TIME BROKERAGE AGREEMENT
(WQCD-FM, New York, New York)
This TIME BROKERAGE AGREEMENT is made as of May 15, 1997, by and
between TRIBUNE NEW YORK RADIO, INC., a Delaware corporation
("Licensee"), and EMMIS BROADCASTING CORPORATION, an Indiana corporation
("Broker").
RECITALS
A. Licensee is the owner of Radio Station WQCD-FM, New York, New
York (the "Station"), pursuant to licenses, permits, and authorizations
issued by the Federal Communications Commission ("FCC").
B. Licensee and Broker have entered into an Option Agreement,
dated as of the date hereof (the "Option Agreement"), pursuant to which
Licensee has an option to sell to Broker, and Broker has an option to
purchase from Licensee (each of such option to sell and option to
purchase is hereinafter referred to as an "Option"), substantially all
of the assets used in the operations of the Station.
C. In connection with entering into the Option Agreement,
Licensee and Broker have agreed to enter into an agreement relating to
the programming of the Station.
D. Licensee agrees to provide air time to Broker on terms and
conditions that conform to Station policies and the FCC rules,
regulations and policies for time brokerage arrangements.
E. Broker agrees to provide such programming to and for the
Station and to undertake its other obligations hereunder in conformity
with all rules, regulations, and policies of the FCC.
AGREEMENTS
In consideration of the above recitals and of the mutual agreements
and covenants contained herein, Licensee and Broker, intending to be
bound legally, agree as follows:
SECTION 1
DEFINITIONS
The following terms, as used in this Agreement, shall have the
meanings set forth in this Section:
"Communications Act" means the Communications Act of 1934, as
amended, together with the rules, regulations, and policies promulgated
thereunder by the FCC, as in effect from time to time.
"FCC" is defined in the first recital to this Agreement.
"HSR Act" means the Hart-Scott-Rodino Antitrust Improvements Act of
1976, as amended.
"Person" includes natural persons, corporations, business trusts,
associations, companies, joint ventures, and partnerships.
"Policy Statement" means the Broadcast Station Programming Policy
Statement in the form of Exhibit A to this Agreement, as it may be
amended from time to time in accordance with this Agreement.
SECTION 2
TERM
2.1 Term. The term of this Agreement (the "Term") will begin at
12:01 A.M. on the Effective Date, as such term is defined in Section 2.2
below, and will continue until the closing of the sale transaction
contemplated in the Option Agreement unless earlier terminated in
accordance with Section 2.3 below.
2.2 Effective Date. The effective date of this Agreement (the
"Effective Date") shall be the third business day following the
completion of all required filings under the HSR Act and all applicable
time limitations under the HSR Act shall have expired or have been
terminated early without a request for further information by the
relevant federal authorities under the HSR Act.
2.3 Termination.
(a) Illegality. This Agreement and the Term may be
terminated, subject to Section 6.6 below, by either Licensee or Broker,
by written notice to the other, if:
(i) this Agreement has been declared invalid or illegal
in whole or substantial part by an order or decree of an administrative
agency or court of competent jurisdiction and the applicability of such
order or decree has not been stayed pending further administrative or
judicial review; or
(ii) there has been a change in the Communications Act
that causes this Agreement to be in violation thereof and the
applicability of such change has not been stayed pending appeal or
further administrative review.
(b) Other Situations. This Agreement and the Term may be
terminated as follows:
(i) by written notice of one party to the other, if the
terminating party is not then in material default under this Agreement
and the other party is in material default under this Agreement and has
failed to cure such default within fifteen (15) days after receiving
notice of breach from the terminating party;
(ii) by mutual written agreement of the parties;
(iii) by written notice from either party to the
other following termination or expiration of the Option Agreement;
(iv) by written notice from either party to the other in
the event that relevant federal authorities have made a formal second
request for further information under the HSR Act; or
(v) by written notice from Broker to Licensee if during
any consecutive seven-day period, more than 4.0% of the broadcast time
between the hours of 6:00 a.m. to 6:00 p.m., or more than 7.5% of the
total broadcast hours during such period, is preempted by Licensee
pursuant to Section 4.2.
