EXHIBIT 10.4
TIME BROKERAGE AGREEMENT
This Time Brokerage Agreement (the "Agreement") is entered into as of
the 15th day of April, 2004, by and among KPTI LICENSING, INC., a Delaware
corporation ("Licensee"), SPANISH BROADCASTING SYSTEM, INC., a Delaware
corporation ("SBS"), and SPANISH BROADCASTING SYSTEM - SAN FRANCISCO, INC., a
Delaware corporation (together with SBS and Licensee, the "SBS Entities") and 3
POINT MEDIA - SAN FRANCISCO, LLC, an Illinois limited liability company
("Programmer").
WHEREAS, Licensee is the licensee of and owns and operates radio
station KPTI(FM), FCC Facility ID No. 36029, Alameda, California (the
"Station"), pursuant to licenses, permits, and authorizations issued to Licensee
by the Federal Communications Commission (the "Commission" or "FCC").
WHEREAS, the SBS Entities and Programmer are parties to that certain
Asset Purchase Agreement, dated as of October 2, 2003, as amended on April 14,
2004 (the "Asset Purchase Agreement"), whereby the SBS Entities have agreed to
sell, and Programmer has agreed to buy, substantially all of the assets used in
the operation of the Station on the terms and conditions set forth therein. All
capitalized terms not defined herein shall have the meaning provided in the
Asset Purchase Agreement.
WHEREAS, Licensee desires to provide air time on the Station to
Programmer on terms and conditions that conform to Station policies and the
FCC's rules, regulations and policies for time brokerage arrangements and as set
forth herein.
WHEREAS, Programmer desires to use the air time to be made available by
Licensee for the purpose of providing Programmer's programming to and for the
Station in conformity with all rules, regulations, and policies of the FCC.
NOW, THEREFORE, in consideration of the foregoing, and of the mutual
promises set forth herein, Licensee and Programmer hereby agree as follows:
1. TIME SALE. Subject to the terms of this Agreement, and to
applicable rules, regulations, and policies of the FCC, Licensee shall make
available to Programmer all air time on the Station as may be requested by
Programmer except for time reserved to or permitted to be used by Licensee in
accordance with Sections 4 and 5. Licensee shall broadcast the programming,
including commercial announcements, supplied by Programmer without interruption,
deletion, or addition of any kind, subject to the terms of this Agreement and
Licensee's obligations under the Communications Act of 1934, as amended, and the
published rules, regulations, and policies of the Commission (collectively, the
"Communications Act").
2. TERM. The term of this Agreement shall be from April 15, 2004,
through October 15, 2004, unless earlier terminated pursuant to Paragraph 15
hereof. This Agreement may be renewed upon such terms and conditions as may be
mutually agreeable to Programmer and Licensee.
3. HOURS OF PROGRAMMING. Subject to the exceptions set forth in
Sections 4 and 5 below, Programmer shall supply, and Licensee shall transmit
without modification, programming
for all periods of broadcast operations as may be requested by Programmer, as
long as this Agreement remains in force. Programmer shall provide all such
programming, produced at its own cost and expense.
4. RESERVATION OF TIME. Licensee specifically reserves for its
own use up to three (3) hours per week of programming time (the "Reserved Time")
during which it may broadcast programming of its choice to serve community
needs. The Reserved Time shall be at a mutually agreeable time between the hours
of 6:00 a.m. to 11:00 a.m. Sundays.
5. LICENSEE'S PROGRAMMING DISCRETION. Nothing herein shall be
construed as limiting in any way the reasonable, good faith exercise by Licensee
of its rights and obligations as the licensee of the Station to make the
ultimate programming decisions for the Station. Licensee shall be responsible
for ensuring that the Station's overall programming is responsive to community
needs and in the public interest. Programmer's programming shall be broadcast in
conformity with the regulations and restrictions set forth in Attachment 1,
which are an integral part of this Agreement. Programmer agrees to abide by the
standards set forth in Attachment 1 in its programming and operations. Licensee
has the authority, in its sole discretion, to reject and refuse to transmit any
programming produced or proposed by Programmer that, in the reasonable good
faith judgment of Licensee, is contrary to the public interest. Licensee shall
notify Programmer, unless such notice is impractical or impossible, at least one
(1) week in advance of any such refusal of Programmer's programming that
Licensee deems necessary to serve the public interest. In the event of any such
refusal, Programmer shall receive a pro-rated credit for the preempted time
against the compensation required under Section 7 hereof and, in addition, shall
be entitled to the cash value equivalent of any consideration received by the
Licensee for the programming included in such period of preemption. Although the
parties shall cooperate in the broadcast of emergency information over the
Station, Licensee shall have the right to interrupt Programmer's programming in
case of an emergency or for programming that, in the reasonable good faith
judgment of Licensee, is of overriding public importance. In the event of any
such interruption, except interruptions reasonably necessary to inform the
public of a governmentally declared federal, state, or local emergency,
Programmer shall receive a pro-rated credit for the preempted time against the
compensation required under Section 7 hereof.
