Exhibit 2.10
PROGRAM SERVICES
AND TIME BROKERAGE AGREEMENT
This Program Services and Time Brokerage Agreement (the "Agreement"),
dated as of February 12, 1998, is entered into by and between Pamplico
Broadcasting, L.P., a South Carolina limited partnership ("Licensee") and
Cumulus Broadcasting, Inc., a Nevada corporation (the "Programmer").
WHEREAS, Pamplico Broadcasting, L.P. is the licensee of radio stations
WMXT-FM, Pamplico, South Carolina, and WBZF-FM, Marion, South Carolina (the
"Stations"), pursuant to authorizations issued by the Federal Communications
Commission (the "FCC");
WHEREAS, Programmer and Licensee have entered into that certain Asset
Purchase Agreement, dated February __, 1998, which provides for the purchase of
the Stations by Programmer and pursuant to which Licensee and Programmer have,
or shortly will have, filed an application seeking consent of the FCC to the
assignment of the Stations to Programmer; and
WHEREAS, the Programmer desires to avail itself of Stations' broadcast
time for the presentation of programming service, including the sale of program
and advertising time, in accordance with rules, regulations, and policies of the
FCC; and
WHEREAS, Licensee desires to accept such programs produced by Programmer
that conform to the rules, regulations, and policies of the FCC and this
Agreement.
NOW, THEREFORE, for and in consideration of the mutual covenants herein
contained, the parties, intending to be legally bound, agree as follows:
1. Purchase of Air Time and Broadcast of Programming. Licensee agrees to
make the broadcasting transmission facilities of the Stations available to the
Programmer for the broadcast of Programmer's programs, advertising and
promotional material on the Stations for up to 24 hours a day, seven days a week
(the "Programming"), except provided, however, that Licensee specifically
reserves thirty (30) minutes of broadcast time every Sunday between 6:00 a.m. to
10:00 a.m. for the broadcast of its own
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programming. The studio facilities and the transmitting equipment of Licensee
relating to the Stations shall be made available to the Programmer for its use
during the term of this Agreement.
2. Consideration. The terms and conditions of payment to Licensee for the
broadcast of the Programming during the term of this Agreement shall be as set
forth in Attachment 1.
3. Term. This Agreement shall commence on March 15, 1998. Unless earlier
terminated as provided by this Agreement, the term of this Agreement shall end
on the earlier of (i) the date on which the FCC approved application for
assignment of the Stations from Licensee to Programmer is consummated; or (ii)
the date the Asset Purchase Agreement is terminated pursuant to Section 9(a)(iv)
thereof. In the event of a material change or clarification in FCC rules,
policies or precedent that would cause this Agreement to be be in violation
thereof and such change is not the subject of an appeal or further
administrative review, the parties will use their respective best efforts and
negotiate in good faith to modify this Agreement to comply with the change or
clarification in FCC rules, policies, or precedent so as to continue this
Agreement in substantially the same form without material economic detriment to
either party.
4. The Programming. Programmer shall furnish the Programming and artistic
personnel to Licensee for up to 24 hours a day, seven days a week, except as
provided elsewhere in this Agreement. Licensee acknowledges that it is familiar
with the nature of the Programming to be produced by Programmer and has
determined that the broadcasting of the Programming on the Stations will serve
the public interest. During the time periods when Programmer is transmitting
Programming to the Stations, Programmer agrees to monitor and control the
Stations' transmitters, to ensure compliance with FCC rules and the terms of the
Stations' authorizations and, during
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such time periods, Programmer agrees to also conduct such tests of the Emergency
Alert System as may be required to comply with FCC rules.
5. Interruption of Normal Operations. If the Stations suffer loss or
damage of any nature to its transmission facilities which results in the
interruption of service, Programmer shall immediately notify Licensee, and shall
undertake such repairs as reasonably necessary to restore the full-time
operation of the Stations as quickly as reasonably practicable. In the
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event that either of the Stations is off the air as a result of any Licensee
equipment failure not caused by any action or inaction by Programmer, and
Programmer, thus, is unable to provide the Programming contracted for hereunder,
Programmer shall be entitled to a pro rata credit against the monthly amount due
to Licensee for the period the station remains off the air.
6. Force Majeure. Any failure or impairment of facilities or any delay or
interruption in broadcasting programming, or failure at any time to furnish
facilities, in whole or in part, for broadcasting, due to acts of God, strikes
or threats thereof or force majeure or due to causes beyond the control of
Licensee, shall not constitute a breach of this Agreement and Licensee will not
be liable to Programmer, except to the extent of allowing in each such case the
pro rata reduction of payment due as specified in Attachment 1 and calculated as
indicated in Section 14.
7. Handling of Mail and Complaints. Programmer shall provide to Licensee
the original or a copy of any complaints or correspondence from any agency of
government or members of the public which it receives relating to either Station
or any programming on the either Station to enable Licensee to comply with FCC
rules and policies, including those regarding the maintenance of the public
inspection file which shall at all times remain the responsibility of Licensee.
8. Programming and Operation Standards. Programmer warrants that all
Programming supplied by Programmer shall meet in all material respects all
requirements of the Communications Act of 1934, as amended (the "Act"), and all
applicable rules, regulations and policies of the FCC, all applicable federal,
state and local regulations, and the Programming Policy Statement of the
Stations ("Programming Standards") as set forth in Attachment 2. If, in the
judgment of Licensee or the Stations' General Managers, any portion of the
Programming presented by Programmer does not meet
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such Programming Standards, Licensee may suspend or cancel any such portion of
the Programming.
9. Rejection of Programming. In the event that Licensee rejects
Programming from Programmer pursuant to the terms of this Agreement, then
Programmer shall be entitled to a rebate or credit equal to the pro rata portion
of the consideration paid or payable pursuant to Attachment 1 that corresponds
to the amount of time preempted. Licensee shall use its best efforts to give
Programmer reasonable prior notice of its objection to Programmer's proposed
programs, including the basis for such objection, and a reasonable opportunity
to substitute acceptable Programming.
10. Responsibility for Employees and Related Expenses.
(a) Programmer Employees. Programmer shall furnish or cause to be
furnished the personnel and material for the production of the Programming to be
provided by this Agreement. Programmer shall employ and be responsible for
salaries, taxes, insurance and related costs for all personnel used in the
production and airing of its Programming (including but not limited to sales
people, traffic personnel, programming staff, and on-air personnel).
(b) Licensee Employees. Licensee will provide and have
responsibility for the Stations personnel necessary in order to comply with FCC
rules and policies and with Station requirements as determined by Licensee
(which personnel shall be the Stations' General Manager and Receptionist), and
will be responsible for the salaries, taxes, insurance and related costs for all
such Licensee personnel. All Licensee employees shall report to and be
accountable solely to Licensee
(c) Facilities. Programmer shall arrange, at its sole expense, to
acquire, install, operate, and maintain all program origination and relay
facilities (including, but not limited to, program production equipment, studio
equipment, remote transmitter control equipment, and studio-transmitter-link
equipment) that may be necessary or
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appropriate in connection with Programmer's presentation of Programming for
broadcast by the Stations. Licensee shall make its transmitter, transmitter
building, and tower reasonably available to Programmer, at no additional charge,
for placement of any equipment Programmer reasonably deems necessary to allow it
to broadcast Programmer's Programming on the Stations. Nothing herein shall be
construed to divest Licensee of ownership of and control over the Stations'
transmitting facilities at all times during which this Agreement shall be in
effect. All such program origination and relay facilities acquired, installed,
operated and maintained by Programmer shall comply in all respects with the
pertinent rules, regulations and policies of the FCC and with the standards of
good engineering practice and shall be and remain the sole property of
Programmer. In the event that any FCC authorizations shall be required by either
Licensee or Programmer in order to enable Programmer to originate and relay
programs to the Stations' transmitting facilities for broadcast by the Stations,
Programmer shall be solely responsible for obtaining and maintaining such
authorizations, at Programmer's sole expense. In the event that Programmer, with
Licensee's consent, relocates the main studio to a location in compliance with
FCC requirements, Programmer shall provide to Licensee at no charge reasonable
office space for Licensee's employees.
