TIME BROKERAGE AGREEMENT
This Time Brokerage Agreement ("Agreement") is dated as of February 28,
1997, by and between Citicasters Co., an Ohio corporation ("Licensee"), and
American Radio Systems Corporation, a Delaware Corporation ("Broker").
WHEREAS, Licensee is the licensee of the radio station set forth on
Attachment A hereto (referred to herein as the "Station"); and
WHEREAS, Licensee, Broker and American Radio Systems License Corp., a
Delaware corporation, have entered into an Asset Exchange Agreement dated as of
December 23, 1996 (the "Exchange Agreement") for the exchange of certain assets
relating to the Station to Broker; and
WHEREAS, Licensee, while maintaining control over the Station's
finances, personnel matters and programming desires to accept and broadcast
programming supplied by Broker on the Station subject to the terms and
conditions set forth herein;
NOW, THEREFORE, for and in consideration of the mutual covenants herein
contained, the parties hereto have agreed and do agree as follows:
1. Air Time and Transmission Services. Licensee and Broker hereby agree
to commence operations pursuant to this Agreement on March 1, 1997 (the
"Effective Date"). Licensee agrees, beginning on the Effective Date, to
broadcast, or cause to be broadcast, on the Station, according to the terms
hereof, programming designated and provided by Broker (the "Programming").
2. Payments. Broker hereby agrees to pay Licensee the amounts specified
in Attachment B for the right, from and after the Effective Date, to broadcast
the Programming on the terms and conditions herein provided. Payments of the
Monthly Fee (as defined in Attachment B) are due and payable in full on the
first day of each calendar month for which such payment is intended to be
applied and shall be prorated for any partial calendar month at the beginning or
end of the term hereof. The failure of Licensee to demand or insist upon prompt
payment in accordance herewith shall not constitute a waiver of its right to do
so. Broker shall receive a payment credit for any Programming not broadcast by
either Station (a "Credit"), such Credit to be determined by multiplying the
monthly payment by the ratio of the amount of time preempted or not accepted to
the total number of hours of Programming each month.
3. T erm. The term of this Agreement shall begin on the Effective Date
and end on the earliest of (i) the Closing Date, as defined in the Exchange
Agreement, or (ii) the date which is ten (10) days following any termination of
the Exchange Agreement in accordance with the terms thereof (such date
hereinafter referred to as the "Termination Date," and such period of time as
the "Term").
4. Programming. Broker shall furnish or cause to be furnished the
Programming, which shall be an entertainment format, and may include, without
limitation, news, promotions (including on-air giveaways), contests, syndicated
programs, barter programs, paid-for programs, locally-produced programs,
advertising commercial matter, including that in both program or spot
announcement forms, and public service information. On a regular basis, Licensee
shall air, or shall require Broker to air, on the Station programming on issues
of importance to the local community. All actions or activities of Broker under
this Agreement, and all Programming provided by Broker shall be in accordance
with (i) the Communications Act of 1934, as amended; (ii) Federal Communications
Commission (the "FCC") rules, requirements and policies, including, without
limitation, the FCC's rules on plugola/payola, lotteries, station
identification, minimum operating schedule, sponsorship identification,
political programming and political advertising rates; (iii) all applicable
federal, state and local regulations and policies; and (iv) generally accepted
quality standards consistent with Licensee's past practices. Broker agrees that,
if in the sole, good faith judgment of the Licensee or the Station's General
Manager, Broker does not comply with the standards of this paragraph, Licensee
may suspend or cancel any Programming not in compliance. The right to use the
Programming and to authorize its use in any manner and in any media whatsoever
shall be, and remain, vested solely in Broker, subject in all events to the
rights, if any, of others in such Programming.
5. Special Events. Licensee reserves the right in its discretion, and
without liability, to preempt, delay or delete any of the broadcasts of the
Programming and to substitute programming which in Licensee's judgment is of
greater local, regional or national importance. In all such cases, Licensee
shall use its best efforts to give Broker reasonable notice of its intention to
preempt such Programming, and, in the event of such preemption, Broker shall
receive a payment credit for the Programming so omitted consistent with the
intent and pursuant to the terms of Section 2 hereof.
6. Advertising and Programming Revenues. Broker shall retain all
advertising and other revenues, and all accounts receivable, with respect to
Programming broadcast during the Term, and relating to the Programming it
delivers to the Station for broadcast during the Term, including without
limitation, promotion-related revenues. Licensee and Broker each shall have the
right, at their own expense, to seek copyright royalty payments for their own
programming. Broker may sell advertising on the Station in combination with the
sale of advertising on other broadcasting stations of its choosing, subject to
compliance with applicable law.