6. PROGRAMMER'S RIGHTS IN PROGRAMMING. All right, title and
interest in and to the programming provided by Programmer, and the right to
authorize the use of the programming in any manner and in any media whatsoever,
shall be and remain vested at all times solely in Programmer. Programmer may use
the network and syndicated programs of Licensee in accordance with appropriate
Licensee contracts and agreements pertaining to such programming, but all right,
title and interest in and to such programming shall be and remain vested at all
times solely in Licensee.
7. COMPENSATION. In consideration of the broadcast time provided
to Programmer pursuant to this Agreement, Programmer shall pay Licensee the fee
set forth in Attachment 2 hereto.
8. EXPENSES.
a. Licensee shall be responsible for paying to
appropriate third parties all direct and indirect capital, operating and
maintenance costs of the Station, including but not limited to: (i)
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rents and utilities at Licensee's studio, tower, and transmitter site
facilities; (ii) insurance costs related to Licensee's assets and operations;
(iii) Licensee's telephone, delivery, and postal service; (iv) costs related to
the operation and maintenance of Licensee's main studio and operation and
maintenance of the equipment necessary for the operation of the Station in
compliance with the rules, regulations, and policies of the FCC; (v) salaries,
payroll taxes, insurance, and related costs of personnel employed by Licensee in
connection with the operation of the Station; (vi) all costs and expenses
related to the production and broadcast of the programming provided by Licensee;
and (vii) all performing rights, licensing fees for music and other material
contained in the programming provided by Licensee.
b. Programmer shall be responsible for all direct and
indirect costs of the production and delivery of Programmer's programming,
including but not limited to: (i) all costs for the power and utilities at any
facilities owned by Programmer and used by Programmer in the production of
programming; (ii) insurance costs related to Programmer's equipment and assets
used in its business operations; (iii) costs related to the maintenance of the
studio and equipment owned by Programmer and used for the production and
delivery of Programmer's programming; (iv) salaries, payroll taxes, insurance,
and related costs of personnel employed by Programmer in connection with
production and delivery of the programming, Programmer's promotion of that
programming, and the sale of advertising in that programming; and (v) all
performing rights, licensing fees for music and other material contained in the
programming provided by Programmer.
9. ACCOUNTS RECEIVABLE.
a. On and after the Effective Date, during the term of
this Agreement, all revenue from broadcasts on the Station (except for revenue
from broadcasts of the Licensee's programming during the Reserved Time) shall
belong to Programmer and Programmer shall be responsible for all traffic,
billing and collection functions with respect to such revenue.
b. All cash accounts receivable for broadcasts on the
Station, which occur prior to the Effective Date (the "Accounts Receivable")
shall belong to Licensee and Licensee shall be responsible for all billing and
collection functions with respect to such Accounts Receivable.
10. USE OF FACILITIES. During the term of this Agreement, Programmer shall
have the right to use the studio equipment and premises of the Station
(collectively, the "Studio Facilities") for producing the programming and
related functions (including the sale of advertising). Programmer may, at its
own expense, install any additional studio equipment reasonably necessary for
producing the programming and related functions. Programmer shall replace all
spare parts belonging to Licensee that Programmer may use during the term of
this Agreement and shall reimburse Licensee for any and all damages to the
facilities caused by Programmer, ordinary wear and tear excepted, except to the
extent that such damage is reimbursed by policies of insurance. Programmer shall
maintain its own business liability insurance and hazard insurance in
commercially reasonable amounts. Programmer also shall have the right to use the
call letters of the Station in correspondence and in promotion related to the
programming provided by Programmer, provided, however, that, during the term
hereof, any use of the Station's call letters as part of letterhead or in any
other preprinted form such as, but not limited
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to, checks, invoices or business cards, shall indicate that Programmer provides
programming services for the Station. Programmer acknowledges that it has no
authority to bind Licensee, the Station or any affiliate thereof to any
agreement, contract, obligation or understanding of any nature whatsoever.