11. Advertising and Programming Revenues. During the Programming it
delivers to the Stations, Programmer shall have full authority to sell for its
own account commercial spot advertising and block programming time on the
Stations and, except for revenues from advertising or program time sold by
Licensee for hours of operation reserved by Licensee, to retain all revenues
from the sale of such advertising and programming. The parties agree that
Programmer shall have complete discretion to deal as it deems appropriate with
all advertising and programming accounts relating to Programming and time sold
by it; provided, however, subject to the ultimate responsibility and control of
Licensee, Programmer will provide, make available to and
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sell time to political candidates from the time it purchases from Licensee in
strict compliance with the Act, the rules, regulations and policies of the FCC
and any other applicable federal, state or local law.
Programmer shall retain any profits earned, and Programmer shall be
solely responsible for any losses incurred, as the result of the operations of
the Stations to the extent that such operations involve the broadcast by the
Stations of Programming that was presented for such broadcast by Programmer.
Programmer shall be responsible for obtaining and maintaining, at its sole cost,
all necessary licenses, authorizations and consents for the Stations'
performance of copyrighted works, to the extent that such works are included in
the Programming presented by Programmer and broadcast by the Stations.
12. Operation of the Stations.
(a) Verification of Licensee Control and Rights of Licensee.
Notwithstanding anything to the contrary in this Agreement, Licensee shall have
full authority and power over the operation of the Stations during the period of
this Agreement. Licensee's General Manager shall direct the day-to-day
operations of the Stations. Licensee shall retain control over the policies,
programming and operations of the Stations, including, without limitation, the
right to decide whether to accept or reject any Programming which Licensee deems
unsuitable or contrary to the public interest; the right to preempt any
Programming 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 for compliance with the laws of the Untied States, the State of South
Carolina, the rules, regulations and polices of the FCC, and the rules,
regulations and policies of other federal governmental authorities, including
the Federal Trade Commission and the Department of Justice. Licensee reserves
the right to refuse to broadcast any program containing matter which is, or in
the reasonable opinion of
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Licensee may be, violative of any right of any third party or which may
constitute a "personal attack" (as that term is defined by the FCC). Licensee
agrees that it shall carry its own public service programming at such times as
it deems best in the public interest with consideration to the reasonable
programming needs of Programmer. With respect to the operation of the Stations,
Licensee shall at all times be ultimately responsible for meeting all of the
FCC's requirements with respect to the broadcast and nature of any public
service programming, for maintaining the political and public inspection files
and the Station log, and for the prepara tion of all programs/issues lists.
Licensee expressly acknowledges that its duty to maintain the Stations' public
inspection and political files is non-delegable and that Licensee retains
responsibility for maintenance of such files. Licensee verifies that it shall
maintain the ultimate control over the Stations' facilities, including
specifically control over the finances with respect to its operation of the
Stations, over Licensee's personnel operating the Stations, and over the
programming to be broadcast by the Stations. Licensee confirms that all reports
and applications required to be filed with the FCC (including ownership reports
and renewal applications) or any other governmental agency, department or body
in respect of the Stations have been, and will in the future be, filed and are
and will be true and complete to the best of Licensee's knowledge and will
accurately present the information contained therein and, to the extent required
to be kept in the public inspection file of the Stations, are and will be kept
in such file.
(b) Verification by Programmer and Obligations of Programmer.
Programmer will, during the term of this Agreement, provide local news, public
service announcements, and public affairs programming relevant to the Stations'
service area to assist Licensee in satisfying its obligations to respond to the
needs of its community. Programmer will also forward to Licensee within
twenty-four (24) hours of receipt by Programmer, any letter from a member of the
general public addressing the Stations'
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programming or documentation which comes into its custody which is required to
be included in the Stations' public file or which is reasonably requested by
Licensee. Programmer shall cooperate with Licensee to ensure compliance with the
station identifications requirements of the FCC's rules by furnishing within the
Programming on behalf of Licensee all Station Identification Announcements
required by such FCC rules. Programmer will properly prepare and promptly
provide to Licensee (a) all its contracts, agreements, and requests for time for
political programming or programming addressing controversial issues of public
importance; (b) records and reports of Programmer's employment and recruitment
practices and Programmer's program and advertisement rates; and (c) full
information with respect to Programmer's Programming, including public service
announcements with are responsive to issues of public concern in sufficient
detail to enable Licensee to timely prepare all appropriate or necessary records
and reports required by the FCC or its rules and policies concerning the
Stations' operations. Programmer will properly prepare and furnish to Licensee
all information, records and reports relating to Programmer's Programming, sale
or employment practices in sufficient detail to enable Licensee to comply with
all rules and policies of the FCC or any other government agency.
13. EAS Tests/Duty Operators. During all hours when Programmer's
Programming is being broadcast over the Stations, Programmer, with the
supervision of Licensee, shall monitor and receive test messages and alerts over
the Emergency Alert System. If an EAS test or alert is received during the hours
when Programmer is delivering its Programming for broadcast over the Stations,
Programmer shall, unless otherwise instructed by Licensee, cause the appropriate
EAS test or alert message to be transmitted over the Stations; and shall, at
Licensee's instructions, in the event of an actual activation of the Emergency
Alert System, cause all steps that the Stations are required to take in such an
event to be taken, and shall be responsible for assuring that
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the receipt and broadcast of all EAS tests and alerts are properly recorded in
the station log.
14. Station Promotion. Programmer shall not hold itself out as the owner
or licensee of the Stations.
15. Right to Use the Programming. The right to use the Programming
produced by Programmer and to authorize its use in any manner and in any media
whatsoever shall be at all times vested solely in Programmer except as
authorized by this Agreement.
16. Payola. Programmer agrees that neither it nor its agent, employees
consultants or personnel will accept any consideration, compensation, gift or
gratuity of any kind whatsoever, regardless of its value or form, including, but
not limited to, a commission, discount, bonus, materials, supplies or other
merchandise, services or labor, whether or not pursuant to written contracts or
agreement between Programmer and merchants or advertisers, unless the payer is
identified in the program as having paid for or furnished such consideration in
accordance with the Act and FCC requirements. Should either Station determine
that an announcement is required by Section 317 of the Act and related FCC
rules, Programmer will insert that announcement in the Programming. Programmer
will obtain from its employees responsible for the Programming appropriate
anti-payola/plugola affidavits in the form attached hereto as Attachment 3.
Commercial matter with obvious sponsorship identification will not require
disclosure beyond the sponsorship identification contained in the commercial
copy. Programmer will at all times comply and seek to have its employees comply
in all material respects with the requirements of Section 317 and 507 of the
Act, and the related rules and regulations of the FCC.
17. Compliance with Law. At all times during this Agreement, Programmer
will comply in all material respects with all laws, rules, regulations and
policies including but not limited to the FCC's technical, political
broadcasting, obscenity and indecency
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regulations, fair trade practice regulations, copyright and trademark
regulation, EEO and employment regualtions, lottery broadcast regulations,
sponsorship identification, and sale practice regulation, applicable to the
operations of the Stations.
18. Indemnification:
(a) Rights of Licensee. Programmer will indemnify and hold Licensee,
its officers, directors, partners and employees harmless from and against all
liability related or arising from to Programmer's Programming on the Stations or
related to or arising from Station operations during Programmer's Programming,
including, but not limited to, libel, slander, illegal competition or trade
practice, violation of rights of privacy, and infringement of copyrights or
other proprietary rights and violations of the Act or FCC rules resulting from
the broadcast of Programming furnished by Programmer, or complaints from Station
listeners regarding quantity, quality or delivery of merchandise ordered by such
listeners as the result of solicitations contained within the Programming, tax
liabilities arising from sales solicited on the Programming, any
misrepresentation or breach of warranty of Programmer under this Agreement, or
any breach of any warrant, agreement, or obligation of Programmer contained in
this Agreement. Such indemnification shall apply to any and all claims, damages,
liability, forfeitures, costs and expenses, including reasonable attorneys'
fees, arising from the production or broadcasting of any Programming supplied by
Programmer, including Programming obtained from program suppliers and shall
survive the termination of this Agreement.
