TIME BROKERAGE AGREEMENT
Time Brokerage Agreement ("Agreement") dated as of October 31, 2001,
by and among XXXXXXX BROADCASTING OF NEVADA, LLC a North Carolina limited
liability company ("Xxxxxxx"), KJUL LICENSE, LLC, a North Carolina limited
liability company ("License LLC" and together with Xxxxxxx hereinafter referred
to as "Licensee") and XXXXX BROADCASTING LLC, a Delaware limited liability
company ("Programmer").
WHEREAS, Licensee is the licensee of radio stations WRNO(FM), licensed
to New Orleans, Louisiana and KMEZ(FM), licensed to Xxxxx Xxxxx, Louisiana
(collectively, the "Stations");
WHEREAS, an Agreement of Purchase and Sale of Assets, dated as of
October 31, 2001 is being entered into simultaneously herewith among
Programmer, Licensee and certain other parties (the "APA"; with all capitalized
terms used but not defined herein having the meanings set forth in the APA), and
Programmer wishes to begin presenting programming on the Stations prior to such
time as it acquires the Purchased Assets, and Licensee has agreed to make
available to Programmer broadcast time on the Stations for the presentation of
such programming consistent with the rules and regulations of the Commission.
NOW, THEREFORE, for and in consideration of the mutual covenants
herein contained, the parties hereto have agreed and do agree as follows:
1. Facilities.
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(a) Licensees agree, beginning at 12:01 a.m. on November 1, 2001 (the
"Effective Date"), to make all air time, transmission services and production
facilities of and/or for the Stations available exclusively to Programmer and to
broadcast, or cause to be broadcast, on the Stations the programming provided by
or proposed to be presented by or on behalf of Programmer (the "Programming")
which may originate either from Programmer's own studios or from Licensee's
studios, all subject to the terms and conditions of this Agreement. The
Programming is described in Attachment I hereto .
(b) Programmer shall be entitled to locate any and all personnel as it
deems appropriate at the offices and facilities of Licensee, and Licensee shall
make available to Programmer all office, studio and other space and all
programming, telephone and other equipment and facilities of Licensee required
or requested by Programmer from time to time to enable it and its personnel to
perform all the duties, business and activities contemplated by this Agreement.
2. Payments. Programmer hereby agrees, beginning on the first business
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day of each calendar month following the Effective Date and during the term
hereof, to pay Licensee, subject to such adjustments as shall be provided for in
this Agreement, the monthly rate of Fifty Five Thousand U.S. Dollars ($55,000)
(the "Monthly Payment") and to reimburse Licensee (an
"Expense Reimbursement") for those monthly legitimate and prudent operating
expenses of Licensee in operating the Stations as set forth in Attachment II
hereof. The Monthly Payment shall be due and payable on the first business day
of each month and shall be prorated for any partial month. Programmer shall
receive a payment credit with respect to any Programming which Programmer makes
available for broadcast during Brokered Hours (as defined in Section 6), but
which is preempted or which is not accepted by Licensee. Such credit shall be
determined by multiplying the sum of the Monthly Payment plus the monthly
Expense Reimbursement for the month in question by the ratio of the number of
hours (or fractions thereof) of such Programming preempted or not accepted on a
particular Station during such calendar month to the total number of Brokered
Hours (or fractions thereof) for such Station in such calendar month. Final
payment on account of the Monthly Payment and the Expense Reimbursement for the
month in which Closing takes place shall be calculated to include the day of
Closing.
3. Term. The term of this Agreement (the "Term") shall commence as of the
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Effective Date (the "TBA Commencement Date") and shall continue in effect until
and shall terminate on the earlier of (i) the closing of the transactions
contemplated by the APA, and (ii) the termination of the APA, in accordance with
its terms, unless such Term is otherwise sooner terminated as set forth in
Section 16 below.
4. Programming Standards. Programmer shall furnish or cause to be
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furnished, and Licensee shall cooperate in all reasonable respects to facilitate
the furnishing of, Programming in accordance in all material respects with the
Communications Act of 1934, as amended, and the rules and requirements of the
Federal Communications Commission (the "FCC or the "Commission"), including,
without limitation, the Commission's rules on plugola/payola, lotteries,
contests, station identification, minimum operating schedule, political
programming and political advertising rates; and the Programming shall include
announcements and disclosures (including but not limited to station
identification announcements, EAS announcements, and sponsorship disclosures)
necessary for each of the Stations to comply with the Commission's rules and
requirements. In the event that Licensee determines, based on the exercise of
Licensee's good faith reasonable business judgment, that Programmer has failed
to comply in any material respect with the standards of the preceding sentence,
Licensee may suspend or cancel any such Programming not in compliance.
Programmer agrees that it will not change the current programming format of the
either of the Stations during the Term.
