Exhibit 10.2
TIME BROKERAGE AGREEMENT
THIS TIME BROKERAGE AGREEMENT (this "Agreement") is entered into as of the
31st day of December, 2002, by and among SPANISH BROADCASTING SYSTEM OF
ILLINOIS, INC., a Delaware corporation ("Programmer"), and BIG CITY RADIO-CHI,
L.L.C., a Delaware limited liability company ("Licensee").
RECITALS:
WHEREAS, Licensee is the licensee pursuant to authorizations by the Federal
Communications Commission ("FCC") of radio broadcast stations WDEK-FM, licensed
to De Xxxx, Illinois; WKIE-FM, licensed to Arlington Heights, Illinois; and
WKIF-FM, licensed to Kankakee, Illinois (collectively, the "Stations");
WHEREAS, during the term of this Agreement, Licensee wishes to retain
Programmer to provide programming and related services for the Stations, all in
conformity with Licensee's policies and procedures, FCC rules, regulations and
policies for time brokerage arrangements, and the provisions hereof;
WHEREAS, Programmer agrees to use the Stations to broadcast such
programming of Programmer's selection that is in conformity with the
Communications Act of 1934, as amended and all rules, regulations and policies
of the FCC (collectively, the "FCC Requirements"), subject to Licensee's full
authority to manage and control the operation of the Stations;
WHEREAS, concurrently herewith, Programmer and Licensee are entering into
an Asset Purchase Agreement (the "Purchase Agreement"), pursuant to which
Licensee has agreed to sell to Programmer, and Programmer has agreed to purchase
from Licensee, certain of the radio station properties and assets relating to
the Stations as described therein under the terms and conditions set forth in
the Purchase Agreement; and
WHEREAS, Programmer and Licensee agree to cooperate to make this Agreement
work to the benefit of the public and both parties and as contemplated by the
terms set forth herein.
AGREEMENT:
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 USE OF STATION AIR TIME.
1.1 Scope. During the Term (as defined in Section 1.2 below), Licensee
shall make available to Programmer broadcast time on the Stations as set forth
in this Agreement. Programmer shall deliver such programming, at Programmer's
expense, to the Stations' transmitters or other authorized remote control points
designated by Licensee. Programmer shall
provide such programming of Programmer's selection complete with commercial
matter, news, public service announcements and other suitable programming to the
Stations. Except as otherwise provided in this Agreement, Licensee agrees to
broadcast such programming in its entirety, including commercials at the times
specified, on the facilities of the Stations without interruption, deletion, or
addition of any kind. Licensee may use such time as Licensee may require up to
two (2) hours per week, for the broadcast of Licensee's own regularly-scheduled
news, public affairs, and other non-entertainment programming on the Stations,
to be scheduled at mutually agreeable times. All program time not reserved by or
designated for Licensee shall be available for use by Programmer. Licensee
agrees that Programmer may sell, or engage a third party to sell, commercial
time during the programming provided by Programmer to the Stations for
Programmer's account.
1.2 Term. The term of this Agreement (the "Term") shall commence on
January 6, 2003 (the "Effective Date"), and end on the Closing Date (as defined
in the Purchase Agreement), unless terminated earlier pursuant to any of the
provisions of Section 5 hereof.
SECTION 2 STATION OPERATIONS.
2.1 Licensee Control Over Station Operations.
(a) Licensee shall retain ultimate authority, power and control over
the operations of the Stations during the Term, including specifically, control
over the personnel, programming and finances of the Stations.
(b) Subject to Licensee's ultimate authority, power and control over
the operations of the Stations, Programmer agrees to provide programming and
related services to the Stations. Such related services shall include: (i) the
sale of advertising time on the Stations; (ii) coordination of traffic and
billing functions; (iii) maintenance of the Stations' transmitting or studio
equipment and the other assets used or held for use in the business and
operation of the Stations, other than the FCC Licenses (as such term is defined
in the Purchase Agreement) and (iv) other administrative or operational
functions as Licensee and Programmer may agree to, consistent with FCC
Requirements relating to time brokerage agreements. Programmer shall provide and
perform Programmer's obligations hereunder, including all related services,
diligently and in a manner consistent in all material respects with broadcast
industry practices.
