Exhibit 10.85
TIME BROKERAGE AGREEMENT
TIME BROKERAGE AGREEMENT, made as of October 1, 1996 by and between
American Radio Systems Corporation (the "Programmer") and CBC of Baltimore, Inc.
(the "Licensee").
WHEREAS Licensee owns and operates Broadcast Station, WOCT (FM),
Baltimore, Maryland (the "Station") pursuant to licenses issued by the Federal
Communications Commission ("FCC").
WHEREAS Programmer is involved in radio station ownership and
operation.
WHEREAS the Licensee wishes to permit Programmer to provide programming
for the Station that is in conformity with the Stations and FCC policies for
time brokerage arrangements and as set forth herein.
WHEREAS Programmer agrees to use the Station exclusively to broadcast
such programming of its selection that is in conformity with all rules,
regulations and policies of the FCC and subject to Licensee's full authority to
control the operation of the Station.
WHEREAS Programmer and Licensee agree to work in a cooperative fashion
to make their time brokerage agreement work to the benefit of both parties and
as contemplated in this Agreement.
WHEREAS, Programmer intends to enter into a certain Asset Purchase
Agreement with Licensee in a form similar to Attachment II, (the "Asset Purchase
Agreement") under which Licensee shall agree to sell the Station to Programmer,
and pursuant to which Licensee and
Programmer shall join in and file an application for FCC consent to assign the
Stations licenses from Licensee to Programmer; and
WHEREAS, Licensee's affiliate and Programmer have contemporaneously
entered into a Time Brokerage Agreement concerning Broadcast Station WWMX,
Baltimore, Maryland, and intend to enter into a certain Asset Purchase Agreement
concerning the sale of WWMX (hereinafter collectively referred to as the "WWMX
Agreements").
NOW, THEREFORE, in consideration of the above recitals and the mutual
promises and covenants contained herein, the parties, intending to be bound
legally, agree as follows:
Section 1
Lease of Station Air Time
1.1 Representations. Each of Licensee and Programmer represent that it
is authorized to enter into this Agreement and that this Agreement constitutes
the legal, valid and binding obligation of it, enforceable against it in
accordance with its terms.
1.2 Effective Date. The Effective Date of this Agreement shall be
October ____, 1996, or the date upon which termination of Xxxx-Xxxxx-Xxxxxx
occurs, whichever is later.
1.3 Scope. During the Term (as defined in Section 6.1), Licensee shall
make available to Programmer time on the Station as set forth in this Agreement.
Programmer shall deliver such programming, at its expense, to the Station's
transmitter facilities or other authorized remote control point as reasonably
designated by Licensee. Subject to Licensee's reasonable approval, as set forth
in this Agreement, Programmer shall provide entertainment programming of its
selection complete with commercial matter, news, public service announcements
and other suitable programming to the Licensee up to one hundred sixty-four
(164) hours per week. The Licensee may use the remaining four hours per
broadcast week for the broadcast of its own regularly scheduled news, public
affairs and other non-entertainment
2
programming and shall provide Programmer with advance written notice of such
hours of programming. All time not reserved by or designated for Licensee shall
be available for use by Programmer and no other party.
1.4 Consideration. As consideration for the air time made available
hereunder, Programmer shall (a) pay to Licensee a monthly fee of One Hundred
Thirty-Seven Thousand Five Hundred Dollars ($137,500.00), payable no later than
the fifth (5th) business day of the month to which such fee pertains, (b) pay to
Licensee the cost of Programmer's telephone usage, postal service usage and
electrical usage at the studio for the Stations and Programmer, and (c) shall
reimburse Licensee additional amounts as set forth in Section 1.6 hereof. In the
event the Effective Date begins on a day other than the first day of a month,
the monthly fee shall be adjusted on a pro-rata basis.
1.5 Licensee Operation of the Station. Licensee will have full
authority, power and control over the operations of the Station during the term
of this Agreement. Licensee will bear all responsibility for the Station's
compliance with all applicable provisions of the Communications Act of 1934, as
amended (the "Communications Act"), the rules, regulations and policies of the
FCC and all other applicable laws. Licensee shall not knowingly take any action
or omit to take any action which would have an adverse impact upon the Licensee,
its assets utilized in the operation of the Station, the Station or upon
Licensee's ability to perform this Agreement. All reports, annual regulatory
fees and applications required to be filed with the FCC or any other
governmental body have been, and during the course of the term of this Agreement
or any extension thereof, will be filed by Licensee in a timely and complete
manner.
