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Exhibit 10(l)
EXECUTION COPY
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KIXW(AM) AND KZXY-FM TIME BROKERAGE AGREEMENT
This Time Brokerage Agreement (the "Agreement"), made as of the 17th
day of December, 1997, is between Ruby Broadcasting, Inc., a Delaware
corporation ("Licensee"), licensee of radio stations KIXW(AM) and KZXY-FM, Apple
Valley, California (the "Stations"), pursuant to authorizations issued by the
Federal Communications Commission (the "FCC"), and Regent Communications, Inc.,
a Delaware corporation ("Programmer").
Licensee is engaged in the business of radio broadcasting and has
available broadcasting time on the Stations.
Licensee and Regent Broadcasting of Victorville, Inc. have entered into
an Asset Purchase Agreement dated as of December 17, 1997 (the "KIXW/KZXY
Purchase Agreement"), by which Programmer will acquire all of the tangible and
intangible assets owned by Licensee and used or useful in the operation of the
Stations on the terms and subject to the conditions set forth in the KIXW/KZXY
Purchase Agreement.
Programmer desires to avail itself of Stations' broadcast time for the
presentation of a programming service, including the sale of advertising time,
in accordance with the rules, regulations and policies of the FCC.
For and in consideration of the mutual covenants herein contained, the
parties agree as follows:
1. SALE OF TIME
1.1. BROADCAST OF PROGRAMMING.
(a) During the Term (as defined below) of this Agreement,
Licensee shall make available broadcast time on each of the Stations for the
broadcast of Programmer's programs (the "Programming") for up to One Hundred
Sixty-Eight (168) hours a week except for: (i) downtime occasioned by routine
maintenance consistent with prior practice; (ii) up to three (3) hours per week
during which time Licensee may broadcast, at its own expense, programming
designed to address the problems, needs, and issues of the Stations' listeners;
and (iii) times when Programmer's programs are not accepted or are preempted by
Licensee. Additionally, Programmer shall make 30 one-minute time
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segments per week, on a run-of-schedule basis, available to Licensee in the
Programming for broadcast of announcements in the public interest relevant to
local issues of concern.
(b) Any failure or impairment of facilities or any delay or
interruption in broadcasting the Programming, or failure at any time to furnish
the facilities, in whole or in part, for broadcasting, due to acts of God,
strikes or threats thereof, force majeure or any other causes beyond the control
of Licensee, shall not constitute a breach of this Agreement.
1.2. ACCESS TO STUDIO FACILITIES; DELIVERY OF PROGRAMMING. To enable
Programmer to fulfill its obligations hereunder, Licensee shall make its office
and equipment at its main studio (the "Main Studio") available, for no
additional consideration, to Programmer for its use for the production of
Programming under this Agreement. Programmer accepts complete and full
responsibility for the care and maintenance of such equipment during the Term.
If Programmer originates the Programming from any place other than the Main
Studio, Programmer shall be responsible for delivering the Programming to the
Main Studio for broadcast by Licensee on the Stations.
1.3. ADVERTISING AND PROGRAMMING REVENUES. During the Term, Programmer
shall have the exclusive authority to sell for its own account commercial time
on the Stations and to retain all revenues from the sale of such advertising.
1.4. PAYMENTS. Programmer shall pay to Licensee the fees set forth on
SCHEDULE 1.4 hereto for the rights granted under this Agreement. Programmer
shall receive a credit against any payments otherwise due pursuant to this
Agreement for the Programming delivered to the Station but not broadcast by the
Station in the event that Licensee preempts more than one hour per day of the
Programming in bad faith or for Licensee's commercial advantage. Such credit
shall be determined by multiplying the total payment due for the month in which
the Programming was delivered and not broadcast by the ratio of the amount of
time for Programming not broadcast to the total time of all Programming
delivered to the Station for broadcast during that month.
1.5. TERM. The term of this Agreement (the "Term") shall be the period
commencing on January 1, 1998 (the "Commencement Date") and terminating on the
earliest of: (a) the Closing under the KIXW/KZXY Purchase Agreement; (b) the
sale of
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the Stations to a third party; and (c) the termination of this Agreement
pursuant to Section 7 hereof.
2. PROGRAMMING AND OPERATING STANDARDS
2.1. RIGHTS AND OBLIGATIONS OF LICENSEE. Licensee shall be responsible
for the control of the day-to-day operations of the Stations in conformance with
its FCC licenses, permits and authorizations. Without limiting the generality of
the foregoing:
2.1.1. LICENSEE'S ABSOLUTE RIGHT TO REJECT PROGRAMMING.
Licensee shall retain the absolute right to accept or reject any
Programming (including advertisements) that Licensee in its sole
discretion deems contrary to the public interest.
2.1.2. LICENSEE'S RIGHT TO PREEMPT PROGRAMMING FOR SPECIAL
EVENTS. Licensee shall have the right, in its sole discretion, to
preempt the Programming in order to broadcast a program deemed by
Licensee to be of greater national, regional, or local interest, and to
use part or all of the hours of operation of the Stations for the
broadcast of events of special importance. In all such cases, Licensee
will use its best efforts to give Programmer reasonable advance notice
of its intention to preempt any regularly scheduled programming.
Licensee expressly agrees that its right of preemption shall not be
exercised in an arbitrary manner or for the commercial advantage of
Licensee.
2.1.3. FCC PUBLIC INTEREST REQUIREMENTS.
(a) The parties agree that Licensee may broadcast its
own public service programming between the hours of 6:00 a.m. and 9:00
a.m. every Sunday and such other public service programming at such
other times as the parties may agree.
(b) The parties acknowledge that Licensee is
ultimately responsible for complying with the FCC's rules and
regulations with respect to (i) the carriage of political
advertisements and programming (including, without limitation, the
rights of candidates and, as appropriate, others to equal
opportunities, lowest unit charge and reasonable access); (ii) the
broadcast and nature of public service programming; (iii) the
maintenance of political and public inspection files and the
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Stations' logs; (iv) the ascertainment of issues of community concern;
and (v) the preparation of all quarterly issues/programs lists.
(c) Licensee reserves the right to refuse to
broadcast any program containing matter that Licensee in good faith
believes to be, or that Licensee in good faith believes may be
determined by the FCC or any court or other regulatory body with
authority over Licensee or the Stations to be, violative of any right
of any third party, a "personal attack" (as that term is defined by the
FCC) or indecent or obscene. Licensee shall further have the right to
take any other actions necessary for compliance with the laws of the
United States, the State of California, the rules, regulations and
policies of the FCC (including the prohibition on unauthorized
transfers of control), and the rules, regulations and policies of other
federal government authorities, including the Federal Trade Commission
and the Department of Justice. If, in the judgment of Licensee or the
Stations' General Manager, any portion of the Programming does not meet
any of the above standards or the requirements of Section 2.2 of this
Agreement, Licensee may suspend, cancel or refuse to broadcast any such
portion of the programming without reduction or offset in the payments
due Licensee under this Agreement.
