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EXHIBIT 10.5
TIME BROKERAGE AGREEMENT
TIME BROKERAGE AGREEMENT ("Agreement"), made this 8th day of May,
2000, by and between New World Broadcasters Corp. ("New World"), a Texas
corporation, 910 Broadcasting Corp., a Texas corporation ("910 Broadcasting")
(collectively, the "Licensees"), Spanish Broadcasting System of San Antonio,
Inc., a Delaware corporation (the "Broker") and Spanish Broadcasting
System, Inc., a Delaware corporation (the "Parent").
WHEREAS, New World is the Licensee of FM Station KTCY, Pilot Point,
Texas pursuant to authorizations issued by the Federal Communications Commission
("FCC").
WHEREAS, 910 Broadcasting is the Licensee of standard broadcast Station
KXEB, Sherman, Texas pursuant to authorizations issued by the FCC.
WHEREAS, subject to the prior consent of the FCC, Licensees intend to
assign to Broker, the Stations' FCC licenses and certain other assets used in
the operation of the Stations.
WHEREAS, the Licensees wish to retain Broker to provide programming for
the Stations that is in conformity with Stations' policies and procedures, FCC
policies for time brokerage arrangements, and the provisions hereof.
WHEREAS, Broker agrees to use the Stations to broadcast such
programming of its selection that is in conformity with all rules, regulations
and policies of the FCC, subject to Licensees' full authority to manage and
control the operation of the Stations.
WHEREAS, Broker and Licensees agree to cooperate to make this Agreement
work to the benefit of the public and both parties and as contemplated in this
Agreement.
WHEREAS, Parent and New World are concurrently herewith entering into
an Asset Purchase Agreement ("APA").
WHEREAS, Parent and 910 Broadcasting are concurrently herewith entering
into a Stock Purchase Agreement ("SPA").
NOW, THEREFORE, in consideration of the above recitals and mutual
promises and covenants contained herein, the parties, intending to be legally
bound, agree as follows:
SECTION 1. STATION AIR TIME
1.1 REPRESENTATIONS. Both Broker and Programmer represent that
they are legally qualified, empowered and able to enter into this Agreement and
that the execution, delivery and performance hereof shall not constitute a
breach or violation of any material agreement, contract or other obligation to
which either party is subject or by which it is bound.
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1.2 EFFECTIVE DATE; TERM. The effective date of this Agreement
shall be the date following execution of the APA and the SPA.
The Agreement shall continue in force until terminated pursuant to the
provisions of Section 6 of this Agreement.
1.3. SCOPE. During the term of this Agreement, Licensees shall
make available to Broker broadcast time upon the Stations as set forth in this
Agreement. Broker shall deliver such programming, at its expense, to the
Stations' transmitter facilities or other authorized remote control points as
reasonably designated by Licensees. Subject to Licensees' reasonable approval,
as set forth in this Agreement, Broker shall provide programming of Broker's
selection complete with commercial matter, news, public service announcements
and other suitable programming to the Licensees up to one hundred sixty-eight
hours per week.
1.4 CONSIDERATION. As consideration for the air time made
available hereunder Broker shall make payments to Licensees as set forth in
ATTACHMENT I.
1.5 LICENSEES OPERATION OF STATIONS. Licensees will have full
authority, power and control over the management and operations of the Stations
during the term of this Agreement. Licensees will bear all responsibility for
Stations' compliance with all applicable provisions of the Communications Act of
1934, as amended (the "Act"), the rules, regulations and policies of the FCC and
other applicable laws. Licensees shall be solely responsible for and pay in a
timely manner all operating costs of the Stations, including but not limited to,
maintenance of the studios and transmitting facilities and costs of electricity,
except that Broker shall be responsible for the costs of its programming as
provided in Sections 1.7 and 2.3 hereof. Licensees shall employ at its expense
management level and other employees consisting of a General Manager and such
operational and other personnel as outlined in the budget previously provided to
Broker, who will direct the day-to-day operations of the Stations, and who will
report to and be accountable to the Licensees. Licensees shall be responsible
for the salaries, taxes, insurance and related costs for all personnel employed
by the Stations and shall maintain insurance satisfactory to Broker covering the
Stations' transmission facilities, and Broker shall be responsible for
reimbursing Licensees for such expenses. During the term of this Agreement,
Broker agrees to perform, without charge, routine monitoring of the Stations'
transmitter performance and tower lighting by remote control, if and when
requested by Licensees.
