EX-10.122 Local Marketing Agreement



 





Exhibit 10.122




LOCAL MARKETING AGREEMENT




     THIS LOCAL MARKETING AGREEMENT (“Agreement”), made as of this 1st day of January,
2008, by and between South Broadcasting System, Inc., a Delaware corporation (“Licensor”) and
Spanish Broadcasting System, Inc., a Delaware corporation (“Licensee” or “Programmer”).



     WHEREAS, Licensor owns and operations Radio Station 106.3 WZMQ-FM, Key Largo, Florida,
Facility ID #61646, (the “Station”), pursuant to authorizations issued by the Federal
Communications Commission (“FCC”).



     WHEREAS, the Programmer wishes to broker from Licensor time on the Station to provide
programming that is in conformity with Station’s policies and procedures, FCC policies for time
brokerage arrangements, and the provisions hereof.



     WHEREAS, Programmer agrees to broker time on the Station in order to broadcast such
programming of its selection that is in conformity with all rules, regulations and policies of the
FCC, subject to Licensor’s full authority to manage and control the operation of the Station.



     WHEREAS, Programmer and Licensor agree to cooperate to make this Agreement work to the benefit
of the public and both parties and as contemplated in this Agreement.



     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 AND SALE OF TIME




          1.1 Representations. Both Programmer and Licensor 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 January 1,
2008 (“Effective Date”). This Agreement shall continue in full force and effect for an initial
term ending on December 31, 2008 (the “Initial Term”), unless otherwise extended or terminated as
set forth herein. Programmer shall have the absolute right at its sole discretion to extend the
Initial Term for three years (the “Option Term”) by providing Licensor written notice of its intent
to exercise its option to renew at least 120 days prior to the expiration of the Initial Term. For
the period commencing 120 days prior to the expiration of the Option Term, the parties agree to
negotiate in good faith for any subsequent extension thereof. Reference to the Term of this
Agreement shall include any extension hereof.




          1.3. Scope. During the term of this Agreement and any renewal thereof, Licensor
shall make available to Programmer broadcast time upon the Station as set forth in this Agreement.
Programmer shall deliver such programming, at its expense, to the Station’s transmitter facilities
or other authorized remote control points as reasonably designated by Licensor and shall use
Programmer’s content, brands and logos in connection with the promotion of the Station. Subject to
Licensor’s reasonable approval, as set forth in this Agreement,



 









 






Programmer shall provide programming of Programmer’s selection complete with commercial
matter, news, public service announcements and other suitable programming (the “Programming”) to
the Licensor 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 Licensor and Programmer during which time Licensor 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 Licensor in
accordance with this Agreement; and (iv) times when the Station is not broadcasting because of
Force Majeure Events (as defined below).




          1.4. Advertising and Programming Revenues. During the Initial Term, the Option Term
and any extension thereof, 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 within
the Programming it provides to Licensor. Programmer 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 Licensor.




          1.5 Consideration. In consideration of the rights granted under this Agreement,
Programmer shall pay to Licensor certain of Licensor’s costs as provided in Attachment I
hereto.




          1.6 Licensor Representation and Warranties. Licensor represents and warrants that
Licensor owns and holds or will hold all licenses and other permits and authorizations necessary
for the operation of the Station, and such licenses, permits and authorizations are and will be in
full force and effect throughout the term of this Agreement. There is not now pending, or to
Licensor’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. Licensor 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 Station, which would have an adverse effect upon the Licensor, the
Station or upon Licensor’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 term of
this Agreement, will be filed in a timely and complete manner. Except as provided in Section 6
hereof, during the term of this Agreement, Licensor shall not dispose of, transfer, assign or
pledge any of licensee’s assets and properties except with the prior written consent of the
Programmer, if such action would adversely affect Licensor’s performance hereunder or the business
and operations of Licensor or the Station permitted hereby.




          1.7 Contracts. Programmer will enter into no third-party contracts, leases or
agreements which will bind Licensor in any way except with Licensor’s prior written approval, such
approval shall not be unreasonably withheld, conditioned or delayed.




