PROGRAM SERVICES AGREEMENT
This Program Services Agreement ("Agreement"), is made and entered into as
of this 11th day of April, 1997 by and between M.B.C., Inc., a Maryland
Corporation ("the Licensee"), and News Communications Inc., a New York
Corporation ("the Programmer"). It is agreed by the parties hereto that the
effective date of this agreement is and shall be April 1st, 1997.
WHEREAS, Licensee owns and operates a standard Broadcast Radio Station
WYRE 810 AM, Annapolis, Maryland (the "Station") pursuant to licenses issued by
the Federal Communications Commission (the "FCC"); and
WHEREAS, Programmer desires to produce radio programs in conformity with
this Agreement and all rules, regulations, and policies of the FCC and provide
those programs ("the Programming") to Licensee for broadcast on the station and
Programmer desires to avail itself of substantially all of the Station's
broadcast time; and
WHEREAS, the Licensee desires to accept the programs produced by
Programmer and to make broadcasting time on the Station available to Programmer
on terms and conditions which conform to FCC rules, regulations, and policies
and to this Agreement; and
WHEREAS, Licensee and Programmer have entered into an agreement the
("Asset Purchase Agreement") of even date for purchase of the assets of the
Station:
NOW THEREFORE, in consideration of the above recitals and mutual promises
and covenants contained herein, the parties, intending to be legally bound,
agree as follows:
1. PROGRAMMING AGREEMENT. Licensee agrees to make broadcasting
transmission facilities available to Programmer and to broadcast on the Station,
or cause to be broadcast, for any portion or all daily broadcast hours per day,
seven days per week, Programmer's programs. Provided, however, that Programmer
shall have no obligation to provide station programming at any time during the
first three months of the term of this Agreement in which case the Licensee
shall broadcast such other programming it deems acceptable. Licensee represents
that it will maintain a studio during the term of this Agreement in accordance
with the Rules of the Federal Communications Commission ("FCC"). During the
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term hereof, the Programmer shall deliver at its own cost the programming to the
Licensee's transmitter site.
2 TERM. This Agreement shall commence on the date hereof and, unless
sooner terminated or canceled in accordance with the terms hereof, shall
continue for an initial term of one year or until closing under the Asset
Purchase Agreement simultaneously entered into by the Licensee and the
Programmer. This Agreement may be terminated by either party within fifteen (15)
days notice in the event the Asset Purchase Agreement is canceled, unless
terminating party is in default of the Asset Purchase Agreement.
3 CONSIDERATION.
(a) Commencing from the date of this Agreement, as
consideration for the air time made available hereunder, Programmer shall make
monthly payments to Licensee by check on or before the Tenth (10th) day of the
calendar month for which payment is due. Such payment shall be Three Thousand
Five Hundred Dollars ($3,500) per month. In the event that payment is not
received by Licensee within twenty (20) days of the due date and Programmer is
not otherwise exercising its right to withhold all or a portion of such payment
as provided in this Agreement, a two (2) percent late fee shall be added to the
amount due. If the payment due and payable with respect to any month (including
the late fee if applicable) is not received by the 10th day of the calendar
month following the month in which such payment was due, then Programmers shall
have ten (10) days to cure after receiving written notice before Licensee may
declare the entire consideration for the unexpired portion of the current term
immediately due and payable in full and/or may terminate this agreement.
(b) Notwithstanding anything written to the contrary and;
Commencing from the date of this Agreement, as additional consideration for the
air time made available and other considerations hereunder, Programmer and
Licensee agree that Licensee, for a period of three (3) months, will produce
programming when programming is not produced and supplied by Programmer, sell
advertising for said programming, whether the programming is supplied by the
Programmer or Licensee, xxxx and collect on said sales of advertising, handle
all the daily operation and maintenance of the station, pay all employees,
maintain all equipment, studio, tower, transmitter, studio equipment, pay all
insurance and insurance deductibles on claims, federal,
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state and local taxes, rents and utilities at the station and transmitter sites
and any other costs of operation. At the end of each month for this three (3)
month period, Licensee shall xxxx Programmer for any deficit difference between
the collected income from sales of advertising together with any other income
and the total costs and expenses as a result of the operation and maintenance of
the station. But in any event said xxxx shall not exceed Twenty Five Hundred
Dollars ($2,500) per month and shall be due and payable within Ten (10) days of
such billing. Within Ten (10) days of receiving a request from Programmer,
Licensee shall supply Programmer with a statement of profit and loss for the
month billed, however, such request shall in no way delay the payment of said
xxxx. If payment is not received within a Ten (10) day period, after billing the
above mentioned deficit, then the Programmer shall have Ten (10) days to cure
after receiving written notice of default before Licensee may declare the entire
consideration for the unexpired portion of the current term, together with an
estimated deficit for the remaining portion of the current term based on the
past performance deficit averaged over the previous twelve months, immediately
due and payable in full and/or may terminate this agreement. If the difference
for any month of the total income, expenses and costs above mentioned is a
profit, then such amount will be credited on the next payments due by Programmer
to Licensee. If settlement occurs under the Asset Purchase Agreement
simultaneously entered into by the parties, an adjustment will be made by the
parties to reflect money due either party at settlement. It is the intention of
the parties that the Licensee shall receive this maximum payment of Twenty Five
Hundred Dollars ($2,500) per month for the first three months of this Agreement
in addition to the Thirty Five Hundred Dollar (3,500) monthly payment as
consideration for the above mentioned services in Section 3(a).
