Exhibit 2.8
LOCAL PROGRAMMING AND MARKETING AGREEMENT
dated as of
December 23, 1997
by and between
CUMULUS BROADCASTING, INC.
and
XXXXX BROADCASTING CORPORATION
TABLE OF CONTENTS
Recitals.......................................................................1
Agreement......................................................................1
1. Term/Termination Options..........................................1
(a) Term........................................................1
(b) Option Upon Termination of Agreement for Sale of Station....2
(c) Effect of Termination on Advertising and other Contracts....2
2. Fees..............................................................2
(a) Monthly Fee.................................................2
3. Programs..........................................................2
(a) Operation of Station........................................2
(b) Programming Standards.......................................3
(c) Ancillary Broadcast Rights..................................3
(d) Programming and Operations Standards........................3
(e) Call Signs..................................................3
4. Facilities and Equipment..........................................4
(a) Facilities..................................................4
(b) Maintenance.................................................4
(c) Transmitter Site............................................4
(d) Interruption of Normal Operations...........................4
5. Costs of Operating Station........................................5
(a) General.....................................................5
(b) Employees...................................................5
(c) Insurance for Transmitter Site..............................6
(d) Insurance for New Studio and Programmer's Studio............6
(e) Music Licenses..............................................7
6. Advertising and Programming Revenues..............................7
7. Accounts Receivable and Accounts Payable..........................7
(a) General.....................................................7
(b) Carryover Accounts..........................................8
8. Operation of Station..............................................8
9. Station Identification............................................8
10. Special Events....................................................9
11. Handling of Mail..................................................9
12. Payola............................................................9
13. Compliance with Law...............................................9
14. Licensee's Representations........................................9
(a) Qualification...............................................9
(b) Authorizations..............................................9
(c) Filings....................................................10
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(d) Compliance With FCC Requirements...........................10
(e) Content of the Programming.................................10
15. Programmer's Representations.....................................10
(a) Qualification..............................................10
(b) Content of the Programming.................................11
16. Events of Default: Cure Periods and Remedies.....................11
(a) Events of Default..........................................11
(i) Non-Payment....................................11
(ii) Breach of Covenants............................11
(iii) Breach of Representation or Warranty...........11
(iv) Bankruptcy, etc................................11
(b) Cure Periods...............................................11
(c) Remedies...................................................12
(d) Specific Performance.......................................12
17. No Brokers.......................................................12
18. General..........................................................12
(a) Notices....................................................12
(b) Modification and Waiver....................................13
(c) Construction...............................................13
(d) Headings...................................................14
(e) No Assignment..............................................14
(f) Counterpart Signature......................................14
(g) Entire Agreement...........................................14
(h) No Partnership or Joint Venture Created....................14
(i) Severability...............................................14
(j) Force Majeure..............................................14
(k) Other Agreements...........................................14
Appendix A: LMA Payments
Appendix B: Programming Standards
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LOCAL PROGRAMMING AND MARKETING AGREEMENT
This Local Programming and Marketing Agreement is entered into as of the
__th day of December, 1997, by and among Cumulus Broadcasting, Inc., a Nevada
corporation ("Programmer"), and Xxxxx Broadcasting Corporation (the "Licensee").
Recitals
Licensee holds the FCC broadcast license and auxiliary licenses for radio
station WJCL-FM (licensed to Savannah, Georgia).
Licensee and Programmer have entered into an Asset Purchase Agreement as
of December ___, 1997 (the "Sale Agreement"), pursuant to which Programmer will
purchase from Licensee, upon receipt of consent of the FCC, Licensee's assets
used or useful in the operation of the Station (the "Sale").
The Station's transmitter facilities are at locations described in Section
2(j) of the Disclosure Schedule of the Sale Agreement (the "Transmitter Sites").
The Station's studio is at a location described in Section 2(j) of the
Disclosure Schedule of the Sale Agreement (the "Studio").
Licensee has broadcast time on the Station available for sale. Programmer
desires to purchase time on the Station for the broadcast of Programmer's
programming and the sale of advertising time for inclusion in said programming.
NOW, THEREFORE, in consideration of the mutual covenants herein contained,
the parties hereby agree as follows:
Agreement
1. Term/Termination Options
(a) Term. The term of this Agreement (the "Term") will begin at 12:01
a.m. on January 1, 1998, and expire at 11:59 p.m. on the earliest of
(i) December 31, 1998, or (ii) the closing of the Sale, unless
earlier terminated in accordance with this Section 1 or Sections
4(d) or 16, below. Each party will fulfill all its obligations
hereunder through the date of termination or expiration. After
termination or expiration, neither party will have any further
obligations hereunder except as provided in this Section 1.
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(b) Option Upon Termination of Agreement for Sale of Station. If at any
time either (i) Licensee shall terminate the Sale Agreement, or (ii)
Programmer shall terminate the Sale Agreement, in each case in
compliance with the terms of the Sale Agreement, then either party
may terminate this Agreement, upon at least 10 days' advance written
notice to the other party.