5. Collection of Accounts Receivable. Licensee hereby assigns to
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Programmer, for the purpose of collection only, the accounts receivable of each
of the Stations owing to Licensee as of the close of business on the day before
the TBA Commencement Date (such accounts receivable being called "Licensee
Receivables"). During the Term of this Agreement, Programmer will endeavor to
collect such Licensee Receivables, as agent for Licensee and on Licensee's
behalf, but in accordance with Programmer's normal collection procedures as in
effect from time to time (and without being required to resort to litigation or
collection proceedings), and Licensee agrees that during such period of time it
shall refrain from taking any action (whether in connection with collection or
otherwise) in respect of the Licensee Receivables. Programmer shall have the
right and authority to endorse, without recourse, with the name of Licensee, any
checks received in respect of any Licensee Receivables. Programmer shall not
have the right to compromise, settle or adjust the amounts of any Licensee
Receivable
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without Licensee's prior written consent. As soon as practicable, but in no
event later than the 30th day of each calendar month beginning with the end of
the first full month after the TBA Commencement Date or the next business day
thereafter if the 30th is not a business day, Programmer will furnish Licensee
with an accounting of the Licensee Receivables collected during the preceding
calendar month, and, on such day Programmer shall remit to Licensee the net
amount of all Licensee Receivables collected on Licensee's behalf by Programmer
during such calendar month after deducting therefrom any applicable agency,
sales and other commissions which shall be paid by Programmer as set forth
below. Licensee acknowledges and agrees that all accounts receivable of any of
the Stations that are earned from and after the TBA Commencement Date are the
sole and exclusive property of Programmer. Programmer shall not be obligated to
use any extraordinary efforts, retain counsel or a collection agency to collect
any Licensee Receivable. To the extent that any amounts are received by
Programmer from an obligor on both a Licensee Receivable and any other Station
receivable of Programmer, such amounts, unless specifically allocated by the
obligor, shall be allocated to payment of the oldest of such receivables first.
Upon the earlier of (i) termination of this Agreement other than due to
consummation of the APA, or (ii) 120 days after the Closing Date, Programmer
will turn back to Licensee all of the Licensee Receivables of each of the
Stations owing to Licensee which have not yet been collected (including all
records and documents of each of the Stations relating to such uncollected
accounts), and Programmer will thereafter have no further responsibility with
respect to the collection of such Licensee Receivables, provided, however, that
any funds received by Programmer subsequent to the Collection Period on account
of any Licensee Receivables paid or payable to any of Licensee shall be remitted
to Licensee within five (5) business days after the receipt of such funds.
Within twenty (20) business days after Programmer turns back the Licensee
Receivables pursuant to this Section, Programmer will furnish Licensee with a
final and up-to-date accounting of the Licensee Receivables. Licensee
acknowledges and agrees that Programmer is acting as collection agent hereunder
for the benefit of Licensee (but subject to the limitations set forth herein)
and that Programmer has accepted such responsibility for the accommodation of
Licensee. Licensee shall remain responsible for all agencies, sales and other
commissions and related payroll and other taxes and withholdings associated with
or arising out of any of the Licensee Receivables and to the extent the same
have not been paid by Licensee, during the period Programmer is collecting the
Licensee Receivables, Programmer shall deduct the amount of such commissions and
taxes from the amount to be remitted to Licensee and pay such amounts in
accordance with Licensee's past customary practice.
6. Facilities.
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(a) Licensee hereby covenants that each of the Stations shall operate
in accordance with the authorizations issued to it by the Commission. Throughout
the term of this Agreement, Licensee shall make each of the Stations available
to Programmer for broadcast of Programming with its present authorized
facilities or substantially similar facilities during Brokered Hours, subject to
Licensee's rights to preempt Programming pursuant to Sections 4, 12 or 13
hereof. Programmer shall make available Programming for all Brokered Hours.
"Brokered Hours" shall mean up to 168 hours per week, as Programmer shall
determine, less up to ten hours in any calendar month as Licensee may deem
necessary for maintenance of the facilities of each of the Stations. Licensee
shall use best efforts to schedule downtime for maintenance on Sunday morning
between the hours of 2 a.m. and 6:00 a.m. and to provide
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Programmer with at least 48 hours prior notice of downtime for maintenance
scheduled for any other hours.
(b) To facilitate the production of Programming for each of the
Stations, and in furtherance of Programmer's rights under this Agreement,
Licensee shall permit Programmer and its employees to utilize substantially all
space, equipment and furnishings at each of the Station's studios and offices
currently used in conjunction with the operation of any of the Stations and
shall permit Programmer to have continual access to all advertising files and
related documentation, and all such files and documentation shall be maintained
at each of the Stations. Programmer shall conduct itself, and shall cause its
employees and agents to conduct themselves, in the course of their respective
activities and operations under this Agreement with due care, in the ordinary
course of business, and in a manner consistent with the normal and prudent
operation of a commercial broadcast radio station of similar size and format.
Licensee shall maintain the studios of and transmission facilities for each of
the Stations in their present condition and repair and shall permit the same to
serve as programming origination facilities for Programmer. Licensee shall
maintain the Stations' studios in compliance with the FCC's rules and
requirements, including, without limitation, the FCC's main studio rule. During
the Term, Programmer shall have access to the studio and other space, equipment
and facilities referred to herein 24 hours a day every day of the year. Licensee
shall cooperate with Programmer, at Programmer's expense, in making such
arrangements as Programmer shall reasonably request to deliver Programming from
any remote location to each of the Station's respective transmitter sites.
