1
Exhibit 10(m)
TIME BROKERAGE AGREEMENT
Time Brokerage Agreement ("Agreement") dated effective as of December
3, 1997, by and between SOUTHWIND BROADCASTING, INC. ("Licensee"), the licensee
of radio station WSSP (FM), Goose Creek, South Carolina (the "Station"), and
REGENT COMMUNICATIONS, INC. ("Broker").
WHEREAS, Licensee has available broadcasting time and is engaged in the
business of radio broadcasting on the Station; and
WHEREAS, Licensee wishes to procure programming from Broker; and
WHEREAS, Broker desires to avail itself of Station's broadcast time for
up to twenty-four (24) hours per day for the presentation of broadcasting
service, including the sale of advertising time.
NOW, THEREFORE, for and in consideration of the mutual covenants herein
contained, the parties hereto have agreed and do agree as follows:
A. Facilities. Licensee agrees, beginning at 12:01 a.m. on December 3,
1997 (the "Effective Date"), to make air time and transmission services
available to Broker and to broadcast on the Station, or cause to be broadcast,
Broker's programs (the "Programming") described in Attachment I hereto, which
will originate from Broker's studios, for such periods as Broker may desire up
to twenty-four (24) hours a day, seven (7) days a week during the term of this
Agreement. The compensation to be paid to Licensee shall be as set forth in
Attachment II hereto.
2. Payments. Broker hereby agrees, beginning on and after the Effective
Date, to pay Licensee monthly for the broadcast of the Programming hereunder in
accordance with Attachment II. Payments for each calendar month shall be due and
payable in full on the first day of each such calendar month. The failure of
Licensee to demand or insist upon prompt payment in accordance herewith shall
not constitute a waiver of its right to do so. Broker shall receive a payment
credit with respect to any Programming complying with paragraph 4 hereof which
is preempted by Licensee. Such credit shall be determined by multiplying the
monthly payment by the ratio of the number of hours (or fractions thereof) of
such Programming preempted or not accepted during such calendar month to the
total number of brokered hours (or fractions thereof) for such calendar month.
3. Term. The term of this Agreement shall be for a period of eleven
(11) months, fifteen (15) days, beginning on the Effective Date, subject to
earlier termination as provided elsewhere in this Agreement.
-1-
2
4. Programming Standards. Broker shall furnish or cause to be furnished
the air personnel and material for the Programming and all Programming shall be
in accordance with the rules and requirements of the Federal Communications
Commission (the "Commission"), including, without limitation, the Commission's
rules on plugola/payola, lotteries, contests, station identification, political
programming and political advertising rates; and the Programming shall include
all announcements and disclosures (including but not limited to station
identification announcements, EBS announcements, and sponsorship disclosures)
necessary for the Station to comply with the Commission's rules and
requirements. All Programming (including but not limited to all advertising
spots and promotional material or announcements) (i) shall comply with all
applicable federal, state and local regulations and policies; (ii) shall be
produced in accordance with quality standards generally applicable in the market
for similarly situated stations; and (iii) shall comply with Licensee's Program
Policy Statement, a copy of which is attached hereto as Attachment IV.
5. Station Facilities.
5.1 Operation of Station. The Station is authorized to operate with
an effective radiated power of ___________ xxxxx from an antenna height of _____
meters above average terrain but currently has an STA to operate with lower
power. Licensee will at its expense obtain any necessary extension or extensions
of the STA. Throughout the term of this Agreement, Licensee shall make the
Station available to Broker for broadcast of Programming (except for Licensee's
studio facilities), subject to Licensee's rights under paragraph 7 hereof to
reject programming material not in compliance with paragraph 4 hereof or to
preempt Programming pursuant to paragraph 10 or 11 hereof. Licensee shall use
its reasonable best efforts to schedule downtime for maintenance on Sunday
morning between the hours of 12:00 a.m. and 7:00 a.m. and to provide Broker with
at least forty-eight hours prior notice of downtime for maintenance scheduled
for hours other than between the hours of 12:00 a.m. and 7:00 a.m. Sunday
mornings.
