TIME BROKERAGE AGREEMENT
Time Brokerage Agreement ("Agreement") dated as of , 1996, by and
between SFX Broadcasting of Texas (KTCK) Licensee, Inc. and SFX Broadcasting of
Texas (KTCK), Inc. ("Licensee"), the licensee of Radio Station KTCK, Dallas,
Texas (the "Station"), and KRBE Co. ("Broker").
WHEREAS, Licensee has available broadcasting time and is engaged in
the business of radio broadcasting on the Station;
WHEREAS, Broker desires to avail itself of Station's broadcast time
for the presentation of programming service, including the sale of advertising
time; and
WHEREAS, Broker and Licensee have entered into an Asset Purchase
Agreement ("Purchase Agreement"), whereby Broker has contracted to purchase the
Station's assets.
NOW, THEREFORE, for and in consideration of the mutual covenants
herein contained, the parties hereto have agreed and do agree as follows:
1. FACILITIES. Licensee agrees to make broadcasting transmission on
its main channel available to Broker to broadcast on the Station, or cause to be
broadcast, for up to twenty-four hours per day, seven (7) days per week
provided, however, that Licensee reserves the right to retain two (2) hours per
broadcast
week during the hours of 6 a.m. to 8 a.m. Sunday for broadcast of its own public
affairs programs.
2. PAYMENTS. Broker hereby agrees to pay Licensee for the broadcast of
the programs hereunder the amounts specified in Attachment I on or prior to the
dates specified in Attachment I. 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 time period
preempted by Licensee, 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 broadcast hours produced by Broker each month.
3. TERM. The term of this Agreement shall begin on June 24, 1996
("Effective Date"), and shall continue until May 31, 1997, provided that this
Agreement shall terminate either upon consummation of the sale of the Station to
Broker pursuant to the Purchase Agreement or as otherwise provided herein. In
the event that the Purchase Agreement has not been closed prior to the end of
the term of this Agreement, the parties, in their discretion, may elect to
negotiate an extension of this Agreement for an additional term upon terms and
conditions to be agreed upon at that time.
4. PROGRAMS. Broker shall furnish or cause to be furnished the
artistic personnel and material for the programs as provided by this Agreement
and all programs shall be in good taste and in accordance with Federal
Communications Commission (the "FCC") requirements. All programs shall be
prepared and presented in conformity with the regulations prescribed in
Attachment II
hereto. All advertising spots and promotional material or announcements shall
comply with all applicable federal, state and local regulations and policies and
shall be produced in accordance with quality standards established by Broker.
5. LICENSEE OPERATIONAL RESPONSIBILITY. Licensee shall be responsible
for the maintenance of Licensee's studio and the maintenance and operation of
the Station's transmission systems, transmitter building, antenna towers, and
the real property upon which the transmitter building and antenna tower are
located. Licensee shall be responsible for the Station's compliance with all
applicable provisions of the Communications Act of 1934, as amended, the rules,
regulations, and policies of the FCC, and all other applicable laws. Licensee
shall maintain all licenses, permits, and other authorizations as are necessary
for the operation of the Station (including all FCC licenses, permits, and
authorizations), in full force and effect during the term of this Agreement or
until the consummation of the sale of the Station pursuant to the Purchase
Agreement unimpaired by any acts or omissions of Licensee. Licensee shall engage
its own general manager, who shall be responsible for overseeing the operation
and programming of the Station, and one other non-managerial employee. Licensee
shall be responsible for the salaries, taxes, insurance, and related costs for
the Station's general manager and one non-managerial employee. Licensee shall
make its transmitters, transmitter building, and towers available to Broker, at
no additional charge, for placement of any equipment
Broker reasonably deems necessary to allow it to broadcast Broker's programming
on the Station.
5.1 INTERRUPTION OF NORMAL OPERATIONS. If the Station suffers loss or
damage of any nature to its transmission facilities which results in the
interruption of service or the inability of the Station to operate with its
maximum authorized facilities, Licensee shall immediately notify Broker, and
shall undertake such repairs as necessary to restore the full-time operation of
the Station with its maximum authorized facilities within seven days from the
occurrence of such loss or damage.