(c) When on the Licensee's premises, all employees of Programmer
used to provide Programmer's programming or other services to the Stations shall
be subject to the overall supervision of management personnel under Licensee's
control. Subject to Licensee's ultimate authority, power and control over the
operations of the Station, Programmer's employees shall be solely accountable to
Programmer.
2.2 Station Expenses. During the Term, Licensee shall be responsible for
paying directly those expenses necessary to maintain compliance with the FCC
Requirements and the terms of this Agreement. Programmer shall employ and be
responsible for the salaries, taxes, programming costs, insurance and related
costs for all personnel used in the production of the
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Programmer's programming (including, without limitation, salespeople, traffic
personnel, administrative and programming staff).
2.3 Fee. The fee payable by Programmer to Licensee in consideration for
the airtime made available hereunder and the other agreements of the parties
made hereunder, shall be in the amount and manner as set forth in Schedule 2.3
hereto.
SECTION 3 STATION PUBLIC INTEREST OBLIGATIONS.
3.1 Licensee Authority. Subject to Programmer's obligations hereunder,
Licensee shall be responsible for the Stations' compliance with all FCC
Requirements and all other applicable laws. Programmer shall cooperate with
Licensee, at Programmer's expense, in taking such actions as Licensee may
reasonably request to assist Licensee in maintaining the Stations' compliance
with the FCC Requirements and all other applicable laws. Notwithstanding any
other provision of this Agreement, Programmer recognizes that Licensee has
certain obligations to operate the Stations in the public interest, and to
broadcast programming to meet the needs and interests of the Stations'
communities of license and service areas. From time to time Licensee shall air,
or if Licensee requests, Programmer shall air, programming on issues of
importance to the local community. Nothing in this Agreement shall abrogate or
limit the unrestricted authority of Licensee to discharge Licensee's obligations
to the public and to comply with the FCC Requirements, and Licensee shall have
no liability or obligation to Programmer, for taking any action that Licensee
reasonably and in good faith believes to be necessary or appropriate to
discharge such obligations or comply with such laws, rules, regulations or
policies.
3.2 Additional Licensee Obligations. Although both Licensee and Programmer
shall cooperate in the broadcast of emergency information over the Stations,
Licensee shall retain the right, without any liability or obligation to
Programmer, to interrupt Programmer's programming in case of an emergency or for
programming which, in the good faith judgment of Licensee, is of greater local
or national public importance. In all such cases, Licensee shall use Licensee's
commercially reasonable efforts to provide Programmer prior written notice of
Licensee's intention to interrupt Programmer's programming. Licensee shall
coordinate with Programmer each Station's hourly station identification and any
other announcements required to be aired by FCC rules or regulations. Licensee
shall (a) maintain each Station's local public inspection file within each
Station's community of license or at each Station's main studio, and (b) prepare
and place in such inspection file in a timely manner all material required by
Section 73.3526 of the FCC's Rules, including without limitation each Station's
quarterly issues and program lists and FCC Form 398. Programmer shall, upon
request by Licensee, promptly provide Licensee with such information concerning
Programmer's programs and advertising as is necessary to assist Licensee in the
preparation of such information or to enable Licensee to verify independently
the Stations' compliance with any other laws, rules, regulations or policies
applicable to the Stations' operation.
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SECTION 4 STATION PROGRAMMING & OPERATIONAL POLICIES.