(c) Effect of Termination on Advertising and other Contracts. On the
termination date, Programmer will provide to Licensee a written
schedule of all advertising commitments for the Station then in
effect. Licensee shall reasonably cooperate with Programmer to honor
all such advertising commitments then outstanding, in which event
Licensee shall receive as compensation for the broadcasting of such
programming that which otherwise would have been paid to Programmer;
provided, however, as to fees received by Licensee for advertising
broadcasts by Programmer prior to the Termination Date, Licensee
agrees to pay to Programmer 100 percent (100%) of all advertising
revenue received by Licensee with respect thereto (after deduction
and payment of applicable sales commissions) within 120 days using
procedures comparable to those specified in Section 7 below.
Programmer will remain liable for all other contracts entered into
and other liabilities incurred by Programmer in the course of its
performance under this Agreement, if any, and Licensee shall not
assume any liability therefor.
2. Fees.
Monthly Fee. Programmer will pay Licensee for the broadcast of the
programs hereunder a fee each month as described in more detail in Appendix A to
this Agreement (the "Monthly Fee"). The Monthly Fee will be payable on the first
day of each calendar month during the Term, to Xxxxx Broadcasting Corporation,
___________, or to such other address as Licensee may designate in writing. The
failure of Licensee to demand or insist upon prompt payment of the Monthly Fee
will not constitute a waiver of its right to do so.
3. Programs.
(a) Operation of Station. Throughout the Term, Licensee will make the
Station and time on the Station available to Programmer for up to
166 hours per week, Sunday through Saturday, except for downtime
occasioned by routine maintenance. Programmer will provide
entertainment programming of its selection consistent with the
current format of the Station, complete with commercial matter,
news, public service announcements and other suitable programming
(the "Programming"). Subject to the limitations set forth herein,
all time on the Station not reserved to Licensee pursuant to this
Section 3(a) will be available for use by Programmer and no other
party, and Licensee will broadcast the Programming on the Station at
all such times. Licensee may reserve up to two (2) hours per week on
the Station for the broadcast of Licensee's own regularly scheduled
public-interest programming; provided, however, that Licensee will
not reserve time for such regularly scheduled
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programming between the hours of 5:00 a.m. - 12:00 midnight, Monday
through Friday, 8:00 a.m. - 12:00 midnight, Saturday or 9:00 a.m. -
12:00 midnight, Sunday.
(b) Programming Standards. The Programming will be in conformity with
generally recognized industry standards and in accordance with the
Communications Act of 1934, as amended (the "Act") and the rules,
regulations and policies of the Federal Communications Commission
(the "Commission") and with those specific standards set forth in
Appendix B to this Agreement. Programmer will make the Programming
available to Licensee during a sufficient number of hours to enable
the Station to meet the minimum hours of operation required under
the Commission's rules. All advertising messages and promotional
material or announcements will comply with all applicable federal,
state and local laws, rules, and regulations. Licensee acknowledges
that the right hereby granted to Licensee to broadcast the
Programming on the Station is non-exclusive and that ownership of
the Programming and all parts thereof and the right to authorize
their use in any media whatsoever is and shall remain vested in
Programmer.
(c) Ancillary Broadcast Rights. Programmer shall have the right to use,
or permit third parties to use, the Station's subcarriers, and will
be entitled to all revenues derived from any such subcarrier
transmissions during the term of this Agreement; provided, however,
that Licensee may continue its current lease of the subcarrier to
Georgia Music and Sound Co. and shall retain all such lease payments
without reduction of the LMA fee paid by Programmer.
(d) Programming and Operations Standards. Licensee may preempt any
program that Licensee reasonably believes to be unsuitable or
contrary to the public interest. Licensee will give Programmer
reasonable notice of its intention to preempt any program, and, in
the event of suspension or cancellation, Programmer will receive a
pro rata reduction in the Monthly Fee for the period of time so
preempted, calculated to the nearest minute.
(e) Call Signs. Licensee will retain all rights to the call letters
WJCL, and will ensure that proper station identification
announcements are made with such call letters in accordance with FCC
rules and regulations. Programmer shall include in the Programming
an announcement in a form satisfactory to Licensee at the beginning
of each hour of such programs to identify WJCL or such other call
letters used by Licensee for the Station, as well as any other
announcements required by the rules and regulations of the FCC.
Programmer is specifically authorized to use the call letters WJCL
in its Programs and in any promotional material, in any media, used
in connection with the Programming.
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4. Facilities and Equipment.
(a) Facilities. Licensee will permit Programmer to use all equipment and
motor vehicles now located at the Studio or the Transmitter Site, a
schedule of which is attached as Schedule __ to the Sale Agreement
(the "Licensee Equipment"), but exclusively for the operation of the
Station. Licensee will at all times retain title to the Licensee
Equipment. Programmer will originate its programming from the Studio
and will transmit programming to the Studio via a mode of
transmission it selects that will ensure technical and quality
standards comparable to the Station's broadcasts prior to the Term.
