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EXHIBIT 2.3
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TIME BROKERAGE AGREEMENT
BY AND BETWEEN
▇▇▇▇▇▇ COMMUNICATIONS OF WEST PALM BEACH - 25, INC.,
▇▇▇▇▇▇ WEST PALM BEACH LICENSE, INC.,
AND
▇▇▇▇▇▇ COMMUNICATIONS CORPORATION
FOR
TELEVISION STATION WPBF-TV
WEST PALM BEACH, FLORIDA
* * *
APRIL 29, 1997
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TABLE OF CONTENTS
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SECTION 1. LEASE OF STATION AIR TIME.......................................................................1
1.1 Representations.................................................................................1
1.2 Effective Date; Term............................................................................1
1.3 Scope...........................................................................................2
1.4 Option to Renew.................................................................................2
1.5 Consideration...................................................................................2
1.6 Licensee Operation of the Station...............................................................2
1.7 Licensee Representations and Warranties.........................................................3
1.8 Programmer Responsibility.......................................................................3
1.9 Contracts.......................................................................................4
SECTION 2. STATION OBLIGATION TO ITS COMMUNITY OF LICENSE..................................................4
2.1 Licensee Authority..............................................................................4
2.2 Additional Licensee Obligations.................................................................4
2.3 Responsibility for Employees and Expenses.......................................................5
SECTION 3. STATION PROGRAMMING POLICIES....................................................................5
3.1 Broadcast Station Programming Policy Statement..................................................5
3.2 Licensee Control of Programming.................................................................5
3.3 Programmer Compliance with Copyright Act........................................................6
3.4 Sales...........................................................................................6
3.5 Payola..........................................................................................6
3.6 Cooperation on Programming......................................................................6
3.7 Staffing Requirements...........................................................................7
3.8 Accounts Receivable.............................................................................7
3.9 Trade and Barter................................................................................8
3.10 Children's Television Advertising...............................................................8
SECTION 4. INDEMNIFICATION.................................................................................8
4.1 Programmer's Indemnification....................................................................8
4.2 Licensee's Indemnification......................................................................9
4.3 Limitation......................................................................................9
4.4 Procedure for Indemnification...................................................................9
4.5 Time Brokerage Challenge.......................................................................10
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SECTION 5. ACCESS TO PROGRAMMER MATERIALS AND CORRESPONDENCE
..............................................................................................10
5.1 Confidential Review............................................................................10
5.2 Political Advertising..........................................................................11
SECTION 6. TERMINATION AND REMEDIES UPON DEFAULT..........................................................11
6.1 Termination....................................................................................11
6.2 Force Majeure..................................................................................12
6.3 Other Agreements...............................................................................12
SECTION 7. MISCELLANEOUS..................................................................................12
7.1 Assignment.....................................................................................12
7.2 Call Letters...................................................................................12
7.3 Counterparts...................................................................................13
7.4 Entire Agreement...............................................................................13
7.5 Taxes..........................................................................................13
7.6 Headings.......................................................................................13
7.7 Governing Law..................................................................................13
7.8 Notices........................................................................................13
7.9 Severability...................................................................................14
7.10 No Joint Venture...............................................................................14
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TIME BROKERAGE AGREEMENT
TIME BROKERAGE AGREEMENT, made this 29th day of April, 1997, by and
between ▇▇▇▇▇▇ COMMUNICATIONS OF WEST PALM BEACH - 25, INC., and ▇▇▇▇▇▇ WEST
PALM BEACH LICENSE, INC., each a Florida corporation (collectively, the
"Licensee") and ▇▇▇▇▇▇ COMMUNICATIONS CORPORATION, a Delaware corporation (the
"Programmer").
WHEREAS, Licensee is the owner and operator of Television Station
WPBF-25, Tequesta, Florida, serving the West Palm Beach, Florida market (the
"Station") pursuant to authorizations issued by the Federal Communications
Commission ("FCC").
WHEREAS, Programmer is involved in television station ownership and
operation and, pending the completion of the sale of Station by Licensee to The
Hearst Corporation pursuant to an Asset Purchase Agreement dated as of March 25,
1997, is willing to provide programming for the Station on the terms and
conditions contained herein;
WHEREAS, the Licensee wishes to retain Programmer to provide
programming for the Station that is in conformity with the Station's policies
and procedures, FCC policies for time brokerage arrangements, and the provisions
hereof.
WHEREAS, Programmer agrees to use the Station to broadcast such
programming of its selection that is in conformity with all rules, regulations
and policies of the FCC, subject to Licensee's full authority to manage and
control the operation of the Station.
WHEREAS, Programmer and Licensee agree to cooperate to make this
Time Brokerage Agreement work to the benefit of the public and both parties and
as contemplated in this Agreement.
NOW, THEREFORE, in consideration of the above recitals and mutual
promises and covenants contained herein, the parties, intending to be legally
bound, agree as follows:
SECTION 1. LEASE OF STATION AIR TIME
1.1 Representations. Both Licensee and Programmer represent that
they are legally qualified, empowered and able to enter into this Agreement and
that the execution, delivery, and performance hereof shall not constitute a
breach or violation of any material agreement, contract or other obligation to
which either party is subject or by which it is bound.
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1.2 Effective Date; Term. The effective date of this Agreement shall
be April 29, 1997 and it shall continue in force from that date until December
31, 1997, unless otherwise extended or terminated as set forth below.
