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Arbitron 10-Q 2009 Documents found in this filing:Portions of this exhibit have been omitted and filed separately pursuant to an application for
confidential treatment filed with the Securities and Exchange Commission pursuant to Rule 24b-2
under the Securities Exchange Act of 1934, as amended. Omissions are designated as [*****]
Master Station License Agreement to Receive and Use
Arbitron Radio Audience Estimates Date of Proposal: March 27, 2009
THIS AGREEMENT is between Arbitron Inc., a Delaware corporation (“Arbitron”), and the
undersigned radio broadcaster (“Station”), a Nevada corporation.
Arbitron hereby grants to Station, for the radio station(s) listed below, a limited license or, in
the case of certain programs licensed to Arbitron, a sublicense, to receive and use the Arbitron
audience estimates and data (“Arbitron Data” or “Data”) contained in Arbitron’s reports for surveys
designated on Agreement Attachments for the geographic area (“Market”) provided hereunder
(“Reports”) and/or the computer software programs (“Systems”) designated on Agreement Attachments,
collectively such Data and/or Reports and/or Systems to be referred to as “Services.” Such Services
shall be designated on the Agreement Attachments, which Attachments are hereby incorporated by
reference as if fully set forth herein. It is further agreed by the parties hereto that this
license and Agreement shall be effective and applicable to any Services that are later licensed by
Station pursuant to Section 15(e) of this Agreement and/or pursuant to any additional Agreement
Attachment executed by the parties hereto. Arbitron may furnish such Services to Station in
printed, electronic or other form, at Arbitron’s option, either directly or through authorized
third parties, but title thereto shall remain with Arbitron at all times.
1. Services Provided; Term: This Agreement will become effective when countersigned by
Arbitron’s Contract Manager. The Term of this license and Agreement shall begin on
* and run concurrently with each Agreement Attachment executed by the parties hereto until the expiration date set
forth on such Agreement Attachment or until * whichever date occurs first. The Term for each Service provided is set forth in each such Agreement
Attachment This Agreement will continue without regard to Station’s ownership of the radio
station(s) licensed hereunder absent a valid Assignment pursuant to Section 11 of this Agreement.
Number of surveys currently provided during first Term year: * .
Reports currently
licensed hereunder: þ Spring þ Fall þ Winter þ Summer First Report: *See “Schedule A” Attachment
All representations in this Section regarding number of surveys and Report titles are subject to
qualifications set forth in Section 6(a) herein.
2. Annual Rate:
A License Charge in the form of a Net Annual Rate for each year of the Term, which may be subject
to adjustments and discounts pursuant to Sections 3, 4, 6, and 11 of this Agreement, shall be
paid by Station with the first of
*
payments (the “Periodic Charge” or _________“Charge”)
due on * .
The Gross Annual Rate for the first Term year is $*See SchedA.
For each succeeding Term year, the Gross Annual Rate shall be the Gross Annual Rate for the
previous Term year increased by a factor of
[*****]. Any applicable discounts or other adjustments will be applied thereafter to the Gross Annual Rate so derived.
3. Discounts for the Radio Market Report:
(a) Continuous Service Discount: A discount of ten percent (10%) in calculating the Periodic
Charge applicable to the Radio Market Report only shall be allowed for each month in excess of
twelve (12) consecutive months that Station is continuously licensed to use the Arbitron Radio
Market Report for this Market, provided that such discount shall no longer apply if Station fails
to sign and return this Agreement to Arbitron within forty-five (45) days after the termination of
a prior Arbitron radio listening estimates license agreement.
(b) Group Discount: If Station owns two or more radio stations located in different markets and
such radio stations are under common ownership as defined by Arbitron, Station may be entitled to a
Group Discount based on the number of subscribing radio stations owned at the time this Agreement
is executed, which discount may vary and be adjusted during the Term of this Agreement in
accordance with Arbitron’s Group Discount Schedule should the number of subscribing commonly owned
radio stations change.
(c) Long-Term Discount: A discount of
shall be allowed in calculating the Net Annual Rate charged during the applicable months.
4. Periodic Charge; Taxes: The Periodic Charge, due and payable by Station on the first day of
each billing period, shall be: (a) the Gross Annual Rate plus any adjustments; (b) less any
applicable Continuous Service Discount; (c) less, from the amount thereby derived, any applicable
Group Discount; (d) less, from the amount thereby derived, any applicable Long-Term Discount; (e)
with such amount prorated equally between the number of payments for the Term year.
In addition to and together with the above payments, Station shall pay to Arbitron any sales,
excise, gross-receipts, service, use or other taxes, however designated, now or hereafter imposed
upon or required to be collected by Arbitron by any authority having jurisdiction over the Market
being surveyed or over any location to which Station directs Arbitron to deliver Data, or by any
other taxing jurisdiction.
5. Late Payment Charge and Right to Suspend Report Delivery or Terminate License:
(a) A late payment charge of one and one-half percent (1.5%) per month will be charged on all
Periodic Charges, as adjusted, which are not paid within 60 days after due hereunder, but in no
event will the applicable per-month late payment charge exceed one-twelfth of the maximum annual
percentage allowed to be charged by applicable state usury law. Any failure to impose a late
payment charge shall not prejudice Arbitron’s right to do so should the default continue or should
a subsequent payment not be made when due.
(b) In the event Station is in default in its payment obligations hereunder, and in addition to
Arbitron’s right to impose a late payment charge, Arbitron may, with respect to this Agreement
and/or any other
agreement for Station’s use of services licensed by Arbitron in this Market or an adjacent market,
and without terminating, breaching or committing a default under this Agreement or such other
agreements: (i) accelerate or modify in any way the payment schedule of Periodic Charges for the
duration of this Agreement or such other agreement(s) to a number of installments to be determined
by Arbitron in its discretion; and/or (ii) suspend delivery to Station of any Data or Report(s), in
any form, which are due until such time as Station is current in its payments of all sums due;
and/or (iii) send Station written notice that Station’s license hereunder is suspended, in which
case Station further expressly agrees that it thereafter shall not use Data and/or Reports
previously received by Station until such time as Station becomes current in its payments of all
sums due for services licensed by Arbitron. Acceleration or other modification of the payment
schedule by Arbitron under this provision shall not be deemed or considered a penalty but rather
represents a good faith effort to quantify as of the time of the execution of this Agreement the
harm that would be sustained by Arbitron in the event Station defaults on its payment obligations
hereunder.
(c) In the event Station is in default in its payment obligations under this Agreement or under any
other agreement for Station’s use of services licensed by Arbitron in this Market or an adjacent
market, then Arbitron may exercise any or all of its rights set forth in Section 5(b) of this
Section 5 with respect to any such agreement entered into with Arbitron by Station or any of
Station’s affiliated, subsidiary or related corporations or entities regardless of whether such
other agreements are in default. For purposes of this Section 5(c), a corporation or entity shall
be deemed to be affiliated with or related to Station if (i) such corporation or entity owns or
controls more than a fifty percent (50%) interest in Station and/or it enters or has entered into
any management agreement, joint operating agreement or other business relationship with Station; or
(ii) Station owns or controls more than a fifty percent (50%) interest in such corporation or
entity and/or it enters or has entered into any management agreement, joint operating agreement or
other business relationship with such corporation or entity; or (iii) a third party owns or
controls more than a fifty percent (50%) interest in, and/or enters or has entered into, any
management agreement, joint operating agreement or other business relationship with both Station
and such corporation or entity.
