EXHIBIT 10.3
EXECUTION COPY
LOCAL MARKETING AGREEMENT
This Local Marketing Agreement (the "Agreement"), made as of the 5th day
of October, 2004, is between Infinity Broadcasting Corporation of San Francisco,
a Delaware corporation ("Licensee"), and SBS Bay Area, LLC, a Delaware limited
liability company ("Programmer").
RECITALS
Licensee is the licensee of radio station KBAA(FM), Facility XX Xx. 0000,
Xxx Xxxxxxxxx, Xxxxxxxxxx (the "Station").
Licensee and Programmer are parties to a Merger Agreement of even date
herewith (the "Merger Agreement"), pursuant to which Licensee shall be merged
with and into Programmer.
Pending consummation of the merger, Programmer desires to purchase time on
the Station for its programming and advertising time, subject to the limitations
set forth herein and in accordance with the rules, regulations and policies of
the Federal Communications Commission (the "FCC").
Therefore, for and in consideration of the mutual covenants herein
contained, the parties agree as follows:
1. SALE OF TIME
1.1. BROADCAST OF PROGRAMMING. During the Term (as defined below),
Licensee shall make available broadcast time on the Station for the broadcast of
Programmer's programs (the "Programming") for up to 168 hours a week except for:
(i) downtime occasioned by routine maintenance consistent with prior practice;
(ii) between 6:00 a.m. and 7:00 a.m. on Sunday mornings and at other times
mutually agreeable to Licensee and Programmer during which time Licensee may
broadcast programming designed to address the concerns, needs and issues of the
Station's listeners; (iii) times when Programmer's programs are not accepted or
are preempted by Licensee in accordance with this Agreement; and (iv) times when
the Station is not broadcasting because of Force Majeure Events (as defined
below).
1.2. ADVERTISING AND PROGRAMMING REVENUES. During the Programming it
delivers 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.
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 (collectively "Force Majeure
Events"), shall not constitute a breach of this Agreement by Licensee.
1.4. DELIVERY OF SIGNAL. Programmer shall initially deliver the
Programming via leased telephone circuits to Licensee at the Washington St.
Premises, and until Programmer requests otherwise, Licensee shall be responsible
for the signal continuity from the output of the ISDN decoder to the output of
the broadcast antenna. After January 31, 2005, Programmer shall deliver the
Programming to the location specified by Licensee under Section 1.5.2 below.
Licensee shall initially provide all engineering support necessary to transmit
the Programming after delivery by Programmer. No later than January 31, 2005,
Programmer shall take over the engineering support functions, provided that
throughout the Term Licensee shall maintain the transmission facilities as
provided in Section 2.5.
1.5 STUDIO SPACE AND STUDIO EQUIPMENT. As of the date of this Agreement,
Licensee's offices and studios for the Station are co-located with other radio
stations owned by affiliates of Licensee on two leased floors at 000 Xxxxxxxxxx
Xxxxxx, Xxx Xxxxxxxxx, Xxxxxxxxxx (the "Washington St. Premises"). The lease at
this location expires January 31, 2005 (the "Lease Expiration Date"), and
Licensee and its affiliates are currently in the process of relocating to
another location.
1.5.1. Until the Lease Expiration Date, Licensee shall make the
portion of the Washington St. Premises indicated on Schedule 1.5 (the
"Studio Space") and the studio equipment of Licensee relating to the
Station identified on Schedules 3.11(a) and 3.11(b) of the Merger
Agreement (the "Studio Equipment") available to Programmer, and Licensee
hereby licenses Programmer to use, and Programmer shall use, such Studio
Space and Studio Equipment for the production of Programming, sale of
advertising on the Station and related activities. The parties acknowledge
that affiliates of Licensee may continue to use the Washington St.
Premises and some of the Studio Equipment for their respective broadcast
operations until the Lease Expiration Date. Each of the parties agrees to
cooperate fully with the other in the use of the Washington St. Premises
and the Studio Equipment, and each of the parties further agrees that it
will not unreasonably impede use of the Washington St. Premises or the
Studio Equipment by others. Programmer shall not allow any other persons
other than its employees to enter the Washington St. Premises without the
express prior permission of Licensee. Programmer agrees to take reasonable
care of the Studio Space and the Studio Equipment, subject to reasonable
and normal wear and tear. Programmer shall repair any and all damage to
the Studio Space and the Studio Equipment. Programmer may make no
alterations, additions or changes to the Studio Space or the Studio
Equipment. Programmer agrees to indemnify and hold harmless Licensee and
its affiliates from any and all claims for damages for injuries to or
death of persons and for damages to property arising out of Programmer's
use and/or occupancy of the Washington St. Premises or the Studio
Equipment.