5.2 Interruption of Normal Operations. If the Station suffers loss
or damage of any nature to its transmission facilities which results in the
interruption of service or the inability of the Station to operate with
substantially its present power, Licensee shall immediately notify Broker, and
Licensee shall undertake such repairs as necessary to restore the full time
operation of the Station with substantially its present power within seven (7)
days from the occurrence of such loss or damage. If such repairs are not made in
the allotted period, Broker, if Broker's actions or omissions shall not have
been a principal cause of such interruption of service, may give notice to
Licensee of Broker's intention to terminate this Agreement, in which event this
Agreement shall terminate on the tenth (10th) day following such notice, any
other provision of this Agreement notwithstanding.
-2-
3
6. Handling of Mail: Collection of Accounts Receivable.
6.1 Mail. Broker shall promptly furnish to Licensee any mail,
cables, telegrams or other communications (or, as appropriate, copies thereof)
which are intended for Licensee or relate to Licensee's responsibilities under
this Agreement or as a broadcast licensee of the Commission (including but not
limited to copies of all correspondence received from members of the public with
respect to the programming or operations of the Station), and shall furnish to
Licensee, unopened, any mail, cables, telegrams or other communications
addressed to Licensee and received by Broker. Licensee shall be solely
responsible for maintaining the Station's public file.
7. Programming and Operations Standards. Broker agrees to abide by the
standards set forth in paragraph 4 hereto in its programming and operations.
Broker further agrees that if, in the reasonable judgment of Licensee, Broker
does not comply with said standards, Licensee may suspend or cancel any program
or program material (including announcements, promotions and promotional themes)
not in compliance. Broker shall consult with Licensee in advance of providing
programming, and Licensee shall make its personnel available to consult with
Broker, in the event Broker shall be in doubt as to whether particular
programming proposed by Broker is consistent with paragraph 4. Licensee shall
attempt to consult with Broker in advance of preemption where circumstances
permit.
8. Responsibility for Employees and Expenses.
8.1 Licensee's Responsibilities. Except as otherwise provided in
Attachment II, Licensee shall employ, control and be responsible for the
salaries, taxes and benefits and all other costs of its own personnel necessary
to fulfill its obligations under the Commission's policies and to transmit the
Programming provided by Broker, and shall be responsible for those expenses set
forth on Attachment V hereto. Licensee shall indemnify defend and hold harmless
Broker, its stockholders, directors, officers, agents, employees, successors and
assigns from and against any and all claims, suits, liabilities, costs and
expenses (including but not limited to all attorneys fees and expenses) arising
under the preceding sentence.
8.2 Broker's Responsibilities. Broker shall bear all costs of
producing the Programming. Without in any way limiting the foregoing, Broker
shall employ, control and be responsible for the salaries, taxes, insurance,
commissions and other sales costs, and related costs for all personnel
(including salespeople, traffic personnel, board operators and programming
staff) used in the production of the Programming. Broker shall indemnify defend
and hold harmless Licensee, its stockholders, directors, officers, agents,
employees, successors and assigns from and against any and all claims, suits,
liabilities, costs and expenses (including but not limited to all attorneys fees
and expenses) arising under the preceding sentence. Broker shall pay for all
-3-
4
telephone calls associated with program production and listener responses, for
all fees to ASCAP, BMI and SESAC, for any other copyright fees attributable to
its programming broadcast on the Station.
9. Advertising and Programming Revenues; Contracts and Agreements.
Broker shall retain all revenues from the sale of advertising time on the
Programming it delivers to the Station for broadcast and may, if permitted by
applicable law, sell such advertising in combination with the sale of
advertising on any other broadcasting stations of its choosing. Licensee shall
retain the revenue from the sale of any advertising on the Station on programs
not produced or delivered to it by Broker. Attachment VI hereto lists those
programming and other contracts and agreements of the Station that, except as
indicated on Attachment VI, are to be assumed by and performed by Broker on
behalf of the Licensee.