Programmer shall have no right to mortgage, pledge or otherwise encumber the
assets of Licensee.
11. REPRESENTATIONS, WARRANTIES, AND COVENANTS OF PROGRAMMER. Programmer
represents and warrants to, and covenants with, Licensee that:
a. This Agreement has been duly executed and delivered
by Programmer, and is valid, binding and enforceable against Programmer in
accordance with its terms. Programmer has full right, power, authority and legal
capacity to enter into and perform its obligations under this Agreement and to
consummate the transactions contemplated hereby.
b. The programming provided by Programmer for broadcast
on the Station shall comply in all material respects with the Communications
Act, and with the programming standards established by Licensee as set forth in
Attachment 1 hereto.
c. Programmer shall obtain, at its own cost and expense,
music licenses for the music in the programs it provides for broadcast. The
performing rights to all music contained in its programming shall be licensed by
BMI, ASCAP, or SESAC or shall be in the public domain. The Programmer shall keep
all the payment of all such accounts current.
d. Programmer shall cooperate with Licensee in making
time available in programming supplied to the Station by Programmer for
broadcasting proper station identification announcements as required by FCC
rules and regulations.
e. Neither the execution or delivery of this Agreement
nor the consummation of the transactions contemplated hereby will constitute or
result in the breach of any term, condition or provision of, or constitute a
default under, or result in the creation of any lien, charge or encumbrance upon
any property or assets of Programmer pursuant to, the certificate of formation
and the limited liability company operating agreement of Programmer, any
agreement or other instrument to which Programmer is a party or by which any
part of its property is bound, or violate any law, regulation, judgment or order
binding upon Programmer.
f. Programmer shall promptly pay any and all expenses or
obligations of any kind or nature relating to the provision of programming when
such expenses become due.
g. Programmer shall forward to Licensee any letter from
a member of the general public addressing the Station's programming or
documentation which comes into its custody which is required to be included in
the Station's public file or which is reasonably requested by Licensee.
h. No representation or warranty made by Programmer in
this Agreement, contains any untrue statement of a material fact or omits a
material fact necessary in order to make such statements or information not
misleading in any material respect.
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12. REPRESENTATIONS, WARRANTIES, AND COVENANTS OF LICENSEE. The
SBS Entities represent and warrant to, and covenant with, Programmer that:
a. This Agreement has been duly executed and delivered
by the SBS Entities, and is valid, binding and enforceable against Licensee in
accordance with its terms. The SBS Entities have full right, power, authority
and legal capacity to enter into and perform their obligations under this
Agreement and to consummate the transactions contemplated hereby.
b. No consent, license, approval or authorization of or
exemption by, or filing, restriction or declaration with, any governmental
authority bureau, agency or regulatory authority, other than the filing of this
Agreement with the FCC, is required in connection with the execution, delivery
or performance of this Agreement and to consummate the transactions contemplated
hereby.
c. Neither the execution or delivery of this Agreement
nor the consummation of the transactions contemplated hereby will constitute or
result in the breach of any term, condition or provision of, or constitute a
default under, or result in the creation of any lien, charge or encumbrance upon
any property or assets of the SBS Entities pursuant to, the articles of
incorporation or bylaws of the SBS Entities, any agreement or other instrument
to which SBS Entities are party or by which any part of their property is bound,
or violate any law, regulation, judgment or order binding upon the SBS Entities.
d. The Licensee shall ensure that the Station's overall
programming is responsive to community needs and the public interest. Licensee
shall prepare the quarterly listings of significant community issues and
responsive programming.