1.6 LICENSEES REPRESENTATION AND WARRANTIES. Licensees
represent and warrant as follows:
(a) Licensees own and hold all licenses and other
permits and authorizations necessary for the operation of the Stations, and such
licenses, permits and authorizations are and will be in full force and effect
throughout the term of this Agreement. There is not now pending, or to
Licensees' 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. Licensees are not in material
violation of any statute, ordinance, rule, regulation, policy, order or decree
of any federal, state or local entity, court or authority having jurisdiction
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over it or the Stations, which would have an adverse effect upon the Licensees,
the Stations or upon Licensees' ability to perform this Agreement. All reports
and applications required to be filed with the FCC or any other governmental
body have been, and during the course of the term of this Agreement, will be
filed in a timely and complete manner. During the term of this Agreement,
Licensees shall not dispose of, transfer, assign or pledge any of Stations'
assets and properties except with the prior written consent of the Broker, if
such action would adversely affect Licensees' performance hereunder or the
business and operations of Stations permitted hereby.
(b) Licensees shall pay, in a timely fashion, all of
the expenses incurred in operating the Stations including salaries and benefits
of its employees, lease payments, utilities, taxes, programming expenses, etc.,
as set forth in ATTACHMENT II (except those for which a good faith dispute has
been raised with the vendor or taxing authority); shall provide Broker with a
certificate of such timely payment within thirty (30) days of the end of each
month; and shall be reimbursed by Broker for those payments listed on ATTACHMENT
II.
1.7 BROKER RESPONSIBILITY. Broker shall be solely responsible
for any expenses incurred in the origination and/or delivery of programming from
any remote location and for any publicity or promotional expenses incurred by
Broker, including, without limitation, ASCAP, BMI and SESAC music license fees
for all programming provided by Broker. Such payments by Broker shall be in
addition to any other payments to be made by Broker under this Agreement.
1.8 CONTRACTS. Broker will enter into no third-party
contracts, leases or agreements which will bind Licensees in any way except with
Licensees' prior written approval, such approval shall not be unreasonably
withheld.
1.9 STATION OPERATIONs. With respect to the operation of the
Stations, Licensees shall notify Broker prior to: (i) making any changes in
management personnel; (ii) entering into any material contractual obligations in
excess of $10,000 individually or $50,000 in the aggregate; (iii) purchasing
equipment with value in excess of $25,000; or (iv) making any other material
changes in the operation of the Stations.
SECTION 2. STATIONS' OBLIGATION TO COMMUNITIES OF LICENSE
2.1. LICENSEES AUTHORITY. Notwithstanding any other provision
of this Agreement, Broker recognizes that Licensees have certain obligations to
broadcast programming to meet the needs and interests of the respective
communities of license. From time to time, the Licensees shall air specific
programming on issues of importance to the respective local communities. Nothing
in this Agreement shall abrogate the unrestricted authority of the Licensees to
discharge their obligation to the public and to comply with the Act and the
rules and policies of the FCC.
2.2. ADDITIONAL LICENSEES OBLIGATIONS. Although both parties
shall cooperate in the broadcast of emergency information over the Stations,
Licensees shall also retain the right to interrupt Broker's programming in case
of an emergency or for programming which, in the reasonable good faith judgment
of Licensees, is of greater local or national public importance. Licensees shall
also coordinate with Broker the Stations' hourly station identification and any
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other announcements required to be aired by FCC rules. Licensees shall continue
to maintain a main studio, as that term is defined by the FCC, within each
Station's principal community contour, shall maintain its local public
inspection file in accordance with FCC rules, regulations and policies, and
shall prepare and place in such inspection file or files in a timely manner all
material required by Section 73.3526 of the FCC's Rules. Broker shall, upon
request by Licensees, provide Licensees with such information concerning
Broker's programs and advertising as is necessary to assist Licensees in the
preparation of such information. Licensees shall also maintain the stations'
logs, receive and respond to telephone inquiries, and control and oversee any
remote control point which may be established for the Stations.
2.3 RESPONSIBILITY FOR EMPLOYEES AND EXPENSES. Broker shall
employ and be solely responsible for the salaries, taxes, insurance and related
costs for all personnel used in the production of its programming (including,
but not limited to, salespeople, technical staff, traffic personnel, board
operators and programming staff). Licensees will provide and be responsible for
the Stations' personnel necessary for the broadcast transmission of their own
programs (including, without limitation, the Stations' General Manager and such
operational and other personnel as may be necessary or appropriate), and will be
responsible for the salaries, taxes, benefits, insurance and related costs for
all the Licensees' employees used in the broadcast transmission of its programs
and necessary to other aspects of Stations' operation subject to reimbursement
pursuant to Section 1.7(b) hereof. Whenever on the Stations' premises, all
personnel shall be subject to the overall supervision of Licensees' General
Manager.