Notwithstanding the foregoing, no party shall be entitled to terminate
this Agreement while such party is in material default hereunder or under
the Option Agreement.
2.4 Effect of Termination. Upon termination of this Agreement,
the payments provided for under Section 3.1 shall be prorated to the
effective termination date of this Agreement. The provisions of
Sections 6.2(a) and 10 shall survive the termination of this Agreement.
Furthermore, if the Term is terminated, Broker shall assign and Licensee
shall assume the AFTRA Agreement (as defined in, and the assumption by
Broker on the Effective Date being described in, Section 6.2(c)) and
Licensee shall offer employment to Broker's employees subject to the
AFTRA Agreement at such time (the "AFTRA Employees"), provided that (i)
the AFTRA Agreement has not been amended, modified, or replaced in any
materially adverse respect during the Term and (ii) Licensee shall not
be required to hire more than seven full-time AFTRA Employees and eight
part-time AFTRA Employees.
SECTION 3
CONSIDERATION
3.1 General. As consideration for the air time made available
under this Agreement, Broker shall pay Licensee (i) a monthly fee equal
to $708,333.00 (or a prorated portion of such amount for any partial
calendar month) and (ii) the operating expenses (consisting of all
operating expenses resulting directly from broadcasting programing
provided by Broker and all reasonable operating expenses otherwise
incurred by Licensee in connection with the operation of the Station and
the performance of its obligations hereunder) for each calendar month (or
a prorated portion of such expenses for any partial calendar month)
incurred by Licensee during the Term in connection with providing air
time to Broker; provided, however, that the fixed monthly amount
provided for in (i) shall not be payable to the extent provided in
Section 2.3 of the Option Agreement if the Option is extended as provided
in that section. Broker will pay such amounts for each calendar month
or portion thereof within the Term not later than five (5) days after
receipt from Licensee of a statement setting forth the actual operating
expenses incurred by Licensee for such month (or portion thereof),
together with a copy of each invoice for each expense exceeding
$1,000.00; provided, however, in the event such invoice shall be lost or
destroyed, Licensee may submit a certification from its Chief Financial
Officer that such expense was duly and validly incurred. The fixed
monthly amount payable in accordance with (i) above shall be reduced by
a percentage equal to the percentage of the Station's total broadcast
time during the month (or the portion thereof for which the fee is paid)
that is preempted by Licensee pursuant to Section 4.2(b) or (c); and
further provided that any such reduction shall not preclude Broker from
exercising its rights under Section 2.3(b)(v).
3.2 Accrued Vacation Payments. With respect to each vacation or
portion thereof earned but not taken before the Effective Date by each
person previously employed by Licensee who is employed by Broker,
Licensee agrees that it shall promptly pay, on or after the Effective
Date, to each such person a cash amount equal to the compensation
equivalent of the vacation or the portion thereof earned but unused
before the Effective Date, and Licensee agrees and acknowledges that
Broker shall have no liability or obligation for payment of the
compensation equivalent related to any such accrued vacation.
SECTION 4
PROVISION OF STATION AIR TIME
4.1 Scope. During the Term, Licensee shall make available to
Broker all air time on the Station as may be requested by Broker, other
than time reserved to or permitted to be used by Licensee in accordance
with Section 4.2. Broker shall provide entertainment programming of its
selection, complete with commercial matter, news, public service
announcements, and other suitable programming, subject at all times to
Licensee's rights specified in Section 4.2 and Section 5.1. Broker shall
deliver such programming to the Station's transmitter facilities or other
authorized remote control points as reasonably designated by Licensee.
4.2 Air Time Reserved to Licensee. The parties recognize that
Licensee has certain obligations to broadcast programming to meet the
needs and interests of the Station's community of license, and nothing
in this Agreement shall abrogate the unrestricted authority of Licensee
to discharge its obligations to the public and to comply with the
Communications Act. Accordingly, notwithstanding Section 4.1:
(a) Licensee may use such time as it may require for the
broadcast of its own regularly scheduled news, public affairs,
entertainment and non-entertainment programming which may be up to four
(4) hours per week.
