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Exhibit 10.64
EXECUTION
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TIME BROKERAGE AGREEMENT
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This Time Brokerage Agreement (the "Agreement") by and between Tropic
of St. Simons, Inc., a Delaware corporation ("Time Broker"), Lee M. Mitchell
("Licensee"), the receiver appointed by order of the Superior Court of Fulton
County, Georgia ("Superior Court") or any successor receiver appointed by said
Court to manage the assets of WMOG (FM) and WMOG (AM) (the "Station"), recites
and provides as follows.
WHEREAS, Licensee has available broadcasting time and is engaged in the
business of radio broadcasting on the Station; and
WHEREAS, Time Broker desires to avail itself of some of the Station's
broadcast time;
NOW, THEREFORE, for and in consideration of the mutual covenants herein
contained, the parties hereto have agreed and do agree as of the _______ day of
March, 1994 (the "Commencement Date"), as follows:
W I T N E S S E T H:
1. FACILITIES. Licensee shall broadcast on the Station, or cause
to be broadcast, programs which are presented to it by Time Broker as described
in greater detail on Attachment I hereto. Notwithstanding the foregoing,
Licensee reserves the right to refuse to broadcast any program or programs
containing matter which is, or in the opinion of Licensee may be, or which a
third party claims to be, violative of any right of its or theirs or which may
constitute a personal attack as that term is and has been defined by the
Federal Communications Commission (the "FCC"), or which is deemed to be
indecent or obscene by the FCC. During the term hereof, Time Broker shall
maintain the ability to deliver its programming to Licensee's transmitter site.
2. CONSIDERATION. Time Broker shall pay Licensee for broadcast of
the programs provided hereunder in the amounts specified in Section 1 of
Attachment II hereto. The failure of Licensee to demand or insist upon timely
payment shall not constitute a waiver of its right to do so.
3. TERM. Unless earlier terminated in accordance with the express
provisions
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hereof, this Agreement shall continue until the Closing Date as defined in
Section 11.1 of the Purchase Agreement (as defined in Section 21 hereof).
4. PROGRAMS. Time Broker shall furnish or cause to be furnished
the artistic personnel and material for the programs provided pursuant to this
Agreement and all such programs shall be in good taste and in material
accordance with applicable statutes and FCC requirements. All programs provided
by Time Broker hereunder shall be prepared and presented in material conformity
with the standards set forth in Attachment III hereto and shall be transmitted
by Time Broker at its own cost to Licensee's transmitter site.
5. HANDLING OF MAIL. Licensee shall not be required to receive or
handle mail, cables, telegraph or telephone calls in connection with the
programs provided by Time Broker hereunder. Time Broker shall promptiy advise
Licensee of any public or FCC complaint or inquiry known to Time Broker
concerning such programming, and shall provide Licensee with copies of any
letters to Time Broker from the public concerning the foregoing. Time Broker
shall timely respond to all such communications as appropriate.
6. PROGRAMMING AND OPERATING STANDARDS AND PRACTICES.
6.1 COMPLIANCE WITH STANDARDS. Time Broker shall adhere in
all material respects to the standards set forth in Attachment III hereto with
respect to the Station's programming and operations and shall comply with all
applicable statutes and FCC requirements with respect to such programming and
operations. If, in the judgment of Licensee, Time Broker does not adhere in all
material respects to such standards, Licensee may suspend or cancel any
specific program not in compliance, and Time Broker will endeavor to provide
substitute programming therefor. From and after the Commencement Date, Time
Broker shall perform its obligations hereunder in all material respects in a
commercially reasonable manner consistent with industry standards.
6.2 EQUIPMENT AND EXPENDITURES. All transmitting equipment
necessary for broadcasting by the Station shall be maintained by Licensee in a
condition consistent with good engineering practice and in compliance in all
material respects with the applicable rules, regulations and technical
standards of the FCC.
6.3 FCC COMPLIANCE. Time Broker shall maintain and deliver
to Licensee all records and information required by the FCC to be placed in the
public inspection files of the 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 subjects of public
importance, in accordance with the provisions of Section 73.1212 of the FCC's
rules. Time Broker also shall consult with Licensee and adhere strictiy to all
applicable statutes and the rules, regulations and policies of the FCC as
announced from time to time, with respect to the carriage of political
advertisements and programming (including, without limitation, the rights of
candidates and, as appropriate, others to "equal opportunities" and the
carriage of
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contrasting points of view as mandated by any "fairness" rules with respect to
such "issue-oriented" advertising or programming as may be broadcasf) and the
charges permitted therefor. Time Broker shall provide the Licensee such
documentation relating to such programming as Licensee shall request, and shall
indemnify Licensee for any claim, demand, cost or expense (including reasonable
attorneys' fees) arising from the broadcast of any such material on the Station
during the term of this Agreement.
7. RESPONSIBILITY FOR EMPLOYEES AND EXPENSES. Time Broker shall
employ and be responsible for the salaries, taxes, insurance and costs related
to all personnel used in the production of its programming, and Licensee shall
bear the same responsibility with respect to all personnel used in the
production of its programming and shall, if requested by Time Broker, execute
and deliver a certification in the form of Attachment VIII hereto. Time Broker
shall pay for all costs associated with its program production, all fees to
ASCAP, BMI and SESAC attributable to its programs and for any other copyright
fees attributable to its programming broadcast on the Station. Each party shall
indemnify and hold the other party harmless from all costs and liabilities
imposed on it under this Section 7.