SECTION 3. STATIONS' PROGRAMMING POLICIES
3.1 BROADCAST STATION PROGRAMMING POLICY STATEMENT. Licensees
have adopted and will enforce a Broadcast Station Programming Policy Statement
(the "Policy Statement"), a copy of which appears as ATTACHMENT III hereto and
which may be amended in a reasonable manner from time to time by Licensees upon
notice to Broker. Broker agrees and covenants to comply in all material respects
with the Policy Statement, to all rules and regulations of the FCC, and to all
changes subsequently made by Licensees or the FCC. Broker shall furnish or cause
to be furnished the artistic personnel and material for the programs as provided
by this Agreement and all programs shall be prepared and presented in conformity
with the rules, regulations and policies of the FCC and with the Policy
Statement set forth in Attachment III hereto. All advertising spots and
promotional material or announcements shall comply with applicable federal,
state and local regulations and policies and shall be produced in accordance
with quality standards established by Broker. If Licensees reasonably determine
that a program supplied by Broker is unsatisfactory or unsuitable or contrary to
the public interest, or does not comply with the Policy Statement it may, upon
prior written notice to Broker, suspend or cancel such program without liability
to Broker. Licensees will use all reasonable efforts to provide such written
notice to Broker prior to the suspension or cancellation of such program.
3.2 LICENSEES CONTROL OF PROGRAMMING. Broker recognizes that
the Licensees have full authority to control the operation of the Stations. The
parties agree that Licensees' authority includes but is not limited to the right
to reject or refuse such portions of the Broker's programming which Licensees
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reasonably believe to be unsatisfactory, unsuitable or contrary to the public
interest. Broker shall have the right to change the programming supplied to
Licensees and shall give Licensees at least twenty-four (24) hours notice of
substantial and material changes in such programming.
3.3 BROKER COMPLIANCE WITH COPYRIGHT ACT. Broker represents
and warrants to Licensees that Broker has full authority to broadcast its
programming on the Stations, and that Broker shall not broadcast any material in
violation of the Copyright Act. All music supplied by Broker shall be: (i)
licensed by ASCAP, SESAC or BMI; (ii) in the public domain; or (iii) cleared at
the source by Broker. Subject to reimbursement pursuant to Section 1.7,
Licensees will maintain ASCAP, BMI and SESAC licenses as necessary. The right to
use the programming and to authorize its use in any manner shall be and remain
vested in Broker.
3.4 SALES. Broker shall retain all revenues from the sale of
advertising time within the programming it provides to the Licensees. Broker
shall be responsible for payment of the commissions due to any national sales
representative engaged by it for the purpose of selling national advertising
which is carried during the programming it provides to Licensees.
3.5 PAYOLA. Broker agrees that it will not accept any
consideration, compensation, gift or gratuity of any kind whatsoever, regardless
of its value or form, including, but not limited to, a commission, discount,
bonus, material, supplies or other merchandise, services or labor (collectively
"Consideration"), whether or not pursuant to written contracts or agreements
between Broker and merchants or advertisers, unless the payer is identified in
the program for which Consideration was provided as having paid for or furnished
such Consideration, in accordance with the Act and FCC requirements. Broker
agrees to annually, or more frequently at the request of the Licensees, execute
and provide Licensees with a Payola Affidavit from each of its employees
involved with the Stations substantially in the form attached hereto as
Attachment IV.
3.6 COOPERATION ON PROGRAMMING. Licensees shall, on a regular
basis, cooperate with Broker to assess the issues of concern to their community
and address those issues in their public service programming. Broker, in
cooperation with Licensees, will endeavor to ensure that programming responsive
to the needs and interests of the respective communities of license and
surrounding area is broadcast, in compliance with applicable FCC requirements.
Licensees will describe those issues and the programming that is broadcast in
response to those issues and place issues/programs lists in the Stations' public
inspection files as required by FCC rules. Further, Licensees may request, and
Broker shall provide, information concerning such of Broker's programs as are
responsive to community issues so as to assist Licensees in the satisfaction of
their public service programming obligations.
3.7 STAFFING REQUIREMENTS. Licensees will be in full
compliance with the main studio staff requirements as specified by the FCC.
SECTION 4. INDEMNIFICATION
4.1 BROKER'S INDEMNIFICATION. Broker shall indemnify and hold
harmless Licensees from and against any and all claims, losses, costs,
liabilities, damages, FCC forfeitures and expenses (including reasonable legal
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fees and other expenses incidental thereto) of every kind, nature and
description (collectively, "Damages") resulting from (i) Broker's breach of any
representation, warranty, covenant or agreement contained in this Agreement, or
(ii) any action taken by Broker or its employees and agents with respect to the
Stations, or any failure by Broker or its employees and agents to take any
action with respect to the Stations, including, without limitation, Damages
relating to violations of the Act or any rule, regulation or policy of the FCC,
slander, defamation or other claims relating to programming provided by Broker
and Broker's broadcast and sale of advertising time on the Stations.
4.2 LICENSEES' INDEMNIFICATION. Licensees shall indemnify and
hold harmless Broker from and against any and all claims, losses, consents,
liabilities, damages, FCC forfeitures and expenses (including reasonable legal
fees and other expenses incidental thereto) of every kind, nature and
description, arising out of Licensees' operations and broadcasts to the extent
permitted by law and any action taken by the Licensees or their employees and
agents with respect to the Stations, or any failure by Licensees or their
employees and agents to take any action with respect to the Stations.
