TIME BROKERAGE AGREEMENT
EXHIBIT
10.1
This
Time
Brokerage Agreement (the “Agreement”), dated as of August 15th,
2008,
is entered into by and between Grace
Media International, LLC
(“Licensee”), the Licensee of certain assets relating to Radio Station WQBC
AM/Vicksburg, MS (the “Stations”), and Debut
Broadcasting Mississippi, Inc. (the
“Broker”).
WHEREAS,
Licensee and Broker intend to enter into an Asset Purchase Agreement (the
“Purchase Agreement”) whereby Licensee will convey and Broker will purchase
certain assets associated with the Stations; and
WHEREAS,
the purchase and sale contemplated by the Purchase Agreement is subject to
the
prior approval
and consent of the Federal Communications Commission (“FCC”); and
WHEREAS, in
accordance with procedures and policies approved by the FCC, the Broker desires
to avail itself of Stations’ broadcast time for the presentation of a
programming service, including the sale of program and advertising time, until
such time as (i) the Purchase Agreement shall be fully and finally negotiated;
(ii) the FCC shall have consented to the purchase and sale contemplated by
the
Purchase Agreement; and (iii) such purchase and sale shall have been
consummated; and
WHEREAS,
in accordance with procedures and policies approved by the FCC, Licensee desires
to make available to Broker the Stations’ broadcast time for the presentation of
a programming service, including the sale of program and advertising time,
until
such time as (i) the Purchase Agreement shall be fully and finally negotiated;
(ii) the FCC shall have consented to the purchase and sale contemplated by
the
Purchase Agreement; and (iii) such purchase and sale shall have been
consummated,
NOW,
THEREFORE, for and in consideration of the mutual covenants herein contained,
the parties hereto have agreed and do agree as follows:
1. Purchase
of Air Time and Broadcast of the Programming.
Licensee agrees to make the broadcasting transmission facilities of the Stations
available to the Broker and to broadcast on the Stations, or cause to be
broadcast, the Broker’s programs for up to 24 hours a day, seven days a week
(the “Programming”), except for (i) the broadcast of Licensee’s public service
programming as provided in Section
10.1
of this
Agreement (“Licensee’s Programming”); (ii) downtime occasioned by routine
maintenance performed between the hour of 12:00 midnight and 6:00 a.m.; (iii)
times when Broker’s programs are not accepted or are preempted by Licensees in
accordance with Sections
10.1 or 12
of this
Agreement or because such Programming does not satisfy the standards of
Section
7
of this
agreement; and (iv) Force Majeure Events (collectively the “TBA Hours”). For
purposes of this agreement, Force Majeure Events shall mean any failure or
impairment of facilities or any delay or interruption in broadcasting the
Programming not directly or indirectly the fault of Licensee or its employees
or
agents, or failure at any time to furnish the facilities, in whole or in part,
for broadcasting, due to acts of God, strikes or threats thereof, force
majeure
or any
other causes beyond the control of Licensee. Interruption of service as a
consequent of one or more Force Majeure Events shall not constitute a breach
of
this Agreement. Except for the current studio facilities of the Stations, all
assets of the Stations including, without limitation, the transmitting equipment
of Licensee relating to the Stations and any equipment owned by Licensee not
currently in service shall be made available to the Broker for its use during
the term of this Agreement.
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2. Consideration.
The
terms, conditions and schedule of payment (“Consideration”) to Licensee for the
broadcasting of the Programming during the term of this Agreement shall be
as
set forth in Schedule
2.
3. Term.
This
Agreement shall commence Monday, September 1st,
2008
(the “Commencement Date”). Unless earlier terminated as provided by this
Agreement, or unless renewed and/or extended pursuant to other
provisions
of this
Agreement, the term of this Agreement shall end upon the earliest to occur
of:
(i) written notice from one party to the other, provided the parties shall
not
have first executed the Purchase Agreement; (ii) the termination of the Purchase
Agreement; (iii) the Closing Date, as defined in the Purchase Agreement; (iv)
termination pursuant to Section
17,
Section
18
or
Section
19,
herein;
or (v) thirty (30) months after the Commencement Date by either party (not
then
in default) upon 45 days prior notice if the Purchase Agreement has not yet
been
consummated. In the event that either party receives formal or informal notice
from the FCC that this Agreement or any of its terms are contrary to the public
interest or violative of any FCC statute, regulation, rule or policy, the
parties shall negotiate in good faith to resolve such objection and preserve
the
fundamental nature of this Agreement; if and to the extent the substance of
this
Agreement cannot be maintained by the application of Section
30
of this
Agreement and/or such negotiations, either party shall have the right to
terminate this Agreement immediately by written notice to the other
party.