The Studio will constitute the "main studio" of the Station.
Licensee will have access to the Studio at all times.
(b) Maintenance. Any regular maintenance work affecting the operation of
the Station at maximum facilities will be scheduled with the
approval of Programmer, which will not be unreasonably withheld,
upon at least forty-eight (48) hours' prior notice to Programmer.
Programmer will perform and bear the cost of all routine maintenance
of equipment at the Studio. Licensee will bear the cost of
extraordinary maintenance to and replacement of Licensee Equipment
located at the Studio.
(c) Transmitter Sites. Licensee will maintain the Transmitter Site and
all equipment located at the Transmitter Site at its own expense.
Licensee will perform routine maintenance work at the Transmitter
Site, as needed, on Mondays between midnight and 4:00 a.m. The
Transmitter Site will be operated, in all material respects, in
accordance with all applicable laws and regulations (including the
requirements of the Act and the rules, regulations, policies and
procedures of the Commission promulgated thereunder). The
transmitting facilities of the Station are capable of transmitting
at the Station's maximum authorized effective radiated power, with
an antenna center of radiation at its full authorized height above
ground and above average terrain. Licensee will maintain the
operating power of the Station at its maximum licensed level and
shall operate and maintain in good working condition the Station's
transmission facilities and broadcasting equipment. Licensee will
not apply to the Commission for any reduction in the Station's
maximum authorized facilities without the prior written approval of
Programmer.
(d) Interruption of Normal Operations. If the Station suffers any loss
or damage of any nature at the Transmitter Site which is not caused
by the acts or omissions of Programmer and which results in the
interruption of service or the inability of the Station to operate
with its maximum authorized facilities and licensed effective
radiated power, Licensee will immediately notify Programmer and
promptly undertake such repairs, at Licensee's expense, as are
necessary to restore full-time operation of the Station with its
maximum authorized facilities and licensed effective radiated power
thereon as quickly as is reasonably possible under the
circumstances. Except in the case of events not under control of
Licensee (such as
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acts of God or weather conditions) which do not materially impair
the earnings potential of the Station, if the Station is inoperable
or is operated at 90% or less of its licensed effective radiated
power as a consequence of such loss or damage, then Programmer will
be entitled to a Pro rata reduction in the proportionate Monthly Fee
for each day in which there occurs such a service interruption in
excess of four (4) consecutive hours. Licensee will promptly begin
to repair and will complete the repairs necessary to restore the
inoperable Station to full time operations with its maximum licensed
facilities within ten (10) days from the occurrence of the loss or
damage; provided, however, that this period will be extended for a
reasonable period of time, not to exceed an additional ten (10)
days, if Licensee has taken and is continuing to take all
appropriate actions to repair the loss or damage as promptly as
possible in the circumstances. If such repairs are not completed
within the allotted period, Programmer may give notice to Licensee
of Programmer's intention to terminate this Agreement, in which
event this Agreement will terminate on the date of such notice, any
other provision of this Agreement notwithstanding.
5. Costs of Operating Station.
(a) General. Licensee will retain ultimate control over the personnel,
finances, programming and operation of the Station. Except as
otherwise expressly set forth in this Agreement, all costs of
producing and delivering the Programming to the Transmitter Site for
broadcast on the Station will be borne by Programmer including,
without limitation, all personnel, equipment costs, maintenance,
music license fees, taxes of all kinds (including real and personal
property and income), utilities, all payments in the nature of rent
due under the Transmitter Lease, remaining payments due on motor
vehicles and all expenses related to the construction, maintenance
and operation of the Studio. Programmer will be responsible for all
liabilities, debts and obligations of Programmer based upon the
purchase of air time including, without limitation, barter
agreements and unaired advertisements, but not for Licensee's
federal, state and local income tax liabilities.
(b) Employees. Programmer will employ and be responsible for the
salaries, commissions, taxes, insurance and all other related costs
for all personnel involved in the production and marketing of the
Programming and the origination and/or delivery of the Programming
from the Studio or any remote location to the Transmitter Site
(including air personalities, engineering personnel, salespersons,
traffic personnel, board operators and other programming staff
members). Upon notice to the Licensee, and at mutually agreeable
times, the Licensee will permit Programmer to meet with its
employees prior to or after the Effective Date. Programmer may, at
its option and upon its terms and conditions, extend offers of
employment to all or any of Licensee's employees as of the Effective
Date. Licensee will not take any action to preclude or discourage
any of the Licensee's employees from accepting any offer of
employment extended by Programmer. Licensee will be responsible for
all payroll, vacation, severance, and other
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employee-related liabilities prior to their employment by
Programmer. Licensee will be responsible for the personnel necessary
for the fulfillment of Licensee's regulatory requirements and the
technical transmission of Programmer's programs. Specifically,
Licensee will employ a General Manager who will report to Licensee
and direct the performance of Licensee's obligations hereunder, and
will employ at least one full time employee per studio location to
assist the General Manager in performing Licensee's obligations
hereunder, including maintaining the Station's transmission
facilities. Licensee's employees will have no employment,
consulting, or other material relationship to Programmer. Programmer
will provide suitable office space for Licensee's personnel at the
Studio at no charge, and to the extent feasible the space assigned
to Licensee's employees shall be physically separate from the space
assigned to Programmer's employees. Programmer may, at its option,
obtain a lease of Licensee's computer capacity for traffic,
acccounting, and other services on terms to be mutually agreed.
