Initial Public Offering (IPO): Pre-Effective Amendment to Registration Statement (General Form) — Form S-1
Filing Table of Contents
Document/Exhibit Description Pages Size
1: S-1/A Amendment # 1 to Form S-1 233 1.44M
2: EX-1.1 Purchase Agreement Dated October 22, 1997 42 183K
3: EX-2.1 Share Transfer Agreement Dated April 15, 1996 12 51K
4: EX-2.2 Agreement for the Purchase of Film Assets 9 45K
5: EX-2.3 Agreement and Plan of Merger 40 198K
6: EX-2.4 Stock Purchase Agreement Dated as of June 11, 1997 20 90K
7: EX-2.5 Stock Purchase Agreement Dated as of June 11, 1997 17 80K
8: EX-2.6 Stock Purchase Agreement 17 80K
9: EX-2.7 Amended and Restated Agreement 16 68K
10: EX-3.1 Corrected and Restated Certificate 21 104K
11: EX-3.2 Amended and Restated Bylaws 22 95K
12: EX-4.1 Senior Notes Indenture 167 574K
13: EX-4.2 Senior Discount Notes Indenture 169 585K
14: EX-4.3 Senior Notes Registration Rights Agreement 37 135K
15: EX-4.4 Senior Discount Notes Registration Rights 38 142K
Agreement
16: EX-4.5 Senior Notes Liquidated Damages Agreement 5 28K
17: EX-4.6 Senior Discount Notes Liquidated Damages Agreement 5 28K
18: EX-10.1 Amended & Restated Strategic Stockholders 38 149K
Agreement
25: EX-10.12 Operating Agreement 34 146K
26: EX-10.14 Amendment No. 2 to Operating Agreement 10 45K
27: EX-10.17 Stock Ownership Agreement 11 46K
28: EX-10.18 Amendment No. 1 to Stock Ownership Agreement 5 26K
19: EX-10.2 Employment Assumption Agreement 2 22K
29: EX-10.20 Form of Fox Broadcasting Co. Station Affiliate 11 55K
Agreement
30: EX-10.21 Merchandising Rights Acquisition Agreement 12 55K
31: EX-10.22 Indemnification Agreement 6 30K
32: EX-10.23 Distribution Rights Acquisition Agreement 27 95K
33: EX-10.24 Administration Agreement 2 19K
34: EX-10.25 Registration Agreement 20 74K
35: EX-10.26 Amendment No. 1 to Registration Agreement 4 25K
36: EX-10.27 Contribution and Exchange Agreement 30 144K
37: EX-10.28 Guarantee Dated as of December 22, 1995 9 35K
38: EX-10.29 First Amendment to Lease 6 33K
20: EX-10.3 Employment Assumption Agreement 2 22K
39: EX-10.30 Guaranty of Lease 7 40K
40: EX-10.33 Funding Agreement 10 48K
41: EX-10.34 Guaranty Dated as of June 11, 1997 5 34K
42: EX-10.35 Distribution Agreement Dated August 21, 1992 20 68K
43: EX-10.36 Memorandum of Agreement 10 40K
44: EX-10.38 10960 Wilshire Boulevard Office Lease 93 410K
45: EX-10.39 Production Facility Agreement 14 57K
46: EX-10.40 Letter Agreement Dated as of January 1, 1995 3 26K
47: EX-10.41 Barter Syndication Agreement 2 19K
48: EX-10.42 Letter Agreement Dated as of September 26, 1996 22 84K
49: EX-10.43 First Amendment to the Contribution and Exchange 2 18K
Agreement
50: EX-10.44 Agreement Re Registration Rights 5 23K
51: EX-10.46 Agreement Re Transfer of LLC Interests 3 23K
52: EX-10.48 Subordinated Promissory Note 36 146K
21: EX-10.5 Form of Indemnification Agreement 10 54K
53: EX-10.54 Registration Rights Agreement 18 90K
22: EX-10.6 Employment Agreement 6 38K
23: EX-10.8 Employment Agreement 31 101K
24: EX-10.9 Employment Agreement 25 89K
54: EX-12.1 Ratio of Earnings to Fixed Charges 1 19K
55: EX-21.1 Subsidiaries of the Registrant 3 21K
56: EX-23.2 Consent of Independent Auditors 1 17K
57: EX-23.3 Consent of Independent Auditors 1 15K
58: EX-24.2 Power of Attorney 1 18K
59: EX-25.1 Statement of Eligibility - Bank of New York 10 46K
60: EX-27.1 Article 5 FDS 2 19K
EX-10.20 — Form of Fox Broadcasting Co. Station Affiliate Agreement
Exhibit Table of Contents
EXHIBIT 10.20
FOX BROADCASTING COMPANY
STATION AFFILIATION AGREEMENT
Date
Licensee
Call letters-TV
Station Address
City, State & Zip
Attention: Addressee, Title
This sets forth the terms and conditions of the agreement between Fox
Broadcasting Company ("Fox") , on behalf of itself and its wholly-owned
subsidiary, the Fox Children's Network, Inc. ("FCN"), and _________________
("Licensee") for the carriage of programming over the facilities of Licensee's
television station ______ ("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
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television broadcasting, programming which Fox and FCN make available for
broadcasting in the community to which Station is presently licensed by the FCC,
which is ____________, __. 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
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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:
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(a) Licensee agrees to broadcast over Station's facilities 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 programming, the specified
rites apply for the Eastern or Pacific Time Zones, and the Mountain
and Central Time Zones are one hour earlier; for FCN 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: 7:30 A.M.-8:30 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 Sports: As scheduled 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
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 License 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,
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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 either Licensee or Fox
shall have the right to terminate this Agreement upon six months prior
notice to the other party.
