(i) | Management Agreement, dated as of March 30, 1999, as amended by the Letter Agreement (the “Letter Agreement”), dated April 15, 2002 (the “Management Agreement”); | ||
(ii) | Registration Rights Agreement, dated as of March 30, 1999, as amended by the Letter Agreement (the “Registration Rights Agreement”); | ||
(iii) | Amended and Restated Representation Agreement, dated as of March 30, 1999, as amended by the Letter Agreement (the “Representation Agreement”); | ||
(iv) | Trademark License Agreement, dated as of March 30, 1999, as amended by the Letter Agreement (the “License Agreement”); | ||
(v) | News Programming Agreement, dated as of March 30, 1999, as amended by the Letter Agreement (the “Programming Agreement”); | ||
(vi) | Technical Services Agreement, dated as of March 30, 1999, as amended by the Letter Agreement (the “Services Agreement”); | ||
(vii) | CBS holds certain warrants (whether exercisable or not and including all amendments thereto, collectively, the “Warrants”) to acquire shares of WON common stock, par value $.01 per share (“WON Common Stock”); | ||
(viii) | multiple Affiliation Agreements identified on Schedule 1 between CBS and/or radio stations owned and operated by CBS and/or its affiliates and WON for programming identified thereon (collectively, the “Affiliation Agreements”); and | ||
(ix) | multiple agreements between CBS and/or CBS radio stations, on the one hand, and Metro Networks Communications, Inc. and/or its affiliates (“Metro”), or their respective subsidiaries, on the other hand, for programming identified on Schedule 2 (collectively, the “Metro Agreements”); and |
1. | Closing. The closing for the transactions contemplated by this Master Agreement (the “Closing”) will be held at the offices of Skadden, Arps, Slate, Meagher & Flom LLP, 4 Times Square, New York, New York 10036, at 10 a.m. on the first business day following the date of the satisfaction or waiver of the conditions set forth in Section 24 (other than conditions that by their nature are to be satisfied at Closing, but subject to satisfaction or waiver of those conditions at such time) or such other date, place and time as CBS and WON may agree in writing (such date, the “Closing Date”). On the Closing Date, the parties shall deliver (i) executed copies of the agreements referred to herein and set forth on Schedule 3 (collectively with this Master Agreement, the “New Transaction Documents”) and (ii) such other documents and certificates as the parties may reasonably require. This Master Agreement is effective on the date hereof and the other New Transaction Documents, other than the Station Agreements (as defined below), shall be effective on the Closing Date. The Station Agreements shall be effective (x) on the first day of the month of the Closing Date in the event that the Closing Date falls on the first through fifteenth day of a month or (y) on the first day of the month immediately following the Closing Date in the event that the Closing Date falls on the sixteenth through the last day of a month (the effective date of the Station Agreements being the “Effective Date”). |
2. | Termination of Management Agreement. On the Closing Date, the Management Agreement shall terminate and WON shall pay to CBS as “Manager” any accrued and unpaid compensation owed to Manager through the Closing Date in accordance with Section 18 hereof. Sections 1.8, 1.9 and 1.10 and Article VI of the Management Agreement shall survive termination of the Management Agreement,provided that Sections 1.8 and 1.9 shall only survive with respect to third party claims (i.e., claims by non-affiliates). Except as provided in this Section 2, following the Closing Date WON shall have no further obligation to compensate Manager pursuant to the Management Agreement. |
3. | Representation Agreement and Affiliation Agreements. On the Closing Date, the Representation Agreement shall terminate and, on the Effective Date, the Metro Agreements and the Affiliation Agreements shall terminate. The Metro Agreements and the Affiliation Agreements, upon their termination as of the Effective Date, shall be replaced by the Station Agreements described in Section 4 below. Sections 10.1 (Indemnification) and 10.2 (Procedure for Indemnification) of the Representation Agreement shall survive such termination of the Representation Agreement only with respect to third party claims (i.e., claims by non-affiliates). For the avoidance of doubt, following termination of the Representation Agreement, Owner (as defined in the Representation Agreement) shall not have the “Purchase Right” described in Section 12.6(a) of the Representation Agreement and Representative (as defined in the Representation Agreement) shall not be required to prepare a “Final Working Capital Statement” as described in Section 12.6(c) of the Representation Agreement. |
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4. | Affiliation Agreements. (a) On the Closing Date, WON shall enter into WWO Affiliation Agreements (the “WWO Affiliation Agreements”) and shall cause Metro Networks Communications, Limited Partnership (“MNCLP”), to enter into Metro Affiliation Agreements (the “Metro Affiliation Agreements” and, together with the WWO Affiliation Agreements, the “Station Agreements”), in each case, with CBS (on its behalf and on behalf of each radio station owned and operated by CBS and/or its affiliates listed on Schedule 4, the “CBS Stations”), such agreements shall be in the forms attached hereto as Exhibit A and Exhibit B, respectively, and shall each become effective as of the Effective Date. |
(b) | WON hereby guarantees the payment and performance by MNCLP of all of MNCLP’s obligations under the terms of the Metro Affiliation Agreements. WON agrees that neither CBS nor any other party-in-interest in respect of any Metro Affiliation Agreement needs to pursue any remedy against MNCLP prior to proceeding directly against WON;provided that, in respect of any such claim against WON in connection with any Metro Affiliation Agreements, CBS and any such other party-in-interest shall also proceed against MNCLP. The obligations of WON as guarantor of the obligations of MNCLP under the Metro Affiliation Agreements are absolute and unconditional. The obligations of WON pursuant to this Section 4(b) shall not apply following a sale of substantially all the assets of the business unit or division providing the services in the Metro Affiliation Agreements in accordance with Section 28(f) where the Purchaser of such business unit assumes or guarantees the obligations under such Metro Affiliation Agreements in accordance with the terms thereof. |
5. | News Programming Agreement. On the Closing Date, the existing News Programming Agreement shall be extended through March 31, 2017, and amended and restated in the form attached hereto as Exhibit C. |
6. | Program Agreements. Effective as of the Closing Date, without further action required by the parties, (i) the agreements relating to the various programs listed on Schedule 5A shall continue to be in effect on their current terms and conditions through the earlier of: (x) March 31, 2017 or (y) the stated expiration or termination date of such agreements as indicated on Schedule 5A, and (ii) CBS shall continue to broadcast the WON programs listed on Schedule 5B (or such replacement or substitute programs that are mutually agreed upon from time to time by the parties) at the same time and on the same CBS Stations through the earlier of (x) the expiration of the corresponding terms set forth on Schedule 5B or (y) such time that such programs are terminated or discontinued by WON. CBS agrees that, unless CBS is contractually prohibited from doing so, before it or any of its affiliates offers, sells or otherwise makes available for on-air syndication or other on-air distribution any radio programming featuring talent employed by or otherwise under contract with CBS or its affiliates (“Syndications”), CBS shall in each case, except for |
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pre-existing programming contracts and any renewals or extensions thereof on commercially reasonable terms, first offer (by written notice to WON, which notice shall describe the nature of such Syndication and the terms and conditions on which CBS or such affiliate intends so to offer, sell or otherwise make available such Syndication, in reasonable detail) each such Syndication to WON on the same terms and conditions (substituting WON as the prospective buyer of such Syndication) as CBS or such affiliate intends so to offer, sell or otherwise make available such Syndication. For the avoidance of doubt, CBS’ covenant to first offer Syndications to WON set forth in the immediately preceding sentence shall be limited to on-air syndication and other on-air distribution and shall not include any web syndication, internet streaming or other means of distribution (other than Syndications where CBS has agreed to provide for the simultaneous internet streaming of on-air radio programming on CBS websites). If WON fails to accept such offer by written notice to CBS within ten (10) business days after notice is given by CBS, CBS or such affiliate, as the case may be, may, for a period of one hundred eighty (180) days thereafter, offer, sell or otherwise make available such Syndication to one or more third parties on terms and conditions no more favorable to the third party than those specified in such notice to WON, but not otherwise,provided,however, that the rights of WON and the obligations of CBS under this Section 6 shall terminate on March 31, 2017 as to any offer made to WON pursuant to this Section 6 that is not so accepted by WON, prior to March 31, 2017. If WON accepts such offer prior to March 31, 2017, CBS will cause the transaction to be consummated, subject to the approval of any agreements in respect thereof by WON. |
7. | Employment Agreements. Schedule 6 attached hereto sets forth a summary of certain severance arrangements as proposed by WON (any payments pursuant to such arrangements (“Severance Payments”)). WON and CBS shall each be responsible for 50% of such Severance Payments until WON has paid $1,000,000 of Severance Payments, whereupon CBS shall be responsible for all Severance Payments in excess of $2,000,000. |
8. | Board of Directors. Effective on the Closing Date, CBS shall cause any individuals employed by CBS who serve on the WON Board of Directors to resign. |
9. | Standstill. Until December 31, 2007 (the “Standstill Period”), CBS shall not (A) offer for sale, sell, transfer, tender, pledge, encumber, assign or otherwise dispose of, enter into any contract, option or other arrangement or understanding with respect to, or consent to, the offer for sale, sale, transfer, tender, pledge, encumbrance or assignment, or other disposition (including, without limitation, any “Constructive Disposition,” as defined below) (each a “Transfer”), of any or all of the CBS Shares, or any interest therein, grant any proxies or powers of attorney other than to representatives of WON in connection with an annual or special meeting of the stockholders of WON or (B) enter into an agreement or arrangement providing for any of the actions in (A) above; provided, however, that CBS may Transfer some or all of the CBS Shares to CBS Corporation or any of its Subsidiaries. “Constructive Disposition” means with respect to any CBS Shares, a short sale with respect to such security, entering into or acquiring an offsetting derivative contract with respect to such security, entering into or acquiring a futures or forward contract to deliver such security or entering into any hedging or other derivative transaction that has the effect of materially changing the economic benefits and risks of ownership. Any attempted Transfer in violation of this Section 9 shall be null and void and of no force or effect and WON shall notify its transfer agent that during the Standstill Period there is a stop transfer with respect to all CBS Shares in accordance with this Section 9. |
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10. | Registration Rights. On the Closing Date, CBS and WON shall enter into a new Registration Rights Agreement (the “New Registration Rights Agreement”) in the form of Exhibit D which shall provide CBS with registration rights for the CBS Shares effective following the end of the Standstill Period. |