1.6 Licensee Responsibility. Licensee shall be solely responsible for
and pay in a timely manner the salaries, taxes, insurance and related costs for
all personnel it employs at the Station.
3
1.7 Programmer Responsibility. Programmer shall be solely responsible
for any expenses incurred in connection with its sale of advertising time
hereunder (including without limitation sales commissions) in connection with
the programming provided by Programmer hereunder (the "Programming") and in the
origination and/or delivery of the Programming to the integration point at the
studio for the Station and for any publicity or promotional expenses incurred by
Programmer, including without limitation, all ASCAP, BMI, and SESAC music
license fees attributable to the Programming. Programmer shall furnish or cause
to be furnished the artistic personnel and material for the production of the
Programming. Programmer shall employ and be responsible for the salaries, taxes,
insurance and related costs for all personnel used in the production of the
Programming and all sales personnel (including salespeople, traffic personnel,
and programming staff). Programmer shall in addition be responsible for other
non-capital ordinary, and customary operating expenses of the Station.
1.8 (a) Contracts. Programmer will not be required to assume
performance of any of the Licensee's contracts and leases pertaining to the
Station except for the contracts and leases listed on Attachment III hereof.
Programmer will enter into no third-party contracts, leases or agreements which
will bind Licensee in any way except with Licensee's prior written approval.
Licensee will enter into no third-party contracts, leases or agreements which
will bind Programmer in any way except with Programmer's prior written approval.
Programmer shall assume the obligations of Licensee, to provide advertising time
under the terms of existing trade and barter agreements and all Contracts with
advertisers for the sale of time or talent on the Stations for cash as listed on
Attachment III-A and Licensee shall assign all of its rights under those trade
and barter agreements and agreements for cash to Programmer. Upon termination of
this Agreement pursuant to Section 6, Programmer shall assign back to Licensee
all of its rights
4
to, and Licensee shall assume all of the liabilities and obligations under, the
contracts and agreements identified in this Section 1.8 (a) (the "Contracts").
(b) Prorations. All expenses and income arising under the
Contracts shall be prorated between Licensee and Programmer as of the Effective
Date in a manner such that the costs and benefits thereunder through the date
immediately preceding the Effective Date shall be for the account of Licensee,
and, thereafter, during the term of this Agreement, for the account of
Programmer. Such proration shall include an adjustment for the value of any and
all advertising to be run for consideration other than cash ("Trade
Agreements").
1.9 (a) Broadcasting Obligations. During the Term, except as provided
in Section 6.2, Licensee will broadcast the Programming in its entirety
(including commercials), on either the main or auxiliary facilities of the
Station, without interruption, deletion or addition of any kind, except as set
forth below:
(i) Licensee shall have the right to delete and not
to broadcast any material contained in the Programming which it regards as being
unsuitable for broadcast or the broadcast of which it believes would be contrary
to the public interest, and Licensee shall have the right to substitute such
programming therefor as it deems appropriate;
(ii) Licensee may temporarily refrain from
broadcasting the Programming between the hours of 12:30 a.m. and 5:30 a.m. (or
at some other hour in the event that weather conditions so require) in order to
perform normal, customary and routine maintenance on the Stations transmitting
facilities; provided that Licensee shall use its best efforts to minimize the
frequency and duration of such interruptions;
(iii) Licensee may temporarily cease broadcasting the
Programming as a result of a natural disaster, act of public enemy or act of
God; provided that in any such case,
5
Licensee will act expediently and use its best efforts to resume the broadcast
of the Programming as quickly as the applicable circumstances will allow; and
(iv) Licensee may temporarily refrain from
broadcasting the Programming as a result of, and during the duration of, (i) a
general electrical power outage affecting the area in which the Stations
transmitting equipment is located or (ii) a technical problem with the Station's
transmitting equipment which is outside of Licensee's control and which is not
directly or indirectly the result of any act or omission of Licensee or any of
its employees or agents; provided that in either such case, Licensee will act
expediently and use its best efforts to resume the broadcast of the Programming
as quickly as the applicable circumstances will allow.
Programmer shall not be entitled to any credit or refund of any fees in
the event of any of the events described in (i) - (iv) above.
