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EXHIBIT 10.7
NATIONAL RADIO SALES
MASTER REPRESENTATION AGREEMENT
CABALLERO SPANISH MEDIA, L.L.C.
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NATIONAL RADIO SALES REPRESENTATION AGREEMENT
THIS AGREEMENT made and entered into in New York, this 3rd day of February,
1997, between Caballero Spanish Media, L.L.C. ("REPRESENTATIVE") and Spanish
Broadcasting System ("SBS").
W I T N E S S E T H :
WHEREAS, SBS owns and operates radio stations and wishes to retain
Representative as its exclusive representative for the sale of national radio
broadcast advertising time for such stations; and
WHEREAS, Representative wishes to act as such exclusive Representative;
NOW, the parties agree as follows:
1. Term. Subject to the terms and conditions of this Agreement the term shall be
effective as of December 30, 1996 and shall continue for an initial period of
seven years (the "Term"). After the sixth anniversary of the Agreement, the Term
shall continue except that either party may terminate this Agreement with
written notice to the other. Such termination shall take effect 12 months after
receipt of such written notice.
2. Exclusive Representation.
(a) Appointment. SBS appoints Representative, and Representative agrees to serve
as the exclusive national representative for the sale of radio broadcast
advertising time ("Time") for: each of the radio stations listed on Schedule A
which are all of the radio stations currently owned or operated by SBS or any of
its subsidiaries or affiliates or are pending acquisitions currently under
contract.
(b) Station Agreements. As promptly as possible after the execution of this
Agreement, each of the current Stations shall execute and deliver to
Representative a National Radio Sales Representation Agreement substantially in
the form attached as Schedule B (a "Station Contract"). SBS shall be jointly and
severally liable with each Station for such Station's obligations under its
Station Contract. If at any time an entity becomes a Station pursuant to Section
2(f), it promptly shall execute and deliver to Representative a Station
Contract.
(c) (i) Local Areas. As exclusive national representative for each Station,
Representative shall sell Time for such station to parties located anywhere
outside of the local area specified for such Station in Schedule A or in its
Station Contract (a "Local Area"). A party with locations both within and
outside of the Local Area shall, nevertheless, be considered to be outside of
the Local Area if the point of origin of its orders for the Time is outside of
the Local Area or if the invoice is to be sent to an office outside the Local
Area.
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(ii) Certain Accounts. For purposes of this Agreement concert promotions,
Fonovisa, trade (barter) accounts currently handled directly by Stations, and
advertising placed by any or another general market national or regional network
shall be excluded from National Orders. It is further agreed that all beer
accounts emanating from outside the MSA for each Station shall be included as
National Orders and Representative shall be compensated at a rate of 7.5% of net
on all beer orders.
(d) Exclusivity. During the Term, (i) except for those stations already under
contract for representations or unless waived by the President of SBS,
Representative shall not represent any other Spanish language radio station
located within the Local Area of any Station and (ii) neither SBS nor any of the
Stations shall retain or employ any third party to represent any Station in the
sale of Time to parties located outside of the Local Area for such Station. SBS
and/or each Station shall promptly advise trade publications, national
advertisers, and advertising agencies that Representative is the exclusive
national representative for such Station. It is also agreed that Representative
may also so inform such parties and, generally, may refer to its exclusive
national representation of SBS and each Station in its advertising and
promotional materials and activities. Each Station shall make references to
Representative in its listing in Standard Rate and Data Service (if customary),
on its rate cards and in all other advertising or promotional material for
Station when appropriate.
(e) Non-Circumvention. If any advertiser, individual, buying service or agency
outside of the Local Area of any Station contacts such Station or SBS, directly
or indirectly through a third party, for the purpose of buying Time on such
Station directly or through a third party, SBS or such Station shall promptly
inform Representative of such fact and shall notify the advertiser, buying
service or agency that the advertising schedule be placed through Representative
at the same rates on the same terms and conditions as are normally available
directly from such Station. Nevertheless, if any order for national Time is
actually placed other than through the Representative, the Station involved
shall pay Representative commissions on such order in accordance with Section 4.