(b) Rights of Programmer. Licensee shall indemnify, defend, and hold
harmless Programmer, its officers, directors and employees from and against any
and all claims, losses, costs, liabilities, damages, FCC forfeitures, and
expenses including counsel fees, of every kind, nature, and description arising
out of Licensee's broadcasts under this Agreement; any misrepresentation or
breach of warranty of Licensee contained in this
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Agreement; and any breach of any covenant, agreement, or obligation of Licensee
contained in this Agreement.
(c) Procedure for Indemnification. The party seeking indemnification
under this Section ("Indemnitor") shall give the party from whom it seeks
indemnification ("Indemnitor") prompt notice, as provided herein, of the
assertion of such claim, provided, however, that the failure to give notice of a
claim within a reasonable time shall only relieve the Indemnitor of liability to
the extent it is materially prejudiced thereby. Promptly after receipt of
written notice, as provided herein, of a claim by a person or entity not a party
to this Agreement, the Indemnitor shall assume the defense of such claim;
provided, however, that (a) if the Indemnitor fails, within a reasonable time
after receipt of notice of such claim, to assume the defense thereof, the
Indemnitee shall have the right to undertake the defense, compromise, and
settlement of such claim on behalf of and for the account and risk of
Indemnitor, subject to the right of the Indemnitor (upon notifying the
Indemnitee of its election to do so) to assume the defense of such claim at any
time prior to the settlement, compromise, judgment, or other final determination
thereof; (b) if in the reasonable judgment of the Indemnitee, based upon the
advice of its counsel, a direct or indirect conflict of interest exists between
the Indemnitee and Indemnitor, the Indemnitee shall (upon notifying the
Indemnitor of its election to do so) have the right to undertake the defense,
compromise, and settlement of such claim on behalf of and for the account and
risk of Indemnitor (it being understood and agreed that the Indemnitor shall not
be entitled to assume the defense of such claim; (c) if the Indemnitee in its
sole discretion elects, it shall (upon notifying the Indemnitor of its election
to do so) be entitled to employ separate counsel and to participate in the
defense of such claim, but the fee and expenses of counsel so employed shall
(except as contemplated by clauses (a) and (b) above) be borne solely by
Indemnitee; (d) the Indemnitor shall not settle or compromise any claim or
consent to
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the entry of any judgment that does not include as an unconditional term thereof
the grant by the claimant or plaintiff to each Indemnitee of a release from any
and all liability in respect thereof; and (e) the Indemnitor shall not settle or
compromise any claim in any manner, or consent to the entry of any judgment,
that could reasonably be expected to have a material adverse effect on the
Indemnitee.
(d) Survival. Neither Licensee nor Programmer shall be entitle to
indemnification pursuant to this Section 18 unless such claim for
indemnification is asserted in writing delivered to the other party. The
representations and covenants of Licensee and Programmer and their obligation to
indemnify and hold each other harmless as set forth in this Agreement shall
survive any termination of this Agreement and shall continue until the
expiration of any applicable statutes of limitations as to the parties hereto
and to claims of third parties.
19. Insurance. Programmer will provide at its expense and will name
Licensee as an additional insured on any policy held by Programmer which insures
against a risk described in Section 18 and will within FIFTEEN (15) days
following the execution of this Agreement deliver to Licensee a certificate to
that effect.
20. Events of Default; Cure Periods and Remedies.
(a) Events of Default. The following shall constitute Events of
Default under this Agreement
(i) This Agreement is declared invalid or illegal in whole or
material part by an order or decree of the FCC or any other administrative or
judicial authority with jurisdiction;
(ii) The other party is in material breach of any
representations, covenant, condition or undertaking hereunder and has failed to
cure such breach within TEN (10) days of notice from the non-breaching party;
(iii) The mutual written consent of both parties;
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(iv) There has been a change in FCC rules, policies or case
law precedent that would cause this Agreement or any provision thereof to be in
violation thereof and such change is not the subject of an appeal or further
administrative or judicial review.
(v) If either party shall make a general assignment for the
benefit of creditors, files or has filed against it in a petition for
bankruptcy, for reorganization, or for the appointment of a receiver, trustee or
similar creditors' representative for the property or assets of such party under
any federal or state insolvency law which, if filed against such party, has not
been dismissed or discharged within sixty (60) days thereafter.
(b) Termination Upon Default. Upon the occurrence of an Event of
Default, the non-defaulting party may terminate this Agreement, provided that it
is not also in material default under this Agreement. If Programmer has
defaulted in the performance of its obligations, Licensee shall have available
to it all available remedies at law or equity. Upon termination of this
Agreement according to the provisions of this Section 20, the payments,
reimbursements and fees provided for hereunder shall be prorated to the
termination date of this Agreement. All amounts accrued or payable to Licensee
up to the termination which have not been paid, less any payment credits
outstanding in favor of Programmer, shall immediately become due and payable,
and Licensee shall be under no further obligation to make available to
Programmer any broadcast time or broadcast transmission facilities, provided
that Licensee agrees to cooperate reasonably with Programmer to discharge in
exchange for reasonable compensation any remaining obligations of Programmer in
the form of air time following the effective date of termination. If Licensee
has defaulted, Programmer shall have available all remedies at law or equity
including specific performance.
(c) Liabilities Upon Termination. Programmer shall be responsible
for all of its liabilities, debts and obligations accrued from the purchase of
broadcast time of the
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Stations, including without limitation, indemnifications pursuant to Section
8(a) hereof, and accounts payable. Programmer shall in addition be liable for
all damages available at law or equity for breach of the Agreement. Upon
termination, Programmer shall return to Licensee any equipment or property of
the Stations used by Programmer, its employees or agents, in substantially the
same condition as such equipment existed on the date of this Agreement, ordinary
wear and tear excepted, provided that Programmer shall have no liability to
Licensee for any property of Licensee which through ordinary use became obsolete
or unusable, and any equipment purchased by Programmer, whether or not in
replacement of any obsolete or unusable equipment of Licensee, shall remain the
property of Programmer. Licensee shall be liable for all remedies available to
Programmer at law or equity.
21. Options to Terminate.
(a) Programmer's Option to Terminate. (1) Programmer shall have the
right, at its option, to terminate this Agreement at any time if Licensee
preempts or substitutes
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other programming for that supplied by Programmer during ten percent or more of
the total hours of operation of the Stations in any seven consecutive days.
Programmer shall give Licensee fifteen (15) days notice of such termination.
(b) Licensee's Option to Terminate. Licensee shall have the right to
terminate this Agreement at any time if necessary and in the public interest in
order to fulfill its obligations as an FCC licensee if Programmer materially
violates FCC rules, regulations or policies.
22. [INTENTIONALLY LEFT BLANK]
23. Modification and Waiver. No modification or waiver of any provision of
this Agreement shall in any event be effected unless the same shall be in
writing signed by both parties, and then such waiver and consent shall be
effective only in the specific instance and for the purpose for which given.
24. No Waiver: Remedies Cumulative. No failure or delay on the part of
Licensee or Programmer in exercising any right or power under this Agreement
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 the parties
to this Agreement are cumulative and are not exclusive of any right or remedies
which either may otherwise have.
25. Construction. This Agreement shall be construed in accordance with the
laws of the State of South Carolina. The obligations of the parties to this
Agreement are subject to all federal, state or local laws or regulations,
including those of the FCC, now or hereafter in force.
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26. Headings. The headings contained in this Agreement are included for
convenience only and shall not in any way alter the meaning of any provision.
27. Successors and Assigns. This Agreement shall be binding upon and inure
to the benefit of the parties and their respective assigns provided, however,
neither Licensee's nor Programmer's interest may not be assigned to any entity
without the prior written approval of the other party.
28. Counterpart Signatures. This Agreement may be signed in one or more
counterparts, each of which shall be deemed a duplicate original and be binding
on the parties to this Agreement.