10. Operation of Station. Notwithstanding anything to the contrary in
this Agreement, Licensee shall have full authority and power over the operation
of the Station during the period of this Agreement. Licensee shall provide and
compensate its employees who perform services at the Station. They shall report
solely to and be accountable solely to Licensee and shall direct the day-to-day
operation of the Station. Licensee shall retain control, said control to be
reasonably exercised, over the policies, programming and operations of the
Station, including, without limitation, the right to decide whether to accept or
reject any Programming or advertisements, the right to preempt any Programming
in order to broadcast a program deemed by Licensee to be of greater national,
regional, or local interest, and the right to take any other actions necessary
for compliance with the laws of the United States; the State of South Carolina;
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 governmental authorities, including the Federal
Trade Commission and the Department of Justice. Licensee shall at all times be
solely responsible for meeting all of the Commission's requirements with respect
to public service programming, for maintaining the political and public
inspection files and the Station log, and for the preparation of programs/issues
lists. Licensee shall at all times be solely responsible for compliance with the
Commission's main studio rules and policies. Broker shall, upon request by
Licensee, provide Licensee with information with respect to such of Broker's
programs which are responsive to public needs and interest so as to assist
Licensee in the preparation of required programming reports, and will provide
upon request other information to enable Licensee to prepare other records,
reports and logs required by the Commission or other local, state or federal
governmental agencies. Broker shall originate the Programming at its studio and
shall provide a remote control facility to permit Licensee's personnel to
interrupt the Programming and/or substitute programming originated by Licensee
from a control point at Licensee's studio. The cost of telephone lines for such
facility will be borne by Licensee.
-4-
5
11. Special Events. Licensee reserves the right in its discretion, to
preempt any of the broadcasts of Broker's Programming and to use such preempted
time for broadcast of special events deemed by Licensee to be of importance to
its community of license. In all such cases, Licensee shall use its diligent
efforts to give Broker reasonable notice of its intention to preempt Broker's
Programming and, in the event of such preemption, Broker shall receive a payment
credit for the broadcasts so omitted during brokered hours as provided in
paragraph 2 hereof.
12. Force Majeure. Any failure of facilities or any delay or
interruption in broadcasting programs, or failure at any time to furnish
facilities, in whole or in part, for broadcasting, due to acts of God, strikes,
or threats thereof, force majeure, or due to causes beyond the control of
Licensee, shall not constitute a breach of this Agreement, and Licensee will not
be liable to Broker, except to the extent of allowing in each such case an
appropriate payment credit for Programming available to Licensee but not carried
during brokered hours based upon a pro rata adjustment to amounts due as
specified in Attachment II calculated upon the length of time during which the
failure exists or continues.
13. Right to Use the Programming. The right to use the Programming and
to authorize its use in any manner and in any media whatsoever shall be, and
remain, vested in Broker.
14. Payola; EEO. Broker agrees that it shall not accept any
compensation or any kind of gift or gratuity of any kind whatsoever, regardless
of its value or form, including, but not limited to, a commission, discount,
bonus, materials, supplies or other merchandise, services or labor, whether or
not pursuant to written contracts or agreements between Broker and merchants or
advertisers, unless the payer is identified in the program as having paid for or
furnished such consideration in accordance with Commission requirements. Broker
agrees annually, or more frequently upon the request of Licensee, to execute and
provide Licensee (and to cause its employees and agents associated with
production of its Programming to execute and provide Licensee) with an affidavit
to that effect. Broker shall comply with all equal employment opportunity
regulations and policies (including but not limited to those of the Commission)
to the extent such regulations and policies apply, or may in the future be
deemed to apply, to the employment practices of Broker's personnel assigned to
duties in connection with the operation of the Station; and Broker shall timely
provide Licensee with all information that may be necessary or appropriate to
comply with any reporting obligations of the Commission pursuant to such
regulations or policies.
15. Broker Compliance with Law. Broker agrees that, throughout the term
of this Agreement, Broker will comply with all laws and regulations applicable
in the conduct of Broker's business and Broker acknowledges that Licensee has
not urged, counseled, or advised the use of any unfair business practice.
-5-
6
16. Licensee Compliance with Law. Licensee agrees that, throughout the
term of this Agreement, Licensee will comply with all laws and regulations
applicable in the conduct of Licensee's business and Licensee acknowledges that
Broker has not urged, counseled, or advised the use of any unfair business
practice.
17. Indemnification. Broker's and Licensee's obligations to hold the
other harmless against the liabilities specified below shall survive any
termination of this Agreement until the expiration of all applicable statutes of
limitation.