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SECTION 2. OBLIGATIONS AND RIGHTS OF LICENSEE




     Programmer acknowledges and agrees and Licensor 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, Licensor and Programming agree as follows:



          2.1 Licensor’s Absolute Right to Reject Programming. Licensor shall have the absolute
right to reject any Programming, including advertising announcements or other material, which
Licensor reasonably believes to be unsatisfactory, unsuitable or contrary to the public interest
and 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”). Licensor reserves the right to refuse to broadcast any Programming
containing matter that Licensor in its sole discretion believes is, or may be determined by the FCC
or any court or other regulatory body with authority over Licensor or the Station to be, violative
of any right of any third party or indecent, obscene or profane. Licensor 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 Florida, 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.
Licensor may suspend, cancel or refuse to broadcast any portion of the Programming pursuant to this
Section 2.1 without relieving Programmer of its obligations pursuant to Section 1.6 herof.
Programmer recognizes that the Licensor has full authority to control the operation of the Station.
The parties agree that Licensor’s authority includes, but is not limited to, the right to reject
or refuse such portions of the Programmer’s Programming. Programmer shall have the right to change
the programming supplied to Licensor and shall give Licensor at least twenty-four (24) hours notice
of substantial and material changes in such programming.




          2.2 Licensor’s Right to Preempt Programming for Special Events and Public Interest
Programming. Licensor shall have the absolute right to preempt Programming in order to
broadcast a program deemed by Licensor, 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,
Licensor will use its best efforts to give Programmer reasonable advance notice of its intention to
preempt any regularly scheduled programming. Licensor may preempt the Programming under this
Section 2.2 without relieving Programmer of its obligations pursuant to Section 1.6 hereof.




          2.3 Licensor’s Public Service Programming. Licensor may broadcast public service
programming at the times set forth in Section 1.3 hereof and at such other times as the parties may
agree.




          2.4 Political Advertising, Public File, Etc. The parties acknowledge that Licensor 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. Licensor 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
Licensor 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. Licensor 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. Licensor shall maintain and staff the main studio for the Station as
required under the Communications Laws.




          2.7 Staffing Requirements. Licensor will be in full compliance with the main studio
staff requirements as specified by the FCC.




SECTION 3. OBLIGATIONS AND RIGHTS OF PROGRAMMER




     Programmer shall not take any action, or omit to take any action, inconsistent with Licensor’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 Licensor of
the nature of its Programming. Programmer will make no material changes in the Programming after
the Effective Date without the prior written consent of Licensor, 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 of this Agreement shall Programmer or its employees or agents represent, hold
out, describe or portray Programmer as the licensee of the Station.




          3.2 Cooperation with Licensor. Programmer, on behalf of Licensor, shall furnish
within the Programming all Station identification announcements required by the Communications
Laws, and shall, upon request by Licensor, 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
Licensor in the preparation of any required programming reports and (b) other information to enable
Licensor 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 Licensor all records and
information required by the FCC to be placed in the public inspection file of the Station
pertaining to the broadcast of political programming and advertisements, in accordance with the
provisions of Sections 73.1943 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. See Section 5. Programmer shall cooperate with
Licensor to ensure compliance with the Rules regarding Emergency Alert System tests and alerts.




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          3.3 Payola and Plugola. Programmer shall provide to Licensor 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 Licensor 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. Programmer agrees annually, or more frequently at the
request of the Licensor, to execute and provide Licensor with a Payola Affidavit from each of its
employees involved with the Station substantially in the form attached hereto as Attachment
III.




          3.4 Handling of Communications. Programmer shall provide Licensor with the original
or a copy of any correspondence from a member of the public relating to the Programming to enable
Licensor to comply with the requirements of the Communications Laws, including those regarding the
maintenance of the public inspection file. Licensor shall not be required to receive or handle
mail, facsimiles, emails or telephone calls in connection with the Programming unless Licensor has
agreed to do so in writing. Licensor 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.




