EXHIBIT 99.6
MANAGEMENT SERVICES AGREEMENT
THIS MANAGEMENT SERVICES AGREEMENT (this "AGREEMENT"), dated
as of January 7, 2002 (the "EFFECTIVE DATE"), is by and among SUNRISE TELEVISION
CORP., a Delaware corporation ("SUNRISE"), STC BROADCASTING, INC., a Delaware
corporation ("STCB"), STC License Company, a Delaware corporation ("STCLC"), and
XXXXX BROADCASTING GROUP, INC., a Delaware corporation (the "MANAGER").
WITNESSETH:
WHEREAS, Sunrise, STCB and STCLC (collectively, the "OWNERS")
own or control, either directly or indirectly, all of the operating assets for,
and are the Federal Communications Commission ("FCC") licensees for, certain
television broadcast stations located in North Dakota;
WHEREAS, Manager is experienced in the management and
operation of television broadcast stations, generally; and
WHEREAS, pursuant to the terms and subject to the conditions
hereof, the Owners desire to engage Manager, and Manager desires to accept such
engagement, to provide management and operational services with respect to the
television broadcast stations listed in Exhibit A (the "STATIONS").
NOW, THEREFORE, in consideration of the mutual covenants and
agreements contained herein and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereto,
intending to be legally bound, hereby agree as follows:
ARTICLE 1 - DEFINITIONS
1.1 DEFINITIONS. Except as otherwise defined herein, the following
terms shall have the following meanings when used in this Agreement:
"ACT" means the Communications Act of 1934 and any rules,
regulations or policies promulgated thereunder, each as amended or modified from
time to time.
"AFFILIATE" means, with respect to any Person, any other
Person controlled by, controlling, or under common control with such Person,
with "control," for such purposes, meaning the ownership of stock, partnership
or other equity interests conferring the power to direct, or to elect a majority
of the directors or similar Persons empowered to direct, the business of a
Person.
"AGREEMENT" has the meaning ascribed thereto in the preamble
of this Agreement.
"APPLICABLE LAW" means any applicable law, regulation, rule,
writ, injunction, ordinance, franchise, decree, determination, award, permit,
license, authorization, requirement, ruling, order or decision of, or by, a
Governmental Authority, including FCC Licenses and Permits.
"ARBITRATION NOTICE" has the meaning ascribed thereto in
Section 9.1.
"ARBITRATION RULES" has the meaning ascribed thereto in
Section 9.1.
"BOARD" means the board of directors of STCB or the board of
directors of Sunrise, as the context requires.
"CLAIMING PARTY" has the meaning ascribed thereto in Section
9.1.
"CLAIMS" has the meaning ascribed thereto in Section 8.1.
"CONTRACT" means any contract, agreement, commitment or
understanding, whether written or oral.
"COSTS" means all reasonable out-of-pocket expenses that are
incurred by Manager directly in connection with the performance of the specified
services hereunder.
"DAMAGES" has the meaning ascribed thereto in Section 8.1.
"DISPUTES" has the meaning ascribed thereto in Section 9.1.
"EFFECTIVE DATE" has the meaning ascribed thereto in the
preamble of this Agreement.
"FCC" has the meaning ascribed thereto in the Recitals of this
Agreement.
"FCC LICENSES" means all licenses, permits and other
authorizations issued by the FCC with respect to the ownership, operation or
construction of the Stations and all auxiliary broadcast and satellite earth
station facilities used in the operation of the Stations (but not including any
Permits).
"GOVERNMENTAL AUTHORITY" means (i) the United States of
America, (ii) any state or commonwealth of the United States of America and any
political subdivision thereof (including counties, municipalities and the like)
or (iii) any agency, authority or instrumentality of any of the foregoing,
including any court, tribunal, department, bureau, commission or board.
"LIEN" means, with respect to any asset, any mortgage, lien,
pledge, charge, security interest, restriction or encumbrance of any kind,
whether statutory or otherwise, in respect to such asset.
"MANAGER" has the meaning ascribed thereto in the preamble of
this Agreement.
"MANAGER INDEMNITEE" has the meaning ascribed thereto in
Section 8.1.
-2-
"OWNERS" has the meaning ascribed thereto in the Recitals of
this Agreement.
"OWNERS INDEMNITEE" has the meaning ascribed thereto in
Section 8.3.
"PERMIT" means any license, permit or other authorization
(other than an FCC License) granted or issued by a Governmental Authority, which
is necessary to the conduct of the business or operations of the Stations.