8. OPERATION OF STATION. Notwithstanding anything to the contrary
in this Agreement, Licensee shall retain full authority and power with respect
to the operation of the Station during the term of this Agreement, and shall
take any and all steps necessary to faithfully and continuously do so
throughout the term of this Agreement and shall, if requested by Time Broker,
execute and deliver a certification in the form of Attachment VIII hereto.
Licensee shall maintain all licenses, contracts, leases and other agreements
necessary to the operation of the Station during the term hereof in accordance
with the express provisions of this Agreement. Licensee further agrees and
acknowledges that its responsibility to retain control is an essential element
of the continuing validity and legality of this Agreement. Without limiting the
generality of the provisions of Section 7, Licensee shall provide and pay for
(a) its General Manager for the Station, who shall report solely to, and be
accountable solely to, Licensee and who shall direct the day-to-day operations
of the Station and (b) such other engineering and programming costs and
expenses as are necessary to fulfill its obligations under this Agreement,
including but not limited to all costs of required meter readings and any
remote control facilities to be manned by Licensee's personnel to meet FCC
operating requirements. Licensee shall retain control over the policies,
programming and operations of the Station, including, without limitation, the
right to decide whether to accept or reject any programming or advertisements,
the right to preempt any program in order to broadcast a program deemed by
Licensee to be of greater national, regional or local interest, and the right
to take any other actions necessary to comply with the laws of the United
States, and the rules, regulations, and policies of the FCC, including the
rules regarding the prohibition of unauthorized transfers of control. Licensee
shall be responsible for meeting all applicable operating requirements with
respect to its local service obligations.
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9. SPECIAL EVENTS. Licensee reserves the right, in its sole
discretion and without liability to Time Broker, to preempt any of Time
Broker's programs, and to use part or all of the time contracted for by Time
Broker hereunder to broadcast events of special importance. In all such cases,
Licensee will use its best efforts to give Time Broker reasonable notice of its
intention to preempt such broadcast or broadcasts, and, in the event of such
preemption, Time Broker shall receive from Licensee the payment credit
specified in Section 2 of Attachment II hereto for the preempted broadcast or
broadcasts.
10. FORCE MAJEURE. No failure or impairment (i. e., failure to
broadcast at the Station's full authorized height and power) of the facilities
of the Station or any delay or interruption in broadcast programs, or failure
at any time to furnish facilities, in whole or in part, for broadcasting, due
to acts of God, strikes or threats thereof or force majeure or due to other
causes behind the reasonable control of Licensee shall constitute an Event of
Default under this Agreement. Licensee shall not be liable to Time Broker with
respect to any such failure or impairment, except to the extend of allowing in
each such case an appropriate payment credit to Time Broker for time or
broadcasts not provided.
11. RIGHTS IN PROGRAMS. All right, titie and interest in and to all
programs provided by Time Broker hereunder, and the right to authorize the use
of such programs in any manner and in any media whatsoever, shall be and
remain vested at all times solely in Time Broker.
12. PAYOLA; PLUGOLA. Time Broker shall execute and deliver to
Licensee an annual Payola Affidavit, substantially in the form attached hereto
as Attachment IV. Time Broker agrees that neither it not its employees or
agents will accept any gift, gratuity or other consideration from any party for
the playing of records, the presentation of any programming or the broadcast of
any commercial announcement over the Station without such broadcast being
announced as sponsored. No commercial message, plug or undue reference shall
be made in any programming presented over the Station to any business venture,
profit-making activity or other interest (other than non-commercial
announcements or bona fide charities, church activities or other public service
activities) without such broadcast being announced as sponsored.
13. COMPLIANCE WITH LAW. Each party shall comply with all laws and
regulations applicable to the conduct of its business and the broadcast of its
programming.
14. INDEMNIFICATION. From and after the Commencement Date, each
party shall indemnify and hold harmless the other pursuant to the terms of the
Indemnification Agreement attached hereto as Attachment VII, and executed and
delivered by the parties herewith.
15. EVENTS OF DEFAULT. Except as expressly set forth Section 10,
the following, after the expiration of the applicable cure periods specified
in Paragraph 15.6, shall constitute Events of Default under the Agreement:
15.1 NON PAYMENT. Time Broker's failure to timely pay the
consideration
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provided for in Paragraph 2 hereof;
15.2 DEFAULT IN COVENANTS. Time Broker's or Licensee's material
default in the observance or performance of any covenant, condition or
agreement contained herein; or
15.3 BREACH OF REPRESENTATION. Time Broker's or Licensee's
material breach of any representation or warranty made by it herein, or in any
certificate or document furnished pursuant to the provisons hereof, which shall
prove to have been false or misleading in any material respect as of the time
made or furnished.
15.4 DEFAULT UNDER RELATED AGREEMENTS. The occurrence of an
Event of Default under the Purchase Agreement and any other related agreement
with respect to either party.
15.5 INSOLVENCY; BANKRUPTCY; RECEIVERSHIP.
(a) If either party shall (1) fail to pay generally its
debts as they become due, (2) commence a voluntary case under the Federal
bankruptcy laws, as now or hereafter constituted, or any other applicable
Federal or state bankruptcy, insolvency or other similar law, (3) consent or
fail to object to the appointment of a receiver, liquidator, assignee, trustee,
custodian, sequestrator or other similar official for such party or any
substantial part of such party's property, or to the taking possession by any
such official of any substantial part of the property of such party, or (4)
make any assignment for the benefit of creditors;
(b) The entry of (1) any decree or order for relief
by a court having jurisdiction over either party or its property in an
involuntary case under the Federal bankruptcy laws, as now or hereafter
constituted, or any other applicable Federal or state bankruptcy, insolvency or
other similar law, (2) any decree or order for appointment of a receiver,
liquidator, assignee, trustee, custodian, sequestrator or similar official for
either party or any substantial part of such party's property, or (3) any
decree or order for the termination or liquidation of any of the affairs of
either party and any such entry shall continue unstayed and in effect for 60
days; or
(c) If either party shall fail within 60 days after the
commencement of any proceedings against it under the Federal bankruptcy laws or
any other applicable Federal or state bankruptcy, insolvency or similar law, to
have such proceedings dismissed or stayed.