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7. Station Facilities.
7.1 Station Facilities. Subject to the qualifications set forth in
this Agreement, throughout the term of this Agreement, Licensee shall make the
facilities of the Station available to Broker for operation and broadcast with
the maximum authorized facilities twenty-four (24) hours a day, seven (7) days a
week, except for downtime occasioned by either (i) emergency maintenance or (ii)
routine maintenance not to exceed two (2) hours each Sunday morning between the
hours of 12 Midnight and 5:00 a.m., and except for such programs and
announcements prepared by and put on the air by Licensee in order to meet local
needs and issues requirements, said programs and announcements not to exceed one
(1) hour each Sunday morning at a mutually agreed upon time between the hours of
5:00 a.m. and 7:00 a.m. Broker shall not be entitled to a Credit for Programming
not broadcast over the Station for periods specified in this Section 7 hereof.
To the extent practicable, any maintenance work affecting the operation of the
Station at full power shall be scheduled upon at least forty-eight (48) hours
prior notice with the agreement of Broker, such agreement not to be unreasonably
withheld.
8. Right of Access. Broker and Broker's employees or agents shall at
all times be afforded reasonable access to the Station in order to perform their
duties in connection with the production and transmission of the Programming
over the facilities of the Station. Broker shall have the right to install at
Licensee's and/or Broker's premises, and to maintain throughout the term of this
Agreement, at Broker's expense, any microwave studio/transmitter relay
equipment, telephone lines, transmitter remote control, monitoring devices or
any other equipment necessary for the proper transmission of the Programming on
the Station, and Licensee and Broker shall take all steps reasonably necessary
to prepare and file any applications with the FCC to effectuate such proper
transmission.
9. Force Majeure. Any failure or impairment of facilities or any delay
or interruption in broadcasting the Programming, or failure at any time to
furnish facilities, in whole or in part, for broadcasting, due to acts of God,
strikes, or threats thereof, force majeure, or due to causes beyond the control
of Licensee, shall not constitute a breach of this Agreement, and Licensee shall
not be liable to Broker, except to the extent of allowing in each such case an
appropriate Credit for Programming not broadcast by the Station based upon a pro
rata adjustment to amounts due as specified in Section 2 hereof calculated upon
the length of time during which the interruption or failure exists or continues.
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10. Licensee Control of Station. Notwithstanding anything to the
contrary in this Agreement, Licensee shall have full authority, control and
power over the operation of the Station during the period of this Agreement.
Licensee shall retain control, said control to be reasonably exercised, over the
policies, programming and operations of the Station, including, without
limitation, the right to decide whether to accept or reject any Programming or
advertisements, the right to preempt any Programming in order to broadcast a
program deemed by Licensee to be of greater national, regional, or local
interest, and the right to take any other actions necessary for compliance with
the laws of the United States; the laws of the relevant states; the rules,
regulations, and policies of the FCC (including without limitation the
prohibition on unauthorized transfers of control); and the rules, regulations
and policies of other federal governmental authorities, including without
limitation the Federal Trade Commission and the Department of Justice. Licensee
shall be responsible for ensuring that FCC requirements are met with respect to
ascertainment of the problems, needs and interests of the community, public
service programming, main studio staffing, maintenance of public inspection
files and the preparation of quarterly issues/programs lists. Broker shall, upon
request by Licensee, provide Licensee with information with respect to such of
Broker's programs which are responsive to the problems, needs and interests of
the community, so as to assist Licensee in the preparation of required quarterly
issues/programs lists, and shall provide upon request other information to
enable Licensee to prepare other records, reports and logs required by the FCC
or other local, state or federal governmental agencies. Whenever on the
Station's premises, all Broker personnel shall be subject to the supervision and
the direction of Licensee's designated personnel.
11. Responsibility for Employees and Expenses. Licensee shall employ
two full time employees at the main studio of the Station, one of whom shall be
a manager, both of whomshall report to and be accountable to Licensee, and who
shall be ultimately responsible for the day-to-day operation of the Station.
Licensee shall be directly responsible for paying the salaries, taxes, insurance
and related costs for such employees (the "Licensee Employee Expenses").
Licensee shall be responsible for paying directly (i) transmitter site
rent/mortgage for the Station; and (ii) transmitter site utilities for the
Station ("Licensee Transmitter Expenses"). Licensee shall be responsible for
paying directly all income taxes relating to Licensee's earnings from this
arrangement. Broker shall employ and be responsible for the salaries, taxes,
insurance and related costs for all personnel used in the production of the
Programming (including, without limitation, salespeople, traffic personnel,
administrative and programming staff). Excluding those expenses for which
Licensee is making direct payments as set forth in this Section 11, during the
Term, Broker shall be responsible for paying all other expenses reasonably and
directly related to the continued operation of the Station subject to the
covenants of the parties to this Agreement (the "Other Expenses"), and further
subject to the ultimate authority, control and power of Licensee.