2.1.4. MAINTENANCE AND REPAIR OF TRANSMISSION FACILITIES.
Licensee shall maintain the Stations' transmission equipment and
facilities, including the antennas, transmitters and transmission
lines, and shall provide for the delivery of electrical power to the
Stations' transmitting facilities at all times in order to ensure
operation of the Stations. Licensee shall undertake such repairs as are
necessary to maintain full-time operation of the Stations with their
maximum authorized facilities as expeditiously as possible following
the occurrence of any such loss or damage.
2.1.5. MAIN STUDIO LOCATION. Licensee shall maintain a main
studio as required under the FCC's rules and regulations.
2.1.6. COMPLIANCE WITH FCC TECHNICAL RULES. Licensee shall
retain, on a full time or part time basis, a qualified engineer who
shall be responsible for maintaining the transmission facilities of the
Stations. Licensee shall employ or retain a Chief Operator, as that
term is defined by the rules and regulations of the FCC, who shall be
responsible for ensuring compliance by the Stations with the technical
operating and reporting requirements established by the FCC.
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2.2. RIGHTS AND OBLIGATIONS OF PROGRAMMER.
2.2.1. COMPLIANCE WITH LAWS AND STATION POLICIES. All
Programming shall conform in all material respects to all applicable
rules, regulations and policies of the FCC, and all other laws or
regulations applicable to the broadcast of programming by the Stations.
All Programming shall be prepared and presented in conformity with the
regulations prescribed in SCHEDULE 2.2.1 hereto.
2.2.2. COOPERATION WITH LICENSEE. Programmer, on behalf of
Licensee, shall furnish within the Programming all station
identification announcements required by the FCC's rules, and shall,
upon request by Licensee, provide information with respect to any of
the Programming which is responsive to the public needs and interests
of the area served by the Stations so as to assist Licensee in the
preparation of any required programming reports, and will 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. Programmer shall maintain and deliver to
Licensee all records and information required by the FCC to be placed
in the public inspection files of the Stations pertaining to the
broadcast of political programming and advertisements, in accordance
with the provisions of Sections 73.1940 and 73.3526 of the FCC's rules,
and agrees to broadcast sponsored programming addressing political
issues or controversial subjects of public importance, in accordance
with the provisions of Section 73.1212 of the FCC's rules.
2.2.3. PAYOLA AND PLUGOLA. Programmer shall provide to
Licensee in advance any information known to Programmer regarding any
money or other consideration which has been paid or accepted, or has
been promised to be paid or to be accepted, for the inclusion of any
matter as a part of any programming or commercial material to be
supplied to Licensee by Programmer for broadcast on the Stations,
unless the party making or accepting such payment is identified in the
program as having paid for or furnished such consideration in
accordance with FCC requirements. Commercial matter with obvious
sponsorship identification will not require disclosure beyond the
sponsorship identification contained in the commercial copy. Programmer
shall at all times endeavor to proceed in good faith to comply with the
requirements of Sections 317 and 507 of the Communications Act of 1934,
as amended, and the related rules and regulations of the FCC.
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2.2.4. HANDLING OF MAIL. Programmer shall provide Licensee
with the original or a copy of any correspondence from a member of the
public relating to the Programming to enable Licensee to comply with
FCC rules and policies, including those regarding the maintenance of
the public inspection file. Licensee shall not be required to receive
or handle mail, cables, telegraph or telephone calls in connection with
the Programming unless Licensee has agreed to do so in writing.
Licensee shall promptly forward to Programmer all correspondence,
payments, communications or other information and/or documents which it
receives and which relate to the Programming, including without
limitation, invoices, billing inquiries, checks, money orders, wire
transfers, or other payments for services or advertising.
2.2.5. COMPLIANCE WITH COPYRIGHT ACT. Programmer shall not
broadcast any material on the Stations in violation of the Copyright
Act or the rights of any person. All music supplied by Programmer shall
be (a) licensed by a music licensing agent such as ASCAP, BMI, or
SESAC; (b) in the public domain; or (c) cleared at the source by
Programmer. Programmer shall retain the exclusive right to use and to
authorize the use in any manner of any programming licensed to it.
Licensee shall not be obligated to pay any music licensing fees or
other similar expenses required in connection with the material
broadcast by Programmer on the Stations. Licensee shall be obligated to
pay any music licensing fees and other similar expenses required in
connection with material broadcast by Licensee in accordance with
Section 1.1.
2.2.6. KZXY-FM FORMAT. Programmer shall not change the format
of Station KZXY-FM during the Term of this Agreement.
3. RESPONSIBILITY FOR EMPLOYEES AND EXPENSES
3.1. LICENSEE'S RESPONSIBILITY FOR EMPLOYEES AND EXPENSES.
(a) Licensee will employ a full-time management-level employee
for the Stations, who shall report and be solely accountable to Licensee and
shall be responsible for the operations of the Stations and a staff-level
employee who shall report to and assist the manager in the performance of his
and her duties. Licensee will be responsible for the salaries, taxes, insurance
and related costs for its Station personnel. Whenever at the Main Studio or
otherwise on the Stations' premises, all of Programmer's personnel shall
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be subject to the supervision and the direction of the Stations' General Manager
and/or the Stations' Chief Operator.
(b) Licensee shall be responsible for timely paying: lease
payments for the Main Studio and transmitter sites and all taxes and other costs
incident thereto; all FCC regulatory fees; real estate and personal property
taxes, utility costs (telephone, electricity, etc.) relating to the existing
transmitting sites, transmitters and antennas; and maintenance and repair costs
on the transmitting equipment.
3.2. PROGRAMMER'S RESPONSIBILITY FOR EMPLOYEES AND EXPENSES.
(a) Programmer shall be responsible for the artistic personnel
and material for the production of the Programming to be provided under this
Agreement. Programmer shall employ and be responsible for the salaries, taxes,
insurance and related costs for all personnel used in the production of the
Programming.
(b) Programmer shall pay for all costs associated with
production and listener responses, including telephone costs, fees to ASCAP, BMI
and SESAC, any other copyright fees, and all other costs or expenses
attributable to the Programming that is delivered by Programmer for broadcast on
the Stations. Programmer shall also reimburse Licensee for all maintenance and
repair costs for the studio and studio equipment used in production of the
Programming. Licensee shall pay all costs of repair of the transmitting
equipment as required in Section 2.1.4.
