-half (1/2) hour immediately preceding prime-time,
not less than one (1) :30 promotional announcement for Fox programming
provided by Fox hereunder.
(b) In addition to providing the promotion announcements referred to
above, Fox shall make available to Licensee, at reasonable costs, such
other promotional and sales materials as Fox and Licensee may mutually
consider appropriate. Licensee shall not delete any copyright,
trademark, logo or other notice, or any credit, included in any
materials delivered pursuant to this paragraph or otherwise, and
5
Licensee shall not exhibit, display, distribute or otherwise use any
trademark, logo or other material or item delivered pursuant to this
paragraph or otherwise, except as instructed by Fox at the time.
(c) Licensee shall make annually, in accordance with each A.C. Nielsen
"Sweeps" co-op plan determined by Fox during the term of this
Agreement, not less than an amount determined by Fox in its sole
discretion (the "Co-Op Commitment") in local cash expenditures to
promote Fox on Station. Subject to Licensee's full performance of its
obligations under this Paragraph 4, Fox will reimburse Licensee for
50% of such cash expenditures as are made in accordance with Fox's
co-op plan, up to a maximum annual Fox contribution equal to 50% of
the Co-Op Commitment.
5. Commercial Announcements:
(a) In each individual Fox program, Fox will have the right in its sole
discretion to determine: (1) the number and length of commercial
announcement slots (including station breaks) that will be available
to Fox affiliates for insertion of affiliate commercial announcements
and (2) the terms and conditions applicable to the availability and
use of the commercial announcement slots. Fox will make available to
Licensee for Station's use in each individual Fox program the same
number and length of commercial announcements (including station
breaks) as Fox makes available generally in that program to Fox
affiliates on a national basis, on the terms and conditions that Fox
generally applies to those affiliates on a national basis. Licensee
agrees to be bound by Fox's decisions as provided for in this
Paragraph 5.
(b) Fox shall determine the placement, timing and format of Fox's and
Licensee's commercial announcements. Fox shall have the right to
include commercial announcements in all of the commercial time
available in each hour of the programming other than that expressly
allocated to Licensee in this Agreement.
(c) Licensee's broadcast over the Station of all commercial announcements
included by Fox in Fox programming is of the essence of this
Agreement, and nothing contained in Paragraph 3 above or elsewhere in
this Agreement (other than Paragraph 11 below) shall limit Fox's
rights or remedies at law or otherwise relating to failure to so
broadcast said commercial announcements. Licensee agrees to maintain
complete and accurate records of all commercial announcements
broadcast as provided in this Agreement. Within two (2) weeks
following each request by Fox therefor, Licensee will submit copies of
all such records to Fox.
6
6. Supplemental Agreements: Each of the 1998 FKW Supplemental Agreement (and
Addendum #1 and #2 thereto), the 1998 NFL Supplemental Agreement, the 1999
Prime-Time-Inventory-Purchase Supplemental Agreement, the presently existing (if
any) Fox Network Non-Duplication Amendment for Station and the presently
existing (if any) Fox Agreement and Amendment to Station Affiliation Agreement
relating to retransmission consent, as they may have been amended or
supplemented (collectively the "Supplementals"), between Licensee and Fox, are
in full force and effect, and this Agreement is now deemed the applicable
Station Affiliation Agreement referenced in the Supplementals. Licensee shall
fully perform all terms and conditions of the Supplementals in their entirety
throughout the term of this Agreement.
7. Force Majeure: Neither Fox nor FCN shall be liable to Licensee for failure to
supply any programming or any part thereof, nor shall Licensee be liable to Fox
or FCN for failure to broadcast any such programming or any part thereof, by
reason of any act of God, labor dispute, non-delivery by program suppliers or
others, failure or breakdown of satellite or other facilities, legal enactment,
governmental order or regulation or any other similar or dissimilar cause beyond
their respective control ("force majeure event"). If, due to any force majeure
event(s), Fox substantially fails to provide the programming to be delivered to
Licensee under Paragraph 1 above, or Licensee substantially fails to broadcast
such programming as scheduled by Fox, for 4 consecutive weeks, or for 6 weeks in
the aggregate during any 12-month period, then the other party hereto (the
"unaffected party") may terminate this Agreement upon thirty (30) days prior
written notice to the party so failing, which notice may be given at any time
prior to the expiration of 7 days after the unaffected party's receipt of actual
notice that the force majeure event(s) has ended.
8. Assignment: This Agreement shall not be assigned by Licensee without the
prior written consent of Fox, and any permitted assignment shall not relieve
Licensee of its obligations hereunder. Any purported assignment by Licensee
without such consent shall be null and void and not enforceable against Fox.
