Exhibit 10.15
JOINT SALES
AGREEMENT
THIS JOINT
SALES AGREEMENT (this “ Agreement ”) is made as of this
31st day of August 2007, (the “ Effective Date ”), by and among
Barrington Traverse City LLC , a Delaware limited liability
company (“ Sales
Agent ”) and Tucker Broadcasting of Traverse City,
Inc. ( “ Station Licensee ”), a
Delaware corporation.
W I T N E S S E T
H:
WHEREAS, Sales Agent is a party to that
certain Asset Purchase Agreement, by and among Max Media LLC and
MTC License LLC (collectively, “ Sellers ”) and Sales Agent, dated
as of the date hereof (the “ Station Purchase Agreement ”)
pursuant to which Sales Agent has agreed to purchase certain assets
of the Sellers related to the television broadcast stations WGTU,
channel 29, Traverse City, Michigan (“ WGTU ”) and WGTQ, channel 8,
Sault Ste. Marie, Michigan (“ WGTQ ” and together with WGTU,
the “ Stations
”) each serving the Traverse City/Cadillac, Michigan
market;
WHEREAS , Sales Agent and Station
Licensee are parties to that certain Assignment and Assumption
Agreement, dated as of the date hereof (the “ Assignment and Assumption Agreement
”), pursuant to which Sales Agent has assigned certain of its
rights under the Station Purchase Agreement to Station Licensee,
including the right to purchase the FCC licenses (the “
FCC Licenses ”) for,
and the assets of, the Stations;
WHEREAS, in order
to better and more efficiently promote the economic and business
development of the Stations following the closing of the
transactions contemplated by the Station Purchase Agreement, the
parties desire to enter into this Agreement as of and with respect
to the period following the Base Date (as defined below);
and
WHEREAS , simultaneously with the
execution and delivery of this Agreement, the parties hereto are
entering into that certain Shared Services Agreement, with respect
to which Sales Agent shall provide certain services and make
available to the Station Licensee certain technical and other
facilities (the “ Shared
Services Agreement ”).
NOW,
THEREFORE , in consideration of the foregoing premises and
the mutual promises, undertakings, covenants and agreements of the
parties contained in this Agreement, the parties hereto, intending
to be legally bound, hereby agree as follows:
ARTICLE
I
DEFINITIONS
Section 1.1
Terms
Defined in this Section . The following terms, as used in this
Agreement, shall have the meanings set forth in this
Section:
“
Affiliate ” means,
with respect to any Person, (a) any other Person that, directly or
indirectly through one or more intermediaries, controls, is
controlled by, or is under common control with such Person, or (b)
an officer or director of such Person or of an Affiliate of such
Person within the meaning of clause (a) of this definition.
For purposes of clause (a) of this definition, without limitation,
( i ) a Person shall be deemed to control another Person if
such Person (A) has sufficient power to enable such Person to elect
a majority of the board of directors (or comparable governing body)
of such Person, or (B) owns a majority of the beneficial interests
in income and capital of such Person, and ( ii ) a Person
shall be deemed to control any partnership of which such Person is
a general partner.
“
Applicable Law ”
means any of the Communications Act, the FCC Rules, and all other
federal, state and local constitutions, laws, statutes, codes,
rules, regulations, ordinances, judgments, orders, decrees and the
like of any governmental entity, including common law.
“
Base Date ” means the
date on which the closing of the Station Purchase Agreement shall
have occurred.
“
Communications Act ”
means the Communications Act of 1934, as amended, as in effect from
time to time.
“
FCC ” means the
Federal Communications Commission or any successor agency
thereto.
“
FCC Rules ” means the
rules and published policies of the FCC, as in effect from time to
time.
“
Market ” means the
Nielsen “Designated Market Area” that encompasses the
Stations.
“
Network ” means any
national television network party to any network affiliation
agreement to which Licensee is a party with respect to the
Station.
“
Obligations of Sales Agent
” means any and all obligations and duties of Sales Agent
under ( i ) this Agreement, and ( ii ) the Shared
Services Agreement.
“
Person ” includes,
without limitation, natural persons, corporations, business trusts,
associations, companies, joint ventures, and
partnerships.
“
Third Party Claim ”
means any action, suit, claim or legal, administrative,
arbitration, mediation, governmental or other proceeding or
investigation, other than any brought by a party to this Agreement
or an Affiliate of a party to this Agreement.
