Exhibit 2.2
LOCAL PROGRAMMING AND MARKETING AGREEMENT
dated as of
January 1, 1998
by and among
CUMULUS BROADCASTING, INC.
and
WESTWIND BROADCASTING, INC.
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
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LOCAL PROGRAMMING AND MARKETING AGREEMENT
This Local Programming and Marketing Agreement is entered into as of the
1st day of January, 1998, by and among Cumulus Broadcasting, Inc., a Nevada
corporation ("Programmer"), and Westwind Broadcasting, Inc., a Texas corporation
("Licensee").
Recitals
Licensee holds the FCC broadcast license and auxiliary licenses for radio
stations XXXX-FM, licensed to operate in Canyon, Texas, and XXXX-AM, licensed to
operate in Amarillo, Texas (the "Stations").
Licensee and Programmer have entered into an Asset Purchase Agreement as
of January 1, 1998 (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 Stations (the "Sale").
The Stations' transmitter facilities are at locations described in the
Sale Agreement (the "Transmitter Sites"), pursuant to leases described in
Section 2(j) of the Disclosure Schedule of the Sale Agreement (the "Transmitter
Leases").
The Stations' studio is at a location described in the Sale Agreement,
pursuant to a lease described in Section 2(j) of the Disclosure Schedule of the
Asset Purchase Agreement (the "Studio Lease").
Licensee has broadcast time on the Stations available for sale. Programmer
desires to purchase time on the Stations 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,
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neither party will have any further obligations hereunder except as
provided in this Section 1.
(b) Option Upon Termination of Agreement for Sale of Stations. 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 Stations 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 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 X.X. Xxxxx, Westwind
Broadcasting, Inc., 000 Xxxxx Xxxx Xxxxxx, Xxxxxxxx, Xxxxx, 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 Stations. Throughout the Term, Licensee will make the
Stations and time on the Stations 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 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 Stations 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 Stations at all such times. Licensee may reserve
up to two (2) hours per week on the Stations for the broadcast of
Licensee's own regularly
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scheduled public-interest programming; provided, however, that
Licensee will not reserve time for such regularly scheduled
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 Stations 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 Stations 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 Stations' subcarriers, and will
be entitled to all revenues derived from any such subcarrier
transmissions during the term of this Agreement.
(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
XXXX-FM and XXXX- AM or any other call letters which may be assigned
by the FCC for use by the Stations, and will ensure that proper
station identification announcements are made with such call letters
in accordance with FCC rules and regulations. Licensee will not,
without Programmer's consent, apply for any change in the call
letters assigned to the Stations. Licensee will promptly, upon
Programmer's request and at Programmer's expense, take all steps
necessary to change the Stations' call letters to conform with the
Programming, and such call letters will be consistent with
applicable 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 XXXX or
such other call letters used by Licensee for the Stations, as well
as any other announcements required by the rules and regulations of
the FCC. Programmer is specifically authorized to use the call
letters XXXX, or other call letters used by Licensee for the
Stations, in its Programs
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and in any promotional material, in any media, used in connection
with the Programming.
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 Sites, a
schedule of which is attached to the Sale Agreement (the "Licensee
Equipment"), but exclusively for the operation of the Stations.
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 Stations. Licensee will have
access to the Studio at all times.
(b) Maintenance. Any regular maintenance work affecting the operation of
the Stations 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 perform and bear the cost
of extraordinary maintenance to and replacement of Licensee
Equipment located at the Studio.
(c) Transmitter Sites. Licensee will maintain the Transmitter Sites and
all equipment located at the Transmitter Sites at its own expense.
Licensee will perform routine maintenance work at the Transmitter
Sites, as needed, on Mondays between midnight and 4:00 a.m. The
Transmitter Sites 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 Stations are capable of transmitting
at the Stations' 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 Stations at their maximum licensed level and
shall operate and maintain in good working condition the Stations'
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 Stations suffers any loss
or damage of any nature at the Transmitter Sites which is not caused
by the acts or omissions of Programmer and which results in the
interruption of service or the inability of the Stations 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
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operation of the Stations 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 acts of God or weather
conditions) which do not materially impair the earnings potential of
the Stations, if one or more of the Stations 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 that Station 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(s) 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 Stations.
(a) General. Licensee will retain ultimate control over the personnel,
finances, programming and operation of the Stations. Except as
otherwise expressly set forth in this Agreement, all costs of
producing and delivering the Programming to the Transmitter Sites
for broadcast on the Stations 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 Leases, and all expenses related to the
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 Sites
(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.
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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 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 Stations' 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. Whenever in the Studio or at the Transmitter Sites,
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, the Stations' employees may be
re-hired 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 Sites 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 Stations. 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 Stations conforms with this Agreement.
(d) Insurance for Studio. 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 Studio and studio building 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
Stations. Any insurance proceeds received by Licensee in respect of
damaged
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property will be used promptly to repair or replace such property so
that the operation of the Stations 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 Stations
and that will be required by the licenser of those Music Licenses
("Licensor"). All Music Licenses 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 Stations 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 and Accounts Payable.
