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EXHIBIT 10.80
SELLER/BUYER TIME BROKERAGE AGREEMENT
This TIME BROKERAGE AGREEMENT (the "Agreement") is made as of November
1, 1999, between Ramar Communications, II, Ltd., a Texas limited partnership,
("Licensee") and ACME Television of New Mexico, LLC, a Delaware limited
liability company ("Broker").
W I T N E S S E T H:
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WHEREAS, Broker is in the business of producing and transmitting news,
sports, informational, public service and entertainment programming and
associated advertising on Television Station KWBQ, Santa Fe, New Mexico
("KWBQ"); and
WHEREAS, Licensee is the holder of a license issued by the Federal
Communications Commission ("FCC") authorizing the operation of a television
station with the assigned call letters "KASY-TV" on Channel 50, Albuquerque, NM
(the "Station"); and
WHEREAS, Licensee as Seller and Broker (as one of the parties
comprising Buyer) are parties to that certain Asset Purchase Agreement dated
February 19, 1999, as amended pursuant to amendments dated July 30, 1999 and
November 1, 1999, relating to the Station ("Asset Purchase Agreement"); and
WHEREAS, Broker desires to provide programming to be transmitted on the
Station; and
WHEREAS, Licensee desires to transmit programming supplied by Broker on
the Station while maintaining control over the Station and continuing to
broadcast Licensee's own public interest programming;
NOW, THEREFORE, in consideration of these premises and the mutual
promises, undertakings, covenants and agreements of the parties contained in
this Agreement, the parties hereto do hereby agree as follows:
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ARTICLE 1
PROGRAMMING AGREEMENT
1.1 Brokered Programming. Subject to paragraphs 1.2 and 1.3 herein,
Broker hereby agrees to provide, for transmission by the Station, news, sports,
informational and entertainment programming and associated advertising,
promotional, and public service programming and announcement matter for 168
hours per week ("Brokered Programming") throughout the Term hereof. All Brokered
Programming and its transmission by the Station shall be subject to the
supervision and control of Licensee.
1.2 Licensee Programming. Licensee will retain sole responsibility for
ascertainment of the needs of its community of license and service area,
including specifically the children therein. The parties agree that the Brokered
Programming will include programming which responds to these ascertained needs
and concerns, including educational and informational children's programming
that complies with FCC rules (47 C.F.R. Section 73.670) and is in sufficient
quantity to satisfy FCC policies governing children's programming; provided,
however, Licensee shall have the right to broadcast such additional
noncommercial programming, either produced or purchased by Licensee, as it
determines appropriate to respond to the ascertained issues of community concern
("Licensee Programming"). Such Licensee Programming shall be broadcast at times
mutually agreed to by Broker and Licensee, provided, however, that in the
absence of such agreement, Licensee may delete or preempt in its sole discretion
any Brokered Programming for the purpose of transmitting such Licensee
Programming. For purposes of this Agreement, "noncommercial" shall mean any
programming for which no consideration of any kind is received by Licensee.
1.3. Preemption. Licensee may at its discretion preempt or delete any
Brokered Programming which Licensee believes to be unsatisfactory, unsuitable or
contrary to the public interest, and may substitute programming which, in
Licensee's opinion, is of greater local or national importance.
ARTICLE 2
OPERATIONS
2.1 Compliance with FCC Regulations. Subject to paragraph 9.14 herein,
Licensee will retain ultimate responsibility for compliance with all FCC rules
and policies, including, but not limited to (a) the employ of such personnel as
may be necessary to assure compliance with all FCC regulations, including all
technical regulations governing the operation of the Station; (b) complying with
all programming
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content requirements; (c) maintaining a main studio and providing a meaningful
managerial and staff presence at the main studio; (d) ascertainment of and
programming in response to community needs and concerns and the needs and
concerns of children; (e) adhering to FCC limits on commercial matter in
children's programming; and (f) meeting FCC requirements governing (i) political
programming, (ii) sponsorship identification, (iii) lottery and contest matters,
(iv) maintenance of the Station's public and political files, (v) compliance
with appropriate quarterly issues programs lists, children's programming lists,
and (vi) employment and EEO matters Broker will cooperate with Licensee so as to
assist Licensee in meeting FCC requirements pertaining to operation of the
Station, including but not limited to Broker's making main studio facilities and
related technical facilities necessary to KASY-TV operations, such as
studio-transmitter link facilities, available to Licensee at no expense at the
end of the transition period contemplated by that certain November 1, 1999
Closing and Transition Agreement between Licensee, Broker, ▇▇▇ Enterprises,
Inc., and Sandia Television Corporation.