Licensee also agrees that if any application is made to the Federal
Communications Commission pertaining to an assignment or a transfer of control
of Licensee's license for the Station, or any interest therein, Licensee shall
immediately notify Fox 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 Rules and Regulations of the Federal Communications
Commission, Fox shall have the right to terminate this Agreement, effective upon
thirty (30) days notice to Licensee and the transferee or assignee of such
termination, which notice may be given at any time within ninety (90) days after
the later occurring of: (a) the date on which Fox learns that such assignment or
transfer has become effective or (b) the date on which Fox receives written
notice of such assignment or transfer. Licensee agrees, that upon Fox's request,
Licensee shall procure and deliver to Fox, in form satisfactory to Fox, the
agreement of the proposed assignee or transferee that, upon consummation of the
assignment or transfer of control of the Station's authorization, the assignee
or transferee will assume and perform this Agreement in its entirety without
limitation of any kind. If Licensee fails to notify Fox of the proposed
assignment or transfer of control of said Station's authorization, or fails to
7
procure the agreement of the proposed assignee or transferee in accordance with
this Paragraph, then such failure shall be deemed a material breach of this
Agreement. Without limitation to any other provision of this Agreement or to any
of Fox's rights or remedies, if, without Fox's prior written consent, Licensee
enters into any "Local Management Agreement", "Time Brokerage Agreement" or
similar arrangement or agreement pertaining to Station operations, or for the
use (by lease or otherwise) by any party other than Licensee of any Programmed
Time Period or New Programmed Time Period or any significant portion of
Station's broadcast time outside of those Fox Time Periods, Fox will have the
right at any time to terminate this Agreement on thirty (30) days' notice to
Licensee.
9. Unauthorized Copying: Licensee shall not, and shall not authorize others to,
record, copy or duplicate any programming or other material furnished by Fox
hereunder, in whole or in part, and shall take all reasonable precautions to
prevent any such recordings, copying or duplicating. Notwithstanding the
foregoing, if Station is located in the Mountain Time Zone, Licensee may
pre-record programming from the satellite feed for later telecast at the times
scheduled by Fox. Licensee shall erase all such pre-recorded programming
promptly after its scheduled telecast.
10. Term: The term of this Agreement shall commence on or before June 30, 2001
and shall continue through May 31, 2004 (the "initial period"). After the
initial period, the term of this Agreement may be extended for additional
successive periods of one (1) year each, by Fox, in its sole discretion, giving
written notice of such extension (the "extension notice") to Licensee at least
one hundred twenty (120) days prior to the expiration of the then-current
period; provided, however, that if, within thirty (30) days of Licensee's
receipt of the extension notice, Licensee, in its sole discretion, gives Fox
written notice that Licensee rejects such extension, then the extension notice
shall not be effective and this Agreement shall terminate upon expiration of the
then-current period. Notwithstanding anything to the contrary contained in this
Agreement, upon the termination or expiration of the term of this Agreement, all
of Licensee's and Station's rights to broadcast or otherwise use any Fox program
or any trademark, logo or other material or item hereunder shall immediately
cease and neither Licensee nor Station shall have any further rights whatsoever
with respect to any such program, material or item.
11. Applicable Law: The obligations of Licensee and Fox 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 Federal Communications Commission) and this
Agreement shall be deemed to have been negotiated and entered into, and this
Agreement and all matters or issues collateral thereto shall be governed by, the
law of the State of California applicable to contracts negotiated, executed and
performed entirely within that state. With respect to programs offered or
already contracted for pursuant to this Agreement, nothing in any other
Paragraph hereof shall be construed to prevent or hinder Licensee from (a)
rejecting or refusing Fox programs which Licensee reasonably believes to be
unsatisfactory, unsuitable or contrary to the public interest, or (b)
substituting a program which, in Licensee's opinion, is of greater local or
national importance; provided, however, Licensee shall give Fox written notice
of each such rejection or substitution, and the justification therefor,
8
at least 72 hours in advance of the scheduled broadcast, or as soon thereafter
as possible (including an explanation of the cause for any lesser notice).