17.1 Indemnification by Broker. Broker will indemnify and hold
Licensee and its stockholders, directors, officers, agents, employees,
successors, and assigns, harmless against all liability arising from (i)
Broker's provision of Programming pursuant to this Agreement; (ii) libel,
slander, illegal competition or trade practice, infringement of trade marks,
trade names, or program titles, violation of rights of privacy, bodily injury,
property damage, other broadcasting liabilities, injuries and occurrences, and
infringement of copyrights and proprietary rights resulting from the broadcast
of Programming furnished by Broker; (iii) costs, expenses or damages associated
with termination liabilities assigned to Broker pursuant to paragraphs 19 or
20.3, (iv) to the extent permissible under Commission rules and regulations, any
action or omission by Broker in violation of any applicable law or regulation
(including without limitation the Commission's rules and orders) or in violation
of this Agreement, including but not limited to reasonable attorneys fees and
expenses, or (v) any other liabilities or obligations of Broker under this
Agreement, including without limitation, those to be paid by Broker pursuant to
paragraph 8.2 hereof. Broker shall procure and maintain insurance as follows, in
amounts and coverages and with insurance carriers reasonably acceptable to the
Licensee: (i) Xxxxxxx'x Compensation Insurance; (ii) General Liability which
includes coverages for all promotional events; and (iii) auto liability,
including coverage for non-owned and hired vehicles. Prior to the Effective
Date, Broker shall furnish Licensee with copies of certificates of insurance
evidencing such coverage and (except for the Xxxxxxx'x Compensation Insurance)
shall furnish Licensee with evidence that Licensee has been added as an
additional insured under such policies.
17.2 Indemnification by Licensee. Licensee agrees to indemnify and
to hold Broker and its stockholders, directors, officers, agents, employees,
successors, and assigns harmless against all liability arising out of (i)
material broadcast by Licensee other than the Programming and/or (ii)
liabilities for libel, slander, illegal competition or trade practice,
infringement of trade marks, trade names, or program titles, violation of rights
of privacy, and infringement of copyrights and proprietary rights, but only to
the extent that such liabilities arise as a result of Licensee's alteration of
programming material (other than by preemption of Programming pursuant to
paragraphs 10 or 11 hereof or rejection of Programming pursuant to paragraph 7
hereof) prior to broadcast by Licensee; or (iii) costs, expenses or damages
associated with termination liabilities assigned to Licensee pursuant to
paragraph 20.3.
-6-
7
18. Events of Default; Cure Periods and Remedies.
18.1 Events of Default. The following shall, after the expiration of
the applicable cure periods, constitute Events of Default under this Agreement:
18.1.1 Non-Payment. Broker's failure to timely pay the
consideration provided for in paragraph 2 hereof;
18.1.2 Default in Covenants or Adverse Legal Action. The
default by either party hereto in the material observance or performance of any
material covenant, condition or agreement contained herein, or if either party
shall (a) make a general assignment for the benefit of creditors, (b) files or
has filed against it a petition for bankruptcy, for reorganization or an
arrangement, 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 60 days thereof;
18.1.3 Breach of Representation. If any material representation
or warranty herein made by either party hereto, or 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.
18.2 Cure Periods. An Event of Default other than a payment default
shall not be deemed to have occurred until twenty (20) business days after the
non-defaulting party has provided the defaulting party with written notice
specifying the event or events that if not cured would constitute an Event of
Default and specifying the actions necessary to cure within such period. This
period may be extended for a reasonable period of time by the party providing
such notice if the defaulting party is acting in good faith to cure and such
delay is not materially adverse to the party providing notice of such default.
The cure period provided above shall not apply to a payment default. A payment
default may be cured only if the Broker, within five (5) days after receipt of
notice from the Licensee of an untimely payment, shall have delivered to
Licensee, by wire transfer or certified check, the full amount of the payment
due, plus an additional amount equal to five percent (5%) of such payment as
liquidated damages for such payment delay.
18.3 Termination Upon Default. In the event of the occurrence of an
Event of Default, the non-defaulting party may terminate this Agreement provided
that it is not also in material default hereunder.