11. | Warrants and Registration Rights Agreement. On the Closing Date, CBS shall assign to WON all of its right, title and interest in and to the Warrants, which shall be retired, and the Registration Rights Agreement shall be cancelled and terminated. |
12. | Non-competition, etc. (a) For the period commencing on the Closing Date and ending on March 31, 2010, except as set forth on Schedule 7 hereto or otherwise agreed by CBS and WON, CBS will, and will cause its affiliates and its and their officers and employees to, refrain from, either alone or in conjunction with any other person, or directly or indirectly through its or their present or future affiliates: |
(i) | Managing, purchasing, establishing, participating in, or having a substantial ownership interest in (other than through the ownership of five percent (5%) or less of any class of securities registered under the Securities Exchange Act of 1934, as amended), or otherwise lending assistance (financial or otherwise) to, a radio network company (which, for purposes of this Master Agreement, shall mean any compensation-based radio network that is RADAR-rated) or any other radio syndicator (a “Radio Network Company”), or entering into, or obtaining rights under, any agreement providing for an option to do any of the foregoing,provided,however, that the terms of this Section 12(a)(i) shall not apply to any activities engaged in (A) by CBS with respect to CBS Stations or (B) (at the time of acquisition) by any entity which is acquired by CBS or any of its affiliates after the date of this Master Agreement;provided that such entity, or the activities in conflict with this Section 12(a)(i), are divested or discontinued by CBS or such affiliate of CBS by the later of (i) one (1) year after the date such entity is acquired or (ii) as soon as reasonably practicable pursuant to an orderly process whereby CBS or such affiliate of CBS is able to realize the fair value for such operations (such value to be reasonably determined by CBS), but in no event more than two (2) years after the date such entity is acquired; | ||
(ii) | disclosing (unless compelled by judicial or administrative process) or using any confidential or secret information relating to WON or any of its clients, customers or suppliers; or |
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(iii) | causing or attempting to cause any client, customer or supplier of WON to terminate or materially reduce its business with WON,provided,however, that the terms of this Section 12(a)(iii) shall not apply to any activities engaged in by CBS solely with respect to: (a) the sale of ten (10)-second sponsorships in or adjacent to traffic reports as hereinafter provided in this Section 12(a)(iii), or (b) the sale of any other advertising by CBS on a station-by-station basis. CBS and its affiliates will be permitted to sell ten (10)-second sponsorships in or adjacent to traffic reports through one or more national sales representation firms, subject to the following conditions: (1) sales will not exceed $3.0 million for the first 12 months after the Closing Date, and (2) sales will not exceed $4.0 million annually for each 12 months after the first anniversary of the Closing Date until March 31, 2010;provided,however, that the parties agree that the immediately preceding limitation applies only (x) with respect to ten (10)-second sponsorships in or adjacent to traffic reports and not to any other ten (10)-second sponsorships and (y) until March 31, 2010. In addition, CBS and its affiliates will be permitted to continue to sell sponsorships in or adjacent to traffic reports on a station-by-station basis without limitation. CBS’s agreement to this provision (including the limitations set forth in the second immediately preceding sentence) shall not constitute an admission by CBS of and/or evidence of a past and/or present violation of Section 4.1(a)(iii) of the Management Agreement by CBS. |
(b) | The parties hereto recognize that the laws and public policies of the various states of the United States may differ as to the validity and enforceability of covenants similar to those set forth in this Section 12. It is the intention of the parties that the provisions of this Section 12 be enforced to the fullest extent permissible under the laws and policies of each jurisdiction in which enforcement may be sought, including through judicial modification of the provisions of this Section 12 in order to conform such section to provide for its enforceability to the maximum extent permissible, and that the unenforceability (or the modification to conform to such laws or policies) of any provisions of this Section 12 shall not render unenforceable, or impair, the remainder of the provisions of this Section 12. Accordingly, if any provision of this Section 12 shall be determined to be invalid or unenforceable, such invalidity or unenforceability shall be deemed to apply only with respect to the operation of such provision in the particular jurisdiction in which such determination is made and not with respect to any other provision or jurisdiction. |
(c) | The parties hereto acknowledge and agree that any remedy at law for any breach of the provisions of this Section 12 may be inadequate, and CBS hereby consents to the granting by any court of an injunction or other equitable relief without the necessity of actual monetary loss being proved or the posting of any bond, in order that the breach or threatened breach of such provisions may be effectively restrained. |
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13. | Non-Solicitation. Each of WON and CBS agrees that during the period from the Closing Date through December 31, 2012, without the prior consent of the other party, neither it nor any of its affiliates will (or will assist or encourage others), directly or indirectly, solicit to hire any employee of the other party or any of its subsidiaries;provided,however, that the foregoing provision will not prevent either WON or CBS from hiring any such person who contacts such party on his or her own initiative as a result of placing a general advertisement in trade journals, newspapers or similar publications which are not directed at the other party or its affiliates. |
14. | License Agreement. On the Closing Date, the existing License Agreement shall be extended through March 31, 2017, and amended and restated in the form attached hereto as Exhibit E (the “New License Agreement”). |
15. | Services Agreement; Lease Arrangements. (a) On the Closing Date, the existing Services Agreement shall be extended through March 31, 2017, and amended and restated in the form attached hereto as Exhibit F (the “New Services Agreement”). |
(b) | On the Closing Date and in connection with entering into the New Services Agreement, CBS and WON shall enter into the lease agreements and sublease agreement in the forms attached hereto as Exhibits G, H and I, respectively (collectively, the “Leases”). |
16. | Stockholder Meeting; Proxy Statement. WON shall include a proposal approving this Master Agreement and the other New Transaction Documents in a proxy statement (the “2007 Proxy”), and the WON Board of Directors shall recommend that the stockholders approve such proposal. WON shall prepare and file the 2007 Proxy with the Securities and Exchange Commission (“SEC”) as soon as practicable following the date hereof and shall use commercially reasonable efforts to have the 2007 Proxy declared effective as soon as practicable following such filing with the SEC. WON shall provide CBS with drafts of the 2007 Proxy and any amendments thereto sufficiently in advance of any filings with the SEC in order to allow CBS and its advisors an opportunity to review such drafts and provide any comments to WON prior to filing with the SEC, and CBS agrees that it will cause such review to be conducted promptly following receipt of such drafts. WON agrees that none of the information in the 2007 Proxy will contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading;provided that WON shall not be responsible for the accuracy of any information furnished in writing to WON by CBS expressly for use in the 2007 Proxy. |
17. | Transition Period. (a) Following the execution of this Master Agreement and prior to the Closing Date and the Effective Date, the parties shall cooperate with each other and shall take such actions as reasonably necessary in order to successfully implement the New Transaction Documents and the intent of the parties with respect to the matters contained herein. The parties hereto agree and acknowledge that each of the respective Old Transaction Documents and the related rights and obligations of WON and CBS thereunder will remain in full force and legal effect until the earlier of the Closing Date, the Effective Date or the end of the respective term of each of the Old Transaction Documents, as applicable. |
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(b) | Without limiting any other provision hereof, CBS and WON shall each use its reasonable best efforts to avoid the entry of, or to have vacated or terminated, any decree, order or judgment against it that would restrain, prevent or delay the consummation of the transactions contemplated by this Master Agreement, on or before the Drop Dead Date (as defined below), including by defending through litigation on the merits any claim asserted against it in any court by any person or entity. |
18. | Payments. Schedule 8 hereto identifies the categories of compensation owed to CBS and its affiliates by WON under the Old Transaction Documents as of the date hereof and also reflects good faith estimates of the amounts that had been due as of the date hereof. WON shall pay to CBS on or prior to the Closing Date all such amounts. WON agrees to make timely payment with respect to all such additional amounts which become due after the date hereof and CBS agrees to update Schedule 8 as of the Closing Date to reflect any amounts owed and unpaid as of the Closing Date. In addition, on the Closing Date, WON shall pay (by wire transfer of immediately available funds) to CBS an additional $5 million (five million dollars). In addition, in the event that Commercial Clearance during 2008 for CBS’ top ten markets (as determined by Arbitron), is less than 93.75% (ninety three and three-fourths percent), the parties agree that WON shall have the right to receive a payment in the amount of $2 million (two million dollars) from CBS, which payment shall be paid by CBS no later than 30 days after the final determination of Commercial Clearance for 2008, or, in lieu of such payment, at its option, WON shall be entitled to reduce by $2 million (two million dollars) in the aggregate any future payments to CBS. |
19. | Clearance Bonus. CBS shall be entitled to earn an annual potential bonus (the “Clearance Bonus”) during the term of each of the WWO Affiliation Agreements based on the total percentage of commercial minutes actually broadcast by the CBS Stations in a calendar year (measured against those minutes set forth in Exhibit 1 of the form of WWO Affiliation Agreement, as such Exhibit 1 may be modified as provided therein, and as determined in all respects subject to CBS’ rights related to sports preemptions and make goods set forth in the Station Agreements, “Commercial Clearance”) as follows: |
Commercial | Potential | |||||
Clearance | Bonus Payment | |||||
³ 95.0% | $4.0 million | |||||
94.0% | $3.5 million | |||||
93.0% | $2.8 million | |||||
92.0% | $2.2 million | |||||
91.0% | $1.4 million | |||||
90.0% | $0.7 million | |||||
< 90.0% | $0.0 million |
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The Clearance Bonus for Commercial Clearance between the Commercial Clearance percentages above will be interpolated on a straight line basis. The Commercial Clearance percentage shall be determined as described in the WWO Affiliation Agreements. The Clearance Bonus, if any, shall be paid by WON to CBS (on behalf of the CBS Stations) no later than the end of the first calendar quarter immediately succeeding the year in respect of which payment of the Clearance Bonus is determined based on affidavits submitted demonstrating spots cleared in the prior year (to the extent such affidavits were submitted on a timely basis or prior to the expiration of any cure period). Any Clearance Bonus for less than a full calendar year (e.g., 2017) shall be prorated based on the number of full months the WWO Affiliation Agreements are in effect for such partial year;provided, that if the Closing Date occurs after February 29, 2008, the Clearance Bonus for calendar year 2008 shall be calculated as if the Closing Date had been February 29, 2008. Any payment not paid to CBS on or before the date set forth above shall bear interest from the date of such required payment at an annual rate of 8% (eight percent). |
