TIME BROKERAGE AGREEMENT
This Time Brokerage Agreement (this "Agreement") is entered into by
and between SBT COMMUNICATIONS STATUTORY TRUST, a Connecticut statutory trust
("Licensee") and SUNBURST DALLAS, LP, a Delaware limited partnership
("Broker") as of the 22nd day of September, 1999.
W I T N E S S E T H:
WHEREAS, Licensee has available broadcasting time and is engaged in
the business of radio broadcasting on radio station KLTY(FM), operating on
94.1 MHZ, licensed to Fort Worth, Texas (the "Station"); and
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, Licensee is the holder of all licenses issued by the Federal
Communications Commission (the "Commission") used in the operation of the
Station;
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
facilities available to Broker and to broadcast on the Station, or cause to
be broadcast, Broker's programs.
2. TERM OF AGREEMENT. This Agreement shall commence at 12:01
a.m., Dallas, Texas time, on the date hereof (the "Effective Date"), and,
subject to the terms and conditions of this Agreement, shall continue until
the earlier of (i) December 31, 1999 and (ii) the seventh day after Broker
advises Licensee in writing that it elects to terminate this Agreement.
3. PAYMENTS.
3.1 AMOUNT OF PAYMENTS. Broker hereby agrees to pay
Licensee for the broadcast of the programs hereunder the "Monthly Sum," which
shall mean that amount determined for the month in question that is the
product of multiplying (a) the actual number of days in that month that fall
during the term of this Agreement (as provided in Section 2 hereof) times (b)
the Applicable Daily Rate (herein so called) for the particular month in
question, as follows:
APPLICABLE PERIOD APPLICABLE DAILY RATE
----------------------------------------------------------------------
September 22, 1999 $ 0.00
From September 23, through September 30, 1999 $12,947
October 1, 1999 through October 31, 1999 $13,837
November 1, 1999 through November 30, 1999 $14,728
December 1, 1999 through December 31, 1999 $15,618
3.2 MANNER OF PAYMENTS. Monthly payments shall be due and
payable in full in advance on the first business day of each month during the
term hereof with the first payment hereunder paid upon the execution of this
Agreement and shall be prorated for partial months. 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. If Broker shall have produced and
made available programming to air on the Station as provided herein and such
programming does not air due to Licensee preempting such programming other in
accordance with Section 10 or 11 below, or if for any reason Licensee is
unable to broadcast such programming through no fault of Broker, or if this
Agreement is terminated for any reason (other than a breach of this Agreement
by Broker) prior to the end of a month, then Broker shall receive a payment
credit to be determined by multiplying (i) the Monthly Sum by (ii) the ratio
of the amount of time not aired to the total number of broadcast hours
allotted to Broker each month pursuant to Section 5.1 below. To the extent
the payment credit is not used by the end of the term as described in Section
2, Licensee shall pay the amount thereof to Broker within ten (10) days
following the end of the term.
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 accordance with the requirements and
regulations of the Commission. All programs shall be prepared and presented
in conformity with the regulations of the Commission. 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 Licensee.
5. STATION FACILITIES.
5.1 OPERATION OF STATION. Throughout the term of this
Agreement, Licensee shall make the Station available to the Broker for
operation with the authorized facilities 24 hours a day, seven days a week,
except for (i) at least one hour each week on Sunday morning between the
hours of 7:00 a.m. and 11:00 a.m. during which Licensee will be responsible
for public affairs programming dealing with issues affecting the Station's
service area or at such other time as requested by Broker and agreeable to
Licensee and (ii) downtime occasioned by routine maintenance not to exceed
two hours each Sunday morning between the hours of 1:00 a.m. and 5:00 a.m.
