EXHIBIT 10.17
TIME BROKERAGE AGREEMENT
THIS TIME BROKERAGE AGREEMENT ("Agreement"), dated as of December 29,
1999, is made and entered into by and between RADIO UNICA CORP., a Delaware
corporation ("Unica"), and QUETZAL BILINGUAL COMM., INC., a California
corporation ("Quetzal").
WHEREAS, Quetzal is the owner and operator of radio station KURS, 1040
kHz, licensed to San Diego, California (the "Station");
WHEREAS, Unica and Quetzal have entered into that certain Option
Agreement, dated as of December 29, 1999 (the "Option Agreement"), pursuant to
which Quetzal has granted 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, Quetzal desires to make available to Unica substantially all
the broadcasting time on the Station; 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, in consideration of the promises and the mutual
covenants and agreements herein contained, Unica and Quetzal agree as follows:
1. COMMENCEMENT DATE AND FACILITIES.
Commencing 12:01 a.m. on Saturday, January 1, 2000 (the "Operational
Commencement Date"), Quetzal 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 or delivered to Quetzal by Unica in compliance with the provisions of
Section 6(a) of this Agreement. Unica shall deliver the Programming to Quetzal's
transmitter site at Unica's exclusive cost, by means reasonably acceptable to
Quetzal.
2. LICENSE TO USE STUDIO AND OFFICE FACILITIES; ASSIGNMENTS.
(a) During the Term (as hereinafter defined) of this Agreement Unica is
hereby granted a license to utilize the Station's studio and office facilities
located at the News Plaza Building, 000 X Xxxxxx, 0xx Xxxxx, Xxxxx Xxxxx, XX
00000 (the "Premises"); PROVIDED, THAT until February 29, 2000, Xx. Xxxxx
Xxxxxxx and his personnel shall be allowed to continue to use approximately
1,410 square feet of office space located on the Premises that Xx. Xxxxxxx and
his peronnel are currently using for business offices (the "Office Space").
Unica hereby agrees to pay News Baja, Inc. a monthly fee of Two Thousand Six
Hundred Twenty-Six Dollars ($2,626.00) for the use of the Office Space
commencing on March 1, 2000 and continuing for the remainder of the Term of this
Agreement; except that, no such monthly fee for the Office Space shall be owed
by Unica until Xx. Xxxxxxx and
his personnel have vacated the Office Space. During the Term of this Agreement,
Unica shall be obligated to make no payments for the license to use the Premises
other than the monthly fee called for by this Section 2(a) and 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 Quetzal, 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 Quetzal's approval and supervision. 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 Quetzal of any nature whatsoever, regardless of whether arising
from or relating to the ownership, operations or business of the Station. Except
as specifically provided in Section 2(d) hereof, this Agreement shall not
constitute an assignment of any contract or lease to which Quetzal is a party,
including without limitation any studio or tower leases. Consistent with this
Agreement, except as specifically provided in Section 2(d) hereof, Quetzal 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.
(b) In the event that Unica exercises the Option pursuant to the terms
of the Option Agreement, Unica and News Baja, Inc., the controlling shareholder
of Quetzal, agree to enter into a lease agreement substantially in the form of
Quetzal's current lease with News Baja for the Premises, a copy of which is
attached hereto as Exhibit A, which lease shall include the following terms:
Unica shall pay monthly rent of $8,400.00 for a term of seven years and shall
have the option to extend the term of the lease for an additional five years.
The monthly rent shall be increased three percent (3%) per year. The lease shall
include parking, general building maintenance and the use of fifty percent (50%)
of the garage (News Baja to pay for separation wall and new exterior entrance
into subdivided space). Electrical shall be paid for at a rate of thirty-three
percent (33%) of the electrical invoice for the building. The first and last
month's rent shall be paid as a deposit.
(c) In addition to any payments required pursuant to Section 4(a)
hereof and Section 1.6 of the Option Agreement, on the date hereof, Unica shall
pay News Baja One Hundred Thousand Dollars ($100,000.00) for vacating the
Premises, such amount to be paid by wire transfer of immediately available funds
to an account specified by Quetzal in writing.