(c) Following the initial three (3) month period, Programmer
shall be responsible to produce Programming, sell advertising for said
programming, xxxx and collect on sales of its advertising, handle all the daily
operation and maintenance of the station, pay all employees, maintain all
equipment, studio, transmitter, studio equipment, pay all insurance and
insurance deductibles on claims, taxes, rent and utilities at the station and
transmitter sites, and any other costs of operation. Programmer, after the
initial three (3) month period, shall incur and receive all profits and losses
from the operation of the station and will have no further obligation to pay
Licensee any consideration for any deficit
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of operations and only be obligated to pay the consideration for air time of
Thirty Five Hundred Dollars ($3,500) per month in accordance with the provisions
of Section 3(a) and subject to the provisions of Section 7.2 of this Agreement.
4 ACCOUNTS RECEIVABLE. Licensee will be responsible for collecting the
accounts receivable for the revenue generated on the Station up to the date of
this Agreement for its account and after the date of this Agreement for the
Programmer. For purposes of this Agreement, any income and expenses incurred
prior to midnight of the date above will be credited to the licensee and any
income and expenses incurred after midnight of the date above will be credited
to the programmer.
5 PROGRAMMING AND OPERATING STANDARDS AND PRACTICES.
5.1 Licensee's Programing. Licensee shall present programming responsive
to the needs of the Station's community of License. The Licensee may set aside
time as it may require (up to eight hours per broadcast week) for the broadcast
of its own regularly scheduled news, public affairs, and other programming
required by the FCC without abatement of any consideration due Licensee.
5.2 Compliance with Standards. All programming delivered by Programmer and
broadcast by Licensee during the term of this Agreement shall be in accordance
with applicable statutes and FCC requirements. Licensee reserves the right to
refuse to broadcast any Programming containing matter which the Licensee
reasonably believes in its sole discretion is not in the public interest or
public image of the Station or may be violative of any right of any third party,
or which may constitute a "personal attack" as that term is and has been defined
by the FCC or which Licensee reasonably determines in it's sole discretion is
indecent or obscene, without any reduction or offset in the payments due
Licensee under this Agreement.
5.3 Political Broadcasts. Programmer shall maintain and deliver to
Licensee all records and information required by the FCC to be placed in the
public inspection file of the Station pertaining to the broadcast of political
programming and advertisements, in accordance with the provisions of Sections
73.1940 and 73.3526 of the FCC's rules and agrees to broadcast programming
addressing political issues or controversial subjects of public importance, in
accordance with the provisions of Section 73.1212 of the FCC's rules. Programmer
shall consult with Licensee and adhere to all
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applicable statutes and the rules, regulations and policies of the FCC, as
announced from time to time, with respect to the carriage of political
advertisements and programming (including, without limitation, the rights of
candidates, "equal time" and the carriage of contrasting points of view as
mandated by any "fairness" rule with respect to such "issue--oriented"
advertising or programming as may be broadcast) and the charges permitted
therefor. Programmer shall provide to Licensee such documentation relating to
such programming as Licensee shall reasonably request.
5.4 Handling of Communications. Licensee and Programmer shall receive and
promptly respond to all mail, cables, telegrams or telephone calls directed to
each other at the Station or elsewhere in connection with the Programming
provided by Programmer or any other matter relevant to Licensee's or
Programmer's responsibilities hereunder, and provide copies of all such
correspondence to each other. Programmer shall notify Licensee of any telephone
calls directed to the Licensee or its employees. Licensee shall, however,
maintain a telephone line exclusively for the use of Station, so that the public
will have available a telephone line on which to call concerning the Station.
