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EXHIBIT 10.34
MASTER AGREEMENT
This is an agreement ("Master Agreement") made this 6th day of March,
1997, but as of and effective as of December 30, 1996 among Xxxx
Communications, Inc. ("Xxxx"), a Delaware corporation with offices at 000 Xxxx
00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Capstar Broadcasting Partners, Inc., a
Delaware corporation with offices at Suite 1400, 000 Xxxxxxxx Xxxxxx, Xxxxxx,
Xxxxx 00000 ("Capstar") and Gulfstar Communications, Inc., a Delaware
corporation with offices at Suite 1410, 000 Xxxxxxxx Xxxxxx, Xxxxxx, Xxxxx
00000 ("Gulfstar" and, collectively with Capstar and all of their directly or
indirectly owned Subsidiaries, now existing or hereafter formed, "Capstar
Group").
The parties desire to provide for the long term representation, by
various members of the Xxxx Radio Group (individually, a "KRG Firm" and
collectively, the "KRG Firms"), of radio stations now owned by the members of
the Capstar Group, for which they now sell advertising under a local marketing
agreement, time brokerage agreement, joint sales agreement, or similar
arrangement ("LMA" and sometimes referred to as radio stations that are
"Operated" or stations which an entity is "Operating"), which are acquired by a
member of the Capstar Group hereafter or which are Operated by a member of the
Capstar Group hereafter pursuant to a LMA.
The radio stations currently owned by Capstar or Operated by Capstar
(individually, a "Capstar Station" and collectively, the "Capstar Stations")
are listed on Schedule A and Schedule B hereto. Schedules A and B also list the
name of the owner or entity Operating each Capstar Station, the name of the KRG
Firm or other company currently representing each Capstar Station with respect
to national broadcast advertising, if known the name of the KRG Firm to
represent each Capstar Station pursuant to a New Agreement (hereinafter
defined) and the excluded territory to be set forth in the New Agreement for
each such Capstar Station. The stations listed on Schedule A are owned or
Operated through Commodore Media, Inc. ("Commodore"), a wholly owned Subsidiary
of Capstar, and the stations listed on Schedule B are owned or Operated through
Xxxxxx Communications Corporation ("Xxxxxx"), a wholly owned Subsidiary of
Capstar.
The radio stations currently owned by Gulfstar or Operated by Gulfstar
(individually a "Gulfstar Station," and collectively the "Gulfstar Stations")
are listed on Schedule C hereto. Schedule C also lists the name of the current
owner or entity Operating each Gulfstar Station, the name of each owner of or
entity Operating each Gulfstar Station, the name of the KRG Firm or other
company currently representing each Gulfstar Station with respect to National
Broadcast Advertising, if known the name of the KRG Firm to represent each
Gulfstar Station pursuant to a New Agreement (hereinafter defined) and the
excluded territory to be set forth in the New Agreement for each such Gulfstar
Station.
Capstar or Gulfstar is a party to certain other agreements to purchase
the radio stations listed on Schedule D hereto (individually, an "Other Station"
and collectively, the "Other
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Stations"). Schedule D lists the name of the owner of or entity Operating each
Other Station after acquisition by Capstar or Gulfstar, the name of the company
now representing such Other Station with respect to National Broadcast
Advertising, if known the name of the KRG Firm which will represent such Other
Station after its acquisition by Capstar or Gulfstar and the excluded territory
to be set forth in the New Agreement for the representation of each such Other
Station.
Each of Schedule A, B, C and D also indicates those Stations which
will be Operated by Capstar or Gulfstar pursuant to a LMA.
NOW, THEREFORE, in consideration of the mutual promises herein
contained, the parties, intending to be legally bound, agree as follows:
1. Certain Definitions. As used in the Master Agreement, the following
terms shall have the following meanings:
1.1 "Additional Station" shall mean any radio station, other
than those listed on Schedules A, B, C and D acquired by any member of the
Capstar Group after December 30, 1996 and any radio station, other than those
listed on Schedules A, B, C and D, for which a member of the Capstar Group
commences to sell advertising pursuant to a LMA after December 30, 1996. The
term "Additional Stations" shall mean more than one or all of the Additional
Stations, as the context requires.
1.2 "Gross Xxxxxxxx" for any period shall mean the gross
xxxxxxxx of a Station arising from National Broadcast Advertising broadcast in
such period notwithstanding the fact that (a) the advertiser or advertising
agency may be billed for such National Broadcast Advertising after the
conclusion of such period or (b) during such period the Station was not owned
or Operated by a member of the Capstar Group.
1.3 "Month" shall mean a standard broadcast month. The word
"month" shall mean a calendar month.
1.4 "National Broadcast Advertising" shall have the meaning
given to it in Schedule E attached hereto.
1.5 "New Agreement" shall mean an agreement between a KRG
Firm or Xxxx and a member of the Capstar Group for the representation of a
Station substantially in the form of Schedule E annexed hereto with blanks
appropriately completed or an agreement between a member of the Capstar Group
and a KRG Firm or Xxxx for the representation of a Station Operated by a member
of the Capstar Group pursuant to a LMA substantially in the form of Schedule F
annexed hereto with blanks appropriately completed.
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1.6 "Station" shall mean any Capstar Station, Other Station,
Additional Station or Gulfstar Station. The term "Stations" shall mean more
than one or all of the Capstar Stations, Other Stations, Additional Stations
and Gulfstar Stations as the context requires.
1.7 "Station Net Billing" shall have the meaning given to it
in Schedule E annexed hereto.