6. HANDLING OF MAIL. Except as required to comply with Commission
rules and policies, including those regarding the maintenance of the public
inspection file (which shall at all times remain the responsibility of
Licensee), Licensee shall not be required to receive or handle mail, cables
telegraph or telephone calls in connection with programs broadcast hereunder
unless Licensee at the request of Broker has agreed in writing to do so. Broker
shall promptly forward to Licensee any mail which it may receive from any
government agency.
7. PROGRAMMING AND OPERATIONS STANDARDS. Broker agrees to abide by the
standards set forth in Attachment II in its programming and operations. Broker
further agrees that if, in the sole judgment of Licensee or the Station General
Manager, Broker does not comply with said standards, Licensee may suspend or
cancel any program not in compliance without any reduction or offset in payments
due Licensee under this Agreement.
8. RESPONSIBILITY FOR EMPLOYEES AND EXPENSES. Broker shall employ and
be responsible for the salaries, taxes, insurance and
related costs for all personnel used in the production of programs supplied to
the Station and all other costs incurred by Broker in the production of the
programs (including salespeople, traffic personnel, board operators and
programming staff). Broker shall be responsible for all expenses incurred in the
origination and/or delivery of its programming from any location to the
Station's transmitter sites and for any publicity or promotional expenses
incurred by Broker. Broker shall pay for all telephone calls associated with
program production and listener responses, for all fees to ASCAP, BMI and SESAC,
and for any other copyright fees attributable to its programming broadcast on
the Station.
9. ASSIGNMENT OF CONTRACTS. On the Effective Date, Licensee shall
assign to Broker all contracts for the sale of time on the Station (the "Time
Sales Agreement") together with those contracts, leases and other agreements
identified on Schedule 1 (collectively, the "Contracts"). Licensee has provided
Broker with true and complete copies, including amendments, of the Contracts
(other than the Time Sales Agreement). Except as denoted on Schedule 1, the
Contracts are freely assignable. If Licensee has been unable to obtain any
consent required to permit the valid assignment of a Contract to Broker prior to
the Effective Date, Licensee may elect to act as Broker's agent in connection
with such Contract and the parties shall cooperate to cause Broker to receive
the benefit of such Contract in exchange for performance by Broker of all
Licensee's obligations under such Contract (and Broker shall pay to Licensee all
amounts due under such Contract on or after the Effective
Date for services provided by Licensee). If this Agreement terminates other than
as a result of the Closing (as defined in the Purchase Agreement), Broker shall
assign to Licensee and Licensee shall assume the Contracts listed on Schedule 1
and any New Contracts that are still in effect on the date of such termination
or expiration.
10. PRORATION. Except as expressly provided herein, (i) the operation
of the Station and the income and normal operating expenses other than Accounts
Receivable as hereinafter defined, including without limitation assumed
liabilities and prepaid expenses, attributable thereto through the Effective
Date shall be for the account of Licensee and thereafter for the account of
Broker and (ii) expenses for goods or services received both before and after
the Effective Date, power and utilities charges, taxes (other than Licensee's or
Broker's income taxes), frequency discounts, Time Sales Agreements, Contracts
and rents and similar prepaid and deferred items shall be prorated between
Licensee and Broker as of the Effective Date (the "Effective Date Adjustment").
A final accounting of the Effective Date Adjustments shall be made by Broker
with the cooperation of Licensee during the sixty (60) days after the Effective
Date, and the sum due from one party to the other pursuant to this Section 8
zshall be paid in cash from Broker to Licensee, or from Licensee to Broker, as
the case may be, by company check. With respect to the preceding, Licensee shall
be responsible for paying its employees' sales commissions arising and accruing
prior to the Effective Date, but Broker shall reimburse Licensee for such sales
commissions to the extent that the revenue from such sales
relates to advertising or programming broadcast on or after the Effective Date
and received by Broker.
