EXHIBIT 10.53
TIME BROKERAGE AGREEMENT
This Time Brokerage Agreement ("Agreement") is made this 24th day of
May, 1999, by and between KJI Broadcasting, LLC ("Licensee"), the licensee of
Radio Station WCAV(FM), Brockton, Massachusetts (the "Station") and Radio One,
Inc. ("Broker").
WHEREAS, Licensee is the licensee of the Station;
WHEREAS, Broker desires to provide programming to be transmitted on the
Station pursuant to the provisions hereof and pursuant to applicable regulations
of the Federal Communications Commission (the "FCC"); and
WHEREAS Broker and Licensee have entered into an Asset Purchase
Agreement, dated May 24, 1999 (the "Asset Purchase Agreement");
WHEREAS, Licensee, while maintaining control over the Station's
finances, personnel matters and programming, desires to accept and transmit
programming supplied by Broker on the Station, as well as broadcast Licensee's
own public interest programming.
NOW, THEREFORE, in consideration of these premises and the mutual
promises, undertakings, covenants and agreements contained in this Agreement,
the parties hereto do hereby agree as follows:
WITNESSETH:
1. Facilities.
(a) Except as described in Paragraphs 1(b) and 1(c), Licensee
agrees to broadcast on the Station, or cause to be broadcast, for up to
twenty-four (24) hours per day, seven (7) days per week, Broker's programs and
advertisements (the "Programs") as described in Attachment I hereto.
(b) Licensee shall have the right to present programs of local
significance on the Station on any Sunday during the hours of 6:00 a.m. to 8:00
a.m. Licensee shall notify Broker at least forty eight (48) hours in advance if
Licensee plans to broadcast on Sunday between 6:00 a.m. and 8:00 a.m.
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(c) Licensee will retain ultimate responsibility for
ascertainment of the needs of its community of license and service area.
Licensee shall have the right and obligation to broadcast programming addressing
those needs, either produced or purchased by Licensee, as it determines
appropriate to respond to the ascertained issues of community concern and to
delete or preempt in its sole discretion any Broker programming for the purpose
of transmitting such programming.
2. Payments. Broker hereby agrees to pay the amounts specified in
Attachment II to Licensee for broadcast of the Programs hereunder.
3. Term. Except as otherwise provided in Paragraph 21 of this
Agreement, the term of this Agreement shall commence at Buyer's option, at 12:01
a.m. EST on that date which is thirty (30) days following Seller's receipt of
written notice from Buyer that Buyer wishes to commence operations under the
terms of this Agreement (the "Effective Date"), and shall end on the earlier of
(a) closing under the Asset Purchase Agreement, of even date herewith, (b)
thirty (30) days after termination of the Asset Purchase Agreement, or (c)
termination pursuant to paragraph 21 hereof.
4. Programs. Broker shall furnish or cause to be furnished the artistic
personnel and material for the Programs as provided by this Agreement and all
Programs shall be in good taste and in accordance with Federal Communications
Commission ("FCC") requirements. Broker shall be permitted access to and use of
Licensee's studio and program production facilities. All advertising spots and
promotional material or announcements shall comply with all applicable federal,
state and local regulations.
5. Competing Products. Broker will endeavor to maintain appropriate
separations between commercials for competing advertisers or products.
6. Handling of Public Comments. Licensee shall be advised promptly by
Broker of any public or FCC complaint or inquiry concerning programs provided by
Broker.
7. Programming and Operations Standards. Broker agrees to abide by the
standards set forth in Attachment III in its programming and operations. Broker
further agrees that if, in the sole judgment of Licensee or its Station's
manager, Broker does not comply with said standards, Licensee may suspend or
cancel any program not in compliance.
8. Operational Expenses. The costs of operating the Station shall be
paid by Licensee in accordance with Attachment II. Broker will be responsible
for paying the costs of purchasing the Programs and for the expenses incurred in
the sale of advertising time. Upon reasonable request by Broker, Licensee will
provide Broker with documentation adequate to demonstrate that Licensee is
current in its payment to all of its creditors whose services are used in
connection with the operation of the Station.
