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EXHIBIT 10.81
Local Marketing Agreement dated October 16, 1996
between Xxxxxxx Broadcasting Company and
Commodore Media of Kentucky, Inc.
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LOCAL MARKETING AGREEMENT
This LOCAL MARKETING AGREEMENT (the "Agreement") dated as of October
16, 1996, is made and entered into by and between COMMODORE MEDIA OF KENTUCKY,
INC., a Delaware corporation ("Time Broker"), and XXXXXXX BROADCASTING COMPANY,
a South Carolina corporation ("Licensee"), the owner and operator of radio
station WHRD (AM) Huntington, West Virginia (the "Station").
W I T N E S S E T H:
WHEREAS, Time Broker and Licensee, are parties to an Irrevocable and
Exclusive Option Agreement dated as of the date hereof (the "Option Agreement"),
pursuant to which Licensee has granted to Time Broker an option to purchase
substantially all of the operating assets of the Station; and
WHEREAS, Licensee desires to make available to Time Broker substantial
broadcasting time on the Station until the closing of the transactions
contemplated by the Option Agreement (the "Closing Date"); and
WHEREAS, Time Broker is engaged in the business of radio broadcasting
and desires to avail itself of the Station's available broadcast time through
the date of Closing.
NOW, THEREFORE, for and in consideration of the premises and the mutual
covenants herein contained, the parties hereto have agreed and do agree as
follows:
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Section 1. Effective Date and Facilities. Commencing at 12:01 a.m. on
October 16, 1996 (the "Effective Date"), Licensee shall broadcast or cause to be
broadcast on the Station programs which are presented to it by Time Broker.
These programs shall be in compliance with the provisions of Section 4 of this
Agreement. Time Broker shall maintain the ability to deliver its programming to
Licensee's transmitter site by means acceptable to Licensee. To facilitate
delivery of programming by Time Broker to Licensee hereunder, Licensee hereby
grants to Time Broker the non-exclusive right for the term of this Agreement to
use substantially all of the equipment located in the studio for the Station and
currently used by Licensee for broadcasting programs on the Station (the
"Broadcast Equipment"). In addition, Time Broker shall have, and Licensee hereby
grants to Time Broker, a nonexclusive license to enter on the premises currently
occupied by the Station for purposes of producing its programming hereunder.
Time Broker shall maintain the Broadcast Equipment free and clear of liens,
claims or encumbrances of any third party claiming by, through or under Time
Broker.
Section 2. Payments by Time Broker. Time Broker hereby agrees to pay
Licensee for broadcast of the programs and use of the Broadcast Equipment
hereunder the sum of $250 each month in advance for each month after the
Effective Date through November 30, 1998 and $500 for each month thereafter
("Fee") plus the sum of the actual expenses each month for documented and agreed
upon items of operating expenses to be incurred consistent
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with past practices of the Station under the provisions of that certain Local
Management Agreement dated April 8, 1996, by and between Time Broker and
Licensee ("Monthly Expenses"). The Monthly Expenses shall be payable in arrears
on or before the fifteenth day of each calendar month commencing November 15,
1996 (the "Monthly Payment Date"), for the period commencing on the Effective
Date and on the fifteenth day of each calendar month thereafter during the
remainder of the term of this Agreement; provided, however, that the revenue and
expenses of the Station shall be adjusted for October as if the Effective Date
of this Agreement was October 1, 1996. Amounts payable pursuant to this Section
2 for any partial calendar month other than October, 1996 shall be prorated on a
per diem basis. During this Agreement, Time Broker shall be entitled to all
advertising and other revenues (including all profits and cash flow) of the
Station and all accounts receivable which arise on and after the Effective Date.
If on the Closing Date or the date this Agreement is terminated, the aggregate
amount of payments received by Licensee from Time Broker for Monthly Expenses
under this Section exceeds the actual amount of Licensee's expenses for the
items (which expenses shall be incurred in accordance with the usual and
customary past practices of the Station for the items of Monthly Expenses prior
to the Effective Date) incurred by Time Broker in performing its obligations
hereunder, from the Effective Date to the Closing Date or the date this
Agreement is terminated, then Licensee shall pay to Time Broker the excess
Monthly Expenses on
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the Closing Date or within ten (10) days after this Agreement is terminated.
Similarly, if Licensee has aggregate Monthly Expenses from the Effective Date to
the Closing Date or termination date in excess of its submitted operating
expenses, then the Time Broker shall pay Licensee such excess on the Closing
Date or within ten (10) days after this Agreement is terminated. If a dispute
arises between Licensee and Time Broker regarding the determination of the
Licensee's or Time Broker's excess Monthly Expenses, if any, the disagreement
shall be referred to Price Waterhouse, whose determination shall be final and
binding, and whose fees shall be paid one-half each by Licensee and the Time
Broker. The amount of any excess Monthly Expenses, if any, payable to either
party shall be determined annually as of October 1 of each year for the
preceding twelve (12) months. The failure of either party to claim that it is
entitled to any excess Monthly Expenses by November 1 of each year shall
terminate such party's claim. Notwithstanding any other provision of this
Agreement or the Option Agreement, in the event the parties fail to close on the
sale of the Station to Time Broker, Licensee shall not be obligated to repay
Time Broker any Fee amounts advanced by Time Broker pursuant to this Section 2,
except for appropriate pro rata portions of such Fee if this Agreement is
terminated during a month. The previous sentence shall in no way limit or effect
either Licensee or Time Broker's rights under the Option Agreement in the event
the failure to close is due to a breach or termination of the Option Agreement.
