Time Brokerage Agreement

EXHIBIT 10.80


SELLER/BUYER TIME BROKERAGE AGREEMENT


This TIME BROKERAGE AGREEMENT (the "Agreement") is made as of November 1, 1999, between Ramar Communications, II, Ltd., a Texas limited partnership, ("Licensee") and ACME Television of New Mexico, LLC, a Delaware limited liability company ("Broker").


W I T N E S S E T H:
--------------------


WHEREAS, Broker is in the business of producing and transmitting news, sports, informational, public service and entertainment programming and associated advertising on Television Station KWBQ, Santa Fe, New Mexico ("KWBQ"); and


WHEREAS, Licensee is the holder of a license issued by the Federal Communications Commission ("FCC") authorizing the operation of a television station with the assigned call letters "KASY-TV" on Channel 50, Albuquerque, NM (the "Station"); and


WHEREAS, Licensee as Seller and Broker (as one of the parties comprising Buyer) are parties to that certain Asset Purchase Agreement dated February 19, 1999, as amended pursuant to amendments dated July 30, 1999 and November 1, 1999, relating to the Station ("Asset Purchase Agreement"); and


WHEREAS, Broker desires to provide programming to be transmitted on the Station; and


WHEREAS, Licensee desires to transmit programming supplied by Broker on the Station while maintaining control over the Station and continuing to broadcast Licensee's own public interest programming;


NOW, THEREFORE, in consideration of these premises and the mutual promises, undertakings, covenants and agreements of the parties contained in this Agreement, the parties hereto do hereby agree as follows:


2
2


ARTICLE 1
PROGRAMMING AGREEMENT


1.1 Brokered Programming. Subject to paragraphs 1.2 and 1.3 herein, Broker hereby agrees to provide, for transmission by the Station, news, sports, informational and entertainment programming and associated advertising, promotional, and public service programming and announcement matter for 168 hours per week ("Brokered Programming") throughout the Term hereof. All Brokered Programming and its transmission by the Station shall be subject to the supervision and control of Licensee.


1.2 Licensee Programming. Licensee will retain sole responsibility for ascertainment of the needs of its community of license and service area, including specifically the children therein. The parties agree that the Brokered Programming will include programming which responds to these ascertained needs and concerns, including educational and informational children's programming that complies with FCC rules (47 C.F.R. Section 73.670) and is in sufficient quantity to satisfy FCC policies governing children's programming; provided, however, Licensee shall have the right to broadcast such additional noncommercial programming, either produced or purchased by Licensee, as it determines appropriate to respond to the ascertained issues of community concern ("Licensee Programming"). Such Licensee Programming shall be broadcast at times mutually agreed to by Broker and Licensee, provided, however, that in the absence of such agreement, Licensee may delete or preempt in its sole discretion any Brokered Programming for the purpose of transmitting such Licensee Programming. For purposes of this Agreement, "noncommercial" shall mean any programming for which no consideration of any kind is received by Licensee.


1.3. Preemption. Licensee may at its discretion preempt or delete any Brokered Programming which Licensee believes to be unsatisfactory, unsuitable or contrary to the public interest, and may substitute programming which, in Licensee's opinion, is of greater local or national importance.


ARTICLE 2
OPERATIONS


2.1 Compliance with FCC Regulations. Subject to paragraph 9.14 herein, Licensee will retain ultimate responsibility for compliance with all FCC rules and policies, including, but not limited to (a) the employ of such personnel as may be necessary to assure compliance with all FCC regulations, including all technical regulations governing the operation of the Station; (b) complying with all programming


3
3


content requirements; (c) maintaining a main studio and providing a meaningful managerial and staff presence at the main studio; (d) ascertainment of and programming in response to community needs and concerns and the needs and concerns of children; (e) adhering to FCC limits on commercial matter in children's programming; and (f) meeting FCC requirements governing (i) political programming, (ii) sponsorship identification, (iii) lottery and contest matters, (iv) maintenance of the Station's public and political files, (v) compliance with appropriate quarterly issues programs lists, children's programming lists, and (vi) employment and EEO matters Broker will cooperate with Licensee so as to assist Licensee in meeting FCC requirements pertaining to operation of the Station, including but not limited to Broker's making main studio facilities and related technical facilities necessary to KASY-TV operations, such as studio-transmitter link facilities, available to Licensee at no expense at the end of the transition period contemplated by that certain November 1, 1999 Closing and Transition Agreement between Licensee, Broker, Lee Enterprises, Inc., and Sandia Television Corporation.


