Registration of Securities Issued in a Business-Combination Transaction — Form S-4
Filing Table of Contents
Document/Exhibit Description Pages Size
1: S-4 Registration of Securities Issued in a 180 1.08M
Business-Combination Transaction
2: EX-3.1 Certificate of Formation 1 15K
3: EX-3.2 Limited Liability Company Agreemen 35 137K
4: EX-3.3 Articles of Incorporation 2 18K
5: EX-3.4 Acme Intermediate Finance, Inc. By-Laws 14 56K
6: EX-4.1 Indenture 148 473K
7: EX-4.2 Indenture 135 432K
9: EX-5.1-INT Exhibit 5.1-Int - Opinion Re: Legality 3 23K
8: EX-5.1-INT Intermediate Opinion 3 24K
10: EX-10.1 Stock Purchase Agreement 46 204K
19: EX-10.10 Management Agreement 14 53K
20: EX-10.11 Exhibit 10.11 - Amendment (Channel 32) 2 20K
21: EX-10.12 Exhibit 10.12 - Noncompetition Agreement for Kwbp 5 28K
22: EX-10.13 Exhibit 10.13 - Management Agreement for Station 16 50K
23: EX-10.14 Management Agreement 14 47K
24: EX-10.15 Exhibit 10.15-Wint Escrow 9 43K
25: EX-10.18 Exhibit 10.18 - Affiliation Agreement for Kwbp 21 67K
26: EX-10.19 Exhibit 10.19 - Commitment Letter From Wb 1 18K
11: EX-10.2 Exhibit 10.2 - Escrow Agreement for Kplr 14 61K
27: EX-10.20 Exhibit 10.20 - Employment Agreement With Gealy 6 33K
28: EX-10.21 Exhibit 10.21 - Employment Agreement With Allen 6 32K
29: EX-10.22 Exhibit 10.22 - Consulting Agreement With Kellner 6 30K
30: EX-10.23 Exhibit 10.23 - Commercial Building Lease for Kwbp 15 68K
31: EX-10.24 Exhibit 10.24 - Lease Agreement for Kwbp Tower 16 65K
32: EX-10.25 Exhibit 10.25 - Lease Agreement for Wbxx 22 74K
33: EX-10.26 Exhibit 10.26 - Tower Lease for Wbxx 13 38K
34: EX-10.27 Exhibit 10.27 - First Modification to Agreement 4 24K
12: EX-10.3 Exhibit 10.3 - Time Brokerage Agreement 19 69K
35: EX-10.30 Exhibit 10.30 - Studio Lease for Kplr 4 27K
36: EX-10.31 Exhibit 10.31 - Tower Lease for Kplr 26 51K
37: EX-10.32 Exhibit 10.32 - Amendment to Tower Leases for Kplr 3 22K
38: EX-10.33 Exhibit 10.33 - Koplar/Roberts - Agreement 15 69K
39: EX-10.35-INT Exhibit 10.35 - Registration Rights Agreement 34 119K
40: EX-10.36-INT Exhibit 10.36 - Membership Unitholders Agreement 31 108K
41: EX-10.37 Purchase Agreement for Intermediate 41 152K
42: EX-10.38-INT Exhibit 10.38 - Securities Pledge Agreement 21 73K
13: EX-10.4 Membership Contribution Agreement 28 102K
14: EX-10.5 Exhibit 10.5 - Asset Purchase Agreement 25 87K
15: EX-10.6 Exhibit 10.6 - Purchase Agreement for Wbxx 63 133K
16: EX-10.7 Exhibit 10.7-Asset Purchase Agreement for Kwbp 38 163K
17: EX-10.8 Exhibit 10.8 - Amendment 3 20K
18: EX-10.9 Exhibit 10.9 - Amendment (Acme) 3 18K
43: EX-21.1-INT Exhibit 21.1 - Subsidiaries 1 15K
44: EX-23.2 Consent of Experts and Counsel 1 15K
45: EX-23.3 Consents of Experts 1 15K
46: EX-23.4 Consent of Experts and Counsel 1 15K
47: EX-24.1-INT Power of Attorney - Allen 1 16K
48: EX-24.2-INT Power of Attorney - Gealy 1 16K
49: EX-24.3-INT Power of Attorney - Kellner 1 16K
50: EX-25.1-INT Exhibit 25.1-Int - Statement of Eligibility 30 106K
51: EX-27.1 Financial Data Schedule 1 19K
52: EX-99.1-INT Exhibit 99.1-Int - Letter of Transmittal 20 68K
53: EX-99.2-INT Exhibit 99.2-Int - Notice of Guaranteed Delivery 5 26K
54: EX-99.3-INT Exhibit 99.3-Int - Letter to Brokers 2 19K
55: EX-99.4-INT Exhibit 99.4-Int - Letter to Clients 2 18K
56: EX-99.5-INT Exhibit 99.5-Int - Instruction to Holder 2 19K
57: EX-99.6-INT Exhibit 99.6-Int - Guidelines for Certification 7 27K
58: EX-99.7 Consent as Member-Koplar 1 16K
59: EX-99.8 Consent as Member-Roberts 1 16K
EX-10.18 — Exhibit 10.18 – Affiliation Agreement for Kwbp
| EX-10.18 | 1st Page of 21 | TOC | ↑Top | Previous | Next | ↓Bottom | Just 1st |
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STATION AFFILIATION AGREEMENT
Dated as of June 10, 1997
ACME Holdings of Oregon, LLC
10255 SW Arctic Drive
Beaverton, Oregon 97005
Attention: Doug Gealy
The following shall comprise the agreement between The WB Television Network
Partners, L.P. dba The WB Television Network ("WB," "we," or "us"), and ACME
Holdings of Oregon, LLC ("Affiliate" or "you") for the affiliation of your
television station KWBP ("Station") with WB for carriage of WB programming. The
Federal Communications Commission ("FCC") has issued a broadcast license
("License") to you to operate Station in Portland, Oregon, the community in
which Station is licensed by the FCC ("Community of License"). All references in
this Agreement to "WB program(s)" and "WB programming" and any variations
thereof shall mean the programming made available by WB under this Agreement.
