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EXHIBIT 10.5
RADIO NETWORK AFFILIATION AGREEMENT
THIS RADIO NETWORK AFFILIATION AGREEMENT (this "Agreement") is made as
of April 5, 2001 between Clear Channel Broadcasting, Inc. ("Clear Channel") and
SBS of San Francisco, Inc. ("SBS"), the Federal Communications Commission
("FCC") licensee of radio station KXJO-FM, Alameda, California ("KXJO").
Recitals
Clear Channel provides to affiliated stations a radio network
programming service (the "Rock Network") consisting of rock music programming
targeted to 18 to 49 year old adults, including top-rated personalities,
national and locally researched music, national contesting, marketing and
benchmark programming features. KXJO is desirous of airing Rock Network
programming and wishes to affiliate with the Rock Network on the terms and
conditions set forth herein.
Agreement
NOW, THEREFORE, taking the foregoing recitals into account, and in
consideration of the mutual covenants and agreements contained herein and for
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties, intending to be legally bound, agree as
follows:
1. NETWORK AFFILIATION AND BROADCAST OF ROCK NETWORK PROGRAMS
A. Clear Channel will offer the Rock Network programming feed
for broadcast by KXJO. Clear Channel will have the right to authorize any other
radio broadcast station to air Rock Network programming, regardless of the
community to which such station is licensed by the FCC.
B. Except as provided in I.C and I.D below, KXJO agrees to
broadcast in its entirety all Rock Network programming which it chooses to
broadcast, including, but not limited to, the network commercials, network
identifications, program promotional material and credit announcements therein
(the "Network Programs"), and except for the inclusion of local announcements
or programming in periods designated in Schedule A attached hereto as available
for such material, KXJO agrees to broadcast such Network Programs without
interruption, deletion, or addition of any kind. Clear Channel may at any time,
upon prior written notice to KXJO, substitute for any scheduled Network Program
another Network Program. Nothing contained in this agreement shall be construed
to prevent or hinder Clear Channel, upon notice to KXJO as soon as practicable,
from cancelling any Network Program(s) or adding any Network Program(s)
reasonably acceptable to KXJO.
C. KXJO will carry every network commercial in the time periods
designated in Schedule A attached hereto, even if it does not otherwise accept
the Network Program(s) in
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those time periods, unless KXJO reasonably believes such commercial to be
unsuitable for broadcast in the station's community. Such commercials shall be
carried at a time or times mutually agreeable to KXJO and Clear Channel.
D. With respect to Network Programs, nothing herein contained shall
be construed to prevent or hinder KXJO from (a) rejecting or refusing a Network
Program(s) which KXJO reasonably believes to be unsuitable for broadcast, or
(b) substituting a program which, in KXJO's opinion, is of greater local or
national importance. KXJO shall give Clear Channel prompt written notification
of any such refusal, rejection or substitution.
E. The Rock Network may from time to time distribute Network Programs
that are sustaining or local spot carrier programs. Such programs may not be
interrupted for commercial announcements unless Clear Channel has designated
periods of time available for local sale. KXJO agrees to abide by any
restrictions Clear Channel has specified with respect to such local
availabilities.
F. KXJO agrees that no Network Program fed to it by the Rock Network
will be broadcast on a delayed basis without Clear Channel's prior approval.
G. Rock Network Programs will be delivered to KXJO via TI line. Clear
Channel shall bear all costs of delivering the Rock Network feed to KXJO's
studio, including but, not limited to, the cost of any receiving equipment and
maintenance thereof.
H. Clear Channel will provide traffic and continuity services to
KXJO in connection with Rock Network programming at no cost to KXJO. Clear
Channel will not engage in any sales or billing activities with respect to
advertising sold locally by KXJO.
II. STATION COMPENSATION
Clear Channel agrees to pay SBS compensation in accordance with the
provisions set forth in Schedule A attached hereto and made a part hereof.
III. GENERAL
A. KXJO will submit reports in writing on forms provided by Clear
Channel not later than the deadline date specified on such forms, or ten (10)
days after receipt of such forms, whichever is earlier. These reports will
cover Network Programs and commercials broadcast by KXJO as Clear Channel may
reasonably request, including, but not limited to, declarations of clearance
and affidavits of performance.
B. KXJO is responsible for the strict accuracy of its declarations of
clearance and affidavits of performance. If a Radar (or other monitoring
service) audit determines that a program or commercial was not broadcast at the
time indicated in a KXJO declaration of clearance or affidavit of performance,
and such discrepancy is substantial, Clear Channel shall
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be entitled to deduct such amount from compensation payments due KXJO as will
make Clear Channel whole for the program(s) or commercial(s) not broadcast.