(b) Upon 48 hours notice to Broker, Licensee may elect to set
aside additional hours of air time per broadcast week, to be scheduled
at a mutually agreeable time, for the broadcast of specified
non-entertainment programming on issues of importance to the local
community.
(c) Although both parties shall cooperate in the broadcast
of emergency information over the Station, Licensee shall have the right
to interrupt Broker's programming in case of an emergency or for
programming that, in the reasonable good faith judgment of Licensee, is
of overriding public importance.
4.3 Exclusivity. Air time not used by Broker in accordance with
Section 4.1 nor by Licensee in accordance with Section 4.2 shall not be
made available for use by any other Person. During the Term, Licensee
will not enter into any other time brokerage, program provision, local
marketing, or similar agreement relating to the Station with any Person.
4.4 Control. Notwithstanding anything to the contrary in this
Agreement, Licensee and Broker acknowledge and agree that during the
Term, Licensee will maintain ultimate control and authority over the
Station, including control and authority over the Station's finances,
personnel and programming. Broker shall not represent, warrant or hold
itself out as Station's licensee and shall sell all its advertising time
and enter into all agreements in its own name.
SECTION 5
PROGRAMMING POLICIES
5.1 Policy Statement. Licensee has adopted and will enforce the
Policy Statement which may be amended from time to time by Licensee in
its reasonable discretion upon notice to Broker. In providing
programming for broadcast on the Station, including advertising spots and
promotional material or announcements, Broker agrees to comply in all
material respects with the Policy Statement and Communications Act.
Licensee shall have the right, upon prior written notice to Broker, to
reject or refuse any portions of Broker's programming that Licensee
reasonably believes to be unsatisfactory, unsuitable, or contrary to the
public interest, and to suspend or cancel any program supplied by Broker
that it reasonably determines does not comply with the Policy Statement.
Licensee and Broker will cooperate in an effort to avoid and/or resolve
conflicts regarding programming on the Station.
5.2 Compliance with Copyright Law. Broker shall not broadcast any
material on the Station in violation of applicable copyright law or the
rights of any Person. All music supplied by Broker shall be (a) licensed
by a music licensing society such as ASCAP, BMI, or SESAC; (b) in the
public domain; or (c) cleared at the source by Broker. Broker shall
retain the exclusive right to use and to authorize the use in any manner
of any programming licensed to it.
5.3 Political Advertising. Broker shall cooperate with Licensee
to assist Licensee in complying with the provisions of the Communications
Act regarding political advertising. Broker shall supply such
information promptly to Licensee as may be necessary to comply with the
public inspection file, lowest unit rate, equal opportunities, and
reasonable access requirements of the Communications Act and FCC rules
and regulations. If the Station fails to meet its political time
obligation under the Communications Act based on the advertising sold by
Broker in the programming material provided by Broker, then to the extent
reasonably necessary to enable Licensee to cause the Station to comply
with its political time obligations, Broker shall release advertising
availabilities to Licensee; provided, however, that all revenues realized
by Licensee from the sale of such advertising time shall be promptly paid
to Broker.
5.4 Payola. Broker agrees that it will not accept any
consideration whatsoever, regardless of its value or form, including a
commission, discount, bonus, material, supplies or other merchandise,
services, or labor, whether or not pursuant to written contracts or
agreements between Broker 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. Broker agrees to cause the execution and delivery
to Licensee, from time to time at the request of Licensee, of an
appropriate Payola Affidavit substantially in the form attached hereto
as Exhibit B.
5.5 Cooperation on Programming. Licensee and Broker will
cooperate reasonably in an effort to avoid conflicts regarding the
programming on the Station and to ensure that the Station's programming
conforms with the Policy Statement and the Communications Act.
SECTION 6
OTHER OBLIGATIONS OF THE PARTIES
6.1 Operation of the Station. Licensee will have the authority,
power and control over the operations of the Station during the Term, in
accordance with and subject to the following:
(a) Licensee will bear all responsibility for the Station's
compliance with all applicable provisions of the Communications Act and
all other applicable laws. Licensee will file in a timely and complete
manner all reports and applications required to be filed with the FCC or
any other governmental body including, but not limited to, filing all
license or authorization renewal applications with the FCC. Broker shall
cooperate with Licensee in connection with these matters to the extent
reasonably requested by Licensee.