(a) General. All accounts receivable and accounts payable pertaining to
the operation of the Stations, insofar as they pertain to the period
prior to the first day of the Term, will be property of Licensee.
Programmer agrees to use commercially reasonable efforts (but
without responsibility to institute legal or collection proceedings)
to collect such accounts receivable during the 120-day period
following the effective date of this Agreement, and will remit all
payments received on such accounts to the Licensee no later than
April 30, 1998. Insofar as any particular account payable or
receivable shall pertain to the operation of the Stations both
during the Term and prior thereto, the parties will prorate amounts
payable or receivable, as the case may be, as soon as reasonably
practical following the signing of this Agreement, and amounts
received shall be applied first to satisfy Licensee's obligations.
Otherwise, payments by advertisers shall be credited first to their
respective accounts receivable with Licensee pertaining to the
period prior to the first day of the Term. In addition, to the
extent that Licensee satisfies with cash payments accounts payable
for operating expenses related to the Stations (and excluding any
expenses which benefit Westwind Broadcasting Inc. but do not benefit
the Stations on an ongoing basis, such as legal fees to complete
this transaction) following the effective date of this Agreement,
and provides Programmer with documentation of such accounts payable
and cash payments, Programmer shall reimburse Licensee for such
expenses no later than the 10th day of the month following that in
which the Licensee makes the cash payments, and such amounts shall
be deducted from the accounts receivable owed to Programmer. In all
other respects, to the extent not inconsistent with this Agreement,
the procedures for collection of accounts receivable specified in
the Sale Agreement shall apply.
(b) Carryover Accounts. Programmer will assume the obligation to provide
advertising time on the Stations 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)
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months of the Term, in an amount not to exceed $10,000 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 Stations 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 Stations. Notwithstanding anything to the contrary in this
Agreement, Licensee will have full authority and power over the operation
of the Stations 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 Stations through the exercise
of its sole control over the New Studio and the Transmitter Sites.
Licensee will retain control over the policies, programming and operations
of the Stations, 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
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
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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 Stations 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 Consideration, in accordance
with the Act and FCC requirements. Programmer agrees to annually, or more
frequently at Licensee's reasonable request, 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 Stations'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 Stations 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
Stations have been, and in the future will be, filed in a timely
manner and are and will be true and complete and accurately
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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 Stations, are and will be kept in
such files.
(d) Compliance With FCC Requirements. The Stations 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 Stations 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.
(e) Content of the Programming. The content of Licensee's programming
will not violate any rights of others. Licensee will hold
Programmer, the Stations 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
Stations and Licensee's
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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:
(i) Non-Payment. Programmer's failure to pay the Monthly Fee 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.
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(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. In the event of a default by Programmer of
this Agreement, the Licensee shall have the option, in Licensee's
sole discretion, either to terminate this Agreement but to continue
the Sale Agreement in full force and effect, or to terminate both
Agreements; provided, however, that such a termination of the Sale
Agreement by Seller shall not be deemed to be a termination as a
result of a default or breach by Buyer under the terms and
conditions of the Sale Agreement.
(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 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.
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:
Westwind Broadcasting Inc.
000 Xxxxx Xxxx Xxxxxx
Xxxxxxxx, Xxxxx 00000
Attn: X.X. Xxxxx, President
with a copy to:
Sanders, Baker, and Xxxxx
Xxx 0000
Xxxxxxxx, Xxxxx 00000
Attn: Xxxxxx X. Xxxxxxx, Esq.
fax: (000) 000-0000
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If to Programmer:
Cumulus Broadcasting, Inc.
000 X. Xxxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Attn: Xxxxxxx Xxxxxx
Fax No.: (000) 000-0000
with copies to:
Cumulus Broadcasting, Inc.
c/o QUAESTUS Management Corporation
000 X. Xxxxxxxx Xxxxxx
Xxxxx 000
Xxxxxxxxx, XX 00000
Attn: Xxxxxxxx X. Xxxxx
Fax No: (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 Texas 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.
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(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 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 Stations, 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"
WESTWIND BROADCASTING INC.
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 a fee which shall
consist of the reimbursement to Licensee, monthly in advance on an estimated
basis, the Station Expenses (defined below). Within ten (10) days of the end of
each month, Licensee shall submit to Programmer a written reconciliation of
actual expenses for the prior month versus projected expenses as described
below. Programmer and Licensee shall agree to mutually acceptable methods for
adjusting future amounts owed by Programmer to reflect such reconciliation. The
term "Station Expenses" as used herein means the reasonable and prudent expense
actually incurred by Licensee in operating the Stations 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.
Monthly Expenses:
Employees
Engineering
Eng. Maintenance and Repair
Insurance
Utilities
Music Lic. Fees
Rent
Ad Valorem Taxes
Employee Med Insurance
Tower Rent
Telephone
Total
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XXXXXXXX X
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. Broker shall broadcast (a) an announcement in
a form satisfactory to Licensee at the beginning of each hour to identify
Stations KLUR-FM, KQXC-FM, and KYYI-FM, (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 Stations 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 Stations, 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.
Programmer may waive any of the foregoing regulations in specific
instances if, in its reasonable opinion, good broadcasting in the public
interest will be served thereby.
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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