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EXHIBIT 10.08.01
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LOCAL PROGRAMMING AND MARKETING AGREEMENT
WITH
OPTION TO PURCHASE STATION
This Local Programming and Marketing Agreement with Option to Purchase
Station (the "Agreement"), dated as of August 13, 1999, is entered into by and
between CONCORD MEDIA GROUP, INC. ("Licensee"), and RADIO 1210, INC.
("Programmer").
WHEREAS, Licensee is the owner of certain assets relating to radio
station KCBQ(AM), San Diego, California (the "Station") and holds all of the
licenses and authorizations issued by the FCC for the operation of the Station;
WHEREAS, the Station's transmission facilities are located on real
property (the "Current Site") leased to Licensee pursuant to a lease agreement
expiring approximately on ___________, 200__, and Licensee has been informed
that the Station will not be able continue to use the Current Site following the
expiration of the lease;
WHEREAS, Programmer desires to purchase substantially all of the assets
of the Station, including, without limitation, the licenses and authorizations
issued by the FCC for the operation of the Station, and Seller is willing to
convey such assets to Buyer;
WHEREAS, Programmer does not want enter into any agreement to purchase
the Station unless and until it has secured an interest in real property ("New
Site") which can serve as an adequate replacement for the Current Site,
including any federal, state and local government approvals required for the New
Site,
WHEREAS, in accordance with procedures and policies approved by FCC,
the Programmer desires to avail itself of Station's broadcast time for the
presentation of a programming service, including the sale of program and
advertising time in contemplation of the potential sale of the Station to
Programmer;
WHEREAS, in accordance with procedures and policies approved by the
FCC, Licensee desires to provide to Programmer the Station's broadcast time for
the presentation of a programming service, including the sale of program and
advertising time in contemplation of the potential sale of the Station to
Programmer;
NOW, THEREFORE, for and in consideration of the mutual covenants herein
contained, the parties hereto have agreed and do agree as follows:
1. PURCHASE OF AIR TIME AND BROADCAST OF THE PROGRAMMING. Subject to
the provisions of Section 4 hereof, Licensee agrees to make the broadcasting
transmission facilities of the Station available to the Programmer and to
broadcast on the Station, or cause to be broadcast, the Programmer's programs
(the "Programming") for up to 24 hours a day, seven days a week, except for the
broadcast of Licensee's public service programming as provided in Section 10.1
of
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this Agreement ("Licensee Programming"). The facilities and the transmitting
equipment of Licensee relating to the Station, including any equipment owned by
Licensee not currently in service, reasonably shall be made available to the
Programmer for its use during the term of this Agreement.
2. CONSIDERATION. The terms and conditions of payment ("Consideration")
to Licensee for the broadcasting of the Programming during the term of this
Agreement shall be as set forth in Schedule 2.
3. TERM.
3.1 COMMENCEMENT/TERMINATION DATE.
3.1.1. This Agreement shall commence and be effective at 12:01
a.m. Pacific time on SEPTEMBER 1, 1999 (the "Commencement Date").
3.1.2. Except as otherwise provided in this Agreement, the
term of this Agreement shall end at 11:59 p.m. Pacific time on the date
("Original Termination Date") being later to occur of:
(a) The earlier to occur of (i) nine (9) months from
the Commencement Date or (ii) sixty (60) days after Licensee's receipt of
written notice from Programmer; or
(b) In the event the Option Right, as set forth in
Section 21 hereof, is exercised, then the termination or consummation of the
transactions contemplated by the Asset Purchase Agreement described in Section
21 hereof.
3.1.3. Programmer shall have the right to extend the term of
this Agreement (including the provisions of Section 21 hereof) to a date
("Extended Termination Date") being six (6) months from its receipt of written
notice from Licensee if, prior to the Original Termination Date, Programmer
shall have (i) entered into an agreement to acquire a suitable New Site, (ii)
filed applications for approvals of any required federal, state and local
governmental authorities having jurisdiction over the New Site as may be
necessary for the New Site to serve as a transmitter site for the Station, and
(iii) taken all commercially reasonable steps necessary to prosecute such
filings with diligence to the end that such approvals may be obtained as soon as
practicable. As used in this Agreement, the term "Termination Date" shall mean
and refer to the later to occur of the Original Termination Date and the
Extended Termination Date.
3.2 TERMINATION BY FCC. In the event that either party
receives formal or constructive notice from the FCC that this Agreement or any
of its terms are contrary to the public interest or violative of any FCC
statute, regulation, rule or policy, either party shall have the right to
terminate this Agreement (except to the extent the provisions of Section 21
shall survive as provided therein) immediately by written notice to the other
party.
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4. THE PROGRAMMING. The Programmer shall furnish programming to
Licensee for up to 24 hours a day, seven days a week, except for the broadcast
of Licensee's Programming. The nature of the program service to be provided by
the Programmer will be determined by Programmer subject to applicable FCC rules
and regulations and subject further to the requirement that Programming will
serve the public interest. Throughout the term of this Agreement Programmer
shall provide sufficient programming at least to meet the minimum operational
requirements for AM broadcast Stations as provided by Section 73.1740 of the
FCC's Rules and Regulations. 47 C.F.R. ss. 73.1740. At the date of this
Agreement, that minimum requires at least eight (8) hours of programming between
the hours of 6:00 a.m. and 6:00 p.m., local time; and at least four (4) hours of
programming between the hours of 6:00 p.m. and midnight.
4.1. LICENSEE'S PROGRAMMING. Licensee shall be entitled to
provide and broadcast four (4) hours per week of programming on the Station,
including public affairs programming to address the issues and problems of San
Diego, California, and the surrounding service area. Any programming broadcast
by Licensee pursuant to this Section, including public affairs programming,
shall be broadcast between 2:00 a.m. and 4:00 a.m. on Sunday, or between 12:00
a.m. and 4:00 a.m. on Monday. Nothing herein shall be interpreted or construed
to restrict to the hours set forth in this subsection the Licensee's general
authority over programming under this Agreement. In all such cases, Licensee
will use its best commercially reasonable efforts to give Programmer reasonable
advance notice of its intention to broadcast pursuant to this section and, in
the event of such broadcasts, Programmer shall receive a payment credit for any
programming which would have been supplied by it during the time of such
broadcasts by Licensee.