"PERSON" means any human being, organization, general
partnership, limited partnership, corporation, limited liability company, joint
venture, trust, business trust, association, Governmental Authority or other
legal entity.
"REPRESENTATIVES" has the meaning ascribed thereto in Section
5.1.
"STATIONS" has the meaning ascribed thereto in the Recitals of
this Agreement.
"STCB" has the meaning ascribed thereto in the preamble of
this Agreement.
"STCLC" has the meaning ascribed thereto in the preamble of
this Agreement.
"SUBSIDIARY" means, with respect to any Person, any other
Person of which such first Person owns the majority of the economic interest in
such Person or owns or has the power to vote, directly or indirectly, securities
representing a majority of the votes ordinarily entitled to be cast for the
election of directors or other governing Persons.
"SUNRISE" has the meaning ascribed thereto in the preamble of
this Agreement.
"TERM" means the term of this Agreement which shall commence
on the Effective Date and, unless otherwise earlier terminated in accordance
with the terms hereof, shall expire in accordance with the terms of Section 2.2.
1.2 ADDITIONAL TERMS. The definitions in Section 1.1 shall apply
equally to both the singular and plural forms of the terms defined. Whenever the
context may require, any pronoun shall include the corresponding masculine,
feminine and neuter forms. The words "include," "includes" and "including" shall
be deemed to be followed by the phrase "without limitation." All references to
"party" and "parties" shall be deemed references to the parties to this
Agreement unless the context shall otherwise require. All references to Articles
or Sections shall be deemed references to Articles or Sections of this
Agreement, unless the context shall otherwise require. All references herein to
Exhibits shall be deemed to be references to the Exhibit(s) attached to this
Agreement. The terms "this Agreement", "hereof", "hereunder" and similar
expressions refer to this Agreement as a whole and not to any particular Article
or Section or other portion hereof and include any amendments, modifications or
supplements hereto. The conjunction "or" shall be understood in its inclusive
sense (and/or).
1.3 HEADINGS. The division of this Agreement into Articles and Sections
and the insertion of headings are for convenience of reference only and shall
not affect the construction or interpretation of this Agreement.
-3-
ARTICLE 2 - MANAGEMENT SERVICES
2.1 APPOINTMENT OF MANAGER. Pursuant to the terms and subject to the
conditions contained herein, the Owners hereby engage Manager, and Manager
hereby accepts such engagement, to provide management services, as described in
Section 2.4, with respect to the operation of the Stations.
2.2 TERM. The engagement of Manager and the Term shall continue until
the closing of the sale of the Stations, unless sooner terminated in accordance
with Article 7.
2.3 STANDARD OF PERFORMANCE. Manager shall perform its duties and
obligations under this Agreement in accordance with all Applicable Laws and
standard practices of the industry with respect to the management of similarly
situated television stations.
2.4 SERVICES TO BE PERFORMED BY MANAGER. Throughout the Term, and in
addition to those services that may be provided pursuant to Section 2.5,
pursuant to the terms and subject to the conditions hereof (including those
limitations on Manager's authority contained in Section 3.1), and under the
control and at the direction of the Owners, Manager shall provide management
services, as reasonably requested by the Owners and as reasonably acceptable to
the Manager, in order to manage, promote, maintain and operate the Stations.
2.5 COMPLIANCE WITH FCC LICENSES. Notwithstanding anything in this
Agreement to the contrary, the Owners shall continue to be the licensee of all
FCC Licenses and shall at all times during the Term retain control over the
management and operation of the Stations and their assets, including the right
of final approval in respect of all material programming decisions, control over
the finances and budgets of the Stations, and the selection and termination of
key personnel. The Owners shall also retain ultimate responsibility for
compliance with the rules, regulations and policies of the FCC and the terms of
the Act. Subject to compliance with Applicable Law, Manager shall comply with
all instructions from the Board. Unless otherwise instructed by the Board in
writing, Manager hereby expressly agrees that it will take no action (a) which
would be a material violation of any FCC License, (b) which could reasonably be
expected to have the effect of causing the cancellation, revocation or
modification in any adverse way of any FCC License or (c) which could be
expected to otherwise impair the maintenance in good standing or renewal of any
FCC License.
2.6 DELIVERY OF NOTICES OF PROCEEDINGS. Manager shall promptly notify
the Owners, and their respective Boards of (a) any proceedings instituted by, in
or before any Governmental Authority, including the FCC, (b) any notices of
default received by Manager with respect to alleged defaults under or violations
of any FCC Licenses, Permits or any material Contracts or alleged defaults with
respect to any evidence of material indebtedness or any mortgage, indenture or
other agreement relating thereto or (c) any material adverse change in the
condition, financial or otherwise, of the Stations.
