LOCAL MARKETING AGREEMENT
dated as of
January 14, 1998
by and among
CUMULUS BROADCASTING, INC.
and
SAVANNAH COMMUNICATIONS, L.P.
TABLE OF CONTENTS
Recitals.......................................................................1
Agreement......................................................................1
1. Term/Termination Options..........................................1
(a) Term........................................................1
(b) Option Upon Termination of Agreement for Sale of Station....2
(c) Effect of Termination on Advertising and other Contracts....2
2. Fees..............................................................2
(a) Monthly Fee.................................................2
3. Programs..........................................................2
(a) Operation of Station........................................2
(b) Programming Standards.......................................3
(c) Ancillary Broadcast Rights..................................3
(d) Programming and Operations Standards........................3
(e) Call Signs..................................................3
4. Facilities and Equipment..........................................4
(a) Facilities..................................................4
(b) Maintenance.................................................4
(c) Transmitter Site............................................4
(d) Interruption of Normal Operations...........................4
5. Costs of Operating Station........................................5
(a) General.....................................................5
(b) Employees...................................................5
(c) Insurance for Transmitter Site..............................6
(d) Insurance for New Studio and Programmer's Studio............6
(e) Music Licenses..............................................7
6. Advertising and Programming Revenues..............................7
7. Accounts Receivable and Accounts Payable..........................7
(a) General.....................................................7
(b) Carryover Accounts..........................................8
8. Operation of Station..............................................8
9. Station Identification............................................8
10. Special Events....................................................9
11. Handling of Mail..................................................9
12. Payola............................................................9
13. Compliance with Law...............................................9
14. Licensee's Representations........................................9
(a) Qualification...............................................9
(b) Authorizations..............................................9
(c) Filings....................................................10
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(d) Compliance With FCC Requirements...........................10
(e) Content of the Programming.................................10
15. Programmer's Representations.....................................10
(a) Qualification..............................................10
(b) Content of the Programming.................................11
16. Events of Default: Cure Periods and Remedies.....................11
(a) Events of Default..........................................11
(i) Non-Payment....................................11
(ii) Breach of Covenants............................11
(iii) Breach of Representation or Warranty...........11
(iv) Bankruptcy, etc................................11
(b) Cure Periods...............................................11
(c) Remedies...................................................12
(d) Specific Performance.......................................12
17. No Brokers.......................................................12
18. General..........................................................12
(a) Notices....................................................12
(b) Modification and Waiver....................................13
(c) Construction...............................................13
(d) Headings...................................................14
(e) No Assignment..............................................14
(f) Counterpart Signature......................................14
(g) Entire Agreement...........................................14
(h) No Partnership or Joint Venture Created....................14
(i) Severability...............................................14
(j) Force Majeure..............................................14
(k) Other Agreements...........................................14
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LOCAL MARKETING AGREEMENT
This Local Marketing Agreement is entered into as of the 14th day of
January, 1998, by and among Cumulus Broadcasting, Inc., a Nevada corporation
("Programmer"), and Savannah Communications, L.P., a Delaware limited
partnership (the "Licensee").
Recitals
Licensee holds the FCC broadcast license and auxiliary licenses for radio
stations WIXV-FM, licensed to Savannah, Georgia; WIXV-FM (licensed to Savannah,
Georgia), WSGF-FM (licensed to Springfield, Georgia) and WBMQ-AM (licensed to
Savannah, Georgia) (individually a "Station" and collectively the "Stations").
Licensee and Programmer have entered into an Asset Purchase Agreement
dated as of January 14, 1998 (the "Sale Agreement"), pursuant to which
Programmer will purchase from Licensee, upon receipt of consent of the FCC,
Licensee's assets used or useful in the operation of the Stations (the "Sale").
The Stations' transmitter facilities are at locations described in Section
2(i) of the Disclosure Schedule of the Sale Agreement (the "Transmitter Sites").
The Stations' studio is at a location described in Section 2(i) of the
Disclosure Schedule of the Sale Agreement (the "Studio").
Licensee has broadcast time on the Stations available for sale. Programmer
desires to purchase time on the Stations for the broadcast of Programmer's
programming and the sale of advertising time for inclusion in said programming.
NOW, THEREFORE, in consideration of the mutual covenants herein contained,
the parties hereby agree as follows:
Agreement
1. Term/Termination Options
(a) Term. The term of this Agreement (the "Term") will begin at 12:01
a.m. on January 15, 1998, and expire at 11:59 p.m. on the earliest
of (i) December 31, 1998, or (ii) the closing of the Sale, unless
earlier terminated in accordance with this Section 1 or Sections
4(d) or 16, below. Each party will fulfill all its obligations
hereunder through the date of termination or expiration. After
termination or expiration, neither party will have any further
obligations hereunder except as provided in this Section 1.
