Exhibit 10.51
EXECUTION VERSION
TIME BROKERAGE AGREEMENT
By and Between
▇▇▇▇▇▇ NETWORK OF ALABAMA, INC.
and
NEXSTAR BROADCASTING OF DOTHAN, LLC
December 30, 2002
TABLE OF CONTENTS
1. Overall Purpose and Term.................................................................................2
2. Station Facilities.......................................................................................2
3. Revenue..................................................................................................2
4. Compensation.............................................................................................2
5. Responsibilities.........................................................................................3
(a) The Broker's Responsibilities...................................................................3
(b) The Owner's Responsibilities....................................................................3
(c) Additional Responsibilities.....................................................................3
(d) Renewal, Modification and Cancellation of Contracts.............................................4
6. Revenues and Deposits....................................................................................4
(a) Revenues from Broadcast Time Sales and Uses of Station's Studio/
Production Facilities during the Term ... .....................................................4
(b) Bank Accounts for Revenues from Broker's Activities/Payments By
Broker from Such Revenues....... ..............................................................4
7. Handling of Station Communications.......................................................................5
8. The Owner's Compliance with FCC Rules and Policies.......................................................5
9. Programming and the Public Interest......................................................................5
10. Special Programs.........................................................................................6
11. Station Identification...................................................................................6
12. Station Facilities.......................................................................................7
(a) Operation of Station...........................................................................7
(b) Interruption of Normal Operaton.................................................................7
(c) Studio Location.................................................................................7
13. Political Advertising....................................................................................7
14. Children's Programming...................................................................................8
15. The Owner's Responsibility For Compliance with FCC Technical Rules.......................................8
16. Force Majeure............................................................................................8
17. Trade Secrets and Proprietary Information................................................................9
18. Payola and Conflicts of Interest.........................................................................9
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19. The Broker's Compliance with Law........................................................................10
20. Indemnification.........................................................................................10
(a) The Broker's Indemnification of the Owner......................................................10
(b) The Owner's Indemnification of the Broker......................................................10
(c) Indemnification Procedures.....................................................................11
(d) Insurance......................................................................................11
21. Events of Default.......................................................................................11
(a) Insolvency.....................................................................................11
(b) Breach or Default in Representations and Covenants.............................................11
(c) Non-Payment....................................................................................12
22. Termination.............................................................................................12
(a) Termination Upon Event of Default..............................................................12
(b) Termination Upon Closing.......................................................................12
(c) Termination Upon Order of Governmental Authority...............................................12
(d) Termination Upon Sale of Station or other Event................................................13
23. Effect of Termination Other Than at Closing.............................................................13
(a) Reimbursement of Capital Expenditures..........................................................13
(b) Collection of Post-Commencement, Pre-Termination Receivables and
Payment of Post-Commencement, Pre-Termination Payables........................................13
(c) Billing and Performance by the Owner...........................................................14
(d) Collection and Application by the Owner........................................................14
(e) Non-Interference...............................................................................14
(f) Payment of Pre-Termination Payables............................................................14
(g) Adjustment Amount..............................................................................15
(h) Reports: Adjustment Procedures.................................................................15
(i) Proration......................................................................................16
(j) Condition of Property..........................................................................17
24. Authorization...........................................................................................17
25. Billing; Records........................................................................................17
26. Notices.................................................................................................17
27. Modification and Waiver.................................................................................18
28. Governing Law...........................................................................................18
29. Headings; Interpretation................................................................................18
30. Assignment..............................................................................................18
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31. Counterparts............................................................................................19
32. Entire Agreement........................................................................................19
33. No Partnership or Joint Venture Created.................................................................19
34. Severability............................................................................................19
35. Legal Effect............................................................................................19
36. No Party Deemed Drafter.................................................................................19
37. Guaranty................................................................................................19
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TIME BROKERAGE AGREEMENT
This TIME BROKERAGE AGREEMENT (this "Agreement") is entered into
as of December 30, 2002, by and between ▇▇▇▇▇▇ Network of Alabama, Inc., an
Alabama corporation, (the "Owner") and Nexstar Broadcasting of Dothan, LLC, a
Delaware limited liability company (the "Broker"), and the other parties listed
below signing this Agreement. Capitalized terms used but not defined herein will
have the meaning set forth in the Purchase Agreement (as defined below).
WHEREAS, the Owner is the owner and operator of television
broadcast station WDHN, licensed to Dothan, Alabama, and assets relating thereto
(the "Station"), pursuant to authorization(s) issued by the Federal
Communications Commission ("FCC");
WHEREAS, the parties hereto have carefully considered the
Communications Act of 1934, as amended (the "Communications Act"), and the FCC's
rules and policies adopted pursuant thereto, and intend that this Agreement in
all respects comply with said Communications Act and FCC rules and policies;
WHEREAS, the Owner desires to enter into this Agreement to provide
a regular source of diverse programming and income to sustain the operations of
the Station;
WHEREAS, the Broker desires to provide an over-the-air program
service to the Dothan, Alabama area using the facilities of the Station;
WHEREAS, the Owner agrees to provide time on the Station
exclusively to the Broker on terms and conditions that conform to policies of
the Owner and the FCC for time brokerage arrangements and that are as set forth
herein;
WHEREAS, the Broker agrees to utilize the Station's transmitting
facilities solely to broadcast programming of the Broker's selection that
conforms with the policies of the Owner and with all rules, regulations and
policies of the FCC, and as set forth herein;
WHEREAS, the Owner maintains, and will continue to maintain during
the term of this Agreement, ultimate control over the Station 's facilities
including control over the Station's finances and programming and the Owner's
personnel; and
WHEREAS, contemporaneously herewith, the Owner, certain affiliates
of the Owner, the Broker and certain affiliates of the Broker have entered into
a Stock Purchase Agreement (the "Purchase Agreement"), pursuant to which an
affiliate of the Broker will purchase all of the outstanding capital stock of
the Owner;
NOW, THEREFORE, in consideration of the foregoing, and of the
mutual promises set forth herein, and for other good and valuable consideration,
the sufficiency of which the Owner and the Broker hereby acknowledge, the Owner
and the Broker, intending to be bound legally, hereby agree as follows:
1. Overall Purpose and Term. In accordance with the terms and
subject to the limitations set forth herein: (a) the Broker will provide
programming to the Owner for the Station, promote the Station and its
programming, sell commercial and other time on the Station and ▇▇▇▇ for and
collect the payments for time sales on the Station; and (b) the Owner will
maintain the Station's transmitting and microwave relay facilities, and make
such facilities available to the Broker for the purposes of its activities under
this Agreement. Subject to the terms of this Agreement, each party hereby
warrants and covenants that it will fulfill said obligations, and their other
obligations specified herein, to the fullest extent permitted by law (including
the FCC's rules and policies) in a diligent, reasonable manner. The Broker will
begin its time brokerage activities with regard to the Station pursuant to this
Agreement at 12:01 AM, Dothan, Alabama time, on the Commencement Date as defined
in the Purchase Agreement. Except as otherwise provided in this Agreement, the
term of this Agreement will be the period from the Commencement Date until this
Agreement terminates under Section 22 hereof (the "Term").
2. Station Facilities. The Owner will make the Station's
television broadcasting transmission facilities available to the Broker for
broadcast on the Station of programs selected by the Broker in accordance with
the terms and conditions hereof, and advertising/commercial announcements sold
by the Broker, which may originate from the Station's studios, the Broker's
studios or from other sources contracted for by the Broker. In addition, the
Owner grants to Broker, at no additional cost, during the Term, an exclusive
license to use (except with respect to Owner's own use for the Station pursuant
to this Agreement) all of the Owner's studio and production facilities and
related property and equipment and Owner's related vehicles in connection with
Broker's activities with regard to the Station pursuant to this Agreement.
Broker shall exercise due care not to damage any of the real or personal
property owned or leased by Owner.
Owner and its affiliates now use, or intend to use, Owner's "OSI
System" for or in connection with not only the Station, but also other
television stations of Owner's affiliates (including but not limited to those
located in Macon, Georgia, Little Rock, Arkansas, and/or Gulfport, Mississippi).