ARTICLE 3 - MANAGER'S AUTHORITY AND LIMITATIONS THEREON
3.1 MANAGER'S AUTHORITY AND LIMITATIONS.
(a) Subject to the limitations contained in this Agreement,
Manager shall have authority to execute in the name and on behalf of
the Owners such instruments, documents or agreements as may be
necessary, proper or advisable in the rendering by Manager of services
to be provided by Manager hereunder, and to do all such acts and
things, as may be necessary, proper or advisable in the rendering of
services to be provided by Manager hereunder; provided, however, that
Manager shall not take or fail to take any action which violates or
would violate (upon notice, the passage of time, or otherwise): (i) any
Applicable Laws relating to the Stations; (ii) any
-4-
material agreement, arrangement or undertaking to which an Owner or any
of its Subsidiaries is a party; (iii) any Permit or FCC License granted
to an Owner or any of its Subsidiaries in connection with its ownership
and operation of the Stations; (iv) any judicial or administrative
order or decree to which an Owner or any of its Subsidiaries is subject
or by which any of the Owner's or any such Subsidiary's properties or
assets is bound; or (v) any directive of the Board of Sunrise or STCB
or their respective Chief Executive Officers.
(b) Notwithstanding any other provision of this Agreement to
the contrary, the Manager shall not, without obtaining the prior
written consent of the Owners (acting upon the approval of the Boards),
take any of the following actions:
(i) sell or enter into any agreement to sell any
Station or all or substantially all of the assets or business
of any Station;
(ii) initiate by or on behalf of any Owner or any of
its Subsidiaries of any action, suit, or proceeding whether
civil, criminal, administrative, arbitrative, or
investigative;
(iii) enter into any local marketing agreement, joint
operating agreement, or joint sales agreement in respect of
any Station or other television broadcast station;
(iv) enter into any compromise, settlement, or
adjustment of any claim, debt, liability, obligation, or
judgment against any Owner or any of its Subsidiaries in
respect of any pending or threatened action, suit, or
proceeding;
(v) engage in any transaction with Manager or its
Affiliates or Subsidiaries except in connection with the
performance of the services required to be performed by
Manager hereunder;
(vi) increase the compensation of any executive or
officer of any Owner or enter into any employment, deferred
compensation, severance, consulting, non-competition, or other
similar agreement with any such executive or officer;
(vii) change any of the auditors of any Owner or
change any tax or financial accounting methods, practices or
policies used by any Owner;
(viii) incur any indebtedness for borrowed money
other than as permitted by each credit agreement, indenture
and financing arrangement to which any Owner is a party; and
(ix) eliminate or materially modify any employee
benefit plan or program other than in connection with the
replacement of such employee benefit plan or program with a
comparable employee benefit plan or arrangement.
3.2 DELEGATION. Manager shall not have the right to delegate any of its
obligations under this Agreement; provided, however, that Manager may (i)
provide the services hereunder through one or more of its Subsidiaries or
Affiliates and (ii) retain such accountants, attorneys, consultants, and other
advisors that are incidental to the performance by Manager its obligations
hereunder.
-5-
ARTICLE 4 - REIMBURSEMENT OF MANAGER
4.1 COSTS OF MANAGER. STCB shall be obligated to reimburse Manager for
all Costs incurred by Manager in connection with the performance of the services
hereunder. Manager shall submit to STCB within forty-five (45) days after the
end of each fiscal quarter an invoice listing the Costs due from STCB. STCB
shall provide payment in the full amount of the invoice within fifteen (15) days
after receipt thereof.
4.2 AUTHORIZED SIGNATORY. An officer of Manager specified thereby shall
be an authorized signatory to such bank accounts of the Owners as the Owners
shall specify.
ARTICLE 5 - COVENANTS OF MANAGER
5.1 COVENANTS OF MANAGER.
(a) Upon termination of this Agreement, Manager shall return
to the Owners as soon as practicable after the expiration or sooner
termination of this Agreement, all property of the Owners, their
respective Subsidiaries, or the Stations, as applicable, including all
originals and all copies of documents, notes, computer discs, tapes, or
other tangible information of any sort that Manager has in its
possession or under its custody or control that are the property of the
Owners, their respective Subsidiaries, or the Stations and will not
retain any copies of such matter.
