Exhibit 10.63
Execution Copy
SHARED SERVICES AGREEMENT
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This Shared Services Agreement ("Agreement") is entered into as of June 13,
2003 by and between Mission Broadcasting, Inc. ("Mission"), and Nexstar
Broadcasting of Abilene, L.L.C. ("Nexstar"). Mission and Nexstar are referred to
collectively as the "Parties."
WHEREAS, Mission provides programming to television broadcast stations
KRBC-TV, Abilene, Texas ("KRBC"), and KACB-TV, San Angelo, Texas ("KACB"),
pursuant to a Local Marketing Agreement, and has entered into an Asset Purchase
Agreement with LIN Television Corporation, TVL Broadcasting of Abilene, Inc. and
Abilene Broadcasting, LLC, pursuant to which it has agreed to acquire
substantially all of the assets of KRBC and KACB, both agreements being dated as
of December 13, 2002. Television station KTAB-TV, Abilene, Texas ("KTAB") is
owned and operated by Nexstar.
WHEREAS, KRBC and KACB and KTAB are collectively referred to as the
"Stations" provided that KRBC and KACB are sometimes referred to collectively as
a "Station."
NOW, THEREFORE, for their mutual benefit and in order to enhance the
respective abilities of Nexstar and Mission to compete with other television and
media outlets serving the Abilene, Texas market, Nexstar and Mission agree as
follows:
1. SHARING ARRANGEMENTS GENERALLY. From time to time, Nexstar and Mission
may agree to share the costs of certain services and procurements which they
individually require in connection with the operation of the Stations. Such
sharing arrangements may take the form of joint or cooperative buying
arrangements, or the performance of certain functions relating to the operation
of one Station by employees of the operator of the other Station (subject in all
events to the supervision and control of personnel of the operator of the
Station to which such functions relate), or may be otherwise structured, and
will be governed by terms and conditions upon which Nexstar and Mission may
agree from time to time. Such sharing arrangements may include the co-location
of the studio, non-managerial administrative and/or master control and technical
facilities of the Stations and the sharing of grounds keeping, maintenance,
security and other services relating to those facilities. In performing services
under any such sharing arrangement (including those described in Section 4),
personnel of one Party will be afforded access to, and have the right to
utilize, without charge, assets and properties of the other Party to the extent
necessary or desirable in the performance of such services.
2. CERTAIN SERVICES NOT TO BE SHARED.
(a) Senior Management Personnel. At all times, each Station will have
personnel performing the typical functions of a general manager and a business
manager. Such personnel will (i) be retained solely by the Party which owns
and/or provides programming to such Station and will report solely to such
Party, and (ii) have no involvement or responsibility in respect of the
operation of the other Station.
(b) Programming and Sales. Each Party will maintain for the Station
operated or programmed by it separate managerial and other personnel to carry
out the selection and procurement of programming for such Station and the
pricing and selling of commercial and
advertising time on such Station, and in no event will the Parties or the
Stations share services, personnel, or information pertaining to such matters,
except as set forth in Section 4(f)(i) below.
3. GENERAL PRINCIPLES GOVERNING SHARING ARRANGEMENTS. All arrangements
contemplated by this Agreement will be subject to, and are intended to comply in
all respects with, the Communications Act of 1934, as amended, the rules,
regulations and policies of the Federal Communications Commission (the "FCC"),
as in effect from time to time (the "FCC Rules and Regulations"), and all other
applicable laws. The arrangements made pursuant to this Agreement will not be
deemed to constitute "joint sales," "program services," "time brokerage," "local
marketing," or similar arrangements or a partnership, joint venture, or agency
relationship between the Parties or the Stations, and no such arrangement will
be deemed to give either Party any right to control the policies, operations,
management or any other matter relating to the Station owned and/or programmed
by the other Party.