(c) Licensee shall maintain all equipment necessary for broadcasting by
each of the Stations in a condition consistent with the current operations of
the Stations in compliance in all material respects with the applicable rules,
regulations and technical standards of the Commission, and all capital
expenditures reasonably required to maintain the current technical quality of
each of the Station's signal shall be made in a timely fashion at the expense
and in the sole discretion of Licensee. If any of the Stations suffers any loss,
reduction or damage of any nature to its signal or any of its transmission
facilities which results in the interruption or material reduction of service of
such Station or the inability of such Station to operate with currently-
authorized facilities and power, Licensee shall use commercially reasonable
efforts to effect such repairs as are necessary to restore full-time, full power
operation of such Station with their currently-authorized facilities as soon as
practicable.
7. Handling of Mail. Programmer shall be responsible for receiving and
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handling all mail, cables or telegrams directed to the Stations and shall
promptly furnish to Licensee all such communications (or, as appropriate, copies
thereof which are intended for Licensee or relate to Licensee's responsibilities
under this Agreement or as a broadcast licensee of the Commission (including,
but not limited to, copies of all correspondence received from members of the
public with respect to the programming or operations of any of the Stations),
and shall furnish to Licensee, unopened, any mail, cables or telegrams addressed
to Licensee. Licensee shall furnish promptly to Programmer all mail, cables, or
telegrams (or, as appropriate, copies thereof) received by Licensee that is
intended for Programmer or relate to Programmer's responsibilities under this
Agreement, and shall furnish to Programmer, unopened, any mail, cables or
telegrams addressed to Programmer. Licensee shall be solely responsible for
maintaining each of the Station's public files.
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8. Responsibility for Employees and Expenses.
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(a) Licensee's Responsibilities. Licensee shall provide and be
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responsible for each of the Station's personnel necessary for the broadcast
transmission of Programmer's Programming and the exercise of the Licensee's
rights of oversight and control of each of the Station's operations, which shall
consist of two persons who shall be one manager and one non-management staff
person ("Licensee's Employees"). Licensee's Employees shall at all times remain
in the employ of Licensee and subject to Licensee's control and Licensee shall
be responsible for all employee benefits and compensation and employment taxes
with respect to such personnel. Subject to Programmer's obligation to make the
Expense Reimbursement, and excluding any costs related to the production of
Programmer's Programming or as otherwise provided in Section 8(b), Licensee will
be responsible for payment in the first instance of all of each Station's
expenses necessary to fulfill Licensee's Commission obligations and to transmit
the Programming. Without limiting the generality of the foregoing, these costs
and expenses to be paid by Licensee in the first instance shall include all
costs associated with the maintenance of each of the Station's towers,
transmitters and antennas, electrical power at each of the Station's studio and
transmitter sites , lighting, heating and cooling at the studio and transmitter
sites, maintenance of each of the Station's local public records file, rent for
the studio and transmitter sites, and all other expenses associated with
maintaining each of the Station's studios.
(b) Programmer's Responsibilities.
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(i) Offer of Employment. Within ten business days following
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the TBA Commencement Date, Programmer may offer employment, on terms and
conditions determined by Programmer, to any active part-time or full-time
personnel (other than (x) Licensee's Employees, (y) Xxxxxx and Xxxxxxx and (z)
and such other exceptions as may be agreed to) employed at the Stations ("Active
Station Employees") and shall provide Licensee a list of those Active Station
Employees to whom an offer will not be made. For purposes of the previous
sentence, "active personnel" shall mean all employees of Licensee except those
employees who are receiving long-term or short-term disability benefits.
Licensee will cooperate with Programmer in its efforts to hire the Active
Station Employees to whom offers are so made. Active Station Employees accepting
such offers of employment shall be referred to as the "Transferred Employees."
Any Active Station Employee who either is not offered employment by Programmer
or declines to accept employment with Programmer shall be referred to as a "Non-
Transferred Employee."
(ii) Employee Benefits. Programmer shall permit each
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Transferred Employee to participate in Programmer's employee welfare benefit
plans (as defined in Section 3(1) of ERISA) in the same manner as all other
similarly situated employees of Programmer. Programmer agrees that for purposes
of all benefit plans (including, but not limited to, "employee benefit plans" as
defined in Section 3(3) of ERISA, and all policies and employee fringe benefit
programs, including vacation policies) of Programmer in which Transferred
Employees may participate, credit shall be given to the Transferred Employees
for service previously credited with Licensee prior to the TBA Commencement
Date. Programmer agrees that, for purposes of any employee benefit plan that
requires deductibles, co-payments, or maximum out of pocket payments, credit
will be provided to the Transferred Employees for any deductibles, co-payment or
other amounts paid in respect of the plan year in which the TBA
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Commencement Date occurs. Programmer also agrees, with respect to any employee
benefit plan that imposes pre-existing condition exclusions, waiting periods or
requires evidence of insurability, to waive such pre-existing condition
exclusions or restrictions, any waiting period limitations, or any evidence of
insurability requirements for the Transferred Employees, other than any
consistent with any of those plans of Licensee theretofore applicable to any of
the Transferred Employees. As soon as practicable after the TBA Commencement
Date, Programmer shall allow Transferred Employees to participate in
Programmer's savings or retirement plan(s) in the same manner as simil arly
situated employees of Programmer.
(iii) No Third Party Beneficiary. No provisions of this
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Agreement shall create any third party beneficiary rights of any employee or
former employee (including any beneficiary or dependent thereof) of Licensee in
respect of continued employment (or resumed employment) with Licensee or
Programmer or in respect of any other matter.