(b) Licensee shall continue to maintain a main studio, as
that term is defined by the FCC, within the Station's principal community
contour, shall maintain its local public inspection file within the
community of license, and shall prepare and place in such inspection file
or files its quarterly issues and program lists on a timely basis in
compliance with the Communications Act. Broker shall cooperate with
Licensee in connection with these matters to the extent reasonably
requested by Licensee.
(c) Licensee shall maintain the station logs, receive and
respond to telephone inquiries, and control and oversee any remote
control point for the Station. Broker shall cooperate with Licensee in
connection with these matters to the extent reasonably requested by
Licensee.
(d) Licensee shall employ at its expense such personnel to
direct the day-to-day operations of the Station as may be necessary to
comply with the provisions of the Communications Act regarding main
studio staffing and such additional personnel as shall be necessary to
enable Licensee to perform its obligations under this Agreement. All
such employees will report to and be accountable solely to Licensee.
Licensee shall notify Broker prior to making any changes in management
personnel.
(e) Licensee shall maintain in effect policies of insurance
insuring the assets and the business of the Station.
(f) Licensee shall cause the Station's transmitting facility
to be maintained at all times in good working order and substantially in
accordance with the engineering requirements set forth in the Station's
FCC authorizations, including operating at substantially maximum
authorized power and ERP (except at such time where reduction of power
is required for routine or emergency maintenance).
(g) Licensee shall be responsible for and shall pay in a
timely manner all operating costs of the Station (other than the costs
to be borne by Broker in accordance with Section 6.2), including costs
of maintaining the transmitting facility, the cost of electricity and
other utilities, rental payments, taxes, and the salaries, taxes,
insurance, and related costs for all personnel employed by Licensee.
6.2 Rights and Responsibilities of Broker. Broker shall have the
sole right to sell all commercial time occurring within the programming
provided by Broker to the Station in accordance with the following
provisions:
(a) Broker shall retain all revenues from the sale of
advertising time on the Station during programming provided to the
Station by Broker. Broker may sell advertising on the Station in
combination with any other broadcast stations of its choosing. Broker
shall be responsible for payment of the commissions due to any national
sales representative engaged by it for the purpose of selling national
advertising to be carried during its programming.
(b) Broker shall be solely responsible for any expenses
incurred in the origination and delivery of programming from any remote
location, any publicity or promotional expenses incurred by Broker, and
all music licensing fees with respect to the broadcast of Broker's
programming on the Station.
(c) Broker shall employ and be solely responsible for the
salaries, taxes, and related costs for all personnel used in the
production of its programming provided to the Station and the sale of
advertising time within that programming (including announcers,
salespeople, traffic personnel, board operators, and programming staff).
On the Effective Date, Licensee shall assign and Broker shall assume all
rights and obligations arising on and after the Effective Date under the
AFTRA Agreement (as defined in the Option Agreement), and Broker shall
notify the union of the foregoing assignment and assumption.
Furthermore, (i) Broker agrees to offer employment, effective as of the
Effective Date, to the fifteen individuals identified by Licensee to
Broker as being subject to the AFTRA Agreement in Schedule 4.15 to the
Option Agreement, (ii) Licensee agrees to reimburse Broker for up to an
aggregate $100,000 of severance costs incurred by Broker in connection
with the termination of employment of any of those individuals within one
year of the Effective Date, and (iii) Licensee agrees to reimburse Broker
for up to an aggregate $100,000 of severance or other costs incurred by
Broker in connection with the termination of employment of Jim Kerr (for
whatever reason) if such termination occurs within one year of the
Effective Date (including, but not limited to, any costs incurred by
Broker in negotiating a settlement to terminate Mr. Kerr's employment
agreement).
(d) Broker shall maintain broadcaster's errors and omissions
insurance with respect to the programming to be broadcast by Broker over
the Station, and shall name Licensee as an additional insured on all such
insurance policies. Broker shall provide evidence of such insurance
coverage with such insurance carriers and such policy limits as are
reasonably acceptable to Licensee, upon Licensee's request.