e. The Station's facilities and equipment shall be
operated in accordance with good engineering standards of the radio broadcast
industry, with all applicable laws and regulations and broadcast to the full
power and height authorized for it by the FCC. During the term of this
Agreement, Licensee shall maintain the transmission facility and the broadcast
output with the same quality, normal wear and tear excepted, to broadcast to the
same power and height as Licensee is presently authorized by the FCC. Any
maintenance work, other than emergency repairs, which prevent the operation of
the Station at full power and maximum facility, shall not be scheduled without
giving at least forty-eight (48) hours notice to Programmer, unless Programmer
waives such notice.
f. Licensee shall employ such management and staff-level
employees to direct the day-to-day operations of the Station as may be necessary
to fully comply with the provisions of the Communications Act regarding main
studio staffing and such additional personnel as shall be necessary to enable
the Licensee to perform its obligations under this Agreement. All such employees
will report to and be accountable solely to Licensee. Licensee shall notify
Programmer prior to making any changes in management personnel.
g. Licensee shall maintain a main studio (as defined by
the rules and regulations of the FCC). Licensee shall maintain an appropriate
public inspection file at the main studio and shall, from time to time, place
such documents in that file as may be required by present or future FCC rules
and regulations.
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h. On and after the Effective Date, during the term of
this Agreement, the SBS Entities shall not enter into any contract or agreement
for the cash or non-cash sale of time on the Station. The SBS Entities
acknowledge that they have no authority to bind Programmer or any affiliate
thereof to any agreement, contract, obligation or understanding of any nature
whatsoever. The SBS Entities shall have no right to mortgage, pledge or
otherwise encumber the assets of Programmer.
i. Licensee, at the election of Programmer on or before
the Effective Date, shall change the call sign of the Station to a call sign
designated by Programmer. Licensee shall use commercially reasonable efforts to
prepare, file and prosecute any filings with the FCC that may be required,
necessary or desirable to effectuate such call sign change on or before the
Effective Date.
j. No representation or warranty made by any of the SBS
Entities in this Agreement, contains any untrue statement of a material fact or
omits a material fact necessary in order to make such statements or information
not misleading in any material respect.
13. POLITICAL TIME. Licensee shall retain responsibility to comply
with the FCC's political programming rules. Programmer shall cooperate with
Licensee to assist Licensee in complying with the FCC's political programming
rules. Licensee shall promptly supply to Programmer, and Programmer shall
promptly supply to Licensee, such information, including all inquiries
concerning the broadcast of political advertising, as may be necessary to comply
with FCC rules and policies, including the lowest unit rate, equal
opportunities, reasonable access, political file and related requirements of
federal law. Licensee, in consultation with Programmer, shall develop a
statement which discloses its political broadcasting policies to political
candidates, and Programmer shall follow those policies and rates in the sale of
political programming and advertising.
14. INDEMNIFICATION.
a. Programmer shall indemnify, defend, and hold harmless
Licensee from and against any Claim (as defined herein) arising out of (i)
programming exclusively provided by Programmer, and (ii) any inaccuracy or
breach of any representations, warranties, covenants, or obligations of
Programmer under this Agreement, and (iii) Programmer's use of the facilities of
Licensee.
b. Licensee shall indemnify, defend, and hold harmless
Programmer from and against any Claim arising out of (i) programming exclusively
provided by Licensee, and (ii) any inaccuracy or breach of any representations,
warranties, covenants, or obligations of Licensee under this Agreement.
c. As used in this Section 14, the term "Claim" shall
include (i) all liabilities; (ii) all losses, damages (including, without
limitation, consequential damages), judgments, awards, penalties and
settlements; (iii) all demands, claims, suits, actions, causes of action,
proceedings and assessments, whether or not ultimately determined to be valid;
and (iv) all costs and expenses (including, without limitation, interest
(including prejudgment interest in any litigated or arbitrated
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matter), court costs and fees and expenses of attorneys and expert witnesses) of
investigating, defending or asserting any of the foregoing or of enforcing this
Agreement.
d. The indemnification obligations of this Section 14
shall survive any termination of this Agreement and shall continue until the
expiration of all applicable statutes of limitations and the conclusion and
payment of all judgments which may be rendered in all litigation which may be
commenced prior to such expiration.