(b) Hourly Credit. Programmer shall receive from Licensee, as
a refund consisting of a flat rate credit of $190.00 per hour ("Hourly Credit"),
for any part of the weekly one hundred sixty-four (164) hours of programming
time that Licensee uses to broadcast its own programming including periods
during which Licensee is unable, for any reason (except, as provided in Section
1.9(a) and except for Programmer's failure to deliver its programming to
Licensee), to broadcast the Programming. Such refunds to Programmer shall be
paid within ten (10) days of the end of each month.
1.10 Station Operation. Licensee shall notify Programmer in writing at
least five (5) business days prior to (i) making any changes in management
personnel, (ii) entering into any material contractual obligations, (iii)
purchasing equipment, or (iv) making any other material changes in the operation
of the Station. Licensee agrees to purchase such equipment or other material or
services which Programmer may reasonably suggest are necessary for the Station's
6
operations provided that Programmer agrees to reimburse the Licensee for all
costs associated with such purchases including, without limitation,
installation, wiring and similar related costs.
1.11 Use of Stations' Studios. Licensee agrees to provide Programmer
with access to the Station's complete facilities including the studios and
broadcast equipment for use by Programmer, if it so desires, in providing the
Programming; provided, however, that Licensee shall maintain, for its sole use,
sufficient space at the Stations studios for its management level employees.
Under the overall supervision of Licensee, Programmer shall and may peacefully
and quietly have the full use of and enjoy the use of the Stations facilities,
studios and equipment free from any hindrance from any person or persons
whomsoever claiming by, through or under Licensee. Programmer shall use the
studios and equipment only for the purpose of producing programming for the
Station or for any other stations owned or time brokered by the Programmer
within the Baltimore, Maryland ADI and shall at all times be subject to the good
faith oversight of Licensee.
Section 2
Station Obligations to the Community of License
2.1 Licensee Authority. Notwithstanding any other provision of this
Agreement, Programmer recognizes that Licensee has certain obligations to
broadcast programming to meet the needs and interests of the community of
license for the Station. On a regular weekly basis the Licensee shall air
specific programming on issues of importance to the local community. Nothing in
this Agreement shall abrogate the unrestricted authority of the Licensee to
discharge its obligations to the public and to comply with the law, rules and
policies of the FCC with respect to meeting the ascertained needs and interests
of the public.
2.2 Additional Licensee and Programmer Obligations. Although both
parties shall cooperate in the broadcast of emergency information over the
Station, Licensee shall also retain
7
the right to interrupt Programmer's programming in case of an emergency or for
programming which, in the reasonable good faith judgment of Licensee, is of
overriding public importance. Such interruption shall not entitle Programmer to
any credits on fees. Licensee shall continue to maintain a main studio, as that
term is defined by the FCC, within the Stations principal community contour,
shall maintain its local public inspection file within the community of license
and shall prepare and place in such inspection file its quarterly issues and
program lists on a timely basis. Programmer shall, upon request by Licensee,
provide Licensee on a timely basis with information with respect to certain of
Programmer's programs which should be included in Licensee's quarterly issues
and programs lists. Licensee shall also maintain the station logs, receive and
respond to telephone inquiries, and control and oversee any remote control point
for the Station.
2.3 Responsibility for Employees and Expenses. In accordance with
Section 1.7, Programmer shall employ and be solely responsible for the salaries,
taxes, insurance and related costs for all personnel employed by Programmer
(including, without limitation, salespeople, traffic personnel, board operators
and programming staff). Licensee will provide and be responsible for the Station
personnel employed by Licensee and necessary to fulfill Licensee's obligations
hereunder, and will be responsible for the salaries, taxes, insurance and
related costs for all the personnel it employs. All personnel shall be subject
to the overall supervision of Licensee, consistent with Programmer's right to
the use of the Stations facilities pursuant to Section 1.12 hereof.
Section 3
Station Programming Policies
3.1 Broadcast Station Programming Policy Statement. Licensee agrees to
adopt and enforce the Broadcast Station Programming Policy Statement set forth
hereto as Attachment IV
8
(the "Policy Statement"), which may be amended from time to time by Licensee
upon notice to Programmer. Programmer agrees and covenants to comply in all
material respects with the Policy Statement, with all rules and regulations of
the FCC, and with all reasonable changes subsequently made by Licensee or the
FCC. If Licensee reasonably determines that a program supplied by Programmer
does not comply with the Policy Statement it may suspend or cancel such program
and shall provide written notice to Programmer of such decision. All Programming
shall comply with the Policy Statement, the Communications Act and FCC rules and
regulations. All advertising spots and promotional material or announcements
included in the Programming shall comply with applicable federal, state and
local regulations and policies, the Policy Statement, and shall be produced in
accordance with quality standards established by Programmer.