          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. Licensor 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.




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          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. In addition to those costs
referred to in Section 1.6 hereof, to the event not already covered by Section 1.6, 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 Licensor, commercially
reasonable coverage for broadcaster’s liability insurance, worker’s compensation insurance and
commercial general liability insurance. Licensor shall be named as an additional insured on such
policies, and such policies shall not be terminable without notice to Licensor and an opportunity
to cure any default thereunder. Programmer shall deliver to Licensor on or before the Effective
Date, and thereafter upon request, current certificates establishing that such insurance is in
effect.




          3.8 Broadcast Station Programming Policy Statement. Licensor has adopted and will
enforce a Broadcast Station Programming Policy Statement (the “Policy Statement”), a copy of which
appears as Attachment II hereto and which may be amended in a reasonable manner from time
to time by Licensor upon notice to Programmer. Programmer 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 Licensor or the FCC. Programmer shall furnish or cause to be
furnished the artistic personnel and material for the programming as provided by this Agreement and
all programming 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 II 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 Programmer. If Licensor reasonably determines that a programming supplied by
Programmer 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 Programmer, suspend or cancel such
programming without liability to Programmer. Licensor will use all reasonable efforts to provide
such written notice to Programmer prior to the suspension or cancellation of such programming.




          3.9 Cooperation on Programming. Licensor shall, on a regular basis, cooperate with
Programmer to assess the issues of concern to its community and address those issues in its public
service programming. Programmer, in cooperation with Licensor, 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. Licensor will describe those issues
and the programming that is broadcast in response to those
issues and place issues/programs lists in the Station’s public inspection files as required by
FCC rules. Further, Licensor may request, and Programmer shall provide, information concerning
such of Programmer’s programming as is responsive to community issues so as to assist Licensor in
the satisfaction of its public service programming obligations.




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SECTION 4. INDEMNIFICATION




          4.1 Programmer’s Indemnification. Programmer shall indemnify and hold harmless
Licensor 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) Programmer’s breach of any
representation, warranty, covenant or agreement contained in this Agreement, or (ii) any action
taken by Programmer or its employees and agents with respect to the Station, or any failure by
Programmer or its employees and agents to take any action with respect to the Station, including,
without limitation, Damages relating to violations of the Communications Laws, libel, slander,
defamation, invasion of privacy, copyright, trademark or other claims relating to Programming
provided by Programmer and Programmer’s broadcast and brokerage of time on the Station.




          4.2 Licensor’s Indemnification. Licensor shall indemnify and hold harmless Programmer
from and against any and all claims, losses, consents, liabilities, damages, FCC forfeitures and
expenses (including reasonable legal fees and other expenses incidental thereto) of every kind,
nature and description, arising out of Licensor’s operations and broadcasts to the extent permitted
by law and any action taken by the Licensor or its employees and agents with respect to the
Station, or any failure by Licensor or its employees and agents to take any action with respect to
the Station.




          4.3 Limitation. Neither Licensor nor Programmer 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 Challenge. If this Agreement is challenged at the FCC, whether or not in
connection with the Station’s license renewal applications, counsel for the Licensor and counsel
for the Programmer shall jointly defend the Agreement and the parties’ performance thereunder
throughout all FCC proceedings at the sole expense of the Programmer. If portions of this
Agreement do not receive the approval of the FCC Staff, then the parties shall amend the Agreement
as necessary to satisfy the FCC Staff s concerns or, at Programmer’s option and expense, seek
reversal of the Staff s decision and approval from the full FCC or appeal the decision in the
appropriate federal court.