4.1 Broadcast Station Programming Policy Statement. Licensee has adopted a
Broadcast Station Programming Policy Statement (the "Policy Statement"), a copy
of which appears as Schedule 4.1 hereto and which may be amended from time to
time in order to comply with FCC Requirements by Licensee upon written notice to
Programmer. Programmer agrees and covenants to comply in all material respects
with the Policy Statement, with all FCC Requirements, and with all changes
subsequently made by Licensee (in good faith) or the FCC. Programmer 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 in all material respects with FCC Requirements and with
the Policy Statement. All advertising spots and promotional material or
announcements shall comply in all material respects with all applicable federal,
state and local laws, regulations and policies and the Policy Statement, and
shall be produced in accordance with quality standards established by
Programmer. If Licensee determines that a program, commercial announcement or
promotional material supplied by Programmer is for any reason, in Licensee's
reasonable discretion, contrary to the public interest, or does not comply with
the Policy Statement, Licensee may, upon written notice to Programmer (to the
extent time permits such notice), and without any liability or obligation to
Programmer, suspend or cancel such program, commercial announcement or
promotional material and substitute its own programming or, if Licensee
requests, Programmer shall provide promptly suitable programming, commercial
announcement or other announcement or promotional material.
4.2 Licensee Control of Station Programming. Notwithstanding any contrary
provision contained in this Agreement, and consistent with Licensee's
obligations pursuant to the FCC Requirements, Licensee shall have the right,
without any liability or obligation to Programmer, to delete or preempt any
material contained in any programming or commercial matter furnished by
Programmer for broadcast over the Stations that Licensee reasonably and in good
faith believes to be contrary to the Policy Statement and which Licensee
reasonably and in good faith believes would be contrary to the public interest.
Licensee shall have the right, without any liability or obligation to Programmer
to broadcast Licensee's own programming in place of such deleted or preempted
material. Licensee expressly agrees that Licensee's right to reject or preempt
any of the programming will be exercised only for cause and will not be
exercised in an arbitrary manner, for the commercial advantage of Licensee, or
to cause harm to the business or operations of Programmer.
4.3 Political Advertising. Licensee shall oversee and shall take ultimate
responsibility for the Stations' compliance with the political broadcasting
rules of the FCC and Sections 312 and 315 of the Communications Act of 1934, as
amended (the "Act"), including but not limited to, the provision of equal
opportunities, compliance with lowest unit charge requirements, and the
provision of reasonable access to federal political candidates. Programmer shall
cooperate with Licensee, at Programmer's expense, to assist Licensee in
complying with the political broadcasting rules of the FCC. Programmer shall
supply such information promptly to Licensee as may be necessary to comply with
the lowest unit charge and other applicable political
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broadcast requirements of federal law. To the extent that Licensee reasonably
and in good faith believes necessary or appropriate, Programmer shall release
advertising availabilities to Licensee to permit Licensee to comply with the
political broadcasting rules of the FCC and Sections 312 and 315 of the Act.
Programmer shall be entitled to all revenues received by Licensee for such
advertising.
4.4 Advertising of Credit Terms. To the extent prohibited by the rules of
the Federal Trade Commission, no advertising of credit terms shall be made over
broadcast material supplied hereunder by Programmer beyond mention of the fact
that credit terms are available.
4.5 Payola/Plugola. In order to enable Licensee to fulfill Licensee's
obligations under Section 317 of the Act, Programmer, in compliance with Section
507 of the Act, will, in advance of any scheduled broadcast by the Station,
disclose to Licensee any information of which Programmer has knowledge or which
has been disclosed to Programmer as to any money, service, or other valuable
consideration that any person has paid or accepted, or has agreed to pay or to
accept, for the inclusion of any matter as a part of the programming or
commercial matter to be supplied to Licensee pursuant to this Agreement.
Programmer will cooperate with Licensee, at Programmer's expense, as necessary
to ensure compliance with this provision. Commercial matter with obvious
sponsorship identifications shall not require disclosure in addition to that
contained in the commercial copy.