5. STATION FACILITIES.
5.1 OPERATION OF STATION. Throughout the term of this
Agreement, Licensee shall make the Station available to the Programmer as
provided in this Agreement, except for Licensee's Programming and downtime
occasioned by routine maintenance which will be performed between the hours of
12 midnight and 6:00 a.m. Except for maintenance work and other improvements to
the Station or the Station's equipment performed by or at the direction of
Programmer, any maintenance work affecting the operation of the Station at full
power, except such emergency maintenance as is required to maintain compliance
with the Station's license or FCC regulations, rules or policies, shall be
scheduled upon at least 48 hours prior notice with the agreement of the
Programmer, which agreement shall not be unreasonably delayed or withheld.
5.2 INTERRUPTION OF NORMAL OPERATIONS. Except for maintenance
work and other improvements to the Station or the Station's equipment performed
by or at the direction of Programmer, if the Station suffers loss or damage of
any nature to its transmission facilities which results in the interruption of
service or the inability of the Station to operate with its maximum authorized
facilities, Programmer shall immediately notify Licensee, and Licensee shall
undertake such repairs as reasonably necessary to restore the fulltime operation
of the Station with its maximum authorized facilities (i.e. as set forth on its
license) as quickly as reasonably practicable. Except as may be the direct
result of any act, omission or action of Programmer, if the Station is
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incapable of operating with its maximum authorized facilities, Licensee shall
pay Programmer a prorated share of the Consideration proportionate to the amount
of time the Station was so impaired as follows: (a) if the effective radiated
power ("ERP") of the Station is 50% or less of the maximum ERP as set forth on
the Station's license, the Consideration will be abated (i) 100% for each
daytime daypart, or (ii) 50% for each nighttime daypart, or any portion thereof;
the Station so operates; and, (b) if the ERP of the Station is 90% to 51% of the
maximum ERP as set forth on the Station's license, the Consideration will be
abated (i) in proportion to the percentage loss in ERP, for each daytime
daypart, or (ii) one half of the percentage loss in ERP for each nighttime
daypart, or any portion thereof, the Station so operates; and, (c) if the ERP of
the Station is 91% or more of the maximum ERP as set forth on the Station's
license, the Consideration will not be abated. For the purposes of this
provision, the term "daytime daypart" shall mean between 7:00 AM and 7:00 PM,
local time, and the term "nighttime daypart" shall mean all other hours. If the
required repairs necessary to return the Station to operation with its full
authorized maximum facilities are not made within seven (7) days, the Programmer
may terminate this Agreement (except to the extent the obligation of Section 21
shall survive as provided therein) upon 10 days notice to Licensee, any other
provision of this Agreement notwithstanding; provided, however, in the event (x)
the required repairs cannot reasonably be completed with seven (7) days, (y)
Licensee has commenced the required repairs within seven (7) days, and (z)
Licensee is diligently proceeding to effectuate said required repairs,
Programmer may not terminate this Agreement pursuant to this Section 5.
6. HANDLING OF MAIL. The Programmer shall provide to Licensee the
original or a copy of any correspondence which it receives from a member of the
public relating to the Programming 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).
7. PROGRAMMING AND OPERATIONS STANDARDS. All programs supplied by the
Programmer shall be in good taste and shall meet in all material respects all
requirements of the Communications Act of 1934 and all applicable rules,
regulations and policies of the FCC and the policies of the Station described in
Schedule 7. All advertising spots and promotional material or announcements
shall comply with all applicable federal, state and local regulations and
Station policies. If, in the reasonable judgment of Licensee or the Station's
General Manager, any portion of the Programming presented by the Programmer does
not meet such standards, Licensee may suspend or cancel any such portion of the
Programming.
8. RESPONSIBILITY FOR EMPLOYEES AND RELATED EXPENSES.
8.1 PROGRAMMER EMPLOYEES. The Programmer shall furnish (or
cause to be furnished) the personnel and material for the production of the
Programming to be provided by this Agreement. The Programmer shall employ and be
responsible for the salaries, taxes, insurance and related costs and benefits
for all personnel used in the production of Programming (including sales people,
traffic personnel and programming staff). The Programmer shall not pay or
reimburse the
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salaries or other costs associated with any employees of Station that Licensee
may be required to employ or may elect to employ on or after the date of
commencement of this Agreement.
8.2 LICENSEE EMPLOYEES. Licensee will provide and have
responsibility for the Station personnel necessary for compliance with the
requirements of Licensee as set forth by the FCC, and will be responsible for
the salaries, taxes, insurance and related costs for all such Station personnel.
The parties agree and acknowledge that Licensee's continued control of the
Station is an essential element of the continuing validity and legality of this
Agreement. Accordingly, the Manager of the Station shall be employed and paid by
Licensee, report solely to, and be accountable solely to, Licensee and shall
direct, subject to Licensee's exclusive oversight and control, the day-to-day
operations of the Station. Licensee shall employ and pay such other full-time
personnel, or equivalent thereof (not less than one), as Licensee determines may
be necessary to fulfill its obligations as a licensee under the Communications
Act and the rules and regulations of the FCC.
8.3 EMPLOYEE OVERSIGHT. Whenever on the Station's premises,
all personnel shall be subject to the supervision and the direction of the
Station's General Manager and/or the Station's Chief Operator.
9. ADVERTISING AND PROGRAMMING REVENUES. During the Programming it
delivers to the Station, the Programmer shall have full authority to sell for
its own account commercial spot advertising and block programming time on the
Station and to retain all revenues from the sale of such advertising and
programming. The parties agree that the Programmer shall have complete
discretion, reasonably exercised, to deal as it deems reasonably appropriate
with all advertising and programming accounts relating to advertising and
programming sold by it; provided, however, the Programmer shall deal with
political candidate and supporter advertising as required by law and provide
Licensee with requisite documentation for the Station's public file. Programmer
shall prepare and supply to Licensee a Political Advertising Disclosure
Statement setting forth the manner in which Programmer sells program and spot
time and informing political advertisers of their rights and obligations. The
Political Advertising Disclosure Statement shall be subject to the approval of
Licensee, which approval shall not unreasonably be withheld.