4. CERTAIN SPECIFIC SHARING ARRANGEMENTS. In furtherance of the general
agreements set forth in Sections 1 through 3 above, Nexstar and Mission have
agreed as follows with respect to the sharing of certain services:
(a) Execution of Promotional Policies. Nexstar personnel will
implement and execute the promotional policy developed by Nexstar personnel for
KTAB from time to time. Subject to direction and control by Mission management
personnel, Nexstar personnel will also execute the promotional policy for KRBC
and KACB. Such execution will include such tasks as graphic design, production
and media placement and buying.
(b) Continuity and Traffic Support. Nexstar personnel will carry out
continuity and other tasks necessary to support management personnel and
functions for KTAB. Subject to direction and control by management personnel of
Mission, Nexstar personnel will also carry out continuity and such other tasks
with respect to KRBC and KACB.
(c) Master Control. Master control operators and related employees of
Nexstar may carry out master control functions for KRBC and KACB subject to the
direction and control of Mission.
(d) Payable Support. Nexstar personnel will not engage in the payment
of accounts payable of Mission arising under contracts for the license of
programming run or to be run on KRBC and KACB, the payment of Mission's payroll
with respect to KRBC and KACB, or other obligations of Mission incurred in the
normal course of business.
(e) Transmission Facilities Maintenance. Nexstar personnel will
maintain and repair (as needed) the transmission facilities of KTAB. Subject to
direction and control by Mission management personnel, Nexstar personnel will
also maintain and repair (as needed) the transmission facilities of KRBC and
KACB.
(f) Newscast Production.
(i) Production and Delivery. Utilizing KTAB management
personnel and facilities, Nexstar may provide live-feed, fully-staffed and
produced newscasts for broadcast on KRBC and KACB at such times as Mission may
request from time to time by reasonable
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advance notice to Nexstar; provided that such newscasts will not comprise more
than 15% (by duration) of the programming broadcast on KRBC and KACB during any
broadcast day. Nexstar will be responsible for delivering such newscasts to KRBC
and KACB's broadcast facilities. Mission shall make available to Nexstar (A)
such space in the KRBC and KACB studio and facilities as may be reasonably
necessary to produce such newscasts, (B) such non-management-level news
personnel as may be necessary to produce such newscasts, and (C) such technical
facilities of KRBC and KACB as may be necessary to produce such newscasts and to
deliver such newscasts to KRBC's and KACB's transmission facilities. Nexstar
will use reasonable efforts to provide that such newscasts are of a quality
appropriate to KRBC's and KACB's markets. Such newscasts will be produced
exclusively for Mission for broadcast on KRBC and KACB, but may include
non-exclusive videotape, graphics, news stories, field reports and other
material. Mission personnel will determine the title and format of such
newscasts, and such newscasts will have an "on-air appearance" as if they had
been originated by Mission through KRBC and KACB.
(ii) Commercial, Advertising and Promotional Spots. Mission will
determine the amount of commercial advertising time and promotional time to be
provided for during such newscasts. Mission will have the exclusive right to
sell commercial advertising time during such newscasts and will retain all
revenue from the sale of such commercial advertising time.
(iii) Editorial Control and Responsibility. Nexstar will use
reasonable efforts to maintain a system of editorial review to ensure the
accuracy, prior to broadcast, of all investigative reports and other stories
prepared by Nexstar personnel and included in the newscasts which Nexstar
provides to Mission. Each Party will maintain the following types of insurance
coverage for no less than the indicated amounts and will deliver to the other
Party upon request a certificate of insurance showing the following: (A)
comprehensive general liability insurance in an amount of $1,000,000; (B)
worker's compensation and/or disability insurance; and (C)
libel/defamation/First Amendment liability insurance, with a deductible of no
more than $100,000, as to which coverage each Party will name the other party as
an additional insured.
(iv) NBC News Feeds. Subject to Nexstar, Mission and National
Broadcasting Company, Inc. entering into a news sharing agreement in form and
substance agreeable to the parties thereto, Nexstar will be free to utilize, at
its discretion, the NBC Network News feed footage in the newscasts it produces
for Mission.
