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