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EXHIBIT 10.4
93.5 TIME BROKERAGE AGREEMENT
93.5 TIME BROKERAGE AGREEMENT ("Agreement"), made this 13th day of March,
2001, by and between SPANISH BROADCASTING SYSTEM SOUTHWEST, INC., a Delaware
corporation, as Licensee ("SBS-SW") and INTERNATIONAL CHURCH OF THE FOURSQUARE
GOSPEL, a religious non-profit corporation, organized and existing under the
laws of the State of California, as Broker ("ICFG").
WHEREAS, SBS-SW owns and operates Radio Station KMJR (FM), Redondo Beach,
California and Radio Station KNJR (FM), Ontario, California (the "Stations"),
pursuant to authorizations issued by the Federal Communications Commission
("FCC").
WHEREAS, SBS-SW wishes to retain ICFG to provide programming for the
Stations that is in conformity with Stations' policies and procedures, FCC
policies for time brokerage arrangements.
WHEREAS, ICFG agrees to use the Stations to broadcast such programming of
its selection, including the rebroadcast of any other station owned or operated
by ICFG, that is in conformity with all rules, regulations and policies of the
FCC, subject to SBS-SW's full authority to manage and control the operation of
the Stations.
WHEREAS, ICFG and SBS-SW agree to cooperate to make this Agreement work to
the benefit of the public and both parties and as contemplated herein.
NOW, THEREFORE, in consideration of the above recitals and mutual promises
and covenants contained herein, the parties, intending to be legally bound,
agree as follows:
SECTION 1. STATION AIR TIME
1.1 Representations. Both ICFG and SBS-SW represent that they are
legally qualified, empowered and able to enter into this Agreement and that the
execution, delivery and performance hereof shall not constitute a breach or
violation of any material agreement, contract or other obligation to which
either party is subject or by which it is bound.
1.2 Effective Date; Term. The effective date of this Agreement shall be
the date of the signing of this Agreement as set forth above ("Effective Date").
It shall continue in force for an initial period of 60 days from the
Commencement Date (as defined below) and may be extended by ICFG for two
additional 60-day periods upon 30 days' prior written notice to SBS-SW. Further,
ICFG shall commence broadcasting its programming on Stations at such time as it
shall elect, but in no event earlier than March 31, 2001 (the "Commencement
Date").
1.3. Scope. During the term of this Agreement and any renewal thereof,
SBS- SW shall make available to ICFG broadcast time upon the Stations as set
forth in this Agreement. ICFG shall deliver such programming, at its expense, to
the Stations' transmitter facilities or other authorized remote control points
as reasonably designated by SBS-SW.
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Subject to SBS-SW's reasonable approval, as set forth in this Agreement, ICFG
shall provide programming of ICFG's selection complete with commercial matter,
news, public service announcements and other suitable programming to SBS-SW up
to one hundred sixty-eight hours per week.
1.4 Consideration. As consideration for the air time made available
hereunder ICFG shall make payments to SBS-SW as set forth in Attachment 1.
1.5 SBS-SW Operation of Stations. SBS-SW will have full authority,
power and control over the management and operations of the Stations during the
term of this Agreement and during any renewal of such term. SBS-SW will bear all
responsibility for Stations compliance with all applicable provisions of the
Communications Act of 1934, as amended (the "Act"), the rules, regulations and
policies of the FCC and other applicable laws. SBS-SW shall be solely
responsible for and pay in a timely manner all operating costs of the Stations,
including but not limited to, maintenance of the studio and transmitting
facilities and costs of electricity, except that ICFG shall be responsible for
the costs of its programming as provided in Sections 1.7 and 2.3 hereof. SBS-SW
shall employ at its expense management level and other employees consisting of a
General Manager and such operational and other personnel as outlined in the
budget previously provided to ICFG, who will direct the day-to-day operations of
the Stations, and who will report to and be accountable to SBS-SW. SBS-SW shall
be responsible for the salaries, taxes, insurance and related costs for all
personnel employed by the Stations and shall maintain insurance satisfactory to
ICFG covering the Stations' transmission facilities.
