Document/Exhibit Description Pages Size
1: 10-Q Paxson Communications, Inc. Form 10-Q 21 142K
13: EX-10.100 Asset Purchase Agreement 40 175K
14: EX-10.101 Asset Purchase Agreement 41 177K
15: EX-10.102 Asset Purchase Agreement 45 190K
16: EX-10.103 Construction Agreement 9 37K
17: EX-10.104 Loan Agreement 29 120K
18: EX-10.105 Asset Purchase Agreement 44 184K
19: EX-10.106 Asset Purchase Agreement 42 176K
20: EX-10.107 Agreement and Plan of Merger 34 110K
21: EX-10.107.01 First Amendment to Agreement and Plan of Merger 3 17K
22: EX-10.108 Asset Purchase Agreement 41 174K
23: EX-10.109 Option Agreement 9 35K
24: EX-10.110 Subordinated Note 13 50K
25: EX-10.111 Asset Purchase Agreement 40 142K
26: EX-10.112 Asset Purchase Agreement 40 169K
27: EX-10.113 Time Brokerage Agreement 28 96K
28: EX-10.114 Purchase Agreement 17 63K
29: EX-10.115 Asset Purchase Agreement 32 138K
30: EX-10.116 Asset Purchase Agreement 32 148K
31: EX-10.117 Asset Purchase Agreement 32 144K
32: EX-10.118 Asset Purchase Agreement 33 147K
33: EX-10.119 Time Brokerage Agreement 16 70K
34: EX-10.120 Loan Agreement 28 109K
35: EX-10.121 Second Amendment to Asset Purchase Agreement 6 22K
36: EX-10.122 Asset Purchase Agreement 41 180K
37: EX-10.123 Asset Purchase Agreement 94 303K
38: EX-10.124 Loan Agreement 52 170K
39: EX-10.125 Time Brokerage Agreement 28 98K
40: EX-10.126 Option Agreement 18 64K
2: EX-10.89 Amended as Restated Promissory Note 6 25K
3: EX-10.90 First Anemdment to Loan Agreement 2 15K
4: EX-10.91 Asset Purchase Agreement 15 73K
5: EX-10.92 Asset Purchase Agreement 41 174K
6: EX-10.93 The Brokerage Agreement 29 97K
7: EX-10.94 Asset Purchase Agreement 38 173K
8: EX-10.95 First Amendment 2 15K
9: EX-10.96 Promissory Note 4 21K
10: EX-10.97 Stock Purchase Agreement 42 199K
11: EX-10.98 Asset Purchase Agreement 42 178K
12: EX-10.99 Asset Purchase Agreement 42 177K
41: EX-27 Financial Data Schedule (For SEC Use Only) 1 12K
EXHIBIT 10.119
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TIME BROKERAGE AGREEMENT
BY AND BETWEEN
CHANNEL 55 OF MILWAUKEE, INC.
AND
PAXSON COMMUNICATIONS OF
MILWAUKEE-55, INC.
FOR
TELEVISION STATION WHKE-TV
MILWAUKEE, WISCONSIN
* * *
JULY ___, 1996
===============================================================================
TABLE OF CONTENTS
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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 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
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 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
SECTION 5. ACCESS TO PROGRAMMER MATERIALS AND CORRESPONDENCE . . . . . . . . . . . . . . . . . . . . . . . . . 8
5.1 Confidential Review . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
5.2 Political Advertising . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
SECTION 6. TERMINATION AND REMEDIES UPON DEFAULT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
6.1 Termination . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
6.2 Termination Requirements and Procedures . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
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6.3 Force Majeure . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
6.4 Other Agreements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
SECTION 7. MISCELLANEOUS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
7.1 Assignment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
7.2 Call Letters . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
7.3 Counterparts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
7.4 Entire Agreement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
7.5 Taxes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
7.6 Headings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
7.7 Governing Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
7.8 Notices . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
7.9 Severability . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
7.10 Arbitration . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
7.11 No Joint Venture . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
TIME BROKERAGE AGREEMENT
This TIME BROKERAGE AGREEMENT, made this ____ day of July, 1996, by
and between CHANNEL 55 OF MILWAUKEE, INC., a Florida corporation (the
"Licensee"), and PAXSON COMMUNICATIONS OF MILWAUKEE-55, INC., a Florida
corporation (the "Programmer").
WHEREAS, Licensee owns and operates Television Station WHKE-TV,
Kenosha, Wisconsin (the "Station"), pursuant to authorizations issued by the
Federal Communications Commission ("FCC").
WHEREAS, Programmer is involved in television station programming and
operation.
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 ten years from that date unless otherwise extended or terminated as set
forth below.
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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 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 ninety-eight 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 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 Attachment
I.
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 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.
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1.7 Licensee Representations and Warranties. Licensee represents and
warrants as follows:
(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.
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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 Kenosha, Wisconsin, the station's 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, upon request by
Licensee, provide Licensee with such information concerning Programmer's
programs and advertising as is necessary to assist Licensee in the preparation
of such information. Licensee shall also maintain the station logs, receive and
respond to telephone inquiries, 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 will provide and be
responsible for the Station personnel necessary for the broadcast transmission
of its own programs (including, without limitation, the Station's General
Manager and such operational and other personnel as may be necessary or
appropriate), and will be responsible for 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
- 5 -
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 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.
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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 Section 1.3 hereof.
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 Kenosha 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 Kenosha 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, Licensee may request, and Programmer shall
provide, information
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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.
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.
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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 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
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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) 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 and not the subject of an appeal or
further administrative review and this Agreement cannot be reformed, in a
manner acceptable to Programmer and Licensee, 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 an amount equal to six times the
monthly compensation due for the month preceding the notice of termination by
Programmer pursuant to Attachment I.
(b) Licensee may terminate this Agreement pursuant to
Section 6.1(e) hereof only if it pays Programmer an amount equal to six times
the monthly compensation due for the month preceding the notice of termination
by Licensee pursuant to Attachment I.
(c) 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
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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
agreement with any third party that would conflict with or result in a material
breach of this Agreement by Licensee.
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, 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 lenders.
(b) This Agreement shall be binding upon and inure to the
benefit of the parties hereto and their respective successors and permitted
assigns.
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 (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.
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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: Paxson Communications of Milwaukee-55, Inc.
601 Clearwater Park Road
West Palm Beach, FL 33401
Telecopy: (407) 659-4252
Telephone: (407) 659-4122
To Licensee: Channel 55 of Milwaukee, Inc.
14444 66th Street North
Clearwater, FL 34624
Telecopy: (813) 530-0671
Telephone: (813) 536-0036
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
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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 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.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement
the day and year first above written.
LICENSEE: CHANNEL 55 OF MILWAUKEE, INC.
By: /s/ James L. West
-----------------------------------
James L. West
Chairman
PROGRAMMER: PAXSON COMMUNICATIONS OF
MILWAUKEE-55, INC.
By: /s/ William L. Watson
---------------------------------
William L. Watson
Secretary
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