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Exhibit 10.4
TIME BROKERAGE AGREEMENT
TIME BROKERAGE AGREEMENT ("Agreement"), made this 8th day of May,
2000, by and between Xxxxxxxxx Communications, Inc., a Delaware corporation (the
"Licensee"), Spanish Broadcasting System of Los Angeles, Inc., a Delaware
corporation (the "Broker") and Spanish Broadcasting System, Inc., a Delaware
corporation (the "Parent").
WHEREAS, License will own and operate Radio Stations KFOX-FM, Redondo,
California; KREA-FM, Ontario, California; KSAH(AM), Universal City, Texas and
KXJO-FM, Alameda, California, pursuant to authorizations issued by the Federal
Communications Commission ("FCC").
WHEREAS, subject to the prior consent of the FCC, Licensee intends to
assign to Broker, the Stations' FCC licenses and certain other assets used in
the operation of the Stations.
WHEREAS, the Licensee wishes to retain Broker to provide programming
for the Stations that is in conformity with Stations' policies and procedures,
FCC policies for time brokerage arrangements, and the provisions hereof.
WHEREAS, Broker agrees to use the Stations to broadcast such
programming of its selection that is in conformity with all rules, regulations
and policies of the FCC, subject to Licensee's full authority to manage and
control the operation of the Stations.
WHEREAS, Broker and Licensee agree to cooperate to make this Agreement
work to the benefit of the public and both parties and as contemplated in this
Agreement.
WHEREAS, Parent and Licensee are concurrently herewith entering into a
Stock Purchase Agreement ("SPA").
NOW, THEREFORE, in consideration of the above recitals and mutual
promises and covenants contained herein, the parties, intending to be legally
bound, agree as follows:
SECTION 1. STATION AIR TIME
1.1 REPRESENTATIONS. Both Broker and Programmer 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 material agreement, contract or other obligation to
which either party is subject or by which it is bound.
1.2 EFFECTIVE DATE; TERM. The effective dates of this
Agreement shall be as follows:
KFOX-FM and KREA-FM: Upon consummation of the Asset Purchase
Agreement between the Licensee and Chagal Communications, Inc.
or Department of Justice ("DOJ") approval of the
Xxxx-Xxxxx-Xxxxxx filing - whichever is later;
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KSAH: Upon consummation of the Asset Purchase Agreement
between the License and Ganadores Corporation;
KXJO-FM: Upon consummation of the Asset Purchase Agreement
between the licensee and Citicasters Co.
The Agreement shall continue in force until terminated pursuant to the
provisions of Section 6 of this Agreement.
1.3. SCOPE. During the term of this Agreement and any renewal
thereof, Licensee shall make available to Broker broadcast time upon the
Stations as set forth in this Agreement. Broker shall deliver such programming,
at its expense, to the Stations' transmitter facilities or other authorized
remote control points as reasonably designated by Licensee. Subject to
Licensee's reasonable approval, as set forth in this Agreement, Broker shall
provide programming of Broker's selection complete with commercial matter, news,
public service announcements and other suitable programming to the Licensee up
to one hundred sixty-eight hours per week.
1.4 CONSIDERATION. As consideration for the air time made
available hereunder Broker shall make payments to Licensee as set forth in
ATTACHMENT I.
1.5 LICENSEE OPERATION OF STATIONS. Licensee will have full
authority, power and control over the management and operations of the Stations
during the term of this Agreement. Licensee will bear all responsibility for
Stations' compliance with all applicable provisions of the Communications Act of
1934, as amended (the "Act"), the rules, regulations and policies of the FCC and
other applicable laws. Licensee shall be solely responsible for and pay in a
timely manner all operating costs of the Stations, including but not limited to,
maintenance of the studios and transmitting facilities and costs of electricity,
except that Broker shall be responsible for the costs of its programming as
provided in Sections 1.7 and 2.3 hereof. Licensee shall employ at its expense
management level and other employees consisting of a General Manager and such
operational and other personnel as outlined in the budget previously provided to
Broker, who will direct the day-to-day operations of the Stations, and who will
report to and be accountable to the Licensee. Licensee shall be responsible for
the salaries, taxes, insurance and related costs for all personnel employed by
the Stations and shall maintain insurance satisfactory to Broker covering the
Stations' transmission facilities, and Broker shall be responsible for
reimbursing Licensee for such expenses. During the term of this Agreement,
Broker agrees to perform, without charge, routine monitoring of the Stations'
transmitter performance and tower lighting by remote control, if and when
requested by Licensee.