(iv) Responsibilities. Programmer shall be responsible for the
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salaries, compensation and employment taxes, insurance, employee benefits
(including COBRA Coverage), commissions, other sales costs, and related costs
for the Transferred Employees and any other personnel used by Programmer in the
production of the Programming (including salespeople, traffic personnel, board
operators and programming staff). Programmer shall reimburse Licensee for all
severance liabilities and obligations, if any (other than COBRA coverage) (i)
arising from or related to, the termination of Non-Transferred Employees (other
than those set forth on Schedule 8 hereto) by Licensee during the term of this
Agreement and (ii) owed by Licensee to any Transferred Employee, but only, in
each case under the preceding clauses (i) and (ii), to the extent such severance
obligations (x) are consistent with the disclosures in the employment contracts
or agreements provided to Programmer under Section 5.8 of the APA and (y) in the
case of non-Transferred Employees who do not have an employment contract or
agreement specifically identified in Section 5.8 of the APA, do not exceed two
(2) weeks of compensation. The Transferred Employees and other personnel
utilized by Programmer in the performance of its obligations under this
Agreement shall be in the employ of Programmer and subject to Programmer's
control.
9. Contracts. Programmer shall act as Licensee's agent in connection with
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all contracts for the sale of advertising time on the Stations for cash and non-
cash consideration and all contracts and other agreements identified in Schedule
5.8 of the APA and Licensee and Programmer shall cooperate to cause Programmer
to receive the benefit of such contract or agreement in exchange for the
performance by Programmer of all of Licensee's obligations under such contract
or agreement (including without limitation the payment to Licensee of all
amounts due under the contract or agreement on or after the TBA Commencement
Date for services provided by Licensee, which amounts shall be included as part
of the Expense Reimbursement). To the extent practicable and upon the receipt of
any necessary consent, Licensee shall assign and Programmer shall assume any
such contract or agreement (other than those necessary to fulfill Licensee's
Commission obligations), and following such assignment and assumption, if an
amount was included in the Estimate (as defined in Attachment II) in respect of
such contract or agreement the Estimate shall be revised accordingly.
10. Programmer's Insurance. During the Term, Programmer shall maintain
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Broadcaster's Liability Insurance with coverage of at least One Million Dollars
($1,000,000.00) per occurrence, Commercial General Liability insurance of at
least One Million Dollars ($1,000,000.00)
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per occurrence and Workers Compensation insurance of at least $500,000 per
accident, with insurance companies that have a Best rating of A or better.
Programmer shall deliver certificates of insurance periodically to Licensee
evidencing that such insurance remains in effect and such policies shall name
Licensee as an additional insured.
11. Advertising and Programming Revenues. Programmer shall retain all
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revenues from the broadcast or sale of advertising time that is broadcast on any
of the Stations during its Programming, and from all other sources of revenues
and/or advertising related to any of the Stations, in each case during the Term
and may sell such advertising in combination with the sale of advertising on any
other broadcasting stations of its choosing. All accounts receivable, claims and
entitlements to payment arising from any of the foregoing shall be the sole and
exclusive assets and property of Programmer.
12. Operation of the Stations.
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(a) General. Notwithstanding anything to the contrary in this
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Agreement, Licensee shall have authority and power over the operation of the
Stations during the term of this Agreement. Licensee shall retain control, said
control to be reasonably exercised, over the policies, programming and
operations of the Stations, including, without limitation, the right to decide
whether to accept or reject any Programming or advertisements, the right to
preempt any Programming in order to broadcast a program deemed by Licensee to be
of greater national, regional, or local interest, and the right to take any
other actions for compliance with the laws of the United States or the State of
Louisiana or the rules, regulations, and policies of the Commission. Licensee
shall at all times be responsible for meeting all of the Commission's
requirements with respect to public service programming, for maintaining the
political and public inspection files and the station log (if any) of each of
the Stations, and for preparation of programs/issues lists. Licensee shall at
all times be responsible for compliance with the Commission's main studio rules
and policies. Programmer shall, upon request by Licensee, provide Licensee with
information with respect to such of Programmer's programs which are responsive
to public needs and interest so as to assist Licensee in the preparation of
required programming reports, and will provide upon request other information to
assist Licensee's preparation of other records, reports and logs required by the
Commission or other local, state or federal governmental agencies.
(b) Political Advertising. Licensee will oversee and take ultimate
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responsibility with respect to the provision of equal opportunities, lowest unit
charge and reasonable access to political candidates, and compliance with the
Political Broadcast Rules of the FCC. Programmer shall supply information to
assist Licensee, and shall consult and cooperate with Licensee, in complying
with the lowest unit charge requirements of federal law. To the extent
necessary, Programmer shall release advertising availabilities to Licensee to
permit it to comply with the Political Broadcast Rules of the FCC including, but
not limited to, Section 315 of the Communications Act of 1934, as amended;
provided, however, that revenues received by Licensee as a result of such a
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release of advertising time shall be deemed irrevocably assigned to and shall
promptly be remitted to Programmer.
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(c) Responsive Programming. Programmer and Licensee mutually
----------------------
acknowledge their interest in ensuring that each of the Stations serves the
needs and interests of the residents of such Station's communities of license
and service areas and agree to cooperate in doing so. Licensee may request, and
Programmer shall provide, information concerning such of Programmer's
Programming that is responsive to community issues so as to assist Licensee in
the satisfaction of their public service programming obligations.