1.6 SBS-SW Representation and Warranties. SBS-SW represents and
warrants as follows:
(a) SBS-SW owns and holds or will hold all licenses and other
permits and authorizations necessary for the operation of the Stations, and such
licenses, permits and authorizations are and will be in full force and effect
throughout the term of this Agreement. There is not now pending, or to SBS-SW's
best knowledge, threatened, any action by the FCC or by any other party to
revoke, cancel, suspend, refuse to renew or modify adversely any of such
licenses, permits or authorizations. SBS-SW is not in material violation of any
statute, ordinance, rule, regulation, policy, order or decree of any federal,
state or local entity, court or authority having jurisdiction over it or the
Stations, which would have an adverse effect upon the SBS-SW, the Stations or
upon SBS-SW's ability to perform this Agreement. All reports and applications
required to be filed with the FCC or any other governmental body have been, and
during the course of the term of this Agreement or any renewal thereof, will be
filed in a timely and complete manner. During the term of this Agreement and any
renewal thereof, SBS-SW shall not dispose of, transfer, assign or pledge any of
licensee's assets and properties except with the prior written consent of ICFG,
if such action would adversely affect SBS-SW's performance hereunder or the
business and operations of SBS-SW or the Stations permitted hereby.
(b) SBS-SW shall pay, in a timely fashion, all of the expenses
incurred in operating the Stations including salaries and benefits of its
employees, lease payments, utilities, taxes, programming expenses, etc., (except
those for which a good faith dispute has
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been raised with the vendor or taxing authority): shall provide ICFG with a
certificate of such timely payment within thirty (30) days of the end of each
month.
1.7 ICFG Responsibility. ICFG shall be solely responsible for any
expenses incurred in the origination and/or delivery of programming from any
remote location and for any publicity or promotional expenses incurred by ICFG,
including, without limitation, ASCAP and BMI music license fees for all
programming provided by ICFG. Such payments by ICFG shall be in addition to any
other payments to be made by ICFG under this Agreement.
1.8 Contracts. ICFG will enter into no third-party contracts, leases or
agreements which will bind SBS-SW in any way except with SBS-SW's prior written
approval, such approval shall not be unreasonably withheld.
1.9 Stations Operations. With respect to the operation of the Stations,
SBS- SW shall notify ICFG prior to: (i) making any changes in management
personnel; (ii) entering into any material contractual obligations in excess of
$10,000 individually or $50,000 in the aggregate; (iii) purchasing equipment
with value in excess of $25,000; or (iv) making any other material changes in
the operation of the Stations.
SECTION 2. STATION'S OBLIGATION TO ITS COMMUNITY OF LICENSE
2.1. SBS-SW Authority. Notwithstanding any other provision of this
Agreement, ICFG recognizes that SBS-SW has certain obligations to broadcast
programming to meet the needs and interests of its community of license. From
time to time the SBS-SW shall air specific programming on issues of importance
to the local community. Nothing in this Agreement shall abrogate the
unrestricted authority of the SBS-SW to discharge its obligations to the public
and to comply with the Act and the rules and policies of the FCC.
2.2. Additional SBS-SW Obligations. Although both parties shall
cooperate in the broadcast of emergency information over the Stations, SBS-SW
shall also retain the right to interrupt ICFG's programming in case of an
emergency or for programming which, in the reasonable good faith judgment of
SBS-SW, is of greater local or national public importance. SBS-SW shall also
coordinate with ICFG the Stations' hourly station identification and any other
announcements required to be aired by FCC rules. SBS-SW shall continue to
maintain a main studio, as that term is defined by the FCC, within each
Stations' principal community contour, shall maintain its local public
inspection file in accordance with FCC rules, regulations and policies, and
shall prepare and place in such inspection file or files in a timely manner all
material required by Section 73.3526 of the FCC's Rules. ICFG shall, upon
request by SBS-SW, provide SBS-SW with such information concerning ICFG's
programs and advertising as is necessary to assist SBS-SW in the preparation of
such information. SBS-SW shall also maintain the station logs, receive and
respond to telephone inquiries, and control and oversee any remote control point
which may be established for the Stations.
2.3 Responsibility for Employees and Expenses. ICFG shall employ and be
solely responsible for the salaries, taxes, insurance and related costs for all
personnel used in the
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production of its programming (including, but not limited to, salespeople,
technical staff, traffic personnel, board operators and programming staff).
