TIME BROKERAGE AGREEMENT
by and among
XXXXXX XXXXXX LICENSE, INC.,
XXXXXX COMMUNICATIONS OF DAYTON-26, INC.
AND
ACME TELEVISION OF OHIO, L.L.C.
for
WDPX-TV
SPRINGFIELD, OHIO
* * *
APRIL 23, 1999
TABLE OF CONTENTS
Section 1. Sale of Station Air Time......................................1
1.1 Representations and Warranties.......................................1
1.2 Term.................................................................2
1.3 Scope................................................................2
1.4 Consideration........................................................2
1.5 Seller's Responsibilities............................................2
1.6 Programmer Responsibilities..........................................3
1.7 Contracts............................................................3
Section 2. Station Programming Policies..................................4
2.1 Licensee Authority...................................................4
2.2 Broadcast Station Programming Policy Statement.......................4
2.3 Public Service Programming...........................................5
2.4 Programmer Compliance with Copyright Act.............................5
2.5 Sales Expenses.......................................................5
2.6 Payola...............................................................5
2.7 Children's Television Advertising....................................5
2.8 Control of Station...................................................5
Section 3. Indemnification...............................................6
3.1 Programmer's Indemnification.........................................6
3.2 Seller's Indemnification.............................................6
3.3 Limitation...........................................................6
3.4 Procedure for Indemnification........................................6
3.5 Challenge to Agreement...............................................7
3.6 Survival Period......................................................7
Section 4. Access To Programmer Materials And Correspondence.............7
4.1 Confidential Review..................................................8
4.2 Political Advertising................................................8
Section 5. Termination And Remedies Upon Default.........................8
5.1 Termination..........................................................8
5.2 Force Majeure........................................................9
5.3 Other Agreements.....................................................9
Section 6. Miscellaneous.................................................9
6.1 Assignment...........................................................9
6.2 Call Letters.........................................................9
6.3 Counterparts........................................................10
6.4 Entire Agreement....................................................10
6.5 Taxes...............................................................10
6.6 Headings............................................................10
6.7 Governing Law.......................................................10
6.8 Consent to Jurisdiction.............................................10
6.9 Notices.............................................................10
6.10 Severability........................................................11
6.11 No Joint Venture....................................................11
6.12 Remedies............................................................11
6.13 Guaranty of ACME Television, LLC....................................12
TIME BROKERAGE AGREEMENT
THIS TIME BROKERAGE AGREEMENT (the "Agreement"), made this 23rd day of
April, 1999, by and among Xxxxxx Xxxxxx License, Inc., a Florida corporation
("Licensee"), Xxxxxx Communications of Dayton-26, Inc., a Florida corporation
("Dayton-26", and together with Licensee, collectively referred to herein as
"Sellers"), and ACME Television of Ohio, LLC, a Delaware limited liability
company ("Programmer").
WHEREAS, Licensee is the holder of a license issued by the Federal
Communications Commission ("FCC") for television station WDPX-TV, Channel 26,
Springfield, Ohio (the "Station"); and
WHEREAS, Sellers and Programmer have entered into an Asset Purchase
Agreement dated as of April ___, 1999 (the "Purchase Agreement"), pursuant to
which Sellers agree to sell to Programmer, and Programmer agrees to purchase
from Sellers, certain assets used or useful in the operation of the Station in
accordance with the terms of the Purchase Agreement; and
WHEREAS, in connection with the transactions contemplated by the Purchase
Agreement, Sellers and Programmer desire to enter into this Time Brokerage
Agreement, pursuant to which Programmer shall provide programming for broadcast
on the Station in accordance with the terms and conditions of this Agreement;
NOW, THEREFORE, in consideration of the above recitals and the mutual
promises and covenants contained herein, the parties, intending to be legally
bound, hereby agree as follows:
SECTION 1. SALE OF STATION AIR TIME
1.1. REPRESENTATIONS AND WARRANTIES.
a. BY SELLERS. Sellers represent to Programmer that (i) each has
all requisite corporate power and authority to execute and deliver this
Agreement and the documents contemplated hereby and to perform and comply with
all of the terms, covenants, and conditions to be performed and complied with by
Sellers hereunder, (ii) the execution, delivery, and performance by Sellers of
this Agreement and the documents contemplated hereby have been duly authorized
by all necessary corporate actions on the part of Sellers, (iii) this Agreement
has been duly executed and delivered by Sellers and constitutes the legal,
valid, and binding obligation of Sellers, enforceable against them in accordance
with its terms, except as the enforceability of this Agreement may be affected
by bankruptcy, insolvency, or similar laws affecting creditors' rights
generally, and by judicial discretion in the enforcement of equitable remedies,
and (iv) the execution, delivery, and performance by Sellers of this Agreement
and the documents contemplated hereby (with or without the giving of notice, the
lapse of time, or both): (x) do not require the consent of any third party, (y)
will not conflict with any provision of the organizational documents of Sellers;
and (z) will not conflict with, constitute grounds for termination of, result in
a breach of, or constitute a default under, any material agreement, instrument,
license, or permit to which either Seller is a party or by which either Seller
may be bound.
b. BY PROGRAMMER. Programmer represents to Sellers that (i) it
has all requisite limited liability company power and authority to execute and
deliver this Agreement and the documents contemplated hereby and to perform and
comply with all of the terms, covenants, and conditions to be performed and
complied with by Programmer hereunder, (ii) the execution, delivery, and
performance by Programmer of this Agreement and the documents contemplated
hereby have been duly authorized by all necessary actions on the part of
Programmer, (iii) this Agreement has been duly executed and delivered by
Programmer and constitutes the legal, valid, and binding obligation of
Programmer, enforceable against Programmer in accordance with its terms, except
as the enforceability of this Agreement may be affected by bankruptcy,
insolvency, or similar laws affecting creditors' rights generally, and by
judicial discretion in the enforcement of equitable remedies, and (iv) the
execution, delivery, and performance by Programmer of this Agreement and the
documents contemplated hereby (with or without the giving of notice, the lapse
of time, or both): (x) do not require the consent of any third party, (y) will
not conflict with any provision of the organizational documents of Programmer;
and (z) will not conflict with, constitute grounds for termination of, result in
a breach of, or constitute a default under, any material agreement, instrument,
license, or permit to which Programmer is a party or by which it may be bound.