1.6 LICENSEE REPRESENTATION AND WARRANTIES. Licensee
represents and warrants as follows:
(a) Licensee owns and holds or will hold all licenses
and other permits and authorizations necessary for the operation of the
Stations, and such licenses, permits and
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authorizations are and will be in full force and effect throughout the term of
this Agreement. There is not now pending, or to Licensee's best knowledge,
threatened, any action by the FCC or by any other party to revoke, cancel,
suspend, refuse to renew or modify adversely any of such licenses, permits or
authorizations. Licensee is not in material violation of any statute, ordinance,
rule, regulation, policy, order or decree of any federal, state or local entity,
court or authority having jurisdiction over it or the Stations, which would have
an adverse effect upon the Licensee, the Stations or upon Licensee's ability to
perform this Agreement. All reports and applications required to be filed with
the FCC or any other governmental body have been, and during the course of the
term of this Agreement, will be filed in a timely and complete manner. During
the term of this Agreement, Licensee shall not dispose of, transfer, assign or
pledge any of Stations' assets and properties except with the prior written
consent of the Broker, if such action would adversely affect Licensee's
performance hereunder or the business and operations of Stations permitted
hereby.
(b) Licensee shall pay, in a timely fashion, all of
the expenses incurred in operating the Stations including salaries and benefits
of its employees, lease payments, utilities, taxes, programming expenses, etc.,
as set forth in ATTACHMENT II (except those for which a good faith dispute has
been raised with the vendor or taxing authority); shall provide Broker with a
certificate of such timely payment within thirty (30) days of the end of each
month; and shall be reimbursed by Broker for those payments listed on ATTACHMENT
II.
1.7 BROKER RESPONSIBILITY. Broker shall be solely responsible
for any expenses incurred in the origination and/or delivery of programming from
any remote location and for any publicity or promotional expenses incurred by
Broker, including, without limitation, ASCAP, BMI and SESAC music license fees
for all programming provided by Broker. Such payments by Broker shall be in
addition to any other payments to be made by Broker under this Agreement.
1.8 CONTRACTS. Broker will enter into no third-party
contracts, leases or agreements which will bind Licensee in any way except with
Licensee's prior written approval, such approval shall not be unreasonably
withheld.
1.9 STATION OPERATIONs. With respect to the operation of the
Stations, Licensee shall notify Broker prior to: (i) making any changes in
management personnel; (ii) entering into any material contractual obligations in
excess of $10,000 individually or $50,000 in the aggregate; (iii) purchasing
equipment with value in excess of $25,000; or (iv) making any other material
changes in the operation of the Stations.
SECTION 2. STATIONS' OBLIGATION TO COMMUNITIES OF LICENSE
2.1. LICENSEE AUTHORITY. Notwithstanding any other provision
of this Agreement, Broker recognizes that Licensee has certain obligations to
broadcast programming to meet the needs and interests of the respective
communities of license. From time to time, the Licensee shall air specific
programming on issues of importance to the respective local communities. Nothing
in this Agreement shall abrogate the unrestricted authority of the Licensee to
discharge its obligations to the public and to comply with the Act and the rules
and policies of the FCC.
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2.2. ADDITIONAL LICENSEE OBLIGATIONS. Although both parties
shall cooperate in the broadcast of emergency information over the Stations,
Licensee shall also retain the right to interrupt Broker's programming in case
of an emergency or for programming which, in the reasonable good faith judgment
of Licensee, is of greater local or national public importance. Licensee shall
also coordinate with Broker the Stations' hourly station identification and any
other announcements required to be aired by FCC rules. Licensee shall continue
to maintain a main studio, as that term is defined by the FCC, within each
Station's principal community contour, shall maintain its local public
inspection file in accordance with FCC rules, regulations and policies, and
shall prepare and place in such inspection file or files in a timely manner all
material required by Section 73.3526 of the FCC's Rules. Broker shall, upon
request by Licensee, provide Licensee with such information concerning Broker's
programs and advertising as is necessary to assist Licensee in the preparation
of such information. Licensee shall also maintain the stations' logs, receive
and respond to telephone inquiries, and control and oversee any remote control
point which may be established for the Stations.
2.3 RESPONSIBILITY FOR EMPLOYEES AND EXPENSES. Broker shall
employ and be solely responsible for the salaries, taxes, insurance and related
costs for all personnel used in the production of its programming (including,
but not limited to, salespeople, technical staff, traffic personnel, board
operators and programming staff). Licensee will provide and be responsible for
the Stations' personnel necessary for the broadcast transmission of its own
programs (including, without limitation, the Stations' General Manager and such
operational and other personnel as may be necessary or appropriate), and will be
responsible for the salaries, taxes, benefits, insurance and related costs for
all the Licensee's employees used in the broadcast transmission of its programs
and necessary to other aspects of Stations' operation subject to reimbursement
pursuant to Section 1.7(b) hereof. Whenever on the Stations' premises, all
personnel shall be subject to the overall supervision of Licensee's General
Manager.