Programmer shall promptly advise Licensee of any public or FCC complaint or
inquiry known to Programmer concerning the Programming, and shall provide
Licensee with copies of any letters to Programmer from the public, including
complaints concerning such Programming.
5.5 Preemption. Licensee may, from time to time, preempt portions of the
Programming to broadcast emergency information or programs it deems would better
serve the public interest, and may refuse to broadcast any program or
announcement of Programmer should Licensee deem such program or announcement to
be contrary to the public interest as set forth in Section 5. Programmer shall
be notified, unless such advance notice is impossible or impractical, at least
one week in advance of any preemption of any of the Programming for the purpose
of broadcasting programs Licensee deems necessary to serve the public interest.
In the event of any such preemption, except for Licensee's rights under
Paragraph 5.1, Programmer shall be entitled to deduct from the Monthly Payment
for the month in which such preemption occurs an amount calculated on a prorata
basis of time available to Programmer for that month. Licensee represents that
preemption shall only occur to the extent Licensee deems necessary to carry out
its obligations as an FCC licensee, and expressly agrees that its right of
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preemption shall not be exercised in an arbitrary manner or for the
commercial advantage of Licensee or others.
5.6 Rights in Programs. All right, title and interest in and to the
Programming, and the right to authorize the use of the Programming in any manner
and in any media whatsoever, shall be and remain vested at all times solely in
Programmer.
5.7 "Payola" and "Plugola". Programmer agrees that it will take steps
reasonably designed to assure that neither it nor its employees or agents will
accept any gift, gratuity or other consideration, directly or indirectly, from
any person or company for the playing of records, the presentation of any
programming or the broadcast of any commercial announcement over the Station
without such broadcast being announced as sponsored. Programmer will, on the
anniversary of the Commencement Date and each year thereafter during the term of
the Agreement, execute and deliver to Licensee an affidavit of the type commonly
used in the broadcasting industry evidencing Programmer's compliance herewith.
5.8 Ancillary Broadcast Rights. Licensee shall neither use nor permit any
third party to use the Station's subcarriers during the term of this Agreement
without Programmer's prior written consent. Programmer may transmit material
over subcarriers and retain any revenue therefrom without additional
compensation to Licensee. If Licensee obtains any digital broadcasting rights as
a result of its ownership of the Station, Programmer shall be entitled, at no
additional charge, to take advantage of all revenue potential and technical
improvements associated with such digital broadcasting rights. Programmer will
reimburse Licensee for any reasonable incremental operating cost as a result of
Programmer's use of subcarriers or digital broadcasting rights.
5.9 Access to Programmer Materials. Licensee, solely for the purpose of
ensuring Programmer's compliance with the law, FCC rules, and Stations policies,
shall be entitled to review on a confidential basis any programming material
relating to the Stations broadcasts as it may reasonably request. Programmer
shall, upon Licensee's reasonable request, advise and consult with Licensee
about the programs that Programmer intends to broadcast on the Stations.
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5.10 Advertising and Programming. After the initial three (3) month period
of this Agreement, programmer shall be entitled to all revenue from the sale of
advertising or program time on the Station. Programmer does not assume any
obligation of Licensee after the Commencement Date. Programmer will advise
Licensee in writing of its lowest unit charge for political advertising, and
Licensee shall not do anything that would lower Programmer's lowest unit charge.
Programmer does not, pursuant to this Agreement, assume any obligations of
Licensee under any contract entered into by Licensee. Notwithstanding anything
written to the contrary, Programmer agrees, as long as the studios and offices
are located at 000 Xxxx Xxxxxx, to run six commercials a day spread equally over
"day parts" "for Buddy's", in addition to the common area expenses, in exchange
for the use of the office space.
5.11 Compliance with Laws. At all times during the term of this Agreement,
Programmer and Licensee shall comply in all respects with all applicable
federal, state and local laws, rules and regulations.
6. RESPONSIBILITY FOR EMPLOYEES AND EXPENSES.
6.1 Programmer's Employees. Programmer shall employ and be responsible for
the payment of salaries, taxes, insurance and all other costs related to all
personnel used in the production of the Programming. Programmer will not incur
any liability on account of Licensee's employees in connection with the
transactions contemplated by this Agreement subject however to the provisions of
Section 7.2 and 3(b) of this Agreement.
6.2 Licensee's Employees.
6.2.1 Licensee shall employ and be responsible for the
payment of salaries, taxes, insurance and all other costs related to the
personnel necessary to fulfill its obligations and the broadcast transmission of
Programmer's Programming including, but not necessarily limited to a General
Manager and one other person. Whenever on the Station's premises, all personnel
of either the Licensee or the Programmer shall be subject to the supervision and
the direction of Licensee's General Manger and/or Chief Operator.