1.2. TERM. The term of this Agreement (the "Term") shall commence at
12:01 a.m. on June 2, 1999 (the "Effective Date") and shall continue in force
for a period of ten (10) years from such date unless otherwise terminated as set
forth below.
1.3. SCOPE. On the Effective Date, Sellers shall make the Station's
facilities available to Programmer for the broadcast of programming (including
advertising) for broadcast on the Station 147 hours per week: provided, that
Sellers shall be entitled to broadcast prime time programming provided in
accordance with the Station's Affiliation Agreement with the PAX TV Network for
a continuous 3-hour period selected by Programmer between 9:00 a.m. and 3:00
p.m. Monday through Friday and between midnight and 3:00 a.m., Saturday and
Sunday.
1.4. CONSIDERATION. Programmer shall be entitled to retain any and all
revenue generated from the sale of advertising time in conjunction with
programming broadcast on the Station, including all revenue from Programmer's
sale of advertising time allocated to Programmer during the 3-hour block of PAX
TV Network programming as set forth in Attachment I annexed hereto: provided,
that Sellers shall retain any and all revenue from the sale of network,
national, and regional advertising time sold in conjunction with the PAX TV
Network programming broadcast on the Station in accordance with paragraph 1.3 of
this Agreement.
1.5. SELLER'S RESPONSIBILITIES.
Sellers will have full authority, power and control over the
management and operations of the Station during the Term of this Agreement.
Licensee will bear sole responsibility for the Station's compliance with all
applicable provisions of the Communications Act of 1934, as amended, (the
"Act"), the rules, regulations and policies of the FCC, and all other applicable
laws and regulations. Licensee shall be solely responsible for and timely pay
all operating costs of the Station (except those for which a good faith dispute
has been raised with the vendor or taxing authority), including but not limited
to maintenance of the studio and transmitting facility and costs of electricity.
Licensee shall employ at its expense (a) a general manager who will direct the
day-to-day operations of the Station, (b) at least one non-management level
employee, as required by the FCC, and (c) other personnel as may be necessary
for the broadcast transmission of Sellers' own programs. Subject to Section
1.6(b) below, Licensee shall be responsible for the salaries, taxes, insurance
and all other related costs and expenses for all Station personnel employed by
the Licensee. Whenever on the Station's premises, all personnel, including
Programmer's employees and agents, shall be subject to the overall supervision
of Licensee's general manager.
1.6. PROGRAMMER RESPONSIBILITIES.
a. Programmer shall be solely responsible for any expenses
incurred in the origination and/or delivery of programming provided by
Programmer under this Agreement, including but not limited to maintenance of any
remote location and ASCAP and BMI music license fees. Programmer shall employ
and be solely responsible for the salaries, commissions, taxes, insurance and
all other related costs and expenses for all personnel involved in the
production and broadcast of its programs (including but not limited to on-air
personalities, engineering personnel, sales personnel, traffic personnel, board
operators and other programmers and production staff members).
b. In addition to the payments required under subsection (a) of
this section, Programmer shall reimburse Sellers for all reasonable and
necessary Station expenses incurred by Sellers in the operation of the Station,
including those identified in Attachment I. Such payment will be made once a
month within ten (10) business days after Programmer's receipt of invoices and
other documentation reflecting Sellers' expenses in the prior month: provided,
that Sellers and Programmer may at any time establish a schedule of payments to
be made by Programmer to Sellers on a specified date each month to cover routine
expenses which are incurred each month. To the extent there is any dispute as to
whether an expense should be reimbursed by Programmer under this subsection, the
parties shall engage in good faith discussions to resolve such dispute. If such
dispute can not be resolved within 30 days after Sellers' presentation of an
invoice for reimbursement, the parties shall refer the matter to a mutually
agreeable third party (such as a certified public accountant or a qualified
appraiser of broadcast properties) whose decision shall be final and binding. A
dispute over any particular item or items shall not relieve Programmer of its
responsibility under this subsection to make a timely payment to Sellers of
those items which are not in dispute. Any payments required to be made by
Programmer under this subsection that are not paid when due shall bear interest
at the rate of 12 percent per annum from the date due until paid in full.
c. During the 30-day period prior to June 2, 1999, the Station
shall broadcast five (5) 30-second promotional announcements per day to promote
the broadcast of the PAX TV Network programming during the times specified in
Section 1.3 hereof and the commencement of the programming to be broadcast on
the Station by Programmer as provided in such section.
1.7. CONTRACTS. Programmer will not enter into any third-party
contract, lease or agreement that will bind Licensee in any way.
SECTION 2. STATION PROGRAMMING POLICIES
2.1. LICENSEE AUTHORITY. Notwithstanding any other provision of this
Agreement, Licensee shall retain ultimate responsibility to broadcast
programming to meet the needs and interests of viewers in the Station's service
area. Licensee therefore retains the right to broadcast specific programming on
issues of importance to the service area. Licensee shall also retain the right
to interrupt Programmer's programming in case of an emergency or for programming
which, in the good faith judgment of Licensee, is of greater local, regional or
national public importance. Licensee shall also coordinate with Programmer the
Station's hourly Station identification and any other announcements required to
be aired by FCC rules. Licensee shall continue to maintain a main studio, as
that term is defined by the FCC, within the Station's principal community
contour, shall maintain its local public inspection file in accordance with FCC
rules, regulations and policies, and shall prepare and place in such inspection
file or files in a timely manner all material required by Section 73.3526 of the
FCC's rules, including without limitation the Station's quarterly issues and
program lists and Children's Television Programming Reports. Programmer shall,
upon request by Licensee, provide Licensee with such information concerning
Programmer's programs and advertising as is necessary to assist Licensee in the
preparation of such material. Licensee shall also maintain the Station's logs,
receive and respond to telephone inquiries, and control and oversee any remote
control point which may be established for the Station.