“
Transaction Documents
” means this Agreement, the Shared Services Agreement, the
Option Agreement, the Letter Agreement, the Station Purchase
Agreement, the Assignment and Assumption Agreement and the other
documents, agreements and instruments executed by the parties
hereto and thereto in connection therewith.
Section 1.2
Additional
Defined Terms . In addition to the defined terms in the
preamble, recitals and Section 1.1 hereof, the following is a
list of terms used in this Agreement and a reference to the section
or schedule hereof in which such term is defined:
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|
Term
|
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Section/Schedule
|
|
|
|
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Acquisition Financing
Arrangement
|
|
Schedule 3.1
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Advertisements
|
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Section 4.1
|
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Broadcast
Material
|
|
Section 4.3
|
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Defense
Counsel
|
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Section 8.3
|
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Defense
Notice
|
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Section 8.3
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Delivered
Programming
|
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Section 4.2
|
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Designated
Expenses
|
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Schedule 3.1
|
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Direct Claim
|
|
Section 8.3(e)
|
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Disclosure
Statement
|
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Section 5.2(c)
|
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Indemnified
Party
|
|
Section 8.3
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Indemnifying
Party
|
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Section 8.3
|
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Initial Term
|
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Section 2.1(a)
|
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Licensee Revenue
Share
|
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Section 3.1(a)
|
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Loss
|
|
Section 8.1
|
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Net Sales
Revenue
|
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Schedule 3.1
|
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Operating
Budget
|
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Section 5.1(d)
|
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Option
Agreement
|
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Section 2.2(a)
|
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Other
Expenses
|
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Schedule 3.1
|
|
Policy
Statement
|
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Section 4.3
|
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Premises
|
|
Section 5.4
|
|
Principal
Agreements
|
|
Schedule 3.1
|
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PSAs
|
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Section 4.4
|
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Ratings
Agencies
|
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Section 5.1(j)
|
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Sales Agent
Assignee
|
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Section 9.3
|
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Sales Agent Indemnified
Party
|
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Section 8.2
|
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Station Indemnified
Party
|
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Section 8.1
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Term
|
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Section 2.1(b)
|
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Trade
Agreements
|
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Section 4.5
|
ARTICLE
II
TERM
Section 2.1
Term
.
(a) Initial Term .
This Agreement shall be deemed effective, and the initial term
hereof shall commence, on and as of the Base Date and such initial
term (the “ Initial
Term ”) shall continue until the eighth (8th)
anniversary of the Base Date, unless terminated in accordance with
Section 2.2 below.
(b) Renewal Term .
This Agreement shall be renewed automatically for an additional
term of eight (8) years commencing on the day following the
expiration of the Initial Term (the Initial Term and any such
renewal terms hereinafter referred to as the “ Term ”); provided ,
however , that this Agreement may be terminated by Sales
Agent, on the one hand, or Station Licensee, on the other, prior to
the expiration of the Initial Term by delivery to the other party
of 180 days prior written notice of such termination, which notice
may be given by such
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party to the other party commencing on the date
which is seven (7) years and six (6) months after the Base
Date.
Section 2.2
Termination
.
(a) Mutual Agreement .
This Agreement may be terminated at any time by mutual agreement of
the parties hereto. This Agreement shall terminate upon the
Option Closing (as such term is defined in the Option Agreement)
under that certain Option Agreement, dated as of the date hereof,
by and between Station Licensee and Sales Agent, as such agreement
may be amended from time to time pursuant to the terms thereof (the
“ Option Agreement
”).
(b) Termination by Station
Licensee or Sales Agent . This Agreement may be
terminated by Station Licensee or Sales Agent, by written notice to
the other, upon the occurrence of any of the following events;
provided that any such termination shall be effective as of
the date thirty (30) days after such notice:
(i)
this Agreement has been
declared invalid under Applicable Law or illegal in whole or
substantial part by an order or decree of an administrative agency
or court of competent jurisdiction which is not subject to appeal
or further administrative or judicial review, and the parties,
acting in good faith, are unable to agree upon a modification of
the Agreement so as to cause the Agreement to comply with
Applicable Law; or
(ii)
there has been a change in
the Communications Act or the FCC Rules that causes this Agreement
in its entirety to be in violation thereof and the applicability of
such change is not subject to appeal or further administrative
review; and the parties, acting in good faith, are unable to agree
upon a modification of the Agreement so as to cause the Agreement
to comply with the Communications Act or the FCC Rules as so
changed.