1. WB PROGRAMMING: WB will make available to Affiliate WB programs for
free over-the-air broadcast and broadcast by any other means by Station
in the Community of License during the term of this Agreement. During
such term, except as otherwise provided herein, WB grants Affiliate the
exclusive right to have Station broadcast the WB programming in the
Community of License only as scheduled by WB over free over-the-air
television and by such other technological means as are available to
Affiliate for broadcast in the Community of License so long as Station
broadcasts the WB programming for over-the-air television.
Notwithstanding the foregoing, for an initial period, until such time
that WB offers exclusivity against the signal of WGN to its affiliates,
WB may allow the signal of WGN to be imported into the Community of
License. WB shall have the sole discretion to select, schedule,
substitute and/or withdraw WB programming or any portion(s) thereof.
WB shall also have the right to authorize any television broadcasting
station, regardless of the community in which it is licensed by the
FCC, to broadcast any presentation of a subject we deem to be of
immediate national significance including, but not limited to, a
Presidential
address. Except as provided herein, during the term of this Agreement
Affiliate shall be the sole affiliate of WB for transmission for
exhibition on television of WB programming in the Community of License.
2. PROGRAM CARRIAGE:
(a) We agree to make available for broadcast by Station WB
programming for the hours programmed by WB at the times and dates
scheduled by WB throughout the term of this Agreement. You
acknowledge that the times and roll-out dates set forth in this
Agreement are approximate only and you agree to have Station
broadcast WB programs irrespective of whether WB meets, fails to
meet or otherwise varies from the anticipated program schedule
set forth herein; provided, however, that WB hereby agrees not to
accelerate such anticipated program schedule. To the extent WB
makes available such WB programming for broadcast, this Agreement
both obligates us to make available such WB programs to Station
and obligates Station to broadcast such WB programs over-the-air
pursuant to the terms of this Agreement.
(b) Subject to the exceptions set forth in subparagraph 2(e) and the
right of preemption set forth in subparagraph 2(f), Station shall
broadcast WB programs on the dates and at the times scheduled by
WB. Station shall broadcast WB programs in their entirety,
including but not limited to WB commercial announcements, WB
identifications, program promotional material, and credit
announcements contained in such programs, without interruption or
deletion or addition of any kind, except for the commercial
announcements that Station is allowed to add pursuant to
Paragraph 5. Notwithstanding the foregoing, you may substitute
other WB promotional announcements in lieu of program promotional
material that is inaccurate as it pertains to Station's schedule.
No commercial announcement, promotional announcement or public
service announcement will be broadcast by Station during any
interval within a WB program, which interval is designated by WB
as being for the sole purpose of making a station identification
announcement.
(c) The initial Scheduled Program Times of WB programming and the
anticipated roll-out dates of that programming are set forth as
follows (the specified times apply for
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the Eastern and Pacific Time Zones; the Mountain and Central Time
Zones are one hour earlier for Prime Time and Latenight programming
only, except as otherwise agreed by us):
Prime Time: 7:00 p.m. - 10:00 p.m. Sunday
8:00 p.m. - 10:00 p.m. Monday through Saturday.
Two nights, to be designated by us, during the
1994/1995 broadcast year (one night in January
1995 with the second night commencing during the
third quarter of 1995); one additional night
commencing during the 1995/1996 broadcast year;
and one additional night during each broadcast
year thereafter until seven nights of programming
are made available.