SECTION 5. ACCESS TO BROKER MATERIALS AND CORRESPONDENCE




          5.1 Political Advertising. Programmer shall cooperate with Licensor to assist
Licensor in complying with all Rules regarding political broadcasting. Licensor shall promptly
supply to Programmer, and Programmer shall promptly supply to Licensor, such information, including
all inquiries concerning the broadcast of political advertising, as may be necessary to comply with
the Rules, including the lowest unit rate, equal opportunities, reasonable access,



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political file and related requirements of federal law. Licensor, 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. In the event that Programmer fails to satisfy the political
broadcasting requirements under the Communication Laws and such failure inhibits Licensor in its
compliance with the political broadcasting requirements of the FCC, then to the extent reasonably
necessary to assure such compliance, Programmer shall release broadcast time and/or advertising
availabilities to Licensor at no cost to Licensor; provided, however, that all revenues realized by
Licensor as a result of such a release of advertising time shall be immediately paid to Programmer.




SECTION 6. RIGHT OF FIRST NEGOTIATION AND REFUSAL




          6.1 Right of First Negotiation. In the event that Licensor, or any of its assignees
intends to sell, transfer, convey or dispose, including dispositions by merger or consolidation the
assets or stock of the Station (a “Transfer”), to a third party after the date hereof,
Licensor shall notify Programmer of such intention and thereafter permit Programmer to negotiate
with Licensor in good faith for a period of at least ten (10) business days following the notice
described above (the “Negotiation Period”). During the Negotiation Period, Licensor shall
not Transfer to, or negotiate for the Transfer of the Station with, any individual, corporation,
partnership, joint venture, association, joint-stock company, trust, unincorporated organization,
or limited liability company (including any subdivision or ongoing business of any such entity)
(“Person”). Upon the expiration of the Negotiation Period, but subject to Section 6.2 below, the
Licensor shall be free to Transfer and negotiate for the Transfer of the Station for a period of
one year from the expiration of the Negotiation Period to any Person at a price and upon terms and
conditions mutually agreeable to Licensor and such Person. Such one-year period shall be extended
until the consummation of the Transfer if a binding agreement for such Transfer is entered into
during the one-year period, but the consummation of such transfer occurs after the termination of
the one-year period.




          6.2 Right of First Refusal to Match Competing Offer. In the event that Licensor or
any of its assignees receive at any time, a bona fide offer from a third party to purchase the
Station, then Programmer shall have the right of first refusal to match and/or exceed the terms of
any offer to acquire the Station by any third party prior to Licensor entering into a definitive
Transfer agreement with respect to the Station. For the purpose of this paragraph, “right of first
refusal” shall mean that prior to entering into any Transfer agreement with a third party, Licensor
shall provide Programmer with a copy of such offer, which Licensor is then prepared to accept from
such third party, and Programmer shall have the right, within ten (10) business days of such
notice, to offer to agree in writing to acquire the Station on economic terms and conditions equal
or superior to those offered to Licensor, in which event Licensor shall enter into a Transfer
agreement with Programmer on such terms and conditions. If Programmer does not offer to agree to
enter into such a Transfer agreement within a ten (10) business day period, then Licensor shall be
free to accept such offer and enter into an agreement with the third party on the such terms and
conditions.




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SECTION 7. TERMINATION AND REMEDIES UPON DEFAULT




          7.1 Termination by Licensor. In addition to other remedies available at law or
equity, this Agreement may be terminated as set forth below by Licensor by written notice to
Programmer if Licensor is not then in material default or breach hereof, upon the occurrence of any
of the following:




               (a) subject to Section 8.12, this Agreement is declared invalid or illegal in whole or
substantial part by an order or decree of an 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;




               (b) Programmer is in material breach of its obligations hereunder and has failed to cure such
breach within thirty (30) days of notice from Licensor;




               (c) after the first anniversary of the Effective Date and subject to Section 6, Licensor shall
have the option to terminate this Agreement, provided Licensor pays Programmer an early termination
fee equal to the lesser of (i) 5% of the aggregate purchase price of the Station pursuant to a
definitive Transfer agreement and (ii) $1,000,000; and




               (d) there has been a material change in the Rules, 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 amended, in a manner acceptable to Programmer
and Licensor, to remove and/or eliminate the violation.