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Section 3. Term. The term of this Agreement shall commence on the
Effective Date and shall end on the earlier of (i) the Closing Date, or (ii) the
date of termination of the Option Agreement, unless sooner cancelled or
terminated as hereinafter provided.
Section 4. Program.
(a) Time Broker shall furnish or cause to be
furnished (i) the artistic personnel and material in broadcasting form for
programs to be broadcast on the Station pursuant to this Agreement at all times
other than times of the Licensee program broadcasts referred to in Section 4(b)
below and (ii) any additional equipment in addition to the Broadcast Equipment
that may be required to enable the Station to broadcast Time Broker's
programming during the term of this Agreement. All such Time Broker programs,
including all advertising messages and promotional material or announcements,
shall be in good taste and in accordance with the Communications Act of 1934, as
amended (the "Act"), all other applicable statutes and Federal Communications
Commission ("FCC") and other governmental entities rules, regulations, policies
and requirements ("Rules and Regulations"), and Licensee's programming
standards. Time Broker also agrees to broadcast a reasonable number of public
service announcements suggested from time to time by Licensee. All programs
shall be prepared and presented in conformity with the standards set forth in
Attachment I. Time Broker further agrees that if, in the reasonable judgment of
Licensee, Time Broker does
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not comply with these standards, Licensee may suspend or cancel any specific
program not in compliance; if possible, Licensee is to provide Time Broker with
seventy-two (72) hours prior notice of such suspension or cancellation. Time
Broker shall not change the programming format or make any other material or
substantial programming changes without the prior written consent of Licensee,
which will not be unreasonably withheld or delayed. Licensee shall make the
Station available to Time Broker for operation for at least one hundred and
sixty-four (164) hours per week, Sunday through Saturday, except for downtime
occasioned by routine maintenance. Any routine maintenance work affecting the
operation of the Station at full power shall be scheduled at a time that is
least disruptive to the Station's operations.
(b) Licensee shall have the right during the Term of this
Agreement to furnish or cause to be furnished programming in broadcast-ready
form for four (4) hours per week of programs to be broadcast on the Station
("Licensee's Reserved Time"). Licensee's public affairs programs shall respond
to the needs and interests of the Station's service area and shall be presented
at times deemed by Licensee to best meet the needs of the applicable service
area. Licensee initially reserves the periods reserved prior to the Effective
Date on the Station for public affairs programming to present its public affairs
programming.
Section 5. Handling of Mail and Public File. To the extent either party
hereto receives or handles mail, cables, telegraphs,
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telecopies, or telephone calls in connection with any programs broadcast on the
Station, each party shall promptly advise the other of any public or FCC
complaint or inquiry concerning such programming and shall give the other party
copies of any letters from the public or the FCC, including complaints,
concerning such programming. The Licensee in consultation with Time Broker will
handle listener complaints and inquiries with respect to the operation of the
Station. Time Broker shall also give Licensee copies of all operating and
programming information, including, without limitation, the Station's operating
logs, necessary to maintain the public file and other records required to be
kept by FCC regulations, rules or policies. During the term of this Agreement,
Time Broker shall also maintain and deliver to the Station and Licensee such
records and information required by the FCC to be placed in the public
inspection file of the Station pertaining (i) 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 (ii) to the broadcast of sponsored
programming addressing political issues or controversial subjects of public
importance, in accordance with the provisions of Section 73.1212(d) of the FCC's
rules. Time Broker shall also consult with the Licensee and comply with the Act
and all other 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 and, as
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appropriate, others to "equal opportunities" and the carriage of contrasting
points of view as mandated by any "fairness" rules with respect to such
"issue-oriented" advertising or programming as may be broadcast) and the charges
permitted therefor. Time Broker shall provide to the Station such documentation
relating to such programming as Licensee shall reasonably request. Licensee
shall be responsible for providing the personnel necessary to maintain a
complete public file (as required by the FCC) and compile and file all required
quarterly issues/programs lists.
Section 6. Maintenance of Equipment.
6.1. The transmitter equipment and antennas currently
used for the Station's broadcasts (the "Transmission Equipment") shall be
maintained by Licensee in a condition consistent with good engineering
practices, in compliance in all material respects with the Act and all other
applicable rules, regulations and technical standards of the FCC and in
accordance with the Asset Purchase Agreement. Licensee does not currently know
of any material defects in the Transmission Equipment used by the Station.