11. ACCOUNTS RECEIVABLE. On the Effective Date, Licensee will deliver
to Broker a list of Licensee's accounts receivable arising from the operation of
the Station prior to the Effective Date (the "Receivables"). All amounts
collected on account of the Accounts Receivable shall belong to and be retained
by Broker. Broker shall also be entitled to all revenue from the sale, during
the term of this Agreement, of advertising or program time on the Station.
12. OPERATION OF STATION. Notwithstanding anything to the contrary in
this Agreement, Licensee shall have full authority and power over the operation
of the Station during the period of this Agreement. Licensee shall retain
control 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 programs in order to
broadcast a program deemed to be by Licensee of greater national, regional, or
local interest, and the right to take any other actions necessary to comply with
the laws of the United States; the State of Texas; the rules, regulations, and
policies of the Commission (including the prohibition on unauthorized transfers
of control). Licensee shall at all times be solely responsible for meeting all
of the FCC's requirements with respect to public service programming, for
maintaining the political and public inspection files and the Station log, and
for the preparation of programs/issues lists. Broker shall, upon request by
Licensee, provide Licensee with information with
respect to such of Broker's programs which are responsive to public needs and
interest so as to assist Licensee in the preparation of required programming
reports, and will provide upon request other information to enable Licensee to
prepare other records, reports and logs required by the Commission or other
local, state or federal governmental agencies.
13. LICENSE TO USE STATION'S FACILITIES. Effective as of the Effective
Date, Licensee grants Broker an exclusive right to use all of the studio and
office space and other facilities (the "Station Facilities") used exclusively by
the Station. Broker shall not remove from the Station Facilities or modify any
Station Equipment in the Station Facilities owned by or leased or licensed to
Licensee without Licensee's prior written consent. Broker shall use due care in
the use of any property of Licensee. Broker shall indemnify Licensee for any
damage (normal wear and tear expected) to Licensee's property caused by Broker
or any employee, contractor, agent or guest of Broker.
14. LICENSE OF 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 in the operation
of the Station (including, but not limited to call signs and goodwill) (the "IP
License"). In the event of termination of this Agreement, the IP License shall
terminate and Broker shall assign to Licensee at no cost its intellectual
property used in the operation of the Station.
15. SPECIAL EVENTS. Licensee reserves the right, in its discretion, to
preempt any of the broadcasts of the programs referred to herein, and to use
part or all of the time contracted for herein by Broker for the broadcast of
events of special importance. In all such cases, Licensee will use its best
efforts to give Broker reasonable notice of its intention to preempt such
broadcast or broadcasts, and, in the event of such preemption, Broker shall
receive a payment credit for the broadcasts so omitted.
16. FORCE MAJEURE. Any failure or impairment of the Station Facilities
or any delay or interruption in broadcasting programs, or the 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 to causes beyond the
control of Licensee, shall not constitute a breach of this Agreement, and
Licensee will not be liable to Broker, except to the extent of allowing in each
such case an appropriate payment credit for time not provided or broadcasts not
carried based upon a pro rata adjustment to amounts due as specified in
Attachment II calculated upon the length of time during which the failure or
impairment exists or continues.
17. PAYOLA. Broker agrees that it will not accept any compensation or
any kind of gift or gratuity of any kind whatsoever, regardless of its value or
form, including, but not limited to, a commission, discount, bonus, 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 further agrees that no commercial message plugs or undue
reference shall be made in programming presented over the Station to any
business venture or profit-making activity or other interest (other than
non-commercial advertisements for bona fide charities, church activities or
other public service activities) without such broadcast being announced as
sponsored in accordance with the Commission's requirements.
18. INDEMNIFICATION; WARRANTY. Broker will indemnify and hold Licensee
harmless against all liability for libel, slander, illegal competition or trade
practice, infringement of trademarks, trade names, or program titles, violation
of rights of privacy, and infringement of copyrights and proprietary rights
resulting from the broadcast of programming furnished by Broker. Further, Broker
warrants that the broadcasting of its programs will not violate any rights of
others and Broker agrees to hold Licensee, the Station, and their respective
officers, directors, agents, stockholders, employees, and subsidiaries, harmless
from any and all claims, damages, liability, costs and expenses, including
reasonable attorneys' fees, arising from the broadcasting of (i) the production
and/or broadcasting of the programs; (ii) any misrepresentation or breach of
warranty of Broker contained in this Agreement; and (iii) any breach of
covenant, agreement, or obligation of Broker contained in this Agreement.