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6.8 Employee's Liability. Licensee will not incur any liability on account
of Programmer's employees in connection with the transactions contemplated by
this Agreement including, without limitation, any liability on account of
salaries and compensation, unemployment insurance contributions, termination
payments, accrued sick leave or accrued vacation.
7. EXPENSES
7.1 Programmer's Expenses. Programmer shall pay for all costs associated
with the production and delivery of the Programming, including but not limited
to, all ASCAP, BMI, SESAC and other copyright fees.
7.2 Operating Expenses. Subject to the provisions of this subsection,
Licensee shall be responsible for the payment of all fees and expenses relating
to maintaining the transmitting capability of the Station, including, without
limitation, maintenance of the tower, transmitter and studio equipment, and
relating to fulfilling its obligations as an FCC licensee. Programmer shall
reimburse Licensee for its non-capital ordinary and customary expenses incurred
in the operation and maintenance of the station, including but not limited to
maintenance of the tower, tower rent, transmitter and studio equipment,
insurance, insurance deductibles on claims, federal, state and local taxes, and
rents and utilities at the Station's studio and transmitter sites (the
"Operating Expenses"). It is agreed by the parties that the salaries of the
Licensee's General Manager and Chief Operation Manager shall not be part of this
reimbursement and shall remain the responsibility of the Licensee. Licensee
shall xxxx Programmer for such expenses as they are incurred by delivery of a
statement of reasonable detail with back-up invoices, payment for which shall be
due within ten (10) days of such billing (or, alternatively, Programmer may make
such expense payment directly to the third parties to whom such payments are
due). If payment is not received within the ten (10) day period, after billing
expenses, then Programmer shall have ten (10) days to cure after receiving
written notice of default before Licensee may declare the entire consideration
for the unexpired portion of the current term immediately due and payable in
full and/or may terminate this Agreement. Licensee will consult with Programmer
before undertaking any maintenance work that will require reimbursement by
Programmer in an amount in excess of Two Thousand Dollars ($2,000.00) unless
such advance notice is impossible or impractical.
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8. OPERATION OF STATION. Notwithstanding any provision of this Agreement
to the contrary, Licensee shall retain full authority and power with respect to
the operation of the Station during the term of this Agreement. The parties
agree and acknowledge that Licensee's continued control. of the Station is an
essential element of the continuing validity of and legality of this Agreement.
Licensee shall retain full authority and control over the policies, programming
and operations of the Station, including, without limitation, the decision
whether to preempt Programming in accordance with Section 5 hereof. Licensee
shall have full responsibility to effectuate compliance with the Communications
Act and with FCC rules, regulations and policies.
9. PROGRAMER'S ACCESS TO STATION FACILITIES. Licensee grants Programmer
access to use all of the Station's studio and office space and other facilities
("Station Facilities") and all equipment and furnishings contained therein
("Station Equipment" Exhibit B) in the production and broadcasting of the
Programming and sales and administration relating thereto, in accordance with
the terms set forth in this Section 9. Programmer shall not remove from the
Station Facilities or modify any Station Equipment in the Station Facilities
owned by or leased to Licensee without Licensee's prior written consent, such
consent shall not be unreasonable withheld. Licensee shall not authorize the use
of the Station Facilities to any other party during the term of this Program
Services Agreement; and Programmer' s use of the Station Facilities shall be
exclusive except for licensee's right to use such facilities for production of
programming for which Licensee is responsible as set forth on Exhibit A and
Section 5 of this Agreement and other services mentioned in Section 2 of this
Agreement. Programmer agrees to indemnify and reimburse Licensee for any loss,
damage or theft, reasonable wear and tear excluded, during the term of this
agreement. Programmer agrees to replace any such equipment with equipment of
equal or greater worth and utility.
10. AUTHORIZATION TO USE INTELLECTUAL PROPERTY. Licensee authorizes
Programmer the exclusive right to use (or, to the extent Licensee does not hold
exclusive rights, the non-exclusive right to use) all intellectual property
owned by or licensed to Licensee and used in the operation of the Station
(including, but not limited to, logos, jingles and promotional materials).
Programmer shall own
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all trademarks, service marks, trade names, character, .formats, logos and
positioning statements which it develops for the Programming during the term of
this Agreement, and Licensee may not make use of any such materials without the
consent of Programmer.