Programming will be deemed to be unsatisfactory or unsuitable only if it (i) is
delivered in a form which does not meet accepted standards of good engineering
practice; (ii) does not comply with the rules and regulations of the FCC; or
(iii) is programming which Licensee reasonably believes would not meet
prevailing contemporary standards of good taste in its community of license. In
view of the limited nature of the Fox programming within each day-part as
specified in subparagraph 3(b) above, Licensee does not foresee any need to
substitute programming of greater local or national importance for Fox
programming, except to present locally originated, non-entertainment,
non-religious timely public interest programming, such as election coverage,
live coverage of fast-breaking news events, political debates, town hall-type
meetings and telethons that serve the public interest and that are approved by
Fox, which approval shall not be unreasonably withheld. Notwithstanding anything
to the contrary expressed or implied herein, the parties acknowledge that
Station has the ultimate responsibility to determine the suitability of the
subject matter of program content, including commercial, promotional or public
service announcements.
12. Station Acquisition by Fox: If Fox or any of Fox's parent, affiliated,
subsidiary or related companies or other entities enters into any agreement to
acquire any significant ownership and/or controlling interest in any television
broadcast station licensed to any community within Station's television market,
then Fox shall have the right at any time after that agreement is made, to
terminate this Agreement upon not less than sixty (60) days notice to Licensee.
Said termination shall be effective as of such date as Fox shall designate in
said notice.
13. Change in Operations: If at any time Station's transmitter location, power,
frequency, programming format, hours of operation, technical quality of
transmissions or any other material aspect of Station's operations is such that
Fox determines in its reasonable judgement that Station is of less value to Fox
as a broadcaster of Fox programming than at the date of this Agreement, then Fox
shall have the right to terminate this Agreement upon thirty (30) days prior
written notice to Licensee.
14. Non-Liability of Board Members: To the extent the Fox Broadcasting Company
Affiliates' Association Board of Governors (the "Board") and its members are
acting in their capacity as such, then the Board and each such member so acting
shall not have any obligation or legal or other liability whatsoever to Licensee
in connection with this Agreement, including without limitation, with respect to
the Board's or such member's approval or non-approval of any matter, exercise or
non-exercise of any right or taking of or failing to take any other action in
connection therewith.
15. Warranties and Indemnities:
(a) Fox represents and warrants that Station's broadcast, in accordance
with this Agreement, of any Fox programming provided by Fox to Station
shall not violate or infringe upon the trade name, trademark,
copyright, literary or dramatic right,
9
or right of privacy or publicity of any party, or constitute a libel
or slander of any party; provided, however, that the foregoing
representations and warranties shall not apply: (1) to public
performance rights in music, (2) to any material furnished or added by
any party other than Fox after delivery of the programming to Station
or (3) to the extent such programming is changed or otherwise affected
by deletion of any material by any party other than Fox after delivery
of the programming to Station. Fox agrees to indemnify and hold
harmless Station and its parents, affiliates, subsidiaries, successors
and assigns, and the respective owners, officers, directors, agents
and employees of each, from and against all liability, actions,
claims, demands, losses, damages or expenses (including reasonable
attorneys' fees, but excluding Licensee's or Station's lost profits or
consequential damages, if any) caused by or arising out of Fox's
breach of the representations and warranties set forth in the
foregoing sentence. Fox makes no representations, warranties or
indemnities, express or implied, except as expressly set forth in this
subparagraph (a).
(b) Without limitation to any of Licensee's other obligations and
agreements under this Agreement, Licensee agrees to indemnify and hold
harmless Fox and its parents, affiliates, subsidiaries, successors and
assigns, and the respective owners, officers, directors, agents and
employees of each, from and against all liability, actions, claims,
demands, losses, damages or expenses (including reasonable attorneys'
fees, but excluding Fox's lost profits or Fox's consequential damages,
if any) caused by or arising out of any matters excluded from Fox's
representations and warranties by subparagraphs (a)(1), (2) or (3)
above, or any breach of any of Licensee's representations, warranties
or agreements hereunder or any programming broadcast by Station other
than that provided by Fox hereunder.
(c) The indemnitor may assume, and if the indemnitee requests in writing
shall assume, the defense of any claim, demand or action covered by
indemnity hereunder, and upon the written request of the indemnitee,
shall allow the indemnitee to cooperate in the defense at the
indemnitee's sole cost and expense. The indemnitee shall give the
indemnitor prompt written notice of any claim, demand or action
covered by indemnity hereunder. If the indemnitee settles any claim,
demand or action without the prior written consent of the indemnitor,
the indemnitor shall be released from the indemnity in that instance.