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(b) Option Upon Termination of Agreement for Sale of Stations. If at any
time either (i) Licensee shall terminate the Sale Agreement, or (ii)
Programmer shall terminate the Sale Agreement, in each case in
compliance with the terms of the Sale Agreement, then either party
may terminate this Agreement, upon at least 10 days' advance written
notice to the other party.
(c) Effect of Termination on Advertising and other Contracts. On the
termination date, Programmer will provide to Licensee a written
schedule of all advertising commitments for the Stations then in
effect. Licensee shall reasonably cooperate with Programmer to honor
all such advertising commitments then outstanding, in which event
Licensee shall receive as compensation for the broadcasting of such
programming that which otherwise would have been paid to Programmer;
provided, however, as to fees received by Licensee for advertising
broadcasts by Programmer prior to the Termination Date, Licensee
agrees to pay to Programmer 100 percent (100%) of all advertising
revenue received by Licensee with respect thereto within 120 days
using procedures comparable to those specified in Section 7 below.
Programmer will remain liable for all other contracts entered into
and other liabilities incurred by Programmer in the course of its
performance under this Agreement, if any, and Licensee shall not
assume any liability therefor.
2. Fees.
Monthly Fee. Programmer will pay Licensee for the broadcast of the
programs hereunder a fee each month as described in more detail in Appendix A to
this Agreement (the "Monthly Fee"). The Monthly Fee will be payable on the first
day of each calendar month during the Term, to Licensee at the address set forth
in this Agreement, or to such other address as Licensee may designate in
writing. The failure of Licensee to demand or insist upon prompt payment of the
Monthly Fee will not constitute a waiver of its right to do so.
3. Programs.
(a) Operation of Stations. Throughout the Term, Licensee will make the
Stations and time on the Stations available to Programmer for at
least 166 hours per week, Sunday through Saturday, except for
downtime occasioned by routine maintenance. Programmer will provide
entertainment programming of its selection complete with commercial
matter, news, public service announcements, public interest
programming, and other suitable programming (the "Programming").
Subject to the limitations set forth herein, such time on each
Station will be available for use by Programmer and no other party,
and Programmer will broadcast the Programming on the Stations at all
such times.
(b) Programming Standards. The Programming will be in conformity with
generally recognized industry standards and in accordance with the
Communications Act of
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1934, as amended (the "Act") and the rules, regulations and policies
of the Federal Communications Commission (the "Commission") and with
those specific standards set forth in Appendix B to this Agreement.
Programmer will make the Programming available to Licensee during a
sufficient number of hours to enable each Station to meet the
minimum hours of operation required under the Commission's rules.
All advertising messages and promotional material or announcements
will comply with all applicable federal, state and local laws,
rules, and regulations. Licensee acknowledges that the right hereby
granted to Licensee to broadcast the Programming on each Station is
non-exclusive and that ownership of the Programming and all parts
thereof and the right to authorize their use in any media whatsoever
are and shall remain vested in Programmer.
(c) Ancillary Broadcast Rights. Programmer shall have the right to use,
or permit third parties to use, each Station's subcarriers, and will
be entitled to all revenues derived from any such subcarrier
transmissions during the term of this Agreement.
(d) Programming and Operations Standards. Licensee may preempt any
program that Licensee reasonably believes to be unsuitable or
contrary to the public interest. Licensee will give Programmer
reasonable notice of its intention to preempt any program, and, in
the event of suspension or cancellation, Programmer will receive a
pro rata reduction in the Monthly Fee for the period of time so
preempted, calculated to the nearest minute.
(e) Call Signs. Licensee will retain all rights to the call letters
WIXV, WBMQ, and WSGF, respectively, or any other call letters which
may be assigned by the FCC for use by the respective Stations, and
will ensure that proper station identification announcements are
made with such call letters in accordance with FCC rules and
regulations. Licensee will not, without Programmer's consent, apply
for any change in the call letters assigned to the Stations.
Licensee will promptly, upon Programmer's request and at
Programmer's expense, take all steps necessary to change the
Stations' call letters to conform with the Programming, and such
call letters will be consistent with applicable FCC rules and
regulations. Programmer shall include in the Programming an
announcement in a form satisfactory to Licensee at the beginning of
each hour of such programs to identify WIXV, WBMQ, and WSGF,
respectively, or such other call letters used by Licensee for the
respective Stations, as well as any other announcements required by
the rules and regulations of the FCC. Programmer is specifically
authorized to use the call letters WIXV, WBMQ, and WSGF,
respectively, or other call letters used by Licensee for the
respective Stations, in its Programs and in any promotional
material, in any media, used in connection with the Programming.
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4. Facilities and Equipment.