3.3. CONTINUED EMPLOYMENT OF STATION EMPLOYEES.
3.3.1 TRANSFERRED EMPLOYEES. Except for the employees set
forth in Section 3.1 or on SCHEDULE 3.3.1, on or prior to the
Commencement Date, Programmer shall offer employment to all employees
of the Station (employees accepting such employment on or after the
Commencement Date being herein referred to as the "Transferred
Employees"). The terms and conditions of Programmer's employment of the
Transferred Employees shall be at-will employment in at least the same
positions, for at least the same direct cash compensation, with medical
insurance effective as of the Commencement Date and including coverage
for any preexisting health conditions that would have been covered
under Licensee's health plan in which the employee was a participant
immediately prior to the Commencement Date and such other benefits as
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Programmer provides generally for its other employees; PROVIDED,
HOWEVER, that Programmer shall comply with the terms of any Assumed
Contract, as hereafter defined, relating to any Transferred Employee.
Upon consummation of the KIXW/KZXY Purchase Agreement, Programmer shall
offer employment to the employees set forth on Schedule 3.3.1.
3.3.2. EMPLOYEES ON LEAVE. If as of the Commencement Date any
employee of the Station is on a disability or other authorized
temporary leave from employment by Licensee, Programmer shall offer
employment to such person at such time the person is capable and ready
to return to active status, provided that such person actually returns
to active status within six (6) months after the Commencement Date. Any
such employee who is capable and ready to return from such a temporary
leave from employment by Licensee, who promptly accepts Programmer's
offer of employment and who reports to work promptly after such
acceptance and prior to the expiration of such six-month period, shall
become a Transferred Employee as of the first day he or she reports to
work with Programmer.
3.3.3. VACATION POLICY. For purposes of determining the amount
of any entitlement of any Transferred Employee under Programmer's
vacation policy, Programmer will take into account and credit such
Transferred Employee's length of service with Licensee as well as with
Programmer, and Programmer will also assume responsibility for the
accrued but unused vacation of all Transferred Employees. As part of
the proration process described in Section 4, Licensee shall make a
payment to Programmer equal to the value of the unused vacation
entitlements of the Transferred Employees as of the Commencement Date.
Programmer shall not assume any obligations under Licensee's sick leave
or severance policies, except for obligations set forth in the Assumed
Contracts.
3.3.4. PRORATION OF SALARIES AND COMPENSATION. Except as
otherwise expressly set forth herein, Licensee shall be solely
responsible for all salaries and other compensation which will or may
become payable to any Transferred Employee in respect of any period of
employment by Licensee prior to the Commencement Date, and Programmer
shall be solely responsible for any salaries and other compensation
which will or may become payable to any Transferred Employee in respect
of any period on and after the Commencement Date.
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3.3.5. RESTRICTIONS ON TRANSFER OF TRANSFERRED EMPLOYEES.
During the Term of this Agreement, Programmer shall not hire or
transfer any Transferred Employee to another radio broadcast station
owned or operated by Programmer or an Affiliate (as defined in Section
7.5 hereof) of Programmer.
3.3.6. NO THIRD PARTY BENEFICIARY RIGHTS. No provisions of
this Agreement shall create any third party beneficiary rights of any
employee or former employee (including any beneficiary or dependent
thereof) of Licensee in respect of continued employment (or resumed
employment) with Licensee or with Programmer or in respect of any other
matter.
4. ASSIGNMENT AND ASSUMPTION OF CERTAIN
AGREEMENTS, RIGHTS AND OBLIGATIONS; PRORATIONS
4.1 ACCOUNTS RECEIVABLE.
(a) As of the Commencement Date, Licensee shall assign to Programmer
all of Licensee's rights in all accounts receivable from Time Sales Agreements
and Trade Agreements relating to the sale of time on the Stations prior to the
Commencement Date (the "Accounts Receivable"). As soon after the Commencement
Date as practicable, Licensee shall deliver to Programmer a complete and
detailed statement (the "Receivable Statement") of the Accounts Receivable. The
Receivable Statement shall show all commissions owing with respect to the
Accounts Receivable, if any. Prior to the Commencement Date, Licensee shall not
engage in the acceleration of customer orders, any grant of any discount to
customers other than in the ordinary course of business consistent with past
practices or any other changes intended to increase the cash collection of
accounts receivable prior to the Commencement Date.
(b) In the event that this Agreement is terminated for any reason other
than the occurrence of the Closing under the KIXW/KZXY Purchase Agreement, as of
the date of such termination (the "Termination Date"), Programmer shall assign
to Licensee cash or accounts receivable from Time Sales Agreements and Trade
Agreements relating to the sale of time on the Stations prior to the Termination
Date (the "Programmer's Accounts Receivable") equal in value to the Accounts
Receivable. As soon after the Termination Date as practicable, Programmer shall
deliver to Licensee a complete and detailed statement (the "Programmer's
Receivable Statement") of the Programmer's Accounts Receivable. The Programmer's
Receivable Statement shall show all commissions owing
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with respect to the Programmer's Accounts Receivable, if any. Prior to the
Termination Date, Programmer shall not engage in the acceleration of customer
orders, any grant of any discount to customers other than in the ordinary course
of business consistent with past practices or any other changes intended to
increase the cash collection of accounts receivable prior to the Termination
Date. The final determination of any amount owed under this Section 4.1 shall be
handled as a proration item in accordance with Section 4.5 hereof.
Notwithstanding anything herein to the contrary, liabilities and obligations
under Trade Agreements shall be prorated in favor of Licensee as set forth in
Section 4.6 hereof.
4.2. LICENSE TO USE CALL SIGN AND TRADEMARKS. Licensee hereby grants
Programmer a license to use Licensee's call signs and trademarks and names (the
"Marks") during the Programming during the Term. Programmer agrees that the
nature and quality of all services rendered by it in connection with the Marks
shall conform to reasonable quality standards set by and under the control of
Licensee. If Licensee becomes aware of any fact which in its opinion indicates
that Programmer is using the Marks in connection with Programming which does not
conform with Licensee's reasonable quality standards, Licensee may notify
Programmer in writing of such facts and request that Programmer conform its use
of the Marks to Licensee's reasonable quality standards. If Programmer does not
conform its use of the Marks, Licensee may terminate the license granted hereby
upon written notice to Programmer. Programmer agrees to cooperate with Licensee
to control the nature and quality of use of the Marks, to supply Licensee with
audio tapes and uses of the Marks upon Licensee's reasonable request, and to use
the Marks only in connection with quality programming services. Programmer
further agrees to notify Licensee in writing of any legal action commenced
against it which relates to the Marks or to the quality of the Programming,
within ten (10) days of notice to Programmer of such action.
4.3. ASSUMPTION OF OBLIGATIONS.
(a) As of the Commencement Date, Licensee shall assign to Programmer,
and Programmer shall assume and undertake to pay, satisfy or discharge the
liabilities, obligations and commitments of Licensee arising or accruing after
the date hereof under the contracts, leases, and other agreements specifically
identified on SCHEDULE 4.3 hereto (the "Assumed Contracts").