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9. Sale of Advertising Time. Broker is permitted to sell all
advertising for Programs it provides to Licensee and may sell such advertising
in combination with the sale of advertising on other stations owned by Broker
and Broker will retain all revenues from the sale of such advertising. Licensee
is permitted to sell all advertising available on public affairs programs
produced or purchased by Licensee and will retain all revenues from the sale of
such advertising.
10. Assumption of Contracts. Broker agrees to assume the obligations of
the Licensee as to Contracts, Sales Agreements and Trade Agreements (as defined
in the Asset Purchase Agreement) disclosed in writing to Broker at least fifteen
days prior to commencement of this Agreement consistent with the terms of the
Asset Purchase Agreement.
11. Operation of Station.
(a) Licensee Retains Control. Notwithstanding anything to the
contrary in this Agreement, Licensee shall have full authority and power over
the operation of the Station during the period of this Agreement. Licensee shall
retain control in its absolute discretion 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 or delay or delete any programs which Licensee reasonably believes to be
unsatisfactory, unsuitable or contrary to the public interest or in order to
broadcast a program deemed to be by Licensee to be of greater national,
regional, or local interest, and the right to take any other actions necessary
for compliance with the laws of the United States, the Commonwealth of
Massachusetts, and the rules, regulations, and policies of the FCC. Licensee
shall at all times be solely responsible for meeting all of the FCC's
requirements with respect to public service programming, maintaining a main
studio, maintaining the political and public inspection files, and preparing the
Station's logs and issues/programs lists. Broker shall, upon request by
Licensee, provide Licensee with information with respect to such of Broker's
Programs which are responsive to public needs and interest so as to assist
Licensee in the preparation of required programming reports and will provide,
upon request, other information to enable Licensee to prepare other records,
reports and logs required by the FCC or other local, state or federal
governmental agencies.
(b) Equipment. All equipment necessary for broadcasting by the
Station shall be maintained by Licensee in a condition consistent with good
engineering practices and in compliance in all material respects with the
applicable rules, regulations and technical standards of the FCC, and all
capital expenditures reasonably required to maintain the technical quality of
the Station's signals shall be made in a timely fashion at the sole expense and
in the sole discretion of Licensee. Licensee shall also be solely responsible
for all costs associated with ensuring that the Station is operating from the
New Tower Site (as defined in the Asset Purchase Agreement) consistent with
Licensee's representations and warranties in the Asset Purchase Agreement during
the term of this Agreement. Broker may, at its own expense, bring onto the
premises of the Station and use its own technical equipment and business
machines. Upon termination of this Agreement, Broker shall promptly remove all
of its technical equipment and business machines from the premises of the
Station and
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shall return the Station to the same condition it was in prior to the Effective
Date, unless termination is due to a sale of the Station to Broker.
12. Personnel. Broker shall employ and be responsible for the salaries,
taxes, insurance and related costs for all personnel used in the production of
its programming and for the personnel used in the sale of advertising time.
Licensee shall provide and pay for the manager of the Station, who shall report
to and be accountable solely to Licensee and who shall be ultimately responsible
for the day-to-day operation of the Station. Licensee shall also employ such
personnel as Licensee, in its sole discretion, deems necessary to be responsible
for the public affairs programming broadcast on the Station, to comply with FCC
rules and record keeping, to ensure that the technical operations of the Station
are consistent with the Station's license and FCC rules and to provide
managerial and staff support for the Station's main studio. Licensee shall be
responsible for the salaries, taxes, insurance and related costs for all the
Station personnel under its employ. Employees of Broker shall conduct themselves
in a professional manner and while on the Station's premises shall be subject to
the supervision of Licensee's employees.
13. Special Events. Licensee reserves the right in its discretion, and
without liability, to preempt, delay or delete any of the Programs provided by
Broker which in Licensee's judgment, is of greater local or national importance.
However, such authority shall not be exercised in an arbitrary manner or for the
commercial advantage of Licensee. In all such cases, Licensee will use its best
efforts to give Broker reasonable notice of its intention to preempt such
broadcast or broadcasts, and, in the event of such preemption, Broker's monthly
payment shall be reduced as further described in Attachment II, Paragraph 2
hereto.