(c) Termination by Sales
Agent . This Agreement may be terminated by Sales Agent,
by written notice to Station Licensee, upon the occurrence of any
of the following events, provided that any such termination
shall be effective as of the date thirty (30) days after such
notice and provided further that if there is an
exercise of the Option (as defined in the Option Agreement) under
the Option Agreement prior to any such termination or during the
30-day period thereafter, the termination hereunder shall not be
effective until the either of ( i ) the Option Closing (as
defined in the Option Agreement) or ( ii ) the termination
of the Option Agreement:
(i)
if Sales Agent is not then
in material breach and Station Licensee is in material breach under
this Agreement or the Shared Services Agreement (other than a
breach by Station Licensee of any of its payment obligations under
the Shared Services Agreement) and Station Licensee has failed to
cure such breach within thirty (30) days after receiving written
notice of such breach from Sales Agent, or if Sales Agent is not
then in material breach and Station Licensee breaches any of its
payment obligations to Sales Agent under the Shared Services
Agreement (other than any such payment obligation that is being
contested in good faith) which breach shall not have been cured
within fifteen (15) days after receiving written notice of such
breach from Sales Agent;
(ii)
if Station Licensee or any
Affiliate of Station Licensee makes a general assignment for the
benefit of creditors, files, or has filed against it, a petition
for
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bankruptcy, reorganization or an arrangement
for the benefit of creditors, or for the appointment of a receiver,
trustee, or similar creditor’s representative for the
property or assets of Station Licensee or any Affiliate of Station
License under any federal or state insolvency law which, if filed
against Station Licensee or any Affiliate of Station Licensee, has
not been dismissed within thirty (30) days thereof; or
(iii)
upon and at any time
following termination of the Option Agreement.
(d) Termination by Station
Licensee . This Agreement may be terminated by Station
Licensee, by written notice to Sales Agent, upon the occurrence of
any of the following events, provided that any such
termination shall be effective as of the date thirty (30) days
after such notice and provided further that if there
is an exercise of the Option under the Option Agreement prior to
any such termination or during the 30-day period thereafter, the
termination hereunder shall not be effective until the either of (
i ) the Option Closing or ( ii ) the termination of
the Option Agreement:
(i)
if Station Licensee is not
then in material breach and Sales Agent breaches any of its
obligations under this Agreement or the Shared Services Agreement
which breach reasonably could be expected to result in the
revocation or non-renewal of the Stations’ FCC Licenses and
such breach shall not have been cured within thirty (30) days after
receiving written notice of such breach from Station Licensee, or
if Sales Agent breaches any of its payment obligations to Station
Licensee (other than any such payment obligation that is being
contested in good faith) which breach shall not have been cured
within fifteen (15) days after receiving written notice of such
breach from Station Licensee;
(ii)
if Sales Agent or any of
its Affiliates makes a general assignment for the benefit of
creditors, files, or has filed against it a petition for
bankruptcy, reorganization or an arrangement for the benefit of
creditors, or for the appointment of a receiver, trustee, or
similar creditor’s representative for the property or assets
of Sales Agent or any of its Affiliates under any federal or state
insolvency law which, if filed against Sales Agent or any of its
Affiliates, has not been dismissed within thirty (30) days thereof;
or
(iii)
upon and at any time
following termination of the Option Agreement.
Section 2.3
Certain
Matters Upon Termination .
(a) Continuing Obligations
. No expiration or termination of this Agreement shall
terminate the obligations of any party hereto to indemnify the
other parties for Third Party Claims under Section 8 of this
Agreement, or limit or impair any party’s rights to receive
payments due and owing hereunder on or before the effective date of
such termination.
(b) Cooperation .
Notwithstanding anything to the contrary contained in this
Agreement, if this Agreement is terminated pursuant to the second
sentence of Section 2.2(a) following the Option Closing, the
parties shall cooperate with each other as may be reasonably
requested to effect an allocation of the revenues and expenses for
any partial calendar month
5
resulting from such termination or to effect
any working capital payment required in connection with such
allocation or a related transfer of control pursuant to the Option
Agreement.
ARTICLE
III
CONSIDERATION
Section 3.1
Licensee
Revenue Share.