(a) Facilities. Licensee will permit Programmer to use all equipment and
motor vehicles now located at the Studio or the Transmitter Sites, a
schedule of which is attached as Section 2(h) of the Disclosure
Schedule to the Sale Agreement (the "Licensee Equipment"), but
exclusively for the operation of the Stations. Licensee will at all
times retain title to the Licensee Equipment. Programmer will
originate its programming from the Studio and will transmit
programming to the Studio via a mode of transmission it selects that
will ensure technical and quality standards comparable to each
Station's broadcasts prior to the Term. The Studio will constitute
the "main studio" of the Stations. Licensee will have access to the
Studio at all times.
(b) Maintenance. Any regular maintenance work affecting the operation of
the Stations will be scheduled with the approval of Programmer,
which will not be unreasonably withheld, upon at least forty-eight
(48) hours' prior notice to Programmer. Programmer will perform and
bear the cost of all routine maintenance of equipment at the Studio.
Licensee will bear the cost of extraordinary maintenance to and
replacement of Licensee Equipment located at the Studio, except to
the extent such replacement or maintenance is required as a direct
result of actions by Programmer..
(c) Transmitter Sites. Licensee will maintain the Transmitter Sites and
all equipment located at the Transmitter Sites at its own expense.
Licensee will perform routine maintenance work at the Transmitter
Sites, as needed, on Mondays between midnight and 4:00 a.m., or at
such other time that may be mutually agreed by Programmer and
Licensee. The Transmitter Site will be operated, in all material
respects, in accordance with all applicable laws and regulations
(including the requirements of the Act and the rules, regulations,
policies and procedures of the Commission promulgated thereunder).
The transmitting facilities of each of the Stations are capable of
transmitting at such Station's maximum authorized effective radiated
power, with an antenna center of radiation at its full authorized
height above ground and above average terrain. Licensee will
maintain the operating power of its Stations at their maximum
licensed level and shall operate and maintain in good working
condition each Station's transmission facilities and broadcasting
equipment. Licensee will not apply to the Commission for any
reduction in any Station's maximum authorized facilities without the
prior written approval of Programmer.
(d) Interruption of Normal Operations. If the Stations suffer any loss
or damage of any nature at the Transmitter Sites which is not caused
by the acts or omissions of Programmer and which results in the
interruption of service or the inability of such Station to operate
with its maximum authorized facilities and licensed effective
radiated power, Licensee will immediately notify Programmer and
promptly undertake such repairs, at Licensee's expense, as are
necessary to restore full-time
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operation of such Station with its maximum authorized facilities and
licensed effective radiated power thereon as quickly as is
reasonably possible under the circumstances. Except in the case of
events not under control of Licensee (such as acts of God or weather
conditions) which do not materially impair the earnings potential of
the Stations, if a Station is inoperable or is operated at 90% or
less of its licensed effective radiated power as a consequence of
such loss or damage at any time in the case of WIXV-FM and WSGF-FM
or during the period from 6:00 a.m. to 12:00 a.m. in the case of
WBMQ-AM, then Programmer will be entitled to a Pro rata reduction in
the proportionate Monthly Fee for each day in which there occurs
such a service interruption in excess of four (4) consecutive hours.
Licensee will promptly begin to repair and will complete the repairs
necessary to restore the inoperable Station to full time operations
with its maximum licensed facilities within fifteen (15) days from
the occurrence of the loss or damage; provided, however, that this
period will be extended for a reasonable period of time, not to
exceed an additional fifteen (15) days, if Licensee has taken and is
continuing to take all appropriate actions to repair the loss or
damage as promptly as possible in the circumstances. If such repairs
are not completed within the allotted period, Programmer may give
notice to Licensee of Programmer's intention to terminate this
Agreement, in which event this Agreement will terminate on the date
of such notice, any other provision of this Agreement
notwithstanding.
5. Costs of Operating Stations.
(a) General. Licensee will retain ultimate control over the personnel,
finances, programming and operation of the Stations. Except as
otherwise expressly set forth in this Agreement, all costs of
producing and delivering the Programming to the Transmitter Sites
for broadcast on the Stations will be borne by Programmer including,
without limitation, all personnel, equipment costs, maintenance,
music license fees, taxes of all kinds (including real and personal
property and income), utilities, remaining payments due on motor
vehicles and all expenses related to the construction, maintenance
and operation of the Studio. Programmer will be responsible for all
liabilities, debts and obligations of Programmer based upon the
purchase of air time including, without limitation, barter
agreements and unaired advertisements, but not for Licensee's
federal, state and local income tax liabilities.
