Exhibit 10.90
TIME BROKERAGE AGREEMENT
TIME BROKERAGE AGREEMENT, made as of April 1, 1996 by and between
American Radio Systems Corporation (the "Programmer") and Crescent
Communications L.P. (the "Licensee").
WHEREAS Licensee owns and operates Xxxxxxxxx Xxxxxxx, XXXX(XX),
Xxxxxxxxx, Xxxxxx, and KFBI(FM), Palrump, Nevada, (each a "Station", and
together the "Stations") 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 Stations 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 Stations 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 Stations.
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 and Licensee have entered into an Asset Purchase
Agreement dated as of the date of this Agreement (the "Asset Purchase
Agreement") under which Licensee agreed to sell the Stations to Programmer, as
filed with an application for FCC consent to assign the Stations' licenses from
Licensee to Programmer.
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 the
date of execution of this Agreement by all parties.
1.3 Scope. During the Term (as defined in Section 6.1), Licensee shall
make available to Programmer time on the Stations 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 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 and
Sixty-Five Thousand Dollars ($165,000), payable no later than the fifth (5th)
business day of the month to which such
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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 shall reimburse to Licensee additional amounts as set forth in
Section 1.6 hereof.
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 Stations'
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 be solely responsible for and
pay in a timely manner all non-capital, ordinary and customary operating
expenses of the Stations, including but not limited to maintenance of the studio
and transmitting facility and costs of electricity except that Licensee shall be
entitled to reimbursement from Programmer pursuant to Sections 1.4 and 1.6(b)
and Programmer shall be responsible for the costs of its programming and
personnel as provided in Sections 1.7 and 2.3 hereof. Licensee shall employ at
its expense employees consisting of, at a minimum, those required by FCC rules
and regulations who will report to and be accountable to the Licensee. Licensee
shall be responsible for the salaries, taxes, insurance and related costs for
all personnel it employs at the Stations and shall maintain insurance at its
present levels covering the Stations' transmission facilities. During the term
of this Agreement, Programmer shall perform, without charge, routine monitoring
of Licensee's transmitter performance and tower lighting if and when requested
by Licensee.
1.6 (a) Licensee Representations and Warranties.
Licensee represents and warrants as follows:
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
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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 in a timely and complete
manner. The facilities of the Station are and will continue to comply in all
material respects with the engineering requirements set forth in the FCC
licenses of the Station.
(b) Contractual Fees. Licensee shall make timely payments to
third parties under the contracts listed on Attachment 2 hereto. Licensee shall
be reimbursed by Programmer for such payments within five (5) business days
following presentation to Programmer of reasonable verification of such payment.
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 Stations 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).
1.8 Contracts. Programmer will not be required to assume performance of
any of the Licensee's contracts and leases pertaining to the Stations 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.
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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, up to a maximum net
obligation of ________________ Dollars ($__________), to provide advertising
time under the terms of existing trade and barter agreements as listed on
Attachment III-A and Licensee shall assign all of its rights under those trade
and barter agreements to Programmer.
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
Stations, 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, 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
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(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 $235 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
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.
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1.11 Use of Stations' Studios. Licensee agrees to provide Programmer
with access to the Stations' 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 Las Vegas, Nevada 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 Stations. 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
Stations, Licensee shall also retain 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.
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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 Stations.
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
Stations' 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 has
adopted and will enforce a Broadcast Station Programming Policy Statement (the
"Policy Statement"), a copy of which appears as Attachment IV hereto and which
may be amended from time to time by Licensee upon notice to Programmer.
Programmer agrees and covenants to comply in all
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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 Stations. 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 Stations, 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,
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.
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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
Stations 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.
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
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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.
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
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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.
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 and (iii) the Closing Date (as defined in the Asset Purchase
Agreement). In addition to other remedies available at law or equity and the
provisions
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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 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
Stations 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
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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 Stations, 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 Stations are not operating in all material respects within
the parameters authorized by the FCC or that the Stations' 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, of equal
to the Hourly
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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 Stations 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 Programmers 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 Stations are 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.
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 Stations.
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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 Stations 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 Stations (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.
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
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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 Payment of Legal Fees. Except as otherwise provided, Programmer
shall pay Licensee's reasonable legal fees and related expenses incurred in
connection with Licensee's consideration and negotiation of this Agreement.
7.6 Entire Agreement. This Agreement, the Attachments hereto and the
Asset Purchase Agreement 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.
7.7 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.
7.8 Headings. The headings are for convenience only and will not
control or affect the meaning or construction of the provisions of this
Agreement.
7.9 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.
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7.10 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: Crescent Communications, L.P.
0000 Xxxxxxxxxx, Xxxxx X
Xxxxxxx-Xxxxx, XX 00000
Attn: Xxxxx X. Xxxx
Fax: (000) 000-0000
Copies To: Xxxxxxx, Procter & Xxxx, LLP
Exchange Place
00 Xxxxx Xxxxxx
Xxxxxx, XX 00000
Attn: Xxxxx X. Xxxxx, P.C.
Fax: (000) 000-0000
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
Dow, Xxxxxx and Xxxxxxxxx
0000 Xxx Xxxxxxxxx Xxx., X.X.
Xxxxx 000
Xxxxxxxxxx, XX 00000
Xxxx X. Xxxxx, Xx. Esq.
Fax: (000) 000-0000
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7.11 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.
7.12 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.
7.13 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 Boston, Massachusetts 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 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
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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 7.12.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the day and year first above written.
LICENSEE:
CRESCENT COMMUNICATIONS L.P.
By: CRESCENT COMMUNICATIONS GP, INC.,
Its General Partner
By: _____________________________________
PROGRAMMER:
AMERICAN RADIO SYSTEMS CORPORATION
By: ____________________________________
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