EX-10.8(a)
Time Brokerage Agreement
TIME BROKERAGE AGREEMENT
This time brokerage agreement dated November 1, 1997, is entered into by
and between CMB II, INC., a Virginia corporation ("Licensee"), and MVP RADIO,
INC., a Missouri corporation ("Programmer", and with Licensee, the "Parties").
Recitals.
Licensee owns radio station KATI-FM of California, Missouri (the
"Station"). Programmer's personnel are experienced in radio station ownership
and operation, and Licensee wishes to retain Programmer to provide sales and
marketing services, technical support, and programming for the Station, in
conformity with the rules, regulations, and policies for time brokerage
agreements of the Federal Communications Commission ("FCC") and this agreement.
Programmer as "Buyer" and Licensee as "Seller" have this day entered into a
certain agreement (the "Assets Purchase Agreement") for sale of the Station's
assets to Buyer as therein provided for. Terms not otherwise defined herein
shall be defined as in the Assets Purchase Agreement.
NOW, THEREFORE, in consideration of the above recitals and the mutual
promises and covenants herein contained and other good and valuable
consideration, the Parties, intending to be bound legally, agree as follows:
Section 1
Term and Programmer Services
1.1 Effective Date. The term (hereinafter defined) of this agreement shall
begin on the date hereof (the "Effective Date").
1.2 Term. The term (the "Term") shall continue from the Effective Date
until the earlier to occur of: (a) Closing (as therein defined) of the Assets
Purchase Agreement, or (b) termination of this agreement (as herein provided
for) or of the Assets Purchase Agreement.
1.3 Programmer Services. During the Term, Licensee agrees to make
available to Programmer on an exclusive basis broadcast time on the Station as
set forth in this agreement. Subject to Licensee's reasonable approval,
Programmer shall provide programming in the format and content of its selection
complete with commercial matter, news, public service announcements, and other
suitable programming for at least one hundred sixty-two (162) hours per week,
which broadcast time of the Station Licensee shall make available during the
Term exclusively to Programmer, free and clear of all rights of any other person
or entity. Licensee reserves to itself, however, the right to broadcast its own
programming material for up to six (6) hours per week between the hours of 6 AM
- - 12:00 Noon on Sundays ("Licensee's Reserved Time") for its own regularly
scheduled news, public affairs and other suitable programming designed to serve
the community needs and interests of the Station's listening audience. Licensee
shall cooperate with and promptly notify Programmer if Licensee will use all or
any part of Licensee's Reserved Time, and Programmer shall have the right to use
any unused portion of Licensee's Reserved Time in default of such a notice from
Licensee.
1.4 Consideration, Fee. As consideration for the air time made available
during the term hereof Programmer shall make payments as set forth in Exhibit
1.4 hereto. The Parties agree that Exhibit 1.4 contains proprietary and
confidential information and each agrees to take all steps reasonably necessary
to maintain such confidentiality, including redacting such confidential
information from any copy of this Agreement that is filed with the FCC.
1.5 Expenses and Revenues. Programmer shall be solely responsible for all
expenses attributable to its programming on the Station, including but not
limited to any expenses incurred in the origination and/or delivery of its
programming to the Station's studio and transmitter sites, for all costs
associated with the acquisition, clearance, and production of its own
programming, and for the salaries, taxes, insurance and related costs for all
personnel employed by Programmer in connection with the sale of advertising
time, marketing of the Station, technical maintenance of Station's equipment,
and production and delivery of programming. Programmer shall retain all revenues
from the sale of commercial time during its programming of the Station,
including any revenues arising from Programmer's programming during Licensee's
Reserved Time.
1.6 Use of Station's Facilities. Subject to overall supervision by
Licensee and its employees, during the Term, Programmer shall make its studio
facilities (located within the Station's principal community contour) reasonably
available to Licensee only for the production and presentation of Licensee's
programming as provided for hereunder, and as otherwise necessary to fulfill
Licensee's obligations as FCC Licensee.
1.7 Contracts. Programmer shall cooperate with Licensee to fulfill all
appropriate contracts, agreements, and leases in effect on the Effective Date
that involve operation of the Station.
