EXHIBIT 10.43
LOCAL PROGRAMMING AND MARKETING AGREEMENT
THIS LOCAL PROGRAMMING AND MARKETING AGREEMENT (the "LMA"), dated as of
October 26, 1998, is entered into by and between Children's Radio of New
York, Inc., a New Jersey corporation, Children's Radio of Dallas, Inc., a
Minnesota corporation, Children's Radio of Phoenix, Inc., a Minnesota
corporation (referred to herein collectively as "Licensee"), and Radio Unica
Corp., a Delaware corporation (the "Programmer"),
Programmer and Licensee are desirous of setting forth the terms of their
agreement granting Programmer the right to air its programming (the
"Programming") on radio station WJDM-(AM), licensed to Elizabeth, New Jersey,
KAHZ-(AM), licensed to Fort Worth, Texas, and KIDR-(AM), licensed to Phoenix,
Arizona (separately "Station" or collectively "Stations"), all subject to
applicable regulations of the FCC and the specific terms and conditions set
forth below.
WHEREAS, Programmer and Children's Radio of New York entered into a
Local Programming and Marketing Agreement with respect to WBAH-(AM) on June
1, 1998, under which the parties have operated throughout the date hereof
(the "WBAH LMA"); and
WHEREAS, the parties entered into an Asset Purchase Agreement on October
October 26, 1998 (the "APA"), pursuant to which the parties agreed to
enter into this LMA which modifies the terms of the WBAH LMA and adds
KAHZ-(AM) and KIDR-(AM);
THEREFORE, in consideration of the mutual covenants herein contained,
the parties agree as follows:
1. SALE OF TIME
1.1. Broadcast of Programming. Commencing the date hereof, Licensee shall
broadcast on the Stations the Programming for One Hundred Sixty-six
(166) hours per week. Programmer will transmit its Programming from
Licensee's transmitting facilities.
1.2. Advertising and Programming Revenues. During the period in which
Programmer delivers the Programming to the Stations, Programmer shall
have full authority to sell for its own account commercial time on the
Stations and to retain all revenues from the sale of such advertising.
The parties agree that Programmer shall have complete discretion to
deal as it deems appropriate with all advertising accounts relating to
advertising sold by it.
Licensee shall retain all rights and obligations with respect to
accounts receivable of the Stations for sale of commercial time on the
Stations for periods of time prior to the effective date hereof.
1.3. Force Majeure. Any failure or impairment of facilities or any delay
or interruption in broadcasting the Programming, or failure at any
time to furnish the facilities, in whole or in part, for broadcasting,
due to acts of God, strikes or threats thereof, force majeure or any
other causes beyond the control of Licensee or Programmer, shall not
constitute a breach of this LMA; provided, however, that Programmer
may terminate this LMA if not then in default hereunder if broadcast
of the Programming has been interrupted for more than fourteen (14)
continuous days or for more than three hundred thirty-six (336) hours
during any sixty (60) day period. Neither Programmer nor Licensee
shall be liable to the other for any costs incurred with respect to
any such failure or impairment.
1.4. Payments. Programmer shall pay to Licensee the fee (the "Fee") set
forth on Schedule 1 hereto for the rights granted under this LMA.
Licensee acknowledges that a portion of the Fee may be credited
against the Purchased Price (as defined in the APA) as contemplated in
Section 2.2.2 of the APA.
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1.5. Term. Unless terminated earlier pursuant to the terms of this LMA,
the term of this LMA shall end on October __, 2000.
2. PROGRAMMING AND OPERATING STANDARDS
2.1. Obligations and Rights of Licensee. Notwithstanding anything to the
contrary in this LMA, as long as Licensee remains the licensee of the
Stations, it will have full authority, power and control over the
operations of the Stations and over all persons employed by it at the
Stations during the Term of this LMA to enable Licensee to fulfill all
its obligations as a Licensee under the rules, regulations and
policies of the FCC. Licensee shall be responsible for the direction
of the day-to-day operation of the Stations, shall maintain the
Stations' transmission equipment and facilities, including the
antenna, transmitter and transmission lines, and shall provide for the
delivery of electrical power to the Stations' transmitting facilities
at all times in order to ensure operation of the Stations (subject to
downtime for mutually agreed upon scheduled maintenance, breakdowns
not a result of Licensee's negligence, or damage contemplated under
Section 1.3 above) in conformance with its FCC licenses, permits and
authorizations. Licensee specifically agrees to pay all employee
salaries of employees engaged by Licensee pursuant to and consistent
with FCC regulations and policies, real estate taxes, personal
property taxes, utilities, maintenance, repair and engineering fees
associated with maintaining the operation of the Stations in
compliance with FCC regulations.