e. Any party seeking indemnification hereunder (the
"Indemnified Party") shall give promptly to the party obligated to provide
indemnification to such Indemnified Party (the "Indemnitor") a written notice (a
"Claim Notice") describing in reasonable detail the facts giving rise to the
claim for indemnification hereunder and shall include in such Claim Notice (if
then known or estimable) the amount or the method of computation of the amount
of such claim, and a reference to the provision of this Agreement or any other
agreement, document or instrument executed hereunder or in connection herewith
upon which such claim is based. The failure of any Indemnified Party to give the
Claim Notice promptly as required by this Section 14e shall not affect such
Indemnified Party's rights under this Section 14 except to the extent such
failure is actually prejudicial to the rights and obligations of the Indemnitor.
f. After the giving of any Claim Notice pursuant hereto,
the amount of indemnification to which an Indemnified Party shall be entitled
under this Section 14 shall be determined: (i) by the written agreement between
the Indemnified Party and the Indemnitor; (ii) by a final judgment or decree of
any court of competent jurisdiction; or (iii) by any other means to which the
Indemnified Party and the Indemnitor shall agree in writing. The judgment or
decree of a court shall be deemed final when the time for appeal, if any, shall
have expired and no appeal shall have been taken or when all appeals taken shall
have been finally determined. The Indemnified Party shall have the burden of
proof in establishing the amount of losses and expenses suffered by it.
g. In order for a party to be entitled to any
indemnification provided for under this Agreement in respect of, arising out of
or involving a claim or demand made by any third Person against the Indemnified
Party, such Indemnified Party must notify the Indemnitor in writing, and in
reasonable detail, of the third Person claim promptly after receipt by such
Indemnified Party of written notice of the third Person claim. Thereafter, the
Indemnified Party shall promptly deliver to the Indemnitor copies of all notices
and documents (including court papers) received by the Indemnified Party
relating to the third Person claim. Notwithstanding the foregoing, should a
party be physically served with a complaint with regard to a third Person claim,
the Indemnified Party must notify the Indemnitor with a copy of the complaint
within five (5) business days after receipt thereof and shall deliver to the
Indemnitor within seven (7) business days after the receipt of such complaint
copies of notices and documents (including court papers) physically served upon
the Indemnified Party relating to the third Person claim. The failure of any
Indemnified Party to give the Claim Notice promptly (or in five (5) business
days in the case of service of a complaint upon the Indemnified Party) or to
deliver copies of notices and documents as required by this Section 14g shall
not affect such Indemnified Party's rights under this Section 14 except to the
extent such failure is actually prejudicial to the rights and obligations of the
Indemnitor.
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h. In the event of the initiation of any legal
proceeding against the Indemnified Party by a third Person, the Indemnitor shall
have the sole and absolute right after the receipt of notice, at its option and
at its own expense, to be represented by counsel of its choice and to control,
defend against, negotiate, settle or otherwise deal with any proceeding, claim,
or demand which relates to any loss, liability or damage indemnified against
hereunder; provided, however, that the Indemnified Party may participate in any
such proceeding with counsel of its choice and at its expense. The parties
hereto agree to cooperate fully with each other in connection with the defense,
negotiation or settlement of any such legal proceeding, claim or demand. To the
extent the Indemnitor elects not to defend such proceeding, claim or demand, and
the Indemnified Party defends against or otherwise deals with any such
proceeding, claim or demand, the Indemnified Party may retain counsel,
reasonably acceptable to the Indemnitor, at the expense of the Indemnitor, and
control the defense of such proceeding. Neither the Indemnitor nor the
Indemnified Party may settle any such proceeding which settlement obligates the
other party to pay money, to perform obligations or to admit liability without
the consent of the other party, such consent not to be unreasonably withheld.
After any final judgment or award shall have been rendered by a court,
arbitration board or administrative agency of competent jurisdiction and the
time in which to appeal therefrom has expired, or a settlement shall have been
consummated, or the Indemnified Party and the Indemnitor shall arrive at a
mutually binding agreement with respect to each separate matter alleged to be
indemnified by the Indemnitor hereunder, the Indemnified Party shall forward to
the Indemnitor notice of any sums due and owing by it with respect to such
matter and the Indemnitor shall pay all of the sums so owing to the Indemnified
Party by wire transfer, certified or bank cashier's check within thirty (30)
days after the date of such notice.