1.8 "Subsidiary" shall mean, when used with respect to any
member of the Capstar Group, any person or entity directly or indirectly
controlled by any member of the Capstar Group. Control of a person or entity,
including Xxxx, shall mean either (i) the power, direct or indirect, to direct
or cause the direction of the management and policies of the person or entity,
whether through the ownership of voting securities, by contract or otherwise,
or (ii) the direct or indirect ownership of more than 50% of the outstanding
voting securities in such person or entity.
1.9 "Total Gross Xxxxxxxx" shall mean the Gross Xxxxxxxx of
all of the Stations represented (at the time Total Gross Xxxxxxxx are being
determined) by KRG Firms or Xxxx pursuant to New Agreements for National
Broadcast Advertising broadcast by the Stations during the immediately
preceding twelve Months notwithstanding the fact that a New Agreement may not
have been in effect for such entire preceding twelve-Month period.
1.10 "Year" shall mean a standard broadcast year. The word
"year" shall mean a calendar year.
2. New Agreements.
2.1 Capstar Stations. (a) On or before February 28, 1997, but
having an effective date of December 30, 1996, Capstar and the KRG Firm
designated in Schedules A and B or pursuant to Article 18 of this Master
Agreement as the KRG Firm to represent such Capstar Station pursuant to a New
Agreement shall enter into a New Agreement for the representation of each
Capstar Station represented by a KRG Firm in the sale of National Broadcast
Advertising on the effective date of this Master Agreement.
(b) On or before February 28, 1997, but having an effective
date of the earlier of (i) February 28, 1997 or (ii) the date a KRG Firm
actually begins representation of such Capstar Station, Capstar and the KRG
Firm designated in Schedules A and B or pursuant to Article 18 of this Master
Agreement as the KRG Firm to represent such Capstar Station pursuant to a New
Agreement shall enter into a New Agreement for the representation of each
Capstar Station which is not represented by a KRG Firm in the sale of National
Broadcast Advertising on the effective date of this Master Agreement.
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2.2 Gulfstar Stations. (a) On or before February 28, 1997,
but having an effective date of December 30, 1996, Gulfstar and the KRG Firm
designated in Schedule C or pursuant to Article 18 of this Master Agreement as
the KRG Firm to represent such Gulfstar Station pursuant to a New Agreement
shall enter into a New Agreement for the representation of each Gulfstar
Station represented by a KRG Firm in the sale of National Broadcast Advertising
on the effective date of this Master Agreement.
(b) On or before February 28, 1997, but having an effective
date of the earlier of (i) February 28, 1997, or (ii) the date a KRG Firm
actually begins to represent such Gulfstar Station, Gulfstar and the KRG Firm
designated in Schedule C or pursuant to Article 18 of this Master Agreement as
the KRG Firm to represent such Gulfstar Station shall enter into a New
Agreement for the representation of each Gulfstar Station which is not
represented by a KRG Firm in the sale of National Broadcast Advertising on the
effective date of this Master Agreement.
2.3 Other Stations. No more than ten (10) days after a member
of the Capstar Group acquires an Other Station, Capstar or the member of the
Capstar Group owning or Operating such Other Station and the KRG Firm
designated in Schedule D or pursuant to Article 18 of this Master Agreement as
the KRG Firm to represent such Other Station shall enter into a New Agreement
for the National Broadcast Advertising sales representation of such Other
Station. The effective date of each such New Agreement shall be the earlier of
ten (10) days after the acquisition or commencement of Operation of such Other
Station or such earlier date as is mutually agreed upon by Xxxx and the member
of the Capstar Group owning or Operating such Other Station for the applicable
KRG Firm to commence representation of such Other Station.
2.4 Prior Agreements. Upon the execution and delivery of a
New Agreement for the representation of a Capstar Station, Gulfstar Station or
an Other Station now represented by a KRG Firm, the representation agreement
now in effect for the representation of such Station shall terminate and
neither party thereto shall have any liability whatsoever to the other party
with respect thereto, other than the obligation of the member of the Capstar
Group which is a party to each such terminated representation agreement, to pay
the applicable KRG Firm commissions on National Broadcast Advertising broadcast
prior to the effective date of the applicable New Agreement.
2.5 Additional Stations. Except as hereinafter expressly
provided in section 3.2(d), each Additional Station shall be represented by a
KRG Firm as provided in Article 4 of this Master Agreement. The effective date
of each New Agreement for the representation of an Additional Station shall be
(a) if a KRG Firm is at the time of acquisition not representing such
Additional Station, the earlier of ten (10) days after the date on which a
member of the Capstar Group acquires the Additional Station or commences
Operating the Additional Station pursuant to a LMA or such earlier date as is
mutually agreed upon by Xxxx and the member of the Capstar Group owning or
Operating such Other Station or (b) if a KRG Firm is at the time representing
such Additional Station, the date on which the member of the Capstar Group
owning or Operating such Other Station acquires or commences Operating such
Additional Station.
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3. The New Agreements. Each New Agreement for the representation of a
Station shall be substantially in the form of Schedule E for Stations which are
owned by a member of the Capstar Group and Schedule F for Stations which are
Operated by a member of the Capstar Group pursuant to a LMA.