1.3 Scope. During the term of this Agreement and any renewal
thereof, Licensee shall make available to Programmer broadcast time upon the
Station as set forth in this Agreement. Programmer shall program the broadcast
time on the Station utilizing Licensee's existing programming or Programer's own
programming. Programmer shall cause such programming to be delivered to the
Station's transmitter facilities or other authorized remote control points as
reasonably designated by Licensee. Programmer shall have the right to produce
its programming (including commercial amounts and related production activities)
from the Licensee's existing studio and production facilities. Subject to
Licensee's reasonable approval, as set forth in this Agreement, Programmer shall
provide programming of Programmer's selection complete with commercial matter,
news, public service announcements and other suitable programming to the
Licensee. Licensee, at its discretion, may program the Station at other times
and the Licensee may designate such additional time as it may require for the
broadcast of programming necessary for the Station to broadcast news, public
affairs, religious and non-entertainment programming as required by the FCC all
at such times to be mutually agreed to by Licensee and Programmer. All program
time not reserved by or designated for Licensee shall be available for use by
Programmer and no other party.
1.4 Option to Renew. Subject to the termination provisions of
Section 6 hereof, this Agreement may be renewed for an additional term as
mutually agreed upon by the Licensee and the Programmer and consistent with FCC
requirements.
1.5 Consideration. As consideration for the air time made available
hereunder Programmer shall make payments to Licensee as set forth in Attachment
I.
1.6 Licensee Operation of the Station. Licensee will have full
authority, power and control over the management and operations of the Station
during the term of this Agreement and during any renewal of such term. Licensee
will bear all responsibility for the Station's compliance with all applicable
provisions of the Communications Act of 1934, as amended, (the "Act") the rules,
regulations and policies of the FCC and all other applicable laws. Licensee
shall be solely responsible for and pay in a timely manner all customary
operating costs of the Station, including but not limited to maintenance of the
studio and transmitting facility and costs of electricity, except that Licensee
shall be entitled to reimbursement pursuant to Attachment I hereof and
Programmer shall be responsible for the costs of its programming and its
personnel, if any, as provided in Sections 1.8 and 2.3 hereof.
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Licensee shall employ at its expense management level and other employees
consisting of a General Manager who will direct the day-to-day operations of the
Station and such other personnel as required by the FCC, and who will report to
and be accountable to the Licensee. Licensee shall be responsible for the
salaries, taxes, insurance and related costs for all personnel employed by the
Station and shall maintain insurance reasonably satisfactory to Programmer
covering the Station's transmission facilities.
1.7 Licensee Representations and Warranties. Licensee represents and
warrants as follows:
(a) Licensee owns and holds or will hold all licenses and other
permits and authorizations necessary for the current operation of the Station,
and such licenses, permits and authorizations are and will be in full force and
effect throughout the term of this Agreement. There is not now pending, or to
Licensee's best knowledge, threatened, any action by the FCC or by any other
party to revoke, cancel, suspend, refuse to renew or modify adversely any of
such licenses, permits or authorizations. Licensee is not in material violation
of any statute, ordinance, rule, regulation, policy, order or decree of any
federal, state or local entity, court or authority having jurisdiction over it
or the Station, which would have a material effect upon the Licensee, the
Station or upon Licensee's ability to perform this Agreement. Licensee shall not
take any action or omit to take any action which would have a material impact
upon the Licensee, the Station or upon Licensee's ability to perform this
Agreement. All reports and applications required to be filed with the FCC or any
other governmental body have been, and during the course of the term of this
Agreement or any renewal thereof, will be filed in a timely and complete manner.
During the term of this Agreement and any renewal thereof, Licensee shall not
dispose of, transfer, assign or pledge any of Licensee's assets and properties
without the prior written consent of the Programmer which consent shall not be
unreasonably withheld, if such action would have a materially adverse affect on
Licensee's performance hereunder or the business and operations of Licensee or
the Station permitted hereby.
(b) Licensee shall pay, in a timely fashion, all of the expenses
incurred in operating the Station including salaries and benefits of Licensee's
employees, lease payments, utilities, taxes, programming expenses, etc., as set
forth in Attachment I (except those for which a good faith dispute has been
raised with the vendor or taxing authority), and shall provide Programmer with a
schedule of such timely payments (including invoices) within twenty (20) days
following the end of each month and Programmer shall reimburse Licensee for
those payments pursuant to the procedures set forth in Attachment I hereof
within five (5) days of Programmer's receipt of Licensee's schedule (including
invoices).
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1.8 Programmer Responsibility. Programmer shall be solely
responsible for any expenses incurred in the origination and/or delivery of
programming from any remote location and for any publicity or promotional
expenses incurred by Programmer and shall employ and be responsible for the
salaries, commission, taxes, insurance and all other related expenses for all
personnel, if any, involved in the production and broadcast of its Programs.
Such payments by Programmer shall be in addition to any other payments to be
made by Programmer under this Agreement.