(e) Broker covenants and agrees that it will comply in all
material respects with all applicable federal, state, and local laws,
rules, and regulations (including, without limitation, all FCC rules,
policies, and regulations) in the provision of programming to the Station
as contemplated herein and in the performance of its obligations
hereunder.
(f) As soon as practicable after the Effective Date, Licensee
shall deliver to Broker a complete and detailed list of all the Station's
accounts receivable arising from the broadcast of advertising time on the
Station prior to the Effective Date. For a period of ninety (90) days
following the Effective Date (the "Collection Period"), Broker will use
its reasonable efforts, as Licensee's agent, to collect such accounts
receivable in the usual and ordinary course of business. Broker shall
not be required to institute any legal proceedings to enforce the
collection of such accounts receivable or to refer any of such accounts
receivable to a collection agency. Broker shall not adjust any such
accounts receivable or grant credit without Licensee's written consent,
and any such accounts receivable amounts collected on behalf of Licensee
shall be paid to Licensee on the thirtieth (30th), sixtieth (60th) and
ninetieth (90th) days after the Effective Date. On the ninetieth (90th)
day after the Effective Date, Broker shall return to Licensee any such
uncollected accounts receivable, together with all files concerning the
collection or attempts to collect such accounts receivable, and Broker's
responsibility shall cease. Broker shall incur no liability to Licensee
for any uncollected account. All sums collected by Broker during the
Collection Period from any person obligated with respect to any such
account receivable shall be applied first to such account receivable.
After full satisfaction of Licensee's account, the balance, if any, shall
be applied to Broker's accounts.
6.3 Access to Information. Solely for the purpose of ensuring
compliance with the Communications Act and Station policies, including
the preparation by Licensee of its quarterly issues and program lists and
the satisfaction of its community service obligations, Licensee shall be
entitled to review at its reasonable discretion any programming material
of Broker that it may request. Broker shall promptly provide Licensee
with copies of all correspondence and complaints received from the public
(including any telephone logs of complaints called in) and copies of all
program logs and promotional materials. Broker shall also maintain and
deliver to the Station such records and information required by the FCC
to be placed in the public inspection file of the Station pertaining to
the broadcast of political programming and advertisements, in accordance
with the provisions of Sections 73.1940 and 73.3526 of the FCC's rules,
and to the broadcast of sponsored programming addressing political issues
or controversial issues of public importance, in accordance with the
provisions of Section 73.1212 of the FCC's rules. Broker shall furnish
to Licensee upon request any other information that is reasonably
necessary to enable Licensee to prepare any records or reports required
by the FCC or other governmental entities. Nothing in this Section shall
entitle Licensee to review the internal corporate or financial records
of Broker. If this Agreement is terminated, Licensee will return to
Broker all information obtained by Licensee from Broker in connection
with this Agreement.
6.4 Call Letters. Licensee will not change the call letters of
the Station without Broker's consent.
6.5 Trade Obligations. Broker shall, on and after the Effective
Date, perform all obligations of Licensee, to the extent such obligations
are required to be fulfilled pursuant to the terms of the following,
under (i) each of the Trade Agreements identified in Schedule 4.8(a) to
the Option Agreement which remain unsatisfied as of the Effective Date
and (ii) the Station Agreements for the sale of advertising time listed
on Schedule 4.8(b)(viii) to the Option Agreement (but only as to those
obligations which arise on or after the Effective Date). Broker shall,
after the Effective Date and to the extent such obligations were
performed after such date, be entitled to receive and to retain all of
the benefits and amounts paid under or pursuant to the foregoing
agreements.
6.6 Regulatory Changes. In the event of any order or decree of an
administrative agency or court of competent jurisdiction, including
without limitation any material change or clarification in FCC rules,
policies, or precedent, which would cause this Agreement to be in
violation of any applicable law, the parties will use their respective
best efforts and negotiate in good faith to modify this Agreement to the
extent necessary to comply fully with such order or decree. If despite
such best efforts the parties are unable to negotiate a mutually
agreeable modification, either party may terminate this Agreement and
both parties shall thereupon be relieved of all liability hereunder
accruing after the termination date.