(d) Subject to the terms hereof, Quetzal hereby assigns, transfers, and
conveys to Unica, its successors and assigns, and Unica hereby accepts all of
the rights, title and interest of Quetzal in the contracts set forth on Schedule
2(d)(i) hereof. In addition, Quetzal hereby assigns title to and Unica hereby
accepts the contracts to a 1996 GMC Safari, account number 000-0000-00000 and a
1996 GMC Safari, account number 000-0000-00000 and Quetzal hereby further
assigns title to a 1985 GMC Step Van. Additionally, Unica hereby assumes the
obligations for advertising time as set forth on Schedule 2(d)(ii) hereto;
PROVIDED, THAT, in no event will Unica be responsible for more than $149,879.50
of advertising time which obligation Unica shall fulfill in accordance with
Seller's
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rate card; and subject to the terms of Section 21.2(g) hereof, Unica covenants
and agrees to use its best efforts to commission Lotus Hispanic Reps. Corp., a
California corporation ("Lotus") for sales previously booked and recorded for
the broadcast period that begins January 1, 2000 pursuant to that certain
contract dated September 28, 1999 between Lotus and Pacific Spanish Network
Radio Station KURS (the "Lotus Agreement").
3 TERM.
This Agreement shall be effective on January 1, 2000, and, unless
sooner terminated, extended or renewed as hereinafter provided, shall end on
December 31, 2001 (the "Initial Term"). In the event the Option is exercised by
Unica, the Initial Term 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, it being expressly agreed and
understood that termination of the Asset Purchase Agreement shall not result in
the Initial Term of this Agreement ending prior to December 31, 2001. At any
time prior to the end of the Initial Term, Unica, at its sole option, by written
notice to Quetzal, may renew this Agreement for an additional one year period,
in which case this Agreement, unless sooner terminated, shall continue from
January 1, 2002 and end on December 31, 0000, (xxx "Xxxxxxx Xxxx," and together
with the Initial Term, the "Term").
4 PAYMENTS BY UNICA.
(a) In addition to any fees and costs Unica incurs in producing,
providing and delivering the Programming (including costs payable by Unica
pursuant to Section 4(c) and Section 10(a) hereof), and the fees called for
pursuant to Section 2(a) hereof and subject to Section 1.6 of the Option
Agreement, Unica hereby agrees to pay Quetzal, during the Term, a monthly fee of
Sixty Two Thousand Dollars ($62,000.00) ("Monthly Fee"), which Monthly Fee
includes all costs related to engineering, transmitter operations, utilities,
and transmitter lines and subject to Section 2(a) hereof) the use of Quetzal's
studio facilities. The Monthly Fee payable by Unica to Quetzal pursuant to this
Agreement shall be paid in advance without notice or demand prior to the first
day of each month during the Term hereof, except that Unica shall pay Quetzal,
on the date hereof, a deposit of One Hundred Twenty Four Thousand Dollars
($124,000.00), representing the Monthly Fee to be paid by Unica for the first
and last month pursuant to this Section 4(a), such amount to be paid by wire
transfer of immediately available funds to an account specified by Quetzal in
writing. Quetzal hereby agrees that the Monthly Fees due hereunder for the
seventh and eighth months shall be suspended and no payments shall be made by
Unica to Quetzal for such months; PROVIDED, THAT if the Option is not exercised
by Unica, such Monthly Fees for the seventh and eighth months in the amount of
One Hundred Twenty Four Thousand Dollars ($124,000.00) shall be added to the
last Monthly Fee payment due under this Agreement by Unica to Quetzal. Monthly
Fee payments received later than the fifth business day of any month shall be
subject to a late charge of five percent (5%) of the Monthly Fee (the "Late
Charge"). The Late Charge shall be paid within ten business days of written
notice by Quetzal to Unica of the late Monthly Fee. Subject to Section 1.6 of
the Option Agreement, all payments to Quetzal hereunder shall be made without
deductions or offset and shall be non-refundable, except as otherwise provided
in this Agreement.
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(b) Subsequent payments will be made by check delivered to Quetzal at
000 X Xxxxxx, 0xx Xxxxx, Xxxxx Xxxxx, Xxxxxxxxxx 00000, or such other address as
Quetzal may select pursuant to Section 29 hereof, PROVIDED, THAT, if Quetzal has
given wire transfer instructions to Unica, Unica will be required to make all
payments by wire transfer of immediately available funds to the account
specified by Quetzal.
(c) Unica shall be solely responsible for and shall pay in a timely
manner all direct and indirect costs incurred by Unica in producing, providing
and delivering the Programming including, but not limited to, (i) program costs,
(ii) sales costs, (iii) Station advertising and promotion costs, (iv) costs
related to Unica's audio lines to Quetzal's studio or transmitter, (v) salaries,
payroll taxes, insurance, health benefits and related costs of personnel
employed by Unica in connection with the Programming supplied to Quetzal, (vi)
marketing, costs in connection with sales and promotion of radio time, (vii)
costs related to administrative supplies, FCC regulatory fees, local and long
distance telephone service related to the Station (including toll-free calls),
and (viii) income, gross receipts, sales, personal property, and other taxes of
any nature whatsoever and costs related to Unica's programming of the Station.