4. The
Programming.
The
Broker may furnish programming to Licensee for not less than the minimum
operating schedule required by Section 73.1740 of the FCC regulations and up
to
all of the TBA Hours. The nature of the program service to be provided by the
Broker will be determined by Broker subject to the requirement that programming
will at all times serve the public interest and comply with the provisions
of
Section
10.2
of this
Agreement all applicable federal, state and local laws, rules and regulations
and Schedule
7
and
Sections
7 and 12
hereof.
Licensee acknowledges that it is familiar with the nature of the Programming
to
be produced by the Broker and has determined that the broadcasting of the
Programming on the Stations will serve the public interest. Broker shall not
make any material change in the Programming after the date hereof without the
prior consent of Licensee, which consent shall not be unreasonably withheld
or
delayed.
5. Stations’
Facilities.
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5.1
Operation
of Stations.
Throughout the term of this Agreement, Licensee shall make the Stations
available to the Broker for operation with its authorized facilities during
the
TBA Hours. Except for maintenance work and other improvements to the Stations
or
the Stations’ equipment performed by or at the direction of Broker, any
maintenance work affecting the operation of the Stations at full power shall,
to
the extent reasonably practicable, be scheduled upon at least 48 hours prior
notice with the agreement of the Broker.
5.2
Interruption
of Normal Operations.
Except
for maintenance work and other improvements to the Stations or the Stations’
equipment performed by or at the direction of Broker, if the Stations suffer
loss or damage of any nature to their transmission facilities which results
in
the interruption of service or the inability of the Stations to operate with
their respective maximum authorized facilities, Licensee shall immediately
notify the Broker, and shall undertake such repairs as necessary to restore
the
fulltime operation of the Stations with their maximum authorized facilities
as
quickly as reasonably possible. Except as may be the result of any act or
omission of Broker, if the Stations do not operate with at least eighty percent
(80%) of its authorized power, Broker shall be entitled to a prorated reduction
in the Consideration proportionate in amount to the period of time the Stations
did not operate with at least eighty percent (80%) of its authorized power.
If
the required repairs necessary to return the Stations to operation with their
full authorized maximum facilities are not made within thirty (30) days, the
Broker may terminate this Agreement upon 10 days notice to Licensee, any other
provision of this Agreement notwithstanding.
6. Handling
of Mail.
The
Broker shall provide to Licensee the original or a copy of any correspondence
which it receives from a member of the public relating to the Programming to
enable Licensee to comply with FCC rules and policies, including those regarding
the maintenance of the public inspection file (which shall at all times remain
the responsibility of Licensee).
7. Programming
and Operations Standards.
All
programs supplied by the Broker shall be in good taste and shall meet in all
material respects all requirements of the Communications Act of 1934 and all
applicable rules, regulations and policies of the FCC and the policies of the
Stations described in Schedule
7.
All
advertising spots and promotional material or announcements shall comply with
all applicable federal, state and local regulations and such Stations policies.
If, in the reasonable judgment of Licensee or the Stations’ General Manager, any
portion of the Programming presented by the Broker does not meet such standards,
Licensee may reject, suspend or cancel any such portion of the Programming
as
without reduction or offset in any payment due Licensee hereunder.
8. Responsibility
for Employees and Related Expenses.
8.1
Broker
Employees.
The
Broker shall furnish (or cause to be furnished) the personnel and material
for
the production of the Programming to be provided by this Agreement. The Broker
shall employ and be responsible for the salaries, taxes, insurance and related
costs for all personnel used in the production of Programming (including sales
people, traffic personnel and programming staff).
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8.2
Licensee
Employees.
Licensee will provide and have responsibility for the Station personnel
necessary for compliance with the requirements of Licensee as set forth by
the
FCC (which personnel shall be the Stations General Manager, Chief Operator
and
clerical employee(s)), and will be responsible for the salaries, taxes,
insurance and related costs for all such Stations personnel. The parties
acknowledge and agree that the duties of the Station’s General Manager and the
Chief Operator may be performed by the same person.
8.3
Employee
Oversight.
Whenever on the Stations’ premises, all personnel shall be subject to the
supervision and the direction of the Stations’ General Manager and/or the
designated Chief Operator.
9. Advertising
and Programming Revenues.
(a) During
the Programming it delivers to the Stations, the Broker shall have full
authority to sell for its own account commercial spot advertising and block
programming time on the Stations and to retain all revenues from the sale of
such advertising and programming. The parties agree that the Broker shall have
complete discretion to deal as it deems appropriate with all advertising and
programming accounts relating to advertising and programming sold by it;
provided,
however,
the
Broker shall deal with political candidate and supporter advertising as required
by law.