2.2 Provision of Programming. Subject to Licensee's control and
supervision, Broker shall provide the Brokered Programming and shall be
responsible for implementing its transmission by the Station, utilizing assets
owned or leased by Broker to the extent necessary. To the extent Broker
reasonably requests the use of tangible station assets owned by Licensee to
enable Broker to fulfill its obligations under this Agreement, Licensee shall
make the use of such assets reasonably available to Broker at no cost. To the
extent Licensee requests the use of assets owned by Broker to produce or
broadcast the programming specified in paragraphs 1.2 and 1.3 hereof, or to
fulfill Licensee's obligations pursuant to paragraph 2.1 hereof, Broker shall
make the use of such assets available to Licensee at no cost.
2.3 Station Staffing. Licensee shall have sole discretion to make and
effectuate staffing and personnel decisions relating to its employees at the
Station, including the sole responsibility to determine appropriate levels of
staffing to fulfill Licensee's duties under paragraph 2.1 herein. Broker shall
have no control or right of review whatsoever over any decision by Licensee to
hire or dismiss any Licensee employee.
2.4 Station Operation. Licensee shall retain ultimate control over the
Station's facilities, including specifically control over Station's finances,
personnel and programming. Licensee shall retain sole responsibility for
ensuring compliance with all FCC technical rules. Under the supervision and
ultimate control of Licensee's Chief Operator, Broker shall maintain in good
working order the Station's equipment used in connection with the broadcast of
the Station's program material. Broker shall bear full
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and exclusive responsibility for all expenditures that may be necessary to
maintain the Station's equipment in good working order; provided, however, that
Licensee shall retain responsibility for maintaining its antenna in good working
order so long as the antenna is not substantially damaged through Broker's use.
ARTICLE 3
CONSIDERATION
3.1 Fee. Starting on the Commencement Date, as hereinafter defined, and
each month thereafter during the Term of this Agreement, as defined below, so
long as Licensee is not in breach of this Agreement, Broker shall pay to
Licensee a monthly Time Brokerage Fee calculated according to the provisions set
forth in Exhibit A.
3.2 Adjustments. Licensee may broadcast up to two hours of Licensee
Programming per week pursuant to paragraph 1.2 without any adjustment to the fee
set out in paragraph 3.1. If at any time during the Term of this Agreement, the
Station shall fail to carry Brokered Programming for more than the two hours per
week specified in this paragraph 3.2, the fee payable to Licensee by Broker
shall be reduced by a fraction, the denominator of which equals the total
Broker's weekly programming hours on Station and the numerator of which equals
the sum be of Broker hours preempted by Licensee during the week in question.
ARTICLE 4
TERM
4.1 Term. The Term of this Agreement (the "Term") shall commence on
November 1, 1999 (the "Commencement Date") and shall, unless earlier terminated
pursuant to FCC regulation or by mutual consent of Licensee and Broker,
terminate on the earlier of: (a) the consummation of the transactions
contemplated by the Asset Purchase Agreement; or (b) the termination of the
Asset Purchase Agreement. If this Agreement terminates pursuant to this
paragraph 4.1, neither Licensee nor Broker shall have any liability to the other
for damages of any kind under this Agreement.
