Exhibit 10.4
LOCAL MARKETING AGREEMENT
This Local Marketing Agreement (the "Agreement") dated as of June 1, 1997,
by and between Great Xxxxx Broadcasting, Ltd., a Pennsylvania Limited
Partnership (hereinafter referred to as "Licensee") and Nassau Broadcasting
Partners, L.P., a Delaware Limited Partnership (the "Broker").
WITNESSETH:
WHEREAS, Licensee is authorized to operate Radio Stations WTTM/AM and
WCHR/FM licensed to Trenton, New Jersey (hereinafter referred to as the
"Stations"), pursuant to licenses issued by the Federal Communications
Commission ("FCC");
WHEREAS, Licensee and Broker have entered into an Asset Purchase
Agreement, dated August 30, 1996, as amended on January 17, 1997 and May 31,
1997 (collectively, the "Purchase Agreement"), pursuant to which the Licensee
has agreed to sell to Broker all of the assets;
WHEREAS, the parties hereto have carefully considered the FCC's time
brokerage policies and intend that this Agreement in all respects comply with
such policies;
WHEREAS, Licensee desires to enter into this Agreement to sustain the
operations of the Stations from January 1, 1999 until the Closing under the
Purchase Agreement;
WHEREAS, Broker desires to provide an over-the-air program service to
Trenton, New Jersey, using the facilities of the Stations;
WHEREAS, Licensee agrees to provide time on the Stations to Broker on
terms and conditions that conform to the policies of the Stations and the FCC
for time brokerage arrangements and as set forth herein; and
WHEREAS, Broker agrees to utilize the facilities of the Stations solely to
broadcast programming that conforms with the policies of the Licensee and with
all rules, regulations and policies of the FCC and as set forth herein.
NOW, THEREFORE, for and in consideration of the mutual covenants herein
contained, the parties hereto have agreed and do agree as follows:
1. Facilities. Licensee agrees to make broadcasting transmission
facilities of each of the Station available to Broker for a minimum of 158 hours
per week (the "Minimum"), which will facilitate the broadcasting of Broker's
programs (the "Programs"), which shall originate either from Broker's own
studios or from Licensee's facilities or from other studios
contracted for by Broker. The Programs are described in Attachment I hereto;
provided, however, that the facilities made available to Broker shall not
include the Stations' subcarrier(s) as long as it does not interfere with the
principal signal. Licensee retains all rights to lease its subcarrier(s) and the
radio towers utilized by the Stations. Broker and Licensee represent to each
other that they have, and will have throughout the term of this Agreement, the
capability or transmitting either by STL or phone lines from their respective
broadcast and transmission studios.
2. Payments. Broker hereby agrees to pay Licensee for the broadcast of the
programs hereunder, the sum of Seventy-Five Thousand Dollars ($75,000) per month
payable on the first of each month during the term of this Agreement. The
failure of Licensee to demand or insist upon prompt payment in accordance
herewith shall not constitute a waiver of its right to such payment. Broker
shall receive a payment credit for any programming, up to the Minimum, produced
by it and preempted or not accepted by the Stations, such amount to be
determined by multiplying the monthly payment by the ratio of the amount of time
preempted or not accepted to the total number of broadcast hours up to the
Minimum produced by Broker each month.
3. Term. This Agreement shall become effective on 12:00 a.m. Midnight
January 1, 1998 (the "Effective Date") and shall terminate upon the earlier of
(a) the Closing Date (as that term is defined in the Purchase Agreement) or (b)
the time for termination specified in this Agreement.
4. Programs. Broker shall furnish or cause to be furnished the artistic
personnel and material for the Programs as provided by this Agreement and all
Programs shall be in good taste and in accordance with the rules, regulations
and policies of the FCC. All Programs shall be prepared and presented in
conformity with the regulations prescribed in Attachment III hereto. All.
advertising spots and promotional material or announcements shall comply with
all applicable federal, state and local regulations and policies.