15.6 CURE PRRIODS. An Event of Default pursuant to Sections
15.1 through 15.4 hereof, inclusive, shall not be deemed to have occurred until
thirty (30) days after the non-defaulting party has provided the defaulting
party with written notice specifying the event or events that if not cured
would constitute an Event of Default, and such an event of default has not been
cured. This period may be extended (in writing only, and only by the
non-defaulting party in its sole discretion) for a reasonable period of time if
the defaulting party is acting in good faith to cure and such delay is not
materially adverse to the other party.
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16. TERMINATION.
16.1 TERMINATION FOR DEFAULT. Either party may terminate
this Agreement upon the occurrence of an uncured Event of Default with respect
to the other party by giving the other party written notice of such termination.
16.2 TERMINATION FOR CHANGE IN FCC RULES OR POLICIES. The
parties believe that the terms of this Agreement meet all of the requirements
of current FCC policy for brokerage agreements and agree that they shall
negotiate in good faith to meet any FCC concern with respect to it if they are
incorrectiy interpreting current FCC policy or if that policy is modified. If
the parties cannot agree within a reasonable time to a modification or
modifications deemed necessary by either party to meet FCC requirements, either
party may terminate this Agreement by giving the other party written notice of
termination. Notwithstanding any termination hereof under this Section 16.2,
the parties shall continue to be bound by their respective obligations under
the Purchase Agreement.
16.3 TERMINATION FOR CLOSING UNDER PURCHASE AGREEMENT. This
Agreement shall immediately terminate upon the occurrence of the Closing under
the Purchase Agreement.
16.4 EVENTS UPON TERMINATION OR EXPIRATION.
(a) Upon any termination or expiration hereof, (f)
Licensee shall be under no further obligation to make available to Time Broker
any further broadcast time or broadcast transmission facilities and all amounts
accrued or payable to Licensee up to the date of termination which have not
been paid shall immediately become due and payable by Time Broker, (if) Time
Broker shall be responsible for debts and obligations of Time Broker resulting
from the use of air time and transmission facilities including, without
limitation, accounts payable and net barter balances, but not for Licensee' s
federal, state, local and other tax liabilities associated with Time Broker's
payments hereunder or for other payments to Licensee, and (iii) in the event
that the Purchase Agreement is terminated prior to the Closing, Time Broker
shall assign to Licensee and Licensee shall assume the Assigned Contracts (as
defined in Section 30) that remain in effect (or that have been renewed,
extended or replaced on substantially similar terms) on the date of such
termination or expiration together (provided that Time Broker has procured the
necessary consents to such reassignment) with all agreements between Time
Broker and others for the sale of broadcast time on the Stations for cash at
reasonable market rates in effect on such date; provided, however, that
Licensee shall not be required to assume any renewal, extension or replacement
of an Assigned Contract that has a remaining term of more than one (1) year
unless such agreements are approved in writing by Licensee in advance. With
respect to any contract assigned to Licensee pursuant to this subjection
16.4(a), all expenses and income arising under such contracts shall be prorated
between Licensee and Time Broker as of the date on which such contracts are
assigned to Licensee (the "Proration Date") in a manner such that the operation
of the Station on or before the Proration Date shall be for the account of
Time Broker and, thereafter for the account of Licensee.
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(b) No expiration or termination hereof shall limit or
impair any party' s rights to receive payments due and owing hereunder on or
before the effective date of such termination.
17. MODIFICATION AND WAIVER. No modification or waiver of any
provision of this Agreement shall in any event be effective unless the same
shall be in writing signed by the party against whom the waiver is sought to be
enforced, and then such waiver and consent shall be effective only in the
specific instance and for the purpose for which given.
18. NO WAIVER; REMEDIES CUMMULATIVE. No failure or delay on the part
of Licensee or Time Broker in exercising any right or power hereunder shall
operate as a waiver thereof, nor shall any single or partial exercise of any
such right or power, or any abandonment or discontinuance of steps to enforce
such a right or power, preclude any other or further exercise thereof or the
exercise of any other right or power. The rights and remedies of Licensee and
Time Broker herein provided are cumulative and are not exclusive of any rights
or remedies which they may otherwise have.
19. CONSTRUCTION. This Agreement shall be construed in accordance
with the laws of the Delaware without reference to confiict of laws principles,
and the obligations of the parties hereto are subject to all federal, state or
municipal laws or regulations now or hereafter in force and to the regulations
of the FCC and all other governmental bodies or authorities presentiy or
hereafter duly constituted.
20. REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE PARTIES.
20.1 REPRESENTATIONS, WARRANTIES AND COVENANTS OF TIME BROKER.
Time Broker hereby represents, warrants and covenants to Licensee as set forth
in this Section 20.1.
20.1.1 CORPORATE ORGANIZATION. Time Broker is a
corporation duly incorporated, validly existing and in good standing under the
laws of the State of Georgia.