2.1.1. Licensee's Right to Reject Programming. Licensee shall
retain the right to accept or reject any programming or
advertisements which Licensee deems contrary to the public
interest. Licensee reserves the right to refuse to
broadcast any Programming or advertising containing matter
which is, or in the reasonable opinion of Licensee may be,
violative of any right of any third party, or which may
constitute a "personal attack" as that term is and has been
defined by the FCC, or which Licensee determines is, or in
the reasonable opinion of Licensee may be determined to be,
indecent or obscene by the FCC or any court or other
regulatory body with authority over Licensee or the
Stations, or which otherwise is contrary to the rules,
regulations or policies of the FCC or the Licensee's
Statement of Station Policies annexed hereto as Exhibit A.
Licensee further reserves
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the right to preempt the Programming in the event of a
local, state or national emergency. Programmer agrees to
cooperate with Licensee to ensure that EAS transmissions
are properly performed in accordance with Licensee's
instructions. Licensee reserves the right to delete any
commercial announcements that do not comply with the
requirements of the FCC's sponsorship identification
rules and policies as set forth in 47 C.F.R. Sections
73.1212 and 73.4242, and as such rules and policies may
be changed from time to time by the FCC. Programmer will
immediately serve Licensee with notice and a copy of any
letters of complaint it receives concerning any program
furnished by Programmer, for Licensee's review and
inclusion in the Stations' public inspection files. In
the event of any preemption by Licensee of the
Programming under this section 2.1.1, Licensee shall pay
to Programmer amount equal to the loss of revenue by
Programmer which shall equal the loss of the respective
Station's local and national revenues and the respective
Station's allocation of Programmer network revenues. The
respective Station's allocation of Programmer network
revenues shall be equal to the percentage of Programmer
network revenues that is the same percentage determined
by dividing the Hispanic population of the respective
Station's market by the total Hispanic population reached
by the Programmer network.
2.1.2. Licensee's Right to Preempt Programming for Special Events.
Licensee shall also have the right, in its reasonable
discretion, to preempt any of the broadcasts of the
Programming, in order to broadcast a program deemed by
Licensee to be of greater national, regional, or local
interest. In the event of such preemption under this
section 2.1.2, Licensee shall pay to Programmer an amount
equal to the loss of revenue by Programmer which shall equal
the loss of the respective Station's local and national
revenues and the respective Station's allocation of
Programmer network revenues. The respective Station's
allocation of Programmer network revenues shall be equal to
the percentage of Programmer network revenues that is the
same percentage determined by dividing the Hispanic
population of the respective Station's market by the total
Hispanic population reached by the Programmer network. In
all such cases, Licensee will use its best efforts to give
Programmer reasonable advance notice of its intention to
preempt any
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regularly scheduled programming. Preemption shall occur
only to the extent Licensee deems necessary to carry out
its obligations as an FCC licensee, and Licensee
expressly agrees that its right of preemption shall not
be exercised in an arbitrary manner or solely for the
commercial advantage of Licensee.
2.1.3. Regulatory Requirements. The parties agree that Licensee
may broadcast its own public service programming between the
hours of 6:00 a.m. and 8:00 a.m. on Saturday. Subject to
Section 2.2 of this LMA, the parties acknowledge that
Licensee is ultimately responsible for meeting all of the
FCC's requirements as announced from time to time, including
those with respect to (a) the carriage of political
advertisements and programming (including, without
limitation, the rights of candidates and, as appropriate,
others to "equal opportunities," "lowest unit charge" and
reasonable access, (b) the broadcast and nature of any
public service programming, (c) maintaining the political
and public inspection files and the Station's logs, (d) the
ascertainment of issues of community concern and (e) the
preparation of all quarterly issues/programs lists. Licensee
shall further retain the right to take any other actions
necessary for compliance with the laws of the United States
and the States of New Jersey, Texas and Arizona, the rules,
regulations, and policies of the FCC (including the
prohibition on unauthorized transfers of control), and the
rules, regulations and policies of other federal
governmental authorities, including the Federal Trade
Commission (the "FTC") and the Department of Justice (the
"DOJ"). If, in the judgment of Licensee, any portion of the
Programming presented by Programmer does not comply with any
such law or governmental rule, regulation or policy,
Licensee may suspend, cancel or refuse to broadcast any such
portion of the Programming not in compliance without
reduction or offset in the payments due Licensee under this
LMA.