(b) Manager shall hold, and shall use its commercially
reasonable efforts to cause its officers, directors, employees,
accountants, counsel, consultants, advisors, financial sources,
financial institutions, and agents (the "REPRESENTATIVES") to hold, in
confidence all confidential information concerning the Owners and their
respective Subsidiaries that is furnished or otherwise made available
to Manager or its Representatives in connection with the performance by
Manager of the services required to be performed by it hereunder,
except to the extent such information (i) was in the public domain
through no fault of Manager or its Representatives, or (ii) is required
to be disclosed by law, rule or regulation or by judicial or
administrative process or pursuant to the rules or regulations of any
national stock exchange. If this Agreement expires or is otherwise
terminated, and to the extent commercially practicable, Manager will
destroy, and will use its commercially reasonable efforts to cause its
Representatives to destroy, upon request of any Owner, all documents
and other materials, and all copies thereof, that were obtained by
Manager in connection with the performance of the services hereunder
and that are subject to such confidence.
(c) None of Manager nor any of its Representatives shall at
any time during or after the Term have or claim to have any right,
title, or interest in any trade name, trademark, service xxxx, or
copyright belonging to or used or to be used by the Owners or any of
their respective Subsidiaries. Each of the Owners or their respective
Subsidiaries, as the case may be, now has and retains, and hereafter
may have and retain, the sole and exclusive right in any and all such
trade names, trademarks, service marks, and copyrights.
(d) The covenants contained in Sections 5.1(b), 5.1(c), and
5.1(d) shall (i) survive the expiration or sooner termination of the
Term and shall continue to bind the parties hereto in accordance with
the terms hereof, and (ii) be construed as covenants or agreements
independent of any other provision of this Agreement and the allegation
or existence of any claim or cause of action of Manager against the
Owners, whether predicated on this Agreement or otherwise, shall not
constitute a defense to the enforcement by the Owners of such
covenants.
-6-
(e) In the event of any breach or threatened breach of any of
Sections 5.1(a), 5.1(b), and 5.1(c), Owners shall be entitled to
request from a court of competent jurisdiction the entry of a temporary
restraining order upon notice to Manager, as well as the entry of a
preliminary injunction and a permanent injunction. Such right to an
injunction shall be in addition to and not in limitation of any other
rights or remedies the Manager may have for damages or otherwise.
ARTICLE 6 - REPRESENTATIONS AND WARRANTIES
6.1 REPRESENTATIONS AND WARRANTIES BY EACH OWNER. Each Owner, jointly
and severally, makes the following representations and warranties to Manager,
each of which is true and correct as of the date hereof.
(a) Each Owner is duly organized, validly existing and in good
standing under the laws of the jurisdiction of its organization. Each
Owner has the requisite power and authority to execute and deliver this
Agreement and all of the other agreements and instruments to be
executed and delivered by such Owner pursuant hereto, to consummate the
transactions contemplated hereby and thereby and to comply with the
terms hereof and thereof.
(b) The execution, delivery and performance of this Agreement
has been duly authorized and approved by all necessary action of each
Owner and do not require any further authorization or consent of such
Owner. This Agreement is a legal, valid and binding agreement of each
Owner enforceable in accordance with its respective terms, except in
each case as such enforceability may be limited by bankruptcy,
moratorium, insolvency, reorganization or other similar laws affecting
or limiting the enforcement of creditors' rights generally and except
as such enforceability is subject to general principles of equity.
(c) Neither the execution and delivery by any Owner of this
Agreement nor the consummation by any Owner of any of the transactions
contemplated hereby or thereby nor compliance by any Owner with or
fulfillment by any Owner of the terms, conditions and provisions hereof
or thereof will conflict with the Certificate of Incorporation or
Bylaws of any Owner or any Applicable Laws to which any Owner is
subject or require the approval, consent, authorization or act of, or
the making by any Owner of any declaration, filing or registration
with, any third party or any Governmental Authority or violate,
conflict with, result in any breach of, or constitute a default (or an
event which, with notice or lapse of time, or both, would become a
default) under, give any Person (including any Owner) any right of
termination or cancellation, any right to assert any remedy with
respect to, or the right to cause the acceleration of the maturity of,
any contract or agreement to which any Owner is a party or by which its
property is bound or cause the loss of any rights, advantages or
privileges under or relating to such property or assets.
(d) There is no action, suit, proceeding or investigation
pending or, to the knowledge of any Owner, threatened against such
Owner which questions the validity of this Agreement or the right of
such Owner to enter into it or to consummate the transactions
contemplated hereby.