          7.2 Termination by Programmer. In addition to other remedies available at law or
equity, this Agreement may be terminated as set forth below by Programmer by written notice to
Licensor if Programmer is not then in material default or breach hereof, upon the occurrence of any
of the following:




               (a) subject to Section 8.12, this Agreement is declared invalid or illegal in whole or
substantial part by an order or decree of an 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;




               (b) Licensor is in material breach of its obligations hereunder and has failed to cure such
breach within thirty (30) days of notice from Programmer;




               (c) within 180 days after written notice to Licensor given at any time after the first
anniversary of the Effective Date; and




               (d) there has been a material change in the Rules, 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 Programmer
and Licensor, to remove and/or eliminate the violation.




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          7.3 Force Majeure. Any failure or impairment of the Station’s facilities or any delay
or interruption in the broadcast of the Programming, or failure at any time to furnish facilities,
in whole or in part, for broadcasting, due to Acts of God, strikes, lockouts, material or labor
restrictions by any governmental authority, civil riot, floods and any other cause not reasonably
within the control of Licensor (collectively, “Force Majeure Events”), or for power reductions
necessitated for maintenance of the Station or for maintenance of other Stations located on the
tower from which the Station will be broadcasting, shall not constitute a breach of this Agreement
and Licensor will not be liable to Programmer for reimbursement or reduction of the consideration
owed to Licensor.




          7.4 Other Agreements. During the term of this Agreement, Licensor will not enter into
any other time brokerage, program provision, local management or similar agreement with any third
party.




SECTION 8. MISCELLANEOUS




          8.1 Right to Assign. Neither this Agreement nor any of the rights, interests or
obligations of Licensor hereunder shall be assigned, encumbered, hypothecated or otherwise
transferred without the prior written consent of Licensor, which may be withheld at Licensor’s
absolute discretion.




          8.2 Call Letters. Upon request of Programmer and at Programmer’s expense and subject
to the consent of the Licensor, Licensor may apply to the FCC for authority to change the call
letters of the Station (with the consent of the FCC) to such call letters that Programmer shall
reasonably designate. Licensor must coordinate with Programmer any proposed changes to the call
letters of the Station before taking any action to change such letters.




          8.3 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. 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.




          8.4 Entire Agreement. This Agreement, and the schedules and attachments 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.




          8.5 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 parties
hereto, and any such waiver shall be effective only in the specific instance and for the purpose
for which such waiver was given.




          8.6 No Waiver; Remedies Cumulative. No failure or delay on the part of Licensor 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.





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          8.7 Taxes. Licensor and Programmer 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. Programmer shall pay all taxes, if any, to which the consideration
specified in Section 1.6 herein is subject, provided that Licensor is responsible for payment of
its own income taxes.




          8.8 Certification. Licensee, by the signature of its authorized representative to this
Agreement, certifies that it maintains and it will continue to maintain ultimate control over the
station’s facilities, including specifically ultimate control over the station’s finances,
personnel and programming as provided herein. Programmer, by the signature of its authorized
representative to this Agreement, certifies that the arrangement complies with the provisions of §
73.3555 of the Commission’s Rules, 47 C.F.R. § 73.3555.




          8.9 Attorneys’ Fees. In the event of any dispute between the parties to this
Agreement, Licensor 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.




          8.10 Headings. The headings are for convenience only and will not control or affect
the meaning or construction of the provisions of this Agreement.




          8.11 Notices. All notices, demands and requests required or permitted to be given
under the provisions of this Agreement shall be (i) in writing, (ii) 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 Programmer:
	 	Mr. Raul Alarcon, Jr.
	 

	 	 	 	Spanish Broadcasting System, Inc.
	 

	 	 	 	2601 South Bayshore Drive, PHII
	 

	 	 	 	Coconut Grove, Florida 33133
	 

	 	 	 	Telephone: (305) 441-6901
	 
	 	 	 	 
	 

	 	Copy to:
	 	Melanie Montenegro, Esq.
	 

	 	 	 	Spanish Broadcasting System, Inc.
	 