(b) Employees. Programmer will employ and be responsible for the
salaries, commissions, taxes, insurance and all other related costs
for all personnel involved in the production and marketing of the
Programming and the origination and/or delivery of the Programming
from the Studio or any remote location to the Transmitter Site
(including air personalities, engineering personnel, salespersons,
traffic personnel, board operators and other programming staff
members). Upon notice to the Licensee, and at mutually agreeable
times, the Licensee will permit Programmer to meet with its
employees prior to or after the Effective Date. Programmer may, at
its option and upon its terms and conditions, extend offers of
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employment to all or any of Licensee's employees as of the Effective
Date. Licensee will not take any action to preclude or discourage
any of the Licensee's employees from accepting any offer of
employment extended by Programmer. Licensee will be responsible for
all payroll, vacation, severance, and other employee-related
liabilities prior to their employment by Programmer. Licensee will
be responsible for the personnel necessary for the fulfillment of
Licensee's regulatory requirements and the technical transmission of
Programmer's programs. Specifically, Licensee will employ a General
Manager who will report to Licensee and direct the performance of
Licensee's obligations hereunder, and will employ at least one full
time employee (or part-time equivalent thereto) per studio location
to assist the General Manager in performing Licensee's obligations
hereunder, including maintaining the Stations' transmission
facilities. Licensee's employees will have no employment,
consulting, or other material relationship to Programmer. Programmer
will provide suitable office space for Licensee's personnel at the
Studio at no charge, and to the extent feasible the space assigned
to Licensee's employees shall be physically separate from the space
assigned to Programmer's employees. Whenever in the Studio or at the
Transmitter Sites, Programmer's personnel will be subject to the
reasonable supervision and the direction of Licensee's General
Manager and/or Engineer. Programmer will be responsible for the
payment of any publicity or promotional expenses incurred by
Programmer and for all telephone calls associated with program
production and listener response. Upon termination of this Agreement
upon an event other than the closing of the Sale, the Stations'
employees may be re-hired by Licensee. Programmer will be
responsible for all payroll, vacation, severance, and other
employee-related liabilities during their employment with
Programmer.
(c) Insurance for Transmitter Sites. Licensee will maintain in full
force and effect throughout the term of this Agreement insurance
with responsible and reputable insurance companies or associations
covering such risks to the Transmitter Site and the Equipment
located thereon (including fire and other risks insured against by
extended coverage, public liability insurance, insurance for claims
against personal injury or death or property damage and such other
insurance as may be required by law) and in such amounts and on such
terms as is conventionally carried by broadcasters operating radio
stations with facilities comparable to those of the Stations. Any
insurance proceeds received by Licensee in respect of damaged
property will be used promptly to repair or replace such property so
that the operation of the Stations conforms with this Agreement.
(d) Insurance for Studio. Programmer will maintain in full force and
effect throughout the term of this Agreement insurance with
responsible and reputable insurance companies or associations
covering such risks to the Studio and all equipment located thereon
(including fire and other risks insured against by extended
coverage, public liability insurance, insurance for claims against
personal injury or death or property damage and such other insurance
as may be required by law) and in such
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amounts and on such terms as is conventionally carried by
broadcasters operating radio stations with facilities comparable to
those of the Stations. Any insurance proceeds received by Programmer
in respect of damaged property will be used promptly to repair or
replace such property so that the operation of the Stations conforms
with this Agreement.
(e) Music Licenses. During the Term, Licensee will obtain and maintain
in full force and effect in its own name all music licenses ("Music
Licenses") that are currently operative with respect to the Stations
and that will be required by the licenser of those Music Licenses
("Licensor"). All Music Licenses fees due from Licensee will be paid
directly by Licensee.
6. Advertising and Programming Revenues. Programmer may sell advertising for
broadcast on the Stations as part of Programmer's programming, and all
proceeds generated as a result of the sale of such advertisements shall be
the property of Programmer and neither Licensee nor any of Licensee's
creditors have or shall have an interest in such proceeds.
7. Accounts Receivable and Accounts Payable.
(a) General. As of the Effective Date of this Agreement, Programmer will
employ commercially reasonable efforts (but without responsibility
to institute legal or collection proceedings) to collect accounts
receivable owed to Licensee as of the Effective Date during the
120-day period following the Effective Date and will remit all
payments received on such amounts monthly during this 120-day period
together with an accounting of all payments received within such
period. As of 120 days following the Effective Date, any uncollected
accounts receivable will be returned to the Seller for further
collection. Insofar as any particular account payable or receivable
shall pertain to the operation of the Stations both during the Term
and prior thereto, the parties will prorate amounts payable or
receivable, as the case may be, as soon as reasonably practical
following the signing of this Agreement, and amounts received shall
be applied first to satisfy Licensee's obligations. In addition, to
the extent that Licensee satisfies with cash payments accounts
payable for operating expenses related to the Stations following the
Effective Date of this Agreement, and provides Programmer with
documentation of such accounts payable and cash payments, Programmer
shall reimburse Licensee for such expenses no later than the 10th
day of the month following that in which the Licensee makes the cash
payments, and such amounts shall be deducted from the accounts
receivable owed to Programmer.