29. Notice. Any notice required hereunder shall be in writing and shall be
sufficiently given if delivered by facsimile or overnight delivery service or
sent by registered or certified mail, return receipt requested, or similar means
of communication addressed as follows:
If to Licensee: Pamplico Broadcasting, L.P.
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▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇
Tel: ▇▇▇-▇▇▇-▇▇▇▇
Fax: ▇▇▇-▇▇▇-▇▇▇▇
With a copy to ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, PLC
▇▇▇▇ ▇. ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇, Esquire
Tel: ▇▇▇-▇▇▇-▇▇▇▇
Fax: ▇▇▇-▇▇▇-▇▇▇▇
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If to Programmer: Cumulus Broadcasting, Inc.
c/o QUAESTUS Management Corp.
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Attention: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Tel: ▇▇▇-▇▇▇-▇▇▇▇
Fax: ▇▇▇-▇▇▇-▇▇▇▇
With a copy to: Cumulus Broadcasting, Inc.
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Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Tel: ▇▇▇-▇▇▇-▇▇▇▇
Fax: ▇▇▇-▇▇▇-▇▇▇▇
30. Entire Agreement. This Agreement and Attachments 1, 2, and 3 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.
31. Severability. Except as otherwise provided in Section 3, in the event
that any provision contained in this Agreement is held to be invalid, illegal or
unenforceable it shall not affect any other provision hereof, and this Agreement
shall be construed as if such invalid, illegal or unenforceable provisions had
not been contained herein.
32. FCC Compliance. Programmer and Licensee agree to modify this Agreement
to comply with any relevant FCC regulations or precedent, provided, however,
that if such modification is unacceptable to Licensee or Programmer either may
terminate this Agreement.
33. Compliance with Multiple Ownership Rules. Licensee and Programmer
warrants that to the best of each of their knowledge, this Agreement is not in
violation of the Commission's multiple ownership rules or any other related
rule.
34. No Partnership or Joint Venture. This Agreement is not intended to be
and shall not be construed as a Partnership or Joint Venture Agreement between
the parties.
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Except as otherwise specifically provided in this Agreement, no party to this
Agreement shall be authorized to act as agent of or otherwise represent any
other party to this Agreement.
35. Attorney's Fees. In any act or proceeding brought to enforce any
rights or obligations hereunder, the prevailing party shall be entitled to
receive reimbursement for its reasonable attorney's fees and related costs.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first above written.
LICENSEE:
PAMPLICO BROADCASTING, L.P.
By_______________________________
General Partner
BROKER:
CUMULUS BROADCASTING, INC.
By:______________________________
Title:___________________________
ATTACHMENT 1
CALCULATION AND PAYMENT OF LMA FEE
Programmer shall reimburse Licensee for all expenses incurred in the
operation of the Stations under this Agreement, including but not limited to
studio rent, tower rent, utilities, postage, salaries and other expenses for
Licensee's employees, and music licensing fees. In addition, Programmer shall
pay the debt service on the following Licensee loan in connection with the
Stations:
$15,000 per month due on the 5th day of each month under that
certain Promissory Note from Licensee to Nation's Bank.
Programmer shall gather all invoices for the foregoing expenses received
by the Stations and provide to Licensee a list of all expenses along with a
check (or wire transfer of immediately available funds) at lease three days
prior to the date on which such expenses are due.
Licensee will timely make all payments after receipt of invoices and funds
from Programmer.
In the event that Programmer fails to make the debt service payments or to
provide the necessary funds for payment of the operating expenses of the station
within 10 days of the date due, then Licensee shall have the right to make such
payment directly and Programmer shall be obligated to pay Licensee an amount
equal to the charge imposed on Licensee for such late payment.
On the execution date of this Agreement, Broker shall advance to License,
by wire transfer of immediately available funds, $50,000 against the fees due to
Licensee hereunder. In the event that the Closing under the Asset Purchase
Agreement ("APA") between Licensee and Broker is consummated before the fees
owed by Broker to Licensee hereunder reach $50,000, then an amount equal to
$50,000 less the fees accruing as provided above up to the Closing Date, as
defined in the APA, shall be credited against the Purchase Price, as such term
is defined in the APA, on the Closing Date.
ATTACHMENT 2
PROGRAMMING POLICY STATEMENT
Programmer agrees to cooperate with Licensee in the broadcasting of
programs in a manner consistent with the standards of Licensee, as set forth
below:
1. Election Procedures. At least ninety (90) days before the start of any
primary or regular election campaign, Programmer will coordinate with Licensee's
General Manager the rate Programmer will charge for time to be sold to
candidates for public office and/or their supporters to make certain that the
rate charged conforms to all applicable laws and Station policy. Throughout a
campaign, Programmer will comply with all applicable laws and rules concerning
political candidacy broadcasts and will promptly notify Licensee's General
Manager of any disputes concerning either the treatment of or rate charged a
candidate or supporter.
2. Required Announcements. Programmer shall broadcast: (a) an announcement
in a form satisfactory to licensee at the beginning of each hour to identify the
Stations; (b) an announcement at the beginning and end of each program, and
hourly, as appropriate, to indicate that program time has been purchased by
Programmer; and (c) any other announcement that may be required by law,
regulation, or Stations policy.
3. Commercial Record keeping. Programmer shall maintain such records of
the receipt of, and provide such disclosure to Licensee of, any consideration
whether in money, goods, services, or otherwise, which is paid or promised to be
paid, either directly or indirectly, by a person or company for the presentation
of any programming over the Stations as are required by Sections 317 and 507 of
the Communications Act and the rules and regulations of the FCC.
4. No Illegal Announcements. No announcements or promotion prohibited by
federal or state law or regulation of any lottery, game or contest shall be made
over the Stations.
5. Licensee Discretion Paramount. In accordance with Licensee's
responsibility under the Communications Act of 1934, as amended, and the rules
and regulations of the FCC, Licensee reserves the right to reject or terminate
any advertising or other programming proposed to be presented or being presented
over the Stations which is in conflict with law, regulation, Station policy or
which in the reasonable judgment of Licensee or its General Manager not to serve
the public interest.
6. Indecency, Hoaxes. No programming violative of applicable laws and
rules concerning indecency or hoaxes will be broadcast over Stations.
7. Controversial Issues. Any broadcast over the Stations concerning
controversial issues of public importance shall comply with the then current FCC
rules and policies.
8. Commercials. Programmer will provide, for attachment to the Station
logs, a list of all commercial announcements carried during its programming.
Licensee may waive any of the foregoing regulations in specific instances
if, in its reasonable opinion, good broadcasting in the public interest will be
served thereby. In any case where questions of policy or interpretation arise,
Programmer shall notify Licensee before making any commitments to broadcast any
programming affected by such issues.
ATTACHMENT 3
City of _______________________)
County of _____________________) ss
State of ______________________)
ANTI-PAYOLA/PLUGOLA AFFIDAVIT
_______________________, being first duly sworn, deposes and says as
follows:
A. I am ______________________________ for _______________________.
(Position)
B. I have acted in the above capacity since ____________.
C. No matter has been broadcast by Station __________________ for which
service, money or other valuable consideration has been directly or indirectly
paid, or promised to, or charged, or accepted, by me from any person, which
matter at the time so broadcast has not been announced or other indicated as
paid for or furnished by such person.
D. So far as I am aware, no matter has been broadcast by Station
_____________ for which service, money, or other valuable consideration has been
directly or indirectly paid, or promised to, or charged, or accepted by
Station(s) or by any independent contractor engaged by Station(s) in furnishing
programs, from any person, which matter at the time so broadcast has not been
announced or otherwise indicated as paid for or furnished by such person.
E. In the future, I will not pay, promise to pay, request, or receive any
service, money, or any other valuable consideration, direct or indirect, from a
third party, in exchange for the influencing or, or the attempt to influence,
the preparation or presentation of broadcast matter on Stations _______________.
F. Nothing contained herein is intended to or shall prohibit acceptance or
receipt of anything with the expressed knowledge and approval of my employer,
but
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henceforth any such approval must be given in writing by someone expressly
authorized to give such approval.