Children's: 7:00 a.m. - 8:00 a.m.; 7:30 a.m. - 8:30 a.m.; or 8:00
a.m. - 9:00 a.m. (at WB's election) Monday
through Friday;
3:00 p.m. - 5:00 p.m. Monday through Friday;
8:00 a.m. - 12:00 noon Saturday;
Weekday mornings (one hour) and Saturday
mornings (three hours) commencing September
1995; One additional Saturday hour commencing
September 1996; Monday through Friday
afternoons (two hours) commencing September
1997. It is anticipated that the additional
Children's programming will commence in
approximately the second week of September.
Latenight: 11:00 p.m. - 12:00 midnight Monday through
Friday, commencing not earlier than 1997 and
subject to the approval of the WB Affiliate's
Council (as defined in Paragraph 13 below).
(d) Notwithstanding the roll-out schedule for Children's afternoon
programming in subparagraph (c) above, WB's supply of Children's
afternoon programming shall be subject to the expiration of the
current agreements between WB affiliates and suppliers of
Children's
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afternoon programming. Station agrees not to extend or renew any
agreement it may have with such suppliers for such programming
during the term of this Agreement if such renewal or extension would
interfere with the broadcast of the WB Children's afternoon
programming.
(e) You confirm that as of the date of this Agreement you have no
commitments, except those listed in Schedule 1 hereto, which
would impede Station's broadcasting all WB programming made
available during the term of this Agreement. If any WB
programming is not broadcast by you because of any such
commitment expressly described in Schedule 1 (but excluding
extensions by exercise of options by Affiliate [but not by the
programming licensor] or otherwise), then such programming shall
be broadcast in a time period upon which you and we shall
mutually agree and which shall be of quality and rating value
comparable to that of the Scheduled Program Times. These programs
will not be considered preempted for purposes of subparagraph
2(f).
(f) Notwithstanding anything in this Agreement to the contrary, nothing
in this Agreement shall be construed to prevent or hinder Affiliate
from (i) rejecting or refusing any WB program which Affiliate
reasonably believes to be unsatisfactory or unsuitable or contrary
to the public interest or (ii) substituting a program which, in
Affiliate's opinion, is of greater local or national importance. In
such an event, you shall provide us with advance written notice of
any such rejection, refusal or substitution, no later than 14 days
prior to the air date of such programming, except where the nature
of the substitute program makes such notice impracticable (e.g.,
coverage of breaking news or other unscheduled events) or the
programming has not been made available to you by such date, in
which cases you agree to give us as much advance notice as the
circumstances permit. Such notice shall include a statement of the
reasons you believe that the rejected WB programming is
unsatisfactory or unsuitable or contrary to the public interest,
and/or that a substituted program is of greater local or national
importance. In view of the limited amount of WB programming to be
supplied pursuant to this Agreement
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(at least until such time as the full WB programming schedule has
been rolled out) you acknowledge that you do not foresee any need to
substitute programming of greater local or national importance for
WB programming, except in those circumstances requiring live
coverage of fast-breaking news events or very infrequent special
events.
To the extent you substitute another program for a WB program as
permitted under subparagraph 2(f)(ii), then you will broadcast such
omitted program and the commercial announcements contained therein
(or any replacement programming provided by WB and the commercial
announcements contained therein) during a time period upon which you
and we shall promptly and mutually agree and which shall be of
quality and rating value comparable to that of the preempted
program's Scheduled Program Time. In the event that the parties do
not promptly agree upon such a time period after reasonable
consultation in good faith and after taking into account the
practical alternatives under the circumstances, then, without
limiting any other rights of WB under this Agreement or otherwise,
we shall have the right to license the broadcast rights to the
applicable omitted programming (or replacement programming) to
another television station located in the Community of License.
In addition, if three or more episodes of a program series are
preempted by you as permitted hereunder in any thirteen-week period,
for any reasons other than force majeure as provided in Paragraph 6,
we shall have the right, upon 60 days prior written notice, to
terminate your right to broadcast that program series and to
withdraw all future episodes of that series. Such thirteen-week
periods shall be measured consecutively from the first broadcast
date of the program series in question. If we subsequently place
such a series on another station in the Community of License, we
reserve the right not to offer you the broadcast rights to that
series for subsequent broadcast seasons.
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In addition to all other remedies, to the extent one or more episodes
of a program series is preempted by you in violation of (i.e., other
than as permitted under) this Paragraph 2, we shall have the right,
upon 30 days prior written notice, to terminate your right to
broadcast the remainder of the program series and withdraw all future
episodes of that series from you.
(g) Nothing in this Agreement shall be construed to prevent or hinder
WB from (i) substituting one or more WB programs for previously
scheduled WB programs, in which event WB will make the
substituted programs available to Station pursuant to the
provisions of Paragraph 1 and Paragraph 3; (ii) cancelling one or
more WB programs; or (iii) postponing any scheduled roll-out
dates of WB programming. Further, nothing in this Agreement
shall be construed to obligate WB (x) to provide a minimum or
specific number of WB programs; (y) to commence providing WB
programming on any particular date; or (z) to expand the amount
of WB programming pursuant to a specified timetable.
