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EXHIBIT 10.15
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TIME BROKERAGE AGREEMENT
BY AND AMONG
CBS RADIO, INC.,
CBS RADIO LICENSE, INC.,
ARS ACQUISITION II, INC.,
AND
ENTERCOM COMMUNICATIONS CORP.
DATED AS OF AUGUST 13, 1998
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TABLE OF SCHEDULES AND EXHIBITS
Schedule 1.1 Programming
Schedule 1.2 Compensation
Schedule 2.1 Programming Policy Statement
Schedule 4.1 Time Sales Agreements and Contracts
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TABLE OF CONTENTS
PAGE
ARTICLE I. - SALE OF TIME......................................................1
Section 1.1. Broadcast of Programming..................................1
Section 1.2. Payment...................................................1
Section 1.3. Term......................................................1
ARTICLE II. - PROGRAMMING AND OPERATING STANDARDS AND PRACTICES................2
Section 2.1. Compliance with Standards.................................2
Section 2.2. Political Broadcasts......................................2
Section 2.3. Handling of Communications................................2
Section 2.4. Preemption................................................3
Section 2.5. Broadcasting Obligations of Licensee......................3
Section 2.6. "Payola" and "Plugola"....................................4
Section 2.7. Advertising and Programming...............................4
Section 2.8. Compliance with Laws......................................5
Section 2.9. Certifications............................................5
ARTICLE III. - RESPONSIBILITY FOR EMPLOYEES AND EXPENSES.......................5
Section 3.1. Time Broker's Employees...................................5
Section 3.2. Licensee's Employees......................................5
Section 3.3. Time Broker's Expenses....................................6
Section 3.4. Operating Expenses........................................6
Section 3.5. Time Broker's Insurance...................................6
ARTICLE IV. - ASSIGNMENT OF CERTAIN AGREEMENTS AND RIGHTS......................7
Section 4.1. Assignment................................................7
Section 4.2. Proration.................................................7
Section 4.3. Accounts Receivable.......................................8
ARTICLE V. - OPERATION OF STATION..............................................9
ARTICLE VI. - GRANT OF LICENSES................................................9
Section 6.1. License to Use Stations Facilities........................9
Section 6.2. License of Intellectual Property.........................10
(i)
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ARTICLE VII. - INDEMNIFICATION................................................10
Section 7.1. Indemnification Rights...................................10
Section 7.2. Procedures...............................................10
ARTICLE VIII. - DEFAULT.......................................................11
Section 8.1. Time Broker Events of Default............................11
Section 8.2. Licensee's Events of Default.............................12
Section 8.3. Cure Periods.............................................12
Section 8.4. Other Defaults...........................................13
ARTICLE IX. - TERMINATION.....................................................13
Section 9.1. Termination Upon Default.................................13
Section 9.2. Termination Upon Change in FCC Rules.....................13
Section 9.3. Certain Matters Upon Termination.........................13
ARTICLE X. - REMEDIES.........................................................15
ARTICLE XI. - CERTAIN REPRESENTATIONS AND WARRANTIES
OF THE PARTIES..................................................15
Section 11.1. Representations and Warranties of Time Broker............15
Section 11.2. Representations, Warranties and Covenants of Operator
and CRLI.................................................16
ARTICLE XII. - MISCELLANEOUS..................................................17
Section 12.1. Modification and Waiver..................................17
Section 12.2. No Waiver; Remedies Cumulative...........................18
Section 12.3. Construction.............................................18
Section 12.4. Headings.................................................18
Section 12.5. Successors and Assigns...................................18
Section 12.6. Force Majeure............................................18
Section 12.7. Broker...................................................19
Section 12.8. Counterpart Signatures...................................19
Section 12.9. Notices..................................................19
Section 12.10. Entire Agreement.........................................20
Section 12.11. Severability.............................................21
Section 12.12. No Joint Venture.........................................21
Section 12.13. Damage to Stations.......................................21
(ii)
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Section 12.14. Noninterference..........................................21
Section 12.15. Regulatory Changes.......................................21
Section 12.16. Attorneys' Fees..........................................22
(iii)
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TIME BROKERAGE AGREEMENT
This Time Brokerage Agreement (this "Agreement") is made as of
the 13th day of August 1998, by and among CBS Radio, Inc., a Delaware
corporation ("Operator"), CBS Radio License, Inc., a Delaware Corporation
("CRLI"), ARS Acquisition II, Inc., a Delaware Corporation ("ARSA") (CRI, CRLI
and ARSA are collectively referred to herein as "Licensee") and Entercom
Communications Corp., a Pennsylvania corporation ("Entercom" or "Time Broker").
CRLI is the licensee of broadcast stations WAAF(FM) and WWTM(AM), Worcester,
Massachusetts, and WEGQ(FM), Lawrence, Massachusetts (collectively, the
"Stations"). Concurrently with the execution of this Agreement, Time Broker,
Operator and CRLI are entering into an Asset Purchase Agreement (the "Purchase
Agreement") providing for the purchase by Time Broker of the Stations, upon the
terms and conditions set forth therein. Time Broker and Licensee desire to enter
into an agreement providing for the sale of substantially all of the broadcast
time of the Stations to Time Broker, subject to and in compliance with the rules
and policies of the Federal Communications Commission (the "FCC").
Accordingly, in consideration of the foregoing and of the
mutual promises, covenants, and conditions set forth below, the parties agree as
follows:
ARTICLE I.
SALE OF TIME
Section 1.1. Broadcast of Programming
Effective seven (7) business days after the expiration or
early termination of any waiting period applicable to the transfer of the
Stations to Time Broker under the ▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ Antitrust Improvements Act
of 1976, as amended (the "HSR Act") (the "Commencement Date"), Licensee shall
broadcast on the Stations, or cause to be broadcast on the Stations, programs
which are presented to it by Time Broker as described in greater detail on
Schedule 1.1 (the "Programming").
Section 1.2. Payment.
Time Broker shall pay Licensee for broadcast of the
Programming the amounts set forth in Schedule 1.2 (the "Monthly Payment"),
subject to adjustment as set forth in Section 2.4 below. All payments shall be
made by wire transfer of immediately-available funds by the last business day of
each calendar month, in arrears, to which such payment pertains. Any amount not
paid when due shall bear interest at the rate of ten percent (10%) per annum.
Section 1.3. Term.
This Agreement shall commence on the Commencement Date and
shall terminate on the earlier of (i) 12:01 a.m. on the Closing Date under the
Purchase Agreement, (ii) the date
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the Purchase Agreement is terminated, or (iii) the date this Agreement is
terminated pursuant to Section 9.1 hereof.
ARTICLE II.
PROGRAMMING AND OPERATING STANDARDS AND PRACTICES
Section 2.1. Compliance with Standards.