11. SPECIAL EVENTS. Licensee reserves the right in its discretion, and
without liability, to preempt any of the broadcasts of the programs referred to
herein, and to use part or all of the time contracted for herein by Programmer
for broadcast of special events of public importance. In all such cases Licensee
will use its best efforts to give programmer reasonable notice of its intention
to preempt such broadcast or broadcasts, and in the even of such preemption,
Programmer shall receive a payment credit for the broadcasts so omitted on a
prorata basis.
12. BROADCAST INTERRUPTION. 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 or 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 Programmer.
If interruptions due to equipment failure or malfunction cause the
station broadcast operation to be interrupted for more than a total of eight
hours per day for seven or more days (whether or not consecutive) during one
month, then the amount payable to Licensee for that month pursuant to Section
3(a) shall be prorated and credited for time missed unless termination or
interruption of broadcast is due to acts of the programmer. Notwithstanding the
foregoing, Licensee has the right to take the transmitter down and interrupt all
broadcasting for up to four hours per week, once weekly, for regular maintenance
without waiver of any of amounts due from Programmer pursuant to Section 3(a)
hereof.
The prorata reduction of the payment hereunder shall approximate as
closely as possible the revenues from the time slots preempted -- e.g., the
parties should estimate the anticipated revenues from the sales of the times
preempted and divide such estimate by the total estimated revenues for the month
and the resulting percentage shall be the percentage reduction for the month.
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13. COMPLIANCE WITH LAW. Programmer agrees that throughout the term of
this Agreement it will comply with all laws and regulations applicable in the
conduct of Licensee' s business.
14. INDEMNIFICATION.
14.1 Indemnification Rights. Each party will indemnify and hold harmless
the other party, and the directors, officers, employees, agents and affiliates
of such other party, from and against any and all liability, including without
limitation reasonable attorneys' fees arising out of or incident to (i) any
breach by such of a representation, warranty or covenant made herein, (ii) the
programming produced or furnished by such party hereunder, or (iii) the conduct
of such party, its employees, contractors or agents in performing its or their
obligations hereunder. Without limiting the generality of the foregoing, each
party will indemnify and hold harmless the other party, and the directors,
officers, employees, agents and affiliates of such other party, from and against
any and all liability for libel, slander, infringement of trademarks, trade
names, or program titles, violation of privacy rights, and infringement of
copyrights and priorietary rights resulting from the programming produced or
furnished by it hereunder. The parties' obligations resulting from the
programming produced or furnished by it hereunder shall survive any termination
or expiration of this Agreement.
14.2 Procedures. The party seeking indemnification under this Section
("Indemnitee") shall give the party from whom it seeks indemnification
("Indemnitor") prompt notice, of the assertion of any such claim. The right to
Indemnification under this Agreement shall not be affected by any failure to
give or any delay in giving such notice unless, and then only to the extent
that, the rights and remedies of the party to whom such notice was to have been
given shall have been prejudiced. The Indemnitor shall assume the defense of any
indemnification claim provided, however, that if the Indemnitor fails, within a
reasonable time after receipt of written notice of such claim, to assume the
defense, compromise, and settlement of such claim, the Indemnitee shall (upon
notifying the Indemnitor of its election to do so) have the right to undertake
the defense, compromise, and settlement of such claim on behalf and for the
account and risk of the Indemnitor (it being understood and agreed that the
Indemnitor shall thereafter
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not be entitled to assume the defense of such claim). The Indemnitor shall not
settle or compromise (i) any claim or consent to the entry of any judgment that
does not include as an unconditional term thereof the grant by claimant or
plaintiff to the Indemnitee of a release from any and all liability in respect
therefor, or (ii) any claim in any manner, or consent to the entry of any
judgment, that could reasonably be expected to have a material adverse effect on
the Indemnitee. If upon presentation of a claim for indemnity hereunder the
Indemnitor does not agree that all, or part, of such claim is subject to the
indemnification obligations imposed upon it pursuant to this Agreement, it shall
promptly so notify the Indemnitee. Thereupon, the parties shall attempt to
resolve their dispute, including where appropriate, reaching an agreement as to
that portion of the claim, if any, which both concede is subject to
indemnification. To the extent that the parties are unable to reach some
compromise, either party may unilaterally submit the matter for determination by
a court of competent jurisdiction.
15. EVENTS OF DEFAULT. The following shall, after the expiration of the
applicable cure periods, constitute Events of Default under the Agreement:
15.1 Non-Payment. Programmer's failure to timely pay the consideration
provided for in Section 3 and 7 hereof;
15.2 Default in Covenants. Programmer shall default in the material
observance or performance of any material covenant, condition or agreement
contained herein;
15.3 Breach of Representation. Any material representation or warranty
herein made by Programmer or Licensee, shall prove to have been false or
misleading in any material respect as of the time made or furnished.