4.6 Programmer Compliance with Copyright Act. Programmer represents and
warrants that Programmer will have full authority to broadcast the programming
on the Stations; that Programmer shall not broadcast any material in violation
of the Copyright Act; and the performing rights to all music contained in
broadcast material supplied hereunder by Programmer are licensed by BMI, ASCAP,
or SESAC, are in the public domain, are controlled by Programmer, or are cleared
at the source by Programmer.
SECTION 5 TERMINATION.
5.1 Termination by Programmer. This Agreement may be terminated by
Programmer by written notice to Licensee, if Programmer is not then in material
default or breach hereof or of the Purchase Agreement, if Licensee is in
material breach of Licensee's representations or Licensee's material obligations
hereunder and has failed to cure such breach within thirty (30) days of written
notice of the breach from Programmer.
5.2 Termination by Licensee. This Agreement may be terminated by Licensee
by written notice to Programmer, if Licensee is not then in material default or
breach hereof or of the Purchase Agreement, if Programmer is in material breach
of Programmer's representations or Programmer's material obligations hereunder
and Programmer has failed to cure such breach within thirty (30) days of written
notice of the breach from Licensee.
5.3 Termination. If not otherwise earlier terminated, this Agreement will
terminate upon the first to occur of any of the following:
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(a) this Agreement is declared invalid or illegal in whole or material
part by an order or decree of an administrative agency or court of competent
jurisdiction the effect of which would be to materially curtail Programmer's
activities hereunder and such order or decree has become final and no longer
subject to further administrative or judicial review;
(b) there has been a material change in FCC Requirements that would
cause this Agreement to be in material violation thereof and such change is in
effect and not the subject of an appeal or further administrative review;
(c) the mutual written consent of both parties; or
(d) the termination of the Purchase Agreement in accordance with the
terms thereof.
5.4 Severability. The parties hereto intend that the transactions
contemplated hereunder comply in all respects with FCC Requirements. If any
provision of this Agreement shall be declared void, illegal, or invalid by any
governmental authority with jurisdiction thereof, the remainder of this
Agreement shall remain in full force and effect without such offending provision
so long as such remainder substantially reflects the intent and economic or
other benefits of the original agreement of the parties hereunder. Furthermore,
in such event, the parties shall use their commercially reasonable efforts to
reach agreement promptly on lawful substitute provisions in place of said
offending provision so as to effectuate more closely their intent as expressed
hereunder. If any governmental authority grants to any other entity or
individual rights which are not contained in this Agreement, then the parties
shall use their commercially reasonable efforts to amend this Agreement to
provide the parties hereto such lawful provisions which comport with any rules,
regulations and policies adopted after the date of this Agreement.
5.5 Force Majeure. Any failure or impairment of the assets of the Stations
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, restrictions by any governmental authority, civil riot, fire, strike, labor
unrest, floods or any other similar cause not reasonably within the control of
Licensee or Programmer, shall not constitute a breach of this Agreement and
Licensee will not be liable to Programmer nor will Programmer be liable to
Licensee for any liability or obligation with respect thereto.
5.6 Insurance; Risk of Loss. From the Effective Date through the end of the
Term, Programmer shall maintain with reputable insurance companies reasonably
acceptable to Licensee, insurance in such amounts and with respect to such risks
reasonably acceptable to Licensee, including broadcast liability insurance
naming Licensee as an additional insured, and general comprehensive insurance,
also naming Licensee as an additional insured, each with a commercially
reasonable amount of coverage as is conventionally carried by broadcasters
operating radio stations in the area comparable to those of the Stations. The
risk of any loss, damage, impairment, confiscation, or condemnation of any
equipment or other personal property owned or leased and used by Programmer in
the performance of its obligations hereunder shall be borne by Programmer at all
times throughout the Term.
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SECTION 6 INDEMNIFICATION.