SBS-SW will provide and be responsible for the Stations' personnel necessary for
the broadcast transmission of its own programs (including, without limitation,
the Stations' General Manager and such operational and other personnel as may be
necessary or appropriate), and will be responsible for the salaries, taxes,
benefits, insurance and related costs for all SBS-SW's employees used in the
broadcast transmission of its programs and necessary to other aspects of
Stations' operation subject to reimbursement pursuant to Section 1.7(b) hereof.
Whenever on the Stations' premises, all personnel shall be subject to the
overall supervision of SBS-SW's General Manager.
SECTION 3. STATION'S PROGRAMMING POLICIES
3.1 Broadcast Stations Programming Policy Statement. SBS-SW has adopted
and will enforce a Broadcast Stations Programming Policy Statement (the "Policy
Statement"), a copy of which appears as Attachment 2 hereto and which may be
amended in a reasonable manner from time to time by SBS-SW upon notice to ICFG.
ICFG agrees and covenants to comply in all material respects with the Policy
Statement, to all rules and regulations of the FCC, and to all changes
subsequently made by SBS-SW or the FCC. ICFG shall furnish or cause to be
furnished the artistic personnel and material for the programs as provided by
this Agreement and all programs shall be prepared and presented in conformity
with the rules, regulations and policies of the FCC and with the Policy
Statement set forth in Attachment 3 hereto. All advertising spots and
promotional material or announcements shall comply with applicable federal,
state and local regulations and policies and shall be produced in accordance
with quality standards established by ICFG. If SBS-SW reasonably determines that
a program supplied by ICFG is unsatisfactory or unsuitable or contrary to the
public interest, or does not comply with the Policy Statement it may, upon prior
written notice to ICFG, suspend or cancel such program without liability to
ICFG. SBS-SW will use all reasonable efforts to provide such written notice to
ICFG prior to the suspension or cancellation of such program.
3.2 SBS-SW Control of Programming. ICFG recognizes that SBS-SW has full
authority to control the operation of the Stations. The parties agree that
SBS-SW's authority includes but is not limited to the right to reject or refuse
such portions of ICFG's programming which SBS-SW reasonably believes to be
unsatisfactory, unsuitable or contrary to the public interest. ICFG shall have
the right to change the programming supplied to SBS-SW and shall give SBS-SW at
least twenty-four (24) hours notice of substantial and material changes in such
programming.
3.3 ICFG Compliance with Copyright Act. ICFG represents and warrants to
SBS-SW that ICFG has full authority to broadcast its programming on the
Stations, and that ICFG shall not broadcast any material in violation of the
Copyright Act. All music supplied by ICFG shall be: (i) licensed by ASCAP, SESAC
or BMI; (ii) in the public domain; or (iii) cleared at the source by ICFG.
SBS-SW will maintain ASCAP, BMI and SESAC licenses as necessary. The right to
use the programming and to authorize its use in any manner shall be and remain
vested in ICFG.
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3.4 Sales. ICFG shall retain all revenues from the sale of advertising
time within the programming it provides to SBS-SW. ICFG shall be responsible for
payment of the commissions due to any national sales representative engaged by
it for the purpose of selling national advertising which is carried during the
programming it provides to SBS-SW.
3.5 Payola. ICFG agrees that it will not 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 ICFG 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 Act and FCC requirements. ICFG agrees to
annually, or more frequently at the request of the SBS-SW, execute and provide
SBS-SW with a Payola Affidavit from each of its employees involved with the
Stations substantially in the form attached hereto as Attachment 3.
3.6 Cooperation on Programming. SBS-SW shall, on a regular basis,
cooperate with ICFG to assess the issues of concern to its community and address
those issues in its public service programming. ICFG, in cooperation with
SBS-SW, will endeavor to ensure that programming responsive to the needs and
interests of the community of license and surrounding area is broadcast, in
compliance with applicable FCC requirements. SBS-SW will describe those issues
and the programming that is broadcast in response to those issues and place
issues/programs lists in the Stations' public inspection files as required by
FCC rules. Further, SBS-SW may request, and ICFG shall provide, information
concerning such of ICFG's programs as are responsive to community issues so as
to assist SBS-SW in the satisfaction of its public service programming
obligations.