C. Subject to the provisions of Schedule A to this agreement,
neither KXJO nor Clear Channel shall incur any liability hereunder because of
Clear Channel's failure to deliver, or KXJO's failure to broadcast, any or all
Network Programs due to:
a) failure of facilities;
b) labor disputes, or
c) causes beyond the control of the party so failing to
broadcast or deliver.
D. All questions or discrepancies regarding compensation must be
presented to Clear Channel in writing within six (6) months of the period in
question or within six (6) months of the receipt of payment for the broadcast
month in question, whichever is greater. Otherwise, all payments and/or
penalties shall be deemed accepted and corrected by SBS.
E. In the event that KXJO at any time files an application to
change its community of license, transmitter location, power, frequency or
hours of operation, or makes a change in program format (other than as a result
of KXJO's affiliation with the Rock Network pursuant to this Agreement), KXJO
agrees to notify Clear Channel, in writing, within forty-eight (48) hours of
such filing or format change. If Clear Channel determines in its sole
discretion, reasonably exercised, that any such change will have a materially
adverse effect on the value of this Agreement to Clear Channel, Clear Channel
shall have the right at any time from the date of such notice until six (6)
months thereafter to terminate this Agreement effective upon two (2) weeks'
prior written notice.
F. KXJO agrees not to authorize, cause, permit or enable anything
to be done, including, but not limited to, cablecasting or internet streaming,
whereby any Rock Network programming supplied to KXJO is used for any purpose
other than broadcasting by KXJO in its over-the-air service area, which
broadcast is intended for reception by the general public in places to which no
admission is charged, without Clear Channel's prior written consent. KXJO
further agrees not to authorize, cause or permit anything to be done whereby any
Rock Network programming supplied to KXJO is rebroadcast over a translator
outside KXJO's over-the-air service area without Clear Channel's prior written
consent.
G. Except for Network Programs which are fed to KXJO with the
express understanding that they may be taped for subsequent broadcast, KXJO
agrees not to authorize, cause or permit anything to be done whereby a tape
(other than a logger tape) is made or a recording is broadcast, of a program
which has been or is being distributed on the Rock Network.
H. KXJO agrees to maintain such licenses, including performing
rights licenses as now are or hereafter may be in general use by radio
broadcasting stations, as are necessary for KXJO to broadcast the Rock Network
radio programs furnished hereunder.
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I. Neither party may assign this Agreement without the prior
written consent of the other party, such consent not to be unreasonably
withheld. Notwithstanding the preceding sentence, either party may assign this
Agreement without the consent of the other party to an entity controlling,
controlled by, or under common control with, the assigning party. SBS further
agrees that if any application is made to the FCC for any assignment or
transfer of control of KXJO's license, or any interest therein, it will notify
Clear Channel in writing immediately. If Clear Channel consents to the
assignment of this Agreement to the proposed assignee or transferee following
such notice, SBS will procure and deliver to Clear Channel, in form
satisfactory to Clear Channel, the agreement of the proposed assignee or
transferee that, upon consummation of the assignment or transfer of control of
KXJO's license, the assignee or transferee will assume and perform this
Agreement in its entirety without limitation of any kind.
J. In the event KXJO ceases operation for any reason, SBS will
notify Clear Channel immediately. If KXJO ceases operation for a continuous
period of thirty (30) days, Clear Channel shall have the right, if it so
desires, to terminate this Agreement upon forty-eight (48) hours written notice.
K. No inducements, representations or warranties except as
specifically set forth herein have been made by any of the parties to this
Agreement. This Agreement, including Schedule A attached hereto, constitutes the
entire contract between the parties hereto and supersedes any and all prior
affiliation agreements, broadcasting commitments, or any other understandings
between KXJO and the Rock Network of whatever nature. No provision of this
Agreement shall be changed or modified, nor shall this Agreement be discharged
in whole or in part, except by an agreement in writing, signed by the party
against whom the change, modification or discharge is claimed or sought to be
enforced, nor shall any waiver of any of the conditions or provisions of this
Agreement be effective and binding unless such waiver shall be in writing and
signed by the party against whom the waiver is asserted; and no waiver of any
provision of this Agreement shall be deemed to be a waiver of any preceding or
succeeding breach of the same or of any other provision.
L. This Agreement shall be governed by and construed in
accordance with the laws of the State of Texas.
M. All notices hereunder may be given by hand delivery,
facsimile or regular mail, and shall be deemed given as of the date of hand
delivery, the date of confirmed facsimile delivery or three days after deposit
in the United States mail, at the respective addresses of KXJO and Clear
Channel as set forth below:
If to KXJO:
Spanish Broadcasting Systems, Inc.
0000 X. Xxxxxxxx Xxxxx, Xxxxxxxxx XX
Xxxxxxx Xxxxx, XX 00000
Attn.: Xxxxxx Xxxxxx, CFO
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If to Clear Channel:
Clear Channel Broadcasting, Inc.