All Programming delivered by Time Broker and all programming
supplied by Licensee during the term of this Agreement shall be in accordance
with applicable statutes, FCC requirements and the programming policies set
forth on Schedule 2.1. Licensee reserves the right to refuse to broadcast any
Programming containing matter which the Licensee believes is unsuitable or not
consistent with the needs and interests of its service area or may be violative
of any right of any third party, or which may constitute a "personal attack" as
that term is and has been defined by the FCC or which Licensee reasonably
determines is, or in the reasonable opinion of Licensee may be deemed to be,
indecent (and not broadcast during the safe harbor for indecent programming
established by the FCC) or obscene by the FCC or any court or other regulatory
body with authority over Licensee or the Stations. If Time Broker does not
adhere to the foregoing requirements, Licensee may suspend or cancel any
specific program not so in compliance, without any reduction or offset in the
payments due Licensee under this Agreement.
Section 2.2. Political Broadcasts.
Time Broker shall maintain and deliver to Licensee all records
and information required by the FCC to be placed in the public inspection files
of the Stations pertaining to the broadcast of political programming and
advertisements, in accordance with the provisions of Sections 73.1940 and
73.3526 of the FCC's rules, and agrees to broadcast sponsored programming
addressing political issues or controversial subjects of public importance, in
accordance with the provisions of Section 73.1212 of the FCC's rules. Time
Broker shall consult and cooperate with Licensee and adhere to all 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
appropriate, others to "equal opportunities" and the carriage of contrasting
points of view as mandated by any "fairness" rule with respect to such
"issue-oriented" advertising or programming as may be broadcast) and the charges
permitted therefor. Time Broker shall promptly provide to Licensee such
documentation relating to such programming as Licensee is required to maintain
in its public inspection files or as Licensee shall reasonably request. Licensee
shall be responsible for the maintenance of the public inspection files of the
Stations.
Section 2.3. Handling of Communications.
Time Broker shall cooperate with Licensee in promptly
responding to all mail, cables, telegrams or telephone calls directed to the
Stations in connection with the Programming
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provided by Time Broker or any other matter relevant to its responsibilities
hereunder. Promptly upon receipt, Time Broker shall provide copies of all such
correspondence to Licensee. Time Broker shall promptly advise Licensee of any
public or FCC complaint or inquiry known to Time Broker concerning such
Programming, and shall provide Licensee with copies of any letters to Time
Broker from the public, including complaints concerning such Programming. Upon
Licensee's request, Time Broker shall broadcast material responsive to such
complaints and inquiries. Notwithstanding the foregoing, Licensee shall handle
all matters or inquiries relating to FCC complaints and any other matters
required to be handled by Licensee under the rules and regulations of the FCC.
Section 2.4. Preemption.
Licensee may, from time to time, preempt portions of the
Programming to broadcast emergency information or programs it deems would better
serve the public interest. Time Broker shall be notified at least one week in
advance of any preemption of any of the Programming for the purpose of
broadcasting programs Licensee deems necessary to serve the public interest
unless such advance notice is impossible or impractical, in which case Licensee
shall notify Time Broker promptly upon making such determination. In the event
of any such preemption, Time Broker shall be entitled to full reimbursement of
damages suffered as a result of such preemption, except in the case of
preemption to cover breaking news or to broadcast emergency information.
Licensee represents and covenants that preemption pursuant to this Section 2.4
shall only occur to the extent Licensee deems necessary to carry out its
obligations as an FCC licensee, and expressly agrees that its right of
preemption shall not be exercised in an arbitrary manner or for the commercial
advantage of Licensee or others.
Section 2.5. Broadcasting Obligations of Licensee.
During the term of this Agreement, except as set forth in
Sections 2.1 and 2.4, Licensee will broadcast the Programming in its entirety
(including commercials), without interruption, deletion or addition of any kind,
except as set forth below:
Licensee may temporarily refrain from broadcasting the
Programming between the hours of 12:30 a.m. and 5:30 a.m. (or at such other time
in the event that weather conditions or contractual arrangements relating to
transmitter sites dealing with the exposure of humans to RF radiation so
require) in order to perform normal, customary and routine maintenance on the
Stations' transmitting facilities; provided that Licensee shall provide written
notice to Time Broker of its intent to refrain from broadcasting the Programming
at least forty-eight (48) hours in advance, except when an emergency requires
such suspension, and provided further that Licensee shall use its best efforts
to minimize the frequency and duration of such interruptions:
(a) Licensee may temporarily cease broadcasting the
Programming as a result of a natural disaster, act of public enemy, act
of God or other event beyond Licensee's control; provided that in any
such case, Licensee
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will act expediently and use its best efforts to resume the broadcast
of the Programming as quickly as the applicable circumstances will
allow; and
(b) Licensee may temporarily refrain from
broadcasting the Programming on the Stations as a result of a technical
problem with the Stations' transmitting equipment which is beyond
Licensee's control and which is not directly or indirectly the result
of any act or omission of Licensee or any of its employees or agents;
provided that in such case, Licensee will act expediently and use its
best efforts to resume the broadcast of the Programming as quickly as
the applicable circumstances will allow.
Section 2.6. "Payola" and "Plugola".
Time Broker agrees that it will not accept any gift, gratuity
or other consideration, including, but not limited to, a commission, discount,
bonus, material supplies or other merchandise, services or labor (collectively,
the "Consideration"), directly or indirectly, from any person or company for the
playing of records, the presentation of any programming or the broadcast of any
commercial announcement over the Stations unless the payor is identified in the
program for which Consideration was provided as having paid for or furnished
such Consideration, in accordance with the Communications Act of 1934, as
amended (the "Communications Act") and the FCC requirements. It is further
understood and agreed that no commercial message, plugs, or undue reference
shall be made in programming presented over the Stations 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) unless the payor is identified in the program for which
Consideration was provided as having paid for or furnished such Consideration,
in accordance with the Communications Act and the FCC requirements. In addition,
Time Broker agrees that it will take steps, including the continuation of
Licensee's system for periodic execution of affidavits, reasonably designed to
assure that it, its employees and agents comply with this Section 2.7.
Section 2.7. Advertising and Programming.
Beginning with the Commencement Date, Time Broker shall be
solely responsible for any expenses incurred in connection with and shall be
entitled to all revenue from the sale of advertising or program time on the
Stations. Except as otherwise provided herein, Time Broker does not assume any
obligation of Licensee under any contract or advertising arrangement entered
into by Licensee on or after the Commencement Date. Time Broker will advise
Licensee of its lowest unit charge for political advertising, and Licensee shall
not do anything that would lower Time Broker's lowest unit charge.
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Section 2.8. Compliance with Laws.
At all times during the term of this Agreement, Time Broker
and Licensee shall comply in all material respects with all applicable federal,
state and local laws, rules and regulations, including the use of FCC-licensed
operators where such are required.
Section 2.9. Certifications.
Pursuant to Section 73.3555(a)(3)(ii) of the FCC's rules,
Licensee certifies that it maintains ultimate control over the Stations'
facilities, including specifically control over station finances, personnel and
programming, and Time Broker certifies that this Agreement complies with the
provisions of Sections 73.3555 of the FCC's rules.
ARTICLE III.