3.1 Commission Rate. Notwithstanding the express provisions
of the New Agreements, so long as a Station is owned by a member of the Capstar
Group or Operated by a member of the Capstar Group pursuant to a LMA and the
Station is represented by a KRG Firm pursuant to a New Agreement and this
Master Agreement has not terminated, the commission rate shall be:
(a) In the Year 1997 or such part thereof as a Station is
represented by a KRG Firm pursuant to a New Agreement, the commission rate
shall be 12.5% until changed pursuant to paragraph (b) of this section:
(b) If at the end of any Month, Total Gross Xxxxxxxx:
(i) did not exceed $20,000,000, commencing on
the first day of the Month following the
end of the applicable twelve Month period,
the commission rate for all of the Stations
shall become 12.5%;
(ii) were more than $20,000,000 but did not
exceed $30,000,000, commencing on the first
day of the Month following the end of the
applicable twelve Month period, the
commission rate for all of the Stations
shall become 11.5%;
(iii) were more than $30,000,000 but did not
exceed $40,000,000, commencing on the first
day of the Month following the end of the
applicable twelve Month period, the
commission rate for all of the Stations
shall become 10.5%; and
(iv) were more than $40,000,000, commencing on
the first day of the Month following the
end of the applicable twelve Month period,
the commission rate for all of the Stations
shall become 10%.
Total Gross Xxxxxxxx of the Stations shall be calculated at
the end of each Month and the change in commission rate, upward or downward,
shall be made effective as of the first day of the Month following the end of a
twelve Month measuring period. Gross Xxxxxxxx of a Station which is not owned
or Operated by a member of the Capstar Group at the end of a Month shall not be
counted in the calculation of Total Gross Xxxxxxxx.
3.2 Excluded Accounts; Excluded Territory.
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(a) The territory in a New Agreement in which a KRG Firm
shall be excluded from the representation of a Capstar Station, Gulfstar
Station or Other Station shall be the excluded territory described in the
applicable Schedule to this Master Agreement. If no excluded territory is
described in the applicable Schedule, the excluded territory shall be the
excluded territory contained in the agreement in effect for the representation
of such Capstar Station, Gulfstar Station, or Other Station on the day before
the effective date of this Master Agreement; provided however, that the Capstar
Station, Gulfstar Station or Other Station, at its option, may select as the
excluded territory for such Station (i) a 50-mile radius from the studio of
such Station, (ii) if the KRG Firm has no office in the state in which such
Station is located, the state in which such Station is located, or (iii) if
there are other Stations represented by a KRG Firm in the market in which such
Capstar Station, Gulfstar Station or Other Station is located, the excluded
territory in the agreement for the representation of any other Station in the
market in which the Capstar Station, Gulfstar Station or Other Station is
located. The territory in a New Agreement in which a KRG Firm shall be excluded
from the representation of an Additional Station shall be the excluded
territory contained in the agreement in effect for the representation of such
Station on the day before the effective date of the New Agreement for
representation of such Additional Station, whether such prior agreement was
with a KRG Firm or another company; provided, however, that the Additional
Station, at its option, may select as the excluded territory (i) a 50-mile
radius from the studio of the Additional Station, (ii) if the KRG Firm has no
office in the state in which the Additional Station is located, the state in
which the Additional Station is located or (iii) if there are other Stations
represented by a KRG Firm in the market in which such Additional Station is
located, the excluded territory in the agreement for the representation of any
other Station in the market in which such Additional Station is located.
(b) Subject to subparagraph (c) below and subparagraph (iv)
of the definition of National Broadcast Advertising to be contained in each New
Agreement, excluded accounts for each Capstar Station, Gulfstar Station and
Other Station represented by a national sales representative whether or not
such representative is a KRG Firm shall be those in effect on the day before
the Effective Date of the Master Agreement unless otherwise set forth in
Schedule G to this Master Agreement. Subject to subparagraph (d) below and
subparagraph (iv) of the definition of National Broadcast Advertising to be
contained in each New Agreement, excluded accounts for each Additional Station
shall be as set forth in the agreement for the representation of such Station,
whether with a KRG Firm or another, in effect the day before the effective date
of the applicable New Agreement.
(c) Notwithstanding the foregoing, the parties will have the
right at the commencement of representation to negotiate changes in the
excluded accounts with respect to the New Agreement for any Capstar Station,
Gulfstar Station or Other Station for which no excluded accounts are described
in the applicable Schedule to this Master Agreement. If they are unable to
agree, then the excluded accounts shall remain as they were prior to the
effective date of this Master Agreement.
(d) Notwithstanding the foregoing or any other provisions of
this master agreement, the parties will have the right at the commencement of
representation to negotiate
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changes to excluded accounts with respect to a New Agreement for an Additional
Station. If they are unable to agree, then Capstar or Gulfstar, as applicable,
shall have the option to allow the excluded accounts to remain as they were
prior to the acquisition or commencement of Operation of such Additional
Station by a member of the Capstar Group, to grant representation of the
Additional Station to another station representative or self represent such
Additional Station without breach or violation of any of the provisions of this
Master Agreement, including Article 4 hereof.
4. Additional Stations.
4.1 Representation. No less than thirty (30) days before a
member of the Capstar Group acquires an Additional Station or commences
Operating an Additional Station pursuant to a LMA, it will notify Xxxx of such
prospective event. If the Additional Station is represented by a KRG Firm, such
KRG Firm shall continue to represent the Additional Station pursuant to a New
Agreement. Any Additional Station which is not represented by a KRG Firm at the
time of its acquisition by Capstar or Gulfstar, or the date Capstar or Gulfstar
commences to Operate the Additional Station, shall be represented pursuant to a
New Agreement by a KRG Firm selected by Xxxx with the consent of Capstar or
Gulfstar, which consent will not be unreasonably withheld. If the applicable
parties are unable to agree upon a KRG Firm reasonably acceptable to both of
them, Sentry Radio Sales shall be the KRG Firm to represent such Additional
Station. Except as expressly provided in this Master Agreement, all provisions
of each New Agreement for the representation of each Additional Station,
including, but not limited to, commission rate, buyout and termination
provisions, shall be the same as those contained in the New Agreements for the
representation of the Capstar Stations or Gulfstar Stations, as applicable. All
applicable terms and provisions of this Master Agreement shall be applicable to
the representation of such Additional Stations so long as they are owned or
Operated by a member of the Capstar Group and this Master Agreement is in
effect.