SECTION 3. STATIONS' PROGRAMMING POLICIES
3.1 BROADCAST STATION PROGRAMMING POLICY STATEMENT. Licensee
has adopted and will enforce a Broadcast Station Programming Policy Statement
(the "Policy Statement"), a copy of which appears as ATTACHMENT III hereto and
which may be amended in a reasonable manner from time to time by Licensee upon
notice to Broker. Broker agrees and covenants to comply in all material respects
with the Policy Statement, to all rules and regulations of the FCC, and to all
changes subsequently made by Licensee or the FCC. 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 prepared and presented in conformity
with the rules, regulations and policies of the FCC and with the Policy
Statement set forth in Attachment III hereto. All advertising spots and
promotional material or announcements shall comply with applicable federal,
state and local regulations and policies and shall be produced in accordance
with quality standards established by Broker. If Licensee reasonably determines
that a program supplied by Broker is unsatisfactory or unsuitable or contrary to
the public interest, or does not comply with the Policy Statement it may, upon
prior written notice to Broker, suspend or cancel such program without liability
to Broker. Licensee will
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use all reasonable efforts to provide such written notice to Broker prior to the
suspension or cancellation of such program.
3.2 LICENSEE CONTROL OF PROGRAMMING. Broker recognizes that
the Licensee has full authority to control the operation of the Stations. The
parties agree that Licensee's authority includes but is not limited to the right
to reject or refuse such portions of the Broker's programming which Licensee
reasonably believes to be unsatisfactory, unsuitable or contrary to the public
interest. Broker shall have the right to change the programming supplied to
Licensee and shall give Licensee at least twenty-four (24) hours notice of
substantial and material changes in such programming.
3.3 BROKER COMPLIANCE WITH COPYRIGHT ACT. Broker represents
and warrants to Licensee that Broker has full authority to broadcast its
programming on the Stations, and that Broker shall not broadcast 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. Subject to reimbursement pursuant to Section 1.7, Licensee
will maintain ASCAP, BMI and SESAC licenses as necessary. The right to use the
programming and to authorize its use in any manner shall be and remain vested in
Broker.
3.4 SALES. Broker shall retain all revenues from the sale of
advertising time within the programming it provides to the Licensee. Broker
shall be responsible for payment of the commissions due to any national sales
representative engaged by it for the purpose of selling national advertising
which is carried during the programming it provides to Licensee.
3.5 PAYOLA. Broker agrees that it will not 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 Broker and merchants or advertisers, unless the payer is identified in
the program for which Consideration was provided as having paid for or furnished
such Consideration, in accordance with the Act and FCC requirements. Broker
agrees to annually, or more frequently at the request of the Licensee, execute
and provide Licensee with a Payola Affidavit from each of its employees involved
with the Stations substantially in the form attached hereto as Attachment IV.
3.6 COOPERATION ON PROGRAMMING. Licensee shall, on a regular
basis, cooperate with Broker to assess the issues of concern to its community
and address those issues in its public service programming. Broker, in
cooperation with Licensee, will endeavor to ensure that programming responsive
to the needs and interests of the community of license and surrounding area is
broadcast, in compliance with applicable FCC requirements. Licensee will
describe those issues and the programming that is broadcast in response to those
issues and place issues/programs lists in the Stations' public inspection files
as required by FCC rules. Further, Licensee may request, and Broker shall
provide, information concerning such of Broker's programs as are responsive to
community issues so as to assist Licensee in the satisfaction of its public
service programming obligations.
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3.7 STAFFING REQUIREMENTS. Licensee will be in full compliance
with the main studio staff requirements as specified by the FCC.
SECTION 4. INDEMNIFICATION
4.1 BROKER'S INDEMNIFICATION. Broker shall indemnify and hold
harmless Licensee from and against any and all claims, losses, costs,
liabilities, damages, FCC forfeitures and expenses (including reasonable legal
fees and other expenses incidental thereto) of every kind, nature and
description (collectively, "Damages") resulting from (i) Broker's breach of any
representation, warranty, covenant or agreement contained in this Agreement, or
(ii) any action taken by Broker or its employees and agents with respect to the
Stations, or any failure by Broker or its employees and agents to take any
action with respect to the Stations, including, without limitation, Damages
relating to violations of the Act or any rule, regulation or policy of the FCC,
slander, defamation or other claims relating to programming provided by Broker
and Broker's broadcast and sale of advertising time on the Stations.
4.2 LICENSEE'S INDEMNIFICATION. Licensee shall indemnify and
hold harmless Broker from and against any and all claims, losses, consents,
liabilities, damages, FCC forfeitures and expenses (including reasonable legal
fees and other expenses incidental thereto) of every kind, nature and
description, arising out of Licensee's operations and broadcasts to the extent
permitted by law and any action taken by the Licensee or its employees and
agents with respect to the Stations, or any failure by Licensee or its employees
and agents to take any action with respect to the Stations.
