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EXHIBIT 2.5.15
TIME BROKERAGE AGREEMENT
THIS TIME BROKERAGE AGREEMENT (this "Agreement") is made and entered
into as of December 23, 1996, by and among GOLDEN WEST BROADCASTERS, a
California corporation ("Licensee"), and CLEAR CHANNEL RADIO, INC., a Nevada
corporation ("Programmer"), with reference to the following facts:
Recitals
A. Licensee is authorized to operate radio station KSCA(FM),
Glendale, California (the "Station") pursuant to a license issued to Licensee
by the Federal Communications Commission (the "FCC");
B. The parties have entered into an Option Agreement, of even
date herewith (the "Option Agreement"), pursuant to which Programmer has an
option to buy certain of the assets relating to the Station, including all FCC
licenses (the "Option");
C. Licensee desires to obtain a regular source of programming and
income which will sustain the operation of the Station; and
D. Programmer desires to purchase time on the Station for the
broadcast of programming on the Station and for the sale of advertising time
included in that programming.
Agreement
NOW, THEREFORE, in consideration of the mutual covenants herein
contained, and for other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties hereto hereby agree as
follows:
1. Time Sale. Subject to the provisions of this
Agreement and to applicable rules, regulations and policies of the FCC,
Licensee agrees to make the Station's broadcasting transmission facilities
available to Programmer for broadcast of Programmer's programs on the Station
originating either from Programmer's studio or from Licensee's studio.
Programmer will have the right to broadcast on the Station up to twenty-four
(24) hours of programming each day during the Term (as defined in Section 2
below); provided, however, Licensee shall be entitled to reserve up to four
hours as it determines is necessary to comply with the FCC's policies regarding
the broadcast of public affairs' programming, including Spanish programming
relating to the Xxxxx Museum of Western Heritage. The time period during which
such public affairs' programming is aired shall be mutually determined by
Licensee and Programmer. During the Term, Programmer shall provide all on-air
personnel for programming originated by Licensee. During the Term, Programmer
shall have the sole responsibility for setting the terms and conditions of
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employment for on-air personnel used in Licensee's programming and for
determining which on-air personnel shall be utilized in Licensee's programming.
Programmer shall be responsible for delivering its programming and/or
Programmer's programming audio signal, suitable and ready for broadcast, to the
Station.
2. Term. The term of this Agreement shall begin on the
Effective Date and shall continue until the exercise of the Option and the
closing of the sale of the assets of the Station pursuant to the terms of the
Asset Purchase Agreement contemplated by the Option Agreement (the "Asset
Purchase Agreement"), unless earlier terminated in accordance with Section 14
hereof, (the "Term").
3. Consideration. As consideration for the air time
made available hereunder during the Term, Programmer shall (a) pay to Licensee
a monthly fee of $8,333.33, and (b) Programmer shall reimburse Licensee for (i)
all reasonable operating expenses for the Station and its transmission
facilities, including, without limitation, rent, salaries, maintenance costs,
taxes (other than income taxes), licensing fees and royalties and premiums for
insurance on the Station's equipment and facilities; provided, however, the
amounts reimbursed under this clause (i) (other than fees payable to BMI, ASCAP
or SESAC) shall not exceed the annual amounts set forth on Exhibit A attached
hereto,(ii) all reasonable capital expenditures not covered by insurance
necessary to maintain the Station's equipment and transmission facilities in
good working order and repair (provided, however, any capital expenditure in
excess of $10,000 shall require the prior consent of Programmer, which consent
shall not be unreasonably withheld), and (iii) all amounts, up to a maximum of
$550,000, payable by Licensee to employees terminated by Licensee as a result
of Licensee entering into this Agreement or the closing of the acquisition of
the assets of the Company contemplated by the Asset Purchase Agreement. The
fee payable under clause (a) shall be paid on or before the first day of each
month, except the fee for the first month shall be paid on the Effective Date,
and the fee payable for any partial month shall be pro-rated. The amounts
payable under clause (b) shall be paid within 15 days after paid invoices are
presented to Programmer. Licensee shall be responsible for operating costs of
the Station (subject to reimbursement by Programmer hereunder). Programmer
shall furnish the materials and personnel for programming it provides hereunder
and shall be responsible for all costs related to the production of, broadcast
of, and sale of advertising time on the programming it provides hereunder,
including, without limitation, salaries and commissions for air personnel,
salespersons, employees and other personnel, promotional expenses and licensing
fees. Without limiting the generality of the prior sentence, Programmer shall
be solely responsible for setting the terms and conditions of employment for
all on-air personnel for the programming it provides, including, without
limitation, setting the wages and benefits for such on-air personnel;
scheduling, directing and
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assigning such on-air personnel; and hiring, firing, promoting, demoting, and
disciplining such on-air personnel, and Licensee shall have no responsibility
for setting the terms and conditions of employment for on-air personnel for
programming provided by Programmer hereunder. Notwithstanding anything to the
contrary contained herein, upon expiration of the lease for Licensee's studio
and office premises, during the Term Programmer shall provide station and
office premises for Licensee at the Station's main studio.