Whenever in the Studio or at the Transmitter Site, Programmer's
personnel will be subject to the reasonable supervision and the
direction of Licensee's General Manager and/or Engineer. Programmer
will be responsible for the payment of any publicity or promotional
expenses incurred by Programmer and for all telephone calls
associated with program production and listener response. Upon
termination of this Agreement upon an event other than the closing
of the Sale, the Station's employees may be rehired by Licensee.
(c) Insurance for Transmitter Sites. Licensee will maintain in full
force and effect throughout the term of this Agreement insurance
with responsible and reputable insurance companies or associations
covering such risks to the Transmitter Site and the Equipment
located thereon (including fire and other risks insured against by
extended coverage, public liability insurance, insurance for claims
against personal injury or death or property damage and such other
insurance as may be required by law) and in such amounts and on such
terms as is conventionally carried by broadcasters operating radio
stations with facilities comparable to those of the Station. Any
insurance proceeds received by Licensee in respect of damaged
property will be used promptly to repair or replace such property so
that the operation of the Station conforms with this Agreement.
(d) Insurance for Studio. Programmer will maintain in full force and
effect throughout the term of this Agreement insurance with
responsible and reputable insurance companies or associations
covering such risks to the Studio and all equipment located thereon
(including fire and other risks insured against by extended
coverage, public liability insurance, insurance for claims against
personal injury or death or property damage and such other insurance
as may be required by law) and in such amounts and on such terms as
is conventionally carried by broadcasters operating radio stations
with facilities comparable to those of the Station. Any insurance
proceeds received by Programmer in respect of damaged property will
be used
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promptly to repair or replace such property so that the operation of
the Station conforms with this Agreement.
(e) Music Licenses. During the Term, Licensee will obtain and maintain
in full force and effect in its own name all music licenses ("Music
Licenses") that are currently operative with respect to the Station
and that will be required by the licensor of those Music Licenses
("Licensor"). All Music License fees due from Licensee will be paid
by Licensee from advances by Programmer.
6. Advertising and Programming Revenues. Programmer may sell advertising for
broadcast on the Station as part of Programmer's programming, and all
proceeds generated as a result of the sale of such advertisements shall be
the property of Programmer and neither Licensee nor any of Licensee's
creditors have or shall have an interest in such proceeds.
7. Accounts Receivable.
(a) General. Licensee shall collect its own accounts receivable for
revenues earned prior to the Term. Programmer shall own and collect
accounts receivable for revenues earned during the term. Licensee
and Programmer shall reasonably cooperate in collecting accounts
receivable from accounts shared by Licensee and Programmer. Funds
received from common accounts which do not specifically designate
the invoices to which they relate shall first be applied to the
older accounts.
(b) Carryover Accounts. Programmer will assume the obligation to provide
advertising time on the Station in consideration of Licensee's trade
accounts in existence as of the date of this Agreement on a time
available basis during the first twelve (12) months of the Term, in
an amount not to exceed Fifteen Thousand Dollars ($15,000) worth of
advertising time. Programmer will perform all of Licensee's
obligations under existing long-term contracts for the sale of
advertising time on the Station that are to be performed on or after
the first day of the Term and will be entitled to all the proceeds
of accounts receivable pertaining to such performance.
8. Operation of Station. Notwithstanding anything to the contrary in this
Agreement, Licensee will have full authority and power over the operation
of the Station during the term of this Agreement. Licensee will be
responsible for the payment of the salaries and other compensation
(including payroll taxes, etc.) of the Station's General Manager,
Engineer, and any other personnel employed by Licensee, all of whom will
report and be accountable to the Licensee. The Station's General Manager
will direct the day-to-day operation of the Station through the exercise
of its sole control over the Studio and the Transmitter Site. Licensee
will retain control over the policies, programming and operations of the
Station, the right to preempt any programs or advertisements not in the
public interest or in order to broadcast a program deemed by Licensee to
be of greater national, regional or local importance (subject to payment
credit in accordance with Section 3(d) hereof), and the right
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to take any other actions necessary for compliance with federal, state and
local laws, the Act and the rules, regulations and policies of the
Commission (including the prohibition on unauthorized transfers of
control) and the rules, regulations and policies of other federal
government entities, including the Federal Trade Commission and the United
States Department of Justice. Licensee will at all times be solely
responsible for meeting all of the Commission's requirements with respect
to public service programming, for maintaining the Station's logs and
political and public inspection files, and for the preparation of
issues/programs lists. Licensee will also retain the right to break into
Programmer's programming in case of an emergency. Programmer will, upon
request by Licensee, provide Licensee with information with respect to
such of the Programming as is responsive to public needs and interests so
as to assist Licensee in the preparation of required programming reports
and will provide upon request such other information necessary to enable
Licensee to prepare other records and reports required by the Commission
or other local, state or federal government entities. Programmer will
cooperate with Licensee to ensure the Station's compliance with the
Commission's rules, regulations and statutes, including the political
broadcast rules requiring equal opportunities, reasonable access and
lowest unit charge.