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11.1 Employee Matters. The parties acknowledge and agree that
Broker shall have the right (but not the obligation) to interview and to elect
which of employees of Licensee that it will hire and to set the wages and any
other compensation that any person so hired shall receive. Licensee shall be
responsible for the payment of all compensation and accrued employee benefits
payable to all employees through the Effective Date. For purposes of employee
benefits under the employee benefit plans of Licensee, all employees of Licensee
who accept employment with Broker shall be considered terminated employees and
shall not be entitled to receive from Broker credit for any accrued vacation
days, sick days personal days or other such days. Licensee acknowledges and
agrees that it, and not Broker, is and shall after the Effective Date remain
solely responsible for any and all insurance, supplemental pension, deferred
compensation, retirement and any other benefits, and related costs, premiums and
claims, due, to become due, committed or otherwise promised to any person who,
as of the Effective Date, is a retiree, former employee, or current employee of
Licensee, relating to the period up to and including the Effective Date. Broker
shall assume no employee benefit plans, programs or practices, whether or not
set forth in writing, maintained by Licensee at any time.
12. Station Agreements.
12.1 Assignment and Assumption Station Agreements. Effective on
the Effective Date, Licensee hereby assigns to Broker, and Broker hereby
assumes, subject to the provisions of Section 12 hereof, the obligations of
Licensee arising or to be performed on and after the Effective Date (except to
the extent such obligations represent liabilities for activities, events or
transactions occurring, or conditions existing, on or prior to the Effective
Date) under: (a) all of the American Other Contracts (as defined in the Exchange
Agreement), excluding (i) contracts and agreements relating to the Licensee
Employee Expenses and (ii) contracts and agreements relating to the Licensee
Transmitter Expenses; and (b) all contracts entered into by Licensee which are
for consideration other than cash, such as merchandise, services or promotional
consideration ("Trade Agreements") arising in the ordinary course of business
consistent with the past practices of Licensee and listed on Attachment C
hereto. All of the foregoing liabilities and obligations under (a) and (b)
hereof shall be referred to herein collectively as the "Station Agreements" or
individually as a "Station Agreement." Licensee represents and warrants that the
Station Agreements are freely assignable, or, if consent of the other
contracting party to the assignment is required, Licensee covenants to use its
reasonable best efforts to obtain such consent as promptly as practicable. As of
the Effective Date, Licensee shall have paid all amounts due on and shall have
performed all obligations due under the Station Agreements as of that date.
Licensee shall not enter into any other Station Agreements with respect to the
Station without the prior written consent of Broker.
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12.2 Consents to Assignment. To the extent that any Station
Agreement is not capable of being sold, assigned, transferred, delivered or
subleased without the waiver or consent of any third person (including a
government or governmental unit), or if such sale, assignment, transfer,
delivery or sublease or attempted sale, assignment, transfer, delivery or
sublease would constitute a breach thereof or a violation of any law or
regulation, this Agreement and any assignment executed pursuant thereto shall
not constitute a sale, assignment, transfer, delivery or sublease or an
attempted sale, assignment, transfer, delivery or sublease thereof. In those
cases where consents, assignments, releases and/or waivers have not been
obtained at or prior to the Effective Date to the transfer and assignment to
Broker of any Station Agreement, this Agreement and any assignment executed
pursuant hereto, to the extent permitted by law, shall constitute an equitable
assignment by Licensee to Broker of all of Licensee's rights, benefits, title
and interest in and to the Station Agreements, and where necessary or
appropriate, Broker shall be deemed to be Licensee's agent for the purpose of
completion, fulfilling and discharging all of Licensee's rights and liabilities
arising after the Effective Date under such Station Agreements. Licensee shall
use its reasonable best efforts to provide Broker with the financial and
business benefits of such Station Agreements (including, without limitation,
permitting Broker to enforce any rights of Licensee arising under such Station
Agreements), and Broker shall, to the extent Broker is provided with the
benefits of such Station Agreements, assume, perform and in due course pay and
discharge all debts, obligations and liabilities of Licensee under such Station
Agreements to the extent that Broker was to assume those obligations pursuant to
the terms hereof.
