Exhibit 10.27
--------------------------------------------------------------------------------
LOCAL PROGRAMMING AND MARKETING AGREEMENT
By and Between
CHILDREN'S RADIO OF NEW YORK, INC.
AND
RADIO UNICA CORP.
Dated as of June 1, 1998
--------------------------------------------------------------------------------
LOCAL PROGRAMMING AND MARKETING AGREEMENT
THIS LOCAL PROGRAMMING AND MARKETING AGREEMENT (the "LMA"), dated as of
June 1, 1998, is entered into by and between CHILDREN'S RADIO OF NEW YORK,
INC., a New Jersey corporation (referred to herein as the "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
(the "Station"), all subject to applicable regulations of the FCC and the
specific terms and conditions set forth below.
THEREFORE, in consideration of the mutual covenants herein contained,
the parties agree as follows:
1. SALE OF TIME
1.1. Broadcast of Programming. Commencing June 1, 1998, Licensee
shall broadcast on the Station the Programming for One Hundred
Sixty-six (166) hours per week. Programmer will transmit its
Pro gramming from Licensee's transmitting facilities .
1.2. Advertising and Programming Revenues. During the period in
which Programmer delivers the Programming to the Station,
Programmer shall have full authority to sell for its own
account commercial time on the Station 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 Station for sale of commercial
time on the
Station 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 l hereto for the rights granted under
this LMA. The Fee shall be paid upon execution of this LMA. In
the event Programmer exercises its option to extend the term
as described in Section 1.5 below, Programmer shall pay to
Licensee an additional fee as set forth on Schedule 1 hereto
on the Extension Termination Date (as defined below).
1.5. Term. Unless terminated earlier pursuant to the terms of this
LMA, the term of this LMA shall end on August 31, 1998,
provided, how ever, that Programmer, at its sole option, may
upon ten (10) days prior written notice to Licensee, extend
the term of this LMA to the date on which the sale of the
Station to Catholic Radio Network, LLC ("CRN") closes or the
date that the agreement to purchase the Station is terminated
(the "Extension Termination Date").
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 Station, it will have full authority, power
and control over the operations of the Station and over all
persons employed by it at the Station 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 Station, shall maintain the Station's
transmis sion equipment and facilities, including the antenna,
transmitter and transmission line, and shall provide for the
delivery of electrical power to the Station's transmitting
facilities at all times in order to ensure operation of the
Station (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 Station
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 Station, 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 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 Station's 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
net work.
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 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. FCC Public Interest 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 State of New Jersey 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 and the Department of
Justice. 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 Station's 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 Station, as well as the
Licensee's 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 Station's communities of licenses as
those needs and issues are made known to Programmer
by Licensee. Licensee will retain all rights to call
letters assigned by the FCC for use by the Station.
However, Programmer is specifically authorized to use
the said call letters, or other call letters used by
Licensee for the Station, 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
Station 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 Station 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 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 Station 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 Station, 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 Station, subject to the ultimate
authority of Licensee as provided elsewhere herein and as
required under rules, regulations and policies of the FCC. All
costs associated with any such promotional activity shall be
borne by Programmer.
2.5. World Cup. Licensee covenants and agrees to have an engineer
on call during all time periods in which the World Cup Soccer
Match is broadcast on the Station by Programmer.
3. RESPONSIBILITY FOR EMPLOYEES AND EXPENSES
3.1. Licensee's Responsibility for Employees and Expenses. Licensee
will provide the Station's station manager and chief
operator/operations manager, 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
Station's premises, all personnel shall be subject to the
supervision and the direction of the Station's 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 program ming of the Station 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 Station.
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
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 obliga tion, the Indemnifying Party
shall have the right to under take, 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 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 Station's studio facilities located
at ▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ (the "Premises")
during the term of this LMA subject to Licensee's continuing
control over such facilities as provided elsewhere hereunder.
5.2. Rental. During the term of this LMA, Programmer shall be
obligated to make no payments for the license to use studio
facilities 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 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 Station. Title to any such equip ment
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 Station (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 other wise 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; 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 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) 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 the 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 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 require ments, 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. 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 Station. If this LMA is terminated for any reason
other than a default by Programmer:
(a) Licensee agrees to cooperate reasonably with
Program mer to make air time available on
the Station 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 Station after
termination of this LMA.