14. Force Majeure. Any failure or impairment of facilities or any delay
or interruption in broadcasting 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 causes beyond the control of
Licensee, shall not constitute a breach of this Agreement and Licensee will not
be liable to Broker, except to the extent of allowing in each such case an
appropriate payment credit for time or broadcasts not provided as further
described in Attachment II, Paragraph 2 hereto.
15. Right to Use the Programs. The right to use the Programs provided
by Broker and to authorize their use in any manner and in any media whatsoever,
shall be and remain vested in Broker.
16. Payola. Broker agrees that Broker will not accept any compensation
of any kind or gift or gratuity of any kind whatsoever, regardless of its value
or form, including, but not limited to, a commission, discount, bonus,
materials, supplies or other merchandise, services or labor, whether or not
pursuant to written contracts or agreements between Broker and merchants or
advertisers, unless the payer is identified in the program as having paid for or
furnished such consideration in accordance with FCC requirements.
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17. Compliance with Laws. Broker agrees that throughout the term of
this Agreement Broker will comply in all material respects with all laws and
regulations applicable in the conduct of Licensee's business. Licensee will
comply in all material respects with all applicable FCC rules, regulations and
policies, including, but not limited to, political advertisements, sponsorship
identification, lottery and contest rules, and other local, state and federal
laws, rules, and regulations. Licensee will file a copy of the Agreement with
the FCC, if required to do so under FCC rules or policies and Licensee will
place a copy of this Agreement in the public file for the Station, as required
by FCC rules.
18. Broker's Accounts Receivable. All receipts and accounts receivable,
including the proceeds thereof, generated from Broker's programming, including
music, commercial announcements, news and information programming broadcast on
the Station from the Effective Date through the termination hereof shall,
notwithstanding the termination of this Agreement, at all times hereafter remain
the sole and exclusive property of the Broker. Any receipts and/or accounts
receivable generated from the broadcast of commercial announcements from and
after the Effective Date of this Agreement through the termination hereof are
specifically acknowledged and agreed by the Licensee as belonging to the Broker.
19. Indemnification.
(a) Scope. Each party shall forever protect, save, defend and
keep the other party harmless and indemnify said other party against and from
any and all claims, demands, losses, costs, damages, suits, judgments,
penalties, expenses and liabilities of any kind or nature whatsoever arising
directly or indirectly out of the acts, omissions, negligence or willful
misconduct of the said party, its employees or agents in connection with the
performance of this Agreement. Further, Broker and Licensee hereby indemnify and
hold each other harmless against all liability for libel, slander, illegal
competition or trade practices, infringement of trade marks, trade names, or
program titles, violation of rights of privacy, and infringement of copyrights
and property rights resulting from the broadcast of programming furnished or
broadcast by the other party. These mutual obligations shall survive any
termination of this Agreement and shall continue until the expiration of all
applicable statutes of limitation and the conclusion and payment of all
judgments which may be rendered in all litigation which may have commenced prior
to such expiration. However, Broker shall not be liable for nor responsible to
indemnify Licensee for the following: (i) damages arising out of mistakes,
omissions, interruptions, delays, errors or defects in transmission caused by
the negligence or acts or omissions of Licensee or its employees, contractors or
agents; (ii) damages arising out of the failure of equipment not provided by
Broker or not under its control. Further, neither party shall be responsible for
indemnifying the other for damages caused by acts of God, sabotage, vandalism,
or negligence or acts or omissions of any third party.
(b) Procedure. The procedure for indemnification shall be as
follows:
(i) The party claiming indemnification (the
"Claimant") shall give written notice to the party from which indemnification is
sought (the "Indemnitor") promptly after the
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Claimant learns of any claim or proceeding covered by the foregoing agreement to
indemnify and hold harmless and failure to provide prompt notice shall not be
deemed to jeopardize Claimant's right to demand indemnification, provided, that,
Indemnitor is not prejudiced by the delay in receiving notice.
(ii) With respect to claims between the parties,
following receipt of notice from the Claimant of a claim, the Indemnitor shall
have 15 days to make any investigation of the claim that the Indemnitor deems
necessary or desirable, or such lesser time if a 15-day period would jeopardize
any rights of Claimant to oppose or protest the claim. For the purpose of this
investigation, the Claimant agrees to make available to the Indemnitor and its
authorized representatives the information relied upon by the Claimant to
substantiate the claim. If the Claimant and the Indemnitor cannot agree as to
the validity and amount of the claim within the 15-day period, or lesser period
if required by this Paragraph (or any mutually agreed upon extension hereof) the
Claimant may seek appropriate legal remedies.