12.3 Retained Liabilities. Except as set forth in Sections 11 and
12 hereof, Broker expressly does not, and shall not, assume or agree to pay,
satisfy, discharge or perform and will not be deemed by virtue of the execution
and delivery of this Agreement or any agreement, instrument or document
delivered pursuant to or in connection with this Agreement or otherwise by
reason of or in connection with the consummation of the transactions
contemplated hereby or thereby, to have assumed or to have agreed to pay,
satisfy, discharge or perform, any liabilities, obligations or commitments of
Licensee of any nature whatsoever whether accrued, absolute, contingent or
otherwise and whether or not disclosed by Broker, other than the Station
Agreements. Licensee will retain and pay, satisfy, discharge and perform in
accordance with the terms thereof, all liabilities and obligations of the
Licensee, other than the Station Agreements, including but not limited to, the
obligation to assume, perform, satisfy or pay any liability, obligation,
agreement, debt, charge, claim, judgment or expense incurred by or asserted
against Licensee related to taxes, environmental matters, pension or retirement
plans or trusts, profit-sharing plans, employment contracts, employee benefits,
severance of employees, product liability or warranty, negligence, contract
breach or default, copyright, trademarks, service ▇▇▇▇, trade name and other
intellectual property, or other obligations, claims or judgments asserted
against Broker as successor in interest to Licensee. All such liabilities,
obligations and commitments of Licensee described in this Section 12.3 shall be
referred to herein collectively as the "Retained Liabilities."
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13. Accounts Receivable. Broker and Licensee hereby acknowledge and
agree that all accounts receivable relating to the Station shall be collected
and apportioned in accordance with Section 2.5 of the Exchange Agreement.
14. Proration of Income and Expenses. Broker and Licensee hereby
acknowledge and agree that all deposits, reserves and prepaid and deferred
income and expenses relating to the Station Agreements shall be prorated between
Broker and Licensee in accordance with Section 2.3 of the Exchange Agreement.
15. Indemnification. Broker shall indemnify and hold Licensee and its
stockholders, directors, partners, officers, agents, employees, successors, and
assigns harmless from and against any and all claims, expenses, causes of action
and liability resulting from or relating to (i) the broadcast of Programming
during the Term, (ii) any and all promotions, contests and on-air "give-aways"
relating to the Station during the Term, (iii) a breach of Broker's
representations, warranties, covenants or agreements contained herein, (iv) any
liability resulting from Broker's default under the Station Agreements, and (v)
all other matters arising out of or related to Broker's activities involving the
Station or use of the Licensee Station facilities or relating to the obligations
assumed by Broker in connection with this Agreement. Licensee agrees to
indemnify, defend, and hold harmless Broker and its stockholders, directors,
officers, agents, employees, successors and assigns from and against any and all
liability that arises out of (i) material broadcast by Licensee other than the
Programming, (ii) liabilities (but not loss of advertising revenue) that arise
as a result of Licensee's alteration of any and/or all Programming prior to
broadcast by Licensee; and (iii) the Retained Liabilities.
15.1 Procedures: Third Party and Direct Indemnification Claims.
The obligations and liabilities of Licensee and of Broker hereunder with respect
to their respective indemnities pursuant to this Section 15, resulting from any
claim or other assertion of liability by third parties are subject to the
procedures for indemnification set forth in the Exchange Agreement.
16. Events of Default: Cure periods and Remedies.
16.1 Events of Default. The following shall, after the expiration
of the applicable cure periods, constitute Events of Default under the
Agreement:
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16.1.1 Non-Payment. Broker's failure to timely pay the
consideration provided for in Section 2 and Attachment B hereof which is not
cured within five (5) business days following notice in accordance with Section
1.2 hereof;
16.1.2 Default in Covenants or Adverse Legal Action. The
default by any party hereto in the material observance or performance of any
material covenant, condition or agreement contained herein which is not cured
within five (5) business days following notice in accordance with Section 16.2
hereof, or if (a) any party shall make a general assignment for the benefit of
creditors, (b) any party shall file or have filed against it a petition for
bankruptcy, for reorganization or an arrangement, or for the appointment of a
receiver, trustee or similar creditors' representative for the property or
assets of such party under any federal or state insolvency law, which, if filed
against such party, has not been dismissed or discharged within sixty (60) days
thereof, or (c) specifically and without limitation, if Licensee's successors
and assigns, including, without limitation, any assignee of the FCC license for
the Station, except if such successor or assign is Broker or an affiliate of
Broker, refuses to abide by or terminates this Agreement during the term of this
Agreement.
