Time Brokerage Agreement

TIME BROKERAGE AGREEMENT


- - ------------------------------------------------------------ - - -----------------------------------------


by and between


US RADIO, L.P.


and


ML MEDIA OPPORTUNITY PARTNERS, L.P.


relating to


Station WMXN-FM
Norfolk, Virginia


Dated as of January ___, 1994
TABLE OF CONTENTS


Section Heading Page


SECTION 1
BROKERAGE OF STATION AIR TIME . . . . . . . . . . . . . . . . 2
1.1.Scope. . . . . . . . . . . . . . . . . . . . . . . . 2
1.2.Term . . . . . . . . . . . . . . . . . . . . . . . . 3
1.3.Consideration. . . . . . . . . . . . . . . . . . . . 3
1.4.Authorization. . . . . . . . . . . . . . . . . . . . 4


SECTION 2
OPERATION . . . . . . . . . . . . . . . . . . . . . . . . . . 4
2.1.Licensee Responsibility. . . . . . . . . . . . . . . 4
2.2.Broker Responsibility. . . . . . . . . . . . . . . . 6
2.3.Broadcast Output . . . . . . . . . . . . . . . . . . 7
2.4.Advertising and Programming; Sales and Trade Agreements 7
2.5.Assumption of Other Contracts. . . . . . . . . . . . 8


SECTION 3
COMPLIANCE WITH REGULATIONS . . . . . . . . . . . . . . . . . 10
3.1.Licensee Authority . . . . . . . . . . . . . . . . . 10
3.2.Cooperation Between Licensee and Broker. . . . . . . 10
3.3.Station Identification and Promotion. . . . . . . . 11
3.4.Payola/Plugola.. . . . . . . . . . . . . . . . . . . 11
3.5.Political Advertising. . . . . . . . . . . . . . . . 12
3.6.Regulatory Changes . . . . . . . . . . . . . . . . . 13


SECTION 4
STATION BROADCASTS. . . . . . . . . . . . . . . . . . . . . . 13
4.1.Station Broadcast Guidelines . . . . . . . . . . . . 13
4.2.Licensee Control of Programming. . . . . . . . . . . 13
4.3.Right to Use the Programs. . . . . . . . . . . . . . 15
4.4. Rejection of Programming. . . . . . . . . . . . . . . . 15
4.5.Program Recordkeeping and Other Procedures.. . . . . 15


SECTION 5
TERMINATION AND REMEDIES UPON DEFAULT . . . . . . . . . . . . 16
5.1.Termination by Either Party. . . . . . . . . . . . . 16
5.2.Broker's Remedies. . . . . . . . . . . . . . . . . . 17
5.3.Liabilities Upon Termination of This Agreement.. . . 18
5.4.Arbitration. . . . . . . . . . . . . . . . . . . . . 18


SECTION 6
INDEMNIFICATION . . . . . . . . . . . . . . . . . . . . . . . 19
6.1.Broker's Indemnification.. . . . . . . . . . . . . . 19
6.2.Licensee's Indemnification.. . . . . . . . . . . . . 20
6.3.Procedure for Indemnification. . . . . . . . . . . . 20
6.4.Dispute Over Indemnification.. . . . . . . . . . . . 22 SECTION 7
COLLECTION OF ACCOUNTS RECEIVABLE . . . . . . . . . . . . . . 22


SECTION 8
STATUS OF EMPLOYEES . . . . . . . . . . . . . . . . . . . . . 24
8.1. . . . . . . . . . . . . . . . . . . . . . . . . . . 24
8.2. . . . . . . . . . . . . . . . . . . . . . . . . . . 25


SECTION 9
MISCELLANEOUS . . . . . . . . . . . . . . . . . . . . . . . . 26
9.1.Assignment . . . . . . . . . . . . . . . . . . . . . 26
9.2.Brokerage. . . . . . . . . . . . . . . . . . . . . . 26
9.3.Counterparts.. . . . . . . . . . . . . . . . . . . . 27
9.4.Entire Agreement.. . . . . . . . . . . . . . . . . . 27
9.5.Headings.. . . . . . . . . . . . . . . . . . . . . . 27
9.6.Third Parties. . . . . . . . . . . . . . . . . . . . 27
9.7.Indulgences. . . . . . . . . . . . . . . . . . . . . 27
9.8.Counsel. . . . . . . . . . . . . . . . . . . . . . . 28
9.9.Severability.. . . . . . . . . . . . . . . . . . . . 28
9.10.Governing Law . . . . . . . . . . . . . . . . . . . 28
9.11.Confidentiality.. . . . . . . . . . . . . . . . . . 29
9.12.No Partnership or Joint Venture.. . . . . . . . . . 29
9.13.Licensee Certification. . . . . . . . . . . . . . . 29
9.14.Broker Certification. . . . . . . . . . . . . . . . 30
9.15.Notices.. . . . . . . . . . . . . . . . . . . . . . 30
TIME BROKERAGE AGREEMENT