13. Special Events. Licensee reserves the right to preempt any of the
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broadcasts of Programmer's Programming and to use such preempted time for
broadcast of special events deemed by Licensee to be of importance to its
community of license. In all such cases, Licensee shall use its diligent efforts
to give Programmer reasonable advance notice of its intention to preempt
Programmer's Programming; provided however, that any revenues received as a
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result of such preemption shall be deemed irrevocably assigned to and shall
promptly be remitted to Programmer.
14. Indemnification.
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(a) Indemnification Rights. Each party will indemnify and hold
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harmless the other party, and the directors, officers, partners, employees,
agents and affiliates of such other party, from and against any and all
liability, including without limitation reasonable attorneys' fees arising out
of or incident to (i) any breach by such party of a representation, warranty or
covenant made herein or such party's actions taken or not taken (when such
actions should have been taken) pursuant to the provisions of this Agreement, or
(ii) the programming produced or furnished by such party, or in the case of
programming furnished or broadcast by Licensee, prior to the TBA Commencement
Date provided that Programmer shall have no liability hereunder in respect of
Programming broadcast by it, which Programming was originally produced, provided
or contracted for by Licensee or any of Licensee's affiliates. Without limiting
the generality of the foregoing, each party will indemnify and hold harmless the
other party, and the directors, officers, partners, employees, agents and
affiliates of such other party, from and against any and all liability for
libel, slander, infringement of trademarks, trade names, or program titles,
violation of rights of privacy, and infringement of copyrights and proprietary
rights resulting from the programming produced or furnished by it hereunder and
broadcast on any of the Stations provided that Programmer shall have no
liability under this Section in respect of Programming broadcast by it, which
Programming was originally produced, provided or contracted for by Licensee or
any of Licensee's affiliates. The parties' indemnification obligations hereunder
shall survive any termination or expiration of this Agreement.
(b) Procedures. The provisions of Section 9.4 of the APA shall apply
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with respect to matters covered by this Article 14 as if the indemnifying party
under this Agreement were the indemnifying party under said Section 9.4, and as
if the indemnified party under this Agreement were the indemnified party under
said Section 9.4, and as if such matters covered hereby were covered by said
Section 9.4.
(c) Any indemnification liability or obligation of Programmer under
this Agreement shall reduce dollar-for-dollar the aggregate "liquidated damages"
amount set forth in Section 8.4 of the APA.
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15. Force Majeure. Any failure or impairment of facilities or any delay or
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interruption in broadcasting programs, or failure at any time to furnish
facilities in whole or in part, for broadcasting, due to acts of God, strikes,
or threats thereof, force majeure, or due to causes beyond the control of any
party, shall not constitute a breach of this Agreement, and no party shall be
liable to any other party, except to the extent of allowing in each such case an
appropriate payment credit to Programmer available to Licensee but not carried
during Brokered Hours based upon a pro rata adjustment as specified in Section 2
calculated and based upon the length of time during which the failure or
impairment exists or continues.
16. Right to Use the Programming. The right to use the Programming and to
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authorize its use in any manner and in any media whatsoever shall be, and
remain, vested in Programmer.
17. Payola; EEO. Programmer agrees that it shall not accept, and shall not
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knowingly permit any of its employees to accept, any compensation or any in-kind
gift or gratuity of any kind whatsoever, regardless of its value or form,
including, but not limited to, a commission, discount, bonus, materials,
supplies or other merchandise, services or labor, whether or not pursuant to
written contracts or agreements between Programmer and merchants or advertisers,
unless the payer is identified in the program as having paid for or furnished
such consideration in accordance with Commission requirements. Programmer agrees
that, annually upon the reasonable request of Licensee, it will execute and
provide Licensee (and require its employees and agents associated with
production of its Programming to execute and provide Licensee) with an affidavit
to that effect in such form as Licensee shall reasonably require. Programmer
shall comply with all equal employment opportunity regulations and policies of
the Commission to the extent such regulations and policies apply, or shall in
the future apply, to the employment practices of Programmer's personnel assigned
to duties in connection with the operation of the Stations; and Programmer shall
timely provide Licensee with all information that shall be necessary to comply
with any reporting obligations of the Commission pursuant to such regulations or
policies.
18. Certain Governmental Action.
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(a) In the event that a federal, state or local governmental
authority designates a hearing with respect to the continuation or renewal of
any license or authorization held by Licensee for the operation of any of the
Stations, or orders the termination of this Agreement and/or orders the
curtailment, in any manner material to the relationship between the parties
hereto, of the provision of Programming by Programmer hereunder, and/or
determines that other similar time brokerage agreements, in whole or in part,
are contrary to public or agency policy, at its option, Programmer may seek
administrative or judicial appeal of or relief from such order(s) (in which
event Licensee shall, at Licensee's expense, cooperate with Programmer in such
proceedings), or Programmer may notify Licensee that it will terminate this
Agreement pursuant to this Section 18. If the Commission designates the renewal
application of any of the Stations for a hearing as a consequence of this
Agreement or for any other reason, Programmer shall cooperate and comply with
any reasonable request of Licensee to assemble and provide to the Commission
information relating to Programmer's performance under this Agreement.