15.4 Cure Periods. An Event of Default, other than for failure to
broadcast shall not be deemed to have occurred until 10 business days after
Licensee has provided Programmer with written notice specifying the event or
events that if not cured would constitute an Event of Default and specifying the
actions necessary to cure within such period. With the exception of
non-payment, this period may be extended for a reasonable period of time if the
Programmer is acting in good faith to cure and such delay is not materially
adverse to Licensee.
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15.5 Termination Upon Default. In the Event of the occurrence of an
uncured Event of Default, Licensee shall be under no further obligation to make
available to Programmer any further broadcast time or broadcast transmission
facilities and Licensee may declare the entire consideration for the unexpired
portion of the current term immediately due and payable in full.
15.6 Liabilities Upon Termination. In the event of termination of this
Program Services Agreement, Programmer shall be responsible for all liabilities,
debts and obligations of Programmer accrued from the purchase of air time and
transmission facilities including, without limitation, accounts payable, barter
agreements and unaired advertisements but not for Licensee's federal and local
tax liabilities associated with Programmer's payment to Licensee as provided for
herein. In the event of the above mentioned termination, if Programmer does not
pay promptly all liabilities, debts, accounts payable and payroll, then Licensee
may in addition to its other remedies attach the accounts receivable to make
such payments.
16. REPRESENTATION. Both Licensee and Programmer represent that they are
legally qualified, empowered, and able to enter into this Agreement.
17. MISCELLANEOUS.
17.1 Modification and Waiver. No modification or waiver of any provision
of this agreement shall in any event be effective unless the same shall be in
writing signed by the party against whom the waiver is sought to be enforced,
and then such a waiver and consent shall be effective only in the specific
instance and for the purpose for which given.
17.2 No waiver; Remedies Cumulative. No failure or delay on the part of
Licensee or Programmer in exercising any right or power hereunder shall operate
as waiver thereof, nor any single or partial exercise of any such right or
power. The rights and remedies of Licensee and Programmer herein provided are
cumulative and are not exclusive of any rights or remedies which they may
otherwise have.
17.3 Construction. This Agreement shall be constructed in accordance with
the laws of the State of Maryland without reference to conflict of laws
principles, and the obligations of the parties hereto are subject to all
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federal, state or municipal laws or regulations now or hereafter in force and to
the regulations of FCC and all other governmental bodies or authorities
presently or hereafter duly constituted. Any litigation seeking to enforce any
provision of, or based on any right arising out of this Agreement shall be
brought in a court of the State of Maryland that has jurisdiction. The parties
agree that this court shall be the exclusive forum for all such actions, and
hereby waive any objection to venue in those courts based on the doctrine of
forum non conveniens or otherwise.
17.4 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.
17.5 Exclusive Purchase. During the term of this Agreement, Programmer
has the right to purchase all of the assets used or useful in the business of
the Station pursuant to the terms and conditions of the Asset Purchase
Agreement, signed by the parties.
17.6 Sale to Programmer. Closing of any Sale to Programmer pursuant to
this Section 17 will be on the terms and conditions contained in the Asset
Purchase Agreement and on such date as required by the Agreement. If the Sale to
Programmer has not closed pursuant to the terms and conditions of the Asset
Purchase Agreement the Licensee shall be free to sell the Station to any third
party and this agreement shall become null and void. However, notwithstanding
anything written to the contrary, a default by the Programmer in the Asset
Purchase Agreement or this Agreement will constitute a default in the other
Agreement.
17.7 Attorney's Fees. If either party initiates any litigation against
the other involving this Agreement, the prevailing party in such action shall be
entitled to receive reimbursement from the other party for all reasonable
attorneys' fees and other costs and expenses incurred by the prevailing party in
respect of the litigation, including any appeal, and such reimbursement may be
included in the judgment or final order issued in that proceeding.
17.8 Time is of the Essence. The parties agree that time is of the
essence with respect to the performance of each and every obligation as set
forth herein.
17.9 Entire Agreement. This Agreement and the Attachments hereto
embody the entire agreement and
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understanding of the parties and supersede any and all prior agreements,
arrangement, and understandings relating to matters provided for herein, except
the above mentioned Asset Purchase Agreement. 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.
17.10 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 of 1934, as amended, and
the Rules and Regulations of the FCC.