Licensee reserves the right to refuse to broadcast any and all programs
containing matter which is, or in the opinion of Licensee may be, or which a
third-party claims to be,
violative of any of their rights or which may constitute a personal attack as
the term is and has been defined by the Commission. Broker's obligation to hold
Licensee harmless against the liabilities specified above shall survive any
termination of this Agreement until the expiration of all applicable statutes of
limitation.
19. LICENSEE'S INDEMNIFICATION; WARRANTY. Licensee shall indemnify,
defend, and hold harmless Broker from and against any and all claims, losses,
costs, liabilities, damages, FCC forfeitures, and expenses, including reasonable
counsel fees, of every kind, nature, and description arising out of (i)
Licensee's broadcasts under this Agreement; (ii) any misrepresentation or breach
of warranty of Licensee contained in this Agreement; and (iii) any breach of any
covenant agreement, or obligation of Licensee contained in this Agreement.
Licensee's obligation to hold Broker harmless against the liabilities specified
above shall survive any termination of this Agreement until the expiration of
all applicable statutes of limitation.
20. PROCEDURE FOR INDEMNIFICATION. The following procedure shall
apply: (1) Whenever a claim for indemnification shall arise under Section 18 or
Section 19 hereof, the party entitled to indemnification (the "Indemnified
Party") shall promptly and in no event later than fifteen (15) days after
receipt of such a claim, give written notice to the party from whom
indemnification is sought (the "Indemnifying Party") setting forth in reasonable
detail, to the extent available, the facts concerning the nature of such claim
and the basis upon which the Indemnified Party believes that it is entitled to
indemnification hereunder,
provided that the Indemnified Party's failure to do so shall not preclude it
from seeking indemnification hereunder unless such failure has materially
prejudiced the Indemnifying Party's ability to defend such claim. (2) In the
event of any claim for indemnification hereunder resulting from or in connection
with any claim, action, suit or legal proceedings brought by a third party, the
Indemnifying Party shall be entitled, at its sole expense; either: (a) to
participate therein, or (b) to assume the entire defense thereof with counsel
who is selected by it and who is reasonably satisfactory to the Indemnified
Party provided that: (i) the Indemnifying Party agrees in writing that it does
not and will not contest its responsibility for indemnifying the Indemnified
Party in respect of such claim or proceeding, and (ii) no settlement shall be
made without the prior written consent of the Indemnified Party which shall not
be unreasonably withheld (except that no such consent shall be required if the
claimant is entitled under the settlement to only monetary damages to be paid
solely by the Indemnifying Party). If, however, (y) the claim, action, suit or
proceeding would, if successful, result in the imposition of damages for which
the Indemnifying Party would not be solely responsible hereunder, or (z)
representation of both parties by the same counsel would otherwise be
inappropriate due to actual or potential differing interests between them, then
the Indemnifying Party shall not be entitled to assume the entire defense and
each party shall be entitled to retain counsel (in the case of Clause ((ii)(y))
of this sentence, at their own expense) who shall cooperate with one another in
defending against such action, claim or proceeding.
(3) If the Indemnifying Party does not choose to defend against a claim, action,
suit or legal proceeding by a third party, the Indemnified Party may defend
against such claim, action, suit or proceeding in such manner as it deems
reasonably appropriate or settle such claim, action, suit or proceeding (after
giving notice thereof to the Indemnifying Party) on such terms as the
Indemnified Party may deem reasonably appropriate, and the Indemnified Party
shall be entitled to periodic reimbursement of expenses incurred in connection
therewith and prompt indemnification from the Indemnifying Party, including
reasonable attorneys' fees, in accordance with this Article. (4) The
Indemnifying Party will not, without the Indemnified Party's written consent,
settle or compromise any claim or consent to any entry of judgment which does
not include, as an unconditional term thereof, the giving by the claimant to the
Indemnified Party of a release from all liability with respect to such claim.