1.9 Contracts. Programmer will enter into no third-party contracts,
leases or agreements which will bind Licensee in any way except with Licensee's
prior written approval. Without limiting the foregoing, Licensee shall not,
without the prior written consent of the Programmer, amend, or consent to any
waiver or modification of the terms and conditions of that certain Asset Sale
Agreement dated as of March 25, 1997, by and among Licensee and The Hearst
Corporation, in each case to the extent any such amendment, modification or
waiver could reasonably be expected to have an adverse effect on Programmer's
rights and obligations hereunder, including, Programmer's reimbursement
obligations under Section 1.5 hereof, or the rights of Programmer's subsidiary,
▇▇▇▇▇▇ Communications of Florida, Inc., under the terms of that certain
Subordinated Note dated as of April 29, 1997, issued by Licensees.
SECTION 2. STATION OBLIGATION TO ITS COMMUNITY OF LICENSE
2.1 Licensee Authority. Notwithstanding any other provision of this
Agreement, Programmer recognizes that Licensee has certain obligations to
broadcast programming to meet the needs and interests of viewers in Tequesta,
Florida, the Station's community of license. From time to time the Licensee may
air specific programming on issues of importance to the local community. Nothing
in this Agreement shall abrogate the unrestricted authority of the Licensee to
discharge its obligations to the public and to comply with the Act and the rules
and policies of the FCC.
2.2 Additional Licensee Obligations. Although both parties shall
cooperate in the broadcast of emergency information over the Station, Licensee
shall also retain the right to interrupt Programmer's programming in case of an
emergency or for programming which, in the good faith judgment of Licensee, is
of greater local or national public importance. Licensee shall also coordinate
with Programmer the Station's hourly Station identification and any other
announcements required to be aired by FCC rules. Licensee shall continue to
maintain a main studio, as that term is defined by the FCC, within the Station's
principal community contour, shall maintain its local public inspection file in
accordance with FCC rules, regulations and policies, and shall prepare and place
in such inspection file or files in a
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timely manner all material required by Section 73.3526 of the FCC's Rules,
including without limitation the Station's quarterly issues and program lists.
Programmer shall, upon request by Licensee, provide Licensee with such
information concerning Programmer's programs and advertising as is necessary to
assist Licensee in the preparation of such information. Licensee shall also
maintain the Station's logs, receive and respond to telephone inquiries, and
control and oversee any remote control point which may be established for the
Station.
2.3 Responsibility for Employees and Expenses. Licensee will provide
and be responsible for the Station's personnel necessary for the broadcast
transmission of the Station's programs and will be responsible for the salaries,
taxes, benefits, insurance and related costs for all the employees used in the
broadcast transmission of its programs and necessary to other aspects of the
Station operation. Whenever on the Station's premises, all personnel shall be
subject to the overall supervision of Licensee's General Manager.
SECTION 3. STATION PROGRAMMING POLICIES
3.1 Broadcast Station Programming Policy Statement. Licensee has
adopted and will enforce a Broadcast Station Programming Policy Statement (the
"Policy Statement"), a copy of which appears as Attachment II hereto and which
may be amended in a reasonable manner from time to time by Licensee upon notice
to Programmer. Programmer agrees and covenants to comply in all material
respects with the Policy Statement, to all rules and regulations of the FCC, and
to all changes subsequently made by Licensee or the FCC. Programmer shall
furnish or cause to be furnished the artistic personnel and material for the
programs as provided by this Agreement and all programs shall be prepared and
presented in conformity with the rules, regulations and policies of the FCC and
with the Policy Statement set forth in Attachment II hereto. All advertising
spots and promotional material or announcements shall comply with applicable
federal, state and local regulations and policies and shall be produced in
accordance with quality standards established by Programmer. If Licensee
determines that a program supplied by Programmer is for any reason, within
Licensee's sole discretion, unsatisfactory or unsuitable or contrary to the
public interest, or does not comply with the Policy Statement it may, upon prior
written notice to Programmer (to the extent time permits such notice), suspend
or cancel such program without incurring liability to Programmer. Licensee will
use reasonable efforts to provide such written notice to Programmer prior to the
suspension or cancellation of such program.
3.2 Licensee Control of Programming. Programmer recognizes that the
Licensee has full authority to control the operation of the Station. The parties
agree that Licensee's authority includes but is not limited to the right to
reject or refuse such portions of the Programmer's programming which Licensee
believes to be unsatisfactory, unsuitable or
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contrary to the public interest. Programmer shall have the right to change the
programming supplied to Licensee and shall give Licensee at least twenty-four
(24) hours notice of substantial and material changes in such programming,
provided that such programming is consistent with the Policy Statement and FCC
regulations.
3.3 Programmer Compliance with Copyright Act. Programmer represents
and warrants to Licensee that Programmer has full authority to broadcast its
programming on the Station, and that Programmer shall not broadcast any material
in violation of the Copyright Act. All music supplied by Programmer or Licensee
shall be: (i) licensed by ASCAP, SESAC or BMI; (ii) in the public domain; or
(iii) cleared at the source by Programmer or Licensee. Licensee will maintain
ASCAP, BMI and SESAC licenses as necessary.
3.4 Sales. Programmer shall retain all of the Station's network
compensation revenues, any revenues received from any network or program
supplier with respect to affiliation or use of programming by Programmer, and
all revenues from the sale of advertising time within the programming it
provides to the Licensee. Programmer shall be responsible for payment of all
expenses attributable thereto, including, but not limited to, the commissions
due to any national sales representative engaged by it for the purpose of
selling national advertising which is carried during the programming it provides
to Licensee. Unless otherwise agreed between the parties, Licensee shall retain
all revenues from the sale of Station's advertising during the hours each week
in which the Licensee airs its own programming pursuant to Section 1.3 hereof.