(b) Carryover Accounts. Programmer will assume the obligation to provide
advertising time on the Stations in consideration of Licensee's
trade accounts in existence as of the date of this Agreement on a
time available basis during the first twelve (12) months of the
Term, in an amount not to exceed $10,000 worth of advertising time.
Programmer will perform all of Licensee's obligations under existing
long-term
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contracts for the sale of advertising time on the Stations that are
to be performed on or after the first day of the Term and will be
entitled to all the proceeds of accounts receivable pertaining to
such performance.
8. Operation of Stations. Notwithstanding anything to the contrary in this
Agreement, Licensee will have full authority and power over the operation
of the Stations during the term of this Agreement. Licensee will be
responsible for the payment of the salaries and other compensation
(including payroll taxes, etc.) of the Stations' General Manager and any
other personnel employed by Licensee, all of whom will report and be
accountable to the Licensee. The Stations' General Manager will direct the
day-to-day operation of the Stations through the exercise of its sole
control over the Studio and the Transmitter Sites. Licensee will retain
control over the policies, programming and operations of the Stations, the
right to preempt any programs or advertisements not in the public interest
or in order to broadcast a program deemed by Licensee to be of greater
national, regional or local importance (subject to payment credit in
accordance with Section 3(d) hereof), and the right to take any other
actions necessary for compliance with federal, state and local laws, the
Act and the rules, regulations and policies of the Commission (including
the prohibition on unauthorized transfers of control) and the rules,
regulations and policies of other federal government entities, including
the Federal Trade Commission and the United States Department of Justice.
Licensee will at all times be solely responsible for meeting all of the
Commission's requirements with respect to public service programming, for
maintaining the Stations' logs and political and public inspection files,
and for the preparation of issues/programs lists. Licensee will also
retain the right to break into Programmer's programming in case of an
emergency. Programmer will provide Licensee with information with respect
to such of the Programming as is responsive to public needs and interests
so as to assist Licensee in the preparation of required programming
reports and will provide upon request such other information necessary to
enable Licensee to prepare other records and reports required by the
Commission or other local, state or federal government entities.
Programmer will cooperate with Licensee to ensure the Stations' compliance
with the Commission's rules, regulations and statutes, including the
political broadcast rules requiring equal opportunities, reasonable access
and lowest unit charge.
9. Station Identification. Licensee will be responsible for the proper
broadcast of station identification announcements. Pursuant to Section
3(e), Programmer will coordinate such announcements with Licensee so that
they are aired in accordance with the Commission's rules.
10. Special Events. Licensee reserves the right, in its good faith discretion,
to preempt or interrupt the broadcasts of the programs referred to herein,
or any part thereof, for broadcast of special programs of greater
national, regional, or local importance. In all such cases, Licensee will
use its best efforts to give Programmer reasonable notice of its intention
to preempt or interrupt Programmer's programs, and, in the event of such
preemption or interruption, Programmer will receive a payment credit for
the programs preempted or interrupted pursuant to the provisions of
Section 3(d) hereof.
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11. Handling of Mail. Except as required to comply with Commission rules and
policies, including those regarding the maintenance of the public records
file and the political file (which will at times remain the responsibility
of the Licensee), Licensee will not be required to receive or handle mail
in connection with Programmer's programs broadcast hereunder. Programmer
agrees that the mailing address of the Stations shall not be changed
without the prior written permission of Licensee.
12. Payola. Programmer agrees that it will not accept any consideration,
compensation or 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 Act and FCC requirements. Programmer agrees to annually, or more
frequently at Licensee's reasonable request, execute and provide Licensee
with a Payola Affidavit, substantially in the form attached hereto as
Exhibit A.
13. Compliance with Law. Each party will comply with all laws, rules,
regulations and policies applicable to the conduct of the Stations'
business, and each party acknowledges that the other party has not urged,
counseled or advised the use of any unfair business practice.
14. Licensee's Representations, Warranties and Covenants. Licensee makes the
following further representations, warrants and covenants:
(a) Qualification. Licensee is legally qualified, empowered and able to
enter into this Agreement. This Agreement has been approved by all
necessary action of the Licensee and constitutes the valid and
binding obligation of Licensee, enforceable in accordance with its
terms. The execution, delivery and performance hereof will not
constitute a breach or violation of any agreement, contract or other
obligation to which either party is subject or by which it is bound.
(b) Authorizations. Licensee holds, and throughout the Term will
continue to hold, all licenses and other permits and authorizations
necessary for the operation of the Stations as presently conducted,
including licenses, permits and authorizations issued by the
Commission ("FCC Authorizations").