2.2. Obligations of Programmer
2.2.1. Compliance with Laws and Stations' Policies. All programs
supplied by Programmer shall meet in all material respects
all applicable rules, regulations and policies of the FCC
and all other laws or regulations applicable to the
broadcast of programming by the Stations, as well as the
Licensee's
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Statement of Station Policies annexed hereto as Exhibit
A. All advertising spots and promotional material or
announcements shall comply with all applicable federal,
state and local regulations, as well as the Licensee's
Statement of Station Policies.
2.2.2. Cooperation with Licensee. Programmer agrees that it will
consult with Licensee in the selection of the Programming it
transmits to Licensee for broadcast to ensure that the
Programming contains matter responsive to community needs
and issues of public concern in the Stations' communities of
licenses as those needs and issues are made known to
Programmer by Licensee. Licensees will retain all rights to
the respective call letters assigned by the FCC for use by
the Stations. However, Programmer is specifically
authorized to use the said call letters, or other call
letters used by Licensee for the Stations, in its
Programming and in any promotional material, in any media,
used in connection with the Programming, and shall, upon
request by Licensee, provide information with respect to any
of the Programming which is responsive to the public needs
and interests of the areas served by the Stations so as to
assist Licensee in the preparation of any required
programming reports, and will provide upon request other
information to enable Licensee to prepare other records,
reports and logs required by the FCC or other local, state
or federal governmental agencies. Programmer shall maintain
and deliver to Licensee all records and information required
by the FCC to be placed in the public inspection file of the
Stations pertaining to the broadcast of political
programming and advertisements, in accordance with the
provisions of Sections 73.1940 and 73.3526 of the FCC's
rules, and agrees to broadcast sponsored programming
addressing political issues or controversial subjects of
public importance, in accordance with the provisions of
Section 73.1212 of the FCC's rules. Programmer also shall
consult with the Licensee and adhere strictly to all
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. Programmer shall provide to
Licensee such documentation relating to such
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programming as Licensee shall reasonably request, and
shall indemnify Licensee for any claim, demand or cost or
expense (including reasonable attorneys' fees) arising
from the broadcast of any such material on the Stations
during the term of this LMA. To the extent that Licensee
believes necessary, in its sole discretion, Programmer
shall release advertising availabilities to Licensee
during the Programming to permit Licensee to comply with
the political broadcast rules of the FCC and the
provisions of Section 315 of the Communications Act of
1934, as amended (the "Act"); provided however, that
revenues received by Licensee as a result of any such
release of advertising time shall promptly be remitted to
Programmer.
2.2.3. Payola and Plugola. Programmer shall not pay or accept or
promise to pay or accept any money or other consideration
for the inclusion of any matter as a part of any programming
or commercial material to be supplied to Licensee by
Programmer for broadcast on the Stations, unless the party
making such payment or furnishing such consideration is
identified in the program as having paid for or furnished
such consideration in accordance with FCC requirements.
Programmer will at all times endeavor to proceed in good
faith to comply with the requirements of Sections 317 and
507 of the Communications Act of 1934, as amended, and the
related rules and regulations of the FCC.
2.3. Handling of Mail. Programmer shall provide to Licensee the original
or a copy of any correspondence from a member of the public relating
to the Programming to enable Licensee to comply with FCC rules and
policies, including those regarding the maintenance of the public
inspection file (which shall at all times remain the responsibility of
Licensee). Licensee shall promptly forward to Programmer all
correspondence, payments, communications or other information and/or
documents which it receives and which relate to the Programming,
including without limitation, invoices, billing inquiries, checks,
money orders, wire transfers, or other payments for services or
advertising.
2.4. Promotions. Programmer may engage in promotional activity designed to
promote the Stations, subject to the ultimate authority of Licensee as
provided elsewhere herein and as required under rules,
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regulations and policies of the FCC. All costs associated with any
such promotional activity shall be borne by Programmer.
3. RESPONSIBILITY FOR EMPLOYEES AND EXPENSES
3.1. Licensee's Responsibility for Employees and Expenses. Licensee will
provide the Stations' station managers and chief operator/operations
managers, who shall each report and be accountable solely to Licensee,
and will be responsible for the salaries, taxes, insurance, utilities,
maintenance expenses and related costs for such Station personnel, and
all equipment and facilities used in the broadcast transmission of the
Programming. Licensee shall also provide board operators or automated
operations for the insertion into the Programming of (i) Licensee's
station identification announcement required by the FCC's rules, and
(ii) Programmer's commercial announcements. Programmer shall provide
to Licensee audio cassettes of the commercial announcements and a log
of air times. Whenever on the Stations' premises, all personnel shall
be subject to the supervision and the direction of the Stations'
station managers and/or the Station's chief operators. Licensee shall
be responsible for all music performance licenses from ASCAP, BMI,
SESAC and any other copyright licenses as are required for the
presentation of any programming of the Stations not provided by
Programmer.