RESPONSIBILITY FOR EMPLOYEES AND EXPENSES
Section 3.1. Time Broker's Employees.
(a) Time Broker shall employ and be responsible for
the payment of salaries, taxes, insurance and all other costs related
to all personnel used in the production of the Programming. Time Broker
will not incur any liability on account of Licensee's employees arising
and accruing prior to the Commencement Date including, without
limitation, any such liability on account of unemployment insurance
contributions, termination and severance payments, accrued sick leave
or accrued vacation.
(b) Time Broker's and Licensee's obligations with
regard to the hiring by Time Broker of Licensee's employees at the
Stations shall be as set forth in Section 3.2.2 and Section 6.5.1 of
the Purchase Agreement, except as provided herein. As of the
Commencement Date, Licensee shall terminate all of its employees to
whom Time Broker will extend offers of employment, except for those
personnel necessary to fulfill Licensee's obligations under the
Communications Act, the rules of the FCC and other applicable laws and
Non-Continuing Employees (as defined in the Purchase Agreement), if
any. Time Broker shall offer employment to such terminated employees of
Licensee as provided in Section 6.5.1 of the Purchase Agreement.
Section 3.2. Licensee's Employees.
Licensee shall employ and be responsible for the payment of
salaries, employment taxes, insurance and all other costs related to the
personnel necessary to fulfill its obligations as Licensee and to transmit the
Programming. Time Broker shall have no authority and shall not
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supervise persons in the employ of Licensee after the Commencement Date.
Licensee acknowledges that its employees may have access to certain confidential
information of Time Broker. Licensee shall, therefore, inform its employees of
the confidential nature of such information and require that each such employee
keep such information confidential.
Section 3.3. Time Broker's Expenses.
Time Broker shall pay for all costs associated with the
production and delivery of the Programming, including but not limited to (i) all
ASCAP, BMI, SESAC and other copyright fees, (ii) any expenses incurred in
connection with its sale of advertising time hereunder (including without
limitation sales commissions) in connection with the Programming, (iii) the
salaries, employment taxes, insurance and related costs for all personnel used
in the production of the Programming and all sales personnel (including
salespeople, traffic personnel, and programming staff), and (iv) maintenance,
repairs and capital expense (to the extent Licensee is not covered by insurance)
of the Stations' studio equipment; provided however, that if this Agreement is
terminated other than through closing of the Purchase Agreement, Time Broker
will be reimbursed for any capital expenditures made during the term of this
Agreement.
Section 3.4. Operating Expenses.
Except as provided in Section 3.3, Licensee shall be
responsible for the payment when due of all fees and expenses relating to
operation and maintenance of the Stations to the extent necessary for Licensee
to maintain the licensed transmitting capability of the Stations and to fulfill
its obligations as an FCC Licensee, including, without limitation, salaries,
benefits and similar expenses for Licensee's employees, Licensee's federal,
state and local taxes, rent, utilities (excluding telephone), maintenance and
repairs at the Stations' transmitter sites, any capital expense at the Stations'
transmitter and studio sites, insurance on the Stations' equipment, insurance
deductibles on claims on the Stations' equipment, and ad valorem property taxes.
Section 3.5. Time Broker's Insurance.
At all times while this Agreement remains in effect, Time
Broker shall maintain Broadcaster's Liability Insurance with coverage of at
least One Million Dollars ($1,000,000.00) per occurrence, Workers Compensation
insurance and Commercial General Liability insurance with a combined single
limit amount of Five Million Dollars ($5,000,000.00) with insurance companies
that have a Best rating of A or better. Time Broker shall deliver certificates
of insurance periodically to Licensee evidencing that such insurance remains in
effect and such policies shall name Licensee as an additional insured.
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ARTICLE IV.
ASSIGNMENT OF CERTAIN AGREEMENTS AND RIGHTS
Section 4.1. Assignment.
On the Commencement Date, Licensee shall assign to Time Broker
title to all vehicles that are part of the Property (as defined in the Purchase
Agreement) and all Time Sales Agreements, Trade Agreements and Barter Agreements
(as such agreements are defined in the Purchase Agreement), together with those
contracts and other agreements identified on Schedule 4.1 (collectively, the
"Contracts"). Time Broker shall, on and as of the Commencement Date, assume and
become fully liable and responsible for all liabilities and obligations of
Licensee accruing after the Commencement Date under the Contracts. Except as set
forth in the Purchase Agreement, Licensee has provided Time Broker with true and
complete copies, including amendments, of the Contracts. The Contracts are
freely assignable, or, if consent of the other contracting party to the
assignment is required, Licensee shall use its reasonable best efforts to obtain
such consent as promptly as practicable; provided that CBS shall not be
obligated to pay money to any other contracting party to obtain any such
consent, other than reasonable expenses of the party for any legal documentation
related to the assignment of the Contract in question. If Licensee is unable to
obtain any consent necessary to permit the valid assignment of a Contract,
Licensee shall act as Time Broker's agent in connection with such Contract and
the parties shall cooperate to cause Time Broker to receive the benefit of the
Contract in exchange for performance by Time Broker of all of Licensee's
obligations under such Contract (including but not limited to the payment to
Licensee of all amounts due under the Contract on or after the Commencement Date
for services provided by Licensee).
Section 4.2. Proration.
All expenses and income arising under the Contracts shall be
prorated between Licensee and Time Broker as of the Commencement Date in a
manner such that the costs and benefits thereunder through the date before the
Commencement Date shall be for the account of Licensee and, thereafter, during
the term of this Agreement, for the account of Time Broker. Such proration shall
include an adjustment to the extent that the excess of the value of unfulfilled
obligations under Trade Agreements and Barter Agreements (as defined in the
Purchase Agreement), including any "time bank" provisions thereof, over the
value of consideration to be received by the Stations (in each case determined
as of the Commencement Date) (the "Net Negative Trade Balance") exceeds One
Hundred Thousand Dollars ($100,000.00). The total value of all unfulfilled
obligations in respect of Trade Agreements and Barter Agreements to be assumed
by Entercom, whether or not the Stations have received consideration therefor,
shall not be in excess of Five Hundred Thousand Dollars ($500,000.00) as of the
Closing Date. It is agreed and understood that the proration required hereby
shall include an adjustment for any accrued but unpaid vacation of Licensee's
employees that are hired by Time Broker pursuant to the provisions of Section
3.1(b) hereof. It is further agreed and understood that such proration shall not
include an adjustment for any termination or severance payments or benefits
obligations
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that Licensee is required to pay as a result of the termination of its employees
pursuant to Section 3.1(b) or any sick leave or other similar benefit, and that
Time Broker shall not be responsible for any such termination or severance
payments or benefits obligations except for those incurred on account of
employees hired by Time Broker on or after the Commencement Date pursuant to
Time Broker's severance policy, if any, after the Commencement Date. Such
prorations shall be completed and any necessary payments on account of such
prorations paid within sixty (60) days of the Commencement Date. If any
disagreement with respect to the proration of such income and expenses cannot be
resolved by the parties, Licensee and Time Broker will select a certified public
accountant knowledgeable in the broadcast industry to resolve the dispute. The
parties will use their best efforts in good faith to cause to occur as
expeditiously as possible the appointment of the certified public accountant,
and once appointed, the resolution of the dispute. The resolution of such
accountant shall be binding on the parties and subject to judicial enforcement.
