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EXHIBIT 10.39.4
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EXHIBIT 10.39.4
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AMENDMENT TO TIME BROKERAGE AGREEMENT
This Amendment to Time Brokerage Agreement ("Amendment") is entered
into as of the 29th day of December, 1995, by and between Xxxxxxxxx Media,
Inc., a Florida corporation (the "Licensee"), and Xxxxxx Communications of
Cleveland-67, Inc., a Florida corporation (the "Programmer").
W I T N E S S E T H:
WHEREAS, the Licensee and the Programmer are parties to that certain
Time Brokerage Agreement dated as of October 30, 1995; and
WHEREAS, the Licensee and the Programmer wish to modify several
provisions of the Time Brokerage Agreement.
NOW, THEREFORE, in consideration of the mutual promises and agreements
herein contained, the Licensee and the Programmer agree as follows:
1. Amendment. The Time Brokerage Agreement is hereby amended as
follows:
Existing Subsection (b) of Section 1.7 is deleted and is replaced with
the following:
(b) Licensee shall pay, in a timely fashion, all of the
expenses incurred in operating the Station including salaries and
benefits of its employees, lease payments, utilities, taxes,
programming expenses, debt service, etc., as set forth in Attachment
II (except those for which a good faith dispute has been raised with
the vendor or taxing authority), and shall provide Programmer with a
certificate of such timely payment within thirty (30) days of the end
of each month. In the event that Licensee shall fail to timely make
the payments called for by Attachment II hereof, Programmer may, upon
5 days notice to Licensee, make such payments directly to the vendor,
lender, etc., and such direct payment shall be in lieu of any
reimbursement called for by this subsection.
Existing Section 2.3 is deleted and is replaced with the following:
2.3 Responsibility for Employees and Expenses.
Programmer shall employ and be solely responsible for the salaries,
taxes, insurance and related costs for all personnel used in the
production of its programming (including, but not limited to,
salespeople, technical staff, traffic personnel, board operators and
programming staff). Programmer shall be responsible for purchasing
such additional equipment as Licensee and Programmer jointly agree is
necessary to upgrade the Station's technical facilities. Licensee and
Programmer shall negotiate in good faith and enter into a mutually
acceptable Lease Agreement providing for Licensee's unimpaired use of
such equipment on generally reasonable terms. Licensee will provide
and be responsible for the Station personnel necessary for the
broadcast transmission of its own programs (including, without
limitation, the Station's General Manager and such operational and
other personnel as may be necessary or appropriate), and will be
responsible for
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the salaries, taxes, benefits, insurance and related costs for all the
Licensee's employees used in the broadcast transmission of its
programs and necessary to other aspects of Station operation.
Whenever on the Station's premises, all personnel shall be subject to
the overall supervision of Licensee's General Manager.
Existing Section 7.1 is deleted and is replaced with the following:
7.1 Assignment.
(a) Neither this Agreement nor any of the rights,
interests or obligations of either party hereunder shall be assigned,
encumbered, hypothecated or otherwise transferred without the prior
written consent of the other party, such consent not to be
unreasonably withheld, provided, however, that Programmer acknowledges
that Licensee may not assign, encumber, hypothecate or otherwise
transfer this Agreement or any of its rights or interests hereunder
without the consent of the Licensee's lenders. Notwithstanding the
foregoing, Licensee and Programmer shall have the right to
collaterally assign its rights and interests hereunder to their
respective senior lenders.
(b) This Agreement shall be binding upon and
inure to the benefit of the parties hereto and their respective
successors and permitted assigns.
(c) Each party hereto agrees to enter into such
agreements and confirmations as the other party's senior lenders may
reasonably require: (i) to acknowledge and confirm any collateral
assignment of this Agreement to such senior lenders; (ii) to provide
for simultaneous notice and reasonable cure rights, which rights must
be exercised within 30 days after the 30-day period specified in
Section 6.1(b) hereof, to such senior lenders of any default by
Programmer or Licensee under this Agreement; (iii) to provide
simultaneous notice and reasonable cure rights, which rights must be
exercised within 30 days after the expiration of the 30-day period
specified in Section 6.1(b) hereof, to such senior lenders prior to
any election or action by Licensee or Programmer to terminate or
cancel this Agreement pursuant to Section 6.1(b) and, if requested by
such senior lenders, to enter into a new Agreement on the same terms
and conditions as this Agreement with such senior lenders or their
nominee, successor or purchaser who (x) possesses all requisite
qualifications to hold FCC licenses, (y) has not had an authorization
issued by the FCC revoked or an application for license renewal denied
by the FCC, and in the case of a request by Programmer's senior
lenders, (z) possesses the financial capacity to perform Programmer's
obligations hereunder ("Lenders' Assignee"); (iv) in the event that
such senior lenders shall be entitled to foreclose or otherwise
acquire Programmer's or Licensee's interest in this Agreement, or if
such senior lenders (or their nominee, successor or purchaser who
qualifies as a "Lenders' Assignee") shall have elected to enter into a
new Agreement, on the same terms and conditions as this Agreement,
with Licensee or Programmer, to enable such senior lenders to acquire
Programmer's or Licensee's interest in this Agreement or assign such
interest to any purchaser or assignee of such senior lenders who
qualifies as a "Lenders' Assignee", or require Licensee to enter into
a new Agreement, on the same terms and conditions as this Agreement,
directly with any purchaser or assignee of such senior lenders who
qualifies as a "Lenders' Assignee"; and (v) provide for such other
assurances as such senior lenders shall reasonably request in
connection with the exercise of their rights under this paragraph
7.1(c).
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2. Counterparts. This Amendment may be executed in counterparts.
3. References to Time Brokerage Agreement. Except as amended
hereby, all terms and provisions of the Time Brokerage Agreement shall remain
in full force and effect.
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IN WITNESS WHEREOF, the parties hereto have executed this Amendment to
Time Brokerage Agreement the day and year first above written.
LICENSEE: XXXXXXXXX MEDIA, INC.
By: /s/ Xxxxx Xxxxxxxxx
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Name: Xxxxx Xxxxxxxxx
Title: President
PROGRAMMER: XXXXXX
COMMUNICATIONS OF CLEVELAND-67, INC.
By: /s/ Xxxxxxx X. Xxxxxx
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Name: Xxxxxxx X. Xxxxxx
Title: Secretary