4.3 LIMITATION. Neither Licensee nor Broker shall be entitled
to indemnification pursuant to this section unless such claim for
indemnification is asserted in writing delivered to the other party.
4.4 TIME BROKERAGE CHALLENGE. If this Agreement is challenged
at the FCC, whether or not in connection with the Stations' license renewal
applications, counsel for the Licensee and counsel for the Broker shall jointly
defend the Agreement and the parties' performance thereunder throughout all FCC
proceedings at the sole expense of the Broker. If portions of this Agreement do
not receive the approval of the FCC Staff, then the parties shall reform the
Agreement as necessary to satisfy the FCC Staff s concerns or, at Broker's
option and expense, seek reversal of the Staff s decision and approval from the
full Commission or a court of law.
SECTION 5. ACCESS TO BROKER MATERIALS AND CORRESPONDENCE
5.1 CONFIDENTIAL REVIEW. Prior to the commencement of any
programming by Broker under this Agreement, Broker shall acquaint the Licensee
with the nature and type of the programming to be provided. Licensee, solely for
the purpose of ensuring Broker's compliance with the law, FCC rules and
Stations' policies, shall be entitled to review at its discretion from time to
time on a confidential basis any programming material it may reasonably request.
Broker shall promptly provide licensee with copies of all correspondence and
complaints received from the public (including any telephone logs of complaints
called in), and copies of all program logs and
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promotional materials. However, nothing in this section shall entitle Licensee
to review the internal corporate or financial records of the Broker.
5.2 POLITICAL ADVERTISING. Broker shall cooperate with
Licensee to assist Licensee in complying with all rules of the FCC regarding
political broadcasting. Licensee shall promptly supply to Broker, and Broker
shall promptly supply to Licensee, such information, including all inquiries
concerning the broadcast of political advertising, as may be necessary to comply
with FCC rules and policies, including the lowest unit rate, equal
opportunities, reasonable access, political file and related requirements of
federal law. Licensee, in consultation with Broker, shall develop a statement
which discloses its political broadcasting policies to political candidates, and
Broker shall follow those policies and rates in the sale of political
programming and advertising. In the event that Broker fails to satisfy the
political broadcasting requirements under the Act and the rules and regulations
of the FCC and such failure inhibits Licensee in its compliance with the
political broadcasting requirements of the FCC, then to the extent reasonably
necessary to assure such compliance, Broker shall release broadcast time and/or
advertising availabilities to Licensee at no cost to Licensee; provided,
however, that all revenues realized by Licensee as a result of such a release of
advertising time shall be immediately paid to Broker.
SECTION 6. TERMINATION AND REMEDIES UPON DEFAULT
6.1 TERMINATION. In addition to other remedies available at
law or equity, this Agreement may be terminated as set forth below by either
Licensee or Broker by written notice to the other if the party seeking to
terminate is not then in material default or breach hereof, upon the occurrence
of any of the following:
(a) subject to the provisions of Section 8.9, this
Agreement is declared invalid or illegal in whole or substantial part by an
order or decree of an administrative agency or court of competent jurisdiction
and such order or decree has become final and no longer subject to further
administrative or judicial review;
(b) the other party is in material breach of its
obligations hereunder and has failed to cure such breach within thirty (30) days
of notice from the non-breaching party;
(c) the mutual consent of both parties;
(d) there has been a material change in FCC rules,
policies or precedent that would cause this Agreement to be in violation thereof
and such change is in effect and not the subject of an appeal or further
administrative review and this Agreement cannot be reformed, in a manner
acceptable to Buyer and Seller, to remove and/or eliminate the violation;
(e) upon sale of the Stations to Broker;
(f) upon termination pursuant to Section 8.1(b) of
the Stock Purchase Agreement ("SPA") between the Licensee and the Parent.
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6.2 FORCE MAJEURE. Any failure or impairment of the Stations'
facilities or any delay or interruption in the broadcast of programs, or failure
at any time to furnish facilities, in whole or in part, for broadcast, due to
Acts of God, strikes, lockouts, material or labor restrictions by any
governmental authority, civil riot, floods and any other cause not reasonably
within the control of Licensee, or for power reductions necessitated for
maintenance of the Stations or for maintenance of other Stations located on the
tower from which the Stations will be broadcasting, shall not constitute a
breach of this Agreement and Licensee will not be liable to Broker for
reimbursement or reduction of the consideration owed to Licensee.
6.3 OTHER AGREEMENTS. During the term of this Agreement,
Licensee will not enter into any other time brokerage, program provision, local
management or similar agreement with any third party.
SECTION 7. MISCELLANEOUS
7.1 ASSIGNMENT.
(a) LICENSEE'S RIGHT TO ASSIGN. Neither this
Agreement nor any of the rights, interests or obligations of Licensee hereunder
shall be assigned, encumbered, hypothecated or otherwise transferred without the
prior written consent of Broker.