Notwithstanding anything to the contrary contained in this Agreement or the
Purchase Agreement, Owner and its affiliates shall have the right to utilize the
OSI System until the later of Closing (as defined in the Purchase Agreement) or
the termination of this Agreement for or in connection with the operations of
the television stations of Owner and its affiliates, and Broker shall provide
all reasonable cooperation and assistance to facilitate such use.
3. Revenue. The Broker will be entitled to all revenues
resulting from the sale of advertising and other time on the Station during the
Term, including all revenue from the sale of advertising and other time during
the Owner's public service programming or other programming provided by the
Owner pursuant to Sections 9 and 10, or otherwise resulting from the operation
of the Station.
4. Compensation. As consideration for the Owner permitting the
Broker to broadcast the Broker's programming on the Station pursuant to terms of
this Agreement, the Broker will pay to the Owner the amounts described on
Exhibit A (collectively, the "Time Brokerage Fees") within the time periods for
payment described on said exhibit.
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5. Responsibilities
(a) The Broker's Responsibilities.
(i) The Broker will employ and be responsible for paying the
salaries, commissions, payroll taxes, insurance and all other related costs for
employees of the Broker engaged in the Broker's time brokerage activities under
this Agreement.
(ii) The Broker will be responsible for utilizing the Broker's
and the Owner's employees to operate and maintain the Owner's studio, production
and master control facilities and to acquire, compile, produce, broadcast and
sell the Station's programming and commercial messages.
(iii) In performing its obligations under this Agreement, the
Broker will use commercially reasonable efforts to adhere to and fulfill all of
the terms, conditions and obligations under all Contracts relating to the
business and operation of the Station.
(b) The Owner's Responsibilities.
(i) The Owner will employ and be responsible for paying the
salaries, commissions, payroll taxes, insurance and all other related costs of
its employees. In this regard, the Owner will employ, at a minimum, one
full-time General Manager for the Station, and one Chief Engineer/Chief Operator
for the Station. Such General Manager (the "General Manager") will be
responsible for overseeing all operational aspects of the Station.
(ii) The Owner will be responsible for all (A) lease obligations
in connection with property leased (if any) to the Owner, (B) utility bills for
utility services at the Station's main studio/office location(s) and its
tower/transmitter sites, (C) telephone system maintenance costs and local
exchange and long distance telephone service costs for the Owner's telephone
system(s) and usage at the Station's main studio/office location(s) and at the
Station's tower/transmitter sites, (D) costs of engineering and technical
personnel necessary to assure compliance with the FCC's rules and policies and
maintenance and repair of the Station's transmitting and microwave relay
facilities, (E) all liabilities and obligations under all Contracts to which the
Owner is a party relating to the business and operations of the Station, (F)
premiums for insurance required to be maintained by the Owner under this
Agreement, (G) real and personal property taxes, (H) business, license and FCC
regulatory fees, (I) reasonable maintenance, repair and necessary capital
replacement or expenditure costs for the Station's studio, transmission and
production equipment; and (J) any other expenses related to the operation of the
Station in the ordinary course of business other than those paid directly by the
Broker.
(c) Additional Responsibilities.
(i) The Broker will be fully responsible for the supervision
and direction of its employees, and the Owner will be fully responsible for the
supervision and direction of its employees.
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(ii) The Broker and the Owner will pay their respective expenses
owed to third parties with regard to the Station and in no event will any such
payable remain unpaid for more than thirty (30) days after it is due unless such
payable is being disputed in good faith. The Broker and the Owner will timely
pay sums due to the other under this Agreement in accordance with the terms
hereof.
(iii) Except as otherwise mutually agreed, as between the Owner
and the Broker, the Owner is and will continue to be responsible for all its
obligations pursuant to any contracts of employment of employees of the Station
who remain in the employment of the Owner and any contracts with labor unions to
which the Owner is a party.
(d) Renewal, Modification and Cancellation of Contracts. The
Owner will comply with all reasonable requests of the Broker with respect to the
renewal and cancellation of contracts (in accordance with their terms) or the
entry into or the modification of contracts which affect the Broker's time
brokerage activities with regard to the Station pursuant to this Agreement.
Notwithstanding anything to the contrary in this Agreement, in no event shall
Broker request that Owner renew, modify, terminate or enter any contract or
agreement of any nature, whether related to Broker's time brokerage activities
or otherwise (specifically including but not limited to agreements related to
networks, programming, or the sale of commercial and/or other time on the
Station), which has or may reasonably be expected to have an expiration after
the Scheduled Closing Date which Owner, in Owner' s reasonable discretion, does
not believe to be in the best interests of the Station.
6. Revenues and Deposits.
(a) Revenues from Broadcast Time Sales and Uses of Station's
Studio/Production Facilities during the Term. The Broker will have the exclusive
right to sell, either directly or indirectly through sales representatives, and
will be solely responsible for billing and collecting payments for, all programs
and commercials aired on the Station (whether during programming selected by
Broker or programming selected by the Owner) during the term of this Agreement
and production fees for uses of the Station's studio/production facilities
during the term of this Agreement, except that no such contract, without the
written consent of Owner in Owner's reasonable discretion, shall extend beyond
the Scheduled Closing Date. The Broker may contract and ▇▇▇▇ in its own name for
the sale of broadcast time on the Station during the term of this Agreement and
uses of the Station's studio/production facilities during the term of this
Agreement. The Broker also will have the right to negotiate for and to receive
all compensation due to the Station solely with respect to time periods
beginning on or after the Commencement Date and ending on or before the end of
the Term of this Agreement (i) from cable television systems pursuant to the
"retransmission consent" provisions of the Cable Television Consumer Protection
and Competition Act of 1992, as amended, and FCC's the rules enacted pursuant
thereto, and (ii) from DBS providers pursuant to the Satellite Home Viewer
Improvement Act of 1999 and the FCC's rules enacted pursuant thereto, and the
Owner will take, and refrain from taking, actions as to matters under such Acts
and rules from time to time in accordance with the Broker's reasonable requests.
(b) Bank Accounts for Revenues from Broker's
Activities/Payments By Broker from Such Revenues. The Broker may deposit any
sums it receives pursuant to Section
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6(a) or otherwise with respect to the Station into a bank account (or accounts)
of the Broker established by the Broker, in the Broker's name, for this purpose
(the "Station Bank Account(s)"), and the funds in the Station Bank Account(s)
will be the property of the Broker except as otherwise provided in this
Agreement or the Purchase Agreement. Solely with respect to payments which the
Broker is authorized to receive under this Agreement, the Broker is authorized
to endorse payments received in names other than Broker's (e.g., in the Owner's
name, or "WDHN" or "WDHN-TV") in order to deposit such payments into the Station
Bank Account(s).
7. Handling of Station Communications. The Owner will receive
and handle mail, faxes, telephone calls and e-mail from members of the public in
connection with the operation of the Station.
8. The Owner's Compliance with FCC Rules and Policies. The
Owner will comply in all material respects with all FCC rules and policies
applicable to the Station. Without limiting the foregoing sentence, the Owner's
obligations will include ascertaining the needs and interests of the Station's
service area, maintaining the Station' s political broadcasting and public
inspection files and the Station's maintenance logs, setting political
advertising policies, meeting equal employment opportunity requirements with
regard to the Owner's employees, preparing the Station's quarterly
issues/programs lists and making all required FCC filings with regard to the
Station.
9. Programming and the Public Interest.
(a) Throughout the Term, Broker will program the Station so as
to maintain a general, advertiser-supported, national-network-affiliated,
entertainment/sports format, with some mix permitted of home shopping,
religious, foreign language and infomercial programming. The Station will not
become a predominantly home shopping, religious, foreign language and/or
infomercial Station. The programming selected by the Broker or at its discretion
will consist of such materials as are determined by the Broker to be appropriate
and/or in the public interest including public affairs programming, public
service announcements, entertainment, news, weather reports, sports, promotional
material, commercial material and advertising. Without limiting the foregoing
sentence, the Broker will program on the Station a total number of hours per
week of news, public affairs, or other non-sports, non-entertainment
programming, between the hours of 6:00 AM and 12:00 midnight, local time, that
is not less than the average weekly number of hours of news, public affairs, or
other non-sports, non-entertainment programming that was broadcast on the
Station during such hours during the last calendar quarter of 2002.