3.5 Payola. Programmer agrees that it and its employees will not
accept any consideration, compensation, gift or gratuity of any kind whatsoever,
regardless of its value or form, including, but not limited to, a commission,
discount, bonus, material, supplies or other merchandise, services or labor
(collectively "Consideration"), whether or not pursuant to written contracts or
agreements between Programmer and merchants or advertisers, unless the payer is
identified in the program for which Consideration was provided as having paid
for or furnished such Consideration, in accordance with the Act and FCC
requirements. Programmer agrees to annually, or more frequently at the request
of the Licensee, execute and provide Licensee with a Payola Affidavit from each
of its employees involved with the Station substantially in the form attached
hereto as Attachment III.
3.6 Cooperation on Programming. Programmer and Licensee mutually
acknowledge their interest in ensuring that the Station serve the needs and
interests of listeners in Tequesta and the surrounding service area and agree to
cooperate to provide such service. Licensee shall, on a regular basis, assess
the issues of concern to residents of Tequesta and the surrounding area and
address those issues in its public service programming. Programmer, in
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cooperation with Licensee, will endeavor to ensure that programming responsive
to the needs and interests of the community of license and surrounding area is
broadcast, in compliance with applicable FCC requirements and will assist
Licensee, if requested, in the production of Licensee-provided programming.
Licensee will describe those issues and the programming that is broadcast in
response to those issues and place issues/programs lists in the Station's public
inspection file as required by FCC rules. Further, Licensee may request, and
Programmer shall provide, information concerning such of Programmer's programs
as are responsive to community issues so as to assist Licensee in the
satisfaction of its public service programming obligations. Programmer shall
also provide Licensee upon request such other information necessary to enable
Licensee to prepare records and reports required by the Commission or other
local, state or federal government entities.
3.7 Staffing Requirements. Licensee will be in full compliance with
the main studio staff requirements as specified by the FCC.
3.8 Accounts Receivable. As soon as practicable after the Effective
Date, Licensee shall deliver to Programmer a complete and detailed list of all
the Accounts Receivable of the Station. The accounting for the Accounts
Receivable shall follow the same method and practices as now employed by
Licensee for the Station, using where reasonable, the computer now being used by
Licensee, with Licensee's software programs, Licensee's General Manager shall
have the right to review and audit the Accounts Receivable record keeping and
collection process to verify the accuracy of the amount(s) collected by
Programmer.
3.9 Trade and Barter. Programmer shall be entitled to any goods,
services, or other items to be received after the Effective Date under trade or
barter agreement, and shall be obligated to include in its programming and to
air the advertising as required under the trade, barter, or similar arrangement.
3.10 Children's Television Advertising. Programmer agrees that it
will not broadcast advertising within programs originally designed for children
aged 12 years and under in excess of the amounts permitted under applicable FCC
rules, and will take all steps necessary to pre-screen children's programming
broadcast during the hours it is providing such programming, to establish that
advertising is not being broadcast in excess of the applicable FCC rules.
SECTION 4. INDEMNIFICATION
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4.1 Programmer's Indemnification. Programmer shall indemnify and
hold harmless Licensee from and against any and all claims, losses, costs,
liabilities, damages, forfeitures and expenses (including reasonable legal fees
and other expenses incidental thereto) of every kind, nature and description
(collectively, "Damages") resulting from (i) Programmer's breach of any
representation, warranty, covenant or agreement contained in this Agreement, or
(ii) any action taken by Programmer or its employees and agents with respect to
the Station, or any failure by Programmer or its employees and agents to take
any action with respect to the Station, including, without limitation, damages
relating to violations of the Act or any rule, regulation or policy of the FCC,
slander, defamation or other claims relating to programming provided by
Programmer and Programmer's broadcast and sale of advertising time on the
Station.
4.2 Licensee's Indemnification. Licensee shall indemnify and hold
harmless Programmer from and against any and all claims, losses, consents,
liabilities, damages, FCC forfeitures and expenses (including reasonable legal
fees and other expenses incidental thereto) of every kind, nature and
description, arising out of Licensee's operations and broadcasts to the extent
permitted by law and any action taken by the Licensee or its employees and
agents with respect to the Station, or any failure by Licensee or its employees
and agents to take any action with respect to the Station.
4.3 Limitation. Neither Licensee nor Programmer shall be entitled to
indemnification pursuant to this section unless such claim for indemnification
is asserted in writing delivered to the other party.
4.4 Procedure for Indemnification. The procedure for indemnification
shall be as follows:
(a) The party claiming indemnification (the "Claimant") shall
promptly give written notice to the party from which indemnification is claimed
(the "Indemnifying Party") of any claim, whether between the parties or brought
by a third party, specifying in reasonable detail the factual basis for the
claim. If the claim relates to an action, suit, or proceeding filed by a third
party against Claimant, such notice shall be given by Claimant no later than
five (5) business days after written notice of such action, suit, or proceeding
was given to Claimant provided that the failure to timely give notice shall not
extinguish the Claimant's right to indemnification unless such failure
materially adversely affects the Indemnifying Party's rights.