Additionally, Unica shall be solely responsible for providing and operating its
own vehicles in connection with the Programming and shall be solely responsible
for the payment of any costs incurred in connection with the provision and
operation of such vehicles, including insurance.
(d) Quetzal agrees to assign to Unica on the date hereof all of its
right title and interest in the accounts receivable (the "Accounts Receivable")
set forth on Schedule 4(d) hereto. In consideration for assigning the Accounts
Receivable to Unica, Unica agrees to pay Quetzal a sum equal to forty percent
(40%) of the amount of the total Accounts Receivable set forth on Schedule 4(d),
such sum to be paid in four equal, monthly installments, commencing on February
1, 2000.
(e) The failure of Quetzal to demand or insist upon timely and full
payment of any payment due hereunder, shall not constitute a waiver of Unica's
obligations under this Section 4.
5 PAYMENTS BY QUETZAL.
In addition to the costs payable by Quetzal pursuant to Section 10(b)
hereof, Quetzal shall be solely responsible for and shall pay in a timely manner
the following costs of the Station: (i) rents, utilities, insurance and
maintenance costs relating to the Station's tower and transmitter site
facilities and other real and personal property relating to, or used by, the
Station; (ii) Quetzal's local telephone service, its delivery and postal service
expenses; (iii) the salaries, payroll taxes, insurance, health benefits and
related costs of personnel employed by Quetzal in the operation of the Station
following the Operational Commencement Date; and (iv) income, gross receipts,
sales, personal property, excise or any other taxes of any nature whatsoever
pertaining to the transmission function of the Station and costs related to the
production and broadcast of material supplied by Quetzal pursuant to Section
6(b) of this Agreement ("Quetzal Programming").
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6 PROGRAMS.
(a) 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 the Quetzal Programming, 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 Federal
Communications Commission ("FCC") policies and requirements. All rights,
including without limitation all ownership rights and rights of use, relating to
the Programming shall belong exclusively to Unica, and Quetzal shall have no
rights of any kind in or to such programs and hereby disclaims all rights
thereto.
(b) Quetzal reserves the following periods to present Quetzal
Programming and to sell time and collect fees therefor: Sunday morning from
6:00AM - 8:00 AM. Upon reasonable notice from Quetzal, Unica instead of Quetzal
will program those hours at Unica's expense and Unica will retain any proceeds
resulting therefrom.
7 EMPLOYMENT.
(a) Quetzal shall be solely responsible for, and shall indemnify Unica,
its directors, officers, employees, contractors, agents, or affiliates from and
against, all claims, costs, losses, liability, damages, and other expenses
(including reasonable professional fees and disbursements) relating to,
salaries, taxes, insurance, severance, bonuses and other benefits or obligations
due or payable to: (i) all personnel (other than employees of Unica) used in the
production of Quetzal Programming hereunder or necessary to fulfill Quetzal's
obligations hereunder; and (ii) all employees of Quetzal.
(b) Unica shall be solely responsible for, and shall indemnify Quetzal,
its directors, officers, employees, contractors, agents or affiliates from and
against, all claims, costs, losses, liability, damages, and other expenses
(including reasonable professional fees and disbursements) relating to,
salaries, taxes, insurance, severance, bonuses, and other benefits or
obligations due or payable to: (i) all personnel (other than employees of
Quetzal) used in the production of the Programming hereunder or necessary to
fulfill Unica's obligations hereunder; and (ii) all employees of Unica.
8 HANDLING OF MAIL AND PUBLIC FILE.
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To the extent that either Quetzal or Unica receives or handles mail,
cables, telecopies, telephone calls or other communications in connection with
any material broadcast over the Station during the term of this Agreement, the
party promptly shall (a) advise the other, in writing, of any public or FCC
complaint or inquiry concerning the Programming or the Quetzal Programming, or
both and (b) deliver to the other a copy of any written communications from the
public or the FCC. Unica also shall deliver to Quetzal copies of all operating
and programming information relating to Unica, including, without limitation,
the Station's operating logs, necessary to maintain the public file and other
records required to be kept by FCC regulations, rules and policies. During the
term of this Agreement, Unica, as to the Programming, also shall maintain and
deliver to Quetzal such records and information required by the FCC to be placed
in the public inspection file of the Station relating to the broadcast of
political programming and advertisements, in accordance with the provisions of
Sections 73.1943 and 73.3526 of the FCC's rules, and pertaining to the broadcast
of sponsored programming addressing political issues or controversial issues of
public importance, in accordance with the provisions of Section 73.1212 of the
FCC's rules. Unica also shall consult with Quetzal concerning the Programming to
ensure that the Station is compliant with the Act and all other applicable
statutes and the rules, regulations and policies of the FCC, as announced from
time to time, with respect to the carriage of political advertisements and
programming (including, without limitation, the rights of candidates and, as
appropriate, others to "equal opportunities") and the charges permitted
therefor. Unica shall provide to the Station such documentation relating to the
Programming as Quetzal reasonably shall request. Quetzal shall be responsible
for providing the personnel necessary to maintain a complete public file (as
required by the FCC) and to compile and file all required quarterly
issues/programs lists for the Station.