16.1.3 Breach of Representation. If any material
representation or warranty herein made by either party hereto, or in any
certificate or document furnished by either party to the other pursuant to the
provisions hereof, shall prove to have been false or misleading in any material
respect as of the time made or furnished and is not cured within thirty (30)
days following notice in accordance with Section 16.2 hereof.
16.1.4 Breach of Exchange Agreement. The breach by Licensee
or Broker in the material observance or performance of any material
representation, warranty, covenant, condition or agreement in the Exchange
Agreement which is not cured within any time period provided for such cure under
the Exchange Agreement provided, that no party may use its own breach under the
Exchange Agreement as grounds to terminate this Agreement. An Event of Default
by either party under this Agreement shall constitute a material default under
the Exchange Agreement and insofar as the cure period specified in this
Agreement has expired with respect to the default, no further cure period shall
be afforded under the Exchange Agreement.
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16.2 Cure Periods. An Event of Default shall not be deemed to have
occurred until after the non-defaulting party has provided the defaulting party
with written notice specifying the event or events that if not cured would
constitute an Event of Default and specifying the actions necessary to cure
within the relevant cure period. The Event of Default shall not be deemed to
have occurred if actions necessary to cure are completed during the relevant
cure period.
16.3 Termination Upon Default. Upon the occurrence of an Event of
Default, the non-defaulting party may terminate this Agreement provided that it
is not also in material default hereunder, and may seek such remedies at law
and/or equity as are available, including without limitation specific
performance. If Broker has defaulted in the performance of its obligations,
Licensee shall be under no further obligation to make available to Broker any
further broadcast time or broadcast transmission facilities and, without
limitation of remedies, all amounts accrued or payable to Licensee up to the
date of termination which have not been paid, less any payment credits, shall
immediately become due and payable.
16.4 Liabilities Upon Termination. Upon termination of this
Agreement, Broker shall be responsible for all liabilities, debts and
obligations of Broker accrued from the purchase of air time and transmission
services including, without limitation, accounts payable, barter agreements and
unaired advertisements, but not for Licensee's federal, state, and local tax
liabilities associated with Broker's payments to Licensee as provided for
herein. With respect to Broker's obligations to broadcast material over the
Station after termination hereunder, Broker may propose compensation to Licensee
for meeting these obligations, but Licensee shall be under no duty to accept
such compensation or to perform such obligations. Upon termination, (i) Broker
shall return to Licensee any equipment or property of the Station used by
Broker, its employees or agents, in substantially the same condition and
location as such equipment existed on the date of this Agreement, ordinary wear
and tear excepted, (ii) Broker shall assign to Licensee and Licensee shall
assume the still outstanding Station Agreements that were assigned to Broker
pursuant to Section 12 hereof and (iii) Broker shall assign to Licensee any new
contracts entered into by Broker relating to the Station that Licensee expressly
agrees to assume. Notwithstanding anything in the foregoing to the contrary,
termination shall not extinguish any rights of either party as may be provided
by Section 15 hereof.
17. Broker Termination Option. Broker may elect to terminate this
Agreement at any time during the term hereof in the event that Licensee preempts
or substitutes other programming for that supplied by the Broker during ten (10)
percent or more of the total hours of operation of the Station during any
calendar month. In the event Broker elects to terminate this Agreement pursuant
to this provision, it shall give Licensee notice of such election at least ten
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(10) days prior to the termination date. Upon termination, neither party shall
have any further liability to the other except as may be provided by Sections 15
and 16.4 hereof.
18. Responsive Programming. Broker and Licensee mutually acknowledge
their interest in ensuring that the Station serve the needs and interests of the
residents of the Station's community of license and service areas and agree to
cooperate in doing so. Licensee shall, on a regular basis, assess the issues of
concern to residents of the Station's community of license and service areas and
address those issues in its public service programming. Licensee shall ascribe
those issues and responsive programming and place issues/programs lists in the
Station's public inspection file as required by FCC rules. Licensee may request,
and Broker shall provide, information concerning such of Broker's Programming
that is responsive to community issues so as to assist Licensee in the
satisfaction of its public service programming obligations. Broker shall also
provide to Licensee upon request such other information necessary to enable
Licensee to prepare records and reports required by the FCC or other local,
state or federal government entities.
19. Time Brokerage Challenge. If this Agreement is challenged in whole
or in part at or by a governmental authority or is challenged in whole or in
part in a judicial forum, counsel for the Licensee and counsel for the Broker
shall jointly defend this Agreement and the parties' performance thereunder
throughout all such proceedings. If this Agreement is declared invalid or
illegal in whole or in substantial part by a ruling, order or decree of a
governmental authority or court, and such ruling, order or decree has become
effective, then the parties shall endeavor in good faith to reform the Agreement
as necessary. If the parties are unable to reform this Agreement within thirty
(30) days of the effective date of such ruling, order or decree, then this
Agreement shall terminate, and all sums owing to Licensee shall be paid and
neither party shall have any further liability to the other except as may be
provided by Sections 15 and 16.4 hereof.