4.2 Termination of Certain KRG Contracts. (a) If as a result
of the operation of Section 4.1 of this Master Agreement, a representation
agreement with a KRG Firm providing for a higher commission rate than 10% is to
be terminated, Capstar (or the applicable member of the Capstar Group) shall,
with respect to such Additional Station, at its option (i) accept an assignment
of such representation agreement, assume such representation agreement and
perform it in accordance with its terms; (ii) enter a New Agreement for the
representation of such Additional Station and simultaneously pay the KRG Firm
representing such Additional Station the amount, if any, by which the amount
Xxxx would have received in a buyout, if representation of such Additional
Station were being transferred to another station representative, exceeds the
commissions Xxxx is projected to receive between the Effective Date of the New
Agreement and December 30, 2005 (based upon the average monthly Station Net
Billing of the Additional Station for the 12 full months prior to the
termination of the Xxxx representation agreement and the commission rate the
Capstar Group will be paying pursuant to this Master Agreement, after giving
effect to such acquisition), or (iii) enter a New Agreement for the
representation of such
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Additional Station and Capstar and Gulfstar shall extend all of the New
Agreements as provided in Section 4.3 below.
(b) Effect of Certain Buyouts. If pursuant to Section 4.1 and
Article 6, Xxxx is required to buy-out a representation agreement providing for
the payment of a commission rate greater than 10% or for a term which extends
beyond December 30, 2005, then the applicable member of the Capstar Group shall
enter a New Agreement for the representation of such Additional Station and
simultaneously (i) reimburse Xxxx for the amount by which the total buy-out
Xxxx is required to pay to the other station representative in fulfillment of
its obligations under Article 6 below exceeds the commissions which Xxxx is
projected to receive between the effective date of such New Agreement and
December 30, 2005 (based upon the average monthly Station Net Billing for the
twelve months preceding its acquisition at the commission rate the Capstar
Group will be paying pursuant to this Master Agreement, after giving effect to
such acquisition), or (ii) all members of the Capstar Group shall extend all
the New Agreements as provided in Section 4.3 below.
4.3 Extension of New Agreements. If pursuant to Section 4.2,
an election is made to extend all of the New Agreements, each New Agreement
which has not been terminated, assigned or transferred by one or more members
of the Capstar Group (the "Non-Terminated Agreements") shall be extended by a
number of months (or a fraction thereof) equal to the Anniversary Extension (as
hereafter defined). The Anniversary Extension shall be that number of months
(or a fraction thereof) determined by dividing (a) either the aggregate amount
that would have been payable to Xxxx pursuant to the terminated agreement with
Xxxx less the amount projected to be payable to Xxxx under the New Agreement,
or the aggregate amount that Xxxx paid to the prior or terminated national
sales representative less the amount projected to be payable to Xxxx under the
New Agreement prior to December 30, 2005 (in either case based upon the
Additional Station's average monthly Station Net Billing for the twelve months
preceding its acquisition at the commission rate the Capstar Group will be
paying pursuant to this Master Agreement, after giving effect to such
acquisition) by (b) the Remaining Monthly Commissions. "Remaining Monthly
Commissions" shall mean (i) the Station Net Billing of the Stations subject to
Non-Terminated Agreements for the twelve (12) broadcast months immediately
preceding the effective date of the event giving rise to the rights provided in
this Section 4.3, multiplied by the commission rate then in effect pursuant to
Section 3.1 hereof, divided by (ii) twelve (12). Each extension to a New
Agreement pursuant to this section will be evidenced by an amendment to such
New Agreement.
5. Additional Enhancements.
5.1 Unwired Network. Whenever a Station participates in an
unwired network buy, the Station shall be paid by Xxxx for such broadcast
advertising time, net of agency commissions, within ninety (90) days after the
close of the Month in which such schedule is broadcast. If the billing is not
paid within one hundred fifty (150) days after the close of the
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Month in which such schedule is broadcast, the owner or entity Operating such
Station shall repay the KRG Firm representing such Station the amount paid for
such billing. If the amount is subsequently collected by the Station, the KRG
Firm representing such Station shall be paid its commission on the amount
collected, or if the amount is subsequently collected by the KRG Firm, the KRG
Firm will pay the Station the amount collected less its commission.
5.2 Consideration.
(a) As initial consideration for Capstar and Gulfstar
executing and delivering this Master Agreement, agreeing to appoint KRG Firms
as sole national representative of all of the Stations and performing
hereunder, Xxxx shall pay Capstar and Gulfstar a total of $300,000. Such
consideration shall be paid thirty days after all of the New Agreements for the
representation of all of the Capstar Stations and Gulfstar Stations are
executed and delivered by Capstar and Gulfstar, to be divided and allocated
between Capstar and Gulfstar in such amount as they mutually direct Xxxx.
(b) As additional consideration for Capstar and Gulfstar
executing and delivering this Master Agreement, agreeing to appoint KRG Firms
as sole national representative of the Other Stations and Additional Stations
and performing hereunder:
(i) If at the end of any Month the Total Gross
Xxxxxxxx of the Stations achieve an
"Additional Consideration Level" as defined
below, Xxxx shall pay Capstar and Gulfstar
an aggregate of $150,000 with respect to
each Additional Consideration Level
achieved, payable 60 days after the close
of such Month and to be divided between
Capstar and Gulfstar as they mutually
direct Xxxx.
