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Local Marketing Agreement - Whsl - Fm

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Sectors: Media
Governing Law: North Carolina, View North Carolina State Laws
Effective Date: June 28, 1996
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This LOCAL MARKETING AGREEMENT (this "Agreement") is entered into this 28th day of June, 1996, by and between SFX BROADCASTING OF SOUTH CAROLINA, INC., a Delaware Corporation ("Programmer"), and HMW COMMUNICATIONS, INC., a Delaware Corporation ("Licensee"), licensee of Radio Station WHSL-FM, High Point, North Carolina (the "Station").


WHEREAS, Licensee holds a license from the Federal Communications Commission ("FCC" or "Commission") authorizing it to operate the Station;

WHEREAS, Licensee is engaged in the business of radio broadcasting on the Station, and has available for sale broadcast time on the Station;

WHEREAS, Licensee and Programmer are parties to that certain Joint Sales Agreement dated January 18, 1996 ("JSA") providing for the sale by Programmer of commercial advertising time inventory on the Station; and

WHEREAS, Programmer desires to purchase time on the Station for the broadcast of programming on the Station and to sell all of the commercial advertising time inventory of the Station.

NOW, THEREFORE, in consideration of the mutual covenants herein contained, the parties hereto have agreed and do agree as follows:

1. Time Sale.

Subject to the provisions of this Agreement, Licensee agrees to make the Station's broadcasting transmission facilities available to Programmer for broadcast of Programmer's programs on the Station originating either from Programmer's studios or from Licensee's studios. The Station's time made available to Programmer is described in Exhibit A hereto. Programmer will use its best efforts to provide programming which fills the Station's time made available hereunder.

2. Payments.

Programmer hereby agrees to pay Licensee compensation for the broadcast of Programmer's programming in the amounts and at the times set forth in Exhibit B hereto.

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3. Term.

The term of this Agreement shall commence as of July 1, 1996 and shall continue until (a) the date of closing of the sale of the assets of the Station (the "Closing") contemplated in the Asset Purchase Agreement by and between HMW Communications, Inc. and SFX Broadcasting, Inc., dated January 18, 1996 (as amended, the "Asset Purchase Agreement"); or (b) upon the earlier termination of the Asset Purchase Agreement in accordance with its terms.

4. Programs.

Programmer shall furnish or cause to be furnished the artistic personnel and materials for its programming. Programmer represents and warrants that all of the programming, advertising and promotional material it broadcasts on the Station shall be in accordance with the rules, regulations, policies and procedures of the Commission and the Communications Act of 1934, as amended (the "Communications Act"), and the reasonable standards established by Licensee.

5. Accounts Receivable.

The parties agree that accounts receivable for performed advertising contracts identified and valued as of the date hereof shall be collected by Programmer and distributed between Programmer and Licensee in the manner described in Paragraph 5 of the JSA, which is incorporated herein by reference. All accounts receivable of Programmer created on or after the date hereof shall be and remain the sole property of Programmer. Programmer shall be responsible for the collection of such accounts receivable and shall retain ownership of such accounts upon termination of this Agreement.

6. Station Facilities.

(a) Licensee Responsibility. Licensee shall be responsible for, and pay in a timely manner, all costs associated with owning and controlling the Station, including, but not limited to, electricity, telephone at the studio and transmitter sites, insurance, taxes, maintenance and engineering of the Licensee's studio, and all engineering costs associated with maintenance and operation of the transmitter, transmitter building, tower, antenna system and the real property upon which the tower is located. Licensee shall be responsible for the Station's compliance with all applicable provisions of the Communications Act, the rules, regulations, policies and procedures of the FCC, and all other applicable laws. Licensee represents that it now holds all permits and authorizations set forth on Schedule 9.4 to the Asset Purchase Agreement. Licensee will continue to hold such permits and authorizations throughout the life of this Agreement. 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 held by Licensee. Licensee shall make its transmitter, transmitter building and tower site available to Programmer, at no additional charge, for the placement and use of broadcast

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equipment Programmer reasonably deems necessary to fulfill its responsibilities under this Agreement.

(b) Broadcast Output. Licensee represents that the Station's facilities and equipment do and will comply and are and will be operated in accordance with industry practice and comply in all material respects with all applicable rules and regulations of the FCC and the terms of the Station's FCC licenses. Licensee is not in material violation of any statute, ordinance, rule, regulation, order or decree of any federal, state, local or foreign governmental agency, court or authority having jurisdiction over it or over any part of its operations or assets, which material default or violation would have a material adverse effect on Licensee or its assets or on its ability to perform this Agreement. During the term hereof, Licensee agrees to operate the Station in all respects in accordance with FCC rules and regulations.

(c) Maintenance. Any maintenance work, other than emergency repairs, which prevent the operation of the Station at full power and maximum facility, shall not be scheduled without giving at least FORTY-EIGHT (48) hours notice to Programmer, unless Programmer waives such notice.

7. Handling Of Mail And Complaints.br/> --------------------------------

Programmer shall promptly forward to Licensee any mail which it may receive from any agency of government or any correspondence from members of the public relating to the Station or to any of Programmer's programming broadcast on the Station.

8. Programming And Operations Standards.

Programmer recognizes that the Licensee has full authority and a duty to control the operation of the Station. The parties agree that Licensee's authority includes, but is not limited to, the right to reject or refuse such portions of Programmer's programming which Licensee reasonably believes to be contrary to the public interest. Should Licensee reject any of Programmer's programming pursuant to this paragraph, the payments, reimbursements and fees provided for hereunder shall be pro rated accordingly.

9. Responsibility For Employees And Expenses.

Programmer shall employ and be responsible for the salaries, commissions, taxes, insurance and all other related costs for all of its employees, agents, contractors and personnel involved in the production and broadcast of its programming, including air personalities, salespersons, sales representatives, consultants, traffic personnel, board operators and other programming staff members. Programmer shall reimburse Licensee and indemnify and hold Licensee harmless for music licensing fees required to be paid to ASCAP, BMI and SESAC, and for any other copyright or program rights fees attributable to programming broadcast on the Station.

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10. Advertising And Programming Revenues.

Programmer shall retain all revenues from the sale of advertising time on the programming it broadcasts on the Station. Programmer will provide, make available to and shall sell time to political candidates from the time it purchases from Licensee in strict compliance with the Communications Act, the rules, regulations, policies and procedures of the Commission.

11. Operation Of Station.

Notwithstanding anything to the contrary in this Agreement, Licensee shall have full authority and power over the operation of the Station during the term of this Agreement. Licensee shall be responsible for all programming it furnishes for broadcast on the Station and for the payment of the salaries of all of its employees, all of whom shall report solely to and be accountable solely to the Licensee. The Licensee's General Manager shall direct the day-to-day operation of the Station, and the Licensee's Chief Operator shall oversee and direct the engineering and technic
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