G. I, my spouse and my immediate family do/do not have any present direct
or indirect ownership interest in (other than an investment in a corporation
whose stock is publicly held), serve as an officer or director of, whether with
or without compensation, or serve as an employee of, any person, firm or
corporation engaged in:
1. The production of radio programming;
2. The production, distribution (including wholesale and retail
sales outlets), manufacture or exploitation of video, programming, music, films,
tapes, recordings, or electrical transcriptions or any program material intended
for television broadcast use;
3. The exploitation, promotion, or management of persons rendering
artistic, production and/or other services in the entertainment field;
4. The ownership or operation of one or more radio or television
stations;
5. The wholesale or retail sale of video materials intended for
public purchase;
6. Advertising on Station______________, or any other station owned
by its licensee (excluding nominal stock holdings in publicly owned companies).
7. The facts and circumstances related to such interest are none/as
follows:
By: ____________________
Sworn and subscribed to before me
this _____ day of ___________, 199_.
____________________________________
Notary Public
My Commission Expires: ______________
EXHIBIT B
LOCAL MARKETING AGREEMENT
This Local Marketing Agreement (this "Agreement") is entered into as of
January 16, 1998 (the "Effective Date") by and among Cumulus Broadcasting, Inc.,
a Nevada corporation ("Programmer"), and Benchmark Radio Acquisition Fund IV
Limited Partnership, a Maryland limited partnership, WOSC License Limited
Partnership, a Maryland limited partnership, and WWFG License Limited
Partnership, a Maryland limited partnership (collectively, "Licensee"), licensee
of Radio Stations WOSC-FM (▇▇▇▇▇▇▇ Beach, Delaware) and WWFG-FM (Ocean City,
Maryland) (the "Stations").
RECITALS
A. Licensee holds licenses from the Federal Communications Commission
("FCC" or "Commission") authorizing it to operate the Stations. Licensee is
engaged in the business of radio broadcasting on the Stations, and has available
for sale broadcast time on the Stations. Programmer and Licensee are parties to
that certain letter agreement dated of even date herewith (the "Purchase
Agreement") which contemplates that Programmer and Licensee will enter into this
Agreement.
B. Programmer desires to purchase time on the Stations for the broadcast
of programming on the Stations and to sell all of the commercial advertising
time inventory of the Stations. Licensee desires to make available and sell such
commercial advertising time to Programmer. Accordingly, in consideration of the
mutual covenants herein contained, Programmer and Licensee are entering into
this Agreement.
AGREEMENT
1. Time Sale. Subject to the provisions of this Agreement, from and after
the Commencement Date set forth in Paragraph 3 below, Licensee agrees to make
the Stations' broadcasting transmission facilities (consisting of all of the
Assets described in the Purchase Agreement) available to Programmer for
broadcast of Programmer's programs on the Stations originating from Licensee's
studios. The risk of loss with respect to the broadcasting transmission
facilities consisting of all of the Assets described in the Purchase Agreement
will remain with Licensee. The Stations' time made available to Programmer is,
subject to all other provisions of this Agreement, up to twenty-four (24) hours
of programming each day during the term of this Agreement, except that Licensee
reserves two (2) hours per week of each Station's time for its own use at a
mutually agreeable time between 5:00 a.m. and 9:00 a.m. on Sunday mornings.
Programmer will use commercially reasonable efforts to provide programming which
fills the Stations' time made available hereunder.
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2. Payments. During each Month (as defined below) of the term of this
Agreement, (a) commencing on the Commencement Date set forth in Paragraph 3
below, Programmer agrees to reimburse Licensee for all reasonable, customary and
usual operating expenses of each Station, including, but not limited to, the
following verifiable, reasonable, customary and usual operating expenses of such
Station: (i) the compensation of the Licensee's employee serving as such
Station's general manager, and of the Licensee's employee or independent
contractor serving as such Station's engineer, not to exceed $4,200 per month in
the aggregate for both such persons per Station, (ii) the employee benefits and
payroll tax costs of such two persons not to exceed $475 per month in the
aggregate for both such persons per Station, (iii) the electricity costs for
such Station's transmitters, and (iv) the general property and casualty and
general liability insurance costs related to such Station, all of such expenses
being referred to as "Licensee's Operating Expenses" and such payment being
referred to as the "Operating Expense Payment" and such reimbursement to be made
in cash or by check within ten (10) business days after receipt by Programmer
from Licensee of a written account (each, a "Monthly Expense Report") of
Licensees Operating Expenses for such Month; and (b) pay Licensee in cash or by
check the amount of the greater of (i) fifty percent of the previous month's
Broadcast Cash Flow (as defined below) of the Stations and (ii) $10,000, payable
on the first business day of each month during the term of this Agreement (the
"LMA Fee Payment"). For purposes of this Agreement "Broadcast Cash Flow" means
the aggregate revenues, net of commissions, of the Stations minus the aggregate
operating expenses of the Stations, determined in accordance with generally
accepted accounting principles, consistently applied, excluding (a)
depreciation, amortization and other non-cash expenses, (b) interest expense,
(c) income taxes, (d) expenses associated with equity-based incentive and
compensation plans and equity interests in the Stations held by employees, (e)
prepaid expenses incurred in 1997 for services to be provided in 1998 or
afterwards, (f) management fees, (g) corporate overhead allocated to the
Stations, (h) revenue and expenses of trade deals, (i) gains and losses from
sales of fixed assets, (j) repairs and maintenance expenditures in excess of
$1,000 per expenditure, (k) expenses associated with discontinued programming,
(l) legal fees and other expenses (including any bonus payments or severance
expenses) incurred in connection with this Agreement or the Purchase Agreement
and the transactions contemplated thereby, (m) expenses associated with other
nonrecurring items, and (n) the LMA Fee Payment. Payment of all amounts due
under this Paragraph 2 for any partial Month of this Agreement shall be prorated
on a daily basis. Should this Agreement terminate upon the transfer of the
Stations to Programmer pursuant to the Purchase Agreement, the final Operating
Expense Payment and LMA Fee Payment will be made at the Closing, subject to any
adjustment required under Section 3 of the Purchase Agreement. For the purposes
of this Agreement, a "Month" means a calendar month. Licensee agrees to provide
Programmer such records, receipts, copies of contracts and other information and
documentation as Programmer may reasonably request in order to enable it to
verify Licensee's Monthly Expense Reports, and Programmer agrees to provide
Licensee such records, receipts, copies of contracts and other information and
documentation as Licensee may reasonably request in order to enable Licensee to
verify Broadcast Cash Flow calculations. In the event Programmer shall notify
Licensee in writing that it disputes a Month Expense Report or Licensee shall
notify Programmer in writing that it disputes a calculation of Broadcast Cash
Flow, which writing shall describe the reason for such dispute, the parties will
use commercially reasonable efforts to resolve such dispute. If the parties are
unable to resolve the dispute within 10 days, either party may cause the dispute
to be submitted to Ernst & Young which
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shall be directed to submit a final resolution within 15 days of submission. The
parties shall bear their own expenses in connection with resolving any such
dispute and shall bear equally any fees and expenses of Ernst & Young.
Programmer's obligation to reimburse any disputed Licensee's Operating Expenses
and disputed LMA Fee Payment amount shall be suspended pending resolution of any
such dispute, but such suspended amounts will bear 12% interest if ultimately
determined to be payable to Licensee.
3. Term. Subject to paragraph 17, the term of this Agreement shall
commence at 12:01 a.m., Eastern Time, on February 1, 1998 (the "Commencement
Date"), and shall continue until the first to occur of (a) the date of closing
of the sale of the assets of the Stations contemplated by the Purchase Agreement
(the "Closing"), or (b) the termination prior to the Closing of the Purchase
Agreement in accordance with its terms, subject to extension with the mutual
written consent of Programmer and Licensee.
