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EXHIBIT 10.02
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TIME BROKERAGE AGREEMENT
BY AND BETWEEN
XXXXXX MEDIA CORPORATION OF FLORIDA
AND
XXXXXX COMMUNICATIONS CORP.
FOR
TELEVISION STATION WHBI-TV, LAKE WORTH, FLORIDA
AS OF
MARCH 23, 1995
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TABLE OF CONTENTS
Page
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SECTION 1. LEASE OF STATION AIR TIME . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
1.1 Representations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
1.2 Effective Date; Term . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
1.3 Scope . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
1.4 Option to Renew . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
1.5 Consideration . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
1.6 Licensee Operation of Station . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
1.7 Licensee Representations and Warranties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
1.8 Programmer Responsibility . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
1.9 Contracts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
SECTION 2. STATION OBLIGATIONS TO ITS COMMUNITY OF LICENSE . . . . . . . . . . . . . . . . . . . . . . . . . . 4
2.1 Licensee Authority . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
2.2 Additional Licensee Obligations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
2.3 Responsibility for Employees and Expenses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
SECTION 3. STATION PROGRAMMING POLICIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
3.1 Broadcast Station Programming Policy Statement . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
3.2 Licensee Control of Programming . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
3.3 Programmer Compliance with Copyright Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
3.4 Sales . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
3.5 Children's Television Advertising . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
3.6 Payola . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
3.7 Cooperation on Programming . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
3.8 Staffing Requirements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
SECTION 4. INDEMNIFICATION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
4.1 Programmer's Indemnification . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
4.2 Licensee's Indemnification . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
4.3 Limitation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
4.4 Time Brokerage Challenge . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
SECTION 5. ACCESS TO PROGRAMMER MATERIALS AND CORRESPONDENCE . . . . . . . . . . . . . . . . . . . . . . . . . 8
5.1 Confidential Review . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
5.2 Political Advertising . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
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SECTION 6. TERMINATION AND REMEDIES UPON DEFAULT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
6.1 Termination . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
6.2 Termination Requirements and Procedures . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
6.3 Force Majeure . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
6.4 Other Agreements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
SECTION 7. MISCELLANEOUS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
7.1 Assignment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
7.2 Call Letters . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
7.3 Counterparts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
7.4 Entire Agreement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
7.5 Taxes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
7.6 Headings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
7.7 Governing Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
7.8 Notices . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
7.9 Severability . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
7.10 Arbitration . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
7.11 No Joint Venture . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
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TIME BROKERAGE AGREEMENT
TIME BROKERAGE AGREEMENT, made this 23rd day of March, 1995, by and
between Xxxxxx Media Corporation of Florida, a Delaware corporation (the
"Licensee") and Xxxxxx Communications Corp., a Delaware corporation (the
"Programmer").
WHEREAS, Licensee is seeking to acquire Television Station WHBI-TV,
Lake Worth, Florida (the "Station") pursuant to authorizations issued by the
Federal Communications Commission ("FCC").
WHEREAS, Programmer is involved in television station ownership and
operation and programming.
WHEREAS, the Licensee wishes to retain Programmer to provide
programming for the Station that is in conformity with Station policies and
procedures, FCC policies for time brokerage arrangements, and the provisions
hereof.
WHEREAS, Programmer agrees to use the Station to broadcast such
programming of its selection that is in conformity with all rules, regulations
and policies of the FCC, subject to Licensee's full authority to manage and
control the operation of the Station.
WHEREAS, Programmer and Licensee agree to cooperate to make this Time
Brokerage Agreement work to the benefit of the public and both parties and as
contemplated in this Agreement.
NOW, THEREFORE, in consideration of the above recitals and mutual
promises and covenants contained herein, the parties, intending to be legally
bound, agree as follows:
SECTION 1. LEASE OF STATION AIR TIME
1.1 Representations. Both Licensee and Programmer represent that
they are legally qualified, empowered and able to enter into this Agreement and
that the execution, delivery, and performance hereof shall not constitute a
breach or violation of any material agreement, contract or other obligation to
which either party is subject or by which it is bound.
1.2 Effective Date; Term. The effective date of this Agreement
shall be the date of consummation of Licensee's acquisition of the Station
following FCC approval (the "Closing"). It shall continue in force for an
initial term of seven years from that date unless otherwise extended or
terminated as set forth below.
1.3 Scope. During the term of this Agreement and any renewal
thereof, Licensee shall make available to Programmer broadcast time upon the
Station as set forth in this
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Agreement. Programmer shall deliver such programming, at its expense, to the
Station's transmitter facilities or other authorized remote control points as
reasonably designated by Licensee. Subject to Licensee's reasonable approval,
as set forth in this Agreement, Programmer shall provide programming of
Programmer's selection complete with commercial matter, news, public service
announcements and other suitable programming to the Licensee up to one hundred
sixty-two hours per week. Notwithstanding the foregoing, the Licensee may
designate such additional time as it may require without any adjustment of the
monthly consideration to be paid to Licensee under Section 1.5 for the
broadcast of programming necessary for the Station to broadcast news, public
affairs, children's, religious and non-entertainment programming as required by
the Licensee to meet its responsibilities as a licensee of the FCC. All
program time not reserved by or designated for Licensee shall be available for
use by Programmer and no other party.
1.4 Option to Renew. Subject to the termination provisions of
Section 6 hereof, this Agreement may be renewed for an additional term as
mutually agreed upon by the Licensee and the Programmer.
1.5 Consideration. As consideration for the air time made
available hereunder Programmer shall make payments to Licensee as set forth in
Attachments I and II.
1.6 Licensee Operation of Station. Licensee will have full
authority, power and control over the management and operations of the Station
during the term of this Agreement and during any renewal of such term.