18.3.1 Default by Broker. If Broker has defaulted in the
performance of its obligations, (1) Licensee shall be under no further
obligation to make available to Broker any further broadcast time or broadcast
transmission facilities; (2) all amounts accrued or payable to Licensee up to
the date of termination which have not been paid, less any payments made on
behalf
-7-
8
of Licensee by Broker and any payment credits, shall immediately become
due and payable; and (3) Licensee shall be entitled to receive from Broker such
other damages as Licensee shall incur as a result thereof.
18.3.2 Default by Licensee. If Licensee has defaulted in the
performance of its obligations hereunder, Broker may terminate this Agreement.
19. Broker Termination Options. Broker may elect to terminate this
Agreement at any time during the term hereof in the event that Licensee, without
the consent of the Broker (which consent shall not be unreasonably withheld in
the event of a national or local emergency), preempts or substitutes other
programming for Broker's Programming complying with paragraph 4 hereof during
fifteen percent (15%) or more of the total brokered hours during any calendar
month. In the event Broker elects to terminate this Agreement pursuant to this
provision, it shall give Licensee notice of such election at least sixty (60)
days prior to the termination date. Upon termination, all sums owing to Licensee
shall be paid and neither party shall have any further liability to the other
except as may be provided by paragraphs 17 or 20.3 hereof.
20. Termination Upon or After Purchase of Station or Termination of
Option Agreement; Liabilities Xxxx Xxxxxxxxxxx.
00.0 Xxxx Xxxxxxxx. This Agreement shall terminate upon the closing
on the purchase of the assets of the Station by Broker pursuant to the
OptionAgreement dated as of June 3, 1997 between Licensee and Xxxxx Broadcast
Group Limited Partnership, a Delaware limited partnership, Broker's predecessor
in interest (the "Option Agreement"). Upon termination under this paragraph 20,
Broker shall pay to Licensee any fees or costs due but unpaid, and Licensee
shall remit to Broker any fees or costs unearned, as of the date of termination.
20.2 Upon Termination of Option Agreement. Upon the termination of
the Option Agreement, either party, upon forty-five (45) days' prior written
notice to the other party, may terminate this Agreement.
20.3 Liabilities Upon Termination. Broker shall be responsible for
all liabilities, debts and obligations of Broker accrued from the purchase of
air time and transmission services including, without limitation, accounts
payable, barter agreements and unaired advertisements, but not for Licensee's
federal, state, and local tax liabilities associated with Broker's payments to
Licensee as provided for herein. With respect to Broker's obligations for
consideration in the form of air time, Broker may propose compensation to
Licensee for meeting these obligations, but Licensee shall be under no duty to
accept such compensation or to perform such obligations. Upon termination,
Broker shall return to Licensee any equipment or property of the Station used by
-8-
9
Broker, its employees or agents, in substantially the same condition (including
condition of installation) as such equipment existed on the date of this
Agreement, ordinary wear and tear excepted.
21. Termination as a Consequence of Governmental Action. In the event
that a federal, state or local governmental authority orders the termination of
this Agreement and/or orders the curtailment in any manner material to the
relationship between the parties hereto of the provision of Programming by
Broker hereunder, and/or determines that other similar time brokerage
agreements, in whole or in part, are contrary to public or agency policy, at its
option, Broker may seek administrative or judicial appeal of or relief from such
order(s) (in which event Licensee shall cooperate with Broker provided that (i)
Broker shall be responsible for legal fees incurred in such proceedings and (ii)
Licensee shall not be required to undertake or omit any action that might
reasonably be deemed to constitute a violation of the rules or policies of the
Commission but shall cooperate fully in all other respects) or Broker shall
notify Licensee that it will terminate this Agreement pursuant to this
paragraph. If a hearing is designated with respect to the authorization held by
Licensee for the operation of the Station, Licensee shall participate fully in
such hearing and be responsible to ensure the continued validity of such
authorization. Licensee shall be responsible for its expenses incurred as a
consequence of the Commission proceeding (unless the actions or omissions of the
Broker in violation of this Agreement or the rules of the Commission were a
principal basis for such hearing designation, in which event Broker shall be
responsible for all such costs and expenses incurred by Licensee by reason of
such acts or omissions, including but not limited to reasonable attorneys' fees
and expenses); provided, however, that Broker shall cooperate and comply with
any reasonable request of Licensee to assemble and provide to the Commission
information relating to Broker's performance under this Agreement. In the event
of termination upon such governmental action(s), Broker shall pay to Licensee
any fees due but unpaid as of the date of termination as may be permitted by
such action(s), and Licensee shall reasonably cooperate with Broker to the
extent permitted to enable Broker to fulfill advertising or other programming
contracts then outstanding, in which event Licensee shall receive as
compensation for the carriage of such programming that which otherwise would
have been paid to Broker thereunder. Thereafter, neither party shall have any
liability to the other, provided that such termination shall not have resulted
from actions or omissions of the Broker or Licensee in violation of this
Agreement or the rules of the Commission.