(b) During the Term, the Broker's management personnel
designated by the Broker will meet at least monthly with the Owner's General
Manager in order to help formalize the Owner's oversight over the Broker's
activities at the Station. At such meetings, the Owner will, among other things,
(i) provide the Broker with the results of the Owner's ongoing efforts to
ascertain the problems, needs and interests of the Station's service area, so
that the programming and public service announcements selected and/or scheduled
by the Broker for the Station will be responsive thereto, (ii) inform the Broker
of all views, comments, suggestions and complaints concerning the Broker's
programming, (iii) provide suggestions for future public
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service programs and public service announcement campaigns, and (iv) review the
Broker's programming for children. In the event the Owner determines that
additional attention should be directed to particular community needs, the
Broker will cooperate to assure that the Station's locally-produced programming
serves those needs. If the Owner acquires syndicated programming or if the Owner
uses Broker's employees for the production of local programs in addition to the
informational and public affairs programming described above in this Section 9,
then all expenses for such additional programming will be paid by the Owner and
will not be included in the reimbursements due the Owner under this Agreement.
Such programs will be aired on the Station at a mutually agreeable time between
6:00 AM and 12:00 midnight, local time.
(c) The Broker will provide the Owner promptly with all
documents the Broker receives which are required to be placed in the Station's
political or public inspection files. The Broker will, upon reasonable request
by the Owner, provide the Owner with information with respect to programs and
public service announcements broadcast on the Station which are responsive to
the problems, needs and issues facing the residents of the Station's service
area and the Broker's programming for children, so as to assist the Owner in the
preparation of required programming reports, and will assist the Owner upon
request in compiling such other information which is reasonably necessary to
enable the Owner to prepare other records and reports required by the FCC or
other government agencies.
(d) The Owner will have the full and unrestricted right to
reject, delete and not broadcast any material contained in any part of the
programming selected and/or scheduled by the Broker which the Owner in good
faith determines would be contrary to law, the public interest or the standards
set forth in the attached Exhibit B. The Owner will retain ultimate control over
the Station's policies and standards, and, in that regard, will adopt written
standards, generally in accordance with industry standards for commercial
television broadcast stations, in substantially the same form and substance as
the attached Exhibit B, for the acceptance of programming material and
commercial announcements. The Broker hereby covenants, warrants and represents
that with regard to the Station it will, at all times during the Term, comply in
all material respects with such standards for acceptance of programming material
and commercial announcements.
10. Special Programs. The Owner reserves the right, in good
faith, to preempt the Broker's programs for the Station to broadcast special
programs on occasion concerning issues or events of local, regional or national
importance in the event that the Broker does not broadcast the same on its own
initiative or in the event that the Owner reasonably determines in good faith
that the amount of the Broker's coverage of such issues or events is inadequate;
provided that in all such cases the Owner will use its best efforts to give the
Broker reasonable notice of the Owner's intention to preempt programs scheduled
by the Broker.
11. Station Identification. The Owner will be responsible for
the proper broadcast of FCC-required station identification announcements on the
Station; provided that the Broker, while conducting its activities with regard
to the Station pursuant to this Agreement, will broadcast all required station
identification announcements in form and content approved by the Owner with
respect to the Station in full compliance with FCC rules and policies.
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12. Station Facilities.
(a) Operation of Station. The Owner agrees that the Station
will be operated throughout the Term in all material respects in accordance with
the authorizations issued by the FCC and all applicable FCC rules and policies.
During the Term, the Owner will make the Station available to the Broker for
program transmissions, at least at ninety five percent (95%) of the Station's
currently authorized effective radiated power, for the entire time that the
Station is on the air, except for downtime occasioned by required maintenance
and other interruptions contemplated by Section 12(b) and events described in
Section 16. Any routine or non-emergency maintenance work affecting operation of
the Station at full power will be scheduled with at least forty-eight (48) hours
prior notice to the Broker, and, to the extent possible, will not take place
during a rating period; and, to the extent possible, the Owner will cause such
maintenance work to be performed between the hours of 1:00 AM and 6:00 AM, local
time.
(b) Interruption of Normal Operation. If the Station suffers
any loss or damage of any nature to its transmission or studio facilities which
results in the interruption of service or the inability of the Station to
operate with its maximum authorized facilities, the Owner will immediately
notify the Broker of such loss or damage and the Owner will undertake such
repairs as are necessary to restore full-time operation of the Station with its
maximum authorized facilities as expeditiously as possible following the
occurrence of any such loss or damage; provided, however, that, if such loss or
damage is the result of the acts or omissions of Broker, the Broker shall
undertake at Broker 's sole cost and expense such repairs as are necessary to
restore full-time operation of the Station with its maximum authorized
facilities as expeditiously as possible following the occurrence of any such
loss or damage. If the Owner is unable to or does not commence such repairs as
soon as possible after receiving written notice from Broker, then the Broker may
undertake such repairs.
(c) Studio Location. The Owner will maintain a main studio
facility, within the Station's principal community contour and in accordance
with the FCC's rules and policies, and will staff said main studio consistent
with the FCC's rules and policies.
13. Political Advertising. The Owner will be responsible for
compliance with the political broadcasting requirements of the Communications
Act and the FCC's rules and policies promulgated thereunder. The Owner, with the
cooperation and assistance of the Broker, will prepare and distribute
appropriate political disclosure statements for the Station and the Owner and
the Broker will jointly determine the Station's lowest unit charge for the sale
of advertising and program time to legally qualified candidates. The Broker,
while conducting its activities with regard to the Station pursuant to this
Agreement, will comply with said political broadcasting requirements, rules and
policies. The Broker promptly will supply to the Owner such information as may
be reasonably necessary to permit the Owner to comply with the lowest unit
charge requirements of Section 315 of the Communications Act. To the extent that
the Owner believes necessary in the Owner' s sole discretion, the Broker will
release advertising availabilities and program time as required by the FCC's
rules and policies to permit the Station to comply with the reasonable access
provisions of Section 312(a)(7) of the Communications Act and the equal
opportunities provision of Section 315 of the Communications Act and the rules
and policies of the FCC promulgated thereunder.
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14. Children's Programming. The Owner will be responsible for
insuring the Station's compliance with the Children's Television Act of 1990 [47
U.S.C. 303a and 303b], and the rules and policies of the FCC promulgated
thereunder, including ensuring that the Station complies with the commercial
limits established therein and serves the educational and informational needs of
children. The Broker, while conducting its activities with regard to the Station
pursuant to this Agreement, will comply with said Children's Television Act and
FCC rules and policies by presenting a reasonable amount of children's
programming, including educational/informational programming, and by strictly
observing the limitations on advertising content and amount. In connection
therewith, the Broker will be responsible for preparing all necessary reports
and certifications and delivering the same to the Owner for placement in the
Station's public inspection file. Upon delivery of such reports and
certifications, they will be certified by Broker as true and correct in all
material respects. Such reports and certifications will include the following:
(a) a quarterly report on children's programming pursuant to Section
73.3526(e)(11)(iii) of the FCC's rules; and (b) a certificate with respect to
compliance with advertising limits in children's programs pursuant to Section
73.3526(e)(11)(ii) of the FCC's rules. Such advertising certification will be in
the form of the attached Exhibit C. In completing each such quarterly
certificate, the Broker will list the titles of all children's programs carried
on the Station in the past quarter in which the advertising limits apply, both
local and network, all program segments during which the allowed commercial
limits were exceeded, and a separate memo explaining why any excesses occurred.
In carrying out its obligations with respect to children's programming, the
Broker will further maintain records with respect to commercial matter in
children's programming either in the form of logs of programs reflecting the
commercial time, tapes of the programs, lists of commercial minutes aired in
identified children's programs, or appropriate certificates from networks and
syndicators with respect to compliance with the FCC's requirements on commercial
limits.
15. The Owner's Responsibility For Compliance with FCC
Technical Rules. The Owner will employ a Chief Engineer who will be responsible
for maintaining the Station's transmission facilities. The Owner will employ a
Chief Operator, as that term is defined by the rules and policies of the FCC
(who may also hold the position of Chief Engineer), who will be responsible for
ensuring compliance by the Station with the technical operating and reporting
requirements established by the FCC. Broker shall not take any action, or fail
to take any action which it is obligated to take under this Agreement, which
shall cause the Station not to comply with applicable law and will provide
reasonable assistance to Owner upon request to assist Owner in complying with
applicable law.