Licensee will bear all responsibility for Station's compliance with all
applicable provisions of the Communications Act of 1934, as amended, (the
"Act") the rules, regulations and policies of the FCC and all other applicable
laws. Licensee shall be solely responsible for and pay in a timely manner all
operating costs of the Station, including but not limited to maintenance of the
studio and transmitting facility and costs of electricity, except that
Programmer shall be responsible for the costs of its programming as provided in
Sections 1.8 and 2.3 hereof. Licensee shall employ at its expense management
level and other employees consisting of a General Manager and such operational
and other personnel as required in order to comply with FCC regulations and
policies and as outlined in the budget previously provided to Programmer, who
will direct the day-to-day operations of the Station, and who will report to
and be accountable to the Licensee. Licensee shall be responsible for the
salaries, taxes, insurance and related costs for all personnel employed by the
Station and shall maintain insurance satisfactory to Programmer covering the
Station's transmission facilities. During the term of the Agreement and any
renewal hereof, Programmer agrees to perform, without charge, routine
monitoring of the Station's transmitter performance and tower lighting by
remote control, if and when requested by Licensee.
1.7 Licensee Representations and Warranties. Licensee represents
and warrants as follows:
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(a) Licensee owns and holds or will hold all licenses and
other permits and authorizations necessary for the operation of the Station,
and such licenses, permits and authorizations are and will be in full force and
effect throughout the term of this Agreement. There is not now pending, or to
Licensee's best knowledge, threatened, any action by the FCC or by any other
party to revoke, cancel, suspend, refuse to renew or modify adversely any of
such licenses, permits or authorizations. Licensee is not in material
violation of any statute, ordinance, rule, regulation, policy, order or decree
of any federal, state or local entity, court or authority having jurisdiction
over it or the Station, which would have an adverse effect upon the Licensee,
the Station or upon Licensee's ability to perform this Agreement. Licensee
shall not take any action or omit to take any action which would have an
adverse impact upon the Licensee, the Station or upon Licensee's ability to
perform this Agreement. All reports and applications required to be filed with
the FCC or any other governmental body have been, and during the course of the
term of this Agreement or any renewal thereof, will be filed in a timely and
complete manner. During the term of this Agreement and any renewal thereof,
Licensee shall not dispose of, transfer, assign or pledge any of Licensee's
assets and properties except with the prior written consent of the Programmer,
if such action would adversely affect Licensee's performance hereunder or the
business and operations of Licensee or the Station permitted hereby.
(b) Licensee shall pay, in a timely fashion, all of the
expenses incurred in operating the Station including salaries and benefits of
its employees, lease payments, utilities, taxes, programming expenses, etc., as
set forth in Attachment II (except those for which a good faith dispute has
been raised with the vendor or taxing authority), and shall provide Programmer
with a certificate of such timely payment within thirty (30) days of the end of
each month.
1.8 Programmer Responsibility. Programmer shall be solely
responsible for any expenses incurred in the origination and/or delivery of
programming from any remote location and for any publicity or promotional
expenses incurred by Programmer, including, without limitation, ASCAP and BMI
music license fees for all programming provided by Programmer. Such payments
by Programmer shall be in addition to any other payments to be made by
Programmer under this Agreement.
1.9 Contracts. Programmer will enter into no third-party
contracts, leases or agreements which will bind Licensee in any way except with
Licensee's prior written approval.
SECTION 2. STATION OBLIGATIONS TO ITS COMMUNITY OF LICENSE
2.1 Licensee Authority. Notwithstanding any other provision of
this Agreement, Programmer recognizes that Licensee has certain obligations to
broadcast programming to meet the needs and interests of viewers in Lake Worth,
Florida, the station's
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service area and the educational and informational needs of children. From
time to time the Licensee shall air specific programming on issues of
importance to the local community and educational and informational programming
for children. Nothing in this Agreement shall abrogate the unrestricted
authority of the Licensee to discharge its obligations to the public and to
comply with the Act and the rules and policies of the FCC.
2.2 Additional Licensee Obligations. Although both parties shall
cooperate in the broadcast of emergency information over the Station, Licensee
shall also retain the right to interrupt Programmer's programming in case of an
emergency or for programming which, in the good faith judgment of Licensee, is
of greater local or national public importance. Licensee shall also coordinate
with Programmer the Station's hourly station identification and any other
announcements required to be aired by FCC rules. Licensee shall continue to
maintain a main studio, as that term is defined by the FCC, within the
Station's principal community contour, shall maintain its local public
inspection file in accordance with FCC rules, regulations and policies, and
shall prepare and place in such inspection file or files in a timely manner all
material required by Section 73.3526 of the FCC's Rules, including without
limitation the Station's quarterly issues and program lists; information
concerning the broadcast of children's educational and informational
programming; and documentation of compliance with commercial limits applicable
to certain children's television programming. Programmer shall provide
Licensee with such information in a timely fashion concerning Programmer's
programs and advertising as is necessary to assist Licensee in the preparation
of such information. Licensee shall also maintain the station logs and control
and oversee any remote control point which may be established for the Station.
2.3 Responsibility for Employees and Expenses. Programmer shall
employ and be solely responsible for the salaries, taxes, insurance and related
costs for all personnel used in the production of its programming (including,
but not limited to, salespeople, technical staff, traffic personnel, board
operators and programming staff). Licensee may, in cooperation with
Programmer, utilize Programmer's personnel for the broadcast transmission of
its own programs pursuant to Section 1.3 hereof but will be responsible for the
salaries, taxes, benefits, insurance and related costs for all the Licensee's
employees used in the broadcast transmission of its programs and necessary to
other aspects of Station operation. Whenever on the Station's premises, all
personnel shall be subject to the overall supervision of Licensee's General
Manager.