3.2 Licensee Control of Programming. Programmer recognizes that
Licensee has full authority to control the operation of the Station. The parties
agree that Licensee's authority includes but is not limited to the right to
reject or refuse such portions of the Programming which Licensee believes, in
its sole discretion, to be unsatisfactory, unsuitable or contrary to the public
interest. Programmer shall have the right to change the Programming elements
and/or format of the Programming by giving Licensee at least twenty-four (24)
hours notice of such changes.
3.3 Programmer Compliance with Copyright Act. Programmer represents and
warrants to Licensee that Programmer has full authority to broadcast the
Programming on the Station, and that Programmer shall not broadcast any
slanderous material or any material in violation of any law, rule, regulation,
including regulation without limitation the Communications Act, the rules and
regulations of the FCC or the Copyright Act. All music supplied by Programmer
shall be: (i) licensed by ASCAP, SESAC or BMI; (ii) in the public domain; or
(iii) cleared at the source by Programmer. Consistent with Section 1.7 hereof,
9
Licensee will maintain ASCAP, BMI and SESAC licenses as necessary. The right to
use the Programming and to authorize its use in any manner shall be and remain
vested in Programmer.
3.4 Sales. Programmer shall retain all revenues from the sale of
advertising time within the Programming. Programmer may sell advertising,
consistent with applicable rules, regulations and the Policy Statement, on the
Station in combination with any other broadcast stations of its choosing.
Programmer shall be responsible for payment of the commissions due to any
national sales representative engaged by it for the purpose of selling national
advertising which is carried during the Programming. Licensee shall retain all
revenues from the sale of Stations advertising during the hours each week in
which the Licensee airs its own non-entertainment programming, with the
exception provided for certain political advertising as set forth in Section 5.2
herein.
3.5 Payola. Programmer agrees that it will not accept any
consideration, compensation, 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 Communications Act and FCC
requirements. Programmer agrees at the reasonable request of Licensee, to
execute and provide Licensee with a Payola Affidavit, substantially in the form
attached hereto as Attachment V.
3.6 Staffing Requirements. Licensee shall comply with the main studio
staff requirements as specified by the FCC.
10
Section 4
Indemnification
4.1 Programmer's Indemnification. Programmer shall indemnify and hold
harmless Licensee, its partners and their respective directors, officers and
stockholders from and against any and all claims, losses, costs, liabilities,
damages, FCC forfeitures and expenses (including reasonable legal fees and other
expenses incidental thereto) of every kind, nature and description, including
but not limited to, those arising out of (a) Licensee's broadcast of the
Programming and (b) liabilities of Programmer to its employees and other third
parties.
4.2 Licensee's Indemnification. Licensee shall indemnify and hold
harmless Programmer from and against any and all claims, losses, costs,
liabilities, damages, and expenses (including reasonable legal fees and other
expenses incidental thereto) of every kind, nature and description, arising out
of Licensee's broadcasts of programming other than the Programming to the extent
permitted by law.
4.3 Limitation. Neither Licensee nor Programmer shall be entitled to
indemnification pursuant to this section unless such claim for indemnification
is asserted in writing delivered to the other party.
4.4 Time Brokerage Challenge. If this Agreement is challenged at the
FCC, whether or not in connection with the Stations license renewal application,
counsel for the Licensee and counsel for the Programmer shall jointly defend the
Agreement and the parties' performance thereunder throughout all FCC proceedings
at the sole expense of the Programmer. If portions of this Agreement do not
receive the approval of the FCC staff, then the parties shall reform the
Agreement or, at Programmer's option and expense, seek reversal of the staff
decision and approval from the full FCC on appeal.
11
Section 5
Access to Programmer Materials and Correspondence
5.1 Confidential Review. Prior to the provision of any of the
Programming by Programmer to Licensee under this Agreement, Programmer shall
acquaint the Licensee with the nature and type of the programming to be
provided. Licensee, solely for the purpose of ensuring Programmer's compliance
with the law, FCC rules and the Stations policies, shall be entitled to review
at its discretion from time to time on a confidential basis any programming
material it may reasonably request. Programmer shall promptly provide Licensee
with copies of all correspondence and complaints received from the public
(including any telephone logs of complaints called in), copies of all program
logs and promotional materials. However, nothing in this section shall entitle
Licensee to review the internal corporate or financial records of the
Programmer.