10. OPERATION OF THE STATION.
10.1 VERIFICATION OF LICENSEE'S 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 Station during the
period of this Agreement. Licensee shall provide and pay for Licensee's
employees, who shall report and be accountable solely to Licensee, shall be
responsible for the direction of the day-to-day operation of the Station, and
shall oversee the Station's studio and transmission equipment and facilities,
including the tower, antenna, transmitter and transmission line, and Station's
studio transmitter link. Licensee shall retain control over the policies,
programming and operations of the Station, including, without limitation, the
right to decide whether to reasonably accept or reject any programming or
advertisements which Licensee deems unsuitable or contrary to the public
interest; the right to preempt any programs in order to broadcast
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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 United States, the State of California, the rules, regulations,
and policies of the FCC (including the prohibition on unauthorized transfers of
control), and the rules, regulations and policies of other federal governmental
authorities, including the Federal Trade Commission and the Department of
Justice. Licensee agrees that it shall carry its own public service programming
at such times as the parties may agree based on the reasonable programming needs
of the Programmer. With respect to the operation of the Station, Licensee shall
at all times be solely 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 preparation of all programs/issues lists. Licensee verifies that it
shall maintain the ultimate control over the Station's facilities, including
control over the finances with respect to its operation of the Station, over the
personnel operating the Station, and over the programming to be broadcast by the
Station.
10.2. VERIFICATION BY PROGRAMMER AND OBLIGATIONS OF
PROGRAMMER. The Programmer will, during the term of this Agreement, provide
local news and public affairs programming relevant to the Station's community 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 correspondence from the FCC regarding the
Station or letter from a member of the general public addressing Station
programming or documentation which comes into its custody which is required to
be included in the Station's public file or which is reasonably requested by
Licensee. The Programmer shall furnish within the Programming on behalf of
Licensee all station identification announcements required by the FCC rules, and
shall, upon request by Licensee, provide monthly documentation with respect to
such of the Programmer's programs which are responsive to the public needs and
interests of the area served by the Station in order to assist Licensee in the
preparation of any required programming reports. Programmer also will provide
upon request other information to enable Licensee to prepare other records,
reports and logs required by the FCC or other local, state or federal
governmental agencies. Programmer shall cause the Station to transmit any
required tests or announcements of the Emergency Alert System at such times as
are required by FCC rule. Programmer shall maintain and deliver to Licensee
copies of all operating and programming information, including without
limitation EBS or EAS announcements and station operating logs, as necessary to
maintain the records required to be kept by the FCC's rules or policies.
11. STATION CALL LETTERS.
11.1. CALL SIGNS. So long as it is the licensee of the
Station, Licensee will retain all rights to the call letters KCBQ(AM) (the "Call
Letters"). Programmer is specifically authorized to use the Call Letters in
Programmer's Programming and, subject to the conditions and provisions of
Section 7.2, in any promotional material in any media used in connection with
the Programming. Licensee will not seek or acquiesce in a change of call letters
for the Station without Programmer's consent. Programmer shall submit to
Licensee any promotional material which will identify the Station by call
letters or frequency for approval by Licensee at least two (2)
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days prior to use of such promotional material by Programmer. Licensee shall
have the right to approve or reject such promotional material, such approval to
not be unreasonably withheld or delayed. All documentary materials used by
Programmer containing the call letters of the Station, including stationery,
bills, rate cards, etc., shall contain a notation that Licensee holds the
license for operation of the Station. Moreover, to avoid the potential for
public confusion regarding the ownership of the Station, the telephones at the
Station will be answered with the Station's call letters, rather than the name
of either Programmer or Licensee.
11.2. CALL SIGN PROMOTION AND/OR CHANGE. The call letters for
the Station shall not be changed without the prior written consent of Licensee.
Licensee will use its best efforts to assist Programmer in the promotion and use
of the call letters chosen by Programmer in connection with the broadcast of the
Programming on the Station. Except as provided in Section 21 hereof, during the
life of this Agreement, Programmer shall have no property right or interest in
the Call Letters. Should Licensee consent to a change of the call sign for the
Station, then Licensee shall have no property right or interest in such new call
letters and will release to Programmer any such call letters upon termination of
this Agreement. Licensee will provide to Programmer such reasonable assistance
as Programmer may request (at no cost or penalty to Licensee) to protect
Programmer's rights in such "new" call letters, and Licensee will not then
replace the call letters with any that are similar to any "new" call sign chosen
by Programmer. Subject to Licensee's prior consent to a call sign change,
Licensee, in good faith, will reasonably assist and cooperate with Programmer to
allow and effectuate (i) one or more changes of the call sign for the Station
requested by Programmer, or (ii) the filing of any application with the FCC
and/or the Federal Aviation Administration to modify or improve the authorized
facilities for the Station. During the term of this Agreement, Programmer shall
reimburse Licensee for any reasonable costs and expenses incurred by Licensee in
connection with any call sign change or facilities modification application that
is requested by Programmer. Programmer shall pay all costs and filing fees
associated with any change in Station call letters requested by Programmer.
12. SPECIAL EVENTS. Licensee shall have the right, in its reasonable
discretion, to preempt any of the broadcasts of the Programming referred to
herein, and to use part or all of the hours of operation of the Station for the
broadcast of events of special importance. In all such cases, Licensee will use
its best, commercially reasonable, efforts to give the Programmer reasonable
advance notice of its intention to preempt any regularly scheduled programming,
and, in the event of such preemption, the Programmer shall receive a payment
credit for any programming which would have been supplied by it during the time
of such broadcasts by Licensee.
13. RIGHT TO USE THE PROGRAMMING. The right to use the Programming
produced by the Programmer and to authorize its use in any manner and in any
media whatsoever shall be at all times be vested solely in the Programmer except
as authorized by this Agreement.