Neither Broker nor Licensee shall be deemed to have notice of any claim by
reason of any knowledge acquired on or prior to the Closing Date by an employee
of the Station unless express evidence is available establishing actual notice
to either party.
21. REGULATORY CHANGE. In the event of a material change or
clarification in FCC rules, policies or precedent that would cause this
Agreement to be in violation thereof and such change is not the subject of an
appeal or further administrative review, the parties will use their respective
best efforts and negotiate in good faith to modify this Agreement to comply with
the change or clarification in FCC rules, policies, or precedent so as to
continue this Agreement in substantially the same form without material economic
detriment to either party.
22. TERMINATION. In addition to other remedies, whether pursuant to
this agreement or otherwise, this Agreement may be terminated as set forth below
by either Licensee or Broker by written notice to the other party if the party
seeking to terminate is not then in material default or breach hereto, upon the
occurrence of any of the following:
(a) this Agreement is declared invalid or illegal in whole or
substantial part by a ruling, order, or decree of an administrative agency or
court of competent jurisdiction and such ruling, order or decree has become
final and no longer subject to further administrative or judicial review and the
parties cannot, after using their respective best efforts and negotiating in
good faith for a period of sixty (60) days, modify this Agreement to make the
invalid or illegal portions comply with such ruling, order, or decree;
(b) if Section 21 become applicable and the parties are unable to
agree on a mutually-acceptable modification of this Agreement within sixty (60)
days thereafter;
(c) the other party is in material breach of its obligations hereunder
and has failed to cure such breach within (i) forty-eight (48) hours after
receiving written notice of any violation of any FCC rule or regulation, or (ii)
ten (10) days after receiving written notice from the non-breaching party of any
other breach (except for breaches of
Broker's monetary obligations under Section 2, which must be cured within
seventy-two (72) hours); provided, however, that if such breach is one that with
reasonable diligence cannot be cured within ten (10) days, but could be cured
within an additional thirty (30) days, and the breaching party diligently
attempts to cure the breach, then the non-breaching party shall not be able to
terminate for that breach until such additional thirty (30) day period has
elapsed without a cure (it being understood that this proviso shall not apply to
breaches of Broker's monetary obligations under Section 2);
(d) the other party is in material breach of its obligations under the
Purchase Agreement and such breach has not been cured within the period
specified for cure of such breach in the Purchase Agreement;
(e) the mutual consent of both parties; or
(f) automatically upon consummation of the sale of the Station
pursuant to the Purchase Agreement or upon termination of the Purchase
Agreement.
23. BROKER'S RIGHT TO CURE. In addition to any other rights or
remedies available to Broker, whether pursuant to this Agreement or otherwise,
in the event Licensee fails properly to maintain the Station's transmission
facilities or otherwise fails to perform its obligations hereunder, Broker shall
be entitled, but not required, following reasonable notice to Licensee, to
perform such maintenance and repairs and take such other actions as are
necessary for Broker's use of the Station's facilities as contemplated herein.
24. REPRESENTATIONS AND WARRANTIES.
24.1 MUTUAL REPRESENTATIONS AND WARRANTIES. Each of Licensee and
Broker represents to the other that it is 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 it is subject or by which it is bound.
24.2 LICENSEE'S REPRESENTATIONS, WARRANTIES AND COVENANTS. Licensee
makes the following further representations, warranties and covenants:
24.2.1. AUTHORIZATIONS. Licensee owns and holds all licenses and other
permits and authorizations necessary for the operation of the Station as
presently contemplated (including licenses, permits and authorizations issued by
the Commission), and such licenses, permits and authorizations will be in full
force and effect for the entire term, unimpaired by any acts or omissions of
Licensee, its principals, employees or agents. There is not now pending or, to
Licensee's best knowledge, threatened, any action by the Commission or other
party to revoke, cancel, suspend, refuse to renew or modify adversely any of
such licenses, permits or authorizations, and, to Licensee's best knowledge, no
event has occurred that allows or, after notice or lapse of time or both, would
allow, the revocation or termination of such licenses, permits or authorizations
or the imposition of any restriction thereon of such a nature that may limit the
operation of the Station as presently conducted. Licensee has no reason to
believe that any such license, permit or authorization will not be renewed
during the term of this
Agreement in its ordinary course. To the best of its knowledge Licensee is not
in violation of any statute, ordinance, rule, regulation, order or decree of any
federal, state, local or foreign governmental agency, court or authority having
jurisdiction over it or over any part of its operations or assets, which default
or violation would have an adverse effect on Licensee or its assets or on its
ability to perform this Agreement.