6.2 REPRESENTATIONS AND WARRANTIES BY MANAGER. Manager makes the
following representations and warranties to the Owners:
(a) Manager is a corporation duly organized, validly existing
and in good standing under the laws of the State of Delaware. Manager
has the requisite power and authority to execute and deliver this
Agreement and all of the other agreements and instruments to be
executed and
-7-
delivered by Manager pursuant hereto to consummate the transactions
contemplated hereby and thereby and to comply with the terms,
conditions and provisions hereof and thereof.
(b) The execution, delivery and performance of this Agreement
has been duly authorized and approved by all necessary action of
Manager and do not require any further authorization or consent of
Manager. This Agreement is a legal, valid and binding agreement of
Manager enforceable in accordance with its respective terms, except in
each case as such enforceability may be limited by bankruptcy,
moratorium, insolvency, reorganization or other similar laws affecting
or limiting the enforcement of creditors' rights generally and except
as such enforceability is subject to general principles of equity.
(c) Neither the execution and delivery by Manager of this
Agreement nor the consummation by Manager of any of the transactions
contemplated hereby or thereby nor compliance by Manager with or
fulfillment by Manager of the terms, conditions and provisions hereof
or thereof will conflict with the Certificate of Incorporation or
Bylaws of Manager or any Applicable Laws to which Manager is subject or
require the approval, consent, authorization or act of, or the making
by Manager of any declaration, filing or registration with, any third
party or any Governmental Authority or violate, conflict with, result
in any breach of, or constitute a default (or an event which, with
notice or lapse of time, or both, would become a default) under, give
any Person (including Manager) any right of termination or
cancellation, any right to assert any remedy with respect to, or the
right to cause the acceleration of the maturity of, any contract or
agreement to which Manager is a party or by which its property is bound
or cause the loss of any rights, advantages or privileges under or
relating to such property or assets.
(d) There is no action, suit, proceeding or investigation
pending or, to the knowledge of Manager, threatened against Manager
which questions the validity of this Agreement or the right of Manager
to enter into it or to consummate the transactions contemplated hereby.
6.3 SURVIVAL OF REPRESENTATIONS AND WARRANTIES. All representations and
warranties of the Owners and Manager in this Agreement shall survive for a
period of one year after the date of this Agreement.
ARTICLE 7 - TERMINATION
7.1 TERMINATION RIGHTS. This Agreement may be terminated solely, as
follows:
(a) at any time with the mutual written consent of Manager and
the Owners; and
(b) at any time, by either the Owners or the Manager upon
thirty (30) days' written notice to the non-terminating party
7.2 EFFECT OF TERMINATION.
(a) If this Agreement is terminated by either Owners or
Manager for any reason, then, STCB shall reimburse Manager (in
accordance with Section 4.1) for all Costs incurred by Manager through
the date of termination that have not been reimbursed prior to such
date.
(b) Upon termination of this Agreement in accordance with
Section 7.1, except for Sections 5.1(a), 5.1(b), 5.1(c), 5.1(d),
5.1(e), and 5.1(f), this Section 7.2, and Articles 8 and 9, which shall
survive the termination of this Agreement, this Agreement shall be null
and void, and no party hereto or any of its officers, directors,
stockholders, employees, agents, consultants, or
-8-
other Affiliates shall have any rights, obligations or liabilities
hereunder or in respect hereof; provided, however, that nothing
contained in this Section 7.2 shall relieve any party from liability
for any breach of any representation or warranty or failure to comply
with any covenant or agreement contained herein except in the case of a
termination under Section 7.1(a).
ARTICLE 8 - INDEMNIFICATION
8.1 INDEMNIFICATION. The Owners will indemnify and hold harmless
Manager, its Affiliates and all officers, directors, employees, stockholders,
partners and agents of Manager and its Affiliates (individually, a "MANAGER
INDEMNITEE") from and against any and all claims, demands, costs, damages,
losses, liabilities, joint and several, expenses of any nature (including
reasonable attorneys', accountants' and experts' fees and disbursements),
judgments, fines, settlements and other amounts (collectively, "DAMAGES")
arising from any and all claims, demands, actions, suits or proceedings, civil,
criminal, administrative or investigative (collectively, "CLAIMS") in which the
Manager Indemnitee may be involved or threatened to be involved, as a party or
otherwise, arising out of Manager's performance of its obligations under this
Agreement or the ownership or operation of the Stations, regardless of whether
this Agreement continues to be in effect or the Manager Indemnitee continues to
be an Affiliate, or an officer, director, employee, stockholder, partner or
agent of Manager, at the time any such Claims are made or Damages incurred,
provided that (a) the Manager Indemnitee acted in good faith and in a manner it
reasonably believed to be in the best interest of the Owners and, with respect
to any criminal proceeding, had no reasonable cause to believe its conduct was
unlawful and (b) the Manager Indemnitee's conduct did not constitute gross
negligence, willful misconduct or a breach of this Agreement. Any
indemnification hereunder will be satisfied solely out of the assets of the
Owners.