(a) As consideration for the right
of Sales Agent to market and sell air time made available under
this Agreement, with respect to each calendar month during the
Term, Sales Agent shall pay over to Station Licensee an amount
equal to seventy percent (70%) of the total amount of Net Sales
Revenue for the applicable calendar month (the “ Licensee Revenue Share ”).
Sales Agent shall retain the remaining thirty percent (30%) of the
total amount of Net Sales Revenue for such calendar month as its
commission with respect to its sales agency, programming and other
duties hereunder.
(b) The Licensee Revenue Share
shall be due and payable on the fifteenth (15th) day of each
calendar month and shall be calculated with respect to the
immediately preceding calendar month in accordance with Schedule
3.1 . The Licensee Revenue Share shall be prorated for
any partial calendar month during the Term.
ARTICLE
IV
SCOPE OF
SERVICES
Section 4.1
Sales and
Related Services. Except as expressly provided to the
contrary herein, Station Licensee retains Sales Agent on an
exclusive basis for the Term to market and sell all forms of
regional and local spot advertising, sponsorships, direct response
advertising, paid programming (including infomercials), and all
long-form advertising broadcast on the Stations and all advertising
on any Internet site maintained by or on behalf of the Stations
during the Term (the “ Advertisements ”). Subject
to the terms of Schedule 3.1 , national spot
advertising broadcast on the Stations shall continue to be sold by
the Stations’ national rep firm as selected from time to time
by Station Licensee. Station Licensee shall provide to Sales
Agent and its employees such information as Sales Agent may
reasonably request to support the marketing and sale of the
Advertisements and the collection of accounts receivable with
respect thereto. Sales Agent also shall be responsible for
the Stations’ traffic, billing and collection functions for
the Advertisements. Sales Agent shall designate an adequate
number of its personnel to perform such services for the
Stations. Sales Agent shall conduct the sales and traffic
functions for the Stations in accordance with standard practice in
the industry. Sales Agent and Station Licensee shall
periodically review the personnel needs and job functions of the
persons designated by Sales Agent to perform its obligations under
this Agreement and implement such changes as they mutually agree
are appropriate. Revenues from the sale of the Advertisements
shall be allocated between Sales Agent and Station Licensee as set
forth in Section 3. Sales Agent may sell the Advertisements
in combination with any other broadcast stations of its choosing;
provided , however , that under no circumstances may
Sales Agent require advertisers to purchase time on the Stations
and any other station together. Subject to Section 4.3, the
placement, duration and rates of the Advertisements shall be
determined by Sales Agent. The value of commercial time
bartered in
6
exchange for programming shall be excluded from
the definition of Net Sales Revenue. Network compensation and
retransmission fees payable in connection with the Stations shall
be included in the computation of Net Sales Revenue.
Section 4.2
Delivered
Programming . Commencing on the Base Date, Sales
Agent shall provide to the Station Licensee for broadcast,
simulcast or rebroadcast on the Stations, as applicable, local news
and other programming as described more particularly in Schedule
4.2 hereof (the “ Delivered Programming ”), which
Delivered Programming shall be less than 25 hours per week and less
than 15% of the Stations’ broadcast hours for any week.
Sales Agent shall be responsible for obtaining the rights to
broadcast the Delivered Programming on the Stations and for paying
all costs incurred in obtaining such rights. To the extent
permission is required to rebroadcast any Delivered Programming
under Section 325 of the Communications Act, Sales Agent hereby
grants Station Licensee such permission. The Delivered
Programming shall be subject to Sales Agent’s editorial
judgment and the requirements of Section 4.3, including but not
limited to the right of rejection or preemption of Station
Licensee. All Delivered Programming shall be in conformity in
all material respects with standards established by Station
Licensee and consistent with similar programming broadcast on Sales
Agent’s own television broadcast stations and shall otherwise
conform to all Applicable Law, including the Communications Act,
the FCC Rules and the intellectual property rights of third
parties.
Section 4.3
Content
Policies . All material furnished by Sales Agent
for broadcast on the Stations, including all Delivered Programming
and Advertisements (collectively, “ Broadcast Material ”) shall
comply with applicable federal, state and local regulations and
policies, including commercial limits in children’s
programming. Station Licensee shall have the right to preempt
any Broadcast Material to present program material of greater local
or national importance. Station Licensee may reject any
Broadcast Material if it reasonably determines that the broadcast
of such material would violate Applicable Law or would otherwise be
contrary to the public interest. Station Licensee shall
promptly notify Sales Agent of any such rejection, preemption, or
rescheduling and shall cooperate with Sales Agent in efforts to
fulfill commitments to advertisers and syndicators.