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(b) If this Agreement is challenged at or by the FCC or at or by the
U.S. Department of Justice or the Federal Trade Commission, whether or not in
connection with a license renewal application for any of the Stations,
Programmer and Licensee, through their respective counsel, shall jointly defend
this Agreement and the parties' performance thereunder throughout all such
proceedings. If portions of this Agreement do not receive the approval of the
FCC staff, to the extent that such approval may be required, then the parties
shall use their best efforts to reform this Agreement in such a manner as to
maintain the economic benefit anticipated by each party or seek reversal of the
staff decision and approval from the FCC on appeal.
19. Termination.
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(a) Termination. This Agreement may also be terminated under the
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following circumstances:
(i) by Programmer, by giving written notice of termination to
Licensee, if (A) Programmer is not then in material breach hereof, and (B)
Licensee is in material breach of its obligations hereunder, has failed to cure
such breach within the Cure Period, and such continuing breach by Licensee has
had a material adverse effect on the business or operations of the Stations,
taken as a whole;
(ii) by Licensee, by giving written notice of termination to
Programmer, if (A) Licensee is not then in material breach under this Agreement,
and (B) Programmer is in material breach of its obligations hereunder and has
failed to cure such breach within the Cure Period and such continuing breach by
Programmer has had a material adverse effect on the business or operations of
the Stations, taken as a whole;
(iii) by mutual consent of the parties in writing; or
(iv) by Programmer or Licensee, provided the terminating party
has complied with the provisions of Section 18 hereof, by giving written notice
of termination to the other party, if: (i) 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 review, or
(ii) there has been a material change in FCC rules, policies, or precedent that
would cause this Agreement to be in violation thereof and such change is in
effect and has not been stayed pending an appeal or further administrative
review.
(b) Failure or Consummation of APA. Notwithstanding any other
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provision hereof, this Agreement shall terminate with no further action by
Licensee or Programmer upon the termination of the APA in accordance with the
terms thereof, or upon the consummation of the transactions contemplated
thereby.
20. Post-Termination Matters.
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(a) Upon any termination of this Agreement, Licensee shall have no
further obligation to provide to Programmer any broadcast time or broadcast
transmission facilities. Upon any termination, Programmer shall be responsible
for all debts and obligations of
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Programmer to third parties based upon the purchase of air time on the Stations
and the use of Licensee's transmission facilities relating to the Stations,
including, without limitation, accounts payable; provided, however, that
Licensee will assume Trade Agreements to the extent the aggregate value (at
current rates for time on the Stations as of the date of such termination or
expiration) of unfilled obligations of the Programmer under any Trade Agreements
entered into by Programmer on or after the TBA Commencement Date does not exceed
the aggregate reasonable fair market value of any consideration yet to be
received in exchange for the provision of time on the Stations by more than
Seven Thousand Five Hundred Dollars ($7,500.00). Notwithstanding anything herein
to the contrary, to the extent that any invoice, xxxx or statement submitted to
Licensee after the termination of this Agreement or any payment made by
Programmer prior to the termination of this Agreement relates to expenses
incurred in operating the Stations, for periods both before and after the
termination of this Agreement, such expenses shall be prorated between Licensee
and Programmer in accordance with the principle that Programmer shall be
responsible for expenses allocable to the period prior to the termination of
this Agreement and Licensee shall be responsible for expenses allocable to the
period on and after the termination of this Agreement. Each party agrees to
reimburse the other party for expenses paid by the other party to the extent
appropriate to implement the proration of expenses pursuant to the preceding
sentence.
(b) If this Agreement terminates other than as a result of the Closing (as
defined in the APA), Programmer shall (i) assign to Licensee and Licensee shall
assume all orders and agreements for the sale of advertising time on any of the
Stations for cash and all trade, barter and similar agreements for the sale of
advertising time on any of the Stations other than for cash and all such orders
and agreements for advertising time entered into in the ordinary course of
business during the Term and all other contracts and other agreements with
respect to the Stations that Programmer has entered into, in the ordinary course
of business on customary terms and conditions, involving payments or receipts
during the life of such contracts of less than $15,000 in the case of any single
contract but not more than $75,000 in the aggregate that are in effect on the
date of such termination or expiration (collectively, the "Contracts"); (ii) be
responsible for only those obligations under the Contracts in respect of the
period commencing on or after the TBA Commencement Date and ending prior to the
termination of this Agreement; (iii) be responsible for collecting the accounts
receivable arising from Programmer's operation of the Station on or after the
Commencement Date and prior to the termination of this Agreement, as to which
Licensee shall cooperate with Programmer, to the extent reasonably requested, to
assist Programmer in collecting any such accounts receivable; and (iv) cease
collecting the Licensee Receivables pursuant to Section 5 and return any
remaining Licensee Receivables to Licensee for collection.