(b) All
accounts receivable of Licensee and the Stations as of the commencement date
of
this Agreement shall remain the sole property of Licensee and shall be collected
by Licensee. Any amounts received by Broker with respect to Licensee’s
receivables shall be promptly remitted to Licensee.
10. Operation
of the Stations.
10.1
Verification
of Licensee’s Control and Rights of Licensee. Notwithstanding
anything to the contrary in this Agreement, Licensee shall have full authority
and power over the operation of the Stations during the period of this
Agreement. Licensee shall provide and pay for its employees, who shall report
and be accountable solely to Licensee, shall be responsible for the direction
of
the day-to-day operation of the Stations, and shall maintain the Stations’
studio and transmission equipment and facilities, including the tower, antenna,
transmitter and transmission line, and Stations’ studio- transmitter link.
Licensee shall retain control 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 which Licensee deems
unsuitable or contrary to the public interest; the right to preempt any programs
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 necessary
for compliance with the laws of the United States, the State of Mississippi,
the
rules, regulations, and policies of the FCC (including the prohibition on
unauthorized transfers of control), and the rules, regulations and policies
of
other federal governmental authorities, including the Federal Trade Commission
and the Department of Justice. Licensee reserves the right to refuse to
broadcast any program containing matter which is, or in the reasonable opinion
of Licensee may be, violative of any right of any third party or which may
constitute a “personal attack” (as that term is defined by the FCC). Licensee
agrees that Licensee’s Programming shall be aired at such times as the parties
may agree based on the reasonable programming needs of the Broker. With respect
to the operation of the Stations, Licensee shall at all times be ultimately
responsible for meeting all of the FCC’s requirements with respect to the
broadcast and nature of any public service programming, for maintaining the
political and public inspection files and the Stations log, and for the
preparation of all programs/issues lists. Licensee expressly acknowledges that
its duty to maintain the Stations’ public inspection file is non-delegable and
that Licensee retains sole responsibility for maintenance of such file. Licensee
verifies that it shall maintain the ultimate control over the Stations’
facilities, including control over the finances with respect to its operation
of
the Stations, over its personnel operating the Stations, and over the
programming to be broadcast by the Stations.
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10.2.
Verification
by Broker and Obligations of Broker. The
Broker will, during the term of this Agreement, provide local news and public
affairs programming relevant to the Stations’ community to assist Licensee in
satisfying its obligations to respond to the needs of its community. Broker
will
also forward to Licensee within twenty-four (24) hours of receipt by Broker,
any
letter from a member of the general public addressing Stations programming
or
documentation which comes into its custody which is required to be included
in
the Stations’ public file or which is reasonably requested by Licensee. The
Broker shall furnish within the Programming on behalf of Licensee all Stations
identification announcements required by the FCC rules, shall promptly provide
to Licensee all records and information pertaining to the broadcast of political
programming and advertisements, and shall, upon request by Licensee, provide
monthly documentation with respect to such of the Broker’s programs which are
responsive to the public needs and interests of the area served by the Stations
in order to assist Licensee in the preparation of any required programming
reports, and will provide upon request other information to enable Licensee
to
prepare other records, reports and logs required by the FCC or other local,
state or federal governmental agencies. Broker certifies that this Agreement
and
Broker’s rights and responsibilities hereunder comply with the requirements of
Section 73.3555(a) of the FCC rules.
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11. Stations
Call Letters and Promotion.
(a)
The
Broker shall submit to Licensee any promotional material which will identify
the
Stations by call letters or frequency for approval by Licensee at least two
(2)
days prior to use of such promotional material by the Broker. Licensee shall
have the right to approve or reject such promotional material, such approval
to
not be unreasonably withheld or delayed. At no time shall Broker or its
employees or agents represent, hold out, describe or portray Broker as the
Licensee of the Stations.
12. Special
Events.
Licensee shall have the right, in its reasonable discretion, to preempt any
of
the broadcasts of the Programming referred to herein, and to use part or all
of
the hours of operation of the Stations for the broadcast of events of special
importance. In all such cases, Licensee will use its best efforts to give the
Broker reasonable advance notice of its intention to preempt any regularly
scheduled programming, and, in the event of such preemption, the Broker shall
receive a payment credit for any programming which would have been supplied
by
it during the time of such broadcasts by Licensee.
13. Right
to Use the Programming.