(v) Operating Procedures Agreement. Nexstar and Mission will
collaborate to create a newscast operating agreement or procedural memo which
will provide the basis for daily operations, contingencies, KRBC's and KACB's
access to breaking stories, procedures for editorial compliance with FCC Rules
and Regulations (including quarterly programs/issues requirements), regularly
scheduled operations, editorial and ratings reviews and guidelines for access by
Mission personnel and KRBC and KACB customers to Nexstar's facilities.
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(g) Services Fee. In consideration for the services to be provided to
KRBC and KACB by Nexstar personnel as described in Sections 4(a) through 4(f),
Mission will pay to Nexstar the fee (the "Services Fee") described in this
Section 4(g).
(i) Base Amount. Subject to the remaining provisions of this
Section 4(g), the base amount of the Services Fee during any calendar year will
be $1,800,000 per annum.
(ii) Payment Terms. The Services Fee will be payable monthly, in
arrears, in equal installments of $150,000 per month during each calendar year
from and after the month during which this Agreement is executed, and will be
prorated on a daily basis for calendar year 2003 and the calendar year during
which the sharing arrangements described in Sections 4(a) through 4(f) are
terminated.
5. FORCE MAJEURE. If a force majeure event such as a strike, labor
dispute, fire, flood or other act of God, failure or delay of technical
equipment, war, public disaster, or other reason beyond the cause or control of
Nexstar or Mission prevents such Party or its personnel from performing tasks
which it is required to perform under this Agreement during any period of time,
then such failure will not be a breach of this Agreement and such Party will be
excused from such performance during that time.
6. UNENFORCEABILITY. 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, except
that if such invalidity or unenforceability should change the basic economic
positions of the Parties, they shall negotiate in good faith such changes in
other terms as shall be practicable in order to restore them to their prior
positions. In the event that the FCC alters or modifies its rules or policies in
a fashion which would raise substantial and material questions as to the
validity of any provision of this Agreement, the Parties shall negotiate in good
faith to revise any such provision of this Agreement in an effort to comply with
all applicable FCC Rules and Regulations, while attempting to preserve the
intent of the Parties as embodied in the provisions of this Agreement. The
Parties agree that, upon the request of either of them, they will join in
requesting the view of the staff of the FCC, to the extent necessary, with
respect to the revision of any provision of this Agreement in accordance with
the foregoing. If the Parties are unable to negotiate a mutually acceptable
modified Agreement, then either party may terminate this Agreement upon written
notice to the other. Upon such termination, Mission shall pay to Nexstar all
accrued and unpaid Service Fees and each Party shall be relieved of any further
obligations, one to the other.
7. TERM OF SHARING ARRANGEMENTS. The term of this Agreement shall
commence on the date of execution of this Agreement. The initial term of this
Agreement is ten (10) years. Unless otherwise terminated by either Party, the
term of this Agreement shall be extended for an additional ten (10) year term.
Either Party may terminate this Agreement at the end of the initial ten year
term by six months prior written notice to the other. Notwithstanding the
foregoing, the sharing arrangements contemplated by this Agreement will
terminate (i) upon the termination of the TBA other than in connection with the
consummation of the transactions
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contemplated by the Purchase Agreement, (ii) upon the consummation of the
purchase and sale of assets of Mission relating to KRBC and KACB by Nexstar, or
an assignee of Nexstar, under the terms of a certain Option Agreement (the
"Option Agreement") entered into by Mission and Nexstar or an affiliate of
Nexstar (the "Optionee"), or (iii) at Nexstar's option, if the assets of Mission
relating to KRBC and KACB are sold to a party other than Optionee (in any case,
the date upon which such termination occurs being the "Cessation Date"). Except
as provided in Section 4(g)(ii), no termination of this Agreement, whether
pursuant to this Section 7 or otherwise, will affect Mission's duty to pay any
Services Fee accrued, or to reimburse any cost or expense incurred, prior to the
effective date of that termination.