i. In any case where an Indemnified Party recovers from
third Persons any amount in respect of a matter with respect to which an
Indemnitor has indemnified it pursuant to this Section 14, such Indemnified
Party shall promptly pay over to the Indemnitor the amount so recovered (after
deducting therefrom the full amount of the expenses incurred by it in procuring
such recovery), but not in excess of the sum of (i) any amount previously so
paid by the Indemnitor to or on behalf of the Indemnified Party in respect of
such matter and (ii) any amount expended by the Indemnitor in pursuing or
defending any claim arising out of such matter. All Loss and Expenses shall be
computed net of any insurance proceeds (less any increase in premiums,
reasonably attributable to such Loss, for the one-year period following such
Loss) that reduce any damages that would otherwise be sustained.
15. TERMINATION; EFFECT OF TERMINATION.
a. The term of this Agreement is subject to the
limitations that:
i. This Agreement may be terminated by mutual
consent of the parties.
ii. Either party may terminate this Agreement
if the terminating party is not then in material breach and the other party is
in material breach under this Agreement and has failed to cure such breach
within thirty (30) calendar days after receiving notice of breach from the
terminating party.
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iii. Either party may terminate this Agreement if
the Asset Purchase Agreement is terminated in accordance with its terms and the
terminating party is not then in material breach of this Agreement.
iv. This Agreement shall terminate automatically
upon the occurrence of any of the following:
(1) This Agreement is declared invalid
or illegal in whole or material part by an order or decree of the FCC or any
other administrative agency or court of competent jurisdiction and such order or
decree has become final and no longer subject to further administrative or
judicial review;
(2) The assignment of the license of the
Station from Licensee to Programmer (FCC File No. BALH-20031010ACK) is
consummated by the parties.
iv. Programmer shall have the right at its sole
option to terminate this Agreement if Licensee, pursuant to this Agreement,
preempts or substitutes other programming for that supplied by Programmer during
ten percent (10%) or more of the total hours of operation of the Station during
any period of seven consecutive days.
b. In the event of termination hereunder, Licensee shall
be under no further obligation to make available to Programmer any further
broadcast time or broadcast transmission facilities, and Programmer shall have
no further obligation to make any payments to Licensee hereunder. All
unperformed agreements and contracts for advertising to be aired during
Programmer's time shall automatically belong to Licensee, who shall have the
right to perform such agreements and contracts and to collect and receive the
money derived therefrom. Programmer shall remit to Licensee any money or
consideration it shall have received as pre-payment for such unaired
advertising. Programmer shall be entitled to all uncollected revenue for
advertising already broadcast over the Station prior to such termination, and
Licensee shall pay over to Programmer any sums received in respect of the same.
16. EXCLUSIVITY. Any air time not used by Programmer in accordance
with Section 3 or by Licensee shall not be available for use by any other
Person. During the term of this Agreement, Licensee agrees not to enter into any
other time brokerage, program provision, local management, or similar agreement
relating to the Station with any Person.
17. INSURANCE. Licensee will maintain in full force and effect
throughout the term of this Agreement insurance with responsible and reputable
insurance companies or associations covering such risks (including fire and
other risks insured against by extended coverage, public liability insurance,
insurance for claims against personal injury or death or property damage and
such other insurance as may be required by law) and in such amounts and on such
terms as is conventionally carried by broadcasters operating radio stations with
facilities comparable to those of the Station. Any insurance proceeds received
by Licensee in respect of damaged property will be used to repair or replace
such property so that the operation of the Station conforms with this Agreement.
18. REGULATORY REQUIREMENTS. Licensee shall operate the Station in
conformity with the Communications Act, FCC rules and requirements, and all
other applicable federal, state, and
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local rules. Notwithstanding anything to the contrary set forth in this
Agreement, Licensee shall be solely responsible for the management, operation,
and regulatory compliance of the Station, including, specifically, control over
the Station's finances, personnel, and programming.
19. PAYOLA/PLUGOLA. Neither Programmer nor its agents, employees,
consultants, or personnel shall accept any consideration, compensation, gift, or
gratuity of any kind whatsoever, regardless of its value or form, including but
not limited to, a commission, discount, bonus, material, supplies, or other
merchandise, services, or labor (collectively "Consideration"), whether or not
pursuant to written contracts or agreements between Programmer and merchants or
advertisers, unless the payer is identified in the program for which
Consideration was provided as having paid for or furnished such Consideration,
in accordance with the Communications Act and FCC requirements.