4. Performance of Air Time and Contracts. Effective on
the Effective Date, Licensee hereby assigns to Programmer, and Programmer
hereby assumes from Licensee, (a) all obligations of Licensee under the barter
agreements set forth on Exhibit B (collectively "Barter Agreements") arising or
to be performed on or after the Effective Date and all rights and benefits
under the Barter Agreements, including all unused goods and services, and (b)
all obligations of Licensee under cash orders for advertising to be aired on or
after the Effective Date on the Station which may be canceled without penalty.
Licensee represents and warrants to Programmer Exhibit B attached hereto
contains a list of the balance (as of the date hereof) of advertising owed
under all Barter Agreements on or after the date hereof and all unused goods
and services under the Barter Agreements. Programmer agrees Licensee shall
have no obligation to reimburse Programmer for any goods or services received
by Licensee under the Barter Agreements prior to the date hereof that have been
used. Effective on the Effective Date, during the Term Programmer hereby agrees
to perform and pay (without duplication of the reimbursement obligations of
Programmer under Section 3) all obligations of Licensee under the agreements
listed on Exhibit C attached hereto arising or to be performed on or after the
Effective Date, and the parties agree to cooperate with each other in having
the other parties to such agreements perform directly for the benefit of, and
accept performance and payment directly from, Programmer. Licensee
acknowledges the programming provided hereunder by Programmer will be in
Spanish. Licensee represents and warrants to Programmer that such change in
format will not cause Programmer to have to compensate any party to any Barter
Agreement for any unused advertising under such Barter Agreement.
5. Licensee's Authority. Notwithstanding anything to
the contrary in this Agreement, Licensee shall have full authority and power
over the operation of the Station during the Term and the full responsibility
to comply in all material respects with the Communications Act and all FCC
rules and regulations. Notwithstanding the foregoing, Licensee shall have no
power to set the terms and conditions of employment for on-air personnel
utilized for programming broadcast on the Station originated by Licensee or
Programmer. Licensee shall retain the right to interrupt or preempt
Programmer's programming at any time if Licensee determines the programming is
not in the public interest or violates this Agreement, or in case of an
emergency
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or Emergency Broadcast System or any successor system ("EBS") activation, or
for the purpose of providing programming which Licensee in its sole discretion
determines to be of greater national, regional or local importance.
6. Advertising And Programming Revenues. Programmer
shall retain, and be entitled to receive, all revenues from the sale of
advertising time on programming broadcast on the Station. Licensee shall
provide to Programmer all revenues from the sale of advertising time on the
programming it provides for broadcast on the Station including without
limitation all revenues for sales of advertising time on programming provided
by Licensee pursuant to Section 1, 5 or 7 hereof.
7. Political Advertising. Programmer will provide, make
available to and shall sell time to political candidates from the time it
purchases from Licensee in material compliance with the Communications Act, and
the rules, regulations and policies of the FCC, including without limitation,
the equal time and lowest unit rate provisions of the Communications Act, and
will otherwise cooperate with Licensee, and provide information to Licensee, to
ensure compliance with the political broadcasting requirements of the
Communications Act and the FCC's rules and regulations. In the event that it
is necessary for Licensee to make time directly available to political
candidates in order to comply with the provisions of the Communications Act,
Programmer shall immediately relinquish such amounts of time as Licensee shall
require.