3.2. Programmer's Responsibility for Employees and Expenses. Programmer
shall furnish or cause to be furnished the artistic personnel and
material for the production of the Programming to be provided under
this LMA. Programmer shall employ and be responsible for the
salaries, taxes, insurance and related costs for all personnel used in
the production of the Programming (including salespeople, traffic
personnel, and programming staff). Programmer shall pay for all
telephone calls associated with program production and listener
responses, for all fees to ASCAP, BMI and SESAC, for any other
copyright fees, and for all costs or expenses attributable to the
Programming that is broadcast on the Stations.
4. INDEMNIFICATION
4.1. Indemnification by Programmer and Licensee. Each of Programmer and
Licensee (the "Indemnifying Party") shall indemnify, defend and hold
harmless the other (the "Indemnified Party") from and against (i) all
claims, losses, liabilities, and expenses (including reasonable
attorneys' fees and related expenses) asserted against or incurred by
the Indemnified Party and resulting from any misrepresentation or
material breach of warranty, covenant or other agreement by the
Indemnifying Party in this LMA and (ii) all liability for
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libel, slander, illegal competition or trade practice, infringement
of trade marks, trade names, or program titles, violation of rights
of privacy, and infringement of copyrights and proprietary rights
resulting from programming supplied by the Indemnifying Party. The
parties' indemnification obligations hereunder shall survive any
termination or expiration of this LMA for a period of twelve (12)
months.
4.2. Indemnification Procedure.
(a) The Indemnified Party agrees to give written notice within a
reasonable time to the Indemnifying Party of any claim or other
assertion of liability by third parties which could give rise to
a claim for indemnification hereunder (hereinafter collectively
"Claims," and individually a "Claim"), it being understood that
the failure to give such notice shall not affect the Indemnified
Party's obligation to indemnify as set forth in this Agreement,
unless, and then only to the extent, the Indemnifying Party's
ability to contest, defend or settle with respect to such Claim
is thereby demonstrably and materially prejudiced. The
obligations and liabilities of the parties hereto with respect to
their respective indemnities pursuant to this Section 4 resulting
from any Claim, shall be subject to the following additional
terms and conditions:
(b) Provided the Indemnifying Party acknowledges in writing its
obligation to indemnify the Indemnified Party with respect to the
Claim and further satisfies the Indemnified Party as to its
financial ability to satisfy such indemnification obligation, the
Indemnifying Party shall have the right to undertake, by counsel
or other representatives of its own choosing, the defense or
opposition to such Claim.
(c) In the event that the Indemnifying Party shall either (i) elect
not to undertake, or shall fail to satisfy any requirements to
undertake, such defense or opposition, or (ii) fail to properly
elect within thirty (30) days after notice of any such Claim from
the Indemnified Party or thereafter fail to defend or oppose such
Claim, then, in either such event, the Indemnified Party shall
have the right to undertake the defense, opposition, compromise
or settlement of such Claim, by counsel or other representatives
of its own choosing, on behalf of and for the account and risk of
the Indemnifying Party.
(d) Anything in this Section 4 to the contrary notwithstanding, (i)
the
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Indemnifying Party shall not, without the Indemnified Party's
written consent, settle or compromise any Claim or consent to
entry of any judgment which includes any admission of
liability or does not include as a term thereof the giving by
the claimant or the plaintiff to the Indemnified Party of an
unconditional release from all liability in respect of such
Claim, and (ii) in the event that the Indemnifying Party
undertakes defense of or opposition to any Claim, the
Indemnified Party, by counsel or other representative of its
own choosing and at its sole cost and expense, shall have the
right to consult with the Indemnifying Party and its counsel
or other representatives concerning such Claim and the
Indemnifying Party and the Indemnified Party and their
respective counsel or other representatives shall cooperate in
good faith with respect to such Claim.
4.3 Insurance. Each party shall maintain comprehensive general liability
insurance with respect to their respective business operations and as
contemplated hereunder, having the other as an additional insured.
The amounts of such coverage shall be mutually agreed upon from time
to time, and each party shall provide proof of such insurance to the
other upon request.
5. STUDIO LICENSE AGREEMENT
5.1. License To Use Studio Facilities. Programmer is hereby granted a
license to utilize the Stations' studio facilities (the "Premises")
during the term of this LMA subject to Licensee's continuing control
over such facilities as provided elsewhere hereunder. The location of
the studio facility for each of the Stations is described on Schedule
2 attached hereto and made a part hereof by reference.