4. Programs. Programmer shall furnish or cause to be furnished the
artistic personnel and materials for its programming. Programmer represents and
warrants that all of the programming, advertising and promotional material it
broadcasts on the Stations shall be in accordance with the rules, regulations,
policies and procedures of the Commission and the Communications Act of 1934, as
amended (the "Communications Act"), and the reasonable standards established by
Licensee. Programmer shall not change the format of a Station without the prior
written consent of Licensee.
5. Accounts Receivable.
(a) General. The parties agree that Programmer will use commercially
reasonable efforts (but without obligation to institute legal or collection
proceedings) to collect accounts receivable for performed advertising contracts
identified and valued as of the Commencement Date, which efforts shall continue
for one hundred twenty (120) days from the Commencement Date or until
termination of this Agreement, whichever comes first (the "Collection Period").
Such collections shall be distributed between Programmer and Licensee in the
manner described in Paragraph 5(b) below. Within three days following the
Commencement Date, Licensee will provide Programmer with a detailed list of such
accounts receivable. At the end of the Collection Period, Programmer shall turn
over any such accounts receivable that remain uncollected to Licensee. All
accounts receivable of Programmer created on or after the Commencement Date
shall be and remain the sole property of Programmer. Programmer shall be
responsible for the collection of Programmer's accounts receivable and shall
retain ownership of such accounts upon termination of this Agreement.
(b) Remittance. Within five business days after the end of the
Collection Period, Programmer shall remit to Licensee all of Licensee's accounts
receivable for performed advertising contracts identified and valued as of the
Commencement Date, and collected by Programmer during the Collection Period. All
amounts collected with respect to a particular customer shall be applied first
to the oldest receivable relating to that customer; provided, however, that if
the customer shall specify that its payment is to be applied to a specific
receivable or invoice of Licensee or
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Programmer, such collection shall be so applied and paid to such Licensee or
Programmer, as appropriate. Licensee and Programmer agree that they shall take
no actions to influence or require any customer to specify that such customer's
payments are to be applied to a specific receivable or invoice.
(c) Carryover Accounts. Programmer will assume the obligation to
provide advertising time on the Stations in consideration of Licensee's trade
accounts in existence as of the Commencement Date. Programmer will perform all
of Licensee's obligations under existing long-term contracts for the sale of
advertising time on the Stations and will be entitled to all the proceeds of
accounts receivable pertaining to performance after the Commencement Date.
6. Stations Facilities.
(a) Licensee Responsibility. During the term of this Agreement,
Programmer shall be responsible for those expenses of the Stations described in
Paragraph 9 below and shall reimburse the Licensee for those expenses described
in Paragraph 2 above. Licensee shall be responsible for, and pay in a timely
manner, all capital and other operating expenses associated with owning and
controlling the Stations during the term of this Agreement. Licensee shall be
responsible for the Stations' compliance with all applicable provisions of the
Communications Act, the rules, regulations, policies and procedures of the FCC,
and all other applicable laws. Licensee represents that it now holds all permits
and authorizations necessary for the operation of the Stations, including all
FCC permits and authorizations, and that all such permits and authorizations are
in full force and effect. Licensee will continue to hold such permits and
authorizations throughout the term of this Agreement. Licensee represents that
there is not now pending or, to Licensee's knowledge, threatened, any action by
the FCC or other party to revoke, cancel, suspend, refuse to renew or modify
adversely any of the licenses, permits or authorizations necessary to the
operation of the Stations, and no event has occurred that allows or, after
notice or lapse of time or both, would allow, the revocation or termination of
such licenses, permits or authorizations or the imposition of any restriction
thereon of such a nature that may limit the operation of the Stations as
presently conducted. Licensee has no reason to believe that any such license,
permit or authorization will not be renewed in its ordinary course. Licensee
shall make its transmitter, transmitter building and tower site available to
Programmer, at no additional charge, for the placement and use of broadcast
equipment Programmer reasonably deems necessary to fulfill its responsibilities
under this Agreement.
(b) Broadcast Output. Licensee represents that each Station's
facilities and equipment do and will comply and are and will be operated in
accordance with good engineering standards necessary to deliver a high-quality
technical signal at such Station's maximum power and coverage, comply with all
applicable laws and regulations (including the requirements of the
Communications Act, and the rules, regulations, policies and procedures of the
FCC) and broadcast to the full power and height authorized for it by the FCC.
Licensee is not in material violation of any statute, ordinance, rule,
regulation, order or decree of any federal, state, local or foreign governmental
agency, court or authority having jurisdiction over it or over any part of its
operations
B-4
or assets, which material default or violation would have an adverse effect on
Licensee or its assets or on its ability to perform this Agreement. During the
term hereof, Licensee agrees to maintain the transmission facility and the
broadcast output in a high quality condition, with the same quality of output,
normal wear and tear excepted, to broadcast to the maximum power, coverage and
height as Licensee is presently authorized by the FCC and to make improvements
in the facility as may be reasonably necessary to maintain the transmission
facility and broadcast output at a high quality level and at maximum power and
coverage.
(c) Maintenance. Licensee shall maintain the ability to operate its
maximum authorized facilities at all times. Any maintenance work, other than
emergency repairs, which prevents the operation of either Station at full power
and maximum facilities, shall not be scheduled without giving at least
forty-eight (48) hours notice to Programmer, unless Programmer waives such
notice.
7. Handling of Mail and Complaints. Programmer shall promptly forward to
Licensee any mail which it may receive from any agency of government or any
correspondence from members of the public relating to the Stations or to any of
Programmer's programming broadcast on the Stations.
8. Programming and Operations Standards. Programmer recognizes that the
Licensee has full authority and a duty to control the operation of the Stations.
The parties agree that Licensee's authority includes, but is not limited to, the
right to reject or refuse such portions of Programmer's programming which
Licensee reasonably believes to be contrary to the public interest. Should
Licensee reject any of Programmer's programming pursuant to this paragraph, the
payments, reimbursements and fees provided for hereunder shall be prorated
accordingly.
9. Responsibility for Employees and Expenses.
(a) Employment by Programmer of Licensee's Employees. Effective on
the Commencement Date, Programmer will hire those current employees of the
Stations other than (i) those necessary for Licensee to perform its obligations
under all applicable FCC regulations and this Agreement, and (ii) those
designated by Programmer in a written notice given to Licensee prior to the
Commencement Date. Programmer shall employ such persons on such terms as it
shall deem appropriate. Programmer shall not assume any payment in connection
with any group medical, group insurance or pension plan of Licensee associated
with such employees, nor assume responsibility for any compensation, benefits or
other costs or liabilities of Licensee related to such employees and relating to
the period prior to the Commencement Date including any salaries, wages, sales
commissions, incentives, bonuses, accrued and unpaid vacation, holiday and sick
pay or obligations under Licensee's benefit plans, nor does Programmer assume
any employment contracts between Licensee and any such employees. If the Closing
under the Purchase Agreement is not consummated as contemplated therein, the
employment of such employees will be assigned back by Programmer to Licensee and
Licensee will accept such assignment, and such employees shall cease to
participate in Programmer's benefit plans described in Paragraph 9(b) below.
Licensee represents and warrants to Programmer that all of the Stations'
employees are at-will employees.
B-5
(b) Employees. During the term of this Agreement, except for those
employees retained by Licensee as contemplated by Paragraph 9(a) above and
except as otherwise specifically provided in Paragraph 9(a) above, Programmer
shall employ and be responsible for the salaries, commissions, taxes, insurance,
vacation, sick leave and all other related costs, for the period from and after
the Commencement Date, of all employees referenced in Paragraph 9(a) above
assigned to Programmer by Licensee and hired by Programmer, together with any
other employees, agents, contractors and personnel of Programmer involved in the
production and broadcast of its programming, including air personalities,
salespersons, sales representatives, consultants, traffic personnel, board
operators and other programming staff members. During the term of this
Agreement, Programmer shall enroll all former employees of Licensee assigned to
Programmer by Licensee and hired by Programmer under Paragraph 9(a) above in
such group medical, group insurance and/or pension plans as Programmer
customarily enrolls its employees.