(d) Arbitron’s suspension hereunder of delivery of Data and/or Reports and/or Systems to Station,
and the license granted hereunder, shall not relieve Station of any of its obligations hereunder.
Station further agrees to reimburse Arbitron for all collection costs and expenses (including
reasonable attorneys’ fees) incurred hereunder. This license may be terminated immediately by
Arbitron should Station or its station(s) default in payment of any sum due or should Station or
its station(s) default in any other condition or obligation of this Agreement and/or any other
agreement for Station’s use of services licensed by Arbitron.
6. Changes in Service; Modification of Rates:
(a) Arbitron reserves the right to change at any time the geographical territory comprising any
Market, its policies and procedures, survey dates, survey length, survey frequency, sampling
procedures, delivery schedules, methodology, method of Data or Report collection or delivery,
provision of printed copies of Reports, Report content, Report titles, Report format, or any other
aspect of the Data and Reports provided hereunder, and to cancel surveys and the preparation of
Arbitron Data and Reports or any other aspect of the Data services provided.
Arbitron reserves the right not to publish any Data or Reports whenever, in its judgment,
insufficient data are available to meet its minimum research standards or any event has jeopardized
the reliability of the data. In the event that Data and/or Reports are not published, Station shall
receive a credit reflecting the pro rata value of the Net Annual Rate for said Data and/or
Report(s). Without limiting the foregoing, Station expressly understands and agrees that Arbitron
may, at any time during the Term of this Agreement, reduce the number of surveys conducted and/or
Reports published for any Market and consequently
reduce the number of Reports provided to Station
and that, in the event such reduction occurs, Station is not relieved of any of its obligations
under this Agreement.
(b) In the event that any cause(s) prevents Arbitron from conducting any survey in accordance with
its methodology, schedules or other publications, Arbitron reserves the right to publish
abbreviated Report(s). Station hereby consents to publication of such abbreviated Report(s) under
such circumstances. In the event that such an abbreviated Report covers a substantially decreased
geographic area, or deletes twenty-five percent (25%) or more of the survey days from the aggregate
number of days scheduled, Station shall be entitled to either a proportionate credit for the
abbreviated Report, or, upon written certification that all copies of such abbreviated report have
been destroyed and that Station will not use such abbreviated report within 10 days, a full credit
for the abbreviated Report, at Station’s option, provided however, that if Station elects to return
an abbreviated Report for full credit, Station shall no longer be licensed to use that Report
during the remainder of the Term of this Agreement. Further, Arbitron reserves the right in its
sole discretion to augment available data by means of expanded or extended samples and Station
agrees it shall not be entitled to any credit in such event.
(c) Arbitron may increase the Gross Annual Rate hereunder at any time. If Arbitron increases the
Rate for a reason other than as permitted elsewhere in this Agreement, it shall give prior written
notice to Station. Station may, within a 30-day period following such notice, cancel the unexpired
Term of the Agreement for only the Data and/or Reports and/or services and Market for which
Arbitron has increased its Rate pursuant to such notice, by written notice pursuant to Section
15(a), without cancellation charge or other cost, effective on the date the new Gross Annual Rate
would have become effective. In the absence of such timely cancellation, this Agreement shall
continue and the new Gross Annual Rate shall become payable as stated in Arbitron’s notice and
thereafter.
7. Permitted Uses and Confidentiality: Subject to the restrictions stated herein and to the
permitted uses set forth in Arbitron’s publication entitled Working with Arbitron’s Copyrighted
Estimates available to all Arbitron licensees and posted on Arbitron’s Web site at
www.arbitron.com, Station agrees to limit its uses of the Arbitron Data and Report(s) to
its programming and media selling. Station understands and agrees that this use is limited
exclusively to the radio station(s) specified in Section 1 of this Agreement and only for the Term
of this Agreement. In this connection, Station agrees that the Arbitron Data and/or Report(s) will
only be disclosed:
(a) directly or through its Station representatives to advertisers, prospective advertisers and
their agencies for the purpose of obtaining and retaining advertising accounts; and
(b) through advertising or other promotional literature as permitted hereunder.
All such disclosures shall identify Arbitron as the source of the disclosed Arbitron Data and/or
Report(s) and should identify the Market, survey period and type of audience estimate, daypart and
survey area and shall state that the Arbitron Data and/or Report(s) quoted therein are copyrighted
by Arbitron and are subject to all limitations and qualifications disclosed in the Data and/or
Report(s) (“Sourcing”).* At all times during the Term of this Agreement and thereafter,
Station agrees to keep the Arbitron Data and/or Report(s) confidential and not to disclose the same
except as permitted by this Agreement. Station agrees to use its best efforts to prevent the
unauthorized disclosure of Arbitron Data and/or Report(s) by Station’s employees and/or its radio
station(s)’s employees and agents, by its radio station(s)’s representatives, by its advertisers
and their advertising agencies, by data processing firms, and by all other persons who obtain
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the Arbitron Data and/or Reports from Station or its radio station(s)’s employees or agents. For
Station or its radio station(s) to divulge any Arbitron Data and/or Report(s) to a nonsubscribing
station or to lend and/or give an original copy or any reproduction of any part of any Data and/or
Report(s) or any Arbitron Data and/or Reports to any person or entity not authorized by this
Agreement constitutes a breach of this Agreement and an infringement of Arbitron’s copyright.
In the event that Station does not subscribe to all Reports published in an applicable Market
during the Term, the license granted hereunder to any Report in such Market shall terminate upon
the release of the next survey Report in such Market. Further, in the event that a Report listed
in Section 1 of this Agreement is delivered after the expiration of the Term of this Agreement,
Station’s license to use that Report shall continue under the terms and conditions of this
Agreement until the earlier of: (i) the release of the next survey Report in the applicable
licensed Market, or (ii) 6 months after such report’s release.
Station may authorize a third party to process the Data licensed hereunder on Station’s behalf,
provided: (1) that said third party is a then current Arbitron licensee in good standing who is
authorized to process the Data and (2) that all restrictions concerning the use of the Data
provided under this Agreement shall apply with full force and effect to any data, estimates,
reports or other output, in any form, containing or derived from the Data, produced by said third
party for Station.
8. Confidentiality of Arbitron Respondents: Station agrees that it will not try either before,
during or after a survey, or in connection with any litigation, to determine or discover the
identity or location of any Arbitron survey participant. Station will under no circumstances
directly or indirectly attempt to contact any such persons. Station agrees to promptly report to
Arbitron any evidence or indication that has come to Station’s attention regarding the identity or
location of any such persons. Station agrees to abide by Minimum Standard A9 (or any successor
provision concerning confidentiality of survey respondents) of the Media Rating Council and shall
abide by any determination of the Media Rating Council concerning respondent confidentiality.
Station further agrees that Arbitron may enjoin any breach of the above-stated obligations and
shall have the right to damages or other remedies (including costs, expenses and reasonable
attorneys’ fees) available to it at law or hereunder.
9. Methodology: ARBITRON MAKES NO WARRANTIES WHATSOEVER, EXPRESS OR IMPLIED, INCLUDING WITHOUT
LIMITATION ANY WARRANTY OF MERCHANTABILITY OR FITNESS, CONCERNING THE SERVICES PROVIDED HEREUNDER,
INCLDUING BUT NOT LIMITED TO:
(A) DATA GATHERED OR OBTAINED BY ARBITRON FROM ANY SOURCE;
(B) THE PRESENT OR FUTURE METHODOLOGY EMPLOYED BY ARBITRON IN PRODUCING ARBITRON DATA AND/OR
REPORT(S) AND/OR SERVICES; OR
(C) THE ARBITRON DATA AND/OR REPORT(S) AND/OR SERVICES LICENSED HEREUNDER.