22. Representations and Warranties.
22.1 Mutual Representations and Warranties. Both Licensee and
Broker represent that they are legally qualified, empowered, and able to enter
into this Agreement, and that the execution, delivery and performance hereof
shall 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.
-9-
10
22.2 Licensee's Representations, Warranties and Covenants. Licensee
incorporates herein the further representations, warranties and covenants as
made by Licensee in the Option Agreement.
22.3 Broker's Representations, Warranties and Covenants. Broker
incorporates herein the further representations, warranties and covenants as
made by Broker in the Option Agreement.
23. Certifications. Licensee, by the signature of its authorized
representative to this Agreement, certifies that it maintains and will continue
to maintain ultimate control over the Station's facilities, including
specifically ultimate control over Station finances, personnel and programming
as provided herein. Broker, by the signature of its authorized representative to
this Agreement, certifies that the arrangement complies with the provisions of
P. P. (a) (1) and (e) (1) of ss. 73.3555 of the Commission's Rules, 47 C.F.R.
ss. 73.3555, in that the combined audience share of the Station and the stations
that are licensed to Broker in the Goose Creek, South Carolina market does not
exceed 25% of the total audience share of all commercial radio stations in such
market, computed in accordance with the rules of the Commission, and in that
Broker, its officers, directors and stockholders will not through this
arrangement acquire cognizable interests in more than __ FM broadcast stations
nationwide.
24. Notices. Any notice required hereunder shall be in writing and any
payment, notice or other communications shall be deemed given when delivered
personally, or mailed by certified mail or Federal Express, postage prepaid,
with return receipt requested, and addressed in accordance with the listing set
forth in Attachment III hereto.
25. Public Announcements. The parties will coordinate and consult with
one another before making any press release or other public announcement, other
than of information already publicly available, concerning the transaction
contemplated under this Agreement. Broker acknowledges that announcements and
direct or indirect communications concerning its proposed Programming or
commercial policies which are different from those of Licensee prior to the
Effective Date may have a deleterious effect on the business, operation, and
reputation of the Station and the Licensee. Accordingly, Broker agrees that
neither it nor its employees, the representatives or agents shall make any
formal or informal announcements to or communications with any employees of the
Station or to any person with whom the Station does business without written
approval of Licensee. Broker further agrees that neither it nor its employees
will release or publicize any such planned changes within the community of
license or service area or operations of the Station without the written
approval of Seller, which shall not be unreasonably withheld, and which shall be
granted if necessary or appropriate to comply with the rules, regulations or
policies of the FCC.
-10-
11
26. Modification and Waiver. No modification or waiver of any provision
of this Agreement shall in any event be effected unless the same shall be in
writing and signed by the party adversely affected by the waiver or
modification, and then such waiver and consent shall be effective only in the
specific instance and for the purpose for which given.
27. No Waiver: Remedies Cumulative. No failure or delay on the part of
Licensee or Broker in exercising any right or power hereunder shall operate as a
waiver thereof, nor shall any single or partial exercise of any such right or
power, or any abandonment or discontinuance of steps to enforce such a right or
power, preclude any other or further exercise thereof or the exercise of any
other right or power. The rights and remedies of Licensee and Broker herein
provided are cumulative and are not exclusive of any right or remedies which it
may otherwise have.
28. Construction. This Agreement shall be construed in accordance with
the laws of the State of South Carolina, and the obligations of the parties
hereto are subject to all federal, state or municipal laws or regulations now or
hereafter in force and to the regulations of the Commission and all other
governmental bodies or authorities presently or hereafter to be constituted.