8. Licensee's Representations, Warranties and Covenants.
Licensee represents, warrants and covenants to Programmer as follows:
(a) Organization and Authorization. Licensee is
a corporation duly organized, validly existing and in good standing under the
laws of the State of California and has the requisite corporate power to carry
on its business as it is now being conducted. Licensee has the corporate power
and authority to enter into this Agreement, to perform its obligations
hereunder, and to consummate the transactions contemplated hereby. The
execution and delivery of this Agreement by Licensee and the consummation by it
of the transactions contemplated hereby have been duly authorized by all
necessary corporate action on the part of Licensee. This Agreement has been
duly executed and delivered by Licensee and constitutes a valid and binding
obligation of Licensee, enforceable against Licensee in accordance with its
terms.
(b) Music Licenses. Licensee shall maintain
licenses with BMI, ASCAP and SESAC.
(c) Correspondence. Licensee shall promptly
forward to Programmer any mail which it may receive from any agency of
government or any correspondence from members of the
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public relating to a material complaint regarding any of Programmer's
programming broadcast on the Station reasonably believed by Licensee to be
actionable at the FCC.
(d) Change in Call Letters. Upon request from
Programmer, Licensee shall file an application with the FCC to change the call
letters for the Station to letters requested by Programmer and shall prosecute
such application. Programmer shall pay all costs and expenses, including
attorneys' fees and costs, incurred by Licensee in connection with such
application promptly upon presentation of invoices for such costs and expenses.
9. Programmer's Representations, Warranties and
Covenants. Programmer represents, warrants and covenants to Licensee as
follows:
(a) Organization and Authorization. Programmer
is a corporation duly organized, validly existing and in good standing under
the laws of the State of Nevada and has the requisite corporate power to carry
on its business as it is now being conducted. Programmer has the corporate
power and authority to enter into this Agreement, to perform its obligations
hereunder, and to consummate the transactions contemplated hereby. The
execution and delivery of this Agreement by Programmer and the consummation by
it of the transactions contemplated hereby have been duly authorized by all
necessary corporate action on the part of Programmer. This Agreement has been
duly executed and delivered by Programmer and constitutes a valid and binding
obligation of Programmer, enforceable against Programmer in accordance with its
terms.
(b) Compliance. All of the programming,
advertising and promotional material Programmer broadcasts on the Station shall
comply in all material respects with all applicable laws, rules, regulations
and policies, including, without limitation, the Communications Act and the
rules and regulations of the FCC, and the reasonable standards established by
Licensee. The performing rights to all music contained in broadcast material
supplied hereunder by Programmer shall be licensed by BMI, ASCAP, or SESAC, in
the public domain, controlled by Programmer, or cleared at the source by
Programmer. Programmer shall provide programming hereunder for at least the
number of hours necessary to enable Licensee to meet the minimum hours of
operation for the Station required under the FCC's rules and regulations.
(c) Station Identification. Programmer shall
cooperate with Licensee to ensure that all required Station Identifications
announcements are broadcast as required by the FCC rules and regulations.
Programmer shall, at Licensee's request, have its employees record, on a form
to be supplied by Licensee and at intervals to be specified by Licensee,
information concerning transmitter operating characteristics,
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tower lighting information, and EBS test information and shall transmit weekly
EBS tests under Licensee's supervision.
(d) Documentation. Programmer shall provide to
Licensee monthly documentation of the programs it has broadcast which address
problems, needs and interests of the community for the Station. Programmer
shall provide local news and public affairs programming relevant to the
community for the Station and of sufficient quality to assist Licensee in
satisfying its obligations to respond to the needs of such communities.
(e) Emergency Broadcasting. Programmer shall
cooperate with Licensee to ensure that all required EBS announcements are
broadcast as required by the FCC rules and regulations.
(f) Information. Programmer will promptly
prepare and furnish to Licensee such information, records and reports regarding
the programming provided by Programmer hereunder in sufficient detail as is
necessary to enable Licensee to comply with all rules and policies of the FCC
or any other government agency.
(g) Correspondence. Programmer shall promptly
forward to Licensee any mail which it may receive from any agency of government
or any correspondence from members of the public relating to a material
complaint regarding the Station or to any of Programmer's programming broadcast
on the Station reasonably believed by Programmer to be actionable at the FCC.
10. Certification Regarding Market Overlap. Programmer
hereby certifies that this Agreement complies with the provisions of paragraphs
(a)(1) and (e)(1) of Section 73.3555 of the FCC's rules.