20. | Mutual Release. On the Closing Date the parties shall enter into a Mutual General Release and Covenant Not to Sue (the “Release”) in the form attached hereto as Exhibit J. |
21. | Deferral Right. Notwithstanding any payment term to the contrary contained herein or any of the New Transaction Documents, WON shall have the right, exercisable as described in this Section until 24 months after the Effective Date (the “Deferral Period”), to defer inventory compensation payments (but not any Clearance Bonus payments) then owed to CBS (a “Payment Deferral”) under the terms of the Station Agreements;provided that WON has not breached any material provision of the Station Agreements (subject to any cure period described therein, it being understood that a failure to pay is a material provision). WON may exercise one Payment Deferral once per 12-month period within such 24-month period (i.e., once in each of the first and second years after the Effective Date);provided, that WON may not exercise the Payment Deferrals (i) in successive calendar quarters or (ii) if WON, at the time it wishes to exercise its Payment Deferral, owes CBS or would owe CBS after giving effect to any such Payment Deferral, in the aggregate, more than four million dollars ($4,000,000) in deferred compensation payments payable under the terms of the Station Agreements; and,provided,further, that each Payment Deferral shall be for a period of no more than 12 months from the original due date applicable to such payment. Any amounts deferred by WON under this Section 21 (the “Deferred Amounts”) shall bear interest at an annual interest rate of six percent (6%), which amount shall be due and payable with all Deferred Amounts. |
22. | Right of Prepayment. WON shall have the right to prepay such amount of Incremental Station Compensation Payments as may be mutually agreed upon by WON and CBS subject to a discount rate of six percent (6%). For purposes hereof, “Incremental Station Compensation Payments” shall mean the sum of: (x) annual compensation payments payable to the CBS Stations as set forth in the Station Agreements less (y) $42.40 million. |
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23. | Representations and Warranties. | |
Each of the parties hereto represents and warrants to the other that, as of the date hereof: |
(a) | it is duly organized, validly organized and in good standing under the laws of the jurisdiction in which it is formed and has all requisite corporate authority to own its property and assets and to conduct its business as presently conducted or proposed to be conducted under this Master Agreement; | ||
(b) | it has the corporate power and authority to execute, deliver and perform its obligations under this Master Agreement; | ||
(c) | all necessary action has been taken to authorize its execution, delivery and performance of this Master Agreement and this Master Agreement constitutes its legal, valid and binding obligation enforceable against it in accordance with its respective terms, except as such enforcement may be limited by applicable bankruptcy, insolvency, moratorium and other similar laws affecting the rights of creditors generally and by general principles of equity; | ||
(d) | neither its execution and delivery of this Master Agreement nor the performance of its obligations hereunder will: |
(i) | conflict with or violate any provision of its certificate of incorporation or bylaws; | ||
(ii) | conflict with, violate or result in a breach of any constitution, law, judgments, regulation or order of any governmental authority applicable to it; or | ||
(iii) | conflict with, violate or result in a breach of or constitute a default under or result in the imposition or creation of any mortgage, pledge, lien, security interest or other encumbrance under any term or condition of any mortgage, indenture, loan agreement or other agreement to which it is a party or by which is properties or assets are bound except with respect to WON, that certain Credit Agreement, dated as of March 3, 2004, by and among WON, certain subsidiaries of WON, JPMorgan Chase Bank and other parties thereto, as amended (the “Loan Agreement”), and/or the Note Purchase Agreement, dated as of December 3, 2002, by and among WON and the purchasers party thereto (the “Senior Note Purchase Agreement”); |
(e) | other than Stockholder Approval (as defined below), no approval, authorization, order or consent of, or declaration, registration or filing with any governmental authority or third party is required for its valid execution, delivery and performance of this Master Agreement, except such as have been duly obtained or made and with respect to WON, the Loan Agreement and/or Senior Note Purchase Agreement; and |
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(f) | there is no action, suit or proceeding, at law or in equity, by or before any court, tribunal or governmental authority or third party pending, or, to its knowledge, threatened, which, if adversely determined, would materially and adversely affect its ability to perform its obligations hereunder or the validity or enforceability of this Master Agreement. |
CBS represents and warrants that, as of the date hereof, it has no intention to sell any CBS Stations;provided,however, that this representation excludes the sales of CBS Stations that have been publicly announced and are currently pending as of the date hereof as set forth on Schedule 9 hereto. The foregoing statement is made as of the date hereof and shall not be construed to mean that CBS will not change its intention after the date hereof or consider the sale of any CBS Stations from time to time. |
24. | Conditions to Closing. (a) The obligations of WON to consummate the transactions contemplated by this Master Agreement, including, without limitation, the execution and delivery of the New Transaction Documents (other than the Master Agreement) are subject to the satisfaction or waiver, on or prior to the Closing Date, of each of the following conditions: |
(i) | Performance. CBS shall have performed in all material respects, consistent with past practice (in the case of the Management Agreement), its covenants and obligations required to be performed by it on or before the Closing Date under both this Master Agreement and the Management Agreement; | ||
(ii) | Representations and Warranties. The representations and warranties of CBS contained in this Master Agreement shall be true and correct in all material respects as of the Closing Date as if made on the Closing Date (other than the representation and warranty of CBS set forth in the last paragraph of Section 23, which representation and warranty shall be true and correct in all material respects on the date hereof); | ||
(iii) | Stockholder Approval. The stockholders of WON shall have approved the New Transaction Documents by the affirmative vote of stockholders representing a majority of WON’s Common Stock and Class B Stock, which are not beneficially owned by CBS or its affiliates (provided that the Common Stock beneficially owned by CBS will count towards the determination of a quorum only), voting together as a single class, represented in person or by proxy at a meeting of WON stockholders (“Stockholder Approval”); |
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(iv) | Refinancing of WON’s Existing Credit Obligations. WON shall have successfully refinanced or modified the Loan Agreement and/or obtained the necessary consents and/or waivers under the Loan Agreement and/or Senior Note Purchase Agreement, as may be required, in each case, in a manner that WON’s Board of Directors reasonably determines permits WON to conduct its business operations in compliance with its legal and financial obligations including its obligations under the New Transaction Documents (“Financing Condition”); and |
(v) | Material Adverse Effect. Since the date of this Master Agreement, there shall not have been or occurred any event, change, occurrence or circumstance that, individually or in the aggregate with any other events, changes, occurrences or circumstances, has had or would reasonably be expected to have a material adverse effect on (a) the assets, results of operations or the financial condition of CBS or of the CBS Stations, in the aggregate, or (b) the ability of CBS to perform its obligations under this Master Agreement or the other New Transaction Documents. | ||
(vi) | No Injunctions or Restraints. No law, injunction, judgment or ruling enacted, promulgated, issued, entered, amended or enforced by any governmental body (collectively, “Restraints”) shall be in effect enjoining, restraining, preventing or prohibiting consummation of the transactions contemplated by this Master Agreement or making the consummation of any such transactions illegal. |
(b) | The obligations of CBS to consummate the transactions contemplated by this Master Agreement, including, without limitation, the execution and delivery of the New Transaction Documents (other than the Master Agreement) are subject to the satisfaction or waiver on or prior to the Closing Date, of each of the following conditions: |
(i) | Performance. WON shall have performed in all material respects and consistent with past practice its covenants and obligations under this Master Agreement required to be performed by it on or before the Closing Date, including having paid CBS all monies owed to CBS or its affiliates at the Closing Date under the Old Transaction Documents in accordance with Section 18; | ||
(ii) | Representations and Warranties. The representations and warranties of WON contained in this Master Agreement shall be true and correct in all material respects as of the Closing Date as if made on the Closing Date; | ||
(iii) | Stockholder Approval. Stockholder Approval shall have been obtained; | ||
(iv) | Payments. WON shall have made all of the payments to CBS in accordance with Section 18. |
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(v) | Material Adverse Effect. Since the date of this Master Agreement, there shall not have been or occurred any event, change, occurrence or circumstance (excluding any of the foregoing that could reasonably have been prevented or materially mitigated by CBS in its capacity as Manager of WON pursuant to the Management Agreement, which exclusion shall not include any event, change, occurrence or circumstance generally affecting the businesses or industries in which WON operates) that, individually or in the aggregate with any other events, changes, occurrences or circumstances, has had or would reasonably be expected to have a material adverse effect on (a) the assets, results of operations or the financial condition of WON or (b) the ability of WON to perform its obligations under this Master Agreement or the other New Transaction Documents. | ||
(vi) | Refinancing of WON’s Existing Credit Obligations. WON shall have successfully satisfied the requirements of the Financing Condition, in each case, in form and substance reasonably satisfactory to CBS, such that none of the transactions or payments contemplated by this Master Agreement or any of the other New Transaction Documents shall constitute a breach or an event of default, or otherwise trigger any acceleration, termination or similar provisions, thereunder. | ||
(vii) | No Injunctions or Restraints. No Restraint shall be in effect enjoining, restraining, preventing or prohibiting consummation of the transactions contemplated by this Master Agreement or making the consummation of any such transactions illegal. |
25. | Indemnification. From and after the Closing Date, each party hereto shall indemnify and hold the other party hereto, its affiliates and their respective directors, officers, affiliates, employees and agents, and the predecessors, successors and assigns of any of them, harmless from and against any and all actions, claims, damages and liabilities (and all actions in respect thereof and any legal or other expenses in giving testimony or furnishing documents in response to a subpoena or otherwise and whether or not a party thereto), whether or not arising out of third party claims, including reasonable legal fees and expenses in connection with, and other costs of, investigating, preparing or defending any such action or claim, whether or not in connection with litigation in which such person is a party, and as and when incurred, caused by, relating to, based upon or arising out of (directly or indirectly) (i) any breach of, or inaccuracy in, any representation or warranty of such party hereto as set forth in this Master Agreement and (ii) any breach of any covenant or agreement of such party hereto as set forth in this Master Agreement. |