(f) Right of First Refusal. If, during the Term, SBS acquires a controlling
interest in, or the right to operate, any other radio station or radio network,
SBS shall promptly notify Representative of such fact and Representative shall
have a right of first refusal to enter into an exclusive representation
agreement therewith. In accordance with industry practice, such representation
may require a "buyout" of existing representation.
3. Cooperation. SBS and Representative agree to cooperate with each other to the
extent necessary in order to permit each other to perform duties under this
Agreement and, in this regard, to supply the other from time to time with all
current information relating to each other's activities.
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4. Commissions.
(a) General. Each Station shall pay commissions to Representative in accordance
with this Section 4 on all Time orders obtained by Station during the Term from
parties located outside of the Local Area for such Station ("National Orders"),
whether or not obtained by or through Representative. A Station's obligation to
pay commissions shall be in effect for the full duration of any National Order,
even if such duration extends beyond the Term. For purposes of this Agreement,
National Order is defined in National Time Sales collected. See Addendum No. 1,
letter dated February 11, 1997 from Joseph Garcia to Debbie Schwartz.
(b) Commission Rates.
(i) The base commissions payable to Representative shall be at a rate of 15% of
each Station's net (that is, the Station's gross less customary agency
commissions) on all National Orders.
(ii) If, in any year, National Orders (for SBS Stations in the aggregate) exceed
the previous year's National Orders by an amount in excess of 12.5%, then
Representative will be paid commissions at a rate of 17.5% (applicable to all
National Orders scheduled to be broadcast in that year).
(iii) If, in any year, National Orders (for SBS Stations in the aggregate)
exceed the previous year's National Orders by an amount in excess of 17.5%, then
Representative will be paid commissions at a rate of 20% (applicable to all
National Orders scheduled to be broadcast in that year).
(c) Monthly Statements. Each Station shall furnish Representative, on or before
the 15th day of each month during the Term (and thereafter to the extent that
commissions are payable pursuant to the second sentence of Section 4(a)), with a
statement in reasonable detail of its gross and net on all National Orders (by
national advertisers) during the immediately preceding month.
(d) Payments. During the Term (and thereafter to the extent that commissions are
payable pursuant to the second sentence to Section 4(a)), each Station shall,
within twenty (20) days of the end of each calendar month, pay to the
Representative all commissions owed by it to Representative for that month. SBS
shall be jointly and severally liable with each Station for the commissions
payable to Representative by such Station.
(e) No Liability; Payment Forwarding; Offset. It is understood that the
Representative shall be acting strictly as an agent, and not as a principal or
guarantor, under this Agreement. Accordingly, Representative shall have no
liability to SBS or any Station for any payments or other obligation due any
advertiser, advertising agency, media buyer or other party, including, without
limitation, any with respect to any unwired network orders. If Representative
receives from any party payment for any Station's broadcasts, Representative
shall forward payment to the Station, provided, however, that if any amounts
payable to Representative pursuant to this Section 4 are then past due,
Representative shall have the right to withhold payment to Station of
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any such payment received, including any unwired network monies, to the extent
of the amounts then owed Representative, and to apply such amounts to the
payment of the commissions owed Representative.
5. Prior Representatives. SBS shall indemnify, defend and hold harmless
Representative and its officers, directors, employees, agents and shareholders
from and against any loss, liability, cost or expense, including, without
limitation, reasonable attorneys' fees and disbursements, which any of them may
suffer or incur in connection with any claim, action, suit or proceeding brought
by any prior representative or other third party which provided any services to
SBS or any Station comparable to those to be performed by Representative
hereunder (a "prior representative") arising from the (i) termination or breach
of any contract or understanding between SBS or any Station and any such prior
representative or (ii) the execution or performance of this Agreement.