(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 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.
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4. Promotion:
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(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 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.
(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,
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logo or other material or item delivered pursuant to this paragraph or
otherwise, except as instructed by Fox at the time.
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, which is currently that set forth on Exhibit D
attached to this Agreement.
(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. Station Compensation: Subject to the terms and conditions of this
--------------------
Agreement and to the condition that Licensee is not in breach of this Agreement,
FCN shall pay Licensee a share of FCN's programming Net Profits. That share
shall be the amount obtained by multiplying Net Profits by a fraction, the
numerator of which is Station's cumulative, aggregate audience delivery for FCN
Programming from the commencement of the term of this Agreement under Paragraph
10 below, and the denominator of which is the cumulative, aggregate audience
delivery for FCN Programming for all FCN affiliates, past and present, from the
inception of FCN, and audience delivery shall be determined in accordance with
the method utilized as of September 3, 1990 by Fox with respect to Fox
programming (other than FCN programming) in its formula for distribution of
station compensation to its affiliates (except that the rating base shall be
kids, ages 2 to 11); provided, however, that said formula for dividing Net
Profits may be changed or modified to contain in whole or in part such other
factors as FCN shall determine from time to time. For purposes hereof, the term
"Net Profits" shall be defined, computed, accounted for and paid in accordance
with Exhibit C attached hereto and incorporated herein by this reference. If
this Agreement is terminated or otherwise expires, the provisions of Paragraph 6
of said Exhibit C shall apply. Notwithstanding anything to the contrary in this
Agreement or in Exhibit C hereto, in no event shall the provisions of Exhibit C
hereto or of this subparagraph (b) apply to any Fox programming other than the
FCN programming specifically covered by Paragraph 2 of Exhibit C hereto.
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7. Force Majeure: Neither Fox nor FCN shall be liable to Licensee for failure
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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
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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.
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10. Term: The term of this Agreement shall commence on ___________, 19___ and
----
shall continue until the expiration of _____________________, 19____ (the
"initial period"). After the initial period, the term of this Agreement may be
extended for additional successive periods of two (2) years 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. Any presently existing Station
Affiliation Agreements between Fox and Licensee and FCN and Licensee shall be
deemed terminated as of the commencement of this Agreement; provided, however,
that the following, between Fox and Licensee, shall remain 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 (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 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
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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 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 or Exhibit C hereto, 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).
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(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
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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 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, telephone system, microwave carrier, wireless cable system, satellite or
other technology wherever located, of Stations broadcast of any Fox programming.
18. Change In Fox Operations: Notwithstanding anything to the contrary in this
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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 but that will conflict with the terms of
this Agreement, and within 30 days after each instance that Fox notifies
Licensee that Fox has made or intends to make any such change, Licensee shall
notify Fox in writing (the "Response Notice") either that Licensee does or does
not agree that this Agreement shall be amended to reflect such change (if
Licensee fails to so notify Fox within said 30 days, then Licensee shall be
deemed to have agreed to said amendment). If such change is or will be
applicable to Fox affiliates representing in total at least 70% of U.S.
Television
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Households, then effective on such date, if any, as Fox shall elect after Fox's
receipt of the Response Notice: (1) this Agreement will be deemed amended to
reflect such change, if Licensee so agreed in the Response Notice (or is deemed
to have so agreed), or (2) this Agreement shall terminate, if Licensee did not
so agree.
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.
(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
10
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.
IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement as of
the day and year first above written.
Fox Broadcasting Company ___________________________________
("Fox") ("Licensee")
By:_____________________________ By:________________________________
Title:__________________________ Title:_____________________________
11
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