(ii) For purposes of this paragraph (b), an
"Additional Consideration Level" is Total
Gross Xxxxxxxx of $15,000,000 and each
additional $5,000,000 increment of Total
Gross Xxxxxxxx. For example, if Total Gross
Xxxxxxxx at the end of the Month of January
1997 are $15,500,000, then an Additional
Consideration Level shall have been
achieved and $150,000 would be due and
payable by Xxxx. If, thereafter, Total
Gross Xxxxxxxx at the end of the Month of
February 1997 are $26,000,000, an
additional two Additional Consideration
Levels shall have been achieved and
$300,000 (in addition to the $150,000
already due and payable) would be due and
payable by Xxxx as and when provided in
subparagraph (b)(i) above. If, however,
Total Gross Xxxxxxxx at the end of the
Month of February 1997 instead are
$14,500,000 and Total Gross Xxxxxxxx at the
end of the Month of March 1997 instead are
$15,500,000, no Additional Consideration
Level shall have been attained at the end
of the Month of March 1997, and the next
Additional Consideration Level will be
achieved at the end of the Month in
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which Total Gross Xxxxxxxx exceed
$20,000,000. No additional consideration
shall be paid a second time until the next
higher Additional Consideration Level is
attained and additional consideration is to
be paid only once when a particular
Additional Consideration Level is achieved.
(iii) Notwithstanding the provisions of
subparagraphs (b)(i) and (b)(ii) above, at
the end of the Month that Total Gross
Xxxxxxxx of the Stations equal or exceed
$50,000,000, Xxxx shall pay a one time
amount of additional consideration of
$500,000 in addition to the $150,000
additional consideration payment that will
remain payable pursuant to subparagraphs
(b)(i) and (b)(ii) above. Such amount shall
be paid to Capstar and Gulfstar in such
proportion and amount as Capstar and
Gulfstar mutually direct.
(iv) As additional consideration for Capstar
executing and delivering this Master
Agreement and appointing KRG Firms as sole
national sales representative for the
Stations listed on Schedule G hereto (the
"Suburban Stations"), Xxxx shall pay
Capstar $160,000 in four equal consecutive
quarterly installments of $40,000 each,
payable on the last day of each calendar
quarter commencing March 31, 1997. If in
the Year 1997 the Total Gross Xxxxxxxx of
the Suburban Stations do not exceed
$2,500,000, an additional amount of $80,000
shall be paid to Capstar in the Year 1998
in four equal consecutive quarterly
installments of $20,000 each, payable on
the last day of each calendar quarter in
1998.
5.3 Market Exclusivity. A KRG Firm representing a Station
will not represent another radio station in the same market as such Station
(unless owned or Operated by a member of the Capstar Group) without the prior
written consent of the member of the Capstar Group which owns or Operates such
Station. Notwithstanding the foregoing, (a) Xxxx may transfer representation of
a Station from one KRG Firm to another KRG Firm with the prior written consent
of the member of the Capstar Group which owns or Operates such Station, which
consent shall not be unreasonably withheld or delayed and (b) a KRG Firm (other
than Sentry Radio Sales unless it is so permitted pursuant to the following
sentence) which does not represent a Station in a particular market may
represent a radio station in such market even though another KRG Firm is
representing a Station in the same market. Without limiting the provisions of
the first sentence of this Section 5.3, if Capstar or Gulfstar do not own or
Operate a Station in markets 75-250 (ranked by Metropolitan Statistical Area),
then Sentry Radio Sales (and its successors) will not represent another radio
station in any such market without Capstar's and Gulfstar's prior written
consent.
5.4 Buyouts. If in any Year, Capstar or Gulfstar shall sell
to a person or entity that is not a Subsidiary of Capstar or Gulfstar the
license of a Station or Stations representing
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10% or less of Total Gross Xxxxxxxx in the prior Year: (a) if such sale occurs
in Years 1997, 1998 or 1999, the date contained in paragraphs 5(c) and 5(d) of
the New Agreements for the representation of such transferred Station or
Stations shall be amended prior to the sale of such Station or Stations to the
date which is four years after the date of this Master Agreement; (b) if such
sale occurs in Year 2000, 2001 or 2002, the date contained in paragraphs 5(c)
and 5(d) of the New Agreements for the representation of such transferred
Station or Stations shall be amended to a date which is six years after the
date of this Master Agreement; and (c) if such sale occurs thereafter, the
dates contained in paragraphs 5(c) and 5(d) of the New Agreements for the
representation of such Station or Stations shall be amended to a date which is
eight years after the date of this Master Agreement.
Capstar or Gulfstar, as applicable, and the KRG Firm
representing the Station being sold or transferred shall amend the New
Agreement to carry out the intent and purpose of this Section 5.4 on the date
the sale is consummated.
5.5 Rate Protection. If after the date hereof a KRG Firm or
Xxxx shall enter into an agreement with the owner of a third-party group of
radio stations other than ABC/Disney, for the representation of all of the
radio stations in the third-party group, at the time such agreement is entered
into the total gross xxxxxxxx (calculated in a manner consistent with the
calculation of Total Gross Xxxxxxxx) of the third-party group is not greater
than the Total Gross Xxxxxxxx of the Stations and the commission rate to be
paid by such third-party group of stations is less than 10%, Xxxx shall reduce
the commission rate under all New Agreements to the rate being offered to such
third-party group, such reduction to take effect as of the date that the third
party agreement becomes effective. For purposes of this Section 5.5, any
noncash benefits, enhancements, credits, payments of the type granted to
Capstar pursuant to Article 5 hereof or signing bonuses shall not be deemed to
reduce the commission rate paid by the third-party group.
