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Exhibit 10.31
TIME BROKERAGE AGREEMENT
THIS TIME BROKERAGE AGREEMENT ("Agreement"), dated as of February 22,
1999, is made and entered into by and between Radio Unica Corp., a Delaware
corporation ("Unica"), and One-On-One Sports Radio of Illinois, L.L.C., a
Delaware limited liability company ("One-On-One Radio").
WHEREAS, One-On-One Sports License of Illinois, L.L.C. ("One-On-One
License") is the licensee of radio station WIDB(AM), Chicago, Illinois,
operating at 950 kHz (the "Station"); and
WHEREAS, One-On-One License is a subsidiary of One-On-One Radio; and
WHEREAS, Unica, One-On-One License and One-On-One Radio have entered
into that certain Asset Purchase Agreement, dated as of February 22, 1999 (the
"Asset Purchase Agreement"), pursuant to which Unica has agreed to buy and
One-On-One License and One-On-One Radio have agreed to sell certain of the
assets of the Station; and
WHEREAS, One-On-One Radio desires to make available to Unica
substantially all of 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 from the
Operational Commencement Date (as defined herein) until the Closing Date (as
defined in the Asset Purchase Agreement).
NOW, THEREFORE, in consideration of the premises and the mutual
covenants and agreements herein contained, Unica and One-On-One Radio agree as
follows:
1. COMMENCEMENT DATE AND FACILITIES.
Commencing 12:01 a.m. on Saturday, May 15, 1999 (the "Operational
Commencement Date"), One-On-One Radio shall broadcast, or cause to be broadcast,
over the Station transmission facilities, certain programming, consisting of
programs, announcements and advertising (the "Programming"), originating at
Unica's studio and delivered to One-On-One Radio by Unica in compliance with the
provisions of Section 5(a) of this Agreement. Unica shall deliver the
Programming to One-On-One Radio's transmitting facilities at Unica's exclusive
cost, by means reasonably acceptable to One-On-One Radio. The period from the
Operational Commencement Date to the termination of this Agreement is the
"Operating Period."
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2. TERM.
This Agreement is effective immediately and, unless sooner terminated,
extended or renewed as hereinafter provided, shall end on the Closing Date (as
defined in the Asset Purchase Agreement) or upon the termination of the Asset
Purchase Agreement pursuant to Section 13.1 thereof (the "Term").
3. PAYMENTS BY UNICA.
(a) In addition to any fees and costs Unica incurs in producing,
providing and delivering the Programming (including those costs payable by Unica
pursuant to Section 3(c) and Section 9 hereof), Unica hereby agrees to pay
One-On-One Radio during the Term commencing on the Operational Commencement Date
a monthly fee of (i) $120,000 for the period prior to July 1, 1999 and (ii)
$140,000 for each month beginning on or after July 1, 1999. Amounts payable by
Unica to One-On-One Radio pursuant to this Agreement shall be payable in advance
without notice or demand on May 15, 1999 and thereafter on the first business
day of each month during the Term. In the event that the Term includes any
partial month, the monthly fee for such month shall be prorated accordingly and
the difference between such prorated amount and the amount actually paid by
Unica to One-On-One Radio for such month shall be paid to Unica on the Closing
Date (the "Refund").
(b) Payments will be made by check delivered to One-On-One Radio at
0000 Xxxxxx Xx., Xxxxx 00, Xxxxxxxxxx, Xxxxxxxx 00000, or such other address as
One-On-One Radio may select pursuant to Section 27 hereof, provided that, if
One-On-One Radio has given wire transfer instructions to Unica, Unica shall be
required to make all payments by wire transfer of funds to the account specified
by One-On-One Radio.
(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 One-On-One Radio's transmitting facilities,
(v) salaries, payroll taxes, insurance, health benefits and related costs of
personnel employed by Unica in connection with the Programming supplied to
One-On-One Radio, sales and promotion of radio time and, (vi) income, gross
receipts, sales, personal property, and other taxes of any nature whatsoever and
costs related to Unica's programming of the Station.