3. DELIVERY: WB agrees to make available the WB programming for satellite
transmission. WB shall incur no costs regarding the satellite downlink
and broadcast by Station; Station shall incur no up-link costs with
regard to the delivery of the WB programming.
4. PROMOTION:
(a) We will provide you with on-air promotional announcements ("WB
Promos") for WB programming, which WB Promos are intended for
broadcast during Station's broadcast of non-WB programming. You
agree to provide an on-air promotional schedule consistent with
our recommendations. You shall maintain complete and accurate
records of all WB Promos that are broadcast. Upon request by WB
for those records, you shall provide copies of all such records
to WB within two weeks of such request.
(b) You shall budget Station's advertising availabilities in such a
manner as to enable Station to broadcast additional WB Promos during
periods in which Station is deemed a "Subperformer." Station shall
be deemed to be a
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"Subperformer" from the time its "sweeps rating" is below the
average prime time rating for all WB affiliated broadcast stations
until such time as Station's sweeps rating is no longer below the
average prime time rating for all WB affiliated broadcast stations.
The Station's sweeps rating means the Station's average A.C. Nielsen
rating for the most recently completed sweeps period for adults
18-49 for all prime time hours programmed by WB. For such time as
Station remains a Subperformer, Station shall: (i) broadcast, during
each one-half hour of all periods of each day that Station is
broadcasting non-WB programming, at least one (1) 30-second Promo
(or Promos aggregating 30 seconds, to the extent we so elect) for
Station's local, syndicated or WB programming; and (ii) broadcast
during all periods when Station is broadcasting non-WB programming
WB Promos for not less than:
Prime Time Hours Programmed by WB
2 hours - 20% of 100%
4 hours - 25% "
6 hours - 30% "
8 hours - 35% "
10 hours - 40% "
12 hours* - 45% "
(* 12 or more hours)
(the "Applicable Percentage") of the total, aggregate gross ratings
points ("GRPs") for all the promotional announcements broadcast by
Station ("Aggregate Promotional GRPs") within the periods in which
non-WB programming is being broadcast. The specific WB Promos
broadcast by Station and the number of broadcasts of each WB Promo
may be specified by WB and the broadcast of the WB Promos shall be
made so that the Aggregate Promotional GRPs allocated to WB Promos
are distributed fairly and reasonably across the periods when non-WB
programming is being broadcast. For such time as Station's sweeps
rating ranks Station within the bottom 50% (ranked highest to
lowest) of those WB affiliated broadcast stations that are
Subperformers, then the
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Applicable Percentage for Station shall be not less than 55% of 100%
of the Aggregate Promotional GRPs. The WB Promos broadcast during
each half-hour of non-WB programming, as required by this
subparagraph 4(b), may be counted toward Station's Applicable
Percentage. Station shall continue to air WB Promos under this
schedule until Station is no longer a Subperformer, as defined
above.
(c) In addition to providing WB Promos, we shall make available for
your use, at reasonable cost, such other promotional and sales
materials as we and you may mutually consider appropriate. You
shall not delete any copyright, trademark, logo or other notice,
or any credit included in any such materials relating to WB, and
you shall not exhibit, display, distribute or otherwise use any
trademark, logo or other material or item delivered pursuant to
this Paragraph 4 or otherwise, except as instructed by us at the
time.
(d) Commencing on the first date that WB programming is aired by
Station and for the remaining term of this Agreement, Station
shall identify itself as a WB affiliate, both on and
off-the-air. Prior to the "Launch Date" (as defined in
subparagraph 9(b)), Station shall identify itself as a WB
affiliate only after WB gives Affiliate permission to do so and
only in a manner reasonably directed by WB. Prior to the Launch
Date, Affiliate shall not, without the express written permission
of WB, make any disclosures to the press or business community or
issue any press announcements about Station's affiliation with WB.
5. COMMERCIAL ANNOUNCEMENTS:
(a) With respect to WB programming, the parties to this Agreement shall
be entitled to insert the following number of commercial
announcements (Station's allotment includes station breaks but
excludes 5-second prime time station identification breaks at the
beginning of each hour):
(1) Prime Time (as defined in subparagraph 2(c)) hour (pro-rated
for half-hour programs):
8
You shall have the right to insert six 30-second
commercial announcements. WB shall have the right to
insert eighteen 30-second commercial announcements.
(2) Children's:
Weekday half-hour:
You shall have the right to insert six 30-second
commercial announcements (or other material constituting
"commercial matter" under the FCC's regulations). WB
shall have the right to insert six 30-second commercial
announcements.