5.6 Certain Termination Rights. In the event Xxxx breaches
Section 5.3, paragraph (e) of Section 5.7 or Article 16 below, the sole remedy
of the Capstar Group shall be to terminate this Master Agreement and such of
the New Agreements as Capstar or Gulfstar elect to terminate. Each of Capstar
and Gulfstar may make separate elections under this Section 5.6. Each New
Agreement may be terminated only by a written notice of termination which shall
specify the date on which such New Agreement terminates. If a member of the
Capstar Group makes such election, such member of the Capstar Group shall pay
to the KRG Firm representing its Station or Stations all commissions pursuant
to paragraph 4(b) of each terminated New Agreement. Notwithstanding any
provisions of this Master Agreement or the New Agreements to the contrary, such
member of the Capstar Group shall have no obligation to pay the Termination
Obligations under any New Agreement so terminated.
5.7 Termination, Breach.
(a) If any member of the Capstar Group, Xxxx or any KRG Firm
has failed or refused to pay a monetary obligation claimed as due and owing by
the other party and there is a genuine dispute as to the amount due and if the
undisputed portion, if any, has been paid when
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due, then the sole remedy of the party claiming the amount due shall be to
commence legal action for the amount claimed to be due it.
(b) Except as provided in Section 5.6 and paragraph (a) of
this Section 5.7, if any member of the Capstar Group is in material breach of
this Master Agreement or any of the New Agreements, thirty (30) days after
notice of such material breach is given to such member of the Capstar Group by
Xxxx, unless such material breach is cured in such thirty (30) day period, Xxxx
at its option may in addition to all other remedies available to it at law, as
to Capstar, Gulfstar or both, as applicable, terminate this Master Agreement
and any or all of the New Agreements, provided however that if there is no
material breach under this Master Agreement and Stations representing less than
10% of Total Gross Xxxxxxxx of the entity (Capstar or Gulfstar) owning such
Stations are in material breach under the New Agreements, Xxxx shall have all
rights and remedies available to it at law (including the right to terminate
the agreements in material breach), but may not terminate this Master
Agreement.
(c) Except as provided in Section 5.6 and paragraphs (a) and
(f) of this Section 5.7, if Xxxx is in material breach under this Master
Agreement or any New Agreement, thirty (30) days after notice of such material
breach is given to Xxxx by Capstar or Gulfstar, unless such material breach is
cured in such thirty-day period, Capstar or Gulfstar, each at its option, may,
in addition to all other remedies available to it at law, terminate this Master
Agreement and one or more of the New Agreements, provided, however, in the
event of such termination, the applicable member of the Capstar Group
terminating a New Agreement shall pay to the KRG Firm representing it all
commissions pursuant to paragraph 4(b) of each terminated New Agreement.
Notwithstanding the foregoing, if there is no material breach under this Master
Agreement, but Xxxx is in material breach under New Agreements representing
less than 10% of the Total Gross Billing of the entity (Capstar or Gulfstar)
owning such stations, Capstar or Gulfstar, as applicable, shall have all rights
and remedies available to them at law (including the right to terminate the New
Agreements in material breach), but may not terminate this Master Agreement.
Notwithstanding any provisions of this Master Agreement or the New Agreements
to the contrary, no member of the Capstar Group shall have any obligation to
pay the Termination Obligations under any New Agreement so terminated pursuant
to this subparagraph 5.7(c).
(d) In any action brought by any party, the parties
irrevocably waive the right to seek damages for loss of profits, consequential
damages, punitive damages or, except as specifically permitted in paragraph (f)
of this Section 5.7, injunctive relief.
(e) If control of Xxxx or substantially all of its assets is
sold to a person or entity that owns or Operates radio stations in more than
10% of the markets in which all of the Stations are located, then Capstar or
Gulfstar may terminate the Master Agreement and, at its option, one or more New
Agreements. If control of Xxxx or a substantial portion of its assets is sold
to a person or entity that owns or Operates radio stations in 10% or less of
the markets in which all of the Stations are located, then if such person or
entity does not dispose of a radio station in a market in which a Station is
located within nine months after its transaction with Xxxx, Capstar or
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Gulfstar (or both if both are affected) may terminate the New Agreement related
to such Station. Any person or entity that purchases substantially all of
Xxxx'x assets shall be bound by all of the provisions of this Master Agreement.
In connection with the termination of a New Agreement pursuant to this
subparagraph 5.7(e), payments pursuant to paragraph 4(b) shall be paid to the
KRG Firm with respect to such terminated New Agreement, but no Termination
Obligations shall be payable under any such New Agreement so terminated.
(f) If either Capstar or Gulfstar give Xxxx a notice that
Xxxx is in material breach of Section 5.5 of this Master Agreement, thirty (30)
days after notice of such material breach is given to Xxxx, unless such
material breach is cured in such thirty (30) day period, the entity claiming
such breach, at its option, as its sole and exclusive remedy either may (i)
specifically enforce section 5.5 and xxx for monetary damages suffered prior to
section 5.5 being specifically enforced; or (ii) simultaneously terminate the
Master Agreement and all of the New Agreements and xxx for monetary damages
suffered prior to the date the Master Agreement and the New Agreements are
terminated. Failure to commence and prosecute with diligence and continuity
either of the two remedies contained in this paragraph (f) within thirty (30)
days after the expiration of the cure period shall be an irrevocable waiver of
the breach claimed in the notice.