6. Certain Remedies of Representatives.
(a) Transfer of a Station. If SBS or any Station sells all or substantially all
of the assets or business of any Station or, through the sale of securities,
merger or any other transaction, transfers the ownership or control of any
Station to any party (a "transferee") other than SBS or one of its controlled
subsidiaries:
(i) The transferee shall execute and deliver to Representative a written
instrument satisfactory to Representative by which the transferee shall assume
all of the obligations of SBS and such Station under this Agreement with respect
to the such Station or
(ii) SBS and/or such Station shall pay to Representative an amount equal to (A)
the average monthly commissions earned by Representative hereunder during the 12
complete broadcast calendar months preceding such transfer (or if Representative
has not yet represented such Station for a full 12 broadcast calendar month,
applicable prior national gross billing shall be used to derive average monthly
commissions) multiplied by (B) the number of broadcast calendar months then
remaining in the Term and any applicable notice period, plus two months. On
receipt by Representative of such payment, this Agreement shall terminate and be
of no further force or effect with respect to such Station.
(b) Liquidated Damages for Breach. The parties agree that the Representative's
agreement to provide the representation services contemplated by this Agreement
shall involve a commitment of its resources that will not be economically
feasible should SBS or any of the Stations fail to perform their obligations
under this Agreement. The parties also agree that any such failure by SBS or any
Station would cause damages to Representative that would be difficult to
determine accurately. Therefore, with the intention of providing a fair and
reasonable formula to calculate such damages in an amount which would not be
disproportionate to the presumed loss, it is agreed that, if SBS or any Station
breaches this Agreement, SBS and such Station shall pay to Representative as
liquidated damages, and not as a penalty, an amount equal to (A) the average
monthly commissions earned by Representative hereunder during the 12 complete
broadcast
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calendar months preceding such breach (or if Representative has not yet
represented such Station for a full 12 broadcast calendar months, applicable
prior national gross billing shall be used to derive average monthly
commissions), multiplied by (B) the number of calendar months then remaining in
the Term and any applicable notice period, plus two months. On receipt by
Representative of such payment, this Agreement shall terminate and be of no
further force or effect.
(c) Payment of Accrued Commissions and Costs. The termination of this Agreement
for any reason shall not affect the obligation of SBS and the Stations or
Representative to pay all commissions or monies owed or accrued through the date
of termination in accordance with the payment terms set forth in this Agreement.
If any party is required to take any steps, including, without limitation, the
institution of any action, suit or proceeding, to collect any amounts owed to it
under this Agreement, the prevailing party shall be entitled to costs and
expenses, including, without limitation, reasonable attorneys' fees and
disbursements, incurred in connection with such steps.
7. Arbitration.
(a) General. Any controversy or claim between SBS and Representative arising out
of or relating to this Agreement shall be finally resolved by arbitration in
accordance with the Commercial Arbitration Rules of the American Arbitration
Association in New York, New York. The parties further agree that (i) the
arbitrators shall be empowered to include arbitration costs and attorney fees in
the award to the prevailing party in such proceedings and (ii) the award in such
proceedings shall be final and binding on the parties. The arbitrators shall
apply the law of the State of New York, exclusive of conflicts of laws
principles, to any dispute. Judgment on the arbitrators' award may be entered in
any court having the requisite jurisdiction. Nothing in this Agreement shall
require the arbitration of disputes between the parties that arise from actions,
suits or proceedings instituted by third parties.
(b) Consent to Jurisdiction; Service of Process. Each party irrevocably submits
to the jurisdictions and venues of the arbitration described in section 9(a) and
to the jurisdiction and venue of federal and state courts sitting in New York,
New York, for the enforcement of any judgment on the arbitrators' award and
waives any objection it may have with respect to the jurisdiction of such
arbitration or courts or the inconvenience of such forums or venues.
Representative appoints Messrs. Christy & Viener, 620 Fifth Avenue, New York,
New York 10020, U.S.A., Attention: Laurence S. Markowitz, Esq. and SBS appoints
Kaye, Scholer, Fierman, Hays & Handler, LLP, 425 Park Avenue, New York, New York
10022, Attention: , Esq. as their respective attorney-in-fact and
authorized agents solely to receive on their behalf, service of any demands for,
or any notice with respect to, arbitration hereunder or any service of process.
Service on either of such attorneys-in-fact may be made by registered or
certified mail or by personal delivery, in any case return receipt requested,
and shall be effective as service on Representative and SBS, as the case may be.