Payment of the cost of the accountant shall be shared equally between Time
Broker and Licensee.
Section 4.3. Accounts Receivable.
All cash accounts receivable for broadcasts on the Stations
which occur prior to the Commencement Date (the "Accounts Receivable") shall
belong to Licensee and for broadcasts which occur thereafter shall belong to
Time Broker. Within ten (10) days following the Commencement Date, Licensee
shall deliver to Time Broker a schedule of Cash Accounts Receivable for the
Stations as of the Commencement Date (the "Schedule of Accounts Receivable").
Time Broker agrees to collect for Licensee its Accounts Receivable as shown on
the Schedule of Accounts Receivable delivered by Licensee for a period of one
hundred fifty (150) days following the Commencement Date. Licensee will provide
Time Broker a power of attorney or other required authorization for the limited
purpose of allowing Time Broker to endorse and deposit checks and other
instruments received in payment of such Accounts Receivable. All payments
received by Time Broker from any customer whose name appears in the Schedule of
Accounts Receivable and who is also a customer of Time Broker shall be credited
as payment of the account or invoice designated by such customer. In the absence
of any such designation by the customer, payments shall be first credited to the
oldest invoice which is not disputed by said customer. Time Broker shall keep
accurate records of the payment received by it on such Accounts Receivable and
Licensee shall have access at reasonable times to Time Broker's records to
verify such status of the Accounts Receivable. Time Broker shall remit to
Licensee on a weekly basis, one week in arrears, amounts previously collected by
Time Broker on such Accounts Receivable, along with a written accounting of
same, including without limitation, to the extent Licensee's traffic and billing
system can produce same, a detailed open Accounts Receivable report reflecting
payments remitted therewith. Any Accounts Receivable that have not been
collected within such one hundred fifty (150) day period shall be returned to
Licensee, together with all records in connection therewith, including without
limitation, to the extent Licensee's traffic and billing system can produce
same, a detailed open Accounts Receivable report reflecting payments remitted
therewith, whereupon Licensee may pursue collection thereof in such manner as
it, in its sole discretion, may determine. Time Broker shall
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not have the right to compromise, settle or adjust the amounts of any such
Accounts Receivable without Licensee's prior written consent. Except to remit
collected Accounts Receivable in accordance herewith, Time Broker shall have no
liability or obligation to Licensee with respect to the collection of its
accounts and shall not be obligated to take any action to collect such accounts.
ARTICLE V.
OPERATION OF STATION
Notwithstanding any provision of this Agreement to the
contrary, Licensee shall retain full authority and power with respect to the
management and operation of the Stations during the term of this Agreement. The
parties agree and acknowledge that Licensee's continued control of the Stations
and their premises is an essential element of the continuing validity and
legality of this Agreement. Accordingly, Licensee shall employ the General
Manager of the Stations and such other personnel as Licensee determines may be
necessary to fulfill its obligations as a licensee under the Communications Act
and its obligations in accordance with Section 3.2 hereof. Licensee shall retain
full authority and control over the policies, programming and operations of the
Stations, including, without limitation, the decision whether to preempt
Programming in accordance with Section 2.4 hereof. Licensee shall have ultimate
responsibility to effectuate compliance with the Communications Act and with FCC
rules, regulations and policies. In no event shall Time Broker or its employees
represent, depict, describe or portray Time Broker as the licensee of the
Stations.
ARTICLE VI.
GRANT OF LICENSES
Section 6.1. License to Use Stations Facilities.
Effective as of the Commencement Date, Licensee grants Time
Broker a license to access and use all of the Stations' studio and office space
and other facilities ("Stations Facilities") and all equipment and furnishings
contained therein ("Stations Equipment") in the production and broadcasting of
the Programming and sales and administration relating thereto, in accordance
with the terms set forth in this Section 6 (the "Time Broker License"). The Time
Broker License shall have a term coterminous with this Agreement. Time Broker
shall not remove from the Stations Facilities or modify any Stations Equipment
in the Stations Facilities owned by or leased or licensed to Licensee without
Licensee's prior written consent, such consent not to be unreasonably withheld.
Licensee shall not license the use of the Stations Facilities to any other party
during the term of the Time Broker License; and Time Broker's use of the
Stations Facilities shall be exclusive except for Licensee's right to use such
facilities as it deems appropriate in connection with the satisfaction of its
obligations as the Licensee of the Stations, including the use of such
facilities and adequate office space for the employees of Licensee that are
required for Licensee to comply with its obligations under Section 3.2 and 5
hereof. Time Broker shall use due care in the use of any property of Licensee.
Time Broker shall
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indemnify Licensee for any damage (normal wear and tear excepted) to Licensee's
property caused by Time Broker or any employee, contractor, agent or guest of
Time Broker.
Section 6.2. License of Intellectual Property.
Effective as of the Commencement Date, Licensee licenses to
Time Broker the exclusive right to use (or, to the extent Licensee does not hold
exclusive rights, the non-exclusive right to use) all intellectual property
owned by or licensed to Licensee and used solely in the operation of the
Stations (including, but not limited to, logos, jingles, promotional materials,
call signs and goodwill) (the "IP License"). In the event of termination of this
Agreement, the IP License shall terminate; provided, however, that Licensee
shall own all trademarks, service marks, trade names, characters, formats,
jingles, promotional materials, logos and positioning statements which Time
Broker develops for the Programming during the term of this Agreement.
ARTICLE VII.
INDEMNIFICATION
Section 7.1. Indemnification Rights.
Each party will indemnify and hold harmless the other party,
and the directors, officers, partners, employees, agents and affiliates of such
other party, from and against any and all liability, including without
limitation reasonable attorneys' fees arising out of or incident to (i) any
breach by such party of a representation, warranty or covenant made herein, (ii)
the programming produced or furnished by such party hereunder, or (iii) the
conduct of such party, its employees, contractors or agents (including
negligence) in performing its or their obligations hereunder. Without limiting
the generality of the foregoing, each party will indemnify and hold harmless the
other party, and the directors, officers, partners, employees, agents and
affiliates of such other party, from and against any and all liability for
libel, slander, infringement of trademarks, trade names, or program titles,
violation of rights of privacy, and infringement of copyrights and proprietary
rights resulting from the programming produced or furnished by it hereunder. The
parties' indemnification obligations hereunder shall survive any termination or
expiration of this Agreement.
Section 7.2. Procedures.