(b) BROKER'S RIGHT TO ASSIGN. Broker shall have the
unrestricted right to assign to any person or entity who possesses (x) all
requisite qualifications to hold broadcast licenses issued by the FCC and (y)
the financial capacity to perform Buyer's obligations hereunder. In addition,
Broker shall have the right to collaterally assign its rights and interests
hereunder to its senior lenders.
(c) This Agreement shall be binding upon and inure to
the benefit of the parties hereto and their respective successors and permitted
assigns.
(d) Licensee agrees to enter into such agreements and
confirmations as Broker's senior lenders may reasonably require: (i) to
acknowledge and confirm any collateral assignment of this Agreement to such
senior lenders; (ii) to provide for simultaneous notice and reasonable cure
rights, which rights must be exercised within 30 days after the 30-day period
specified in Section 6.1 (b) hereof, to such senior lenders of any default by
Broker under this Agreement; (iii) to provide simultaneous notice and reasonable
cure rights, which rights must be exercised within 30 days after the expiration
of the 30-day period specified in Section 6.1 (b) hereof, to such senior lenders
prior to any election or action by Licensee to terminate or cancel this
Agreement and, if requested by such senior lenders, to enter into a new
Agreement with such senior lenders or their nominee, successor or purchaser who
qualifies as a "Broker's Assignee" in accordance with Section 7.1 (b) hereof on
the same terms and conditions as this Agreement; (iv) in the event that such
senior lenders shall be entitled to foreclose or otherwise acquire Broker's
interest in this Agreement, or if such senior lenders (or their nominee,
successor or purchaser who qualifies
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as a "Broker's Assignee" in accordance with Section 7.1 (b) hereof) shall have
elected to enter into a new Agreement, on the same terms and conditions as this
Agreement, with Licensee: to enable such senior lenders to acquire Broker's
interest in this Agreement to any purchaser or assignee of such senior lenders
who qualifies as a "Broker's Assignee" in accordance with Section 7.1(b) hereof,
or require Licensee to enter into a new Agreement, on the same terms and
conditions as this Agreement, directly with any purchaser or assignee of such
senior lenders who qualifies as a "Broker's Assignee" in accordance with Section
7.1(b) hereof, and (v) provide for such other assurances as such senior lenders
shall reasonably request in connection with the exercise of their rights under
this paragraph 7.l(d).
7.2 CALL LETTERS. Upon request of Broker and at Broker's
expense and subject to the consent of the Licensee, Licensee shall apply to the
FCC for authority to change the call letters of the Stations (with the consent
of the FCC) to such call letters that Broker shall reasonably designate.
Licensee must coordinate with Broker any proposed changes to the call letters of
the Stations before taking any action to change such letters.
7.3 COUNTERPARTS. This Agreement may be executed in one or
more counterparts, each of which will be deemed an original but all of which
together will constitute one and the same instrument.
7.4 ENTIRE AGREEMENT. This Agreement and the Attachments
hereto, and an Asset Purchase Agreement between the parties executed on this
date, embody the entire agreement and understanding of the parties and supersede
any and all prior agreements, arrangements and understandings relating to
matters provided for herein. No amendment, waiver of compliance with any
provision or condition hereof, or consent pursuant to this Agreement will be
effective unless evidenced by an instrument in writing signed by the parties.
7.5 TAXES. Subject to the provisions of Section 1.6(b) of the
Agreement, Licensee and Broker shall each pay its own ad valorem taxes, if any,
which may be assessed on such party's respective personal property for the
periods that such items are owned by such party. Broker shall pay all taxes, if
any, to which the consideration specified in Section 1.4 herein is subject,
provided that Licensee is responsible for payment of its own income taxes.
7.6 HEADINGS. The headings are for convenience only and will
not control or affect the meaning or construction of the provisions of this
Agreement.
7.7 GOVERNING LAW. The obligations of Licensee and Broker are
subject to applicable federal, state and local law, rules and regulations,
including, but not limited to, the Act and the Rules and Regulations of the FCC.
The construction and performance of the Agreement will be governed by the laws
of the State of New York.
7.8 NOTICES. All notices, demands and requests required or
permitted to be given under the provisions of this Agreement shall be (i) in
writing, (ii) sent by telecopy (with receipt personally confirmed by telephone),
delivered by personal delivery, or sent by commercial delivery
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service or certified mail, return receipt requested, (iii) deemed to have been
given on the date telecopied with receipt confirmed, the date of personal
delivery, or the date set forth in the records of the delivery service or on the
return receipt, and (iv) addressed as follows:
TO BROKER: Xx. Xxxx Xxxxxxx, Xx.