(d) The failure of One-On-One Radio 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 3.
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4. PAYMENTS BY ONE-ON-ONE RADIO.
One-On-One Radio 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; (ii) One-On-One Radio's operating expenses, including
telephone, sale or delivery and postal service expenses relating to the Station;
(iii) the salaries, payroll taxes, insurance, health benefits and related costs
of personnel employed by One-On-One Radio 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 Station's transmitter facilities and costs related to the
production and broadcast of material supplied by One-On-One Radio pursuant to
Section 5(b) of this Agreement ("One-On-One Radio Programming").
5. PROGRAMS.
(a) During the Operating Period, 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
One-On-One Radio 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 One-On-One Radio shall have no rights of any kind in or to such
programs and hereby disclaims all rights thereto.
(b) One-On-One Radio reserves the following periods to present
One-On-One Radio Programming: Sunday mornings from 6:00 a.m. to 10:00 a.m. Upon
reasonable notice from One-On-One Radio, Unica instead of One-On-One Radio shall
program those hours.
6. EMPLOYMENT.
(a) One-On-One Radio 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 used in the production of
One-On-One Radio Programming hereunder or necessary to fulfill One-On-One
Radio's obligations hereunder; and (ii) all employees of One-On-One Radio.
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(b) Unica shall be solely responsible for, and shall indemnify
One-On-One Radio, 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 used in the production of
the Programming hereunder or necessary to fulfill Unica's obligations hereunder;
and (ii) all employees of Unica.
7. HANDLING OF MAIL AND PUBLIC FILE.
To the extent that either One-On-One Radio 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 One-On-One Radio
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
One-On-One Radio copies of all operating and programming information relating to
Unica 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 the Station and
One-On-One Radio 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 One-On-One Radio 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. Such consultations shall take place, without limitation, at
least 75 days prior to any primary, and at least 90 days prior to any general,
election. Unica shall provide to the Station such documentation relating to the
Programming as One-On-One Radio reasonably shall request. In particular, and
without limitation, Unica shall immediately provide to One-On-One complete
records of all requests for broadcast time made by or on behalf of any candidate
for public office, together with information concerning the disposition of such
requests and the charges made. One-On-One Radio 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.
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8. MAINTENANCE OF EQUIPMENT.
(a) The transmitter equipment and antennas used for the Station's
broadcasts owned by One-On-One Radio (the "Transmission Equipment") shall be
maintained by One-On-One Radio 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. One-On-One
Radio shall maintain power and modulation of the Station broadcasts in a manner
consistent with One-On-One Radio'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 One-On-One
Radio.
(b) All equipment necessary for the delivery of the 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.
9. RESPONSIBILITY FOR PRODUCTION EXPENSES.
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. Unica
shall pay any costs associated with any affiliation with any network.
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10. CONTROL OF THE STATION.
During the term of this Agreement, One-On-One Radio shall maintain
control over the Station's technical facilities and Unica agrees that it will
permit One-On-One Radio to take any and all steps necessary to maintain such
control continuously throughout the term of this Agreement. One-On-One Radio and
Unica acknowledge and agree that One-On-One Radio's responsibility to retain
control is an essential element of the continuing validity and legality of this
Agreement. One-On-One Radio shall provide and pay for: (a) a General Manager of
the Station, who shall report solely to, and be accountable solely to,
One-On-One Radio 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 One-On-One Radio's obligations under this Agreement. One-On-One Radio
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 the rules, regulations and policies of the
FCC. One-On-One Radio shall maintain its main studio within the Station's
principal community contour and Unica shall take such actions as One-On-One
Radio may reasonably request to ensure such requirements are met. 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. One-On-One
Radio reserves the right to refuse to broadcast any program or programs
containing matter which is, or in the reasonable opinion of One-On-One Radio may
be, violative of any right, law, or governmental rule, regulation or policy.