20. NOTICES. All notices and other communications permitted or
required hereunder shall be in writing and any payment, notice, or other
communications shall be deemed given by (a) personal delivery, (b) U. S.
certified mail, postage prepaid, with return receipt requested, or (c) a
nationally recognized overnight carrier, in each case addressed as follows:
If to Programmer, to:
0 Xxxxx Xxxxx - Xxx Xxxxxxxxx, LLC
000 Xxxxx Xxxxxxxx Xxxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxx Xxxxx
Tel: (000) 000-0000
With a copy (which shall not constitute notice) to:
Dow, Xxxxxx & Xxxxxxxxx, PLLC
0000 Xxx Xxxxxxxxx Xxxxxx, X.X.
Xxxxxxxxxx, X.X. 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Attention: Xxxxxxx X. Xxxxxx
If to Licensee, to:
Spanish Broadcasting System, Inc.
0000 Xxxxx Xxxxxxxx Xxxxx XX XX
Xxxxxxx Xxxxx, XX 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Attention: Xxxx Xxxxxxx
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With a copy to:
Xxxx Xxxxxxx LLP
000 00xx Xx., XX
Xxxxx 0000
Xxxxxxxxxx, X.X. 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Attention: Xxxxx X. Xxxxxxxx
or to such other person or address as any of the parties may specify to the
others in writing from time to time. Notice shall be deemed to have been given
upon actual receipt.
21. NO AGENCY. No agency relationship among the parties shall be
expressed or implied by the terms of this Agreement, nor shall this Agreement be
construed to create a joint venture or partnership among the parties. None of
the parties shall hold itself out as an agent, partner, or joint venturer with
any of the others. Programmer shall not perform or assume any obligation or
liability of the SBS Entities. All contracts for the sale of airtime, purchase
orders, agreements, sales materials, and similar documents produced or executed
by Programmer shall be executed in the name of Programmer, and not on behalf of
the Station or Licensee, and shall represent that Programmer is not the licensee
of the Station.
22. ENTIRE AGREEMENT. This Agreement embodies the entire agreement
between the parties with respect to the subject matter hereof and there are no
other agreements, representations, warranties, or understandings, oral or
written, between them with respect to the subject matter hereof. No alteration,
modification or change of this Agreement shall be valid unless by like written
instrument signed by each party hereto.
23. FURTHER ASSURANCES. Each of the parties shall execute and
deliver such additional documents and take such further actions as are
reasonably necessary for the purposes of carrying out this Agreement.
24. BROKER. The parties agree to indemnify and hold each other
harmless against any claims from any broker or finder based upon any agreement,
arrangement, or understanding alleged to have been made by the indemnifying
party.
25. ASSIGNMENT. None of the parties shall assign its rights or
delegate its duties under this Agreement without the other parties' prior
written consent, which consent shall not be unreasonably withheld or delayed,
provided, however, that, upon notice to Licensee, Programmer may assign its
rights and delegate its duties under this Agreement to any person or entity
controlling, controlled by or under common control with Programmer. Any
assignment or delegation by any of the parties in contravention of this Section
25 shall be null and void.
26. BINDING EFFECT. This Agreement shall be binding upon the
parties hereto and their successors and permitted assigns.
27. NO WAIVER; REMEDIES CUMULATIVE. No failure or delay on the
part of Licensee or Programmer in exercising any right or power hereunder shall
operate as a waiver thereof, nor shall
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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 Licensee and Programmer herein provided are cumulative and are
not exclusive of any right or remedies which it may otherwise have.
28. FORCE MAJEURE. Any failure or impairment of facilities or any
delay or interruption in broadcasting Programmer's programs, or failure at any
time to furnish facilities, in whole or in part, for broadcasting, due to acts
of God, strikes or threats thereof, or force majeure, shall not constitute a
breach of this Agreement and Licensee will not be liable to Programmer with
respect to facilities that failed or were impaired or not furnished as a result
of such events.