ALL ARBITRON DATA AND/OR REPORT(S) REPRESENT ONLY THE OPINION OF ARBITRON. RELIANCE THEREON AND USE
THEREOF BY STATION IS AT STATION’S OWN RISK.
THE SYSTEMS PROVIDED HEREUNDER ARE PROVIDED TO LICENSEE “AS IS — WHERE IS” AND RELIANCE THEREON
AND USE THEREOF BY LICENSEE IS AT LICENSEE’S OWN RISK.
IN NO EVENT SHALL ARBITRON BE LIABLE FOR THE FAILURE OF ANY THIRD PARTY TO PROVIDE ANY DATA OR
SERVICES FOR USE IN CONNECTION WITH THE DATA, REPORTS, SYSTEMS AND/OR SERVICES LICENSED HEREUNDER.
10. Liabilities and Limitations of Remedies: THE SOLE AND EXCLUSIVE REMEDY, AT LAW OR IN EQUITY,
FOR ARBITRON’S AND/OR ANY THIRD PARTY DATA AND/OR SERVICE PROVIDER’S BREACH OF ANY WARRANTY,
EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY WARRANTY OF MERCHANTABILITY OR
FITNESS, AND
THE SOLE AND EXCLUSIVE REMEDY FOR ARBITRON’S AND/OR ANY THIRD PARTY DATA AND/OR SERVICE PROVIDER’S
LIABILITY OF ANY KIND, INCLUDING WITHOUT LIMITATION LIABILITY FOR NEGLIGENCE OR DELAY WITH RESPECT
TO THE ARBITRON DATA AND/OR REPORTS AND/OR SYSTEMS AND ALL PERFORMANCE PURSUANT TO THIS AGREEMENT,
SHALL BE LIMITED TO A CREDIT TO STATION OF AN AMOUNT EQUAL TO, AT THE MAXIMUM AMOUNT, THE LICENSE
CHARGE PAID BY STATION WHICH IS ATTRIBUTABLE TO THE MATERIALLY AFFECTED DATA OR REPORT OR SYSTEM.
IN NO EVENT SHALL ARBITRON AND/OR ANY THIRD PARTY DATA AND/OR SERVICE PROVIDER BE LIABLE FOR
SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, NOR SHALL THEY BE SUBJECT TO INJUNCTIVE
RELIEF WITH RESPECT TO THE PUBLICATION OF ANY DATA AND/OR REPORT OR TO ANY SYSTEM. STATION
UNDERSTANDS THAT THE DATA AND/OR REPORTS AND/OR SYSTEM EITHER WOULD NOT BE PREPARED OR WOULD BE
AVAILABLE ONLY AT A SUBSTANTIALLY INCREASED LICENSE CHARGE WERE IT NOT FOR THE LIMITATIONS OF
LIABILITIES AND REMEDIES AS SET FORTH IN THIS SECTION.
Station agrees that it will notify Arbitron in writing of any alleged defect in any Data and/or
Report and/or System within thirty (30) days after Station learns of said alleged defect. In the
event that Station does not timely notify Arbitron, then Station waives all rights with regard to
said alleged defect. Station further agrees that any action to be brought by it concerning any Data
and/or Report and/or System shall be brought not more than one (1) year after such Data or Report
was originally published by Arbitron.
In the event that either party commences litigation against the other party and fails to ultimately
prevail on the merits of such litigation, the commencing party shall reimburse and indemnify the
other party from any and all costs and expenses incurred with respect to such litigation, including
reasonable attorneys’ fees, provided, however, that this sentence shall not apply where Arbitron
commences litigation pursuant to Sections 5, 7 or 8 of this Agreement. This provision shall survive
the termination of this Agreement.
11. Assignments and Changes in Station Status: Station may not assign either its rights or
obligations under this Agreement without the prior written consent of Arbitron. Subject to
Arbitron’s consent, a successor-in-interest by merger, operation of law, assignment, purchase or
otherwise of the entire business of Station shall acquire all rights and be subject to all
obligations of Station hereunder. In the event that Arbitron consents to the assignment of this
Agreement, Arbitron reserves the right to redetermine the rate to be charged to the assignee in
accordance with the terms of this Agreement. Arbitron shall be entitled to assign any of its rights
or obligations under this Agreement, including the right to receive the License Charge payable
hereunder.
Station acknowledges and agrees that the License Charge due and the adjustments and discounts
applied hereunder are based on Station’s group ownership status and/or any joint operating
agreement with one or more other radio stations and/or Station’s ownership of radio stations in
this Market or other Markets. In the event Station conveys any one of its radio stations, Station
remains fully obligated for the License Charge specified for any radio station covered by the terms
of this Agreement. Station may only be released from such obligations upon valid assignment of this
Agreement and subject to the terms thereof.
Station agrees that if at any time it changes or has changed its ownership, operating or sales
policy (including the use of digital sub-channels), frequency, broadcasting arrangements, group or
business relationships of the station(s) licensed under this Agreement, or if it enters or has
entered into any management or other business relationship with another radio station in any Market
and/or its adjacent Market(s), or if it enters or has entered into any joint operating agreement
with one or more other radio stations, or if it is or was purchased or controlled by an entity
owning or otherwise controlling other radio stations in any Market and/or its adjacent Market(s),
or if it purchases, or an entity which is in any manner controlled by it purchases, at any time,
another radio station in any Market or its
3
adjacent Market(s), Station and its radio station(s) will report the change and the effective date
thereof to Arbitron within thirty (30) days of such change. In the event of such occurrence,
Station agrees that such station(s) shall be licensed under this Agreement and that Arbitron may
redetermine the Gross Annual Rate for the Data, Reports, and/or services pursuant to the then
current Arbitron rate card in order to license such additional station(s), effective the first
month following the date of the occurrence. Notwithstanding Station’s failure to notify Arbitron,
pursuant to the provisions of this Section 11, Arbitron may redetermine Station’s Gross Annual Rate
for all Data, Reports, and/or services, based on the foregoing, effective the first month following
the date of the occurrence.
Station further agrees that if the parent company or other controlling entity of Station, or any
entity in any manner related to Station, purchases or otherwise acquires a controlling interest in
a radio station in Station’s Market that is not licensed by Arbitron for the same Data, Reports
and/or Services, then Arbitron may redetermine Station’s Gross Annual Rate based on such occurrence
as described in this Section 11.
In the event Arbitron increases Station’s Gross Annual Rate as a result of an occurrence as
described in this Section, then Arbitron shall amend this Agreement to permit use of the Data,
Reports and/or services by the additional radio station(s) prompting the increase.
12. Other Arbitron Services and Reports: If, during the Term of this Agreement, Station orders any
Arbitron services or report(s) not licensed through any other Arbitron agreement, Station hereby
agrees that this Agreement shall be applicable with respect to all such services and/or reports
with the same force and effect as if printed out at length in a separate agreement executed by
Station.
13. Ratings Distortion Activity:
(a) Station agrees that it shall not engage in any activities which are determined by Arbitron to
be ratings distortion. Such prohibited activities may include, but are not limited to, activities
which could:
(i) cause any survey participant to record erroneous listening information in his or her Arbitron
diary; or
(ii) cause any survey participant to utilize an Arbitron diary for a contest or promotion
conducted by Station or its radio station(s).
