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Exhibit 10.12
TIME BROKERAGE AGREEMENT
This Time Brokerage Agreement ("Agreement") is made and entered into as
of June 9, 1998, by and between Achievement Radio Holdings, Inc., a Delaware
corporation ("Achievement"), and Radio Unica Corp., a Delaware corporation
("Unica").
W I T N E S S E T H
WHEREAS, Personal Achievement Radio of Illinois, Inc. is the FCC
licensee (the "FCC Licensee") of commercial AM broadcast station WYPA (AM),
licensed to broadcast on frequency 000 xXx xx Xxxxxxx, Xxxxxxxx (the "Station");
WHEREAS, Achievement has entered into an agreement to purchase 100
shares of common stock of the FCC Licensee, representing all of the issued and
outstanding capital stock of the FCC Licensee;
WHEREAS, an application is pending before the Federal Communications
Commission (the "FCC"or the "Commission") to transfer control of the FCC
Licensee and the Station to Achievement;
WHEREAS, Unica and FCC Licensee have agreed to enter into an Option
Agreement, (the "Option Agreement"), pursuant to which Achievement, following
the transfer of control of the FCC Licensee and the Station, will grant to Unica
an option (the "Option") to purchase substantially all of the assets of the
Station pursuant to the Asset Purchase Agreement (the "Asset Purchase
Agreement") attached as an exhibit to the Option Agreement;
WHEREAS, Achievement desires to make available to Unica substantial
broadcasting
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time on the Station subject to the terms of this Agreement; and
WHEREAS, Unica is engaged in the business of radio broadcasting and
desires to avail itself of the Station's available broadcast time.
NOW, THEREFORE, for and in consideration of the mutual
covenants herein contained, the parties hereto have agreed and do agree as
follows:
1. Commencement Date And Facilities. Commencing 12:01 a.m. on Tuesday,
June 9, 1998 or upon the closing of the transaction to transfer control of the
FCC Licensee and the Station to Achievement, whichever is later, (the
"Commencement Date"), Achievement shall broadcast, or cause to be broadcast,
over the Station transmission facilities certain programming, consisting of
programs, announcements and advertising (the "Programming"), originating at the
Station's studio facility or delivered to Achievement by Unica in compliance
with the provisions of this Agreement. Unica shall deliver the Programming to
the Station's studio or transmitter site at Unica's exclusive cost, by satellite
or other means reasonably acceptable to Achievement. On the Commencement Date,
Achievement agrees to use its best efforts to cause the FCC Licensee to execute
a counterpart of this Agreement, dated as of the Commencement Date, and such
other instruments as may be reasonably necessary to confirm the undertaking of
the FCC Licensee to be bound by the terms and provisions of this Agreement.
2. License To Use Studio Facilities. Unica is hereby granted a license
to utilize the Station's studio facilities located at 000 Xxxxx Xxxxxx Xxx.,
Xxxxx 000, Xxxxxxx, Xxxxxxxx (the "Premises") during the term of this Agreement
subject to Achievement continuing control over such facilities as provided
elsewhere hereunder. During the term of this Agreement, Unica shall be obligated
to make no payments for the license to use the Station's studio facilities
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other than the fee called for by Section 4 hereof. Unica shall not make any
material physical improvements or changes to the Premises without the prior
written consent of the FCC Licensee, which consent shall not be unreasonably
denied nor delayed; provided, however, that Unica may, at its own expense,
install on the Premises such equipment, including, without limitation, satellite
receivers, as necessary to permit Unica to broadcast the Programming on the
Station. Such installation shall be subject to the FCC Licensee's approval and
supervision and consistent with the FCC Licensee's lease for such studio. Title
to any such equipment installed on the Premises by Unica shall remain with
Unica. Unica does not assume, and shall not be deemed to assume, under this
Agreement or otherwise by reason of the transactions contemplated by this
Agreement, any liabilities, obligations or commitments of the FCC Licensee of
any nature whatsoever, regardless of whether arising from or relating to the
ownership, operations or business of the Station. This Agreement shall not
constitute an assignment of any contract or lease to which the FCC Licensee is a
party, including without limitation any studio or tower leases. Consistent with
this Agreement, the FCC Licensee shall continue to perform all of its
obligations under all contracts, leases and other agreements in a timely manner
and otherwise keep all such contracts and leases in full force and effect.