4.2 Termination for Default and Nonperformance. Should either party be
in breach of this Agreement for the nonperformance of a material obligation,
this Agreement may be terminated by the non-defaulting party if such breach
shall continue with respect to monetary defaults for a period of ten (10) days
and, with respect to non-monetary defaults, for a period of fifteen (15) days
following the receipt of written notice from the non-defaulting party ("Cure
Period"), which notice shall indicate the nature of such
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default; provided, however, that there shall be a final accounting of monies due
but unpaid under this Agreement within thirty (30) days after the consummation
or termination of the Asset Purchase Agreement. The Cure Period shall be
extended as necessary for up to (but not exceeding) thirty (30) days for those
non-monetary defaults which cannot be cured within fifteen (15) days, provided
that the defaulting party is diligently working with all reasonable haste to
remedy such default.
ARTICLE 5
ASSIGNABILITY
5.1 Assignability.
Neither party shall assign or transfer its rights, benefits, duties or
obligations under this Agreement without the prior written consent of the other
party, which consent shall not be unreasonably withheld or delayed.
ARTICLE 6
REGULATORY MATTERS
6.1 Renegotiation Upon FCC Action or Other Regulatory Changes. If the
FCC determines that this Agreement is inconsistent with Licensee's licensee
obligations or is otherwise contrary to FCC policies, rules and regulations, or
if regulatory, legislative, or judicial action subsequent to the Commencement
Date alters the permissibility of this Agreement under the FCC's rules or the
Communications Act of 1934, as amended, the parties shall renegotiate this
Agreement in good faith and recast this Agreement in terms that are likely to
cure the defects perceived by the FCC or the changes caused by regulatory,
legislative, or judicial action and return a balance of benefits to both parties
comparable to the balance of benefits provided by the Agreement in its current
terms. If, after such good faith negotiations, either party determines in good
faith that recasting the Agreement to meet the defects perceived by the FCC is
impossible without a material adverse effect on such party, either party may
terminate this Agreement without further liability upon fifteen (15) days prior
written notice to the other party. If termination shall occur pursuant to this
paragraph, such termination shall extinguish and cancel this Agreement without
further liability on the part of either party to the other; provided, however,
that there shall be a final accounting of monies due but unpaid under this
Agreement within thirty (30) days after such termination.
6.2 FCC Matters. Should a change in FCC policy or rules make it
necessary to obtain FCC consent for the implementation, continuation or further
effectuation of any
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element of this Agreement, both parties hereto shall use their best efforts
diligently to prepare, file and prosecute before the FCC all petitions, waiver
requests, construction permit applications, amendments, rulemaking comments and
other related documents necessary to secure and/or retain FCC approval of all
aspects of this Agreement. Notwithstanding anything in this Agreement to the
contrary (and except filings required as a matter of law) it is understood that
no filing shall be made with the FCC with respect to this Agreement unless both
parties hereto have reviewed said filing and consented to its submission.
6.3 Network Agreement. Licensee has affiliated with the United
Paramount Television Network ("UPN"). Broker acknowledges that the UPN
affiliation agreement as well as any network affiliation agreement hereinafter
entered into between Licensee and an entity which provides television
programming for use on the Station shall be and remain the sole property of
Licensee, as required by the FCC.
ARTICLE 7
BROADCAST EQUIPMENT AND RELATED ASSETS
7.1 Equipment and Assets. Licensee represents and warrants to Broker
that Licensee owns the Station antenna (the "Antenna"). Broker represents and
warrants to Licensee that Broker owns, leases or will acquire other equipment
from ▇▇▇ Enterprises, Inc. necessary to operate the Station (the "Equipment")
7.2 Insurance. At Broker's expense, the parties shall during the Term
keep in force and effect by advance payment of premium comprehensive casualty,
property damage, business interruption, and liability insurance with an
insurance company and in an amount reasonably acceptable to Broker and Licensee,
insuring against any liability that may accrue on account of any loss or damage
to the Antenna and Equipment or occurrences on or about the Antenna and
Equipment. Broker and Licensee shall be specified as insureds under the policy
required under this Section 7.2. Broker will supply a certificate of insurance
to Licensee demonstrating Broker's compliance with its obligations under this
Section 7.2 on the Commencement Date and upon each and every renewal date for
the insurance policy maintained by Broker, and will provide Licensee fifteen
(15) days' prior notice of the expiration of said policy and immediate notice of
any cancellation of said policy.