5.2 Political Advertising. Programmer shall cooperate with Licensee to
assist Licensee in complying with all rules of the FCC regarding political
advertising. Programmer shall supply such information promptly to Licensee as
may be necessary to comply with the lowest unit rate, equal opportunities and
reasonable access requirements of federal law. To the extent that Licensee deems
it necessary to assure its performance of its political time obligations,
Programmer shall release advertising availabilities to Licensee; provided,
however, that all revenues received by Licensee as a result of such a release of
advertising time shall promptly be paid to Programmer, net of any direct
out-of-pocket costs incurred by Licensee in selling the political advertising
and administering its broadcast.
12
Section 6
Termination and Remedies Upon Default
6.1 Term; Termination. The term of this Agreement (the "Term") shall
commence on the date of this Agreement and shall terminate on the earlier of (i)
the date of any termination of the Asset Purchase Agreement pursuant to the
terms thereof, (ii) the date of any termination of this Agreement pursuant to
this Section 6.1, (iii) the date of any termination of either of the WWMX
Agreements, and (iv) the Closing Date (as defined in the Asset Purchase
Agreement). In addition to other remedies available at law or equity and the
provisions of Section 1.2 hereof, this Agreement may be terminated as set forth
below by either Licensee or Programmer by written notice to the other if the
party seeking to terminate is not then in material default or breach hereof,
upon the occurrence of any of the following:
(a) this Agreement is declared invalid or illegal in whole or
substantial part by an order or decree of an administrative agency or court of
competent jurisdiction and such order or decree has become final and no longer
subject to further administrative or judicial review;
(b) the other party is in material breach of its obligations
hereunder and has failed to cure such breach within thirty (30) days of notice
from the non-breaching party, which notice shall specify the breach and the
action necessary to cure such breach;
(c) the mutual consent of both parties
(d) there has been a material change in FCC rules, policies or
precedent that would cause this Agreement to be in violation thereof and such
change is in effect and not the subject of an appeal or further administrative
review.
Upon any termination of this Agreement, Licensee shall have no further
obligation to provide to Programmer any broadcast time or broadcast transmission
facilities and Programmer shall have no further obligations under Section 1.6(b)
hereof or to make any payments to
13
Licensee under Section 1.4 hereof. Programmer shall be responsible for all debts
and obligations of Programmer to third parties based upon the purchase of air
time and use of Licensee's transmission facilities including, without
limitation, accounts payable, barter agreements and unaired advertisements, but
not for Licensee's federal, state and local income and business franchise tax
liabilities or taxes levied upon Licensee's personal property. In the event of
any termination, Programmer shall be entitled to retain all notes and accounts
receivable and other receivables of the Station accrued as of the date of such
termination (the "Termination Date") relating to advertising time sold by
Programmer between the date of this Agreement and the Termination Date
("Programmer Receivables"), and shall be entitled to pursue collection thereof.
Licensee shall pay over to Programmer any sums received by Licensee on account
of the Programmer Receivables. Notwithstanding anything herein to the contrary,
to the extent that any invoice, xxxx or statement submitted to Licensee after
the Termination Date or any payment made by Programmer prior to the Termination
Date relates to expenses incurred in operating the Station, for periods both
before and after the Termination Date, such expenses shall be prorated between
Licensee and Programmer in accordance with the principle that Programmer shall
be responsible for expenses allocable to the period prior to the Termination
Date and Licensee shall be responsible for expenses allocable to the period on
and after the Termination Date. Each party agrees to reimburse the other party
for expenses paid by the other party to the extent appropriate to implement the
proration of expenses pursuant to the preceding sentence.