16. Force Majeure. Each party will carry standard property and
casualty insurance for the property and equipment it owns. The Owner's
policy(ies) for such coverage will have an aggregate policy limit that is not
less than the aggregate limit of the policy(ies) normally maintained by the
Owner for such property and equipment prior to the date of this Agreement. If
any failure or impairment of facilities or any delay or interruption in the
broadcast of programs, or failure at any time to furnish facilities, in whole or
in part, for broadcast, occurs due to causes attributable to the act or omission
of Broker or its employees or agents or beyond the reasonable control of the
Owner, then such failure, impairment, delay or interruption, by itself, will not
constitute a breach of or an event of default under this Agreement or the
Purchase Agreement and the Owner will not be liable to the Broker for any such
failure, impairment, delay or interruption so long as, if the occurrence is not
attributable to the act or omission of Broker or
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its employees or agents, the Owner undertakes and continues reasonable efforts
to remedy any such failure, impairment, delay or interruption by returning the
Station to its condition prior to such damage, event or occurrence. If the same
was attributable to the act or omission of Broker or its employees or agents,
then Broker shall undertake and continue reasonable efforts to remedy any such
failure, impairment, delay or interruption by returning the Station to its
condition prior to such damage, event or occurrence. Promptly thereafter, if the
Owner elects to do so by written notice to the Broker, the Owner will obtain any
applicable insurance proceeds and apply such proceeds to the cost of remedying
such failure, impairment, delay or interruption; provided that, if the Owner
determines that it will not do so, then the Owner will give the Broker prompt
written notice of such determination. If the Owner elects not to remedy such
failure, impairment, delay or interruption (or if the Owner makes no election
prior to the twentieth (20th) day after such failure, impairment, delay or
interruption occurs), then the Broker may elect to obtain such insurance
proceeds and effect such remedy by giving the Owner written notice to that
effect.
17. Trade Secrets and Proprietary Information. In the event
that: (a) any trade secrets or other proprietary information of the Broker in
connection with this Agreement becomes known to the Owner, and (b) such trade
secrets and/or proprietary information are not otherwise available in the public
domain or known publicly, the Owner agrees to maintain the confidentiality of
such trade secrets and/or proprietary information and not to use or disclose any
such trade secrets and/or proprietary information without the prior written
consent of the Broker (except as required by law, rule or regulation, or by
order of any government agency or court). In the event that: (i) any trade
secrets or other proprietary information of the Owner in connection with this
Agreement become known to the Broker, and (ii) such trade secrets and/or
proprietary information are not otherwise available in the public domain or
known publicly, prior to the Closing the Broker agrees to maintain the
confidentiality of such trade secrets and/or proprietary information and not to
use or disclose any such trade secrets and/or proprietary information without
the prior written consent of the Owner (except as required by law, rule or
regulation, or by order of any government agency or court). The provisions of
this Section 17 will survive any termination of this Agreement.
18. Payola and Conflicts of Interest. Each of the Broker and
the Owner agrees not to, and to use reasonable efforts to cause its employees
who have the ability to cause the broadcast of programs and/or commercial matter
on the Station not to, accept any consideration, compensation or gift or
gratuity of any kind whatsoever, regardless of its value or form, including a
commission, discount, bonus, material, supplies or other merchandise, services
or labor (collectively, "Consideration"), whether or not pursuant to written
contracts or agreements between the Broker, the Owner and merchants or
advertisers, in consideration for the broadcast of any matter on the Station
unless the payor is identified, in the broadcast for which Consideration was
provided, as having paid for or furnished such Consideration, in accordance with
Sections 317 and 507 of the Communications Act [47 U.S.C. Sections 317 and 508]
and the FCC's rules and policies. The Broker agrees to execute, and, as a
condition of each such employee's employment, to cause each of the Broker's
employees to execute, at least once every calendar year, a payola/conflict of
interest affidavit in the form of the attached Exhibit D, and the Broker agrees
to deliver the originals of all such affidavits to the Owner as expeditiously as
possible following their execution.
9
19. The Broker's Compliance with Law. The Broker agrees that,
throughout the Term, the Broker will comply with all laws, rules, regulations
and policies applicable to the functions performed by it in connection with the
Station, including meeting equal employment opportunity requirements with
respect to the Broker's employees performing duties in connection with the
Station, and will not take any act, or omit to take any act, which will cause
the Station or the Owner to fail or cease to comply with applicable laws, rules,
and/or regulations.
20. Indemnification.
(a) The Broker's Indemnification of the Owner. The Broker will
indemnify, defend and hold the Owner and the Owner's employees, agents and
contractors harmless, including in respect of reasonable attorney's fees and
costs of litigation generally, from and against all liability, claims, damages
and causes of action ("Losses") arising out of or resulting from (1) the
activities, acts or omissions of Broker, or its employees, agents, or
contractors under or in connection with this Agreement or the Station (including
but not limited to such person's or entity's use of the Station's broadcasting
transmission facilities, programming activities, use of, damage to, or presence
on or in Owner's studio, Owner's tower or production facilities, Owner's
vehicles, or Owner's other property, or sale of advertising or time), which
activities, acts or omissions which may involve or result in, among other
things, (i) libel and slander; (ii) infringement of trade marks, service marks
or trade names; (iii) violations of law, rules, regulations, or orders
(including the FCC's rules and policies); or (iv) invasion of rights of privacy
or infringement of copyrights or other proprietary rights; or (2) breaches of
this Agreement; provided, however, that such Losses do not result from the act
or omission of Owner or Owner's employees, agents or contractors. The Broker's
obligation to indemnify and hold the Owner and the Owner's employees, agents and
contractors harmless against the Losses specified above will survive any
termination of this Agreement; provided, however, that such claim is submitted
to or received by Broker within eighteen months (18) following the Closing or
earlier termination of this Agreement.
(b) The Owner's Indemnification of the Broker. The Owner will
indemnify, defend and hold the Broker and the Broker's employees, agents and
contractors harmless, including in respect of reasonable attorney's fees and
costs of litigation generally, from and against all Losses arising out of or
resulting from (1) the activities, acts or omissions of the Owner, or its
employees, agents or contractors under or in connection with this Agreement or
the Station, which activities, acts or omissions may involve or result in, among
other things, (i) libel and slander; (ii) infringement of trademarks, service
marks or trade names; (iii) violations of law, rules or regulations (including
the FCC's rules and policies); (iv) invasion of rights of privacy or
infringement of copyrights and other proprietary rights; or (2) breaches of this
Agreement; provided, however, that such Losses do not result from the act or
omission of Broker or Broker's employees, agents or contractors. The Owner's
obligation to indemnify and hold the Broker and the Broker's employees, agents
and contractors harmless against Losses specified above will survive any
termination of this Agreement; provided, however, that such claim is submitted
to or received by Owner within eighteen months (18) following the Closing or
earlier termination of this Agreement.
10
(c) Indemnification Procedures. The procedures for making a
claim for indemnification under Section 20(a) or 20(b) and defending and
settling any related third-party claim related hereto will be identical to those
set forth in Sections 9.3 and 9.4 of the Purchase Agreement as if set forth
herein, mutatis mutandis.
(d) Insurance. The Broker and the Owner each will maintain
broadcasters' liability insurance policies covering libel, slander, invasion of
privacy and the like, general liability, blanket crime, property damage,
business interruption, automobile liability, and workers' compensation insurance
in forms and amounts customary in the television broadcast industry (to the
extent commercially reasonable, for example, neither party shall be required to
get insurance specifically with respect to property it does not own), and each
of the parties hereto will name the other as an additional insured under such
policies to the extent that their respective interests may appear and will
provide for notice to the other party prior to cancellation thereof. Upon
request, each party will provide the other with certificates evidencing such
insurance, and will further provide certificates evidencing renewal thereof
prior to the expiration of such policies.