Schedule 4.3 sets forth Station Licensee’s statement
of policy (the “ Policy
Statement ”) with regard to the Broadcast
Material. Sales Agent shall ensure that the Broadcast
Materials are in compliance with the terms of this Agreement and
the Policy Statement.
Section 4.4
Public
Service Announcements . Sales Agent acknowledges that the Stations
have in the past provided time on the Stations for the promotion of
public service organizations in the form of public service
announcements (“ PSAs
”), and agrees that it will release spot time to Station
Licensee for the broadcast of PSAs at times and in amounts
consistent with the Stations’ past practices and consistent
with Sales Agent’s operating policies applicable to the
broadcast of PSAs. Station Licensee and Sales Agent shall
cooperate in good faith concerning the placement of the PSAs to be
broadcast on the Stations; provided , however , that
Station Licensee shall be ultimately responsible for selecting,
obtaining and scheduling PSAs for broadcast on the
Stations.
Section 4.5
Trade and
Barter Spots . On or as soon as reasonably practicable
after the Base Date, Station Licensee shall deliver to the Sales
Agent a list, which is accurate and complete in all material
respects, of all contracts for the sale of advertising time on the
Stations for non-cash consideration that are in effect as of, and
will extend beyond, the Base Date (“ Trade
7
Agreements
”). Sales
Agent shall comply with and honor all such Trade Agreements, if and
to the extent that Trade Agreement spots may be broadcast on a
preemptible basis. The dollar value of advertising time on
the Stations provided to advertisers pursuant to Trade Agreements
shall not be included in the computation and determination of Net
Sales Revenue for purposes of this Agreement. After the Base
Date Sales Agent and Station Licensee shall have the right to enter
into new contracts for the sale of Advertisements for non-cash
consideration, provided that the parties agree to each such
Trade Agreement and provided further that the dollar
value of such advertising time on the Stations for such Trade
Agreements shall be included in the computation and determination
of Net Sales Revenue for purposes of this Agreement. The
parties shall mutually agree as to the use of the non-cash
consideration received for each new Trade Agreement. For
purposes of this Section 4.5, the term “Trade
Agreement” applies only to the bartering of advertising in
return for goods and services other than programming.
Section 4.6
Accounts
Receivable . Notwithstanding anything to the
contrary contained herein, any accounts receivable or revenue
received by Sales Agent in respect of the operation of the Stations
during the period prior to the Base Date, in respect of which the
Sellers received a credit to the purchase price under the Station
Purchase Agreement or to which the Sellers are entitled pursuant to
the Station Purchase Agreement, if any, shall not be included in
Net Sales Revenue.
Section 4.7
Monthly
Reports; Books and Records . The following obligations shall begin
on the first day of the first full calendar month beginning after
the Base Date:
(a) On or before the twentieth
(20th) day of each calendar month during the Term, Sales Agent
shall furnish Station Licensee with a report regarding Sales
Agent’s sales by advertiser, of the Advertisements for the
previous calendar month. Without limiting Schedule 3.1
hereof, Station Licensee shall have the right to review the books
and records of Sales Agent at reasonable times and upon reasonable
notice, with respect to the sale of Advertisements and any other
sales by Sales Agent in connection with or related to its sale of
the Advertisements for the Stations.
(b) Station Licensee shall furnish
to Sales Agent information each month with respect to Station
Expenses. Upon reasonable prior notice, Sales Agent
shall have the right at all reasonable times to review (and the
right, at Sales Agent’s expense, to make copies of) the books
and records of Station Licensee, provided that the foregoing
access shall not interfere unreasonably with the Stations’
business.
(c) The audit and inspection rights
of Sales Agent under this Section 4.7 shall survive any termination
or expiration of this Agreement for a period of two (2)
years.