3. Term. The term of this Agreement shall commence on the Commencement
Date. Starting on the Commencement Date Achievement agrees to make broadcast
time available to Unica as described below and to cause to be broadcast on the
Station Unica radio programs. This Agreement shall continue for a period of
twelve (12) months from the Commencement Date, unless sooner terminated,
extended or renewed as hereinafter provided (the "Initial Term"). In the event
the Option is exercised by Unica, the Term (as defined below)
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of this Agreement shall end upon the Closing (as defined in the Asset Purchase
Agreement) or the termination of the Asset Purchase Agreement pursuant to the
terms thereof; provided, however, that it is expressly agreed and understood by
the parties that, subject to the provisions of Section 11.2 and Section 11.3
hereof, termination of the Asset Purchase Agreement shall not result in the
Initial Term of this Agreement ending prior to the date that is twelve (12)
months from the Commencement Date. Unica, at its sole option, by giving written
notice to Achievement at least four (4) months prior to the ending of the
Initial Term, may (subject to the provisions of the Option Agreement) extend the
term of this Agreement for an additional twelve (12) months (the "Renewal Term,"
and together with the Initial Term the "Term").
4. Consideration.
Unica hereby agrees to pay Achievement a monthly fee of One
Hundred and Eighteen Thousand Dollars ($118,000) per month during the Initial
Term and One Hundred and Twenty One Thousand, Five Hundred and Forty Dollars
($121,540) per month during the Renewal Term. In the event that the Term
includes any partial month, the parties hereto agree that the monthly fee for
such partial month shall be prorated accordingly based upon the number of days
in that particular month. Amounts payable by Unica to Achievement pursuant to
this Agreement shall be paid in advance without notice or demand on the first
business day of each month during the term hereof, except, that Unica shall pay
to Achievement on the Commencement Date the fee due for the first month pursuant
to this Section, prorated accordingly. Payments will be made by check delivered
to Achievement at the address specified in Section 13 hereof, or such other
address as Achievement may select, provided that, if Achievement has given wire
transfer instructions to Unica, Unica will be required to
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make all payments by wire transfer of funds to the account specified by
Achievement.
5. Broadcast Operations.
5.1. Unica Programming. Commencing on the Commencement Date,
Unica shall furnish or cause to be furnished, at its own cost, material in
broadcast-ready form for broadcast on the Station pursuant to this Agreement at
all times other than the times of Achievement programming (the "Programming
Time"), and all such Unica programs shall accord with the Communications Act of
1934, as amended (as so amended, the "Act"), and all other applicable statutes
and FCC policies and requirements. The Programming provided by Unica shall be
sufficient for the Station to meet the minimum operating requirements under the
FCC rules and the Station's FCC license. Both parties acknowledge that the
Station is licensed to operate only during daytime hours specified by the FCC.
All rights, including without limitation all ownership rights and rights of use,
relating to the Programming shall belong exclusively to Unica, and Achievement,
except as provided herein, shall have no rights of any kind in or to such
programs and hereby disclaims all rights thereto.
5.2 Achievement Programming. Achievement reserves the
following periods to present Achievement programming: Saturday mornings from
6:00 a.m. to 8:00 a.m. or, during months when the station is not licensed to
commence operations at 6:00 a.m., the first two hours of licensed operation on
Saturday morning. Upon reasonable notice from Achievement, Unica instead of
Achievement will program those hours at Unica's expense and Unica will retain
any proceeds resulting therefrom. The fee provided in Section 4 shall not be
adjusted regardless of whether Unica programs this period.
5.3. Maintenance. The FCC Licensee shall use its best efforts,
if
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commercially reasonable and possible, to schedule and perform any maintenance
work affecting the operation of the Station at times other than during drive
time and World Cup Soccer matches. In the event that such maintenance work
cannot be scheduled and performed at such other times, the FCC Licensee shall
notify Unica, if possible, and an appropriate time will be determined after
consultation with Unica. The parties acknowledge, however, that the Station's
antenna currently is diplexed with that of WSBC, which is not owned by the FCC
Licensee, and that maintenance work on the WSBC facility is beyond the control
of the FCC Licensee or Achievement.