9 MAINTENANCE OF EQUIPMENT.
(a) The transmitter equipment and antennas used for the Station's
broadcasts owned by Quetzal (the "Transmission Equipment") shall be maintained
by Quetzal in a condition consistent with good engineering practices and in
compliance in all material respects with the Act and all other applicable rules,
regulations and technical standards of the FCC. Quetzal shall maintain power and
modulation of the Station broadcasts in a manner consistent with Quetzal's past
practices. All capital expenditures reasonably required to maintain the
technical quality of the Station's Transmission Equipment and its compliance
with applicable laws and regulations shall be made at the sole expense and in
the sole discretion of Quetzal.
(b) All equipment necessary for the delivery of the Programming and the
Quetzal Programming shall be paid for and/or maintained by Unica in a condition
consistent with good engineering practices and in compliance in all material
respects with the Act and all other applicable rules, regulations and technical
standards of the FCC. All capital expenditures reasonably required to maintain
the technical quality of the broadcast equipment and its compliance with
applicable laws and regulations shall be made at the sole expense and in the
sole discretion of Unica.
10 RESPONSIBILITY FOR PRODUCTION EXPENSES.
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(a) Unica shall pay for all costs associated with producing, providing
and delivering the Programming and sale of radio time, all fees to ASCAP, BMI
and SESAC and any other music licensing organization, attributable to the
Programming and any other copyright fees attributable to the Programming.
(b) Quetzal shall pay for all costs associated with producing,
providing and delivering the Quetzal Programming and sale of radio time, all
fees to ASCAP, BMI and SESAC and any other music licensing organization,
attributable to the Quetzal Programming and any other copyright fees
attributable to the Quetzal Programming.
11 CONTROL OF THE STATION.
During the term of this Agreement, Quetzal shall maintain ultimate
control over the Station's facilities and Unica agrees that it will permit
Quetzal to take any and all steps necessary to maintain such control
continuously throughout the term of this Agreement. Quetzal and Unica
acknowledge and agree that Quetzal's responsibility to retain control is an
essential element of the continuing validity and legality of this Agreement.
Quetzal shall provide and shall pay all costs for: (a) a General Manager for the
Station who shall report solely to, and be accountable solely to, Quetzal and
who shall direct the day-to-day operations of the Station; and (b) such other
engineering, programming and other personnel as are necessary to fulfill
Quetzal's obligations under this Agreement, including but not limited to
personnel necessary for any remote control facilities to be manned by Quetzal's
personnel to meet FCC operating requirements, all in accordance with FCC
policies, which currently require Quetzal to employ at the Station at least one
full time management employee (who shall be the General Manager referred to in
clause (a) of this Section 11) and one full time staff employee (or part time
employees equivalent to one full time staff employee). Quetzal shall retain
control, said control to be reasonably exercised, over the policies, programming
and operations of the Station, including, without limitation, the right to
decide whether to accept or reject any programming or advertisements, and the
right to take any other actions necessary to comply with the laws of the United
States and of the State of California and the rules, regulations and policies of
the FCC. Quetzal shall maintain its main studio within the boundaries permitted
by FCC rules and Unica shall take such actions as Quetzal may reasonably request
to ensure such requirements are met. Unica shall have the ability to utilize
Quetzal's studio and office facilities during the Term of this Agreement in
accordance with Section 2 hereof. Unica shall not represent, warrant or hold
itself out as the Station's owner and shall sell all advertising time and enter
into all agreements in its own name. Quetzal reserves the right to refuse to
broadcast any program or programs containing matter which is, or in the
reasonable opinion of Quetzal may be, violative of any right, law, or
governmental rule, regulation or policy.