20.1.2 AUTHORIZATION; LAFORCEABILITY. Subject to the
following sentence, this Agreement has been duly executed and delivered by Time
Broker, and Time Broker has the full right, power, authority and legal capacity
to enter into, and perform its obligations under this Agreement, and to
consummate the transactions contemplated hereby. Time Broker shall take all
necessary steps to insure that the execution and delivery of this Agreement and
the consummation of the transactions provided for hereby, are duly authorized by
the Board of Directors of Time Broker, and no other corporate or other
proceedings on the part of Time Broker shall be necessary to authorize the
execution or delivery of this Agreement or the transactions provided for
hereby. With respect to Time Broker, this Agreement is valid, binding and
enforceable in accordance with its terms except as such enforceability may be
limited by bankruptcy and other laws applicable to creditors or by general
principles of equity.
20.1.3 NO CONSENT. Except for such consents as may be
required under
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the Assignment Agreement (as defined in Section 30), 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.
20.1.4 NO BREACH. Except as set forth on Schedule 20.
1.4, the execution and delivery by Time Broker of this Agreement, the
consummation by Time Broker of the transactions contemplated hereby, and
compliance by Time Broker with the terms hereof, does not and will not:
(i) violate or result in the breach of or
contravene any of the terms, conditions or provisions of, or constitute a
default under, Time Broker's articles of incorporation, bylaws or other
organization documents, or, to the best of Time Broker' s knowledge, in any
material respect, any law, regulation, order, writ, injunction, decree,
determination or award of any court, governmental department, board, agency or
instrumentality, domestic or foreign, or any arbitrator, applicable to Time
Broker or its assets and properties; or
(ii) result in prohibited action under any term or
provisions of, the material breach of any term or provisions of, the
termination of, or the acceleration or permitting the acceleration of the
performance required by the terms of, or constitute a default under or require
the consent of any party to any loan agreement, indenture, mortgage, deed of
trust or other contract, agreement or instrument, to which Time Broker is a
party or by which it is bound; or
(iii) cause the suspension or revocation of any
authorization, consent, approval or license currentiy in effect with respect to
Time Broker.
20.1.5 ACTIONS AND PROCEEDINGS. There are no actions,
suits, investigations or proceedings pending against Time Broker or, to the
knowledge of Time Broker, threatened in any court or before any arbitrator,
governmental department, commission, bureau, board, agency or instrumentality,
domestic or foreign, to restrain or prohibit, or to obtain damages, a discovery
order or other relief in connection with this Agreement or the consummation of
the transactions contemplated hereby.
20.2 REPRESENTATIONS, WARRANTIES AND COVENANTS OF LICENSEE.
Licensee hereby represents, warrants and covenants to Time Broker as set forth
in this Section 20.2.
20.2.1 AUTHORITY. Licensee has been duly appointed as
receiver for the assets of the Station by Order of the Superior Court in Case
No. D-96466 dated November 29, 1993. Pursuant to such appointment, Licensee
has the full power and authority to manage the assets of the Station, to the
extent permitted under the laws of the State of Georgia and the authority of
the Superior Court. Moreover, by virtue of such appointment, Licensee has the
full power and authority to enter into and perform this Agreement and the
transactions contemplated
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hereby, to the extent permitted under the laws of the State of Georgia and the
authority of the Superior Court.
20.2.2 NO BREACH OR VIOLATION. Except as set forth on
Schedule 20.2.2, the execution and delivery by Licensee of this Agreement, the
consummation by Licensee of the transactions contemplated hereby, and
compliance by Licensee with the terms hereof, does not and will not:
(i) to the best of Licensee's knowledge, in any
material respect, violate any law, regulation, order, writ, injunction, decree,
determination or award of any court, governmental department, board, agency or
instrumentality, domestic or foreign, or any arbitrator, applicable to Licensee
or its assets and properties; or
(ii) result in prohibited action under any term or
provision of, the material breach of any term or provision of, the termination
of, or the acceleration or permitting the acceleration of the performance
required by the terms of, or constitute a default under or require the consent
of any party to any loan agreement, indenture, mortgage, deed of trust or
other contract, agreement or instrument, to which Licensee is a party or by
which it is bound; or
(iii) cause the suspension or revocation of any
authorization, consent, approval or license currentiy in effect with respect to
Licensee.
20.2.3 APPROVALS. Except as set forth on Schedule
20.2.3, no authorizations, approvals or consents from any governmental or
regulatory authorities or agencies are necessary to permit Licensee to execute
and deliver this Agreement and to perform its obligations hereunder.
20.2.4 NO LITIGATION. Except as set forth on Schedule
20.2.4, there are no actions, suits, investigations or proceedings pending or,
to Licensee's knowledge, threatened against or affecting the Assets, in any
court or before any arbitrator, or before or by any governmental department,
commission, bureau, board, agency or instrumentality, domestic or foreign,
which, if adversely determined, would impair the ability of Licensee
to perform its obligations hereunder or would impair or hinder the ability or
right of Time Broker to operate the Station after the Commencement Date in the
manner heretofore operated by Licensee.