5.4. Interruption Of Normal Operations; Force Majeure. Any
failure or impairment of facilities or any delay or interruption in the
broadcast of programs, in whole or in part, due to a cause beyond the control of
Achievement, shall not constitute a breach of this Agreement by Achievement. If
the Station suffers loss or damage of any nature to its transmission facilities
which results in the interruption of service or the inability of the Station to
operate with its maximum authorized facilities, Achievement shall immediately
notify Unica.
6. Station Programming Policies.
6.1. Broadcast Station Programming Policy Statement.
Achievement has adopted, and the FCC Licensee and Achievement will enforce, a
Broadcast Station Programming Policy Statement for the Station (the "Policy
Statement"), a copy of which appears as Attachment I hereto. Unica agrees and
covenants that all programming, advertising spots, promotional material and
announcements that it provides for broadcast on the Station shall comply in all
material respects with (i) the Policy Statement; (ii) all applicable federal,
state and local laws and regulations, including the rules and regulations of the
FCC and the Federal Trade
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Commission ("FTC"), and the Act; and (iii) all subsequent changes to such rules
and regulations and the Act. Unica acknowledges that neither Achievement nor the
FCC Licensee has urged, counseled or advised the use of any unfair business
practice. If either Achievement or the FCC Licensee determines that a program
supplied by Unica, within its sole discretion, does not comply with the Policy
Statement or conform to the rules and regulations of the FCC it may, upon prior
written notice to Unica (to the extent time permits such notice), suspend or
cancel such program without liability to Achievement or the FCC Licensee,
subject to Section 8.2 herein.
6.2. Unica Compliance With Copyright Act. Unica represents
and warrants to Achievement that Unica has full legal authority for the
broadcast of its programming on the Station, and that Unica shall not provide
for broadcast of any material in violation of the Copyright Act or any
copyright rules and regulations. All music supplied by Unica shall be: (i)
licensed by ASCAP, SESAC or BMI; (ii) in the public domain; or (iii) cleared
at the source by Unica. Unica shall be responsible for payment of all such
license fees. The right to use the programming and to authorize its use in
any manner shall be and remain vested in Unica.
6.3. Sales. Unica shall retain all revenues from the sale
of advertising time within the programming it provides to Achievement. Unica
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 Achievement.
Achievement shall retain all revenues from its sale of Station's advertising
during the hours each week in which Achievement provides the Station with its
own programming outside of the Programming Time.
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6.4. Payola. Unica 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 Unica 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. Unica
agrees that every six (6) months, or more frequently at the request of the FCC
Licensee or Achievement, it will execute and provide Achievement with a Payola
Affidavit from each of its employees involved with the Station substantially in
the form attached hereto as Attachment II.
6.5. Cooperation On Programming. Unica shall provide the FCC
Licensee with information concerning such of Unica's programs as are responsive
to community issues, as the FCC Licensee shall reasonably request, so as to
assist the FCC Licensee in the satisfaction of its public service programming
obligations. Unica shall also provide Achievement upon request such other
information necessary to enable the FCC Licensee to prepare records and reports
required by the Commission or other local, state or federal government entities,
including quarterly issues/programs lists.
6.6. Station Identifiers and EAS. Unica shall cooperate with
the FCC Licensee to ensure compliance with the FCC rules regarding the broadcast
of hourly station identifiers and the emergency alert system. Achievement hereby
grants to Unica an exclusive license to use such call letters and other
identifiers as are currently used by the Station (the "Station's Licensed
Identifiers") in connection with the broadcast of Unica's programs on the
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Station, but for no other purpose. The license granted herein shall expire on
the expiration or earlier termination of this Agreement. Unica shall use the
Station's Licensed Identifiers in Unica's programming in a manner consistent
with the use thereof by Achievement in broadcasts of the Station immediately
prior to the Commencement Date during the entire term of this Agreement and as
may be required by the Act or the rules, regulations and policies of the FCC. In
addition, the FCC Licensee agrees, at Unica's cost, to cooperate with Unica in
applying for a change or changes in the Station's Licensed Identifiers ("New
Station Identifiers") should such a change be deemed appropriate by Unica, so
long as such New Station Identifiers are not offensive or contrary to the public
interest.