(iii) The Indemnitor shall have the right to
undertake, by counsel or other representatives of its own choosing, the defense
of such claim, provided, that, Indemnitor acknowledges in writing to Claimant
that Indemnitor would assume responsibility for and demonstrates its financial
ability to satisfy the claim should the party asserting the claim prevail. In
the event that the Indemnitor shall not satisfy the requirements of the
preceding sentence or shall elect not to undertake such defense, or within 15
days after notice of any such claim from the Claimant shall fail to defend, the
Claimant shall have the right to undertake the defense, compromise or settlement
of such claim, by counsel or other representatives of its own choosing, on
behalf of and for the account and risk of the Indemnitor. Anything in this
Paragraph 18(b)(iii) to the contrary notwithstanding, (i) if there is a
reasonable probability that a claim may materially and adversely affect the
Claimant other than as a result of money damages or other money payments, the
Claimant shall have the right, at its own cost and expense, to participate in
the defense, compromise or settlement of the claim, (ii) the Indemnitor shall
not, without the Claimant's written consent, settle or compromise any claim or
consent to entry of any judgment which does not include as an unconditional term
thereof the giving by the plaintiff to the Claimant of a release from all
liability in respect of such claim, and (iii) in the event that the Indemnitor
undertakes defense of any claim consistent with this Paragraph, the Claimant, by
counsel or other representative of its own choosing and at its sole cost and
expense, shall have the right to consult with the Indemnitor and its counsel or
other representatives concerning such claim and the Indemnitor and the Claimant
and their respective counsel or other representatives shall cooperate with
respect to such claim.
20. Events of Default. The following shall, after the expiration of the
applicable cure periods, constitute Events of Default under the Agreement:
20.1. Non-Payment. Broker's failure to timely pay the
consideration provided for in Paragraph 2 hereof.
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20.2. Default in Covenants. Licensee or Broker shall default
in the observance or performance of any material covenant, condition or
agreement contained herein.
20.3. Adverse Financial Condition. Either party shall make a
general assignment for the benefit of creditors or files or has filed against it
a petition for bankruptcy, for reorganization or for the appointment of a
receiver, trustee or similar creditor's representative for the property or
assets of such party under such federal or state insolvency law.
20.4. Cure Periods. An Event of Default under Section 19.1
shall not be deemed to have occurred until five (5) days after the payment is
due. Except for payment of monies by Broker to Licensee, an Event of Default
shall not be deemed to have occurred until fifteen (15) business 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 specifying the actions necessary to cure within such period. This
period may be extended 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
non-defaulting party.
21. Termination Options. The parties shall have the right to terminate
this Agreement under the following circumstances:
21.1 Default. Either party may terminate if the other party
has caused an Event of Default to occur.
21.2 FCC Prohibitions. Either party may terminate this
Agreement if the FCC determines that the Agreement is not consistent with
Licensee's obligations as a licensee and the parties cannot reform the Agreement
to satisfy the FCC's concerns.
21.3 Failure of Broadcast Transmissions. If the Station is not
operated at its licensed operating parameters for more than thirty-six (36)
hours (or, in the event of force majeure or utility failure affecting generally
the market served by the Station, ninety-six (96) hours), whether or not
consecutive, during any period of thirty (30) consecutive days, or if there are
five (5) or more Specified Events, as defined below, each lasting more than
eight (8) consecutive hours, then Broker may, at its option terminate this
Agreement. For the purposes of this Agreement, a "Specified Event" shall include
the occurrence and continuance for a period of more than eight (8) hours of any
of the following: (i) the transmission of the regular broadcast programming of
the Station in the normal and usual manner is interrupted or discontinued; or
(ii) the Station is operated at less than its authorized antenna height above
average terrain or at less than eighty percent (80%) of its licensed effective
radiated power.