11. Right to Use Programs. The right to use Programmer's
programs and to authorize their use in any manner and in any media whatsoever
shall be, and remain, vested in Programmer.
12. Payola and Conflicts of Interest. Programmer agrees
that it will not accept, and will not permit any of its employees to accept,
any consideration, compensation, gift, or gratuity of any kind whatsoever,
regardless of its value or form, including, but not limited to, a commission,
discount, bonus, material, supplies, or other merchandise, services, or labor
(collectively, "Consideration"), whether or not pursuant to written contracts
or agreements between Programmer and merchants or advertisers, unless the payor
is identified in the program for which the Consideration was provided as having
paid for or furnished such Consideration, in accordance with the Communications
Act and FCC requirements. Programmer agrees to execute, and to have each of
its employees who are in a position to determine the content of programming to
be broadcast on the
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Station execute, at least once every six (6) months, payola Affidavits in a
form reasonably requested by Licensee and Programmer agrees to deliver the
originals of all such Affidavits to Licensee as expeditiously as possible
following their execution.
13. Indemnification.
(a) By Programmer. Programmer shall indemnify
and hold Licensee and its attorneys, affiliates, representatives, agents,
officers, directors, successors or assigns harmless from and against any
Damages resulting from, arising out of or incurred with respect to: (i) a
breach of any representation, warranty, covenant or agreement of Programmer
contained herein, (ii) any programming provided to Licensee by Programmer
pursuant to this Agreement, including, without limitation, liabilities for
copyright or proprietary right infringement, libel, slander, defamation, or
invasion of privacy, or (iii) any damage to the facilities of Licensee
attributable to actions or omissions of employees, representatives or agents of
Programmer.
(b) Indemnification by Licensee. Licensee shall
indemnify and hold Programmer and its attorneys, affiliates, representatives,
agents, officers, directors, successors or assigns harmless from and against
any Damages resulting from, arising out of, or incurred with respect to: (i) a
breach of any representation, warranty, covenant or agreement of Licensee
contained herein, or (ii) any programming originated by Licensee for broadcast
on the Station, including, without limitation, liabilities for copyright or
proprietary right infringement, libel, slander, defamation, or invasion of
privacy, .
(c) Procedures.
(i) Promptly after the receipt by a
party (the "Indemnified Party") of notice of (A) any claim or (B) the
commencement of any action or proceeding which may entitle such party to
indemnification under this Section, such party shall give the other party (the
"Indemnifying Party") written notice of such claim or the commencement of such
action or proceeding and shall permit the Indemnifying Party to assume the
defense of any such claim or any litigation resulting from such claim. The
failure to give the Indemnifying Party timely notice under this subsection
shall not preclude the Indemnified Party from seeking indemnification from the
Indemnifying Party unless, and then only to the extent, such failure has
materially prejudiced the Indemnifying Party's ability to defend the claim or
litigation. If such claim does not arise from the claim of a third party, the
Indemnifying Party shall have 30 days after such notice to cure the conditions
giving rise to such claim to the Indemnified Party's satisfaction. Failure by
the Indemnifying Party to notify an Indemnified Party of its election to defend
any such claim or action by a third party within 30 days after notice thereof
shall have been given to the Indemnifying Party shall be
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deemed a waiver by the Indemnifying Party of its rights to defend such claim or
action.
(ii) If the Indemnifying Party assumes
the defense of any such claim or litigation resulting therefrom with counsel
reasonably acceptable to the Indemnified Party, the Indemnified Party may
participate, at its expense, in the defense of such claim or litigation
provided that the Indemnifying Party shall direct and control the defense of
such claim or litigation. The Indemnified Party shall cooperate and make
available all books and records reasonably necessary and useful in connection
with the defense. Except with the prior written consent of the Indemnified
Party, the Indemnifying Party shall not, in the defense of such claim or any
litigation resulting therefrom, consent to the entry of any judgment (other
than a judgment of dismissal on the merits without cost) or enter into any
settlement which does not include as an unconditional term thereof the giving
by the claimant or the plaintiff to the Indemnified Party of a release from all
Damages in respect of such claim or litigation.
(iii) If the Indemnifying Party shall
not assume the defense of any such claim or litigation resulting therefrom, the
Indemnified Party may, but shall have no obligation to, defend against such
claim or litigation in such manner as it may deem appropriate; provided,
however, the Indemnified Party may not compromise or settle such claim or
litigation without the Indemnifying Party's prior written consent.