5.2. Rental. During the term of this LMA, Programmer shall be obligated to
make no payments for the license to use the premises other than the
Fee called for by Section 1.4 hereof.
5.3. No Further Improvements. The Licensee shall not be required to
provide any further improvements to the Premises, and Programmer shall
be responsible for any additional improvements that it requires in
connection with the operation of its business.
5.4. Programmer Improvements. Programmer shall not make any material
physical improvements or changes to the Premises without Licensee's
prior written consent, which consent shall not be
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unreasonably denied nor delayed; provided, however, that
Programmer may, at its own expense, install on the Premises such
equipment, including, without limitation, satellite receivers, as
will permit Programmer to broadcast the Programming on the
Stations. Title to any such equipment installed on the Premises by
Programmer shall remain with the Programmer.
5.5. Contracts.
5.5.1. Programmer expressly does not assume, and shall not be
deemed to assume, under this LMA or otherwise by reason of
the transactions contemplated hereby, any liabilities,
obligations or commitments of Licensee of any nature
whatsoever, regardless of whether arising from or relating
to the ownership, operations or business of the Stations(the
"Retained Liabilities").
5.5.2. This LMA shall not constitute an assignment of any contract
or lease to which Licensee is a party, including without
limitation any studio or tower leases. Licensee shall
continue to perform all of its obligations under all
contracts, leases and other agreements in a timely manner
and otherwise keep all such contracts and leases in full
force and effect.
6. EVENTS OF DEFAULT AND CURE PERIODS
6.1. Events of Default. The following shall, after the expiration of the
applicable cure periods, each constitute an Event of Default under
this Agreement:
6.1.1. Default in Covenants or Adverse Legal Action. Either party
defaults in the performance of any material covenant,
condition or undertaking contained in this LMA or the APA;
and
6.1.2. Breach of Representation. Any material representation or
warranty made by either party to this LMA, or in any
certificate or document furnished by either party to the
other pursuant to the provisions of this LMA, proves to have
been false or misleading in any material respect as of the
time made or furnished.
6.2. Cure Periods. An Event of Default shall not be deemed to have
occurred until thirty (30) days after the non-defaulting party has
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provided the defaulting party with written notice specifying the event
or events that, if not cured, would constitute an Event of Default and
specifying the actions necessary to cure the default(s) within such
period. This period may be extended for a reasonable period of time
if the defaulting party is acting in good faith to cure and such delay
is not materially adverse to the other party.
7. TERMINATION
7.1. Termination Upon Default. Upon the occurrence of an Event of Default,
the non-defaulting party may terminate this LMA, provided that it is
not also in material default of this LMA.
7.2. Termination for Change in FCC Rules or Policies. In the event that a
federal, state or local government authority, (including, without
limitation, the FCC, the FTC or the DOJ) orders, or takes or announces
other action which would require, the termination of this LMA and/or
the curtailment, in any materially adverse manner, of the transactions
contemplated by this LMA or, the relationship between the parties
hereto or the provision of programming by Programmer hereunder, either
party, at its option, may: (a) seek administrative or judicial relief
from such order in which event the parties shall cooperate with each
other, provided that the party seeking such relief shall be
responsible for legal fees and costs incurred in such proceedings; or
(b) elect to terminate this LMA upon ten (10) days' prior written
notice to the other party. In the event of termination of this LMA by
either party pursuant to cause (b) of the preceding sentence, the
Programmer shall be entitled to a proration of the sums owed to or
paid to Licensee pursuant to Section 1.4 hereof, provided that
Programmer is not in default under this LMA as of the effective date
of such termination of this LMA. If the FCC designates the license
renewal application of any Station for a hearing as a consequence of
this LMA or for any other reason, or initiates any revocation or other
proceeding with respect to the authorizations issued to the Licensee,
and Licensee elects to contest the action, then Licensee shall be
responsible for its expenses incurred as a consequence of the FCC
proceeding; provided, however, that Programmer shall at its own
expense cooperate and comply with any reasonable request of Licensee
to assemble and provide to the FCC information relating to
Programmer's performance under this LMA. In the event that the
validity of any portion of this LMA is called into question by the FCC
or as the result of any change in FCC rules or policies, the parties
hereto shall consult with the FCC and its staff concerning such
matters which would obviate any such FCC questions
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as to validity while preserving, to the extent possible, the intent
of the parties and the economic and other benefits of this LMA and
the portion thereof whose validity is called into question. If the
parties cannot agree within a reasonable time to a modification or
modifications deemed necessary by either party to meet FCC
requirements, either party, if not then in default, may terminate
this LMA upon ten (10) days' written notice to the other party.