(b) Licensee shall use reasonable efforts to obtain the consent of any
third party necessary for the assignment to Programmer of any of the Assumed
Contracts; provided,
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that Licensee shall not be obligated to pay any money to obtain such consent. In
the event a consent or waiver required with respect to the assignment of any of
the Assumed Contracts is not obtained, Licensee shall use reasonable efforts to
provide Programmer with the benefits of any such Assumed Contract (including,
without limitation, permitting Programmer to enforce any rights of Licensee
under such Assumed Contract), and Programmer shall, to the extent Programmer is
provided with the benefits of such Assumed Contract, perform all obligations of
Licensee thereunder.
4.4. LIMITATION. Except as set forth in this Section 4, Programmer
expressly does not, and shall not, assume or be deemed to assume, under this
Agreement or otherwise by reason of the transactions contemplated hereby, any
liabilities, obligations or commitments of Licensee of any nature whatsoever.
4.5 PRORATION OF INCOME AND EXPENSES. All income and expenses arising
from the conduct of the business and operation of the Stations shall be prorated
between Programmer and Licensee as of 12:01 a.m. on the Commencement Date in
accordance with GAAP. Such prorations shall be based upon the principle that
Licensee shall incur or be entitled to all income earned and shall be
responsible for all liabilities and obligations incurred or accruing in
connection with the operation of the Stations until the Commencement Date, and
Programmer shall be entitled to all income earned and (subject to Section 4.3
above) be responsible for such liabilities and obligations incurred by
Programmer thereafter. Such prorations shall include, without limitation, all ad
valorem, real estate and other property taxes, business and license fees, music
and other license fees, wages and salaries of employees (including accruals up
to the Commencement Date for bonuses, commissions, sick leave, vacation and
severance pay and related payroll taxes), utility expenses, liabilities and
obligations under all Assumed Contracts (other than Trade Agreements), rents and
similar prepaid and deferred items and all other expenses attributable to the
ownership and operation of the Stations except for income and expenses under
Contracts not assigned and assumed hereunder. Trade Agreements shall be prorated
to the extent provided in Section 4.6 of this Agreement.
4.6. TRADE AGREEMENTS. Liabilities and obligations under Trade
Agreements shall be prorated in favor of Programmer for the amount, if any, by
which the aggregate net value of the Stations' Barter Payable (as defined in the
KIXW/KZXY Purchase Agreement) for air time under such agreements as of 12:01
a.m. on the Commencement Date in excess of Twenty-Five Thousand Dollars
($25,000) as of the Commencement Date exceeds the aggregate net value of the
Stations' Barter Receivable (as defined in the
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KIXW/KZXY Purchase Agreement) as of the Commencement Date. Programmer shall not
be obligated to make any proration in favor of Licensee with respect to Trade
Agreements, notwithstanding that the fair market value of property to be
received by Programmer exceeds the liability for unperformed time.
4.7. PAYMENT OF PRORATION ITEMS. Not less than five (5) days after the
Commencement Date, Licensee shall deliver to Programmer a schedule setting forth
its good faith calculation of the prorations pursuant to Sections 4.5 and 4.6
(which schedule shall set forth in reasonable detail the basis for those
determinations) (the "Proration Schedule"), and, to the extent feasible, such
prorations and adjustments shall be made as of the Commencement Date. The
Proration Schedule shall be conclusive and binding upon Programmer unless
Programmer provides Licensee with written notice of objection (the "Notice of
Disagreement") within thirty (30) days after Programmer's receipt of the
Proration Schedule, which notice shall state the prorations of expenses proposed
by Programmer (the "Programmer's Proration Amount"). Licensee shall have fifteen
(15) days from receipt of a Notice of Disagreement to accept or reject
Programmer's Proration Amount. If Licensee rejects Programmer's Proration
Amount, and the amount in dispute exceeds five thousand dollars ($5,000), the
dispute shall be submitted within ten (10) days to a mutually agreed upon
accounting firm (the "Referee") for resolution of the dispute, such resolution
to be made within thirty (30) days after submission to the Referee and to be
final, conclusive and binding on Licensee and Programmer. Programmer and
Licensee agree to share equally the cost and expenses of the Referee, but each
party shall bear its own legal and other expenses, if any. If the amount in
dispute is equal to or less than Five Thousand Dollars ($5,000), such amount
shall be divided equally between Programmer and Licensee. Payment by Programmer
or Licensee, as the case may be, of the proration amounts determined pursuant to
this Section 4.7 shall be due fifteen (15) days after the last to occur of (i)
Programmer's acceptance of the Proration Schedule or failure to give Licensee a
timely Notice of Disagreement; (ii) Licensee's acceptance of Programmer's
Proration Amount; (iii) Licensee's rejection of Programmer's Proration Amount in
the event the amount in dispute equals or is less than Five Thousand Dollars
($5,000); and (iv) notice to Licensee and Programmer of the resolution of the
disputed amount by the Referee in the event that the amount in dispute exceeds
Five Thousand Dollars ($5,000). Any payment required by Licensee to Programmer
or by Programmer to Licensee, as the case may be, under this Section 4.7 shall
be paid by wire transfer of immediately available federal funds to the account
of the payee with a financial institution in the United States as designated by
Licensee in the Proration Schedule or by Programmer in the Notice of
Disagreement (or by separate notice in the event that
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Licensee does not send a Notice of Disagreement). If either Programmer or
Licensee fails to pay when due any amount under this Section 4.7, interest on
such amount will accrue from the date payment was due to the date such payment
is made at a per annum rate equal to the Prime Rate plus three percent (3%), and
such interest shall be payable upon demand.
5. INDEMNIFICATION
5.1. INDEMNIFICATION. From and after the Commencement Date, each of
Programmer and Licensee shall indemnify, defend, and hold harmless the other,
its affiliates and their respective officers, directors, employees and
representatives, and the successors and assigns of any of them, from and
against, and reimburse them for, all claims, damages, costs and expenses,
including, without limitation, interest, penalties, court costs and reasonable
attorneys' fees and expenses, resulting from (a) any programming provided by
such party for broadcast on the Stations; and (b) any breach by such party of
any representation, warranty, covenant or other agreement contained in this
Agreement.
5.2. PROCEDURE FOR INDEMNIFICATION AND LIMITATIONS. The procedure for
indemnification shall be as set forth in Section 15.3 of the KIXW/KZXY Purchase
Agreement, and claims for indemnification shall be subject to the limitations
set forth at Section 15.3 of the KIXW/KZXY Purchase Agreement.