16. Notices: All notices to each party required or permitted hereunder to be in
writing shall be deemed given when personally delivered (including, without
limitation, upon delivery by overnight courier or other messenger or upon
receipt of facsimile copy), upon the date of mailing postage prepaid or when
delivered charges prepaid to the telegraph office for transmission, addressed as
specified below, or addressed to such other address as such party may hereafter
specify in a written notice given as provided herein. Such notices to Licensee
shall be to the address set forth for Licensee on page 1 of this Agreement. Such
notices to Fox shall be to: Fox
10
Broadcasting Company, 10201 West Pico Boulevard, Los Angeles, CA 90035, Attn:
Network Distributions; with a copy to: Fox Broadcasting Company, 10201 West Pico
Boulevard, Los Angeles, CA 90035, Attn: Legal Affairs.
17. Retransmission Consent: Without Fox's prior written approval, Licensee shall
not grant its consent to the transmission or retransmission, by any cable
system, satellite, other multichannel video programming distributor, telephone
system, microwave carrier, wireless cable system or other technology wherever
located, of Station's broadcast of any Fox programming. Neither this Agreement
nor any grant by Licensee of retransmission consent conveys any license or
sublicense in or to the copyrights of Fox programming, and Fox shall in no way
be a party to or incur any duty or other obligation in connection with any
retransmission consent granted by Licensee.
18. Change In Fox Operations: Notwithstanding anything to the contrary in this
Agreement and without limitation to any of Fox's rights, Fox reserves the right
to make changes in its operations (and/or terms of doing business) that conflict
with (or do not conform to) the terms of this Agreement and that will be
applicable to its affiliates generally. Fox shall notify Licensee in writing
that Fox has made such change and the effective date thereof, and as of said
effective date, this Agreement will be deemed amended to reflect such change,
unless within 10 days of Fox's notification to Licensee of such change, Licensee
notifies Fox in writing that Licensee rejects such change. If Licensee does so
reject said change, then Fox shall have the right for a period of six months
from Fox's receipt of Licensee's rejection notice to terminate this Agreement by
providing not less than ninety (90) days' written notice to Licensee.
19. Miscellaneous:
(a) Nothing contained in this Agreement shall create any partnership,
association, joint venture, fiduciary or agency relationship between
Fox and Licensee.
(b) No waiver of any failure of any condition or of the breach of any
obligation hereunder shall be deemed to be a waiver of any preceding
or succeeding failure of the same or any other condition, or a waiver
of any preceding or succeeding breach of the same or any other
obligation.
(c) In connection with Fox programming, Station shall at all times permit
Fox, without charge, to place, maintain and use on Station's premises,
at Fox's expense, such reasonable amounts of devices and equipment as
Fox shall require, in such location and manner, as to allow Fox to
economically, efficiently and accurately achieve the purposes of such
equipment. Station shall operate such equipment for Fox, to the extent
Fox reasonably requests, and no fee shall be charged by Station
therefor.
11
(d) This Agreement, together with the Supplementals, constitutes the
entire understanding between Fox and Licensee concerning the subject
matter hereof and shall not be amended, modified, changed, renewed,
extended or discharged except by an instrument in writing signed by
Fox and Licensee or as otherwise expressly provided herein or therein.
Fox and Licensee each hereby acknowledges that neither is entering
into this Agreement in reliance upon any term, condition,
representation or warranty not stated herein. All actions, proceedings
or litigation brought against Fox by Licensee shall be instituted and
prosecuted solely within the County of Los Angeles, California.
Licensee hereby consents to the jurisdiction of the state courts of
California and the federal courts located in the Central District of
California as to any matter arising out of, or related to this
Agreement.
(e) Without limitation to Paragraph 1 above, for purposes of this
Agreement, the term "programs" (and the derivations thereof including,
without limitation, "programming") will include, without limitation,
to the extent Fox reasonably elects, television specials,
made-for-television movies, television series and all other
traditional forms of television motion pictures and programs, as well
as any other program-related material or matter sent, transmitted or
otherwise communicated by Fox with the intent that it be perceived or
otherwise received, visually or visually and aurally, by television
receiver, television monitor or any other device or equipment
whatsoever now known or hereafter devised.
(f) Each and all of the several rights and remedies of each party hereto
under or contained in or by reason of this Agreement shall be
cumulative, and the exercise of one or more of said rights or remedies
shall not preclude the exercise of any other right or remedy under
this Agreement, at law, or in equity. Notwithstanding anything to the
contrary contained in this Agreement, in no event shall either party
hereto be entitled to or recover any lost profits or consequential
damages because of a breach or failure by the other party, and except
as expressly provided in this Agreement to the contrary, neither Fox
nor Licensee shall have any right against the other with respect to
claims by any third person or other third entity.