SECTION 3. STATION PROGRAMMING POLICIES
3.1 Broadcast Station Programming Policy Statement. Licensee has
adopted and will enforce a Broadcast Station Programming Policy Statement (the
"Policy Statement"), a copy of which appears as Attachment III hereto and which
may be amended in a reasonable manner from time to time by Licensee upon notice
to Programmer. Programmer agrees and covenants to comply in all material
respects with the Policy Statement, to all rules and
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regulations of the FCC, and to all changes subsequently made by Licensee or the
FCC. Programmer shall furnish or cause to be furnished the artistic personnel
and material for the programs as provided by this Agreement and all programs
shall be prepared and presented in conformity with the rules, regulations and
policies of the FCC and with the Policy Statement set forth in Attachment III
hereto. All advertising spots and promotional material or announcements shall
comply with applicable federal, state and local regulations and policies and
shall be produced in accordance with quality standards established by
Programmer. If Licensee determines that a program supplied by Programmer is
for any reason, within Licensee's sole discretion, unsatisfactory or unsuitable
or contrary to the public interest, or does not comply with the Policy
Statement it may, upon prior written notice to Programmer (to the extent time
permits such notice), suspend or cancel such program without liability to
Programmer. Licensee will use reasonable efforts to provide such written
notice to Programmer prior to the suspension or cancellation of such program.
3.2 Licensee Control of Programming. Programmer recognizes that
the Licensee has full authority to control the operation of the Station. The
parties agree that Licensee's authority includes but is not limited to the
right to reject or refuse such portions of the Programmer's programming which
Licensee believes to be unsatisfactory, unsuitable or contrary to the public
interest. Programmer shall have the right to change the programming supplied
to Licensee and shall give Licensee at least twenty-four (24) hours notice of
substantial and material changes in such programming.
3.3 Programmer Compliance with Copyright Act. Programmer
represents and warrants to Licensee that Programmer has full authority to
broadcast its programming on the Station, and that Programmer shall not
broadcast any material in violation of the Copyright Act. All music supplied
by Programmer shall be: (i) licensed by ASCAP, SESAC or BMI; (ii) in the
public domain; or (iii) cleared at the source by Programmer. Licensee will
maintain ASCAP, BMI and SESAC licenses as necessary. The right to use the
programming and to authorize its use in any manner shall be and remain vested
in Programmer.
3.4 Sales. Programmer shall retain all of the Station's network
compensation revenues, any revenues received from any network or program
supplier with respect to affiliation or use of programming by Programmer, any
retransmission consent revenues and all revenues from the sale of advertising
time within the programming it provides to the Licensee. Programmer shall be
responsible for payment of the commissions due to any national sales
representative engaged by it for the purpose of selling national advertising
which is carried during the programming it provides to Licensee. Unless
otherwise agreed between the parties, Licensee shall retain all revenues from
the sale of Station's advertising during the hours each week in which the
Licensee airs its own programming pursuant to this Agreement.
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3.5 Children's Television Advertising. Programmer agrees that it
will not broadcast advertising within programs originally designed for children
aged 12 years and under in excess of the amounts permitted under applicable FCC
rules, and will take all steps necessary to pre-screen children's programming
broadcast during the hours it is providing such programming, to establish that
advertising is not being broadcast in excess of the applicable FCC rules.
3.6 Payola. Programmer agrees that it will not accept any
consideration, compensation, gift or gratuity of any kind whatsoever,
regardless of its value or form, including, but not limited to, a commission,
discount, bonus, material, supplies or other merchandise, services or labor
(collectively "Consideration"), whether or not pursuant to written contracts or
agreements between Programmer and merchants or advertisers, unless the payer is
identified in the program for which Consideration was provided as having paid
for or furnished such Consideration, in accordance with the Act and FCC
requirements. Programmer agrees to annually, or more frequently at the request
of the Licensee, execute and provide Licensee with a Payola Affidavit from each
of its employees involved with the Station substantially in the form attached
hereto as Attachment IV.
3.7 Cooperation on Programming. Programmer and Licensee mutually
acknowledge their interest in ensuring that the Station serves the needs and
interests of viewers in Lake Worth and the surrounding service area and agree
to cooperate to provide such service. Licensee shall, on a regular basis,
assess the issues of concern to residents of Lake Worth and the surrounding
area and address those issues in its public service programming. Programmer,
in cooperation with Licensee, will endeavor to ensure that programming
responsive to the needs and interests of the community of license and
surrounding area is broadcast, in compliance with applicable FCC requirements.
Licensee will describe those issues and the programming that is broadcast in
response to those issues and place issues/programs lists in the Station's
public inspection file as required by FCC rules. Further, Programmer shall
provide to Licensee in a timely fashion, information concerning such of
Programmer's programs as are responsive to community issues so as to assist
Licensee in the satisfaction of its public service programming obligations.
Licensee shall also evaluate the local need for children's educational and
informational programming and shall inform Programmer of its conclusions in
that regard. Licensee, in cooperation with Programmer, will ensure that
educational and informational programming for children is broadcast over the
Station in compliance with applicable FCC requirements. Programmer shall also
provide Licensee upon request such other information necessary to enable
Licensee to prepare records and reports required by the Commission or other
local, state or federal government entities.
3.8 Staffing Requirements. Licensee will be in full compliance
with the main studio staff requirements as specified by the FCC.
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SECTION 4. INDEMNIFICATION
4.1 Programmer's Indemnification. Programmer shall indemnify and
hold harmless Licensee from and against any and all claims, losses, costs,
liabilities, damages, forfeitures and expenses (including reasonable legal fees
and other expenses incidental thereto) of every kind, nature and description
(collectively, "Damages") resulting from (i) Programmer's breach of any
representation, warranty, covenant or agreement contained in this Agreement, or
(ii) any action taken by Programmer or its employees and agents with respect to
the Station, or any failure by Programmer or its employees and agents to take
any action with respect to the Station, including, without limitation, Damages
relating to violations of the Act or any rule, regulation or policy of the FCC,
slander, defamation or other claims relating to programming provided by
Programmer and Programmer's broadcast and sale of advertising time on the
Station.