20. Additional Representations. Warranties and Covenants.
20.1 Mutual Representations. Warranties and Covenants. Both
Licensee and Broker represent that they are legally qualified, empowered, and
able to enter into this Agreement, and that the execution, delivery and
performance hereof shall not constitute a breach or violation of any agreement,
contract or other obligation to which either party is subject or by which it is
bound.
20.2 Additional Licensee Representations. Warranties and
Covenants. Licensee makes the following further representations, warranties and
covenants:
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20.2.1 Authorizations. During the term of this Agreement,
Licensee shall own and hold all licenses and other permits and authorizations
necessary for the operation of the Station as presently conducted (including
licenses, permits and authorizations issued by the FCC), and such licenses,
permits and authorizations shall be in full force and effect for the entire Term
hereunder, unimpaired by any acts or omissions of Licensee, its principals,
employees or agents.
20.2.2 Payment of Obligations. Licensee shall not incur any
debt, obligation or liability without the prior written consent of Broker if
such undertaking would adversely affect Licensee's performance hereunder or the
business and operations of the Broker permitted hereby. Subject to the
provisions of Sections 2 and 11 hereof, Licensee shall pay in a timely fashion
all of its debts, assessments and obligations, including without limitation tax
liabilities and payments in each case attributable to the operations of the
Station, as they come due during the Term of this Agreement.
20.2.3 Broadcast Obligations. Licensee has no agreement,
contract, commitment or understanding to broadcast on the Station on or after
the Effective Date, any programs or commercial matter other than the Station
Agreements. Licensee shall not incur any other programming obligations without
the prior written consent of Broker.
20.2.4 Licensee Control. Licensee hereby verifies that for
the term of this Agreement it shall maintain ultimate control over the Station's
facilities, including specifically control over the Station's finances,
personnel and programming, and nothing herein shall be interpreted as depriving
Licensee of the power or right of such ultimate control.
20.2.5 Insurance. Licensee shall maintain in full force and
effect (at Broker's expense) throughout the term of this Agreement insurance
with responsible and reputable insurance companies or associations covering such
risks (including fire and other risks insured against by extended coverage,
public liability insurance, insurance for claims against personal injury or
death or property damage and such other insurance as may be applicable) and in
such amounts and on such terms as is conventionally carried by broadcasters
operating radio stations with facilities in the area comparable to those of the
Station. Broker shall be listed as an additional insured on such insurance
policies. Any insurance proceeds received by Licensee in respect of damaged
property shall be used to repair or replace such property to that the operations
of the Station conform with this Agreement. Licensee shall present to Broker
prior to the execution of this Agreement certificates of insurance or binders
for such insurance policies. If requested by Broker, Licensee shall maintain, at
Broker's expense, business interruption insurance for Broker's benefit.
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20.2.6 Compliance with Law. Licensee covenants that,
throughout the term of this Agreement, Licensee shall comply with all laws and
regulations applicable in the conduct of Licensee's business and Licensee
acknowledges that Broker has not urged, counseled, or advised the use of any
unfair business practice.
20.3 Additional Broker Representations, Warranties and Covenants.
20.3.1 Compliance with 47 C.F.R. ss. 73.3555(a). Broker
hereby verifies that execution and performance of this Agreement complies with
the Commission's restrictions on local radio ownership set out in Section
73.3555(a) of the FCC Rules.
20.3.2 Compliance with Applicable Law. Broker covenants that
its performance of its obligations under this Agreement and its furnishing of
Programming shall be in compliance with, and shall not violate, any applicable
laws or any applicable rules, regulations, or orders of the FCC or any other
governmental agency and Broker acknowledges that Licensee has not urged,
counseled, or advised the use of any unfair business practice.
20.3.3 Handling of Complaints. Broker shall promptly advise
Licensee of any public or FCC complaint or inquiry that Broker receives
concerning the Programming on the Station and shall cooperate with Licensee and
take all actions as may be reasonably requested by Licensee in responding to any
such complaint or inquiry.
20.3.4 Copyright and Licensing. Broker represents and
warrants to Licensee that Broker has and shall have throughout the term of this
Agreement the full authority to broadcast the Programming on the Station and
that Broker shall not broadcast on the Station any material in violation of the
Copyright Act. All music supplied by Broker shall be: (i) licensed by ASCAP,
SESAC or BMI; (ii) in the public domain; or (iii) cleared at the source by
Broker.