(b) With respect to claims solely between the parties, following
receipt of notice from the Claimant of a claim, the Indemnifying Party shall
have thirty days to make
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such investigation of the claim as the Indemnifying Party deems necessary or
desirable. For the purposes of such investigation, the Claimant agrees to make
available to the Indemnifying Party or its authorized representatives the
information relied upon by the Claimant to substantiate the claim. If the
Claimant and the Indemnifying Party agree in writing at or prior to the
expiration of the thirty-day period (or any mutually agreed upon extension
thereof) to the validity and amount of such claim, the Indemnifying Party shall
immediately pay to the Claimant the full amount of the claim or such amount as
agreed to by the parties. If the Claimant and the Indemnifying Party do not
agree within the thirty-day period (or any mutually agreed upon extension
thereof), the Claimant may seek appropriate remedy under the arbitration
provisions of this Agreement, as applicable.
(c) With respect to any claim by a third party as to which the
Claimant is entitled to indemnification under this Agreement, the Indemnifying
Party shall have the right at its own expense, to participate in or assume
control of the defense of such claim, and the Claimant shall cooperate fully
with the Indemnifying Party, subject to reimbursement for actual out-of-pocket
expenses incurred by the Claimant as the result of a request by the Indemnifying
Party. If the Indemnifying Party elects to assume control of the defense of any
third-party claim, the Claimant shall have the right to participate in the
defense of such claim at its own expense. If the Indemnifying Party does not
elect to assume control or otherwise participate in the defense of any third
party claim, it shall be bound by the results obtained by the Claimant with
respect to such claim.
(d) If a claim, whether between the parties or by a third party,
requires immediate action, the parties will make every effort to reach a
decision with respect thereto as expeditiously as possible.
(e) The indemnification rights provided herein shall extend to the
shareholders, directors, officers, employees, representatives and successors and
assigns of any Claimant although for the purpose of the procedures set forth in
this Section 4.4, any indemnification claims by such parties shall be made by
and through the Claimant.
4.5 Time Brokerage Challenge. If this Agreement is challenged at the
FCC, whether or not in connection with the Station's license renewal
application, counsel for the Licensee and counsel for the Programmer shall
jointly defend the Agreement and the parties' performance thereunder throughout
all FCC proceedings at the sole expense of the Programmer. If portions of this
Agreement do not receive the approval of the FCC Staff, then the parties shall
reform the Agreement as necessary to satisfy the FCC Staff's concerns or, at
Programmer's option and expense, seek reversal of the Staff's decision and
approval from the full Commission or a court of law.
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SECTION 5. ACCESS TO PROGRAMMER MATERIALS AND CORRESPONDENCE
5.1 Confidential Review. Prior to the commencement of any
programming by Programmer under this Agreement, Programmer shall acquaint the
Licensee with the nature and type of the programming to be provided. Licensee
shall be entitled to review at its discretion from time to time on a
confidential basis any of Programmer's programming material it may reasonably
request. Programmer shall promptly provide Licensee with copies of all
correspondence and complaints received from the public (including any telephone
logs of complaints called in), and copies of all program logs and promotional
materials. However, nothing in this section shall entitle Licensee to review the
internal corporate or financial records of the Programmer.
5.2 Political Advertising. Programmer shall cooperate with Licensee
to assist Licensee in complying with all rules of the FCC regarding political
broadcasting. Licensee shall promptly supply to Programmer, and Programmer shall
promptly supply to Licensee, such information, including all inquiries
concerning the broadcast of political advertising, as may be necessary to comply
with FCC rules and policies, including the lowest unit rate, equal
opportunities, reasonable access, political file and related requirements of
federal law. Licensee, in consultation with Programmer, shall develop a
statement which discloses its political broadcasting policies to political
candidates, and Programmer shall follow those policies and rates in the sale of
political programming and advertising. In the event that Programmer fails to
satisfy the political broadcasting requirements under the Act and the rules and
regulations of the FCC and such failure inhibits Licensee in its compliance with
the political broadcasting requirements of the FCC, then to the extent
reasonably necessary to assure such compliance, Programmer shall either provide
rebates to political advertisers or release broadcast time and/or advertising
availabilities to Licensee at no cost to Licensee.
SECTION 6. TERMINATION AND REMEDIES UPON DEFAULT
6.1 Termination.
A. In addition to other remedies available at law or equity, this
Agreement may be terminated as set forth below by either Licensee or Programmer
by written notice to the other if the party seeking to terminate is not then in
material default or material breach hereof, upon the occurrence of any of the
following:
(a) subject to the provisions of Section 7.9, this Agreement is
declared invalid or illegal in whole or substantial part by an order or decree
of an
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administrative agency or court of competent jurisdiction and such order or
decree has become final and no longer subject to further administrative or
judicial review;
(b) the other party is in material breach of its
obligations hereunder and has failed to cure such breach within thirty (30) days
of notice from the non-breaching party;
(c) the mutual consent of both parties;
(d) there has been a material change in FCC rules,
policies or precedent that would cause this Agreement to be in violation thereof
and such change is in effect and not the subject of an appeal or further
administrative review and this Agreement cannot be reformed, in a manner
acceptable to Buyer and Seller, to remove and/or eliminate the violation;
(e) upon the sale of the Station to the Hearst
Corporation by Licensee; or
(f) upon the occurrence of an Event of Default.