7.3. Certain Matters Upon Termination.
7.3.1. Following termination or expiration of this LMA for any
reason, Programmer shall be solely responsible for all
liabilities, debts and obligations accrued from the sale of
air time or use of the Station's facilities by Programmer
including, without limitation, accounts payable, barter
agreements, tradeout agreements, and unaired advertisements
and Licensee shall refund any prepaid portions of the Fee
insofar as it relates to periods of time after such
termination. In the event of termination of this LMA as the
consequence of any government order, Programmer shall be
entitled to pursue collection of its own accounts receivable
accrued from any advertiser which has contracted directly
with Programmer for the purchase of advertising time on the
Stations. If this LMA is terminated for any reason other
than a default by Programmer:
(a) Licensee agrees to cooperate reasonably with
Programmer to make air time available on the
Stations following the date of termination to
discharge Programmer's remaining obligations to
advertisers who purchased air time from Programmer
prior to termination and who desire to utilize air
time at Licensee's established rates. Licensee
shall have no other obligation to any advertisers
who purchased air time from Programmer prior to
termination and, in particular, shall not be
obligated to provide air time to or reimburse any
sums paid to Programmer by advertisers who do not
desire air time on the Stations after termination of
this LMA.
(b) Programmer shall return to Licensee any equipment or
property of the Stations used by Programmer, its
employees or agents, in substantially the same
condition
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as such equipment existed as of the initial date
hereof, ordinary wear and tear excepted.
7.3.2. No expiration or termination of this LMA shall terminate the
obligation of each party to indemnify the other for claims
of third parties under Section 4 of this LMA or limit or
impair any party's rights to receive payments due and owing
hereunder on or before the date of such termination.
8. REPRESENTATIONS AND WARRANTIES
8.1. Representations and Warranties of Licensee. Licensee hereby
represents and warrants that:
8.1.1. Authorization and Binding Obligation. CR New York, Inc., is
a corporation organized and existing in good standing under
the laws of the State of New Jersey, with full power and
authority to enter into this LMA and to enter into and
complete the transactions contemplated herein; Children's
Radio of Dallas, Inc., and Children's Radio of Phoenix,
Inc., are corporations organized and existing in good
standing under the laws of the State of Minnesota, with full
power and authority to enter into this LMA and to enter into
and complete the transactions contemplated herein; all
required corporate actions have been taken by the Licensee
to make and carry out this LMA, which is a valid and binding
obligation of Licensee and which is enforceable in
accordance with its terms.
8.1.2. Absence of Conflicting Agreements or Required Consents. The
execution of this LMA will not result in the violation of
any order, license, permit, rule, judgment or decree to
which Licensee or any Subsidiary of any Licensee
("Subsidiary") is subject or the breach of any contract,
agreement or other commitment to which any Licensee or any
Subsidiary is a party or by which any Licensee or any
Subsidiary is bound; and no other consents of any kind are
required that have not been obtained for the Licensee to
make or carry out the terms of this LMA. The execution,
delivery and performance of this LMA will not violate any
provision in each Licensee's respective certificates of
incorporation or bylaws.
8.1.3. Main Studio. Licensee warrants and represents that it will
maintain its main studios for each of the stations in
compliance
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with the rules, regulations and decisions of the FCC.
8.1.4. Compliance with Laws. Licensee has operated the Stations in
all material respects in compliance with all laws,
regulations and governmental orders applicable to the
conduct of the business and operations of the Stations.
8.1.5. FCC Matters. During the term of this LMA, Licensee,
directly or through the Subsidiaries, will 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 LMA. There is not pending, or to
Licensee'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 Licensee's knowledge,
Licensee and the Subsidiaries are 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 them or the Stations,
which would have an adverse effect upon Licensee, its
assets, the Stations or upon Licensee's ability to perform
this LMA. Licensee shall not take any action or omit to
take any action which would have an adverse impact upon
Licensee, its assets, the Stations or upon Licensee's
abilities to perform this LMA. All reports and applications
required to be filed with the FCC or any other governmental
body during the term of this LMA will be filed in a timely
and complete manner. Licensee has, and throughout the term
of this LMA 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 Stations.
During the term of this LMA, Licensee shall not permit the
Subsidiaries to dispose of, transfer, assign or pledge any
of such assets and properties, except with the prior written
consent of Programmer, if such action would adversely affect
Licensee's performance hereunder or the business and
operations of the Licensee or the Stations permitted hereby.