4.3 LIMITATION. Neither Licensees nor Broker shall be entitled
to indemnification pursuant to this section unless such claim for
indemnification is asserted in writing delivered to the other party.
4.4 TIME BROKERAGE CHALLENGE. If this Agreement is challenged
at the FCC, whether or not in connection with the Stations' license renewal
applications, counsel for the Licensees and counsel for the Broker shall jointly
defend the Agreement and the parties' performance thereunder throughout all FCC
proceedings at the sole expense of the Broker. If portions of this Agreement do
not receive the approval of the FCC Staff, then the parties shall reform the
Agreement as necessary to satisfy the FCC Staff s concerns or, at Broker's
option and expense, seek reversal of the Staff s decision and approval from the
full Commission or a court of law.
SECTION 5. ACCESS TO BROKER MATERIALS AND CORRESPONDENCE
5.1 CONFIDENTIAL REVIEW. Prior to the commencement of any
programming by Broker under this Agreement, Broker shall acquaint the Licensees
with the nature and type of the programming to be provided. Licensees, solely
for the purpose of ensuring Broker's compliance with the law, FCC rules and
Stations' policies, shall be entitled to review at their discretion from time to
time on a confidential basis any programming material they may reasonably
request. Broker shall promptly provide Licensees with copies of all
correspondence and complaints received from the public (including any telephone
logs of complaints called in), and copies of all program logs and promotional
materials. However, nothing in this section shall entitle Licensees to review
the internal corporate or financial records of the Broker.
5.2 POLITICAL ADVERTISING. Broker shall cooperate with
Licensees to assist Licensees in complying with all rules of the FCC regarding
political broadcasting. Licensees shall promptly supply to Broker, and Broker
shall promptly supply to Licensees, such information, including all inquiries
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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. Licensees, in consultation with Broker, shall develop a statement
which discloses their political broadcasting policies to political candidates,
and Broker shall follow those policies and rates in the sale of political
programming and advertising. In the event that Broker fails to satisfy the
political broadcasting requirements under the Act and the rules and regulations
of the FCC and such failure inhibits Licensees in their compliance with the
political broadcasting requirements of the FCC, then to the extent reasonably
necessary to assure such compliance, Broker shall release broadcast time and/or
advertising availabilities to Licensees at no cost to Licensees; provided,
however, that all revenues realized by Licensees as a result of such a release
of advertising time shall be immediately paid to Broker.
SECTION 6. TERMINATION AND REMEDIES UPON DEFAULT
6.1 TERMINATION. In addition to other remedies available at
law or equity, this Agreement may be terminated as set forth below by either
Licensees or Broker by written notice to the other if the party seeking to
terminate is not then in material default or breach hereof, upon the occurrence
of any of the following:
(a) subject to the provisions of Section 7.9, this
Agreement is declared invalid or illegal in whole or substantial part by an
order or decree of an administrative agency or court of competent jurisdiction
and such order or decree has become final and no longer subject to further
administrative or judicial review;
(b) the other party is in material breach of its
obligations hereunder and has failed to cure such breach within thirty (30) days
of notice from the non-breaching party;
(c) the mutual consent of both parties;
(d) there has been a material change in FCC rules,
policies or precedent that would cause this Agreement to be in violation thereof
and such change is in effect and not the subject of an appeal or further
administrative review and this Agreement cannot be reformed, in a manner
acceptable to Buyer and Seller, to remove and/or eliminate the violation;
(e) upon sale of the Stations to Broker;
(f) upon termination pursuant to 1) Section 8.1(b) of
the SPA between 910 Broadcasting and the Parent and 2) Section ____ of the APA
between New World and the Parent.
6.2 FORCE MAJEURE. Any failure or impairment of the Stations'
facilities or any delay or interruption in the broadcast of programs, or failure
at any time to furnish facilities, in whole or in part, for broadcast, due to
Acts of God, strikes, lockouts, material or labor restrictions by any
governmental authority, civil riot, floods and any other cause not reasonably
within the control of Licensees, or for power reductions necessitated for
maintenance of the Stations or for maintenance of other Stations located on the
tower from which the Stations will be broadcasting, shall not constitute a
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breach of this Agreement and Licensees will not be liable to Broker for
reimbursement or reduction of the consideration owed to Licensees.
6.3 OTHER AGREEMENTS. During the term of this Agreement,
Licensees will not enter into any other time brokerage, program provision, local
management or similar agreement with any third party.