Weekend half-hour:
You shall have the right to insert five 30-second
commercial announcements (or other material constituting
"commercial matter" under the FCC's regulations). WB
shall have the right to insert five 30-second commercial
announcements and one 15-second commercial.
(3) Latenight (as defined in subparagraph 2(c)):
You will receive half the total number of commercial
announcements as specified by WB or less as mutually
agreed to.
(b) If the amount of commercial advertising, commercial matter or
other non-program time included in WB programming is reduced for
any reason (including but not limited to the adoption or
modification of statutes or regulations or any other governmental
action), then we shall be entitled to reduce the number of
commercial announcements available to you to the extent necessary
to provide WB and Affiliate with the same proportionate amount of
commercial time (inclusive of station breaks with respect to
Affiliate) that each party is entitled to under this Agreement.
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(c) Your broadcast over Station of the commercial announcements included
by us in WB programming is of the essence to this Agreement, and
nothing contained in this Agreement (other than in subparagraph
2(f)) shall limit our rights or remedies relating to your failure to
so broadcast said commercial announcements. You shall maintain
complete and accurate records of all commercial announcements
broadcast as provided herein. Within two weeks following each
request by us therefor, you will submit copies of all such records
to WB.
6. FORCE MAJEURE: WB shall not be liable for failure to make available
any programming or any portion(s) thereof, and Station shall not be
liable for failure to broadcast any such programming or any portion(s)
thereof, by reason of any act of God, equipment failure, action or
claims by any third person, labor dispute, law, governmental regulation
or order, or other cause beyond either party's reasonable control
("force majeure event"). If due to any force majeure event, we
substantially fail to make available all of the programming to be
delivered to Affiliate under the terms of this Agreement, or you
substantially fail to broadcast such programming as scheduled by WB for
four consecutive weeks, or for six weeks in the aggregate during any
12-month period, then the "non-failing" party may terminate this
Agreement upon thirty 30 days prior written notice to the "failing"
party so long as such notice is given at any time prior to the
"non-failing" party's receipt of actual notice that the force majeure
event(s) has ended; provided further, however, that notwithstanding the
above provisions, you shall not have any right to so terminate this
Agreement, upon a force majeure event or otherwise, if we: (i) fail to
make available a minimum or specific number of WB programs; (ii) fail
to commence making available WB programming on any particular date;
(iii) fail to expand the amount of WB programming pursuant to a
specified timetable; (iv) substitute one or more WB programs for
previously scheduled WB programs; (v) cancel one or more WB programs;
or (vi) postpone the roll-out of any WB programming.
7. ASSIGNMENT OR TRANSFER OF AFFILIATE AGREEMENT AND/OR STATION LICENSE:
(a) Assignment or Transfer of Affiliation Agreement: This Agreement
shall not be assigned by Licensee without the
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prior written consent of WB. Any purported assignment by Licensee
without such consent shall be null and void, shall not be
enforceable against WB, and shall not relieve Licensee of all its
obligations hereunder.
(b) Assignment or Transfer of Station License: If any application is
made to the Federal Communications Commission (FCC) concerning a
purported, attempted or actual transfer of control or assignment of
the Station license, you shall notify us immediately in writing of
the filing of such application. Unless the transfer of control or
assignment is one provided for by Section 73.3540 (f) of the FCC's
current rules and regulations (a "short form" assignment or transfer
of control that does not involve a material assignment or transfer
of control), we shall have the right to terminate this Agreement
upon twenty (20) days' advance notice to you, at any time after the
filing of such application. If WB does not terminate this Agreement
on or before twenty days before the effective date of such transfer,
this Agreement shall be deemed to have been fully assigned to the
transferee or assignee of Station's license and such transferee or
assignee will assume and perform all of the obligations and duties
contained in this Agreement without limitation of any kind, as of
the effective date of transfer. In addition, if Licensee fails,
prior to the effective date of the transfer, to procure in a written
form satisfactory to WB the agreement of the assignee or transferee
to assume and perform this Agreement in its entirety without
limitation of any kind, or fails to immediately notify WB of the
application to transfer control or assign the Station license, then
Licensee shall remain fully responsible for the full performance of
all provisions of the Agreement during the full term of the
Agreement as set forth in Paragraph 9, and in the event of
non-performance, Licensee shall be considered in material breach of
this Agreement and WB shall have all rights and remedies available
for such breach, including but not limited to specific performance
and damages.
8. UNAUTHORIZED COPYING: You shall not, and shall not cause or authorize
others to record, copy or duplicate any programming or other material
we furnish pursuant to this Agreement, in
11
whole or in part, and you shall take all reasonable precautions to prevent
any such recording, copying or duplication. Notwithstanding the foregoing,
if Station is located in the Mountain Time Zone you may pre-record WB
programming for later broadcast at the times scheduled by us. You shall
erase all such pre-recorded programming promptly after its scheduled
broadcast. Notwithstanding the above provisions, Station may make a
non-broadcast quality recording of its entire broadcast day for archival,
file and reference purposes and uses only, which copy shall be kept in
Station's possession at all times.