26. | Further Assurances; Change of Control and Related Covenants. (a) Each of WON and CBS shall cooperate and use its reasonable best efforts to take, or cause to be taken, and to do, or cause to be done, as promptly as practicable all things necessary, proper or advisable to consummate and make effective the transactions contemplated by the New Transaction Documents. WON shall use its reasonable best efforts to successfully refinance or modify the Loan Agreement and/or obtain the necessary consents and/or waivers under the Loan Agreement and/or Senior Note Purchase Agreement, in each case, in satisfaction of the closing conditions discussed in Sections 24(a)(iv) and 24(b)(vi). Each of WON and CBS shall not take, or agree to take, any actions that would prevent or materially delay the consummation of the transactions contemplated by the New Transaction Documents. |
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(b) | WON hereby agrees that, from the date hereof until March 31, 2017, without the consent of CBS (which consent will not be unreasonably withheld), no former chief executive officer of WON, who served in such capacity after the implementation of the initial Management Agreement with CBS, dated as of February 3, 1994, shall, with the express or implied consent (by agreement, participation or otherwise) of WON (i) be or become a director, officer, partner, employee or manager of, or consultant or advisor to, WON or any of its Affiliates or an Acquiring Person or any of its Affiliates, (ii) have, or have the right, directly or indirectly, to exercise managerial control of WON or any of its Affiliates or an Acquiring Person or any of its Affiliates (in each case, through contract or otherwise) or (iii) beneficially own, directly or indirectly, more than 25% of the equity or voting interests of WON or any of its Affiliates or an Acquiring Person or any of its Affiliates. For purposes hereof, an “Acquiring Person” shall mean any person or entity which, directly or indirectly, beneficially owns, or acquires, or proposes to acquire, in a single transaction or series of related transactions, (a) more than 50% of the equity or voting interests of WON, (b) all or substantially all of the assets of WON or (c) all or substantially all of the assets comprising any significant business unit or division of WON. | ||
(c) | If a competitor of CBS that owns or operates radio stations (the “Competitor”) acquires, or proposes to acquire, more than 50% of the equity or voting interests of WON in a single transaction or series of related transactions (each, a “Change of Control”), WON shall (i) take reasonable steps to protect CBS’s confidential information (which shall not include the terms and conditions of the New Transaction Documents) and to protect against the dissemination of such confidential information to personnel at such Competitor who are engaged in operations or activities that are, in CBS’ good faith judgment, competitive with the operations or activities of CBS, (ii) develop and put into effect written policies and procedures (commonly referred to as an “ethical wall”) to ensure that confidential information that contains competitively sensitive information is not disclosed to personnel at the Competitor that are engaged in such competitive operations or activities and (iii) take reasonable steps to ensure that the “level of service” provided by WON to CBS, including CBS News (such level of service to include promotion and/or marketing of CBS (to the extent permitted under and/or limited by the New Transaction Documents)), is comparable to the level of service historically provided by WON to CBS and not materially less favorable, taken as a whole, than the level of service provided by WON to CBS and/or Competitor following the consummation of such Change of Control transaction, and the Competitor shall deliver reasonable assurance of each of the foregoing in writing to CBS prior to the consummation of any Change of Control transaction with the Competitor. The foregoing “level of service” standard shall be evaluated on an overall basis and solely to the extent such level of service affects material aspects of the relationship between WON and CBS, including the overall affiliate relationship between WON and CBS and/or Competitor. |
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(d) | In addition, in the event of a Change of Control, the licenses granted under the New License Agreement to WON as licensee shall be modified such that the license of WON shall be limited to the right to use the Tradename and Trademarks (as defined in the New License Agreement) in connection with identifying any CBS programming available consistent with past practice by WON, and no intellectual property of CBS may be used otherwise as part of the business of WON or the Competitor. | ||
(e) | Notwithstanding anything to the foregoing, any claims by CBS for violations of this Section may only be made against WON and not against the Competitor or an Acquiring Person and CBS shall have no recourse against the Competitor or Acquiring Person under this Master Agreement. |
27. | Termination. This Master Agreement may be terminated: |
(a) | by (i) mutual written consent of CBS and WON; (ii) by CBS if WON fails to pay an undisputed amount owed to CBS under this Master Agreement following 30 days written notice, (iii) by CBS if WON fails to pay an amount owed to CBS that was previously disputed but has since been determined by arbitration pursuant to Section 28 or mutual agreement of the Parties to be owed to CBS under this Master Agreement, within 15 days of such arbitration award or following 15 days written notice of such mutual agreement, (iv) by CBS following 30 days written notice if (x) two or more disputed payments are submitted to arbitration under Section 28 during the term of this Master Agreement, (y) such disputed payments are not deposited with a third party escrow agent reasonably acceptable to CBS and WON within five (5) business days following submission to arbitration and (z) the arbitrator(s) finds in each case that the amount claimed by CBS to be properly payable by WON to CBS under this Master Agreement is in fact properly payable to CBS under this Master Agreement, or (v) by either party hereto if (x) it notifies the other party in writing that such other party is in material breach of one or more of its material covenants (other than payment covenants) under this Master Agreement and such breach is not cured within 30 days of receipt of such written notice, (y) it submits to arbitration under Section 28 such |
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breach or breaches and requests termination as a remedy and (z) the arbitrator(s) determines (A) that the breaching party has in fact materially breached one or more material covenants (other than payment covenants) under this Master Agreement, (B) that such breach or breaches have not been cured and have caused significant harm to the non-breaching party and (C) that termination of this Master Agreement is an appropriate remedy (after considering other appropriate remedies short of termination). For these purposes, the material covenants of this Master Agreement are listed on Schedule 10; | |||
(b) | by the non-breaching party upon 30 days written notice to the breaching party following the occurrence of a Fundamental Default (as such term is defined below). A “Fundamental Default” shall be deemed to have occurred in the event that (i) 15% or more of the Station Agreements, measured in terms of compensation payments to CBS made during the most recent full calendar year period prior to the delivery of such notice, shall have been terminated by the non-breaching party for breach pursuant to the termination provisions of the applicable Station Agreements; (ii) 15% of the total number Station Agreements shall have been terminated by the non-breaching party for breach pursuant to the termination provisions of the applicable Station Agreements; or (iii) an arbitrator(s) rules that a party is materially breaching all or substantially all of the applicable Station Agreements in any two markets where CBS has at least four radio stations in each such markets, each of which has at least one Station Agreement, and such arbitrator(s) terminates all or substantially all of such Station Agreements in such two markets as a result of such material breaches; | ||
(c) | by either party if Stockholder Approval is not obtained following a vote of WON stockholders at a meeting of WON stockholders seeking Stockholder Approval. For the avoidance of doubt, the Release shall not be effective in the event Stockholder Approval is not obtained; or | ||
(d) | by either party if the Closing shall not have occurred by February 29, 2008 (the “Drop Dead Date”);provided,however, that (i) the right to terminate this Master Agreement under this Section 27(d) shall not be available to any party whose failure to fulfill any obligation under this Master Agreement shall have been the cause of, or shall have resulted in, the failure of the Closing to occur on or prior to such date; and (ii) the Drop Dead Date shall be extended (x) if the Closing is prevented from occurring at such time as a result of a Restraint being in effect on February 29, 2008, to the earlier of 15 business days after such Restraint no longer is in effect or June 30, 2008 or (y) if (A) the 2007 Proxy shall have been filed with the SEC on or before the date that is the later of the 30th calendar day following the date of this Master Agreement and November 10, 2007 and (B) Stockholder Approval has not been obtained on or prior to February 29, 2008 as a result of the SEC not clearing for mailing the 2007 Proxy by January 25, 2008, to the earlier of 15 business days after Stockholder Approval is obtained and March 31, 2008. |
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In the event of termination of this Master Agreement after the Closing Date, (x) this Master Agreement shall furthermore become void and have no effect, without liability on the part of any party other than Section 25, this Section 27 and Section 28 which shall survive such termination, (y) each of the New Transaction Documents (except for the Release and as set forth in clause (B) of the last sentence of this paragraph), if then executed, shall automatically terminate and become void and have no effect, without any further action on the part of any party thereto, and (z) any and all undisputed amounts owed or payable by WON to CBS as of the date of such termination under any of the New Transaction Documents shall immediately become due and WON shall promptly pay to CBS any such undisputed amounts following such termination. Notwithstanding the foregoing, (A) nothing contained in this Section 27 shall relieve any party from liability for any breach of this Master Agreement and in the event of such termination prior to the Closing Date, all of the Old Transaction Documents shall remain in full force and effect, and (B) clauses (y) and (z) of the immediately preceding sentence shall not apply in the event of a termination of this Master Agreement by CBS as a result of WON’s breach of the provisions of Section 26(c)(iii). | ||
28. | Miscellaneous. |
(a) | Notices. All notices, requests and other communications hereunder must be in writing and will be deemed to have been duly given only if delivered personally or by facsimile transmission (with receipt acknowledged) or mailed (registered or certified mail, return receipt requested) to the parties at the following addresses or facsimile numbers: |
40 West 57th Street, 15th Floor
New York, New York 10019
Attention: General Counsel
Telecopy: (212) 641-2198
300 South Grand Avenue
Los Angeles, California 90071
Attention: Brian J. McCarthy, Esq.
Telecopy: (213) 687-5600
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1515 Broadway, 46th Floor
New York, New York 10036
Attention: Chairman & CEO
Telecopy: (212) 846-2342
New York, New York 10019
Attention: General Counsel
Telecopy: (212) 975-4215
767 Fifth Avenue
New York, New York 10153
Michael Lubowitz, Esq.