(g) If any provision of this Agreement (the "Void Provision"), as applied
to either Fox or Licensee or any circumstances, is found to be against
public policy or otherwise void or unenforceable, or in conflict with
any applicable federal, state or local law, rule or regulation
(including without limitation any rule or regulation of the Federal
Communications Commission), then commencing within 10 days following
such finding, Fox and Licensee must negotiate in good faith for a
period of 30 days regarding a provision to replace the Void Provision,
which provision shall materially meet the intent of the parties as set
forth in the Void Provision and essentially preserve the benefits
provided by this Agreement to both parties. If the parties are unable
to agree on such a replacement provision for any reason whatsoever,
including without limitation due to any constraints imposed
12
by any law, rule or regulation, then either party will have
the right to terminate this Agreement at any time on six months prior
notice.
(h) It is understood that FCN is indemnifying Fox in connection with all
costs, expenses, liabilities and other matters relating to the FCN
programming covered hereunder.
(i) Paragraph headings are inserted for convenience only and shall not be
used to interpret this Agreement or any of the provisions hereof or
given any legal or other effect whatsoever.
(j) Licensee acknowledges that Station's rights contained in this
Agreement are subject to and must be exercised consistent with the
rights conveyed to Fox by the NFL, the NHL or any other licenser of
programming delivered under this Agreement and any limitations and
restrictions thereon.
20. News Agreement:
(a) As a material term of this Agreement, by June 30, 2001, Licensee
shall best efforts to: (i) launch and continue to broadcast on
Station, in consultation with Fox, throughout the term of this
Agreement, a self-produced, on-air 10:00 pm, Monday through Friday,
local newscast (i.e., Station shall originate said newscast program
and shall not produce such newscast program pursuant to any
news-sharing arrangement), which newscast shall be not less than 30
minutes per night, or (ii) enter into a news-sharing agreement for
Station with a network-affiliated television station in Station's
television market ("Cooperating Station"), and thereby commence and
continue to broadcast on Station, throughout the term of this
Agreement, a first-class regularly-scheduled 10:00 pm local newscast
program, which shall not be less than 30 minutes per night (in which
instance Licensee shall title Station's news set, mic flags, music,
graphics, supers and news promotion that separately brands Station's
local newscast as a Fox news program, and provide a local newscast
producer and the exclusive services of a news anchor person(s) for
Station's local newscast). Licensee shall notify Fox in writing of
which newscast program under this subparagraph 20(a) that Licensee
shall broadcast on Station no later than sixty (60) days prior to
Licensee's launch on Station of such newscast program.
(b) Licensee shall simultaneously with the execution of this Agreement
execute and return with this Agreement four (4) copies of the standard
News Service Agreement (and Addendum thereto executed by the
appropriate representative of the Cooperating Station, if Licensee
broadcasts on Station a newscast subject to subparagraph 20(a)(ii)
above) (collectively "News Agreement") between Licensee and FNN, as
provided to Licensee by FNN. Upon Licensee's execution of the News
Agreement, it shall be deemed attached to this Agreement as Exhibit E
and
13
incorporated herein by this reference. As a material term of this
Agreement, whether or not Licensee broadcasts a local newscast program
on Station, Licensee shall continue to pay to FNN, throughout the term
of this Agreement, any and all license fees provided under the News
Agreement. Without limitation to any provision of this Agreement or of
the News Agreement, if the News Agreement is terminated for any reason
other than the material breach of the News Agreement by FNN, Fox shall
have the right to terminate this Agreement effective upon such date as
Fox may elect in its sole discretion. Any breach by Licensee of the
News Agreement will be a breach by Licensee of this Agreement of
equivalent materiality (e.g., a material breach of the News Agreement
by Licensee will be a material breach of this Agreement by Licensee).
IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement as of
the day and year first above written.
Fox Broadcasting Company Fischer Broadcasting-Georgia, LLC
("Fox") ("Licensee")
By: /s/ D.M. By: /s/ B.W. T
--------------------------------- ---------------------------------
Title: SVP Network Dist. Title: President
------------------------------ ------------------------------
14
WXTX/COLUMBUS, GA As of 1/15/02
EXHIBIT A:
- ----------
*No non-sports preemptions.
Licensee Initial & Date: /s/ BWT 2/8/02
----------------
FBC Initial & Date: /s/ DW 2/12/02
---------------------
WXTX/COLUMBUS, GA As of 1/15/02
EXHIBIT B:
- ----------
*No sports preemptions.
Licensee Initial & Date: /s/ BWT 2/8/02
----------------
FBC Initial & Date: /s/ DW 2/12/02
---------------------