4.2 Licensee's Indemnification. Licensee shall indemnify and hold
harmless Programmer from and against any and all claims, losses, consents,
liabilities, damages, FCC forfeitures and expenses (including reasonable legal
fees and other expenses incidental thereto) of every kind, nature and
description, arising out of Licensee's operations and broadcasts to the extent
permitted by law and any action taken by the Licensee or its employees and
agents with respect to the Station, or any failure by Licensee or its employees
and agents to take any action with respect to the Station.
4.3 Limitation. Neither Licensee nor Programmer shall be entitled
to indemnification pursuant to this section unless such claim for
indemnification is asserted in writing delivered to the other party.
4.4 Time Brokerage Challenge. If this Agreement is challenged at
the FCC, whether or not in connection with the Station's license renewal
application, counsel for the Licensee and counsel for the Programmer shall
jointly defend the Agreement and the parties' performance thereunder throughout
all FCC proceedings at the sole expense of the Programmer. If portions of this
Agreement do not receive the approval of the FCC Staff, then the parties shall
reform the Agreement as necessary to satisfy the FCC Staff's concerns or, at
Programmer's option and expense, seek reversal of the Staff's decision and
approval from the full Commission or a court of law.
SECTION 5. ACCESS TO PROGRAMMER MATERIALS AND CORRESPONDENCE
5.1 Confidential Review. Prior to the commencement of any
programming by Programmer under this Agreement, Programmer shall acquaint the
Licensee with the nature and type of the programming to be provided. Licensee
shall be entitled to review at its discretion from time to time on a
confidential basis any of Programmer's programming material it may
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reasonably request. Programmer shall promptly provide Licensee with copies of
all correspondence and complaints received from the public (including any
telephone logs of complaints called in), and copies of all program logs and
promotional materials. However, nothing in this section shall entitle Licensee
to review the internal corporate or financial records of the Programmer.
5.2 Political Advertising. Programmer shall cooperate with
Licensee to assist Licensee in complying with all rules of the FCC regarding
political broadcasting. Licensee shall promptly supply to Programmer, and
Programmer shall promptly supply to Licensee, such information, including all
inquiries concerning the broadcast of political advertising, as may be
necessary to comply with FCC rules and policies, including the lowest unit
rate, equal opportunities, reasonable access, political file and related
requirements of federal law. Licensee, in consultation with Programmer, shall
develop a statement which discloses its political broadcasting policies to
political candidates, and Programmer shall follow those policies and rates in
the sale of political programming and advertising. In the event that
Programmer fails to satisfy the political broadcasting requirements under the
Act and the rules and regulations of the FCC and such failure inhibits Licensee
in its compliance with the political broadcasting requirements of the FCC, then
to the extent reasonably necessary to assure such compliance, Programmer shall
either provide rebates to political advertisers or release broadcast time
and/or advertising availabilities to Licensee at no cost to Licensee.
SECTION 6. TERMINATION AND REMEDIES UPON DEFAULT
6.1 Termination. In addition to other remedies available at law
or equity, this Agreement may be terminated as set forth below by either
Licensee or Programmer by written notice to the other if the party seeking to
terminate is not then in material default or breach hereof, upon the occurrence
of any of the following:
(a) subject to the provisions of Section 7.9, 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;
(b) subject to the provisions of Section 6.2(b), the
other party is in material breach of its obligations hereunder and has failed
to cure such breach within thirty (30) days of notice from the non-breaching
party;
(c) the mutual consent of both parties;
(d) 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
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and not the subject of an appeal or further administrative review and this
Agreement cannot be reformed, in a manner acceptable to Buyer and Seller, to
remove and/or eliminate the violation; or
(e) by either party upon six months written notice to the
other party.
6.2 Termination Requirements and Procedures.
(a) Programmer may terminate this Agreement pursuant to
Section 6.1(e) hereof only if it pays Licensee upon termination an amount equal
to twelve times the monthly compensation due for the month preceding the notice
of termination by Programmer pursuant to Attachments I and II.
(b) Licensee may terminate this Agreement pursuant to
Section 6.1(e) hereof only if it pays Programmer Liquidated Damages, calculated
in accordance with Attachment V.
(c) If a notice of termination pursuant to Section 6.1(b)
is contested by the other party pursuant to Section 7.10 hereof, such
termination shall not be effective unless and until there is a decision of an
arbitration panel permitting such termination.
(d) During any period prior to the effective date of any
termination of this Agreement, Programmer and Licensee agree to cooperate in
good faith to ensure that Station operations will continue, to the extent
possible, in accordance with the terms of this Agreement and that the
termination of this Agreement is effected in a manner that will minimize, to
the extent possible, the resulting disruption of the Station's ongoing
operations.
6.3 Force Majeure. Any failure or impairment of the Station's
facilities or any delay or interruption in the broadcast of programs, or
failure at any time to furnish facilities, in whole or in part, for broadcast,
due to Acts of God, strikes, lockouts, material or labor restrictions by any
governmental authority, civil riot, floods and any other cause not reasonably
within the control of Licensee, or for power reductions necessitated for
maintenance of the Station or for maintenance of other stations located on the
tower from which the Station will be broadcasting, shall not constitute a
breach of this Agreement and Licensee will not be liable to Programmer for
reimbursement or reduction of the consideration owed to Licensee.
6.4 Other Agreements. During the term of this Agreement or any
renewal hereof, Licensee will not enter into any other programming agreement
with any third party that would conflict with or result in a material breach of
this Agreement by Licensee.
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SECTION 7. MISCELLANEOUS
7.1 Assignment.
(a) Neither this Agreement nor any of the rights,
interests or obligations of either party hereunder shall be assigned,
delegated, encumbered, hypothecated or otherwise transferred without the prior
written consent of the other party, such consent not to be unreasonably
withheld. Notwithstanding the foregoing, Programmer shall have the right to
collaterally assign its rights and interests hereunder to its senior lenders.