1.5.2. Programmer will notify Licensee in writing by November 1,
2004 whether it intends to enter into a lease for all or a portion of the
second floor of the Washington
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St. Premises commencing on the Lease Expiration Date (the "New Lease").
Licensee agrees to assist Programmer in obtaining the New Lease at no
out-of-pocket expense to Licensee. If Programmer obtains the New Lease,
Programmer agrees to provide at no cost to Licensee space in such premises
for the Station's main studio and offices for Licensee's required
employees as specified in Sections 2.6 and 2.8 hereof. If Programmer
decides to move its operations to another location, Licensee agrees that
Programmer may move the Studio Equipment to such location, and Programmer
agrees to vacate the Washington St. Premises on or before the Lease
Expiration Date. Programmer further agrees, at Licensee's option, either
to provide at no cost to Licensee space in such new location for the
Station's main studio and offices for Licensee's required employees or to
deliver the Programming, at Programmer's cost, to Licensee's main studio,
wherever located, or the Station's transmitter site, as directed by
Licensee, for broadcast by Licensee on the Station. If Programmer needs to
obtain an FCC authorization for a new studio-transmitter link to
facilitate Programmer's delivery of the Programming to the Station's
transmitter site from any place other than the Washington St. Premises,
Licensee shall, at Programmer's request and expense, file an application
for such FCC authorization and acquire and install the necessary
equipment.
1.5.3. INTERIM PERIOD. If this Agreement is terminated prior to the
Lease Expiration Date due to consummation of the merger pursuant to the
Merger Agreement, Programmer shall have the option to remain at the
Washington St. Premises until the Lease Expiration Date. Programmer must
inform Licensee of its intention to remain at the Washington St. Premises
in writing at the closing under the Merger Agreement. If Programmer
decides to remain at the Washington St. Premises until the Lease
Expiration Date, Programmer shall allow Licensee's affiliates which remain
at the Washington St. Premises to use any of the shared Studio Equipment
until the Lease Expiration Date and shall continue to pay fifty percent of
all the costs incurred by Licensee or its affiliates related to the
Washington St. Premises, including but not limited to, fifty percent of
any lease payments, taxes, insurance, utility costs and repair costs.
1.6. PAYMENTS. In consideration of the rights granted under this
Agreement, Programmer shall pay to Licensee the fee and reimburse certain of
Licensee's costs as provided in Schedule 1.6 hereto.
1.7. TERM. The term of this Agreement (the "Term") shall commence at 12:01
a.m., local San Francisco, California time, on the fifth (5th) day after the
expiration or early termination of any waiting period applicable to the Merger
Agreement under the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as
amended (the "Commencement Date"), and, unless terminated earlier pursuant to
Section 5, shall terminate automatically on the earlier of (a) 12:01 a.m. on the
date of the consummation of the merger pursuant to the Merger Agreement, and (b)
11:59 p.m. on the 30th day after the date of termination of the Merger Agreement
for any reason.
1.8. CALL SIGN. On or prior to the Commencement Date, Licensee shall
request the FCC to change the Station's call sign to a call sign to be selected
by Programmer that is not confusingly similar to "KBAY" or "KBAA."
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2. OBLIGATIONS AND RIGHTS OF LICENSEE
Programmer acknowledges and agrees and Licensee is and shall remain
responsible for operating the Station in the public interest and controlling the
day-to-day operations of the Station in conformance with its FCC licenses,
permits and authorizations. Without limiting the generality of the foregoing,
Licensee and Programming agree as follows:
2.1. LICENSEE'S ABSOLUTE RIGHT TO REJECT PROGRAMMING. Licensee shall have
the absolute right to reject any Programming, including advertising
announcements or other material, which Licensee in its sole discretion deems
contrary to the public interest, the Communications Act of 1934, as amended (the
"Communications Act"), or the FCC's rules, regulations and policies (the
"Rules," and together with the Communications Act, the "Communications Laws").