Spanish Broadcasting System, Inc.
0000 Xxxxx Xxx
Xxxxx 000
Xxxxx, Xxxxxxx 00000
Telecopy: (000) 000-0000
Telephone: (000) 000-0000
COPY TO: Xxxxx X. Xxxxxxxx, Esq.
Xxxx, Scholer, Fierman,
Xxxx & Handler, LLP 000
00xx Xxxxxx, X.X.
Xxxxx 0000
Xxxxxxxxxx, X.X. 00000
Telecopy: (000) 000-0000
Telephone: (000) 000-0000
TO LICENSEE: Xx. Xxxxx X. Xxxxxxxx
Xxxxxxxxx Communications, Inc.
0000 Xxxxxxxxx Xxxxx, Xxxxx 000
Xxxxxx, Xxxxx 00000
Telecopy: (000) 000-0000
Telephone: (972)
COPY TO: Xxxxx Xxxxxx, Esq.
Xxxxxxxx & Knight, L.L.P.
0000 Xxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxx, Xxxxx 00000
Telecopy: (000) 000-0000
Telephone: (214)
or to any such other or additional persons and addresses as the parties may from
time to time designate in a writing delivered in accordance with this Section
7.8.
7.9 SEVERABILITY. If any provision of this Agreement or the
application thereof to any person or circumstances shall be invalid or
unenforceable to any extent, the remainder of this Agreement and the application
of such provision to other persons or circumstances shall not be affected
thereby and shall be enforced to the greatest extent permitted by law. In the
event that the FCC alters or modifies its rules or policies in a fashion which
would raise substantial and material question as to the validity of any
provision of this Agreement, the parties hereto shall negotiate in good faith to
revise any such provision of this Agreement with a view toward assuring
compliance
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with all then existing FCC rules and policies which may be applicable, while
attempting to preserve, as closely as possible, the intent of the parties as
embodied in the provision of this Agreement which is to be so modified.
7.10 SPECIFIC PERFORMANCE. The parties recognize that in the
event Licensee should refuse to perform under the provisions of this Agreement,
monetary damages alone will not be adequate. In the event that Broker is not
itself in material default or breach of this Agreement, Broker shall therefore
be entitled to obtain specific performance of all terms of this Agreement. In
the event of any action to enforce this Agreement, Licensee hereby waives the
defense that there is an adequate remedy at law.
7.11 ARBITRATION. Any dispute arising out of or related to
this Agreement that Licensee and Broker are unable to resolve by themselves
shall be settled by arbitration in New York, New York, by a panel of three
arbitrators. Licensee and Broker shall each designate one disinterested
arbitrator and the two arbitrators designed shall select the third arbitrator.
The persons selected as arbitrators need not be professional arbitrators, and
persons such as lawyers, accountants and bankers shall be acceptable. Before
undertaking to resolve a dispute, each arbitrator shall be duly sworn faithfully
and fairly to hear and examine the matters in controversy and to make a just
award according to the best of his or her understanding. The arbitration hearing
shall be conducted in accordance with the commercial arbitration rules of the
American Arbitration Association. The written decision of a majority of the
arbitrators shall be final and binding on Licensee and Broker. The costs and
expenses of the arbitration proceeding shall be assessed between Licensee and
Broker in a manner to be decided by a majority of the arbitrators, and the
assessment shall be set forth in the decision and award of the arbitrators.
Judgment on the award, if it is not paid within thirty days, may be entered in
any court having jurisdiction over the matter. No action at law or in equity
based upon any claim arising out of or related to this Agreement shall be
instituted in any court by Licensee or Broker against the other except: (i) an
action to compel arbitration pursuant to this Section; (ii) an action to enforce
the award of the arbitration panel rendered in accordance with this Section; or
(iii) a suit for specific performance pursuant to Section 7.10.
7.12 NO JOINT VENTURE. Nothing in this Agreement shall be
deemed to create a joint venture between the Licensee and the Broker.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement on
the day and year first above written.
LICENSEE: XXXXXXXXX COMMUNICATIONS, INC.
By: /s/ XXXXX X. XXXXXXXX
---------------------------------
Xxxxx X. Xxxxxxxx
BROKER: SPANISH BROADCASTING SYSTEM
OF LOS ANGELES, INC.
By: /s/ XXXX XXXXXXX, XX.
---------------------------------
Xxxx Xxxxxxx, Xx.
PARENT: SPANISH BROADCASTING SYSTEM, INC.
BY: /s/ XXXX XXXXXXX, XX.
---------------------------------
Xxxx Xxxxxxx, Xx.
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ATTACHMENT I
Broker shall pay to and reimburse Licensee as follows:
1. Pay to the Licensee an amount equal to the outstanding
interest on all of the Bridge Loans to the Licensee as
described in the Credit Agreement among the Licensee, Spanish
Broadcasting System, Inc., New World Broadcasters Corp. and
the Guarantors.