1.8 Collection of Accounts Receivable. During the Term, as agent for
Licensee Programmer shall collect the Licensee's accounts
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receivable for the Station that exist as of the Effective Date. Licensee shall
provide Programmer with a list of all such accounts receivable to be collected
by Programmer. In collecting such accounts receivable, Programmer shall use
reasonable diligence, but shall not be required to institute legal proceedings
to collect any account receivable, or to defend any claim or counterclaim by any
account debtor. All amounts received by Programmer from an account debtor that
also is an account debtor of Programmer during the Term shall be applied first
to payment of the accounts receivable of Licensee unless otherwise specifically
identified by the account debtor. Within ten (10) days of the end of each
calendar month of the Term, Licensee shall deliver to Programmer the amount of
all amounts collected and credited to the accounts receivable of Licensee during
the prior calendar month in accordance with this Section 1.8. Within ten (10)
days after the end of the Term, Programmer shall deliver to Licensee all records
of uncollected accounts receivable of Licensee and any amounts not previously
remitted to Licensee at which time Programmer's obligation for the collection of
Licensee's accounts receivable as herein provided shall cease.
Section 2
Licensee's and Programmer's Duties and Obligations
2.1 Licensee's Authority. During the Term, Licensee shall have full
authority, power, and control over the management and operation of the Station,
and at its sole expense shall be responsible for compliance by Station with all
applicable provisions of the Communications Act of 1934, as amended (the "Act"),
the rules, regulations and policies of the FCC, and all other applicable laws,
rules, and regulations. During the Term, at its sole expense, Licensee shall
maintain all FCC Licenses for the Station's operation in full force and effect
in compliance with all FCC rules, regulations, and policies, and shall timely
file all necessary reports and prosecute to a satisfactory conclusion all
renewal or other applications necessary to maintain such Licenses in full force
and effect during the Term, without material change or restriction. Upon
Licensee's failure to fulfill any obligation hereunder, Programmer may take
reasonable steps to cure such failure(s) and may charge the expense thereof to
Licensee and/or deduct all or any part of such expense from any payment
otherwise due to Licensee from Programmer.
2.2 Programming. Programmer recognizes that the Station is obligated to
broadcast programming to meet the needs and interests of the California,
Missouri, area, and Programmer shall air programming on issues of importance to
the local community. In the event of the occurrence of a local or national
emergency that in
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the good faith, reasonable judgment of Licensee, is not being adequately
addressed by Programmer, Licensee retains the right to interrupt Programmer's
programming and substitute programming produced by Licensee that is more
responsive to the emergency.
2.3 Station's ID. During the Term, Programmer shall coordinate with
Licensee to ensure that the Station's hourly station identification and any
other required announcements are aired as Licensee may direct, and Licensee
shall retain all present call signs of the Station.
2.4 Political Advertising. During the Term, Programmer shall cooperate
with Licensee in Licensee's compliance with all rules of the FCC regarding
political broadcasting. Licensee shall promptly supply to Programmer, and
Programmer shall promptly supply to Licensee, such information, including all
inquiries concerning the broadcast of political advertising, as may be necessary
to comply with FCC rules and polices, including those concerning the lowest unit
rate, equal opportunities, reasonable access, political file, and related
requirements of federal law. Programmer, in consultation with Licensee, shall
develop a statement that discloses the Station's political broadcasting policies
to political candidates, and Programmer shall follow those policies in the sale
of any political programming or advertising during the Term. In the event that
Programmer fails to satisfy political broadcasting requirements under the Act
and the rules, regulations, and policies of the FCC and such failure inhibits
Licensee in its compliance with the political broadcasting requirements of the
FCC, then to the extent reasonably necessary to assure such compliance,
Programmer shall either provide rebates to political advertisers or release
advertising availabilities to Licensee.
2.5 Main Studio. During the Term, Licensee shall (i) maintain and staff a
main studio, as that term is defined by the FCC, at a location that complies
with FCC rules for the location of a main studio within such area, (ii) maintain
a local public inspection file within California, Missouri, and (iii) prepare
and place in such inspection file in a timely manner all material required by
Section 73.3526 of the FCC's rules, including without limitation the Station's
quarterly issues/program lists. Programmer shall provide Licensee with timely
information concerning Programmer's programs as is necessary to assist Licensee
in the preparation of such lists.