(b) Station further agrees that Arbitron may delete all estimates of listening to Station and/or
its radio station(s) from any Data, Reports, computer CD and/or other Arbitron service or method of
delivery where, in its judgment it has deemed that Station or its radio station(s) has engaged in
such activities. Arbitron shall:
(i) first give Station and its radio station(s) notice setting forth what activities it
deems Station and its radio station(s) have engaged in which allegedly could cause or have caused
ratings distortion;
(ii) present evidence to substantiate the allegations set forth in (i) above; and
(iii) give Station and its radio station(s) reasonable opportunity (in light of Arbitron’s
publication schedule for any Report) to present its position both in writing and orally.
In the event that Station or its radio station(s) is notified by Arbitron that allegations of
ratings distortion have been made against Station or its radio station(s), then Station or its
radio station(s) shall submit a written response to Arbitron’s inquiry concerning the allegations
within seven (7) days from the receipt of Arbitron’s notice, which time may be shortened by
Arbitron for reasons relating to the Report publication schedule. Arbitron shall then advise
Station or its radio station(s) of its decision following its receipt of Station’s or its radio
station(s)’ written response or oral presentation. All such writings shall be addressed and sent to
the respective party by facsimile, overnight courier service, or certified mail with return receipt
requested. In the event that estimates of listening to Station and/or its radio station(s) are
deleted from a Report(s) (and/or other Arbitron services) following the procedure set forth above,
Station and its radio station(s) agree that the only remedy for such deletion shall be a credit of
the License Charge paid by Station for such Report(s) or other affected services and that in no
event shall
Arbitron be liable for special, incidental, consequential or punitive damages or be
subject to injunctive relief with respect to any such deletion of estimates of listening to Station
and/or its radio station(s). In the event that estimates of listening to Station and/or its radio
stations are deleted from a Report pursuant to this Section, Arbitron agrees that it will give
Station and its radio station(s) an opportunity to submit to Arbitron a written statement (not
exceeding 200 words) of Station’s and/or its radio station(s)’s views concerning its alleged
activities, with such written statement to be published in the Report subject to such reasonable
editing deemed necessary by Arbitron. In addition, Station and its radio station(s) agree to abide
by the Arbitron policies and procedures governing various special station activities, including,
but not limited to, rating bias.
14. Information to be Provided by Station and Its Radio Station(s): Station and its radio
station(s) agree to provide to Arbitron, within ten (10) days of receipt of Arbitron’s request,
such information which Arbitron deems necessary for the publication of a Report, including, but not
limited to, accurate descriptions of the following information for Station and its radio
station(s): (a) facilities; (b) broadcast station names; (c) broadcast hours; (d) simulcast
hours; (e) radio frequency; (f) operating power; (g) format; (h) height of antenna above average
terrain; and (i) programming information. Station and its radio station(s) further understand and
agree to notify Arbitron of any changes to the above-referenced information. Station and its radio
station(s) hereby hold Arbitron harmless and agree to indemnify Arbitron from and against any and
all loss, cost or expense (including reasonable attorneys’ fees) arising out of any omission or
error in information provided, or the failure to provide such information to Arbitron by Station
and its radio station(s) pursuant to this Section.
15. General:
(a) All notices to either party shall be in writing and shall be directed to the addresses stated
hereafter unless written notice of an address change has been provided.
(b) This Agreement shall be deemed to be an agreement made under, and to be construed and governed
by, the laws of the State of New York, exclusive of its choice of law rules. The parties expressly
agree that any and all disputes arising out of or concerning this Agreement or the Arbitron Data or
Reports licensed hereunder shall be litigated and adjudicated exclusively in State and/or Federal
Courts located in either the State of New York or the State of Maryland, at Arbitron’s option, and
each party consents to and submits to both such jurisdictions.
(c) EACH PARTY, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, HEREBY IRREVOCABLY WAIVES ALL
RIGHT TO TRIAL BY JURY AS TO ANY ISSUES, DEMANDS, ACTIONS, CAUSES OF ACTION, CONTROVERSIES, CLAIMS
OR DISPUTES ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY OTHER MATTER INVOLVING THE PARTIES
HERETO.
(d) Station hereby expressly consents to: (i) Arbitron sending to Station information advertising
the various services that Arbitron provides, whether or not such services are provided under this
Agreement, via electronic messaging to include, but not limited to, e-mail, facsimile and text
messages, and (ii) use of Station’s name and/or call letters in Arbitron customer lists,
promotional materials and/or press releases.
(e) This Agreement, together with any Agreement Attachments, constitutes the entire agreement
between the parties concerning the subject matter hereof, notwithstanding any previous discussions
and understandings, and shall not be deemed to have been modified in whole or in part except by
written instruments signed hereafter by officers of the parties or other persons to whom the
parties have delegated such authority.
(f) Any litigated question regarding the legality, enforceability or validity of any section or
part hereof shall not affect any other section, and if any section or part hereof is ultimately
determined illegal, invalid, unconstitutional or unenforceable, that section or part hereof
4
shall be severed from this Agreement and the balance of the Agreement shall thereafter remain in
full force and effect for the remainder of the Term.
(g) In addition to the rights of termination stated elsewhere in this Agreement, this Agreement,
and the license provided hereunder, may be terminated by Arbitron for any or all of the Data,
Reports and/or services in any or all of the Markets in which they are licensed, for any reason, on
thirty (30) days’ written notice to Station. Station agrees that this Agreement shall continue for
the markets and services not named in such notice.
(h) In the event that Arbitron produces pre-currency/transitional PPM report(s) and/or data in a
Market(s) prior to the official PPM commercialization of such Market(s), Station hereby agrees to
license such pre-currency/transitional PPM report(s) and/or data at Station’s then current
diary-based Report License Charges for the relevant Report survey period(s). The license granted to
Station for such pre-currency/transitional PPM report(s) and/or data is subject to the terms and
conditions contained herein, however, Station agrees to only use such pre-currency/transitional PPM
report(s) and/or data for internal business analysis and expressly not in connection with any
commercial media buying and/or selling transaction process.
AGREED TO:
(i) The provisions governing payment of taxes, confidentiality of the Data and Reports, and
confidentiality of respondents shall survive the termination of this Agreement.
End of Agreement
ACCEPTED BY:
/S/ GREG STEPHAN
CONTRACT MANAGER
5/4/09
DATE
Arbitron Inc.
9705 Patuxent Woods Drive Columbia, Maryland 21046-1572 **See “Schedule A” Attachment
5
Portions of this exhibit have been omitted and filed separately pursuant to an application for
confidential treatment filed with the Securities and Exchange Commission pursuant to Rule 24b-2
under the Securities Exchange Act of 1934, as amended. Omissions are designated as [*****]
Attachment to Master Station License Agreement to Receive
and Use Arbitron Radio Audience Estimates Date Prepared: March 27, 2009
This is an Attachment to the Master Station License Agreement to Receive and Use Arbitron Radio
Audience Estimates (the “Basic License Agreement”)
dated March 27, 2009 between Arbitron Inc., a Delaware corporation (“Arbitron”) and Clear Channel Communications Inc. (“Station”), and is for the term and Services specified below. The license granted for the Services specified herein is expressly subject to the Basic License Agreement, and any terms and conditions stated below, or on the next page hereof. Station agrees to license the following Services from Arbitron and to pay License Charges as set forth herein and in the Basic License Agreement. For use only by: *See Schedule A Attachment
Data Services Ordered
* Adjacent Market(s) Ordered: See Schedule A
** The Annual License Charge for this service is equal to the net annual license charge for the
Radio Market Report multiplied by the % of Annual License Charge set forth in this column.