6.1 Indemnification by Programmer. Programmer shall indemnify and hold
harmless Licensee from and against any and all claims, losses, costs,
liabilities, damages, expenses, including any FCC fines or forfeitures
(including reasonable legal fees and other expenses incidental thereto), of
every kind, nature and description (collectively "Damages") arising or resulting
from or relating to (a) Programmer's breach of any representation, covenant,
agreement or other obligation of Programmer contained in this Agreement, (b) any
action taken by Programmer or Programmer's employees and agents with respect to
the Stations, or any failure by Programmer or Programmer's employees and agents
to take any action with respect to the Stations, including, without limitation,
Damages relating to violations of FCC Requirements, slander, libel, defamation
or other claims relating to programming provided by Programmer or Programmer's
broadcast and sale of advertising time on the Stations, except to the extent
directed by or caused by Licensee or its officers, employees, agents or
Affiliates, or (c) the business or operations of the Stations conducted by
Programmer from and after the Effective Date.
6.2 Indemnification by Licensee. Licensee shall indemnify and hold harmless
Programmer from and against any and all Damages arising or resulting from or
relating to (a) Licensee's breach of any representation, covenant, agreement or
other obligation of Licensee contained in this Agreement, or (b) any action
taken by Licensee or Licensee's employees and agents with respect to the
Stations, including, without limitation, Damages relating to violations of FCC
Requirements, slander, libel, defamation or other claims relating to programming
provided by Licensee.
SECTION 7 REPRESENTATIONS, WARRANTIES, AND COVENANTS.
7.1 Representations, Warranties, and Covenants of Licensee. Licensee
represents, warrants and covenants that:
(a) The execution, delivery and performance by Licensee of this
Agreement, the fulfillment of and the compliance with the terms and provisions
hereof, and the consummation by Licensee of the transactions contemplated hereby
have been duly authorized by all requisite action (which authorization has not
been modified or rescinded and is in full force and effect), and do not and will
not: (i) conflict with, or violate any provision of, any Law having
applicability to Licensee or any affiliate of Licensee; (ii) conflict with, or
result in any breach of, or constitute a default under, any agreement to which
Licensee is a party or by which Licensee is bound; or (iii) result in or require
the creation or imposition of or result in the acceleration of any indebtedness,
or of any mortgage, lien, pledge, encumbrance, security interest, deed of trust,
option, encroachment, reservation, order, decree, judgment, restriction, charge,
agreement, claim or equity of any kind ("Encumbrance") of any nature upon, or
with respect to, Licensee or any of the assets now owned or hereafter acquired
by Licensee. No other action is necessary for Licensee to enter into this
Agreement and to consummate the transactions contemplated hereby.
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(b) This Agreement constitutes a valid and binding obligation of
Licensee, enforceable in accordance with its terms.
(c) Licensee currently is the holder of the authorizations related to
each of the Stations listed on Schedule 7.1 attached hereto.
7.2 Representations, Warranties and Covenants of Programmer. Programmer
represents, warrants, and covenants that:
(a) The execution, delivery and performance by Programmer of this
Agreement, the fulfillment of and the compliance with the respective terms and
provisions hereof, and the consummation by Programmer of the transactions
contemplated hereby have been duly authorized by all necessary action (which
authorization has not been modified or rescinded and is in full force and
effect), and do not and will not: (i) conflict with, or violate any provision
of, any Law having applicability to Programmer or any affiliate of Programmer or
any provision of the organizational documents of Programmer; (ii) conflict with,
or result in any breach of, or constitute a default under, any agreement to
which Programmer is a party or by which Programmer is bound; or (iii) result in
or require the creation or imposition of or result in the acceleration of any
indebtedness, or of any Encumbrance of any nature upon, or with respect to,
Programmer or any of the assets now owned or hereafter acquired by Programmer.
No other action is necessary for Programmer to enter into this Agreement and to
consummate the transactions contemplated hereby.