20.2.5 CONTRACTS. To Licensee's knowledge, Exhibit A to
the Assignment Agreement (as defined in Section 30 of this Agreement) lists all
of the leases, contracts and agreements to which Licensee is a party with
respect to the Station (the "Contracts") and which Time Broker has agreed to
assume pursuant to Section 30 of this Agreement. Licensee has performed all of
its duties and obligations under each of the Contracts in all material
respects, the failure to perform which would have material adverse effect on the
business, operations or financial condition of the Station. There are no
material defaults under any of the Contracts by Licensee or, to the best of
Licensee's knowledge, by any other party, or any events, which with notice, the
passage of time or both, would constitute a material default
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under any of the Contracts. All Contracts are in full force and effect and
are valid and enforceable in accordance with their respective terms. Except
as shown on Schedule 20.2.6, neither the execution and delivery of this
Agreement, not the consummation of the transactions contemplated hereby does
or will result in a breach or default under, or permit any party to modify any
obligations under, or cause or permit any termination, cancellation or loss of
benefits under, any of the Contracts except for breaches or defaults under
Contracts which by their terms prohibit assignment or require any consent to
assignment. True and complete copies of all of the Contracts have been or
will be delivered by Licensee to Time Broker.
20.2.6 LICENSES. To Licensee's knowledge, Schedule 20.2.6
accurately and completely lists all material authorizations, licenses, permits
and franchises of any private entity or public or governmental body granted or
assigned to Licensee with respect to the Station (the "Licenses"). All of the
Licenses are validly issued and in full force and effect and Licensee has
fulfilled and performed all of its obligations with respect thereto and has
full power and authority to operate thereunder. Licensee holds all licenses
necessary to enable it to conduct its business of operating the Station in all
material respects as presentiy conducted. True and complete copies of each of
the Licenses have been or will be delivered by Licensee to Time Broker.
20.2.7 FCC COMPLIANCE. Except as shown on Schedule
20.2.7, to Licensee's knowledge, the Station has been operated at all times by
Licensee in material accordance with their terms of the Licenses for the
Station, the Federal Communications Act of 1934, as amended ("Communications
Act"), and all applicable rules, regulations and policies of the FCC. Licensee
has timely filed or made all applications, reports, and other disclosures
required by the FCC to be filed or made with respect to the Station. The
Licenses are valid and in full force and effect.
Except as shown on Schedule 20.2.7, to the best of Licensee' s
knowledge, no application, action or proceeding is pending for the renewal or
modification of any of the Licenses and, to the best of Licensee's knowledge,
there is not now issued or outstanding any investigation or material compliant
against Licensee at the FCC as of the date of this Agreement relating to the
Station. To the best of Licensee's knowledge, there is no proceeding pending at
the FCC, and there is no outstanding notice of violation from the FCC as of the
date of this Agreement relating to the Station. To the best of Licensee's
knowledge, (i) there is no reasonable basis for the initiation or issuance by
the FCC of any investigation, proceeding or notice of violation, and (it) is
no reasonable basis on which any third party could file a compliant, which
would prevent or delay favorable FCC action on the FCC Application (as defined
in Section 6.1 of the Purchase Agreement). To the best of Licensee's
knowledge, all fees payable to governmental authorities pursuant to the
Licenses have been paid and no event has occurred which, individually or in the
aggregate, and with or without the giving of notice of the lapse of time or
both, would constitute grounds for revocation thereof and would have a material
adverse effect on the business or financial condition of the Station.
20.2.8 COMPLIANCE WITH LAWS. To the best of Licensee's
knowledge,
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Licensee has all licenses permits or other authorizations of governmental,
regulatory or administrative agencies required to conduct its business with
respect to the Station as currentiy conducted. To the best of Licensee's
knowledge, no judgment, decree, order or notice of violation has been issued
by any such agency or authority which permits, or would permit, revocation,
modification or termination of any governmental permit licenses or
authorization or which results or could result in any material impairment of
any rights thereunder. With respect to the Station, to the best of Licensee's
knowledge, Licensee is in compliance with all applicable federal, state, local
or foreign laws, regulations, statutes, rules, ordinances, directives and orders
and any other requirements of any governmental, regulatory or administrative
agency or authority or court or other tribunal applicable to it.
21. ASSET PURCHASE AGREEMENT. Contemporaneously with the execution and
delivery hereof, Licensee and Time Broker have executed and delivered to each
other an asset purchase agreement (the "Purchase Agreement") regarding the
purchase by Time Broker of all of the assets managed by Licensee used or
useable in the operation of the Station.
22. HEADINGS. The headings contained in this Agreement are
included for convenience only and no such heading shall in any way alter the
meaning of any provision.
23. SUCCESSORS AND ASSIGNS. The terms of this Agreement shall be
enforceable and binding upon, and inure to the benefit of the parties hereto,
their heirs, successors and assigns. No party shall assign its interest under
this Agreement, by operation of law or otherwise, without the written consent
of the other party, except that Time Broker may assign its rights and
obligations under this Agreement to any permitted assignee under Section 15.8
of the Purchase Agreement, provided that any such assignee agrees to assume
all of Time Broker's obligations hereunder and agrees to be bound by all of
the terms and conditions hereof.
24. COUNTER-PART SIGNATURES. This Agreement may be signed in one or
more counterparts, each of which shall be deemed a duplicate original, binding
on the parties hereto notwithstanding that the parties are not signatory to
the same original or the same counterpart.
25. NOTICES. Any notice required hereunder shall be in writing and
any payment, notice or other communications shall be deemed given when mailed
by certified mail or Federal Express (or similar express courier), postage
prepaid, with retum receipt requested, and addressed in accordance with
Attachment V hereto.
26. ENTIRE AGREEMENT. This Agreement (including the Attachments and
the Purchase 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. No
alteration, modification or change of this Agreement shall be valid unless by
like written instrument signed by each party hereto.