(c) Expenses. During the term of this Agreement, Licensee shall
maintain in full force and effect insurance with reputable insurers covering
such risks to the Assets described in the Purchase Agreement, and in such
amounts and on such items, as are customary for radio stations with facilities
comparable to the Stations. During the term of this Agreement, Programmer shall
pay directly on a current basis licensing fees required to be paid to ASCAP, BMI
and SESAC, and any other copyright or programming rights fees, in each case
attributable to programming broadcast on the Stations by Programmer during the
term of this Agreement. Upon execution of this Agreement, Programmer shall apply
promptly to ASCAP, BMI and SESAC for the necessary licenses and permits for
Programmer to provide programming in its own name over the Stations during the
term of this Agreement. Beginning on the Commencement Date, Programmer will pay
directly on a current basis to third parties on behalf of Licensee all other
fees and payments relating to the period of the term of this Agreement which are
due and payable by Licensee under Assumed Contracts for programming disclosed in
the Purchase Agreement (other than those included among the Excluded Assets as
defined therein) and will be entitled to the benefits under such Assumed
Contracts for programming.
10. Advertising and Programming Revenues. Programmer shall retain all
revenues from the sale of advertising time on the programming it broadcasts on
the Stations. Programmer will provide, make available to and shall sell time to
political candidates from the time it purchases from Licensee in strict
compliance with the Communications Act and the rules, regulations, policies and
procedures of the Commission.
11. Operation of Stations. Anything to the contrary in this Agreement
notwithstanding, Licensee shall have full authority and power over the operation
of the Stations during the term of this Agreement. Licensee shall be responsible
for all programming it furnishes for broadcast on the Stations and for the
payment of the salaries of all of its employees, all of whom shall report solely
to and be accountable solely to the Licensee. At a minimum, during the term of
this Agreement, the Licensee shall employ a General Manager for each Station who
shall direct the day-to-day operation of such Station, and an engineer for each
Station who shall oversee and direct the engineering and technical operation of
such Station. Licensee shall retain the right to interrupt and discontinue
Programmer's programming at any time if Licensee determines the programming is
not in the public
B-6
interest or violates this Agreement, or in case of an emergency or EBS/EAS
system activation, or for the purpose of providing programming which Licensee in
its sole discretion determines to be of greater national, regional or local
importance, whereupon, the payments, reimbursements and fees provided for in
Paragraph 2 above shall be reduced by a percentage amount equal to the
percentage that the amount of Programmer's programming that is not carried bears
to the total programming time allowed Programmer, pursuant to Paragraph 1 above.
Programmer shall properly prepare and promptly provide to Licensee (a) all its
contracts, agreements and requests for time for political programming or
programming addressing controversial issues of public importance; (b) all
records, complaints and reports of every kind whatsoever which may be required
by the FCC to be maintained or filed with the FCC by each Station as a result of
Programmer's programming over such Station; and (c) full information with
respect to Programmer's programs and public service announcements which are
responsive to issues of public concern in sufficient detail to enable Licensee
to timely prepare all appropriate or necessary records and reports required by
the Commission and its rules and policies concerning such Station's operations.
Programmer will properly prepare and furnish to Licensee such information,
records and reports relating to Programmer's programming, sales or employment
practices at each Station in sufficient detail as is necessary to enable
Licensee to comply with all rules and policies of the FCC or any other
governmental agency.
12. Station Identification. Licensee will be responsible for ensuring the
proper broadcast of station identification announcements. However, Programmer
will provide appropriate station identification announcements which comply with
FCC requirements in a form acceptable to Licensee.
13. Right to Use the Programs. The right to use Programmer's programs and
to authorize their use in any manner and in any media whatsoever shall be, and
remain, vested in Programmer.
14. Payola/Plugola. Programmer agrees that neither it nor its agents,
employees, consultants or personnel will accept any consideration, compensation,
gift or gratuity of any kind whatsoever, regardless of its value or form,
including, but not limited to, a commission, discount, bonus, material, supplies
or other merchandise, services or labor (collectively "Consideration"), whether
or not pursuant to written contracts or agreements between Programmer and
merchants or advertisers, unless the payer is identified in the program for
which Consideration was provided as having paid for or furnished such
Consideration, in accordance with the Communications Act and FCC requirements.
15. Compliance with Law. Programmer agrees that, throughout the term of
this Agreement, Programmer will comply in all material respects with all laws,
rules, regulation, policies and procedures including, but not limited to, the
FCC's technical, political broadcasting, obscenity and indecency regulation,
fair trade practice regulations, lottery broadcast regulations, sponsorship
identification rules and sales practice regulations, that are applicable to the
operations of the Stations, and all FCC rules applicable to programming
agreements of this kind. Programmer acknowledges
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that Licensee has not urged, advised or consented to or agreed in any way
whatsoever to the use of any unfair business practice.
16. Indemnification.
(a) Programmer's Indemnification. Programmer shall indemnify and
hold Licensee harmless for any material loss, damage or injury of any kind
sustained by Licensee resulting from Programmer's breach of this Agreement, from
any programming material broadcast by Programmer on each Station, from the sale
of or attempt by Programmer to sell advertising or program time on such Station
and from any material act or omission of any kind whatsoever by Programmer.
(b) Licensee's Indemnification. Licensee shall indemnify and hold
Programmer harmless for any material loss, damage or injury of any kind
sustained by Programmer resulting from Licensee's breach of this Agreement, from
the broadcast of programming on the Stations furnished by Licensee, from the
sale of or attempt by Licensee to sell advertising or program time on the
Stations, and from any material act or omission of any kind whatsoever by
Licensee.
(c) Survival. Neither Licensee nor Programmer shall be entitled to
indemnification pursuant to this Section 16 unless such claim for
indemnification is asserted in writing delivered to the other party. The
representations and covenants of Licensee and Programmer and their obligation to
indemnify and hold each other harmless as set forth in this Agreement shall
survive any termination, and shall continue for a period of two years after the
termination of this Agreement as to the parties hereto and to claims of third
parties.
17. Termination and Remedies Upon Default.
(a) Termination. In addition to other remedies available at law or
equity, this Agreement may be terminated as set forth below by either Licensee
or Programmer by written notice to the other if the party seeking to terminate
is not then in material default or breach thereof, upon the occurrence of any of
the following:
(i) Subject to Section 26, this Agreement is declared invalid
or illegal in whole or material part by an order or decree of the FCC or
any other administrative agency or court of competent jurisdiction,
including but not limited to U.S. Bankruptcy Court, and such order or
decree has become final and no longer subject to further administrative or
judicial review;
(ii) The other party is in material breach of its obligations
hereunder and has failed to cure such breach within thirty (30) days of
notice from the non-breaching party;
(iii) The mutual consent of both parties;
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(iv) By Programmer if the FCC license to operate either of the
Stations is revoked, terminated or modified in such a manner as to have a
material adverse impact on the operations, condition (financial or
otherwise) or prospects of such Station and such revocation, termination
or modification is not due to the fault of Programmer; or
(v) Subject to the provisions of Section 26, there has been a
change in FCC rules, policies or case law precedent that would cause this
Agreement or any provision thereof to be in violation thereof and such
change is not the subject of an appeal or further administrative review.
Upon termination of this Agreement according to the provisions of this Paragraph
17, the payments, reimbursements and fees provided for hereunder shall be
prorated to the effective date of termination. Licensee shall cooperate
reasonably with the Programmer to the extent permitted to enable Programmer to
fulfill advertising or other programming contracts then outstanding, in which
event Licensee shall receive as compensation for the carriage after the
termination date of such advertising or programming that which otherwise would
have been paid to Programmer hereunder.