Licensee shall maintain power and modulation of the Station's broadcasts in a
manner consistent with Licensee's past practices. All capital expenditures
reasonably required to maintain the technical quality of the Station's
Transmission Equipment and its compliance with applicable laws and regulations
shall be made at the sole expense and in the discretion of Licensee in a timely
fashion after consulting with Time Broker,
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subject to timely reimbursement by Time Broker as a Monthly Expense pursuant to
Section 2 above.
6.2 All Broadcast Equipment and other equipment necessary for
the transmission of programming to the Station's Transmission Equipment shall be
maintained by Time Broker in good repair and condition, reasonable wear and tear
excepted. All capital expenditures reasonably required to maintain the technical
quality of the Broadcast Equipment and its compliance with applicable laws and
regulations shall be made at the sole expense and in the sole discretion of
Licensee in a timely fashion after consulting with Time Broker, subject to
timely reimbursement by Time Broker as a Monthly Expense pursuant to Section 2
above. Time Broker shall, at all times during the term of this Agreement, at
Time Broker's sole expense, maintain insurance with respect to the Broadcast
Equipment covering such risks as are customarily covered with respect to damage
thereto, and such policies of insurance shall name Licensee and such other
parties as Time Broker may designate as loss payee(s) and additional insured(s),
as their respective interests may appear. Licensee covenants that in the event
it receives insurance proceeds as loss payee it will apply such proceeds to
repair or replace the damaged Broadcast Equipment to the satisfaction of Time
Broker.
Section 7. Collection of Time Broker's Accounts Receivable. For a
period of one hundred and eighty (180) days (the "Collection Period") following
the termination of this Agreement
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without a closing on the Option Agreement, Licensee shall collect as agent for
Time Broker the accounts receivable of the Station. On the termination date,
Time Broker shall provide Licensee with a list of all accounts receivable to be
collected by Licensee. In collecting such accounts receivable, Licensee shall
use reasonable diligence, but shall not be required to institute legal
proceedings to collect any account receivable, or to defend any claim or
counterclaim by any account debtor. Unless directed otherwise by the account
debtor, all amounts received from an account debtor which also becomes an
account debtor of Licensee after the termination date shall be applied first to
the payment of the accounts receivable of Time Broker. Within fifteen (15) days
of the end of each calendar month of the Collection Period, Licensee shall
deliver to Time Broker the net amount, after deducting any sales commissions,
agency fees and similar direct expenses attributable to such accounts
receivable, of all amounts collected and credited to the accounts receivable of
Time Broker during the period calendar month in accordance with this Section 7.
Within ten (10) days of the end of the Collection Period, Licensee shall deliver
to Time Broker all records of uncollected accounts receivable of Time Broker and
any amounts not previously remitted to Time Broker at which time Licensee's
obligation for the collection of Time Broker's accounts receivable shall cease.
During the Collection Period, Time Broker shall not attempt to collect any of
the accounts receivable assigned to Licensee for collection.
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Section 8. Responsibility for Employees and Expenses.
(a) Time Broker shall employ and be responsible for
the salaries, taxes, insurance and related costs for all personnel used in the
production of its programming or necessary to fulfill Time Broker's other
obligations hereunder. Licensee shall employ and be responsible for the
salaries, taxes, insurance and related costs for all personnel used in the
production of its programming or necessary to fulfill Licensee's other
obligations hereunder, subject to timely reimbursement by Time Broker in
accordance with Section 2 above. Time Broker shall pay for all costs associated
with its program production, all fees to ASCAP, BMI and SESAC attributable to
its programs and any other copyright fees attributable to its programming
broadcast on the Station. Without limiting the generality of Time Broker's
obligations under Section 26 hereof, Time Broker shall also pay for all costs
associated with Arbitron or any other rating service to which it or the Station
subscribe.
(b) If Time Broker should employ Licensee's employees under
this Agreement and there is a termination of this Agreement without a closing
under the Option Agreement then Time Broker will terminate such employees hired
if Licensee is desirous of rehiring them and the employees desire to return to
Licensee's employ.
Section 9. Control of Station. During the period of this Agreement,
Licensee shall maintain ultimate control over the facilities of the Station,
including, specifically, control over
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Station finances, personnel and programming, and Time Broker agrees that it will
permit Licensee to take any and all steps necessary to faithfully and
continuously do so throughout the term of this Agreement. Licensee and Time
Broker acknowledge and agree that this responsibility to retain control is an
essential element of the continuing validity and legality of this Agreement.
Licensee shall provide and pay for: (a) its General Manager for the Station, who
shall report solely to, and be accountable solely to, Licensee and who shall
direct the day-to-day operations of the Station; and (b) such other personnel as
are necessary to fulfill its obligations under this Agreement. Licensee shall
retain control, said control to be reasonably exercised, over the policies,
programming and operations of the Station, including, without limitation, the
right to decide whether to accept or reject any programming or advertisements,
the right to preempt any programs in order to broadcast a program deemed by
Licensee to be of greater national, regional or local interest, and the right to
take any other actions necessary to comply with the Rules and Regulations.