20.3.5 Information For FCC Reports. Upon request by Licensee,
Broker shall provide in a timely manner any such information in its possession
which shall enable Licensee to prepare, file or maintain the records and reports
required by the FCC.
20.3.6 Payola/Plugola. Broker covenants that it shall not
accept, and shall instruct its employees not to accept, any consideration,
compensation, gift or gratuity of any kind whatsoever, regardless of its value
or form, including, but not limited to, a commission, discount, bonus,
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materials, supplies or other merchandise, services or labor, whether or not
pursuant to written contracts or agreements between Broker and merchants or
advertisers, unless the payer is identified in the program as having paid for or
furnished such consideration, in accordance with FCC requirements. Broker agrees
to annually, or more frequently at the request of Licensee, execute and provide
Licensee with an affidavit regarding payola/plugola compliance.
21. Intellectual Property. Effective as of the Effective Date, Licensee
licenses to Broker the exclusive right to use (or, to the extent Licensee does
not hold exclusive rights, the non-exclusive right to use) all intellectual
property owned by or licensed to Licensee and used solely in the operation of
the Station (including, but not limited to, logos, jingles, promotional
materials, call signs, goodwill, trademarks, service marks, slogans, trade
names, copyrights and any applications and registrations therefor) (the "IP
License"). In the event of termination of this Agreement, the IP License shall
terminate.
22. Subcarrier Rights. Licensee and Broker acknowledge and agree that
any subsidiary communications services transmitted on a subcarrier within the FM
baseband signal of any of the Station ("Subcarrier"), and any uses of the
Subcarrier authorized by the FCC ("Subcarrier Uses"), are subject to the terms
and conditions of this Agreement. Licensee hereby agrees (a) to apply, at
Broker's expense, for any additional authorization from the FCC or any other
governmental agency or entity that may be necessary in order to make use of any
Subcarrier Uses, and (b) that Broker has the sole and exclusive right, subject
to the terms and conditions hereof, to make use of any Subcarrier Uses and
collect the revenues therefrom. Broker hereby agrees to reimburse Licensee for
Licensee's reasonable expenses incurred in carrying out Licensee's obligations
pursuant to this Section 22, including reasonable attorneys and engineering fees
and expenses.
23. Publicity. Licensee and Broker shall not issue any press release or
otherwise make any public statement with respect to the transactions
contemplated herein except as may be required by law or regulation or as agreed
to by Licensee and Broker.
24. No Waiver: Remedies Cumulative. No failure or delay on the part of
Licensee or Broker in exercising any right or power hereunder shall operate as a
waiver thereof, nor shall any single or partial exercise of any such right or
power, or any abandonment or discontinuance of steps to enforce such a right or
power, preclude any other or further exercise thereof or the exercise of any
other right or power. The rights and remedies of Licensee and Broker herein
provided are cumulative and are not exclusive of any right or remedies which it
may otherwise have.
13
25. Construction. This Agreement shall be construed in accordance with
the laws of the State of Ohio, without giving effect to the choice of law
provisions thereunder, and the obligations of the parties hereto are subject to
all federal, state or municipal laws or regulations now or hereafter in force
and to the regulations of the FCC and all other governmental bodies or
authorities presently or hereafter to be constituted.
26. Headings. The headings contained in this Agreement are included for
convenience only and no such heading shall in any way alter the meaning of any
provision.
27. Benefit and Assignment. This Agreement shall be binding upon and
shall inure to the benefit of the parties hereto and their respective successors
and permitted assigns. Other than assignment to a sole parent, a wholly-owned
subsidiary, or a sister company with a common parent, if such entity is
authorized by the FCC to be the licensee of the Station, Licensee may not
voluntarily or involuntarily assign its interest under this Agreement without
the prior written consent of Broker. Broker shall have the right to assign
and/or delegate all or any portion of its rights and obligations under this
Agreement, including without limitation assignments as collateral, provided that
no such assignment and/or delegation shall relieve Broker of its obligations
hereunder in the event that its assignee fails to perform the obligations
delegated. In the event that Broker finds it necessary or is required to provide
to a third party a collateral assignment of Broker's interest in this Agreement
and/or any related documents, Licensee shall cooperate with Broker and any third
party requesting such assignment including but not limited to Licensee signing a
consent and acknowledgment of such assignment. All covenants, agreements,
statements, representations, warranties and indemnities in this Agreement by and
on behalf of any of the parties hereto shall bind and inure to the benefit of
their respective successors and permitted assigns of the parties hereto.