29. Headings. The headings contained in this Agreement are included for
convenience only and no such heading shall in any way alter the meaning of any
provision.
30. Successors and Assigns. This Agreement shall be binding upon and
inure to the benefit of the parties and their respective successors and assigns,
including without limitation, any assignee of the Commission license for the
Station.
31. Counterpart Signatures. This Agreement may be signed in one or more
counterparts, each of which shall 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 shall be binding and effective
as of the date on which the executed counterparts are exchanged by the parties.
Prior to the execution of the original counterpart signature pages, this
Agreement may be executed in standard or telecopied counterpart originals,
which, when taken together, shall constitute one and the same instrument. A
telecopied ("faxed") signature received by one party shall be binding upon the
signing party just as if it were an original signature. Thereafter, the parties
shall take all necessary actions to execute and circulate fully executed
original counterpart signature pages.
-11-
12
32. 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. No alterations, modification or change of this Agreement
shall be valid unless by like written instruments.
33. Severability. The event that any of the provisions contained in
this Agreement is held to be invalid, illegal or unenforceable shall not affect
any other provision hereof, and this Agreement shall be construed as if such
invalid, illegal or unenforceable provisions had not been contained herein,
subject to Broker's right to terminate pursuant to paragraph 21 hereof.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first above written.
SOUTHWIND BROADCASTING, INC.
By: _______________________________
Title: ____________________________
REGENT COMMUNICATIONS, INC.
By: _______________________________
Title: ____________________________
-12-
13
TIME BROKERAGE AGREEMENT
ATTACHMENT I
Broker's Programming will be an entertainment format, which may include
news as well as promotions (including on-air giveaways) and contests.
Programming may include commercial matter, including that in both program or
spot announcement forms, as well as public service information. Broker shall
make available programming complying with paragraph 4 hereof for a minimum of
166 hours per week.
14
TIME BROKERAGE AGREEMENT
ATTACHMENT II
Compensation to be paid by Broker to Licensee as follows:
(A) Broker shall be responsible for the employment expenses of Xxxxxxx
X. Xxxxxx, III, and one other Station employee of his choosing, such expenses to
include salaries, taxes, benefits and all other normal personnel costs.
(B) Reimbursement for all utilities, rents and maintenance attributable
to the operation of the Station's transmitter during the term of this Agreement.
15
TIME BROKERAGE AGREEMENT
ATTACHMENT III
All notices are to be given to the addresses specified in the Option
Agreement.
16
TIME BROKERAGE AGREEMENT
ATTACHMENT IV
BROADCAST STATION
PROGRAMMING POLICY STATEMENT
1. Controversial Issues. Any discussion of controversial issues of
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. Notice of all
programming involving controversial issues, as described herein, shall be
provided immediately to Licensee; Station management may require that responsive
programming be aired.
2. No Plugola. 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.
3. Lotteries and Contests.
(a) Illegal Lotteries. Announcements giving any information about
lotteries or games prohibited by federal or state law or regulation are
prohibited.
(b) "Dream Books". References to "dream books," the "straight line,"
or other direct or indirect descriptions or solicitations relative to the
"numbers game," or the "policy game," or any other form of gambling are
prohibited.
(c) Contests. Any game, contest, or promotion relating to or to be
presented over the Station shall first be presented to Station management, which
reserves the right in its sole discretion to reject any game, contest or
promotion.
4. Required Announcements. Programmer shall broadcast (i) an
announcement in a form satisfactory to Station management at the beginning of
each hour to identify KNKN (FM), (ii) an announcement at the beginning and end
of each program to indicate that program time has been purchased by the
Programmer, and (iii) any other announcements that may be required by law,
regulation, or Station policy.
5. Programming Prohibitions. Programmer shall not knowingly and
willfully broadcast any of the following programs or announcements:
17
(a) False Claims. False or unwarranted claims for any product or
service.
(b) Unfair Imitation. Infringements of another advertiser's right
though plagiarism or unfair imitation of either program idea or copy, or any
other unfair competition.
(c) Indecency. Any programs or announcements that are indecent,
obscene, profane, vulgar or repulsive, either in theme or in treatment.