8.2 ADVANCEMENT OF EXPENSES. Expenses (including attorneys' and
experts' fees and related costs) incurred by a Manager Indemnitee in defending
any Claim will be advanced by the Owners prior to the final disposition of such
Claim, provided that the Owners have received an undertaking (together with a
bond or other appropriate security) given by or on behalf of the Manager
Indemnitee to repay such amount if it is finally determined by a court of
competent jurisdiction that such Manager Indemnitee is not entitled to
indemnification pursuant to this Article 8.
8.3 INDEMNIFICATION BY MANAGER. Manager will indemnify and hold
harmless the Owners, their Affiliates and all officers, directors, employees,
stockholders, partners, members and agents of the Owners and their Affiliates
(individually, an "OWNERS INDEMNITEE") from and against any and all Damages
arising from any and all Claims in which an Owners Indemnitee may be involved or
threatened to be involved, as a party or otherwise, arising out of Manager's
gross negligence or willful misconduct in connection with the performance of the
services under this Agreement; provided that neither Manager nor any of its
Affiliates or any other Person that comprises a Manager Indemnitee under Section
8.1 shall be deemed an Owners Indemnitee under this Section 8.3. Manager will
advance expenses to an Owners Indemnitee in defending any Claim in the same
manner as provided in Section 8.2 for Manager.
8.4 LIMITATION ON LIABILITY. Notwithstanding anything contained herein
to the contrary, no party shall be liable to another party for any incidental,
indirect, special, punitive, exemplary or consequential loss or damages arising
out of, or in connection with, indirect or consequential loss, damage, cost or
expense suffered or incurred by such other party as a result of a breach of any
representation or warranty made to such other party or a breach of any covenant
or agreement made by such party to such other party in this Agreement, whether
such liability arises out of contract, tort (including negligence), strict
liability, stature or otherwise, and each party releases the other parties from
such liability.
-9-
ARTICLE 9 - MISCELLANEOUS
9.1 ARBITRATION.
(a) All disputes between the parties hereto relating to this
Agreement other than any disputes that seek injunctive or other
equitable relief ("DISPUTES") shall be resolved by arbitration in
accordance with this Article 9. This agreement to arbitrate as set
forth in this Article 9 shall survive the termination of this
Agreement. All arbitration shall be conducted pursuant to the
Commercial Arbitration Rules of the American Arbitration Association
(the "ARBITRATION RULES") as then in force except as otherwise provided
herein. The decision of the arbitrators shall be final and binding on
the parties. All arbitration shall be undertaken pursuant to the
Federal Arbitration Act, where applicable, and the decision of the
arbitrators shall be enforceable in any court of competent jurisdiction
pursuant to the Federal Arbitration Act.
(b) To submit a Dispute to arbitration, the party seeking
arbitration (the "CLAIMING PARTY") shall furnish the other party and
the American Arbitration Association with a notice (the "ARBITRATION
NOTICE") containing: (i) the name and address of such Claiming Party;
(ii) a reasonably detailed description of the Dispute and the amount
of, and basis for damages (or other requested relief) relating to or
arising out of such Dispute; (iii) the Claiming Party's intent to
commence arbitration proceedings under this Agreement; and (iv) the
other information required under the Federal Arbitration Act and the
Arbitration Rules.
(c) In any Dispute where a party seeks One Hundred Thousand
Dollars ($100,000) or more in damages, three arbitrators shall be
employed. Within ten (10) days after delivery of the Arbitration
Notice, the Claiming Party and the other party shall jointly select
three independent arbitrators from the list of the American Arbitration
Association's National Panel of Commercial Arbitrators. If the parties
cannot agree upon the panel of arbitrators within such 10-day period,
the American Arbitration Association shall select a panel of three
independent arbitrators from the list. If the Claiming Party seeks less
than One Hundred Thousand Dollars ($100,000) in damages, one
independent arbitrator shall be selected by the American Arbitration
Association.