12 SPECIAL EVENTS.
Quetzal has the right to reject any of the Programming and to
substitute on a temporary basis a program that, in the reasonable opinion of
Quetzal, is of greater public local or national importance. Quetzal confirms
that no Programming shall be rejected on the basis of Programming
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performance or ratings, advertiser reaction or the availability of alternative
programming (including, but not limited to, sporting events or paid programming)
that Quetzal believes to be more profitable or more attractive. Quetzal shall
give Unica written notice of such rejection and substitution, and the reasons
therefor, at least three (3) weeks in advance of the scheduled broadcast, or as
soon thereafter as possible (including an explanation of the cause of any lesser
notice). In the event of such preemption, 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 San Diego
market by the total Hispanic population reached by the Radio Unica network.
13 FORCE MAJEURE.
Any failure or impairment (I.E., failure to broadcast at Station's full
authorized power) of facilities or any delay or interruption in broadcast
programs, or failure at any time to furnish facilities, in whole or in part, for
broadcasting, due to any acts of God, strikes or threats thereof or FORCE
MAJEURE or due to any other causes beyond the reasonable control of Quetzal or
Unica shall not constitute a breach of this Agreement and Quetzal or Unica, as
the case may be, will not be liable to the other party hereto therefor, provided
such party uses reasonable diligence to correct such failure or impairment as
soon as is reasonably possible.
14 STATION'S IDS.
Quetzal hereby grants to Unica an exclusive license to use such call
letters and other identifiers as are currently used or in the future may be used
by the Station (the "Station's Licensed Identifiers") in connection with the
broadcast of Unica's programs on the Station, but for no other purpose. The
license granted herein shall expire on the Closing Date or upon 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 Quetzal in broadcasts of the Station immediately prior to the Operational
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, Quetzal 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.
15 PAYOLA.
Unica shall provide Quetzal with payola affidavits, substantially in
the form attached hereto as Attachment A, signed by such of Unica's employees
and at such times as Quetzal may reasonably request in writing, and shall notify
Quetzal promptly of any violations it learns of relating to the Act, including
Sections 317 and 508 thereof.
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16 COMPLIANCE WITH LAW AND OTHER AGREEMENTS.
Unica and Quetzal shall, throughout the term of this Agreement, comply
in all material respects with the Act, the rules, regulations and policies of
the FCC, the terms of the Station's FCC licenses and all other laws and
regulations applicable to the conduct of Station business.
17 INDEMNIFICATION; WARRANTY.
Each party (as the case may be, the "Indemnitor") shall indemnify and
hold harmless the other party (as the case may be, the "Indemnitee"), its
directors, officers, employees, agents and affiliates, from and against any and
all liability, including without limitation all reasonable attorneys fees,
arising out of or incident to the programming furnished by the Indemnitor, any
breach of this Agreement by the Indemnitor or the conduct of the Indemnitor, its
directors, officers, employees, contractors, agents or affiliates. Without
limiting the generality of the foregoing, Indemnitor shall indemnify and hold
and save the Indemnitee, its directors, officers, employees, agents and
affiliates harmless against liability for libel, slander, infringement of
trademarks, trade names, or program titles, violation of rights of privacy, and
infringement of copyrights and proprietary rights resulting from the programming
furnished by the Indemnitor. Each party's obligation to hold the other harmless
against the liabilities specified above shall survive any termination or
expiration of this Agreement for a period of six (6) months.
18 EVENTS OF DEFAULT.
Each of the following shall constitute an "Event of Default" under this
Agreement:
(a) DEFAULT IN COVENANTS. Unica's or Quetzal's material non-observance
or material non-performance of any covenant or agreement contained herein,
(PROVIDED, HOWEVER, that such default shall not constitute an Event of Default
hereunder unless such default is not cured within twenty (20) business days
after delivery of written notice thereof to the breaching party by the
non-breaching party); or
(b) BREACH OF REPRESENTATION. Unica's or Quetzal's material breach of
any representation or warranty herein, or in any certificate or document
furnished pursuant to the provisions hereof, which shall prove to have been
false or misleading in any material respect, as of the time made or furnished,
and not cured within twenty (20) business days after delivery of written notice
thereof to the breaching party by the non-breaching party; or
(c) INSOLVENCY. The voluntary filing by Unica or Quetzal (or an
involuntary filing with respect to Unica or Quetzal not vacated within ninety
(90) days after such filing) of a petition for reorganization or dissolution
under federal bankruptcy laws or under substantially equivalent state laws.
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19 TERMINATION.
(a) TERMINATION UPON AN EVENT OF DEFAULT. Either party may terminate
this Agreement by written notice to the other party upon the occurrence of an
Event of Default; provided however, that the party serving such notice shall not
then be in default of its obligations under this Agreement.