2.2. BROADCAST STATION PROGRAMMING POLICY STATEMENT. Licensee's
Broadcast Station Programming Policy Statement (the "Policy Statement"), a copy
of which is annexed hereto as Attachment II, may be amended in a reasonable
manner from time to time by Licensee upon notice to Programmer. Programmer shall
comply in all material respects with the Policy Statement, with all rules and
policies of the FCC, and with all changes subsequently made by Licensee or the
FCC in any of the foregoing: provided, that no breach of the provisions of such
Policy Statement or the FCC rules and policies by Programmer shall be a cause
for termination of this Agreement unless such breach or a series of such
breaches would reasonably be expected to cause revocation or non-renewal of the
Station's FCC Licenses. Licensee's recourse for any other breach of Programmer's
obligation in the preceding sentence shall be limited to (a) recovery of
Damages, as defined below, suffered by Licensee with respect thereto and (b)
Programmer's immediate discontinuance and, if applicable, cure of any such
breach. Programmer shall furnish or cause to be furnished the artistic personnel
and material for the programs as provided by this Agreement and all programs
shall be prepared and presented in conformity with the rules, regulations and
policies of the FCC and with the Policy Statement. All advertising spots and
promotional material or announcements shall comply with applicable federal,
state and local regulations and policies and shall be produced in accordance
with quality standards established by Programmer. If Licensee determines, in the
exercise of Licensee's sole discretion, that any broadcast material supplied by
Programmer is for any reason unsatisfactory, unsuitable or contrary to the
public interest, or does not comply with the Policy Statement, Licensee may,
upon prior written notice to Programmer (to the extent time permits such
notice), suspend or cancel the broadcast of such material without incurring
liability to Programmer. Licensee will use reasonable efforts to provide such
written notice to Programmer prior to the suspension or cancellation of such
material. Programmer shall use reasonable efforts to notify Licensee 24 hours in
advance of material changes in the programming provided by Programmer for
broadcast on the Station.
2.3. PUBLIC SERVICE PROGRAMMING. Programmer shall cooperate as
reasonably directed by Licensee to help Licensee
ensure the broadcast of programming responsive to the
needs and interests of the Station's service area in compliance with applicable
FCC requirements. Programmer shall also provide Licensee upon reasonable request
such other information necessary to enable Licensee to prepare records and
reports required by the Commission or other local, state or federal government
entities.
2.4. PROGRAMMER COMPLIANCE WITH COPYRIGHT ACT. Programmer represents
and warrants to Licensee that Programmer has full authority to broadcast its
programming on the Station and that Programmer shall not broadcast any material
in violation of the Copyright Act. All music supplied by Programmer shall be:
(a) licensed by ASCAP, SESAC or BMI; (b) in the public domain; or (c) cleared at
the source by Programmer. Licensee will maintain ASCAP, BMI and SESAC licenses
as necessary. The right to use programming supplied by Programmer and to
authorize its use in any manner shall be and remain vested in Programmer.
2.5. SALES EXPENSES. Programmer shall be responsible for payment of all
expenses attributable to Programmer's sale of advertising time on the Station,
including, but not limited to, commissions due to any national sales
representative engaged by it for the purpose of selling national advertising
which is carried during the programming it provides to Licensee.
2.6. PAYOLA. Programmer agrees that it and its employees will not
accept any consideration, compensation, gift or gratuity of any kind whatsoever,
regardless of its value or form, including, but not limited to, a commission,
discount, bonus, material, supplies or other merchandise, services or labor
(collectively "Consideration"), whether or not pursuant to written contracts or
agreements between Programmer and merchants or advertisers, unless the payer is
identified in the program for which Consideration was provided as having paid
for or furnished such Consideration, in accordance with the Act and FCC
requirements. Programmer agrees to annually, or more frequently at the request
of the Licensee, execute and provide Licensee with a Payola Affidavit from each
of its employees involved with the Station substantially in the form attached
hereto as Attachment III.
2.7. CHILDREN'S TELEVISION PROGRAMMING AND ADVERTISING. Programmer (a)
shall, subject to Licensee's ultimate responsibility and supervision, arrange
for the broadcast of programming on the Station necessary to comply with the FCC
children's programming requirements (b) will not broadcast advertising within
programs originally designed for children aged 12 years and under in excess of
the amounts permitted under applicable FCC rules and (c) will take all steps
necessary to pre-screen children's programming broadcast during the hours it is
providing such programming to ensure that advertising is not being broadcast in
excess of the applicable FCC rules.
2.8. CONTROL OF THE STATION. Programmer shall not, directly or
indirectly, control, supervise, direct, or attempt to control, supervise, or
direct, the operations of the Station. Such operations, including complete
control and supervision of all of the programs, employees, and policies of the
Station, shall be the sole responsibility of Sellers until the termination of
this Agreement. To ensure that Licensee shall have the unfettered ability to
control and supervise all programs, employees and policies of the Station,
Licensee shall be permitted unrestricted access to and the right to use at all
times the Station's transmitter and studio facilities. In performing its
responsibilities hereunder, Licensee shall use all commercially reasonable
efforts to avoid interfering with Programmer's operations.
SECTION 3. INDEMNIFICATION.