(b) This Agreement shall be binding upon and inure to the
benefit of the parties hereto and their respective successors and permitted
assigns.
(c) Licensee agrees to enter into such agreements and
confirmations as Programmer's senior lenders may reasonably require: (i) to
acknowledge and confirm any collateral assignment of this Agreement to such
senior lenders; (ii) to provide for simultaneous notice and reasonable cure
rights, which rights must be exercised within 30 days after the 30-day period
specified in Section 6.1(b) hereof, to such senior lenders of any default by
Programmer under this Agreement; (iii) to provide simultaneous notice and
reasonable cure rights, which rights must be exercised within 30 days after the
expiration of the 30-day period specified in Section 6.1(b) hereof, to such
senior lenders prior to any election or action by Licensee to terminate or
cancel this Agreement pursuant to Section 6.1(b) and, if requested by such
senior lenders, to enter into a new Agreement on the same terms and conditions
as this Agreement with such senior lenders or their nominee, successor or
purchaser who (x) possesses all requisite qualifications to hold FCC licenses
and does in fact hold FCC licenses directly or through affiliates, (y) has not
had an authorization issued by the FCC revoked or an application for license
renewal denied by the FCC, and (z) possesses the financial capacity to perform
Programmer's obligations hereunder ("Lenders' Assignee"); (iv) in the event
that such senior lenders shall be entitled to foreclose or otherwise acquire
Programmer's interest in this Agreement, or if such senior lenders (or their
nominee, successor or purchaser who qualifies as a "Lenders' Assignee") shall
have elected to enter into a new Agreement, on the same terms and conditions as
this Agreement, with Licensee, to enable such senior lenders to acquire
Programmer's interest in this Agreement or assign such interest to any
purchaser or assignee of such senior lenders who qualifies as a "Lenders'
Assignee", or require Licensee to enter into a new Agreement, on the same terms
and conditions as this Agreement, directly with any purchaser or assignee of
such senior lenders who qualifies as a "Lenders' Assignee"; and (v) provide for
such other assurances as such senior lenders shall reasonably request in
connection with the exercise of their rights under this paragraph 7.1(c).
7.2 Call Letters. Upon request of Programmer, subject to the
consent of the Licensee, Licensee shall apply to the FCC for authority to
change the call letters of the Station
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(with the consent of the FCC) to such call letters that Programmer shall
reasonably designate. Licensee must coordinate with Programmer any proposed
changes to the call letters of the Station before taking any action to change
such letters.
7.3 Counterparts. This Agreement may be executed in one or more
counterparts, each of which will be deemed an original but all of which
together will constitute one and the same instrument.
7.4 Entire Agreement. This Agreement and the Attachments hereto
embodies the entire agreement and understanding of the parties relating to the
operation of the Station. No amendment, waiver of compliance with any
provision or condition hereof, or consent pursuant to this Agreement will be
effective unless evidenced by an instrument in writing signed by the parties.
7.5 Taxes. Licensee and Programmer shall each pay its own ad
valorem taxes, if any, which may be assessed on such party's respective
personal property for the periods that such items are owned by such party.
Programmer shall pay all taxes, if any, to which the consideration specified in
Section 1.5 herein is subject, provided that Licensee is responsible for
payment of its own income taxes.
7.6 Headings. The headings are for convenience only and will not
control or affect the meaning or construction of the provisions of this
Agreement.
7.7 Governing Law. The obligations of Licensee and Programmer are
subject to applicable federal, state and local law, rules and regulations,
including, but not limited to, the Act and the Rules and Regulations of the
FCC. The construction and performance of the Agreement will be governed by the
laws of the State of Florida.
7.8 Notices. All notices, demands and requests required or
permitted to be given under the provisions of this Agreement shall be (i) in
writing, (ii) sent by telecopy (with receipt personally confirmed by
telephone), delivered by personal delivery, or sent by commercial delivery
service or certified mail, return receipt requested, (iii) deemed to have been
given on the date telecopied with receipt confirmed, the date of personal
delivery, or the date set forth in the records of the delivery service or on
the return receipt, and (iv) addressed as follows:
To Programmer: Xxxxxx Communications Corp.
00000 X.X. Xxxxxxx 00 Xxxxx
Xxxxxxxxxx, XX 00000
Telecopy: (000) 000-0000
Telephone: (000) 000-0000
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To Licensee: Xxxxxx Media Corporation of Florida
000 X. Xxxxxxx Xxxxxx
Xxxxxx, XX 00000
Telecopy: (000) 000-0000
Telephone: (000) 000-0000
or to any such other or additional persons and addresses as the parties may
from time to time designate in a writing delivered in accordance with this
Section 7.8.
7.9 Severability. If any provision of this Agreement or the
application thereof to any person or circumstances shall be invalid or
unenforceable to any extent, the remainder of this Agreement and the
application of such provision to other persons or circumstances shall not be
affected thereby and shall be enforced to the greatest extent permitted by law.
In the event that the FCC alters or modifies its rules or policies in a fashion
which would raise substantial and material question as to the validity of any
provision of this Agreement, the parties hereto shall negotiate in good faith
to revise any such provision of this Agreement with a view toward assuring
compliance with all then existing FCC rules and policies which may be
applicable, while attempting to preserve, as closely as possible, the intent
of, and economic benefit to, the parties as embodied in the provision of this
Agreement which is to be so modified.
7.10 Arbitration. Any dispute arising out of or related to this
Agreement that Licensee and Programmer are unable to resolve by themselves
shall be settled by arbitration in Miami, Florida by a panel of three
arbitrators. Licensee and Programmer shall each designate one disinterested
arbitrator and the two arbitrators designed shall select the third arbitrator.