6.2 Programmer's Remedies for Operational Deficiencies. Programmer
shall have the following remedies for deficiencies in or events related to
Licensee's transmitting facility:
(a) If Programmer receives during the first sixty (60) days of
this Agreement a report of a consulting engineer, chosen by Programmer, which
concludes that the Station are not operating in all material respects within the
parameters authorized by the FCC or that the
14
Station's actual coverage of the market is materially less than such
authorization allows, Licensee shall be obligated, at its expense, to take such
steps as are reasonably necessary to restore the effective coverage or operating
parameters of the relevant Station or demonstrate, by the use of the report of
another consulting engineer, hired at its expense, that the coverage or
operating parameters are not materially deficient. If the Stations effective
coverage or operating parameters continue to be materially deficient within
thirty (30) days of notice of the coverage or operating deficiencies, then
Programmer shall be entitled to a refund, equal to the Hourly Credit amount set
forth in Section 1.9 for each hour of deficiency until such deficiencies are
corrected and such refunds shall be made within ten (10) days of the end of the
month.
(b) If for a period of five (5) consecutive days or more
Licensee reduces its transmitter output power on the Station by fifty percent
(50%) or more, Programmer may elect to require Licensee to pay a refund equal to
one half of the Hourly Credit amount set forth in Section 1.9 for so long each
hour that such power reduction continues to occur if Programmer has, in fact,
been required to make rebates and/or other financial accommodations to its
advertisers as a result of such power reduction. Such refund shall be reflected
in a refund payment by Licensee to Programmer within ten (10) days of the end of
the month in which such power reduction occurs.
(c) If, due to damage to or failure of transmission equipment,
the Station is off the air for five (5) consecutive days or for a total of one
hundred twenty (120) hours during any thirty (30) day period, Programmer shall
be entitled to a full refund, on a daily basis, equal to, the Hourly Credit
amount set forth in Section 1.9 for each hour the Stations are off the air, and
such refund shall be paid within ten (10) days of the end of the month in which
the Stations are off the air.
15
6.3 Other Agreements. During the Term, Licensee will not enter into any
other time brokerage, program provision, local management or similar agreement
with any third party with respect to the Station.
Section 7
Miscellaneous
7.1 Assignment. This Agreement shall be binding upon and inure to the
benefit of the parties hereto, their successors and assigns, including
specifically any purchaser of the Station from Licensee. Neither party may
assign its rights under this Agreement without the prior written consent of the
other party which shall not be unreasonable withheld, provided, however that (a)
Programmer has the absolute right to assign this Agreement and all of its rights
and obligations hereunder, following written notice to the Licensee, to an
entity controlled by American Radio Systems Corporation, provided that such
entity assumes all of Programmer's obligations under this Agreement and that
such assignment shall not release Programmer from any of its obligations under
this Agreement and (b) Licensee has the right to assign its payments hereunder
to its Lenders upon written notification to Programmer.
7.2 Call Letters. Upon request of Programmer and at Programmer's
expense, Licensee shall apply to the FCC for authority to change the call
letters of the Station (with the consent of the FCC) to such call letters that
Programmer shall reasonably designate. Licensee shall cooperate with Programmer
and receive Programmer's consent prior to making any change in the call letters
of the Stations.
7.3 Counterparts. This Agreement may be executed in one or more
counterparts, each of which will be deemed an original but all of which together
will constitute one and the same instrument.
16
7.4 FCC Certification (47 C.F.R. ss. 73.3555(a) (2) (ii). Pursuant to
Section 73.3555(a)(2)(ii) of the FCC's rules, Licensee certifies that it
maintains ultimate control over the Stations' facilities, including specifically
control over finances, personnel and programming at the Stations and the
Programmer certifies that this Agreement complies with the provisions of
Sections 73.3555(a)(1) and (e)(1) of the FCC's rules.
7.5 Entire Agreement. This Agreement, the Attachments hereto, the Asset
Purchase Agreement, and the WOCT Agreements embody the entire agreement and
understanding of the parties and supersede any and all prior agreements,
arrangements and understandings relating to matters provided for herein. No
amendment, waiver of compliance with any provision or condition hereof, or
consent pursuant to this Agreement will be effective unless evidenced by an
instrument in writing signed by the parties.
7.6 Taxes. Licensee and Programmer shall each pay its own ad valorem
taxes, if any, which may be assessed on such party's respective personal
property for the periods that such items are owned by such party. Programmer
shall pay all taxes if any, to which the consideration specified in Section 1.4
herein is subject, provided that Licensee is responsible for payment of its own
income taxes. Each party shall be responsible for any sales tax imposed on
advertising aired during the programming provided by that party.
7.7 Headings. The headings are for convenience only and will not
control or affect the meaning or construction of the provisions of this
Agreement.