5. Stations Facilities.
5.l Operation of Stations. Licensee represents that the Stations now
operate and will continue to operate in accordance with the authorizations
issued by the FCC. Throughout the term of this Agreement, Licensee shall make
the Stations available to the Broker for operation with the maximum authorized
facilities twenty-four (24) hours a day, seven (7) days a week, except for: (I)
up to ten (10) hours per week for public affairs, news, information and other
non-entertainment programming intended to address the needs and interest of the
Stations' service area; (ii) down-time occasioned by routine maintenance not to
exceed two (2) hours each Sunday morning between the hours of 12 Midnight and
6:00 a.m. Any routine maintenance work
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affecting the operation of the Stations at full power shall be scheduled upon,
if practicable, at least forty-eight (48) hours prior notice to Broker; and
(iii) STL and phone lines as set forth in Paragraph 1 hereof.
5.2 Interruption of Normal Operations. (a) Except as provided in
Paragraph 5.2(b), if any of the Stations suffer loss or damage of any nature to
their transmission facilities which results in the interruption of service or
the inability of any of the Stations to operate with their maximum authorized
facilities, pursuant to the authorization under which the Stations are then
operating, Licensee shall immediately notify Broker and shall undertake such
repairs as necessary to restore the full-time operation of the Stations with
their then maximum authorized facilities within thirty (30) days from the
occurrence of such loss or damage. If such repairs are not made within the
allotted period, Broker may give notice to Licensee of Broker's intention to
terminate this Agreement, in which event this Agreement shall terminate on the
thirtieth (30th) day following such notice, any other provision of this
Agreement notwithstanding unless the repairs are made prior to the expiration of
said thirty (30) day period.
(b) If any of the Stations suffer loss or damage of any nature to their
transmission facilities which results in the interruption of service or the
inability of any of the Stations to operate with their maximum authorized
facilities, pursuant to the authorization under which the Stations are then
operating, and such loss or damage is a result of the actions, failure to act or
negligence of Broker, Broker shall be solely responsible for the repair of the
Station's transmission facilities and there shall be no reduction in the
payments required under this Agreement or the Purchase Agreement during the
period of such repairs.
6. Handling of Mail. Except as required to comply with the FCC rules and
policies including those regarding the maintenance of the public inspection file
(which shall at all time remain the responsibility of Licensee), Licensee shall
not be required to receive or handle mail, cables, telegraph or telephone calls
in connection with the Programs broadcast hereunder unless Licensee has agreed
in writing to do so.
7. Programming and Operations Standards. Broker agrees to abide by the
standards set forth in this Attachment III hereto in its programming and
operations. Broker further agrees that if, in the sole judgment of Licensee, or
the Stations' General Manager, Broker does not comply with said standards,
Licensee may suspend or cancel any program not in compliance.
8. Responsibility for Employees and Expenses. Except as otherwise provided
herein, Broker shall employ and be responsible for the salaries, taxes,
insurance and related costs for all personnel used in the production of its
programming and the
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broadcast transmission of the Programs (including, without limitation,
salespeople, traffic personnel board operators and programming staff).
Notwithstanding the foregoing, Licensee will provide and be responsible for the
salaries, taxes, insurance, and related costs of the Station Manager and a staff
person. Whenever on the Stations' premises, all personnel shall be subject to
the supervision and the direction of Licensee's Station Manager. Broker shall
reimburse Licensee for the salary, taxes, insurance and related costs for the
Licensee's Station Manager and staff person, all, telephone calls associated
with program production and listener responses, for all fees to ASCAP, BMI and
SESAC, and for any other copyright fees attributable to its programming
broadcast on the Stations.
9. Treatment of Licensee's Revenues. Broker shall retain all Licensee's
revenues received on the Effective Date and during the term of this Agreement
and shall reimburse Licensee for all expenses related to the operation of the
Stations, including but not limited to the costs of the Station Manager and the
staff person, insurance premiums, real estates taxes, maintenance and repair of
personal property of Licensee ("Accounts Payable"). Broker's reimbursement shall
occur not later than fifteen (15) days following presentment of an invoice,
xxxx, or other request of payment in respect of any Account Payable. Licensee
shall cooperate with Broker in order to ensure Broker receives all such
revenues, including executing all assignments and other instruments necessary to
insure such receipt.