3.1. PROGRAMMER'S INDEMNIFICATION. Programmer shall indemnify and hold
Sellers harmless from and against any and all claims, losses, costs,
liabilities, damages, forfeitures and expenses (including reasonable legal fees
and other expenses incidental thereto) of every kind, nature and description
(collectively, "Damages") resulting from (i) Programmer's breach of any
representation, warranty, covenant or agreement contained in this Agreement,
(ii) Programmer's negligence or willful misconduct or the negligence or willful
misconduct of its employees or agents, and (iii) Damages relating to violations
of the Copyright Act, the Act or any rule, regulation or policy of the FCC,
forfeitures imposed by the FCC, slander, defamation or other third-party claims
relating to programming provided by Programmer and Programmer's broadcast and
sale of advertising time on the Station.
3.2. SELLER'S INDEMNIFICATION. Seller shall indemnify and hold
Programmer harmless from and against any and all Damages resulting from (i)
Seller's breach of any representation, warranty, covenant or agreement contained
in this Agreement, (ii) Seller's negligence or willful misconduct or the
negligence or willful misconduct of its employees or agents, and (iii) Damages
relating to violations of the Copyright Act, the Act or any rule, regulation or
policy of the FCC, forfeitures imposed by the FCC, slander, defamation or other
third-party claims relating to programming provided by Seller and Seller's
broadcast and sale of advertising time on the Station.
3.3. LIMITATION. Neither Sellers nor Programmer shall be entitled to
indemnification pursuant to this section unless such claim for indemnification
is asserted in writing delivered to the other party within the time frame set
forth in Section 3.6.
3.4. PROCEDURE FOR INDEMNIFICATION. The procedure for indemnification
shall be as follows:
a. The party claiming indemnification (the "Claimant") shall
promptly give written notice to the party from which indemnification is claimed
(the "Indemnifying Party") of any claim, whether between the parties or brought
by a third party, specifying in reasonable detail the factual basis for the
claim. If the claim relates to an action, suit, or proceeding filed by a third
party against Claimant, such notice shall be given by Claimant no later than ten
(10) business days after written notice of such action, suit, or proceeding was
given to Claimant: provided that the failure to timely give notice shall not
extinguish the Claimant's right to indemnification unless such failure
materially adversely affects the Indemnifying Party's rights.
b. With respect to claims solely between the parties, following
receipt of notice from the Claimant of a claim, the Indemnifying Party shall
have thirty (30) days to make such investigation of the claim as the
Indemnifying Party deems necessary or desirable. For the purposes of such
investigation, the Claimant agrees to make available to the Indemnifying Party
or its authorized representatives the information relied upon by the Claimant to
substantiate the claim. If the Claimant and the Indemnifying Party agree in
writing at or prior to the expiration of the thirty-day period (or any mutually
agreed upon extension thereof) to the validity and amount of such claim, the
Indemnifying Party shall immediately pay to the Claimant the full amount of the
claim or such amount as agreed to by the parties. If the Claimant and the
Indemnifying Party do not agree within the 30-day period (or any mutually agreed
upon extension thereof), the Claimant may seek any remedy available to it at law
or equity.
c. With respect to any claim by a third party as to which the
Claimant is entitled to indemnification under this Agreement, the Indemnifying
Party shall have the right, at its own expense, to assume control of the defense
of such claim, and the Claimant shall cooperate fully with the Indemnifying
Party, subject to reimbursement for actual out-of-pocket expenses incurred by
the Claimant as the result of a request by the Indemnifying Party. If the
Indemnifying Party elects to assume control of the defense of any third-party
claim, the Claimant shall have the right to participate in the defense of such
claim at its own expense. If the Indemnifying Party does not assume control, it
shall be bound by the results obtained by the Claimant with respect to such
claim: provided, that the Claimant shall not settle any third party claim
without first giving the Indemnifying Party ten (10) business days' prior notice
of the terms of such settlement.
d. If a claim, whether between the parties or by a third party,
requires immediate action, the parties will make every commercially reasonable
effort to reach a decision with respect thereto as expeditiously as possible.
e. The indemnification rights provided herein shall extend to the
shareholders, directors, officers, employees, representatives and successors and
assigns of any Claimant although for the purpose of the procedures set forth in
this Section 3.4, any indemnification claims by such parties shall be made by
and through the Claimant.
3.5. CHALLENGE TO AGREEMENT. Subject to the terms of Section 6.10, if
this Agreement is challenged by or before the FCC, whether or not in connection
with the Station's license renewal application, counsel for the Licensee and
counsel for the Programmer shall jointly defend this Agreement and the parties'
performance hereunder throughout all FCC proceedings. Each party shall bear any
and all expenses incurred by it for such defense, including counsel fees. If the
parties cannot reform this Agreement as necessary to satisfy any adverse FCC
decision, the parties shall seek reversal of the FCC's decision and approval
from the full Commission.
3.6. SURVIVAL PERIOD. The representations and warranties of the parties
under this Agreement shall survive for a period of one (1) year after
termination of this Agreement in accordance with its terms. Any claim for
indemnification under this section must be made on or before expiration of that
one-year period.
SECTION 4. ACCESS TO PROGRAMMER MATERIALS AND CORRESPONDENCE
4.1. CONFIDENTIAL REVIEW. Licensee shall be entitled to review at its
discretion from time to time on a confidential basis any of Programmer's
programming material it may reasonably request. Programmer shall promptly
provide Licensee with copies of all correspondence and complaints received from
the public (including any telephone logs of complaints called in) and copies of
all program logs and promotional materials. However, nothing in this section
shall entitle Licensee to review the internal corporate or financial records of
the Programmer.