29. SEVERABILITY. If any provision of this Agreement or the
application thereof to any person or circumstances shall be invalid or
unenforceable to any extent, the remainder of this Agreement and the application
of such provision to other persons or circumstances shall not be affected
thereby and shall be enforced to the greatest extent permitted by law. In the
event that the FCC raises a substantial and material question as to the validity
of any provision of this Agreement, the parties hereto shall negotiate in good
faith to revise any such provision of this Agreement with a view toward assuring
compliance with all then existing FCC rules and policies which may be
applicable, while attempting to preserve, as closely as possible, the intent of
the parties as embodied in the provision of this Agreement which is to be so
modified.
30. GOVERNING LAW. This Agreement and the transactions
contemplated hereby shall be governed by and construed in accordance with the
laws of the State of New York without reference to its choice of law rules. Each
of the parties hereto irrevocably submits to the exclusive jurisdiction (subject
to the immediately following sentence) of the United States District Court for
the Northern District of Illinois for the purposes of any suit, action or other
proceeding arising out of this Agreement or any transaction contemplated hereby.
Each of the parties hereto agrees, to the extent permitted under applicable laws
and rules of procedure, to commence any action, suit or proceeding relating
hereto either in the United States District Court for the Northern District of
Illinois, or if such suit, action or other proceeding may not be brought in such
court for jurisdictional reasons, in the Circuit Court of Xxxx County of the
State of Illinois. Each of the parties hereto further agrees that service of any
process, summons, notice or document by U.S. registered mail to such party's
respective address set forth below shall be effective service of process for any
action, suit or proceeding in either the United States District Court for the
Northern District of Illinois or the Circuit Court of Xxxx County of the State
of Illinois with respect to any matters to which it has submitted to
jurisdiction in this Section 31. Each of the parties hereto irrevocably and
unconditionally waives any objection to the laying of venue of any action, suit
or proceeding arising out of this Agreement or the transactions contemplated
hereby in (i) the United States District Court for the Northern District of
Illinois or (ii) the Circuit Court of Xxxx County of the State of Illinois, and
hereby further irrevocably and unconditionally waives and agrees not to plead or
claim in any such court that any such action, suit or proceeding brought in any
such court has been brought in an inconvenient forum. Notwithstanding the
foregoing, judgments, orders or decrees resulting from lawsuits or court actions
brought in accordance with the foregoing provisions of this Section 31 may be
appealed to or enforced in any court of competent jurisdiction.
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31. HEADINGS. The headings contained in this Agreement are
included for convenience only and no such heading shall in any way alter the
meaning of any provision.
32. COUNTERPARTS. This Agreement may be signed in counterpart
originals, which collectively shall have the same legal effect as if all
signatures had appeared on the same physical document. This Agreement may be
signed and exchanged by facsimile transmission, with the same legal effect as if
the signatures had appeared in original handwriting on the same physical
document.
33. AMENDMENT. This Agreement may be modified or amended only in
writing and signed by the parties hereto.
34. CERTIFICATIONS. Programmer certifies that this Agreement
complies with the Commission's multiple ownership rules, 47 C.F.R. ss. 73.3555,
specifically including paragraphs (a), (c) and (d) thereof. Licensee certifies
that it maintains, and shall continue to maintain during the term of this
Agreement, ultimate control over the Station's facilities, including specific
control over Station finances, personnel and programming.
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IN WITNESS WHEREOF, the parties have executed this Time Brokerage Agreement as
of the date first above written.
KPTI LICENSING, INC.
By: /s/ Xxxx Xxxxxxx, Xx.
-----------------------------------
Name: Xxxx Xxxxxxx, Xx.
------------------------------
Title: President and CEO
------------------------------
SPANISH BROADCASTING SYSTEM, INC.
By: /s/ Xxxx Xxxxxxx, Xx.
-----------------------------------
Name: Xxxx Xxxxxxx, Xx.
------------------------------
Title: President and CEO
------------------------------
SPANISH BROADCASTING SYSTEM -
SAN FRANCISCO, INC.
By: /s/ Xxxx Xxxxxxx, Xx.
-----------------------------------
Name: Xxxx Xxxxxxx, Xx.
------------------------------
Title: President and CEO
------------------------------
3 POINT MEDIA - SAN FRANCISCO, LLC
By: /s/ Xxxxx Xxxxx
-----------------------------------
Name: Xxxxx Xxxxx
------------------------------
Title: Co-Manager
------------------------------
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