9. TERM:
(a) The term of this Agreement shall commence on the effective date
of transfer of the station license from Willamette Valley
Broadcasting to ACME Holdings of Oregon, LLC and shall continue
for 36 months thereafter. The term of this Agreement may be
extended for additional successive periods of two years each, by
us, in our sole discretion, giving written notice of such
extension to you at least 120 days prior to the expiration of the
then-current period; provided, however, that if, within 30 days
of your receipt of the notice of extension, you, in your sole
discretion, give us written notice that you reject such
extension, then the extension notice shall not be effective and
this Agreement shall terminate upon expiration of the
then-current period.
(b) The "Launch Date" shall be the date on which WB first makes WB
programming available to Affiliate for broadcast by Station on a
regularly scheduled basis.
(c) Each "Contract Year" hereunder shall be an annual period during the
term of this Agreement. The First Contract Year is the annual period
beginning on the Launch Date; the Second Contract Year is the annual
period commencing one year after the Launch Date, etc.
(d) WB shall, within its sole discretion and without liability, have the
right to terminate this Agreement so long as we (i) provide sixty
days prior written notice to you and (ii) are either: (A) ceasing
operation as a
12
television network; or (B) substantially restructuring the ownership
of the television network.
(e) Notwithstanding anything to the contrary contained in this
Agreement, upon the termination or expiration of the term of this
Agreement, all of your rights to broadcast or otherwise use any WB
program or any trademark, logo or other material or item hereunder
shall immediately cease and neither you nor Station shall have any
further rights whatsoever with respect to any such program,
trademark, logo, material or item.
10. APPLICABLE LAW: The obligations of you and WB 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, regulations and policies of the FCC)
and this Agreement and all matters or issues collateral thereto shall
be governed by the laws of the State of California without regard to
California's conflict of law rules. The California State Courts and
the U.S. District Courts located in California shall have jurisdiction
over the interpretation of this Agreement or with regard to any dispute
arising under this Agreement. The venue for any such action concerning
this Agreement shall be in the County of Los Angeles, California.
11. STATION ACQUISITION BY WB: During the term of this Agreement, WB agrees
that neither we nor Time Warner Inc. nor any of its subsidiary companies
will acquire, as defined by the attribution rules of the FCC, a television
broadcast station licensed in the Community of License.
12. CHANGE IN OPERATIONS: In the event that Station's transmitter
location, power, frequency, programming format or hours of operation
are materially changed at any time during the term of this Agreement so
that Station is of materially less value to us as a broadcaster of WB
programming than at the date of this Agreement, then we shall have the
right to terminate this Agreement upon 30 days prior written notice.
You shall notify WB immediately in writing if application is made to
the FCC to modify in a material manner the transmitter location, power
or frequency of Station or if Affiliate plans to modify in a material
manner the hours of operation of Station. If you fail to notify us as
required herein, then we shall have the right to terminate this
Agreement by giving you 30 days prior written notice.
13
At any time during the term if Station is off the air, or operating at
less than fifty percent (50%) of its licensed power, for a period of 12
hours or longer, Station must immediately notify WB. WB may terminate this
agreement upon thirty (30) days prior written notice in the event that
Station is off the air for a period exceeding seven (7) days or if is
operating at less than fifty percent (50%) of its full licensed power for
a period exceeding seven (7) days. Affiliate will install a satellite
antenna and receiver of sufficient quality, in the exclusive judgment of
WB, to receive a network quality signal from WB. Affiliate shall also use
switches, microwaves and all other transmission equipment necessary to
telecast a network quality picture. If, in the exclusive judgment of WB,
the picture or sound quality of Station's transmission is insufficient, WB
will provide Station with notice of the deficiency, and Station shall have
thirty (30) days to cure. In the event that Station should fail to cure
then WB may cancel this agreement upon thirty (30) days written notice.
13. WB AFFILIATES COUNCIL: You, with the other affiliates of WB, shall form a
WB Affiliates Council (the "Council"), which shall be comprised of
representatives from five different affiliates of WB.