4.2. POLITICAL ADVERTISING. Programmer shall assist Licensee in
complying with all rules of the FCC regarding political broadcasting. Licensee
shall promptly supply to Programmer, and Programmer shall promptly supply to
Licensee, such information, including all inquiries concerning the
broadcast of political advertising, as may be necessary to comply
with FCC rules and policies, including the lowest unit rate, equal
opportunities, reasonable access, political file and related requirements of
applicable law. Licensee, in consultation with Programmer, shall develop a
statement which discloses its political broadcasting rates and policies to
political candidates, and Programmer shall follow those rates and policies in
the sale of political programming and advertising. In the event that Programmer
fails to satisfy the political broadcasting requirements under the Act and the
rules of the FCC, then, to the extent reasonably necessary to assure compliance
with such requirements and rules, Programmer shall either provide rebates to
political advertisers or release broadcast time and/or advertising
availabilities to Licensee at no cost to Licensee for use by the affected
political candidates.
SECTION 5. TERMINATION AND REMEDIES UPON DEFAULT
5.1. TERMINATION.
a. This Agreement may be terminated as set forth below by either
Sellers or Programmer by written notice to the other, if the party seeking to
terminate is not then in material default or material breach hereof, upon the
occurrence of any of the following:
(i) subject to the provisions of Section 6.10, this
Agreement is declared invalid or illegal in whole or substantial part by an
order or decree of an administrative agency or court of competent jurisdiction
and such order or decree has become final and no longer subject to further
administrative or judicial reconsideration or review;
(ii) By Sellers, if Programmer has committed a material
breach or a series of material breaches of the Policy Statement or an FCC rule,
regulation or policy which would reasonably be expected to cause revocation or
nonrenewal of the Station's license.
(iii) By Programmer, if either of Sellers is in material
breach of its obligations under this Agreement and has failed to cure such
breach within thirty (30) days of notice from Programmer;
(iv) the mutual consent of both parties;
(v) a material change in FCC rules, policies or precedent
that would cause this Agreement to be in violation thereof, and (x) such change
is in effect and not the subject of an appeal or further administrative
reconsideration or review and (y) this Agreement cannot be reformed, in a manner
reasonably acceptable to Programmer and Licensee, to remove and/or eliminate the
violation: provided, that, in the event the Agreement is terminated pursuant to
this paragraph, Licensee shall accommodate any reasonable request by Programmer,
at Programmer's sole expense, to provide Programmer with the benefit of the
bargain reflected in this Agreement; or
(vi) upon the sale of the Station to Programmer.
b. During any period prior to the effective date of any
termination of this Agreement, Programmer and Licensee shall cooperate in good
faith to ensure that Station's operations will continue, to the extent feasible,
in accordance with the terms of this Agreement and in a manner that will
minimize, to the extent feasible, the resulting disruption of the Station's
ongoing operations.
5.2. FORCE MAJEURE. Any failure or impairment of the Station's
facilities or any delay or interruption in the broadcast of programs, or failure
at any time to furnish facilities, in whole or in part, for broadcast, due to
Acts of God, strikes, lockouts, material or labor restrictions by any
governmental authority, civil riot, floods and any other cause not reasonably
within the control of Licensee, or for power reductions necessitated for
maintenance of the Station or for maintenance of other radio or television
broadcast stations located on the tower from which the Station is broadcasting,
shall not constitute a breach of this Agreement, and Licensee will not be liable
to Programmer for reimbursement or reduction of the consideration owed to
Licensee.
5.3. OTHER AGREEMENTS. During the term of this Agreement, neither
Licensee nor Programmer will enter into any other agreement with any third party
that would conflict with or result in breach of this Agreement by Licensee or
Programmer.
SECTION 6. MISCELLANEOUS.
6.1. ASSIGNMENT.
a. This Agreement shall be binding upon and inure to the benefit
of the parties hereto and their respective successors and permitted assigns.
b. Neither this Agreement nor any of the rights, interests
or obligations of either party hereunder shall be assigned, encumbered,
hypothecated or otherwise transferred without the prior written consent of the
other party: provided, that Programmer may assign its rights and obligations
under this Agreement at any time to any subsidiary of Programmer or to any other
party under common control with Programmer; provided further, that Programmer
may assign its rights and obligations under this Agreement at any time after the
First Closing, as that term is defined in the Purchase Agreement, in conjunction
with Programmer's assignment of its rights and obligations under the Purchase
Agreement with respect to the Station in accordance with the assignment
provision thereof; and, provided further, that Licensee shall use commercially
reasonable efforts to cooperate with Programmer to effectuate such assignment.
No such assignment shall relieve ACME Television, LLC of its obligations under
Section 6.13 hereof.
c. Notwithstanding anything to the contrary in this Section,
Sellers shall, simultaneous with the execution of this Agreement, execute a
consent to Conditional Assignment by Programmer of its rights hereunder to
Programmer's lenders.
6.2. CALL LETTERS. Upon request of Programmer, subject to the consent
of the Licensee ( which shall not be unreasonably withheld), Licensee shall
apply to the FCC for authority to change the call letters of the Station (with
the consent of the FCC) to such call letters that Programmer shall reasonably
designate, and Licensee shall be free to seek FCC approval for assignment of the
Station's current call letters to another Station licensed to any affiliate of
Sellers. Licensee must coordinate with Programmer any such proposed changes to
the call letters of the Station before taking any action to change such letters.
6.3. COUNTERPARTS. This Agreement may be executed in one or more
counterparts, each of which will be deemed an original but all of which together
will constitute one and the same instrument.
6.4. ENTIRE AGREEMENT. This Agreement (including the Attachments hereto
and the other agreements referenced herein) embody the entire agreement and
understanding of the parties relating to the operation of the Station and
supersede any and all prior and contemporaneous agreements and understandings of
the parties. No amendment, waiver of compliance with any provision or condition
hereof, or consent pursuant to this Agreement will be effective unless evidenced
by an instrument in writing signed by the parties.