(c) If this Agreement terminates other than as a result of the Closing (as
defined in the APA), beginning on the date of termination of this Agreement,
Licensee agrees to offer employment to the Transferred Employees but not to any
other employees of Programmer. Licensee shall permit each Transferred Employee
who so accepts such offer to participate in Licensee's employee welfare benefit
plans (as defined in Section 3(1) of ERISA) in the same manner as all other
similarly situated employees of Licensee. Licensee agrees that for purposes of
all benefit plans (including, but not limited to, "employee benefit plans" as
defined in Section 3(3) of ERISA, and all policies and employee fringe benefit
programs, including vacation policies) of Licensee in which Transferred
Employees may participate, credit shall be given to
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the Transferred Employees for service previously credited with Programmer prior
to the termination of this Agreement. Licensee agrees that, for purposes of any
employee benefit plan that requires deductibles, co-payments, or maximum out of
pocket payments, credit will be provided to the Transferred Employees for any
deductibles, co-payment or other amounts paid in respect of the plan year in
which the termination of this Agreement occurs. Licensee also agrees, with
respect to any employee benefit plan that imposes pre-existing condition
exclusions, waiting periods or requires evidence of insurability, to waive such
pre-existing condition exclusions or restrictions, any waiting period
limitations, or any evidence of insurability requirements for the Transferred
Employees other than any consistent with those plans of Programmer theretofore
applicable. As soon as practicable after the termination of Agreement, Licensee
shall allow Transferred Employees to participate in Licensee's savings or
retirement plan(s) in the same manner as similarly situated employees of
Licensee.
(d) Notwithstanding anything in Section 14 to the contrary, no expiration
or termination of this Agreement shall terminate the obligation of each party to
indemnify the other for claims under Section 14 hereof or limit or impair any
party's rights to receive payments due and owing hereunder on or before the date
of such termination except as otherwise provided in Section 8.4 of the APA.
21. Certain Understandings. Anything to the contrary contained herein
----------------------
notwithstanding, no termination of this Agreement, in and of itself, for any
reason whatsoever shall have any effect on or terminate any right or obligation
of Programmer or any right or obligation of Licensee under the APA and shall not
provide cause for the termination of the APA. To the extent Licensee shall be
entitled to, or Programmer shall pay to Licensee, any amount on account of any
damages arising out of any breach or default, or act or omission, of Programmer
under or arising out of this Agreement, such amounts shall reduce dollar-for-
dollar the aggregate liquidated damages amount set forth in Section 8.4 of the
APA.
22. Certifications. Pursuant to Note 2(k)(3) to Section 73.3555 of the FCC's
--------------
rules, Licensee, by the signature of its authorized representative to this
Agreement, certifies that it maintains ultimate control over the Stations'
facilities, including specifically control over station finances, personnel and
programming. Programmer, by the signature of its authorized representative to
this Agreement, certifies that this Agreement complies with the provisions of
Sections 73.3555(a), (c) and (d) of the FCC's rules.
23. Public Announcements. The parties will coordinate and consult with one
--------------------
another and obtain the prior approval of the other party, which shall not be
unreasonably withheld, before making any press release or other public
announcement concerning the transactions contemplated under this Agreement;
provided, however, that a party may, without the prior written consent of the
other party, issue such press release or make such public statement as may be
required by any law, rule, regulation, ordinance, order, judgment or decree or
any listing agreement with a national securities exchange to which it or any of
its affiliates is a party if it has used all reasonable efforts to consult with
the other party and to obtain such party's consent but has been unable to do so
in a timely manner. Nothing in this Section shall prevent either party from
disclosing information to its accountants, attorneys, lenders, investors or
other advisors ("Representatives"), who shall be advised of the confidential
nature of such information and such
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party so disclosing such information shall nevertheless be responsible for any
unauthorized disclosure by any of its Representatives.
24. Modification and Waiver. No modification or waiver of any provision of
-----------------------
this Agreement shall in any event be effected unless the same shall be in
writing and signed by the party adversely affected by the waiver or
modification, and then such shall be effective only in the specific instance and
for the purpose for which given.
25. No Waiver; Remedies Cumulative. No failure or delay on the part of
------------------------------
Licensee or Programmer in exercising any right or power hereunder shall operate
as a waiver thereof, nor shall any single or partial exercise of any such right
or power, or any abandonment or discontinuance of steps to enforce such a right
or power. The rights and remedies of Licensee and Programmer herein provided are
cumulative and are not exclusive of any right or remedies which it may otherwise
have.
26. Constructions. This Agreement shall be construed and enforced in
-------------
accordance with the laws of the State of New York, without regard to principles
of conflicts of laws, and the obligations of the parties hereto are subject to
all federal, state or municipal laws or regulations now or hereafter in force
and to the regulations of the Commission and all other government bodies or
authorities presently or hereafter to be constituted.
27. Headings. The headings contained in this Agreement are included for
--------
convenience only and no such heading shall in any way alter the meaning of any
provision.
28. Successors and Assigns. This Agreement shall be binding upon and inure
----------------------
to the benefit of the parties and their respective successors and assigns,
including without limitation, any assignee of the Commission license for the
Station.
29. Counterpart Signatures. This Agreement may be executed in multiple
----------------------
copies, each of which shall constitute an original.
30. Notices. All notices, demands, and requests required or permitted to be
-------
given under the provisions of this Agreement shall be in writing and shall be
deemed to have been duly delivered and received (a) on the date of personal
delivery or (b) on the date of receipt (as shown on the return receipt) if
mailed by registered or certified mail, postage prepaid and return receipt
requested, or if sent by Federal Express or similar courier service, with all
charges prepaid. All such notices, demands, and requests shall be addressed as
follows:
If to Programmer:
Xxxxx Broadcasting LLC
0000 Xxx Xxxxxxxxx Xxxx
Xxxxxxxxxx, XX 00000
Attn: Xxxxxxx X. Xxxxx
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with a copy to:
The Xxxxx Group of Companies, L.L.C.