(b) Programmer shall return to Licensee any
equipment or property of the Station used by
Programmer, its employees or agents, in
substantially the same condition 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 here under 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. The Licensee 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; 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 WJDM-AM, Inc.
("WJDM") is subject or the breach of any contract,
agreement or other commitment to which the Licensee
or WJDM is a party or by which either of them is
bound; and no other consents of any kind are required
that have not been obtained for the Licensee or WJDM
to make or carry out the terms of this LMA. The
execution, delivery and performance of this LMA will
not violate any provision in the Licensee's or WJDM's
respective certificate of incorporation or bylaws.
8.1.3. Main Studio. Licensee warrants and represents that it
will maintain its main studios in compliance with the
rules, regulations and decisions of the FCC.
8.1.4. Compliance with Laws. Licensee has operated the
Station in all material respects in compliance with
all laws, regulations and governmental orders
applicable to the conduct of the business and
operations of the Station.
8.1.5. FCC Matters. During the term of this LMA, Licensee,
directly or through its wholly owned subsidiary,
WJDM, 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 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 WJDM 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 Station, which would have an adverse
effect upon Licensee, its assets, WJDM, the Station
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 Station 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 Station.
During the term of this LMA, Licensee shall not
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
Station permitted hereby.
8.1.6. Maintenance of Equipment. The transmitter equipment
and antennas used for the Station's broadcasts owned
by Licensee (the "Transmission Equipment") shall be
maintained by Licensee in a condition consistent
with good engineering practices and in 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 Station's broadcasts in a manner
consistent with Licensee's past practices. All
capital expenditures reasonably required to maintain
the technical quality of the Station's 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 WJDM 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 Station 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 WJDM in any federal, state or
local court, or before any administrative agency or
arbitrator which would have a material adverse effect
upon the Station 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 Licencee or WJDM are pending or threatened,
and neither Licensee nor WJDM 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 contemplated
herein; Programmer is, or will be at the time of
Closing, qualified to do business in the States of
New York and New Jersey; 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 Station 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 Station
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 Station's
facilities, including but not limited to control over the
finances with respect to the operation of the Station, over
the personnel operating the Station, and over the programming
to be broadcast by the Station.
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 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
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇. ▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇
with copy to: Children's Broadcasting Corporation
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇, Esq.
If to the Programmer: Radio Unica Corp.
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇. ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
with copy to: Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇
LLP
▇▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇.▇.
▇▇▇▇▇▇▇▇▇▇, ▇.▇. ▇▇▇▇▇
Attention: ▇▇▇▇ ▇. ▇▇▇▇▇, Esq.
10.10. Entire Agreement. This LMA entered into contemporaneously
herewith by the parties hereto, 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 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.
IN WITNESS WHEREOF, the parties have executed this LMA as of the date
first above written.
CHILDREN'S RADIO OF NEW YORK, INC. RADIO UNICA CORP.
By: /s/ By: /s/
---------------------------- --------------------------
Its: C.O.O. Its: Executive V.P.
---------------------------- -------------------------
SCHEDULE 1
FEE PAYMENT SCHEDULE
Programmer agrees to pay to Licensee upon execution of this agreement a fee in
the amount of $175,000.00. Programmer further agrees that, in the event it
exercises its option to extend the term of this LMA as set forth in Section 1.5
of this LMA, it shall pay Licensee an additional fee equal to the number of days
following August 31, 1998 on which the Extension Termination Date occurs
multiplied by $1,902.00. Programmer further agrees to run 10 minutes of
Licensee's commercial spots per day during the term hereof between the hours of
8:00 p.m. and 6:00 a.m., seven (7) days per week. Licensee agrees that such
commercials shall be in Spanish and that it will not sell against Programmer in
the New York City marketplace.
EXHIBIT A
STATEMENT OF STATION POLICIES
Programmer and Licensee shall cooperate in broadcasting programming
that meets high standards of quality and serves the public interest. Without
limiting the foregoing, the parties will observe the following policies in the
preparation, writing, production, and broadcast of all programming of the
Station:
I. No Attacks. The programs broadcast on the Station will not be
used as a medium for attack on any race, ethnic group, gender,
nationality, faith, denomination or sect or upon any
individual or organization.