5.3. SURVIVAL OF REPRESENTATIONS, WARRANTIES AND COVENANTS. The
representations, warranties, covenants, indemnities and agreements contained in
this Agreement or in any certificate, document or instrument delivered pursuant
to this Agreement shall not survive the termination of this Agreement, except
for the covenants of Programmer set forth in Section 7.5 which shall survive for
the period set forth therein. No claim may be brought under this Agreement
unless written notice describing in reasonable detail the nature and basis of
such claim is given on or prior to the termination of this Agreement. In the
event such notice is given, the right to indemnification with respect thereto
shall survive the termination of this Agreement until such claim is finally
resolved and any obligations thereto are fully satisfied. Any investigation by
or on behalf of any party hereto shall not constitute a waiver as to enforcement
of any representation, warranty, covenant or agreement contained herein.
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6. EVENTS OF DEFAULT AND CURE PERIODS
6.1. EVENTS OF DEFAULT. The following shall, after the expiration of
the applicable cure periods as set forth in Section 6.2, each constitute an
"Event of Default" under this Agreement:
6.1.1. NON-PAYMENT. Programmer's failure to pay when due the
fees payable under Section 1.4 of this Agreement;
6.1.2. DEFAULT IN COVENANTS OR ADVERSE LEGAL ACTION. Either
party defaults in the performance of any material covenant, condition
or undertaking contained in this Agreement or the KIXW/KZXY Purchase
Agreement;
6.1.3. BREACH OF REPRESENTATION. Any material representation
or warranty made by either party to this Agreement or the KIXW/KZXY
Purchase Agreement, or in any certificate or document furnished by
either party to the other pursuant to the provisions of this Agreement
or the KIXW/KZXY Purchase Agreement, proves to have been false or
misleading in any material respect as of the time made or furnished.
6.1.4. BANKRUPTCY. Either party (a) makes a general assignment
for the benefit of creditors, or (b) files or has 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 thereafter.
6.2. CURE PERIODS. Except for a default in payment as required under
Section 1.4 on the date provided for in SCHEDULE 1.4, an Event of Default shall
not be deemed to have occurred until fifteen (15) days 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 the de fault(s) within such period.
This period may be extended for a reasonable period of time if the defaulting
party is acting in good faith to cure and such delay is not materially adverse
to the other party. For a default in payment as required under Section 1.4 on
the date provided for in SCHEDULE 1.4, an Event of Default shall not be deemed
to have occurred until five (5) days after Licensee has provided Programmer with
written notice
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specifying the event or events that, if not cured, would constitute an Event of
Default and specifying the actions necessary to cure the default(s) within such
period.
7. TERMINATION
7.1. 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 of this Agreement or the KIXW/KZXY Purchase
Agreement. If Programmer has defaulted in the performance of its obligations,
all amounts accrued or payable to Licensee up to the date of termination which
have not been paid shall immediately become due and payable, and Licensee shall
be under no further obligation to make available to Programmer any broadcast
time or broadcast transmission facilities on the Stations.
7.2. TERMINATION FOR CHANGE IN FCC RULES OR POLICIES. Either party may
terminate this Agreement upon written notice to the other if there has been a
material change in FCC rules or policies that would cause this Agreement to be
in violation thereof and such change is in effect and not the subject of an
appeal or further administrative review; provided, however, that in such event
the parties shall negotiate in good faith and attempt to agree to an amendment
to this Agreement that will provide the parties with a valid and enforceable
agreement that conforms to the new FCC rules or policies.
7.3. TERMINATION UPON TERMINATION OF RELATED AGREEMENTS. In the event
that any of (a) the KIXW/KZXY Purchase Agreement; (b) the Merger Agreement
between Topaz Broadcasting, Inc. and Programmer dated as of December ___, 1997;
or (c) the KIXA(FM) Time Brokerage Agreement between Topaz and Programmer dated
as of December ___, 1997 are terminated in accordance with their respective
terms, this Agreement shall terminate.
7.4. CERTAIN MATTERS UPON TERMINATION.
7.4.1. If this Agreement is terminated for any reason other
than the occurrence of the Closing under the KIXW/KZXY Purchase
Agreement,
(a) Programmer shall assign, transfer and convey to
Licensee all of Programmer's rights in, to and under all
agreements with advertisers
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existing on the date of such termination (collectively the
"Reassumed Contracts"). Programmer shall use reasonable
efforts to promptly obtain and deliver to Licensee, at
Programmer's expense, any necessary consents to the assignment
of the Reassumed Contracts to Licensee.
(b) Licensee shall assume from Programmer all
liabilities, obligations and commitments of Programmer arising
or accruing on or after the date of termination pursuant to
the Reassumed Contracts, and Programmer shall be responsible
only for those obligations under the Reassumed Contracts
arising on or after the Commencement Date and prior to the
termination of this Agreement.
(c) Programmer shall return to Licensee any equipment
or property of the Stations used by Programmer, its employees
or agents, in substantially the same condition as such
equipment existed on the date hereof, ordinary wear and tear
excepted.
(d) Accounts Receivables shall be handled as set
forth in Section 4.1(b) hereof.
(e) Prorations shall be handled in the manner set
forth in Sections 4.5, 4.6 and 4.7 hereof; PROVIDED HOWEVER,
that income and expenses shall be prorated between Programmer
and Licensee as of 12:01 a.m. on the Termination Date, and all
prorations shall be based upon the principle that Programmer
shall incur or be entitled to all income earned and shall be
responsible for all liabilities and obligations incurred or
accruing in connection with the operation of the Stations
until the Termination Date, and Licensee shall be entitled to
all income earned and be responsible for such liabilities and
obligations incurred by Licensee thereafter.
7.4.2. No expiration or termination of this Agreement shall
terminate the obligation of each party to indemnify the other for
claims of third parties under Section 5 of this Agreement or limit or
impair any party's rights to receive payments due and owing hereunder
on or before the date of such termination.
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7.5 COVENANTS OF PROGRAMMER UPON TERMINATION. If this Agreement is
terminated for any reason other than the occurrence of the Closing under the
KIXW/KZXY Purchase Agreement, Programmer covenants and agrees as follows:
(a) For a period of one (1) year from the date of
termination, neither Programmer nor any Affiliate shall,
without the prior written consent of Licensee, directly or
indirectly engage in (whether as owner, partner, consultant,
advisor, employee, independent contractor or otherwise),
assist any person or entity in engaging in, or hold any legal
or beneficial interest in any person or entity that is engaged
in, the management or operation of any Competitive Business
(as defined below). "Competitive Business" shall mean any
radio broadcast station with a transmitter location within a
fifty (50) mile radius of the transmitter location of either
Station KIXW(AM) or KZXY-FM (the "Covenant Area"), other than
stations in which the Noncompete Parties hold a legal or
beneficial interest prior to the date of this Agreement.