2.6 Employment Practices. Programmer shall provide to Licensee such
information as Licensee reasonably may request concerning Programmer's
recruitment, hiring, or employment practices in connection with Programmer's
provision of services to
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the Station. Programmer shall be directly and solely responsible for the
salaries, taxes, insurance, and related costs for all of the personnel employed
by it in operating the Station after the Effective Date.
Section 3
Programming
3.1 Programming Policy Statement. During the Term, Programmer shall comply
in all material respects with all applicable laws, rules, and regulations.
3.2 Licensee's Oversight of Programming. Programmer recognizes that
Licensee has the right to reject or refuse any portion of Programmer's
programming that is contrary to the public interest.
3.3 Compliance. Programmer shall not broadcast any material in violation
of any applicable law, rule, or regulation.
3.4 Payola. Programmer will not accept, and will not knowingly permit any
of its employees to accept, any consideration, compensation, gift, or gratuity
of any kind whatsoever, regardless of its value or form, for the broadcast of
any material on the Station, unless the payer is identified on the program for
which consideration was provided as having paid for or furnished such
consideration, in accordance with the Act and FCC requirements.
3.5 Cooperation on Programming. Programmer and Licensee mutually
acknowledge their interest in ensuring that the Station serves the needs and
interest of the residents of the California, Missouri, area and agree to
cooperate during the Term in doing so.
3.6 Confidential Review. Prior to the Effective Date, Programmer shall
acquaint Licensee, upon request, with the nature and type of the programming to
be provided. Licensee shall be entitled to review at its discretion from time to
time on a confidential basis any of Programmer's programming material it may
reasonably request. Programmer shall promptly provide Licensee with copies of
all correspondence and complaints received from the public (including any
telephone logs of complaints called in).
Section 4
Indemnification
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4.1 Indemnification. Programmer shall indemnify, defend, and hold harmless
Licensee from and against any and all claims, losses, costs, liabilities,
damages, and expenses, including any FCC fines or forfeitures (including
reasonable legal fees and other expenses incidental thereto) of every kind,
nature, and description arising out of Programmer's broadcasts on the Station
and/or sale of advertising time under this agreement during the Term, or the
actions or conduct of Programmer's employees.
4.2 Time Brokerage Challenge. If this agreement is challenged at the FCC
or in any other administrative or judicial forum, whether or not in connection
with any license assignment application, counsel for Licensee and Programmer
shall jointly defend the agreement and the Parties' performance hereunder
throughout all such proceedings. If any portion of this agreement does not
receive the FCC's approval, then the Parties shall reform the agreement,
consistent with the provisions of Section 6.6 below, as necessary to satisfy the
FCC's concerns.
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Section 5
Termination
5.1 Termination. Unless the parties otherwise agree hereafter in writing,
this agreement and the Term hereof shall terminate automatically upon the
earlier to occur of: (a) declaration that this agreement is invalid or illegal
in whole or material part by an order or decree of an administrative agency or
court of competent jurisdiction and such order or decree is final and is no
longer subject to further administrative or judicial review, (b) termination of
the Assets Purchase Agreement, (c) Closing of the Assets Purchase Agreement, (d)
notice of termination by Programmer to Licensee upon Licensee's failure to
perform as agreed herein, or (e) upon notice from Programmer or Licensee to the
other party given after the date that is one hundred eighty (180) days from the
date hereof.
5.2 Force Majeure. Any failure or impairment of the Station's facilities
or any delay or interruption in the broadcast of programs, or failure at any
time to furnish facilities, in whole or in part, for broadcast, due to acts of
God, strikes, lockouts, material or labor restrictions imposed by any
governmental authority, civil riot, flood, or any other cause not reasonably
within the control of Licensee or Programmer, shall not constitute a breach of
this agreement or create liability to or on any of the Parties.
Section 6
Miscellaneous
6.1 Assignment. This agreement is binding upon the Parties, their
successors and assigns. Neither of the Parties may assign its rights under this
agreement without the prior written consent of the other party.
6.2 Amendment. No amendment to this agreement shall be effective unless
evidenced by an instrument in writing signed by both Parties.