(c) Filings. All reports and applications required to be filed with the
Commission (including ownership reports and renewal applications) or
any other government entity, department or body in respect of the
Stations have been, and in the future will be, filed in a timely
manner and are and will be true and complete and accurately present
the information contained and required thereby. All such reports and
documents, to the extent required to be kept in the public
inspection files of the Stations, are and will be kept in such
files.
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(d) Compliance With FCC Requirements. The Stations will be operated in
conformity with the FCC Authorizations, the Communications Act and
the rules and regulations of the Commission. The Licensee will take
all steps necessary or appropriate to ensure that the FCC
Authorizations will at all times remain in full force and effect.
(e) Content of the Programming. The content of Licensee's programming
will not violate any rights of others. Licensee will hold
Programmer, the Stations, and Programmer's employees, harmless from
any and all damages, liabilities, costs and expenses, including
reasonable attorneys' fees, arising from any claims of third parties
(excluding third parties claiming through Programmer) that allege
negligence or intentional tortious acts of Licensee, its employees
and/or its representatives, or that relate to the content of
Licensee's programming, including without limitation, claims
alleging libel, slander, unfair competition or trade practices,
infringement of trademarks, tradenames or program titles, violation
of rights of privacy and infringement of copyrights and proprietary
rights. Licensee's obligation to hold Programmer harmless against
the liabilities specified above will survive any termination of this
Agreement until the expiration of all applicable statutes of
limitation.
15. Programmer's Representations, Warranties and Covenants. Programmer makes
the following further representations, warrants and covenants:
(a) Qualification. Programmer is legally qualified, empowered and able
to enter into this Agreement. This Agreement has been approved by
all necessary action of the Board of Directors of Programmer and
constitutes the valid and binding obligation of Programmer,
enforceable in accordance with its terms. The execution, delivery
and performance hereof will not constitute a breach or violation of
any agreement, contract or other obligation to which either party is
subject or by which it is bound.
(b) Content of the Programming. The content of the Programming will not
violate any rights of others. The Programmer will hold Licensee, the
Stations, and Licensee's employees, harmless from any and all
damages, liabilities, costs and expenses, including reasonable
attorneys' fees, arising from any claims of third parties (excluding
third parties claiming through Licensee) that allege negligence or
intentional tortious acts of Programmer, its employees and/or its
representatives, or that relate to the content of the Programming,
including without limitation, claims alleging libel, slander, unfair
competition or trade practices, infringement of trademarks,
tradenames or program titles, violation of rights of privacy and
infringement of copyrights and proprietary rights. Programmer's
obligation to hold Licensee harmless against the liabilities
specified above will survive any termination of this Agreement until
the expiration of all applicable statutes of limitation.
16. Events of Default: Cure Periods and Remedies.
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(a) Events of Default. The following will, after the expiration of the
applicable cure periods, constitute Events of Default:
(i) Non-Payment. Programmer's failure to pay the Monthly Fee (A) by
the 10th day of any month during the Term;
(ii) Breach of Covenants. If either party hereto shall fail in any
material way to observe or perform any covenant, condition or agreement
contained herein;
(iii) Breach of Representation or Warranty. If any material
representation or warranty herein made by either party 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
(iv) Bankruptcy, etc. If either party (i) shall make a general
assignment for the benefit of creditors, (ii) shall file or have filed
against it a petition for bankruptcy, reorganization or an arrangement for
the benefit of creditors, 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.
(b) Cure Periods. Except in the case of a default under the foregoing
subsection (a)(iv), as to which no cure period will be applicable,
an Event of Default will not be deemed to have occurred until twenty
(20) business days after the nondefaulting party has provided the
defaulting party with written notice specifying the event or events
that if not cured would constitute an Event of Default. This period
may be extended by the non-defaulting party for a reasonable period
of time, if the defaulting party is acting in good faith to cure the
default and such delay will not have a materially adverse affect
upon the other party.
(c) Remedies. Upon the occurrence of an Event of Default, the
non-defaulting party may terminate this Agreement, provided that it
is not also in default hereunder, in addition to any other remedies
available to the non-defaulting party at law or equity, or under
paragraph (d), below.
(d) Specific Performance. Without limiting or waiving in any respect any
rights or remedies of any party given under this Agreement, or now
or hereafter existing at law or in equity or by statute, either
party shall be entitled to specific performance of the obligations
to be performed by the other in accordance with the provisions of
this Agreement.
17. No Brokers. The parties represent to each other that no brokers or finders
have been engaged in connection with the transaction described in this
Agreement, and the parties
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agree to indemnify and hold each other harmless against any claim from any
broker or finder based upon any agreement, arrangement, or understanding
alleged to have been made by Licensee or by Programmer, as the case may
be.