21. Events of Default. There shall exist an "Event of Default"
under this Agreement if (after the expiration of any applicable cure period):
(a) Insolvency. Either party hereto (i) makes a general
assignment for the benefit of creditors or (ii) files or has filed against it a
petition for bankruptcy, for reorganization or for the appointment of a
receiver, trustee or similar creditors' representative for the property or
assets of such party under any federal or state insolvency law, which if filed
against such party has not been dismissed or discharged within sixty (60) days
thereafter; or
(b) Breach or Default in Representations and Covenants. (i)
Broker breaches any representation or warranty made by it in this Agreement, or
in any certificate or document furnished by it to Owner pursuant to this
Agreement, or defaults in the observance or performance of any material
covenant, agreement, condition or undertaking contained in this Agreement (other
than the nonpayment of Brokerage Fees which is addressed in Section 21(c)
below); provided, however, that an Event of Default shall not be deemed to have
occurred under this Section 21(b)(i) unless and until fifteen (15) days after
the Owner has provided the Broker with written notice specifying the event or
events that, if not cured, would constitute an Event of Default, and such event
has not been cured within such time period; provided, further, that, if such
event is not reasonably capable of being cured within such 15-day period, such
15-day period will be extended for a reasonable period of time not to exceed an
additional fifteen (15) days, if such delay is not materially adverse to Owner
and Broker commenced actions to cure such event as soon as reasonably
practicable after first receiving the above-referenced notice of default and has
thereafter reasonably continuously acted in good faith to diligently cure such
event; or (ii) the Owner breaches any representation or warranty made by it in
this Agreement, or in any certificate or document furnished by Owner to the
Broker pursuant to this Agreement, or defaults in the observance or performance
of any material covenant, agreement, condition or undertaking contained in this
Agreement; provided, however, that an Event of Default shall not be deemed to
have occurred under this Section 21(b)(ii) unless and until fifteen (15) days
after the Broker has provided the Owner with written notice specifying the event
or events that, if not cured, would constitute an Event of Default, and such
event has not been cured within such time
11
period; provided, further, that, if such event is not reasonably capable of
being cured within such 15-day period, such 15-day period will be extended for a
reasonable period of time not to exceed an additional fifteen (15) days if such
delay is not materially adverse to Broker and Owner commenced actions to cure
such event as soon as reasonably practicable after first receiving the
above-referenced notice of default and has thereafter continuously acted in good
faith to diligently cure such event; or
(c) Non-Payment. Broker's failure to timely pay any of the Time
Brokerage Fees; provided, however, that an Event of Default shall not be deemed
to have occurred under this Section 21(c) until five (5) days after the Owner
has provided Broker with written notice specifying such non-payment that, if not
cured, would constitute an Event of Default, and such non-payment has not been
cured within such time period.
22. Termination.
(a) Termination Upon Event of Default. Upon the occurrence of
an Event of Default, the non-defaulting party may terminate this Agreement,
provided that it is not also in material breach of this Agreement or the
Purchase Agreement.
(b) Termination Upon Closing. Except to the extent otherwise
provided in this Agreement, this Agreement will terminate effective upon the
Closing (as such term is defined in the Purchase Agreement).
(c) Termination Upon Order of Governmental Authority. A
"Governmental Termination Event" will occur if any court or federal, state or
local government authority (including the FCC) orders or takes any action which
becomes effective and which requires the termination or material curtailment of
the Broker's activities with respect to the Station pursuant to this Agreement;
provided that such order or action will no longer constitute a Governmental
Termination Event if such action or order is subsequently stayed or ceases to be
effective. If any court or federal, state or local government authority
announces or takes any other action or proposed action which could result in a
Governmental Termination Event, then either the Broker or the Owner may seek
administrative or judicial relief therefrom (in which event the other of them
will cooperate with such effort in any reasonable manner requested) and consult
with such agency and its staff concerning such matters and, in the event that
this Agreement is not terminated, use their reasonable best efforts and
negotiate in good faith a modification to this Agreement which would obviate any
such questions as to validity while preserving, to the extent possible, the
intent of the parties and the economic and other benefits of this Agreement and
the Purchase Agreement and the portions thereof the validity of which are called
into question. If the FCC designates the license renewal application of the
Station for a hearing as a consequence of this Agreement or for any other
reason, or initiates any revocation or other proceeding with respect to the
authorizations issued to the Owner for the operation of the Station, then the
Owner and the Broker will each use diligent, reasonable efforts to contest such
action and will each be responsible for its own expenses incurred as a
consequence of such FCC proceeding. The Broker will cooperate and comply with
any reasonable request of the Owner to assemble and provide to the FCC
information relating to the Broker's performance under this Agreement. In the
event of termination of the Broker's activities with respect to the Station
pursuant to this Agreement as a result of any Governmental Termination Event,
the Owner will cooperate
12
reasonably with the Broker to the extent permitted to enable the Broker to
fulfill advertising or other programming contracts then outstanding. If a
Governmental Termination Event occurs, then the Term will continue until the
date upon which the activities of the Broker and the Owner are required to be
ceased, as mandated by the agency or authority which brought about such
Governmental Termination Event.
(d) Termination Upon Sale of Station or other Event.
Notwithstanding any other provision of this Agreement to the contrary, this
Agreement shall automatically terminate (except for the provisions of Sections
4, 17, 20, 22, 23 and 26, which shall survive any such termination) upon the
consummation of the Closing or the earlier termination of the Purchase
Agreement.
(e) Anything to the contrary herein notwithstanding, no
expiration or termination of this Agreement shall terminate the obligations of
each party under Sections 4, 17, 20, 22, 23 and 26 or the obligation of each
party to indemnify, defend and/or hold harmless the other as provided in this
Agreement or limit or impair any party's rights to receive payments due and
owing or accruing under this Agreement on or before the date of such termination
or with respect to time periods ending on or before the date of such termination
(including, without limitation, Broker's obligation to pay all of the Time
Brokerage Fees that have accrued or are owed on or before the date of such
termination or with respect to time periods ending on or before such
termination), which rights and obligations shall survive any such expiration or
termination of this Agreement.
23. Effect of Termination Other Than at Closing. If this
Agreement terminates other than at Closing:
(a) Reimbursement of Capital Expenditures. The Owner shall
reimburse the Broker, within twenty (20) days of notice and documentation from
the Broker, for capital expenditures for the Station which the Broker paid
pursuant to this Agreement or the Purchase Agreement, either directly (to the
extent approved by the Owner, which approval the Owner will not unreasonably
withhold) or by reimbursing the Owner and upon reimbursement thereof by the
Owner, the Broker shall assign, transfer and convey to the Owner good and
marketable title to any property purchased with such capital expenditures free
and clear of any and all liens, charges, security interests and encumbrances.
(b) Collection of Post-Commencement, Pre-Termination
Receivables and Payment of Post-Commencement, Pre-Termination Payables. The
following procedures will apply with respect to the accounts receivable of the
Station pursuant to Trades as of the time (the "Termination Time") at which this
Agreement terminates other than at Closing (the "Pre-Termination Trade
Receivables"), the other accounts receivable of the Station as of the
Termination Time (the "Pre-Termination Receivables"), the accounts payable of
the Station pursuant to Trades as of the Termination Time (the "Pre-Termination
Trade Payables"), and the other current liabilities of the Broker, with respect
to the Station, as of the Termination Time (the "Pre-Termination Payables"), in
each case excluding those accounts receivable and accounts payable existing as
of the Commencement Time and in each case as determined in accordance with
Section 23(i). The Time Brokerage Fees will not be Pre-Termination Receivables
or Pre-Termination Payables.
13
(c) Billing and Performance by the Owner. From and after the
Termination Time, on behalf of the Broker, the Owner, at no charge to the
Broker, will (in accordance with the Owner's standard billing procedures for the
Station) issue invoices for advertising time sold and provided by the Station
prior to the Termination Time and not invoiced by the Broker prior to the
Termination Time, and will use its commercially reasonable efforts to cause the
Station to perform the Broker's obligations with respect to the Pre-Termination
Trade Payables.