The persons selected as arbitrators need not be professional arbitrators, and
persons such as lawyers, accountants and bankers shall be acceptable. Before
undertaking to resolve a dispute, each arbitrator shall be duly sworn
faithfully and fairly to hear and examine the matters in controversy and to
make a just award according to the best of his or her understanding. The
arbitration hearing shall be conducted in accordance with the commercial
arbitration rules of the American Arbitration Association. The written
decision of a majority of the arbitrators shall be final and binding on
Licensee and Programmer. The costs and expenses of the arbitration proceeding
shall be assessed between Licensee and Programmer in a manner to be decided by
a majority of the arbitrators, and the assessment shall be set forth in the
decision and award of the arbitrators. Judgment on the award, if it is not
paid within thirty days, may be entered in any court having jurisdiction over
the matter. No action at law or in equity based upon any claim arising out of
or related to this Agreement shall be instituted in any court by Licensee or
Programmer against the other except: (i) an action to compel arbitration
pursuant to this Section; or (ii) an action to enforce the award of the
arbitration panel rendered in accordance with this Section.
7.11 No Joint Venture. Nothing in this Agreement shall be deemed
to create a joint venture between the Licensee and the Programmer.
16
IN WITNESS WHEREOF, the parties hereto have executed this Agreement
the day and year first above written.
LICENSEE: XXXXXX MEDIA CORPORATION OF FLORIDA
By:
------------------------------------------
Name:
Title:
PROGRAMMER: XXXXXX COMMUNICATIONS CORP.
By:
------------------------------------------
Name:
Title:
17
ATTACHMENT I
Compensation Schedule
Upon the effective date of this Agreement, Programmer shall have paid
Licensee a fee equal to the lesser of One Hundred Thousand Dollars ($100,000)
or two months operating expenses for the Station (as detailed on Attachment
II).
Programmer shall also reimburse Licensee on a monthly basis for
Licensee's payment of Station expenses listed on Attachment II upon receipt
from the Licensee of a certificate (with attached invoices, etc.) documenting
payment of those expenses.
Programmer shall also pay to Licensee the sum of Twenty-Five Thousand
Dollars ($25,000) each quarter during the term of this Agreement payable in
advance (the "License Service Fee"). The Licensee Service Fee for the first
quarter shall be payable upon the effective date of this Agreement.
Payments shall be made by delivery of a check to Licensee at an
address to be designated.
18
ATTACHMENT II
Station Operating Expenses
1. Employee salaries and fringe benefits, including withholding taxes and
health insurance in an amount not to exceed $50,000 per year
2. FCC filing and regulatory fees
3. Local, state and federal property taxes, license fees and similar
regulatory charges
4. Professional fees for attorneys, engineers, accountants
5. Lease payments for studio, tower and transmitter sites, and equipment
leases
6. Electric power and utilities
7. Telephone and facsimile charges, copying, printing, postage and
similar administrative expenses
8. Music licensing fees
9. Spare parts and tubes, including Klystron tubes, if necessary
10. Routine maintenance engineering services, control operator services
and chief operator services as required in order to comply with
Section 73.1870 of the FCC rules
11. Capital equipment required to keep the Station in compliance with FCC
requirements (e.g., equipment to comply with new EBS rules)
12. Monthly payments of principal and interest on purchase money financing
13. Travel and related expenses (such as hotel and car rental) of
shareholder of Licensee for no more than four round trips per year to
the Station
14. Administrative, legal, filing fees and related expenses incurred to
comply with requirements of Security Agreement, Pledge Agreement,
collateral assignments and mortgages
15. Program acquisition and production costs for programming broadcast by
Licensee in order to comply with FCC requirements applicable to Time
Brokerage Agreements
The above list is not intended to be all inclusive, but is for illustrative
purposes only.
19
ATTACHMENT III
Broadcast Station Programming Policy Statement
20
BROADCAST STATION PROGRAMMING POLICY STATEMENT
The following sets forth the policies generally applicable to the
presentation of programming and advertising over Television Station WHBI-TV,
Lake Worth, Florida. All programming and advertising broadcast by the station
must conform to these policies and to the provisions of the Communications Act
of 1034, as amended [the "Act"], and the Rules and Regulations of the Federal
Communications Commission ["FCC"].
Station Identification
The station must broadcast a station identification announcement once an hour
as close to the hour as feasible in a natural break in the programming. The
announcement must include (1) the station's call letters (currently, WHBI);
followed immediately by (2) the station's city of license (Lake Worth,
Florida).
Broadcast of Telephone Conversations
Before recording a telephone conversation for broadcast or broadcasting such a
conversation simultaneously with its occurrent, any party to the call must be
informed that the call will be broadcast or will be recorded for later
broadcast, and the party's consent to such broadcast must be obtained. This
requirement does not apply to calls initiated by the other party which are made
in a context in which it is customary for the station to broadcast telephone
calls.
Sponsorship Identification
When money, service, or other valuable consideration is either directly or
indirectly paid or promised as part of an arrangement to transmit any
programming, the station at the time of broadcast shall announce (1) that the
matter is sponsored, either whole or in part; and (2) by whom or on whose
behalf the matter is sponsored. Products or services furnished to the station
in consideration for an identification of any person, product, service,
trademark or brand name shall be identified in this manner.
In the case of any political or controversial issue broadcast for which any
material or service is furnished as an inducement for its transmission, an
announcement shall be made at the beginning and conclusion of the broadcast
stating (1) the material or service that has been furnished; and (2) the
person(s) or association(s) on whose behalf the programming is transmitted.
However, if the broadcast is 5 minutes duration or less, the required
announcement need only be made either at its beginning or end.
Prior to any sponsored broadcast involving political matters or controversial
issues, the station shall obtain a list of the chief executive officers,
members of the executive committee or board of directors of the sponsoring
organization and shall place this list in the station's public inspection file.