22. Obligation Upon Termination. In the event of termination, the
parties agree as follows:
22.1 Payments. In the event of termination, Broker shall pay
to Licensee any fees due but unpaid as of the date of termination unless
prohibited by the FCC and Licensee shall
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reasonably cooperate with Broker to the extent permitted to enable Broker to
fulfill advertising or other programming contracts then outstanding, in which
event Licensee shall receive as compensation for the carriage of such
advertising or programming that which otherwise would have been paid to Broker
thereunder, unless such termination is due to a sale of the Station to Broker.
22.2 Retention of Ownership Rights. In the event of
termination, Broker reserves the right to ownership of logos and positioning
statements which it develops during the term of this Agreement, and Licensee may
not use any such materials without the consent of Broker.
22.3 Assumption of Contracts. In the event of termination of
this Agreement for any reason other than the Closing of the Asset Purchase
Agreement, Licensee shall be responsible for assuming and fulfilling obligations
under contracts entered into by Broker for the sale of advertising time on the
Station that are in effect as of the date of such termination, provided that
such contracts (i) are disclosed in writing to Licensee, and are for a term of
10 weeks or less or terminable upon 15 days notice or less, and (ii) either (a)
were entered into in the ordinary course of the Station's business, and are
sales of advertising time for cash on commercially reasonable terms, or (b) were
entered into in the ordinary course of the Station's business for consideration
other than cash on commercially reasonable terms, which consideration was or is
used solely in furthering the business of the Station. Notwithstanding the
foregoing, the Licensee shall only be obligated to assume an aggregate of
$20,000 Negative Trade Balance (as that term is defined in the Asset Purchase
Agreement) with respect to the non-cash sales agreements of the Broker. Licensee
shall (a) have the duty to perform all such assumed agreements or contracts, and
(b) be entitled to collect and receive the money thereafter derived therefrom;
and Broker will forthwith assign same to Licensee and turn over to Licensee all
books and records relating to the sale of advertising for broadcast exclusively
on the Station. Broker shall, at such time, pay over to Licensee any money or
other consideration it shall have received as "pre-payment" for such advertising
which Licensee may thereafter undertake to broadcast over the Station. Licensee
shall indemnify and hold Broker harmless against any nonperformance of any
assumed agreement or contract. All uncollected revenue for advertising during
the term of this Agreement prior to such termination shall belong to, be the
property of and be for the benefit of Broker.
23. Representations and Warranties. Each of the parties hereto
represents and warrants to the other the following:
23.1 Music Licenses. Licensee and Broker represent that, as of
the date that this Agreement commences, they will each secure any music licenses
from performers' rights organizations including, but not limited to, ASCAP, BMI,
and SESAC, that are necessary for the legal operation of the Station as
contemplated by this Agreement and that both Licensee and Broker will maintain
their respective licenses in good standing.
23.2 Compliance with FCC Ownership Rules. Broker certifies
that this Agreement complies with the requirements of Section 73.3555 of the
FCC's Rules.
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23.3 Licensee's Certification. Licensee hereby certifies that
it shall maintain the ultimate control over the Station's facilities, including
but not limited to, control over finances, with respect to the operation of the
Station, over the personnel operating the Station and over the programming to be
operated by the Station.
24. Modification and Waiver. No modification or waiver of any provision
of this Agreement shall in any event be effected unless the same shall be in
writing and signed by the party adversely affected by the waiver or
modification, and then such waiver and consent shall be effective only in the
specific instance and for the purpose for which given.
25. Indulgences. Unless otherwise specifically agreed in writing to the
contrary: (i) the failure of either party at any time to require performance by
the other of any provision of this Agreement shall not affect such party's right
thereafter to enforce the same; (ii) no waiver by either party of any default by
the other shall be taken or held to be a waiver by such party of any other
preceding or subsequent default; and (iii) no extension of time granted by
either party for the performance of any obligation or act by the other party
shall be deemed to be an extension of time for the performance of any other
obligation or act hereunder.
26. Construction. This Agreement shall be construed in accordance with
the laws of the Commonwealth of Massachusetts, applicable to agreements entered
into and wholly to be performed therein, without regard to principles of
conflicts of laws. The rights and obligations of the parties hereto are subject
to all federal, state or municipal laws or regulations now or hereafter in force
and the regulations of the FCC and all other governmental bodies or authorities
presently or hereafter to be constituted.
27. Headings. The headings contained in this Agreement and in the
Attachments thereto are included for convenience only and no such heading shall
in any way alter the meaning of any provision.