Licensee reserves the right to refuse to broadcast any Programming containing
matter that Licensee in its sole discretion believes is, or may be determined by
the FCC or any court or other regulatory body with authority over Licensee or
the Station to be, violative of any right of any third party or indecent,
obscene or profane. Licensee may take any other actions necessary to ensure the
Station's operation complies with the laws of the United States, the laws of the
State of California, the Communications Laws (including the prohibition on
unauthorized transfers of control), and the rules, regulations and policies of
other federal government authorities, including the Federal Trade Commission and
the Department of Justice. Licensee may suspend, cancel or refuse to broadcast
any portion of the Programming pursuant to this Section 2.1 without reduction or
offset in the payments due Licensee under this Agreement.
2.2. LICENSEE'S RIGHT TO PREEMPT PROGRAMMING FOR SPECIAL EVENTS AND PUBLIC
INTEREST PROGRAMMING. Licensee shall have the absolute right to preempt
Programming in order to broadcast a program deemed by Licensee, in its sole
discretion, to be of greater national, regional, or local public interest or
significance, and to use part or all of the hours of operation of the Station
for the broadcast of events of special importance. 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. Licensee may preempt
the Programming under this Section 2.2 without reduction or offset in the
payments due Licensee under this Agreement.
2.3. LICENSEE'S PUBLIC SERVICE PROGRAMMING. Licensee may broadcast public
service programming at the times set forth in Section 1.1 hereof and at such
other times as the parties may agree.
2.4 POLITICAL ADVERTISING, PUBLIC FILE, ETC. The parties acknowledge that
Licensee is ultimately responsible for complying with the Communications Laws
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 public service programming; (c) the maintenance of
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.
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2.5. MAINTENANCE AND REPAIR OF TRANSMISSION FACILITIES. Licensee shall use
commercially reasonable efforts to maintain the Station's transmission equipment
and facilities, including the antennas, transmitters and transmission lines, in
good operating condition, and Licensee shall continue to contract with local
utility companies for the delivery of electrical power to the Station's
transmitting facilities at all times in order to ensure operation of the
Station. Licensee shall undertake such repairs as are necessary to maintain
full-time operation of the Station with its maximum authorized facilities as
expeditiously as reasonably possible following the occurrence of any loss or
damage preventing such operation.
2.6. MAIN STUDIO. Licensee shall maintain and staff the main studio for
the Station as required under the Communications Laws
2.7. CHIEF OPERATOR. Licensee shall retain a qualified Chief Operator, as
that term is defined in the Communications Laws, for the Station. The Chief
Operator shall have the duties and responsibilities of a "Chief Operator" under
the Communications Laws.
2.8. LICENSEE'S REQUIRED EMPLOYEES. Licensee will employ (a) a full-time
management-level employee for the Station (the "General Manager"), who shall
report and be solely accountable to Licensee and shall be responsible for
overseeing the operations of the Station, and (b) a full-time staff-level
employee who shall report to and assist the General Manager in the performance
of his or her duties. Whenever at the Studio Space or otherwise on the Station's
premises, all of Programmer's personnel shall be subject to the supervision and
the direction of the General Manager and/or the Station's Chief Operator.
2.9. LICENSEE'S RESPONSIBILITY TO PAY CERTAIN EXPENSES. Subject to
Schedule 1.6 hereto, Licensee shall be responsible for timely paying: (a) all
lease payments for the transmitter sites and all taxes and other costs incident
thereto; (b) all utility costs (telephone, electricity, etc.) relating to the
transmitter sites; (c) all lease payments and utility costs for the Washington
St. Premises until the Lease Expiration Date; (d) the salaries, taxes, benefits,
insurance and related costs for Licensee's personnel; and (e) all FCC regulatory
or filing fees.