3.7 Staffing Requirements. SBS-SW will be in full compliance with the
main studio staff requirements as specified by the FCC.
SECTION 4. INDEMNIFICATION
4.1 ICFG's Indemnification. ICFG shall indemnify and hold harmless SBS-
SW from and against any and all claims, losses, costs, liabilities, damages,
forfeitures and expenses (including reasonable legal fees and other expenses
incidental thereto) of every kind, nature and description (collectively,
"Damages") resulting from(i) ICFG's breach of any representation, warranty,
covenant or agreement contained in this Agreement, or (ii) any action taken by
ICFG or its employees and agents with respect to the Stations, or any failure by
ICFG or its employees and agents to take any action with respect to the
Stations, including, without limitation, Damages relating to violations of the
Act or any rule, regulation or policy of the FCC, slander, defamation or other
claims relating to programming provided by ICFG and ICFG's broadcast and sale of
advertising time on the Stations.
4.2 SBS-SW's Indemnification. SBS-SW shall indemnify and hold harmless
ICFG from and against any and all claims, losses, consents, liabilities,
damages, FCC forfeitures
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and expenses (including reasonable legal fees and other expenses incidental
thereto) of every kind, nature and description, arising out of SBS-SW's
operations and broadcasts to the extent permitted by law and any action taken by
the SBS-SW or its employees and agents with respect to the Stations, or any
failure by SBS-SW or its employees and agents to take any action with respect to
the Stations.
4.3 Limitation. Neither SBS-SW nor ICFG shall be entitled to
indemnification pursuant to this section unless such claim for indemnification
is asserted in writing delivered to the other party.
4.4 Time Brokerage Challenge. If this Agreement is challenged at the
FCC, whether or not in connection with the Stations' license renewal
applications, counsel for SBS- SW and counsel for ICFG shall jointly defend the
Agreement and the parties' performance thereunder throughout all FCC proceedings
at the sole expense of ICFG. If portions of this Agreement do not receive the
approval of the FCC Staff, then the parties shall reform the Agreement as
necessary to satisfy the FCC Staff s concerns or, at ICFG's option and expense,
seek reversal of the Staff s decision and approval from the full Commission or a
court of law.
SECTION 5. ACCESS TO BROKER MATERIALS AND CORRESPONDENCE
5.1 Political Advertising. ICFG shall cooperate with SBS-SW to assist
SBS- SW in complying with all rules of the FCC regarding political broadcasting.
SBS-SW shall promptly supply to ICFG, and ICFG shall promptly supply to SBS-SW,
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. SBS-SW, in consultation
with ICFG, shall develop a statement which discloses its political broadcasting
policies to political candidates, and ICFG shall follow those policies and rates
in the sale of political programming and advertising. In the event that ICFG
fails to satisfy the political broadcasting requirements under the Act and the
rules and regulations of the FCC and such failure inhibits SBS-SW in its
compliance with the political broadcasting requirements of the FCC, then to the
extent reasonably necessary to assure such compliance, ICFG shall release
broadcast time and/or advertising availabilities to SBS-SW at no cost to SBS-SW;
provided, however, that all revenues realized by SBS-SW as a result of such a
release of advertising time shall be immediately paid to ICFG.
SECTION 6. TERMINATION AND REMEDIES UPON DEFAULT
6.1 Termination. In addition to other remedies available at law or
equity, this Agreement may be terminated as set forth below by either SBS-SW or
ICFG by written notice to the other, if the party seeking to terminate is not
then in material default or breach hereof, upon the occurrence of any of the
following:
(a) subject to the provisions of Section 7.9, this Agreement is
declared invalid or illegal in whole or substantial part by an order or decree
of an administrative agency or
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court of competent jurisdiction and such order or decree has become final and no
longer subject to further administrative or judicial review;
(b) the other party is in material breach of its obligations
hereunder and has failed to cure such breach within thirty (30) days of notice
from the non-breaching party;
(c) the mutual consent of both parties;
(d) there has been a material change in FCC rules, policies or
precedent that would cause this Agreement to be in violation thereof and such
change is in effect and not the subject of an appeal or further administrative
review and this Agreement cannot be reformed, in a manner acceptable to Buyer
and Seller, to remove and/or eliminate the violation; and
(e) upon ICFG's prior thirty (30) day's notice to SBS-SW to
discontinue this Agreement.