(b) This Agreement constitutes a valid and binding obligation of
Programmer, enforceable in accordance with its terms.
SECTION 8 MISCELLANEOUS.
8.1 Further Assurances. Each of the parties hereto hereby agrees to take or
cause to be taken such further actions, to execute, deliver and file or cause to
be executed, delivered and filed such further documents, and will obtain such
consents, as may be necessary or as may be reasonably requested in order to
fully effectuate the purposes, terms and conditions of this Agreement.
8.2 Expenses. Each party hereto will pay its own expenses incurred by such
party in connection with the negotiation, preparation, execution and
consummation of this Agreement and the transactions contemplated hereby,
including, without limitation, all legal and accounting fees and disbursements.
8.3 Assignment. No party shall assign its rights and obligations under this
Agreement, in whole or in part, whether by operation of law or otherwise,
without the prior written consent of the other party hereto, and any such
assignment contrary to the terms hereof shall be null and void and of no force
and effect. In no event shall the assignment by any party of its respective
rights or obligations under this Agreement release such party from its
respective liabilities and obligations hereunder.
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8.4 Entire Agreement; Amendments. This Agreement constitutes the entire
agreement among the parties hereto with respect to the transactions contemplated
herein and, except for the Purchase Agreement, and documents delivered pursuant
thereto, supersede all prior oral or written agreements, commitments or
understandings with respect to the matters provided for herein. No amendment,
modification or discharge of this Agreement shall be valid or binding unless set
forth in writing and duly executed and delivered by the party against whom
enforcement of the amendment, modification, or discharge is sought.
8.5 Waiver. No delay or failure on the part of any party hereto in
exercising any right, power or privilege under this Agreement or under any other
documents furnished in connection with or pursuant to this Agreement shall
impair any such right, power or privilege or be construed as a waiver of any
default or any acquiescence therein. No single or partial exercise of any such
right, power or privilege shall preclude the further exercise of such right,
power or privilege, or the exercise of any other right, power or privilege. No
waiver shall be valid against any party hereto unless made in writing and signed
by the party against whom enforcement of such waiver is sought and then only to
the extent expressly specified therein.
8.6 Consent to Jurisdiction.
(a) This Agreement and the duties and obligations of the parties
hereunder and under each of the documents referred to herein shall be
enforceable against any party in the courts of the United States of America and
of the State of New York. For such purpose, each party hereto hereby irrevocably
submits to the non-exclusive jurisdiction of such courts, and agrees that all
claims in respect of this Agreement and such other documents may be heard and
determined in any of such courts.
(b) Each party hereto hereby irrevocably agrees that a final judgment
of any of the courts specified above in any action or proceeding relating to
this Agreement or to any of the other documents referred to herein or therein
shall be conclusive and may be enforced in other jurisdictions by suit on the
judgment or in any other manner provided by law.
8.7 Governing Law. This Agreement, the rights and obligations of the
parties hereto, and any claims or disputes relating thereto, shall be governed
by and construed in accordance with the laws of the State of New York (excluding
the choice of law rules thereof).
8.8 Notices. All notices, demands, requests, or other communications which
may be or are required to be given, served, or sent by any party to any other
party pursuant to this Agreement shall be in writing and shall be hand
delivered, sent by overnight courier or mailed by first-class, registered or
certified mail, return receipt requested, postage prepaid, or transmitted by
telegram, telecopy or telex, addressed as follows:
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(a) If the notice is to Programmer:
Spanish Broadcasting System, Inc.
0000 Xxxxx Xxxxxxxx Xxxxx, XX XX
Xxxxxxx Xxxxx, Xxxxxxx 00000
Attention: Xxxx Xxxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
with a copy (which shall not constitute notice) to:
Xxxx Xxxxxxx LLP
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx X. Xxxxxxx, Xx.