6. Buyouts.
6.1 Xxxx Responsibility for Buyouts. Xxxx agrees to buyout or
cause the termination of any contract with another station representative for
the representation of a Capstar Station, Gulfstar Station, Other Station or
Additional Station which is represented by a representative which is not a KRG
Firm, which is either assumed by a member of the Capstar Group in connection
with the acquisition of an Other Station or Additional Station or to which a
member of the Capstar Group is a party on the date of execution of this Master
Agreement. Xxxx shall pay the required buyout amount and all other costs and
expenses related to such buyout or termination, including future commissions,
if any. If any claim is asserted or an action is brought against one or more
members of the Capstar Group, their respective officers, directors, employees
or agents (who for all purposes of this Article 6 shall be considered members
of the Capstar Group), seeking damages caused by or suffered as a result of (i)
the termination of such representation firm's services, (ii) any breach of an
agreement for the representation of such Other Station or Additional Station
caused by or arising out of a member of the Capstar Group appointing a KRG Firm
as the representative of such Other Station or Additional Station, or (iii) a
KRG Firm acting as national representative of such Other Station or Additional
Station, Xxxx will defend such action on behalf of the applicable member or
members of the Capstar Group, at its own cost and expense, with counsel of
Xxxx'x choosing, which counsel shall be reasonably acceptable to each member of
the Capstar Group which is the defendant and pay any and all costs, expenses,
damages, judgments or liabilities awarded against or suffered by any member of
the Capstar Group in such legal action. Capstar and Gulfstar will give Xxxx all
reasonable cooperation or assistance necessary to defend such action.
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6.2 Prompt Notice. Promptly after receipt by a member of the
Capstar Group of a claim by a station representative or the commencement of any
action with respect to which Xxxx is obligated to pay any amount claimed or any
buyout liabilities pursuant to this Article 6, such members of the Capstar
Group shall notify Xxxx reasonably promptly after receiving notice or valid
service of process, in writing, of the claims or the commencement of the
action, but in all events to the extent reasonably practicable within
sufficient time for Xxxx to respond, answer and defend, without default or
other prejudice, provided that the failure to notify Xxxx will not relieve it
from any liability which it may have if such failure to notify or delay in
notification shall not have actually prejudiced Xxxx'x ability to defend
against such claim or action. Xxxx shall not be liable to any member of the
Capstar Group for any fees of its counsel so long as Xxxx has not violated or
breached the provisions of this article.
6.3 Limitations. Xxxx shall have no liability under this
article if, in connection with the acquisition of a Station, the member of the
Capstar Group acquiring such Station agrees to lengthen the term of a
representation agreement for the representation of a Station, increase the
commission rate or increase the amount of the buyout, but any provision in the
agreement for an increase in commission rate, term or buyout upon sale of the
Station shall not affect or limit Xxxx'x obligations under this Article 6.
After December 31, 1996, no member of the Capstar Group shall amend any
representation agreement to which it is a party or which it has assumed unless
the agreement is with a KRG Firm. Subject to Section 6.1, Xxxx shall have no
liability for commissions which are owed to any prior representative by any
member of the Capstar Group, whether currently or in arrears. No station
representative and no assignor, seller or transferror of a Station to a member
of the Capstar Group acquiring or commencing to Operate an Other Station or
Additional Station shall be a third party beneficiary of this Master Agreement.
7. Confidentiality.
Xxxx, Capstar and Gulfstar each covenant to the others that
it shall not disclose to any third party (other than its employees, directors,
accountants and attorneys in their capacity as such, and the employees,
directors, accountants and attorneys of any parent or controlling person or
entity so long as they are bound by the terms of this covenant) any information
regarding the existence or terms and provisions of this Master Agreement except
(a) to the extent necessary to comply with law or the valid order of a court of
competent jurisdiction (or any regulatory or administrative tribunal), in which
event the party so complying shall so notify the others as promptly as
practicable (and, if possible, prior to making any disclosure) and shall seek
confidential treatment of such information, if available, (b) as part of its
normal reporting or review procedure to its auditors or its attorneys, as the
case may be, so long as they are notified of the provisions of this covenant,
(c) in order to enforce its rights pursuant to this Master Agreement, (d) in
connection with any filing with the SEC, the FCC, or any other governmental
body, and (e) in a disclosure made in connection with any contemplated
financing, merger, consolidation, sale of assets or sale of securities of or by
Capstar, Xxxxxxxx xx Xxxx.
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0. Assignment of New Agreements.
If Capstar or Gulfstar shall sell or otherwise transfer the
license of a Station, the assignee or transferee of the Station or its station
license shall have no rights or benefits under this Master Agreement, and the
New Agreement with respect to such Station shall be the sole agreement between
the KRG Firm and the then owner of the Station for the national advertising
sales representation of such Station and such New Agreement shall nevertheless
remain in full force and effect. A merger or consolidation or sale of
substantially all of the assets of Capstar or Gulfstar shall not be considered
a sale or assignment of a Station and, in each such case, this Master Agreement
shall remain in full force and effect.
9. Term.
This Master Agreement shall terminate on the first to occur
of (a) the date when no KRG Firm is representing any Station owned or Operated
by a member of the Capstar Group pursuant to a New Agreement, (b) the first day
of the Month when the Stations then represented by KRG Firms pursuant to New
Agreements had Total Gross Xxxxxxxx in the immediately preceding twelve Months
of less than $10,000,000, or (c) a termination of the Master Agreement as to
both Capstar and Gulfstar pursuant to Section 5.6 or 5.7 of this Master
Agreement or a termination of the Master Agreement by one of Capstar or
Gulfstar and a termination of this Master Agreement by Xxxx pursuant to
paragraph 9(b) of this Master Agreement. Termination of this Master Agreement
shall not terminate any New Agreement, unless such New Agreement may be
terminated and is terminated pursuant to an express provision of this Master
Agreement.
10. Inconsistency.
If there is an inconsistency between this Master Agreement
and a New Agreement, this Master Agreement shall govern.
11. New York Law.
This Master Agreement shall be construed, governed and
enforced by and in accordance with New York law without giving effect to
conflict of law principles.