21
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Payola/Plugola
The station, its personnel, or its programmers shall not accept or agree to
accept from any person any money, service, or other valuable consideration for
the broadcast of any matter unless such fact is disclosed to the station so
that all required station identification announcements can be made. All
persons responsible for station programming must, from time to time, execute
such documents as may be required by station management to confirm their
understanding of and compliance with the FCC's sponsorship identification
requirements.
Rebroadcasts
The station shall not rebroadcast the signal of any other broadcast station
without first obtaining such station's prior written consent to such
rebroadcast.
Fairness
Station shall seek to afford coverage to contrasting viewpoints concerning
controversial issues of public importance.
Personal Attacks
The station shall not air attacks upon the honesty, character, integrity or
like personal qualities of any identified person or group. If such an attack
should nonetheless occur during the presentation of views on a controversial
issue of public importance, those responsible for programming shall submit a
tape or transcript of the broadcast to station management and to the person
attacked within 48 hours, and shall offer the person attacked a reasonable
opportunity to respond.
Political Editorials
Unless specifically authorized by station management, the station shall not air
any editorial which either endorses or opposes a legally qualified candidate
for public office.
Political Broadcasting
All "uses" of the station by legally qualified candidates for elective office
shall be in accordance with the Act and the FCC's Rules and policies, including
without limitation, equal opportunities requirements, reasonable access
requirements, lowest unit charge requirements and similar rules and
regulations.
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Obscenity and Indecency
The station shall not broadcast any obscene material. Material is deemed to be
obscene if the average person, applying contemporary community standards in the
local community, would find that the material, taken as a whole, appeals to the
prurient interest; depicts or describes in a patently offensive way sexual
conduct specifically defined by applicable state law; and taken as a whole,
lacks serious literary artistic, political or scientific value.
The station shall not broadcast any indecent material outside of the periods of
time prescribed by the Commission. Material is deemed to be indecent if it
includes language or material that, in context, depicts or describes, in terms
patently offensive as measured by contemporary community standards for the
broadcast medium, sexual or excretory activities or organs.
Billing
No entity which sells advertising for airing on the station shall knowingly
issue any xxxx, invoice or other document which contains false information
concerning the amount charged or the broadcast of advertising which is the
subject of the xxxx or invoice. No entity which sells advertising for airing
on the station shall misrepresent the nature or content of aired advertising,
nor the quantity, time of day, or day on which such advertising was broadcast.
Contests
Any contests conducted on the station shall be conducted substantially as
announced or advertised. Advertisements or announcements concerning such
contests shall fully and accurately disclose the contest's material terms. No
contest description shall be false, misleading or deceptive with respect to any
material term.
Hoaxes
The station shall not knowingly broadcast false information concerning a crime
or catastrophe.
Children's Programming
The station shall broadcast reasonable amounts of educational and informational
programming designed for children aged 16 years and younger.
Children's Advertising
Programming designed for children aged 12 years and younger shall not include
more than 12 minutes of commercial matter per hour, Monday through Friday, and
shall not include more than
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10.5 minutes of commercial matter per hour on weekend programming. There shall
be no host selling, as that term is defined by the FCC, in children's
programming on the station.
Emergency Information
Any emergency information which is broadcast by the station shall be
transmitted both aurally and visually or only visually.
Lottery
The station shall not advertise or broadcast any information concerning any
lottery (except the Florida State Lottery and any other state lottery). The
station may advertise and provide information about lotteries conducted by
non-profit groups, governmental entities and in certain situations, by
commercial organizations, if and only if there is no state or local restriction
or ban on such advertising or information and the lottery is legal under state
or local law. Any and all lottery advertising must first be approved by
station management.
Advertising
Station shall comply with all federal, state and local laws concerning
advertising, including without limitation, all laws concerning misleading
advertising, and the advertising of alcoholic beverages.
Programming Prohibitions.
Knowing broadcast of the following types of programs and announcements is
prohibited:
False Claims. False or unwarranted claims for any product or service.
Unfair Imitation. Infringements of another advertiser's rights
through plagiarism or unfair imitation of either program idea or copy,
or any other unfair competition.
Commercial Disparagement. Any unfair disparagement of competitors or
competitive goods.
Profanity . Any programs or announcements that are slanderous,
obscene, profane, vulgar, repulsive or offensive, as evaluated by
station management.
Violence. Any programs which are excessively violent.
Unauthenticated Testimonials. Any testimonials which cannot be
authenticated.
24
ATTACHMENT IV
Payola Statement
25
FORM OF PAYOLA AFFIDAVIT
City of ________________________ )
)
County of ______________________ ) SS:
)
State of _______________________ )
ANTI-PAYOLA/PLUGOLA AFFIDAVIT
________________________, being first duly sworn, deposes and says as follows:
1. He is _____________________ for _____________________.
Position
2. He has acted in the above capacity since ____________.
3. No matter has been broadcast by Station _____ for which service, money
or other valuable consideration has been directly or indirectly paid,
or promised to, or charged, or accepted, by him from any person, which
matter at the time so broadcast has not been announced or otherwise
indicated as paid for or furnished by such person.
4. So far as he is aware, no matter has been broadcast by Station _____
for which service, money, or other valuable consideration has been
directly or indirectly paid, or promised to, or charged, or accepted
by Station ____ or by any independent contractor engaged by Station
_____ in furnishing programs, from any person, which matter at the
time so broadcast has not been announced or otherwise indicated as
paid for or furnished by such person.
5. In future, he will not pay, promise to pay, request, or receive any
service, money, or any other valuable consideration, direct or
indirect, from a third party, in exchange for the influencing of, or
the attempt to influence, the preparation of presentation of broadcast
matter on Station _____.
6. Nothing contained herein is intended to, or shall prohibit receipt or
acceptance of anything with the expressed knowledge and approval of my
employer, but henceforth any such approval must be given in writing by
someone expressly authorized to give such approval.