Further, if this Agreement terminates due to a material uncured breach by SBS,
that certain Asset Purchase Agreement, dated November 2, 2000, by and between
ICFG and Spanish Broadcasting System, Inc., as amended, shall also terminate.
6.2 Force Majeure. Any failure or impairment of the Stations'
facilities or any delay or interruption in the broadcast of programs, or failure
at any time to furnish facilities, in whole or in part, for broadcast, due to
circumstances of extraordinary and unpreventable character that are beyond the
reasonable control of, and are unforeseen by, SBS-SW, including, but not limited
to, strikes, lockouts, material or labor restrictions by any governmental
authority, civil riot, flood, fire, earthquake, storm, or for power reductions
necessitated for maintenance of the Stations or for maintenance of other
stations located on the tower from which the Stations will be broadcasting,
shall not constitute a breach of this Agreement and SBS-SW will not be liable to
ICFG for reimbursement or reduction of the consideration owed to SBS-SW.
6.3 Other Agreements. During the term of this Agreement or any renewal
hereof, SBS-SW will not enter into any other time brokerage, program provision,
local management or similar agreement with any third party.
SECTION 7. MISCELLANEOUS
7.1 Assignment.
(a) SBS-SW's Right to Assign. SBS-SW shall have the unrestricted
right to assign its interest herein to any purchaser of radio stations.
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(b) ICFG's Right to Assign. ICFG shall have no right to assign to
any person or entity.
(c) This Agreement shall be binding upon and inure to the benefit
of the parties hereto and their respective successors and permitted assigns.
7.2 Call Letters. Upon request of ICFG and at ICFG's expense and
subject to the consent of the SBS-SW, SBS-SW shall apply to the FCC for
authority to change the call letters of the Stations (with the consent of the
FCC) to such call letters that ICFG shall reasonably designate. SBS-SW must
coordinate with ICFG any proposed changes to the call letters of the Stations
before the SBS-SW takes any action to change such letters.
7.3 Counterparts. This Agreement may be executed in one or more
counterparts, each of which will be deemed an original but all of which together
will constitute one and the same instrument.
7.4 Entire Agreement. This Agreement and the Attachments hereto, embody
the entire agreement and understanding of the parties and supersede any and all
prior agreements, arrangements and understandings relating to matters provided
for herein. No amendment, waiver of compliance with any provision or condition
hereof, or consent pursuant to this Agreement will be effective unless evidenced
by an instrument in writing signed by the parties.
7.5 Taxes. SBS-SW and ICFG shall each pay its own ad valorem taxes, if
any, which may be assessed on such party's respective personal property for the
periods that such items are owned by such party. ICFG shall pay all taxes, if
any, to which the consideration specified in Section 1.5 herein is subject,
provided that SBS-SW is responsible for payment of its own income taxes.
7.6 Headings. The headings are for convenience only and will not
control or affect the meaning or construction of the provisions of this
Agreement.
7.7 Governing Law. The obligations of SBS-SW and ICFG are subject to
applicable federal, state and local law, rules and regulations, including, but
not limited to, the Act and the Rules and Regulations of the FCC. The
construction and performance of the Agreement will be governed by the laws of
the State of California.
7.8 Notices. All notices, demands and requests required or permitted to
be given under the provisions of this Agreement shall be (i) in writing, (ii)
sent by telecopy (with receipt personally confirmed by telephone), delivered by
personal delivery, or sent by commercial delivery service or certified mail,
return receipt requested, (iii) deemed to have been given on the date telecopied
with receipt confirmed, the date of personal delivery, or the date set forth in
the records of the delivery service or on the return receipt, and (iv) addressed
as follows:
To SBS-SW: ▇▇. ▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇.
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Spanish Broadcasting System, Inc.
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2601 South Bayshore Drive
Penthouse II
▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Copy to: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Esq.
-------
▇▇▇▇ ▇▇▇▇▇▇▇ LLP
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇.▇.
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇.▇. ▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
To ICFG: International Church of the
------- the Foursquare Gospel
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
ATTN: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Copy to: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ P.C.
------- ▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
ATTN: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Esq.