14. PAYOLA. The Programmer will provide to Licensee in advance of
broadcast any information known to the Programmer regarding any money or other
consideration which has been paid or accepted, or has been promised to be paid
or to be accepted, for the inclusion of any matter as a part of any programming
or commercial material to be supplied to Licensee by the
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Programmer for broadcast on the Station, unless the party making or accepting
such payment is identified in the program as having paid for or furnished such
consideration in accordance with FCC requirements. Should the Station determine
that an announcement is required by Section 317 of the Communications Act of
1934 and related FCC rules, the Programmer will insert that announcement in the
Programming. The Programmer will obtain from its employees responsible for the
Programming appropriate anti-payola/plugola affidavits. Commercial matters with
obvious sponsorship identification will not require disclosure beyond the
sponsorship identification contained in the commercial copy. The Programmer will
at all times comply, and seek to have its employees comply, in all material
respects with the requirements of Sections 317 and 507 of the Communications Act
of 1934, as amended, and the related rules and regulations of the FCC.
15. COMPLIANCE WITH LAW. The Programmer will comply in all material
respects with all laws and regulations applicable to the broadcast of
programming by the Station.
16. INDEMNIFICATION. Each party hereto shall indemnify and hold the
other, its officers, directors, stockholders, partners, affiliates and employees
harmless from and against any and all claims, damages, liability, forfeitures,
costs and expenses, including reasonable attorneys' fees, arising out of: (i)
any breach or non-performance by said party of any of its representations,
warranties, covenants or agreements set forth in this Agreement; (ii) any libel,
slander, illegal competition or trade practice, violation of rights of privacy,
and infringement of copyrights or other proprietary rights; and (iii) any
violations of the Communications Act of 1934 or FCC rules resulting from said
party's operation of the Station or its programming broadcast thereon.
17. EVENTS OF DEFAULT; CURE PERIODS AND REMEDIES.
17.1 EVENTS OF DEFAULT. The following shall constitute Events
of Default under this Agreement:
17.1.1 NON-PAYMENT. The Programmer's failure to pay the
Consideration within ten (10) days after written notice of a failure to pay said
amount when due.
17.1.2 DEFAULT IN COVENANTS OR ADVERSE LEGAL ACTION. The
default by either party in the performance of any material covenant, condition
or undertaking contained in this Agreement, and such default is not cured within
thirty (30) days after receipt of notice of default, or if either party shall
make a general assignment for the benefit of creditors, files or has filed
against it 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 30 days
thereafter.
17.1.3 BREACH OF REPRESENTATION. If any material
representation or warranty made by either party in this Agreement, or in any
certificate or document furnished by either party to the other pursuant to the
provisions of this Agreement, shall prove to have been false or misleading in
any material respect as of the time made or furnished, and such
misrepresentation
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or breach of warranty is not cured within thirty (30) days after receipt of
notice of misrepresentation or breach.
17.2 TERMINATION UPON DEFAULT. Upon the occurrence of an Event
of Default, the non-defaulting party may terminate this Agreement (except to the
extent the provisions of Section 21 shall survive as provided therein), provided
that it is not also in material default under this Agreement. If the Programmer
has defaulted in the performance of its obligations, all amounts accrued or
payable to Licensee up to the date of termination which have not been paid, less
any payment credits outstanding in favor of the Programmer, shall immediately
become due and payable, and Licensee shall be under no further obligation to
make available to the Programmer any broadcast time or broadcast transmission
facilities and Licensee shall not be required to return any portion of the
Consideration, provided that Licensee agrees, for a period of time not to exceed
ninety (90) days, to cooperate reasonably with the Programmer to discharge any
remaining obligations of the Programmer in the form of air time following the
effective date of termination. Licensee shall retain all revenue for
programming, spots, announcements, or features broadcast on the Station after
the termination of this Agreement pursuant to this Section 17.2. If Licensee has
defaulted in the performance of its obligations, Programmer shall be entitled to
cure the default of Licensee, at Licensee's sole cost for actual, reasonable
costs and expenses incurred by Programmer relating to the cure of Licensee's
default, and shall be entitled to deduct the cost of said cure from any
Consideration which is or may become due; provided, however, that in the event
Programmer shall elect to terminate this Agreement, all Consideration paid to
Licensee which relates to periods after termination shall immediately become due
and payable by Licensee to Programmer.
17.3 LIABILITIES UPON TERMINATION. The Programmer shall be
responsible for all of its liabilities, debts and obligations accrued from the
purchase of broadcast time and transmission facilities of the Station,
including, without limitation, indemnification pursuant to Section 16 hereof,
accounts payable, barter agreements and unaired advertisements, but not for
Licensee's federal, state, and local tax liabilities associated with
Programmer's payments to Licensee as provided for herein, or for any other
obligations or liabilities of Licensee or the Station unless specifically
assumed by the Programmer under this Agreement. Upon termination, the Programmer
shall return to Licensee any equipment or property of the Station used by the
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 the 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 the Programmer, whether or not in replacement of
any obsolete or unusable equipment of Licensee, shall remain the property of the
Programmer. Provided Programmer is not in default hereof, in the event this
Agreement shall terminate as set forth in Section 3.2, Licensee shall pay
Programmer a prorated share of the Consideration that is paid in advance to
Licensee by Programmer.
18. OPTION TO TERMINATE. The Programmer shall have the right, at its
option, to terminate this Agreement (except to the extent the provisions of
Section 21 shall survive as provided therein) at any time if Licensee preempts
or substitutes other programming for that supplied by the Programmer during ten
percent or more of the total hours of operation of the
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Station in any seven consecutive days. The Programmer shall give Licensee five
(5) days advance written notice of such termination. Each party shall have the
right, at its option, to terminate this Agreement upon termination of the Asset
Purchase Agreement described in Section 21.