3. OBLIGATIONS AND RIGHTS OF PROGRAMMER
Programmer shall not take any action, or omit to take any action,
inconsistent with Licensee's obligations under the Communications Laws to retain
ultimate responsibility for the programming and technical operations of the
Station. Without limiting the generality of the foregoing, Programmer agrees as
follows:
3.1. COMPLIANCE WITH LAWS AND STATION'S POLICIES. Programmer has advised
Licensee of the nature of its Programming. Programmer will make no material
changes in the Programming after the Commencement Date without the prior written
consent of Licensee, which shall not be unreasonably withheld. All Programming
shall conform in all material respects to all applicable provisions of the
Communications Laws, all other laws or regulations applicable to the broadcast
of programming by the Station, and the programming regulations prescribed in
Schedule 3.1 hereto. At no time during the Term shall Programmer or its
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employees or agents represent, hold out, describe or portray Programmer as the
licensee of the Station.
3.2. COOPERATION WITH LICENSEE. Programmer, on behalf of Licensee, shall
furnish within the Programming all Station identification announcements required
by the Communications Laws, and shall, upon request by Licensee, provide (a)
information about Programming that is responsive to the public needs and
interests of the area served by the Station so as to assist Licensee in the
preparation of any required programming reports and (b) 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 files of the Station pertaining to the
broadcast of political programming and advertisements, in accordance with the
provisions of Sections 73.1943 and 73.3526 of the Rules and The Bipartisan
Campaign Reform Act of 2002, and agrees that broadcasts of sponsored programming
addressing political issues or controversial subjects of public importance will
comply with the provisions of Section 73.1212 of the Rules. Programmer shall
consult with Licensee and adhere strictly to all applicable provisions of the
Communications Laws, with respect to the carriage of political advertisements
and political programming (including, without limitation, the rights of
candidates and, as appropriate, other parties, to "equal opportunities") and the
charges permitted for such programming or announcements. Programmer shall
cooperate with Licensee to ensure compliance with the Rules regarding Emergency
Alert System tests and alerts.
3.3. PAYOLA AND PLUGOLA. Programmer shall provide to Licensee in advance
any information known to Programmer regarding any money or other consideration
which has been paid or accepted, or has been promised to be paid or to be
accepted, 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 or accepting such payment is identified in
the program as having paid for or furnished such consideration in accordance
with the Communications Laws. Commercial matter with obvious sponsorship
identification will not require disclosure beyond the sponsorship identification
contained in the commercial copy. Programmer shall at all times endeavor to
proceed in good faith to comply with the requirements of Sections 317 and 507 of
the Communications Act and the related Rules.
3.4. HANDLING OF COMMUNICATIONS. Programmer shall provide Licensee with
the original or a copy of any correspondence from a member of the public
relating to the Programming to enable Licensee to comply with the requirements
of the Communications Laws, including those regarding the maintenance of the
public inspection file. Licensee shall not be required to receive or handle
mail, facsimiles, emails or telephone calls in connection with the Programming
unless Licensee has agreed to do so in writing. 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.
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3.5. COMPLIANCE WITH COPYRIGHT ACT. Programmer shall not broadcast any
material on the Station in violation of the Copyright Act or the rights of any
person. All music supplied by Programmer shall be (a) licensed by a music
licensing agent such as ASCAP, BMI, or SESAC; (b) in the public domain; or (c)
cleared at the source by Programmer. Licensee shall not be obligated to pay any
music licensing fees or other similar expenses required in connection with the
material broadcast by Programmer on the Station.
3.6. PROGRAMMER'S EMPLOYEES. Programmer shall be responsible for the
artistic personnel and material for the production of the Programming to be
provided under this Agreement. Programmer shall employ and be responsible for
the salaries, taxes, insurance and related costs for all of its own personnel
and facilities used in fulfillment of its rights and obligations under this
Agreement.
3.7 PROGRAMMER RESPONSIBILITY TO PAY CERTAIN EXPENSES. Programmer shall
pay for all costs associated with production and listener responses, including
telephone costs, fees to ASCAP, BMI and SESAC, any other copyright fees, and all
other costs or expenses attributable to the Programming that is delivered by
Programmer for broadcast on the Station. Programmer shall also pay all ordinary
maintenance and repair costs for the studio and studio equipment used by
Programmer in the production of the Programming. Programmer shall maintain at
its expense and with reputable insurance companies reasonably acceptable to
Licensee, commercially reasonable coverage for broadcaster's liability
insurance, worker's compensation insurance and commercial general liability
insurance. Licensee shall be named as an additional insured on such policies,
and such policies shall not be terminable without notice to Licensee and an
opportunity to cure any default thereunder. Programmer shall deliver to Licensee
on or before the Commencement Date, and thereafter upon request, current
certificates establishing that such insurance is in effect.