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
or to any such other or additional persons and addresses as the parties may from
time to time designate in a writing delivered in accordance with this Section
7.8.
7.9 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
alters or modifies its rules or policies in a fashion which would raise
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.
7.10 Specific Performance. The parties recognize that in the event
SBS-SW should refuse to perform under the provisions of this Agreement, monetary
damages alone will
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not be adequate. In the event that ICFG is not itself in material default or
breach of this Agreement, ICFG shall therefore be entitled to obtain specific
performance of all terms of this Agreement. In the event of any action to
enforce this Agreement, SBS-SW hereby waives the defense that there is an
adequate remedy at law.
7.11 Arbitration. ANY DISPUTE ARISING OUT OF OR IN ANY WAY RELATING TO
THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE
SUBSTANTIVE AND PROCEDURAL LAW OF THE STATE OF CALIFORNIA (WITHOUT REGARD TO ITS
CONFLICT OF LAWS RULES) AND SHALL BE RESOLVED AT LOS ANGELES, CALIFORNIA BY
ARBITRATION BEFORE A RETIRED JUDGE OF THE CALIFORNIA COURTS ASSOCIATED WITH JAMS
MUTUALLY ACCEPTABLE TO THE PARTIES, OR, FAILING AGREEMENT BY THE PARTIES,
APPOINTED BY THE PRESIDING JUDGE OF THE COURT OF GENERAL JURISDICTION IN THE
COUNTY OF LOS ANGELES, CALIFORNIA. SUCH ARBITRATION SHALL BE COMMENCED UPON THE
WRITTEN REQUEST OF ANY PARTY, AND SHALL BE CONDUCTED ON A CONFIDENTIAL BASIS.
WITHOUT LIMITING ANY OTHER POWERS OF THE ARBITRATOR, THE ARBITRATOR SHALL HAVE
THE AUTHORITY OF A JUDGE PRO TEM WITH THE AUTHORITY TO ISSUE EQUITABLE ORDERS,
INCLUDING ANY EX PARTE ORDERS, DEEMED NECESSARY OR APPROPRIATE UNDER THE
CIRCUMSTANCES. ARBITRATION SHALL BE CONDUCTED AS A TRIAL BY THE COURT APPLYING
THE SUBSTANTIVE AND PROCEDURAL LAW OF THE STATE OF CALIFORNIA (WITHOUT REGARD TO
ITS CONFLICT OF LAW RULES) WITH A WRITTEN STATEMENT OF DECISION. JUDGMENT UPON
THE ARBITRATOR'S AWARD MAY BE ENTERED IN ANY COURT OF COMPETENT JURISDICTION.
BOTH PARTIES EXPRESSLY SUBMIT AND AGREE TO THE JURISDICTION AND VENUE AS
PROVIDED HEREIN. THE PARTIES SHALL EQUALLY SHARE AND PAY THE ARBITRATOR'S FEES
AND RELATED COSTS. EACH PARTY SHALL BEAR ITS OWN ATTORNEYS' FEES AND COSTS
INCURRED IN CONNECTION WITH ANY SUCH ARBITRATION AND ANY APPEAL THEREFROM.
/s/ BM /s/ RA
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ICFG - initials SBS-SW - initials
7.12 No Joint Venture. Nothing in this Agreement shall be deemed to
create a joint venture between SBS-SW and ICFG.
[signature page follows]
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement on
the day and year first above written.
SPANISH BROADCASTING SYSTEM
SOUTHWEST, INC.
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇.
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▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇.
INTERNATIONAL CHURCH OF THE
FOURSQUARE GOSPEL
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇
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▇▇▇▇▇ ▇. ▇▇▇▇▇▇
ACKNOWLEDGED AND AGREED TO
AS TO SECTION 6.1(e) ONLY:
SPANISH BROADCASTING SYSTEM, INC.
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇.
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ATTACHMENT 2
BROADCAST STATION PROGRAMMING POLICY STATEMENT
The following sets forth the policies generally applicable to the presentation
of programming and advertising over Stations KMJR (FM), Los Angeles, California
and KNJR (FM), Los Angeles, California. All programming and advertising
broadcast by the Stations must conform to these policies and to the provisions
of the Communications Act of 1934, as amended (the "Act"), and the Rules and
Regulations of the Federal Communications Commission ("FCC").