This Time Brokerage Agreement ("Agreement") is made and entered into this ____ day of January, 1994, by and between ML MEDIA OPPORTUNITY PARTNERS, L.P., a Delaware limited partnership (the "Licensee") and US RADIO, L.P., a Delaware limited partnership (the "Broker").
WITNESSETH THAT:
WHEREAS, Licensee owns and operates FM broadcast station WMXN-FM, 105.3 MHz, Norfolk, Virginia (the "Station") pursuant to licenses issued by the Federal Communications Commission (the "FCC"); and
WHEREAS, Broker desires to provide radio programs in conformity with this Agreement and all rules, regulations, and policies of the FCC to Licensee for broadcast on the Station; and
WHEREAS, Licensee desires to make broadcasting time on the Station available to Broker on terms and conditions which conform to FCC rules, regulations, and policies and to this Agreement; and
WHEREAS, Licensee and US Radio V, Inc., a Delaware corporation ("Optionee") have concurrently entered into an Option Agreement (the "Option Agreement") under which Licensee has granted Optionee an option to purchase the Station (the "Call") and Optionee has granted to Seller an option to require Optionee to purchase the Station from Seller under certain circumstances (the "Put"), subject to prior FCC approval;
WHEREAS, if the Call or Put are exercised but Optionee fails to consummate the purchase of the Station in accordance with the terms of the Asset Purchase Agreement attached as Exhibit 1 to the Option Agreement, Licensee may cause Broker to sell its Stations WOWI-FM, Norfolk, Virginia, and WSVY-AM, Portsmouth, Virginia jointly with the Station to a third party ("Joint Sale") in accordance with the terms of the Option Agreement;
NOW, THEREFORE, in consideration of the mutual promises and covenants contained herein, the parties, intending to be legally bound, agree as follows:
SECTION 1
BROKERAGE OF STATION AIR TIME
1.1. Scope. Licensee shall make available to Broker the Station's air time, as set forth in this Agreement, for broadcast of the programs produced or selected by Broker. Broker may provide entertainment programming of its selection, complete with commercial matter, news, public service announcements, and other suitable programming for broadcast on the Station. Notwithstanding the foregoing, Licensee shall utilize such time as Licensee may require for the broadcast of news, public affairs, public service announcements, and other informational programming provided by Licensee that is responsive to the needs and interests of its community of license and service area, which programming shall be broadcast at least 2 hours a week; provided, however, that Licensee shall not reserve time for its own programming between 5:00 a.m. and 10:00 a.m. or 3:00 p.m. and 8:00 p.m. on weekdays. Licensee hereby initially designates the hours set forth on Attachment C hereto for such use. It is understood and agreed that in the event of a local, state or national emergency or circumstances that Licensee in good faith believes necessary to satisfy the public interest, Licensee reserves the right to preempt programming time to broadcast programs and/or announcements on a non-commercial basis. Licensee will use its best efforts to notify Broker in advance of such preemptions. In addition, Broker shall broadcast, at Licensee's request, up to two (2) thirty-second announcements each day containing any material of Licensee's choice at such times as are mutually agreeable to Licensee and Broker. Broker shall also consider in good faith including in its programming such other public service announcements as Licensee may from time to time suggest.
1.2. Term. This Agreement shall commence on January 31, 1994 (the "Commencement Date) and, unless sooner terminated in accordance with the terms hereof, shall continue for an initial term ending on the earliest of (i) March 1, 1995, if neither the Call nor Put have been exercised pursuant to the Option Agreement, (ii) the consummation of the sale of the Station to Optionee pursuant to the Option Agreement, or (iii) the consummation of a Joint Sale of the Station and Optionee's stations to a third party pursuant to the Option Agreement.
1.3. Consideration. In consideration for the air time made available by Licensee hereunder, Broker shall, subject to the terms and conditions hereof, pay Licensee by check on or before the first (1st) day of the calendar month for which payment is due the sum of Forty-Two Thousand Dollars ($42,000) for each month during the term of this Agreement, prorated as appropriate for any partial months.
1.4. Authorization. Licensee and Broker each represent to the other that it is legally qualified, empowered, and able to enter into this Agreement, that this Agreement has been duly approved by all necessary actions of its partners, that this Agreement is its legally binding obligation, enforceable in accordance with the terms hereof, and that this Agreement does not constitute a breach or default under its limited partnership agreement or certificate or any other agreement by which it is bound.
SECTION 2
OPERATION
2.1. Licensee Responsibility.