4. INDEMNIFICATION
4.1. INDEMNIFICATION. From and after the Commencement Date, Programmer
shall indemnify, defend, protect and hold harmless Licensee and Licensee's
affiliates, officers, directors, shareholders, employees and agents from and
against all claims, damages, liabilities, costs and expenses, including
reasonable attorneys' fees and expenses (collectively "Damages") arising from
Programmer's provision of Programming hereunder or use of the Station, the
Studio Space or the Studio Equipment, or any breach of any warranty, covenant or
other agreement hereunder. Without limitation of the generality of the preceding
sentence, Programmer will indemnify and hold Licensee and Licensee's affiliates,
officers, directors, shareholders, employees and agents harmless from and
against Damages arising from any claim for libel, slander, infringement of
copyright or other intellectual property right, or violation of any right of
privacy or proprietary right, and for any other claims of any nature, including
fines or forfeitures imposed by the FCC, as a result of the broadcast on the
Station of the Programming.
4.2. PROCEDURE FOR INDEMNIFICATION. The procedure for indemnification
shall be as follows:
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(a) Licensee shall give notice to Programmer of any claim reasonably
specifying (i) the factual basis for the claim, and (ii) the amount of the
claim if then known. If the claim relates to an action, suit or proceeding
filed by a third party against Licensee, notice shall be given by Licensee
within fifteen (15) days after written notice of the action, suit or
proceeding was given to Licensee. In all other circumstances, notice shall
be given by Licensee within thirty (30) days after Licensee becomes aware
of the facts giving rise to the claim. Notwithstanding the foregoing,
Licensee's failure to give Programmer timely notice shall not preclude
Licensee from seeking indemnification from Programmer if Licensee's
failure has not materially prejudiced Programmer's ability to defend the
claim or litigation.
(b) With respect to claims between the parties, following receipt of
notice from Licensee of a claim, Programmer shall have thirty (30) days to
make any investigation of the claim that Programmer deems necessary or
desirable. For the purposes of this investigation, Licensee agrees to make
available to Programmer and/or its authorized representatives the
information relied upon by Licensee to substantiate the claim. If Licensee
and Programmer cannot agree as to the validity and amount of the claim
within the 30-day period (or any mutually agreed upon extension thereof),
Licensee may seek appropriate legal remedy.
(c) With respect to any claim by a third party as to which Licensee
is entitled to indemnification hereunder, Programmer shall have the right
at its own expense to participate in or assume control of the defense of
the claim with counsel reasonably acceptable to Licensee, and Licensee
shall cooperate fully with Programmer, subject to reimbursement for
reasonable expenses incurred by Licensee as the result of a request by
Programmer. If Programmer elects to assume control of the defense of any
third-party claim, Licensee shall have the right to participate in the
defense of the claim at its own expense. If Programmer does not elect to
assume control or otherwise participate in the defense of any third party
claim, Licensee may, but shall have no obligation to, defend or settle
such claim or litigation in such a manner as it deems appropriate, and in
any event Programmer shall be bound by the results obtained by Licensee
with respect to the claim (by default or otherwise) and shall promptly
reimburse Licensee for the amount of all expenses (including the amount of
any judgment rendered), legal or otherwise, incurred in connection with
such claim or litigation.
5. EARLY TERMINATION
5.1. TERMINATION UPON DEFAULT. Upon the occurrence of an Event of Default
(as defined below) and the expiration of the applicable cure period as described
in this Section 5, the non-defaulting party may terminate this Agreement. All
amounts accrued or payable to Licensee up to the date of termination which have
not been paid shall immediately become due and payable, and Licensee shall be
under no further obligation to make available to Programmer any broadcast time
or broadcast transmission facilities on the Station. An "Event of Default" means
(a) Programmer's failure to pay when due the payments payable under Section 1.6;
and (b) the non-terminating party's failure to comply with any provision that is
material to the non-
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terminating party's performance of the terms and conditions of this
Agreement. An Event of Default shall not be deemed to have occurred until five
(5) 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; provided that Programmer will be entitled to only
two cure periods during any 12-month period with respect to failure to pay when
due the payments payable under Section 1.6. A cure period shall extend 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 non-defaulting party.