"Affiliate" shall mean any firm or entity in which either
Xxxxx Xxxxxx or Xxxx Xxxxxxxx (the "Noncompete Party(ies)" may
be interested as a partner, trustee, employee, consultant or
shareholder. Notwithstanding the foregoing, ownership by a
Noncompete Party of less than five percent (5%) of the issued
and outstanding stock of any corporation whose securities are
listed on a national securities exchange or by NASDAQ shall
not be deemed to violate this Section 7.5(a).
(b) For a period of one (1) year from the date
hereof, neither the Noncompete Parties nor any Affiliate
shall, directly or indirectly, employ or solicit the
employment of any employee of the Stations.
7.6. ATTORNEYS FEES AND COSTS. In the event any action or proceeding is
commenced by either party to enforce the provisions of this Agreement or to seek
remedies for a breach or wrongful termination of this Agreement, the prevailing
party in such an action or proceeding shall be entitled to the award of its
reasonable attorneys fees and costs incurred in and relating to such an action
or proceeding.
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8. REPRESENTATIONS AND WARRANTIES
8.1. REPRESENTATIONS AND WARRANTIES OF LICENSEE. Licensee hereby
represents and warrants that:
8.1.1. ORGANIZATION AND STANDING. Licensee is a corporation
duly formed, validly existing and in good standing under the laws of
the State of Delaware, and has all necessary corporate power and
authority to own, lease and operate the Station Assets and to carry on
the business of the Stations.
8.1.2. AUTHORIZATION AND BINDING OBLIGATION. Licensee has all
necessary power and authority to enter into and perform this Agreement
and the transactions contemplated hereby, and Licensee's execution,
delivery and performance of this Agreement have been duly and validly
authorized by all necessary action on its part. This Agreement has been
duly executed and delivered by Licensee and constitutes its valid and
binding obligation enforceable against Licensee in accordance with its
terms.
8.1.3. ABSENCE OF CONFLICTING AGREEMENTS OR REQUIRED CONSENTS.
Except as set forth in Schedule 7.9 to the KIXW/KZXY Purchase
Agreement, the execution, delivery and performance of this Agreement by
Licensee: (a) do not and will not violate any provisions of Licensee's
organizational documents; (b) do not and will not require the consent
or approval of or any filing with any third party or governmental
authority; (c) do not and will not violate any applicable law,
judgment, order, injunction, decree, rule, regulation or ruling of any
governmental authority; and (d) do not and will not, either alone or
with the giving of notice or the passage of time, or both, conflict
with, constitute grounds for termination or acceleration of or result
in a breach of the terms, conditions or provisions of, or constitute a
default under any agreement, lease, instrument, license or permit to
which Licensee is now subject.
8.2. REPRESENTATIONS AND WARRANTIES OF PROGRAMMER. Programmer hereby
represents and warrants that:
8.2.1. ORGANIZATION AND STANDING. Programmer is a corporation
duly formed, validly existing and in good standing under the laws of
the State of
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Delaware and has all necessary corporate power and authority to perform
its obligations hereunder on and after the date hereof.
8.2.2. AUTHORIZATION AND BINDING OBLIGATION. Programmer has
all necessary power and authority to enter into and perform this
Agreement and the transactions contemplated hereby, and Programmer's
execution, delivery and performance of this Agreement have been duly
and validly authorized by all necessary action on its part. This
Agreement has been duly executed and delivered by Programmer and
constitutes its valid and binding obligation enforceable against
Programmer in accordance with its terms.
8.2.3. ABSENCE OF CONFLICTING AGREEMENTS OR REQUIRED CONSENTS.
The execution, delivery and performance of this Agreement by
Programmer: (a) do not and will not violate any provision of
Programmer's organizational documents; (b) do not and will not require
the consent of any third party or governmental authority; (c) do not
and will not violate any law, judgment, order, injunction, decree,
rule, regulation or ruling of any governmental authority; and (d) do
not and will not, either alone or with the giving of notice or the
passage of time, or both, conflict with, constitute grounds for
termination or acceleration of or result in a breach of the terms,
conditions or provisions of, or constitute a default under any
agreement, lease, instrument, license or permit to which Programmer is
now subject.
9. CERTIFICATIONS
9.1. PROGRAMMER'S CERTIFICATION. Programmer hereby certifies that this
Agreement complies with the provisions of Sections 73.3555 (a)(1) and (e)(1) of
the FCC's rules and regulations.
9.2. LICENSEE'S CERTIFICATION. Licensee hereby certifies that it shall
maintain the ultimate control over the Stations' facilities, including but not
limited to control over the finances with respect to the operation of the
Stations, over the personnel operating the Stations, and over the programming to
be broadcast by the Stations.
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10. MISCELLANEOUS
10.1. NO PARTNERSHIP OR JOINT VENTURE. This Agreement is not intended
to be and shall not be construed as a partnership or joint venture agreement
between the parties. Except as otherwise specifically provided in this
Agreement, no party to this Agreement shall be authorized to act as agent of or
otherwise represent any other party to this Agreement.
10.2. ENTIRE AGREEMENT; SCHEDULES; AMENDMENT; WAIVER. This Agreement
and any exhibits and schedules hereto, embody the entire agreement and
understanding of the parties hereto and supersede any and all prior agreements,
arrangements and understandings relating to the matters provided for herein. Any
matter that is disclosed in a Schedule to this Agreement in such a way as to
make its relevance to the information called for by another Schedule readily
apparent shall be deemed to have been included in such other Schedule,
notwithstanding the omission of an appropriate cross-reference. No amendment,
waiver of compliance with any provision or condition hereof, or consent pursuant
to this Agreement shall be effective unless evidenced by an instrument in
writing signed by the party against whom enforcement of any waiver, amendment,
change, extension or discharge is sought. No failure or delay on the part of
Licensee or Programmer in exercising any right or power under this Agreement
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 the parties
to this Agreement are cumulative and are not exclusive of any right or remedies
which either may otherwise have.
10.3. BENEFIT AND ASSIGNMENT. This Agreement shall be binding upon and
shall inure to the benefit of the parties hereto and their respective successors
and assigns. Neither Programmer nor Licensee may assign its rights under this
Agreement without the prior written consent of the other party hereto.
10.4. HEADINGS. The headings set forth in this Agreement are for
convenience only and will not control or affect the meaning or construction of
the provisions of this Agreement.
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10.5. GOVERNING LAW. The construction and performance of this Agreement
shall be governed by the laws of the State of California without regard to its
principles of conflict of law.
10.6. NOTICES. All notices, requests, demands and other communications
which are required or may be given under this Agreement, shall be in writing,
and addressed as follows:
If to Licensee:
Ruby Broadcasting, Inc.
0000 Xxxxxxxxxx Xxxx
Xxxxx 000
Xxxxxx, XX 00000
Attention: Xx. Xxxxxx X. Xxxxxx
Telephone: 202/000-0000
Facsimile: 202/737-9001
With a copy to:
Xxxxxxxxx, Xxxxxx & Xxxxxx, P.L.L.C.