(a) Nothing herein shall be construed to grant to Broker the power or authority to control or direct the operation of the Station. Whenever on the premises of the Station, Broker's employees and agents shall at all times be subject to the direction and control of Licensee, its general manager and other employees or agents. The parties acknowledge and agree that Broker shall broadcast its programming from the Station studio located at Riverside Corporate Center, 240 Corporate Blvd., Suite 105, Norfolk, Virginia.
(b) Licensee shall be responsible for, and pay in a timely manner, all real estate taxes and/or rental payments on the real property upon which the Station's antenna system and/or studio facilities are located, and all personal property taxes and/or rental payments on the Station equipment owned or rented by Licensee. Licensee shall also be responsible for the cost of maintaining the Station's studio, transmitter, and antenna equipment. Licensee shall employ its own general manager and such support staff as is necessary to oversee the operation of the Station. Licensee shall be responsible for the salaries, taxes, insurance, and related costs for all of Licensee's employees. Licensee shall maintain replacement value insurance coverage on the Station's transmitter, transmitter building, towers, antenna system, and studio equipment, and, in the event of any loss or damage to such property, Licensee shall use the proceeds of such insurance policies to replace, restore, or repair the lost or damaged property. Licensee shall cooperate with Broker, at Broker's expense, in making such arrangements as Broker shall reasonably request to deliver Broker's programming from any remote location to the Station's transmitter site.
(c) Licensee shall be responsible for the Station's compliance with all applicable provisions of the Communications Act of 1934, as amended, the rules, regulations, and policies of the FCC, and all other applicable laws, including, without limitation, laws relating to equal employment opportunity (as applied to Licensee's employees), human exposure to radiofrequency radiation, and the safety of air navigation. Licensee represents that it now holds all licenses and other permits and authorizations necessary for the operation of the Station as presently conducted (including all FCC licenses, permits, and authorizations), and that it will maintain such licenses, permits, and authorizations in full force and effect throughout the term of this Agreement, unimpaired by any acts or omissions of Licensee. Licensee represents that there is not now pending or, to Licensee's knowledge, threatened, any action by the FCC or other party to revoke, cancel, suspend, refuse to renew, or modify adversely any of the licenses, permits, or authorizations necessary for the operation of the Station.
2.2. Broker Responsibility. Broker shall employ and be responsible for the salaries, taxes, insurance, and related costs for all personnel employed by Broker in connection with the production or supply of the programs provided to the Station hereunder, and all other costs incurred by Broker in providing and broadcasting such programs, including telephone service at the studio and the cost of all utilities to operate the Station during the term of this Agreement and all other costs incurred in connection with broadcasts by the Station other than those for which Licensee is responsible under Sections 2.1(b) or 2.1(c). Broker shall also be responsible for all expenses incurred in the origination and/or delivery of Broker's programming to the Station's transmitter site, all music licensing fees and assessments with respect to the broadcast of Broker's programming by the Station (including but not limited to those charged by ASCAP, BMI, SESAC or similar organizations), and all publicity or promotional expenses incurred by Broker. Broker shall maintain broadcaster's errors and omissions insurance with respect to all programming to be broadcast by Broker over the Station, with such insurance carriers and such policy limits as are reasonably acceptable to Licensee, and shall name Licensee as an additional insured on all such insurance policies. Broker shall provide evidence of such insurance coverage to Licensee.
2.3. Broadcast Output. Licensee represents that the Station's transmitting equipment has been maintained in accordance with good engineering standards necessary to deliver a high-quality stereo signal, complies in all material respects with all applicable laws and regulations (including the requirements of the Communications Act and the rules, regulations, policies, and procedures of the FCC), and is operating with the full facilities currently authorized by the FCC for the Station. So long as this Agreement remains in effect, Licensee shall take no action that results in a materially adverse degradation in the present quality of the Station's broadcast output (normal and reasonable down-time for maintenance, repair, and replacement of equipment excepted).
