Exhibit 10.5
Portions of this exhibit have been omitted pending a determination by the
Securities and Exchange Commission that certain information contained herein
shall be afforded confidential treatment. The omitted portions are indicated by
three asterisks.
SALES REPRESENTATION AGREEMENT
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This Agreement dated and effective as of November 1, 1995, between
MEDIAAMERICA, INC., a New York corporation ("MAI") and XXXXX INTERNATIONAL
NETWORKS, LTD., a Colorado corporation ("JIN"). The parties hereto agree as
follows:
1. Engagement. Pursuant to the terms and conditions of this
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Agreement, JIN hereby engages MAI as JIN's exclusive sales representative during
the term of this Agreement throughout the area served by the Network (as defined
below), such area to be known as the "Territory", in respect of ad sales for the
Network. The Territory shall be limited to the United States only and the
engagement of MAI is likewise limited to the United States. MAI hereby accepts
the engagement and by doing so agrees to render those services customarily
rendered by first-class sales representatives in the U.S. radio broadcasting
industry. MAI's services hereunder shall also be non-exclusive, it being
understood and agreed that MAI is entitled to be the sales representative for
services, producers and distributors other than JIN.
2. The Network. The Network to be represented by MAI hereunder is
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titled "Xxxxx and Chase Country Countdown," which is comprised of a weekly four
(4) hour radio show and four (4) annual "specials" utilizing country music
provided under a license agreement from Xxx Xxxxx & Associates, Inc. The
inclusion of any other programming herein shall be made only by express
agreement of the parties; it being understood that in any event the commission
rate of MAI with respect thereto shall not exceed twenty percent (20%).
3. Parties' Obligations.
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3.1. MAI shall render its services hereunder with respect to all
advertising time to be inserted during the
broadcasting of the Network (the "Advertisements"). In
furtherance of its responsibilities hereunder, MAI will use
its best efforts to promote the Network, maximize and
collect Gross Sales (as defined below) derived from the
Advertisements, and coordinate its sales activities with JIN
personnel. JIN will provide adequate staff to act as a
liaison with its affiliated radio stations which receive the
Network.
3.2. MAI shall render the following services, without limitation,
at MAI's sole expense:
3.2.1. engage in customary sales promotion activities to
sell the Advertisements;
3.2.2. negotiate and enter into agreements with, and pay
commissions to, all advertising agencies and
advertisers respecting the sale of the
Advertisements. All orders for Advertisements shall
be acceptable to JIN in its sole discretion. MAI
shall furnish to JIN promptly upon execution, copies
of all agreements entered into by MAI with respect
to the Advertisements. MAI shall make no sales of
Advertisements for any period which is after this
Agreement terminates or is to terminate (whether by
expiration of its term or as a result of notice)
without first receiving the written consent of JIN.
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3.2.3 MAI will perform for JIN the functions of
trafficking (scheduling) JIN inventory.
3.3. No less frequently than monthly, or as dictated by
advertisers, MAI will secure, obtain and collect all
affidavits of performance from all radio stations
broadcasting the Network in the Territory. These affidavits
of performance will be made available to JIN on at least a
monthly basis. JIN shall cooperate in the enforcement of
compliance by the stations with their obligations to
promptly submit such affidavits and to adhere to applicable
scheduling requirements.
3.4. MAI will provide information on sales to JIN as each sale is
made. The JIN log will close at 5 P.M. Mountain Time each
Thursday for the broadcast week beginning a week from the
following Monday. Any advertising time within that broadcast
week remaining unsold by MAI at closing will revert to JIN.
Complete logs for each broadcast week will be furnished by
MAI to JIN one week in advance on the Monday preceding the
Monday on which the broadcast begins.
4. Gross Sales: Compensation to MAI.
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4.1. "Gross Sales" shall mean any and all revenues and income and
other consideration derived from the sales of advertising
time by MAI hereunder in respect of the Advertisements
pursuant to all contracts obtained by MAI during the term of
this Agreement.
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"Adjusted Gross Sales" shall mean Gross Sales less only
advertising agency commissions (not to exceed 15 percent)
actually paid by MAI to unaffiliated third parties.
4.2. MAI shall render bills in respect of all Gross Sales within
five (5) business days after the end of the advertising
schedule or the Standard Broadcast month in which the
Network is broadcast and shall directly receive and use its
best efforts to collect one hundred percent (100%) of all
Adjusted Gross Sales. Copies of such bills shall be mailed
concurrently to JIN.
4.3. As compensation for its services under this Agreement, MAI
shall receive (a) *** of all collected Adjusted Gross Sales
for Advertisements booked and run during the term of this
Agreement.
4.4. MAI shall account to JIN with respect to collected Adjusted
Gross Sales as and when received from advertisers or
agencies, but in no event less often than monthly,
commencing thirty (30) days after broadcast of the
advertising schedule on the Network for as long as bills are
outstanding. MAI shall remit JIN's share of Adjusted Gross
Sales on a weekly basis for checks that were received by MAI
that week. Copies of corresponding advertiser/ad agency
checks will be forwarded to JIN along with JIN's share of
Adjusted Gross Sales. A complete, detailed accounts
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receivable report will be forwarded to JIN on a monthly
basis, within ten (10) days after the end of each month.