Nothing herein shall be deemed to affect any right to service any such demand,
notice or process in any other manner permitted under applicable law.
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8. Miscellaneous.
(a) Entire Agreement; Amendments; No Waivers. This Agreement, together with
Schedules A and B and each Station Contract, sets forth the entire understanding
of the parties with respect to its subject matter and merges and supersedes all
prior and contemporaneous understandings of the parties with respect to its
subject matter. No provision of this Agreement may be waived or modified, in
whole or in part, except by a writing signed by each of the parties. Failure of
any party to enforce any provision of this Agreement shall not be construed as a
waiver of its rights under such or any other provision. No waiver of any
provision of this Agreement in any instance shall be deemed to be a waiver of
the same or any other provision in any other instance.
(b) Communications. All notices, consents and other communications given under
this Agreement shall be in writing and shall be deemed to have been duly given
(a) when delivered by hand or by Federal Express or a similar overnight courier
to, (b) five days after being deposited in any United States Post Office
enclosed in a postage paid, registered or certified mail envelope addressed to,
or (c) when successfully transmitted by facsimile (with a confirming copy of
such communication to be sent as provided in (a) or (b) above) to, the party for
whom intended, at the address or facsimile number for such party set forth
below, or to such other address or facsimile as may be furnished by such party
by notice in the manner provided herein; provided, however, that any notice of
change of address or facsimile number shall be effective only upon receipt.
If to Representative:
Caballero Spanish Media, L.L.C.
261 Madison Avenue
New York, New York 10016
Attention: Eduardo Caballero, Chairman
Telecopier Number: (212) 697-5934
If to SBS:
Spanish Broadcasting System
26 West 56th Street
New York, New York 10019
Attention: Raul Alarcon, President
Telecopier Number: (212) 541-6904
(c) Successors and Assigns. This Agreement shall be binding on, enforceable
against and inure to the benefit of, the parties and their respective successors
and assigns and nothing herein is intended to confer any right, remedy or
benefit upon any other person.
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(d) Governing Law. This Agreement shall in all respects be governed by and
construed in accordance with the laws of the State of New York. Applicable to
agreements made and fully to be performed in such state, without giving effect
to conflicts of law principles.
(e) Severability. If any provision of this Agreement is held to be invalid or
unenforceable by any court or tribunal of competent jurisdiction, the remainder
of this Agreement shall be affected thereby, and such provision shall be carried
out as nearly as possible according to its original terms and intent to
eliminate such invalidity or unenforceability.
(f) Non-Agency. For all purposes of this Agreement, each party shall be an
independent contractor, and not an agent, partner, or joint venturer of the
other.
(g) Counterparts. This Agreement may be executed in multiple counterparts, each
of which shall be deemed an original, but all of which together shall constitute
one and of the same instrument.
(h) Construction. Headings used in this Agreement are for convenience only and
shall not be used in the interpretation of this Agreement. References to
Sections and Schedules are to sections and schedules of this Agreement. As used
herein, the singular includes the plural and the masculine, feminine and neuter
gender each includes the others where the context so indicates.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first set forth above.
SPANISH BROADCASTING SYSTEM
By: /s/ Raul Alarcon, Jr.
Its: President and Chief Executive Officer
CABALLERO SPANISH MEDIA, L.L.C.
By: /s/ Ralph Gold
Its:
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SCHEDULE A
SBS Stations:
CALL LETTERS MARKET
WPAT-FM New York, NY
WSKQ-FM New York, NY
WXLX-AM New York, NY
KLAX-FM Los Angeles, CA
KXMG-FM Los Angeles, CA
WCMQ-AM Miami, FL
WCMQ-FM Miami, FL
WSKP-FM Key West, FL
WZMQ-FM Key Largo, FL
Additional Pending Stations which have no national representative:
WYSY-FM Chicago, IL
WRMA-FM Miami, FL
WXDJ-FM Miami, FL
The Local Area for each Station shall be its Metropolitan Survey Area ("MSA" or
"Metro") as defined by Arbitron.