8.1.6. Maintenance of Equipment. The transmitter equipment and
antennas used for the Stations' broadcasts owned by Licensee
(the "Transmission Equipment") shall be maintained by
Licensee in a condition consistent with good engineering
practices and in
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compliance in all material respect with the Act and all
other applicable rules, regulations and technical
standards of the FCC. Licensee shall maintain power and
modulation of the Stations' broadcasts in a manner
consistent with Licensee's past practices. All capital
expenditures reasonably required to maintain the
technical quality of the Stations' Transmission Equipment
and their compliance with applicable laws and regulations
shall be made at the sole expense and in the sole
discretion of Licensee. Except for maintenance of the
Transmission Equipment, Licensee shall have no obligation
to obtain or maintain any equipment necessary to the
broadcast by Programmer of the Programming covered by
this LMA.
8.1.7. Litigation. Neither Licensee nor the Subsidiaries is
subject to any judgment, award, order, writ, injunction,
arbitration decision or decree which would materially
adversely affect the conduct of the business of the Stations
as it is to be conducted under this LMA, and there is no
litigation, proceeding or investigation pending or, to the
best of Licensee's knowledge, threatened against Licensee or
the Subsidiaries in any federal, state or local court, or
before any administrative agency or arbitrator which would
have a material adverse effect upon the Stations or which
seeks to enjoin or prohibit, or otherwise is reasonably
likely to defeat the validity of, any action taken or to be
taken pursuant to or in connection with this LMA.
8.1.8. Bankruptcy. No insolvency proceedings of any character,
including, without limitation, bankruptcy, receivership,
reorganization, composition or arrangement with creditors,
voluntary or involuntary, affecting Licensee or the
Subsidiaries are pending or threatened, and neither Licensee
nor the Subsidiaries has made any assignment for the benefit
of creditors or taken any action in contemplation of or
which would constitute the basis for the institution of such
insolvency proceedings.
8.2. Representations and Warranties of Programmer. Programmer hereby
represents and warrants that:
8.2.1. Authorization and Binding Obligation. The Programmer is a
corporation organized and existing in good standing under
the laws of the State of Delaware with full power and
authority to enter into this LMA and enter into and complete
the transactions
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contemplated herein; Programmer is, or will be at the
time of Closing, qualified to do business in the States
of New York, New Jersey, Arizona and Texas; all required
corporate action has been taken by Programmer to make and
carry out this LMA.
8.2.2. Absence of Conflicting Agreements or Required Consents. The
execution, delivery and performance of this LMA by
Programmer will not result in the violation of any order,
license, permit, rule, judgment or decree to which
Programmer is subject or the breach of any contract,
agreement or other commitment to which Programmer is a party
or by which it is bound; no other consent of any kind is
required that has not been obtained for Programmer to make
or carry out the terms of this LMA.
8.2.3. Litigation. Programmer is subject to no judgment, award,
order, writ, injunction, arbitration decision or decree
which would materially adversely affect the conduct of the
business of the Stations as it is to be conducted under this
LMA, and there is no litigation, proceeding or investigation
pending or, to the best of Programmer's knowledge,
threatened against Programmer in any federal, state or local
court, or before any administrative agency or arbitrator
which would have a material adverse effect upon the Stations
or which seeks to enjoin or prohibit, or otherwise is
reasonably likely to defeat the validity of, any action
taken or to be taken pursuant to or in connection with this
LMA.
8.2.4. Bankruptcy. No insolvency proceedings of any character,
including, without limitation, bankruptcy, receivership,
reorganization, composition or arrangement with creditors,
voluntary or involuntary, affecting Programmer are pending
or threatened, and Programmer has made no assignment for the
benefit of creditors or taken any action in contemplation of
or which would constitute the basis for the institution of
such insolvency proceedings.
9. CERTIFICATIONS
9.1. Programmer's Certification. Programmer hereby certifies that this LMA
complies with the provisions of Sections 73.3555 (a)(1) and (e)(1) of
the FCC's rules and regulations.
9.2. Licensee's Certification. Licensee hereby certifies that it shall
maintain the ultimate control over the Stations' facilities, including
but
17
not limited to control over the finances with respect to the
operation of the Stations, over the personnel operating the Stations,
and over the programming to be broadcast by the Stations.
10. MISCELLANEOUS
10.1. Modification and Waiver. No modification or waiver of any
provision of this LMA shall be effective unless made in writing
and signed by the party adversely affected, and any such waiver
and consent shall be effective only in the specific instance and
for the purpose for which such consent was given.