Any maintenance work affecting the operation of the Station at full power
shall be scheduled upon at least 48 hours' prior notice with the agreement of
the Broker, such agreement not to be unreasonably withheld. It is further
understood and agreed that Licensee shall continue to retain full authority
and control over operation of the Station during the course of this
Agreement; to be responsible for assessment of the needs and interests of the
community; and to determine that the programs presented are responsive to
such needs and interests, and that all programming continues to meet all
federal, state and local laws, including those that govern political
broadcast time, presentation of lottery material, proper sponsor
identification, and other programming in the public interest. Broker also
agrees that all such programming as presented by Broker will be in full
compliance with all such applicable rules and regulations. Licensee shall
also continue to be responsible for maintenance of the Station's public file
in good order as required by the Commission, including timely placement of a
copy of this Agreement in that file; to prepare and timely file in such file
the quarterly issues/programs list as required by the Commission's rules; to
timely file with the Commission all required reports or other records as
required by the Commission; and to otherwise comply in all respects with the
Commission rules and regulations, including those rules and regulations
regarding requests for political advertising. Broker agrees to cooperate
fully in the gathering, compilation and completion of all such reports as may
be required by Licensee.
5.2 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 authorized facilities, Licensee shall immediately notify
Broker, and shall undertake (or authorize Broker to undertake on Licensee
behalf and at Licensee's expense) such repairs as necessary to restore the
full-time operation of the Station with its authorized facilities as soon as
practicable.
5.3 STUDIO LOCATION. Licensee shall maintain a main studio
capable of providing a broadcast quality signal to the Station's transmission
facility, such main studio to be located in compliance with applicable
Commission regulations.
5.4 TRANSMISSION FACILITY. Licensee shall operate the
Station's transmission facility in accordance with the authorizations issued
to Licensee by the Commission.
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.
7. PROGRAMMING AND OPERATIONS STANDARDS. Broker understands that
broadcast program content must comply with certain proscriptions including
but not limited to those governing the broadcast of obscenity and indecency;
presentation of contests; lottery information; credit terms; broadcast of
telephone conversations; and political equal access and covenants that any
such programming supplied by Broker will be in full compliance with such
restrictions. In addition, Broker will immediately notify Licensee of any
violation of any such restriction that takes place and agrees to hold
Licensee harmless for any damages, fines or other liability or loss that
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might result from any such broadcast program. Broker further agrees to
cooperate fully with Licensee in the compliance with the Commission's
applicable rules and regulations that govern sale and placement of political
advertising.
8. RESPONSIBILITY FOR EMPLOYEES AND EXPENSES.
8.1 EMPLOYEES. Broker shall employ and be responsible for
the salaries, taxes, insurance and related costs for all personnel used in
the production and transmission of its programming (including without
limitation salespeople, traffic personnel, board operators and programming
staff). Broker agrees to abide by any and all legal provisions relating to
its own employees, including any equal employment policies contained in Title
VII of the CIVIL RIGHTS ACT OF 1964 or in any other applicable federal, state
or local statute or regulation and any rule or policy applied or enforced by
the Equal Employment Opportunity Commission or by the Commission, as
applicable. Licensee will provide and be responsible for the Station
personnel specified in Section 10 hereof. All personnel shall be subject to
the overall supervision of Licensee consistent with the Broker's right to the
use of the Station's facilities as provided hereunder.
8.2 OPERATING EXPENSES. Broker shall be responsible for all
costs associated with the production and delivery to the Station's
transmitter site of Broker's programming and shall also pay for all telephone
calls associated with production and listener responses, for all fees to
ASCAP, BMI and SESAC, license fees and for any other copyright fees
attributable to its programming broadcast or revenues generated on the
Station.
8.3 TRANSMITTER SITE EXPENSES. Licensee shall remain
responsible for the costs associated with the transmission of all programming
at the Station's transmitter site (including but not limited to rent,
utilities, taxes and insurance).