2. Reimbursement to the Licensee for all expenses described in
Sections 1.5, 1.6(b) and 2.3 of this Agreement commencing as
of the date of the execution of the Stock Purchase Agreement
including expenses (notwithstanding anything to the contrary)
which may be incurred by the Licensee prior to the Effective
Dates specified herein.
14
ATTACHMENT II
Licensee shall be responsible and pay for the expenses described in
Sections 1.5, 1.6(b) and 2.3 of this Agreement.
15
ATTACHMENT III
BROADCAST STATIONS PROGRAMMING POLICY STATEMENT
The following sets forth the policies generally applicable to the
presentation of programming and advertising over Stations. All programming and
advertising broadcast by the Stations must conform to these policies and to the
provisions of the Communications Act of 1934, as amended (the "Act"), and the
Rules and Regulations of the Federal Communications Commission ("FCC").
STATIONS' IDENTIFICATION
The Stations must broadcast a Station identification announcement once an hour
as close to the hour as feasible in a natural breach in the programming. The
announcement must include (1) each Station's call letters, followed immediately
by (2) each Station's city of license.
BROADCAST OF TELEPHONE CONVERSATIONS
BEFORE recording a telephone conversation for broadcast or broadcasting such a
conversation simultaneously with its occurrence, any party to the call must be
informed that the call will be broadcast or will be recorded for later
broadcast, and the party's consent to such broadcast must be obtained. This
requirement does not apply to calls initiated by the other party which are made
in a context in which it is customary for the Stations to broadcast telephone
calls.
SPONSORSHIP IDENTIFICATION
When money, service or other valuable consideration is either directly or
indirectly paid or promised as part of an arrangement to transmit any
programming, the Stations at the time of broadcast shall announce (1) that the
matter is sponsored, either whole or in part; and (2) by whom or on whose behalf
the matter is sponsored. Products or services furnished to the Stations in
consideration for an identification of any person, product, service, trademark
or brand name shall be identified in this manner.
In the case of any political or controversial issue broadcast for which any
material or service is furnished as an inducement for its transmission, an
announcement shall be made at the beginning and conclusion of the broadcast
stating (1) the material or service that has been furnished; and (2) the
person(s) or association(s) on whose behalf the programming is transmitted.
However, if the broadcast is 5 minutes duration or less, the required
announcement need only be made either at its beginning or end.
Prior to any sponsored broadcast involving political matters or controversial
issues, the Stations shall obtain a list of the chief executive officers,
members of the executive committee or board of directors of the sponsoring
organization and shall place this list in the Stations' public inspection files.
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PAYOLA/PLUGOLA
The Stations, their personnel, or their Brokers shall not accept or agree to
accept from any person any money, service or other valuable consideration for
the broadcast of any matter unless such fact is disclosed to the Stations so
that all required Stations identification announcements can be made. All persons
responsible for Stations' programming must, from time to time, execute such
documents as may be required by Stations' management to confirm their
understanding of and compliance with the FCC's sponsorship identification
requirements.
REBROADCASTS
The Stations shall not rebroadcast the signal of any other broadcast Stations
without first obtaining such Stations' prior written consent to such
rebroadcast.
FAIRNESS
The Stations shall seek to afford coverage to contrasting viewpoints concerning
controversial issues of public importance.
PERSONAL ATTACKS
The Stations shall not air attacks upon the honesty, character, integrity or
like personal qualities of any identified person or group. If such an attack
should nonetheless occur during the presentation of views on a controversial
issue of public importance, those responsible for programming shall submit a
tape or transcript of the broadcast to station management and to the person
attacked within 48 hours, and shall offer the person attacked a reasonable
opportunity to respond.
POLITICAL EDITORIALS
Unless specifically authorized by Stations' management, the Stations shall not
air any editorial which either endorses or opposes a legally qualified candidate
for public office.
POLITICAL BROADCASTING
All "uses" of the Stations by legally qualified candidates for elective office
shall be in accordance with the Act and the FCC's Rules and policies, including
without limitation, equal opportunities requirements, reasonable access
requirements, lowest unit charge requirements and similar rules and regulations.
OBSCENITY AND INDECENCY
The Stations shall not broadcast any obscene material. Material is deemed to be
obscene if the average person, applying contemporary community standards in the
local community, would find that the material, taken as a whole, appeals to the
prurient interest; depicts or describes in a patently
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17
offensive way sexual conduct specifically defined by applicable state law; and
taken as a whole, lacks serious literary artistic, political or scientific
value.
The Stations shall not broadcast any indecent material outside of the periods of
time prescribed by the FCC. Material is deemed to be indecent if it includes
language or material that, in context, depicts or describes, in terms patently
offensive as measured by contemporary community standards for the broadcast
medium, sexual or excretory activities or organs.