II. Controversial Issue. Any discussion of controversial issues of
public importance will be reasonably balanced with the
presentation of contrasting viewpoints in the course of
overall programming; no attacks on the honesty, integrity or
like personal qualities of any person or group of persons will
be made during the discussion of controversial issues of
public importance; and, during the course of political
campaigns, the Station's programs are not to be used as a
forum for editorializing about individual candidates. If such
events occur, Licensee may require that responsive programming
be aired. In the event that a statute, regulation or policy is
adopted that requires the airing of responsive programming,
Programmer agrees to comply with such statute, regulation or
policy and will prepare such responsive programming.
III. No Plugola or Payola. The mention of any business activity or
"plug" for any commercial, professional or other related
endeavor, except where contained in an actual commercial
message of a sponsor is prohibited. No commercial messages
("plug") or undue references shall be made in programming
presented over the Station to any business venture, profit
making activity or other interest (other than noncommercial
announcements for bona fide charities, church activities or
other public service activities) in which Programmer or its
employees is (are) directly or indirectly interested without
the same having been approved in advance by the Licensee's
General Manager and such broadcast being announced and logged
as sponsored.
IV. No Gambling. Any form of gambling on the programs broadcast on
the Station is prohibited.
V. Election Procedures. At least 30 days before the start of any
primary or general election campaign, Programmer will clear
with the Licensee's General Manager the rates that Programmer
will charge for the time to be sold to candidates for public
office or their supporters to make certain that
such rates conform with applicable law and Station policy.
VI. Required Announcements. Programmer will broadcast (i) an
announcement in form satisfactory to Licensee at the
beginning of each hour to identify the Station; (ii) an
announcement at the beginning and end of each broadcast day or
appropriate broadcast period to indicate that the program time
has been purchased by Programmer; and (iii) any other
announcements required by applicable law or Station policy.
VII. Credit Terms Advertising. Pursuant to rules of the Federal
Trade Commission, no advertising of credit terms will be made
over the Station beyond mention of the fact that, if desired,
credit terms are available.
VIII. No Illegal Announcements. No announcements or promotions
prohibited by federal or state law or regulation or any
lottery or game will be made over the Station. Any game,
contest or promotion relating to, or to be presented over, the
Station must be fully stated and explained in advance to
Licensee, which reserves the right, in its sole but reasonable
discretion, to reject any game, contest or promotion.
IX. Licensee Discretion Paramount. In accordance with the
Licensee's responsibility under the Communications Act of
1934, as amended, and the rules and regulations of the FCC,
Licensee reserves the right to reject or terminate any
advertising proposed to be presented or being presented over
the Station which is in conflict with Station policy or which,
in Licensee's sole but reasonable judgment, would not serve
the public interest.
X. Programming Prohibitions. Programmer will not broadcast any of
the following programs or announcements:
(a) False Claims. False, deceptive or unwarranted claims
for any product or service.
(b) Unfair Imitation or Disparagement. Infringements of
another advertiser's rights through plagiarism or
unfair imitation of either program idea or copy or
any other unfair competition, or unfair disparagement
of competitors or competitive goods.
(c) Profanity and Foul Language. Any programs or
announcements that are slanderous, obscene, indecent,
profane, vulgar, repulsive or offensive, either in
theme or in treatment.
(d) Unauthenticated Testimonials. Any testimonials which
cannot be authenticated.
(e) Descriptions of Bodily Functions. Any presentation
which describes bodily functions in a repellant
manner.
(f) Harmful Advertising. Any advertising matter or
announcement which may, in the sole but reasonable
judgment of Licensee, be injurious or prejudicial to
the interests of the public, the Station, or honest
advertising and reputable business in general.
(g) Contests. Any contests or promotions which are in any
way misleading or constitute a public nuisance or are
likely to lead to injury to persons or property.