Licensee shall be responsible for meeting all of its requirements with respect
to its local service obligations including, but not limited to, compliance with
the Station's identification requirements, maintaining its main studio within
the Station's principal community contour and broadcasting its own issue
responsive programming, and Time Broker shall take such actions as Licensee may
reasonably request to ensure such requirements are met. Time
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Broker shall not represent, warrant or hold itself out as the Station's licensee
and shall sell all its advertising time and enter into all agreements in its own
name. Licensee reserves the right to refuse to broadcast any program or programs
containing matter which is, or in the reasonable opinion of Licensee may be,
violative of any Rules and Regulations, or the policies of the Licensee.
Section 10. Special Events. Licensee has the right, in its sole
discretion and without liability, to preempt any Time Broker programs, and to
use part or all of the time contracted for by Time Broker to broadcast events of
special importance. In all such cases Licensee will use its best efforts to give
Time Broker reasonable notice of its intention to preempt such broadcast or
broadcasts, and, in the event of such preemption, Time Broker shall receive a
payment credit in an amount to be negotiated in good faith by Time Broker and
Licensee for the Time Broker broadcast(s) that were preempted.
Section 11. Force Majeure. Any failure or impairment (i.e., failure to
broadcast at Station's full authorized power) of facilities or any delay or
interruption in broadcast programs, or failure at any time to furnish
facilities, in whole or in part, for broadcasting, because of any acts of God,
strikes or threats thereof or force majeure or due to any other causes beyond
the reasonable control of Licensee shall not constitute a breach of this
Agreement and Licensee will not be liable to Time Broker therefor.
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Section 12. Right to Use Station IDs. Licensee hereby grants to Time
Broker a non-exclusive license to use such slogans, call letters and other
identifiers as are currently used by the Station (the "Station Licensed
Identifiers") in connection with the broadcast of Time Broker's programs on the
Station, but for no other purpose. The license granted herein shall expire on
the expiration or earlier termination or cancellation of this Agreement. Time
Broker shall use the Station Licensed Identifiers in Time Broker's programming
in a manner consistent with the use thereof by Licensee in broadcasts of the
Station immediately prior to the Effective Date of this Agreement during the
entire term of this Agreement and as may be required by the Act or the rules,
regulations and policies of the FCC. During the term of this Agreement, Licensee
shall not assign any of its rights to use the current call sign of the Station
or the other Station Licensed Identifiers to any third party. Time Broker
expressly agrees that, except with respect to Station Licensed Identifiers
referred to herein, the use of which is licensed by Licensee to Time Broker
pursuant hereto, the right to use Licensee's programs and to authorize their use
in any manner and in any media whatsoever shall be and remain vested solely in
Licensee.
Section 13. Payola. Time Broker shall provide Licensee with Payola
Affidavits, substantially in the form attached hereto as Attachment II, signed
by such of Time Broker's employees and at such times as Licensee may reasonably
request, and shall noti-
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fy Licensee promptly of any violations it learns of relating to the Act,
including Sections 317 and 508 thereof.
Section 14. Compliance with Law. Time Broker and Licensee shall,
throughout the term of this Agreement, comply with the Rules and Regulations
applicable to the conduct of its business.
Section 15. Indemnification; Warranty. Each party (as the case may be,
the "Indemnitor") shall indemnify and hold harmless the other party (as the case
may be, the "Indemnitee"), its directors, officers, employees, agents and
affiliates, from and against any and all liability, including without limitation
all consequential damages and attorneys fees, arising out of or incident to the
programming furnished by the Indemnitor, any breach of this Agreement by the
Indemnitor or the conduct of the Indemnitor, its directors, officers, employees,
contractors, agents or affiliates. Without limiting the generality of the
foregoing, Indemnitor shall indemnify and hold and save the Indemnitee, its
directors, officers, employees, agents and affiliates, harmless against
liability for libel, slander, infringement of trademarks, trade names, or
program titles, violation of rights of privacy, and infringement of copyrights
and proprietary rights resulting from the programming furnished by the
Indemnitor. Time Broker will maintain customary amounts of libel and slander
insurance, name Licensee as an additional insured party, and provide evidence of
such insurance to Licensee. Each party's obligation to hold the other harmless
against the liabilities specified above shall survive any
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termination of this Agreement.