The
right to use the Programming produced by the Broker and to authorize its use
in
any manner and in any media whatsoever shall be at all times be vested solely
in
the Broker except as authorized by this Agreement. Broker shall ensure that
all
necessary licensing is obtained of rights necessary for it to broadcast the
Programming, and shall indemnify Licensee with respect to any claim, cost or
expense to the contrary.
14. Payola.
The
Broker will provide to Licensee in advance of broadcast any information known
to
the Broker regarding any money or other consideration which has been paid or
accepted, or has been promised to be paid or to be accepted, for the inclusion
of any matter as a part of any programming or commercial material to be supplied
to Licensee by the Broker for broadcast on the Stations, unless the party making
or accepting such payment is identified in the program as having paid for or
furnished such consideration in accordance with FCC requirements. Should the
Stations determine that an announcement is required by Section 317 of the
Communications Act of 1934 and related FCC rules, the Broker will insert that
announcement in the Programming. The Broker will obtain from its employees
responsible for the Programming appropriate anti-payola/plugola affidavits.
Commercial matters with obvious sponsorship identification will not require
disclosure beyond the sponsorship identification contained in the commercial
copy. The Broker will at all times comply, and seek to have its employees
comply, in all material respects with the requirements of Sections 317 and
507
of the Communications Act of 1934, as amended, and the related rules and
regulations of the FCC.
15. Compliance
with Law.
The
Broker will comply in all material respects with all laws and regulations
applicable to the broadcast of programming by the Stations.
16. Indemnification
Rights of Licensee.
(a) The
Broker will indemnify and hold Licensee, its beneficiaries, its officers,
directors, stockholders, partners and employees harmless from and against all
claims, charges, loss, damage, fees and expense (including reasonable attorneys’
fees and expenses) caused by (a) any breach of Broker’s representations or
warranties hereunder, (b) the conduct or negligence of Broker, its employees
or
agents, and (c) all liability for libel, slander, illegal competition or trade
practice, violation of rights of privacy, and infringement of copyrights or
other proprietary rights and violations of the Communications Act of 1934 or
FCC
rules resulting from the broadcast of Programming furnished by the Broker.
Such
indemnification shall survive the termination of this Agreement. Broker will
maintain in full force and effect throughout the term of this Agreement, with
responsible and reputable insurance companies, liability insurance and such
other insurance as may be required by law with respect to the broadcast of
the
Programming, and the employment of its personnel. No investigation by Licensee
shall be deemed a waiver or limitation of any of Licensee’s rights to
indemnification.
6
(b) In
the
event that Licensee may be entitled to indemnification hereunder with respect
to
any asserted claim of, or obligation or liability to, any third party, Licensee
shall so notify Broker, describing the matters involved in reasonable detail,
and Broker shall be entitled to assume the defense thereof upon written notice
to Licensee with counsel reasonably satisfactory to the Licensee; provided,
that
once the defense thereof is assumed by Broker, Broker shall keep Licensee
advised of all developments in the defense thereof and any related litigation,
and Licensee shall be entitled at all times to participate in the defense
thereof at its own expense. If Broker fails to notify Licensee of its election
to defend or contest its obligation to indemnify under this paragraph, Licensee
may pay, compromise, or defend such a claim without prejudice to any right
it
may have hereunder.
17. Events
of Default; Cure Periods and Remedies.
17.1
Events
of Default.
The
following shall constitute Events of Default under this Agreement:
17.1.1.
Non-Payment.
The
Broker’s failure to pay any Consideration then due within ten (10)
days.
17.1.2
Default
in Covenants or Adverse Legal Action.
The
default by either party in the performance of any material covenant, condition
or undertaking contained in this Agreement, and such default is not cured within
thirty (30) days after receipt of notice of default, or if either party shall
make a general assignment for the benefit of creditors, files or has filed
against it a petition for bankruptcy, for reorganization, or for the appointment
of a receiver, trustee or similar creditors' representative for the property
or
assets of such party under any federal or state insolvency law, which, if filed
against such party, has not been dismissed or discharged within 30 days
thereafter.
17.1.3
Breach
of Representation.
If any
material representation or warranty made by either party to this Agreement,
or
in any certificate or document furnished by either party to the other pursuant
to the provisions of this Agreement, shall prove to have been false or
misleading in any material respect as of the time made or furnished, and such
misrepresentation or breach of warranty is not cured within thirty (30) days
after receipt of notice of misrepresentation or breach.
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17.2
Termination
Upon Default.