10. Control of Station. Notwithstanding anything to the contrary in this
Agreement, Licensee shall have full authority and power over the operations of
the Stations during the period of this Agreement. Licensee shall provide and pay
for the Station Manager of the Stations, who shall report and be accountable
solely to Licensee and who shall direct the day-to-day operation of the
Stations. Licensee shall retain control, said control to be reasonably
exercised, over the policies, programming and operations of the Stations,
including without limitation, the right to decide whether to accept or reject
any programming or advertisements, the right to preempt any Programs 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 New Jersey, the rules,
regulations and policies of the FCC, and the rules, regulations and policies of
other federal governmental authorities, including the Federal Trade Commission
and the Department of Justice. Licensee and Broker shall cooperate with one
another in meeting all of the FCC's requirements with respect to public service
programming, for maintaining the political and public inspection files of each
of the Stations' logs and for the preparation of issues/Programs lists. Broker
shall, upon request by Licensee, provide Licensee with information with respect
to such of the Programs which are responsive to public needs and interest so as
to assist Licensee in the preparation of required programming
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reports and will provide, upon request, other information to enable Licensee to
prepare other records, reports and logs required by the FCC or other local,
state or federal governmental agencies.
11. Special Events. Licensee reserves the right, to preempt any of the
broadcasts of the Programs referred to heroin and to use part or all of the time
contracted for herein by Broker to broadcast special events of importance. In
all such cases, Licensee will use its best efforts to give Broker reasonable
notice of its intention to preempt such broadcast or broadcasts and, in the
event of such preemption, Broker shall receive a payment credit for the
broadcasts so omitted. In addition, Licensee shall be responsible for insuring
that each of the Stations' identification announcements are broadcast in
accordance with FCC requirements, and Broker shall cooperate with Licensee to
facilitate such broadcasts.
12. Force Majeure. Any failure or impairment 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.
13. Right to Use the Programs. The right to use the Programs produced by
Broker and to authorize their use in any manner and in any media whatsoever
shall be and remain vested in Broker.
14. Payola. Broker agrees that neither it nor any of its employees or
agents will 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
them and merchants or advertisers, unless, to the extent required by the FCC,
the payer is identified in the program as having paid for or furnished such
consideration. Broker agrees annually, or more frequently upon the request of
Licensee, to provide Licensee with Payola Affidavits substantially in the form
attached hereto as Attachment IV.
15. Compliance with Law. Broker agrees that, throughout the term of this
Agreement, Broker will materially comply with all laws and regulations
applicable in the conduct of Licensee's business, and Broker acknowledges that
Licensee has not urged, counseled or advised the use of any unfair business
practice.
16. Political Advertising. Broker shall cooperate with Licensee as
Licensee complies with the political broadcasting requirements of the Federal
Communications Act of 1934, as amended (the "Act") and the FCC's rules and
policies thereunder.
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Broker shall supply such information promptly to Licensee as may be necessary to
comply with the lowest unit charge requirements of Section 315 of the Act. To
the extent that Licensee believes necessary, in Licensee's sole discretion,
Broker shall release advertising availabilities to Licensee to permit it to
comply with its reasonable access provisions of Section 312(a) (7) of the act,
the equal opportunities provision of Section 31 of the Act, and the rules and
policies of the FCC thereunder; provided, however, that all revenues realized by
Licensee as a result of such a release of advertising time shall promptly be
remitted to Broker. In any event, with respect to the Stations, Licensee must
oversee and take ultimate responsibility with respect to the provision of equal
opportunities, lowest unit charge, and reasonable access to political
candidates, and compliance with the political broadcast rules and policies of
the FCC.