19. TERMINATION UPON ORDER OF JUDICIAL OR GOVERNMENTAL AUTHORITY.
19.1 CONDUCT OF THE PARTIES. If any court of competent
jurisdiction or any federal, state or local governmental authority designates a
hearing with respect to the continuation or renewal of any license or
authorization held by Licensee for the operation of the Station, advises any
party to this Agreement of its intention to investigate or to issue a challenge
to or a complaint concerning the activities permitted by this Agreement, or
orders the termination of this Agreement and/or the curtailment in any manner
material to the relationship between the parties to this Agreement of the
provision of programming by Programmer, each party shall have the option to seek
administrative or judicial appeal of or relief from such order(s) (in which
event the other party reasonably shall cooperate with the party seeking relief
from such order and each party shall be responsible for legal fees it has
incurred in such proceedings). Notwithstanding the foregoing:
19.1.1 OF LICENSEE. Subject to Section 16, Licensee
is responsible for all costs of defending the license of the Station to the
extent any court of competent jurisdiction or any federal, state or local
governmental authority designates a hearing with respect to the continuation or
renewal of any license or authorization held by Licensee for the operation of
the Station, advises any party to this Agreement of its intention to investigate
or to issue a challenge to or a complaint concerning the activities permitted by
this Agreement, or orders the termination of this Agreement and/or the
curtailment in any manner material to the relationship between the parties to
this Agreement of the provision of programming by Programmer, as a result of the
conduct or programming of Licensee, or its employees or agents (excluding
Programmer).
19.1.1 OF PROGRAMMER. Subject to Section 16,
Programmer is responsible for all costs of defending the license of the Station
to the extent any court of competent jurisdiction or any federal, state or local
governmental authority designates a hearing with respect to the continuation or
renewal of any license or authorization held by Licensee for the operation of
the Station, advises any party to this Agreement of its intention to investigate
or to issue a challenge to or a complaint concerning the activities permitted by
this Agreement, or orders the termination of this Agreement and/or the
curtailment in any manner material to the relationship between the parties to
this Agreement of the provision of programming by Programmer, as a result of the
conduct or programming of Programmer or its employees or agents (excluding
Licensee).
19.2 EXISTENCE OF THE LMA. If the FCC designates the renewal
application of the Station for a hearing as a consequence of the existence of
this Agreement per se or for any reason other than as a result of the conduct or
programming of Programmer, Licensee, subject to Section 16, shall be responsible
for its expenses incurred as a consequence of the FCC proceeding; provided,
however, that the Programmer shall cooperate and comply with any reasonable
request of Licensee to assemble and provide to the FCC information relating to
the Programmer's performance under this Agreement. Upon termination following
such governmental order(s),
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Licensee shall reasonably cooperate with the Programmer to the extent permitted
to enable the Programmer to fulfill advertising or other programming contracts
then outstanding. Licensee shall retain all revenue for programming, spots,
announcements, or features broadcast on the Station after the termination of
this Agreement pursuant to such governmental order(s).
20. REPRESENTATIONS AND WARRANTIES.
20.1 MUTUAL REPRESENTATIONS AND WARRANTIES. Each of Licensee
and the Programmer represents to the other that (a) it is, or as of the
Commencement Date will be, an entity legally qualified and in good standing in
all applicable jurisdictions and is or, as of the Commencement Date will be,
qualified to do business and in good standing with the State of California (b)
it is fully qualified, empowered, and able to enter into this Agreement, (c)
this Agreement has been approved by all necessary corporate and partnership
action and that this Agreement constitutes the valid and binding obligation of
such party, enforceable in accordance with the terms of this Agreement subject
only to applicable bankruptcy, reorganization, insolvency or similar laws
affecting creditors' rights generally; (d) the execution, delivery and
performance hereof does not constitute a breach or violation of any agreement,
contract or other obligation to which such party is subject or by which it is
bound, or does not constitute a default under or result in the creation of any
lien, charge or encumbrance upon any property or assets of Programmer or
Licensee, or violate any law, regulation, judgment or order binding upon
Programmer or Licensee; (e) 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 is required in connection with the execution, delivery, validity or
enforceability of this Agreement; and (f) No proceeding is pending against
Programmer or Licensee, or, to the knowledge of Programmer or Licensee,
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. Programmer represents that
except for ▇▇▇▇ ▇▇▇▇▇▇▇ & Co., it has not engaged a media broker in connection
with this Agreement; Licensee represents that it has not engaged a media broker
in connection with this Agreement and Programmer and Licensee each agrees to
indemnify the other and hold the other harmless against any claim any media
broker or finder based upon any agreement, arrangement, or understanding alleged
to have been made by Programmer or by Licensee, as the case may be.
20.2 REPRESENTATIONS, WARRANTIES AND COVENANTS OF LICENSEE.
Licensee makes the following additional representations, warranties and
covenants:
20.2.1 AUTHORIZATIONS. Licensee owns and holds all
licenses and other permits and authorizations necessary for the operation of the
Station as presently conducted (including licenses, permits and authorizations
issued by the FCC), and such licenses, permits and authorizations will be in
full force and effect for the entire term, unimpaired by any acts or omissions
of Licensee, its principals, employees or agents. There is not now pending or,
to Licensee's best knowledge, threatened, any action by the FCC or other party
to revoke, cancel, suspend, refuse to renew or modify adversely any of such
licenses, permits or authorizations, and,
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to Licensee's best knowledge, no event has occurred that allows or, after notice
or lapse of time or both, would allow, the revocation or termination of such
license, permits or authorizations or the imposition of any restriction thereon
of such a nature that may limit the operation of the Station as presently
conducted. Licensee has no reason to believe that any such license, permit or
authorization will not be renewed during the term of this Agreement in its
ordinary course. Licensee is not in 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 or assets, which default or violation would have an adverse effect on
Licensee or its assets or on its ability to perform this Agreement.
20.2.2 FILINGS. All material reports and applications
required to be filed with the FCC or any other governmental agency, department
or body in respect of the Station have been, and in the future will be, filed in
a timely manner and are and will be true and complete and accurately present the
information contained therein. All such reports and documents, to the extent
required to be kept in the public inspection files of the Station, are and will
be kept in such files. Upon request by Licensee, Programmer shall provide in a
timely manner any such information or documents in its possession which will
enable Licensee to prepare, file or maintain the records and reports required by
the FCC.