If any party has a claim for indemnification hereunder (such
party, an "Indemnitee") arising out of any claim or liability which is asserted
or threatened against it, or any action, suit or proceeding is commenced by any
third party against any Indemnitee which might result in any indemnification
obligations hereunder on behalf of any other party (such other party, an
"Indemnitor"), such Indemnitee shall, within twenty (20) business days from the
receipt of same, give written notice thereof to each such Indemnitor together
with a brief statement of the basis of the claim and a copy of any complaint or
other documents relating to such claim, provided, however, that failure to give
such notice within such twenty (20) business
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day period shall not affect the liability of Indemnitor hereunder unless the
failure to give such notice within such period materially and adversely affects
Indemnitor's ability to defend against the claim giving rise to Indemnitee's
claim for indemnification or to cure the default giving rise to such claim.
Within twenty (20) days from receipt of such notice, the Indemnitor shall give
the Indemnitee written notice as to whether the Indemnitor elects to contest any
such claim or liability; provided, however, that during the interim, the
Indemnitee shall be entitled to take reasonable action (which shall not include
settlement) with respect to such claim which it deems necessary to protect
against further damage or default with respect thereto. If an Indemnitor elects
to contest any such claim or liability, it shall be at the cost and expense of
the Indemnitor and using professionals chosen by the Indemnitor. The Indemnitee
may participate in the defense of any claim or liability that an Indemnitor has
elected to contest, but such participation shall be at its own expense. If the
Indemnitor does not elect to assume control or otherwise participate in the
defense of any third party claim, it shall be bound by the results obtained by
the Indemnitee with respect to such claim.
ARTICLE VIII.
DEFAULT
Section 8.1. Time Broker Events of Default.
The occurrence of any of the following, after the expiration
of the applicable cure periods, if any, will be deemed to be an Event of Default
by Time Broker under this Agreement: (a) Time Broker's failure to timely pay any
of the Monthly Payment provided for in Section 1.2 or other payments required
hereunder; (b) except as otherwise provided for in this Agreement, the failure
of Time Broker to supply the Programming; (c) any termination of this Agreement
by Time Broker other than as permitted in Section 9.1; or (d) the occurrence of
any of the following which arises out of, relates to or is attributable to the
acts or omissions of Time Broker:
(i) the issuance by the FCC of a Show Cause
Order designating any of the Stations' FCC authorizations for
revocation;
(ii) the issuance by the FCC of an order
designating for an evidentiary hearing the Stations' applications for
renewal of the FCC authorizations;
(iii) the issuance by the FCC of an order
designating for an evidentiary hearing an application for the
assignment of the Stations' FCC authorizations to Time Broker;
(iv) breach of any covenant of Time Broker
which would reasonably be expected to lead or to the revocation or
non-renewal of the FCC authorizations of any of the Stations; or
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(v) a continuing, uncured material breach of
any covenant of Time Broker.
Section 8.2. Licensee's Events of Default.
The occurrence of any of the following, after the expiration
of the applicable cure periods, if any, will be deemed to be an Event of Default
by Licensee under this Agreement: (a) except as otherwise provided for in this
Agreement, the failure of Licensee to broadcast the Programming; (b) any
termination of this Agreement by Licensee other than as permitted in Section
9.1; (c) the issuance by the FCC of an order designating for an evidentiary
hearing an application for the assignment of the Stations' FCC authorizations to
Time Broker which arises out of, relates to or is attributable to the acts or
omissions of Licensee but excluding issues which are based upon Time Broker's
conduct hereunder for which Licensee may be held responsible; or (d) a
continuing, uncured material breach of any covenant of the Licensee.
Section 8.3. Cure Periods.
The cure periods before any event listed in Sections 8.1 or
8.2 shall become an vent of Default are as follows:
(a) Payment by Time Broker. The Monthly Payment or
other payments required hereunder to be paid to Licensee must be
received by Licensee within five (5) days after Licensee gives written
notice of non-payment to Time Broker.
(b) Certain Matters. There shall be no cure period
for (i) the matters relating to the FCC set forth in Sections 8.1(d) or
8.2(c) hereof, (ii) a termination by Time Broker described in Section
8.1(c); or (iii) a termination by Licensee described in Section 8.2(b)
hereof.
(c) Programs and Broadcast Matters. With respect to
Time Broker's failure to provide the Programming referred to in Section
8.1(b) hereof or Licensee's failure to broadcast the Programming
referred to in Section 8.2(a) hereof, the period allowed for cure shall
be three business days from the giving of written notice of such
failure to the defaulting party by the non-defaulting party.
(d) Other Matters. With respect to all matters
capable of being cured other than those described in Sections 8.3(a),
8.3(b) or 8.3(c) above, the cure period shall be ten (10) days after
written notice to the defaulting party is given by the non-defaulting
party or, with respect to matters that through the exercise of
reasonable diligence cannot be cured within such ten (10) day period,
such longer period not to exceed ninety (90) days as is reasonably
necessary to effect such cure through the exercise of reasonable
diligence.
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Section 8.4. Other Defaults.
For any other breach of a representation, warranty or covenant
made herein that is not listed in Sections 8.1 or 8.2, a party's sole remedy
shall be indemnification pursuant to Article VII hereof.
ARTICLE IX.
TERMINATION
This Agreement shall automatically terminate upon the
expiration of the term of this Agreement as set forth in Section 1.3. In
addition, this Agreement shall terminate as provided below.
Section 9.1. Termination Upon Default.
In addition to other remedies available at law or equity, this
Agreement may be terminated by either Licensee or Time Broker by written notice
to the other, specifying an effective date of termination which is not less than
seven (7) days nor more than ninety (90) days from the date such notice is
given, if the party seeking to terminate is not then in material default or
breach hereof, upon an uncured Event of Default. In the event that the
non-defaulting party does not exercise such right of termination by giving such
written notice within sixty (60) days of the occurrence of an uncured Event of
Default, then the Event of Default giving rise to such right of termination
shall be deemed waived and the Agreement shall continue in full force and
effect.
Section 9.2. Termination Upon Change in FCC Rules.
In addition to other remedies available at law or equity, this
Agreement may be terminated by either Licensee or Time Broker by written notice
to the other, specifying an effective date of termination which is not less than
seven (7) days nor more than thirty (30) days from the date such notice is
given, in the event of a change in FCC rules, policies, or precedent that would
cause this Agreement to be in violation thereof and such change is final, in
effect, and has not been stayed, and the parties have been unable, after
negotiating in good faith for at least thirty (30) days, to modify this
Agreement to comply with the change in FCC rules, policies, or precedent.
Section 9.3. Certain Matters Upon Termination.