11. SPECIAL EVENTS.
One-On-One Radio has the right to reject any of the Programming and to
substitute on a temporary basis a program that, in the reasonable opinion of
One-On-One Radio, is of greater local or national importance. One-On-One Radio
confirms that no Programming shall be rejected on the basis of Programming
performance or ratings, advertiser reaction or the availability of alternative
programming (including, but not limited to, sporting events or paid programming)
that One-On-One Radio believes to be more profitable or more attractive. In the
event of such rejection and substitution, One-On-One Radio 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 during the time its
Programming was pre-empted, which shall equal the loss of the Station's local
and national revenues and the Station's allocation of Radio Unica network
revenues. The Station's allocation of Radio Unica network revenues shall be
equal to the percentage of Radio Unica network revenues that is the same
percentage determined by dividing the Hispanic population of the Chicago market
by the total Hispanic population reached by the Radio Unica network.
12 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 One-On-One
Radio or Unica shall not constitute a breach of this Agreement and One-On-One
Radio 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.
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13 STATION'S IDS.
One-On-One Radio 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 One-On-One Radio 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, One-On-One Radio agrees, at Unica's cost, to
cooperate with Unica in applying for a change or changes in the Station's call
sign in accordance with the terms of the Asset Purchase Agreement, so long as
such new call sign is not offensive or contrary to the public interest.
14 PAYOLA.
Unica shall provide One-On-One Radio with payola affidavits,
substantially in the form attached hereto as Attachment A, signed by such of
Unica's employees and at such times as One-On-One Radio may reasonably request
in writing, and shall notify One-On-One Radio promptly of any violations it
learns of relating to the Act, including Sections 317 and 508 thereof.
15 COMPLIANCE WITH LAW AND OTHER AGREEMENTS.
Unica and One-On-One Radio 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 the Station's business.
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16 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.
17 EVENTS OF DEFAULT.
Each of the following shall constitute an "Event of Default" under this
Agreement:
17.1. DEFAULT IN COVENANTS. Unica's or One-On-One Radio'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), except that a default in payment by Unica must be
cured within two (2) business days after delivery of notice (by telephone,
facsimile or otherwise) thereof to the Chief Financial Officer of Unica; or
17.2. BREACH OF REPRESENTATION. Unica's or One-On-One Radio'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
17.3. INSOLVENCY. The voluntary filing by Unica or One-On-One Radio (or
an involuntary filing with respect to Unica or One-On-One Radio 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.
18 TERMINATION.
18.1. 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.
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18.2 EFFECT OF TERMINATION. Upon termination of this Agreement pursuant
to this Section 18, each party shall be free to pursue any and all remedies
available at law, in equity or otherwise. One-On-One Radio, 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 One-On-One Radio 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 One-On-One Radio beyond the termination date
shall be immediately due and payable to Unica.
18.3. 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.
18.4. 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 One-On-One Radio 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.
19 REVENUES.
Unica shall receive all revenues attributable to the Programming aired
on the Station on and from the Operational Commencement Date and for the period
thereafter during the Term of this Agreement.
20 REPRESENTATIONS, WARRANTIES AND COVENANTS.
20.1 Unica represents and warrants to, and covenants with, One-On-One
Radio 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 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, except that One-On-One License is required to file a copy of this
Time Brokerage Agreement with the FCC.
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(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) Unica shall present Programming which shall serve the needs and
interests of the Station's service area. Consistent with this obligation, during
the term of this Agreement, Unica shall utilize a Spanish-talk format for its
Programming.
20.2 One-On-One Radio represents and warrants to, and covenants with,
Unica that:
(a) This Agreement has been duly executed and delivered by One-On-One
Radio, 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. One-On-One
Radio has all necessary limited liability company 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 limited
liability company action on One-On-One Radio'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 One-On-One Radio of
this Agreement, except that One-On-One License is required to file a copy of
this Time Brokerage Agreement with the FCC.