Upon
the occurrence of an Event of Default, the nondefaulting party may terminate
this Agreement, provided that it is not also in material default under this
Agreement. If the Broker has defaulted in the performance of its obligations,
all amounts accrued or payable to Licensee up to the date of termination which
have not been paid, less payments made on behalf of Licensee by the Broker
and
any payment credits outstanding in favor of the Broker, shall immediately become
due and payable, and Licensee shall be under no further obligation to make
available to the Broker any broadcast time or broadcast transmission facilities,
provided
that
Licensee
agrees to cooperate reasonably with the Broker to discharge any remaining
obligations of the Broker in the form of air time following the effective date
of termination, provided Licensee shall be entitled to retain any revenues
derived therefrom based upon the principle that any revenues generated from
broadcasts occurring prior to the termination shall be for the benefit of Broker
and any revenues generated from broadcasts occurring after the termination
shall
be for the benefit of Licensee.
17.3.
Liabilities
Upon Termination.
The
Broker shall be responsible for all of its liabilities, debts and obligations
accrued from the purchase of broadcast time and transmission facilities of
the
Stations, including, without limitation, indemnification pursuant to
Section
16
hereof,
accounts payable, barter agreements and unaired advertisements, but not for
Licensee’s federal, state, and local tax liabilities associated with Broker’s
payments to Licensee as provided for herein, or for any other obligations or
liabilities of Licensee or the Stations unless specifically assumed by the
Broker under this Agreement. Upon termination, the Broker shall return to
Licensee any equipment or property of the Stations used by the Broker, its
employees or agents, in substantially the same condition as such equipment
existed on the date of this Agreement, ordinary wear and tear excepted, provided
that the Broker shall have no liability to Licensee for any property of Licensee
which through ordinary use became obsolete or unusable, and any equipment
purchased by the Broker, whether or not in replacement of any obsolete or
unusable equipment of Licensee, shall remain the property of the Broker. In
no
event shall Licensee be liable to Broker for any indirect, consequential or
special damages occasioned by operational deficiencies; Broker’s sole remedy in
such event, including termination, is for equitable reduction in the monthly
fee
paid hereunder.
18. Broker’s
Option to Terminate.
The
Broker shall have the right, at its option, to terminate this Agreement at
any
time if Licensee preempts or substitutes other programming for that supplied
by
the Broker during ten percent or more of the total hours of operation of the
Stations in any seven consecutive days. The Broker shall give Licensee ten
(10)
days written notice of such termination. The Broker shall further have the
right, at its option, to terminate this Agreement on ninety (90) days written
notice if Broker reasonably determines, upon advice of counsel, that it is
unlikely that a closing pursuant to the Purchase Agreement will occur as a
consequence of the failure of the FCC to approve the application for assignment
of the license of the Stations to Broker within the time frame for Closing
as
set forth in the Purchase Agreement for any reason other than Broker’s failure
to provide information requested by the FCC.
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19. Termination
Upon Order of Judicial or Governmental Authority.
If any
court of competent jurisdiction or any 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 the Stations,
advises any party to this Agreement of its intention to investigate or to issue
a challenge to or a complaint concerning the activities permitted by this
Agreement, or orders the termination of this Agreement and/or the curtailment
in
any manner material to the relationship between the parties to this Agreement
of
the provision of programming by the Broker, each party shall have the option
to
seek administrative or judicial appeal of or relief from such order(s) (in
which
event the other party shall cooperate with the party seeking relief from such
order; the party seeking such relief shall be responsible for all expenses
and
legal fees incurred in such proceedings). Upon termination, Licensee shall
reasonably cooperate with the Broker to the extent permitted to enable the
Broker to fulfill advertising or other programming contracts then outstanding,
provided Licensee shall be entitled to retain any revenues derived therefrom
based upon the principle that any revenues generated from broadcasts occurring
prior to the termination shall be for the benefit of Broker and any revenues
generated from broadcasts occurring after the termination shall be for the
benefit of Licensee.
20. Representations
and Warranties.
20.1
Mutual
Representations and Warranties.
Each of
Licensee and the Broker represents to the other that (a) it is an entity legally
qualified and in good standing in all applicable jurisdictions and is qualified
to do business and is in good standing in the State of Mississippi, (b) it
is
fully qualified, empowered, and able to enter into this Agreement, (c) this
Agreement has been approved by all necessary parties or corporate action and
that this Agreement constitutes the valid and binding obligation of such party,
enforceable in accordance with the terms of this Agreement subject only to
applicable bankruptcy, reorganization, insolvency or similar laws affecting
creditors' rights generally; and (d) the execution, delivery and performance
hereof does not constitute a breach or violation of any agreement, contract
or
other obligation to which such party is subject or by which it is
bound.
20.2.