Calculation of License Charges:
Station further understands and agrees that the Net Annual Rate payable during any Term year
subsequent to the first Term year will vary in accordance with an applicable Group Discount, any
other applicable discount, or any adjustment as specified in Sections 2, 3, 4, 6 and 11 of the
Basic License Agreement.
Software Services Ordered
* The Annual License Charge for this service is equal to the net annual license charge for the
Radio Market Report multiplied by the % of Annual License Charge set forth in this column.
*** Services eligible for dual service discount: percent discount %
Billing Options
KPER-UNI ATTACH 32/07 #43148
2
Terms and Conditions
Any use of a computer system that processes Arbitron Data and/or Reports requires a valid
license for such Data and/or Reports.
Incorporation of Basic License Agreement:
(a) All terms and conditions of the Basic License Agreement are hereby incorporated herein by
reference with the same force and effect as if printed at length herein and are applicable to any
Service(s) provided hereunder.
(b) In order to receive a license to and access to any Service, Station must be licensed pursuant
to the Basic License Agreement.
In the event the Basic License Agreement terminates, expires or becomes suspended for any reason,
this Agreement and License(s) shall terminate, expire or become suspended concurrently therewith.
Mode of Use:
Where use of a computer is necessary to access, receive and use any Services licensed under this
Agreement, Station will obtain, from a vendor of its choice, computer equipment and an operating
system conforming to the minimum specifications. Station acknowledges that if such conforming
equipment and systems are not obtained, the Services may not operate properly.
Interruptions:
Station agrees that Arbitron is not responsible for computer, Internet and/or telephonic
communications interrupted by any Services system failure, telephonic disruptions, weather, acts of
God, force majeure or acts of third persons not connected with or controlled by Arbitron; nor
AGREED TO
for
any additional expenses incurred by Station for subsequent and/or additional computer runs
necessitated by such disruptions or interruptions.
Restrictions on Station’s Use:
(a) Station agrees that it will not provide, loan, lease, sublicense or sell in whole or in part
the Arbitron Data and/or Reports and/or Systems, or computer software programs or data included
with such Data and/or Reports and/or Systems, to any other party or entity in any form. This
restriction extends to, but is not limited to, any and all organizations selling or buying time to
or from Station and any and all organizations providing data processing, software or computer
services to Station.
(b) Station agrees that it will not use the Arbitron Data and/or Reports under the control of
computer programs written by its employees, agents or others except as permitted by the Basic
License Agreement. Arbitron makes no commitment to disclose to others the structure, format, access
keys or other technical particulars of the Arbitron Data and/or Reports and/or Systems.
Special Terms or Instructions: *See Attached Schedule A
ACCEPTED BY
/S/ GREG STEPHAN
CONTRACT MANAGER
5/4/09
DATE
Arbitron Inc.
9705 Patuxent Woods Drive Columbia, Maryland 21046-1572 3
Portions of this exhibit have been omitted and filed separately pursuant to an application for
confidential treatment filed with the Securities and Exchange Commission pursuant to Rule 24b-2
under the Securities Exchange Act of 1934, as amended. Omissions are designated as [*****]
First Addendum to the
“Master Station License Agreement to Receive and Use Arbitron Radio Audience Estimates” Between Arbitron Inc. and Clear Channel Broadcasting, Inc. This is a first addendum (“Addendum”) to the “Master Station License Agreement to Receive and
Use Arbitron Radio Audience Estimates” (the “Diary Agreement”), with a date of Proposal of March
27th, 2009, by and between Arbitron Inc. (“Arbitron”) and Clear Channel Broadcasting, Inc. (“Clear
Channel”, “Licensee”, and/or “Station”), for a Term that commenced on January 1, 2009 and ends on
December 31, 2011, and for only the radio stations listed on Schedule 1. For the avoidance
of doubt, the Effective Date of the Agreement and this Addendum is January 1, 2009. Each is
referred to herein as a “Party” and collectively as the “Parties”. Capitalized terms shall have
the same meaning ascribed to them as set forth in the Diary Agreement unless indicated otherwise in
this Addendum. This Addendum is further comprised by Appendix A and Appendix B, both of which are
attached hereto and made a part hereof. Appendix A, Appendix B, and this first addendum, is
collectively referred to herein as the “Addendum”. In the event of a conflict between this
Addendum and the Diary Agreement, the terms and conditions of this Addendum shall prevail.
The Parties hereto agree to amend the Diary Agreement as follows:
1. Any radio station(s) not explicitly set forth on Schedule 1, and that Clear
Channel subsequently purchases, acquires an ownership interest in, and/or enters into a
management** relationship with during the Term, and the radio station qualifies to be
reported in an Arbitron report (the “New Station”), Clear Channel hereby expressly agrees
that the New Station is required, pursuant to Section 11 of the Diary Agreement, to license
at least the following Arbitron basic services: a) Local Market Report; b) Maximi$er;
and, c) Arbitrends (where available).
Further, if there is a pre-existing Clear Channel owned, operated, and/or managed radio
station in the same market as the New Station (the “Existing Station”), and the Existing
Station is licensed to any one of the following Arbitron provided services: d) Tapscan; e)
PD Advantage; f) Scarborough; and/or, g) RetailDirect, then the New Station is also
required to subscribe to at least the same level of Arbitron service(s) licensed by the
Existing Station.
However, Arbitron hereby agrees that Clear Channel shall not be required to subscribe for
any New Station located in the Markets set forth in Appendix A until such New Station uses
and/or receives any Arbitron services, data, and/or information. At that point, the New
Station shall be automatically invoiced from the date that they first use and/or receive
such Arbitron services, data, and/or information on a retroactive basis.
For the avoidance of doubt, the addition of any New Station(s) after the Effective Date of
this Diary Agreement shall not increase any applicable Clear Channel discount provided by
Arbitron, including but not limited to a Group Discount. For example, the basis for any
applicable Clear Channel discount is determined in accordance with the criteria set forth
under Section 17 hereof and the Diary Agreement.
1
2. If a New Station licenses: d) Tapscan; e) PD Advantage; f) Scarborough; g) RetailDirect;
and/or, h) Maximi$er Qualitative Interface, and the Existing Station is not currently
licensed to any of the services d-h in this Section 2, the Existing Station is not required
to license such service(s). However, for the avoidance of doubt, if an Existing Station
does not license the services d-h, then such Existing Station shall not be permitted
to use any such services in any manner that it is not licensed for. Clear Channel hereby
agrees that any such use is in violation of Arbitron’s intellectual property rights
including but not limited to copyright rights.
3. In the event that a New Station already has a pre-existing Arbitron license agreement(s)
for Local Market Report, Maximi$er, Arbitrends, RetailDirect and/or Scarborough, and the
Arbitron license agreement(s) [*****], such agreements shall be voided and incorporated into
the Diary Agreement using the initial pricing cost per share terms described in Section 4
below, as well as the Clear Channel’s rate escalator which is [*****] for the Term of this
Diary Agreement. Any such agreements will [*****].
4. For any New Station that is not a pre-existing Arbitron licensee, Clear Channel hereby
expressly agrees that Arbitron may use the following calculations below for determining the
License Charges associated with the New Station’s subscription for Arbitron’s Local Market
Report, Maximi$er and Arbitrends services (the “Basic Services”).
a. The following calculations apply to any New Station in an
Existing Station market for the Basic Services.