17. Indemnification; Warranty. Broker will indemnity and hold Licensee
harmless against all liability for its material breach of representations,
warranties or covenants as well as for libel, slander, illegal competition or
trade practice, infringement of trademarks, trade names or program titles,
violative of rights of privacy, and infringement of copyrights and proprietary
rights resulting from the broadcast of Programs furnished by Broker. Further,
Broker warrants that the broadcasting of the Programs will not violate any
rights of others, and Broker agrees to hold Licensee harmless from any and all
claims, damages, liability, costs and expenses, including reasonable attorneys'
fees, arising from the broadcasting of the Programs. Licensee reserves the right
to refuse to broadcast any Programs containing matter which is or, in the
reasonable opinion of Licensee, may be, or which a third-party claims to be,
violation of any right of Licensee of which may constitute a personal attack as
the term is and has been defined by the Commission. Broker's obligation to hold
Licensee harmless against the liabilities specified above shall survive any
termination of this Agreement until the expiration of all applicable statutes of
limitation. Reciprocally, Licensee shall indemnify and hold Broker harmless
against all liability for its material breach of representations, warranties or
covenants as well as for libel, slander, illegal competition or trade
practices, infringement or trademarks, trade names or program titles, violative
of rights or privacy and infringement of copyrights and proprietary rights
resulting from programming furnished by Licensee. Further, Licensee warrants
that the broadcasting of the Programs will not violate any rights of others, and
Licensee agrees to hold Broker harmless for any loss, damage or injury or any
kind (including reasonable legal fees and related costs) arising from the
broadcast of programming on the Stations furnished by Licensee. Licensee's
obligation to hold Broker harmless against the liabilities specified above shall
survive any termination of this Agreement until the expiration of the applicable
statute of limitations.
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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 the Agreement:
18.1.1 Non-Payment. Broker's failure to timely pay the
consideration provided for in Paragraph 2 hereof; or
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 in the Purchase
Agreement, 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 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; or
18.1.2 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; or
18.1.4 Substitution of Programming. If, other than the hours
described in Section 5.1(i) hereof, Licensee preempts or substitutes other
programming for that supplied by Broker during five and one-half (5.5%) percent
or more of the total hours of operation of each of the Stations during any
calendar month.
18.2 Cure Periods. An Event of Default shall not be deemed to
have occurred until twenty-five (25) business days, or fifteen (15) days in the
event of a monetary default, after the non-defaulting party has provided the
defaulting party with written notice specifying the event or events that, if nor
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 if the defaulting party is acting in good faith to cure and such delay
is not materially adverse to the other party.
18.3 Termination Upon Default. In the event of the occurrence
of an Event of Default pursuant to this Agreement or the Purchase Agreement, the
non-defaulting party may terminate this Agreement and/or the Purchase Agreement
after any relevant cure period provided herein or therein if that party is not
also in material default pursuant to this Agreement or the Purchase Agreement.
If Licensee terminates this Agreement because Broker
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has defaulted in the performance of its obligations under this Agreement or the
Purchase Agreement, Licensee shall be under no further obligation to make
available to Broker any further broadcast time or broadcast transmission
facilities and all amounts accrued or payable to Licensee up to the date of
termination which have not been paid, less any payments made on behalf of
Licensee by Broker and any payment, credits, shall immediately become due and
payable.
18.4 Liabilities Upon Termination. Broker shall be responsible for
all liabilities, debts and obligations of Broker accrued from the purchase of
air time and use of transmission facilities, including, without limitation,
Broker's 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 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.
19. Termination Upon Order of Governmental Authority. The parties intend
that this Agreement shall comply with all applicable federal, state and local
regulations. In the event that a federal, state or local governmental authority
designates a hearing with respect to the continuation or renewal of any
licenses, permits or authorizations held by Licensee for the operation of each
of the Stations or order the termination of this Agreement and/or the
curtailment in any manner material to the relationship between the parties
hereto of the provision of programming by Broker hereunder, Broker, at its
option, may seek administrative or judicial appeal of or relief from such
order(s) (in which event Licensee shall cooperate with Broker provided that
Broker shall be responsible for legal fees incurred in such proceedings) or
Broker shall notify Licensee that they will terminate this Agreement in
accordance with such order(s). If the FCC designates any renewal application of
the Stations for a hearing or commences a hearing to consider revocation of any
license or permit for the Stations as a consequence of this Agreement or for any
reason other that the fault of Broker, Licensee shall be responsible for
expenses they incur as a consequence of the FCC proceeding; provided however,
that Broker shall cooperate and comply with any reasonable request of Licensee
to assemble and provide to the FCC information relating to Broker's performance
under this Agreement. In the event of a termination upon such governmental
order(s), Broker shall pay to Licensee any fees due but unpaid as of the date of
termination unless prohibited by such order(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 such advertising or programming that
which otherwise would have been paid to Broker thereunder. Thereafter, neither
party shall have any liability to the other under the
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Agreement except as may be provided pursuant to Paragraph 18 hereof.