(a) Upon any termination of this Agreement, Licensee
shall have no further obligation to provide to Time Broker any
broadcast time or broadcast transmission facilities and Time Broker
shall have no further obligations to make any payments to Licensee
under Section 1.2 hereof. Upon
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any termination, Time Broker shall be responsible for all debts and
obligations of Time Broker to third parties based upon the purchase of
air time and use of Licensee's transmission facilities including,
without limitation, accounts payable, barter agreements and unaired
advertisements, but not for Licensee's federal, state and local income
and business franchise tax liabilities or taxes levied upon Licensee's
personal property. Notwithstanding anything herein to the contrary, to
the extent that any invoice, ▇▇▇▇ or statement submitted to Licensee
after the termination of this Agreement or any payment made by Time
Broker prior to the termination of this Agreement relates to expenses
incurred in operating the Stations, for periods both before and after
the termination of this Agreement, such expenses shall be prorated
between Licensee and Time Broker in accordance with the principle that
Time Broker shall be responsible for expenses allocable to the period
prior to the termination of this Agreement and Licensee shall be
responsible for expenses allocable to the period on and after the
termination of this Agreement. Such proration shall include an
adjustment for Time Broker's Trade Agreements only to the extent that
Time Broker's Net Negative Trade Balance exceeds One Hundred Thousand
Dollars ($100,000.00). Each party agrees to reimburse the other party
for expenses paid by the other party to the extent appropriate to
implement the proration of expenses pursuant to the preceding sentence.
(b) If this Agreement terminates other than as a
result of the Closing (as defined in the Purchase Agreement), Time
Broker shall (i) assign to Licensee and Licensee shall assume all
Contracts (including those employment contracts assumed by Time Broker
pursuant to this Agreement) and all renewals, replacements or other
contracts entered in the ordinary course of business relating to the
Stations between the Commencement Date and the date of termination of
this Agreement ("Supplemental Contracts") in effect on the date of such
termination or expiration; (ii) assign to Licensee title to vehicles
assigned to Time Broker under Section 4.1; and (iii) be responsible for
only those obligations under the Contracts and Supplemental Contracts
arising on or after the Commencement Date and prior to the termination
of this Agreement.
(c) Notwithstanding anything in Section 7.1 to the
contrary, no expiration or termination of this Agreement shall
terminate the obligation of each party to indemnify the other for
claims under Section 7 hereof or limit or impair any party's rights to
receive payments due and owing hereunder on or before the date of such
termination.
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ARTICLE X.
REMEDIES
In addition to a party's rights of termination hereunder (and
in addition to any other remedies available to it or provided under law), in the
event of an uncured Event of Default with respect to either party, the other may
seek specific performance of this Agreement, in which case the defaulting party
shall waive the defense in any such suit that the other party has an adequate
remedy at law and interpose no opposition, legal or otherwise, as to the
propriety of specific performance as a remedy hereunder, and agrees that the
other party shall have the right to obtain specific performance of the
defaulting party without being required to prove actual damages, post bond, or
furnish other security.
ARTICLE XI.
CERTAIN REPRESENTATIONS AND WARRANTIES OF THE PARTIES
Section 11.1. Representations and Warranties of Time Broker.
Time Broker hereby represents and warrants to Licensee as
follows:
11.1.1. Corporate Organization. Time Broker is a
corporation duly organized, validly existing and in good standing under the laws
of the Commonwealth of Pennsylvania, is duly qualified to do business in the
Commonwealth of Massachusetts and has full power and authority to conduct its
business as currently conducted.
11.1.2. Authorization; Enforceability. This Agreement
has been duly executed and delivered by Time Broker, and is valid, binding and
enforceable against Time Broker in accordance with its terms. Time Broker has
full right, power, authority and legal capacity to enter into and perform its
obligations under this Agreement and to consummate the transactions contemplated
hereby. The execution and delivery and performance of this Agreement and the
consummation of the transactions provided for hereby have been duly authorized
by all necessary action on the part of Time Broker, and no other organizational
or other proceedings on the part of Time Broker are necessary to authorize the
execution or delivery of this Agreement or the transactions contemplated hereby.
11.1.3. No Consent. Except to the extent any of the
Contracts require consent to assignment, no consent of any other party and no
consent, license, approval or authorization of, or exemption by, or filing,
restriction or declaration with, any governmental authority, bureau, agency or
regulatory authority, other than the filing of this Agreement with the FCC and
the expiration or early termination of any applicable waiting period under the
HSR Act, if applicable, is required in connection with the execution, delivery
or performance of this Agreement by Time Broker or will effect the validity or
performance of this Agreement.
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11.1.4. No Breach. Neither the execution or delivery
of this Agreement nor the consummation of the transactions contemplated hereby
will constitute or result in the breach of any term, condition or provision of,
or constitute a default under, or result in the creation of any lien, charge or
encumbrance upon any property or assets of Time Broker pursuant to the
organizational documents of Time Broker, any agreement or other instrument to
which Time Broker is a party or by which any part of its property is bound, or
violate any law, regulation, judgment or order binding upon Time Broker.
11.1.5. Actions and Proceedings. There is no judgment
outstanding and no litigation, claim, investigation or proceeding pending
against Time Broker or, to the knowledge of Time Broker, threatened before any
court or governmental agency to restrain or prohibit, or to obtain damages, or
other relief in connection with, this Agreement, the Purchase Agreement or the
consummation of the transactions contemplated hereby or thereby or that might
adversely affect Time Broker's performance under this Agreement.
11.1.6. Qualifications. Time Broker is qualified in
accordance with the Communications Act of 1934, as amended, and the rules and
policies of the FCC to enter into this Agreement and provide programming on the
Stations in accordance with its terms. Between the date hereof and the
termination of this Agreement, either by the Closing of the Purchase Agreement
or the earlier termination in accordance with Article 9 hereof, Time Broker will
not take any action that Time Broker knows, or has reason to believe, would
disqualify it from providing programming on the Stations pursuant to this
Agreement.
Section 11.2. Representations, Warranties and Covenants of
Operator and CRLI.
Operator and CRLI hereby represent, warrant and covenant to
Time Broker as follows:
11.2.1. Corporate Organization. Operator is a
corporation, duly organized, validly existing and in good standing under the
laws of the State of Delaware, is duly qualified to do business in the
Commonwealth of Massachusetts and has full power and authority to conduct its
business as currently conducted. CRLI is a corporation, duly organized, validly
existing and in good standing under the laws of the State of Delaware, is duly
qualified to do business in the Commonwealth of Massachusetts and has full power
and authority to conduct its business as currently conducted.
11.2.2. Authorization; Enforceability. This Agreement
has been duly executed and delivered by each of Operator and CRLI, and is valid,
binding and enforceable against each of them in accordance with its terms. Each
of Operator and CRLI has full right, power, authority and legal capacity to
enter into and perform its obligations under this Agreement and to consummate
the transactions contemplated hereby. The execution and delivery of this
Agreement and the consummation of the transactions provided for hereby have
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been duly authorized by all necessary action on the part of each of Operator and
CRLI, and no other organizational or other proceedings on the part of Operator
or CRLI are necessary to authorize the execution or delivery of this Agreement
or the transactions contemplated hereby.
11.2.3. No Consent. Except to the extent any of the
Contracts require consent to assignment, no consent, license, approval or
authorization of or exemption by, or filing, restriction or declaration with,
any governmental authority, bureau, agency or regulatory authority, other than
the filing of this Agreement with the FCC and the expiration or early
termination of any applicable waiting period under the HSR Act, if applicable,
is required in connection with the execution, delivery or performance of this
Agreement or will affect the validity or enforceability of this Agreement.