0000 X Xxxxxx, XX
Xxxxx 000
Xxxxxxxxxx, XX 00000
Attention: Xxxxxxxx X. Xxxxxx, Xx., Esq.
Telephone: 202/000-0000
Facsimile: 202/293-7783
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If to Programmer:
Regent Communications, Inc.
00 Xxxx Xxxxx Xxxxxx Xxxxxxxxx
Xxxxx 000
Xxxxxxxxx, Xxxxxxxx 00000
Attention: Xx. Xxxxx X. Xxxxxx
Telephone: 606/000-0000
Facsimile: 606/292-0357
With a copy to:
Xxxxxxx & Xxxx
2100 PNC Center
000 Xxxx Xxxxx Xxxxxx
Xxxxxxxxxx, Xxxx 00000-0000
Attention: Xxxx X. Xxxxxx, Esq.
Telephone: 513/000-0000
Facsimile: 513/241-8259
Any such notice, request, demand or communication shall be deemed to have been
duly delivered and received (a) upon hand delivery thereof during business
hours, (b) upon the earlier of receipt or three (3) days after posting by
registered mail or certified mail, return receipt requested, (c) on the next
business day following delivery to a reliable or recognized air freight delivery
service, and (d) on the date of transmission, if sent by facsimile during normal
business hours (but only if a hard copy is also sent by overnight courier), but
in each case only if sent in the same manner to all persons entitled to receive
notice or a copy. Any party may, with written notice to the other, change the
place for which all further notices to such party shall be sent. All costs and
expenses for the delivery of notices hereunder shall be borne and paid for by
the delivering party.
10.7. SEVERABILITY. In the event that any of the provisions of this
Agreement shall be held unenforceable, then the remaining provisions shall be
construed as if such unenforceable provisions were not contained herein. Any
provision of this Agreement which is unenforceable in any jurisdiction shall, as
to such jurisdiction, be ineffective to the extent of such unenforceability
without invalidating the remaining provisions hereof,
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and any such unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provisions in any other jurisdiction. To the extent permitted
by applicable law, the parties hereto hereby waive any provision of law now or
hereafter in effect which renders any provision hereof unenforceable in any
respect.
10.8. CAPITALIZED TERMS. Unless otherwise defined herein, capitalized
terms used herein and in any Schedules hereto shall have the meanings ascribed
to them in the KIXW/KZXY Purchase Agreement.
10.9. COUNTERPARTS. This Agreement may be executed in one or more
counterparts, each of which will be deemed an original and all of which together
will constitute one and the same instrument.
[THE BALANCE OF THIS PAGE INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF, the parties have executed this Time Brokerage
Agreement as of the date first above written.
LICENSEE:
RUBY BROADCASTING, INC.
By: /s/ Xxxx Xxxxxx
--------------------------------
Name: Xxxx Xxxxxx
------------------------------
Title: President
-----------------------------
PROGRAMMER:
REGENT COMMUNICATIONS, INC.
By: /s/ Xx X. Statelin
--------------------------------
Name: Xx X. Statelin
------------------------------
Title: President
-----------------------------
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SCHEDULE 1.4 TO
KIXW(AM) AND KZXY-FM
TIME BROKERAGE AGREEMENT
FEES
Programmer shall reimburse Licensee for all costs incurred by Licensee
pursuant to this Agreement, including all lease payments for the Main Studio and
transmitter sites and all taxes and other costs incident thereto, all FCC
regulatory fees, real estate and personal property taxes, utility costs relating
to the existing transmitter sites, insurance, required employee expense and
other payments made by Licensee for the transmitter sites and the Main Studio
during the Term.
In addition, Programmer shall pay to Licensee a fee equal to the
greater of the Minimum Amount and the Net Cash Flow for the Stations during the
Term of this Agreement (the "Additional Fee").
The Minimum Amount shall mean $22,500 times the number of months of the
Term, prorated for any partial month.
For purposes of this Agreement, "Net Cash Flow for the Stations" shall
mean Programmer's operating revenues from the Stations minus Programmer's
operating expenses for the Stations (including reimbursements to Programmer
pursuant to Schedule 1.4), determined in accordance with generally accepted
accounting principles consistently applied, but (1) excluding any deduction for
(a) depreciation, (b) amortization, (c) interest expense or other expense
relating to financing transactions, (d) income tax expense, and (e) expenses
(including legal and accounting fees) attributable to the transactions
contemplated by the KIXW/KZXY Purchase Agreement; (2) excluding extraordinary
gains or losses; and (3) excluding revenues and expenses under the Trade
Agreements.
The Additional Fee shall be payable as follows: Programmer shall pay
Licensee $22,500 per month due on the first of each month. At the Closing under
the KZXY/KIXW Purchase Agreement, Licensee and Programmer shall agree in good
faith upon an estimate for Net Cash Flow for the Stations for the Term, such
estimate to be made as promptly as practical and in any event prior to five
business days prior to the Closing. In the event Programmer and Licensee are
unable for any reason to agree prior
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to five business days prior to the Closing upon such estimate, then such figure
shall upon request of either Programmer or Licensee be determined by an
independent certified public accountant mutually acceptable to the parties, and
the fees and expenses of such accountant shall be paid one-half by Programmer
and one-half by Licensee. In the event such estimated Net Cash Flow for the
Stations exceeds the Minimum Amount, then Programmer shall pay such excess to
Licensee at the Closing. As promptly as practicable following the Closing,
Programmer shall prepare and deliver to Licensee reasonably detailed
calculations of Net Cash Flow for the Stations, which shall be prepared from,
and will be in accordance with, the books and records of Programmer, and in
accordance with generally accepted accounting principles consistently applied.
Programmer shall deliver such final calculations to Licensee within 60 days
after the Closing, and such calculations shall be conclusive and binding upon
all parties unless within 20 days after delivery to Licensee, Licensee notifies
Programmer in writing that Licensee disputes any of the amounts set forth
therein, in which event the final calculation of Net Cash Flow for the Stations
shall be determined by an independent certified public accountant mutually
acceptable to the parties, and the fees and expenses of such accountant shall be
paid one-half by Programmer and one-half by Licensee. Any amount due as a result
of the final calculation of Net Cash Flow for the Stations shall be paid by
Programmer or reimbursed by Licensee, as the case may be, within 10 business
days of the final determination of such amount. In the event this Agreement is
terminated for any reason other than the Closing under the KZXY/KIXW Purchase
Agreement, calculations of Net Cash Flow for the Stations shall be made as of
the Termination Date.