5.2. TERMINATION FOR CHANGE IN FCC RULES OR POLICIES. Either party may
terminate this Agreement upon written notice to the other if there has been a
material change in the Communications Laws that would cause this Agreement to be
in violation thereof, or in the event that the FCC determines that this
Agreement does not comply with the Communications Laws, and such change in the
Communications Laws or FCC determination is in effect and not the subject of an
appeal or further administrative review; provided, however, that in such either
event the parties shall first have negotiated in good faith and attempted to
agree to an amendment to this Agreement that will provide the parties with a
valid and enforceable agreement that conforms to the Communications Laws.
5.3. CERTAIN MATTERS UPON TERMINATION.
5.3.1. RETURN OF EQUIPMENT. If this Agreement is terminated for any
reason other than the closing under the Merger Agreement, 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 on the date hereof, ordinary wear and tear excepted.
5.3.2. SURVIVAL. No expiration or termination of this Agreement
shall terminate the obligation of Programmer to indemnify Licensee for claims of
third parties under Section 4 of this Agreement or the rights and obligations of
the parties under Sections 1.5.3, or limit or impair any party's right to
receive payments due and owing hereunder on or before the date of such
termination.
6. REPRESENTATIONS AND WARRANTIES
6.1. REPRESENTATIONS AND WARRANTIES OF LICENSEE. Licensee hereby
represents and warrants that:
6.1.1. ORGANIZATION, QUALIFICATION AND STANDING. Licensee is a
corporation duly organized, validly existing and in good standing under
the law of the State of Delaware. Licensee is duly qualified to do
business as a foreign entity and in good standing under the laws of the
state of California. Licensee has the requisite corporate power and
authority to carry on its business as now conducted.
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6.1.2. AUTHORIZATION AND BINDING OBLIGATION. Licensee has all
necessary power and authority to enter into and perform under this
Agreement and the transactions contemplated hereby, and Licensee's
execution, delivery and performance of this Agreement has been duly and
validly authorized by all necessary action on its part. This Agreement has
been duly executed and delivered by Licensee and constitutes its valid and
binding obligation, enforceable in accordance with its terms, except as
limited by laws affecting creditors' rights or equitable principles
generally.
6.1.3. ABSENCE OF CONFLICTING AGREEMENTS OR REQUIRED CONSENTS.
Neither the execution and delivery by Licensee of this Agreement, the
consummation by Licensee of the actions contemplated hereby nor compliance
by Licensee with or fulfillment by either of them of the terms, conditions
and provisions hereof will conflict with, or result in a violation or
breach of, or default (with or without notice or lapse of time, or both)
under, or give rise to a right of termination, amendment, cancellation or
acceleration of any obligation or loss of a material benefit under, or to
increased, additional, accelerated or guaranteed rights or entitlements of
any person under, or result in the creation of any Encumbrance (as defined
in the Merger Agreement) upon any of the properties or assets of Licensee
under, (i) the certificates of incorporation or by-laws of Licensee, (ii)
any of the terms, conditions or provisions of any note, bond, mortgage,
indenture, lease, contract, agreement, obligation, understanding,
commitment or other legally binding arrangement or of any license
applicable to Licensee or its respective properties or assets, or (iii)
any judgment, order, decree, statute, law, ordinance, rule or regulation
applicable to Licensee, or its respective properties or assets, other
than, in the case of clause (ii) or (iii), any such items that,
individually or in the aggregate, would not have a Material Adverse Effect
(as defined in the Merger Agreement) on Programmer.
6.2. REPRESENTATIONS AND WARRANTIES OF PROGRAMMER. Programmer hereby
represents and warrants that:
6.2.1. ORGANIZATION, QUALIFICATION AND STANDING. Programmer is a
limited liability company duly organized, validly existing and in good
standing under the laws of the State of Delaware. Programmer is duly
qualified to do business as a foreign entity and in good standing under
the law of the State of California. Programmer has the requisite corporate
power and authority to carry on its business as now conducted.