6.7 Trademarks, Etc. Licensee hereby grants to Broker a royalty
free, paid-in-full unlimited license to use any and all trademarks,
service marks, patents, trade names, jingles, slogans, logotypes,
logograms, and other intangible assets and rights owned and used or held
for use by Licensee in conjunction with the Station, including, but not
limited to, the call letters "WQCD-FM".
6.8 HSR Act Filing. Within ten (10) days after the execution of
this Agreement, Licensee and Broker shall, in cooperation with each
other, file the reports and notifications under the HSR Act required in
connection with the transactions contemplated hereby. Licensee and
Broker will equally share the fees for such filings.
6.9 Certifications. Licensee certifies that it will remain in
control of the facilities of the Station, including control over the
Station's finances, personnel and programming. Broker certifies that
this Agreement complies with the provisions of
47 C.F.R. Section 73.3555(a).
SECTION 7
REPRESENTATIONS AND WARRANTIES OF LICENSEE
Licensee represents and warrants to Broker as follows:
7.1 Authorization and Binding Obligation. This Agreement has been
duly executed and delivered by Licensee and constitutes the valid and
binding obligation of Licensee, enforceable against Licensee in
accordance with its terms except as the enforceability hereof may be
affected by bankruptcy, insolvency, or similar laws affecting creditors'
rights generally and by judicial discretion in the enforcement of
equitable remedies.
7.2 Absence of Conflicting Agreements or Consents. The execution,
delivery and performance of this Agreement and the documents contemplated
hereby by Licensee (with or without the giving of notice, the lapse of
time, or both): (a) do not require the consent of any governmental or
regulatory authority or any other Person; (b) will not conflict with the
Certificate of Incorporation or By-Laws of Licensee; (c) will not
conflict with, result in a breach of, or constitute a default under any
judgment, order, ordinance, injunction, decree, rule, regulation or
ruling of any court or governmental instrumentality; (d) will not
conflict with, constitute grounds from termination of, result in a breach
of, constitute a default under, or accelerate or permit the acceleration
of any performance required by the terms of any material agreement,
instrument, license, or permit to which Licensee is a party or by which
it may be bound; and (e) will not create any claim, lien, charge, or
encumbrance upon any of the assets of the Station.
7.3 Authorizations. Licensee is the authorized legal holder of
all licenses, permits, and other authorizations required from
governmental and regulatory authorities for the lawful conduct of the
business of the Station in the manner it has been conducted.
SECTION 8
REPRESENTATIONS AND WARRANTIES OF BROKER
Broker represents and warrants to Licensee as follows:
8.1 Authorization and Binding Obligation. The execution,
delivery, and performance of this Agreement by Broker have been duly
authorized by all necessary corporate action on the part of Broker. This
Agreement has been duly executed and delivered by Broker and constitutes
a valid and binding obligation of Broker, enforceable against Broker in
accordance with its terms except as the enforceability hereof may be
affected by bankruptcy, insolvency, or similar laws affecting creditors'
rights generally and by judicial discretion in the enforcement of
equitable remedies.
8.2 Absence of Conflicting Agreements and Required Consents. The
execution, delivery, and performance of this Agreement and the documents
contemplated hereby Broker (with or without the giving of notice, the
lapse, of time, or both); (a) do not require the consent of any
governmental or regulatory authority or any other Person; (b) will not
conflict with the Articles of Incorporation or By-Laws of Broker; (c)
will not conflict with, result in a breach of, or constitute a default
under, any judgment, order, ordinance, injunction, decree, rule,
regulation, or ruling of any court or governmental instrumentality; and
(d) will no conflict with, constitute grounds for termination of, result
in a breach of, constitute a default under or accelerate or permit the
acceleration of any performance required by the terms of, any agreement,
instrument, license or permit to which Broker is a party or by which
Broker may be bound.