Representations,
Warranties and Covenants of Licensee. Licensee
makes the following additional representations, warranties and
covenants:
20.2.1.
Authorizations.
Licensee owns and holds all licenses and other permits and authorizations (“FCC
Licenses”) necessary for the operation of the Stations as presently conducted
(including licenses, permits and authorizations issued by the FCC), and such
licenses, permits and authorizations will be maintained in full force and effect
for the term of this Agreement, unimpaired by any acts or omissions of Licensee,
its principals, employees or agents. The Stations operate at full authorized
power in accordance in all material respects with the terms and conditions
of
the FCC Licenses and in accordance with the rules and regulations of the FCC.
Except as may otherwise be set forth in this Agreement, there is not now pending
or, to Licensee’s best knowledge, threatened, any action by the FCC or other
party to revoke, cancel, suspend, refuse to renew or modify adversely any of
such licenses, permits or authorizations, and, to Licensee’s best knowledge, no
event has occurred that allows or, after notice or lapse of time or both, would
allow, the revocation or termination of such licenses, permits or authorizations
or the imposition of any restriction thereon of such a nature that may limit
the
operation of the Stations as presently conducted, except for proceedings
affecting the radio broadcasting industry generally. Licensee has no reason
to
believe that any such license, permit or authorization will not be renewed
during the term of this Agreement in its ordinary course. To the best of
Licensee’s knowledge, Licensee is not in violation of any statute, ordinance,
rule, regulation, order or decree of any federal, state, local or foreign
governmental agency, court or authority having jurisdiction over it or over
any
part of its operations or assets, which default or violation would have a
material adverse effect on Licensee or its assets or on its ability to perform
this Agreement.
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20.2.2.
Filings.
To the
extent that a failure to make such a filing would have a material adverse effect
on the Broker and its rights hereunder, all material reports and applications
required of Licensee to be filed with the FCC (including Licensees ownership
reports and renewal applications) or any other governmental agency, department
or body in respect of the Stations have been, and in the future will be, filed
in a timely manner and are and will be true and complete and accurately present
the information contained therein. All such reports and documents, to the extent
required to be kept in the public inspection files of the Stations, are and
will
be kept in such files.
20.2.3.
Facilities.
To the
extent a failure to comply would have a material adverse effect on Broker and
its rights hereunder, the Stations’ studio and transmission equipment and
facilities comply, in all material respects, with the facilities authorized
by
the FCC Licenses and with engineering standards necessary to deliver a quality
technical signal to the area served by the Stations, and with all applicable
laws and regulations (including the requirements of the Communications Act
and
the rules, regulations, policies and procedures of the FCC promulgated
thereunder).
20.2.4.
Title
to Properties.
Licensee has, and throughout the term of this Agreement will maintain, good
and
marketable title to all of the assets and properties used in the operation
of
the Stations.
20.2.5.
Insurance.
Licensee will maintain in full force and effect throughout the term of this
Agreement insurance with responsible and reputable insurance companies fire
and
extended coverage and liability insurance and such other insurance as may be
required by law. Except as otherwise permitted by the Purchase Agreement, any
insurance proceeds received by Licensee in respect of damaged property will
be
used to repair or replace such property so that the operations of the Stations
conform with this Agreement.
21. Modification
and Waiver.
No
modification or waiver of any provision of this Agreement shall be effective
unless made in writing and signed by the party adversely affected, and any
such
waiver and consent shall be effective only in the specific instance and for
the
purpose for which such consent was given.
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22. No
Waiver: Remedies Cumulative.
No
failure or delay on the part of Licensee or the Broker in exercising any right
or power under this Agreement 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, preclude any other
or
further exercise thereof or the exercise of any other right or power. The rights
and remedies of the parties to this Agreement are cumulative and are not
exclusive of any right or remedies which either may otherwise have.
23. Construction.
This
Agreement shall be construed in accordance with the laws of the State of
Mississippi. The obligations of the parties to this Agreement are subject to
all
federal, state or local laws or regulations, including those of the FCC, now
or
hereafter in force.
24. Headings.
The
headings contained in this Agreement are included for convenience only and
shall
not in any way alter the meaning of any provision.
25. Successors
and Assigns.
This
Agreement shall be binding upon and inure to the benefit of the parties and
their respective successors and assigns. Neither party may assign any of its
rights or obligations under this Agreement without the prior written consent
of
the other party, except that either party may assign its rights and obligations
hereunder to any entity controlled by or under common control with said party
without the prior consent of the other party.
26. Counterpart
Signatures.
This
Agreement may be signed in one or more counterparts, each of which shall be
deemed a duplicate original and be binding on the parties to this
Agreement.