20.2.3 FACILITIES. Subject to the terms hereof, the
Station's facilities will be maintained at the expense of Licensee and will
comply and be operated, in all material respects, in accordance with the maximum
facilities permitted by the FCC authorizations for the Station and with good
engineering standards necessary to deliver a high quality technical signal to
the area served by the Station, and with all applicable laws and regulations
(including the requirements of the Communications Act of 1934 and the rules,
regulations, policies and procedures of the FCC promulgated thereunder). All
capital expenditures reasonably required to maintain the quality of the
Station's signal shall be made promptly at the expense of Licensee, subject to
prompt reimbursement by Programmer of such expenditures if they are undertaken
in furtherance of the improved or continued delivery of Programmer's Programming
over the Station and Programmer has consented to such reimbursement in advance,
which consent shall not be unreasonably withheld or delayed.
20.2.4 TITLE TO PROPERTIES. Licensee has, and will
throughout the term hereof maintain, good and marketable title to all of the
assets and properties including, without limitation, real property, used in the
operation of the Station, free and clear of any liens, claims or security
interests that would affect adversely Licensee's performance hereunder or the
business and operations of Programmer permitted hereby. Except in the ordinary
course of business of the Station consistent with past practices, Licensee will
not dispose of, transfer, assign or pledge any such asset, except with the prior
written consent of Programmer, if such action would affect adversely Licensee's
performance hereunder or the business and operations of Programmer permitted
hereby.
20.2.5 PAYMENT OF OBLIGATIONS. Licensee shall pay in
a timely fashion all of its debts, assessments and obligations, including
without limitation tax liabilities and payments
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attributable to the operations of the Station, as they come due from and after
the effective date of this Agreement, to the extent failure to do so will affect
Programmer's rights under this Agreement.
20.2.6 INSURANCE. Licensee will maintain in full
force and effect throughout the term of this Agreement insurance with
responsible and reputable insurance companies fire and extended coverage and
liability insurance and such other insurance as may be required by law or
consistent with past practice of the Station. Except as otherwise permitted by
the Purchase Agreement, any insurance proceeds received by Licensee in respect
of damaged property will be used to repair or replace such property so that the
operations of the Station conform with this Agreement.
20.3. PROGRAMMER'S REPRESENTATIONS, WARRANTIES AND COVENANTS.
20.3.1 COMPLIANCE WITH 47 C.F.R. SEC.
73.3555(A)(2)(II). Programmer hereby verifies that this Agreement complies with
the FCC's restrictions on local and national multiple station ownership set out
in Section 73.3555(a)(1) and (e)(1) of the FCC Rules.
20.3.2 COMPLIANCE WITH APPLICABLE LAW. Programmer's
performance of its obligations under the Agreement and its furnishing of
Programming will be in compliance with, and will not violate, any applicable
laws or any applicable rules, regulations, or orders of the FCC or any other
governmental agency.
20.3.3 FCC QUALIFICATIONS. Programmer has no
knowledge after due inquiry of any facts concerning Programmer or any other
person with an attributable interest in Programmer (as such term is defined
under the Rules and Regulations of the FCC) which, under present law (including
the Communications Act of 1934, as amended ("the Act")) and the Rules and
Regulations of the FCC, would disqualify Programmer from being the holder of the
FCC Licenses, the owner of the Sale Assets or the operator of the Station upon
consummation of the transactions contemplated by this Agreement; or raise a
substantial and material question of fact (within the meaning of Section 309(e)
of the Act) respecting Programmer's qualifications.
20.3.4 COMPLIANCE WITH COPYRIGHT ACT. Programmer
represents and warrants that Programmer has full authority to broadcast its
programming on the Station and the Programmer shall not broadcast any material
in violation of any law, rule, regulation or the Copyright Act. Programmer
acknowledges that it is solely responsible for payment of any public performance
music license fees or royalties for music contained in the Programming, spots,
announcements, features or any other programming of Programmer including,
without limitation, fees payable to ASCAP, BMI and/or SESAC.
21. OPTION RIGHT FOR THE STATION.
21.1 OPTION RIGHT. At any time prior to the Termination Date,
and provided Programmer is not in default under this Agreement, Programmer shall
have the right (the "Option
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Right") to purchase the Station pursuant to the Asset Purchase Agreement
attached hereto as Exhibit "A" (the "Asset Purchase Agreement").
21.2 EXERCISE OF OPTION RIGHT. The Option Right may only be
exercised by the Programmer's delivery to the Licensee prior to the Termination
Date of written notice of exercise of the Option Right (in either case, the
"Exercise Notice"). The Exercise Notice shall state that the Option Right is
exercised without condition or qualification other than (i) the receipt of any
required approval of the FCC for the assignment of the Station's FCC licenses
pursuant hereto, and (ii) the satisfaction of all conditions set forth in the
Asset Purchase Agreement. Within five (5) business days following delivery of
the Exercise Notice, Licensee shall deliver the Asset Purchase Agreement duly
executed by Licensee to Programmer.
21.3 SURVIVAL OF OPTION RIGHT UPON TERMINATION OF PROGRAMMING
ARRANGEMENT. In the event Programmer's right to program the Station under this
Agreement is terminated for any reason other than the fault or default of
Programmer, Programmer may, within thirty (30) days following such termination,
give notice, pursuant to Section 21.2 hereof, of its intention to purchase the
assets of the Station on the terms and conditions set forth in the Asset
Purchase Agreement. In the event Programmer does not give such notice within
such thirty (30) day period, the Option Right shall terminate.
21.4 LICENSEE'S WARRANTIES. Licensee warrants and represents
to Programmer that:
(a) At Closing (as defined in the Asset Purchase
Agreement) Licensee will have, good, marketable and indefeasible title to and
full power of disposition over the Sale Assets (as defined in the Asset Purchase
Agreement), and the full right to sell and transfer to Programmer all of the
Sale Assets without the requirement of obtaining the consent or approval of any
other person, entity, agency or authority except the FCC.