6.5. TAXES. Licensee and Programmer shall each pay its own ad valorem
taxes, if any, which may be assessed on such party's respective personal
property for the periods that such items are owned by such party.
6.6. HEADINGS. The headings are for convenience only and will not
control or affect the meaning or construction of the provisions of this
Agreement.
6.7. GOVERNING LAW. The obligations of Licensee and Programmer are
subject to applicable federal, state and local law, rules and regulations,
including, but not limited to, the Act and the rules and policies of the FCC.
The construction and performance of the Agreement will be governed by the laws
of the State of Delaware without regard to conflict of law principles.
6.8. CONSENT TO JURISDICTION. Each of the parties hereto irrevocably
submits to the exclusive jurisdiction of the United States District Court for
the District of Delaware and the Supreme Court of New Castle County, Delaware
and/or Chancery Court of New Castle County, Delaware for the purposes of any
suit, action or other proceeding arising out of this Agreement or any
transaction contemplated hereby. Each of the parties hereto agrees, subject to
compliance with applicable rules of procedure, to commence any action, suit or
proceeding relating hereto in the United States District Court for the District
of Delaware (unless venue or jurisdiction restrictions preclude resort to that
court, and, in that event, resort shall be had to the Supreme Court of New
Castle County, Delaware and/or Chancery Court of New Castle County, Delaware ).
Each of the parties hereto further agrees that service of any process, summons,
notice or document by certified mail-return receipt requested to such party's
respective address set forth above shall be effective service of process for any
action, suit or proceeding in the State of Delaware with respect to any matters
to which it has submitted to jurisdiction in this section. Each of the parties
hereto irrevocably and unconditionally waives any objection to the laying of
venue of any action, suit or proceeding arising out of this Agreement or the
transactions contemplated hereby in (a) the Supreme Court of New Castle County,
Delaware and/or Chancery Court of New Castle County, Delaware or (b) the United
States District Court for the District of Delaware, and hereby further
irrevocably and unconditionally waives and agrees not to plead or claim in any
such court that any such action, suit or proceeding in any such court has been
brought in an inconvenient form.
6.9. NOTICES. All notices, demands and requests required or permitted
to be given under the provisions of this Agreement shall be (a) in writing, (b)
delivered by personal delivery, or sent by commercial overnight delivery service
or certified mail return receipt requested, (c) deemed to have been given on the
date of personal delivery, or the date set forth in the records of the delivery
service or on the return receipt, and (d) addressed as follows:
To Programmer: ACME Television of Ohio, L.L.C.
Suite 202
00000 Xxxxx Xxxxxxxxx
Xx. Xxxxx, XX 00000
Attention: Xxxxxxx Xxxxx
With copy to Xxxxx X. Paper, Esquire
Xxxxxxxxx Xxxxxxx Xxxxx & Xxxxxxxx, L.L.P.
0000 X Xxxxxx, X.X.
Xxxxxxxxxx, X.X. 00000
To Licensee: Xxxxxx Xxxxxx License, Inc.
000 Xxxxxxxxxx Xxxx Xxxx
Xxxx Xxxx Xxxxx, Xxxxxxx 00000
Attention: Xx. Xxxxxx X. Xxxxxx
With copy to: Xxxx X. Xxxxx, Xx., Esquire
Dow, Xxxxxx & Xxxxxxxxx, PLLC
0000 Xxx Xxxxxxxxx Xxxxxx, X.X.
Xxxxx 000
Xxxxxxxxxx, X.X. 00000
6.10. SEVERABILITY. If any provision of this Agreement or the
application thereof to any person or circumstances shall be invalid or
unenforceable to any extent, the remainder of this Agreement and the application
of such provision to other persons or circumstances shall not be affected
thereby and shall be enforced to the greatest extent permitted by law. In the
event that the FCC raises a substantial and material question as to the validity
of any provision of this Agreement, the parties hereto shall negotiate in good
faith to revise any such provision of this Agreement with a view toward assuring
compliance with all then existing FCC rules and policies which may be
applicable, while attempting to preserve, as closely as possible, the intent of
the parties as embodied in the provision of this Agreement which is to be so
modified.
6.11. NO JOINT VENTURE. Nothing in this Agreement shall be deemed to
create a joint venture between the Sellers and the Programmer.
6.12. REMEDIES. In the event that either party breaches or threatens to
breach any provision of this Agreement, the other party shall be entitled to
seek any remedy available at law or equity, including, if appropriate, specific
performance. Notwithstanding anything to the contrary in this Agreement, the
remedy of specific performance will be available to Sellers for any breach or
threatened breach by Programmer of Programmer's obligations under Section 2.2
and the proviso in Section 1.3 of this Agreement. If Sellers do seek specific
performance for an actual or threatened breach of such obligations, Programmer
shall waive the defense that Sellers have an adequate remedy at law. If any
party institutes litigation to enforce its rights under this Agreement, the
prevailing party or parties shall be reimbursed by the other party or parties
for all reasonable expenses incurred thereby, including reasonable attorney's
fees.