BILLING
No entity which sells advertising for airing on the Stations shall knowingly
issue any xxxx, invoice or other document which contains false information
concerning the amount charged or the broadcast of advertising which is the
subject of the xxxx or invoice. No entity which sells advertising for airing on
the Stations shall misrepresent the nature or content of aired advertising, nor
the quantity, time of day, or day on which such advertising was broadcast.
CONTESTS
Any contests conducted on the Stations shall be conducted substantially as
announced or advertised. Advertisements or announcements concerning such
contests shall fully and accurately disclose the contest's material terms. No
contest description shall be false, misleading or deceptive with respect to any
material term.
HOAXES
The Stations shall not knowingly broadcast false information concerning a crime
or catastrophe.
EMERGENCY INFORMATION
Any emergency information which is broadcast by the Stations shall be
transmitted immediately.
LOTTERY
The Stations shall not advertise or broadcast any information concerning any
lottery (except approved state lotteries). The Stations may advertise and
provide information about lotteries conducted by non-profit groups, governmental
entities and in certain situations, by commercial organizations, if an only if
there is no state or local restriction or ban on such advertising or information
and the lottery is legal under state or local law. Any and all lottery
advertising must first be approved by Stations' management.
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18
ADVERTISING
The Stations shall comply with all federal, state and local laws concerning
advertising, including without limitation, all laws concerning misleading
advertising, and the advertising of alcoholic beverages.
PROGRAMMING PROHIBITIONS
Knowing broadcast of the following types of programs and announcements is
prohibited.
FALSE CLAIMS. False or unwarranted claims for any product or service.
UNFAIR IMITATION. Infringements of another advertiser's rights through
plagiarism or unfair imitation of either program idea or copy, or any
other unfair competition.
COMMERCIAL DISPARAGEMENT. Any unfair disparagement of competitors or
competitive goods.
PROFANITY. Any programs or announcements that are slanderous, obscene,
profane, vulgar, repulsive or offensive, as evaluated by Station's
management.
VIOLENCE. Any programs which are excessively violent.
UNAUTHORIZED TESTIMONIALS. Any testimonials which cannot be
authenticated.
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19
ATTACHMENT IV
PAYOLA STATEMENT
20
FORM OF PAYOLA AFFIDAVIT
City of _________________ )
)
County of_______________ ) ss:
)
State of_________________ )
ANTI-PAYOLA/PLUGOLA AFFIDAVIT
_____________________, being first duly sworn, deposes and says as follows:
1. He/She is ______________________ for __________________.
2. He/She has acted in the above capacity since ________________.
3. No matter has been broadcast by Station ______ for which service, money
or other valuable consideration has been directly or indirectly paid,
or promised to, or charged, or accepted, by him/her from any person,
which matter at the time so broadcast has not been announced or
otherwise indicated as paid for or furnished by such person.
4. So far as he/she is aware, no matter has been broadcast by Station
_____ for which service, money or other valuable consideration has been
directly or indirectly paid, or promised to, or charged, or accepted by
Station _______ or by any independent contractor engaged by Station
______ in furnishing programs, from any person, which matter at the
time so broadcast has not been announced or otherwise indicated as paid
for or furnished by such person.
5. In the future, he/she will not pay, promise to pay, request or receive
any service, money, or any other valuable consideration, direct or
indirect, from a third party, in exchange for the influencing of, or
the attempt to influence, the preparation of presentation of broadcast
matter on Station ______.
6. Nothing contained herein is intended to, or shall prohibit receipt or
acceptance of anything with the expressed knowledge and approval of my
employer, but henceforth any such approval must be given in writing by
someone expressly authorized to give such approval.
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7. He/She, his/her spouse and immediate family do ___ do not ___ have any
present direct or indirect ownership interest in (other than an
investment in a corporation whose stock is publicly held), serve as an
officer or director of, whether with or without compensation, or serve
as an employee of, any person, firm or corporation engaged in:
1. The publishing of music;
2. The production, distribution (including wholesale and retail
sales outlets), manufacture or exploitation of music, films,
tapes, recordings or electrical transcription of any program
material intended for radio broadcast use;
3. The exploitation, promotion or management or persons rendering
artistic, production and/or other services in the
entertainment field;
4. The ownership or operation of one or more radio or television
stations;
5. The wholesale or retail sale of records intended for public
purchase;
6. Advertising on Station _____, or any other station owned by
its licensee (excluding nominal stockholdings in publicly
owned companies).
8. The facts and circumstances relating to such interest are none ___ as follows
___:
---------------------------------------------------------------
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----------------------------------
Affiant
Subscribed and sworn to before me
this _____ day of ____________, 200__
----------------------------
Notary Public
My Commission expires:_____________
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