20. Representations and Warranties.
20.1 Mutual Representations and Warranties. 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 undertaking to
which any party is subject or by which it is bound. Licensee and Broker warrant,
represent, covenant and certify that Licensee maintains, and shall continue to
maintain, ultimate control over each of the Stations' facilities during the term
of this Agreement, including without limitation, control over each of the
Stations' finances, personnel and programming. Licensee and Broker represent and
warrant that they have taken all necessary corporate and other action to make
this Agreement legally binding on such party, and that the individuals signing
this Agreement on their behalf have been fully authorized and empowered to
execute this Agreement.
20.2 Licensee's Representations, Warranties and Covenants. Licensee
makes the following further representations, warranties and covenants:
1. Authorization. Licensee holds and owns all licenses and
other permits and authorizations necessary for the operation of each of the
Stations as presently conducted (including licenses, permits and authorizations
issued by the FCC), and such licenses, permits and authorizations will be in
full force and effect for the entire term hereof, unimpaired by any acts or
omissions of Licensee or of any of their principals, employees, or agents.
2. Litigation. Except as set forth in Schedule 4(g) of the
Purchase Agreement, there is not now pending or, to the knowledge of Licensee,
threatened, any action by the FCC or any other party to revoke, cancel, suspend,
refuse to renew or modify adversely, any of the licenses, permits or
authorizations necessary to the operation of each of the Stations (other than
proceedings of general applicability to the radio broadcast industry). Licensee
has no reason to believe that any such license, permit or authorization will not
be renewed in its ordinary course.
20.3 Broker's Representations, Warranties and Covenants. The Broker
hereby verifies that the arrangement contemplated by this Agreement complies
with the ownership limitations set forth in the Telecommunications Act of 1996,
as adopted February 8, 1996.
21. FCC Compliance. Notwithstanding anything herein contained to the
contrary, this Agreement, any related agreements and the parties performance
hereunder and thereunder (i) do not
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and will not constitute, create, or have the effect of constituting or creating,
directly or indirectly, actual or practical ownership of Licensee or any of the
Stations by Broker or control, affirmative or negative, direct or indirect, by
the Broker over the programming, management, or any other aspect for the
operation of the Licensee or any of the Stations, which ownership and control
will remain exclusively and at all times in the Licensee; and (ii) do not and
will not constitute the transfer, assignment, or disposition in any manner,
voluntarily or involuntarily, directly or indirectly, of any license or permit
at any time issued by the FCC to the Licensee or the transfer of control of the
Licensee within the meaning of Section 310(d) of the Act, without the FCC's
necessary prior written consent having been obtained.
22. 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.
23. 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
they may otherwise have.
24. Construction. This Agreement shall be construed in accordance with the
laws of the State of New Jersey, 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 FCC and all other governmental bodies or
authorities presently or hereafter to be constituted.
25. 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.
26. Successors and Assigns. This Agreement shall be binding upon inure to
the benefit of the parties and their respective successors and assigns,
including, without limitation, any assignee of the Licensee for the FCC licenses
for the Stations. Licensee and Broker shall not be permitted to assign this
Agreement without obtaining the consent of the other party, which consent may be
withheld for any reason whatsoever.
27. 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
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that the parties are not signatory to the original or the same counterpart.
28. 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 V hereto. If mailed, notice shall be deemed given three (3) days
after it is mailed.
29. Entire Agreement. This Agreement, which includes the attached Exhibits
and Schedules and the Purchase 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 instrument.
30. No Partnership or Joint Venture Created. Nothing in this Agreement
shall be construed to make Licensee and Broker partners or joint venturers of
the other. None of the parties hereto shall have the right to bind the others to
transact any business in the other's name or on its behalf, in any form or
manner or to make any promises or representations on behalf of the other except
as expressly provided for herein.
31. Severability. In the event that any of the provisions contained in
this Agreement are held to be invalid, illegal or unenforceable it 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.
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IN WITNE8S WHEREOF, the parties have executed this Agreement as of the
date first above written.