SECTION 7. MISCELLANEOUS
7.1 ASSIGNMENT.
(a) LICENSEES' RIGHT TO ASSIGN. Neither this
Agreement nor any of the rights, interests or obligations of Licensees hereunder
shall be assigned, encumbered, hypothecated or otherwise transferred without the
prior written consent of Broker.
(b) BROKER'S RIGHT TO ASSIGN. Broker shall have the
unrestricted right to assign to any person or entity who possesses (x) all
requisite qualifications to hold broadcast licenses issued by the FCC and (y)
the financial capacity to perform Buyer's obligations hereunder. In addition,
Broker shall have the right to collaterally assign its rights and interests
hereunder to its senior lenders.
(c) This Agreement shall be binding upon and inure to
the benefit of the parties hereto and their respective successors and permitted
assigns.
(d) Licensees agree to enter into such agreements and
confirmations as Broker's senior lenders may reasonably require: (i) to
acknowledge and confirm any collateral assignment of this Agreement to such
senior lenders; (ii) to provide for simultaneous notice and reasonable cure
rights, which rights must be exercised within 30 days after the 30-day period
specified in Section 6.1 (b) hereof, to such senior lenders of any default by
Broker under this Agreement; (iii) to provide simultaneous notice and reasonable
cure rights, which rights must be exercised within 30 days after the expiration
of the 30-day period specified in Section 6.1 (b) hereof, to such senior lenders
prior to any election or action by Licensees to terminate or cancel this
Agreement and, if requested by such senior lenders, to enter into a new
Agreement with such senior lenders or their nominee, successor or purchaser who
qualifies as a "Broker's Assignee" in accordance with Section 7.1 (b) hereof on
the same terms and conditions as this Agreement; (iv) in the event that such
senior lenders shall be entitled to foreclose or otherwise acquire Broker's
interest in this Agreement, or if such senior lenders (or their nominee,
successor or purchaser who qualifies as a "Broker's Assignee" in accordance with
Section 7.1(b) hereof) shall have elected to enter into a new Agreement, on the
same terms and conditions as this Agreement, with Licensees: to enable such
senior lenders to acquire Broker's interest in this Agreement to any purchaser
or assignee of such senior lenders who qualifies as a "Broker's Assignee" in
accordance with Section 7.1(b) hereof, or require Licensees to enter into a new
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Agreement, on the same terms and conditions as this Agreement, directly with any
purchaser or assignee of such senior lenders who qualifies as a "Broker's
Assignee" in accordance with Section 7.1(b) hereof, and (v) provide for such
other assurances as such senior lenders shall reasonably request in connection
with the exercise of their rights under this paragraph 8.l(d).
7.2 CALL LETTERS. Upon request of Broker and at Broker's
expense and subject to the consent of the Licensees, Licensees shall apply to
the FCC for authority to change the call letters of the Stations (with the
consent of the FCC) to such call letters that Broker shall reasonably designate.
Licensees must coordinate with Broker any proposed changes to the call letters
of the Stations before taking any action to change such letters.
7.3 COUNTERPARTS. This Agreement may be executed in one or
more counterparts, each of which will be deemed an original but all of which
together will constitute one and the same instrument.
7.4 ENTIRE AGREEMENT. This Agreement and the Attachments
hereto, and an Asset Purchase Agreement between the parties executed on this
date, embody the entire agreement and understanding of the parties and supersede
any and all prior agreements, arrangements and understandings relating to
matters provided for herein. No amendment, waiver of compliance with any
provision or condition hereof, or consent pursuant to this Agreement will be
effective unless evidenced by an instrument in writing signed by the parties.
7.5 TAXES. Subject to the provisions of Section 1.6(b) of the
Agreement, Licensees and Broker shall each pay their own ad valorem taxes, if
any, which may be assessed on such party's respective personal property for the
periods that such items are owned by such party. Broker shall pay all taxes, if
any, to which the consideration specified in Section 1.4 herein is subject,
provided that Licensees are responsible for payment of their own income taxes.
7.6 HEADINGS. The headings are for convenience only and will
not control or affect the meaning or construction of the provisions of this
Agreement.
7.7 GOVERNING LAW. The obligations of Licensees and Broker are
subject to applicable federal, state and local law, rules and regulations,
including, but not limited to, the Act and the Rules and Regulations of the FCC.
The construction and performance of the Agreement will be governed by the laws
of the State of New York.
7.8 NOTICES. All notices, demands and requests required or
permitted to be given under the provisions of this Agreement shall be (i) in
writing, (ii) sent by telecopy (with receipt personally confirmed by telephone),
delivered by personal delivery, or sent by commercial delivery service or
certified mail, return receipt requested, (iii) deemed to have been given on the
date telecopied with receipt confirmed, the date of personal delivery, or the
date set forth in the records of the delivery service or on the return receipt,
and (iv) addressed as follows:
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TO BROKER: Xx. Xxxx Xxxxxxx, Xx.
Spanish Broadcasting System, Inc.
