Exhibit 10.46
EXECUTION
COPY
SHARED SERVICES AGREEMENT
This Shared Services Agreement (this "Agreement") is entered into as
of January 5, 1998 between Nexstar Broadcasting Group, L.P., a Delaware
limited partnership ("Nexstar"), and Bastet Broadcasting, Inc., a Delaware
corporation ("Bastet"). Nexstar and Bastet are referred to
collectively as the "Parties."
Pursuant to an Asset Purchase Agreement dated as of July 17, 1997 (the
"Purchase Agreement"), Bastet has agreed to acquire from Nexstar substantially
all of the assets of television station WYOU, Scranton, Pennsylvania ("WYOU"),
and after Bastet consummates that acquisition (the "WYOU Acquisition") Bastet
will own and operate WYOU.
Nexstar has agreed to acquire from a third party substantially all of
the assets of television station WBRE, ▇▇▇▇▇▇-▇▇▇▇▇, Pennsylvania ("WBRE"), and
after Nexstar consummates that acquisition (together with the WYOU Acquisition,
the "Acquisitions") Nexstar will own and operate WBRE.
WYOU and WBRE are collectively referred to as the "Stations."
For their mutual benefit and in order to enhance the respective
abilities of Nexstar and Bastet to compete with other television and media
outlets serving in the Scranton/▇▇▇▇▇▇-▇▇▇▇▇, Pennsylvania market after the
Acquisitions, Nexstar and Bastet agree as follows:
1. SHARING ARRANGEMENTS GENERALLY. From time to time, Nexstar and
Bastet may agree to share the costs of certain services and procurements which
they individually require in connection with the ownership and operation of the
respective Stations which they will own after the Acquisitions. Such sharing
arrangements may take the form of joint or co-operative buying arrangements, or
the performance of certain functions relating to the operation of one Station by
employees of the owner and operator of the other Station (subject in all events
to the supervision and control of personnel of the owner and operator of the
Station to which such functions relate), or may be otherwise structured, and
will be governed by terms and conditions upon which Bastet and Nexstar may agree
from time to time. Such sharing arrangements may include the co-location of the
studio, non-managerial administrative and/or master control and technical
facilities of the Stations and the sharing of groundskeeping, maintenance,
security and other services relating to those facilities. In performing services
under any such sharing arrangement (including those described in Section 4),
personnel of one Party will be afforded access to, and have the right to
utilize, without charge, assets and properties of the other Party to the extent
necessary or desirable in the performance of such services.
2. CERTAIN SERVICES NOT TO BE SHARED.
(a) Senior Management Personnel. At all times after the Acquisitions,
each
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2. CERTAIN SERVICES NOT TO BE SHARED.
(a) Senior Management Personnel. At all times after the Acquisitions,
each Station will have a general manager, a chief engineer and a business
manager, each of whom will be retained solely by the Party which owns and
operates such Station and will report solely to such Party, and each of whom
will have no involvement or responsibility in respect of the operation of the
other Station.
(b) Programming and Sales. Each Party will maintain for the Station
owned and operated by it separate managerial and other personnel to carry out
the selection and procurement of programming for such Station and the pricing
and selling of commercial and advertising time on such Station, and in no event
will the Parties or the Stations share services, personnel or information
pertaining to such matters. Each Party will in all events have the exclusive
right to sell advertising and commercial time on the Station owned and operated
by it and all revenue from such sales.
(c) Master Control. Each Party will retain its own master control
operators and related personnel who will perform master control for the Station
owned and operated by such Party.
3. GENERAL PRINCIPLES GOVERNING SHARING ARRANGEMENTS. All arrangements
made as contemplated by this Agreement will be subject to, and are intended to
comply in all respects with, the Communications Act of 1934, as amended, the
rules, regulations and policies of the Federal Communications Commission (the
"FCC"), as in effect from time to time (the "FCC Rules and Regulations"), and
all other applicable laws. The arrangements made pursuant to this Agreement will
not be deemed to constitute "joint sales," "program services," "time brokerage,"
"local marketing" or similar arrangements or a partnership or joint venture
between the Parties or the Stations, and no such arrangement will be deemed to
give either Party any right to control the policies, operations, management or
any other matter relating to the Station owned and operated by the other Party.