Section 16. Events of Default. Each of the following shall constitute
an "Event of Default" under this Agreement:
(a) Non-Payment. Time Broker's failure to pay the consideration
provided for in Section 2 hereof when the same is due and payable hereunder;
provided, Time Broker shall have four (4) business days from the date such
payment is due to make payment if oral telephonic or written notice is received
by Time Broker from Licensee that such payment was not received on the due date;
or
(b) Default in Covenants. Time Broker's or Licensee's default in
the observance or performance of any material covenant, warranty, condition or
agreement contained herein; provided, however, any such default shall not
constitute an Event of Default hereunder if such default is cured within twenty
(20) days after notice thereof by the non-breaching party; or
(c) Breach of Representation. Time Broker's or Licensee's
material breach of any representation or warranty herein, or in any certificate
or document furnished pursuant to the provisions hereof, which shall prove to
have been false or misleading in any material respect as of the time made or
furnished; or
(d) Insolvency. The voluntary filing by Time Broker or Licensee
(or involuntary filing with respect to Time Broker or Licensee not vacated
within sixty (60) days after such filing) of a petition for reorganization or
dissolution under federal
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bankruptcy laws or under substantially equivalent state laws.
(e) Licensee Preemption. If the Licensee shall preempt or
substitute other programming for that supplied by the Time Broker during fifteen
percent (15%) or more of the total hours of Time Broker programming on the
Station for any one calendar week during the term of this Agreement, then Time
Broker within ten (10) days from the end of such week can terminate this
Agreement by notice to Licensee.
Section 17. Remedies Upon Default. In addition to, and not in
limitation of, all other rights and remedies available under this Agreement, in
equity or under applicable law, all of which rights and remedies are expressly
reserved, the parties shall have the following rights and remedies upon the
occurrence of an Event of Default:
(a) Termination Upon Default. If there is an Event of Default by
Time Broker, Licensee may, at its sole option, by written notice to Time Broker,
terminate this Agreement, and upon such termination Licensee shall be under no
further obligation to make available to Time Broker any further broadcast time
or broadcast transmission facilities and all amounts accrued or payable to
Licensee up to the date of termination which have not been paid shall
immediately become due and payable by Time Broker to Licensee. If there is an
Event of Default by Licensee, Time Broker may, at its sole option, by written
notice to Licensee, terminate this Agreement, and upon such termination Time
Broker shall be under no further obligation to provide any further
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programs to be broadcast on the Station and all amounts due to Licensee with
respect to the period subsequent to such termination which have been prepaid by
Time Broker shall immediately become due and payable by Licensee to Time Broker.
(b) Liabilities Upon Termination. Time Broker shall be
responsible for debts and obligations of Time Broker resulting from the use of
air time and transmission facilities including, without limitation, accounts
payable and net barter balances. If this Agreement is canceled or terminated for
any reason, Licensee agrees that it will assume, perform in good faith and be
responsible for all obligations of Time Broker relating to the period after the
date of such cancellation or termination under unfulfilled advertising contracts
cancelable within thirty (30) days of the type entered into in the ordinary
course of the business of the Station and at usual and customary rates and with
respect to which the receivables or prepayments relating thereto have been
assigned or paid to Licensee ("Ordinary Course Contracts"), as well as all
obligations of Time Broker relating to the period after the date of such
cancellation or termination under any unfulfilled advertising contracts other
than Ordinary Course Contracts which Licensee has approved in writing during the
course of this Agreement and with respect to which the receivables or
prepayments relating thereto have been assigned or paid to Licensee. In this
connection, Time Broker warrants to Licensee that it shall, and hereby does,
assign to Licensee all amounts due under unfulfilled advertising contracts
assumed by
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Licensee upon cancellation or termination of this Agreement, and Time Broker
shall pay over to Licensee all amounts received by Time Broker for advertising
run or to be run by Licensee subsequent to such cancellation or termination.
Except for obligations under the unfulfilled advertising contracts specified in
this Section 17(b), Licensee shall not assume or otherwise be responsible for
any other obligations, expenses, contracts or other liabilities entered into or
incurred by Time Broker, regardless of whether such obligations, contracts,
expenses and liabilities relate to the Station or the broadcast of programming
thereon.
Section 18. Representations.
(a) Both Licensee and Time Broker represent that they are legally
qualified, empowered, and able to enter into this Agreement, and that it has
been reviewed and approved by their respective counsel, including counsel
specializing in FCC matters. Time Broker further represents and certifies that
this Agreement complies with Sections 73.3555(a) (1) and (e)(1) of the FCC's
rules. Licensee represents and certifies that it will maintain ultimate control
over the Station's facilities, including control over the finances, personnel
and programming of the Station.
(b) Licensee further represents to Time Broker that, as of the
date hereof, except as disclosed in that certain Asset Purchase Agreement dated
April 8, 1996, by and between Licensee and Time Broker, which was amended on
October 15, 1996, to
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exclude the Station:
(i) The FCC licenses and authorizations relating to the
Station (the "Station Licenses") are free and clear of legal
disqualifications or other restrictions of such a nature as would
materially limit the full operation of the Station as presently
authorized and conducted;
(ii) The Station Licenses are in good standing and have
been regularly renewed with the normal expiration dates;
(iii) To the best of Licensee's knowledge, the operation of
the Station is in compliance in all material respects with the Station
Licenses;
(iv) Licensee has no knowledge of any matter that might
result in the suspension or revocation of the Station Licenses;
(v) There are no FCC citations outstanding with respect to
the Station or its operation; and
(vi) There are no petitions to deny, material complaints or
proceedings known by Seller to be pending before the FCC and relating
to the business and operation of any Station.