0000 Xxxxx Xxx
Xxxxx 000
Xxxxx, Xxxxxxx 00000
Telecopy: (000) 000-0000
Telephone: (000) 000-0000
COPY TO: Xxxxx X. Xxxxxxxx, Esq.
Xxxx, Scholer, Fierman,
Xxxx & Handler, LLP 000
00xx Xxxxxx, X.X.
Xxxxx 0000
Xxxxxxxxxx, X.X. 00000
Telecopy: (000) 000-0000
Telephone: (000) 000-0000
TO LICENSEES: Xx. Xxxxx X. Xxxxxxxx
New World Broadcasters Corp.
0000 Xxxxxxxxx Xxxxx, Xxxxx 000
Xxxxxx, Xxxxx 00000
Telecopy: (000) 000-0000
Telephone: (972)
COPY TO: Xxxxx Xxxxxx, Esq.
Xxxxxxxx & Xxxxxx, L.L.P.
0000 Xxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxx, Xxxxx 00000
Telecopy: (000) 000-0000
Telephone: (214)
or to any such other or additional persons and addresses as the parties may from
time to time designate in a writing delivered in accordance with this Section
7.8.
7.9 SEVERABILITY. If any provision of this Agreement or the
application thereof to any person or circumstances shall be invalid or
unenforceable to any extent, the remainder of this Agreement and the application
of such provision to other persons or circumstances shall not be affected
thereby and shall be enforced to the greatest extent permitted by law. In the
event that the FCC alters or modifies its rules or policies in a fashion which
would raise substantial and material question as to the validity of any
provision of this Agreement, the parties hereto shall negotiate in good faith to
revise any such provision of this Agreement with a view toward assuring
compliance with all then existing FCC rules and policies which may be
applicable, while attempting to preserve, as closely as possible, the intent of
the parties as embodied in the provision of this Agreement which is to be so
modified.
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7.10 SPECIFIC PERFORMANCE. The parties recognize that in the
event Licensees should refuse to perform under the provisions of this Agreement,
monetary damages alone will not be adequate. In the event that Broker is not
itself in material default or breach of this Agreement, Broker shall therefore
be entitled to obtain specific performance of all terms of this Agreement. In
the event of any action to enforce this Agreement, Licensees hereby waive the
defense that there is an adequate remedy at law.
7.11 ARBITRATION. Any dispute arising out of or related to
this Agreement that Licensees and Broker are unable to resolve by themselves
shall be settled by arbitration in New York, New York, by a panel of three
arbitrators. Licensees and Broker shall each designate one disinterested
arbitrator and the two arbitrators designated shall select the third arbitrator.
The persons selected as arbitrators need not be professional arbitrators, and
persons such as lawyers, accountants and bankers shall be acceptable. Before
undertaking to resolve a dispute, each arbitrator shall be duly sworn faithfully
and fairly to hear and examine the matters in controversy and to make a just
award according to the best of his or her understanding. The arbitration hearing
shall be conducted in accordance with the commercial arbitration rules of the
American Arbitration Association. The written decision of a majority of the
arbitrators shall be final and binding on Licensees and Broker. The costs and
expenses of the arbitration proceeding shall be assessed between Licensees and
Broker in a manner to be decided by a majority of the arbitrators, and the
assessment shall be set forth in the decision and award of the arbitrators.
Judgment on the award, if it is not paid within thirty days, may be entered in
any court having jurisdiction over the matter. No action at law or in equity
based upon any claim arising out of or related to this Agreement shall be
instituted in any court by Licensees or Broker against the other except: (i) an
action to compel arbitration pursuant to this Section; (ii) an action to enforce
the award of the arbitration panel rendered in accordance with this Section; or
(iii) a suit for specific performance pursuant to Section 7.10.
7.12 NO JOINT VENTURE. Nothing in this Agreement shall be
deemed to create a joint venture between the Licensees and the Broker.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement on
the day and year first above written.
LICENSEE: NEW WORLD BROADCASTERS CORP.
By: /s/ Xxxxx X. Xxxxxxxx
---------------------------------
Xxxxx X. Xxxxxxxx
LICENSEE: 910 BROADCASTING CORP.
By: /s/ Xxxxx X. Xxxxxxxx
---------------------------------
Xxxxx X. Xxxxxxxx
BROKER: SPANISH BROADCASTING SYSTEM OF
SAN ANTONIO, INC.
By: /s/ Xxxx Xxxxxxx, Xx.
---------------------------------
Xxxx Xxxxxxx, Xx.
PARENT: SPANISH BROADCASTING SYSTEM, INC.
By: /s/ Xxxx Xxxxxxx, Xx.
---------------------------------
Xxxx Xxxxxxx, Xx.