(d) AFTRA Claims.
(i) If (A) any claim against Programmer is
made that Programmer is subject to or bound by the Agreement dated March 17,
1995, between Licensee and Los Angeles Local, American Federation of Television
and Radio Artists (the "AFTRA Contract") due to the existence of this
Agreement, including a claim that Programmer has repudiated the AFTRA Contract
during the term hereof by not complying with the terms of the AFTRA Contract,
(B) any claim is made against Programmer that Programmer is obligated to
bargain with the American Federation of Television and Radio Artists ("AFTRA")
as a result of the existence of the AFTRA Contract and the existence of this
Agreement, or (C) any claim is made against Programmer which is based on a
breach of the AFTRA Contract by Licensee, Licensee shall retain counsel
mutually acceptable to Licensee and Programmer (the parties agree Jeffer,
Mangels, Xxxxxx & Xxxxxxx LLP is acceptable to both parties) to defend
Programmer (and Licensee, if applicable) against such claim, including acting
as defense counsel in any lawsuit, arbitration or administrative proceeding and
prosecuting any appeals. In addition, if during the term of this Agreement
AFTRA conducts a strike against the Station, KLVE-FM, Los Angeles, California
or KTNQ- AM, Los Angeles, California (the Stations, KLVE-FM and KTNQ-AM
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collectively are referred to herein as the "Subject Stations") or pickets or
handbills the Subject Stations' premises, upon request from Programmer Licensee
shall retain counsel mutually acceptable to Licensee and Programmer (the
parties agree Jeffer, Mangels, Xxxxxx & Marmaro LLP is acceptable to both
parties) to take affirmative legal action, including seeking an injunction,
against AFTRA to cause AFTRA to cease or limit such strike, picketing or
handbilling. Licensee shall pay all fees and costs of counsel retained under
this subsection. Programmer shall direct and control the defense of the claim
or affirmative legal action, as the case may be; provided, however, unless
Programmer obtains the prior written consent of Licensee, Programmer may not
enter into any settlement which imposes liability on Licensee or which does not
include a waiver of all claims against Licensee for a failure by Programmer to
comply with the AFTRA Contract.
(ii) If it is determined, by an order
or decree of an arbitrator, court or administrative agency of competent
jurisdiction in an action for which Licensee is required to retain counsel
under Section 13(d)(i) that is not subject to appeal or further administrative
review or pursuant to a settlement approved by Licensee and Programmer (such
order, decree or settlement is referred to herein as the "Final Order"), that
any on-air staff announcer at any of the Subject Stations, (collectively, the
"Announcers") is covered by the AFTRA Contract or that Programmer is liable for
the payment of any wages, including payment for sick days and accrued but
unused vacation, reimbursement of business expenses, or contributions to AFTRA
Health and Retirement Funds under the AFTRA Contract as a result of a claim
described in Section 13(d)(i)(C), Licensee agrees to pay to Programmer 50% of
the amount equal to the excess of (A) the minimum wages, including payment for
sick days and accrued but unused vacation, and reimbursement of business
expenses which must be paid by Programmer under the AFTRA Contract to such
Announcer for the period beginning on the Effective Date and ending on March
16, 1998 (the "Union Period") and all contributions which must be made by
Programmer to AFTRA Health and Retirement Funds under the AFTRA Contract during
the Union Period pursuant to the Final Order, over (B) all wages and
reimbursement of business expenses which would have been paid by Programmer to,
and all contributions to pension or similar retirement funds which would have
been made by Programmer on behalf of, such Announcer during the Union Period if
he was not covered under the AFTRA Contract (for purposes of this clause B, an
Announcer's wages from Programmer, Programmer's policies of reimbursement for
business expenses and contributions by Programmer to pension or similar
retirement funds in effect on the date of the Final Order shall be deemed to be
the wages which an Announcer would have received after the date of the Final
Order, the policy under which such Announcer would have received reimbursement
of business expenses after the date of the Final Order and the retirement
contributions which would have been made after the date of the Final Order).