2.2 Provision of Programming. Subject to Licensee's control and supervision, Broker shall provide the Brokered Programming and shall be responsible for implementing its transmission by the Station, utilizing assets owned or leased by Broker to the extent necessary. To the extent Broker reasonably requests the use of tangible station assets owned by Licensee to enable Broker to fulfill its obligations under this Agreement, Licensee shall make the use of such assets reasonably available to Broker at no cost. To the extent Licensee requests the use of assets owned by Broker to produce or broadcast the programming specified in paragraphs 1.2 and 1.3 hereof, or to fulfill Licensee's obligations pursuant to paragraph 2.1 hereof, Broker shall make the use of such assets available to Licensee at no cost.


2.3 Station Staffing. Licensee shall have sole discretion to make and effectuate staffing and personnel decisions relating to its employees at the Station, including the sole responsibility to determine appropriate levels of staffing to fulfill Licensee's duties under paragraph 2.1 herein. Broker shall have no control or right of review whatsoever over any decision by Licensee to hire or dismiss any Licensee employee.


2.4 Station Operation. Licensee shall retain ultimate control over the Station's facilities, including specifically control over Station's finances, personnel and programming. Licensee shall retain sole responsibility for ensuring compliance with all FCC technical rules. Under the supervision and ultimate control of Licensee's Chief Operator, Broker shall maintain in good working order the Station's equipment used in connection with the broadcast of the Station's program material. Broker shall bear full


4
4


and exclusive responsibility for all expenditures that may be necessary to maintain the Station's equipment in good working order; provided, however, that Licensee shall retain responsibility for maintaining its antenna in good working order so long as the antenna is not substantially damaged through Broker's use.


ARTICLE 3
CONSIDERATION


3.1 Fee. Starting on the Commencement Date, as hereinafter defined, and each month thereafter during the Term of this Agreement, as defined below, so long as Licensee is not in breach of this Agreement, Broker shall pay to Licensee a monthly Time Brokerage Fee calculated according to the provisions set forth in Exhibit A.


3.2 Adjustments. Licensee may broadcast up to two hours of Licensee Programming per week pursuant to paragraph 1.2 without any adjustment to the fee set out in paragraph 3.1. If at any time during the Term of this Agreement, the Station shall fail to carry Brokered Programming for more than the two hours per week specified in this paragraph 3.2, the fee payable to Licensee by Broker shall be reduced by a fraction, the denominator of which equals the total Broker's weekly programming hours on Station and the numerator of which equals the sum be of Broker hours preempted by Licensee during the week in question.


ARTICLE 4
TERM


4.1 Term. The Term of this Agreement (the "Term") shall commence on November 1, 1999 (the "Commencement Date") and shall, unless earlier terminated pursuant to FCC regulation or by mutual consent of Licensee and Broker, terminate on the earlier of: (a) the consummation of the transactions contemplated by the Asset Purchase Agreement; or (b) the termination of the Asset Purchase Agreement. If this Agreement terminates pursuant to this paragraph 4.1, neither Licensee nor Broker shall have any liability to the other for damages of any kind under this Agreement.


4.2 Termination for Default and Nonperformance. Should either party be in breach of this Agreement for the nonperformance of a material obligation, this Agreement may be terminated by the non-defaulting party if such breach shall continue with respect to monetary defaults for a period of ten (10) days and, with respect to non-monetary defaults, for a period of fifteen (15) days following the receipt of written notice from the non-defaulting party ("Cure Period"), which notice shall indicate the nature of such


5
5


default; provided, however, that there shall be a final accounting of monies due but unpaid under this Agreement within thirty (30) days after the consummation or termination of the Asset Purchase Agreement. The Cure Period shall be extended as necessary for up to (but not exceeding) thirty (30) days for those non-monetary defaults which cannot be cured within fifteen (15) days, provided that the defaulting party is diligently working with all reasonable haste to remedy such default.


ARTICLE 5
ASSIGNABILITY


5.1 Assignability.


Neither party shall assign or transfer its rights, benefits, duties or obligations under this Agreement without the prior written consent of the other party, which consent shall not be unreasonably withheld or delayed.


ARTICLE 6
REGULATORY MATTERS


6.1 Renegotiation Upon FCC Action or Other Regulatory Changes. If the FCC determines that this Agreement is inconsistent with Licensee's licensee obligations or is otherwise contrary to FCC policies, rules and regulations, or if regulatory, legislative, or judicial action subsequent to the Commencement Date alters the permissibility of this Agreement under the FCC's rules or the Communications Act of 1934, as amended, the parties shall renegotiate this Agreement in good faith and recast this Agreement in terms that are likely to cure the defects perceived by the FCC or the changes caused by regulatory, legislative, or judicial action and return a balance of benefits to both parties comparable to the balance of benefits provided by the Agreement in its current terms. If, after such good faith negotiations, either party determines in good faith that recasting the Agreement to meet the defects perceived by the FCC is impossible without a material adverse effect on such party, either party may terminate this Agreement withou ...