Section 19. 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 waiver and consent shall be effective only in the
specific
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instance and for the purpose for which given.
Section 20. Delay in Exercise of Remedies; Remedies Cumulative. Except
in the case of actions that must be taken within a specific time period in
accordance with this Agreement, no failure or delay on the part of Licensee or
Time Broker in exercising any right or power hereunder shall operate as a waiver
thereof, nor shall any single or partial exercise of any such right or power, or
any abandonment or discontinuance of steps to enforce such a right or power,
preclude any other or further exercise thereof or the exercise of any other
right or power. The rights and remedies of Licensee and Time Broker herein
provided are cumulative and are not exclusive of any right or remedies which
they may otherwise have.
Section 21. Construction. This Agreement shall be construed in
accordance with the internal substantive (that is, without reference to conflict
of) laws of the State of West Virginia and the obligations of the parties hereto
are subject to all federal, state or municipal laws or regulations now or
hereafter in force and to the regulations and policies of the FCC and all other
governmental bodies or authorities presently or hereafter duly constituted. The
parties believe that the terms of this Agreement meet all of the requirements of
current FCC policy for brokerage agreements and agree that they shall negotiate
in good faith to meet any FCC concern with respect to this Agreement if they are
incorrectly interpreting current FCC policy or if FCC policy as hereafter
modified so requires. If
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the parties cannot agree to a modification or modifications deemed necessary by
either party to meet FCC requirements, the termination provisions of Section 22
below shall apply. The parties further agree that they will make all required
filings with the FCC with respect to this Agreement.
Section 22. Termination. Either party may terminate this Agreement
effective immediately if it has been ordered by the FCC to terminate this
Agreement or to suspend (either permanently or temporarily) the rights and
obligations of the parties hereunder in order to comply with (or while a
determination is being made with respect to compliance with) the Act or FCC
rules or policies, and such termination shall be the parties' sole remedy for
any such finding by the FCC. Upon termination or cancellation of this Agreement
for any reason Licensee shall, in addition to its other legal and equitable
rights and remedies under this Agreement or under applicable law, be entitled
immediately to cease making available to Time Broker any further broadcast time
or broadcast transmission facilities, and all amounts accrued or payable to
Licensee up to the date of termination, cancellation or expiration which have
not been paid shall be immediately due and payable. Except as provided in
Section 17(b), Licensee shall not be required to assume any obligations,
contracts, expenses or other liabilities of Time Broker in connection with such
termination, cancellation or expiration.
Section 23. Headings. The headings contained in this Agreement are
included for convenience only and no such heading
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shall in any way alter the meaning of any provision.
Section 24. Successors and Assigns. Subject to Section 29, this
Agreement shall be binding upon and inure to the benefit of the parties and
their respective permitted successors and assigns, including, without
limitation, any permitted transferees or assignees of any kind of the FCC
licenses for the Station.
Section 25. Counterpart Signatures. This Agreement may be signed in one
or more counterparts, each of which shall be deemed a duplicate original,
binding on the parties hereto notwithstanding that the parties are not signatory
to the same original or the same counterpart.
Section 26. Notices. Any notice required hereunder (other than pursuant
to Section 16(a) hereof) shall be in writing and any payment, notice or other
communications shall be deemed given (i) upon delivery when delivered personally
or by facsimile with a copy by mail, (ii) three (3) days after mailing if mailed
by certified mail, postage prepaid, with return receipt requested, or, (iii) one
(1) day after delivery to Federal Express or another recognized overnight
carrier for overnight delivery, and addressed as follows:
To Licensee:
W. Xxx Xxxxxxx, President
Xxxxxxx Broadcasting Company
00 Xxx Xxxxxx, Xxxxx X
Xxxxxx Xxxx Xxxxxx, Xxxxx Xxxxxxxx 00000
Telecopier: 000-000-0000
-23-
25
With a copy to:
Xxxx X. Xxxxxxxx, Esq.
Xxxxx, Xxxxxxxx & Tannenwald, P.C.
0000 Xxxxx Xxxxxx Xxxxxx, X.X.
Xxxxx 000
Xxxxxxxxxx, X.X. 00000
To Time Broker:
Xxxxx X. Xxxxxxxx, CFO
Commodore Media of Kentucky, Inc.
000 Xxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxx, Xxx Xxxx 00000
With a copy to:
Xxx X. Xxxxxxxxx, Esq.
Pryor, Cashman, Xxxxxxx & Xxxxx
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Section 27. Entire Agreement. This Agreement (together with the
Attachments hereto) and any other agreements between the parties relating to the
Station embody the entire agreement between the parties and there are no other
agreements, representations, warranties, or understandings, oral or written,
between them with respect to the subject matter hereof. No alteration,
modification or change of this Agreement shall be valid unless it is embodied in
a written instrument signed by the parties.