In addition, if it is determined by a Final Order that any Subject Station is
obligated
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to negotiate with AFTRA concerning a collective bargaining agreement covering
any Announcers, Licensee agrees to pay to Programmer 50% of the amount equal to
the excess of (1) the minimum wages, including payment for sick days and
accrued but unused vacation, and reimbursement of business expenses which must
be paid by Programmer to such Announcers under the new collective bargaining
agreement with AFTRA for the Union Period and all contributions which must be
made by Programmer to AFTRA Health and Retirement Funds under such new
collective bargaining agreement during the Union Period, over (2) all wages and
reimbursement of business expenses which would have been paid by Programmer to,
and all contributions to pension or similar retirement funds which would have
been made by Programmer on behalf of, such Announcers during the Union Period
if such new collective bargaining agreement had not been entered into (for
purposes of this clause 2, an Announcer's wages from Programmer, Programmer's
policies of reimbursement for business expenses and contributions by Programmer
to pension or similar retirement funds in effect on the date of the Final Order
shall be deemed to be the wages which an Announcer would have received after
the date of the Final Order, the policy under which such Announcer would have
received reimbursement of business expenses after the date of the Final Order
and the retirement contributions which would have been made after the date of
the Final Order); provided, however, the amount payable by Licensee under this
sentence shall not exceed the amount which Licensee would have paid under this
sentence if the Subject Station was subject to the AFTRA Contract instead of
the new collective bargaining agreement.
(iii) Programmer shall take all
reasonable action, which does not involve Programmer incurring additional costs
or assuming any actual or potential liabilities, suggested by counsel for
Licensee to protect against a claim by AFTRA that any Announcer is covered by
the AFTRA Contract.
(e) Survival. The indemnity obligations of
Programmer and Licensee under this Section 13 shall survive any termination of
this Agreement, including a termination as a result of the closing of the
transactions contemplated by the Asset Purchase Agreement attached as an
exhibit to the Option Agreement, and shall continue until the expiration of all
applicable statutes of limitations.
14. Termination.
(a) This Agreement may be terminated only as
follows, provided the party seeking to terminate is not then in material
default or breach of this Agreement, the Asset Purchase Agreement or the Option
Agreement, as follows:
(i) Only after compliance with
Section 16(a), by 30 days written notice from Licensee or Programmer, if this
Agreement is declared invalid or illegal in whole or
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material part by an order or decree of the FCC or any other administrative
agency or court of competent jurisdiction which is not subject to appeal or
further administrative or judicial review;
(ii) By written notice from either
party, if the other party is in material breach of its obligations hereunder
and has failed to cure such breach within thirty (30) days of delivery of
written notice from the non-breaching party; provided, however, if the breach
is a failure by Programmer to pay the amounts due under Section 3, then
Licensee may terminate this Agreement if Programmer has not paid the amount due
within five business days of delivery of written notice;
(iii) By mutual written consent of the
parties;
(iv) Only after compliance with
Section 16(a), by 30 days written notice from Licensee or Programmer if there
has been a change in FCC rules or policies that would cause this Agreement or
any material provision hereof to be in violation thereof and such change is not
subject to appeal or further administrative or judicial review; or
(v) By written notice from Licensee
or Programmer, upon termination of the Option Agreement.
(b) Survival. The provisions of Sections 3 (only
with respect to expenses incurred prior to termination and any payments with
respect to terminated employees under Section 3(b)(iii)), 4 (only with respect
to obligations incurred prior to termination), 6, 13 and 18 shall survive a
termination of this Agreement.
15. Use of Assets. Licensee hereby grants to Programmer
an unlimited license to use the term "KSCA(FM)" in conjunction with programming
aired on the Station. Licensee agrees to permit Programmer to have access to
the equipment for the Station when necessary in connection with airing
programming on the Station.
16. Regulatory Matters.
(a) Governmental Action. If this Agreement could
be terminated under Section 14(a)(i) or 14(a)(iv) after compliance with this
Section 16(a), then the parties shall use good faith efforts to reasonably
modify this Agreement in a manner that will cure such invalidity, illegality or
violation and that will maintain a balance of the material benefits and burdens
to Licensee and Programmer comparable to the balance of the material benefits
and burdens to Licensee and Programmer provided in this Agreement in its current
form. If modifying this Agreement in order to effect such cure without
materially changing the balance of benefits and burdens to Licensee and
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Programmer provided in this Agreement in its current form is not possible, then
either party may terminate this Agreement in accordance with Section 14(a)(i) or
14(a)(iv) if such party is in compliance with such Section.