27. SEVERABILITY. If any provision contained in this Agreement is
held to be invalid, illegal or unenforceable, this shall not affect any other
provision hereof, and this Agreement
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shall be construed as if such invalid, illegal or unenforceable provision or
provisons had not been contained herein.
28. NO JOINT VENTURE. The parties agree that nothing herein shall
constitute a joint venture between them. The parties acknowledge that call
letters, trademarks and other intellectual property shall at all times remain
the property of the respective parties and that neither party shall obtain any
ownership interest in the other party's intellectual property by virtue of this
Agreement.
29. ACCOUNTS RECEIVABLE ASSIGNMENT. Licensee hereby assigns to Time
Broker any and all accounts receivable due to Licensee in excess of $30,000.
Time Broker agrees to collect, on behalf of Licensee, all such accounts
receivable and immediately remit same to Licensee.
30. ASSIGNMENT AND ASSUMPTION OF CONTRACTS. Concurrentiy with the
execution and delivery hereof, Time Broker and Licensee have executed and
delivered to each other an Assignment and Assumption of Contracts (the
"Assignment Agreement") in the form attached as Attachment VI, pursuant to
which Licensee has assigned its rights, and Time Broker has assumed Licensee's
obligations, under certain agreements to which Licensee is a party (the
"Assigned Contracts").
31. RESTRICTION ON SALE OF ASSETS. Except as expressly provided for
herein, Licensee shall not sell, assign, transfer or otherwise convey to any
third party any interest in any material portion of the Assets.
32. PRORATIONS; BILLINGS.
32.1 PRORATIONS. Operations of the Station and the expenses and
liabilities attributable thereto through 12:00 a.m. on the Commencement Date
shall be for the account and the responsibility of Licensee. Other than as
specifically stated in this Agreement, all expenses and liabilities
attributable to Time Broker's operations after 12:01 a.m. on the Commencement
Date shall be for the account of Time Broker. Within sixty (60) days after
the Commencement Date, Licensee and Time Broker shall deliver to each other
statements reflecting the various pro-rated items, including, but not limited
to, prepaid expenses and revenues, telephone and utility charges.
32.2 BILLINGS. Licensee shall perform an end of schedule
billing as soon as practicable after the Commencement Date, but not later than
30 days after the Commencement Date, in order to facilitate future billing by
Time Broker.
33. COOPERATION. Each party will cooperate with the other with
respect to establishing and attaining the strategic and operational goals of
the Station. Without limiting the generality of the foregoing, the parties
shall share mutually beneficial research and other information regarding the
Station and shall attend such meetings as may be reasonably called and convened
by one of the parties in furtherance of the best interests of the Station.
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34. SURVIVAL. The representations and warranties of the parties
hereunder shall survive until the Closing Date, or if the Purchase Agreement
is terminated prior to Closing, the effective date of such termination.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first above written.
TROPIC OF ST. SIMON, INC.
By:
-------------------------
Name
Title
LEE M. MITCHELL, as receiver
for WMOG (AM) and WMOG (FM)
By:
-------------------------
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ATTACHMENT I
------------
PROGRAMMING
-----------
A. For the Station, Time Broker will present to Licensee for
broadcast a format for approximately 160 hours a week. Time Broker shall not
substantially change that format without the prior written consent of Licensee
at least 90 days prior to the implementation of the new format, which consent
shall not be unreasonably withheld.
B. Licensee shall have the right to use at least eight (8)
hours a week of programming on the Station for the presentation of public
affairs programs. Licensee's public affairs programs shall respond to local
area needs and interests which it has ascertained and shall be presented at
times deemed by Licensee to best meet listening needs. Licensee shall maintain
a complete public file (as required by the FCC) and compile and timely file
all required quarterly Issues/Programs lists. Time Broker shall maintain and
deliver to Licensee copies of all operating and programming information
including without limitation EBS announcements and station operating logs,
necessary to maintain either such file or those records required to be kept
by FCC rule or policy.
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ATTACHMENT H
------------
CONSIDERATION
-------------
1. CONSIDERATION BY TIME BROKER. From and after the Commencement
Date, and each month thereafter until the Termination Date, Time Broker shall
pay to Licensee $1.00 in cash, plus Time Broker shall reimburse Licensee or
pay directiy all costs and expenses incurred by Licensee in connection with the
maintenance, operation, and insurance of all assets of the Stations.
2. FAILURE TO BROADCAST. Time Broker recognizes that all or part
of the time contracted for by Time Broker hereunder may not be broadcast over
the air due to preemption pursuant to Section 9 of this Agreement or to events
beyond the reasonable control of Licensee pursuant to Section 10 of this
Agreement. In the event scheduled programming referenced herein is not
broadcast for any such reason, Licensee shall promptiy and equitably prorate and
credit amounts payable under this Agreement. In no event shall Licensee be
liable for any consequential or incidental damages relating to its justified
failure or inability to air scheduled programming. If Time Broker, for any
reason, fails to deliver programming for any portion of the time it has
purchased, Time Broker shall not be entitied to any abatement of charges
provided herein, and Licensee shall have the right to substitute programming
of its choosing and to retain the revenues from any advertising broadcast in
any such period.
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ATTACHMENT II
-------------
PROGRAM AND OPERATING STANDARDS
-------------------------------
Time Broker and Licensee shall cooperate with each other in the
broadcasting of programs of the highest possible standard of excellence.
Without limiting the generality of the foregoing, the parties will observe the
following policies in the preparation, writing and production of their own
(non-syndicated or network) programs:
I. RESPECTFUL OF FAITHS. The subject of religion and references to
particular faiths and tenants shall be treated with respect at all times.