14. NON-LIABILITY OF COUNCIL MEMBERS: To the extent the Council and its
members are acting in their capacity as such, then the Council and each
member so acting shall not have any obligation or legal or other
liability whatsoever to you in connection with this Agreement,
including without limitation, with respect to the Council'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) WB agrees to indemnify, defend and hold Affiliate harmless
against and from all claims, damages, liabilities, costs and
expenses arising out of the use by Station under this Agreement
of any WB program or other material furnished by WB under this
Agreement, provided that Affiliate promptly notifies WB of any
claim or litigation to which this indemnity shall apply, and
provided further that Affiliate cooperates fully with WB in the
defense or settlement of such claim or
14
litigation. Affiliate agrees to indemnify, defend and hold WB
harmless against and from all claims, damages, liabilities, costs
and expenses with respect to Affiliate's operation of the Station or
any material furnished, added or deleted to or from WB programming
by Affiliate. This indemnity shall not apply to litigation expenses,
including attorneys' fees, that the indemnified party elects to
incur on its own behalf. Except as otherwise provided in this
Agreement, neither Affiliate nor WB shall have any rights against
the other for claims by third persons, or for the failure to operate
facilities or to furnish WB programs if such failure is the result
of a force majeure event as defined in Paragraph 6. Furthermore,
notwithstanding any other provisions of this Agreement, Affiliate
shall not have any rights against WB for claims by third parties or
Affiliate arising out of any actions or omissions of WB permitted
under subparagraph 2(g).
(b) You agree to maintain for Station such licenses, including
performing rights licenses as now are or hereafter may be in
general use by television broadcasting stations and are necessary
for you to broadcast the television programs which we furnish to
you hereunder. We will clear all music in the repertory of
SESAC, ASCAP and BMI used in our programs, thereby licensing the
broadcasting of such music in such programs over Station. You
will be responsible for all music license requirements (and all
other permissions) for any commercial or other material inserted
by you within or adjacent to WB programs in accordance with this
Agreement.
(c) You warrant that the License is in good standing and you agree to
comply with all relevant statutes and FCC rules and requirements
so as to maintain the License in good standing. In the event you
are found to have materially violated any laws or FCC rules or
requirements (after the exhaustion of all appeals so long as
Station retains the License during the pendency of such appeal),
the effect of which is that Station is of materially less value
to us as a broadcaster of WB programming than as of the date of
this Agreement, then we shall have the right to terminate this
Agreement upon 30 days prior written notice. You shall notify us
immediately of any action by the FCC imposing any forfeitures or
other
15
sanction(s) on Station or you including but not limited to
short-term renewals, revocation or denial of renewal.
(d) You warrant that all information delivered by you to us in
connection with this Agreement shall be true and correct in all
material respects.
(e) You warrant that execution of this Agreement and performance of
its obligations will not violate or result in a default under (i)
any material agreement or instrument to which you are party or
(ii) any statute, ordinance, governmental rule or regulation in
any material respect, or order, judgment, injunction, decree or
ruling of any court or administrative agency applicable to you,
which default would materially interfere with the performance of
your obligations hereunder.
(f) You warrant that you are not a party to any legal action or other
proceeding before any court or administrative agency which could
prohibit the performance of your obligations under this Agreement.
16. RETRANSMISSION CONSENT: If any law, governmental regulation or other
action permits you to elect to require any cable television system or
other multichannel video program distributor to obtain your consent to
such system's or distributor's retransmission of Station's broadcast of
either Station's signal as a whole or any WB programming included
therein, then Affiliate and WB agree to negotiate in good faith
regarding whether such consent is to be given (including without
limitation, whether you shall or shall not, in lieu of requiring
consent, elect to require any cable system to comply with any "must
carry" rules, regulations or laws) and, if so, the terms under which
such consent is to be given (including without limitation, the amount
and type of compensation, if any, to be paid by the system or
distributor for such consent and whether any of that compensation shall
be shared between you and us).
17. NETWORK NON-DUPLICATION PROTECTION: During the term of this Agreement,
Affiliate shall be entitled to network non-duplication protection, as
provided by Sections 76.92 through 76.97 of the FCC's rules, against
the presentation of any WB program by a cable system during the period
commencing one
16
day before and ending fourteen (14) days after receipt of such WB program
by Station. The geographic zone of network non-duplication protection
shall be the Designated Market Area ("DMA") (as defined by Nielsen) in
which your Station is located or any lesser zone mandated by Sections
76.92 and 73.658(m) of the FCC's rules as those rules exist as of the date
of this Agreement. Network non-duplication protection shall extend only to
WB programs that Station is carrying in accordance with the terms of this
Agreement and such protection shall be subject to the terms and provisions
of subparagraph 2(f). You are under no obligation to exercise in whole or
in part the network non-duplication rights granted herein. Notwithstanding
anything to the contrary in this paragraph, no non- duplication protection
is provided against the signal of WGN until such time that WB offers
exclusivity against the signal of WGN to its affiliates.
18. AFFILIATION RATINGS PAYMENTS. Affiliate agrees to pay to WB an annual
payment, based on the Station's television market ratings, for WB prime
time programming, commencing with the initial broadcast by Station of such
programming, all as defined and set forth in the "Annual Ratings Payment"
Exhibit attached hereto. These payments are intended to compensate WB for
the WB programming and are in no way intended to, nor do they, confer on
WB any ownership or other equity interest in Station.