(c) The execution, delivery and performance of this Agreement will not
violate any provision of One-On-One Radio'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 One-On-One Radio is a party or by which any part of its property is bound,
or violate any law, regulation, judgment or order binding upon One-On-One Radio.
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(d) No proceeding is pending or, to the knowledge of One-On-One Radio,
threatened against One-On-One Radio 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) During the Term of this Agreement, One-On-One Radio 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 One-On-One Radio's 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 One-On-One Radio's
knowledge, One-On-One Radio 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 One-On-One Radio, its assets, the Station or upon One-On-One
Radio's ability to perform this Agreement. One-On-One Radio shall not take any
action or omit to take any action which would have an adverse impact upon
One-On-One Radio, its assets, the Station or upon One-On-One Radio's 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. One-On-One Radio 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, One-On-One Radio
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 One-On-One Radio's performance hereunder or the business and
operations of One-On-One Radio or the Station permitted hereby.
21 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.
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22 DELAY IN EXERCISE OF REMEDIES; REMEDIES CUMULATIVE.
No failure or delay on the part of One-On-One Radio 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 One-On-One Radio and Unica herein
provided are cumulative and are not exclusive of any right or remedies which
they may otherwise have.
23 CONSTRUCTION.
This Agreement shall be construed in accordance with the internal
substantive (that is, without reference to conflict of) laws of the State of
Delaware 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 18 above shall apply. The parties further
agree that they will make all required filings with the FCC with respect to this
Agreement.
24 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.
25 SUCCESSORS AND ASSIGNS.
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.
26 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.
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27 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 Unica:
Radio Unica Corp.
0000 X.X. 00xx Xxxxxx
Xxxxx 000
Xxxxx, Xxxxxxx 00000
Attn: Xxxxxxx X. Xxxxx
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.
(b) If to Unica's Chief Financial Officer:
Radio Unica Corp.
0000 X.X. 00xx Xxxxxx
Xxxxx 000
Xxxxx, Xxxxxxx 00000
Attn: Xxxxx Xxxxxx
Tel: 000-000-0000
Fax: 000-000-0000
(c) If to One-On-One Radio:
One-On-One Sports License of Florida, L.L.C.
0000 Xxxxxx Xx., Xxxxx 00
Xxxxxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxxxxxxx X. Xxxxxxx
with a required copy to:
Winston & Xxxxxx
00 Xxxx Xxxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Attn: Xxxxxxx X. Xxxxxx
and
Xxxxxxxx, Xxxxx & Xxxxxxxx, P.L.C.
0000 X. 00xx Xxxxxx, Xxxxxxxx Xxxxx
Xxxxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxxx Xxxxxxxx
or such other address as the addressee may have specified in a notice
duly given to the sender as provided herein.
14
28 ENTIRE AGREEMENT.
This Agreement and the Asset Purchase 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.
29 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 (on Form 316) under
Section 73.3540(f) of the FCC's rules.
30 NO JOINT VENTURE.
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.
31 ACCESS TO RECORDS.
Each of One-On-One Radio and Unica agrees to permit the other party
hereto and its agents and representatives access to all books and records
relating to the operation of the Station that may be in its possession.
15
32 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.
33 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.
16
A-1
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on
the date first above written.
RADIO UNICA CORP.
By:
-------------------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Chairman and Chief Executive Officer
ONE-ON-ONE SPORTS RADIO OF ILLINOIS,L.L.C.
By: One-On-One Sports Radio Stations, Inc.
By: Name: Xxxxxxxxxxx X. Xxxxxxx
-------------------------------------------
Title: President
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 WIDB on frequency 950 kHz 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 WIDB on
frequency 950 kHz for which service, money, or other valuable consideration
has been directly or indirectly paid, or promised to, or charged, or accepted
by Station WIDB on frequency 950 kHz or by any independent contractor engaged
by Station WIDB on frequency 950 kHz 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:
-----------------