All such notices, requests and other communications will (i) if delivered personally to the address as provided in this Section, be deemed given upon delivery, (ii) if delivered by facsimile transmission to the facsimile number as provided in this Section, be deemed given upon confirmation of transmission, and (iii) if delivered by mail in the manner described above to the address as provided in this Section, be deemed given upon receipt (in each case regardless of whether such notice, request or other communication is received by any other person to whom a copy of such notice, request or other communication is to be delivered pursuant to this Section). Any party from time to time may change its address, facsimile number or other information for the purpose of notices to that party by giving notice specifying such change to the other parties hereto. |
(b) | Entire Agreement; Closing Date and Effective Date. This Master Agreement and all the New Transaction Documents supersede all prior discussions and agreements between the parties (and their affiliates) with respect to the subject matter hereof and contain the sole and entire agreement between the parties hereto with respect to the subject matter hereof. Upon their execution, the New Transaction Documents, other than the Master Agreement, will automatically become effective, without further action of the parties, on the Closing Date or the Effective Date, as applicable and as described herein. |
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(c) | Waiver. Any term or condition of this Master Agreement may be waived at any time by the party that is entitled to the benefit thereof, but no such waiver shall be effective unless set forth in a written instrument duly executed by or on behalf of the party waiving such term or condition. No waiver by any party of any term or condition of this Master Agreement, in any one or more instances, shall be deemed to be or construed as a waiver of the same or any other term or condition of this Master Agreement on any future occasion. No failure or delay on the part of party in exercising any right or power under this Master Agreement shall operate as a waiver thereof, nor shall any single or partial exercise of any such right or power, or any abandonment or discontinuance of steps to enforce such a right or power, preclude any other or further exercise thereof or the exercise of any other right or power. All remedies, either under this Master Agreement or by law or otherwise afforded, will be cumulative and not alternative. | ||
(d) | Amendment. This Master Agreement may be amended, supplemented or modified only by a written instrument duly executed by or on behalf of each party hereto. | ||
(e) | No Third-Party Beneficiary. The terms and provisions of this Master Agreement are intended solely for the benefit of each party hereto and their respective successors or permitted assigns, and it is not the intention of the parties to confer third-party beneficiary rights upon any other person. | ||
(f) | No Assignment; Binding Effect. This Master Agreement shall be binding upon and shall inure to the benefit of the parties hereto and their respective successors and permitted assigns. Neither CBS nor WON may assign its rights or obligations hereunder without the prior written consent of the other party hereto;provided that (i) subject to Section 26, WON may assign all or any of its rights and related obligations hereunder to any of its controlled affiliates, or a third party who acquires more than 50% of the equity or voting interests of WON, all or substantially all of the assets of WON or all or substantially all of the assets comprising any significant business unit or division of WON, in each case, in a single transaction or series of related transactions, without the prior consent of CBS;provided that (x) in the case of any assignment in connection with the sale of all or substantially all of the assets comprising any significant business unit or division of WON, such assignment shall be limited to those rights and related obligations that are related to such business unit or division, (y) in connection with any permitted assignment under this clause (i), the assignee shall assume all of the obligations relating to the rights being assigned, and (z) no assignment under this clause (i) shall relieve WON from any of its obligations or liabilities under this Master Agreement, except as provided in Section 4; (ii) CBS may assign, without the prior consent of WON, all or any of its rights or obligations hereunder to (x) any of its affiliates and (y) any third party |
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who acquires any CBS Station, to the extent the assigned rights are related to the CBS Stations acquired thereby;provided that no assignment under this clause (ii) shall relieve CBS from any of its obligations or liabilities hereunder; and (iii) in respect of any assignment of CBS’ rights and related obligations hereunder to any third party who is not an affiliate of CBS, WON’s prior written consent shall not be unreasonably withheld. Any purported assignment or transfer in violation of the provisions of this Section 28(f) is null and void and of no force or effect. For the avoidance of doubt, (i) WON agrees that that a sale of CBS in its entirety, whether directly or indirectly and whether by merger, asset sale, stock sale or otherwise, shall not constitute an assignment for purposes of this Master Agreement or otherwise require the consent of WON and (ii) CBS agrees that, subject to Section 26, a sale of WON in its entirety, whether directly or indirectly and whether by merger, asset sale, stock sale or otherwise, shall not constitute an assignment for purposes of this Master Agreement or otherwise require the consent of CBS. | |||
(g) | Headings. The headings used in this Master Agreement have been inserted for convenience of reference only and do not define or limit the provisions hereof. | ||
(h) | Invalid Provisions. If any provision of this Master Agreement, other than Section 12(a), which shall be subject to the provisions of Sections 12(b) and 12(c), is held to be illegal, invalid or unenforceable under any present or future law, and if the rights or obligations of any party hereto under this Master Agreement will not be materially and adversely affected thereby, (i) such provision will be fully severable, (ii) this Master Agreement will be construed and enforced as if such illegal, invalid or unenforceable provision had never comprised a part hereof, (iii) the remaining provisions of this Master Agreement will remain in full force and effect and will not be affected by the illegal, invalid or unenforceable provision or by its severance herefrom and (iv) in lieu of such illegal, invalid or unenforceable provision, there will be added automatically as a part of this Master Agreement a legal, valid and enforceable provision as similar in terms to such illegal, invalid or unenforceable provision as may be possible. | ||
(i) | Affiliate. When used in this Master Agreement the term “Affiliate” shall have the meaning assigned to such term in Rule 405 promulgated under the Securities Act;provided that, with respect to any affiliates of CBS, such term shall mean the controlled affiliates of CBS Corporation. | ||
(j) | Press Release. The parties shall mutually agree upon the form of a press release to be issued concurrently with the execution of this Master Agreement. Except as required by law, the timing and content of any other public disclosure of the terms of this Master Agreement shall be made only upon the mutual approval of WON and CBS. |
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(k) | Governing Law. Each of the New Transaction Documents shall be governed by and construed in accordance with the laws of the state of New York, its rules of conflict of laws that could mandate the application of the laws of another jurisdiction notwithstanding. | ||
(l) | Arbitration. Any dispute, controversy or claim arising out of or relating to this Master Agreement or the breach, termination or validity thereof (“Dispute”), shall on the demand of any party be finally and exclusively resolved by arbitration in accordance with the then-prevailing JAMS Comprehensive Arbitration Rules and Procedures as modified herein (the “Rules”);provided,however, that any party hereto shall have the right to seek injunctive relief against the other party hereto in the courts of New York, New York, prior to the resolution of any Dispute by arbitration in accordance with this Section 28(l). There shall be three neutral arbitrators of whom each party shall select one. The claimant shall select its arbitrator in its demand for arbitration and the respondent shall select its arbitrator within 30 days after receipt of the demand for arbitration. The two arbitrators so appointed shall select a third arbitrator to serve as chairperson within fourteen days of the designation of the second of the two arbitrators. If any arbitrator is not timely appointed, at the request of any party such arbitrator shall be appointed by JAMS pursuant to the listing, striking and ranking procedure in the Rules. The place of arbitration shall be New York, New York. The arbitral tribunal shall be required to follow the law of the State of New York. The arbitral tribunal is not empowered to award damages in excess of compensatory damages, and each party hereby irrevocably waives any right to recover punitive, exemplary or similar damages with respect to any Dispute. Any arbitration proceedings, decision or award rendered hereunder and the validity, effect and interpretation of this arbitration provision shall be governed by the Federal Arbitration Act, 9 U.S.C. §1 et seq. The award shall be final and binding upon the parties and shall be the sole and exclusive remedy between the parties regarding any claims, counterclaims, issues or accounting presented to the arbitral tribunal. Judgment upon any award may be entered in any court having jurisdiction. | ||
(m) | Counterparts. This Master Agreement may be executed in counterparts and by facsimile signature, each of which will be deemed an original, but all of which together will constitute one and the same instrument. |
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(n) | Expenses. Each of WON and CBS shall bear its own expenses relating to this Master Agreement and the other New Transaction Documents whether or not the Closing is consummated. |
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WESTWOOD ONE, INC. | ||||
By: | /s/ David Hillman | |||
Name: | David Hillman | |||
Title: | CAO and General Counsel | |||
CBS RADIO INC. | ||||
By: | /s/ Anthony G. Ambrosio | |||
Name: | Anthony G. Ambrosio | |||
Title: | Executive Vice President, | |||
Human Resources and Administration | ||||
Exhibit A | Form WWO Affiliation Agreement | |
Exhibit B | Form Metro Master Affiliation Agreement | |
Form Metro News Affiliation Agreement | ||
Form Metro Source Affiliation Agreement | ||
Form Metro Traffic Affiliation Agreement | ||
Exhibit C | Form of Amended and Restated News Programming Agreement | |
Exhibit D | Form of Registration Rights Agreement | |
Exhibit E | Form of Amended and Restated Trademark License Agreement | |
Exhibit F | Form of Amended and Restated Technical Services Agreement | |
Exhibit G | Form of Lease for 524 W. 57th Street | |
Exhibit H | Form of Lease for 2020 M Street | |
Exhibit I | Form of Sublease for 2000 M Street | |
Exhibit J | Form of Mutual General Release and Covenant Not to Sue |
AFFILIATION AGREEMENT FOR CBS RADIO STATION(S)
A. | Network will transmit to Station by method reasonably determined by Network, and Station will broadcast on its analog and HD1 facilities, the Commercial Schedules in accordance with the terms of this Agreement, the commercials (“Commercials”) listed in the commercial schedules (“Commercial Schedules”) to be delivered by Network to Broadcaster. Station shall broadcast such Commercials in fair and equal rotation within the dayparts as indicated on the Commercial Schedules. Network may from time to time change the Commercials to be broadcast by Station by modifying the Commercial Schedules so long as such modification does not increase the number or placement of such Commercials. Broadcaster is required to monitor Network’s transmission of Commercials in order to receive Network’s changes to the Commercials and to be advised of changes in the Commercial Schedules; provided however that Network shall, simultaneously with any changes made with respect to Networks’ transmission of Commercials, also notify Station by email of any changes in Commercial Schedules at least twenty-four (24) hours before such changes become effective. Station may designate a person to receive such email notices. |