10.2. No Waiver; Remedies Cumulative. No failure or delay on the part
of Licensee or Programmer in exercising any right or power under
this LMA 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
the parties to this LMA are cumulative and are not exclusive of
any right or remedies which either may otherwise have.
10.3. Governing Law; Arbitration. The construction and performance of
this LMA shall be governed by the laws of the State of Minnesota
without regard to its principles of conflicts of law. Any
dispute arising under or related to this LMA shall be resolved by
binding arbitration in Wilmington, Delaware 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.
10.4. No Partnership or Joint Venture. This LMA is not intended to be
and shall not be construed as a Partnership or Joint Venture
Agreement between the parties. Except as otherwise specifically
provided in this LMA, no party to this LMA shall be authorized to
act as agent of or otherwise represent any other party to this
LMA.
10.5. Confidentiality. Each party hereto will maintain the
confidentiality of all the information and materials delivered to
it or made available for its
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inspection by the other hereunder.
10.6. Benefit and Assignment. This LMA shall be binding upon and shall
inure to the benefit of the parties hereto and their respective
successors and assigns. No party hereto may voluntarily or
involuntarily assign its interest under this LMA without the
prior written consent of the other party.
10.7. Headings. The headings contained in this LMA are included for
convenience only and shall not in any way alter the meaning of
any provision.
10.8. Counterpart Signatures. This LMA may be signed in one or more
counterparts, each of which shall be deemed an original and
together which shall constitute one and the same instrument.
10.9. Notices. Any notice required hereunder shall be in writing and
any payment, notice or other communications shall be deemed given
when delivered personally, or mailed by certified mail or Federal
Express, postage prepaid, with return receipt requested, and
addressed as follows:
If to the Licensee: Children's Broadcasting Corporation
000 Xxxxx Xxxxxx Xxxxx, Xxxxxx Xxxxx
Xxxxxxxxxxx, Xxxxxxxxx 00000
Attention: Xx. Xxxxxxxxxxx X. Xxxx
Facsimile Number: (000) 000-0000
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with copy to: Children's Broadcasting Corporation
000 Xxxxx Xxxxxx Xxxxx, Xxxxxx Xxxxx
Xxxxxxxxxxx, Xxxxxxxxx 00000
Attention: Xxxxx X. Xxxxx, Esq.
Facsimile Number: (000) 000-0000
If to the Programmer: Radio Unica Corp.
0000 X.X. 00xx Xxxxxx
Xxxxx 000
Xxxxx, Xxxxxxx 00000
Attention: Xxxxxxx X. Xxxxx
Facsimile Number (000) 000-0000
with copy to: Xxxxxx Xxxxxxx
0 Xxxxxx Xxxxxx
Xxxxxx, XX 00000
Facsimile Number (000) 000-0000
and with a copy to: Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP
0000 Xxx Xxxx Xxxxxx, X.X.
Xxxxxxxxxx, X.X. 00000
Attention: Xxxx X. Xxxxx, Esq.
Facsimile Number: (000) 000-0000
10.10. Entire Agreement. This LMA and the APA, including the schedules
and exhibits hereto and thereto, embody the entire agreement
between the parties and there are no other agreements,
representations, warranties, or understandings, oral or written,
between them with respect to the subject matter hereof.
Schedules and Exhibits are set out separately from the body of
this LMA for convenience only and shall be deemed to be an
integral part hereof.
10.11. Severability. In the event that any of the provisions contained
in this LMA is held to be invalid, illegal or unenforceable, such
holding shall not affect any other provision hereof, and this LMA
shall be construed as if such invalid, illegal or unenforceable
provisions had not been contained herein.
10.12. Brokers. The parties hereto each represent to the other that
they have not engaged a broker in connection with the
contemplated
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transaction, and each party agrees to pay the respective
commissions owed under any such agreements and agrees to
indemnify and hold the other party or parties harmless against
any claims made by a broker through it or them in connection
with the transactions contemplated hereunder.
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IN WITNESS WHEREOF, the parties have executed this LMA as of the date first
above written.
Children's Radio of Phoenix, Inc. Radio Unica Corp.
By: /s/ Xxxxxxxxxxx X. Xxxx By: /s/ Xxxxxxx X. Xxxxx
----------------------- -----------------------
Its: President & CEO Its: Chairman & CEO
------------------ ------------------
Children's Radio of Dallas, Inc. Children's Radio of New York, Inc.
By: /s/ Xxxxxxxxxxx X. Xxxx By: /s/ Xxxxxxxxxxx X. Xxxx
----------------------- -----------------------
Its: President & CEO Its: President & CEO
------------------ --------------------
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