(h) Telephone Conversations. Any programming in violation
of any statute, regulation or policy, including
without limitation to, Section 73.1206 of the FCC's
rules, or any successor regulation, dealing with the
taping and/or broadcast of telephone conversations.
The parties may jointly waive any of the foregoing regulations and
restrictions in specific instances if, in their opinion, good broadcasting in
the public interest is served thereby.
In any case where obvious questions of policy or interpretation arise,
Programmer will attempt in good faith to submit the same to Licensee for
decision before making any commitments in connection therewith.
TABLE OF CONTENTS
PAGE
1. SALE OF TIME................................................................1
1.1. Broadcast of Programming....................................................1
1.2. Advertising and Programming Revenues........................................1
1.3. Force Majeure...............................................................2
1.4. Payments ...................................................................2
1.5. Term ...................................................................2
2. PROGRAMMING AND OPERATING STANDARDS.........................................3
2.1. Obligations and Rights of Licensee..........................................3
2.1.1. Licensee's Right to Reject Programming.............................3
2.1.2. Licensee's Right to Preempt Programming for Special Events.........4
2.1.3. FCC Public Interest Requirements...................................5
2.2. Obligations of Programmer ..................................................6
2.2.1. Compliance with Laws and Station's Policies........................6
2.2.2. Cooperation with Licensee..........................................6
2.2.3. Payola and Plugola.................................................7
2.3. Handling of Mail............................................................7
2.4. Promotions..................................................................8
2.5. World Cup...................................................................8
3. RESPONSIBILITY FOR EMPLOYEES AND EXPENSES...................................8
3.1. Licensee's Responsibility for Employees and Expenses........................8
3.2. Programmer's Responsibility for Employees and Expenses......................9
4. INDEMNIFICATION.............................................................9
4.1. Indemnification by Programmer and Licensee..................................9
4.2. Indemnification Procedure...................................................9
4.3. Insurance..................................................................11
5. STUDIO LICENSE AGREEMENT...................................................11
5.1. License To Use Studio Facilities...........................................11
5.2. Rental ..................................................................11
5.3. No Further Improvements....................................................11
5.4. Programmer Improvements....................................................11
5.5. Contracts..................................................................12
i
6. EVENTS OF DEFAULT AND CURE PERIODS.........................................12
6.1. Events of Default..........................................................12
6.1.1. Default in Covenants or Adverse Legal Action......................12
6.1.2. Breach of Representation..........................................12
6.2. Cure Periods...............................................................13
7. TERMINATION................................................................13
7.1. Termination Upon Default...................................................13
7.2. Termination for Change in FCC Rules or Policies............................13
7.3. Certain Matters Upon Termination...........................................14
8. REPRESENTATIONS AND WARRANTIES.............................................15
8.1. Representations and Warranties of Licensee.................................15
8.1.1. Authorization and Binding Obligation..............................15
8.1.2. Absence of Conflicting Agreements or Required Consents............15
8.1.3. Main Studio.......................................................16
8.1.4. Compliance with Laws..............................................16
8.1.5. FCC Matters.......................................................16
8.1.6. Maintenance of Equipment..........................................17
8.1.7. Litigation .......................................................17
8.1.8. Bankruptcy .......................................................18
8.2. Representations and Warranties of Programmer...............................18
8.2.1. Authorization and Binding Obligation..............................18
8.2.2. Absence of Conflicting Agreements or Required Consents............18
8.2.3. Litigation .......................................................18
8.2.4. Bankruptcy .......................................................19
9. CERTIFICATIONS.............................................................19
9.1. Programmer's Certification.................................................19
9.2. Licensee's Certification...................................................19
10. MISCELLANEOUS..............................................................19
10.1. Modification and Waiver....................................................19
10.2. No Waiver; Remedies Cumulative.............................................19
10.3. Governing Law; Arbitration.................................................20
10.4. No Partnership or Joint Venture............................................20
10.5. Confidentiality............................................................20
10.6. Benefit and Assignment.....................................................20
10.7. Headings ..................................................................20
ii
10.8. Counterpart Signatures.....................................................21
10.9. Notices ..................................................................21
10.10. Entire Agreement...........................................................21
10.11. Severability...............................................................22
10.12. Brokers ..................................................................22
iii