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Exhibit 10.31
FOX BROADCASTING COMPANY
STATION AFFILIATION AGREEMENT
February 1, 1999
STC License Company
WUPW-TV
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇. ▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇, Chief Financial Officer
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, Inc. ("FNN"), and STC License Company
("Licensee"), for the carriage of programming over the facilities of Licensee's
television station WUPW ("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 Toledo, OH. 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) Licensee agrees to broadcast over Station's facilities, in the form
transmitted by Fox, all Fox programs in their entirety, including, but not
limited to, all commercial announcements, Fox i.d.'s, Fox promos and credits,
without interruption, deletion, addition, squeezing, alteration, or other
changes (except for adding Licensee's commercial announcements as provided in
this Agreement) on the dates and at the times the programs are scheduled by Fox.
(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
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one hour earlier; for FCN and Daytime programming, the specified times apply to
all Time Zones, unless Fox agrees otherwise):
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
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ &
Post Season Sports.- As scheduled for
Station by Fox, including pre-game
and post-game shows.
Subject only 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 programming specified by Fox, except to the extent that
Licensee is broadcasting programming 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 ▇.▇. ▇▇▇▇▇▇▇ 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. 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
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or otherwise, if 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.
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
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
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each station the average ▇.▇. ▇▇▇▇▇▇▇ 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 all of
Station's prime-time access periods, 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 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 ▇.▇. ▇▇▇▇▇▇▇ "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) Licensee may include in each individual Fox program the same number and
length of commercial announcements (including station breaks) as Fox provides
generally in that program for its affiliates on a national basis.
(b) Fox shall determine the placement, timing and format of Fox's and Licensee's
commercial announcement. 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. Supplemental Agreements: Each of the 1998 FKW Supplemental Agreement and 1998
NFL Supplemental Agreement (collectively "Supplemental Agreements"), between
Elcom of Ohio, Inc. and Fox, are in full force and effect, and this Agreement is
now deemed the applicable Station Affiliation Agreement referenced in those
Supplemental Agreements.
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 he
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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, or (c) the effective date of this
Agreement (the foregoing termination provision shall apply to any assignments or
transfers of control that become effective at any time on or after the beginning
of the sixth month prior to the effective date of this Agreement). 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 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.
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 the date that Licensee
has purchased and obtained the FCC license for ownership and control of Station
and shall continue until October 11, 2001 (the "initial period"). Any presently
existing Station Affiliation Agreements between Fox and Licensee with respect to
the Station and FCN and Licensee with respect to the Station shall be deemed
terminated as of the commencement of this Agreement; provided, however, that the
following, between Fox and Licensee, shall remain
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in full effect: (1) any presently existing Network Non-Duplication Amendment to
any such existing Station Affiliation Agreement (which shall be deemed a part of
this Agreement and is incorporated herein by this reference), (2) any existing
Agreement and Amendment to Station Affiliation Agreement with respect to the
retransmission arrangements (the "Retransmission Agreement") and (3) the
provisions of any existing NFL Amendment that relate to the Retransmission
Agreement. 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 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 daypart 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
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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-Liabilitv 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, 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
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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 Broadcasting Company, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, Attn: Network Distributions; with a copy
to: Fox Broadcasting Company, ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇,
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, other multichannel video programming distributor, telephone system,
microwave carrier, wireless cable system, satellite or other technology wherever
located, of Stations broadcast of any Fox programming In connection with the
foregoing, Fox hereby consents as follows:
With respect to any person or entity that (i) provides or intends to provide
retransmission of video programming to subscribers (whether on a common carrier
basis or otherwise by means of a radio-based system, an integrated cable system,
a certified open video system or any other means) and (ii) has not previously
been given retransmission consent pursuant to any prior Fox Affiliation
Agreement for Station, as amended (a "New Operator") Fox hereby authorizes
Licensee to grant the New Operator consent, to retransmit the Fox programming
Station carries, for any period of time ending on or before May 31, 1999. To
protect the integrity of Fox's locally based distribution system, this consent
remains subject to the existing restriction that no Fox affiliate may commence
negotiations with respect to, or enter into, any retransmission consent
agreement with any New Operator until the Home ▇▇▇ ▇▇▇ affiliate has executed
its retransmission agreement with the New Operator. "Home ADI" shall have the
same definition as the local commercial television stations' "Market" as
specified in Section 76.55(e) of the FCC's rules, and if the New Operator
requesting retransmission consent is distributing (or seeks consent to
distribute) programming to more than one ADI, then Fox shall determine which Fox
affiliate(s) is (are) the Home ▇▇▇ ▇▇▇ Affiliate(s) with respect thereto and the
order in which the applicable Fox affiliates shall have the right to enter into
retransmission consent agreements with that New Operator. 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 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.
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(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.
(d) This Agreement 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. 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, and that this Agreement replaces any and all prior and contemporaneous
agreements, whether oral or written, pertaining to the subject matter hereof.
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) 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.
(f) 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,
(g) 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.
(h) 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 licensor of programming delivered under this
Agreement and any limitations and restrictions thereon.
20. News Agreement:
(a) As material terms of this Agreement: (i) whether or not Licensee broadcasts
a local newscast program on Station, Licensee shall continue to pay to Fox News
Network L.L.C. ("FNN"), throughout the term of this Agreement, any and all
license fees provided under the News Service Agreement dated January 20, 1999,
between Licensee and FNN (the "News Agreement") attached hereto as Exhibit E and
incorporated herein by this reference, and
10
(ii) Licensee shall provide FNN with local breaking news footage, on a timely
basis, in accordance with the terms and conditions of the News Agreement.
(b) Licensee shall simultaneously with the execution of this Agreement execute
and return with this Agreement four (4) copies of the News Agreement.
(c) If, as provided for under Paragraph 5 of the News Agreement, Licensee
rejects any "New Formula" (relating to a licensee fee or otherwise) that FNN
proposes will be in effect at any time on or after March 31, 2001, Fox shall
have the right, at any time after that rejection, to terminate this Agreement
upon not less than 60 days prior notice to Licensee. Without limitation to any
provision of this Agreement or of the News Agreement any breach by Licensee of
the News Agreement will be a breach of this Agreement.
IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement as of
the day and year first above written.
Fox Broadcasting Company STC License Company
("Fox") ("Licensee")
By: /s/ ▇▇▇▇ ▇▇▇▇▇ By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇
------------------ ---------------------
Title: President Title: CFO
Network Distributor