Section 4.8
Control
. Notwithstanding
anything to the contrary in this Agreement, the parties hereto
acknowledge and agree that during the Term, Station Licensee will
maintain ultimate control and authority over the Stations,
including, specifically, control and authority over the
Stations’ operations, finances, personnel and
programming. Without limiting the generality of the
foregoing, nothing contained in this Agreement shall be deemed to
limit the control and authority of Station Licensee with respect to
the selection, development and acquisition of any and all
programming to be broadcast over the Stations, as well as the
payment therefor, other than
8
those payments of Sales Agent associated with
the Delivered Programming. To that end, Station Licensee
shall (a) have exclusive authority for the negotiation,
preparation, execution and implementation of any and all
programming agreements for the Stations, and (b) retain and hire or
utilize whatever employees Station Licensee reasonably deems
appropriate or necessary to fulfill those programming
functions. Sales Agent shall not represent, warrant or hold
itself out as the licensee of the Stations, and all sales material
prepared by Sales Agent for the sale of advertising time on the
Stations shall identify Station Licensee as the licensee of the
Stations using mutually agreeable wording and references.
Sales Agent shall sell advertising time and enter into all
agreements for the sale of time on the Stations and for the
Delivered Programming in its own name.
ARTICLE
V
OTHER OBLIGATIONS OF THE
PARTIES
Section 5.1
Responsibilities
of Station Licensee . Station Licensee, at its expense, shall
be responsible for and perform the following obligations with
respect to the business and operations of the Stations during the
Term, in accordance with and subject to the following
provisions:
(a) Station Licensee shall continue
to maintain full control over the operations of the Stations,
including programming editorial policies, employees of Station
Licensee and Station Licensee-controlled facilities. Station
Licensee shall be responsible for, and shall comply in all material
respects with all applicable provisions of the Communications Act,
the FCC Rules and all other Applicable Law with respect to the
operation of the Stations. Station Licensee shall file in a
timely and complete manner all reports and applications required to
be filed with the FCC or any other governmental body.
(b) Station Licensee shall maintain
in effect policies of insurance insuring the assets and the
business of the Station in accordance with good industry
practices.
(c) Station Licensee shall use,
operate, and maintain all of its assets in a commercially
reasonable manner. If any loss, damage, impairment,
confiscation or condemnation of any of such assets occurs, Station
Licensee shall use commercially reasonable efforts and cooperate
with Sales Agent to repair, replace, or restore the assets to their
prior condition as soon thereafter as possible, and Station
Licensee shall use the proceeds of any claim under any insurance
policy to repair, replace or restore any of the assets of the
Stations that are lost, damaged, impaired or destroyed.
(d) Station Licensee shall be
responsible for payment of all operating costs of the Stations
(excluding those costs to be borne by Sales Agent in accordance
with Section 5.2), including the cost of electricity, other
utilities and rental or other payments with respect to any real
property leased by Station Licensee, taxes, the Services Fee (as
defined in the Shared Services Agreement) and the salaries,
insurance, and other costs for all personnel employed by Station
Licensee and, without limiting the foregoing, shall pay all other
Station Expenses. Promptly following the Base Date, but in no
event more than thirty (30) days thereafter, Station Licensee shall
provide Sales Agent copies of the operating budgets of the Stations
(collectively, the
9
“ Operating Budget ”), which shall
reflect Station Licensee’s good faith budget of reasonable
and customary capital and other expenses necessary to the
operations of the Stations and not otherwise contemplated by the
Designated Expenses, as determined by Station Licensee in its sole
discretion. Station Licensee shall provide updated copies of
the Operating Budget each year during the Term, identifying
adjustments from year to year.
(e) Subject to the Obligations of
Sales Agent, Station Licensee shall pay when due all music rights
payments (including, without limitation, music performance rights,
synchronization rights, and master use rights), if any, in
connection with the broadcast and/or transmission of all
announcements, including the Advertisements, and programming on the
Stations, other than the Delivered Programming.
(f) Station Licensee shall be
solely responsible for all costs and expenditures associated with
the procuring of programming to be aired on the Stations, other
than those associated with the Delivered Programming. Station
Licensee shall pay over to Sales Agent all funds received by
Station Licensee each year from the Network and any other program
syndicator or supplier for promotion of the Network and other
programming on other stations or media, and Sales Agent shall use
all such funds solely for their intended promotional or other
similar purposes and in accordance with Section 4(b) of the Shared
Services Agreement. Station Licensee shall cooperate with
Sales Agent in filing any necessary forms or reports required to
obtain co-op reimbursement or other funds to which Sales Agent is
entitled under this Section 5.1(f). For the purposes of
Schedule 3.1 hereof, Sales Agent’s receipt of
promotional or co-op payments identified in this Section 5.1(f)
shall not be considered a part of Net Sales Revenue and its
expenditures of such promotional or co-op payments shall not be
considered an expense for purposes of calculating Net Sales
Revenue. To the extent that any network or program service
agreement of Station Licensee provides that, in exchange for cash
payment, additional spot time that otherwise would be used by such
network or program service may be released for local sales by the
Stations, Station Licensee, upon request by the Sales Agent, will
obtain the release of such commercial spot inventory for the
placement of Advertisements by the Sales Agent, subject to Sales
Agent paying to Station Licensee the cash amount required for such
release.