6.2.2. AUTHORIZATION AND BINDING OBLIGATION. Programmer has all
necessary power and authority to enter into and perform under this
Agreement and the transactions contemplated hereby, and Programmer's
execution, delivery and performance of this Agreement has been duly and
validly authorized by all necessary action on its part. This Agreement has
been duly executed and delivered by Programmer and constitutes its valid
and binding obligation, enforceable in accordance with its terms, except
as limited by laws affecting creditors' rights or equitable principles
generally.
6.2.3. ABSENCE OF CONFLICTING AGREEMENTS OR REQUIRED CONSENTS.
Neither the execution and delivery by Programmer of this Agreement, the
consummation by
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Programmer of the actions contemplated hereby nor compliance by Programmer
with or fulfillment by either of them of the terms, conditions and
provisions hereof will conflict with, or result in a violation or breach
of, or default (with or without notice or lapse of time, or both) under,
or give rise to a right of termination, amendment, cancellation or
acceleration of any obligation or loss of a material benefit under, or to
increased, additional, accelerated or guaranteed rights or entitlements of
any person under, or result in the creation of any Encumbrance (as defined
in the Merger Agreement) upon any of the properties or assets of
Programmer under, (i) the limited liability company agreement of
Programmer, (ii) any of the terms, conditions or provisions of any note,
bond, mortgage, indenture, lease, contract, agreement, obligation,
understanding, commitment or other legally binding arrangement or of any
license applicable to Programmer or its respective properties or assets,
or (iii) any judgment, order, decree, statute, law, ordinance, rule or
regulation applicable to Programmer, or its respective properties or
assets, other than, in the case of clause (ii) or (iii), any such items
that, individually or in the aggregate, would not have a Material Adverse
Effect (as defined in the Merger Agreement) on Licensee.
7. REQUIRED FCC CERTIFICATIONS
7.1. PROGRAMMER'S CERTIFICATION. Programmer hereby certifies that this
Agreement complies with the provisions of subsections (a) and (c) of Section
73.3555 of the FCC's rules and regulations.
7.2. LICENSEE'S CERTIFICATION. Licensee hereby certifies that it shall
maintain ultimate control over the Station's facilities, including specifically
control over Station's finances, personnel, and programming.
8. MISCELLANEOUS
8.1. AMENDMENT, MODIFICATION OR WAIVER. No amendment, modification or
waiver of any provision of this Agreement 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.
8.2. NO WAIVER; REMEDIES CUMULATIVE. No failure or delay on the part of
Licensee or Programmer in exercising any right or power under this Agreement
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 Agreement are cumulative and are not exclusive of any right or remedies
which either may otherwise have.
8.3. GOVERNING LAW; WAIVER OF JURY TRIAL. The construction and performance
of this Agreement shall be governed by the laws of the State of New York without
regard to its principles of conflict of law. All actions and proceedings arising
out of or relating to this Agreement shall be heard and determined in a New York
state or federal court sitting in the City
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of New York, and the parties hereto irrevocably submit to the exclusive
jurisdiction of such courts in any such action or proceeding and irrevocably
waive the defense of an inconvenient forum to the maintenance of any such action
or proceeding. Each party agrees not to bring any action or proceeding arising
out of or relating to this Agreement in any other court. THE PARTIES HERETO
HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVE TRIAL BY JURY IN ANY LEGAL ACTION
OR PROCEEDING RELATING IN ANY WAY TO THIS AGREEMENT, INCLUDING WITH RESPECT TO
ANY COUNTERCLAIM MADE IN SUCH ACTION OR PROCEEDING, AND AGREE THAT ANY SUCH
ACTION OR PROCEEDING SHALL BE DECIDED SOLELY BY A JUDGE. The parties hereto
hereby acknowledge that they have each been represented by counsel in the
negotiation, execution and delivery of this Agreement and that their lawyers
have fully explained the meaning of the Agreement, including in particular the
jury-trial waiver.
8.4. ATTORNEYS' FEES. In the event of any dispute between the parties to
this Agreement, Licensee or Programmer, as the case may be, shall reimburse the
prevailing party for its reasonable attorneys' fees and other costs incurred in
enforcing its rights or exercising its remedies under this Agreement. Such right
of reimbursement shall be in addition to any other right or remedy that the
prevailing party may have under this Agreement.
8.5. NO PARTNERSHIP OR JOINT VENTURE. This Agreement 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 Agreement, no
party to this Agreement shall be authorized to act as agent of or otherwise
represent any other party to this Agreement.