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Fax No.: 000-000-0000
Attn: Xxxxx X. Xxxxx
and
Golenbock, Eiseman, Assor, Xxxx & Peskoe
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxxx X. Xxxxx, Esq.
If to Licensee:
Xxxxxxx Broadcasting of Nevada, LLC
0000 Xxxxxxx Xxxxx, Xxxxx 000
Xxxxxx, XX 00000
Attn: B. Xxxxxxxx Xxxxxxx
with a copy to:
Xxxxxx & Xxxxxxx
000 00/xx/ Xxxxxx, XX, Xxxxx 0000
Xxxxxxxxxx, XX 00000
Attn: Xxxxxx X. Xxxxxxxx, Esq.
or to any other or additional persons and addresses as the parties may from time
to time designate in a writing delivered in accordance with this Section 27.
Nothing in this Section shall preclude the delivery of notices by appropriate
means other than those described above, including facsimile.
31. Entire Agreement. This Agreement embodies the entire agreement between
----------------
the parties and there are no other agreements, representations, warranties, or
understandings, oral or written, between them with respect to the subject matter
hereof. No alterations, modification or change of this Agreement shall be valid
unless by like written instruments.
32. Severability. In the event that any of the provisions contained in this
------------
Agreement is held to be invalid, illegal or unenforceable it shall not affect
any other provision hereof, and this Agreement shall be construed as if such
invalid, illegal or unenforceable provisions had not been contained herein,
subject to Programmer's right to terminate pursuant to Section 18 hereof.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first above written.
Licensee
XXXXXXX BROADCASTING OF NEVADA, LLC
By: /s/ Xxxxxxxx Xxxxxxx
------------------------
Name: Xxxxxxxx Xxxxxxx
Title: Manager
KJUL LICENSE, LLC
By: /s/ Xxxxxxxx Xxxxxxx
------------------------
Name: Xxxxxxxx Xxxxxxx
Title: Manager
Programmer
XXXXX BROADCASTING LLC
By: /s/ Xxxxx X. Xxxxxx
------------------------
Name: Xxxxx X. Xxxxxx
Title: Vice President
TIME BROKERAGE AGREEMENT
ATTACHMENT I
Programmer's Programming will be an entertainment format, which may
include news as well as promotions (including on-air giveaways) and contests.
Programming may include commercial matter, including that in both program or
spot announcement forms, as well as public affairs and public service
information.
ATTACHMENT II
Programmer shall reimburse to Licensee the actual costs incurred by
Licensee with respect to the following expenses incurred solely in the actual
operation of the Stations attributable to the term of this Agreement, in each
case except as otherwise provided below or elsewhere in this Agreement: tower
and studio rents, utilities, property taxes with regard to the Stations'
property, normal and ordinary building and tower maintenance, normal and
ordinary engineering fees incurred by Licensee in the operation of the Stations,
casualty and liability insurance premiums with respect to insurance policies
currently maintained by the Stations in an amount equal to the current, arms
length premiums being currently paid by the Stations therefor, music licensee
fees (i.e., ASCAP, BMI and SESAC), software license fees, pro rated FCC annual
regulatory fees, compensation and other expenses related thereto associated with
Licensee personnel required to be provided pursuant to Section 8(a) hereof, and
programming and production costs actually incurred by Licensee in respect of any
Programming to be aired after the TBA Commencement Date ("Operating Expenses").
An estimate of such Operating Expenses is attached as Attached II-A hereto (the
"Estimate"). Anything to the contrary contained herein or in this Agreement
notwithstanding, Programmer shall not be responsible for or be required to
reimburse Licensee for any of the following:
1. Licensee's income, franchise and similar taxes.
2. Interest on and principal of loans and/or indebtedness and other
fees, charges, costs and expenses relating to loans and/or
indebtedness.
3. Legal, accounting and other professional fees and expenses in
connection with or arising out of this Agreement and/or the APA
and/or the negotiation, administration, interpretation or closing
of this Agreement and/or the APA and/or the transactions
contemplated hereby and thereby.
4. Any costs, expenses or expenditures in the nature of capital
expenditures or improvements, or expenses associated with the
maintenance or repair of towers or equipment, other than routine,
ordinary and customary maintenance consistent in dollar amount
and nature with past practice and experience of the Stations.
Programmer shall pay the Estimate (as such Estimate may be adjusted
upwards or downwards pursuant to Section 9 or to take account of any foreseeable
reduction or increase in the expenses covered thereby) on or prior to the last
day of each calendar month. On the 20th day of each month, Licensee will
provide Programmer a list of the actual expenses incurred the preceding month,
together with copies of the invoices or other backup information as may exist,
at which time Programmer either shall receive a credit for any over-payment that
may have occurred, or else shall pay any deficit within ten business days of
receipt of the list. In the event the TBA Commencement Date is in the middle of
a month, Programmer only will be responsible to reimburse Licensee for Operating
Expenses relating to the portion of the month during which the term of this
Agreement has been in effect.
In the event of a bona fide dispute as to any requested reimbursement,
Programmer may dispute such reimbursement and may withhold payment to Licensee
until such dispute is resolved.
SCHEDULE 8
Xxx Xxxxxxx
Xxx Xxxx