H. 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
person shall be made during the discussion of controversial issues of public
importance; and during the course of political campaigns, Station programs
(other than public forum or talk features) are not to be used as a forum for
editorializing about individual candidates. If such events occur, Licensee may
require that responsive programming be aired. In the event that a statute,
regulation or policy is adopted that requires the airing of responsive
programming, Time Broker agrees to comply with such statute, regulation or
policy and will prepare such responsive programming.
IH. DONATION SOLICITATION. Requests for donations in the form of a
specific amount shall not be made if there is any suggestion that such donation
will result in miracles, physical cures or life-long prosperity. However,
statements generally requesting donations to support a broadcast or church are
permitted.
IV. TREATMENT OF PARAPSYCHOLOGY. The advertising or promotion of
fortune telling, occultism, astrology, phrenology, palm reading, or numerology,
mind-reading, character readings, or subjects of the like nature will not be
broadcast.
V. NO MINISTERIAL SOLICITATIONS. No invitations by a minister
or other individual appealing on the program to have listeners come and visit
him or her for consultation or the like shall be made if such invitation
implies that the listeners will receive consideration, monetary gain, or total
physical cures for illness.
VI. NO VENDING OF MIRACLES . Any exhortation to listeners to
bring money to a church affair or service is prohibited if the exhortation,
affair, or service contains any suggestion that miracles, physical cures, or
prosperity will result.
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VII. SALE OF RELIGIOUS ARTIFACTS. The offering for sale of religious
artifacts or other items for which listeners would send money is prohibited
unless such items are normally available in ordinary commerce or are clearly
being sold for proper fund-rasing purposes.
VIII. NO MIRACLE SOLICITATION. Any invitation to listeners to meet at places
other than a church and/or to attend other than regular services of a church is
prohibited if the invitation, meeting, or service contains any claim that
miracles, physical cures or prosperity will result.
IX. NO PLUGOLA OR PAYOLA. 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, or otherwise lawful, is
prohibited.
X. NO LOTTERIES. Announcements giving any information about lotteries or
games prohibited by federal or state law or regulations are prohibited.
XI. NO GAMBLING. 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.
XII. NO NUMBERS GAMES. References to chapter and verse paragraphs,
paragraph numbers, or song numbers, which involve three digits should be avoided
and, when used, must reasonably relate to a non-gambling activity.
XIII. ELECTION PROCEDURES. At least fifteen (15) days before the start of
any primary or regular election campaign, Time Broker will clear with Licensee's
General Manager the rate Time Broker will charge for the time to be sold to
candidates for public office and/or their supporters to make certain that the
rate charged is in conformance with applicable law and station policy.
XIV. REQUIRED ANNOUNCEMENTS. Time Broker shall broadcast (t) an announcement
in form satisfactory to Licensee at the beginning of each hour to identify the
Station, (ii) an announcement at the beginning of each broadcast day or
appropriate broadcast period to indicate that program time has been purchased by
Time Broker and (iii) any other announcement that may be required by law,
regulation, or Station policy.
XV. COMMERCIAL RECORD KEEPING. No commercial messages or "plugs" shall be
made in programming presented over the Station to any business venture, profit-
making activity, or other interest (other than non-commercial announcements for
BONA FIDE charities, church activities, or other public service activities) in
which Time Broker or its employees is or are directly or indirectly interested
without
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the same having been approved in advance by Licensee's General
Manager or such broadcast being announced and logged as
sponsored.
XVI. NO ILLEGAL ANNOUNCEMENTS. No announcement or promotion prohibited by
federal or state law or regulation of any lottery or game shall be
made over the Station.
XVII. LICENSEE DISCRETION PARAMOUNT. In accordance with Licensee's
responsibility under the Communications Act of 1934, as amended, and
the rules and regulations of the FCC, Licensee reserves the right to
reject or terminate any advertising or programming being presented
over the Station which is in confiict with Station policy or which
in Licensee's sole but reasonable judgment would not serve the public
interest.
XVIII. PROGRAMMING PROHIBITIONS. Time Broker shall not knowingly broadcast
any of the following programs or announcements:
A. FALSE CLAIMS. False or unwarranted claims for any product
or service.
B. UNFAIR IMITATION. Infringements of another advertiser's
rights though plagiarism or unfair imitation of either program
idea or copy, or any other unfair competition.
C. COMMERCIAL DISPARAGEMENT. Any unfair disparagement of
competitors or competitive goods.
D. PROFANITY. Any programs or announcements that are slanderous,
obscene, indecent, profane, vulgar, repulsive or offensive,
either in theme or treatment.
E. UNAUTHENTICATED TESTIMONIALS. Any testimonials which
cannot be authenticated.
F. DESCRIPTIONS OF BODILY FUNCTIONS. Any presentation which
describes in a repellent manner bodily functions.
G. ADVERTISING. Any advertising matter or announcement which may,
in the opinion of Licensee, be injurious or prejudicial to the
interests of the public or the Station, or to honest
advertising and reputable business in general.
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H. CONTESTS. Any contests or promotions which are in any
way misleading or constitute a public nuisance or are
likely to lead to injury to persons or property.
I. TELEPHONE CONVERSATIONS. Any programming in violation of
any statute, regulation or policy, including without
limitation to, Section 73. 1206 of the FCC's rules, or
any successor regulation, dealing with the taping and/or
broadcast of telephone conversations.