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ATTACHMENT I
Broker shall pay to and reimburse Licensees as follows:
1. Pay to the Licensees an amount equal to the outstanding
interest on all of the Bridge Loans to the Licensees as
described in the Credit Agreement among New World, Xxxxxxxxx
Communications, Inc., Spanish Broadcasting System, Inc. and
the Guarantors.
2. Reimbursement to the Licensees for all expenses described in
Sections 1.5, 1.6(b) and 2.3 of this Agreement commencing as
of the date of the execution of the Stock Purchase and Asset
Purchase Agreements including expenses (notwithstanding
anything to the contrary) which may be incurred by the
Licensees prior to the Effective Dates specified herein.
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ATTACHMENT II
Licensees shall be responsible and pay for the expenses described in
Sections 1.5, 1.6(b) and 2.3 of this Agreement.
15
ATTACHMENT III
BROADCAST STATIONS PROGRAMMING POLICY STATEMENT
The following sets forth the policies generally applicable to the
presentation of programming and advertising over Stations. All programming and
advertising broadcast by the Stations must conform to these policies and to the
provisions of the Communications Act of 1934, as amended (the "Act"), and the
Rules and Regulations of the Federal Communications Commission ("FCC").
STATIONS' IDENTIFICATION
The Stations must broadcast a Station identification announcement once an hour
as close to the hour as feasible in a natural breach in the programming. The
announcement must include (1) each Station's call letters, followed immediately
by (2) each Station's city of license.
BROADCAST OF TELEPHONE CONVERSATIONS
BEFORE recording a telephone conversation for broadcast or broadcasting such a
conversation simultaneously with its occurrence, any party to the call must be
informed that the call will be broadcast or will be recorded for later
broadcast, and the party's consent to such broadcast must be obtained. This
requirement does not apply to calls initiated by the other party which are made
in a context in which it is customary for the Stations to broadcast telephone
calls.
SPONSORSHIP IDENTIFICATION
When money, service or other valuable consideration is either directly or
indirectly paid or promised as part of an arrangement to transmit any
programming, the Stations at the time of broadcast shall announce (1) that the
matter is sponsored, either whole or in part; and (2) by whom or on whose behalf
the matter is sponsored. Products or services furnished to the Stations in
consideration for an identification of any person, product, service, trademark
or brand name shall be identified in this manner.
In the case of any political or controversial issue broadcast for which any
material or service is furnished as an inducement for its transmission, an
announcement shall be made at the beginning and conclusion of the broadcast
stating (1) the material or service that has been furnished; and (2) the
person(s) or association(s) on whose behalf the programming is transmitted.
However, if the broadcast is 5 minutes duration or less, the required
announcement need only be made either at its beginning or end.
Prior to any sponsored broadcast involving political matters or controversial
issues, the Stations shall obtain a list of the chief executive officers,
members of the executive committee or board of directors of the sponsoring
organization and shall place this list in the Stations' public inspection files.
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PAYOLA/PLUGOLA
The Stations, their personnel, or their Brokers shall not accept or agree to
accept from any person any money, service or other valuable consideration for
the broadcast of any matter unless such fact is disclosed to the Stations so
that all required Stations identification announcements can be made. All persons
responsible for Stations' programming must, from time to time, execute such
documents as may be required by Stations' management to confirm their
understanding of and compliance with the FCC's sponsorship identification
requirements.
REBROADCASTS
The Stations shall not rebroadcast the signal of any other broadcast Stations
without first obtaining such Stations' prior written consent to such
rebroadcast.
FAIRNESS
The Stations shall seek to afford coverage to contrasting viewpoints concerning
controversial issues of public importance.
PERSONAL ATTACKS
The Stations shall not air attacks upon the honesty, character, integrity or
like personal qualities of any identified person or group. If such an attack
should nonetheless occur during the presentation of views on a controversial
issue of public importance, those responsible for programming shall submit a
tape or transcript of the broadcast to station management and to the person
attacked within 48 hours, and shall offer the person attacked a reasonable
opportunity to respond.
POLITICAL EDITORIALS
Unless specifically authorized by Stations' management, the Stations shall not
air any editorial which either endorses or opposes a legally qualified candidate
for public office.
POLITICAL BROADCASTING
All "uses" of the Stations by legally qualified candidates for elective office
shall be in accordance with the Act and the FCC's Rules and policies, including
without limitation, equal opportunities requirements, reasonable access
requirements, lowest unit charge requirements and similar rules and regulations.
OBSCENITY AND INDECENCY
The Stations shall not broadcast any obscene material. Material is deemed to be
obscene if the average person, applying contemporary community standards in the
local community, would find that the material, taken as a whole, appeals to the
prurient interest; depicts or describes in a patently offensive way sexual
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17
conduct specifically defined by applicable state law; and taken as a whole,
lacks serious literary artistic, political or scientific value.