1) The License Charge for Arbitron’s Local Market Report service
for the New Station is calculated on an average cost per share
point basis, based on the average cost per share point paid by
all of the Existing Stations in the applicable market.
For example, the average cost per share point is calculated by
adding the total Persons 12+ AQH Share points for all of the
Existing Stations in the market (two-report average in a
two-report market (most recent two reports), four-report average
in a four-report market (most recent four reports)).
The current year combined annual Local Market Report, Maximi$er,
and Arbitrends (where Arbitrends is available) License Charges
(including sample surcharges, if applicable) for all of the
Existing Stations in the market is divided by the total share
points to determine an average cost per share point.
That average cost per share point is then multiplied by the
Persons 12+ AQH Share points of the New Station(s) to be
licensed (two-report average in a two-report market (most recent
two reports), four-report average in a four-report market (most
recent four reports)).
2
However, the share point will be taken from the then-current
report only in the event that the New Station(s) has just signed
on-the-air, or undergone a format change to determine the first
term year License Charge for the Local Market Report, Maximi$er
and Arbitrends (where Arbitrends is available) (collectively,
the “New Station Rate”).
After calculating the New Station Rate, it will become the first
term year License Charge for the Local Market Report, Maximi$er,
and Arbitrends (where Arbitrends is available), and will then
increase at a [*****] annual rate of escalation for the New
Station(s) during the Term.
b. The following calculations apply to any New Station not in an
Existing Station’s market.
1) The License Charge for Arbitron’s Local Market Report service
for the New Station is calculated on the average cost per share
point basis, based on the average cost per share point in Clear
Channel’s next three higher-ranked subscribing markets and its
next three lower-ranked subscribing markets (the “Ranked
Markets”).
For example, the average cost per share point is the total
Arbitron RMR/max/trends/sample cost divided by the total
12+ Clear Channel station share points in the applicable market.
The current year combined annual Local Market Report, Maximi$er,
and Arbitrends (where Arbitrends is available) License Charges
(including sample surcharges, if applicable) for all of Clear
Channel’s subscribing radio stations in the Ranked Markets is
divided by the average total share points to determine an
average cost per share point.
That average cost per share point for the Rated Markets is then
multiplied by the total 12+ share points of the New Station to
determine a final License Charge first term year rate for the
Local Market Report, Maximi$er and Arbitrends (where Arbitrends
is available). This first term year rate shall increase at a
[*****] annual rate of escalation for the New Station(s) during
the Term.
c. The Parties hereby expressly agree that the calculations set forth in
Sections 4(a) and 4(b) hereinabove shall apply to any situations where a New
Station(s) has not been an Arbitron licensee in the twelve (12)
months immediately preceding the effective date of Clear Channel’s purchase,
acquisition, obtaining an ownership interest in, and/or has a management
relationship with the New Station(s).
d. The license term for any New Station(s) licensed under this Section 4
shall begin with the survey next following Arbitron’s written notice to Jess
Hanson of Clear Channel or his authorized designee of Arbitron’s intent to
add such New Station(s) under the Diary Agreement.
3
e. Subject to Appendix A attached hereto, Arbitron hereby agrees that Clear
Channel shall not be required to subscribe for any New Station(s) until such
New Station(s) uses and/or receives any Arbitron services, data, and/or
information in the listed twenty-four markets. If any such use and/or
receipt occurs by the New Station in one of the listed twenty-four markets
in Appendix A, Clear Channel expressly agrees that the New Station(s) shall
be automatically invoiced from the date the radio station first uses and/or
receive such Arbitron services, data, and/or information on a retroactive
basis, and the terms and conditions of Section 4 shall apply without any
dispute thereof.
5. In the event a New Station and/or a Clear Channel radio station that previously was
unlicensed (due to not making minimum reporting standards to be included in the RMR) appears
as a reported Arbitron radio station in more than one Local Market Report, such New
Station and/or Clear Channel radio station shall be automatically licensed to the Arbitron
market in which Clear Channel reports the radio station’s home status.
6. New Arbitron Markets
If Arbitron opens entirely new radio markets in which Clear Channel owns, manages, and/or
operates radio stations after the Effective Date of this Addendum, Clear Channel shall
maintain the option to subscribe to such new markets; provided however, that Clear
Channel will be required to subscribe to those new markets that are opened at the request of
Clear Channel, or provided that Clear Channel is subject to the following language below***.
Pricing in the new markets shall be determined in accordance with Section 4 herein. The
Parties agree that, for this Section 6, the Aloha Trust Marketed Radio Station(s) and
stations located in the twenty-four markets listed in Appendix A will not be considered when
determining if Clear Channel owns, manages, and/or operates radio stations in a new radio
market that Arbitron opens. In other words, the twenty-four markets listed in Appendix A
and the markets in which the Aloha Trust Marketed Radio Station(s) will not be considered a
new market for the purposes of this Agreement.
a) in 2009 — none.
b) in 2010 — at least one of
the new radio markets.
c) in 2011 — at least one of
the new radio markets.
4
(d) In addition, for those newly created markets that Clear Channel elects not to license,
Clear Channel’s radio stations located in the newly created market shall no longer be
licensed to use the NRD current or past data, and it will not be entitled to use the County
Coverage service in any manner whatsoever.
(e) License Charges for any Arbitron services in the newly created market shall increase at
[*****] per year above the previous term year’s License Charges.
(f) Arbitron will notify Clear Channel of all radio broadcast measured markets to be
created for the upcoming Spring survey by July of the preceding year. Similarly, Arbitron
will notify Clear Channel of all new radio broadcast measured markets to be created for the
upcoming Fall survey by July of the preceding year.
(g) The Parties hereby expressly agree that any new Arbitron license agreement, entered into
pursuant to the terms of the Diary Agreement and/or this Addendum, shall immediately
co-terminate with the expiration of the Term of the Diary Agreement.
7. Clear Channel hereby expressly opts to obtain the rights for all Clear Channel
owned, managed, and operated radio stations to use Arbitron’s National Regional Database
(“NRD”) (accessible through Arbitron’s TapWeb service), as of the effective date of this
Addendum. Arbitron agrees to license such rights to Clear Channel for an annual License
Charge of [*****] during the first term year (January 1, 2009 — December 31, 2009) of the
Diary Agreement. The License Charge for NRD shall be increased by [*****] each calendar
term year thereafter during the Term.
5
For the avoidance of doubt, Clear Channel hereby acknowledges that NRD shall only be
delivered through Arbitron’s TapWeb service beginning with the Spring 2009 survey. In
addition, Clear Channel hereby further acknowledges that any customized geography (such as
for the State of Florida) will need to access their information through TapWeb. As a
result, Arbitron shall no longer generate a Maximi$er geographic csar (for the State of
Florida used for exemplary purposes only).
8. Clear Channel may neither assign nor transfer any license agreements and/or rights
associated with Arbitron’s NRD service unless such assignment and/or transfer is in its
entirety. In addition, such annual License Charge set forth in Section 7 is a corporate
charge to be billed at a corporate level and not at a market level.
9. Clear Channel expressly agrees that any use of Arbitron’s Summary Level Dataset and/or
Arbitron’s Nationwide Dataset, which may be provided under a separate processor agreement
between Arbitron and Clear Channel, is limited to use only by Clear Channel’s owned,
operated, and/or managed radio stations, and any Clear Channel corporate executives
overseeing such radio properties.