4. CERTAIN SPECIFIC SHARING ARRANGEMENTS. In furtherance of the
general agreements set forth in Sections 1 through 3 above, Nexstar and Bastet
have agreed as follows with respect to the sharing of certain services after the
Acquisitions:
(a) Execution of Promotional Policies. Each Party will retain its own
personnel who will be responsible for developing the separate promotional policy
to be employed for such Station from time to time, and the development of such
separate policies will not be shared by the Parties. Nexstar personnel will
implement and execute the promotional policy developed by Nexstar personnel for
WBRE from time to time. Subject to direction and control by Bastet personnel,
Nexstar personnel will also implement and execute the promotional policy
developed by Bastet personnel for WYOU from time to time. Such implementation
and execution will include such tasks as graphic design, production and media
placement and buying.
(b) Continuity and Traffic Support. Each Party will retain its own
personnel who will be responsible for and perform for the Station owned and
operated by such Party the functions typically performed by the "traffic"
manager of a television station. Nexstar personnel will
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carry out continuity and other tasks necessary to support such manager and
functions for WBRE. Subject to direction and control by such management
personnel of Bastet, Nexstar personnel will also carry out continuity and such
other tasks with respect to WYOU.
(c) Collections and Payables Support. Nexstar personnel will perform
the tasks associated with the collection and application of proceeds of
Nexstar's accounts receivable and the payment of Nexstar's accounts payable with
respect to WBRE. Subject to direction and control by the business manager of
WYOU, Nexstar personnel will also perform the tasks associated with the
collection and application of proceeds of Bastet's accounts receivable and the
payment of Bastet's accounts payable with respect to WYOU; provided that such
Nexstar personnel will not perform any tasks relating to the billing of
purchasers of advertising or commercial time on WYOU, the payment of accounts
payable of Bastet arising under contracts for the license of programming run or
to be run on WYOU, or the payment of Bastet's payroll with respect to WYOU.
(d) Transmission Facilities Maintenance. Nexstar personnel will
maintain and repair (as needed) the transmission facilities of WBRE. Subject to
direction and control by the chief engineer of WYOU, Nexstar personnel will also
maintain and repair (as needed) the transmission facilities of WYOU.
(e) Newscast Production.
(i) Production and Delivery. Utilizing WBRE's personnel and
facilities, Nexstar will provide live-feed, fully-staffed and produced
newscasts for broadcast on WYOU at such times as Bastet may request
from time to time by reasonable advance notice to Nexstar; provided
that such newscasts will not comprise more than 15% (by duration) of
the programming broadcast on WYOU during any broadcast day. Nexstar
will be responsible for delivering such newscasts to WYOU's broadcast
facilities by microwave, fiber-optic or other suitable signal. Nexstar
will use reasonable efforts to provide that such newscasts are of a
quality appropriate to WYOU's market. Such newscasts will be produced
exclusively for Bastet for broadcast on WYOU, but may include
non-exclusive videotape, graphics, news stories, field reports and
other material. Bastet personnel will determine the title and format
of such newscasts, and such newscasts will have an "on-air appearance"
as if they had been originated by Bastet through WYOU.
(ii) Commercial, Advertising and Promotional Spots. Bastet will
determine the amount of such commercial, advertising time and
promotional time to be provided for during such newscasts. Bastet will
have the exclusive right to sell commercial and advertising time
during such newscasts and will retain all revenue from the sale of
such commercial and advertising time.