(d) The costs and expenses of any arbitration proceeding,
including the arbitrators' fees and expenses, shall be borne and may be
specified in the arbitration award; provided, however, that if such
arbitration award does not specify which party should bear any such
cost or expense, such cost or expense shall be borne equally by the
parties hereto. The arbitration proceedings shall take place in New
York City, New York. In resolving all Disputes, the arbitrators shall
apply the law of the State of New York without regard to the choice of
law provisions thereof. The arbitrators are by this agreement directed
to conduct the arbitration hearing no later than two (2) months from
the service of the Arbitration Notice unless good cause is shown
establishing that the hearing cannot fairly and practically be so
convened.
(e) Parties shall be entitled to conduct document discovery by
requesting production of documents. Responses or objections shall be
served twenty (20) days after receipt of a request. The arbitrators
shall resolve any discovery disputes by such pre-hearing conferences as
may be needed. All parties agree that the arbitrators and any counsel
of record to the proceeding shall have the power of subpoena process as
provided by Applicable Law.
9.2 FORCE MAJEURE. Notwithstanding any provision of this Agreement to
the contrary, no party hereto shall be liable to any other party hereto for
failure to perform any obligation under this Agreement if prevented from doing
so by reason of fires, strikes, labor unrest, inability to obtain labor,
materials, equipment or supplies, governmental restrictions, embargoes, civil
commotion, rationing or other orders
-10-
or requirements of Governmental Authorities, an unusual failure of
transportation, acts of military authorities, acts of terrorism, unusually
adverse weather conditions, acts of God or other contingencies, including
equipment failures, beyond the reasonable control of the parties, and all
requirements as to notice and other performance required hereunder within a
specified period shall be automatically extended to accommodate the period of
pendency of such contingency which shall interfere with such performance. A
force majeure event that prevents one party hereto from performing any
obligation under this Agreement shall not excuse the nonperformance of the other
party if such other party is not also subject to the force majeure event.
Notwithstanding the foregoing, no such cause shall excuse the timely payment of
money when due hereunder except as otherwise expressly provided in this
Agreement.
9.3 MANAGER AS INDEPENDENT CONTRACTOR. Manager shall serve as an
independent contractor in rendering the services herein, and nothing in this
Agreement shall be construed as establishing a partnership or joint venture
relationship by and among Manager and the Owners.
9.4 OTHER ACTIVITIES. Nothing in this Agreement shall limit or restrict
the right of Manager to engage in any other business or to devote its time and
attention to the management or other aspects of any other business or to render
services of any kind. Manager and its Affiliates may engage in or possess or
acquire an interest in other business ventures of any nature or description,
independently or with others, whether currently existing or hereafter created,
including the ownership, acquisition or operation of radio and television
stations, and the Owners shall not have any rights in or to such independent
ventures or the income or profits derived therefrom, provided that such
activities are not undertaken through or on behalf of the Owners.
9.5 NOTICES. All notices and other communications hereunder shall be in
writing and shall be deemed given when delivered personally or by facsimile
transmission (receipt confirmed telephonically), mailed by registered or
certified mail (postage prepaid, return receipt requested), or sent by
nationally recognized courier service to the parties at the following addresses
(or at such other address for a party as shall be specified by like notice):
If to Sunrise, to the independent members of Sunrise's Board
as constituted from time to time. Until notice is otherwise
provided by Sunrise to the contrary, such Board members are:
Dr. Xxxxxxx Xxxxxxxxxx
University of Texas at Austin
X.X. Xxx X
Xxxxxx, Xxxxx 00000
Facsimile No.: 000-000-0000
and
Xxxxxxx X. Xxxxxxxx, Xx.
000 Xxxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxx, Xxxxx 00000
Facsimile No.: 000-000-0000
-11-
With a copy (which shall not constitute notice) to:
Weil, Gotshal & Xxxxxx LLP
000 Xxxxxxxx Xxxxx, Xxxxx 0000
Xxxxxx, XX 00000
Attention: Xxxxxxx X. Xxxx, Esq.
Facsimile: 000-000-0000
If to STCB, to the independent members of STCB's Board as
constituted from time to time. Until notice is otherwise
provided by STCB to the contrary, such Board members are:
Dr. Xxxxxxx Xxxxxxxxxx
University of Texas at Austin
X.X. Xxx X
Xxxxxx, Xxxxx 00000
Facsimile No.: 000-000-0000
and
Xxxxxxx X. Xxxxxxxx, Xx.