For the avoidance of doubt, any other entity associated with Clear Channel (including but
not limited to networks, rep. firms, traffic/commuter services, consultants, or the like),
must obtain their own separate Arbitron license agreement to access, use, and/or receive
Arbitron’s Summary Level Dataset, and/or Arbitron’s Nationwide Dataset.
10. Clear Channel corporate shall receive Arbitron’s Corporate Roll-Up service during the
Term at no additional License Charge; provided however, that Clear Channel properly
subscribes to Arbitron’s Basic Services available in all applicable Markets in which Clear
Channel manages, owns, and/or operates radio stations.
Arbitron hereby agrees that if the Aloha Trust Marketed Radio Station(s), as set forth on
Appendix B hereof, are no longer managed by Clear Channel, such actions by Clear Channel as
it solely pertains to the Aloha Trust Marketed Radio Station(s) shall not impact Clear
Channel’s corporate roll-up no charge status.
11. Clear Channel’s radio stations, as set forth on Schedule 1, are hereby granted
‘full market access,’ which is defined as an Arbitron limited, personal, and revocable
license to use data from all Arbitron syndicated radio broadcast measured markets, accessed
through Arbitron’s Maximi$er and Nationwide services. This may include data from Arbitron
radio broadcast measured markets in which Clear Channel does not own, operates, and/or
manages radio stations.
Moreover, if Clear Channel begins management, operation, ownership, or the like, of any
radio stations in markets not listed on Schedule 1, this ‘full market access’ right
under Section 11 shall be immediately and automatically revoked.
If Clear Channel owns, manages, and/or buys a New Station(s) in a market not set forth on
Schedule 1, then Clear Channel hereby expressly agrees that such New Station(s) must
properly subscribe with Arbitron in order for it to maintain its full market access under
this Section 11 of the Addendum.
12. In the event that Arbitron entirely replaces the diary-based ratings service in any
market(s) that Licensee is a current subscriber to with an electronic media measurement
service as the sole form of audience measurement for radio in that particular market, either
Party may terminate any, all, or a portion of the Arbitron license agreements with 60 days
written notice prior to implementation of such new electronic media measurement technology
in the affected
6
market(s). After such implementation of the new technology in the affected market(s),
neither Party shall have the right to terminate the Arbitron license agreements except as
provided in the Arbitron license agreements.
13. Arbitron hereby expressly agrees that Clear Channel shall have the right to cause
Arbitron to end all billing for the Diary Agreement on December 31, 2011, by incorporating
any License Charge(s) scheduled to roll-over into calendar year 2012 into Arbitron’s
October, November and December 2011 invoices in pro-rated equal amounts for the affected
markets (the “Invoice Right”). Clear Channel’s Invoice Right shall only be exercisable if
Clear Channel, in its sole discretion, opts to provide written notice to Arbitron that it is
exercising the Invoice Right.
For the avoidance of doubt, Clear Channel hereby expressly agrees that the License Charge
rate shall remain the same; but, that Arbitron is simply advancing the invoicing for the
License Charges in accordance with the exercise of Clear Channel’s Invoice Right. If
requested by Clear Channel to exercise its Invoice Right, it must provide Arbitron advance
written ninety (90) day notice that it desires for the License Charges to be invoiced in
accordance with this Section 13.
14. In the event that Arbitron replaces its RetailDirect qualitative service with its
Scarborough service in markets that Clear Channel is a licensee of the RetailDirect
qualitative service, Clear Channel shall have the right to cancel its RetailDirect license
agreements for the affected market with at least sixty (60) days advance written notice to
Arbitron prior to such implementation.
This right to cancel may only be exercised by Clear Channel if the
replacement of its RetailDirect qualitative service with a Scarborough service in markets
that Clear Channel is a licensee of the RetailDirect qualitative service, and such
replacement results in an increase of Clear Channel’s License Charges. If the
License Charges do not increase, then Clear Channel may not exercise this
cancellation right under this Section 14.
15. In the event that Arbitron develops new radio measurement services that are available
for commercial licensing in markets in which Clear Channel owns, operates, and/or manages
radio stations that are currently licensed to Arbitron services, Clear Channel shall
not be required to subscribe to such new radio measurement services in those
markets. In addition, this right shall also be applicable to any Arbitron radio measurement
services that are currently available in some radio markets as of the date of the execution
of this Addendum, and later introduced into other radio markets in which they were not
available as of the date of execution of this Addendum.
16. In the event that either Party discovers a clerical and/or typographical error in the
calculation of any License Charge(s) in any of the attachments, Schedule 1, the
Diary Agreement, and/or the Addendum, each Party hereby agrees to revise the affected
License Charge(s) in accordance with the provisions of this Addendum, and in good faith.
17. Discounts. Arbitron and Clear Channel hereby agree that Arbitron’s Group
Discount eligibility policy shall be applicable during the Term of this Agreement. Further,
any modification of any applicable Clear Channel discount under this Agreement, shall
not be considered a modification, redetermination, or the like, of Station’s Annual
Gross Rate, License Charge, Rate, or the like, that enables Clear Channel and/or Clear
Channel’s radio station(s), and/or Station to terminate the affected license agreement
and/or particular market.
Clear Channel hereby expressly agrees that any termination and/or cancellation notice (or
request that results in a reduction in Clear Channel’s service level) without Arbitron’s
agreement to such under this Addendum and/or other license agreements with Arbitron may
affect the various service level discounts that it is entitled to under the applicable
Arbitron license
7
agreement, and that Arbitron has the sole discretion to adjust such discounts in accordance with the
service level discount eligibility as a policy consequence thereof.
18. Arbitron hereby acknowledges that the radio stations set forth on Appendix B are
actively being marketed by Clear Channel for sale as of the effective date of this Addendum,
and have been placed in a trust (the “Aloha Trust Marketed Radio Stations”). If Clear
Channel sells, transfers ownership in, or transfers any management interest in the Aloha
Trust Marketed Radio Stations, then Arbitron hereby agrees to the following, provided
however, that the new owner and/or management does not wholly assume the Arbitron
license agreements associated with such Aloha Trust Marketed Radio Stations, and provided
that neither Clear Channel nor any of its radio stations are in breach of the Diary
Agreement and/or Addendum during the Term:
Clear Channel expressly agrees that it shall be liable for whichever amount is greater as
calculated under either Sections 18(a) or 18(b) herein.
If such sale, transfer of ownership in, or transfer of management interest in the applicable
Aloha Trust Marketed Radio Station(s) occurs during the final term year of the Diary
Agreement (January 1, 2011 — December 31, 2011), and less than six months remain for the
Term, then, Clear Channel hereby agrees that it shall be liable for the remainder of the
final term year of License Charges applicable for the services.
19. County Coverage printed reports will be provided to all Clear Channel radio stations
that are licensed to non-metro counties and that do not qualify for reporting in any Local
Market Report. This applies to all radio stations owned and/or managed by Clear Channel at
the date of execution of this Diary Agreement, plus the next twenty-five (25) radio stations
meeting the aforementioned criteria that are purchased and/or managed by Clear Channel
during the Term of the Arbitron License Agreement. An annual County Coverage fee of [*****]
per radio station shall be charged for any Clear Channel radio stations beyond those
additional twenty-five (25).
20. The use of an “*” (asterisk) in the Diary Agreement shall refer to the Schedule 1
Attachment, attached to the Diary Agreement and made a part thereof (the “Attachment”).
21. Section 3(a) is deleted in its entirety.
22. Section 5(a), insert the following new sentence before the first sentence of the
Subsection: “Arbitron shall invoice Station for any payments due hereunder, and payment
shall be due and payable no later than thirty (30) days after the date of such invoice.”