The Stations shall not broadcast any indecent material outside of the periods of
time prescribed by the FCC. Material is deemed to be indecent if it includes
language or material that, in context, depicts or describes, in terms patently
offensive as measured by contemporary community standards for the broadcast
medium, sexual or excretory activities or organs.
BILLING
No entity which sells advertising for airing on the Stations shall knowingly
issue any xxxx, invoice or other document which contains false information
concerning the amount charged or the broadcast of advertising which is the
subject of the xxxx or invoice. No entity which sells advertising for airing on
the Stations shall misrepresent the nature or content of aired advertising, nor
the quantity, time of day, or day on which such advertising was broadcast.
CONTESTS
Any contests conducted on the Stations shall be conducted substantially as
announced or advertised. Advertisements or announcements concerning such
contests shall fully and accurately disclose the contest's material terms. No
contest description shall be false, misleading or deceptive with respect to any
material term.
HOAXES
The Stations shall not knowingly broadcast false information concerning a crime
or catastrophe.
EMERGENCY INFORMATION
Any emergency information which is broadcast by the Stations shall be
transmitted immediately.
LOTTERY
The Stations shall not advertise or broadcast any information concerning any
lottery (except approved state lotteries). The Stations may advertise and
provide information about lotteries conducted by non-profit groups, governmental
entities and in certain situations, by commercial organizations, if an only if
there is no state or local restriction or ban on such advertising or information
and the lottery is legal under state or local law. Any and all lottery
advertising must first be approved by Stations' management.
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ADVERTISING
The Stations shall comply with all federal, state and local laws concerning
advertising, including without limitation, all laws concerning misleading
advertising, and the advertising of alcoholic beverages.
PROGRAMMING PROHIBITIONS
Knowing broadcast of the following types of programs and announcements is
prohibited.
FALSE CLAIMS. False or unwarranted claims for any product or service.
UNFAIR IMITATION. Infringements of another advertiser's rights through
plagiarism or unfair imitation of either program idea or copy, or any
other unfair competition.
COMMERCIAL DISPARAGEMENT. Any unfair disparagement of competitors or
competitive goods.
PROFANITY. Any programs or announcements that are slanderous, obscene,
profane, vulgar, repulsive or offensive, as evaluated by Station's
management.
VIOLENCE. Any programs which are excessively violent.
UNAUTHORIZED TESTIMONIALS. Any testimonials which cannot be
authenticated.
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ATTACHMENT IV
PAYOLA STATEMENT
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FORM OF PAYOLA AFFIDAVIT
City of _________________ )
)
County of_______________ ) ss:
)
State of_________________ )
ANTI-PAYOLA/PLUGOLA AFFIDAVIT
__________________________________, being first duly sworn, deposes and says
as follows:
1. He/She is ______________________ for __________________.
2. He/She has acted in the above capacity since ________________.
3. No matter has been broadcast by Station ______ for which service, money
or other valuable consideration has been directly or indirectly paid,
or promised to, or charged, or accepted, by him/her from any person,
which matter at the time so broadcast has not been announced or
otherwise indicated as paid for or furnished by such person.
4. So far as he/she is aware, no matter has been broadcast by Station
_____ for which service, money or other valuable consideration has been
directly or indirectly paid, or promised to, or charged, or accepted by
Station _______ or by any independent contractor engaged by Station
______ in furnishing programs, from any person, which matter at the
time so broadcast has not been announced or otherwise indicated as paid
for or furnished by such person.
5. In the future, he/she will not pay, promise to pay, request or receive
any service, money, or any other valuable consideration, direct or
indirect, from a third party, in exchange for the influencing of, or
the attempt to influence, the preparation of presentation of broadcast
matter on Station ______.
6. Nothing contained herein is intended to, or shall prohibit receipt or
acceptance of anything with the expressed knowledge and approval of my
employer, but henceforth any such approval must be given in writing by
someone expressly authorized to give such approval.
21
7. He/She, his/her spouse and immediate family do ___ do not ___ have any
present direct or indirect ownership interest in (other than an
investment in a corporation whose stock is publicly held), serve as an
officer or director of, whether with or without compensation, or serve
as an employee of, any person, firm or corporation engaged in:
1. The publishing of music;
2. The production, distribution (including wholesale and retail
sales outlets), manufacture or exploitation of music, films,
tapes, recordings or electrical transcription of any program
material intended for radio broadcast use;
3. The exploitation, promotion or management or persons rendering
artistic, production and/or other services in the
entertainment field;
4. The ownership or operation of one or more radio or television
stations;
5. The wholesale or retail sale of records intended for public
purchase;
6. Advertising on Station _____, or any other station owned by
its licensee (excluding nominal stockholdings in publicly
owned companies).
8. The facts and circumstances relating to such interest are none
___ as follows ___:
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----------------------------------
Affiant
Subscribed and sworn to before me
this _____ day of ____________, 200__
----------------------------
Notary Public
My Commission expires:_____________
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