000 Xxxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxx, Xxxxx 00000
Facsimile No.: 000-000-0000
With a copy (which shall not constitute notice) to:
Weil, Gotshal & Xxxxxx LLP
000 Xxxxxxxx Xxxxx, Xxxxx 0000
Xxxxxx, XX 00000
Attention: Xxxxxxx X. Xxxx, Esq.
Facsimile No.: 000-000-0000
If to Manager:
Xxxxx Broadcasting Group, Inc.
000 0xx Xxxxxx Xxxxx
Xx. Xxxxxxxxxx, Xxxxxxx 00000
Attention: Xxxxxx X. Xxxxx
Facsimile No.: 000-000-0000
With a copy (which shall not constitute notice) to:
Xxxxx & Xxxxxxx LLP
0000 Xxxxxxxxxx Xxxxx
XxXxxx, Xxxxxxxx 00000
Attention: Xxxxxxx X. Xxxxx, Xx., Esq.
Facsimile: 000-000-0000
9.6 BENEFIT AND BINDING EFFECT. No party hereto may assign this
Agreement without the prior written consent of the other parties except as
provided in the immediately following sentence. Manager shall have the right to
assign this Agreement without obtaining the consent of the other parties hereto
if such assignment is to a Subsidiary of Manager, provided that such assignment
shall not relieve Manager
-12-
of any of its obligations under this Agreement. This Agreement shall be binding
upon and inure to the benefit of the parties hereto and their respective
successors and permitted assigns.
9.7 GOVERNING LAW. This Agreement shall be governed by the laws of the
State of New York (without giving effect to the principles of conflicts of law).
9.8 ENTIRE AGREEMENT; AMENDMENTS. This Agreement represents the entire
understanding and agreement between the Owners and Manager with respect to the
specific subject matter hereof. This Agreement cannot be amended or modified
except by an agreement in writing which makes specific reference to this
Agreement and which is signed by the party against which enforcement of any such
amendment or modification is sought.
9.9 FURTHER ASSURANCES. The parties shall take any actions and execute
any other documents that may be necessary or desirable to the implementation and
consummation of this Agreement or that may be reasonably requested by any other
party hereto. Each party will cooperate with the other parties and provide any
assistance reasonably requested by any other party to effectuate the terms of
this Agreement.
9.10 SEVERABILITY. If any provision of this Agreement or the
application thereof to any Person or circumstance shall be held invalid or
unenforceable to any extent by any court of competent jurisdiction, the
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 Applicable Law.
9.11 COUNTERPARTS. This Agreement may be signed in counterparts, each
of which shall be deemed to be an original but which, when taken together, shall
constitute one and the same instrument. Facsimile signature pages of this
Agreement shall be valid and binding as original signatures and when the same
are delivered by each party to the other parties, such delivery shall be
considered an agreement of the respective parties to fully execute and deliver
to one another originally signed copies of this Agreement.
9.12 WAIVER. The waiver by the Owners or Manager of any breach of any
term, covenant or condition contained in this Agreement shall not be deemed to
be a waiver of any subsequent breach of the same or any other term, covenant or
condition contained herein. No covenant, term or condition of this Agreement
shall be deemed to have been waived by the Owners or Manager, unless such waiver
is in writing and is signed by the party against whom such waiver is asserted.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
-13-
IN WITNESS WHEREOF, this Management Services Agreement has been
executed by the parties hereto as of the date first above written.
SUNRISE TELEVISION CORP.
By: /s/ Xxxxx X. Xxxx
---------------------------
Name: Xxxxx X. Xxxx
Title: Executive Vice President and
Chief Financial Officer
STC BROADCASTING, INC.
By: /s/ Xxxxx X. Xxxx
---------------------------
Name: Xxxxx X. Xxxx
Title: Executive Vice President and
Chief Financial Officer
STC LICENSE COMPANY
By: /s/ Xxxxx X. Xxxx
---------------------------
Name: Xxxxx X. Xxxx
Title: Executive Vice President and
Chief Financial Officer
XXXXX BROADCASTING GROUP, INC.
By: /s/ Xxxxxx X. Xxxxx
-----------------------------------
Name: Xxxxxx X. Xxxxx
Title: President
Exhibit A
to
Management Services Agreement
List of Stations
KVLY-TV, Fargo, North Dakota
KFYR-TV, Bismarck, North Dakota
and the following three satellite stations of KFYR-TV:
KMOT-TV licensed to Minot, North Dakota
KUMV-TV licensed to Williston, North Dakota
KQCD-TV licensed to Dickinson, North Dakota