9. Station Identification. Licensee will be responsible for the proper
broadcast of station identification announcements. Pursuant to Section
3(e), Programmer will coordinate such announcements with Licensee so that
they are aired in accordance with the Commission's rules.
10. Special Events. Licensee reserves the right, in its good faith discretion,
to preempt or interrupt the broadcasts of the programs referred to herein,
or any part thereof, for broadcast of special programs of greater
national, regional, or local importance. In all such cases, Licensee will
use its best efforts to give Programmer reasonable notice of its intention
to preempt or interrupt Programmer's programs, and, in the event of such
preemption or interruption, Programmer will receive a payment credit for
the programs preempted or interrupted pursuant to the provisions of
Section 3(d) hereof.
11. Handling of Mail. Except as required to comply with Commission rules and
policies, including those regarding the maintenance of the public records
file and the political file (which will at times remain the responsibility
of the Licensee), Licensee will not be required to receive or handle mail
in connection with Programmer's programs broadcast hereunder. Programmer
agrees that the mailing address of the Station shall not be changed
without the prior written permission of Licensee.
12. Payola. Programmer agrees that it will not accept any consideration,
compensation or 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
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Consideration, in accordance with the Act and FCC requirements. Programmer
agrees monthly, or more frequently at Licensee's reasonable request, to
execute and provide Licensee with a Payola Affidavit, substantially in the
form attached hereto as Exhibit A.
13. Compliance with Law. Each party will comply with all laws, rules,
regulations and policies applicable to the conduct of the Station's
business, and each party acknowledges that the other party has not urged,
counseled or advised the use of any unfair business practice.
14. Licensee's Representations, Warranties and Covenants. Licensee makes the
following further representations, warrants and covenants:
(a) Qualification. Licensee is legally qualified, empowered and able to
enter into this Agreement. This Agreement has been approved by all
necessary action of the Licensee and constitutes the valid and
binding obligation of Licensee, enforceable in accordance with its
terms. The execution, delivery and performance hereof will not
constitute a breach or violation of any agreement, contract or other
obligation to which either party is subject or by which it is bound.
(b) Authorizations. Licensee holds, and throughout the Term will
continue to hold, all licenses and other permits and authorizations
necessary for the operation of the Station as presently conducted,
including licenses, permits and authorizations issued by the
Commission ("FCC Authorizations").
(c) Filings. All reports and applications required to be filed with the
Commission (including ownership reports and renewal applications) or
any other government entity, department or body in respect of the
Station have been, and in the future will be, filed in a timely
manner and are and will be true and complete and accurately present
the information contained and required thereby. All such reports and
documents, to the extent required to be kept in the public
inspection files of the Station, are and will be kept in such files.
(d) Compliance With FCC Requirements. The Station will be operated in
conformity with the FCC Authorizations, the Communications Act and
the rules and regulations of the Commission. The Licensee will take
all steps necessary or appropriate to ensure that the FCC
Authorizations will at all times remain in full force and effect.
Without limiting the foregoing, Licensee will prosecute the pending
renewal application of the Station to a favorable conclusion, i.e.,
the grant of the application for renewal of the FCC Authorizations.
In the event of an unfavorable decision by the FCC (including any
administrative law judge and the FCC's review board) or any court,
Licensee will take all steps necessary or appropriate to protect its
rights and to obtain a favorable decision through agency review
and/or subsequent judicial review by the United States Court of
Appeals for the District of Columbia Circuit. Licensee will not be
obligated to seek a writ of certiorari from the United States
Supreme Court.
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(e) Content of the Programming. The content of Licensee's programming
will not violate any rights of others. Licensee will hold
Programmer, the Station and Programmer's employees, harmless from
any and all damages, liabilities, costs and expenses, including
reasonable attorneys' fees, arising from any claims of third parties
(excluding third parties claiming through Programmer) that allege
negligence or intentional tortious acts of Licensee, its employees
and/or its representatives, or that relate to the content of
Licensee's programming, including without limitation, claims
alleging libel, slander, unfair competition or trade practices,
infringement of trademarks, tradenames or program titles, violation
of rights of privacy and infringement of copyrights and proprietary
rights. Licensee's obligation to hold Programmer harmless against
the liabilities specified above will survive any termination of this
Agreement until the expiration of all applicable statutes of
limitation.