(iii) Editorial Control and Responsibility. Nexstar will use
reasonable efforts to maintain a system of editorial review to ensure
the accuracy, prior to broadcast, of all investigative reports and
other stories prepared by Nexstar personnel and included in the
newscasts which Nexstar provides to Bastet. Nexstar will
indemnify,defend and hold harmless Bastet from any and all demands,
claims, actions or causes of action, losses,
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damages and liabilities, costs and expenses, including reasonable
attorneys' fees, incurred by Bastet as a result of the violation or
breach of any third parties' rights as a result of the provision of
any news content provided by Nexstar or its employees in such
newscasts. Bastet will indemnify, defend and hold harmless Nexstar
from any and all demands, claims, actions or causes of action, losses,
damages and liabilities, costs and expenses, including reasonable
attorneys' fees, incurred by Nexstar as a result of the violation or
breach of any third parties' rights as a result of the provision of
the content (if any) provided by Bastet or its employees, or any
variation by Bastet or its employees of any content provided by
Nexstar, in such newscasts. Each Party will maintain the following
types of insurance coverage for no less than the indicated amounts and
will deliver to the other Party upon request a certificate of
insurance showing the following: (A) comprehensive general liability
insurance in an amount of $1,000,000; (B) worker's compensation and/or
disability insurance; and (C) libel/defamation/First Amendment
liability insurance, with a deductible of no more than $100,000, as to
which coverage each Party will name the other party as an additionally
insured.
(iv) CBS News Feeds. Subject to Nexstar, Bastet and CBS Network
News entering into a news sharing agreement in form and substance
agreeable to the parties thereto, Nexstar will be free to utilize, at
its discretion, the CBS Network News feed footage in the newscasts it
produces for WYOU.
(v) Operating Conditions Agreement. Nexstar and Bastet will
collaborate to create a newscast operating conditions agreement or
procedural memo which will provide the basis for daily operations,
contingencies, WYOU's access to breaking stories, procedures for
editorial compliance with FCC Rules and Regulations (including
quarterly programs/issues requirements), regularly scheduled
operations, editorial and ratings reviews and guidelines for access by
Bastet personnel and WYOU customers to Nexstar's news studios.
(f) Services Fee. In consideration for the services to be provided to
WYOU by Nexstar personnel as described in Sections 4(a) through 4(e), Bastet
will pay to Nexstar the fee (the "Services Fee") described in this Section 4(f).
(i) Base Amount. Subject to the remaining provisions of this
Section 4(f), the base amount of the Services Fee during any calendar
year will be (i) $3,000,000 per annum, in the case of the calendar
year during which the Acquisitions occur and, if the Acquisitions
occur during 1997, then also during 1998, and (ii) 110% of the base
amount of the Services Fee during the preceding year (without regard
to any waiver of the Services Fee for such preceding year pursuant to
Section 4(f)(iii)), in the case of each subsequent year.
(ii) Payment Terms. The Services Fee will be payable monthly, in
arrears, in equal installments during each calendar year from and
after the month during which the Acquisitions occur, and will be
prorated on a daily basis for the calendar year
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during which the Acquisitions occur and the calendar year during which
the sharing arrangements described in Sections 4(a) through 4(e) are
terminated.
(iii) Waiver. Payment and accrual of the Services Fee in respect
of any calendar year (or partial calendar year, in the case of the
calendar years during which the sharing of services described in
Sections 4(a) through 4(e) commence and cease) will be waived to the
extent that the amount of the Services Fee which otherwise would be
payable for such period would exceed WYOU's Available Cash Flow (as
that term is defined in Section 4(f)(iv)) for such period; provided
that an amount equal to the amount so waived in respect of any
calendar year or partial calendar year will be added to the base
amount of the Services Fee for the following calendar year or partial
calendar year. In addition, the entire amount of the Services Fee
which has accrued and is unpaid as of the Cessation Date (as that term
is defined in Section 6) will be waived.
(iv) Available Cash Flow Defined. For any period, WYOU's
"Available Cash Flow" means Bastet's broadcast cash flow in respect of
WYOU for such period (determined with deduction for the Services Fee),
reduced by the following, without duplication:
(A) the aggregate amount of cash paid by
Bastet in respect of reasonable capital expenditures relating
to WYOU during such period,
(B) the aggregate amount of all cash
payments required to be made by Bastet during such period in
respect of the principal amount of, and interest on,
indebtedness of Bastet for borrowed money incurred in respect
of WYOU, and
(C) the aggregate amount of all cash
payments made by Bastet during such period in respect of
federal, state and local taxes,
in each case to the extent not reflected in such broadcast cash flow
for such period or any prior period, and increased or reduced as
Bastet and Nexstar may reasonably agree is appropriate in light of the
reduction or increase in the non-cash net working capital of Bastet in
respect of WYOU during such period.