6.13. GUARANTY OF ACME TELEVISION, LLC.
a. ACME Television, LLC ("ACME") irrevocably guarantees, as
principal and not as surety, to Sellers, the full and prompt performance by
Programmer of all of its obligations under this Agreement. The foregoing
guaranty (the "ACME Guaranty") shall apply and survive until all obligations of
Programmer under this Agreement are performed and satisfied in accordance with
the terms hereof and thereof.
b. ACME hereby represents and warrants to Sellers as follows:
(i) ACME is a limited liability company duly organized, validly existing and in
good standing under the laws of the State of Delaware and has the requisite
limited liability company power and authority to execute, deliver and perform
this ACME Guaranty according to its terms; (ii) the execution, delivery and
performance of this ACME Guaranty and the consummation of the of the
transactions contemplated hereby by ACME have been duly authorized by all
necessary limited liability company action on the part of ACME; (iii) this ACME
Guaranty has been duly executed and delivered by ACME and constitutes the legal,
valid and binding obligation of ACME, enforceable against ACME in accordance
with its terms, except as the enforceability of this ACME Guaranty may be
affected by bankruptcy, insolvency or similar laws affecting creditors' rights
generally and by judicial discretion in the enforcement of equitable remedies;
and (iv) the execution, delivery and performance of this ACME Guaranty (1) do
not require the consent of any third party, (2) do not conflict with the
Operating Agreement or Certificate of ACME, and (3) do not conflict in any
material respect with, result in a material breach of, or constitute a material
default under any law, judgment, order, ordinance, injunction, decree, rule,
regulation or ruling of any court or governmental authority applicable to ACME
or any material contract or agreement to which ACME is a party or by which ACME
may be bound.
[THE REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK]
IN WITNESS WHEREOF, the parties hereto have executed this Time Brokerage
Agreement the day and year first above written.
XXXXXX XXXXXX LICENSE, INC.
By: /s/ Xxxxxxx X. Xxxxxx
--------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Secretary
XXXXXX COMMUNICATIONS OF DAYTON-26, INC.
By:/s/ Xxxxxxx X. Xxxxxx
---------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Secretary
ACME TELEVISION OF OHIO, L.L.C.
By:/s/ Xxxxxx X. Xxxxx
---------------------------------------
Name:
Title:
ATTACHMENT I
STATION EXPENSES & OPERATIONS
Licensee shall be responsible for payment of the following reasonable and
necessary Station expenses incurred in the ordinary course of business:
(1) Tower Lease Rent and Utility Payments
(2) Property Insurance and Taxes
(3) Fees Payable to Governmental Authorities
(4) Administrative Expenses
(5) Equipment Maintenance and Repair
(6) Microwave Relay and Fiber Lease Expenses
(7) Salaries and Benefits for Employees (including master control operators)
(8) All payments pursuant to this Agreement shall be made
by delivery of a check by overnight courier to
Sellers at the address set forth in Section 6.9. Any
amount that is payable on a Saturday, Sunday or
public holiday shall be made on the next succeeding
business day.
In addition to any other rights to sell time set forth in the
Agreement, Programmer shall be entitled to sell 6 minutes of local advertising
time to advertisers for 6 minutes per hour during each 3-hour block of PAX TV
Network programming (although Programmer shall be permitted to sell such time to
any local, regional or national advertiser).
___________________________
*Programmer shall have no obligation to reimburse Licensee for corporate
overhead expenses or salaries or benefits payable to employees for work
performed on any station other than the Station.
ATTACHMENT II
BROADCAST STATION PROGRAMMING POLICY STATEMENT
BROADCAST STATION PROGRAMMING POLICY STATEMENT
The following sets forth the policies generally applicable to the
presentation of programming and advertising over WDPX-TV, Channel 26,
Sprinfield, Ohio. All programming and advertising broadcast by the station must
conform to these policies and to the provisions of the Communications Act of
1934, as amended [the "Act"], and the Rules and Regulations of the Federal
Communications Commission ["FCC"].
STATION IDENTIFICATION
The station must broadcast a station identification announcement once an hour as
close to the hour as feasible in a natural break in the programming. The
announcement must include (1) the station's call letters; followed immediately
by (2) the station's city of license.
BROADCAST OF TELEPHONE CONVERSATIONS
Before recording a telephone conversation for broadcast or broadcasting such a
conversation simultaneously with its occurrence, any party to the call must be
informed that the call will be broadcast or will be recorded for later
broadcast, and the party's consent to such broadcast must be obtained. This
requirement does not apply to calls initiated by the other party which are made
in a context in which it is customary for the station to broadcast telephone
calls.
SPONSORSHIP IDENTIFICATION
When money, service, or other valuable consideration is either directly or
indirectly paid or promised as part of an arrangement to transmit any
programming, the station at the time of broadcast shall announce (1) that the
matter is sponsored, either whole or in part; and (2) by whom or on whose behalf
the matter is sponsored. Products or services furnished to the station in
consideration for an identification of any person, product, service, trademark
or brand name shall be identified in this manner.
In the case of any political or controversial issue broadcast for which any
material or service is furnished as an inducement for its transmission, an
announcement shall be made at the beginning and conclusion of the broadcast
stating (1) the material or service that has been furnished; and (2) the
person(s) or association(s) on whose behalf the programming is transmitted.
However, if the broadcast is 5 minutes duration or less, the required
announcement need only be made either at its beginning or end.
Prior to any sponsored broadcast involving political matters or controversial
issues, the station shall obtain a list of the chief executive officers, members
of the executive committee or board of directors of the sponsoring organization
and shall place this list in the station's public inspection file.
PAYOLA/PLUGOLA
The station, its personnel, or its programmers shall not accept or agree
to accept from any person any money, service, or other valuable
consideration for the broadcast of any matter unless such fact is
disclosed to the station so that all required station identification
announcements can be made. All persons responsible for station programming must,
from time to time, execute such documents as may be required by station
management to confirm their understanding of and compliance with the FCC's
sponsorship identification requirements.
REBROADCASTS
The station shall not rebroadcast the signal of any other broadcast station
without first obtaining such station's prior written consent to such
rebroadcast.
PERSONAL ATTACKS
The station shall not air attacks upon the honesty, character, integrity or like
personal qualities of any identified person or group. If such an attack should
nonetheless occur during the presentation of views on a controversial issue of
public importance, those responsible for programming shall submit a tape or
transcript of the broadcast to station management and to the person attacked
within 48 hours, and shall offer the person attacked a reasonable opportunity to
respond.