(b) Programmer's Additional Remedies for Licensee's Technical
Operation Deficiencies. In addition to Programmer's right to terminate for
reasons set forth in Paragraph 17(a) above, if either Station suffers any damage
to its transmission facilities through no fault of Programmer which results in
the inability of such Station to operate with its presently authorized
facilities at maximum power and coverage and Licensee has not restored full-time
operation of such Station with its presently authorized facilities at maximum
power and coverage within fourteen (14) days of any such occurrence, Programmer
may give notice to Licensee of Programmer's termination of this Agreement in
which event this Agreement shall terminate upon the giving of such notice, any
other provision of this Agreement notwithstanding. For each day that either
Station is not operating its authorized facilities at maximum power and
coverage, the payments due with respect to such Station pursuant to Paragraph 2
above shall be reduced by a percentage amount equal to the percentage that the
amount of time of reduced power operation bears to the number of hours
Programmer may broadcast pursuant to Paragraph 1 above.
(c) Programmer's Additional Termination Rights. Anything herein to
the contrary notwithstanding and in addition to Programmer's termination rights
in Paragraphs 17(a) and (b) above, Programmer shall have the right to terminate
this Agreement upon the event that Licensee makes a general assignment for the
benefit of creditors, files or has filed against it a petition for bankruptcy,
reorganization or an arrangement for the benefit of creditors, or for the
appointment of a receiver, trustee or similar creditors' representative for the
property or assets of Licensee under any federal or state insolvency law, which
if filed against Licensee, has not been dismissed within sixty (60) days
thereof.
(d) Licensee's Additional Termination Rights. Anything herein to the
contrary notwithstanding and in addition to Licensee's termination rights in
Paragraph 17(a) above, Licensee shall have the right to terminate this Agreement
upon the event that Programmer makes a general assignment for the benefit of
creditors, files or has filed against it a petition for bankruptcy,
B-9
reorganization or an arrangement for the benefit of creditors, or for the
appointment of a receiver, trustee or similar creditors' representative for the
property or assets of Programmer under any federal or state insolvency law,
which if filed against Programmer, has not been dismissed within sixty (60) days
therefor.
18. Force Majeure. Subject to paragraph 17(b), any failure or impairment
of facilities or any delay or interruption in broadcast programming, or failure
at any time to furnish facilities, in whole or in part, for broadcasting, due to
any Act of God, strikes or threats thereof or force majeure or due to any other
causes beyond the reasonable control of Licensee or Programmer shall not
constitute a breach of this Agreement, and neither Licensee nor Programmer, as
the case may be, will be liable to the other party hereto therefore, provided
such party uses reasonable diligence to correct such failure or impairment as
soon as is reasonably possible; provided, however, subject to paragraph 17(b),
that Programmer's failure to sell air time or deliver programming or commercial
matter on account of any of the foregoing circumstances shall not release
Programmer from its obligation to make the payments required in Paragraph 2
above during the term of this Agreement.
19. Notices. All notices, requests, consents, waivers and other
communications required or permitted to be given hereunder shall be in writing
and shall be deemed to have been given (a) if transmitted by facsimile, upon
acknowledgment of receipt thereof in writing by facsimile or otherwise; (b) if
personally delivered, upon delivery or refusal of delivery; (c) if mailed by
registered or certified United States mail, return receipt requested, postage
prepaid, upon delivery or refusal of delivery; or (d) if sent by a nationally
recognized overnight delivery service, upon delivery or refusal of delivery. All
notices, consents, waivers or other communications required or permitted to be
given hereunder shall be addressed to the respective party to whom such notice,
consent, waiver or other communication relates at the following addresses:
if to Licensee:
Cumulus Broadcasting, Inc.
▇▇▇ ▇. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇. ▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇. ▇▇▇▇▇
Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇
if to Licensee:
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Benchmark Radio Acquisition Fund IV Limited Partnership
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇.
Telecopy No: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
▇▇▇▇▇▇ & ▇▇▇▇▇▇ L.L.P.
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Telecopy No: (▇▇▇) ▇▇▇-▇▇▇▇
20. Modification and Waiver. No modification or waiver of any provision of
this Agreement shall in any event be affected unless the same shall be in
writing and signed by the party adversely affected by the waiver or
modification, and then such waiver and consent shall be effective only in the
specific instance and for the purpose for which given.
21. Corporate Authority; Construction. The undersigned represent and
warrant that they have full authority to execute and deliver this Agreement on
behalf of the respective parties. This Agreement shall be construed in
accordance with the laws (other than the law of conflicts) of the State of
Maryland, and the obligations of the parties hereto are subject to all federal,
state and local laws and regulations now or hereafter in force and to the rules,
regulations, policies and procedures of the Commission and all other government
entities or authorities presently or hereafter to be constituted.
22. 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.
23. Counterpart Signatures. This agreement may be signed in counterpart
originals, which collectively shall have the same legal effect as if all
signatures had appeared on the same physical document. This Agreement may be
signed and exchanged by facsimile transmission, with the same legal effect as if
the signatures had appeared in original handwriting on the same physical
document.
24. No Partnership or Joint Venture Credited. Programmer is acting as an
independent contractor hereunder and nothing in this Agreement shall be
construed to make Licensee and Programmer partners or joint venturers or to make
Licensee or Programmer the agent of the other or to afford any rights to any
third party other than as expressly provided herein.
25. Assignment; Binding Agreement. Neither Programmer nor Licensee may
assign this Agreement without the prior approval of the other party which shall
not be unreasonably
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withheld or delayed. The party shall communicate its position on any proposed
assignment within fourteen (14) days after receipt of written notice of the
proposed assignment. This Agreement shall be binding upon and inure to the
benefit of the parties and their respective successors and permitted assigns.
26. Severability. In the event any term or provision of this Agreement is
declared to be invalid or illegal for any reason, this Agreement shall remain in
full force and effect and the same shall be interpreted as through such invalid
and illegal provision were not a part hereof. The remaining provisions shall be
construed to preserve the intent and purpose of this Agreement and the parties
shall negotiate in good faith to modify the provisions held to be invalid or
illegal to preserve each party's anticipated benefits thereunder.
27. Entire Agreement. This Agreement supersedes any prior agreements
between the parties, other than the Purchase Agreement and any other agreements
contemplated thereby, and contains all of the terms agreed upon with respect to
the subject matter hereof. This Agreement may not be altered or amended except
by an instrument in writing signed by the party against whom enforcement of any
such change is sought.
28. No Third Party Beneficiaries. This Agreement shall not confer any
benefit on or create any right or cause of action in favor of or on behalf of
any person other than the parties hereto and their respective successors and
assigns as permitted by Paragraph 25 above of this Agreement.
29. Certifications. Licensee hereby certifies that for the term of this
Agreement it shall maintain ultimate control over the Stations' facilities,
including control over the Stations' finances, personnel and programming, and
nothing herein shall be interpreted as depriving Licensee of the power or right
of such ultimate control. Programmer hereby certifies that this Agreement
complies with the provisions of Section 73.3555(a) of the Commission's rules and
regulations.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF, the parties have executed this Agreement to be
effective as of the Effective Date.
PROGRAMMER:
CUMULUS BROADCASTING, INC.
By:______________________________________________
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Chairman
LICENSEE:
BENCHMARK RADIO ACQUISITION FUND IV
LIMITED PARTNERSHIP
By: BENCHMARK COMMUNICATIONS RADIO
LIMITED PARTNERSHIP,
Its General Partner
By: BENCHMARK COMMUNICATIONS
HOLDINGS, INC.,
Its General Partner
By:____________________________
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇.
Vice President
WOSC LICENSE LIMITED PARTNERSHIP
By: BENCHMARK RADIO ACQUISITION
FUND IV LIMITED PARTNERSHIP,
Its General Partner
By: BENCHMARK COMMUNICATIONS
RADIO LIMITED PARTNERSHIP,
Its General Partner
By: BENCHMARK COMMUNICATIONS
HOLDINGS, INC.,
Its General Partner
By:____________________________
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇.
Vice President
WWFG LICENSE LIMITED PARTNERSHIP
By: BENCHMARK RADIO ACQUISITION
FUND IV LIMITED PARTNERSHIP,
Its General Partner
By: BENCHMARK COMMUNICATIONS
RADIO LIMITED PARTNERSHIP,
Its General Partner
By: BENCHMARK COMMUNICATIONS
HOLDINGS, INC.,
Its General Partner
By:____________________________
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇.
Vice President