17.11 Successors and Assigns; Exclusive Dealings. Programmer may not
assign this Agreement to a third party without prior written consent of
Licensee. Such consent shall not unreasonably be withheld. Such third party must
be legally, technically and financially qualified and agree in writing to adhere
to all terms of this agreement and the Guidelines attached hereto. This
Agreement shall be binding upon and insure to the benefit of the parties and
their respective successors and assigns. For so long as this Agreement remains
in effect and Programmer is not in default, neither Licensee nor. any party
acting as Licensee's agent shall directly or indirectly solicit or initiate any
offer from, or conduct any negotiations with, or provide any information to any
person (other than Programmer) concerning the acquisition of the Station.
17.12 Counterpart Signatures. This Agreement may be signed in one or
more counterparts.
17.13 Notices. All notices, requests, demands, and other communications
pertaining to this Agreement shall be in writing and shall be deemed duly given
when delivered personally (which shall include delivery by Federal Express or
other nationally recognized, reputable overnight courier service that issues a
receipt or other confirmation of delivery) to the party for whom such
communication is intended, or two (2) business days after the date mailed by
certified or registered U.S. mail, return receipt requested, postage prepaid,
addressed as follows:
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If the notice is to Programmer:
Xxxxxx X. Xxxx, Xx.
New Communications Inc.
174-15 Xxxxxx Xxxxxxx Expressway
Xxxxx Xxxxxxx, XX 00000
with a copy to:
Xxxxxx Xxxxxx
00 Xxxxxx Xxxxx
Xxx Xxxxx, Xxxxxxxx 00000
if the notice is to Licensee:
Xxxx Xxxxxxxx
M.B.C., Inc.
000 Xxxx Xxxxxx
Xxxxxxxxx, XX 00000
with copies to:
Xxxxxxx Xxxx
0000 Xxxxxx Xxxx
Xxxxxxxxx, XX 00000
Xxx Xxx
00 Xxxxxxxxxxxx Xxxxx
Xxxxx Xxxx, XX 00000
Xxxxx Xxxxxxx
000 Xxxxx Xxxx Xxxxxx
Xxxxxxxxx, XX 00000
Either party may change its address for notices by notice to such effect
to the other party.
17.14 Severability. If any provision contained in this Agreement is held
to be invalid, illegal or unenforceable in any respect by any court or other
authority, then such provision shall. be deemed limited to the extent that such
court or other authority deems it reasonable and enforceable, and so limited
shall remain in full force and effect. In the event that such court or other
authority shall deem any such provision wholly unenforceable, this shall not
affect any other provision hereof, and this Agreement shall be construed as if
such invalid, illegal or unenforceable provision or provisions had not been
contained herein unless the invalidity or unenforceability of such provision or
provisions causes the
16
terms of this Agreement to conflict with the underlying business agreement of
the parties as reflected in the Agreement as written.
17.15 No Joint Venture. The parties agree that nothing herein shall
constitute a joint venture between them. The parties acknowledge that call
letters, trademarks and other intellectual property shall at all time .remain
the property of the respective parties and that neither party shall obtain any
ownership interest in the other party's intellectual property by virtue of this
Agreement.
17.16 Regulatory Changes. In the event of any order or decree of an
administrative agency or court of competent jurisdiction, including without
limitation any material change or clarification in FCC rules, policies, or
precedent, that would cause any provision of this Agreement to be invalid or
violate any applicable law, and such order or decree has become effective and
has not been stayed, the parties will use their respective best efforts and
negotiate in good faith to modify this Agreement to the minimum extent necessary
so as to comply with such order decree without material economic detriment to
either party, and this Agreement, as so modified, shall continue in full force
and effect.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first above written.
Programmer: News Communications, Inc.
/s/
------------------------------------------
By: /s/ Xxxxxx X. Xxxx, Xx.
------------------------------------------
Xxxxxx X. Xxxx, Xx.
Licensee: M.B.C., Inc.
By: /s/ Xxxx Xxxxxxxx
------------------------------------------
17
EXHIBIT A
GUIDELINES
Programmer 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 regulation in the preparation, writing and broadcasting of
its programs.
1. Respectful of Faiths. The subject of religion and references to
particular faiths, tenents, and customs shall be treated with respect at all
times.
2. Controversial Issues. Any discussion of controversial issues of public
importance shall comply with current FCC rules and policies.
3. No Plugola or Payola. The mention of any business activity of "plug" for
any commercial, professional, or other related endeavor, except where contained
in an actual commercial message of a sponsor, is prohibited.