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SCHEDULE B
NATIONAL RADIO SALES REPRESENTATION AGREEMENT
THIS AGREEMENT made and entered into in New York, this ___ day of _______, 1997,
between Caballero Spanish Media, L.L.C. ("REPRESENTATIVE") and Spanish
Broadcasting System, Inc. ("SBS"), owner, licensee and operator of radio station
_________ ("Station").
W I T N E S S E T H :
WHEREAS, SBS owns and operates radio stations (collectively, the "Station
Group") and wishes to retain Representative as its exclusive representative for
the sale of national radio broadcast advertising time for such Station Group;
and
WHEREAS, Representative wishes to act as such exclusive Representative;
NOW, the parties agree as follows:
1. Term. Subject to the terms and conditions of this Agreement the term shall be
effective as of December 30, 1996 and shall continue for an initial period of
seven years (the "Term"). After the sixth anniversary of the Agreement, the Term
shall continue except that either party may terminate this Agreement with
written notice to the other. Such termination shall take effect 12 months after
receipt of such written notice.
2. Exclusive Representation.
(a) Appointment. SBS appoints Representative, and Representative agrees to serve
as the exclusive national representative for the sale of radio broadcast
advertising time ("Time") for Station.
(b) (i) Local Areas. As exclusive national representative for Station,
Representative shall sell Time for Station to parties located anywhere outside
of the Metropolitan Survey Area ("MSA" or "Metro") as defined by Arbitron of
Station (the "Local Area"). A party with locations both within and outside of
the Local Area shall, nevertheless, be considered to be outside of the Local
Area if the point of origin of its orders for the Time is outside of the Local
Area or if the invoice is to be sent to an office outside the Local Area.
(ii) Certain Accounts. For purposes of this Agreement concert promotions,
Fonovisa, trade (barter) accounts currently handled directly by Stations, and
advertising placed by any or another general market national or regional network
shall be excluded from National Orders. It is further agreed that all beer
accounts emanating from outside the MSA for each Station shall be included
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as National Orders and Representative shall be compensated at a rate of 7.5% of
net on all beer orders.
(c) Exclusivity. During the Term, (i) except for those stations already under
contract for representations or unless waived by the President of SBS,
Representative shall not represent any other Spanish language radio station
located within the Local Area of any Station and (ii) Station shall not retain
or employ any third party to represent Station in the sale of Time to parties
located outside of the Local Area for such Station. Station shall promptly
advise trade publications, national advertisers, and advertising agencies that
Representative is the exclusive national representative for such Station. It is
also agreed that Representative may also so inform such parties and, generally,
may refer to its exclusive national representation of Station in its advertising
and promotional materials and activities. Station shall make references to
Representative in its listing in Standard Rate and Data Service (if customary),
on its rate cards and in all other advertising or promotional material for
Station when appropriate.
(d) Non-Circumvention. If any advertiser, individual, buying service or agency
outside of the Local Area of Station contacts Station, directly or indirectly
through a third party, for the purpose of buying Time on Station directly or
through a third party, SBS or Station shall promptly inform Representative of
such fact and shall notify the advertiser, buying service or agency that the
advertising schedule be placed through Representative at the same rates on the
same terms and conditions as are normally available directly from Station.
Nevertheless, if any order for national Time is actually placed other than
through the Representative, Station shall pay Representative commissions on such
order in accordance with Section 4.
(e) Right of First Refusal. If, during the Term, Station acquires a controlling
interest in, or the right to operate, any other radio station or radio network,
Station shall promptly notify Representative of such fact and Representative
shall have a right of first refusal to enter into an exclusive representation
agreement therewith. In accordance with industry practice, such representation
may require a "buyout" of existing representation.
3. Cooperation. Station and Representative agree to cooperate with each other to
the extent necessary in order to permit each other to perform duties under this
Agreement and, in this regard, to supply the other from time to time with all
current information relating to each other's activities.
4. Commissions.
(a) General. Station shall pay commissions to Representative in accordance with
this Section 4 on all Time orders obtained by Station during the Term from
parties located outside of the Local Area for such Station ("National Orders"),
whether or not obtained by or through Representative. A Station's obligation to
pay commissions shall be in effect for the full duration of any National Order,
even if such duration extends beyond the Term. For purposes of this Agreement,
National Order is defined in National Time Sales collected. See Addendum No. 1
letter dated February 11, 1997 from Joseph Garcia to Debbie Schwartz.