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SCHEDULE 2.2.1 TO
KIXW(AM) AND KZXY-FM
TIME BROKERAGE AGREEMENT
PROGRAMMING REGULATIONS
Programmer agrees to cooperate with Licensee in the broadcasting of
programs of the highest possible standard of excellence and for this purpose to
observe the following regulations in the preparation, writing and broadcasting
of its programs:
I. RELIGIOUS PROGRAMMING. The subject of religion and references to particular
faiths, tenets, and customs shall be treated with respect at all times. Programs
shall not be used as a medium for attack on any faith, denomination, or sect or
upon any individual organization.
II. CONTROVERSIAL ISSUES. Any discussion of controversial issues of public
importance shall be reasonably balanced with the presentation of contrasting
viewpoints in the course of overall programming; no attacks on the honesty,
integrity, or like personal qualities of any person or group of persons shall be
made during the discussion of controversial issues of public importance; and
during the course of political campaigns, programs are not to be used as a forum
for editorializing about individual candidates. If such events occur, Licensee
may require that responsive programming be aired.
III. NO PLUGOLA OR PAYOLA. The mention of any business activity or "plug" for
any commercial, professional, or other related endeavor, except where contained
in an actual commercial message of a sponsor, is prohibited.
IV. NO LOTTERIES. Announcements giving any information about lotteries or games
prohibited by federal or state law or regulation are prohibited.
V. ELECTION PROCEDURES. At least ninety (90) days before the start of any
regular election campaign and 45 days before any primary (provided that if any
primary is scheduled to occur within 45 days of the date of this Agreement, such
notice shall be given within 5 days of the date of this Agreement, Programmer
will clear with Licensee's General Manager the rate Programmer will charge for
the time to be sold to candidates
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for public office and/or his or her supporters to make certain that the rate
charged conforms to all applicable laws and Stations policy.
VI. REQUIRED ANNOUNCEMENTS. Programmer shall broadcast (a) an announcement in
the form satisfactory to Licensee at the beginning of each hour to identify the
Station, (b) announcements as required by law to indicate that program time has
been purchased by Broker, and (c) any other announcement that may be required by
law, regulation, or Station policy.
VII. CREDIT TERMS ADVERTISING. Pursuant to rules and regulations of the Federal
Trade Commission, any advertising of credit terms shall be made over the
Stations in accordance with all applicable federal and state laws.
VIII. NO ILLEGAL ANNOUNCEMENTS. No announcement or promotion prohibited by
federal or state law or regulation or any lottery or game shall be made over the
Stations. Any game, contest, or promotion relating to or to be presented over
the Stations must be fully stated and explained in advance, and such explanation
be presented to Licensee, which reserves the right, in its sole discretion to
reject any game, contest or promotion.
IX. LICENSEE DISCRETION PARAMOUNT. In accordance with the Licensee's
responsibility under the Communications Act of 1934, as amended, and the rules
and regulations of the Federal Communications Commission, Licensee reserves the
right to reject or terminate any advertising proposed to be presented or being
presented over the Stations which is in conflict with Station policy or which in
the judgment of Licensee or its General Manager/Chief Engineer would not serve
the public interest.
X. PROGRAMMING IN WHICH PROGRAMMER HAS A FINANCIAL INTEREST. Programmer shall
advise General Manager of the Stations with respect to any programming
[including commercial(s)] concerning goods or services in which Programmer has a
material financial interest. Any announcements for such goods and services shall
clearly identify Broker's financial interest.
XI. PROGRAMMING PROHIBITIONS. Programmer shall not knowingly and intentionally
broadcast any of the following programs or announcements:
A. FALSE CLAIMS. False or unwarranted claims for any product or
service.
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B. UNFAIR IMITATION. Infringements of another advertiser's rights
through plagiarism or unfair imitation or either program idea or copy, or any
other unfair competition.
C. COMMERCIAL DISPARAGEMENT. Any disparagement of competitors or
competitive goods.
D. PROFANITY. Any programs or announcements that are slanderous,
obscene, profane, vulgar, repulsive or offensive, either in theme or treatment.
E. CONFLICT ADVERTISING. Any advertising matter or announcement which
may, in the reasonable opinion of Licensee, be injurious or prejudicial to the
interests of the public, the Stations, or honest advertising and reputable
business in general.
F. FRAUDULENT OR MISLEADING ADVERTISEMENT. Any advertising matter,
announcement, or claim which Programmer knows to be fraudulent, misleading, or
untrue.
Licensee may waive any of the foregoing regulations in specific instances if, in
its reasonable opinion, good broadcasting in the public interest will be served
thereby.
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SCHEDULE 3.3.1 TO
KIXW(AM) AND KZXY-FM
TIME BROKERAGE AGREEMENT
EXCLUDED EMPLOYEES
------------------
June Blue (Business Manager)
Xxxx Xxxxxxxx (Traffic Manager)
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SCHEDULE 4.3 TO
KIXW(AM) AND KZXY-FM
TIME BROKERAGE AGREEMENT
ASSUMED CONTRACTS
a. AP Membership Agreement for Radio dated January 28, 1994
between the Associated Press and Ruby Broadcasting, Inc.
(contract lists Stations KIXW(AM) (formerly KZXY(AM)), KZXY-FM
and KIXA-FM)
b. Yearly Subscription to Billboard - Xxxxxx Xxxxx, MD (invoice
dated July 18, 1996)
c. Agreement with ABC/Satellite Music Network, dated September
16, 1994 for "Country Coast to Coast" programming (KIXW(AM)).
d. Blanket License Agreement between ASCAP and Ruby Broadcasting,
Inc. (renewal dated September 4, 1996) (correspondence lists
Stations KZXY- FM).
e. 1997 BMI Radio Station Interim License Agreement dated March
25, 1997 by and between Broadcast Music, Inc. and Ruby
Broadcasting, Inc. (KIXW(AM)).
f. 1997 BMI Radio Station Interim License Agreement dated March
25, 1997 by and between Broadcast Music, Inc. and Ruby
Broadcasting, Inc. (KZXY-FM).
g. SESAC Performance License between Ruby Broadcasting Company,
Inc. and SESAC (KZXY-FM).
h. Outdoor Media Group Renewal Contract dated November 15, 1996
(KZXY-FM).
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i. The Arbitron Company License Agreement dated January 29, 1997
(Stations KZXY(AM), KZXY-FM and KIXW(AM).
j. Membership Application and Agreement between Radio Advertising
Bureau and Highway Country Radio (contract used for KZXY-FM).
k. Datacount (computer support -- contract month to month)
l. Xxxx Xxxxxx (voice overs -- contract month to month)
m. Xxxx Xxxxxxx (software support -- contract month to month)
n. Microwave frequency service (readings -- contract month to
month)
o. Addendum to Long Distance Service Agreement dated July 22,
1996 by and between Ruby Broadcasting and Express Tel.
p. Standard License Agreement dated July 16, 1991 between Radio
Computing Services, Inc. and Ruby Broadcasting, Inc.
q. Wireless Flash
r. RPM - Top Hits CD Service (month-to-month)