15. Programmer's Representations, Warranties and Covenants. Programmer makes
the following further representations, warrants and covenants:
(a) Qualification. Programmer is legally qualified, empowered and able
to enter into this Agreement. This Agreement has been approved by
all necessary action of the Board of Directors of Programmer and
constitutes the valid and binding obligation of Programmer,
enforceable in accordance with its terms. The execution, delivery
and performance hereof will not constitute a breach or violation of
any agreement, contract or other obligation to which either party is
subject or by which it is bound.
(b) Content of the Programming. The content of the Programming will not
violate any rights of others. The Programmer will hold Licensee, the
Station and Licensee's employees, harmless from any and all damages,
liabilities, costs and expenses, including reasonable attorneys'
fees, arising from any claims of third parties (excluding third
parties claiming through Licensee) that allege negligence or
intentional tortious acts of Programmer, its employees and/or its
representatives, or that relate to the content of the Programming,
including without limitation, claims alleging libel, slander, unfair
competition or trade practices, infringement of trademarks,
tradenames or program titles, violation of rights of privacy and
infringement of copyrights and proprietary rights. Programmer's
obligation to hold Licensee harmless against the liabilities
specified above will survive any termination of this Agreement until
the expiration of all applicable statutes of limitation.
16. Events of Default: Cure Periods and Remedies.
(a) Events of Default. The following will, after the expiration of the
applicable cure periods, constitute Events of Default:
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(i) Non-Payment. Programmer's failure to pay the Monthly Fee (A) by
the 10th day of any month during the Term;
(ii) Breach of Covenants. If either party hereto shall fail in any
material way to observe or perform any covenant, condition or agreement
contained herein;
(iii) Breach of Representation or Warranty. If any material
representation or warranty herein made by either party in any certificate
or document furnished by either party to the other pursuant to the
provisions hereof, shall prove to have been false or misleading in any
material respect as of the time made or furnished; or
(iv) Bankruptcy, etc. If either party (i) shall make a general
assignment for the benefit of creditors, (ii) shall file or have 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 creditors' representative for the property or assets of such party
under any federal or state insolvency law, which, if filed against such
party, has not been dismissed or discharged within sixty (60) days
thereof.
(b) Cure Periods. Except in the case of a default under the foregoing
subsection (a)(iv), as to which no cure period will be applicable,
an Event of Default will not be deemed to have occurred until twenty
(20) business days after the nondefaulting party has provided the
defaulting party with written notice specifying the event or events
that if not cured would constitute an Event of Default. This period
may be extended by the non-defaulting party for a reasonable period
of time, if the defaulting party is acting in good faith to cure the
default and such delay will not have a materially adverse affect
upon the other party.
(c) Remedies. Upon the occurrence of an Event of Default, the
non-defaulting party may terminate this Agreement, provided that it
is not also in default hereunder, in addition to any other remedies
available to the non-defaulting party at law or equity, or under
paragraph (d), below.
(d) Specific Performance. Without limiting or waiving in any respect any
rights or remedies of any party given under this Agreement, or now
or hereafter existing at law or in equity or by statute, either
party shall be entitled to specific performance of the obligations
to be performed by the other in accordance with the provisions of
this Agreement.
17. No Brokers. The parties represent to each other that, with the exception
of NationsBanc, whose fees shall be the exclusive responsibility of
Licensee, no brokers or finders have been engaged in connection with the
transaction described in this Agreement, and the parties agree to
indemnify and hold each other harmless against any claim from any broker
or finder based upon any agreement, arrangement, or understanding alleged
to have been made by Licensee or by Programmer, as the case may be.
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18. General.
(a) Notices. All necessary notices, demands and requests permitted or
required under this Agreement will be in writing and will be deemed
given, if personally delivered, on the date of personal delivery,
or, if mailed, four (4) days after being mailed by certified mail,
return receipt requested, postage prepaid, addressed as follows:
If to Licensee:
Xxxxx Broadcasting Corporation
0000 Xxxxxxxx Xxxxxx
Xxxxxxxx, Xxxxxxx 00000
Attn: X.X. Xxxxx, Xx., President
Fax: (000) 000-0000
Copy to:
Xxxxxx, Xxxxx & Xxxxxxx, LLP
X.X. Xxx 0000 (31412)
000 X. Xxxxxxxxxx Xxxxxx
Xxxxxxxx, Xxxxxxx 00000
Attn.: J. Xxxxxx Xxxxx, III
Fax: (000) 000-0000
(which copy shall not constitute notice to Seller)
If to the Programmer:
Cumulus Broadcasting, Inc.
Cumulus Licensing Corp.
c/o QUAESTUS Management Corp.