Telephone: (000) 000-0000
Facsimile (000) 000-0000
(b) If to Licensee:
Big City Radio, Inc.
c/o Metromedia Company
Xxx Xxxxxxxxxxx Xxxxx
Xxxx Xxxxxxxxxx, Xxx Xxxxxx 00000-0000
Attention: Xxxxx X. Xxxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
with a copy (which shall not constitute notice) to:
Xxxxx & Xxxxxxx L.L.P.
0000 Xxxxxxxxxx Xxxxx
Xxxxx 0000
XxXxxx, Xxxxxxxx 00000
Attention: Xxxxxx X. Xxxxx
Xxxxxxx X. Xxxxx, Xx.
Telephone: (000) 000-0000
(000) 000-0000
Facsimile: (000) 000-0000
or to such other address as Licensee may from time to time designate.
Each party may designate by notice in writing a new address to which any
notice, demand, request or communication may thereafter be so given, served or
sent. Each notice,
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demand, request, or communication which shall be hand delivered, sent, mailed or
faxed in the manner described above, shall be deemed sufficiently given, served,
sent, received or delivered for all purposes at such time as it is delivered to
the addressee (with the return receipt, the delivery receipt, or confirmation of
facsimile transmission being deemed conclusive, but not exclusive, evidence of
such delivery) or at such time as delivery is refused by the addressee upon
presentation.
8.9 Headings. Section headings contained in this Agreement are
inserted for convenience of reference only, shall not be deemed to be a part of
this Agreement for any purpose, and shall not in any way define or affect the
meaning, construction or scope of any of the provisions hereof.
8.10 Counterparts. To facilitate execution, this Agreement may be
executed in as many counterparts as may be required. It shall not be necessary
that the signatures of, or on behalf of, each party, or that the signatures of
all persons required to bind any party, appear on each counterpart; but it shall
be sufficient that the signature of, or on behalf of, each party, or that the
signatures of the persons required to bind any party, appear on one or more of
the counterparts. All counterparts shall collectively constitute a single
agreement. It shall not be necessary in making proof of this Agreement to
produce or account for more than a number of counterparts containing the
respective signatures of, or on behalf of, all of the parties hereto.
8.11 Limitation on Benefits. The covenants, undertakings and agreements
set forth in this Agreement shall be solely for the benefit of, and shall be
enforceable only by, the parties hereto and their respective successors, heirs,
executors, administrators, legal representatives and permitted assigns.
8.12 Binding Effect. Subject to any provisions hereof restricting
assignment, this Agreement shall be binding upon and shall inure to the benefit
of the parties hereto and their respective successors, heirs, executors,
administrators, legal representatives and assigns.
8.13 Taxes. Licensee and Programmer shall each pay its own ad valorem
taxes, if any, which may be assessed on such party's personal property for the
periods that such items are owned by such party.
8.14 No Joint Venture or Partnership. Programmer shall act as an
independent contractor in rendering its services hereunder. Neither party shall
have any power or authority to act for or on behalf of the other or to bind the
other in any manner whatsoever, except as and to the extent expressly provided
for in this Agreement. The parties hereto agree that nothing herein shall
constitute a joint venture or partnership between them.
[SIGNATURE PAGE TO FOLLOW]
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IN WITNESS WHEREOF, the parties hereto have executed this Time
Brokerage Agreement as of the date first above written.
PROGRAMMER:
SPANISH BROADCASTING SYSTEM OF
ILLINOIS, INC.
By: /s/ Xxxx Xxxxxxx
Name: Xxxx Xxxxxxx
Title: President
LICENSEE:
BIG CITY RADIO-CHI, L.L.C.