B. | Network will transmit to Station the Programs listed in Exhibit 3 attached hereto (the “Programs”). Station understands and agrees that, except as set forth otherwise on Exhibit 3, the Programs are distributed as a non-exclusive product and shall be distributed by Network as a professional, broadcast-quality program in accordance with prevailing industry standards (“Prevailing Industry Standards”). Station has the right to broadcast any newscast, as well as actualities and special long form coverage, as may be made available by Network in the Programs provided to Station pursuant to Exhibit 3. Notwithstanding the foregoing, to the extent a Broadcaster radio station in Station’s market is an affiliate of CBS Radio News, Station may broadcast the CBS Radio News Program (including CBS Radio News Top-of-the-Hour Newscasts, notwithstanding any exclusivity provision) in accordance with the terms and conditions of this Agreement. Moreover, to the extent that Station or any Broadcaster radio station is an affiliate of CBS Radio News, such station shall have exclusivity in such market with respect to the CBS Radio News Top of the Hour Newscast or substantially similar future newscast of CBS Radio News as against any station in such market not owned by Broadcaster. Station has the discretion as to what Network Programs to broadcast and has no obligation to carry such Programs, subject to the rights of Network in this Section and except as indicated in Exhibit 3. In the event Network ceases to distribute CBS Radio News, Network will provide Station with comparable substitute programming as determined by Network at its reasonable discretion. In the event Network ceases to distribute any Program (other than the CBS Radio News), Network will provide Station with comparable substitute programming as determined by mutual agreement of Station and Network or, at Station’s option, CBS Radio News radio programming so long as Network still has the rights to distribute CBS Radio News (which the parties agree shall be deemed comparable substitute programming). |
C. | Station may preempt Commercials upon advance written notice (which in the case of this Section I(C), the parties agree that electronic mail to individual(s) designated by Network shall suffice for purposes of notice under this Agreement) to Network and solely as follows: (i) for any reason, provided, such occurs on an occasional, non-regular basis only; (ii) in Station’s opinion any Commercial violates any of Station’s written “standards and practices” (to the extent such have been provided by Station to Network in advance and provided such are applied to Network advertisers in the same manner that they are applied to Station’s cash advertisers), technical quality standards or any applicable law, statutes, ordinances or regulation (with subsections (i) and (ii) referred to as “Content Related Preemption”); or (iii) if such Commercials are broadcast during any play-by-play sports programming or NASCAR programming (“Sports Related Preemption”). | |
D. | Make Goods. | |
1. Content Related Preemption. If Station preempts Commercials for a Content Related Preemption, in order to receive credit for broadcasting such Commercials Station may provide a make good (which in the case of a Commercial preempted by Station for the reasons set forth in Section I(C)(ii) above shall be a substitute Commercial which shall be provided by Network within two (2) business days notice from Station that the original Commercial was not acceptable or Station shall be relieved of any make good obligation and shall not be deemed to have failed to broadcast any such Commercials) (“Make Good”) for such Commercials as follows: |
Originally Scheduled Broadcast | ||||
Date | Make Good Window* | Make Good Time* | ||
Monday – Friday | On a weekday (Monday-Friday) within the earlier of the originally scheduled flight for such Commercial or the seven (7) day period after the originally scheduled broadcast date for such Commercial | Same or better daypart as the originally scheduled broadcast date | ||
Saturday – Sunday | On any day (Monday – Sunday) within the earlier of the originally scheduled flight for such Commercial or the seven (7) day period after the originally scheduled broadcast date for such Commercial | Same or better daypart as the originally scheduled broadcast date |
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Originally Scheduled Broadcast | ||||
Date | Make Good Window* | Make Good Time* | ||
Monday – Friday | On a weekday Monday- Friday within 21 days from originally scheduled broadcast date | 6AM to 12 midnight | ||
Saturday-Sunday | On any day Monday-Sunday within 21 days from originally scheduled broadcast date | 6AM to 12 midnight |
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E. | Station shall have the right to add a sponsorship identification to Commercials if Station determines such identification is required to comply with applicable FCC requirements (including but not limited to 47 CFR § 73.1212); provided, however, that Station agrees that Commercials with obvious sponsorship identification (as contemplated by FCC requirements) will not require disclosure beyond the sponsorship identification already contained in the commercial copy. If Station determines such identification is required, it shall immediately notify Network of such determination and give Network the opportunity to correct such identification issue, in which event Network may provide replacement Commercials. |
F. | The parties agree that for the purposes of this Agreement, the term “broadcast” includes transmission of the Programs and Commercials over Station’s licensed analog or digital facilities, and simulcast of the Programs and Commercials by Station via live internet streaming (“Internet Streaming”) on Station’s website (“Station Website”), free of charge for the personal, non-commercial use of visitors to the Station Website, and with regard to live Internet Streaming as stated above, solely to the extent that Network has the rights for such transmission. Other than the consent of Network, Network talent, or any consents related to the broadcast of Commercials, Broadcaster shall be responsible for all licenses, consents, clearances, costs, fees and expenses, including public performance licenses and union fees, in connection with Broadcaster’s Internet Streaming. With respect to such Internet Streaming, Broadcaster shall (i) cover and preempt the Network Commercials contained in the Programs and/or broadcast herein by Broadcaster; or (ii) at Network’s reasonable request, refrain from covering and preempting the Network Commercials and reasonably cooperate with Network in the event Network wishes to replace all Network Commercials intended for terrestrial radio broadcast with Commercials cleared for use via the internet that contain meta-tag data imbedded in such Commercials or through similar technology in accordance with Prevailing Industry Standards (“Substitute Commercials”) including, without limitation, providing reasonable technical assistance relating to and permitting the installation of any software and/or other equipment at or related to any CBS station required for such replacement, subject to compliance with CBS’ technical/IT policies and practices related to such matters. In the event that Network requests Station to proceed in accordance with subsection I(F)(ii) above, Network shall be responsible for all licenses, consents, clearances, costs, fees and expenses, including public performance licenses and union fees, in connection with Broadcaster’s Internet Streaming of Network Commercials and shall indemnify, defend and hold Broadcaster and Station harmless from any and all claims that arise out of or result from Station’s transmission of the Network Commercials or the Substitute Commercials via Internet Streaming. If Station’s cooperation with Network or transmission of the Network Commercials or Substitute Commercials via Internet Streaming causes interference with, or has a detrimental effect on, Station’s ability to broadcast the Programming consistent with Prevailing Industry Standards, then Station may in its sole discretion discontinue carriage of the Network Commercials or Substitute Commercials via Internet Streaming. In addition, if Station’s transmission of the Network |
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Commercials or Substitute Commercials via Internet Streaming results in any incremental out-of pocket costs to Station (including but not limited to employee overtime pay, third party technical assistance, incremental software or equipment charges), Network shall be responsible for payment of all such costs upon receipt of an invoice with supporting documentation. Finally, if, during the Term of this Agreement, Network enters into a material agreement with any radio station in Station’s market for provision of the Program on terms that allow such third party to exploit the Programs by a means other than as set forth in the preceding sentence (e.g., through podcasting, messaging) with payment of no or nominal additional consideration (a “More Favorable Agreement’), then Network shall promptly notify Station in writing of the execution of such More Favorable Agreement, detailing the consideration and/or terms and conditions contained therein and Station shall have the option to then exploit the Program on the same terms and conditions and consideration as the More Favorable Agreement, if any, throughout the earlier of: (i) the term of the More Favorable Agreement or (ii) the remainder of the Term of this Agreement. | ||
G. | It is the essence of this Agreement: |
1. | That Programs and Commercials are furnished hereunder solely for broadcast on Station and Station Website (commensurate with Section I(F)) as herein provided and for no other use or purpose whatsoever, subject to Section I(F); | ||
2. | That Broadcaster’s rights hereunder are only with respect to the Commercials and Programs and Broadcaster shall not under any circumstance broadcast any other program which may be transmitted by Network unless authorized to do so by Network pursuant to a written agreement between the parties; and | ||
3. | That Broadcaster will not, except as provided in this Agreement, make any deletion, addition, or other modification to any Commercial delivered by Network hereunder without Network’s prior written approval. |
A. | During the Term of this Agreement Station agrees to verify and report all clearances of Commercials via affidavits (“Affidavits”) using the Network One Electronic Affidavit System or via the Internet on forms as provided therein and/or by methods determined by Network, in its reasonable discretion, within the later of seven (7) business days after the close of the standard broadcast week or seven (7) business days after the Make Good Period, Sports Preemption Make Good Period or Time Sensitive Sports Preemption Make Good Period, if applicable. The parties agree that the form of Affidavit will accurately reflect the terms of this Agreement, including but not limited to indication upon such Affidavit of Station’s right to provide Make Goods during the Make Good Period. Upon receipt of an Affidavit from Station, Network agrees to acknowledge receipt of such Affidavit within twenty-four (24) hours of receipt and agrees to maintain a system by which Station-submitted Affidavits are retained for review and verification purposes. |
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B. | In the event that Station does not submit Affidavits in a timely manner in accordance with the terms of this Section II, Network will provide Station with written notice of such failure (“Late Affidavit Notice”). Station shall have thirty (30) days after receipt of such Late Affidavit Notice in which to cure such failure (“Cure Period”); provided however that in the event that Station fails to submit such Affidavits during the Cure Period, then such failure shall result in an appropriate reduction in the monthly payment made by Network to Station under this Agreement at the rates set forth in Section XI(c) hereof. |
Neither party will have any liability hereunder if performance by such party shall be prevented, interfered with or omitted because of labor dispute, failure of facilities, act of God, government or court action, terrorist act or any other similar or dissimilar cause beyond the control of the party so failing to perform hereunder. |
A. | Broadcaster shall provide Network written notice within fourteen (14) business days of the execution of an agreement that requires the filing of an application with the FCC seeking the FCC’s consent for the assignment or transfer of control of the main broadcast license for the Station to a bona fide third party (“Transaction”). Broadcaster shall use commercially reasonable efforts to assign this Agreement (including all of Broadcaster’s rights and obligations with respect to the applicable Station) to the assignee or transferee (who is a bona fide third party) in the Transaction (the “Buyer”) for the remainder of the Term beginning on the date when the Buyer assumes operation of said Station and shall use commercially reasonable efforts to cause the Buyer to assume Broadcaster’s rights and obligations under this Agreement. Such assignment and assumption of rights and obligations shall be made on a form of agreement that is acceptable to Network, but consent to such form of agreement shall not be unreasonably withheld, conditioned or delayed. If after such efforts, Broadcaster is unable to effectuate such an assignment and assumption of rights and obligations for the Station, then Broadcaster shall be entitled, with respect to said Station, either to: (i) terminate this Agreement and reapportion all the gross impressions delivered by said Station to other Broadcaster owned or operated radio stations to achieve Substantially Equivalent Distribution for Network; or (ii) if the Station is a 36 Plus Station only, assign this Agreement (including all of Broadcaster’s rights and obligations with respect to the applicable Station), and cause the related assumption by Buyer of Broadcaster’s rights and obligations under this Agreement, for a term equal to the later of: (x) December 31, 2014 or (y) the fifth anniversary of the closing date of the Transaction (in which case the Terms shall expire on such later date, notwithstanding Section VII(A) herein, but in no event shall the Term extend beyond March 31, 2017). | |