Stations' Identification
The Stations must broadcast a Stations identification announcement once an hour
as close to the hour as feasible in a natural breach in the programming. The
announcement must include (1) the Stations' call letters, followed immediately
by (2) the Stations' city of license.
Broadcast of Telephone Conversations
Before recording a telephone conversation for broadcast or broadcasting such a
conversation simultaneously with its occurrence, any party to the call must be
informed that the call will be broadcast or will be recorded for later
broadcast, and the party's consent to such broadcast must be obtained. This
requirement does not apply to calls initiated by the other party which are made
in a context in which it is customary for the Stations to broadcast telephone
calls.
Sponsorship Identification
When money, service or other valuable consideration is either directly or
indirectly paid or promised as part of an arrangement to transmit any
programming, the Stations at the time of broadcast shall announce (1) that the
matter is sponsored, either whole or in part; and (2) by whom or on whose behalf
the matter is sponsored. Products or services furnished to the Stations in
consideration for an identification of any person, product, service, trademark
or brand name shall be identified in this manner.
In the case of any political or controversial issue broadcast for which any
material or service is furnished as an inducement for its transmission, an
announcement shall be made at the beginning and conclusion of the broadcast
stating (1) the material or service that has been furnished; and (2) the
person(s) or association(s) on whose behalf the programming is transmitted.
However, if the broadcast is 5 minutes duration or less, the required
announcement need only be made either at its beginning or end.
Prior to any sponsored broadcast involving political matters or controversial
issues, the Stations shall obtain a list of the chief executive officers,
members of the executive committee or board of
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directors of the sponsoring organization and shall place this list in the
Stations' public inspection files.
Payola/Plugola
The Stations, the personnel, or ICFG shall not accept or agree to accept from
any person any money, service or other valuable consideration for the broadcast
of any matter unless such fact is disclosed to the Stations so that all required
Stations identification announcements can be made. All persons responsible for
station programming must, from time to time, execute such documents as may be
required by Stations' management to confirm their understanding of and
compliance with the FCC's sponsorship identification requirements.
Rebroadcasts
The Stations shall not rebroadcast the signal of any other broadcast Stations
without first obtaining such Stations' prior written consent to such
rebroadcast.
Fairness
The Stations shall seek to afford coverage to contrasting viewpoints concerning
controversial issues of public importance.
Personal Attacks
The Stations shall not air attacks upon the honesty, character, integrity or
like personal qualities of any identified person or group. If such an attack
should nonetheless occur during the presentation of views on a controversial
issue of public importance, those responsible for programming shall submit a
tape or transcript of the broadcast to station management and to the person
attacked within 48 hours, and shall offer the person attacked a reasonable
opportunity to respond.
Political Editorials
Unless specifically authorized by Stations' management, the Stations shall not
air any editorial which either endorses or opposes a legally qualified candidate
for public office.
Political Broadcasting
All "uses" of the Stations by legally qualified candidates for elective office
shall be in accordance with the Act and the FCC's Rules and policies, including
without limitation, equal opportunities requirements, reasonable access
requirements, lowest unit charge requirements and similar rules and regulations.
Obscenity and Indecency
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The Stations shall not broadcast any obscene material. Material is deemed to be
obscene if the average person, applying contemporary community standards in the
local community, would find that the material, taken as a whole, appeals to the
prurient interest; depicts or describes in a patently offensive way sexual
conduct specifically defined by applicable state law; and taken as a whole,
lacks serious literary, artistic, political or scientific value.
The Stations shall not broadcast any indecent material outside of the periods of
time prescribed by the FCC. Material is deemed to be indecent if it includes
language or material that, in context, depicts or describes, in terms patently
offensive as measured by contemporary community standards for the broadcast
medium, sexual or excretory activities or organs.
Billing
No entity which sells advertising for airing on the Stations shall knowingly
issue any ▇▇▇▇, invoice or other document which contains false information
concerning the amount charged or the broadcast of advertising which is the
subject of the ▇▇▇▇ or invoice. No entity which sells advertising for airing on
the Stations shall misrepresent the nature or content of aired advertising, nor
the quantity, time of day, or day on which such advertising was broadcast.