7.3 Leases.
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(a) Licensee is the lessee under tower space and transmitter building
leases, (the "Leases"). Such Leases being crucial to the successful operation of
this Agreement, Licensee represents and warrants to Broker that Licensee is and
will remain in material compliance with the terms of the Leases. Subject to
reimbursement by Broker, Licensee shall timely pay all rents and expenses
relating to the operation of the Station's transmitter, including but not
limited to rents under the Leases.
(b) Licensee affirmatively covenants to Broker that Licensee will
timely pay all rental payments under the Leases promptly when due and otherwise
fully comply with all terms of the Leases. Broker shall pay or reimburse
Licensee for any fees assessed by the Forest Service in relation to the use of
Forest Service lands for the tower and antenna.
ARTICLE 8
REPRESENTATIONS, WARRANTIES AND COVENANTS
8.1 Licensee's Representations and Warranties. Licensee represents and
warrants to Broker as follows:
(a) Organization. Licensee is a limited partnership duly organized,
validly existing and in good standing under the laws of the State of Texas and
has full power and authority to acquire and own the property, licenses and
permits associated with the Station, and to carry out all of the transactions
contemplated by this Agreement.
(b) Compliance with Law. Licensee has complied with and will continue
to comply with all laws, rules and regulations governing the business, ownership
and operations of the Station that are material in any way to this Agreement.
All attendant contracts and undertakings, as well as the carrying out of this
Agreement, do not result in any violation of, nor are they in conflict with
Licensee's organizational documents or any existing judgment, decree, order,
statute, law, rule or regulation of any governmental authority applicable to
Licensee.
(c) Authority. All requisite resolutions and other authorizations
necessary for the execution, delivery, performance and satisfaction of this
Agreement by Licensee have been duly adopted and complied with.
(d) Misrepresentation of a Material Fact. No document or contract
disclosed to Broker pursuant to this Agreement and in any way affects any of the
properties, assets or proposed business of Licensee as related to this
Agreement, and no certificate or statement furnished by Licensee or on behalf of
it in connection with the transactions
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contemplated herein contains or will contain any untrue statement of a material
fact or omits to state a material fact necessary in order to make the statements
contained herein not misleading.
(e) Authorizations in Good Standing. Licensee is fully qualified under
the Communications Act of 1934, as amended, and the FCC's rules and policies to
be the Licensee and license holder of the Station. Licensee's license and all
related authorizations for the Station are in full force and effect and
unimpaired by any acts or omissions of Licensee, its employees or agents, and
there is no complaint, condition, event, defect or occurrence existing or, to
the knowledge of Licensee, threatened against said authorizations, that would
materially threaten their retention or renewability by Licensee.
(f) Litigation. There is no litigation at law or in equity, no
arbitration proceeding, and no proceeding before or by any court, commission,
agency, or other administrative or regulatory body or authority, or, to the best
of Licensee's knowledge, threatened or anticipated, which would have a material
adverse affect upon the Station. To the extent that any such event shall exist
on the Commencement Date, Licensee agrees that any and all costs, judgments, and
liabilities which have or shall become due and payable shall be the sole and
exclusive financial responsibility of Licensee.
(g) Taxes. All federal, state, county and local tax returns, reports
and declarations of estimated tax or estimated tax deposit forms required to be
filed in connection with the Station's operations, real estate, or payroll have
been duly and timely filed. All taxes which have become due pursuant to such
returns or pursuant to any assessment received by them have been paid as have
all installments of estimated taxes. All taxes, levies, and other assessments
which the Station is required by law to withhold or to collect have been duly
withheld and collected and have been paid over to the proper governmental
authorities.