(d) Descriptions of Bodily Functions. Any continuity which describes
in a repellent or pandering fashion any bodily or sexual functions or
symptomatic results of internal bodily disturbances, and no reference to matters
which are not considered acceptable topics in social groups.
(e) Injurious Advertising. Any advertising matter or announcement
that may, in the opinion of the Station, be injurious or prejudicial to the
interests of the public, or honest advertising and reputable business in
general.
(f) Xxxxxx Xxxxx and Similar Programming. Programming involving
Xxxxxx Xxxxx or programming that involves air personalities previously cited by
the Commission for repeated violations of its indecency policies.
18
APPENDIX TO ATTACHMENT IV
FORM OF PAYOLA AFFIDAVIT
City of )
County of ) SS:
State of )
ANTI-PAYOLA/PLUGOLA AFFIDAVIT
_________________________, being first duly sworn, deposes and says as
follows:
1. He is _______________ for _________________________.
2. He has acted in the above capacity since _____________.
3. No matter has been broadcast by Station _____ for which service,
money or other valuable consideration has been directly or indirectly paid, or
promised to, or charged, or accepted, by him for any person, which matter at the
time so broadcast has not been announced or otherwise indicated as paid for or
furnished by such person.
4. So far as he is aware, no matter has been broadcast by Station _____
for which service, money, or other valuable consideration has been directly or
indirectly paid, or promised to, or charged, or accepted by Station _____ or by
any independent contractor engaged by Station _____ in furnishing programs, from
any person, which matter at the time so broadcast has not been announced or
otherwise indicated as paid for or furnished by such person.
5. He will not pay, promise to pay, request, or receive any service,
money, or any other valuable consideration, direct or indirect, from a third
party, in exchange for the influencing of, or the attempt to influence, the
preparation or presentation of broadcast matter on Station ______.
6. Nothing contained herein is intended to, or shall prohibit receipt
or acceptance of anything with the expressed knowledge and approval of my
employer, but henceforth any such approval must be given in writing by someone
expressly authorized to give such approval.
7. He, his spouse and his immediate family do ______ do not _____ have
any present direct or indirect ownership interest in (other than an investment
in a corporation whose stock is publicly held), serve as an offer or director
of, whether with or without compensation, or serve as an employee of, any
person, firm or corporation engaged in:
19
(a) The publishing of music;
(b) The production, distribution (including wholesale and retail
sales outlets), manufacture or exploitation of music, films, tapes, recordings
or electrical transcriptions of any program material intended for radio
broadcast use;
(c) The exploitation, promotion, or management of persons rendering
artistic, production and/or other services in the entertainment field;
(d) The ownership or operation of one or more radio or television
stations;
(e) The wholesale or retail sale of records intended for public
purchase;
(f) Advertising on Station _____, or any other station owned by its
licensee (excluding nominal stockholdings in publicly owned companies).
8. The facts and circumstances relating to such interest are none
______ or as follows _____:
___________________________________
Affiant
Subscribed and sworn to before me this ____ day of ___________, 199__.
____________________________________
Notary Public
My Commission Expires: _____________
20
TIME BROKERAGE AGREEMENT
ATTACHMENT V
Licensee Responsibilities for Expenses
1. Salaries, taxes, insurance and related costs for employees of
Licensee who shall be responsible for the Licensee's exercise of its oversight
of Station operations and for the broadcast transmissions of the Station.
2. Maintenance of the transmitter site.
3. Income taxes relating to Licensee's earnings from this Agreement.
4. Real and personal property taxes.
5. General property insurance.
6. All public utilities (including, without limitation, telephone and
electricity for tower lighting) other than those utilities attributable to
operation of the Station's transmitter, for which Licensee shall be reimbursed
by Broker pursuant to Attachment II.
21
TIME BROKERAGE AGREEMENT
ATTACHMENT VI
CONTRACTS AND AGREEMENTS
The following contracts and agreements of the Station are to be assumed
and performed by the Broker on behalf of the Licensee. The benefits and burdens
of all such contracts and agreements so designated shall remain with the
Licensee and Broker shall have no rights or obligations with respect to such
contracts and agreements:
[TO BE ADDED, IF ANY]