Licensee may waive any of the foregoing policies in specific instances
if, in its opinion, good broadcasting in the public interest is served.
In any case where obvious questions of policy or interpretation arise,
Time Broker will attempt in good faith to submit the same to Licensee for
decision before making any commitments in connection therewith.
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ATTACHMENT IV
-------------
ANTI-PAYOLA/PLUGOLA AFFIDAVIT
-----------------------------
City of _____________________________
County of ____________________________
State of ____________________________
________________________________, being first duly sworn, deposes and
says as follows:
1. The undersigned is __________ (Position) for _________ (the "Station").
2. The undersigned has acted in the above capacity since _______________ .
3. No matter has been broadcast by the Station for which service, money
or other valuable consideration has been directiy or indirectiy paid,
or promised to, or charged, or accepted, by the undersigned from any
person, which matter at the time so broadcast has not been announced
or otherwise indicated as paid for or furnished by such person.
4. So far as the undersigned is aware, no matter has been broadcast by
the Station for which service, money, or other valuable consideration
has been directiy or indirectiy paid, or promised to, or charged, or
accepted by the Station in furnishing programs, from any person, which
matter at the time so broadcast as not been announced or otherwise
indicated as paid for or furnished by such person.
5. In the future, the undersigned will not pay or promise to pay to any
third party, request or receive any service, money, or any other
valuable consideration, direct or indirect, from a third party, in
exchange for the infiuencing of, or the attempt to infiuence, the
preparation or presentation of broadcast matter on the Station.
6. Neither the undersigned nor any family member of the undersigned has
any present direct or indirect ownership in (other than an investment
in a corporation whose stock is publicly traded and held), serves as
an officer or director of (with or without compensation) or serves as
an employee of, any person, firm or corporation engaged in:
a. The publishing of music;
b. The production, distribution (including wholesale and retail
sales outiets), manufacture or exploitation of music, films,
tapes, recordings or electrical transcriptions of any program
material intended for radio broadcast use;
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c. The exploitation, promotion, or management of persons rendering
artistic, production and/or other services in the entertainment
field;
d. The ownership or operation of one or more radio or television
stations;
e. The wholesale or retail sale of records intended for public
purchase; or
f. Advertising on the Station.
7. The facts and circumstances relating to any such interest or interests
are as follows:
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
_____________________________________________.
_________________________________
Affiant
Subcribed and sworn to before me this ____ day of _________, 199__.
_________________________________
Notary Public
My commission Expires:
________________________
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ATTACHMENT V
------------
NOTICES
-------
If the notice is to Time Broker:
c/o Partech Communications Group, Inc.
3366 Riverside Drive, Suite 200
Columbus, Ohio 43221
Attention: John E. Rayl, CEO
With a copy to:
Charles A. Koenig, Esq.
Cloud, Koenig & Ower
5354 North High Street, Suite 3D
Columbus, Ohio 43214
If the notice is to Licensee:
Lee M. Mitchell, Esq.
One First National Plaza
Chicago, Illinois 60603
With a copy to:
AT&T Commercial Finance Corporation
400 Perimeter Center Terrace
Atlanta, Georgia 30346
Attention: Samuel D. Bush
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ATTACHMENT VI
-------------
[Form of Assignment and Assumption of Contracts Agreement]
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ATTACHMENT VII
--------------
[Form of Indemnification Agreement]
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ATTACHMENT VIII
---------------
CERTIFICATION
____________(A)_____________ ("Licensee"), by its authorized
representative and pursuant to the requirements of Section 73.3555 (a) (2)
(ii) of the Rules of the Federal Communications Commission, 47 C.F.R. 73.3555
(a) (2) (ii), hereby certifies that, as Licensee of Station _____________
(AM/FM) ("Station"), it maintains ultimate control over the Station's
facilities, and over the finances, personnel and programming of the Station,
notwithstanding any provisions of the foregoing Time Brokerage Agreement.
(LICENSEE)
By:
------------------------
Name
Office
_______(B)______________ ("Brokering Station"), by its authorized
representative and pursuant to the requirements of Section 73.3555 (a) (2)
(ii) of the Rules of the Federal Communications Commission, 47 C.F.R. 73.3555
(a) (2) (ii), hereby certifies that, as the Brokering Station, that the
arrangement set forth in the foregoing Time Brokerage Agreement complies with
the provisions of paragraphs (a) (1) and (e) (1) of Section 73.3555 of the
Rules of the Federal Communications Commission, 47 C.F.R. 73.3555.
(BROKERING STATION)
By:
--------------------------
Name
Office
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SCHEDULE 20.1.4
---------------
None
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SCHEDULE 20.2.2
---------------
None
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SCHEDULE 20.2.3
---------------
None
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SCHEDULE 20.2.4
---------------
None
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SCHEDULE 20.2.6
---------------
A. Breach with respect to lease contracts agreements - None.
B. List all material authorizations, licenses, permits and franchises of
any private entity or public or governmental body granted or assigned
to Licensee with respect to the Station:
* Business License City of Brunswick, Georgia,
Certificate #1724 dated March 18, 1994, expires December 31, 1994
Licensee: WMOG AM & Island 93/ WBA Broadcasting Inc.
* AM Broadcast Station License Federal Communications Commission
File #BL-910204AD dated March 17, 1991, expires April 1, 1996
Licensee: WBA Corporation
* FM Broadcast Station License Federal Communications Commission
File #BLH-910204KA dated April 22, 1991, expires April 1, 1996
Licensee: WBA Partnership
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SCHEDULE 20.2.7
---------------
None
31