8.2 Broker's Representations and Warranties, Broker represents and
warrants to Licensee as follows:
(a) Organization. Broker is a limited liability company duly organized,
validly existing and in good standing under the laws of the State of Delaware
and has full power and authority to own its property and to carry out all of the
transactions contemplated by this Agreement.
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(b) Compliance with Law. Broker has complied with and continues to
comply with all laws, rules and regulations governing the business, ownership
and operations of KWBQ that are material in any way to this Agreement. All
attendant contracts and undertakings, as well as the carrying out of this
Agreement, do not result in any violation of nor are they in conflict with
Broker's organizational documents or any existing judgment, decree, order,
statute, law, rule or regulation of any governmental authority applicable to
Broker.
(c) Authority. All requisite resolutions and other authorizations
necessary for the execution, delivery, performance and satisfaction of this
Agreement by Broker have been duly adopted and complied with.
(d) Misrepresentation of Material Fact. No document or contract
disclosed to Licensee pursuant to this Agreement and which in any way affects
any of the properties, assets or proposed business of Licensee as relate to this
Agreement, and no certificate or statement furnished by Broker or on behalf of
it in connection with the transactions contemplated herein contains or will
contain any untrue statement of a material fact or omits to state a material
fact necessary in order to make the statements contained herein not misleading.
(e) Litigation. There is no litigation at law or in equity, no
arbitration proceeding, and no proceeding before or by any court, commission,
agency, or other administrative or regulatory body or authority, or, to the best
of Broker's knowledge, threatened or anticipated, which would have a material
adverse affect upon KWBQ. To the extent that any such event shall exist on the
Commencement Date, Broker agrees that any and all costs, judgments, and
liabilities which have or shall become due and payable shall be the sole and
exclusive financial responsibility of Broker.
(f) Taxes. All federal, state, county and local tax returns, reports
and declarations of estimated tax or estimated tax deposit forms required to be
filed in connection with KWBQ's operations, real estate, or payroll have been
duly and timely filed. All taxes which have become due pursuant to such returns
or pursuant to any assessment received by them have been paid as have all
installments of estimated taxes. All taxes, levies, and other assessments which
KWBQ is required by law to withhold or to collect have been duly withheld and
collected and have been paid over to the proper governmental authorities.
8.3 Licensee's Affirmative Covenant. Licensee covenants and agrees that
it will comply fully in all material respects with all applicable federal, state
and local laws,
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rules and regulations (including, without limitation, all FCC rules, policies
and regulations) and pertinent provisions of all contracts, permits and
pertinent agreements to which it is a party or is otherwise bound.
8.4 Broker's Affirmative Covenant. Broker covenants and agrees that it
will comply fully in all material respects all applicable federal, state and
local laws, rules and regulations (including, without limitation, all FCC rules,
policies and regulations) in the provision of the Brokered Programming to
Licensee.
ARTICLE 9
MISCELLANEOUS
9.1 Force Majeure. Notwithstanding anything contained in this Agreement
to the contrary, neither party shall be liable to the other for failure to
perform any obligation under this Agreement (nor shall any charges or payments
be made in respect thereof) if prevented from doing so by reason of fires,
strikes, labor unrest, embargoes, civil commotion, rationing or other orders or
requirements, acts of civil or military authorities, acts of God or other
contingencies, including equipment failures beyond the reasonable control of the
parties, and all requirements as to notice and other performance required
hereunder within a specified period shall be automatically extended to
accommodate the period of pendency of such contingency which shall interfere
with such performance.
9.2 Trademarks. For the Term of this Agreement, Licensee hereby grants
Broker an unlimited license to use any and all trademarks, service marks,
patents, trade names, jingles, slogans, logotypes and other intangible rights
owned and used or held for use by Licensee in conjunction with the Station.
Licensee agrees to execute such additional documentation as may be necessary or
desirable to effectuate the license granted under this paragraph.