7. He, his spouse and his immediate family do___ do not___ have any
present direct or indirect ownership interest in (other than an
investment in a corporation whose stock is publicly held), serve as an
officer or director of, whether with or without compensation, or serve
as an employee of, any person, firm or corporation engaged in:
26
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1. The publishing of music;
2. The production, distribution (including wholesale and retail
sales outlets), manufacture or exploitation of music, films,
tapes, recordings or electrical transcriptions of any program
material intended for radio broadcast use;
3. The exploitation, promotion, or management or persons
rendering artistic, production and/or other services in the
entertainment field;
4. The ownership or operation of one or more radio or television
stations;
5. The wholesale or retail sale of records intended for public
purchase;
6. Advertising on Station _____, or any other station owned by
its licensee (excluding nominal stockholdings in publicly
owned companies).
8. The facts and circumstances relating to such interest are none as
----
as follows :
----
----------------------------------------------------------------------
----------------------------------------------------------------------
--------------------------------------
Affiant
Subscribed and sworn to before me
this day of , 19 .
------ --------------- ---
------------------------------------------
Notary Public
My Commission expires: .
-------------------
27
ATTACHMENT V
Liquidated Damages
Licensee acknowledges that Programmer will make a substantial advance
payment in order to enter into the Time Brokerage Agreement; that Programmer
will acquire certain assets associated uniquely with the Station's operation
and will enter into various long-term agreements with program suppliers and
other third parties to produce programming for the Station at substantial
expense and risk; that Programmer will recruit, hire and maintain a staff of
employees dedicated to acquiring and producing quality programming to be
broadcast on the Station; and that Programmer will make substantial investments
in additional hard assets to produce quality programming for the Station.
Licensee also acknowledges that Programmer will make substantial investments,
both in tangible and intangible terms, to promote the Station under the Time
Brokerage Agreement, to create a unique image for the Station, and to develop a
competitive position in the market for the Station and that such efforts on the
part of Programmer will add substantial value to the Station. Licensee and
Programmer acknowledge and agree that any measure of actual damages cannot
compensate Programmer for the loss of Licensee's performance under this
Agreement and that the true measure of damages to Programmer for termination or
material breach of the Time Brokerage Agreement by Licensee is incapable of
accurate estimation with reasonable certainty. Licensee and Programmer
therefore agree that it is a fair and reasonable forecast of just compensation
for the harm caused to be measured by liquidated damages, as defined in
subparagraph (a) of this Attachment, to be paid to Programmer upon the
termination or material breach of the Time Brokerage Agreement by Licensee.
(a) "Liquidated Damages" shall mean an amount equal to funds
expended and/or committed to be expended by Programmer (except (i) with respect
to items (3) through (8) below, such expenditures and/or commitments shall be
consistent with industry practices and (ii) to the extent not theretofore
recovered by Programmer from the Station 's gross revenues prior to the
termination or material breach) in each of the following categories:
(1) the full value of all of Programmer's capital
expenditures incurred in connection with this Agreement, less
any consideration received by Programmer as a consequence of
any sale of such assets;
(2) the advance fee payment described in Attachment I,
less _________________________ Dollars ($____________) for
each full year the Time Brokerage Agreement is in effect;
(3) the full value of all service contracts and
programming agreements assumed and entered into by Programmer
for purposes of providing programming and advertising to be
broadcast on the Station, which Programmer owns at the time of
termination or breach less any consideration received by
Programmer as a consequence of its good faith efforts to sell
or assign such agreements;
28
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(4) the full value of all severance and employee benefit
packages that Programmer, in its discretion, shall provide to
employees whose services would not be required in the absence
of the Time Brokerage Agreement;
(5) the full value of any contract with third parties,
which could not be performed owing to termination of breach,
for services to be rendered in connection with programming
provided to the Station including, without limitation,
producers, advertising salespeople, technicians, engineers,
and any other independent contractors whose services would not
be required in the absence of the Time Brokerage Agreement;
(6) the full value of all expenses incurred to promote
the Station and position the Station in the marketplace;
(7) all corporate, legal, administrative, professional
and brokerage expenses attributable to Programmer's
negotiation and performance of the Time Brokerage Agreement;
and
(8) the good will and intangible value associated with
Programmer's efforts under this Agreement to create a unique
image and competitive market position for the Station.
(b) Should Licensee terminate or materially breach the Time
Brokerage Agreement, Programmer shall submit its computation of Liquidated
Damages under the categories set forth above to a "Big Six" accounting firm
mutually acceptable to the parties for independent auditing and verification.
Within thirty (30) days of verification, Licensee agrees to tender payment of
all verified amounts to Programmer; provided, however, that if Licensee objects
to any particular enumerated component of the Liquidated Damages, as verified,
it shall notify Programmer of such objection within fifteen (15) days of
verification. If thereafter Programmer and Licensee cannot agree as to the
amount of the objectionable component, either party shall have the right to
elect to arbitrate such dispute pursuant to Section 7.10 of the Time Brokerage
Agreement provided it gives written notice of its election to arbitrate by the
thirtieth (30) day following the date of Licensee's objection to Programmer's
verification. Notwithstanding that Licensee may question a particular
component of the Liquidated Damages and either party may elect arbitration of
the dispute, the reminder of the items comprising the Liquidated Damages shall
be paid by Licensee to Programmer within thirty (30) days of accounting
verification, as specified above. No payment shall be required as to any
contested component until the earlier of (i) Programmer and Licensee reaching
an agreement on the amount or (ii) entering of the arbitration award.
(c) If any category of Liquidated Damages is held to be invalid,
illegal or unenforceable, the validity, legality and enforceability of the
remainder of the categories of
29
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Liquidated Damages shall not be affected thereby, and the parties agree to use
their best efforts to negotiate a replacement category that is not invalid,
illegal or unenforceable.