(b) FCC Matters. Should a change in FCC policy
or rules make it necessary to obtain the FCC's consent to the implementation,
continuation, or further effectuation of any element of this Agreement,
Licensee and Programmer shall use their commercially reasonable efforts (each
party to bear its own costs) diligently to prepare, file, and prosecute before
the FCC all petitions, waiver requests, applications, amendments, rulemaking
comments, and other documents necessary to secure and/or to retain the FCC's
approval of all aspects of this Agreement. Notwithstanding anything in this
Agreement to the contrary, no joint filing shall be made with the FCC by
Licensee and Programmer with respect to this Agreement, unless both parties
hereto shall have reviewed said filing and shall have consented to its
submission to the FCC; and neither Licensee nor Programmer shall make any
unilateral filing with the FCC with respect to this Agreement, unless the party
intending to make such filing shall first have consulted with the other party
concerning such filing.
17. Definitions. The following terms shall have the
following meaning:
"Communications Act" shall mean the Communications Act of 1934,
as amended.
"Damages" shall mean any liability, loss, cost, expense,
judgment, order, settlement, obligation, deficiency, claim, suit, proceeding
(whether formal or informal), investigation, lien, encumbrance, security
interest, mortgage, pledge or other damage, including, without limitation,
attorney's fees and expenses. Notwithstanding the foregoing, "Damages" shall
not include any consequential damages, including, but not limited to, loss of
future revenue or income, cost of capital or loss of business reputation or
opportunity.
"Effective Date" shall mean the date after the Initial Payment
Date (as defined in the Option Agreement) specified by Programmer in a notice
delivered to Licensee, which date shall not be more than 14 days after the
Initial Payment Date (as defined in the Option Agreement).
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Each of the following terms shall have the meanings set forth
in the Section opposite such term:
Term Section
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Agreement Preamble
AFTRA 13(d)(i)
AFTRA Contract 13(d)(i)
Announcers 13(d)(ii)
Asset Purchase Agreement 2
Consideration 12
EBS 5
FCC Recital A
Final Order 13(d)(ii)
Indemnified Party 13(c)
Indemnifying Party 13(c)
Licensee Preamble
Option 5
Option Agreement Recital B
Programmer Preamble
Station Recital A
Subject Station 13(d)(i)
Term 2
Union Period 13(d)(ii)
18. Miscellaneous.
(a) Force Majeure. Notwithstanding anything
contained in this Agreement to the contrary, no party shall be liable to
another party for a failure to perform any obligation under this Agreement, if
such party shall be prevented from such performance by reason of fires,
strikes, labor unrest, embargoes, civil commotion, rationing, or other orders
or requirements, acts of civil or military authorities, acts of God, or other
contingencies beyond the reasonable control of the parties, including equipment
failures, and all provisions herein requiring performance within a specified
period shall be deemed to have been modified in order to toll or to extend the
period in which such performance shall be required, in order to accommodate the
period of the pendency of such contingency which shall prevent such
performance. This provision is subject to the provisions of the Asset Purchase
Agreement, if executed, which provide for a reduction of the purchase price in
certain circumstances relating to preemption of programming and the Station's
inability to broadcast.
(b) Benefit and Assignment. This Agreement
shall be binding upon and shall inure to the benefit of the parties hereto and
their respective successors and permitted assigns. No party may voluntarily or
involuntarily assign its interest under this Agreement without the prior
written consent of the other party, which consent shall not be unreasonably
withheld. Notwithstanding the foregoing, Programmer may assign its rights
hereunder to any permitted assignee of the optionee
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under the Option Agreement or buyer under the Purchase Agreement. No
assignment by Programmer hereunder shall relieve Programmer of its obligations
hereunder.
(c) 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.
(d) Governing Law. This Agreement and the
rights of the parties hereto shall be governed by, and construed in accordance
with, the laws of the State of California, without giving effect to the choice
of law principles thereof.
(e) Amendment. This Agreement may not be
amended except by an instrument in writing signed on behalf of each of the
parties hereto.
(f) Severability. In the event that any one or
more of the provisions contained in this Agreement or in any other instrument
referred to herein, shall, for any reason, be held to be invalid, illegal or
unenforceable in any respect, then to the maximum extent permitted by law, such
invalidity, illegality or unenforceability shall not affect any other provision
of this Agreement or any other such instrument.