5. FORCE MAJEURE. If a force majeure event such a strike, labor
dispute, fire, floor or other act of God, failure or delay of technical
equipment, war, public disaster, or action of the FCC or other reason beyond the
cause or control of Nexstar or Bastet prevents such Party or its personnel from
performing tasks which it is required to perform under this Agreement during any
period of time, then such failure will not be a breach of this Agreement and
such Party will be excused from such performance during that time.
6. TERM OF SHARING ARRANGEMENTS. The initial term of this Agreement is
ten (10) years. Unless otherwise terminated by either Party, the term of this
Agreement shall be extended for an additional ten (10) year term. Either Party
may terminate this Agreement at the end of the initial ten year term by six
months prior written notice to the other. Notwithstanding
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the foregoing, the sharing arrangements contemplated by this Agreement will
terminate upon the consummation of the purchase and sale of assets of Bastet
relating to WYOU (i) pursuant to the terms of Section 7(b) or any option
agreement referred to in Section 7 and (ii) at Nexstar's option, pursuant to the
terms of Section 7(c) (in either case, the date upon which such purchase and
sale is consummated being the "Cessation Date"). Except as provided in Section
4(f)(iii), no termination of this Agreement, whether pursuant to this Section 6
or otherwise, will affect the Company's duty to pay any Services Fee accrued, or
to reimburse any cost or expense incurred, prior to the effective date of that
termination.
7. RIGHT OF FIRST REFUSAL; SALE OF WYOU.
(a) Transfers. ▇▇▇▇▇ ▇. ▇▇▇▇▇ ("▇▇▇▇▇") shall not sell, transfer,
assign, pledge or otherwise dispose of (whether with or without consideration
and whether voluntarily or involuntarily or by operation of law) any interest in
his shares (the "Shares") of stock of Bastet (a "Transfer"), except pursuant to
the provisions of this Section 7. Bastet shall not sell, transfer, assign,
pledge or otherwise dispose of (whether with or without consideration and
whether voluntarily or involuntarily or by operation of law) any interest in all
or any material portion of the assets of WYOU (whether by one transaction or a
series of transactions) (also, a "Transfer"), except pursuant to the provisions
of this Section 7. Neither Bastet nor ▇▇▇▇▇ shall consummate or agree to
consummate any Transfer until 30 days after the delivery to Nexstar of Bastet's
or ▇▇▇▇▇'▇, as the case may be, written notice (the "Sale Notice"), unless the
parties to the Transfer have been finally determined pursuant to this Section 7
prior to the expiration of such 30-day period (the "Election Period"). The Sale
Notice shall disclose in reasonable detail the identity of the proposed
transferee(s), the assets or shares to be Transferred, the terms and conditions
of the proposed Transfer and the aggregate purchase price (the "Transfer Price")
to be paid to ▇▇▇▇▇ or Bastet, as the case may be. ▇▇▇▇▇ shall not Transfer less
than all of his Shares in any single transaction.