B. During any period prior to the effective date of any
termination of this Agreement, Programmer and Licensee agree to cooperate in
good faith to ensure that Station's operations will continue, to the extent
possible, in accordance with the terms of this Agreement and that the
termination of this Agreement is effected in a manner that will minimize, to the
extent possible, the resulting disruption of the Station's ongoing operations.
C. For purposes of this Section 6, "Event of Default" shall
mean any Event of Default under and as defined in the PCC Credit Agreement,
provided that (A) any such Event of Default arising under any provision of
Section 7 of the PCC Credit Agreement other than paragraphs (a), (g), (h), (i),
(k) or (p) thereof shall not constitute an Event of Default for purposes hereof
if it shall have been waived in writing within five (5) days after its
occurrence and the Agent shall have received a true and complete copy of such
waiver, (B) any such Event of Default arising under ▇▇▇▇▇▇▇ ▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇ (▇), (▇), (▇), (▇), (▇) or (p) shall not constitute an Event of
Default for purposes hereof if it shall have been waived in writing within
thirty (30) days after its occurrence and the Agent shall have received a true
and complete copy of such waiver.
6.2 Force Majeure. Any failure or impairment of the Station's
facilities or any delay or interruption in the broadcast of programs, or failure
at any time to furnish
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facilities, in whole or in part, for broadcast, due to Acts of God, strikes,
lockouts, material or labor restrictions by any governmental authority, civil
riot, floods and any other cause not reasonably within the control of Licensee,
or for power reductions necessitated for maintenance of the Station or for
maintenance of other Station located on the tower from which the Station will be
broadcasting, shall not constitute a breach of this Agreement and Licensee will
not be liable to Programmer for reimbursement or reduction of the consideration
owed to Licensee.
6.3 Other Agreements. During the term of this Agreement or any
renewal hereof, Licensee will not enter into any other agreement with any third
party that would conflict with or result in a material breach of this Agreement
by Licensee.
SECTION 7. MISCELLANEOUS
7.1 Assignment.
(a) This Agreement shall be binding upon and inure to the
benefit of the parties hereto and their respective successors and permitted
assigns.
(b) Neither this Agreement nor any of the rights, interests or
obligations of either party hereunder shall be assigned, encumbered,
hypothecated or otherwise transferred without the prior written consent of the
other party, such consent not to be unreasonably withheld.
7.2 Call Letters. Upon request of Programmer, subject to the consent
of the Licensee, Licensee shall apply to the FCC for authority to change the
call letters of the Station (with the consent of the FCC) to such call letters
that Programmer shall reasonably designate. Licensee must coordinate with
Programmer any such proposed changes to the call letters of the Station before
taking any action to change such letters.
7.3 Counterparts. This Agreement may be executed in one or more
counterparts, each of which will be deemed an original but all of which together
will constitute one and the same instrument.
7.4 Entire Agreement. This Agreement (including the Attachments
hereto) embodies the entire agreement and understanding of the parties relating
to the operation of the Station. No amendment, waiver of compliance with any
provision or condition hereof, or consent pursuant to this Agreement will be
effective unless evidenced by an instrument in writing signed by the parties.
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7.5 Taxes. Licensee and Programmer shall each pay its own ad valorem
taxes, if any, which may be assessed on such party's respective personal
property for the periods that such items are owned by such party. Programmer
shall pay all taxes, if any, to which the consideration specified in Section 1.5
herein is subject, provided that Licensee is responsible for payment of its own
income taxes.
7.6 Headings. The headings are for convenience only and will not
control or affect the meaning or construction of the provisions of this
Agreement.
7.7 Governing Law. The obligations of Licensee and Programmer are
subject to applicable federal, state and local law, rules and regulations,
including, but not limited to, the Act and the Rules and Regulations of the FCC.
The construction and performance of the Agreement will be governed by the laws
of the State of Florida with the exception of its conflicts of law provision.
Both parties hereby waive their right to a trial by jury. The parties agree to
the exclusive jurisdiction and venue of the state or federal district court for
the district including West Palm Beach, Florida.
7.8 Notices. All notices, demands and requests required or permitted
to be given under the provisions of this Agreement shall be (i) in writing, (ii)
sent by telecopy (with receipt personally confirmed by telephone), delivered by
personal delivery, or sent by commercial delivery service or certified mail,
return receipt requested, (iii) deemed to have been given on the date telecopied
with receipt confirmed, the date of personal delivery, or the date set forth in
the records of the delivery service or on the return receipt, and (iv) addressed
as follows:
To Programmer: ▇▇▇▇▇▇ Communications Corporation
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇. ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
To Licensee:
▇▇▇▇▇▇ Communications of
West Palm Beach - 25, Inc., and ▇▇▇▇▇▇
West Palm Beach License, Inc.
▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇. ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
7.9 Severability. If any provision of this Agreement or the
application thereof to any person or circumstances shall be invalid or
unenforceable to any extent, the
17
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remainder of this Agreement and the application of such provision to other
persons or circumstances shall not be affected thereby and shall be enforced to
the greatest extent permitted by law. In the event that the FCC alters or
modifies its rules or policies in a fashion which would raise substantial and
material question as to the validity of any provision of this Agreement, the
parties hereto shall negotiate in good faith to revise any such provision of
this Agreement with a view toward assuring compliance with all then existing FCC
rules and policies which may be applicable, while attempting to preserve, as
closely as possible, the intent of the parties as embodied in the provision of
this Agreement which is to be so modified.