2.4. Advertising and Programming; Sales and Trade Agreements. All contracts, advertising, agreements, purchase orders, and other similar documents and instruments negotiated and executed by Broker in connection with its programming of the Station, sales, advertising, exploitation and promotion on or after the Commencement Date shall be in the name of Broker, and Broker shall not represent in any fashion that Broker is the licensee or owner of the Station. Broker will be entitled to all revenue from the sale of advertising or program time on the Station, except for revenues from advertising or program time sold by Licensee for the hours of operation and announcements reserved by Licensee in Section 1.1. All advertising contracts entered into by Licensee prior to the Commencement Date for commercial time to be broadcast after the Commencement Date (for cash or trade) shall be performed by Broker, and Broker shall be entitled to all revenue from such cash contracts and all trade to be delivered after the Commencement Date from such trade contracts; any cash prepayments with respect to such commercial time shall be paid over by Licensee to Broker, but Licensee shall have no obligation to Broker with respect to any trade received with respect to such commercial time prior to the Commencement Date. A complete schedule of such advertising contracts, both cash and trade, showing the amount of cash and trade already collected from the advertisers, is attached hereto as Attachment D.
2.5. Assumption of Other Contracts. Licensee shall assign to Broker and Broker shall assume, as of the Commencement Date, the contracts listed in Attachment G (the "Contracts"). In the event that this agreement expires or is terminated for any reason and neither the sale of the Station to Optionee nor the Joint Sale of the Station and Optionee's stations to a third party is consummated pursuant to the Option Agreement, then the Contracts shall be reassigned to and assumed by Licensee upon the expiration or termination of this Agreement.Licensee shall use its best efforts to obtain any consents required to assign the Contracts to Broker. Notwithstanding any provision of this Agreement to the contrary, this Agreement shall not constitute an agreement to assign any contract, if (i) an attempted assignment, without the consent required for such assignment, would constitute a breach thereof or in any way have a material adverse effect on Licensee's or Broker's rights thereunder, and (ii) such consent is not obtained by Licensee prior to the Commencement Date. If any such required consent is not obtained, or if an attempted assignment would be ineffective or would adversely affect Licensee's rights thereunder so that Broker would not receive all such rights and benefits after the Commencement Date, Licensee shall cooperate in any arrangement Broker may reasonably request to provide Broker with Licensee's rights and benefits under any such contract, including enforcement for the benefit of Broker of any rights of Licensee against any other party thereto arising out of the breach or cancellation thereof by such party or otherwise. With respect to any contracts that require the consent of third parties for assignment, but for which the consent of such third parties has not been obtained as of the Commencement Date, Broker shall assume Licensee's obligations to be performed under those agreements only for the period after the Commencement Date during which Broker receives the benefits that Licensee was entitled to receive under such agreements as of the Commencement Date. Licensee shall attempt to negotiate cancellations of the agreements listed in Attachment H in consultation with Broker, and Broker shall reimburse Licensee for any cancellation fees incurred by Licensee in cancelling those agreements.
SECTION 3
COMPLIANCE WITH REGULATIONS
3.1. Licensee Authority. Broker recognizes that Licensee has an obligation to broadcast programming that covers issues of public importance in Norfolk, Virginia and other communities within the Station's service area. The parties intend that Licensee will use a substantial portion of the air time reserved to it under Section 1.1 above to satisfy these public service obligations.
3.2. Cooperation Between Licensee and Broker. Both parties shall cooperate in the broadcast of emergency information over the Station, and Licensee retains the right to preempt Broker's programming in case of an emergency. Licensee shall maintain a main studio within the Station's principal community contour and maintain its local public inspection file in its community of license. Licensee agrees that all reports and applications (including ownership reports and renewal applications) required to be filed with the FCC or any other governmental agency, department or body in respect of the Station will be filed in a timely manner and will be true and complete and accurately present the information contained therein and, to the extent required, will be kept in the public inspection file of the Station.
3.3. Station Identification and Promotion. Licensee will retain all rights to the call letters WMXN or such other call letters as may be used by Licensee for the Station and will ensure that proper station identification announcements are made in accordance with FCC rules and regulations. Broker shall include in the programs it delivers for broadcast an announcement in a form satisfactory to Licensee at the beginning of each hour of such programs to identify WMXN or such other call letters as may be used by Licensee, as well as any other announcements required by the rules and regulations of the FCC. Broker shall sub ...