(b) First Refusal Rights. Nexstar may elect to purchase the assets
or Shares of Bastet or ▇▇▇▇▇, respectively, to be Transferred upon the same
terms and conditions as those set forth in the Sale Notice (or at a cash
equivalent price) by delivering a written notice of such election to Bastet or
▇▇▇▇▇, as the case may be, during the Election Period. If Nexstar has so not
elected to purchase the assets or Shares to be Transferred, ▇▇▇▇▇ or Bastet, as
the case may be, may Transfer the assets or Shares specified in the Sale Notice,
subject to the provisions of Section 7(c) below, to the proposed transferee(s)
named in the Sale Notice at a price and on the other terms and conditions no
more favorable to the transferee(s) thereof than those specified in the Sale
Notice during the 120-day period immediately following the Election Period;
provided that such 120-day period shall be extended to permit the parties to
such Transfer a reasonable period to obtain any required consent or approval of
the FCC, so long as such parties are using reasonably diligent efforts to obtain
such approval, and shall end on the earliest of (w) the tenth business day after
such consent or approval has been granted, (x) the date upon which any such
party ceases to use such efforts, (y) the date upon any denial of such consent
or approval becomes a final order, and (z) the 360th day after the end of the
Election Period. Any assets or Shares not Transferred within such 120-day (or
extended) period shall be subject to the provisions of this Section 7 upon
subsequent Transfer. If Nexstar (or an assignee of Nexstar) has elected to
purchase any assets or Shares hereunder, the transfer of such assets or Shares
shall be consummated as soon as practical after the delivery of the election
notice
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to Bastet or ▇▇▇▇▇, as the case may be, but in any event within 120 days after
the expiration of the Election Period; provided that such 120-day period shall
be extended to permit the parties to such Transfer a reasonable period to obtain
any required consent or approval of the FCC, so long as such parties are using
reasonably diligent efforts to obtain such approval, and shall end on the
earliest of (w) the tenth business day after such consent or approval has been
granted, (x) the date upon which any such party ceases to use such efforts, (y)
the date upon any denial of such consent or approval becomes a final order, and
(z) the 360th day after the end of the Election Period. If Nexstar (or any
assignee thereof) elects to purchase any assets or Shares hereunder, then each
of Nexstar (or such assignee), Bastet and ▇▇▇▇▇ will use reasonably diligent
efforts to obtain any consent or approval described in the foregoing proviso,
including promptly making all required filings and applications therefor and
furnishing to the FCC all information and undertakings which may reasonably be
requested in connection therewith.
(c) Payment Upon Transfer. If Bastet or ▇▇▇▇▇ makes a Transfer to a
person or entity other than Nexstar (or an assignee thereof) pursuant to this
Section 7 and Nexstar elects to terminate this Agreement (which election it may
make in its sole discretion upon consummation of the proposed Transfer in
question), then upon consummation of such Transfer, Bastet or ▇▇▇▇▇, as the case
may be, shall pay to Nexstar the greater of (i) 95% of the amount by which the
Transfer Price exceeds the Cash Purchase Price (as such term is defined in the
Purchase Agreement and plus or minus any adjustments made pursuant to Section
1.4 and Article VII of the Purchase Agreement), and (ii) $12,000,000.
(d) Term. Bastet and ▇▇▇▇▇ shall remain subject to the terms of this
Section 7 until the earlier of (i) ten (10) years from the date hereof, or (ii)
the date upon which Bastet and Nexstar enter into an option agreement granting
Nexstar an option to acquire the assets of WYOU on terms mutually agreeable to
both Parties.
8. AMENDMENT AND WAIVER. This Agreement may be amended and any
provision of this Agreement may be waived; provided that any such amendment or
waiver will be binding upon a Party only if such amendment or waiver is set
forth in a writing executed by such Party.
9. NOTICES. All notices, demands and other communications given or
delivered under this Agreement will be in writing and will be deemed to have
been given when personally delivered or delivered by express courier service.
Notices, demands and communications to Nexstar or Bastet will, unless another
address is specified in writing, be sent to the address indicated below:
to Bastet:
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Bastet Broadcasting, Inc.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇
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to Nexstar:
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Nexstar Broadcasting Group, L.P.
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇
10. BINDING AGREEMENT; ASSIGNMENT. This Agreement and all of the
provisions hereof will be binding upon and inure to the benefit of the Parties
and their respective successors and permitted assigns; provided that neither
this Agreement nor any of the rights, interests or obligations hereunder may be
assigned by one Party without the prior written consent of the other Party,
except that Nexstar may assign its rights under Section 7 to any person or
entity without Bastet's or ▇▇▇▇▇'▇ prior written consent.
11. SEVERABILITY. Whenever possible, each provision of this Agreement
will be interpreted in such a manner as to be effective and valid under
applicable law, but if any provision of this Agreement is held to be prohibited
by or invalid under applicable law, such provision will be ineffective only to
the extent of such prohibition or invalidity, without invalidating the remainder
of such provisions or the remaining provisions of this Agreement.