By: BIG CITY RADIO, INC.,
Its Managing Member
By: /s/ Xxxxx X. Xxxxxxx
Name: Xxxxx X. Xxxxxxx
Title: Executive Vice President
Schedule 2.3
Fee
During the Term, Programmer shall pay to Licensee a fee by wire transfer of
immediately available funds, as follows: (i) on the Effective Date, Programmer
shall pay $149,333.33 (the "Base Fee") to Licensee, and (ii) on each succeeding
monthly anniversary of the Effective Date, Programmer shall pay the Base Fee to
Licensee. In the event that the final month of the Term shall be less than a
full calendar month, the Base Fee for such month shall be pro-rated by the ratio
of the number of days of the month falling within the Term divided by the total
number of calendar days in that month of the Term.
Schedule 4.1
Broadcast Station Programming Policy Statement
I. No Plugola or Payola. Except for commercial messages aired in
compliance with 47 C.F.R. (S)73.1212, Programmer shall not receive any
consideration in money, goods, services, or otherwise, directly or indirectly
(including to relatives) from any persons or company for the presentation of any
programming over the Stations without reporting the same to Licensee's station
managers. The commercial mention of any business activity or "plug" for any
commercial, professional, or other related endeavor, except where contained in
an actual commercial message of a sponsor, is prohibited.
II. No Lotteries. Announcements giving any information about lotteries
or games prohibited by applicable federal or state law or regulation are
prohibited.
III. Election Procedures. At least fifteen (15) days before the start
of any primary or election campaign, Programmer will clear with Licensee's
station managers the rates Programmer will charge for the time to be sold for
use by qualified candidates for the public office and/or their supporters to
make certain that the rates charged are in conformance with applicable law and
the Stations' policies.
IV. Required Announcements. Programmer shall broadcast (i) an
announcement in a form satisfactory to Licensee at the beginning of each hour to
identify the Stations and (ii) any other announcements that may be required by
law or regulation.
V. No Illegal Announcements. No announcements or promotion prohibited
by applicable federal, state law or regulation shall be made over the Stations.
Any game, contest, or promotion relating to or to be presented over the Stations
must be fully stated and explained in advance to Licensee, which reserves the
right in its sole discretion to reject any game, contest, or promotion.
VI. Licensee Discretion Paramount. In accordance with the Licensee's
responsibility under the Communications Act of 1934, as amended, and the Rules
and Regulations of the Federal Communications Commission, Licensee reserves the
right to reject or terminate any advertising proposed to be presented or being
presented over the Stations which is in conflict with established policies of
the Stations or which in Licensee's or its station managers' reasonable judgment
would be contrary to the public interest.
Licensee may waive any of the foregoing regulations in specific instances,
if, in its opinion, the Stations will remain in compliance with all applicable
laws, rules, regulations and policies and broadcasting in the public interest is
served. In any case where questions of policy or interpretation arise,
Programmer should submit the same to Licensee for decision before making any
commitments in connection therewith.
Schedule 7.1
Main Station FCC Licenses:
-------------------------
Call Sign Facility Location FCC File No. License
--------- -------- -------- ------------ -------
ID Expiration Date
-- ---------------
WDEK(FM) 15974 DeKalb, Illinois BMLH-20011206AAS 12/01/2004
WKIE(FM) 00000 Xxxxxxxxx Xxxxxxx, XX XXX-00000000XXX 12/01/2004
WKIF(FM) 62360 Kankakee, IL BLH-19861007KB 12/01/2004
Auxiliary FCC Licenses:
----------------------
WDEK(FM): WAK894 Aural Studio Link Expires: 12/01/2004
WKIE(FM): KP3972 Remote Pickup Expires: 12/01/2004
WKIF(FM): WLF749 Aural Studio Link Expires: 12/01/2004
WPNP337 IG Microwave Expires: 4/20/2004 /1//
Pending FCC Applications: None
------------------------
FCC Antenna Structure Registrations:
-----------------------------------
WDEK(FM): Registration Xx. 0000000 (XxXxxx, XX) by Big City Radio, Inc.
_______________
/1// WPNP337, a business radio, is licensed to operate within a 25.0 km radius
around the center point 42-07-50.1 N, 087-58-59.3 W (Xxxx County, IL).