(g) Attorneys' Fees. Should any party hereto
institute any action or proceeding at law or in equity to enforce any provision
of this Agreement, including an action for declaratory relief, or for damages
by reason of an alleged breach of any provision of this Agreement, or otherwise
in connection with this Agreement, or any provision hereof, the prevailing
party shall be entitled to recover from the losing party reasonable attorneys'
fees and costs for services rendered to the prevailing party in such action or
proceeding.
(h) Multiple Counterparts. This Agreement may
be executed in two or more counterparts, each of which shall be deemed an
original, but all of which shall constitute one and the same instrument.
(i) Notices. Unless applicable law requires a
different method of giving notice, any and all notices, demands or other
communications required or desired to be given hereunder by any party shall be
in writing. Assuming that the contents of a notice meet the requirements of
the specific Section of this Agreement which mandates the giving of that
notice, a notice shall be validly given or made to another party if served
either personally or if deposited in the United States mail, certified or
registered, postage prepaid, or if transmitted by telegraph, telecopy or other
electronic written transmission device or if sent by overnight courier service,
and if addressed to the applicable party as set forth below. If such notice,
demand or other communication is served personally, service shall be
conclusively deemed given at the time of such personal service. If such notice,
demand or other communication is given by mail, service shall be conclusively
deemed given seventy-two (72) hours after the deposit thereof in the United
States mail. If such
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notice, demand or other communication is given by overnight courier, or
electronic transmission, service shall be conclusively deemed given at the time
of confirmation of delivery. The addresses for the parties are as follows:
If to Programmer:
Clear Channel Radio, Inc.
000 Xxxxxxx Xxxxx, Xxxxx 000
Xxx Xxxxxxx, Xxxxx 00000
Attention: Xx. Xxxx X. Xxxx
Telecopier No.: (000) 000-0000
If to Licensee:
0000 Xxxxxx Xxxxxx
Xxxxxx Xxxx, Xxxxxxxxxx 00000
Attention: Xxx. Xxxxxx Xxxxx
Telecopier: (000) 000-0000
with a copy to:
Jeffer, Mangels, Xxxxxx & Marmaro LLP
2121 Avenue of the Stars, Xxxxx Xxxxx
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxxxx X. Xxxxx, Esq.
Telecopier No.: (000) 000-0000
Either party hereto may change its address for the purpose of receiving
notices, demands and other communications as herein provided, by a written
notice given in the aforesaid manner to the other party hereto.
(j) Waivers. No waiver of any of the
provisions of this Agreement shall be deemed or shall constitute a waiver of
any other provision hereof (whether or not similar), nor shall such waiver
constitute a continuing waiver. No waiver shall be binding unless executed in
writing by the party making the waiver.
(k) No Third Party Beneficiaries. Nothing
herein expressed or implied is intended or shall be construed to confer upon or
give to any person or entity other than the parties hereto and their successors
or permitted assigns, any rights or remedies under or by reason of this
Agreement.
(l) Entire Agreement. This Agreement and the
Exhibits hereto constitute the entire agreement and understanding of the
parties hereto relating to the matters provided for herein and supersede any
and all prior agreements, arrangements,
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negotiations, discussions and understandings relating to the matters provided
for herein. Notwithstanding the foregoing, this Agreement shall not supersede
the Option Agreement.
(m) Rule of Construction. Each party and
counsel for each party have reviewed this Agreement. The parties hereto hereby
agree that the normal rule of construction, which requires a court to resolve
any ambiguities against the drafting party, shall not apply in interpreting
this Agreement.
(n) Exhibits. Each Exhibit attached hereto is
incorporated herein by reference.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement
as of the date and year first above written.
GOLDEN WEST BROADCASTERS
By:/s/ Xxxxxxxxxx Xxxxx
------------------------
Xxxxxxxxxx Xxxxx
Executive Vice President
CLEAR CHANNEL RADIO, INC.
By:/s/ Xxxxxxx X. Xxxxx
-----------------------
Name: Xxxxxxx X. Xxxxx
Title: Vice President
Legal Affairs
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LIST OF EXHIBITS
A Budget
B Barter Agreements
C Agreements to be Performed