12. NO STRICT CONSTRUCTION. The language used in this Agreement will
be deemed to be the language chosen by the Parties to express their mutual
intent. In the event an ambiguity or question of intent or interpretation
arises, this Agreement will be construed as if drafted jointly by the Parties,
and no presumption or burden of proof will arise favoring or disfavoring any
Person by virtue of the authorship of any of the provisions of this Agreement.
13. CAPTIONS. The captions used in this Agreement are for convenience
of reference only, do not constitute a part of this Agreement and will not be
deemed to limit, characterize or in any way affect any provision of this
Agreement, and all provisions of this Agreement will be enforced and construed
as if no caption had been used in this Agreement.
14. ENTIRE AGREEMENT. This Agreement and the documents referred to
herein contain the entire agreement between the Parties and supersede any prior
understandings, agreements or representations by or between the Parties, written
or oral, which may have related to the subject matter hereof in any way.
15. COUNTERPARTS. This Agreement may be executed in one or more
counterparts, each of which will be deemed an original but all of which taken
together will constitute one and the same instrument.
16. GOVERNING LAW. All questions concerning the construction, validity
and interpretation of this Agreement will be governed by and construed in
accordance with the internal laws of the Commonwealth of Pennsylvania, without
giving effect to any choice of law or conflict of law provision (whether of the
Commonwealth of Pennsylvania or any other jurisdiction)
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that would cause the application of the laws of any jurisdiction other than the
Commonwealth of Pennsylvania. In furtherance of the foregoing, the internal law
of the Commonwealth of Pennsylvania will control the interpretation and
construction of this Agreement (and all schedules and exhibits hereto), even if
under that jurisdiction's choice of law or conflict of law analysis, the
substantive law of some other jurisdiction would ordinarily apply.
17. PARTIES IN INTEREST. Nothing in this Agreement, express or
implied, is intended to confer on any Person other than the Parties and their
respective permitted successors and assigns any rights or remedies under or by
virtue of this Agreement.
18. WAIVER OF JURY TRIAL. AS A SPECIFICALLY BARGAINED INDUCEMENT FOR
EACH OF THE PARTIES TO ENTER INTO THIS AGREEMENT (EACH PARTY HAVING HAD
OPPORTUNITY TO CONSULT COUNSEL), EACH PARTY EXPRESSLY WAIVES THE RIGHT TO TRIAL
BY JURY IN ANY LAWSUIT OR PROCEEDING RELATING TO OR ARISING IN ANY WAY FROM THIS
AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREIN.
19. OTHER DEFINITIONAL PROVISIONS. The terms "hereof," "herein" and
"hereunder" and terms of similar import will refer to this Agreement as a whole
and not to any particular provision of this Agreement. Section, references
contained in this Agreement are references to Sections, in this Agreement,
unless otherwise specified. Each defined term used in this Agreement has a
comparable meaning when used in its plural or singular form. Each
gender-specific term used in this Agreement has a comparable meaning whether
used in a masculine, feminine or gender-neutral form. Whenever the term
"including" is used in this Agreement (whether or not that term is followed by
the phrase "but not limited to" or "without limitation" or words of similar
effect) in connection with a listing of items within a particular
classification, that listing will be interpreted to be illustrative only and
will not be interpreted as a limitation on, or an exclusive listing of, the
items within that classification.
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IN WITNESS WHEREOF, the Parties have executed this Shared Services
Agreement as of the date first written above.
BASTET BROADCASTING, INC.
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
By: ----------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: President
NEXSTAR BROADCASTING GROUP, L.P.
By: Nexstar Broadcasting of Northeastern
Pennsylvania GP, Inc.
Its: General Partner
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇
By: ----------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇
Title: President, CEO
The undersigned, being the sole stockholder
of Bastet, hereby agrees to be bound
by the provisions of Section 7 hereof:
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
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▇▇▇▇▇ ▇. ▇▇▇▇▇
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