(d) Collection and Application by the Owner. Effective at the
Termination Time, the Broker shall assign to the Owner the Pre-Termination
Receivables and the Pre-Termination Trade Receivables. During the One Hundred
Twenty (120) day period immediately following the Termination Time (the
"Collection Period"), the Owner will use commercially reasonable efforts in
accordance with its normal business practices (not including resorting to or
threatening litigation) to collect the Pre-Termination Receivables. The Owner
will not be required to segregate the proceeds of the collection of the
Pre-Termination Receivables from other funds of the Owner. Collections from any
Person that is a debtor with respect to a Pre-Termination Receivable (a
"Pre-Termination Debtor") will be applied in the chronological order of the
Owner's and the Broker's ▇▇▇▇▇▇▇▇ to such Pre-Termination Debtor (i.e., to the
oldest unpaid billing first) except to the extent that (i) such Pre-Termination
Debtor disputes its obligation to pay such billing or (ii) such Pre-Termination
Debtor indicates that such payment is to be applied in another, specified manner
(in which case it will be applied in such manner). The Owner will take no action
to encourage a Pre-Termination Debtor to dispute its obligation to pay any
billing that relates to a Pre-Termination Receivable or encourage a
Pre-Termination Debtor to specify that any payment from such Pre-Termination
Debtor is to be applied to ▇▇▇▇▇▇▇▇ to such Pre-Termination Debtor other than in
their chronological order.
(e) Non-Interference. So long as the Owner is in compliance
with this Section 23, during the Collection Period, neither the Broker nor any
agent of the Broker will make any direct solicitation of any Pre-Termination
Debtor for purposes of collecting any Pre-Termination Receivable, except as may
be agreed to by the Owner and except with respect to Delinquent Accounts.
"Delinquent Accounts" means those Pre-Termination Receivables which may be or
become more than 180 days past due and those accounts with respect to which the
Owner has received written notice of a dispute from the related Pre-Termination
Debtor (a copy of which notice the Owner will promptly forward to the Broker).
The Owner will not discourage any Pre-Termination Debtor from paying, or
otherwise interfere with the Broker's efforts in accordance with this Section 23
to collect, any Delinquent Account; provided that the Owner will not be
prohibited from ceasing or altering its methods of doing business with any such
Pre-Termination Debtor or pursuing or taking any action in connection with the
collection of any amount which may be owing by any such Pre-Termination Debtor
to the Owner or any of the Owner's Affiliates.
(f) Payment of Pre-Termination Payables. During the Collection
Period, the Owner will pay and discharge the Pre-Termination Payables as and
when the same become due and payable and, for this purpose, may utilize the
proceeds of the collection of the Pre-Termination Receivables and/or other funds
of the Owner; provided that the Owner shall not be required to expend in the
payment or discharge of Pre-Termination Payables an amount in excess of the
proceeds of the Pre-Termination Receivables actually received by it.
14
(g) Adjustment Amount. The "Net Adjustment" means the
following:
(i) the aggregate amount of the proceeds of the
Pre-Termination Receivables actually received by the
Owner during the Collection Period, reduced by
(ii) the aggregate amount actually paid by the Owner
during the Collection Period in satisfaction of the
Pre-Termination Payables, further reduced by
(iii) the aggregate amount of the Pre-Termination Payables
that have not become due and payable prior to the
end of the Collection Period (e.g., any portion of
the accrued vacation pay accrued following the
Commencement Time and as of the Termination Time in
respect of vacations that have not been taken as of
the end of the Collection Period), and further
reduced by
(iv) the amount (if any) by which the excess (if any) of
the Pre-Termination Trade Payables over the amount
of the Pre-Termination Trade Receivables.
If the Purchase Agreement is terminated pursuant to one of
Sections 6.1(d)(i), 6.1(d)(ii), 6.1(d)(iii), 6.1(d)(iv), 6.1(e)(i)(A),
6.1(e)(ii)(C), 6.1(f)(i) or 6.1(f)(ii) of the Purchase Agreement, then, at the
end of the Collection Period, the Owner shall reassign to the Broker the
Pre-Termination Receivables, to the extent they have not been collected prior to
the end of the Collection Period, and thereafter the Owner will turn over to the
Broker any proceeds of the Pre-Termination Receivables actually received by the
Owner after the end of the Collection Period. However, if the Purchase Agreement
is terminated on any other basis or for any other reason, then, Owner shall
retain as its property the Pre-Termination Receivables to the extent they have
not been collected prior to the end of the Collection Period, and thereafter the
Owner shall retain as its property any proceeds of the Pre-Termination
Receivables actually received by the Owner after the end of the Collection
Period.
(h) Reports: Adjustment Procedures.
(i) Monthly Report. On or prior to the 30th day after
the end of each month during the Collection Period,
the Owner will prepare and submit to the Broker a
report providing reasonable detail with respect to
the Owner's (A) collections of Pre-Termination
Receivables, and (B) payments of Pre-Termination
Payables, in each case pursuant to this Section 23.
(ii) Report After End of Collection Period. Estimated
Payment. On or prior to the 30th day after the end
of the Collection Period, the Owner will prepare and
submit to the Broker a report (the "the Owner's
Report") setting forth the Owner's determination of
the Net Adjustment (the "Estimated Adjustment"). The
Estimated Adjustment will become final and binding
upon the Owner and the
15
Broker, and thus become the "Final Net Adjustment",
on the fifteenth (15th) business day after the
Owner's Report is delivered to the Broker unless,
prior to such date, the Broker gives the Owner
written notice stating that the Broker disagrees
with such determination and, to the extent
reasonably possible, stating in reasonable detail
the nature, extent of, and basis for, the Broker's
disagreement.
(iii) Mutual Resolution. If the Broker timely gives the
Owner such a dispute notice, then, during the 30
days after the Broker gives such dispute notice, the
Broker and the Owner will attempt in good faith to
resolve such disagreement, including paying the
amounts agreed upon; and any mutual determination
and payment of the Final Net Adjustment by the
Broker and the Owner will be final and binding upon
the Owner and the Broker on the date of such mutual
determination.
(iv) Resolution by Accounting Firm. If any such dispute
cannot be resolved by the Owner and the Broker on or
prior to such 30th day, then such dispute will be
referred to an independent public accounting firm of
national stature which is designated and retained by
the Owner and approved by the Broker (which approval
the Broker will not unreasonably withhold) and which
has not been employed by any party or any of its
affiliates during any portion of the three years
preceding the date of such retention, and such
firm's determination of the Final Net Adjustment
will be final and binding upon the Owner and the
Broker. The fees and expenses of the independent
accounting firm shall be shared equally by the Owner
and the Broker.
(v) Final Settlement. If the Purchase Agreement is
terminated pursuant to one of Sections 6.1(d)(i),
6.1(d)(ii), 6.1(d)(iii), 6.1(d)(iv), 6.1(e)(i)(A),
6.1(e)(ii)(C), 6.1(f)(i) or 6.1(f)(ii) of the
Purchase Agreement, then, subject to payments made
pursuant to clause 23(h)(iii) above, the Owner shall
pay to Broker the amount by which the Final Net
Adjustment exceeds zero if such Final Net Adjustment
is greater than zero, and the Broker will pay to
Owner the amount by which the Final Net Adjustment
is less than zero if such Final Net Adjustment is
less than zero. Within five (5) business days after
the Final Net Adjustment is finally determined in
accordance with this Section 23, the amount to be
paid will be paid by wire transfer of immediately
available funds to an account of the recipient
specified by notice to the paying party.
(i) Proration. In the event of termination of this Agreement
(other than by reason of the Closing), the parties shall pro rate the revenues,
expenses, and liabilities attributable to the Station, including the power and
utilities, ad valorem property taxes (upon the
16
basis of the most recent assessment available), rents, income and sales taxes,
and similar accruing, prepaid and deferred items, in accordance with the
principles that the Broker will be allocated revenues earned or accrued, and
expenses, costs and liabilities incurred in or allocable, with respect to the
business and operation of the Station from the Commencement Time through the
Termination Time and the Owner will be allocated revenues earned or accrued, and
expenses, costs and liabilities incurred in or allocable, with respect to the
business and operation of the Station after the Termination Time.
(j) Condition of Property. The Broker shall return the Owner's
assets, properties and facilities (including replacements) in the condition such
assets, properties and facilities were in as of the date of this Agreement,
ordinary wear and tear excepted.