28. Successors and Assigns. Neither party may assign this Agreement
without the other party's express prior written consent, provided, however,
Broker may assign its rights and obligations pursuant to this Agreement without
Licensee's consent to an entity which is a subsidiary or parent of Broker or to
an entity owned or controlled by Broker or its principals or to Buyer's lenders
as collateral for any indebtedness incurred by Buyer. Subject to the foregoing,
this Agreement shall be binding on, inure to the benefit of, and be enforceable
by the original parties hereto and their respective successors and permitted
assignees.
29. Counterpart 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
original or the same counterpart.
30. Notices. Any notice or other communication authorized or required
hereunder shall be in writing and any payment, notice or other communications
shall be deemed given when delivered
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personally or by facsimile transmission, or if mailed by certified mail with
return receipt requested, then three business days after mailing, or if by
Federal Express, postage prepaid, then the next business day, and addressed as
follows:
If to Licensee:
Mr. Joseph V. Gallagher
Managing Member
KJI Broadcasting, LLC
27 Chastellux Avenue
Newport, RI 02840
Fax: (401) 841-8591
With a copy to:
E. Colby Cameron, Esq.
Cameron & Mittleman
56 Exchange Terrace
Providence, RI 02906
Fax: (401) 331-5787
If to Broker:
Mr. Alfred C. Liggins III
President
Radio One, Inc.
5900 Princess Garden Parkway, 8th Floor
Lanham, MD 20706
Fax: (301) 306-9694
With a copy to:
Linda J. Eckard
General Counsel
Radio One, Inc.
5900 Princess Garden Parkway 8th Floor
Lanham, MD 20706
Fax: (301) 306-9638
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31. Entire Agreement. This Agreement embodies the entire agreement
between the parties and there are no other agreements, representations,
warranties, or understandings, oral or written, between them with respect to the
subject matter hereof. No alteration, modification or change of this Agreement
shall be valid unless by like written instrument.
32. Savings Clause. If any provision of this Agreement is held to be
illegal, invalid or unenforceable, such provision shall be fully severable, and
in lieu of such illegal, invalid or unenforceable provision, there shall be
added automatically as a part of this Agreement a provision as similar in terms
to such illegal, invalid or unenforceable provision as may be possible and be
legal, valid and enforceable. This Agreement shall then be construed and
enforced as so modified.
33. No Partnership or Joint Venture Created. Nothing in this Agreement
shall be construed to make Licensee and Broker partners or joint venturers.
Neither party hereto shall have the right to bind the other to transact any
business in the other's name or on its behalf, in any form or manner or to make
any promises or representations on behalf of the other.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first above written.
SELLER:
KJI BROADCASTING, LLC
By:
---------------------------------
Joseph V. Gallagher
Managing Member
BUYER:
RADIO ONE, INC.
By:
---------------------------------
Alfred C. Liggins
President
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TIME BROKERAGE AGREEMENT
ATTACHMENT I
PROGRAMMING
Broker shall provide radio programs which Broker deems
appropriate for broadcast. The parties acknowledge and agree that during the
term of the Agreement, Broker, in consultation with Licensee, shall implement a
new programming format on the Station.
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TIME BROKERAGE AGREEMENT
ATTACHMENT II
PAYMENTS FROM BROKER
1. Monthly Payment. Broker shall pay to Licensee a monthly payment in
the amount of Fifteen Thousand Dollars ($15,000). In the event that this
Agreement is still in effect one year from the Effective Date, the monthly
payment shall increase to Twenty Five Thousand Dollars ($25,000). The monthly
payment for any partial month(s) shall be prorated based on the number of days
for which this Agreement is effective during the relevant month(s). The monthly
payment shall be paid on or before the first day of each month.
2. Reduction in Monthly Payment. Licensee shall provide prompt written
notice to Broker specifying the date, time and reason when programs provided by
Broker have not been broadcast. The Monthly Payment shall be reduced in any
calendar month where other than up to two (2) hours per week between 12 midnight
and 5 a.m. for purposes of equipment maintenance or other than during the hours
of 6:00 a.m. and 8:00 a.m. on Sunday, Licensee has preempted, declined or failed
to broadcast the Programs provided by Broker. In such event, the Monthly Payment
then in effect shall be reduced by a percentage equal to the number of hours so
preempted or otherwise not broadcast divided by the total number of hours
available to Broker for broadcast of Programs during that month.