000 X. Xxxxxxxx Xxxxxx, Xxxxx 000
Xxxxxxxxx, XX 00000
Attn: Xxxxxxxx X. Xxxxx
Fax: (000) 000-0000
With a copy to:
Cumulus Broadcasting, Inc.
Cumulus Licensing Corp.
000 X. Xxxxxxxx Xxxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
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Attn: Xxxxxxx X. Xxxxxx
Fax: (000) 000-0000
Xxxxx & Xxxxxxx
000 X. Xxxxxxxxx Xxxxxxxxx
Xxxxx 000
Xxxxx Xxxx, XX 00000
Attn: Xxxxx X. Xxxxxxx, Esq.
Fax No: (000) 000-0000
or to such other address as any such person may designate in
writing.
(b) Modification and Waiver. No modification of any provision of this
Agreement will in any event be effective unless the same will be in
writing and signed by a duly authorized officer of the party to be
charged therewith, and then such modification will be effective only
in the specific instance and for the purpose for which given.
(c) Construction. This Agreement will be construed in accordance with
the laws of the State of Georgia excluding the choice of law rules
utilized in that jurisdiction, and the obligations of the parties
hereto are subject to all federal, state and local laws and
regulations now or hereafter in force and to the rules, regulations
and policies of the Commission and all other government entities or
authorities presently or hereafter to be constituted.
(d) Headings. The headings contained in this Agreement are included for
convenience only and no such heading will in any way alter the
meaning of any provision.
(e) No Assignment. No right or obligation under this Agreement may be
assigned by either party without the other party's consent, which
may be withheld for any reason.
(f) Counterpart Signature. This Agreement may be signed in one or more
counterparts, each of which will be deemed a duplicate original,
binding on the parties hereto notwithstanding that the parties are
not signatory to the original or the same counterpart. This
Agreement will be effective as of the date first above written.
(g) Entire Agreement. This Agreement embodies the entire agreement
between the parties and there are no other agreements,
representations, warranties or understandings, oral or written,
between them with respect to the subject matter hereof.
(h) No Partnership or Joint Venture Created. Nothing in this Agreement
will be construed to make Licensee and Programmer partners or joint
venturers or to afford any rights to any third party other than as
expressly provided herein. Neither
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Licensee nor Programmer will have any authority to act as an agent
for, or to enter into any contracts on behalf of or that will be
binding upon the other party.
(i) Severability. In the event any provision contained in this Agreement
is held to be invalid, illegal or unenforceable, such holding will
not affect any other provision hereof and this Agreement will be
construed as if such invalid, illegal or unenforceable provision had
not been contained herein.
(j) Force Majeure. Any failure or impairment of Licensee's facilities or
any delay or interruption in the broadcast of programs, or
Licensee's failure at any time to furnish facilities, in whole or in
part, for broadcast, due to causes beyond the control of Licensee,
will not constitute a breach of this Agreement and Licensee will not
be liable to Programmer, except to the extent provided in Sections
4(d) and 5(c) above.
(k) Other Agreements. During the term of this Agreement, Licensee will
not enter into any other time brokerage, program provision, local
management or similar agreement, regarding the Station, with any
third party.
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IN WITNESS WHEREOF, the parties have executed this Agreement to be
effective as of the date first above written.
CUMULUS BROADCASTING, INC.
By:___________________________________
Its:___________________________________
"Programmer"
XXXXX BROADCASTING CORPORATION
By:___________________________________
Its:___________________________________
"Licensee"
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APPENDIX A
LMA PAYMENTS
In consideration of the airtime made available to Programmer pursuant to
this Agreement, during the Term, Programmer shall pay Licensee as the LMA fee an
amount representing the reimbursement of Licensee for the Station Expenses
(defined below). The "Station Expenses" as used herein means the reasonable and
prudent expense actually incurred by Licensee in operating the Station in
compliance with the terms of this agreement and consistent with past practice
(except for changes resulting from the transactions contemplated by this
Agreement), including without limitation, those expenses set forth below, and
shall be paid by Programmer to Licensee in arrears.
Monthly Expenses:
Accounting and Computer Services
Employees (including General Manager and Chief Engineer)
Engineering
Eng. Maintenance and Repair
Utilities
Music Lic. Fees
Rent for FM antenna lease
Employee Med Insurance
Insurance Premiums
Tower Rent
Telephone
Total
In addition, effective April 15, Programmer shall pay Licensee an
additional LMA fee consisting of Thirty-Five Thousand Dollars ($35,000) per
month, payable in advance.
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XXXXXXXX X
PROGRAMMING STANDARDS
Programmer agrees to cooperate with Licensee in the broadcasting of
programs of the highest possible standard of excellence and for this purpose to
observe the following regulations in the preparation, writing and broadcasting
of its programs:
I. Religious Programming. The subject of religion and references to
particular faiths, tenants, and customs shall be treated with respect at all
times. Programs shall not be used as a medium for attack on any faith,
denomination, or sect or upon any individual or organization.