00 Xxxx XxxxxXxxxxx Xxxxxxxxx
00xx Xxxxx
Xxxxxxxxx, Xxxxxxxx 00000
Attention: Xxxxx Xxxxxxxx, President
Telecopier No.: 000-000-0000
IV. TERM
The initial term of this Agreement shall be from April 9, 2001 (the
"Commencement Date") to and including April 8, 2003. This Agreement shall be
automatically renewed on the same terms and conditions (subject to Schedule A
attached hereto) for one (1) additional term of one (1) year, unless either
party shall give the other party written notice not less than ninety (90) days
prior to the expiration of the initial term that it elects not to have the
agreement renewed. Notwithstanding the foregoing provisions of this Section IV,
this Agreement may be terminated by either party upon thirty (30) days' prior
written notice to the other party.
[SIGNATURE PAGE FOLLOWS]
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SIGNATURE PAGE TO RADIO NETWORK AFFILIATION AGREEMENT
IN WITNESS WHEREOF, the parties have duly executed this Agreement as of
the date first above written.
SBS: SBS OF SAN FRANCISCO, INC.
By: /s/ Xxxxxx X. Xxxxxx
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Name: Xxxxxx Xxxxxx
Title: Vice President - CEO
CLEAR CHANNEL: CLEAR CHANNEL BROADCASTING, INC.
By: /s/ Xxxxx X. Xxxxx
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Name: Xxxxx X. Xxxxx
Title: Regional Senior Vice President
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SCHEDULE A
Compensation
During the first year of the term of this Agreement, the base monthly
network compensation payable by Clear Channel to KXJO shall be $100,000 (the
"Base Compensation Amount"). The Base Compensation Amount for additional years
of the term of this Agreement (including the one (1) year renewal term, if any)
shall be determined by multiplying the Base Compensation Amount for the current
year of this Agreement by a fraction the numerator of which shall be the
official Consumer Price Index for All Urban Consumers (CPI-U) U.S. City
Average, All Goods and Services Base (1967 = -100) as promulgated by the U.S.
Bureau of Labor Statistics of the United States Department of Labor, for the
third month prior to each anniversary of the Commencement Date and the
denominator of which shall be said Consumer Price Index for the month of the
Commencement Date of this Agreement.
The "Adjusted Monthly Compensation Amount" shall be the sum determined by
the following formula:
Adjusted Monthly Compensation Amount = X
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Base Compensation Amount Y
where X = number of :60 Rock Network commercial units cleared by
KXJO; and
Y = total number of :60 commercial units in Rock Network programming
fed to KXJO, according to the following schedule:
Network Commercial Clearance:
Monday - Friday 5:00-5:30A - 4 units/day
Monday - Friday 5:00-10:00A - 66 units/day
Monday - Friday 10A-3:00P - 47 units/day
Monday - Friday 3:00-8:00P - 57 units/day
Monday - Friday 8:00P-12:00M - 42 units/day
Monday - Friday 12:00M-5:00A - 57 units/day
Saturday 5:00-5:30A - 4 units/day
Saturday 5:30-10:00A - 45 units/day
Saturday 10A-3:00P - 52 units/day
Saturday 3:00-8:00P - 52 units/day
Saturday 8:00P-12:00M - 41 units/day
Monday - Friday 12:00M-5:00A - 47 units/day
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Sunday 5:00-5:30A - 4 units/day
Sunday 5:30-10:00A - 45 units/day
Sunday 10A-3:00P - 52 units/day
Sunday 3:00-8:00P - 52 units/day
Sunday 8:00P - 12:00M - 41 units/day
Monday - Friday 12:00M - 5:00A - 47 units/day
Within five (5) days after execution of this Agreement, Clear Channel
shall pay to SBS an amount equal to the aggregate Base Compensation Amount for
the first three (3) months of this Agreement. Clear Channel may deduct amounts
from subsequent monthly payments to account for commercial units not cleared by
KXJO during the first three (3) months of this Agreement. With respect to the
fourth (4th) and subsequent months of this Agreement, Clear Channel shall pay
the Adjusted Monthly Compensation Amount on a monthly basis not later than the
fifteenth day of the month immediately following the month for which the
Adjusted Monthly Compensation Amount has been calculated. The Adjusted Monthly
Compensation Amount, the Base Compensation Amount and the clearance calculation
shall be prorated for any partial months during which this Agreement is in
effect.
KXJO will retain the right to sell for its own account three (3) local
:60 second commercial units per hour of Rock Network programming (Monday-
Sunday 6 am-12 midnight, total of 378 units per week) ("Local Units"). The
Local Units shall be available for sale solely by KXJO's local sales staff, and
shall not be sold for the purpose of resale by any person or entity. Clear
Channel will have an option to sell any Local Units which are unsold by KXJO.
In the event Clear Channel sells any unsold Local Units, KXJO will be entitled
to 15% of the revenue from such sales.