9.3 Notices. Any notice, demand or request required or permitted to be
given under the provisions of this Agreement shall be in writing, addressed to
the following addresses, or to such other address as any party may request in
writing.
To Licensee: Ramar Communications II, Ltd.
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Mr. ▇▇▇▇ ▇▇▇▇▇
Telecopy: ▇▇▇-▇▇▇-▇▇▇▇
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
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With a copy (which shall not constitute notice) to:
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇ P.L.L.C.
▇▇▇▇▇ ▇▇▇
▇▇▇▇ ▇ ▇▇▇▇▇▇, ▇.▇.
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Esq.
Telecopy: 202-293-7783
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
To Broker: ACME Television of New Mexico, LLC
▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇. ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇. ▇▇▇▇ ▇▇▇▇▇
Telecopy: 314-989-0566
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
▇▇▇ ▇▇▇▇▇
Executive Vice President
ACME Television of New Mexico, LLC
▇▇▇▇▇ ▇▇▇
▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇, ▇▇ ▇▇▇▇▇
With a copy (which shall not constitute notice) to:
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, LLP
▇▇▇▇ ▇ ▇▇▇▇▇▇, ▇.▇.
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇. Paper, Esq.
Telecopy: ▇▇▇-▇▇▇-▇▇▇▇
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Any such notice, demand or request shall be deemed to have been duly
delivered and received (i) on the date of personal delivery, or (ii) on the date
of transmission, if sent by facsimile (but only if a hard copy is also sent by
overnight courier), or (iii) on the date of receipt, if mailed by registered or
certified mail, postage prepaid and return receipt
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requested, or (iv) on the date of a signed receipt, if sent by an overnight
delivery service, but only if sent in the same manner to all persons entitled to
receive notice or a copy.
9.4 Duty to Consult. Each party agrees that it will use its best
efforts not to take any action that will unreasonably interfere, threaten or
frustrate the other party's purposes or business activities, and that it will
keep the other party informed of, and coordinate with the other party regarding,
any of its activities that may have a material effect on such party.
9.5 Press Releases. Except as may be required by law or any
governmental agency, no announcement to the press or to any third party of the
transactions contemplated herein shall be made by either party unless the same
shall be approved in advance in writing by both Broker and Licensee.
9.6 Severability. Subject to paragraph 6.1, if any provision of this
Agreement is held to be invalid, illegal or unenforceable, the validity,
legality and enforceability of the remainder of this Agreement shall not be
affected thereby, and the parties agree to use their best efforts to negotiate a
replacement article that is neither invalid, illegal nor unenforceable.
9.7 Entire Agreement. This Agreement and the documents referenced
herein constitute the entire agreement of the parties with respect to its
subject matter and supersede all prior agreements and understandings of the
parties, oral and written, with respect to its subject matter. This Agreement
may be modified only by an agreement in writing executed by all of the parties
hereto.
9.8 Survival. All representations, warranties, covenants and agreements
made herein by the parties hereto or in any certificate to be delivered
hereunder or made in connection with the transactions contemplated herein shall
serve the execution and delivery of this Agreement. All such representations,
warranties, covenants and agreements shall survive for one year past the date on
which this Agreement terminates.
9.9 Payment of Expenses. Except as otherwise provided, Licensee and
Broker shall pay their own expenses incident to the preparation and carrying out
of this Agreement, including all fees and expenses of their respective counsel.
9.10 Further Assurances. From time to time after the date of execution
hereof, the parties shall take such further action and execute such further
documents, assurances and certificates as either party reasonably may request of
the other to effectuate the purposes of this Agreement.
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9.11 Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument, and shall become
effective when each of the parties hereto shall have delivered to it this
Agreement duly executed by the other party hereto.
9.12 Headings. The headings in this Agreement are for the sole purpose
of convenience of reference and shall not in any way limit or affect the meaning
or interpretation of any of the terms or provisions of this Agreement.