9. ADVERTISING AND PROGRAM REVENUES. Broker shall retain all
revenues for the sale of advertising time on the programs it delivers to the
Station and may sell such advertising in combination with the sale of
advertising on any other broadcast stations of its choosing. Licensee shall
retain the revenue from the sale of any advertising on the Station on
programs not produced or delivered to it by Broker. Notwithstanding any
other provision of this Agreement to the contrary (including the provisions
of Section 3.2 hereof), if Licensee shall preempt Broker's programming with
Licensee's programming for any reason other than Broker's programming being
in violation of Commission rules and policies, then Broker shall receive a
payment credit equal to twice the payment credit computed in the manner
provided in Section 3.2.
10. CONTROL 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
provide and pay for a management level employee and another employee who
shall report solely to and be accountable solely to Licensee and who shall
direct the day-to-day operation of the Station. 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 by Licensee to be of greater national,
regional or local interest, and the right to take any other actions necessary
for compliance with the laws of the United States; the State of Texas; the
rules, regulations, and policies of the Commission (including the prohibition
on unauthorized transfers of control); and the rules, regulations and
policies of other federal governmental authorities. From time to time as
requested by Licensee, Broker shall provide Licensee with information to
enable Licensee to prepare records, reports and logs required by the
Commission or other local, state or federal governmental agencies.
11. 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.
12. 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
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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 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 Section 3 calculated upon the length of time
during which the failure or impairment exists or continues.
13. RIGHT TO USE THE PROGRAMS AND CALL LETTERS. The right to use
the programs produced by Broker and to authorize their use in any manner and
in any media whatsoever shall be, and remain, vested solely in Broker.
Broker shall retain all copyrights to programs, slogans, trade names, logos
and all other rights associated with the programs produced by Broker.
Licensee hereby grants to Broker an irrevocable license for the term of this
Agreement to use the call letters "KLTY-FM" or "KLTY" in conjunction with the
programming aired on the Station. Licensee further agrees that during the
term of this Agreement, it will not, without the consent of Broker, (1) apply
to the Commission to change the Station's call letters from KLTY, or (2)
consent to the use of the call sign KLTY by any other entity. Licensee
acknowledges that at the end of the term hereof, Broker intends to move its
programming (broadcast on the Station during the term hereof) to radio
station KRJT-FM, operating on 100.7 MHZ, presently licensed to Bowie, Texas
("100.7"). Accordingly, it is the agreement of Licensee and Broker that
effective as of the end of the term of this Agreement, Licensee shall have
made available the "KLTY" call letters for Broker by timely filing and
diligently prosecuting an application to change the "KLTY" call letters for
the Station to another selected by Licensee so that Broker can at that same
time apply to the Commission for a change of the call letters for 100.7 from
"KRJT-FM" to "KLTY." Licensee agrees to coordinate with Broker in the filing
and prosecution of all applications necessary to effect the call letter
"transfer" described above as close to the end of the term hereof as is
reasonably possible.
14. 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 the Commission's
requirements.
15. COMPLIANCE WITH LAW. Broker agrees that, throughout the term
of this Agreement, Broker will comply with all laws and regulations
applicable in the conduct of Licensee's business and Broker acknowledges that
Licensee has not urged, counseled or advised the use of any unfair business
practice. In the event that any new law or regulation is adopted which
results in a material change in the terms of this arrangement (for example,
but not limited to, a restriction on the number of hours which may be
brokered), the parties agree to negotiate in good faith to modify this
Agreement to conform as closely as possible to the interests of both Broker
and Licensee and, in the event of their inability to so modify the Agreement,
Broker or Licensee may without penalty terminate the Agreement on 60 days'
notice to the other or such earlier time as the Commission may require.
16. INDEMNIFICATION; WARRANTY.
16.1 BY BROKER. Broker will indemnify and hold Licensee and
its officers, directors, agents, stockholders, employees, and subsidiaries
harmless against all liability for libel, slander, illegal competition or
trade practice, infringement of trade marks, trade names, or program titles,
violation of rights of privacy, and infringement of copyrights and
proprietary rights resulting from the broadcast or programming furnished by
Broker. Further, Broker warrants that the broadcasting of its programs will
not knowingly violate any rights of others and Broker agrees to indemnify and
hold the Station, Licensee, and Licensee's 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 such programs. Licensee reserves the right
to refuse to broadcast any and all programs containing matter which is, or in
the reasonable opinion of Licensee may be, or which a third-party claims to
be, violative of any right of theirs or which may constitute a personal
attack as the term is and has been defined by the Commission.