8.6. ENTIRE AGREEMENT. This Agreement, and the exhibits and schedules
hereto, embody the entire agreement and understanding of the parties hereto and
supersede any and all prior agreements, arrangements and understandings relating
to the matters provided for herein.
8.7. BENEFIT AND ASSIGNMENT. This Agreement shall be binding upon and
shall inure to the benefit of the parties hereto and their respective successors
and assigns. Neither Party may assign its rights under this Agreement without
the prior written consent of the other party hereto; provided, however, that
Licensee's rights and obligations under this Agreement shall be assigned to and
assumed by, without any further action by either party, to Infinity Media
Corporation upon termination of this Agreement due to consummation of the merger
pursuant to the Merger Agreement.
8.8. HEADINGS. The headings set forth in this Agreement are for
convenience only and will not control or affect the meaning or construction of
the provisions of this Agreement.
8.9. COUNTERPARTS. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original and all of which
together shall constitute one and the same instrument. Faxed copies of the
Agreement and faxed signature pages shall be binding and effective as to all
parties and may be used in lieu of the original Agreement, and, in particular,
in lieu of original signatures, for any purpose whatsoever.
12
8.10. NOTICES. Any notice, demand or request required or permitted to be
given under the provisions of this Agreement shall be in writing, addressed to
the following addresses, or to such other address as any party may request.
If to Licensee:
Infinity Broadcasting Corporation of San Francisco
0000 Xxxxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxxx Xxxxxxxxx
Facsimile: (000) 000-0000
With copies to:
General Counsel
Viacom Inc.
0000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Facsimile: (000) 000-0000
Xxxxxxxxx Xxxxxx & Xxxxxx PLLC
0000 X Xxxxxx, X.X.
Xxxxx 000
Xxxxxxxxxx, X.X. 00000-0000
Attention: Xxxxxx X. Xxxxxx, Esq.
Facsimile: 202-293-7783
If to Programmer:
Xx. Xxxx Xxxxxxx, Xx.
President/CEO
Spanish Broadcasting System, Inc.
0000 Xxxxx Xxxxxxxx Xxxxx - Xxxxxxxxx #0
Xxxxxxx Xxxxx, Xxxxxxx 00000
Telephone: (000) 000-0000
With a copy to:
Xxxxx X. Xxxxxxxx, Esq.
Xxxx Xxxxxxx LLP
000 00xx Xxxxxx, X.X.
Xxxxx 0000
Xxxxxxxxxx, X.X. 00000
Telephone: (000) 000-0000
13
Any such notice, demand or request shall be deemed to have been duly delivered
and received (a) on the date of personal delivery, or (b) on the date of
transmission, if sent by facsimile (but only if a hard copy is also sent by
overnight courier), or (c) on the date of receipt, if mailed by certified mail,
postage prepaid and return receipt requested, or (d) on the date of a signed
receipt, if sent by an overnight delivery service, but only if sent in the same
manner to all persons entitled to receive notice or a copy.
8.11. SEVERABILITY. In the event that any of the provisions of this
Agreement shall be held unenforceable, then the remaining provisions shall be
construed as if such unenforceable provisions were not contained herein. Any
provision of this Agreement which is unenforceable in any jurisdiction shall, as
to such jurisdiction, be ineffective to the extent of such unenforceability
without invalidating the remaining provisions hereof, and any such
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provisions in any other jurisdiction. To the extent permitted
by applicable law, the parties hereto hereby waive any provision of law now or
hereafter in effect which renders any provision hereof unenforceable in any
respect.
[SIGNATURES ON PAGE IMMEDIATELY FOLLOWING]
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IN WITNESS WHEREOF, the parties have executed this Local Marketing
Agreement as of the date first above written.
INFINITY BROADCASTING CORPORATION OF
SAN FRANCISCO
By: /s/ Xxxxxx X. Xxxxxxxxx
-----------------------------------
Name: Xxxxxx X. Xxxxxxxxx
Title: Vice President and Treasurer
SBS BAY AREA, LLC
By: /s/ Xxxx Xxxxxxx, Xx.
-----------------------------------
Name: Xxxx Xxxxxxx, Xx.
Title: Chief Executive Officer and
President
