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 SYSYEM, 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.
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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.
v. 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 Section31. 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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