24.2.2. FILINGS. All reports and applications required to be filed
with the FCC (including ownership reports and renewal applications) or any other
governmental agency, department or body in respect of the Station have been, and
in the future will be, filed in a timely manner and are and will be true and
complete and accurately present the information contained therein. All such
reports and documents, to the extent required to be kept in the public
inspection files of the Station, are and will be kept in such files. Upon
request by Licensee, Broker shall provide in a timely manner any such
information in its possession which will enable Licensee to prepare, file or
maintain the records and reports required by the FCC.
24.2.3. FACILITIES. The Station's facilities will be maintained at the
expense of Licensee and will comply and be operated, in all material respects,
in accordance with the maximum facilities permitted by the FCC authorizations
for the Station and with good engineering standards necessary to deliver a high
quality technical signal to the area served by the Station, and with all
applicable laws and regulations (including
the requirements of the Communications Act and the rules, regulations, policies
and procedures of the FCC promulgated thereunder). All capital expenditures
reasonably required to maintain the quality of the Station's signal shall be
made promptly at the expense of Licensee.
24.2.4. TITLE TO PROPERTIES. At Closing Licensee will have good and
marketable title to all of the assets and properties used in the operation of
the Station, free and clear of any liens, claims or security interests. Licensee
will not dispose of, transfer, assign or pledge any such asset, except with the
prior written consent of Broker, if such action would affect adversely
Licensee's performance hereunder or the business and operations of Broker
permitted hereby.
24.2.5. PAYMENT OF OBLIGATIONS. Licensee has no debts, obligations or
liabilities which would adversely affect Licensee's performance hereunder or the
business and operations of the Broker permitted hereby. Licensee shall pay in a
timely fashion all of its debts, assessments and obligations, including without
limitation tax liabilities and payments attributable to the operations of the
Station, as they come due from and after the Effective Date of this Agreement.
24.2.6. INSURANCE. Licensee will maintain in full force and effect
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 required by law) and in
such amounts and on such terms as is conventionally carried by broadcasters
operating radio stations with facilities comparable to those of the Station. Any
insurance proceeds received by Licensee in respect of damaged property will be
used to repair or replace such property so that the operations of the Station
conform with this Agreement.
25. MODIFICATION AND WAIVER. No modification or waiver of any
provision of this Agreement shall in any event be effected unless the same shall
be in writing and signed by the party adversely affected by the waiver or
modification, and then such waiver and consent shall be effective only in the
specific instance and for the purpose for which given.
26. 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.
27. CONSTRUCTION. This Agreement shall be construed in accordance with
the laws of the State of Texas, 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 Commission and all other governmental
bodies or authorities presently or hereafter to be constituted.
28. 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.
29. SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon and
inure to the benefit of the parties and their respective successors and assigns,
including, without limitation, any assignee of the Commission license for the
Station. Except in the case of an assignment to an affiliate of a party to this
Agreement, this Agreement shall not be assigned without the consent of the other
party.
30. 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 as of the date
on which the executed counterparts are exchanged by the parties.
31. NOTICES. Any notice required hereunder shall be in writing and any
payment, notice or other communications shall be deemed given when delivered
personally, or mailed by certified mail or Federal Express, postage prepaid,
with return receipt requested, and addressed as follows:
If to Licensee, to:
D. Geoffrey Armstrong, COO
SFX Broadcasting, Inc.
600 Congress Avenue, Suite 1270
Austin, Texas 78701
Facsimile No.: (512) 477-7388
with a copy (which shall not constitute notice) to:
Richard A. Liese, Esq.