4.5. It is expressly agreed that as to the percentage amounts of
Adjusted Gross Sales which MAI has the right to receive
pursuant to Section 4.1 above and which, if received and
collected, it shall remit to JIN pursuant to this Agreement,
MAI shall receive such funds in trust for and on behalf of
JIN. MAI shall have no ownership interest in any of such
amounts and such amounts shall not be available to any of
the creditors of MAI.
6. Books and Records. JIN shall have the right to examine all of
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MAI's books, records and other information relative to the sale of the Network
Advertisements, the booking and collection of the Network's Gross Sales, the
calculation of Adjusted Gross Sales, and all related matters, upon reasonable
advance written notice to MAI at any time and at a reasonable frequency, and
shall have the right to commence arbitration thereon within one (1) year after
the termination of this Agreement. In the event JIN's examination of MAI's books
and records reveals an underpayment to JIN, then MAI shall promptly pay any
underpayment.
7. Term of the Agreement.
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7.1. The term of this Agreement shall commence as of November 1,
1995, and shall continue for a period of fourteen (14)
months.
7.2. Upon the termination of this Agreement for any reason, if
JIN (or its designee) shall collect Gross
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Sales derived from any contracts obtained by MAI during the
term of this Agreement, JIN shall pay MAI the appropriate
percentage (as determined under Section 4.3 or Section 4.4)
of the Adjusted Gross Sales after deductions permitted
herein (if any) and for which MAI shall continue to perform
services, and MAI shall turn over all relevant records to
JIN relating to the Network or sale of Advertisements. Each
party agrees to cooperate during a transitional period from
one sales organization to another.
8. Rights of JIN to Sell Advertising.
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The engagement of MAI hereunder is exclusive but JIN shall have
the right to sell advertising on its behalf.
9. Representations, Warranties and Indemnification. Each party hereby
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represents and warrants that it has the full power and authority to enter into
this Agreement and to perform its obligations hereunder. JIN will use its best
efforts to obtain all releases, authorizations, consents and waivers necessary
for authorization to broadcast the material to be included in the Network. JIN
hereby agrees to indemnify MAI from and against any claims made for unauthorized
use by any persons, their heirs, assigns and the estates of any such persons,
whose names, voices or material are to be included in the Network, and from and
against any other losses resulting from a breach by JIN of these representations
and warranties. Each party hereby agrees to indemnify and hold harmless the
other party from and against any and all claims finally adjudicated, arbitrated
or settled with the consent of both parties (which consent may not be
unreasonably withheld), and any and all expenses (including reasonable
attorneys' fees), damages, causes of actions and losses, arising out of
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a breach of any agreements, warranties or representations made by the
indemnifying party.
10. General.
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10.1. Notices. All notices and documents desired or required to
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be given to either party hereunder must be in writing and
shall be deemed given on the date received, via express or
certified mail return receipt requested, or the date
telexed or telefaxed, all charges prepaid, to the other
party's respective address set forth below or to such
other address as either party shall designate to the other
in writing. All statements and payments required to be
given to JIN hereunder shall be remitted to the address
set forth below or to such other address as JIN shall
designate in writing. A courtesy copy of all notices to
MAI shall be sent to Xxxxx Xxxxxxx, Esq., Collier, Cohen,
Crystal & Xxxx, 000 Xxxx Xxxxxx Xxxxx, Xxx Xxxx, Xxx Xxxx
00000-0000, and all notices to JIN are to 0000 X. Xxxxxxx
Xxxxxx, Xxxxxxxxx, Xxxxxxxx 00000, with a courtesy copy to
General Counsel, at the same address.
10.2. Assignments. Without the consent of MAI, JIN shall have
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the right to assign this Agreement to (i) any party
acquiring all or a substantial portion of its assets,
whether by merger, consolidation or otherwise, and (ii) to
any affiliate of JIN. Any other assignment shall require
the consent of MAI, which
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consent shall not be unreasonably withheld. MAI may not
assign this Agreement without the consent of JIN, which
consent shall not be unreasonably withheld.
10.3. Arbitration. Any dispute arising between the parties to
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this Agreement shall be submitted to and resolved by
binding arbitration in New York City and in Denver,
Colorado, according to the rules of the American
Arbitration Association. The site of such arbitration
shall shift every six months, with the first site being
New York City.
10.4. Entire Agreement; Relation of the Parties. This Agreement
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expresses the entire understanding of the parties hereto
with respect to the subject matter hereof and supersedes
any and all former agreements and understandings, whether
oral or written, relating to the subject matter hereof. No
amendments or modifications may be made except in a
writing signed by the parties hereto. No waiver of default
by either party shall constitute a waiver of any other
default whether or not similar. Nothing contained in this
Agreement shall be construed to constitute either party
the employee, agent, partner or joint venturer of the
other, it being understood and agreed that the
relationship of the parties is that of independent
contractors. This Agreement shall be construed in
accordance with the laws of the State of Colorado
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applicable to agreements entered into and wholly
performed therein.
MEDIAAMERICA, INC. XXXXX INTERNATIONAL NETWORKS, LTD.
00 Xxxx 00xx Xxxxxx 0000 Xxxx Xxxxxxx Xxxxxx
00xx Xxxxx Xxxxxxxxx, XX 00000
Xxx Xxxx, XX 00000
By: /s/ Xxx Xxxxxxxxxx By: /s/ Xxxx Xxxxxxxxxx
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Xxx Xxxxxxxxxx Xxxx Xxxxxxxxxx
Chairman Vice President/General Manager
20090
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