11.2.4. No Breach. Except to the extent any of the
Contracts require consent to assignment, neither the execution or delivery of
this Agreement nor the consummation of the transactions contemplated hereby will
constitute or result in the breach of any term, condition or provision of, or
constitute a default under, or result in the creation of any lien, charge or
encumbrance upon any property or assets of Operator or CRLI pursuant to the
organizational documents of Operator or CRLI, any agreement or other instrument
to which Operator or CRLI is a party or by which any part of their property is
bound, or violate any law, regulation, judgment or order binding upon Operator
or CRLI.
11.2.5. Actions and Proceedings. There is no judgment
outstanding and no litigation, claim, investigation or proceeding pending
against Operator or CRLI or, to the knowledge of Operator or CRLI, threatened
before any court or governmental agency to restrain or prohibit, or to obtain
damages or other relief in connection with this Agreement or the consummation of
the transactions contemplated hereby.
11.2.6. Maintenance of Current Operations. The
Stations' transmission equipment shall be maintained by Operator and CRLI in a
condition consistent with good engineering practices and in compliance in all
material respects with the Communications Act and all other applicable rules,
regulations and technical standards of the FCC.
11.2.7. Other Agreements. During the term of this
Agreement, Operator and CRLI will not enter into any other time brokerage,
program provision, local management or similar agreement with any third party
with respect to the Stations.
ARTICLE XII.
MISCELLANEOUS
Section 12.1. Modification and Waiver.
No modification or waiver of any provision of this Agreement
shall in any event be effective unless the same shall be in writing signed by
the party against whom the waiver is
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sought to be enforced, and then such waiver and consent shall be effective only
in the specific instance and for the purpose for which given.
Section 12.2. No Waiver; Remedies Cumulative.
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
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, shall 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 rights or remedies which they may
otherwise have.
Section 12.3. Construction.
This Agreement shall be construed in accordance with the laws
of the State of New York without reference to conflict of laws principles, and
the obligations of the parties hereto are subject to all federal, state or
municipal laws or regulations now or hereafter in force and to the regulations
of the FCC and all other governmental bodies or authorities presently or
hereafter duly constituted. The parties hereto expressly waive and agree to
waive any right to a jury trial in any controversy or claim arising out of or
relating to this Agreement.
Section 12.4. Headings.
The headings contained in this Agreement are included for
convenience only and no such heading shall in any way alter the meaning of any
provision.
Section 12.5. Successors and Assigns.
Any party may assign all or any part of this Agreement or the
rights and obligations hereunder to a person or entity controlling, controlled
by or under common control with such party, provided that any such assignment
shall not relieve such party of its obligations hereunder. Except as otherwise
provided herein, this Agreement and the rights and obligations hereunder may not
be assigned by any party hereto without the prior written consent of the other
parties hereto, which consent shall not be unreasonably withheld. This Agreement
shall be binding upon and inure to the benefit of the parties and their
respective successors and assigns.
Section 12.6. Force Majeure.
The parties acknowledge and agree that a party will not be
liable for any failure to timely perform any of its obligations under this
Agreement if such failure is due, in whole or in part, directly or indirectly,
to accidents, fires, floods, governmental actions, war, civil disturbances,
other causes beyond such party's control or any other occurrence which would
generally be considered an event of force majeure.
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Section 12.7. Broker.
The parties agree to indemnify and hold each other harmless
against any claims from any broker or finder based upon any agreement,
arrangement, or understanding alleged to have been made by the indemnifying
party.
Section 12.8. Counterpart Signatures.
This Agreement may be signed in one or more counterparts.
Section 12.9. Notices.
Any notice, report, demand, waiver or consent required or
permitted hereunder shall be in writing and shall be given by hand delivery, by
prepaid registered or certified mail, with return receipt requested, by an
established national overnight courier providing proof of delivery for next
business day delivery or by telecopy addressed as follows:
If the notice is to Time Broker:
Entercom Communications Corp.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇. ▇▇▇▇▇▇ ▇. Field, President
Telecopier Number: ▇▇▇-▇▇▇-▇▇▇▇
With a copy to:
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Esq.
General Counsel
Entercom Communications Corp.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Telecopier Number: ▇▇▇-▇▇▇-▇▇▇▇
and
▇▇▇▇▇▇ & ▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇.
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇.▇. ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Esq.
Telecopier Number: ▇▇▇-▇▇▇-▇▇▇▇
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If the notice is to Licensee:
CBS Radio
▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Mr. ▇▇▇ ▇▇▇▇▇▇▇▇
Telecopier Number: ▇▇▇-▇▇▇-▇▇▇▇
With copies to:
General Counsel
CBS Corporation
▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Telecopier Number: ▇▇▇-▇▇▇-▇▇▇▇
and
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇, P.L.L.C.
▇▇▇▇ ▇ ▇▇▇▇▇▇, ▇.▇.
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇.▇. ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq.
Telecopier Number: 202-293-7783
The date of any such notice and service thereof shall be deemed to be: (i) the
day of delivery if hand delivered or delivered by overnight courier; (ii) the
day of delivery as indicated on the return receipt if dispatched by mail; or
(iii) the date of telecopy transmission as indicated on the telecopier
transmission report provided that any telecopy transmission shall not be
effective unless a paper copy is sent by overnight courier on the date of the
telecopy transmission. Either party may change its address for the purpose of
notice by giving notice of such change in accordance with the provisions of this
Section.
Section 12.10. Entire Agreement.
This Agreement, the letter agreements between the parties
dated of even date herewith and the Purchase Agreement (including all
attachments, exhibits and schedules) 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.
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Section 12.11. Severability.
Except as expressly set forth in Section 12.15, if any
provision contained in this Agreement is held to be invalid, illegal or
unenforceable in any respect by any court or other authority, then such
provision shall be deemed limited to the extent that such court or other
authority deems it reasonable and enforceable, and as so limited shall remain in
full force and effect. In the event that such court or other authority shall
deem any such provision wholly unenforceable, this shall not affect any other
provision hereof, and this Agreement shall be construed as if such invalid,
illegal or unenforceable provision or provisions had not been contained herein.
Section 12.12. 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 (subject to
the IP License set forth in Section 6.2).
Section 12.13. Damage to Stations.
In the event of damage or destruction to the Stations (other
than damage or destruction caused by Time Broker), Licensee shall proceed to
repair, replace or restore the Stations to its former condition as promptly as
is commercially reasonable.
Section 12.14. Noninterference.
During the term of this Agreement, neither Licensee nor any of
their employees shall take any actions that might impair the operations of Time
Broker conducted hereunder, except to the extent expressly contemplated by this
Agreement or as otherwise required by law.
Section 12.15. Regulatory Changes.