6.3 Headings. The headings herein are for convenience only and do not
control or affect the meaning or construction of the provisions of this
agreement.
6.4 Governing Law. This agreement is subject to applicable federal, state,
and local law, rules and regulations, including, but not limited to, the Act and
the rules, regulations, and policies of the FCC. The construction and
interpretation of this agreement and the Parties' obligations hereunder will be
determined
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under and controlled by the laws of the Commonwealth of Virginia, without giving
effect to such laws' principles regarding choice of law or conflicts of laws.
6.5 Notices. Each notice, consent, request, demand or other communication
required or permitted hereunder shall be in writing and shall be deemed to have
been duly given only upon the earlier of receipt (by hand delivery, fax, or
otherwise) or ten (10) days after having been mailed, certified or registered
United States mail, postage prepaid, addressed as follows:
(a) If to Licensee:
CMB II, Inc.
c/o Brill Media Company, L.P.
420 N.W. Fifth Street, Suite 3-B
P.O. Box 3353
Evansville, Indiana 47732
Attention: Alan R. Brill
Facsimile No.: (812) 428-4021
With a copy to:
Charles W. Laughlin, Esquire
Thompson & McMullan, P.C.
100 Shockoe Slip
Richmond, Virginia 23219
Facsimile No. (804) 780-1813
(b) If to Programmer:
MVP Radio, Inc.
324 Broadway
P.O. Box 1610
Cape Giradeau, MO 63702-1610
Facsimile No.: _____________
or to such other address as either party may designate from time to time by
written notice to the other.
6.6 Invalidity. If any provision of this agreement or the application
thereof to any person or circumstances shall be held invalid or unenforceable to
any extent, the Parties shall negotiate in good faith and attempt to agree on an
amendment to this agreement that will provide the Parties with substantially the
same rights, economic benefits, and obligations to the greatest extent possible
as the original agreement in valid, binding, and enforceable form.
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Section 7
Counterparts
7.1 Counterparts. This agreement may be executed in one or more
counterparts, each of which will be deemed an original but all of which together
will constitute one and the same agreement. For purposes of executing this
agreement, a facsimile signature shall be as effective as an actual signature,
so long as the original signature is promptly delivered thereafter.
IN WITNESS WHEREOF, the Parties have executed this agreement as of the
date first written above.
LICENSEE: CMB II, Inc.
by:_____________________________________
a duly authorized officer
PROGRAMMER: MVP Radio, Inc.
by:_____________________________________
a duly authorized officer
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EXHIBIT 1.4
Station's Operating Expenses Included in Time Brokerage Agreement
In accordance with Section 1.4 of the foregoing Time Brokerage Agreement
(the "TBA") between CMB II, Inc. ("Licensee"), and MVP Radio, Inc.
("Programmer") for the operation of radio station KATI-FM, California, Missouri
(the "Station"), Programmer shall reimburse Licensee for the costs and expenses
incurred by Licensee for the operation of the Station during the Term of the
TBA, including but not limited to the following items:
o FCC filing and regulatory fees;
o Local, state and federal property taxes, license fees and similar
regulatory charges;
o Contract engineering fees in order to maintain the operation of the
Stations' transmitter facilities;
o Electric power and other utility charges;
o Telephone and facsimile charges, copying, printing, postage and similar
administrative expenses;
o Payments for the specific financing agreements of the studio sites and
equipment currently used for the operation of the Stations;
o Insurance premiums for the Stations' general liability, health, auto,
umbrella, property coverage and errors and omissions policies; and
o Music licensing fees.
Monthly Fee. In addition to the reimbursement of expenses for the
operation of the Stations, Programmer shall pay to Licensee beginning on the
Effective Date and on the first day of every month thereafter a Monthly Fee of
Ten Thousand Dollars ($10,000.00) as additional consideration for the
programming rights provided to Programmer under the TBA.
Failure to Close. Notwithstanding any other provision in the TBA or the
Purchase Agreement, in the event the Parties fail to close on the sale of the
Stations to Programmer, Licensee shall not be obligated to repay to Programmer
any amounts advanced by Programmer to Licensee under the TBA.