27. Notices.
Any
notice required hereunder shall be in writing and shall be sufficiently given
if
delivered by overnight delivery service or sent by registered or certified
mail,
first class postage prepaid, or by telegram, facsimile or similar means of
communication, addressed as follows:
11
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If
to Licensee, to:
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Grace
Media International, LLC
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|
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Attention:
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Mr.
Xxxxxxx Xxxxxx
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Telephone:
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|
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Facsimile
No:
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With
a copy to:
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Telephone:
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||
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Facsimile:
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||
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(b)
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If
to Broker, to:
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Debut
Broadcasting Mississippi, Inc.
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|
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Attention:
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Xxxxxx
Xxxxxx
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Telephone:
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(000)
000-0000
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Facsimile
No.:
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(000)
000-0000
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With
a copy to:
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Xxxxxxx
Xxxx
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|
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Telephone:
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(000)
000-0000
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|
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Facsimile:
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(000)
000-0000
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28. Expenses;
Attorney's Fees.
In the
event any action is filed with respect to this Agreement, the prevailing party
shall be reimbursed by the other party for all costs and expenses incurred
in
connection with the action, including without limitation reasonable attorney's
fees.
29. 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.
30. Severability.
In the
event that any of the provisions contained in this Agreement is held to be
invalid, illegal or unenforceable 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.
31. Governing
Law.
The
construction and performance of this Agreement shall be governed by the laws
of
the State of Mississippi without regard to its principles of conflicts of
law.
12
32. No
Partnership or Joint Venture.
This
Agreement is not intended to be and shall not be construed as a partnership
or
joint venture agreement between the parties. Except as otherwise specifically
provided in this Agreement, no party to this Agreement is authorized to act
as
agent of, or otherwise represent, the other party to this
Agreement.
33. Confidentiality.
If a
Party provides (or, prior to the execution hereof, has provided) Confidential
Information (as hereinafter defined) to the other Party in writing and
identified as such or if in the course of performing under this Agreement any
Party learns Confidential Information regarding the facilities or plans of
any
other Party, the receiving Party shall protect the Confidential Information
from
disclosure to third parties with the same degree of care accorded its own
confidential and proprietary information; provided, however, that any Party
shall each be entitled to provide such Confidential Information to its
directors, officers, members, managers, employees, lenders, attorneys, agents,
and contractors ("Representatives"), entities controlling, controlled by or
under common control of with such Party ("Party Affiliates") or the
Representatives of such Party Affiliates, in each case whose access is
reasonably necessary. Each such recipient of Confidential Information shall
be
informed by the Party disclosing Confidential Information of its confidential
nature, and shall be directed to treat such information confidentially and
shall
agree to abide by these provisions. All obligations of a Party under this
Section 33 shall be deemed to be applicable to a Party and to all
Representatives of a Party, all Party Affiliates, and all Representatives of
any
Party Affiliates. In any event, a Party shall be responsible for any breach
of
this provision by any Party to whom that Party discloses Confidential
Information. A Party shall not be required to hold confidential any information
that: (1) becomes publicly available other than through the recipient; (2)
is
required to be disclosed by a governmental or judicial order, rule or
regulation; (3) is independently developed by the disclosing Party; or (4)
becomes available to the disclosing party without restriction from a third
party. These obligations shall survive expiration or termination of this
Agreement for a period of five (5) years. Confidential Information shall not
include information disclosed by a Party as required by applicable law or
regulation; provided, however, that the information disclosed is limited to
the
existence and general nature of the relationship between the Parties, including,
as required, the scope, approximate revenues, purposes and expectations related
to such relationship and a description of any disputes relating thereto and
any
Party provides the other Party with advanced written notice of such potential
disclosure so that the other Party has a reasonable opportunity to secure the
confidential protections thereof. For purposes of this Agreement, "Confidential
Information" means all confidential and proprietary information, currently
existing or subsequently created during the term of the relationship between
the
Parties, which any Party owns or controls and which has not been released by
such Party to the general public or a third party without similar restrictions.
Such information includes but is not limited to, all terms and conditions of
this Agreement other than such terms and conditions as must be filed with the
FCC in accordance with the FCC Rules, any and all proprietary information and
any other information (excluding information in the public domain other than
as
a direct or indirect result of any breach by either Party of the provisions
of
this section) related to the business, operations, management, assets,
properties, plans or prospects, condition, financial or otherwise, of any Party.
34.
Certifications.