18. General.
(a) Notices. All notices, requests, demands, claims, and other
communications hereunder will be in writing and shall be considered
to be given and received in all respects when hand delivered, when
delivered via prepaid express or courier delivery service, when sent
by facsimile transmission actually received by the receiving
equipment or three (3) days after deposited in the United States
mail, certified mail, postage prepaid, return receipt requested, in
each case addressed to the intended recipient as set forth below (or
such other receipient as a Party may indicate in writing):
If to the Licensee:
Xx. Xxxxxxx Xxxxx
c/o Point Communications, Inc.
X.X. Xxx 0000
Xxxxxxx, Xxx Xxxx 00000
Copy to:
Stroock & Stroock & Xxxxx LLP
000 Xxxxxx Xxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxxx Xxxxxxx
Fax: (000) 000-0000
(which copy shall not constitute notice to Licensee)
If to the Programmer:
Cumulus Broadcasting, Inc.
c/o QUAESTUS Management Corp.
000 X. Xxxxxxxx Xxxxxx, Xxxxx 000
Xxxxxxxxx, XX 00000
Attn: Xxxxxxxx X. Xxxxx
Fax: (000) 000-0000
With a copy to:
Cumulus Broadcasting, Inc.
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000 X. Xxxxxxxx Xxxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attn: Xxxxxxx X. Xxxxxx
Fax: (000) 000-0000
Any Party may give any notice, request, demand, claim or other
communication hereunder using any other means (including telex,
ordinary mail, or electronic mail), but no such notice, request,
demand, claim or other communication shall be deemed to have been
duly given unless and until it actually is received by the party for
whom it is intended. Any party may change the address to which
notices, requests, demands, claims, and other communications
hereunder are to be delivered by giving the other party notice in
the manner herein set forth.
(b) Modification and Waiver. No modification of any provision of this
Agreement will in any event be effective unless the same will be in
writing and signed by a duly authorized officer of the party to be
charged therewith, and then such modification will be effective only
in the specific instance and for the purpose for which given.
(c) Construction. This Agreement will be construed in accordance with
the laws of the State of Georgia excluding the choice of law rules
utilized in that jurisdiction, and the obligations of the parties
hereto are subject to all federal, state and local laws and
regulations now or hereafter in force and to the rules, regulations
and policies of the Commission and all other government entities or
authorities presently or hereafter to be constituted.
(d) Headings. The headings contained in this Agreement are included for
convenience only and no such heading will in any way alter the
meaning of any provision.
(e) No Assignment. No right or obligation under this Agreement may be
assigned by either party without the other party's consent, which
may be withheld for any reason.
(f) Counterpart Signature. This Agreement may be signed in one or more
counterparts, each of which will be deemed a duplicate original,
binding on the parties hereto notwithstanding that the parties are
not signatory to the original or the same counterpart. This
Agreement will be effective as of the date first above written.
(g) Entire Agreement. This Agreement embodies the entire agreement
between the parties and there are no other agreements,
representations, warranties or understandings, oral or written,
between them with respect to the subject matter hereof.
(h) No Partnership or Joint Venture Created. Nothing in this Agreement
will be construed to make Licensee and Programmer partners or joint
venturers or to afford
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any rights to any third party other than as expressly provided
herein. Neither Licensee nor Programmer will have any authority to
act as an agent for, or to enter into any contracts on behalf of or
that will be binding upon the other party.
(i) Severability. In the event any provision contained in this Agreement
is held to be invalid, illegal or unenforceable, such holding will
not affect any other provision hereof and this Agreement will be
construed as if such invalid, illegal or unenforceable provision had
not been contained herein.
(j) Force Majeure. Any failure or impairment of Licensee's facilities or
any delay or interruption in the broadcast of programs, or
Licensee's failure at any time to furnish facilities, in whole or in
part, for broadcast, due to causes beyond the control of Licensee,
will not constitute a breach of this Agreement and Licensee will not
be liable to Programmer, except to the extent provided in Sections
4(d) and 5(c) above.
(k) Other Agreements. During the term of this Agreement, Licensee will
not enter into any other time brokerage, program provision, local
management or similar agreement, regarding the Stations, with any
third party.
IN WITNESS WHEREOF, the parties have executed this Agreement to be
effective as of the date first above written.
CUMULUS BROADCASTING, INC.
By:___________________________________
Its:___________________________________
"Programmer"
SAVANNAH COMMUNICATIONS, L.P.
By:___________________________________
Its:___________________________________
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"Licensee"
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APPENDIX A
LMA PAYMENTS
In consideration of the airtime made available to Programmer pursuant to
this Agreement, during the Term, Programmer shall pay as the LMA fee an amount
representing the reimbursement of Licensee for the Station Expenses (defined
below). The "Station Expenses" as used herein means the reasonable and prudent
expense actually incurred by Licensee in operating the Station in compliance
with the terms of this agreement and consistent with past practice (except for
changes resulting from the transactions contemplated by this Agreement of the
Sale Agreement), including without limitation, those expenses set forth below,
and shall be paid by Programmer to Licensee in arrears.