16.2 BY LICENSEE. Licensee will indemnify and hold Broker
harmless against any and all liability for libel, slander, illegal
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competition or trade practice, infringement of trade marks, trade names, or
program titles, violation of rights of privacy, and infringement of
copyrights and proprietary rights arising from Licensee's preemption and
broadcast of Licensee's own programs. Without in any way limiting the rights
or remedies available to Broker for a breach of this Agreement by Licensee,
Licensee hereby agrees to indemnify and hold Broker free and harmless from
and against any and all loss, liability, damage or expense (including
reasonable attorneys' fees) arising from the breach of any of Licensee's
representations, warranties, agreements and covenants made in this Agreement.
16.3 GENERAL PROVISIONS. Broker's and Licensee's obligation
to hold each other harmless against the liabilities specified in this Section
16 shall survive any termination of this Agreement until the expiration of
all applicable statutes of limitation. Unless an indemnifying party assumes
the defense of a claim for which indemnity is sought hereunder on behalf of
the indemnified party, the indemnified party shall have the right to employ
its own counsel to conduct such defense (which shall be at the expense of the
indemnifying party). The indemnified party shall render to the indemnifying
party and its counsel such assistance as they may reasonably require in order
to ensure the proper and adequate defense of any claim for which indemnity is
sought hereunder. Neither party will settle any claim for which indemnity is
sought or owed under this Section 16 in a manner which imposes any cost or
penalty on the other party without the other party's prior written consent.
17. EVENTS OF DEFAULT; CURE PERIODS AND REMEDIES.
17.1 EVENTS OF DEFAULT. The following shall, after the
expiration of the applicable cure periods, constitute Events of Default under
the Agreement:
17.1.1 NON-PAYMENT. Broker's failure to timely pay the
consideration provided for in Section 3 hereof ("Payment Default").
17.1.2 DEFAULT IN COVENANTS. The default by either
party hereto in the observance or performance of any material covenant,
condition or agreement contained herein.
17.2 CURE PERIODS. An Event of Default shall not be deemed
to have occurred until 20 business days (five business days for Payment
Defaults) after the non-defaulting party has provided the defaulting party
with written notice specifying the event or events that if not cured would
constitute an Event of Default and specifying the actions necessary to cure
within such period, except for such Events of Default which threaten to
affect the validity of the Station's licenses which must be cured
immediately. Except in the event of a Payment Default or a default by
Licensee which results in Licensee's inability or unwillingness to make
available to Broker the Station's facilities as provided herein, this period
shall 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, except for such Events of Default which threaten to affect the
validity of the Station's licenses which must be cured immediately. The
defaulting party shall use its best efforts to cure any event which might
constitute an Event of Default.
17.3 TERMINATION UPON DEFAULT. If an Event of Default
occurs, the non-defaulting party may terminate this Agreement and receive
from the defaulting party such damages or other remedies as are available at
law or at equity.
17.4 LIABILITIES UPON TERMINATION. Broker shall be
responsible for all liabilities, debts and obligations of Broker accrued from
the purchase of air time and transmission facilities including, without
limitation, accounts payable, barter agreements and unaired advertisements.
Upon termination, Broker shall return to Licensee any equipment or property
of the Station used by Broker, its employees or agents, in substantially the
same condition as such equipment existed on the Effective Date, ordinary wear
and tear excepted.