GREAT XXXXX BROADCASTING, LTD.
By: GREAT XXXXX COMMUNICATIONS, INC.,
its General Partner
By: /s/ Xxxx Xxxxx
-----------------------------------
Xxxx Xxxxx, President
NASSAU BROADCASTING PARTNERS' L.P.
By: Nassau Broadcasting Holdings, Inc.,
its general partner
By: /s/ Xxxxx X. Xxxxxxxxxx, Xx.
-----------------------------------
Xxxxx X. Xxxxxxxxxx, Xx., President
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TIME BROKERAGE AGREEMENT
ATTACHMENT I
Provided Broker makes all payments to Licensee required to be made
by January 1, 1998 pursuant to the Purchase Agreement, on and after January 1,
1998, Broker will broadcast an adult contemporary entertainment format which may
include news as well as promotions (including on-air giveaways) and contests.
Programming provided by Broker may include commercial matter, including that in
both program or spot announcement forms, as well as entertainment and public
service programming.
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TIME BROKERAGE AGREEMENT
ATTACHMENT II
INTENTIONALLY BLANK
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TIME BROKERAGE AGREEMENT
ATTACHMENT III
Broker agrees to cooperate with Licensee in the broadcasting of Programs
of the highest possible standard of excellence and of this purpose to observe
the following regulations in the preparation, writing and broadcasting of its
Programs:
I. Respectful of Faiths. The subject of religion and references to
particular faiths, tenets and customs shall be treated with respect at all
times.
II. No Denominational Attacks. Programs shall not be used as a medium for
attack on any faith, denomination or sect or upon any individual or
organization.
III. 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. If such events
occur, Licensee may require the responsive programming be aired.
IV. Donation Solicitation. Requests for donations in the form of a
specific amount, for example, $1.00 to $5.00, shall not be made if there is any
suggestion that such donation will result in miracles, cures or prosperity.
However, statements generally requesting donations to support the broadcast or
church may be permitted.
V. No Ministeria1 Solicitations. No invitations by a minister or other
individual appearing on the program to have listeners come and visit him or her
for consultation of the like shall be made if such invitation implies that the
listeners will receive consideration, monetary gain or cures for illness.
VI. No Vending of Miracles. Any exhortation to listeners to bring money to
a church affair or service is prohibited if the exhortation, affair or service
contains any suggestion that miracles, cures or prosperity will result.
VII. Sale of Religious Artifacts. The offering for sale of religious
artifacts or other items for which listeners would send money is prohibited
unless such items are readily available in ordinary commerce or are clearly
being sold for legitimate fundraising purposes.
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VIII. No Miracle Solicitation. Any invitations to listeners to meet at
places other than the church and/or attend other than regular services of the
church is prohibited if the invitation, meeting or service contains any claim
that miracles, cures or prosperity will result.
IX. No Claims of Undocumented Miracles. Any claims of miracles or cures
not documented in biblical scripture and quoted in context are prohibited; e.g.,
this prohibits the minister and/or other individual appearing on the program
from personally claiming any cures or miracles and also prohibits the
presentation of any testimonials regarding such claims, either in person or in
writing.
X. 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.
XI. No Lotteries. Announcements giving any information about lotteries or
games prohibited by federal or state law or regulation are prohibited.
XII. No "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.
XIII. No Numbers Games. References to chapter and verse numbers, paragraph
numbers or song numbers which involve three (3) digits should be avoided and,
when used, must relate to the overall theme of the program.
XIV. Election Procedures. At least ninety (90) days before the start of
any primary or regular election campaign, Broker will clear with Licensee's
General Manager the rate Broker 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.
XV. Spot Commercial Limitations. With respect to any given segment or air
time hereunder, the amount of spot commercial matter shall not exceed twenty
(20) minutes during any sixty (60) minute segment. Broker will provide, for
attachment to each of the Stations' logs, a list of all commercial announcements
carried during its programming.
XVI. Required Announcements. Broker shall broadcast (i) an announcement in
a form satisfactory to Licensee at the beginning of each hour to identify
Station call letters, (ii) an announcement at the beginning and end of each
program and hourly, as appropriate, to indicate that program time has been
purchased by Broker, and (iii) any other announcement that may be required by
law, regulation or Station policy.