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(b) Commission Rates.
(i) The base commissions payable to Representative shall be at a rate of 15% of
Station's net (that is, the Station's gross less customary agency commissions)
on all National Orders.
(ii) If, in any year, National Orders collectively for the Station Group exceed
the previous year's National Orders by an amount in excess of 12.5%, then
Representative will be paid commissions at a rate of 17.5% (applicable to all
National Orders scheduled to be broadcast in that year).
(iii) If, in any year, National Orders collectively for the Station Group exceed
the previous year's National Orders by an amount in excess of 17.5%, then
Representative will be paid commissions at a rate of 20% (applicable to all
National Orders scheduled to be broadcast in that year).
(c) Monthly Statements. Station shall furnish Representative, on or before the
15th day of each month during the Term (and thereafter to the extent that
commissions are payable pursuant to the second sentence of Section 4(a)), with a
statement in reasonable detail of its gross and net on all National Orders (by
national advertisers) during the immediately preceding month.
(d) Payments. During the Term (and thereafter to the extent that commissions are
payable pursuant to the second sentence to Section 4(a)), Station shall, within
twenty (20) days of the end of each calendar month, pay to the Representative
all commissions owed by it to Representative for that month. SBS shall be
jointly and severally liable with Station for the commissions payable to
Representative by such Station.
(e) No Liability; Payment Forwarding; Offset. It is understood that the
Representative shall be acting strictly as an agent, and not as a principal or
guarantor, under this Agreement. Accordingly, Representative shall have no
liability to SBS or any Station for any payments or other obligation due any
advertiser, advertising agency, media buyer or other party, including, without
limitation, any with respect to any unwired network orders. If Representative
receives from any party payment for any Station's broadcasts, Representative
shall forward payment to the Station, provided, however, that if any amounts
payable to Representative pursuant to this Section 4 are then past due,
Representative shall have the right to withhold payment to Station of any such
payment received, including any unwired network monies, to the extent of the
amounts then owed Representative, and to apply such amounts to the payment of
the commissions owed Representative.
5. Prior Representatives. Station shall indemnify, defend and hold harmless
Representative and its officers, directors, employees, agents and shareholders
from and against any loss, liability, cost or expense, including, without
limitation, reasonable attorneys' fees and disbursements, which any of them may
suffer or incur in connection with any claim, action, suit or proceeding brought
by any prior representative or other third party which provided any services to
SBS or any Station comparable to those to be performed by Representative
hereunder (a "prior representative") arising from the (i) termination or breach
of any contract or understanding
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between Station and any such prior representative or (ii) the execution or
performance of this Agreement.
6. Certain Remedies of Representatives.
(a) Transfer of a Station. If Station sells all or substantially all of the
assets or business, through the sale of securities, merger or any other
transaction, transfers the ownership or control of any Station to any party (a
"transferee") other than SBS or one of its controlled subsidiaries:
(i) The transferee shall execute and deliver to Representative a written
instrument satisfactory to Representative by which the transferee shall assume
all of the obligations of SBS and such Station under this Agreement with respect
to the such Station or
(ii) Station shall pay to Representative an amount equal to (A) the average
monthly commissions earned by Representative hereunder during the 12 complete
broadcast calendar months preceding such transfer (or if Representative has not
yet represented such Station for a full 12 broadcast calendar month, applicable
prior national gross billing shall be used to derive average monthly
commissions) multiplied by (B) the number of broadcast calendar months then
remaining in the Term and any applicable notice period, plus two months. On
receipt by Representative of such payment, this Agreement shall terminate and be
of no further force or effect with respect to such Station.
(b) Liquidated Damages for Breach. The parties agree that the Representative's
agreement to provide the representation services contemplated by this Agreement
shall involve a commitment of its resources that will not be economically
feasible should Station fail to perform their obligations under this Agreement.