(g) Subject to the provisions of
any network affiliation or other programming agreement to which
Station Licensee is a party, Station Licensee shall consult and
cooperate with Sales Agent in the negotiation, maintenance and
enforcement of retransmission consent agreements with cable,
satellite and other multichannel video providers. Station
Licensee, in consultation with Sales Agent, shall exercise its
rights to mandatory carriage and retransmission consent for cable
television and other multichannel video providers in a manner that
ensures the maximum possible distribution of the Stations’
signal on cable, direct-broadcast-satellite and other multichannel
video programming distributors serving communities located in the
Market.
(h) Station Licensee shall not take
any action or unreasonably omit to take any action that would be
reasonably likely to result in a ( i ) revocation,
non-renewal or material impairment of the FCC Licenses, ( ii
) material adverse effect upon the Stations’
transmitters, antennae and other material assets included in the
Stations’ transmission facilities or ( iii ) material
breach or default under the terms of any of the agreements to which
Station Licensee is a party on and as of the date
hereof.
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(i) Station Licensee shall list
Sales Agent as the exclusive sales representative for the
Advertisements in all applicable trade listings and advertising and
promotional material if and when such listings and material are
published by Station Licensee.
(j) To the extent permitted under
the terms of any applicable agreement, Station Licensee shall
provide to Sales Agent such routine ratings information and ratings
reports with respect to the Stations as are customarily prepared or
obtained by the Stations in the ordinary course of business as
Sales Agent may reasonably request from time to time. Except
as otherwise agreed by the parties hereto, Station Licensee shall
maintain (including timely payment of all fees) any agreements with
A.C. Nielsen Company or its affiliates or other ratings information
providers customarily used by the Stations as a source of local
station research information for the Stations (collectively, the
“ Ratings Agencies
”). At Sales Agent’s request, Station Licensee
shall use its commercially reasonable efforts to assist Sales Agent
in obtaining from the Ratings Agencies permission to use the
Stations’ ratings information and reports in connection with
the sale of the Advertisements.
(k) During the Term, Station
Licensee shall not: ( i ) engage in any business other
than the business of owning and operating the Stations; ( ii
) incur any liabilities or obligations, except those liabilities
and obligations incurred in connection with its business conducted
in compliance with clause (i) of this Section 5.1(k); ( iii
) incur any indebtedness for borrowed money, including guaranteeing
or becoming a surety with respect to the indebtedness of another
Person; ( iv ) file a voluntary petition in bankruptcy, any
petition or answer seeking for itself any reorganization,
arrangement, composition, readjustment of debt, liquidation or
dissolution or similar relief under any present or future
insolvency statute, law or regulation of any jurisdiction; petition
or apply to any tribunal for any receiver, custodian or any trustee
for substantially all of its properties or assets; file any answer
to any such petition admitting or not contesting the material
allegations of any such petition sufficient to support the grant or
approval of any such order, judgment or decree; seek, approve or
consent to any such proceeding or in the appointment of any
trustee, receiver, sequestrator, custodian, liquidator or fiscal
agent for it or substantially all of its properties or assets; or
take any action for the purpose of effecting any of the foregoing;
or be the subject of an order entered appointing any such trustee,
receiver, custodian, liquidator or fiscal agent, or ( v)
amend or modify any provision of that certain Agreement by and
between Station Licensee and Tucker Media and Management Consulting
L.L.C., as its sole shareholder, dated as of the date hereof (the
“ Tucker Management
Agreement ”).
(l) During the Term, Station
Licensee shall cooperate with Sales Agent and, upon request by
Sales Agent, use commercially reasonable efforts to assist Sales
Agent in making and prosecuting any claims for indemnification
pursuant to the Station Purchase Agreement relating to any assets
of the Stations owned, leased or held by Station Licensee which are
or may be subject to claims under th
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