24. Authorization. The Owner owns or holds all material
licenses and other permits and authorizations reasonably necessary for the
operation of the Station (including licenses, permits and authorizations issued
by the FCC), and the Owner (including the Owner's affiliates, principals,
employees and agents) will take no action to impair such licenses, permits and
authorizations.
25. Billing; Records. The Broker shall keep detailed, itemized
written records relating to all revenue received by Broker with respect to the
Station and all expenses paid by Broker with respect to the Station, including
but not limited to revenues from the sale of commercial advertising on the
Station and Broker's Programming. Each party hereto and its authorized agents,
officers and representatives, upon prior written request, shall have reasonable
access to the appropriate books and records of the other party hereto to conduct
such examination and investigation as the requesting party deems reasonably
necessary to assure compliance with the terms and provisions of this Agreement
and to permit the parties hereto to comply with their tax reporting compliance
requirements; provided that such examination and investigation shall be at the
requesting party's sole cost and expense and shall be during the Station's
normal business hours.
26. Notices. All notices, demands and requests required or
permitted to be given under the provisions of this Agreement will be (a) in
writing, (b) delivered to the recipient in person or sent by commercial delivery
service or registered or certified mail, postage prepaid and return receipt
requested, (c) deemed to have been given on the date received by the recipient
(if delivered in person) on the date set forth in the records of the delivery
service (if delivered by commercial delivery service) or on the date of receipt
(if delivered by certified mail) and (d) addressed as follows:
If to the Owner:
c/▇ ▇▇▇▇▇▇ Multimedia, Inc.
▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, President
with a copy (which will not constitute notice to the Owner) to:
17
Ellis, Painter, ▇▇▇▇▇▇▇▇▇ & ▇▇▇▇ LLP
▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: J. ▇▇▇▇▇ ▇▇▇▇▇, Esq.
If to the Broker:
c/o Nexstar Broadcasting Group, L.P.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇, President & CEO
with a copy (which will not constitute notice to
Broker) to:
▇▇▇▇▇▇▇▇ & ▇▇▇▇▇
▇▇▇ ▇. ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇. ▇▇▇▇▇, Esq.
or to any such other or additional persons and addresses as the parties may from
time to time designate in a writing delivered in accordance with this Section
26.
27. Modification and Waiver. No amendment, supplement or
modification of any provision of this Agreement will be effective unless the
same will be in writing and signed by the party against whom enforcement of any
such amendment, supplement or modification is sought, and then such amendment,
supplement or modification will be effective only in the specific instance and
for the purpose for which given.
28. Governing Law. This Agreement will be governed by and
construed in accordance with the domestic laws of the State of New York, without
giving effect to any choice of law or conflict of law provision or rule (whether
of the State of New York or any other jurisdiction) that would cause the
application of the laws of any jurisdiction other than the State of New York.
29. Headings; Interpretation. The headings in this Agreement
are included for ease of reference only and will not control or affect the
meaning or construction of the provisions of this Agreement. As used in this
Agreement, "including," "includes" and the like are not intended to confer any
limitation.
30. Assignment. This Agreement may not be assigned by either
party without the express written approval of the other party. However, the
prior approval of the Owner is not required for any assignment by the Broker to
an Affiliate of the Broker, in which case the Broker nonetheless shall remain
responsible for all of its obligations hereunder as a principal obligor. Where
appropriate in the context and consistent with this provision, the term "Broker"
as used herein will mean and include such assignee.
18
31. Counterparts. This Agreement may be signed in any number of
counterparts with the same effect as if the signature(s) on each such
counterpart were upon the same instrument. This Agreement will be effective as
of the date first above written.
32. Entire Agreement. This Agreement and the Purchase
Agreement, and the documents referred to herein and therein contain the entire
agreement between the parties with respect to the subject matter of this
Agreement, 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.
33. No Partnership or Joint Venture Created. Nothing in this
Agreement will be construed to create a partnership or joint venture between the
Owner and the Broker or to afford any rights to any third party other than as
expressly provided herein. Neither the Owner nor the Broker will have any
authority to create or assume in the name or on behalf of the other party any
obligation, express or implied, or to act or purport to act as the agent or
legally empowered representative of the other party hereto for any purpose.
34. Severability. Whenever possible each provision of this
Agreement will be interpreted so as to be effective and valid under applicable
law. 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 or otherwise affecting the
remainder or such provision or the remaining provisions of this Agreement.
35. Legal Effect. This Agreement will be binding upon and will
inure to the benefit of the parties hereto, their heirs, executors, personal
representatives, successors and assigns.
36. No Party Deemed Drafter. No party will be deemed the
drafter of this Agreement and if this Agreement is construed by a court of law
such court should not construe this Agreement or any provision against any party
as its drafter.
37. Guaranty. The Seller and the Companies (as defined in the
Purchase Agreement) jointly and severally guarantee all the payment and
performance liabilities and obligations of each other under this Agreement owed
to Broker, as the same may be modified, extended, or renewed from time to time
without notice to any such guarantor, which notice is hereby waived. The Buyer
and the Brokers (as defined in the Purchase Agreement) jointly and severally
guarantee all of the payment and performance liabilities and obligations of each
other under this Agreement owed to Owner, as the same may be modified, extended,
or renewed from time to time without notice to any such guarantor, which notice
is hereby waived.
* * * *
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IN WITNESS WHEREOF, the parties hereto have executed this Time
Brokerage Agreement to be effective as of the date above written, with those
parties other than Owner and Broker executing this Time Brokerage Agreement
solely to evidence their agreement with Section 37 above.
NEXSTAR BROADCASTING GROUP, L.L.C.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇
----------------------------------------
Its: Chief Executive Officer
NEXSTAR BROADCASTING OF LITTLE ROCK, L.L.C.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇
----------------------------------------
Its: Chief Executive Officer
NEXSTAR BROADCASTING OF DOTHAN, L.L.C.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇
----------------------------------------
Its: Chief Executive Officer
▇▇▇▇▇▇ NETWORK, INC.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
----------------------------------------
Its: Chairman
KARK-TV, INC.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
----------------------------------------
Its: Chairman
20
▇▇▇▇▇▇ NETWORK OF ALABAMA, INC.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
----------------------------------------
Its: Chairman
UNITED BROADCASTING CORPORATION
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
----------------------------------------
Its: Chairman
21
EXHIBIT A
A. At the conclusion of each calendar month (a "Month") during
the Term, the Broker will pay the Owner an amount equal to the sum of:
(i) all of the reasonable costs, fees, and expenses
(including necessary capital expenditures associated with maintaining the
Station's studios, transmitting and microwave relay facilities of the Station)
actually incurred by the Owner during that part of the Month just ended during
which this Agreement is in effect in connection with its ownership and operation
of the Station (specifically including but not limited to Owner's cost in
complying with its obligations under Section 5(b) of this Agreement and paying
those costs described in said Section 5(b); plus;
(ii) all other reasonable costs actually incurred by the
Owner during the Month just ended in connection with Owner's compliance with its
other obligations under this Agreement; plus;
As used in this Agreement, all of the costs, fees and
expenses described above in clauses (A)(i) and (A)(ii) of this Exhibit "A" are
collectively and individually referred to as the "Monthly Costs".
With respect to each payroll period for Owner's employees during the Term, Owner
will submit to Broker the ADP payroll register relating to such payroll period
and, within 48 hours after receipt of such payroll register, Broker will
transfer funds to an account specified by Owner in the amount of the Monthly
Costs reflected on such payroll register ("Payroll Costs"), as an advance
against the amounts payable by Broker pursuant to the following paragraph, in
order to permit Owner to pay such Monthly Costs on a timely basis.
After the end of each Month during the Term, the Owner will submit to the Broker
an invoice for the Monthly Costs (including Payroll Costs) incurred during such
Month (or part thereof) as well as for Monthly Costs incurred during Months
previous thereto but not yet invoiced to Broker by Owner, and the amount of such
costs reflected on any such invoice to the extent not previously advanced to the
Owner will be due and payable on the fifth (5th) Business Day after the date
upon which such invoice is received by the Broker. The Monthly Costs which are
subject to reimbursement will be of the nature set forth in this Agreement,
including but not limited to those set forth in Section 5(b).