Section 28. Severability and Assignment. Except as set forth in
Sections 21 and 22 hereof, if any provision or provisions contained in this
Agreement is held to be invalid, illegal or unenforceable, this shall not affect
any other provision hereof, and this Agreement shall be construed as if such
invalid,
-24-
26
illegal or unenforceable provision or provisions had not been contained herein.
Time Broker may assign this Agreement without the prior consent of Licensee,
provided that such assignee is qualified to act as the Time Broker in accordance
with the rules and regulations of the FCC.
Section 29. 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 times 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.
Section 30. Access to Records. Time Broker shall permit Licensee and
its agents and representatives access to all books and records relating to the
Station.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first above written.
COMMODORE MEDIA OF KENTUCKY, INC.
By: /s/ Xxxxx X. Xxxxxxxx
------------------------------
Xxxxx X. Xxxxxxxx
Chief Financial Officer
XXXXXXX BROADCASTING COMPANY
By: /s/ W. Xxx Xxxxxxx
------------------------------
W. Xxx Xxxxxxx
President
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27
LOCAL MARKETING AGREEMENT
Attachment I
Page 1 of 5
PROGRAMMING STANDARDS
Licensee and Time Broker shall cooperate in the broadcasting of
programs of the highest possible standard of excellence. Without limiting the
generality of the foregoing, they will observe the following policies in the
preparation, writing and production of their own (nonsyndicated or network)
programs:
I. Respectful of Faiths. The subject of religion and references
to particular faiths and tenets shall be treated with respect
at all times.
II. Controversial Issues. Any discussion of controversial issues
of public importance shall be reasonably balanced with the
presentation of contrasting viewpoints in the course of
overall programming; no attacks on the honesty, integrity, or
like personal qualities of any person or group of persons
shall be made during the discussion of controversial issues of
public importance; and during the course of political
campaigns, Station programs (other than public forum or talk
features) 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. In the event
that a statute, regulation or policy is adopted that requires
the airing of responsive programming, Time Broker agrees to
comply with such statute, regulation or policy and will
prepare such responsive programming.
III. Donation Solicitation. Requests for donations in the form of a
specific amount shall not be made if there is any suggestions
that such donations will result in miracles, physical cures or
life-long prosperity. However, statements generally requesting
donations to support the broadcast or church are permitted.
IV. Treatment of Parapsychology. The advertising or promotion of
fortune-telling, occultism, astrology, phrenology, palm
reading, numerology, mind-reading, character readings, or
subjects of the like nature will not be broadcast.
28
LOCAL MARKETING AGREEMENT
Attachment I
Page 2 of 5
V. No Ministerial Solicitations. No invitations by a minister or
other individual appearing on the program to have listeners
come and visit him or her for consultation or the like shall
be made if such invitation implies that the listeners will
receive consideration, monetary gain, or total physical cures
for illness.
VI. No Vending of Miracles. Any exhortation to listeners to bring
money to a church affair or service is prohibited if the
exhortation, affair, or service contains any suggestion that
miracles, total physical cures, or life-long prosperity will
result.
VII. Sale of Religious Artifacts. The offering for sale of
religious artifacts or other items for which listeners would
send money is prohibited unless such items are normally
available in ordinary commerce or are clearly being sold for
proper fund-raising purposes.
VIII. No Miracle Solicitation. Any invitation to listeners to meet
at places other than the church and/or to attend other than
regular services of the church is prohibited if the
invitation, meeting, or service contains any claim that
miracles, total physical cures, or life-long prosperity will
result.
IX. No Plugola or Payola. The mention for any business activity or
"plug" for any commercial, professional, or other related
endeavor, except where contained in an actual commercial
message of a sponsor, or if otherwise lawful, is prohibited.
X. No Lotteries. Announcements giving any information about
lotteries or games prohibited by federal or state law or
regulation are prohibited.
XI. No "Dream Books". References to "dream books," the "straight
line, " or other direct or indirect descriptions or
solicitations relative to the "numbers game," or the "policy
game," or any other form of gambling are prohibited.
29
LOCAL MARKETING AGREEMENT
Attachment I
Page 3 of 5
XII. No Numbers Games. References to chapter and verse paragraphs,
paragraph numbers, or song numbers, which involve three digits
should be avoided and, when used, must reasonably relate to a
non-gambling activity.
XIII. Election Procedures. At least sixty (60) days before any
primary or seventy-five (75) days before any regular election
campaign, Time Broker will clear with Licensee's Station
Manager the rate Licensee will charge for the time to be sold
to candidates for public office and/or their supporters to
make certain that the rate charged is in conformance with
applicable law and Station policy.
XIV. Commercial Limitations. With respect to any given segment of
air time hereunder, the amount of commercial matter shall not
normally exceed sixteen (16) minutes during any sixty (60)
minute segment, except during political broadcast periods when
eighteen (18) minutes shall not normally be exceeded. Time
Broker will make available to the Station a list of all
commercial announcements during its programming.