- 16 -
XVII. Credit Terms Advertising. Pursuant to rules of the Federal Trade
Commission, no advertising of credit terms shall be made over the Station beyond
mention of the fact that, if desired, credit terms are available.
XVIII. Commercial Recordkeeping. Broker shall not receive any
consideration in violation of the FCC's sponsorship identification rule and the
anti-payola provisions of the Communications Act. No commercial messages
("plugs") or undue references shall be made in programming presented over each
of the Stations to any business venture, profit-making activity, or other
interest (other than non-commercial announcement for bona fide charities,
church activities or other public service activities) in which Broker (or anyone
else) is directly or indirectly interested without the same having been approved
in advance by Licensee's General Managers and such broadcast being announced and
logged and sponsored.
XIX. No Illegal Announcements. No announcements or promotion prohibited by
federal or state law or regulation of any lottery game shall be made over each
of the Stations. Any game, contest or promotion relating to or to be presented
over the Stations must be fully stated and explained in advance to Licensee
which reserves the right, in its sole discretion, to reject any game, contest or
promotion.
XX. Programming Prohibitions. Broker shall not knowingly broadcast any of
the following Programs or announcements:
A. False Claims. False or unwarranted claims for any product or service.
B. Unfair Imitation. Infringements or another advertiser's rights through
plagiarism or unfair limitation or either program idea or copy, or any other
unfair competition.
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 them or treatment.
E. Price Disclosure. Any price mentions except as permitted by Licensee's
policies current at the time.
F. Descriptions of Bodily Functions. Any programming which describes in a
repellent manner internal bodily functions or symptomatic results or internal
disturbances.
G. Unauthenticated Testimonials. Any testimonials which cannot be
authenticated.
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H. Conflict Advertising. Any advertising matter or announcement which may,
in the opinion of Licensee, be injurious or prejudicial to the interests of the
public, each of the Stations, or honest advertising and reputable business in
general.
Licensee, 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 interpretation arise, Broker
shall submit the same to Licensee for decision before making any commitments in
connection therewith.
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TIME BROKERAGE AGREEMENT
ATTACHMENT IV
County of
State of New Jersey
ANTI-PAYOLA/PLUGOLA AFFIDAVIT
Xxxxx X. Xxxxxxxxxx, Xx., being first duly sworn, deposes and says as
follows:
1. He is the President of the General Partner for Nassau Broadcasting
Partners, L.P. ("Broker").
2. He has acted in the above capacity since ____________.
3. No matter has been provided for broadcast by Stations WTTM (AM) and
WCHR (FM) (hereinafter collectively referred to as the "Stations"), for which
service, money or other valuable consideration has been directly or indirectly
paid, or promised to, or charged, or accepted, by him 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.
4. So far as he is aware, no matter has been provided for broadcast by the
Stations for which service, money or other valuable consideration has been
directly or indirectly paid, or promised to, or charged, or accepted by the
Stations by the Broker, or by any independent contractor engaged by the Broker
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. In the future, 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 or, or the attempt to influence, the
preparation or presentation of broadcast matter on the Stations.
6. Except as may be reflected in Paragraph 7 hereof, neither he, his
spouse nor any member of his immediate family, has any present, direct or
indirect, ownership interest in any entity engaged in the following business or
activities (other than an investment in a corporation whose stock is publicly
held), serves as an officer of director of, whether with or without
compensation, or serves as an employee of, any entity engaged in the following
business or activities:
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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 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; and
f. the sale of advertising time other than on the Stations of any
other station owned by the Broker.
7. A full disclosure of any such interest referred to in Paragraph 6 above
is as follows:
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________
Affiant
Subscribed and sworn to before me
this ____ day of _____________, 1997
____________________________________
Notary Public
My commission expires:______________
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TIME BROKERAGE AGREEMENT
ATTACHMENT V
If the notice is to Licensee, to it at:
Xxx. Xxxx Xxxxx
0000 Xxxxxx Xxxx
Xxxxxxxxx, XX 00000
Persona1 & Confidential
and
Mr. Xxxxxxxx Xxxxx
0000 Xxxxxx Xxxx
Xxxxxxxxx, XX 00000
Personal & Confidential
with a copy to:
Xxxxxxx Xxxxx, Esquire
Xxxxx Xxxxxxxx & XxXxxxxx
Xxx Xxxxxxxx Xxxxxx, Xxxxx 0000
0000 Xxxxxx Xxxxxx
Xxxxxxxxxxxx, XX 00000
If the notice is to Broker:
Nassau Broadcasting Partners, L.P.