SECTION 9
[INTENTIONALLY OMITTED]
SECTION 10
MISCELLANEOUS
10.1 Notices. All notices, demands or other communications given
hereunder shall be in writing and shall be sufficiently given if
delivered by courier (including overnight delivery service) or sent by
registered or certified mail, first class, postage prepaid, to the
following address:
if to Broker, to:
EMMIS BROADCASTING CORPORATION
950 North Meridian Street, Suite 1200
Indianapolis, Indiana 46204
Attention: Jeffrey H. Smulyan, President
Copy to:
Bose McKinney & Evans
2700 First Indiana Plaza
Indianapolis, Indiana 46204
Attention: David L. Wills, Esq.
and
if to Licensee, to:
TRIBUNE NEW YORK RADIO, INC.
435 North Michigan Avenue, Suite 2300
Chicago, Illinois 60611
Attention: President
Copy to:
TRIBUNE COMPANY
435 North Michigan Avenue, Suite 600
Chicago, Illinois 60611
Attention: General Counsel
and
Sidley & Austin
One First National Plaza
Chicago, Illinois 60603
Attention: Larry A. Barden
or to such other address as a party may from time to time notify the
other party in writing (as provided above). Any such notice, demand or
communication shall be deemed to have been given (i) if so mailed, as of
the close of the third business day following the date so mailed, and
(ii) if delivered by courier, on the date received.
10.2 Binding Effect; Benefits. Except as otherwise provided
herein, this Agreement shall inure to the benefit of and be binding upon
the parties and their respective successors or permitted assigns. Except
to the extent specified herein, nothing in this Agreement, express or
implied, shall confer on any person other than the parties hereto and
their respective successors or permitted assigns any rights, remedies,
obligations or liabilities under or by reason of this Agreement.
10.3 Assignment. Neither this Agreement nor any of the rights,
interests or obligations hereunder may be assigned by either party
without the prior written consent of the other party, provided that:
(a) Either party may assign its rights under this Agreement
as collateral security to any lender providing financing to the party or
any of its Affiliates (as defined in the Option Agreement); and
(b) Broker may assign all of its rights under this Agreement
to an Affiliate, provided that (i) the representations and warranties of
Broker hereunder shall be true and correct in all material respects as
applied to the assignee, (ii) both Broker and the assignee shall execute
and deliver to Licensee a written instrument in form and substance
satisfactory to Licensee within its reasonable judgment in which both
Broker and the assignee agree to be jointly and severally liable for
performance of all of Broker's obligations under this Agreement, and
(iii) Broker and the assignee shall deliver such other documents and
instruments as reasonably requested by Licensee, including appropriate
certified resolutions of the boards of directors of Broker and the
assignee.
10.4 Further Assurances. The parties shall take any actions and
execute any other documents that may be necessary or desirable to the
implementation and consummation of this Agreement.
10.5 Governing Law. This Agreement shall in all respects be
governed by and construed in accordance with the laws of the State of New
York without regard to its principles of conflicts of laws.
10.6 Headings. The headings herein are included for ease of
reference only and shall not control or affect the meaning or
construction of the provisions of this Agreement.
10.7 Gender and Number. Words used herein, regardless of the
gender and number specifically used, shall be deemed and construed to
include any other gender, masculine, feminine, or neuter, and any other
number, singular or plural, as the context requires.
10.8 Entire Agreement. This Agreement represents the entire
understanding and agreement between Broker and Licensee with respect to
the subject matter hereof. This Agreement cannot be amended,
supplemented, or changed except by an agreement in writing that makes
specific reference to this Agreement and that is signed by the party
against which enforcement of any such amendment, supplement, or
modification is sought.
10.9 Counterparts. This Agreement may be signed in counterparts
with the same effect as if the signature on each counterpart were upon
the same instrument.
10.10 Severability. If any provision of this Agreement or the
application thereof to any person or circumstance shall be invalid or
unenforceable to any extend, the remainder of this Agreement and the
application of such provision to other persons or circumstance shall not
be affected thereby and shall be enforced to the greatest extent
permitted by law.
10.11 References. All references in this Agreement to Sections
are to Sections contained in this Agreement unless a different document
is expressly specified.