If Broker determines that an item appearing on an invoice submitted by Owner is
not properly payable by Broker to Owner under this Agreement, then Broker shall
nonetheless timely pay to Owner all other items appearing on such invoice which
Broker does not object to, and Broker shall submit with such timely payment a
written objection to the disputed item which sets forth the specific basis for
Broker's objection. Broker's opportunity to object to an item appearing on an
invoice will be lost if the written objection of the disputed item is not
provided within fifteen (15) Business Days after the date upon when the
applicable invoice is received. With respect to any item subject to a written
objection timely submitted by Broker to Owner, Broker and Owner agree to
negotiate in good faith to reach a mutually agreeable resolution within the ten
(10) day period following Owner's receipt of such objection. If no resolution is
reached within such
period, then each party may thereafter pursue its remedies as permitted by
applicable law and this Agreement.
B. In addition to the Monthly Costs, for each Month during the
Term or part thereof, Broker shall pay Owner, in arrears, on the last day of
each Month, a monthly fee in the amount of Four Thousand Dollars ($4,000.00) per
Month (such fee to be prorated for the number of days during such Month with
respect to which this Agreement is in effect).
2
EXHIBIT B
The Broker agrees to cooperate with the Owner in the broadcasting
of programs of the highest possible standard of excellence and for this purpose
to observe the following regulations in the preparation, writing and
broadcasting of its programs:
I. Religious Programming. The subject of religion and
references to particular faiths, tenants, and customs shall be treated with
respect at all times. Programs shall not be used as a medium for attack on any
faith, denomination, or sect or upon any individual or organization.
II. Controversial Issues. Any discussion of controversial
issues or public importance shall be reasonably balanced with the presentation
of contrasting viewpoints in the course of overall programming; no attacks on
the honesty, integrity, or like personal qualities of any person or group of
persons shall be made during the discussion of controversial issues of public
importance; and during the course of political campaigns, programs are not to be
used as a forum for editorializing about individual candidates. If such events
occur, the Owner may require that responsive programming be aired.
III. No Plugola or Payola. The mention of any business activity
or "plug" for any commercial, professional, or other related endeavor, except
where contained in an actual commercial message of a sponsor, is prohibited.
IV. No Lotteries. Announcements giving any information about
lotteries or games prohibited by federal or state law or regulation are
prohibited.
V. Election Procedures. At least ninety (90) days before the
start of any primary or regular election campaign, the Broker will clear with
the Owner's General Manager the rate Broker will charge for the time to be sold
to candidates for public office and/or their supporters to make certain that the
rate charged conforms to all applicable laws and the policy of the Station.
VI. Required Announcements. The Broker shall broadcast (a) an
announcement in a form satisfactory to the Owner at the beginning of each hour
to identify Station WDHN, (b) an announcement at the beginning and end of each
program, and hourly, as appropriate, to indicate that program time has been
purchased by the Broker, and (c) any other announcement that may be required by
law, regulation, or the policy of the Station.
VII. Credit Terms Advertising. Pursuant to rules of the Federal
Trade Commission, any advertising of credit terms shall be made over the Station
in accordance with all applicable federal and state laws, including Regulations
Z and M.
VIII. Commercial Record Keeping. No commercial messages ("plugs")
or undue references shall be made in programming presented over the Station to
any business venture, profit making activity, or other interest (other than
noncommercial announcements for bona fide charities, church activities, or other
public service activities) in which the Broker is directly or
3
indirectly interested without the same having been approved in advance by the
Owner's General Manager and such broadcast being announced and logged as
sponsored.
IX. No Illegal Announcements. No announcements or promotion
prohibited by federal or state law or regulation of any lottery or game shall be
made over the Station. Any game, contest, or promotion relating to or to be
presented over the Station must be fully stated and explained in advance to the
Owner, which reserves the right in its sole discretion to reject any game,
contest, or promotion.
X. Owner's Discretion Paramount. In accordance with the
Owner's responsibility under the Communications Act of 1934, as amended, and the
rules and regulations of the Federal Communications Commission, the Owner
reserves the right to reject or terminate any advertising proposed to be
presented or being presented over the Station which is in conflict with the
policy of the Station or which in the reasonable judgment of the Owner or its
General Manager would not serve the public interest.
XI. Programming in Which Broker has a Financial Interest. The
Broker shall advise the General Manager of the Station with respect to any
programming (including commercial(s)) concerning goods or services in which the
Broker has a material financial interest. Any announcements for such goods and
services shall clearly identify the Broker's financial interest.
XII. Programming Prohibitions. The Broker shall not broadcast
any of the following programs or announcements:
A. False Claims. False or unwarranted claims for any
product or service.
B. Unfair Imitation. Infringements of another
advertiser's rights through plagiarism or unfair imitation or either program
idea or copy, or any other unfair competition.
C. Commercial Disparagement. Any disparagement of
competitors or competitive goods.
D. Profanity. Any programs or announcements that are
slanderous, obscene, profane, vulgar, repulsive or offensive, either in theme or
treatment.
E. Price Disclosure. Any price mentions except as
permitted by a licensee's policies current at the time.
F. Unauthenticated Testimonials. Any testimonials which
cannot be authenticated.
G. Descriptions of Bodily Functions. Any continuity
which describes in a repellent manner internal bodily functions or symptomatic
results or internal disturbances, and no reference to matters which are not
considered acceptable topics in social groups.
4
H. Conflict Advertising. Any advertising matter or
announcement which may, in the reasonable opinion of a licensee, be injurious or
prejudicial to the interests of the public, the Station, or honest advertising
and reputable business in general.
I. Fraudulent or Misleading Advertisement. Any
advertisement matter, announcement, or claim which Broker knows to be
fraudulent, misleading, or untrue.
Owner may waive any of the foregoing regulations in specific
instances if, in its reasonable opinion, good broadcasting in the public
interest will be served thereby.
In any case where questions of policy or interpretation arise,
Broker shall submit the same to Owner for decision before making any commitments
in connection therewith.
5
EXHIBIT C
CERTIFICATE REGARDING COMMERCIAL LIMITS IN
CHILDREN'S TELEVISION PROGRAMMING
_______________________ ("Broker") hereby certifies to
___________________________ ("Owner") that, with respect to the children's
programs provided by Broker which were broadcast on __________________ (the
"Station") during the _________ quarter of 200__ (ending _____________) to which
the commercial limits set forth in 47 C. F. R. Section 73.670 of the FCC's rules
apply:
_____1. the amount of commercial matter aired during such
children's programs were in compliance with the commercial limits.
_____2. the amount of commercial matter aired during such
children's programs were in compliance with such commercial limits, except for
the program segments listed below which exceeded the allowed commercial limits.
A separate memo explaining why any excesses occurred is also attached.
[Broker]
By:
--------------------------
Name:
--------------------------
Title:
--------------------------
6
EXHIBIT D
County of ______________
State of ________________
ANTI-PAYOLA/PLUGOLA AFFIDAVIT
(Name) , being first duly sworn, deposes and says as follows:
1. He is (Position) for [Broker] ("Broker").
2. He has acted in the above capacity since (date) .
3. No matter has been broadcast by Station(s) 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(s) for which service, money, or other valuable
consideration has been directly or indirectly paid, or
promised to, or charged, or accepted by Station(s) by the
Broker, or by any independent contractor engaged by the
Broker 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 the 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 or presentation of broadcast
matter on Station(s) .
6. Except as may be reflected in paragraph 7 hereof, neither
he, his spouse nor any member of his immediate family has
any present direct or indirect ownership interest in any
entity engaged in the following business or activities
(other than an investment in a corporation whose stock is
publicly held), serves as an officer or director of,
whether with or without compensation, or serves as an
employee of, any entity engaged in the following business
or activities:
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;
7
3. The exploitation, promotion, or management of
persons rendering artistic, production and/or other
services in the entertainment field;
4. The ownership or operation of one or more radio or
television Stations;
5. The wholesale or retail sale of records intended for
public purchase;
6. The sale of advertising time other than on
Station(s) or any other Station owned by the Broker.
----
7. A full disclosure of any such interest referred to
in paragraph 6, above, is as follows:
----------------------------------------------------
----------------------------------------------------
----------------------------------------------------
-------------------------------
Affiant
Subscribed and sworn to before me this ____ day of _________, 200__.
-----------------------------
Notary Public
My commission expires: __________