II. Controversial Issues. Any discussion of controversial issues or public
importance shall be reasonably balanced with the presentation of contrasting
viewpoints in the course of overall programming; no attacks on the honesty,
integrity, or like personal qualities of any person or group of persons shall be
made during the discussion of controversial issues of public importance; and
during the course of political campaigns, programs are not to be used as a forum
for editorializing about individual candidates. If such events occur, Licensee
may require that responsive programming be aired.
III. No Plugola or Payola. The mention of any business activity or "plug"
for any commercial, professional, or other related endeavor, except where
contained in an actual commercial message of a sponsor, is prohibited.
IV. No Lotteries. Announcements giving any information about lotteries or
games prohibited by federal or state law or regulation are prohibited.
V. Election Procedures. At least ninety (90) days before the start of any
primary or regular election campaign, Programmer will clear with Licensee's
General Manager the rate Programmer will charge for the time to be sold to
candidates for public office and/or their supporters to make certain that the
rate charged conforms to all applicable laws and station policy.
VI. Spot Commercial Limitations. With respect to any given segment of air
time hereunder, the amount of spot commercial matter shall not exceed 20 minutes
during any sixty minute segment. Programmer will provide, for attachment to the
Station logs, a list of all commercial announcements carried during its
programming.
VII. Required Announcements. Programmer shall broadcast (a) an
announcement in a form satisfactory to Licensee at the beginning of each hour to
identify Station WJCL, (b) an announcement at the beginning and end of each
program, and hourly, as appropriate, to indicate that program time has been
purchased by Programmer, and (c) any other announcement that may be required by
law, regulation, or station policy.
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VIII. Credit Terms Advertising. Pursuant to rules of the Federal Trade
Commission, any advertising of credit terms shall be made over the Station in
accordance with all applicable federal an state laws, including regulations Z
and M.
IX. Commercial Recordkeeping. Programmer shall not receive any
consideration in money, goods, service, or otherwise, directly or indirectly
(including to relatives) from any person or company for the presentation of any
programming over the Station without reporting the same in advance to and
receiving the prior written consent of Licensee's General Manager. No commercial
messages ("plugs") or undo references shall be made in programming presented
over the Station to any business venture, profitmaking activity, or other
interest (other than noncommercial announcements for bona fide charities, church
activities, or other public service activities) in which Programmer (or anyone
else) is directly or indirectly interested without the same having been approved
in advance by Licensee's General Manager and such broadcast being announced and
logged and sponsored.
X. No Illegal Announcements. No announcements or promotion prohibited by
federal or state law or regulation of any lottery or game shall be made over the
Station. Any game, contest or promotion relating to or to be presented over the
Station must be fully stated and explained in advance to Licensee, which
reserves the right in its sole direction to rejecct any game, contest or
promotion.
XI. Licensee Discretion Paramount. In accordance with the Licensee's
responsibility under the Communications Act of 1934, as amended, and the rules
and regulations of the Federal Communictions Commission, Licensee reserves the
right to reject or terminate any advertising proposed to be presented or being
presented over the station which is in conflict with Station policy or which in
the reasonable judgment of Licensee or its General Manager/Chief Engineer would
not serve the public interest.
XII. Programming in Which Programmer Has a Financial Interest. Broker
shall advise the General Manager of the Station with respect to any programming
(including commercial(s) concerning goods or services in which Programmner has a
material financial interest. Any announcements for such goods and services shall
clearly identify Programmer's financial interest.
XIII. Programming Prohibitions. Programmer shall not broadcast any of the
following programs or announcements:
A. False Claims. False or unwarranted claims for any product or
service.
B. Unfair Imitation. Infringements of another advertiser's rights
through plagiarism or unfair imitation of either program idea or copy, or
any other unfair competition.
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C. Commercial Disparagement. Any disparagement of competitors or
competitive goods.
D. Profanity. Any programs or announcements that are slanderous,
obscene, profane, vulgar, repulsive or offensive, either in theme or in
treatment.
E. Price Disclosure. Any price mentions exceppt as permitted by
Programmer's policies current at the time.
F. Unauthenticated Testimonials. Any testimonials which cannot be
authenticated.
G. Descriptions of Bodily Functions. Any continuity which describes
in a repellent manner internal bodily functions or symptomatic results or
internal disturbance, and no reference to matters which are not considered
acceptable topics in social groups.
H. Conflict Advertising. Any advertising matter or announcement
which may, in the reasonable opinion of Licensee, be injurious or
prejudicial to the interests of the public, the Station, or honest
advertising and reputable business in general.
I. Fraudulent or Misleading Advertisement. Any advertisement matter,
announcement, or claim which Programmer knows to be fraudulent,
misleading, or untrue.
In any case where questions of policy or interpretataion arise, Programmer
shall submit the same to Licensee for decision before making any commitments in
connection therewith.
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