Monthly Expenses: Amount:
----------------- -------
Employees $4,148
Engineering 2,000
Eng. Maintenance and Repair 1,075
Utilities 4,250
Music Lic. Fees 4,571
Rent 200
Ad Valorem Taxes 100
Employee Med Insurance 1,076
Real Estate Taxes 2,020
Tower Rent 4,112
Telephone 3,095
Insurance 2,950
------
Total 29,597
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XXXXXXXX X
Programmer agrees to cooperate with Licensee in the broadcasting of
programs of the highest possible standard of excellence and for this purpose to
observe the following regulations in the preparation, writing and broadcasting
of its programs:
I. Religious Programming. The subject of religion and references to
particular faiths, tenets, and customs shall be treated with respect at all
times. Programs shall not be used as a medium for attack on any faith,
denomination, or sect or upon any individual or organization.
II. Controversial Issues. Any discussion of controversial issues or 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 that responsive programming be aired.
III. 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.
IV. No Lotteries. Announcements giving any information about lotteries or
games prohibited by federal or state law or regulation are prohibited.
V. Election Procedures. At least ninety (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/or their supporters to make certain that the
rate charged conforms to all applicable laws and station policy and the
candidate disclosure schedule to be used during the election period.
VI. Required Announcements. Programmer shall broadcast (a) an announcement
in a form satisfactory to Licensee at the beginning of each hour to identify
Station WIXV, WSGF, and WBMQ, respectively, (b) an announcement at the beginning
and end of each program, and hourly, as appropriate, to indicate that program
time has been purchased by Programmer, and (c) any other announcement that may
be required by law, regulation, or station policy.
VII. Credit Terms Advertising. Pursuant to rules of the Federal Trade
Commission, any advertising of credit terms shall be made over the Station in
accordance with all applicable federal an state laws, including regulations Z
and M.
VIII. Commercial Recordkeeping. Programmer shall not receive any
consideration in money, goods, service, or otherwise, directly or indirectly
(including to relatives) from any person or company for the presentation of any
programming over a Station without reporting the same in
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advance to and receiving the prior written consent of Licensee's General
Manager. No commercial messages ("plugs") or undo references shall be made in
programming presented over a Station to any business venture, profitmaking
activity, or other interest (other than noncommercial announcements for bona
fide charities, church activities, or other public service activities) in which
Programmer (or anyone else) is directly or indirectly interested without the
same having been approved in advance by Licensee's General Manager and such
broadcast being announced and logged and sponsored.
IX. No Illegal Announcements. No announcements or promotion prohibited by
federal or state law or regulation of any lottery or game shall be made over 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 direction to reject any game, contest or
promotion.
X. Licensee Discretion Paramount. In accordance with the Licensee's
responsibility under the Communications Act of 1934, as amended, and the rules
and regulations of the Federal Communications Commission, Licensee reserves the
right to reject or terminate any advertising proposed to be presented or being
presented over the Stations which is in conflict with Station policy or which in
the reasonable judgment of Licensee or its General Manager/Chief Engineer would
not serve the public interest.
XI. Programming in Which Programmer Has a Financial Interest. Programmer
shall advise the General Manager of the Stations with respect to any programming
(including commercial(s) concerning goods or services in which Programmer has a
material financial interest. Any announcements for such goods and services shall
clearly identify Programmer's financial interest.
XII. Programming Prohibitions. Programmer shall not broadcast any of the
following programs or announcements:
A. False Claims. False or unwarranted claims for any product or
service.
B. Unfair Imitation. Infringements of another advertiser's rights
through plagiarism or unfair imitation of 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 theme or in
treatment.
E. Price Disclosure. Any price mentions except as permitted by
Programmer's policies current at the time.
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F. Unauthenticated Testimonials. Any testimonials which cannot be
authenticated.
G. Descriptions of Bodily Functions. Any continuity which describes
in a repellent manner internal bodily functions or symptomatic results or
internal disturbance, and no reference to matters which are not considered
acceptable topics in social groups.
H. Conflict Advertising. Any advertising matter or announcement
which may, in the reasonable opinion of Licensee, be injurious or
prejudicial to the interests of the public, the Stations, or honest
advertising and reputable business in general.
I. Fraudulent or Misleading Advertisement. Any advertisement matter,
announcement, or claim which Programmer knows to be fraudulent,
misleading, or untrue.
Programmer 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, Programmer
shall submit the same to Licensee for decision before making any commitments in
connection therewith.
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