18. TIME BROKERAGE CHALLENGE. If this Agreement is challenged at
the Commission, Licensee and Broker will jointly defend this Agreement. If
portions of this Agreement do not thereafter receive the approval of the
Commission staff, the parties shall reform this Agreement, or at Broker's
option and expense, seek reversal of the staff decision and approval from the
full Commission on appeal.
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19. 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.
20. 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.
21. 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.
22. 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.
23. 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. Licensee and Broker agree that in the event of an
assignment of the licenses of the Station to HBC License Corporation or any
other affiliate of Hispanic Broadcasting Corporation ("HBC"), Licensee will
assign and delegate to HBC, and HBC will accept and assume, all of the
Licensee's rights and obligations under this Agreement in respect of periods
on and after the date of such assignment, and HBC will thereby become the
Licensee hereunder.
24. 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.
25. NOTICES. All notices and other communications hereunder shall
be in writing and shall be deemed given if mailed by certified mail, return
receipt requested, or delivered by nationally recognized "next-day" delivery
service, to the parties at the addresses set forth below (or at such other
address for a party as shall be specified by like notice), or sent by
facsimile to the number set forth below (or such other number for a party as
shall be specified by proper notice hereunder):
If to Licensee prior to assignment to HBC:
SBT Communications Statutory Trust
c/o Drumcree Capital, Inc., Trustee
0000 Xxxxxx Xxxx Xxxxx, Xxxxx 000
Xxxxxxxx Xxxx, XX 00000
Attn: W. Xxxxxxxx Xxxxxxx
Fax: 000-000-0000
If to Licensee after assignment to HBC:
HBC License Corporation
0000 Xxx Xxxx Xxxxxx, Xxxxx 000
Xxxxxx, Xxxxx 00000
Attn: XxXxxxx X. Xxxxxxxx, Xx., President & CEO
Fax: (000) 000-0000
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If to Broker:
Sunburst Dallas, L.P.
1350 One Galleria Tower
00000 Xxxx Xxxx
Xxxxxx, Xxxxx 00000
Attn: Xxxx Xxxxxxx, President
Fax: (000) 000-0000
26. 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, modification or change of this
Agreement shall be valid unless by like written instrument.
27. 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.
28. INTENDED BENEFICIARIES. The rights and obligations contained
in this Agreement are hereby declared by the parties hereto to have been
provided expressly for the exclusive benefit of such entities as set forth
herein and shall not benefit, and do not benefit, any unrelated third parties.
29. MUTUAL CONTRIBUTION. The parties to this Agreement and their
counsel have mutually contributed to its drafting. Consequently, no
provision of this Agreement shall be construed against any party on the
ground that such party drafted the provision or caused it to be drafted or
the provision contains a covenant of such party.
30. FCC CERTIFICATION. Licensee hereby certifies that it will
maintain ultimate control over the Station's facilities, including
specifically control over station finances, personnel and programming.
Notwithstanding the foregoing, Licensee shall have no power to set the terms
and conditions of employment for on-air personnel utilized for or in
connection with programming broadcast on the Station originated by or in
conjunction with Broker. Broker hereby certifies that this Agreement
complies with Section 73.3555(a)(1) of the Commission's rules, 47 C.F.R.
73.3555(a)(1). In addition, neither Broker nor any person or entity
associated with Broker shall have the ability to set the terms and conditions
for on-air personnel utilized for programming originated by Licensee and
broadcast on the Station during the term of this Agreement.
[SIGNATURE PAGE FOLLOWS IMMEDIATELY]
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first above written.
Licensee:
SBT COMMUNICATIONS STATUTORY TRUST
By: Drumcree Capital, Inc., not in its
individual capacity, but solely as Trustee
By: /s/ W. Xxxxxxxx Xxxxxxx
------------------------------------
W. Xxxxxxxx Xxxxxxx
Its: President
SUNBURST DALLAS, LP
By Sunburst Dallas, Inc. (general partner)
By: /s/ Xxxx X. Xxxxxxx
-------------------------------------
Xxxx X. Xxxxxxx
Its: President
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