8. INDEMNIFICATION.
(a) Nexstar's Indemnification of Mission. Nexstar will indemnify and
hold harmless Mission and Mission's employees, agents, officers and contractors
from and against any and all liability, claims, losses, damages and causes of
action including but not limited to reasonable attorney's fees (collectively,
"Losses") arising out of or related to (i) any material breach or default by
Nexstar of any of its representations, warranties, covenants or agreements made
in this Agreement, and (ii) the newscasts provided by Nexstar. Without limiting
the generality of the foregoing, Nexstar will indemnify and hold harmless
Mission and Mission's employees, agents, officers and contractors from and
against any and all Losses for libel and slander, infringement of trademarks,
service marks or trade names, invasion or violation of rights of privacy or
infringement of copyrights and other proprietary rights resulting from the
newscasts provided by Nexstar. Nexstar's obligation to indemnify and hold
harmless Mission and Mission's employees, agents, officers and contractors from
and against the Losses specified above shall survive any termination of this
Agreement until the expiration of all applicable statutes of limitation.
(b) Mission's Indemnification of Nexstar. Mission will indemnify and
hold harmless Nexstar and Nexstar's employees, agents, officers and contractors
from and against any and all Losses arising out of or related to (i) any
material breach or default by Mission of any of its representations, warranties,
covenants or agreements made in this Agreement, and (ii) any programming or
commercial advertisements provided, furnished or sold by Mission. Without
limiting the generality of the foregoing, Mission will indemnify and hold
harmless Nexstar and Nexstar's employees, agents, officers and contractors from
and against any and all Losses for libel and slander, infringement of
trademarks, service marks or trade names, invasion or violation of rights of
privacy or infringement of copyrights and other proprietary rights resulting
from programming or commercial advertisements provided, furnished or sold by
Mission. Mission's obligation to indemnify and hold harmless Nexstar and
Nexstar's employees, agents, officers and contractors from and against the
Losses specified above shall survive any termination of this Agreement until the
expiration of all applicable statutes of limitation.
9. AMENDMENT AND WAIVER. This Agreement may be amended and any provision
of this Agreement may be waived; provided that any such amendment or waiver will
be binding upon a Party only if such amendment or waiver is set forth in a
writing executed by such Party.
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10. NOTICES. All notices, demands and other communications given or
delivered under this Agreement will be in writing and will be deemed to have
been given when personally delivered or delivered by express courier service.
Notices, demands and communications to Nexstar or Mission will, unless another
address is specified in writing, be sent to the address indicated below:
To Mission: Mission Broadcasting, Inc.
000 Xxx Xxxx Xxxxx
Xxxxxxxxx, XX 00000
Attention: Xxxxx X. Xxxxx, President
With a copy (which shall not constitute notice) to:
Drinker Xxxxxx & Xxxxx LLP
0000 X Xxxxxx, X.X., Xxxxx 0000
Xxxxxxxxxx, X.X. 00000-0000
Attention: Xxxxxx X. Xxxxxxxx
To Nexstar: Nexstar Broadcasting Group, L.L.C.
000 Xxxx Xxxxxxx Xxxxxxx
Xxxxx 0000
Xxxxxx, XX 00000
Attention: Xxxxx Xxxx, President & CEO
With a copy (which shall not constitute notice) to:
Xxxx X. Xxxxx, Esq.
Xxxxxxxx & Xxxxx
Citicorp Center
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX 00000-0000
11. ASSIGNMENT; BINDING AGREEMENT. Neither party may assign its rights and
obligations, either in whole or in part, without the prior written consent of
the other; however, such consent shall not be unreasonably withheld. The
covenants, conditions and provisions hereof are and shall be for the exclusive
benefit of the parties hereto and their permitted successors and assigns, and
nothing herein, express or implied, is intended or shall be construed to confer
upon or to give any person or entity other than the parties hereto and their
permitted successors and assigns any right, remedy or claim, legal or equitable,
under or by reason of this Agreement. This Agreement shall be binding upon and
inure to the benefit of the parties and their respective permitted successors
and assigns.