(b) EFFECT OF TERMINATION. Upon termination of this Agreement, pursuant
to this Section 19, each party shall be free to pursue any and all remedies
available at law, in equity or otherwise. Quetzal, in addition to its other
legal and equitable rights and remedies under this Agreement or under applicable
law, shall be entitled immediately to cease making available to Unica any
further broadcast time or broadcast transmission and facilities, and all amounts
accrued or payable to Quetzal prior to the date of termination which have not
been paid shall be immediately due and payable. Unica, in addition to its other
legal and equitable rights and remedies under this Agreement or under applicable
law, shall be entitled immediately to cease providing any further Programming to
be broadcast on the Station, and any amounts which have been prepaid to Quetzal
beyond the termination date shall be immediately due and payable to Unica.
(c) LIABILITIES UPON TERMINATION. Unica shall pay all debts and
obligations resulting from its use of the Station's air time and transmission
facilities, including, without limitation, accounts payable and net barter
balances relating to the period on and after the Operational Commencement Date
and prior to the termination of this Agreement and shall be entitled to the
revenues and other credits for that period and Quetzal shall be entitled to
retain the revenues and other credits arising from the Quetzal Programming.
(d) SPECIFIC PERFORMANCE. In addition to Unica's rights of termination
hereunder (and in addition to any other remedies available to it or provided
under law), Unica may seek specific performance of this Agreement, in which case
Quetzal 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.
20 REVENUES.
Unica shall receive all revenues attributable to the Programming on and
from the Operational Commencement Date and for the period thereafter during the
Term of this Agreement. Quetzal shall receive all revenues attributable to the
Quetzal Programming during the Term of this Agreement.
21 REPRESENTATIONS, WARRANTIES AND COVENANTS.
21.1 Unica represents and warrants to, and covenants with, Quetzal
that:
(a) This Agreement has been duly executed and delivered by Unica, and
constitutes its valid and binding obligation, enforceable against it in
accordance with its terms, except as limited by laws affecting the enforcement
of creditor's rights generally or equitable principles. Unica has
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all necessary corporate power and authority to enter into and perform its
obligations under this Agreement and to consummate the transactions contemplated
hereby. The execution, delivery and performance of this Agreement have been duly
and validly authorized by all necessary corporate action on Unica's part.
(b) No consent of any other party and no consent, license, approval or
authorization of, or exemption by, or filing, restriction or declaration with,
any governmental authority, bureau, agency or regulatory authority, is required
in connection with the execution, delivery or performance by Unica of this
Agreement.
(c) The execution, delivery and performance of this Agreement will not
violate any provision in Unica's certificate of incorporation or by-laws, nor
will it constitute or result in the breach of any term, condition or provision
of, or constitute a default under, or accelerate or permit the acceleration of
any performance required by, any agreement or other instrument to which Unica is
a party or by which any part of its property is bound, or violate any law,
regulations, judgment or order binding upon Unica.
(d) No proceeding is pending or, to the knowledge of Unica, threatened
against Unica before any court, government agency or arbitral tribunal that
would enjoin or prohibit, or which otherwise questions the validity of, any
action taken or to be taken in connection with this Agreement.
(e) The Programming shall include (i) public service announcements
(including, at Quetzal's request from time to time, a reasonable number of
public service announcements of local interest); (ii) an announcement in form
sufficient to meet the station identification requirements of the FCC at the
beginning of each hour; (iii) an announcement at the beginning of each segment
of programming to indicate the program time has been purchased by Unica; and
(iv) any other announcement that may be required by applicable law or
regulations (including, but not limited to, Emergency Alert System tests).
(f) The performing rights to all music contained in the Programming, if
any, shall be licensed to Unica by BMI, ASCAP, SESAC or the composer directly or
shall be in the public domain.
21.2 Quetzal represents and warrants to, and covenants with, Unica
that:
(a) This Agreement has been duly executed and delivered by Quetzal, and
constitutes its valid and binding obligation, enforceable against it in
accordance with its terms, except as limited by laws affecting the enforcement
of creditor's rights generally or equitable principles. Quetzal has all
necessary corporate power and authority to enter into and perform its
obligations under this Agreement and to consummate the transactions contemplated
hereby. The execution, delivery and performance of this Agreement have been duly
and validly authorized by all necessary corporate action on Quetzal's part.
11
(b) No consent of any other party and no consent, license, approval or
authorization of, or exemption by, of filing, restriction or declaration with,
any governmental authority, bureau, agency or regulatory authority, is required
in connection with the execution, delivery or performance by Quetzal of this
Agreement.