7.10 No Joint Venture. Nothing in this Agreement shall be deemed to
create a joint venture between the Licensee and the Programmer.
[THE REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK]
18
IN WITNESS WHEREOF, the parties hereto have executed this Time
Brokerage Agreement the day and year first above written.
LICENSEE: ▇▇▇▇▇▇ COMMUNICATIONS OF WEST
PALM BEACH - 25, INC.
▇▇▇▇▇▇ WEST PALM BEACH LICENSE, INC.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Vice President
PROGRAMMER: ▇▇▇▇▇▇ COMMUNICATIONS
CORPORATION
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Chairman and CEO
19
ATTACHMENT I
Station's Expenses
Programmer shall reimburse Licensee for Licensee's payment of
the Station expenses included in Reimbursable Expenses as defined below.
The reimbursement payments shall be made delivery of checks to
Licensee at the address specified in Section 7.8 hereof, covering the expenses
included in the following categories.
(1) Lease and Utility Payments
(2) Employee Salaries and Benefits (WPBF
employees, as of April 29, 1997)
(3) Property Insurance and Taxes
(4) Business and Regulatory Fees and Licenses
(5) Miscellaneous Station Expenses
(6) Equipment Maintenance, and Repair
(7) Interest payments (including, without
limitation, interest payable at a default
rate) due under (i) the Credit Agreement
dated as of April 29, 1997, between the
Licensee, WPBF Exchange, Inc. And Banque
Paribas, individually and as Agent, as
originally executed and delivered and as
amended, restated, renewed, replaced or
otherwise modified hereafter, provided that
any such modification that would materially
increase the amounts payable by Programmer
under Section 1.5 hereof shall be null and
void as to Programmer unless such
modification is approved by Programmer and
(ii) that certain Subordinated Note dated
April 29, 1997, by and among Licensee and
▇▇▇▇▇▇ Communications of Florida, Inc.
20
ATTACHMENT II
Broadcast Station Programming Policy Statement
21
BROADCAST STATION PROGRAMMING POLICY STATEMENT
The following sets forth the policies generally applicable to the
presentation of programming and advertising over Television Station WPBF-TV,
Tequesta, Florida. All programming and advertising broadcast by the station must
conform to these policies and to the provisions of the Communications Act of
1934, as amended [the "Act"], and the Rules and Regulations of the Federal
Communications Commission ["FCC"].
Station Identification
The station must broadcast a station identification announcement once an hour as
close to the hour as feasible in a natural break in the programming. The
announcement must include (1) the station's call letters; followed immediately
by (2) the station's city of license.
Broadcast of Telephone Conversations
Before recording a telephone conversation for broadcast or broadcasting such a
conversation simultaneously with its occurrence, any party to the call must be
informed that the call will be broadcast or will be recorded for later
broadcast, and the party's consent to such broadcast must be obtained. This
requirement does not apply to calls initiated by the other party which are made
in a context in which it is customary for the station to broadcast telephone
calls.
Sponsorship Identification
When money, service, or other valuable consideration is either directly or
indirectly paid or promised as part of an arrangement to transmit any
programming, the station at the time of broadcast shall announce (1) that the
matter is sponsored, either whole or in part; and (2) by whom or on whose behalf
the matter is sponsored. Products or services furnished to the station in
consideration for an identification of any person, product, service, trademark
or brand name shall be identified in this manner.
In the case of any political or controversial issue broadcast for which any
material or service is furnished as an inducement for its transmission, an
announcement shall be made at the beginning and conclusion of the broadcast
stating (1) the material or service that has been furnished; and (2) the
person(s) or association(s) on whose behalf the programming is transmitted.
However, if the broadcast is 5 minutes duration or less, the required
announcement need only be made either at its beginning or end.
Prior to any sponsored broadcast involving political matters or controversial
issues, the station shall obtain a list of the chief executive officers, members
of the executive committee or board of directors of the sponsoring organization
and shall place this list in the station's public inspection file.
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Payola/Plugola
The station, its personnel, or its programmers shall not accept or agree to
accept from any person any money, service, or other valuable consideration for
the broadcast of any matter unless such fact is disclosed to the station so that
all required station identification announcements can be made. All persons
responsible for station programming must, from time to time, execute such
documents as may be required by station management to confirm their
understanding of and compliance with the FCC's sponsorship identification
requirements.
Rebroadcasts
The station shall not rebroadcast the signal of any other broadcast station
without first obtaining such station's prior written consent to such
rebroadcast.
Fairness
Station shall seek to afford coverage to contrasting viewpoints concerning
controversial issues of public importance.
Personal Attacks
The station shall not air attacks upon the honesty, character, integrity or like
personal qualities of any identified person or group. If such an attack should
nonetheless occur during the presentation of views on a controversial issue of
public importance, those responsible for programming shall submit a tape or
transcript of the broadcast to station management and to the person attacked
within 48 hours, and shall offer the person attacked a reasonable opportunity to
respond.
Political Editorials
Unless specifically authorized by station management, the station shall not air
any editorial which either endorses or opposes a legally qualified candidate for
public office.
Political Broadcasting
All "uses" of the station by legally qualified candidates for elective office
shall be in accordance with the Act and the FCC's Rules and policies, including
without limitation, equal opportunities requirements, reasonable access
requirements, lowest unit charge requirements and similar rules and regulations.