3. Expenses. Licensee is responsible for paying all expenses of the
Station during the term of this Agreement. Within fifteen (15) business days of
receipt by Broker of appropriate written documentation of such expenses from
Licensee, Broker shall reimburse Licensee for the following expenses:
a. Rental payments for Fillebrown Tower license with ADF
Communications.
b. Electric utility bills for Fillebrown Tower Site.
c. Local and long distance telephone bills for telephone use at
the Station's Studio and Transmitter Site.
d. ASCAP, BMI, SESAC music licensing fees.
e. Salaries, payroll taxes, payroll service and health insurance
for Station employees expressly assumed by Broker.
f. General insurance and Workman's Compensation for the Station
employees.
h. FCC Regulatory Fees for FY 1999.
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i. Personal property tax for the Station equipment.
j. Studio rent.
k. Other expenses as agreed to in writing by the parties.
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TIME BROKERAGE AGREEMENT
ATTACHMENT III
PROGRAMMING STANDARDS
Broker, at the request of Licensee, will comply with the following
regulations and restrictions in the preparation, writing and provision for
broadcast of the programming on the Station:
I. No Denominational Attacks. Broker's programming will not be used as
a medium for attack on any faith, denomination or sect or upon any individual or
organization.
II. 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, is prohibited. No
commercial messages ("plugs") or undue references shall be made in programming
presented over the Station to any business venture, profit-making activity or
other interest (other than noncommercial announcements for bona fide charities,
church activities or other public service activities) in which Broker is
directly or indirectly interested without the same having been approved in
advance by the Station's General Manager and such broadcast being announced,
logged and sponsored.
III. No Lotteries. Announcements giving any information about lotteries
or games prohibited by federal or state law or regulation are prohibited. This
prohibition includes announcements with respect to bingo parties and the like
which are to be held by a church, if such announcements are prohibited under
Massachusetts or Federal law.
IV. Election Procedures. Broker will clear with the Station's General
Manager the schedule of rates that Broker will charge for the time to be sold to
candidates for public office or their supporters to make certain that such rates
conform with applicable law and Station policy. Licensee in its sole discretion,
may require that Broker grant access for the purchase of time to candidates for
political office or their supporters. In the event that Licensee determines that
any candidates for political office or their supporters are entitled to purchase
time in programming provided by Broker, Broker will provide such access as
reasonably required by Licensee in accordance with applicable law.
V. Required Announcements. Broker will include (i) an announcement in a
form satisfactory to Licensee at the beginning of each hour of programming to
identify the Station's call letters and (ii) an announcement at the beginning of
each broadcast day to indicate that program time has been purchased by Broker,
and (iii) any other announcements required by applicable law.
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VI. No Illegal Announcements. No announcements or promotions prohibited
by law of any lottery or game shall be made over the Station. Any game, contest,
or promotion relating to or to be presented over the Station must be fully
stated and explained to Licensee upon request by it, which reserves the right,
in its discretion to reject any game, contest, or promotion.
VII. Licensee Discretion Paramount. In accordance with the 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 proposed to be presented or being presented over the Station
which is in conflict with Station policy or which, in Licensee's judgment, would
not serve the public interest.
VIII. Programming Prohibitions. 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 through plagiarism or unfair imitation of either
program idea or copy, or any other unfair competition.
C. Obscenity and Indecency. Any programs or announcements that
(1) have a dominant theme that, taken as a whole, appeals to
the prurient interest in sex, portray sexual conduct in a
patently offensive way, and lack literary, artistic, political
or scientific value or (2) describe in terms patently
offensive as measured by contemporary community standards for
the broadcast medium, sexual or excretory activities or organs
at times of the day when children are likely to be in the
audience.
IX. Waiver. Licensee may waive in writing any of the foregoing
regulations and restrictions in specific instances if, in its opinion, good
broadcasting in the public interest is served. In any case where questions of
policy or interpretation of matters contained in this Attachment arise, Broker
shall submit the same to Licensee for decision before making any commitments in
connection therewith.
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