10.12 Exhibits. Each Exhibit referred to in this Agreement is
attached hereto, and each such Exhibit is hereby incorporated by
reference and made a part hereof as if fully set forth herein.
IN WITNESS WHEREOF, this Agreement has been executed by Licensee and
Broker as of the date first written above.
TRIBUNE NEW YORK RADIO, INC.
By: /s/ Wayne R. Vriesman
______________________________
Wayne R. Vriesman
President
"Licensee"
EMMIS BROADCASTING CORPORATION
By: /s/ Jeffrey H. Smulyan
______________________________
Jeffrey H. Smulyan
Chairman
"Broker"
Exhibit A
BROADCAST STATION
PROGRAMMING POLICY STATEMENT
1. Religion
(a) Respectful of Faiths. The subject of religion and
references to particular faiths, tenets, and customs shall be treated
with respect at all time.
(b) No Denominational Attacks. Programs shall not be used
as a medium for attack on any faith, denomination, or sect or upon any
individual or organization.
(c) Treatment of Parapsychology. The advertising or
promotion of fortunetelling, occultism, astrology, phrenology, palm
reading, numerology, mind-reading, character readings, or subjects of
like nature is not permitted.
(d) Sale of Religious Artifacts. The offering for sale of
religious artifacts or other items for which listeners would send money
is prohibited unless such items are readily available in ordinary
commerce or are clearly being sold for legitimate fund-raising purposes.
(e) No Claims of Miracles. Any claims of miracles or curses
not depicted in biblical scripture and quoted in context are prohibited;
this policy prohibits a minister or other individual appearing on a
program from personally claiming any cures or miracles and also prohibits
the presentation of any testimonials regarding such claims either in
person or in writing.
2. Controversial Issues. Any discussion of controversial issues
of public importance shall be reasonably balanced with the presentation
of contrasting viewpoints in the course of overall programming; no
attacks on the honesty, integrity, or like personal qualities of any
person or group of persons shall be made during the discussion of
controversial issues of public importance; and during the course of
political campaigns, programs are not to be used as a forum for
editorializing about individual candidates. If such events occur,
Station management may require that responsive programming be aired.
3. No Plugola. The mention of any business activity or "plug"
for any commercial, professional, or other related endeavor, except where
contained in an actual commercial message of a sponsor, is prohibited.
4. Lotteries and Contests.
(a) Illegal Lotteries. Announcements giving any information
about lotteries or games prohibited by federal or state law or
regulations are prohibited.
(b) "Dream Books". References to "dream books," the
"straight line," or other direct or indirect descriptions or
solicitations relative to the "numbers game," or the "policy game," or
any other form of gambling are prohibited.
(c) Numbers. References to chapter and verse numbers,
paragraph numbers, or song numbers that involve three digits should be
avoided and, when used, must be related to the overall theme of the
program.
(d) Contests. Any game, contest, or promotion relating to
or to be presented over the Station must be fully stated and explained
in advance to Station management, which reserves the right in its sole
discretion to reject any game, contest, or promotion.
5. Required Announcements. Broker shall broadcast (i) an
announcement in a form satisfactory to Station management at the
beginning of each hour to identify the Station, (ii) an announcement at
the beginning and end of each program to indicate that program time has
been purchased by the Broker, and (iii) any other announcements that may
be required by law, regulation, or Station policy.
6. Programming Prohibitions. Broker shall not knowingly and
willfully broadcast any of the following programs or announcements:
(a) False Claims. False or unwarranted claims for any
product or service.
(b) Unfair Imitation. Infringements of another advertiser's
rights through plagiarism or unfair imitation of either program idea or
copy, or any other unfair competition.
(c) Indecent. Any programs or announcements that are
indecent, obscene, profane, vulgar, repulsive, or offensive, either in
theme or in treatment.
(d) Descriptions of Bodily Functions. Any continuity which
described repellently any internal bodily functions or symptomatic
results of internal disturbances, and no reference to matters which are
not considered acceptable topics in social groups.
(e) Injurious Advertising. Any advertising matter or
announcement that may, in the option of the Station, be injurious or
prejudicial to the interests of the public, or to honest advertising and
reputable business in general.