SFX Broadcasting, Inc.
150 E. 58th Street, 19th Floor
New York, N.Y. 10155
Facsimile No.:(212)753-3188
If to Broker, to:
David E. Kennedy, President
Susquehanna Radio Corp.
140 E. Market Street
York, PA 17401
with a copy (which shall not constitute notice) to:
Craig W. Bremer, General Counsel
Susquehanna Pfaltzgraff Co.
140 E. Market Street
York, PA 17401
32. ENTIRE AGREEMENT. This Agreement embodies 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, modifications or changes of this
Agreement shall be valid unless by like written instrument.
33. SEVERABILITY. The event that any of the provisions contained in
this Agreement is held to be invalid, illegal or unenforceable 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.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first above written.
SFX BROADCASTING OF TEXAS
(KTCK) LICENSEE, INC.
By:___________________________
Title:
SFX BROADCASTING OF TEXAS
(KTCK), INC.
By: __________________________
Title:
KRBE CO.
By:___________________________
Title:
TIME BROKERAGE AGREEMENT
ATTACHMENT I
MONTHLY PAYMENT SCHEDULE DURING TERM OF TIME BROKERAGE AGREEMENT
----------------------------------------------------------------
1. Broker shall pay to Licensee, pursuant to the terms of Section 2,
$55,000 per month. Such payment shall be due and payable in advance on the first
business day of the month to which such payment relates.
2. Broker shall also reimburse Licensee for all of its ordinary and
customary expenses incurred after the Effective Date (excluding only any capital
expense at the transmitter sites in excess of Two Thousand Dollars ($2,000), and
Licensee's federal, state and local income taxes) incurred in operating the
Station (the "Operating Expenses"), including but not limited to, maintenance of
the tower and transmitter equipment, rent and utilities at Licensee's studio
facilities and federal, state and local taxes (but not Licensee's income taxes).
3. For any month in which this Agreement is not in force during the
entire month, Broker's reimbursement obligation shall be prorated accordingly.
TIME BROKERAGE AGREEMENT
ATTACHMENT II
Broker 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, tenants, and customs shall be treated with respect at all
times. Programs shall not be used as medium for attack on any faith,
denomination, or sect or upon any individual or organization.
II. CONTROVERSIAL ISSUES. Any discussion of controversial issues or
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 sixty (60) days before any primary or
regular election, Broker will clear with Licensee's General Manager the rate
Broker will charge for the time to be sold to candidates for public office
and/or their supporters to make certain that the rate charged conforms to all
applicable laws and Station policy.
VI. SPOT COMMERCIAL LIMITATIONS. With respect to any given segment of
air time hereunder, the amount of spot commercial matter shall, under normal
circumstances, not exceed 20 minutes during any sixty minute segment. Broker
will provide, for attachment to the Station logs, a list of all commercial
announcements carried during its programming.
VII. REQUIRED ANNOUNCEMENTS. Broker shall broadcast (a) an
announcement in a form satisfactory to Licensee at the beginning of each hour to
identify Station KTCK, (b) an announcement at the beginning and end of each
segment of Brokered programming 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.
VIII. CREDIT TERMS ADVERTISING. Pursuant to rules of the Federal Trade
Commission, any advertising of credit terms shall be made over the Station in
accordance with all applicable federal and state laws, including Regulations Z
and M.
IX. COMMERCIAL RECORDKEEPING. With the exception of normal broadcast
sales Broker shall not receive any consideration in money, goods, services, or
otherwise, directly or indirectly (including to relatives) from any person or
company for the presentation of any programming over the Station without
reporting the same in advance to and receiving the prior written consent of
Licensee's General Manager. No commercial messages ("plugs") or undo references
shall be made in programming presented over the Station to any business venture,
profit making activity, or other interest (other than noncommercial
announcements for bona fide charities, church activities, or other public
service activities) in which Broker (or anyone else) is directly or indirectly
interested without the same having been approved in advance by Licensee's
General Manager and such broadcast being announced and logged and sponsored.