(c) The execution, delivery and performance of this Agreement will not
violate any provision of Quetzal's articles of incorporation or by-laws, nor
will it constitute or result in the breach of any term, condition or provision
of, or constitute a default under, or accelerate or permit the acceleration of
any performance required by any agreement or other instrument to which Quetzal
is a party or by which any part of its property is bound, or violate any law,
regulation, judgment or order binding upon Quetzal.
(d) Except as set forth on Schedule 21.2(d), no proceeding is pending
or, to the knowledge of Quetzal, threatened against Quetzal before any court,
governmental agency or arbitral tribunal that would enjoin or prohibit, or which
otherwise questions the validity of, any action taken or to be taken in
connection with this Agreement.
(e) Quetzal Programming shall be designed to serve the interest of the
Station's service area.
(f) During the Term of this Agreement, Quetzal will hold all licenses
and other permits and authorizations necessary for the operation of the Station,
and such licenses, permits and authorizations are and will be in full force and
effect throughout the Term of this Agreement. There is not pending, or to
Quetzal'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. To the best of Quetzal's knowledge,
Quetzal is not in 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 Station, which would have an adverse effect upon
Quetzal, its assets, the Station or upon Quetzal's ability to perform this
Agreement. Quetzal shall not take any action or omit to take any action which
would have an adverse impact upon Quetzal, its assets, the Station or upon
Quetzal' ability to perform this Agreement. All reports and applications
required to be filed with the FCC or any other governmental body during the Term
of this Agreement will be filed in a timely and complete manner. Quetzal has,
and throughout the Term of this Agreement will maintain, good title to, or
rights by license, lease or other agreement to use, all of the assets and
properties used in the operation of the Station. During the Term of this
Agreement, Quetzal shall not dispose of, transfer, assign or pledge any of such
assets and properties, except with the prior written consent of Unica, if such
action would adversely affect Quetzal's performance hereunder or the business
and operations of Quetzal or the Station permitted hereby.
(g) Quetzal covenants and agrees to use its best efforts to terminate
the Lotus Agreement.
22 ARBITRATION.
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Any dispute arising under or related to this Agreement shall be
resolved by binding arbitration in San Diego, California in accordance with the
then existing Rules of Practice and Procedure of Judicial Arbitration &
Mediation Services, Inc., and judgment 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.
23 MODIFICATION AND WAIVER.
No modification or waiver of any provision of this Agreement shall in
any event be effective unless the same shall be in writing and signed by the
parties, and then such waiver and consent shall be effective only in the
specific instance and for the purpose for which given.
24 DELAY IN EXERCISE OF REMEDIES; REMEDIES CUMULATIVE.
No failure or delay on the part of Quetzal or Unica in exercising any
right or power hereunder shall operate as a waiver thereof, nor shall any single
or partial exercise of any such right or power, or any abandonment or
discontinuance of steps to enforce such a right or power, preclude any other or
further exercise thereof or the exercise of any other right or power. The rights
and remedies of Quetzal and Unica herein provided are cumulative and are not
exclusive of any right or remedies which they may otherwise have.
25 CONSTRUCTION.
This Agreement shall be construed in accordance with the internal
substantive (that is, without reference to conflict of) laws of the State of
California and the obligations of the parties hereto are subject to all Federal,
state or municipal laws or regulations now or hereafter in force and to the
regulations and policies of the FCC and all other governmental bodies or
authorities presently or hereafter duly constituted. The parties believe that
the terms of this Agreement meet all of the requirements of current FCC policy
for time brokerage agreements for radio stations and agree that they shall
negotiate in good faith to meet any FCC concern with respect to this Agreement
if they are incorrectly interpreting current FCC policy or if FCC policy as
hereafter modified so requires. If the parties cannot agree to a modification or
modifications deemed necessary by either party to meet FCC requirements, the
termination provisions of Section 19 above shall apply. The parties further
agree that they will make all required filings with the FCC with respect to this
Agreement.
26 HEADINGS.
The headings contained in this Agreement are included for convenience
only and no such heading shall in any way alter the meaning of any provision.
27 SUCCESSORS AND ASSIGNS.
13
This Agreement shall be binding upon and inure to the benefit of the
parties and their respective permitted successors and assigns, including,
without limitation, any permitted transferees or assignees of any kind of the
FCC licenses for the Station.
28 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 same original or the
same counterpart.
29 NOTICES.
Any notice required hereunder shall be in writing and any payment,
notice or other communications shall be deemed given when delivered by hand or
one (1) day after deposit with a recognized overnight courier for overnight
delivery and addressed as follows:
(a) If to Buyer:
Radio Unica Corp.