12. NO STRICT CONSTRUCTION. The language used in this Agreement will be
deemed to be the language chosen by the Parties to express their mutual intent.
In the event an ambiguity or question of intent or interpretation arises, this
Agreement will be construed as if drafted jointly by the Parties, and no
presumption or burden of proof will arise favoring or disfavoring any Party by
virtue of the authorship of any of the provisions of this Agreement.
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13. CAPTIONS. The captions used in this Agreement are for convenience of
reference only, do not constitute a part of this Agreement and will not be
deemed to limit, characterize or in any way affect any provision of this
Agreement, and all provisions of this Agreement will be enforced and construed
as if no caption had been used in this Agreement.
14. AUTHORITY; ENTIRE AGREEMENT. Both Mission and Nexstar represent that
they are legally qualified and able to enter into this Agreement. This Agreement
and the Option Agreement embody the entire agreement between the parties with
respect to the subject matter hereof and thereof, and there are not other
agreements, representations, or understandings, oral or written, between them
with respect thereto.
15. COUNTERPARTS. This agreement may be executed in one or more
counterparts, each of which will be deemed an original but all of which taken
together will constitute one and the same instrument.
16. GOVERNING LAW. All questions concerning the construction, validity and
interpretation of this Agreement will be governed by and construed in accordance
with the internal laws of the State of Texas, without giving effect to any
choice of law or conflict of law provision (whether of the State of Texas or any
other jurisdiction) that would cause the application of the laws of any
jurisdiction other than the State of Texas. In furtherance of the foregoing, the
internal law of the State of Texas will control the interpretation and
construction of this Agreement (and all schedules and exhibits hereto), even if
under that jurisdiction's choice of law or conflict of law analysis, the
substantive law of some other jurisdiction would ordinarily apply.
17. PARTIES IN INTEREST. Nothing in this Agreement, express or implied, is
intended to confer on any person or entity other than the Parties and their
respective permitted successors and assigns any rights or remedies under or by
virtue of this Agreement.
18. WAIVER OF JURY TRIAL. AS A SPECIFICALLY BARGAINED INDUCEMENT FOR EACH
OF THE PARTIES TO ENTER INTO THIS AGREEMENT (EACH PARTY HAVING HAD OPPORTUNITY
TO CONSULT COUNSEL), EACH PARTY EXPRESSLY WAIVES THE RIGHT TO TRIAL BY JURY IN
ANY LAWSUIT OR PROCEEDING RELATING TO OR ARISING IN ANY WAY FROM THIS AGREEMENT
OR THE TRANSACTIONS CONTEMPLATED HEREIN.
19. OTHER DEFINITIONAL PROVISIONS. The terms "hereof," "herein" and
"hereunder" and terms of similar import will refer to this Agreement as a whole
and not to any particular provision of this Agreement. Section references
contained in this Agreement are references to Sections in this Agreement, unless
otherwise specified. Each defined term used in this Agreement has a comparable
meaning when used in its plural or singular form. Each gender-specific term used
in this Agreement has a comparable meaning whether used in a masculine, feminine
or gender-neutral form. Whenever the term "including" is used in this Agreement
(whether or not that term is followed by the phrase "but not limited to" or
"without limitation" or words of similar effect) in connection with a listing of
items within a particular classification, that listing will be interpreted to be
illustrative only and will not be interpreted as a limitation on, or an
exclusive listing of, the items within that classification.
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SIGNATURE PAGE TO
SHARED SERVICES AGREEMENT
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IN WITNESS WHEREOF, the Parties have executed this Shared Services
Agreement as of the date first written above.
MISSION BROADCASTING, INC.
By: /s/ Xxxxx X. Xxxxx
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Name: Xxxxx X. Xxxxx
Title: President
NEXSTAR BROADCASTING OF ABILENE, L.L.C.
By: /s/ Xxxxx X. Xxxx
---------------------------------
Name: Xxxxx X. Xxxx
Title: President
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