POLITICAL EDITORIALS
Unless specifically authorized by station management, the station shall not air
any editorial which either endorses or opposes a legally qualified candidate for
public office.
CHILDREN'S PROGRAMMING
The station shall broadcast requisite amounts of educational and informational
programming designed to further the positive development of children aged 16
years and younger.
POLITICAL BROADCASTING
All "uses" of the station by legally qualified candidates for elective office
shall be in accordance with the Act and the FCC's Rules and policies, including
without limitation, equal opportunities requirements, reasonable access
requirements, lowest unit charge requirements and similar rules and regulations.
OBSCENITY AND INDECENCY
The station shall not broadcast any obscene material. Material is deemed to be
obscene if the average person, applying contemporary community standards in the
local community, would find that the material, taken as a whole, appeals to the
prurient interest; depicts or describes in a patently offensive way sexual
conduct specifically defined by applicable state law; and taken as a whole,
lacks serious literary artistic, political or scientific value.
The station shall not broadcast any indecent material outside of the periods of
time prescribed by the Commission. Material is deemed to be indecent if it
includes language or material that, in context, depicts or describes, in terms
patently offensive as measured by contemporary community standards for the
broadcast medium, sexual or excretory activities or organs.
BILLING
No entity which sells advertising for airing on the station shall knowingly
issue any xxxx, invoice or other document which contains false information
concerning the amount charged or the broadcast of advertising which is the
subject of the xxxx or invoice. No entity which sells advertising for airing on
the station shall misrepresent the nature or content of aired advertising, nor
the quantity, time of day, or day on which such advertising was broadcast.
CONTESTS
Any contests conducted on the station shall be conducted substantially as
announced or advertised and in compliance with State law with respect thereto.
Advertisements or announcements concerning such contests shall fully and
accurately disclose the contest's material terms. No contest description shall
be false, misleading or deceptive with respect to any material term.
HOAXES
The station shall not knowingly broadcast false information concerning a crime
or catastrophe.
EMERGENCY INFORMATION
Any emergency information which is broadcast by the station shall be transmitted
both aurally and visually or only visually.
LOTTERY
The station shall not advertise or broadcast any information concerning any
lottery (except the Ohio State Lottery and any other state lottery). The station
may advertise and provide information about lotteries conducted by non-profit
groups, governmental entities and in certain situations, by commercial
organizations, if and only if there is no state or local restriction or ban on
such advertising or information and the lottery is legal under state or local
law. Any and all lottery advertising must first be approved by station
management.
ADVERTISING
Station shall comply with all federal, state and local laws concerning
advertising, including without limitation, all laws concerning misleading
advertising, and the advertising of alcoholic beverages. The station shall not
sell or broadcast advertising for liquor, tobacco products, psychics, casino
gambling or pregnancy termination products or services.
PROGRAMMING PROHIBITIONS
Knowing broadcast of the following types of programs and announcements is
prohibited:
FALSE CLAIMS. False or unwarranted claims for any product or service.
UNFAIR IMITATION. Infringements of another advertiser's rights through
plagiarism or unfair imitation of either program idea or copy, or any other
unfair competition.
OBSCENE AND INDECENT MATERIAL. Any programs or announcements that are
obscene or indecent under applicable FCC policies, rules, and decisions.
VIOLENCE. Any programs which are excessively violent, measured by
industry/network standards.
UNAUTHENTICATED TESTIMONIALS. Any testimonials which cannot be
authenticated.
ATTACHMENT III
PAYOLA STATEMENT
FORM OF PAYOLA AFFIDAVIT
City of ______________ )
)
County of ______________ ) SS:
)
State of ______________ )
ANTI-PAYOLA/PLUGOLA AFFIDAVIT
______________ , being first duly sworn, deposes and says as follows:
1. He is _____________________ for ________________________.
Position
2. He has acted in the above capacity since _______.
3. No matter has been broadcast by WDPX(TV) 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 WDPX(TV) for
which service, money, or other valuable consideration has been directly
or indirectly paid, or promised to, or charged, or accepted by WDPX(TV)
or by any independent contractor engaged by WDPX(TV) in furnishing
programs, from any person, which matter at the time so broadcast has
not been announced or otherwise indicated as paid for or furnished by
such person.
5. In future, he will not pay, promise to pay, request, or receive any
service, money, or any other valuable consideration, direct or
indirect, from a third party, in exchange for the influencing of, or
the attempt to influence, the preparation of presentation of broadcast
matter on WDPX(TV).
6. Nothing contained herein is intended to, or shall prohibit receipt or
acceptance of anything with the expressed knowledge and approval of my
employer, but henceforth any such approval must be given in writing by
someone expressly authorized to give such approval.
7. He, his spouse and his immediate family do__ / do not __ have any
present direct or indirect ownership interest in (other than an
investment in a corporation whose stock is publicly held), serve as an
officer or director of, whether with or without compensation, or serve
as an employee of, any person, firm or corporation engaged in:
1. The publishing of music;
2. The production, distribution (including wholesale and retail
sales outlets), manufacture or exploitation of music, films,
tapes, recordings or electrical transcriptions of any program
material intended for radio broadcast use;
3. The exploitation, promotion, or management or persons
rendering artistic, production and/or other services in the
entertainment field;
4. The ownership or operation of one or more radio or
television Station;
5. The wholesale or retail sale of records intended for public
purchase;
6. Advertising on WDPX(TV), or any other station owned by its
Licensee (excluding nominal stockholdings in publicly owned
companies).
8. The facts and circumstances relating to such interest are none ___ / as
follows ___ :
_______________________________________________________________________
_______________________________________________________________________
__________________________________
Affiant
Subscribed and sworn to before me
This _____ day of ________, 19 __.
----------------------------
Notary Public
My Commission expires: ______________