X. NO ILLEGAL ANNOUNCEMENTS. No announcements or promotion prohibited
by federal or state law or regulation of any lottery or game shall be made over
the Station. Any game, contest, or promotion relating to or to be presented over
the Station must be fully stated and explained in advance to Licensee at
Licensee's request, which reserves the right in its sole discretion to reject
any game, contest, or promotion.
XI. 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 Station which is in conflict with Station policy or which in
the reasonable judgment of Licensee or its General Manager/Chief Engineer would
not serve the public interest.
XII. PROGRAMMING IN WHICH BROKER HAS A FINANCIAL INTEREST. Broker
shall advise the General Manager of the Station with
respect to any programming (including commercial(s) concerning goods or services
in which Broker has a material financial interest. Any announcements for such
goods and services shall clearly identify Broker's financial interest.
XIII. PROGRAMMING PROHIBITIONS. Broker shall not broadcast any of the
following programs or announcements:
A. FALSE CLAIMS. False or unwarranted claims for any product or
service.
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. PRICE DISCLOSURE. Any price mentions except as permitted by
Licensee's policies current at the time.
F. UNAUTHENTICATED TESTIMONIALS. Any testimonials which cannot be
authenticated.
G. DESCRIPTIONS OF BODILY FUNCTIONS. Any continuity which
describes in a repellent manner internal bodily functions or symptomatic results
or internal disturbances, and no reference to matters which are not considered
acceptable topics in social groups.
H. 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 Station, or honest
advertising and reputable business in general.
I. FRAUDULENT OR MISLEADING ADVERTISEMENT. Any advertisement
matter, announcement, or claim which Broker 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.
In any case where questions of policy or interpretation arise,
Broker shall submit the same to Licensee for decision before making any
commitments in connection therewith.
TIME BROKERAGE AGREEMENT
ATTACHMENT III
State of ____________________
State of ____________________
ANTI-PAYOLA/PLUGOLA AFFIDAVIT
________(Name)_________, being first duly sworn, deposes and says as
follows:
1. He is (Position) for WARM Broadcasting Company, Inc. ("Broker").
2. He has acted in the above capacity since (date) .
3. No matter has been broadcast by Station ____ for which service, money
or other valuable consideration has been directly or indirectly paid,
or promised to, or charged, or accepted, by him from any person, which
matter at the time so broadcast has not been announced or otherwise
indicated as paid for or furnished by such person.
4. So far as he is aware, no matter has been broadcast by Station ____
for which service, money, or other valuable consideration has been
directly or indirectly paid, or promised to, or charged, or accepted
by Station ____ by the Broker, or by any independent contractor
engaged by
the Broker in furnishing programs, from any person, which matter at
the time so broadcast has not been announced or otherwise indicated as
paid for or furnished by such person.
5. In the future, he will not pay, promise to pay, request, or receive
any service, money, or any other valuable consideration, direct or
indirect, from a third-party, in exchange for the influencing of, or
the attempt to influence, the preparation or presentation broadcast
matter on Station KTCK.
6. Except as may be reflected in paragraph 7 hereof, neither he, his
spouse nor any member of his immediate family has any present direct
or indirect ownership interest in any entity engaged in the following
business or activities (other than an investment or a corporation
whose stock is publicly held), serves an officer or director of
whether with or without compensation, or serve as an employee of, any
entity engaged in the following business or Activities:
1. The publishing of music;
2. The production, distribution (including wholesale and retail
sales outlets), manufacture or exploitation of music, films,
tapes, recordings or
electrical transcriptions of any program material intended for
radio broadcast use;
3. The exploitation, promotion, or management of persons rendering
artistic, production, and/or other services in the entertainment
field;
4. The ownership or operation of one or more radio or television
stations;
5. The wholesale or retail sale of records intended for public
purchase;
6. The sale of advertising time other than on Station ____ or any
other station owned by the Broker.
7. A full disclosure of any such interest referred to in paragraph
6, above, is as follows:
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Affiant
Subscribed and sworn to before me
this ___ day of __________, 1996.
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Notary Public
My Commission expires:________