B. | For purposes of this Section IV, the following terms shall have the following meanings: |
1. | “36 Plus Station” shall mean the 36th radio station sold, assigned or otherwise transferred or conveyed in any one or more Transaction or Transactions by Broadcaster after the Effective Date of the Master Agreement between Broadcaster and Network (the “Master Agreement”) and any radio stations sold, assigned or otherwise transferred or conveyed in any one or more Transaction or Transactions thereafter by Broadcaster, not including (in any such case) any Transaction that was announced, consummated or pending at the time of, or prior to, the date of execution of the Master Agreement. |
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2. | To achieve “Substantially Equivalent Distribution” Broadcaster shall initially seek to reapportion gross impressions by redistribution of inventory to another Broadcaster owned or operated radio station in the same MSA, or if not applicable DMA, of the radio station(s) sold. If in Broadcaster’s reasonably exercised business judgment, redistribution in the same MSA or DMA as applicable, would have a materially detrimental effect on a Broadcaster station(s) located in such MSA or DMA, then Broadcaster shall not be required to redistribute such gross impressions on such Broadcaster Station(s), subject to Network’s right to dispute same as set forth below, and may achieve Substantially Equivalent Distribution as follows: |
Market Size of Sold Station(s) | Market Size Where Broadcaster May | |||
(as determined by Arbitron) | Re-Distribute Network Commercials | |||
1-3 | 1-3 | |||
4-8 | 1-8 | |||
9-14 | 1-14 | |||
15-20 | 1-20 | |||
21-27 | 1-27 | |||
28+ | 1+ |
In the event that Network disputes Broadcaster’s determination that distribution in the same MSA or DMA would have a detrimental effect on Broadcaster or any of its stations located in the MSA or DMA, then Network may submit its proposal for redistribution of Commercial inventory to be resolved by an arbitrator pursuant to Section X(P) hereof, in which case the arbitrator shall have the authority to determine if the distribution in the same MSA or DMA would have such materially detrimental effect, and if not, to require a revised redistribution of Commercials. |
Network represents and warrants that all ideas, creations, materials and intellectual properties provided to Station in the Programs or Commercials hereunder are either (a) controlled by BMI, ASCAP or SESAC; (b) in the public domain; or (c) are materials which Network is fully licensed to use. Network agrees to indemnify and hold Broadcaster and Station harmless from and against any damage or expenses, including reasonable attorney’s fees, which may arise out of the broadcasting hereunder of materials the performing rights to which are not within category (a) above and Station agrees that it is the obligation of Station to secure the necessary performing rights license for music within category (a) above. Except as otherwise set forth herein, in no event, however, shall either party be liable to the other party for any special, indirect, consequential or exemplary damages or any loss of any business profits, whether or not foreseeable, arising out of or in connection with broadcast of the Programs or Commercials. |
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This Agreement shall be binding upon and shall inure to the benefit of the parties hereto and their respective successors and permitted assigns. Subject to Section IV hereof and Section 26 of the Master Agreement, neither Broadcaster nor Network may assign its rights or obligations hereunder without the prior written consent of the other party hereto;provided that (i) subject to Section 26 of the Master Agreement, Network may assign all or any of its rights and related obligations hereunder to any of its controlled affiliates, or a third party who acquires more than 50% of the equity or voting interests of Network, all or substantially all of the assets of Network or all or substantially all of the assets comprising any significant business unit or division of Network, in each case, in a single transaction or series of related transactions, without the prior consent of Broadcaster;provided that (x) in the case of any assignment in connection with the sale of all or substantially all of the assets comprising any significant business unit or division of Network, such assignment shall be limited to those rights and related obligations that are related to such business unit or division, (y) in connection with any permitted assignment under this clause (i), the assignee shall assume all of the obligations relating to the rights being assigned, and (z) no assignment under this clause (i) shall relieve Network from any of its obligations or liabilities under this Agreement; (ii) Broadcaster may assign, without the prior consent of Network, all or any of its rights or obligations hereunder to (x) any of its affiliates and (y) any third party who acquires any Broadcaster Station, to the extent the assigned rights are related to the Broadcaster Stations acquired thereby;provided that no assignment under this clause (ii) shall relieve Broadcaster from any of its obligations or liabilities hereunder; and (iii) in respect of any assignment of Broadcaster’s rights and related obligations hereunder to any third party who is not an affiliate of Broadcaster, Network’s prior written consent shall not be unreasonably withheld. Any purported assignment or transfer in violation of the provisions of this Section VI is null and void and of no force or effect. For the avoidance of doubt, (i) Network agrees that that a sale of Broadcaster as an entity, whether directly or indirectly and whether by merger, asset sale, stock sale or otherwise, shall not constitute an assignment for purposes of this Agreement or otherwise require the consent of Network and (ii) Broadcaster agrees that, subject to Section 26 of the Master Agreement, a sale of Network as an entity, whether directly or indirectly and whether by merger, asset sale, stock sale or otherwise shall not constitute an assignment for purposes of this Agreement or otherwise require the consent of Broadcaster. In addition, Broadcaster acknowledges that the Network may engage third parties to manage the distribution of the Programs, or act as an agent of the Network relating to the distribution or production of Programs for the Network or sale of any commercial inventory associated with the Programs, in each case, not from any broadcast facilities leased by, or leased from, Broadcaster (other than independent contractors who shall be permitted access to such broadcast facilities consistent with Past Practice (as such term is defined in the Technical Services Agreement, dated of even date herewith, between Broadcaster and Network), and Broadcaster agrees that it shall remain, and any third party engaged by it shall be, subject to all of the applicable terms and conditions of this Agreement and the Amended and Restated News Programming Agreement between Broadcaster and Network (“Amended News Agreement”). Furthermore, Broadcaster acknowledges that the foregoing shall not constitute an assignment hereunder. Upon the transfer or assignment of the Station pursuant to Section IV hereof, the terms of Section IV, Section VII(B)(6), and Section XI(B)(ii) shall be of no further force or effect and shall not apply to the Buyer of the Station or to any subsequent Buyers. |
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A. | Subject to clause (ii) of the last sentence of Section IV(A), the term of this Agreement will commence on the Effective Date as defined in the Master Agreement (“Commencement Date”) and will continue through and including March 31, 2017, unless earlier terminated as provided herein (the “Term”). | ||
B. | Termination: This Agreement may be terminated: |
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(i) | Station fails to broadcast in accordance with the terms of this Agreement at least 75% of the Commercials listed in the Commercial Schedules (measured each calendar month) in three (3) consecutive months or four (4) non-consecutive months in any twelve (12)-month period; or | ||
(ii) | Station has delivered to Network intentionally or repeatedly false, inaccurate or incomplete Affidavits concerning the broadcast of Commercials; provided however that Network agrees that in the event that Network determines that Station has submitted intentionally or repeatedly false, inaccurate or incomplete Affidavits, Network will provide notice to Broadcaster and Station (through a designated official at each) of such circumstance. Network further agrees that Station shall have thirty (30) days notice and opportunity to cure such failure solely if such failure to broadcast Commercials or delivery of false, inaccurate or incomplete Affidavits was due to circumstances not approved or condoned by a management level Station official, provided, however, that such opportunity to cure in this instance shall be available to Station on three (3) occasions only during the Term of this Agreement. |
C. | If Network terminates this Agreement pursuant to Section VII(B)(7) above, Broadcaster recognizes that such failure will cause Network financial damage, the precise amount of which may be difficult or impossible to determine. As agreed liquidated damages for such failure to broadcast or to deliver accurate and complete information (“Liquidated Damages”), Broadcaster will pay to Network an amount determined as follows: (i) between the date of Network’s termination of this Agreement and the earlier of two (2) years thereafter or March 31, 2017 (“Initial Termination Period”), an amount equal to 1.25 times the Station’s average net cash commercial rate (for the same daypart as each scheduled Commercial) based upon the twelve (12)-month period prior to such termination for each Commercial scheduled for broadcast by Station during the Initial Termination Period; and (ii) between the first day after the end of the Initial Termination Period and the earlier of two (2) years thereafter or March 31, 2017 (“Subsequent Termination Period”), an amount equal to one (1) times the Station’s average net cash commercial rate (for the same daypart as each scheduled Commercial) based upon the twelve (12)-month period prior to such termination for each Commercial scheduled for broadcast by Station during the Subsequent Termination Period. In the event that the Station is sold or transferred pursuant to a Transaction as defined in Section IV(A) herein (but not as part of a sale, or change of control transfer of all of Broadcaster radio stations) or in the event of a Change of Control of Network as defined in Section 26 of the Master Agreement, the Liquidated Damages that Buyer (in the event of a Transaction involving Station) or Broadcaster (in the event of a Change of Control of Network) will pay to Network during the Initial Termination Period shall be an amount equal to 1.25 times the Station’s average net cash commercial rate (for the same daypart as each scheduled Commercial) based upon the twelve (12)-month period prior to such termination for each Commercial scheduled for broadcast by Station during the Initial Termination Period. |
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6. | Broadcaster will have the right to terminate this Agreement pursuant to clause (i) of the last sentence of Section IV(A) herein. | ||
7. | Network will have the right to terminate this Agreement upon 90 days written notice in the event that Station’s Base Audience Level declines 20% or more in connection with the reset of Base Audience Level as a result of conversion to PPM audience measurement in Station’s market. |
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A. | Notices. Except as set forth otherwise herein, all notices, requests and other communications hereunder must be in writing and will be deemed to have been duly given only if delivered personally or by facsimile transmission (with receipt acknowledged) or mailed (registered or certified mail, return receipt requested) to the parties at the following addresses or facsimile numbers: |
Westwood One, Inc.
40 West 57th Street, 15th Floor
New York, New York 10019
Attention: General Counsel
Telecopy: (212) 641-2198
Skadden, Arps, Slate, Meagher & Flom LLP
300 South Grand Avenue
Los Angeles, California 90071
Attention: Brian J. McCarthy, Esq.
Telecopy: (213) 687-5600
CBS Radio Inc.