In the event of any order or decree of an administrative
agency or court of competent jurisdiction, including without limitation any
material change or clarification in FCC rules, policies, or precedent, that
would cause this Agreement to be invalid or violate any applicable law, and such
order or decree has become effective and has not been stayed, the parties will
use their respective best efforts and negotiate in good faith to modify this
Agreement to the minimum extent necessary so as to comply with such order or
decree without material economic detriment to either party, and this Agreement,
as so modified, shall then continue in full force and effect. In the event that
the parties are unable to agree upon a modification of this
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Agreement so as to cause it to comply with such order or decree without material
economic detriment to either party, then this Agreement shall be terminated.
Section 12.16. Attorneys' Fees.
In the event of a dispute between or among the parties hereto
arising out of or related to this Agreement or the interpretation or enforcement
of this Agreement, the prevailing party shall be entitled to recover reasonable
attorneys' fees, costs and expenses from the other party.
IN WITNESS WHEREOF, the parties have executed this Agreement
as of the date first above written.
CBS RADIO, INC.
By:_______________________________________
Title:_____________________________________
CBS RADIO LICENSE, INC.
By:_______________________________________
Title:_____________________________________
ARS ACQUISITION II, INC.
By:_______________________________________
Title:_____________________________________
ENTERCOM COMMUNICATIONS CORP.
By:_______________________________________
Title:_____________________________________
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SCHEDULE 1.1
PROGRAMMING
The Programming shall consist of one hundred sixty-four (164)
hours per week on the Stations in an entertainment format to be chosen by Time
Broker, subject to Section 2 of this Agreement. The Programming shall include
(a) news and weather information; (b) public service announcements (including,
at Licensee's directive from time to time, a reasonable number of public service
announcements of local interest supplied by Licensee or produced by Time Broker
under Licensee's supervision); (c) an announcement in form sufficient to meet
the station identification requirements of the FCC at the beginning of each
hour; (d) an announcement at the beginning of each segment of Programming to
indicate that program time has been purchased by Time Broker; and (e) any other
announcement that may be required by applicable law or regulation (including but
not limited to EAS tests). Time Broker shall maintain and deliver to Licensee
copies of all operating and programming information including without limitation
information concerning portions of the Programming that are responsive to issues
of public importance identified to Time Broker by Licensee, EAS announcements,
and station operating logs, necessary for Licensee to maintain its FCC Public
File, and all other records required to be kept by FCC rule or policy. Time
Broker shall have the sole and exclusive right to sell advertising to be
included in the Programming and shall be entitled to retain all the revenues
derived from the sale thereof, provided, however, that Licensee shall be
entitled to sell such time as it deems necessary to comply with the political
advertising rules of the FCC in the event the Programming does not comply with
such rules.
Notwithstanding any other provision of this Agreement, Time
Broker recognizes that Licensee has certain obligations to broadcast programming
to meet the needs and interests of the community of license for the Stations.
Licensee shall have the right to air specific programming on issues of local
importance to the community. Nothing in this Agreement shall abrogate the
unrestricted authority of Licensee to discharge its obligations to the public
and to comply with the laws, rules and policies of the FCC with respect to
meeting the ascertained needs and interests of the public. Accordingly, Licensee
may air or cause Time Broker to produce and present under Licensee's supervision
for not less than two (2) nor more than four (4) hours per week on the Stations
such public affairs programming that responds to the needs and interests of
listeners in the Stations' community of license. Such public affairs programming
shall be presented between 6:00 a.m. and 9:00 a.m. on Saturdays and/or Sundays
or at such other times as the public interest may require. Time Broker will not
change the format of the Stations other than WEGQ(FM).
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SCHEDULE 1.2
COMPENSATION
Beginning on the Commencement Date, for each month during
which this Agreement until this Agreement is terminated, Time Broker shall pay a
monthly fee equal to Three Hundred Ninety-Five Thousand Dollars ($395,000.00)
per month; provided however, if Licensee makes the Closing Date Election under
the Purchase Agreement, the monthly fee for the months of January, February and
March of 1999 shall be Two Hundred Twenty Thousand Dollars ($220,000.00) (the
"Monthly Fee").
In the event that the Commencement Date occurs on a day other
than the first day of a month, the initial monthly payment made by Time Broker
shall be an amount equal to the Monthly Fee as determined above multiplied by a
ratio, the numerator of which is the number of days between the Commencement
Date and the end of the month in which the Commencement Date occurs and the
denominator of which is the number of days in the month in which the
Commencement Date occurs; and in the event that the last day of the TBA Payment
Period occurs other than on the last day of a month, the Monthly Payment for the
month in which such day occurs shall be similarly prorated.
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SCHEDULE 2.1
PROGRAMMING POLICY STATEMENT
Time Broker 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. Further, Time Broker agrees that all material
broadcast on the Stations shall comply with all federal, state and local
applicable laws, rules and regulations.
No Plugola or Payola. The broadcast of any material for which
any money, service or other valuable consideration is
directly or indirectly paid, or promised to or
charged or accepted by, the Time Broker, from any
person, shall be prohibited, unless, at the time the
same is broadcast, it is announced as paid for or
furnished by such person.
Political Broadcasting. Within thirty (30) days of the
Commencement Date, Time Broker shall provide Licensee
with a written political advertising disclosure
statement which fully and accurately discloses how
the Time Broker sells programming and advertising
time and which makes parties purchasing political
programming and advertising time fully aware of the
lowest unit charge provisions of Section 315 of the
Communications Act. In addition, at least thirty (30)
days before the start of any primary or election
campaign, Time Broker will clear with the Stations'
general manager the rate Time Broker will charge for
the time to be sold to candidates to make certain
that the rate charged is in conformance with the
applicable law and station policy.
Required Announcements. Time Broker shall broadcast (i)
announcements in a form satisfactory to Licensee at
the beginning of each hour to identify the Stations
and (ii) any other announcements that may be required
by law, regulation, or Licensee's station policy.
No Illegal Announcements. No announcements, broadcasts or
promotions prohibited by federal, state or local law
shall be made over the Stations. This prohibition
specifically includes, but is not limited to, any and
all programming or other broadcast material
concerning tobacco or alcohol related products which
are unlawful. The airing of any broadcast material
concerning contests, lotteries or games must be
conducted in accordance with all applicable law,
including FCC rules and regulations. Any obscene,
indecent, or fraudulent programming is prohibited.
All sponsored programming or other broadcast material
must be identified in accordance with applicable law,
including FCC rules and regulations.
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Licensee Discretion Paramount. In accordance with the
Licensee's responsibility under the Communications
Act and the rules and regulations of the FCC,
Licensee reserves the right to reject or terminate
any programming (including advertising) proposed to
be presented or being presented over the Stations
which is in conflict with station policy or which in
Licensee's or its general manager's reasonable
judgment would not serve the public interest.
In any case where questions of policy or interpretation arise,
Time Broker should submit the same to Licensee for decision before making any
commitments in connection therewith.
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SCHEDULE 4.1
TIME SALES AGREEMENTS AND CONTRACTS
All Contracts to be assumed by Entercom under the Purchase
Agreement other than Leases (as defined in the Purchase Agreement) and contracts
relating to operation at the transmitter site for the Stations and employment
contracts with the Licensee's retained employees under Sections 3.1 and 3.2.
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