The parties also agree that any such failure by Station would cause damages to
Representative that would be difficult to determine accurately. Therefore, with
the intention of providing a fair and reasonable formula to calculate such
damages in an amount which would not be disproportionate to the presumed loss,
it is agreed that, if Station breaches this Agreement, Station shall pay to
Representative as liquidated damages, and not as a penalty, an amount equal to
(A) the average monthly commissions earned by Representative hereunder during
the 12 complete broadcast calendar months preceding such breach (or if
Representative has not yet represented such Station for a full 12 broadcast
calendar months, applicable prior national gross billing shall be used to derive
average monthly commissions), multiplied by (B) the number of calendar months
then remaining in the Term and any applicable notice period, plus two months. On
receipt by Representative of such payment, this Agreement shall terminate and be
of no further force or effect.
(c) Payment of Accrued Commissions and Costs. The termination of this Agreement
for any reason shall not affect the obligation of Station or Representative to
pay all commissions or monies owed or accrued through the date of termination in
accordance with the payment terms set forth in this Agreement. If any party is
required to take any steps, including, without limitation, the institution of
any action, suit or proceeding, to collect any amounts owed to it under this
Agreement, the prevailing party shall be entitled to costs and expenses,
including,
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without limitation, reasonable attorneys' fees and disbursements, incurred in
connection with such steps.
7. Arbitration.
(a) General. Any controversy or claim between Station and Representative arising
out of or relating to this Agreement shall be finally resolved by arbitration in
accordance with the Commercial Arbitration Rules of the American Arbitration
Association in New York, New York. The parties further agree that (i) the
arbitrators shall be empowered to include arbitration costs and attorney fees in
the award to the prevailing party in such proceedings and (ii) the award in such
proceedings shall be final and binding on the parties. The arbitrators shall
apply the law of the State of New York, exclusive of conflicts of laws
principles, to any dispute. Judgment on the arbitrators' award may be entered in
any court having the requisite jurisdiction. Nothing in this Agreement shall
require the arbitration of disputes between the parties that arise from actions,
suits or proceedings instituted by third parties.
(b) Consent to Jurisdiction; Service of Process. Each party irrevocably submits
to the jurisdictions and venues of the arbitration described in section 9(a) and
to the jurisdiction and venue of federal and state courts sitting in New York,
New York, for the enforcement of any judgment on the arbitrators' award and
waives any objection it may have with respect to the jurisdiction of such
arbitration or courts or the inconvenience of such forums or venues.
Representative appoints Messrs. Christy & Viener, 620 Fifth Avenue, New York,
New York 10020, U.S.A., Attention: Laurence S. Markowitz, Esq. and SBS appoints
as their respective attorney-in-fact and authorized
agents solely to receive on their behalf, service of any demands for, or any
notice with respect to, arbitration hereunder or any service of process. Service
on either of such attorneys-in-fact may be made by registered or certified mail
or by personal delivery, in any case return receipt requested, and shall be
effective as service on Representative and SBS, as the case may be. Nothing
herein shall be deemed to affect any right to service any such demand, notice or
process in any other manner permitted under applicable law.
8. Miscellaneous.
(a) Entire Agreement; Amendments; No Waivers. This Agreement, together with
Schedules A and B and each Station Contract, sets forth the entire understanding
of the parties with respect to its subject matter and merges and supersedes all
prior and contemporaneous understandings of the parties with respect to its
subject matter. No provision of this Agreement may be waived or modified, in
whole or in part, except by a writing signed by each of the parties. Failure of
any party to enforce any provision of this Agreement shall not be construed as a
waiver of its rights under such or any other provision. No waiver of any
provision of this Agreement in any instance shall be deemed to be a waiver of
the same or any other provision in any other instance.
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(b) Communications. All notices, consents and other communications given under
this Agreement shall be in writing and shall be deemed to have been duly given
(a) when delivered by hand or by Federal Express or a similar overnight courier
to, (b) five days after being deposited in any United States Post Office
enclosed in a postage paid, registered or certified mail envelope addressed to,
or (c) when successfully transmitted by facsimile (with a confirming copy of
such communication to be sent as provided in (a) or (b) above) to, the party for
whom intended, at the address or facsimile number for such party set forth
below, or to such other address or facsimile as may be furnished by such party
by notice in the manner provided herein; provided, however, that any notice of
change of address or facsimile number shall be effective only upon receipt.