Contests
Any contests conducted on the Stations shall be conducted substantially as
announced or advertised. Advertisements or announcements concerning such
contests shall fully and accurately disclose the contest's material terms. No
contest description shall be false, misleading or deceptive with respect to any
material term.
Hoaxes
The Stations shall not knowingly broadcast false information concerning a crime
or catastrophe.
Emergency Information
Any emergency information which is broadcast by the Stations shall be
transmitted immediately.
Lottery
The Stations shall not advertise or broadcast any information concerning any
lottery (except approved state lotteries). The Stations may advertise and
provide information about lotteries conducted by non-profit groups, governmental
entities and in certain situations, by commercial organizations, if and only if
there is no state or local restriction or ban on such advertising or information
and the lottery is legal under state or local law. Any and all lottery
advertising must first be approved by Stations' management.
Advertising
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The Stations shall comply with all federal, state and local laws concerning
advertising, including without limitation, all laws concerning misleading
advertising, and the advertising of alcoholic beverages.
Programming Prohibitions
Knowing broadcast of the following types of programs and announcements is
prohibited.
False Claims. False or unwarranted claims for any product or service.
Unfair Imitation. Infringements of another advertiser's rights through
plagiarism or unfair imitation of either program idea or copy, or any
other unfair competition.
Commercial Disparagement. Any unfair disparagement of competitors or
competitive goods.
Profanity. Any programs or announcements that are slanderous, obscene,
profane, vulgar, repulsive or offensive, as evaluated by Stations'
management.
Violence. Any programs which are excessively violent.
Unauthorized Testimonials. Any testimonials which cannot be
authenticated.
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ATTACHMENT 3
PAYOLA STATEMENT
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FORM OF PAYOLA AFFIDAVIT
City of _________________ )
)
County of_______________ ) ss:
)
State of_________________ )
ANTI-PAYOLA/PLUGOLA AFFIDAVIT
__________________________________, being first duly sworn, deposes and says as
follows:
1. He/She is ______________________ for __________________.
2. He/She has acted in the above capacity since ________________.
3. No matter has been broadcast by Stations ______ for which service, money or
other valuable consideration has been directly or indirectly paid, or
promised to, or charged, or accepted, by him/her from any person, which
matter at the time so broadcast has not been announced or otherwise
indicated as paid for or furnished by such person.
4. So far as he/she is aware, no matter has been broadcast by Stations _____
for which service, money or other valuable consideration has been directly
or indirectly paid, or promised to, or charged, or accepted by Stations
_______ or by any independent contractor engaged by Stations ______ in
furnishing programs, from any person, which matter at the time so broadcast
has not been announced or otherwise indicated as paid for or furnished by
such person.
5. In the future, he/she will not pay, promise to pay, request or receive any
service, money, or any other valuable consideration, direct or indirect,
from a third party, in exchange for the influencing of, or the attempt to
influence, the preparation of presentation of broadcast matter on Stations
______.
6. Nothing contained herein is intended to, or shall prohibit receipt or
acceptance of anything with the expressed knowledge and approval of my
employer, but henceforth any such approval must be given in writing by
someone expressly authorized to give such approval.
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7. He/She, his/her spouse and immediate family do ___ do not ___ have any
present direct or indirect ownership interest in (other than an investment
in a corporation whose stock is publicly held), serve as an officer or
director of, whether with or without compensation, or serve as an employee
of, any person, firm or corporation engaged in:
1. The publishing of music;
2. The production, distribution (including wholesale and retail sales
outlets), manufacture or exploitation of music, films, tapes,
recordings or electrical transcription of any program material
intended for radio broadcast use;
3. The exploitation, promotion or management or persons rendering
artistic, production and/or other services in the entertainment field;
4. The ownership or operation of one or more radio or television
stations;
5. The wholesale or retail sale of records intended for public purchase;
6. Advertising on Stations _____, or any other station owned by its
licensee (excluding nominal stockholdings in publicly owned
companies).
8. The facts and circumstances relating to such interest are none ___ as
follows ___:
_______________________________________________________________
_______________________________________________________________
__________________________________
Affiant
Subscribed and sworn to before me
this _____ day of ____________, 200__
___________________________
Notary Public
My Commission expires:_____________
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