4. No Lotteries. Announcements giving any information about lotteries or
games prohibited by federal or state law or regulation are prohibited.
5. Election Procedure. At least 90 days before the start of any primary or
regular election campaign, Programmer will clear with Licensee's general manager
the rate Programmer will charge for the time to be sold to candidates for public
office and to make certain that the rate charged conforms to the applicable law
and Station policy. Programmer shall be responsible for ensuring that
advertising time is made available to political candidates and is billed in
accordance with the Communications Act of 1934, as amended, and the rules and
policies of the FCC.
6. Required Announcements. Programmer shall broadcast (i) and announcement
in a form satisfactory to Licensee at the beginning of each hour to identify the
Station, (ii) an announcement at the beginning and end of each program day to
indicate that program time has been purchased by Programmer, and (iii) any other
announcement that may be required by law, regulation, or Station policy.
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EXHIBIT B
GENERAL EQUIPMENT
-----------------
Item Name/Model for AM Station
------------------------------
1 Computer System (Remote Control) 5yrs 1800.00
1 Epson LX-80 Printer (Remote Control) 5yrs 600.00
1 Radio Systems DAIC Dist. Amps. 5yrs 2125.00
Equipment Location: AM Studio
-----------------------------
1 Set of Studio Furniture 18yrs 0
1 Xxxxxx TX-10 Tuner 5yrs 300.00
Radio Systems Monitor Amp. 16yrs 0
1 Radio Systems RS-12 Audio Console 5yrs 6795.00
1 Belar RFA-2 RF Amp. 5yrs 690.00
1 Gates Modulation Monitor 28yrs 0
1 TFT 760 EBS System 18yrs
1 Senheiser MD421 13yrs 450.00
2 Denon DN-950FA CD Cart Decks 5yrs 3000.00
2 ITC SP-Series Cart Deck Players 18yrs
ITC Cart Deck Recorder 18yrs
1 Xxxxxxx XX II-5 Phone Hybrid 5yrs 900.00
1 Ampex ATR 1000 Reel Deck 23yrs 0
2 Tascam 22-2 Reel Deck 5yrs 900.00
2 Tecnics SL-1200MK2 Turntables 13yrs
2 Bose lnteraudio Studio Monitor Spkrs. 8yrs
1 Technics RS-B605 Cassette Deck 5yrs 250.00
1 Technics RS-TR265 Cassette Deck
1 Video Monitor (Remote Control System)
With Keyboard
Equipment Location: New Studio AM
---------------------------------
1 Xxxxxxx/Autogram Audio Console 23yrs
1 ITC RP-Series Rec. Cart Deck 18yrs
2 JBL Control I Plus Monitor Speakers 5yrs 250.00
1 Tascam 22-2 Reel-Reel Deck 5yrs 1000.00
1 Tascam 32 Reel-Reel Deck 13yrs
1 Tecnics RS-TR212 Cassette Deck 5yrs 260.00
1 Symetrix 528 Voice (mic) Processor 4yrs 650.00
1 Radio Systems DA16 Dist. Amp. 5yrs 425.00
1 Digital Editing Compuuter System 4yrs 2000.00
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Equipment Location: Lounge AM
-----------------------------
Qty. Item Name/Model Age New Value
---- --------------- --- ---------
0 Xxxxxx XXX-00 XXX Xxxxxxxxxxx 0xxx 3500.00
1 CRL APP-400 AM Audio Pre-processor 13yrs
75 1ft. 1/2" Heliax for STL antenna 5yrs 375.00
Parabolic STL Dish Antenna 9yrs
Equipment Location: AM Transmitter Site (Silopanna Rd.)
-------------------------------------------------------
1 Nautel Amfet P400 AM Transmitter 5yrs
1 Xxxxx XX-XX(1kw) AM Transmitter 28yrs
1 CRL PRC-450 Audio Processor 9mos. 1800.00
1 CRL SEP400A Audio Processor 18yrs
1 Belar AMM-2B AM Mod. Monitor 5yrs 1390.00
1 Xxxxx ARC16 Remote Control System 5yrs 2995.00
2 Merti R-l0 STL Receiver 9yrs 3500.00
0 Xxxxxxxxx XXX Xxxx Xxxxxxx 0xxx
Engineering
Equipment for repair or parts - AM
1 Tascam 22-2 Reel to Reel Recorder/player
1 ITC SP Series Cart Bulk Eraser
Assorted other equipment - AM
1 - Peavey CD Mix 7032
1 - Crown Power Base Amp.
2 - Impact Mobile Monitor Speakers
20