6.7. Political Advertising. Unica shall cooperate with the FCC
Licensee to comply with all rules of the FCC regarding political broadcasting,
including those requiring access by any qualified political candidate for
federal elective office, and the Station's political broadcast policies. Unica
shall promptly supply to the FCC 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 and regulations. Achievement shall cause the FCC Licensee to
develop, in consultation with Unica, a statement which discloses its political
broadcasting policies to political candidates, and Unica shall follow those
policies and rates in the sale of political programming and advertising. In the
event that Unica fails to satisfy the political broadcasting requirements under
the Act and the rules and regulations of the FCC and such failure inhibits the
FCC Licensee in its compliance with the political broadcasting requirements of
the FCC, then to the extent reasonably necessary to assure
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such compliance, Unica shall either (i) promptly reimburse the FCC Licensee for
the cost of rebates to political advertisers or (ii) release broadcast time
and/or advertising availabilities to the FCC Licensee at no cost to the FCC
Licensee.
6.8. Handling Of Mail. Except as required to comply with FCC
rules and policies following consummation of the assignment, including those
regarding the maintenance of the public inspection file, Achievement and the FCC
Licensee shall not be required to receive or handle mail, cables, telegraph or
telephone calls in connection with programs provided by Unica unless Achievement
at the request of Unica has agreed in writing to do so.
6.9. Insurance. Unica shall maintain throughout the term of
this Agreement insurance sufficient to cover general liability and errors and
omissions with regard to the programming it provides the Station. Such insurance
shall name Achievement as an insured party.
6.10. Achievement Control Of Programming. Achievement and the
FCC Licensee shall maintain absolute rights to suspend or preempt programming as
provided in Section 6.1 herein, and the FCC Licensee's right to suspend or
preempt programming as provided in Section 8.1 herein.
7. Responsibility For Employees And Expenses. Unica shall employ and be
responsible for the salaries, commissions, taxes, insurance and all other
related costs of all personnel and property involved in the production and
delivery of Unica's programming. Whenever on the Station's premises, Unica's
personnel shall be subject to the supervision and direction of the FCC Licensee.
Unica shall be responsible for all liabilities, debts and obligations of Unica
based upon the purchase of air time and delivery of programming including,
without
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limitation, accounts payable, barter agreements and unaired advertisements.
Achievement shall cause the FCC Licensee to provide Unica with ground or roof
rights as necessary for a satellite receive dish up to 3.5 meters in diameter to
receive Unica's programming at or near the Station's studio facility, subject to
the approval of the FCC Licensee's landlord. The FCC Licensee shall be
responsible for the salaries of its own employees at the Station.
8. FCC Licensee's Operation Of Station. Notwithstanding any other
provision of this Agreement, the FCC Licensee shall have full authority and
power over the operation of the Station during the period of this Agreement,
including the Station's finances, personnel and programming policies.
8.1 FCC Licensee Control Of Station Operations. Unica
agrees that the FCC Licensee shall retain control over the policies, programming
and operations of the Station; including, without limitation, (i) the right to
accept or reject any programming or advertisements provided by Unica pursuant to
Section 6.1, (ii) the right to preempt any programs provided by Unica that are
not in the public interest, or in order to broadcast a program deemed by the FCC
Licensee to be of greater national, regional or local interest, and (iii) the
right to take any other actions necessary for compliance with federal, state and
local laws, the Act and the rules, regulations and policies of other federal
government entities, including the FTC and the Department of Justice. The FCC
Licensee shall use its best efforts, to the extent possible, to give Unica
reasonable notice of its intention to preempt Unica's programs. The FCC Licensee
also shall retain the right to break into Unica's programming in case of an
emergency.
8.2. Preemption Or Rejection Of Programming; Service
Interruption.