19. NOTICES AND REPORTS:
(a) In addition to any other reports or forms requested herein, you will
provide to us in writing, in the manner reasonably requested by WB,
such reports covering WB programs broadcast by Station as we may
request from time to time. To the extent we provide you forms for
such purpose, you shall provide such reports on these forms.
(b) All notices, reports or forms required or permitted hereunder to
be in writing shall be deemed given when personally delivered
(including, without limitation, by overnight courier or other
messenger or upon confirmed receipt of facsimile copy) or on the
date of mailing postage prepaid, addressed as specified below, or
addressed to such other address as such party may hereafter
specify in a written notice. Notice to
17
Affiliate shall be to the address set forth for Affiliate on page 1
of this Agreement. Notice to WB shall be to: The WB Television
Network, 4000 Warner Boulevard, Burbank, California, 91522,
Attention: General Counsel.
20. MISCELLANEOUS:
(a) Nothing contained in this Agreement shall create any partnership,
association, joint venture, fiduciary or agency relationship between
the parties hereto.
(b) Nothing contained in this Agreement nor the conduct of any
officer, director, agent or employee of either WB or Affiliate
shall be deemed to create or to constitute ownership by WB, in
whole or in part, of Affiliate, Station or the License or in any
way constitute a derogation of the rights, duties and
responsibilities imposed upon Affiliate. Nothing in this
Agreement shall be deemed to delegate to WB, directly or
indirectly, any right to control the operations of Station.
(c) You shall at all times permit us, in connection with WB programming,
without charge, to place on, maintain and use at Station's premises,
at our expense, such equipment as WB shall reasonably require.
Station shall operate such equipment for us, to the extent we
reasonably request, and no fee shall be charged by Station therefor.
(d) 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.
(e) Each and all of the rights and remedies of WB and Affiliate under
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 recover any lost profits or consequential damages because of a
breach or failure by the other
18
party, and except as expressly provided in this Agreement to the
contrary, neither WB nor Affiliate shall have any right against the
other with respect to claims by any third person or other third
entity.
(f) Paragraph headings are included in this Agreement for convenience
only and shall not be used to interpret this Agreement or any of the
provisions hereof, nor shall they be given any legal or other
effect.
(g) This Agreement, including all Exhibits attached hereto,
constitutes the entire understanding between WB and Affiliate
concerning the subject matter hereof and shall not be amended,
modified, changed, renewed, extended or discharged except by an
instrument in writing signed by the parties or as otherwise
expressly provided herein. No inducement, representations or
warranties except as specifically set forth herein have been made
by either party to this Agreement to the other. This Agreement
replaces any and all prior and contemporaneous agreements,
whether oral or written, pertaining to the subject matter hereof.
(h) This Agreement may be executed in counterparts, with the Agreement
being effective when each party hereto has executed a copy and
delivered that copy to the other party hereto.
(i) The parties hereto agree that Station will be treated in a manner
which is the same as, or similar to, other WB affiliates with
respect to the following terms and conditions of this Agreement:
Station's allotment of commercial announcements, promotion
announcement procedures, WB program carriage (except as to items
identified in each Station's Schedule 1), delivery requirements,
assignment restrictions and retransmission consent. The parties
hereto acknowledge that the "most favored" protection that is
granted to Station in this subparagraph (i) relates only to the
Affiliation Agreement and not to any agreements of any other
nature that may exist between WB and any third party.
Notwithstanding the provisions of this subparagraph (i) Station
acknowledges that the Affiliation Agreement for "Superstation"
WGN may contain terms in addition to and different from the terms
contained in this Affiliation
19
Agreement. The premises and rationale for preparation of the "Annual
Ratings Payment" Exhibit will be the same for all WB affiliates,
however it is acknowledged that each affiliate will have a different
schedule of payment amounts under these Plans based on each
station's base year calculation. Additionally, guarantee payments
will only be required of stations in the top 15 markets.
IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement
as of the day and year first written above.
THE WB TELEVISION NETWORK PARTNERS ACME HOLDINGS OF OREGON, LLC.
L.P. dba THE WB TELEVISION NETWORK
("WB") ("Affiliate")
By: /s/John Maatta By: /s/Douglas E. Gealy
-------------------------- -------------------------
Title: ______________________ Title: President and Chief Operating Officer
Date: June 17, 1997 Date: 6/17/97
20
The ANNUAL RATINGS PAYMENT EXHIBIT has been intentionally omitted by the
Registrants.
A copy of this omitted Exhibit will be provided to the Securities and
Exchange Commission upon request.
Dates Referenced Herein
| Referenced-On Page |
|---|
| This ‘S-4’ Filing | | Date | | First | | Last | | | Other Filings |
|---|
| |  |
| | 11/19/97 | | | | | | | None on these Dates |
| Filed on: | | 11/14/97 |
| | 6/17/97 | | 20 |
| | 6/10/97 | | 1 |
| List all Filings |
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