(b) Except for any liens created by the recording of
this Agreement, the Sale Assets will be free of all liens, claims, debts or
other encumbrances at Closing.
21.5 LICENSEE'S COVENANTS. Licensee covenants that, commencing
on the Commencement Date hereof and continuing through the Termination Date, the
Station shall be operated in accordance with the covenants set forth in Section
5.1 of the Asset Purchase Agreement, which covenants are incorporated herein by
reference.
22. MODIFICATION AND WAIVER. No modification or waiver of any provision
of this Agreement shall be effective unless made in writing and signed by the
party adversely affected, and any such waiver and consent shall be effective
only in the specific instance and for the purpose for which such consent was
given.
23. NO WAIVER: REMEDIES CUMULATIVE. No failure or delay on the part of
Licensee or the Programmer in exercising any right or power under this Agreement
shall operate as a waiver
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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.
24. CONSTRUCTION. This Agreement shall be construed in accordance with
the laws of the State of California. 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.
25. HEADINGS. The headings contained in this Agreement are included for
convenience only and shall not in any way alter the meaning of any provision.
26. SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon and
inure to the benefit of the parties and their respective successors and assigns.
Neither party may assign any of its rights or obligations under this Agreement
without the prior written consent of the other party, except that Programmer may
assign its rights and obligations, or any of them, to an entity controlled by or
under common control with Programmer without the prior written consent of
Licensee.
27. 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.
28. NOTICES. Any notice required hereunder shall be in writing and
shall be sufficiently given if delivered by a nationally recognized overnight
delivery service or sent by registered or certified mail, first class postage
prepaid, or by telegram, facsimile or similar means of communication, addressed
as follows:
If to Licensee, to:
Concord Media Group, Inc.
▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
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Copy to:
▇▇. ▇▇▇ ▇▇▇▇▇▇▇, Esq.
Rosenman & Colin LLP
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇.▇.
▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
If to the Programmer, to:
c/o Salem Communications Corporation
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇▇▇ ▇. Block, Esq.
Corporate Counsel
28.1. ALTERNATE ADDRESSEES. Notice, as provided by this
Section, may be given to any other person or party, as any party hereto may in
the future designate in writing, upon due notice to the other party(ies).
28.2. DATE OF NOTICE, ACTION. The date of delivery by hand, or
the postal receipt for deposit with the U.S. Mail or courier service specified
herein shall establish the date of such notification or communication. If any
notification, communication or action is required or permitted to be given or
taken within a certain period of time and the last date for doing so falls on a
Saturday, Sunday, a federal legal holiday or legal holiday by law in the State
of California, the last day for such notification, communication or action shall
be extended to the first date thereafter which is not a Saturday, Sunday or such
legal holiday.
29. EXPENSES; ATTORNEY'S FEES. In the event any action is filed with
respect to this Agreement, the prevailing party shall be reimbursed by the other
party for all its actual costs and expenses incurred in connection with the
action, including without limitation reasonable attorney's fees.
30. ENTIRE AGREEMENT. This Agreement embodies the entire agreement
between the parties and there are no other agreements, representations,
warranties, or understandings, oral or written, between them with respect to the
subject matter hereof.
31. SPECIFIC PERFORMANCE. Licensee acknowledges that the Station is of
a special, unique, and extraordinary character, and that any breach of this
Agreement by Licensee could not be compensated for by damages. Accordingly, if
Licensee shall breach its obligations under this Agreement, Programmer shall be
entitled, in addition to any of the remedies that it may have, to
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enforcement of this Agreement (subject to obtaining any required approval of the
FCC) by decree of specific performance or injunctive relief requiring Licensee
to fulfill its obligations under this Agreement. In any action by Programmer to
equitably enforce the provisions of this Agreement, Licensee shall waive the
defense that there is an adequate remedy at law or equity and agrees that
Programmer shall have the right to obtain specific performance of the terms of
this Agreement without being required to prove actual damages, post bond or
furnish other security.
32. BROKERAGE FEES. Any and all commissions, fees, costs, and expenses
and related amounts due ▇▇▇▇ ▇▇▇▇▇▇▇ & Co. and any other broker, agent, finder
or other similarly situated party arising out of the transactions set forth in
this Agreement and the Asset Purchase Agreement, shall be paid and borne
exclusively by Programmer.
33. TIME OF THE ESSENCE. Time is of the essence with respect to all
rights and obligations of this Agreement.
34. RESOLUTION OF CLAIMS AND DISPUTES. Regardless of the place of
execution, this Agreement shall be deemed to be a contract made in San Diego,
California and shall be interpreted as a contract to be performed wholly in the
State of California. The law of the State of California shall be applied without
regard to the principles of conflicts of laws. Each party expressly waives any
presumption or rule, if any, which requires this Agreement and/or any other
Agreement to be construed against the drafting party. Any claims or disputes
arising out of or relating to this Agreement shall be resolved only by mediation
or, if mediation does not resolve the claim or dispute within ten (10) days of
notice demanding mediation, by arbitration in accordance with the Rules of
Procedure for Commercial Arbitration of the American Arbitration Association and
any award therefrom shall be rendered by the arbitrators as a judgment in any
trial court having jurisdiction in the city of San Diego, California, or of any
other court having competent jurisdiction.
35. NO WAIVER; REMEDIES CUMULATIVE. No failure or delay on the part of
Licensee or Programmer in exercising any right or power hereunder shall operate
as 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 Programmer
herein provided are cumulative and are not exclusive of any rights or remedies
which they may otherwise have.
36. CONFIDENTIALITY. Subject to the requirements of applicable law,
Programmer and Licensee shall each keep confidential all information obtained by
it with respect to the other parties hereto in connection with this Agreement
and the negotiations preceding this Agreement, and will use such information
solely in connection with the transactions contemplated by this Agreement.
Notwithstanding the foregoing, no party will be required to keep confidential or
return any information which: (i) is known or available through other lawful
sources, not known to the disclosing party to be bound by a confidentiality
agreement with the disclosing party; (ii) is or becomes publicly known through
no fault of the receiving party or its agents; (iii) is
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required to be disclosed pursuant to a valid order of a judicial or governmental
authority (provided the disclosing party is given reasonable prior notice of the
order or request and the purpose of disclosure); or (iv) is developed by the
receiving party independently of the disclosure by the disclosing party.