XV. Required Announcements. Time Broker shall broadcast (i) an
announcement in form satisfactory to Licensee at the beginning
of each hour to identify the Station, (ii) an announcement at
the beginning of each broadcast day or Time Broker broadcast
period to indicate that program time has been purchased by
Time Broker, and (iii) any other announcement that may be
required by law, regulation, or Station policy.
XVI. Commercial Record Keeping. No commercial messages or "plugs"
or undue references shall be made in programming presented
over the Station to any business venture, profit-making
activity, or other interest (other than non-commercial
announcements for bona fide charities, church activities, or
other public service activities) in which Time Broker or its
employees is or are directly or indirectly interested without
the same having been approved in advance by Licensee's Station
Manager or such broadcast being announced and logged as
sponsored.
30
LOCAL MARKETING AGREEMENT
Attachment I
Page 4 of 5
XVII. No Illegal Announcements. No announcement or promotion
prohibited by federal or state law or regulation of any
lottery or game shall be made over the Station.
XVIII. License 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 or programming being
presented over the Station which is in conflict with Station
policy or which in Licensee's sole but reasonable judgment
would not serve the public interest.
XIX. Programming Prohibitions. Broker shall not knowingly broadcast
any of the following programs or announcements.
A. False Claims. False or unwarranted claims for any product
or service.
B. Unfair Imitation. Infringements 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 unfair disparagement of
competitors or competitive goods.
D. Profanity. Any programs or announcements that are
slanderous, obscene, indecent, profane, vulgar, repulsive
or offensive, either in theme or treatment.
E. Unauthenticated Testimonials. Any testimonials which
cannot be authenticated.
F. Descriptions of Bodily Functions. Any material which
describes in a repellent manner bodily functions.
31
LOCAL MARKETING AGREEMENT
Attachment I
Page 5 of 5
G. Advertising. Any advertising matter or announcement which
may, in the opinion of Licensee, be injurious or
prejudicial to the interests of the public or the Station,
or to honest advertising and reputable business in
general.
H. Contests. Any contests or promotions which are in any way
misleading or constitute a public nuisance or are likely
to lead to injury to persons or property.
I. Telephone Conversations. Any programming in violation of
any statute, regulation or policy, including without
limitation to, Section 73.1206 of the FCC's Rules, or any
successor regulation, dealing with the taping and/or
broadcast of telephone conversations.
The parties may jointly waive any of the foregoing policies in specific
instances if, in their opinion, good broadcasting in the public interest is
served. In any case where obvious questions of policy or interpretation arise,
Time Broker will attempt in good faith to submit the same to Licensee for
decision before making any commitments in connection therewith.
32
LOCAL MARKETING AGREEMENT
Attachment II
Page 1 of 2
ANTI-PAYOLA/PLUGOLA AFFIDAVIT
City of _____________
County of ___________
State of ____________
________________, being first duly sworn, deposes and
says as follows:
1. He is _______________ of Commodore Media of Kentucky, Inc.
("Broker"), which provides programming to station WHRD (AM),
Huntington, West Virginia (the "Station").
2. He has acted in the above capacity since ____.
3. No matter has been broadcast by the Station for which service,
money or other valuable consideration has been directly or
indirectly paid, or promised to, or charged, or accepted, by him
from any person, which matter at the time of broadcast has not
been announced or otherwise indicated as paid for or furnished by
such person.
4. So far as he is aware, no matter has been broadcast by the
Station for which service, money, or other valuable consideration
has been directly or indirectly paid, or promised to, or charged,
or accepted by the Station in furnishing programs from any
persons, which matter at the time so broadcast has not been
announced or otherwise indicated as paid for or furnished by such
person.
5. In the future, he will not pay or promise to pay to any third
party, request or receive any service, money, or any other
valuable consideration, directly or indirectly, from a third
party, in exchange for the influencing of, or the attempt to
influence, the preparation or presentation of broadcast matter on
the Station.
33
LOCAL MARKETING AGREEMENT
Attachment II
Page 2 of 2
6. Neither the affiant nor any family member has any present direct
or indirect ownership in (other than an investment in a
corporation whose stock is publicly traded and held), serves as
an officer or director of (with or without compensation), or
serves as an employee of, any person, firm or corporation engaged
in:
a. The publishing of music;
b. The production, distribution (including wholesale and
retail sales outlets), manufacture or exploitation of
music, films, tapes, recordings, or electrical
transcriptions of any program material intended for radio
broadcast use;
c. The exploitation, promotion, or management of persons
rendering artistic, production and/or other services in the
entertainment field;
d. The wholesale or retail sale of records intended for public
purchase; or
e. Advertising on the Station.
7. The facts and circumstances relating to any such interest or
interest are as follows:
_______________________________________
_______________________________________
_______________________________________
__________________________
Affiant
Subscribed and sworn to before me this ____ day of ____________, 199_ :
________________________________
Notary Public
My Commission Expires: __________________