13
a)
Pursuant to Section 73.3555(a)(2)(ii) of the FCC’s Rules, Licensee hereby
certifies that it maintains ultimate control over the Stations’ facilities,
including, specifically, control of the Stations’ finances, personnel employed
by the Licensee, and programming broadcast by the Stations.
b)
Broker
hereby certifies that this Agreement complies with the provisions of paragraphs
(a)(l) and (e)(l) of Section 73.3555 of the FCC’s Rules.
IN
WITNESS WHEREOF, the parties have executed this Agreement as of the date first
above written.
|
“LICENSEE”
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“BROKER”
|
|
Grace
Media International, LLC
|
Debut
Broadcasting Mississippi, Inc.
|
|
By:
/s/
Xxxxxxx Xxxxxx
|
By:
/s/ Xxxxxx Xxxxxx
|
|
Mr.
Xxxxxxx Xxxxxx
|
Xx.
Xxxxxx Xxxxxx
|
|
Managing
Member
|
CEO
|
14
SCHEDULE
2
FEES
(a) Broker
shall pay Licensee $1,500 per month in advance during the term of this Agreement
(due on the 1st
day of
each and every calendar month).
(b) Broker
shall pay the following normal and customary expenses when presented with
invoices from Licensee:
Electric
Bills (Studios/Office and Transmitter Site)
Royalty
Fees (SESAC, BMI, ASCAP)
Telephony
(Studios/Office and Transmitter Site)
Insurance
(Broker also-insured)
Rent
(Studio/Transmitter Site)
15
SCHEDULE
4
PROGRAMMING
Broker
will program the Stations with a sports format and provide news and pubic
affairs programming which Broker deems to be in the public interest.
16
SCHEDULE
7
The
Broker agrees to cooperate with Licensee in the broadcasting of programs in
a
manner consistent with the standards of Licensee, as set forth
below:
1. Election
Procedures.
At
least 90 days before the start of any primary or regular election campaign,
the
Broker will coordinate with Licensee’s General Manager the rate the Broker will
charge for time to be sold to candidates for public office and/or their
supporters to make certain that the rate charged conforms to all applicable
laws
and Stations policy. Throughout a campaign, the Broker will comply with all
applicable laws and rules concerning political candidacy broadcasts and will
promptly notify Licensee’s General Manager of any disputes concerning either the
treatment of or rate charged a candidate or supporter.
2. Required
Announcements.
The
Broker shall broadcast (i) an announcement in a form satisfactory to Licensee
at
the beginning of each hour to identify the Stations, (ii) an announcement at
the
beginning of each program day, and more often, as appropriate, to indicate
that
program time has been purchased by the Broker, and (iii) any other announcement
that may be required by law, regulation, or Stations policy.
3. Commercial
Recordkeeping.
The
Broker shall maintain such records of the receipt of, and provide such
disclosure to Licensee of, any consideration, whether in money, goods, services,
or otherwise, which is paid or promised to be paid, either directly or
indirectly, by any person or company for the presentation of any programming
over the Stations as are required by Sections 317 and 507 of the Communications
Act and the rules and regulations of the FCC.
4. No
Illegal Announcements.
No
announcements or promotion prohibited by federal or state law or regulation
of
any lottery, game or contest shall be made over the Stations.
5. Licensee
Discretion Paramount.
In
accordance with Licensee’s responsibility under the Communications Act of 1934,
as amended, and the rules and regulations of the Federal Communications
Commission, Licensee reserves the right to reject or terminate any advertising
or other programming proposed to be presented or being presented over the
Stations which is in conflict with law, regulation, Stations policy or which
in
the reasonable judgment of Licensee or its General Manager would not serve
the
public interest.
6. Indecency.
Hoaxes.
No
programming violative of applicable laws and rules concerning indecency or
hoaxes will be broadcast over the Stations. In the event the FCC issues a Notice
of Forfeiture for indecency arising from Broker’s programming on the Stations,
Broker shall indemnify Licensee for the amount of any such Forfeiture, which
shall be paid forthwith by Broker, together with any other costs incurred by
Licensee in responding and/or defending such Notice of Forfeiture, including
but
not limited to attorney’s fees and costs.
7. Controversial
Issues.
Any
broadcast over the Stations concerning controversial issues of public importance
shall comply with the then current FCC rules and policies.
17
8. Spot
Commercials.
The
Broker will provide, for attachment to the Stations logs, a list of all
commercial announcements carried during its Programming.
Licensee
may waive any of the foregoing regulations in specific instances if, in its
reasonable opinion, good broadcasting in the public interest will be served
thereby. In any case where questions of policy or interpretation arise, the
Broker shall notify Licensee before making any commitments to broadcast any
programming affected by such issues.
18