7.8 Governing Law. The obligations of Licensee and Programmer are
subject to applicable federal, state and local law, rules and regulations,
including, but not limited to, the Communications Act, and the rules and
regulations of the FCC. The construction and performance of the Agreement will
be governed by the laws of the Commonwealth of Massachusetts.
17
7.9 Notices. Any notice, demand or request required or permitted to be
given under the provisions of the Agreement shall be in writing and shall be
deemed to have been duly delivered on the date of personal delivery or on the
date of receipt if mailed by registered or certified mail, postage prepaid and
return receipt requested, and shall be deemed to have been received on the date
of personal delivery or on the date set forth on the return receipt, to the
following addresses, or to such other address as any party may request, in the
case of Licensee, by notifying Programmer, and in the case of Programmer, by
notifying Licensee.
To Licensee: CBC of Baltimore, Inc.
000 Xxxxxxxxxxxx Xxxxxx
Xxxxxxx, XX 00000-0000
Attn: Xxxxxx X. Xxxx
Copies To: Capitol Broadcasting Company, Inc.
0000 Xxxxxxx Xxxx.
Xxxxxxx, XX 00000
Attn: Xxxxx X. Xxxxxxx
Capitol Broadcasting Company, Inc.
000 Xxxxxxxxxxxx Xx.
Xxxxxxx, XX 00000-0000
Attn: Xxxx X. Xxxxxxx
To Programmer: American Radio Systems Corporation
000 Xxxxxxxxxx Xxxxxx
Xxxxxx, XX 00000
Attn: Xxxxxx X. Xxxxx, President
Fax: (000) 000-0000
Copies To: American Radio Systems Corporation
000 Xxxxxxxxxx Xxxxxx
Xxxxxx, XX 00000
Attn: Xxxxxxx X. Xxxxxx, Esq.
Fax: (000) 000-0000
18
Dow, Xxxxxx and Xxxxxxxxx
0000 Xxx Xxxxxxxxx Xxx., X.X.
Xxxxx 000
Xxxxxxxxxx, XX 00000
Xxxx X. Xxxxx, Xx. Esq.
Fax: (000) 000-0000
7.10 Severability. If any provision of this Agreement or the
application thereof to any person or circumstances shall be invalid or
unenforceable to any extent, the remainder of this Agreement and the application
of such provision to other persons or circumstances shall not be affected
thereby and shall be enforced to the greatest extent permitted by law.
7.11 Specific Performance. The parties recognize that in the event
Licensee should refuse to perform under the provisions of this Agreement,
monetary damages alone will not be adequate. Programmer shall therefore be
entitled to seek specific performance of all terms of this Agreement. In the
event of any action to enforce this Agreement, Licensee hereby waives the
defense that there is adequate remedy at law.
7.12 Arbitration. Any dispute arising out of or related to this
Agreement that Licensee and Programmer are unable to resolve by themselves shall
be settled by arbitration in Baltimore, Maryland by a panel of three
arbitrators. Licensee and Programmer shall each designate one disinterested
arbitrator and the two arbitrators designated shall select the third arbitrator.
The persons selected as arbitrators need not be professional arbitrators, and
persons such as lawyers, accountants and bankers shall be acceptable. Before
undertaking to resolve a dispute, each arbitrator shall be duly sworn faithfully
and fairly to hear and examine the matters in controversy and to make just award
according to the best of his or her understanding. The arbitration hearing shall
be conducted in accordance with the commercial arbitration rules of the American
Arbitration Association. The written decision of a majority of the arbitrators
shall be final and binding on Licensee and Programmer. The costs and expenses of
the arbitration proceeding
19
shall be assessed between Licensee and Programmer in a manner to be decided by a
majority of the arbitrators, and the assessment shall be set forth in the
decision and award of the arbitrators. Judgment on the award, if it is not paid
within thirty days, may be entered in any court having jurisdiction over the
matter. No action at law or in equity based upon any claim arising out of or
related to this Agreement shall be instituted in any court by Licensee or
Programmer against the other except: (i) an action to compel arbitration
pursuant to this Section, (ii) an action to enforce the award of the arbitration
panel rendered in accordance with this Section; or (iii) a suit for specific
performance pursuant to Section 7.11.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the day and year first above written.
LICENSEE:
CBC OF BALTIMORE, INC.
By: _____________________________________
PROGRAMMER:
AMERICAN RADIO SYSTEMS CORPORATION
By: ____________________________________
20