23
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Obscenity and Indecency
The station shall not broadcast any obscene material. Material is deemed to be
obscene if the average person, applying contemporary community standards in the
local community, would find that the material, taken as a whole, appeals to the
prurient interest; depicts or describes in a patently offensive way sexual
conduct specifically defined by applicable state law; and taken as a whole,
lacks serious literary artistic, political or scientific value.
The station shall not broadcast any indecent material outside of the periods of
time prescribed by the Commission. Material is deemed to be indecent if it
includes language or material that, in context, depicts or describes, in terms
patently offensive as measured by contemporary community standards for the
broadcast medium, sexual or excretory activities or organs.
Billing
No entity which sells advertising for airing on the station shall knowingly
issue any ▇▇▇▇, invoice or other document which contains false information
concerning the amount charged or the broadcast of advertising which is the
subject of the ▇▇▇▇ or invoice. No entity which sells advertising for airing on
the station shall misrepresent the nature or content of aired advertising, nor
the quantity, time of day, or day on which such advertising was broadcast.
Contests
Any contests conducted on the station shall be conducted substantially as
announced or advertised. Advertisements or announcements concerning such
contests shall fully and accurately disclose the contest's material terms. No
contest description shall be false, misleading or deceptive with respect to any
material term.
Hoaxes
The station shall not knowingly broadcast false information concerning a crime
or catastrophe.
Emergency Information
Any emergency information which is broadcast by the station shall be transmitted
both aurally and visually or only visually.
24
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Lottery
The station shall not advertise or broadcast any information concerning any
lottery (except the Florida State Lottery and any other state lottery). The
station may advertise and provide information about lotteries conducted by
non-profit groups, governmental entities and in certain situations, by
commercial organizations, if and only if there is no state or local restriction
or ban on such advertising or information and the lottery is legal under state
or local law. Any and all lottery advertising must first be approved by station
management.
Advertising
Station shall comply with all federal, state and local laws concerning
advertising, including without limitation, all laws concerning misleading
advertising, and the advertising of alcoholic beverages.
Programming Prohibitions.
Knowing broadcast of the following types of programs and announcements is
prohibited:
False Claims. False or unwarranted claims for any product or
service.
Unfair Imitation. Infringements of another advertiser's rights
through plagiarism or unfair imitation of either program idea or
copy, or any other unfair competition.
Commercial Disparagement. Any unfair disparagement of competitors or
competitive goods.
Profanity. Any programs or announcements that are slanderous,
obscene, profane, vulgar, repulsive or offensive, as evaluated by
station management.
Violence. Any programs which are excessively violent.
Unauthenticated Testimonials. Any testimonials which cannot be
authenticated.
25
ATTACHMENT III
Payola Statement
26
FORM OF PAYOLA AFFIDAVIT
City of _____________ )
)
County of____________ ) SS:
)
State of_____________ )
ANTI-PAYOLA/PLUGOLA AFFIDAVIT
________________________, being first duly sworn, deposes and says as follows:
1. He is _____________________ for _____________________.
Position
2. He has acted in the above capacity since ____________.
3. No matter has been broadcast by Station for which service, money or
other valuable consideration has been directly or indirectly paid,
or promised to, or charged, or accepted, by him from any person,
which matter at the time so broadcast has not been announced or
otherwise indicated as paid for or furnished by such person.
4. So far as he is aware, no matter has been broadcast by Station ___
for which service, money, or other valuable consideration has been
directly or indirectly paid, or promised to, or charged, or accepted
by Station ____ or by any independent contractor engaged by
Station _____ in furnishing programs, from any person, which matter
at the time so broadcast has not been announced or otherwise
indicated as paid for or furnished by such person.
5. In future, he will not pay, promise to pay, request, or receive any
service, money, or any other valuable consideration, direct or
indirect, from a third party, in exchange for the influencing of, or
the attempt to influence, the preparation of presentation of
broadcast matter on Station ____.
6. Nothing contained herein is intended to, or shall prohibit receipt
or acceptance of anything with the expressed knowledge and approval
of my employer, but henceforth any such approval must be given in
writing by someone expressly authorized to give such approval.
7. He, his spouse and his immediate family do ___ do not ___have any
present direct or indirect ownership interest in (other than an
investment in a corporation
27
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whose stock is publicly held), serve as an officer or director of,
whether with or without compensation, or serve as an employee of,
any person, firm or corporation engaged in:
1. The publishing of music;
2. The production, distribution (including wholesale and
retail sales outlets), manufacture or exploitation of
music, films, tapes, recordings or electrical
transcriptions of any program material intended for
radio broadcast use;
3. The exploitation, promotion, or management or persons
rendering artistic, production and/or other services in
the entertainment field;
4. The ownership or operation of one or more radio or
television Station;
5. The wholesale or retail sale of records intended for
public purchase;
6. Advertising on Station ____, or any other station owned
by its licensee (excluding nominal stockholdings in
publicly owned companies).
8. The facts and circumstances relating to such interest are none ___as
follows _________:
___________________________________________________________________
______________________________________________________________
---------------------------------
Affiant
Subscribed and sworn to before me
this________day of _______________, 19___.
-------------------------
Notary Public
My Commission expires:
---------------------