In the event that the FCC Licensee or Achievement
ntentionally preempts or
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rejects programming from Unica for any reason based upon the content of such
programming, pursuant to the terms of this Agreement, Unica shall receive a
payment credit in an amount equal to the loss of revenue by Unica which shall
equal the loss of the Station's local and national revenues and the Station's
allocation of Radio Unica network revenues. The Station's allocation of Radio
Unica network revenues shall be equal to the percentage of Radio Unica network
revenues that is the same percentage determined by dividing the Hispanic
population of the Chicago market by the total Hispanic population reached by the
Radio Unica network. Unica shall provide Achievement with documentation
sufficient to support its calculation regarding lost revenue. The amount due to
Unica following the proration shall be deducted from the next monthly payment
made by Unica to Achievement. In the event that the Station experiences a
Service Interruption as defined herein, the amount due to Achievement for that
month pursuant to Section 4 of this Agreement shall be prorated based on the
percentage that the total hours in that calendar month of Programming not aired
due to a Service Interruption bears to the total amount of Programming that
Unica would have broadcast over the Station during the month if no Service
Interruption had occurred. The amount due to Unica following the proration shall
be deducted from the next monthly payment made by Unica to Achievement;
provided, however, that no credit shall be given based upon a Service
Interruption unless the Service Interruptions in any month exceed two (2) hours
in the aggregate. Moreover, no credit shall be given for any Service
Interruption caused by the negligent or intentional act or omission of Unica
and/or its employees or agents. For purposes of this section, "Service
Interruption" is defined as the Station being off the air, or not operating with
at least ninety percent (90%) of its licensed power, during the Programming Time
but shall not include the Station being off
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the air in whole or in part, due to a cause beyond the reasonable control of
Achievement.
8.3. Licensee Responsibility For FCC Compliance. The FCC
Licensee shall at all times be solely responsible for meeting all of the
Commission's requirements with respect to public service programming, for
maintaining the political and public inspection files and the Station logs, for
the preparation of issues/programs lists, and for retaining and supervising an
engineer to ensure compliance with the Commission's rules and regulations
governing the technical operation of the Station. Unica shall provide the FCC
Licensee with information necessary to maintain all necessary records to permit
the FCC Licensee to meet its obligations under this paragraph.
9. Indemnification.
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9.1. Unica shall indemnify and hold the FCC Licensee,
Achievement and their respective officers, directors, shareholders, agents, and
employees harmless against any and all claims, damages, liabilities, costs, and
expenses (including by way of example and without limitation, reasonable
attorneys' fees) (individually or collectively "Damages") arising out of (a)
libel, slander, illegal competition or trade practice, infringement of
trademarks, trade names, or program titles, violation of rights of privacy,
infringement of copyrights or proprietary rights and any other violations of the
rights of any third party, resulting from the broadcast of the Unica's programs,
or (b) any action taken by Unica or its employees or agents with respect to the
Station, or any failure by Unica or its employees or agents to take any action
with respect to the Station, including but not limited to Unica's payment and
performance of obligations and liabilities, unless resulting from a failure by
Achievement to perform hereunder, or (c) Unica's breach of any of its
representations, warranties or covenants set forth in this Agreement. Unica's
obligation to hold Achievement harmless under this Section shall survive a
termination of this Agreement until the expiration of all applicable statutes of
limitations.
9.2. Achievement and the FCC Licensee shall indemnify and hold
Unica and its officers, directors, shareholders, agents, and employees harmless
against any and all Damages arising out of (a) libel, slander, illegal
competition or trade practice, infringement of trademarks, trade names, or
program titles, violation of rights of privacy, infringement of copyrights or
proprietary rights and any other violations of the rights of any third party,
resulting from the broadcast of Achievement's or the FCC Licensee's programs, or
(b) any action taken by Achievement or the FCC Licensee or their employees or
agents with respect to the Station, or any failure by Achievement or the FCC
Licensee or their employees or agents to take any action
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with respect to the Station, including but not limited to Achievement's and the
FCC Licensee's payment and performance obligations and liabilities, unless
resulting from a failure by Unica to perform hereunder, or (c) Achievement's or
the FCC Licensee's breach of any of its representations, warranties or covenants
set forth in this Agreement. Achievement and the FCC Licensee's obligation to
hold Unica harmless under this Agreement shall survive any termination of this
Agreement until the expiration of all applicable statutes of limitations.
10. Default.
10.1. Events Of Default. The following shall, after the
expiration of the applicable cure periods, constitute Events of Default:
(i) Unica's failure to timely make any of the
monthly payments as provided in Section 4 hereto.
(ii) the default by either party hereto in the
material observance or performance of any covenant, condition or agreement
contained herein, or if either party (a) shall make general assignment for the
benefit of creditors, or (b) files or has filed against it a petition for
bankruptcy, reorganization or an arrangement for the benefit of creditors, or
for the appointment of a receiver, trustee or creditor 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;
(ii) 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.