8
23. Section 5(c), line 6, insert “that have been issued broadcast licenses by the FCC (this
does not apply to parent corporations Clear Channel Communications, Inc. or Clear Channel
Broadcasting, Inc.),” after “Station or any of Station’s affiliated, subsidiary or related
corporations or entities” and before “regardless of whether...”.
24. Section 5(d), line 6, delete “or its station(s)” and replace it with “or those entities
described in 5(c) above”.
25. Section 6(b), line 10, replace “ten (10) days” with “ten (10) business days”.
26. Section 6(c) is deleted and replaced with the following new language:
“In the event of a force majeure occurrence, and to the extent beyond
the reasonable control of Arbitron, including, but not limited to, civil
disturbance, war, or other casualty, government regulations or acts or
acts of God, and/or postal interruptions, Arbitron may increase the
Gross Annual Rate hereunder, if such force majeure event results in a
cost increase to Arbitron which Arbitron explains in writing to Clear
Channel and such increase is applied to the majority of Arbitron’s
customers who license similar services as licensed hereunder (nothing in
this passage shall not entitle Clear Channel to audit the business books
and/or records of Arbitron). If Arbitron increases the license rates
charged for one or more of the aforementioned reasons, it shall give
prior written notice to Clear Channel. Clear Channel may, within a
30-day period following such notice, cancel the unexpired Term of the
Agreement for only the Data and/or Reports and/or Services and Market
for which Arbitron has increased its Rate pursuant to such notice (all
other terms and conditions of the Agreement in the unaffected Markets
shall remain in full force and effect), by written notice pursuant to
Section 15(a), without cancellation charge or other cost, effective on
the date the new Gross Annual Rate would have become effective. In the
absence of such timely cancellation, this Agreement shall continue and
the new Gross Annual Rate shall become payable as stated in Arbitron’s
notice and thereafter.”
27. Section 7, second paragraph, add the following sentence after the last sentence of the
paragraph ending with “. . . an infringement of Arbitron’s copyright”: “Arbitron hereby
agrees that Clear Channel may reference any of Arbitron’s services and/or use the Arbitron
logos, trade names, and/or service marks; provided however, such reference and/or
use is consistent with the normal course of business (e.g., sales presentations) for Clear
Channel and/or its radio stations, and further that such reference and/or use does not
disparage Arbitron or otherwise involve any action which one would consider an act of moral
turpitude.”
28. Section 7, third paragraph starting with “In the event” is hereby deleted in its
entirety and replaced with the following new sentence:
“In the event that a Report for the Markets listed in Section 1 of this
Agreement is delivered after the expiration of the Term of this
Agreement, Station’s license to use that Report shall continue under the
terms and conditions of this Agreement until the release of the next
survey Report in the applicable licensed Market, or, if Arbitron does
not release a new survey Report in the applicable licensed Market and
provides Station with written notice after such Report is delivered, six
(6) months after such Report’s release, whichever occurs earlier.”
9
29. Section 10, last paragraph starting with “In the event” is hereby deleted in its
entirety.
30. Section 11, first paragraph, delete the second sentence and replace it with the
following new sentences:
“Notwithstanding the foregoing sentence, in the event that Clear Channel
sells all or substantially all of Clear Channel’s assets of one or more
of its radio stations licensed hereunder, Clear Channel may assign its
rights and obligations applicable to such sold radio station(s) without
Arbitron’s consent, provided: (i) Clear Channel provides written notice
to Arbitron as soon as such notice would not violate any SEC rules
and/or regulation, but in no event not less than thirty (30) days prior
to the effective date of any assignment, (ii) the entity acquiring the
radio station enters into Arbitron’s standard form license agreement(s)
for the relevant services being assigned (this Amendment or any other
amendment created for Clear Channel shall not pass to the acquiring
station), (iii) Clear Channel shall be permitted to assign the
applicable License Charges for the services licensed for such sold radio
stations(s) but excluding any Clear Channel specific discounts or other
general Arbitron discounts which the acquiring station would not
otherwise be entitled. Further, the rates applicable to the assignment
are at all times subject to Arbitron’s right to redetermine the rate to
be charged to the assignee if such assignment results in an expanded use
of the Data or Reports. However, in the event that Arbitron determines
that such assignee is a competitor of Arbitron, such determination to be
in the sole and absolute discretion of Arbitron, Arbitron shall have the
right to reject the assignment, however, in the event of such rejection
the services and applicable license fees for such sold radio station
shall be terminated.”
31. Section 11, second paragraph, second sentence, insert “covered by this Agreement” after
“. . . one of its radio stations” and before “, Station remains fully . . .”.
32. Section 11, third paragraph, line 2, delete “(including the use of digital
subchannels)”.
33. Section 11, third paragraph, delete the second sentence starting with “In the event of
such occurrence” and replace it with the following new language:
“In the event of such occurrence, Station agrees that such new station(s)
shall be treated as set forth in the Addendum and that Arbitron may
redetermine Station’s Gross Annual Rate (in accordance with this Addendum)
to reflect the use of the Services by the new radio station (it being
understood that the Gross Annual Rate applicable to existing Clear Channel
stations licensed hereunder prior to such occurrence will not increase).”
34. Section 11, fourth paragraph, the following new language is added to the end of the only
sentence starting with “Station further agrees that . . .”: “(such redetermined Gross
Annual Rate is to reflect the use of the Services licensed by the new radio station, and the
Gross Annual Rate applicable to existing Clear Channel stations licensed hereunder prior to
such occurrence will not increase).”
35. Section 13(b), line 4, insert “reasonable” before “judgment” and after “in its”.
36. Section 15(d) is hereby deleted in its entirety.
10
37. Section 15(g), line 4, delete “for any reason” and replace it with “in the event
Arbitron ceases to produce such Services”.
38. Section 15(h) is hereby deleted in its entirety.
39. Each Party hereby expressly agrees that if a party is determined by a court of competent
jurisdiction to be in breach of this Addendum and/or the Diary Agreement, then the
non-breaching Party shall be entitled to all reasonable costs associated with such breach,
including but not limited to attorney’s fees.
40. Joint Preparation. This Addendum and the Diary Agreement have been jointly
prepared and negotiated by the Parties and their respective attorneys, and neither the
language nor any of the provisions of the Addendum and/or the Diary Agreement shall be
construed more strictly for and/or against either Party as a result of each Parties’
participation in such preparation and negotiations.
41. Breach. Clear Channel hereby expressly agrees that if it is in breach of this
Agreement and/or Addendum with Arbitron, and such breach is not cured within thirty (30)
days after Arbitron provides notice of such breach to Jess Hanson and/or his designee at
Clear Channel, then Arbitron shall be entitled to at least all legal costs associated with
such breach; provided however, that a court of competent jurisdiction determines
that Clear Channel was in breach of the Diary Agreement and/or Addendum.
42. Clear Channel (or its affiliates) and Arbitron are also Parties to additional Arbitron
license agreements (the “Other Agreements”) of even date herewith. To the fullest extent
feasible, any modifications to the Diary Agreement set forth in this Addendum shall apply
equally to the Other Agreements (it being understood that certain Section references in the
Other Agreements may be different from Section references in the Diary Agreement). Both
Parties further agree that additional license agreements executed after the date herewith
may also be added by mutual written agreement and governed under this Section 42.
All other terms and conditions of the Diary Agreement shall remain in full force and effect.
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