12. Notices.
Any notice required or permitted to be given pursuant to this
Master Agreement shall be in writing and shall be delivered personally, or sent
by registered or certified mail, return receipt requested, postage prepaid or
by reliable overnight courier such as Federal Express, fees prepaid for next
business day delivery, in all cases to the addresses set forth on the first
page of
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this Master Agreement or such other address as either party may specify
in a notice given pursuant to this Article. A notice shall be deemed given when
delivered personally, three (3) business days after mailing by certified or
registered mail or one business day after delivery to the overnight courier.
13. Captions.
The captions contained in this Master Agreement are for
reference purposes only and shall not affect in any way the meaning or
interpretation of this Master Agreement.
14. Amendment, Execution.
This Master Agreement may not be amended except by a written
instrument signed by all parties. This Master Agreement shall not be effective
unless and until it is executed and delivered by Capstar and Gulfstar and
thereafter accepted by Katz in New York, New York.
15. Gulfstar. Upon the consummation of any business combination
between Capstar and Gulfstar, Capstar shall be entitled to all payments
hereunder otherwise payable to Gulfstar, all Gulfstar Stations shall be deemed
to be Capstar Stations, all references to Gulfstar shall be deemed to be
references to Capstar, Capstar shall assume all obligations and liabilities of
Gulfstar hereunder and no separate rights or remedies of Gulfstar may
thereafter be exercised.
16. No Service Change. Xxxx agrees that it shall conduct its business
and the business of each KRG Firm representing a Station in substantially the
same manner as such business is now conducted so that there shall be no
material change in the services performed by Xxxx and such KRG Firms in the
representation of radio stations generally. Notwithstanding the foregoing, Xxxx
(a) shall make such changes in its and each such KRG Firm's services as are
necessary or appropriate in order for Xxxx and such KRG Firm to furnish
services which may hereafter be furnished by radio station representation firms
generally to their radio station clients in the sale of national spot
advertising and (b) shall make such changes and improvements and cause such KRG
Firm to make such changes and improvements as are made in the industry
generally.
The immediately preceding paragraph shall be deemed to be
incorporated in and is hereby made a part of each New Agreement so long as this
Master Agreement has not been terminated by Xxxx, the Station is owned or
Operated by a member of the Capstar Group or the member of the Capstar Group
owning or Operating such Station has not terminated this Master Agreement.
17. Revenue Guarantee.
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17.1 Schedule B. With respect to the Stations listed on
Schedule B which are represented by a KRG Firm for the entire six month period
including the Months of March through August 1997, if the combined Station Net
Billing of such Stations for such period, less commissions payable to the KRG
Firms for Station Net Billing in such period, is less than the combined Station
Net Billing for the same Stations during the same period in the Year 1996, less
commissions payable to the prior representative for Station Net Billing in such
period, then Xxxx agrees to pay Capstar the difference between the Station Net
Billing, less commissions payable for Station Net Billing in the earlier six
month period, and the Station Net Billing, less commissions payable to KRG
Firms for the six month period ending August 1997. Such payment shall be made
on September 30, 1997.
17.2 Huntsville. With respect to the first six full Months
following the commencement of representation by a KRG Firm (the "Applicable
Period") of all three Huntsville, Alabama stations listed on Schedule D (the
"Huntsville Stations"), if the combined Station Net Billing for the Huntsville
Stations during the same Months one year earlier ("Earlier Period") less
commissions paid to their then national sales representative, is more than the
combined Station Net Billing of the Huntsville Stations, less commissions to
the KRG Firms, in the Applicable Period, then Xxxx agrees to pay Capstar the
difference between the Station Net Billing, less commissions for Station Net
Billing in the Earlier Period, and the Station Net Billing, less commissions
payable to KRG Firms for the Applicable Period. Such payment shall be made
thirty days after the close of the Applicable Period.
18. Schedule Omissions. If there is no KRG Firm designated to
represent a Station in Schedules A, B, C or D, then Sentry Radio Sales shall
represent such Station unless Xxxx and Capstar or Xxxx and Gulfstar, as the
case may be, shall mutually agree upon another KRG Firm to represent such
Station.
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IN WITNESS WHEREOF, Capstar and Gulfstar have executed this
Master Agreement and Xxxx has accepted this Master Agreement in New York, as of
the date first above written.
CAPSTAR BROADCASTING PARTNERS, INC.
By:
---------------------------------
Title:
--------------------------------
GULFSTAR COMMUNICATIONS, INC.
By:
---------------------------------
Title:
--------------------------------
XXXX COMMUNICATIONS, INC.
By:
---------------------------------
Title:
--------------------------------
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CAPSTAR STATIONS
KRG Firm
to
Call Letters Represent Excluded
& Market Current Rep Owner Operator Station Territory
------------ ----------- ----- -------- ------- ---------
Schedule A
20
XXXXXX STATIONS
Current Owner or KRG Firm
Owner or Operator to
Call Letters Operator (LMA) Represent Excluded
& Market Current Rep (LMA) After Merger Station Territory
------------ ----------- ----- -------- ------- ---------
Schedule B
21
GULFSTAR STATIONS
Current Owner or KRG Firm
Owner or Operator to
Call Letters Operator (LMA) Represent Excluded
& Market Current Rep (LMA) After Merger Station Territory
------------ ----------- ----- -------- ------- ---------
Schedule C
22
OTHER STATIONS
Current Owner or KRG Firm
Owner Operator to
Call Letters or Upon Represent Excluded
& Market Current Rep Operator Acquisition Station Territory
------------ ----------- -------- ----------- ------- ---------
Schedule D
23
CERTAIN EXCLUDED ACCOUNTS
Section 3.2(b)
Schedule G