000 Xxxxxxxxx Xxxx
Xxxxxxxxx, Xxx Xxxxxx 00000
Attention: Xxxxx X. Xxxxxxxxxx, Xx.
with a copy to:
Xxxxxx & Xxxxxxxx
A Professional Corporation
00 Xxxx Xxxxx Xxxxxx, Xxxxx 0000
X.X. Xxx 0000
Xxxxxxx, Xxx Xxxxxx 00000-0000
Attention: Xxxx X. Xxxxxx
- 21
AMENDMENT TO LOCAL MARKETING AGREEMENT
THIS AMENDMENT ("Amendment") is dated and effective as of the 25th day of
November. 1998, by and between GREAT XXXXX BROADCASTING, LTD., a Pennsylvania
limited partnership ("Licensee"), and NASSAU BROADCASTING PARTNERS, L.P., a
Delaware limited partnership ("Broker").
STATEMENT OF FACTS
1. Broker and Licensee entered into a Local Marketing Agreement dated as
of June 1, 1997 ("Original Local Marketing Agreement") pursuant to which
Licensee agreed to provide time on certain radio stations licensed to Trenton,
New Jersey to Broker, who in turn agreed to pay for such time and use it to
provide an over-the-air program service to Trenton, New Jersey.
2. Licensee and Broker have entered into an Asset Purchase Agreement,
dated August 31, 1996, as amended on January 17, 1997, May 31, 1997, February
17, 1998 and November 25, 1998 (collectively, the "Asset Purchase Agreement"),
pursuant to which Licensee has agreed to sell to Broker all of the Assets.
3. Licensee and Broker have agreed to amend the Original Local Marketing
Agreement to take into account certain changes made to the Asset Purchase
Agreement in connection with the execution of the Fourth Amendment to the Asset
Purchase Agreement, dated and effective as of November 25, 1998.
AGREEMENT
NOW, THEREFORE, in consideration of the sum of Ten Dollars ($10.00), paid
by Broker to Licensee, and for other good and valuable consideration, the mutual
receipt and mutual sufficiency of which are hereby acknowledged, the parties
hereto agree as follows:
1. Section 3 of the Original Local Marketing Agreement shall be deleted in
its entirety and replaced by the following:
"3. Term. This Agreement shall become effective on 12:00 a.m. Midnight
January 1, 1998 (the "Effective Date") and shall terminate upon the
first to occur of:
a. the New Closing date, as defined in the Asset Purchase
Agreement (as amended), if Section 3 of the Fourth Amendment
is inapplicable;
b. the Escrow Release Date, as defined in the Asset Purchase
Agreement if Section 3 of the Fourth Amendment is operative;
c. the time for termination specified in Paragraph 18 of this
Agreement; or
d. the time for termination specified in Paragraph 4 of the
Fourth Amendment to the Asset Purchase Agreement."
2. The Original Local Marketing Agreement, in all other respects, is
hereby ratified, affirmed and republished as if set forth herein at length.
[SIGNATURES ARE AFFIXED TO THE FOLLOWING PAGE]
2
IN WITNESS WHEREOF, this Amendment has been duly executed by the
parties hereto as of the date first above written.
GREAT XXXXX BROADCASTING, LTD.
By: GREAT XXXXX COMMUNICATIONS, INC.,
It's General Partner
By: /s/ Xxxx Xxxxx
-----------------------------------
Xxxx Xxxxx, President
NASSAU BROADCASTING PARTNERS L.P.
By: Nassau Broadcasting Partners, Inc.,
It's General partner
By: /s/ Xxxxx X. Xxxxxxxxxx, Xx.
-----------------------------------
Xxxxx X. Xxxxxxxxxx, Xx., President