9.13 Dealings with Third Parties. Neither party is nor shall hold
itself out to be vested with any power or right to bind contractually or act on
behalf of the other as its contracting broker, agent or otherwise for
committing, selling, conveying or transferring any of the other party's assets
or property, contracting for or in the name of the other party, making any
contractually binding representations contractually binding such party.
9.14 Indemnification.
(a) Each party shall, to the fullest extent permitted by law, protect,
save, defend and keep the other party harmless and indemnify said other party
against, all claims, demands, causes of action, loss, investigations,
proceedings, demands, penalties, fines, expenses and judgments, including
reasonable attorneys, fees and costs, resulting directly or indirectly from a
breach of the indemnifying party's representations, warranties or covenants
under this Agreement.
(b) Broker shall, to the fullest extent permitted by law, protect,
save, defend and keep Licensee and the general and limited partners, their
members, and the officers, directors, employees, and agents of each of them
harmless and indemnify them from and against any and all loss, damage,
liability, or expense, including reasonable attorney's fees, resulting from any
claim of libel, slander, defamation, copyright infringement, idea
misappropriation, invasion of right of privacy or publicity, or any other claim
against Licensee arising out of Broker's programming on the Station, provided
that Licensee shall give Broker prompt notice of any claim and shall cooperate
in good faith with Broker in attempts to resolve and settle any such claims. The
foregoing shall not apply to the use of any new matter that Licensee may insert
in or adjacent to Broker's programming, or to alterations in Broker's
programming caused by Licensee, its agents or employees.
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(c) Licensee shall, to the fullest extent permitted by law, protect,
save, defend, and keep Broker and its members, employees, and agents harmless
and indemnify them from and against any and all loss, damage, liability, or
expense, including reasonable attorney's fees, resulting from any claim of
libel, slander, defamation, copyright infringement, idea misappropriation,
invasion of right of privacy or publicity, or any other claim against Broker
arising out of Licensee's programming on the Station, provided that Broker shall
give Licensee prompt notice of any claim and shall cooperate in good faith with
Broker in attempts to resolve and settle any such claims.
9.15 Governing Law. This Agreement shall be construed under and in
accordance with the laws of the State of New Mexico, without giving effect to
the principles of conflict of laws.
IN WITNESS WHEREOF the parties hereto have executed this Agreement as
of the date first above written.
RAMAR COMMUNICATIONS II, LTD.
By: ▇▇ ▇▇▇▇▇ LLC, its General Partner
By: Ramar Communications, Inc., its Sole Member
By: /s/ ▇▇▇▇ ▇▇▇▇▇
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▇▇▇▇ ▇▇▇▇▇, President
ACME TELEVISION LICENSES OF NEW MEXICO, LLC
By: /s/ ▇▇▇ ▇▇▇▇▇
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▇▇▇ ▇▇▇▇▇, Executive Vice-President
ACME TELEVISION OF NEW MEXICO, LLC
By: /s/ ▇▇▇ ▇▇▇▇▇
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▇▇▇ ▇▇▇▇▇, Executive Vice-President
15
EXHIBIT A
The monthly Time Brokerage Fee will consist of Twenty Thousand Dollars
($20,000.00), plus reimbursement of all costs and expenses incurred by Licensee
in fulfilling its obligations under this Agreement relating to operation and
maintenance of the Station, including but not limited to Licensee's Station
personnel costs, and the monthly rentals paid by Licensee pursuant to the
Leases, as defined in Section 7.3(a) hereof. Such payment shall be made on the
tenth day of each month beginning in December 1999; provided, that Licensee
shall submit an invoice to the Broker by the thirtieth day of the preceding
month itemizing each expense with appropriate documentation. To the extent
Broker disputes any item of expense, the amount not in dispute shall be paid in
accordance with this Exhibit. If the parties cannot resolve the disputed matter
within twenty (20) days after its submission by Licensee, the matter shall be
referred to a mutually agreeable Certified Public Account ("CPA") whose decision
will be final and binding on the parties. Each of the parties will pay half of
the fees and expenses of the CPA.