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10.2. Cure Periods. An Event of Default shall not be deemed to
have occurred until five (5) business days after the non-defaulting party has
provided the defaulting party with written notice specifying the event or events
that if not cured would constitute an Event of Default and specifying the action
necessary to cure the default within such period. This period may be extended
for a reasonable period of time, if the defaulting party is acting in good faith
to cure the default and such default is not materially adverse to the other
party.
11. Termination.
11.1. This Agreement shall terminate on the first anniversary
of the Commencement Date, unless terminated, extended or renewed as provided in
Section 3 or Section 11 hereof.
11.2. 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. Notwithstanding the
foregoing, nor any provision of this Agreement, any termination of this
Agreement: (a) shall not constitute an election of remedies with regard to such
default or such termination; and (b) shall not affect, or limit, the ability of
the non-defaulting party to avail itself of any and all remedies which otherwise
would have been available to it, at law or in equity.
11.3 Termination Upon Order Of Governmental Authority. If this
Agreement is challenged at the FCC, whether or not in connection with the
Station's license renewal application, counsel for the FCC Licensee and
Achievement and counsel for the Unica shall jointly defend the Agreement and the
parties' performance thereunder throughout all FCC proceedings at the sole
expense of the Unica. If portions of this Agreement are questioned,
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challenged or disapproved by the FCC, then the parties shall reform the
Agreement as necessary to satisfy the FCC's concerns. If the parties are unable
to reform the Agreement as necessary to satisfy such concerns, this Agreement
shall terminate. In the event that a federal, state or local government
authority designates a hearing with respect to the continuation or renewal of
any authorization held by the FCC Licensee for the operation of the Station or
initiates any revocation or other proceeding with respect to the authorizations
issued to the FCC Licensee for the operation of the Station, and Achievement
elects to contest the action, then Achievement shall be responsible for its
expenses incurred as a consequence of any such proceeding; provided, however,
that Unica shall at its own expense cooperate and comply with any reasonable
request of Achievement to assemble and provide information relating to Unica's
performance under this Agreement to the appropriate government authority. In the
event of termination of this Agreement pursuant to any government order(s),
including a revocation or non-renewal of any authorization held by the FCC
Licensee, Unica shall pay to Achievement any fees due but unpaid as of the date
of termination as may be permitted by such order(s).
11.4. Cooperation Upon Termination. If this Agreement is
terminated, for whatever reason, the parties agree to reasonably cooperate with
one another to enable Unica to fulfill advertising or other programming
contracts then outstanding, in which event Achievement shall receive as
compensation for the carriage of such programming that which otherwise would
have been paid to Unica. Upon termination of this Agreement, all sums owing to
Achievement prior to the date of termination which have not been paid shall be
paid in full and Unica shall be entitled immediately to cease providing any
further Programming to be broadcast on the Station, and any amounts which have
been prepaid to Achievement beyond the termination
17
date shall be immediately due and payable to Unica; provided, however, that if
such termination is not as a result of a default by Achievement under this
Agreement, Achievement may require Unica to continue to provide Programming to
the Station (at no cost to Unica) for an additional sixty (60) days after the
termination date.
11.5. Specific Performance. In addition to its rights of
termination hereunder (and in addition to any other remedies available to it or
provided under law), each party may seek specific performance of this Agreement,
in which case the other party shall waive the defense of an adequate remedy at
law and interpose no opposition, legal or otherwise, as to the propriety of
specific performance as a remedy hereunder.
12. Representations, Warranties And Covenants. Both
Achievement and Unica 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. Without limiting the foregoing, Unica certifies that this Agreement
complies and will continue to comply with the Commission's multiple ownership
rules and policies, including 47 C.F.R. ss. 73.3555, as now in effect or
hereinafter amended.
13. Notices. All necessary notices and requests permitted or
required under this Agreement shall be in writing and shall be sent (i) by
facsimile transmission to the telecopy numbers listed herein, (ii) mailed by
certified mail, return receipt requested, postage prepaid, to the addresses
listed herein, or (iii) sent for overnight delivery via a nationally-recognized
overnight delivery service to the addresses listed herein. Such notices and
requests shall be deemed to have been given (i) if sent by facsimile, upon
sender's receipt of a facsimile
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confirmation sheet, (ii) if mailed, upon receipt evidenced by return
signature card by postal service to sender, or (iii) if sent for overnight
delivery, upon receipt evidenced by confirmation of delivery by delivery
service.