37. EXPLICATION. Unless the context of this Agreement clearly requires
otherwise, references to the plural include the singular and to the singular
include the plural, references to any gender include any other gender, the part
includes the whole, the term "including" is not limiting, and the term "or" has,
except where otherwise indicated, the inclusive meaning represented by the
phrase "and/or." The words "hereof," "herein," "hereby," "hereunder," and
similar terms in this Agreement refer to this Agreement as a whole and not to
any particular provision of this Agreement. Article, section, subsection,
clause, exhibit and schedule references are to this Agreement, unless otherwise
specified. Any reference in or to this Agreement or any of the ancillary
agreements includes any and all permitted alterations, amendments, changes,
extensions, modifications, renewals, or supplements thereto or thereof, as
applicable.
38. 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, except as provided in Section 21,
that neither party shall obtain any ownership interest in the other party's
intellectual property by virtue of this Agreement.
39. COOPERATION. Each party will cooperate with the other with respect
to establishing and attaining the strategic and operational goals of the
Station.
40. DISPUTES; FINAL TERMINATION. In the event Programmer or Licensee in
good faith contests any basis for termination exercised pursuant to this
Agreement, the termination shall not become effective until the dispute is
arbitrated as provided herein. In the event the Licensee terminates the
Agreement for any reason other than non-payment of the Monthly Fee, the
Agreement shall continue in effect until the dispute is arbitrated, as provided
herein, only so long as Programmer continues to make payments as provided by
SECTION 1 of this Agreement. Any dispute concerning termination pursuant to this
Agreement shall be resolved by binding arbitration pursuant to the rules of the
American Arbitration Association. The prevailing party shall be entitled to
reimbursement from the non-prevailing party of all reasonable expenses actually
incurred to comply with this arbitration provision. The prevailing party shall
mean the party that is successful in obtaining substantially all the relief
sought. In the event of a dispute under this Agreement, Programmer shall satisfy
its payment obligations under SECTION 2 if payments during the dispute are made
by Programmer to a Dispute Escrow Agent who shall act as fiduciary to the
Programmer and Licensee. Unless otherwise hereafter provided, the Dispute Escrow
Agent shall be ▇▇▇▇ ▇▇▇▇▇▇▇ & CO. Should the Programmer be the party seeking
termination of this Agreement, and in the event the Programmer is declared to be
the prevailing party, then any payments made by Programmer, under SECTION 2 of
this Agreement, during the term the dispute is being arbitrated shall be
refunded by Licensee to Programmer by not later than the tenth (10th) day after
the decision of the arbitrator(s) is issued.
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41. CONSTRUCTION OF AGREEMENT. This Agreement is the product of
negotiation and preparation by, between and among Programmer and Licensee and
their respective attorneys. Accordingly, the parties hereto acknowledge and
agree that this Agreement shall not be deemed prepared or drafted by one party
or another, and shall be construed accordingly.
42. FURTHER ASSURANCES. After the Commencement Date, each of the
parties, upon the reasonable request of the other, will take such reasonable
actions or deliver or execute such further documents, materials, signatures, or
information as may be reasonably necessary to assure compliance with, or
effectuation of, the terms and conditions to this Agreement and the bona fide
good faith intentions of the parties hereto.
43. SCHEDULES AND EXHIBITS. All schedules, exhibits and riders attached
to this Agreement shall be deemed part of this Agreement and incorporated
herein, where applicable, as if full set forth herein.
44. ACCOUNTING PERIODS; ADJUSTMENTS AND PRORATIONS. For the purposes of
this Agreement, and except as otherwise provided herein, the allocation of
accounts receivable and accounts payable for the time preceding the Commencement
Date shall be made effective as of 12:01 AM, Pacific Time, on the Commencement
Date; to wit: all accounts payable and accounts receivable for the period prior
to the Commencement Date, shall be the responsibility of, and belong to
Licensee, and all accounts payable and accounts receivable for the period on or
after Commencement Date, through and including the Termination Date, shall be
the responsibility of Programmer. All taxes, accrued, rents, deposits, power and
utility charges, obligations under agreements, prepaid items and expenses and
similar items applicable to the Station shall be allocated among Programmer and
Licensee effective as of 12:01 AM on the Commencement Date and the Termination
Date. As of 12:01 AM Pacific Time on the Commencement Date, the expenses shall
be prorated in accordance with generally accepted accounting principles and
shall include, but not be limited to, the following: (i) If Licensee shall not
have paid through the Commencement Date, all utility charges such as telephone,
electricity and gas, Programmer shall be entitled to a credit therefor based
upon the last paid bills for similar charges; (ii) Licensee shall be entitled to
a credit for the unearned portion of insurance premiums on policies which
Programmer may elect to assume; (iii) Licensee shall prorate with Programmer for
accrued personal property, real estate and any other taxes based upon the last
ascertainable tax ▇▇▇▇; and (iv) Programmer shall be allowed credit as to any
prepayment received by Licensee for services to be rendered by Programmer on or
after the Commencement Date. Licensee shall be allowed credit for services
rendered by it for which payment will be received by Programmer on or after the
Commencement Date. The Licensee's accountants and the Programmer's accountants
shall attempt in good faith to resolve any disputes to such adjustments. In the
event such accountants are unable to resolve any such disputes within thirty
(30) days after the realization by the parties of the existence of a dispute,
then such dispute shall be resolved by a third party accounting firm to be
selected, within ten (10) days of the realization of the dispute, by the
respective accountants for Programmer and Licensee (the fees of such third party
accounting firm shall be paid equally by the disputing parties), and any such
determination of the third party accounting firm shall be binding and conclusive
on the disputing parties.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first above written.
"LICENSEE" "PROGRAMMER "
CONCORD MEDIA GROUP, INC. RADIO 1210, INC.
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
---------------------------------- --------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: President Executive Vice President
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