0000 X.X. 00xx Xxxxxx
Xxxxx 000
Xxxxx, Xxxxxxx 00000
Attn: Xxxxxxx X. Xxxxx
Phone: (000) 000-0000
with a required copy to:
Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP
0000 Xxx Xxxx Xxxxxx, X.X.
Xxxxxxxxxx, X.X. 00000
Attn: Xxxx X. Xxxxx, Esq.
Phone: (000) 000-0000
(b) If to Seller:
Quetzal Bilingual Comm., Inc.
News Plaza Building
000 X Xxxxxx, 0xx Xxxxx
Xxxxx Xxxxx, XX 00000
Attn: Xxxxx Xxxxxxx
Phone: (000) 000-0000
with a required copy to:
00
Xxx Xxxxxxxx-XxXxxxx
0000 Xxxxxxxxxx Xxxxxx Xxxx
Xxxxx 000
Xxx Xxxxx, XX 00000
Attn: Xxxxxx XxXxx
Phone: 000-000-0000
and to:
Xxxxxx Xxxxxxxx & Xxxxxx, X.X.
000 Xxxx Xxxxxx
Xxxxx 000
Xxxxxxxxxx, XX 00000
Attn: Xxxxxx X. Xxxxxxxx
Phone: 000-000-0000
or such other address as the addressee may have specified in a notice
duly given to the sender as provided herein.
30 ENTIRE AGREEMENT.
This Agreement (together with the Attachments hereto) and the Option
Agreement embody the entire agreement between the parties regarding the subject
matter hereof and there are no other agreements, representations, warranties, or
understandings, oral or written, between them with respect to the subject matter
hereof. No alteration, modification or change of this Agreement shall be valid
unless it is embodied in a written instrument signed by both of the parties.
31 SEVERABILITY AND ASSIGNMENT.
If any provision or provisions contained in this Agreement are held to
be invalid, illegal or unenforceable, this shall not affect any other provision
hereof, and this Agreement shall be construed as if such invalid, illegal or
unenforceable provision or provisions had not been contained herein, PROVIDED,
THAT the benefits afforded each party hereunder are not materially changed.
Neither party may assign this Agreement without the prior written consent of the
other party and any purported assignment without such consent shall be null and
void and of no legal force or effect, PROVIDED, THAT either party may assign
this Agreement if it would constitute a pro forma assignment or transfer of
control (on Form 316) under Section 73.3540(f) of the FCC's rules.
32 NO JOINT VENTURE.
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The parties agree that nothing herein shall constitute a joint venture
or a principal-agent relationship between them. The parties acknowledge that
call letters, trademarks and other intellectual property shall at all times
remain the property of the respective parties and that neither party shall
obtain any ownership interest in the other party's intellectual property by
virtue of this Agreement.
33 BOOKS AND RECORDS.
Each of Quetzal and Unica agrees to permit the other party hereto and
its agents and representatives reasonable access to all books and records
relating to the operation of the Station that may be in its possession.
34 BENEFICIARIES.
Nothing in this Agreement, express or implied, is intended to confer on
any person other than the parties hereto and their respective successors and
assigns any rights, remedies, obligations, or liabilities under or by reason of
this Agreement.
35 FURTHER ASSURANCES.
Subject to the terms and conditions herein provided, each of the
parties hereto agrees to use its commercially reasonable efforts to take or
cause to be taken all such further actions, and to do, or cause to be done, all
things necessary, proper or advisable in order to fully effectuate the purposes,
terms and conditions of this Agreement.
36 CONFIDENTIALITY, PUBLIC NOTICES.
Unica and Quetzal 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 Quetzal 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 hereto.
16
IN WITNESS WHEREOF, the parties hereto have executed this Time
Brokerage Agreement on the date first above written.
RADIO UNICA CORP.
By: ________________________________
Name:
Title:
QUETZAL BILINGUAL COMM., INC.
By: ________________________________
Name:
Title:
17
ATTACHMENT A
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 _____________________________.
Position
2. He/She has acted in the above capacity since _________________________.
3. No matter has been broadcast by Station KURS 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 KURS
for which service, money, or other valuable consideration has been
directly or indirectly paid, or promised to, or charged, or accepted by
Station KURS or by any independent contractor engaged by Station KURS
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.
_____________________________
Affiant
Subscribed and sworn to before me
this __ day of __________, 19__.
_____________________________________
Notary Public
My Commission expires: ________________
A-1
EXHIBIT A
FORM OF LEASE AGREEMENT