If to Unica: Radio Unica Corp.
0000 X.X. 00xx Xxxxxx
Xxxxx 000
Xxxxx, XX 00000
Attn: Xxxxxxx X. Xxxxx
FAX: (000) 000-0000
With copy to: Xxxxxxx Xxxx Slate Xxxxxxx & Xxxx LLP
0000 Xxx Xxxx Xxxxxx, XX
Xxxxxxxxxx, XX 00000-0000
Attn: Xxxx X. Xxxxx Esq.
FAX: (000) 000-0000
If to Achievement
and or
the FCC Licensee: Achievement Radio Holdings, Inc.
c/o TSG Capital Group L.L.C.
000 Xxxxx Xxxxxx
00xx Xxxxx
Xxxxxxxx, XX 00000
Attn: Xxxxxx Xxxxxxxx
FAX: (000) 000-0000
With copy to: Xxxxxxxxxx and Xxxxx, L.L.P.
0000 Xxxxxxxxx Xxxxxx, X.X.
Xxxxx 000
Xxxxxxxxxx, X.X. 00000
Attn: Xxxxxx X. Xxxxx, Esq.
FAX: (000) 000-0000
14. Arbitration. Any dispute arising under or related to
this Agreement shall be resolved by binding arbitration in Washington, D.C. in
accordance with the then existing Rules of Practice and Procedure of Judicial
Arbitration & Mediation Services, Inc., and judgment
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upon any award rendered by the arbitrator(s) may be entered by any State or
Federal Court having jurisdiction thereof. The prevailing party shall be awarded
all of its legal fees, disbursements and costs of arbitration.
15. Modification And Waiver. No modification of any
provision of this Agreement shall in any event be effective unless it is in
writing and then such modification shall be effective only in the specific
instance and for the purpose for which given.
16. Construction. This Agreement shall be construed in accordance
with the Communications Act of 1934, as amended, the laws of the State of
Delaware and the rules, regulations and policies of the Commission.
17. Assignment. This Agreement may not be assigned by Unica
without the approval of Achievement, except for an entity under common control.
Achievement and the FCC Licensee may assign this Agreement to another entity
under common control; to any licensee of the Station; or to another third party
with the approval of Unica.
18. 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
effective as of the date first above written.
19. Entire Agreement. This Agreement (together with the
Attachments hereto) and the Option Agreement constitute the entire agreement
between the parties and there are no other agreements, representations,
warranties or understanding, oral or written, between them with respect to the
subject matter hereof. No alteration, modification or change of this Agreement
shall be valid unless by like written instrument executed by an authorized
principal.
20
20. No Partnership Or Joint Venture Created; Expenses.
Nothing in this Agreement shall be construed to make Achievement and Unica
partners or joint venturers or to afford any rights to any third party other
than as expressly provided herein. Each party shall bear its own expenses in
connection with its performance under this Agreement.
21. Severability. Subject to the provisions hereof, in the
event any provision contained in this Agreement is held to be invalid, illegal
or unenforceable, such holding shall not affect any other provision hereof and
this Agreement shall be construed as if such invalid, illegal or unenforceable
provision had not been contained herein.
22. Confidentiality, Public Notices. Unica, the FCC
Licensee and Achievement each agrees that it will use its best efforts to keep
confidential (except for disclosure requirements of federal or state securities
laws and securities markets along with such disclosure to attorneys, bankers,
underwriters investors, etc. as may be appropriate in the furtherance of this
transaction, or disclosure requirements of the FCC) all information of a
confidential nature obtained by it from each of the other parties, including the
terms of any proposal, in connection with the transactions contemplated by this
Agreement. Unica and Achievement shall jointly prepare and determine the timing
of any press release or other announcement to the public or the news media
relating to the execution of this Agreement. No party hereto will issue any
press release or make any other public announcement relating to the transactions
contemplated by this Agreement without the prior consent of each other party
hereto, except that any party may make any disclosure required to be made by it
under applicable law (including federal or state securities laws and the
regulations of securities markets) if it determines in good faith that it is
appropriate to do so and gives prior notice to each other party
21
hereto.
IN WITNESS WHEREOF, the parties have executed this Agreement to be
effective as of the date first above written.