28. Notices. All notices, demands, requests, or other communications
which may be or are required to be given or made by any party to any other party
pursuant to this Agreement shall be in writing and shall be hand delivered,
mailed by first-class registered or certified mail, return receipt requested,
postage prepaid, delivered by overnight air courier, or transmitted by telegram,
telex, or facsimile transmission addressed in accordance with the listing set
forth in Attachment D hereto or such other address as the addressee may indicate
by written notice to the other parties. Each notice, demand, request, or
communication which shall be given or made in the manner described above shall
be deemed sufficiently given or made for all purposes at such time as it is
delivered to the addressee (with the return receipt, the delivery receipt, the
affidavit of messenger or (with respect to a telex or facsimile) the answerback
being deemed conclusive but not exclusive evidence of such delivery) or at such
time as delivery is refused by the addressee upon presentation.
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29. Entire Agreement. This Agreement and the Exchange Agreement and
related documents embody the entire agreement between the parties and there are
no other agreements, representations, warranties, or understandings, oral or
written, between them with respect to the subject matter hereof. No alterations,
modification or change of this Agreement shall be valid unless made in writing,
and signed by like written instrument. No waiver of any provision hereof shall
be valid unless in writing and signed by the party adversely affected by the
waiver, and then such waiver shall be effective only in the specified instance
and for the purpose for which given.
30. Severability. In the event that any of the provisions contained in
this Agreement is held to be invalid, illegal or unenforceable, such event shall
not affect any other provision hereof, and this Agreement shall be construed as
if such invalid, illegal or unenforceable provisions had not been contained
herein.
31. Counterpart Signatures. This Agreement may be signed in one or more
counterparts, each of which shall be deemed a duplicate original, binding on the
parties hereto notwithstanding that the parties are not signatory to the
original or the same counterpart. This Agreement shall be binding and effective
as of the date on which the executed counterparts are exchanged by the parties.
15
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first above written.
AMERICAN RADIO SYSTEMS
CORPORATION
By: __________________________
Title: __________________________
CITICASTERS CO.
By: __________________________
Title: __________________________
16
TIME BROKERAGE AGREEMENT
ATTACHMENT A
WKRQ(FM), Cincinnati, Ohio
ATTACHMENT B
PAYMENT SCHEDULE
Month Fee
1. March, 1997 $179,000
2. April, 1997 $215,000
3. May, 1997 $316,000
4. June, 1997 $353,000
5. July, 1997 $335,000
6. August, 1997 $358,000
7. September, 1997 $242,000
8. October, 1997 $266,000
9. November, 1997 $279,000
10. December, 1997 $261,000
In addition to the Monthly Fee, Broker promptly shall reimburse
Licensee the amount of the reasonable Licensee Employee Expenses and the
reasonable Licensee Transmitter Expenses as they are incurred during the Term.
Licensee shall deliver a statement in reasonable detail with back-up
documentation for such Expenses, and Broker shall pay Licensee such Expenses
within five (5) business days of receipt of such billing.
Licensee and Broker agree to reconcile in good faith, by no later than
the last day of the month following the month to which each Monthly Fee set
forth above pertains, each such Monthly Fee to reflect actual broadcast cash
flow results for the Station during such month. Any such required adjustment may
be taken as an increase to or credit against the subsequent Monthly Fee, or
alternatively shall be paid by the party obligated to make such payment no later
than five (5) business days following such reconciliation.
ATTACHMENT C
All Citicasters Trade Agreements (as defined in the Exchange Agreement).
TIME BROKERAGE AGREEMENT
ATTACHMENT D
If the notice is to Licensee:
Citicasters Co.
▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇, President
Telephone No:
Telecopy No: (▇▇▇)-▇▇▇-▇▇▇▇
With a copy to (which shall not constitute notice):
▇▇▇▇▇ & ▇▇▇▇▇▇▇ L.L.P.
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇.
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇, Esq.
Telephone No: ▇▇▇-▇▇▇-▇▇▇▇
Telecopy No: ▇▇▇-▇▇▇-▇▇▇▇
If the notice is to Broker:
American Radio Systems Corporation
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, President and Chief Executive Officer
Telephone No:
Telecopy No: (▇▇▇)-▇▇▇-▇▇▇▇
With a copy to (which shall not constitute notice):
▇▇▇▇▇▇▇▇ & Worcester LLP
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Esq.
Telephone No: (▇▇▇)-▇▇▇-▇▇▇▇
Telecopy No: (▇▇▇)-▇▇▇-▇▇▇▇