	 	 	 	2601 South Bayshore Drive, PHII
	 

	 	 	 	Coconut Grove, Florida 33133
	 

	 	 	 	Telephone: (305) 441-6901






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	 	To Licensor:
	 	Mr. Raul Alarcon, Sr.
	 

	 	 	 	c/o South Broadcasting System, Inc.
	 

	 	 	 	2601 South Bayshore Drive, PHII
	 

	 	 	 	Coconut Grove, Florida 33133
	 

	 	 	 	Telephone: (305) 441-6901
	 
	 	 	 	 
	 

	 	Copy to:
	 	Barry A. Friedman, Esq.
	 

	 	 	 	Thompson Hine, LLP
	 

	 	 	 	1920 N Street, N.W.
	 

	 	 	 	Suite 800
	 

	 	 	 	Washington, D.C. 20036
	 

	 	 	 	Telephone: (202) 331-8800





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 8.11.




          8.12 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 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 Rules 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.




          8.13 Governing Law. The obligations of Licensor and Programmer are subject to
applicable federal, state and local law, rules and regulations, including, but not limited to, the
Communications. The construction and performance of the Agreement will be governed by the laws of
the State of Florida.




          8.14 Specific Performance. The parties recognize that in the event Licensor should
refuse to perform under the provisions of this Agreement, monetary damages alone will not be
adequate. In the event that Programmer is not itself in material default or breach of this
Agreement, Programmer shall therefore be entitled to obtain specific performance of all terms of
this Agreement. In the event of any action to enforce this Agreement, Licensor hereby waives the
defense that there is an adequate remedy at law. Licensor shall also have the right to obtain
specific performance of all the terms of this Agreement.




          8.15 Arbitration. Except as provided in Section 8.14, any dispute arising out of or
related to this Agreement that Licensor and Programmer are unable to resolve by themselves shall be
settled by arbitration in Florida by a panel of three arbitrators. Licensor and Programmer shall
each designate one disinterested arbitrator and the two arbitrators designated shall select the
third arbitrator. The persons selected as arbitrators need not be professional arbitrators, and
persons such as lawyers, accountants and bankers shall be acceptable. Before



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undertaking to resolve a dispute, each arbitrator shall be duly sworn faithfully and fairly to
hear and examine the matters in controversy and to make a just award according to the best of his
or her understanding. The arbitration hearing shall be conducted in accordance with the commercial
arbitration rules of the American Arbitration Association. The written decision of a majority of
the arbitrators shall be final and binding on Licensor and Programmer. The costs and expenses of
the arbitration proceeding shall be assessed between Licensor and Programmer in a manner to be
decided by a majority of the arbitrators, and the assessment shall be set forth in the decision and
award of the arbitrators. Judgment on the award, if it is not paid within thirty days, may be
entered in any court having jurisdiction over the matter. No action at law or in equity based upon
any claim arising out of or related to this Agreement shall be instituted in any court by Licensor
or Programmer against the other except: (i) an action to compel arbitration pursuant to this
Section; (ii) an action to enforce the award of the arbitration panel rendered in accordance with
this Section; or (iii) a suit for specific performance pursuant to Section 8.14.




          8.16 No Joint Venture 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.




          8.17 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.




[SIGNATURES ON PAGE IMMEDIATELY FOLLOWING]




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     IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the day and year first
above written.



	 	 	 	 	 
	LICENSOR:    	SOUTH BROADCASTING SYSTEM, INC.

 	 
	 	By:	/s/  Raúl Alarcón, Sr. 


	 
	 	 	Name:  	Raul Alarcon, Sr. 	 
	 	 	Title:  	President 	 
	 



	 	 	 	 	 
	PROGRAMMER:    	SPANISH BROADCASTING SYSTEM, INC.

 	 
	 	By:	/s/  Joseph A. García 


	 
	 	 	Name:  	Joseph A. Garcia 	 
	 	 	Title:  	Chief Financial Officer 	 
	 




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