Achievement Radio Holdings, Inc.:
By: /s/Xxxxxx Xxxxxxxx
---------------------------------
Xxxxxx Xxxxxxxx
President
Radio Unica Corp.:
By: /s/Xxxxxxx X. Xxxxx
---------------------------------
Xxxxxxx X. Xxxxx
Chairman and Chief Executive Officer
22
IN WITNESS WHEREOF, the parties have executed this Agreement to be
effective as of the date first above written.
Achievement Radio Holdings, Inc.:
By: /s/Xxxxxx Xxxxxxxx
---------------------------------
Xxxxxx Xxxxxxxx
President
Radio Unica Corp.:
By:
---------------------------------
Xxxxxxx X. Xxxxx
Chairman and Chief Executive Officer
Personal Achievement Radio of Illinois, Inc., hereby agrees to
the terms of this Agreement and further agrees, as of the Commencement Date (as
defined in this Agreement), to be bound by the terms and provisions hereof.
Personal Achievement Radio Of Illinois, Inc.:
By: /s/ Xxxxxx Xxxxxxxx
---------------------------------
Name:
Title:
23
ATTACHMENT I
Broadcast Station Programming Policy Statement
The following sets forth the policies generally applicable to the
presentation of programming and advertising over Radio Station WYPA(AM),
Chicago, Illinois. All programming and advertising broadcast by the station 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"]. This policy shall be in addition to any other
programming requirements set forth in the Time Brokerage Agreement.
Station Identification
The station must broadcast a station identification announcement once
an hour as close to the hour as feasible in a natural break in the programming.
The announcement must include (1) the station's call letters (currently,
"WYPA"); followed immediately by (2) the station's community of license
("Chicago, Illinois").
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 station 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 station at the time of broadcast shall announce (1) that the
matter is sponsored, either in whole or in part; and (2) by whom or on whose
behalf the matter is sponsored. Products or services furnished to the station 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 station 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 station's public
inspection file.
Payola/Plugola
The station, its personnel, or its programmers 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 station so that all required station identification announcements can be
made. All persons responsible for station programming must, from time to time,
execute such documents as may be required by station management to confirm their
understanding of and compliance with the FCC's sponsorship identification
requirements.
Rebroadcasts
The station shall not rebroadcast the signal of any other broadcast
station without first obtaining such station's prior written consent to such
rebroadcast.
Fairness
Station shall seek to afford coverage to contrasting viewpoints
concerning controversial issues of public importance.
Personal Attacks
The station 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 Licensee, Broker shall not air any
editorial which either endorses or opposes a legally qualified candidate for
public office.
Political Broadcasting
All "uses" of the station 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 Station 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
offensive way sexual conduct specifically defined by applicable state law; and
taken as a whole, lacks serious literary artistic, political or scientific
value.
The station shall not broadcast any indecent material outside of the
periods of time prescribed by the Commission. 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 station 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 station 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 station 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 station shall not knowingly broadcast false information concerning
a crime or catastrophe.
Lottery
The station shall not advertise or broadcast any information concerning
any lottery (except any Illinois or other state lottery). The station may
advertise and provide information about lotteries conducted by non-profit
groups, governmental entities and in ceratin situations,
by commercial organizations, if and 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 station management.
Advertising
Station 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.
ATTACHMENT II
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. I am for .
----------------------- ------------------------
Position
2. I have acted in the above capacity since .
----------------
3. No matter has been broadcast by Station WYPA(AM) which service, money
or other valuable consideration has been directly or indirectly paid,
or promised to, or charged, or accepted, by me 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 I am aware, no matter has been broadcast by Station WYPA for
which service, money, or other valuable consideration has been directly
or indirectly paid, or promised to, or charged, or accepted by Station
WYPA or by any independent contractor engaged by Station WYPA 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 future, I 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 or presentation of broadcast
matter on Station WYPA.
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.
7. Except as disclosed below, I, my spouse and all members of my immediate
family hold no present direct or indirect ownership interest in (other
than an investment in a corporation whose stock is publicly held); do
not serve as an officer or director of, whether with or without
compensation; and do not 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 transcriptions 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 WYPA, or any other station owned by
Achievement (excluding nominal stockholdings in publicly owned
companies).
8. The facts and circumstances relating to any exceptions to the foregoing
are as follows:
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Affiant
Subscribed and sworn to before me this
day of , 19 .
------- ------------------- ---
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Notary Public
My commission expires: .
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