If to Representative:
Caballero Spanish Media, L.L.C.
261 Madison Avenue
New York, New York 10016
Attention: Eduardo Caballero, Chairman
Telecopier Number: (212) 697-5934
If to Station:
Spanish Broadcasting System
26 West 56th Street
New York, New York 10019
Attention: Raul Alarcon, President
Telecopier Number: (212) 541-6904
(c) Successors and Assigns. This Agreement shall be binding on, enforceable
against and inure to the benefit of, the parties and their respective successors
and assigns and nothing herein is intended to confer any right, remedy or
benefit upon any other person.
(d) Governing Law. This Agreement shall in all respects be governed by and
construed in accordance with the laws of the State of New York. Applicable to
agreements made and fully to be performed in such state, without giving effect
to conflicts of law principles.
(e) Severability. If any provision of this Agreement is held to be invalid or
unenforceable by any court or tribunal of competent jurisdiction, the remainder
of this Agreement shall be affected thereby, and such provision shall be carried
out as nearly as possible according to its original terms and intent to
eliminate such invalidity or unenforceability.
(f) Non-Agency. For all purposes of this Agreement, each party shall be an
independent contractor, and not an agent, partner, or joint venturer of the
other.
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(g) Counterparts. This Agreement may be executed in multiple counterparts, each
of which shall be deemed an original, but all of which together shall constitute
one and of the same instrument.
(h) Construction. Headings used in this Agreement are for convenience only and
shall not be used in the interpretation of this Agreement. References to
Sections and Schedules are to sections and schedules of this Agreement. As used
herein, the singular includes the plural and the masculine, feminine and neuter
gender each includes the others where the context so indicates.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first set forth above.
SPANISH BROADCASTING SYSTEM
By:
Its:
CABALLERO SPANISH MEDIA, L.L.C.
By:
Its:
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17
SPANISH BROADCASTING SYSTEM
CORPORATE HEADQUARTERS
26 WEST 56TH STREET
NEW YORK, NEW YORK 10019
212/541-9200
TELEFAX 212/541-9236
February 11, 1997
Via Fax: 212-936-0750
Ms. Debbie Schwartz
Vice President/Treasurer
Interep
100 Park Avenue, 5th Floor
New York, NY 10017
Dear Ms. Schwartz:
In anticipation of our conference call, I am sending you an outline describing
the reporting procedures which I feel will meet our mutual needs.
The reporting system is designed around a tracking number which is your order
number. This order number will appear on all documentation that is sent to you
from our stations for every sales order received.
Interep/Caballero will receive on a monthly basis:
1. Copy of orders as they are generated and sent to customers by station. (Item
A)
2. Copy of invoice sent to customer by station. This is due on the 10th of the
month following the broadcast month. (Item B)
3. Monthly recap by station of orders ran and invoiced by rep order number,
invoice number, net billing, agency, product, and accrued commissions due
Interep/Caballero. This is due on the 10th of the month following the broadcast
month. (Item C).
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4. Monthly recap on collections received by rep order number, invoice number,
invoice amount, payment received, commissions due, plus check for the total of
this report. This is due on the 10th of the month following the broadcast month.
(Item D). National aging by station will accompany this report.
5. Discrepancy report (if any) by order number, invoice number, invoice amount,
amount received and reason for difference. (Item E)
6. (Optional) Bottle of Dom Perignon to be sent to Raul Alarcon at year end upon
meeting sales goals. SBS will reciprocate.
This letter will serve as addendum number one to the Master Representation
Agreement dated February 3, 1997 between Caballero Spanish Media, L.L.C. and
Spanish Broadcasting System, Inc. and referred to on page 4 of said agreement
and will apply individual station agreements as well. For the purposes of this
agreement national orders means national sales collected.
Thank You Very Much,
Joseph A. Garcia
Agreed To By:
Caballero Spanish Media, L.L.C.
cc: Raul Alarcon
Carroll Larkin
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