1515 Broadway, 46th Floor
New York, NY 10036
Attention: President/CEO
Telecopy: (212) 846-3939
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with a copy to each of: | |
CBS Law Department | |
51 West 52nd Street | |
New York, NY 10019 | |
Attention: General Counsel | |
Telecopy: (212) 975-4215 | |
Weil, Gotshal & Manges LLP | |
767 Fifth Avenue | |
New York, NY 10153 | |
Attention: Howard Chatzinoff/Michael Lubowitz | |
Telecopy: (212) 310-8007 |
All such notices, requests and other communications will (i) if delivered personally to the address as provided in this Section, be deemed given upon delivery, (ii) if delivered by facsimile transmission to the facsimile number as provided in this Section, be deemed given upon confirmation of transmission, and (iii) if delivered by mail in the manner described above to the address as provided in this Section, be deemed given upon receipt (in each case regardless of whether such notice, request or other communication is received by any other person to whom a copy of such notice, request or other communication is to be delivered pursuant to this Section). Any party from time to time may change its address, facsimile number or other information for the purpose of notices to that party by giving notice specifying such change to the other parties hereto. |
B. | Waiver. Any term or condition of this Agreement may be waived at any time by the party that is entitled to the benefit thereof, but no such waiver shall be effective unless set forth in a written instrument duly executed by or on behalf of the party waiving such term or condition. No waiver by any party of any term or condition of this Agreement, in any one or more instances, shall be deemed to be or construed as a waiver of the same or any other term or condition of this Agreement on any future occasion. No failure or delay on the part of party in exercising any right or power under this Agreement shall operate as a waiver thereof, nor shall any single or partial exercise of any such right or power, or any abandonment or discontinuance of steps to enforce such a right or power, preclude any other or further exercise thereof or the exercise of any other right or power. All remedies, either under this Agreement or by law or otherwise afforded, will be cumulative and not alternative. |
C. | Amendment. This Agreement may be amended, supplemented or modified only by a written instrument duly executed by or on behalf of each party hereto. |
D. | No Third-Party Beneficiary. The terms and provisions of this Agreement are intended solely for the benefit of each party hereto and their respective successors or permitted assigns, and it is not the intention of the parties to confer third-party beneficiary rights upon any other person. |
E. | Headings. The headings used in this Agreement have been inserted for convenience of reference only and do not define or limit the provisions hereof. |
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F. | Invalid Provisions. If any provision of this Agreement is held to be illegal, invalid or unenforceable under any present or future law, and if the rights or obligations of any party hereto under this Agreement will not be materially and adversely affected thereby, (i) such provision will be fully severable, (ii) this Agreement will be construed and enforced as if such illegal, invalid or unenforceable provision had never comprised a part hereof, (iii) the remaining provisions of this Agreement will remain in full force and effect and will not be affected by the illegal, invalid or unenforceable provision or by its severance herefrom and (iv) in lieu of such illegal, invalid or unenforceable provision, there will be added automatically as a part of this Agreement a legal, valid and enforceable provision as similar in terms to such illegal, invalid or unenforceable provision as may be possible. |
G. | Press Release. Except as required by law, the timing and content of any public disclosure of the terms of this Agreement shall be made only upon the mutual approval of Network and Broadcaster. |
H. | Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the state of New York, its rules of conflict of laws notwithstanding. |
I. | Process. Each party hereby irrevocably consents to the service of any and all process in any such suit, action or proceeding by registered or certified mail addressed and sent to the chief executive officer of such party at such party’s address as noted in Section X(A) above. |
J. | Counterparts. This Agreement may be executed in counterparts and by facsimile signature, each of which will be deemed an original, but all of which together will constitute one and the same instrument. |
K. | Expenses. Each of Network and Broadcaster shall bear its own expenses relating to this Agreement. |
L. | Entire Agreement. Except as set forth otherwise herein, this Agreement contains the entire understanding between Network and Broadcaster with respect to its subject matter and constitutes the sole relationship between Network and Broadcaster, supersedes all previous agreements or understandings between them (including but not limited to any and all other “Westwood One Affiliation Agreement(s)” between the Network and Station, with the exception of the indemnification provision of such agreements, which shall survive in accordance with their terms) with respect thereto, and, except for changes and revisions by Network to Commercials and Commercial Schedules specifically contemplated herein, shall not be modified except by a signed writing. |
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M. | Authority. The individual executing this Agreement hereby warrants and represents that he/she is legally authorized to execute agreements on behalf of either Network or Broadcaster/ Station, as the case may be, and does so intending to be bound legally. |
N. | Commercial Rights. Network represents and warrants that it possesses all rights necessary to license the Commercials and Programs supplied by Network under this Agreement |
O. | Communications Act of 1934. Network agrees to disclose to Broadcaster and Station any and all information that it has or that has been disclosed to it as to any money, service or other valuable consideration which any person has been paid or accepted, or has agreed to pay or accept for the inclusion of any matter as a part of the report other than sponsorships\commercial mentions\spots. The term “service or other valuable consideration” as used in this paragraph shall not include any service or property furnished without charge or at a nominal charge for use on, or in connection with, the reports unless it is so furnished in consideration for an identification in the material provided by Network of any person, product, service, trademark or brand name beyond an identification that is reasonably related to the use of such service or property in such material. With respect to any material for which an announcement is required, Station may, at its option, cancel the broadcast of such material. |
P. | Arbitration. Any dispute, controversy or claim arising out of or relating to this Agreement or the breach, termination or validity thereof (“Dispute”), shall on the demand of any party be finally and exclusively resolved by arbitration in accordance with the then-prevailing JAMS Comprehensive Arbitration Rules and Procedures as modified herein (the “Rules”);provided,however, that any party hereto shall have the right to seek injunctive relief against the other party hereto in the courts of New York, New York, prior to the resolution of any Dispute by arbitration in accordance with this Section X(P). There shall be three neutral arbitrators of whom each party shall select one. The claimant shall select its arbitrator in its demand for arbitration and the respondent shall select its arbitrator within 30 days after receipt of the demand for arbitration. The two arbitrators so appointed shall select a third arbitrator to serve as chairperson within fourteen days of the designation of the second of the two arbitrators. If any arbitrator is not timely appointed, at the request of any party such arbitrator shall be appointed by JAMS pursuant to the listing, striking and ranking procedure in the Rules. The place of arbitration shall be New York, New York. The arbitral tribunal shall be required to follow the law of the State of New York. The arbitral tribunal is not empowered to award damages in excess of compensatory damages, and each party hereby irrevocably waives any right to recover punitive, exemplary or similar damages with respect to any Dispute. Any arbitration proceedings, decision or award rendered hereunder and the validity, effect and interpretation of this arbitration provision shall be governed by the Federal Arbitration Act, 9 U.S.C. §1 et seq. The award shall be final and binding upon the parties and shall be the sole and exclusive remedy between the parties regarding any claims, counterclaims, issues or accounting presented to the arbitral tribunal. Judgment upon any award may be entered in any court having jurisdiction. |
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A. | The parties agree that for the purposes of this Agreement, the following terms shall have the following meanings: |
(i) | “Base Audience Level”: Until the market in which Station is located has been subjected to Portable People Meter (“PPM”) measurement for twelve consecutive months, Base Audience Level shall mean Station audience level of [Exh. 1, Col. H, I] Adults DMA AQH Monday through Sunday 6AM-12 Midnight, as reported in the Arbitron Radio Report for Fall 2006. Following twelve months of PPM measurement, Base Audience Level shall be reset as of the first day of the month thereafter, to reflect the average of the first twelve (12) monthly AQH Monday through Sunday 6AM-12 Midnight PPM reports for such Station, and the Compensation Factor shall also be revised, such revision to be derived by dividing this new Base Audience Level into the Station’s annual compensation (assuming 100% clearance) at the time the Base Audience Level is reset. Exhibit 1, Col. K and Exhibit 2 shall be modified to reflect the new Compensation Factor and appropriate annual increases. In the event that during the Term hereof, Station changes its programming format in a manner which changes its target demographic audience and should consequently result in a change to the “Demo” set forth inExhibit 1, Col. Ieach party agrees to engage in good faith negotiations looking toward revision of the Demo inExhibit 1, Col I. An agreed upon change in Demo will result in a reset of the Base Audience Level and Compensation Factor in the same fashion as described above for PPM conversion. In the event that, upon a change in programming format the parties are unable to agree upon an a change in Demo, then either party may submit its proposal respecting a change in Demo to be resolved by an arbitrator pursuant to Section X(P) hereof, in which case the arbitrator shall have the authority to determine if a change in Demo is appropriate and if so, the appropriate Demo to be utilized. | ||
(ii) | “Commercial Minute” or “Minute” shall mean either two (2) thirty (:30) second announcements, one (1) sixty (:60) second announcement or any combination of any number of announcements of no less than five (:05) seconds in duration; provided, however, that in no event shall Network be able to provide Station with more than two (2) units (with “unit” defined as one :5, :10, :15, :30 or :60) of any length in a :60 second period unless providing more than two (2) units per Commercial Minute shall become a Prevailing Industry Standard among Radio Network Companies (as defined in the Master Agreement) or a generally accepted practice of Broadcaster. | ||
(iii) | “Fall” or “Spring” book: If the Station is located in a radio market that has not yet converted to the Arbitron PPM method of audience measurement, such reference shall mean the Fall and Spring Book as defined under the Arbitron Diary method of audience measurement. Once the Base Audience Level and Compensation Factor have been reset in accordance with Section XI (A)(i), such reference to “Spring” book shall mean the average of PPM months 4, 5 and 6 and such reference to “Fall” book shall mean the average of PPM months 10, 11 and 12. |
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B. | In consideration for broadcasting[Exh. 1, Col. B] commercial minutes per week of Network’s Commercials in accordance with the Commercial Schedule provided to Station for each broadcast week beginning on the date hereof, Network will compensate Broadcaster, at the initial monthly rate of$[Exh. 1, Col. C], payable within 90 days after receipt by Network of complete and fully executed Affidavits for the applicable month; provided that: (i) beginning in the seventh month of this Agreement, Network agrees to make good faith efforts to make payment in less than 90 days so long as: (x) Station has submitted Affidavits for such month in accordance with the terms of Section II of this Agreement and (y) all three (3) stations in each of the top three radio markets (as defined by Arbitron) where Broadcaster has radio stations which are required to clear the highest level of Commercials pursuant to a Station Westwood Affiliation Agreement (“Top 3 Markets” and the nine Stations in the Top 3 Markets, the “Top 3 Market Stations”) are in substantial compliance with their obligations to submit their Affidavits under their Station Agreements (as defined herein) on a Timely Basis for such month and (ii) beginning in the second year of this Agreement, Network agrees to make payments within 45 days after receipt by Network of complete and fully executed Affidavits for the applicable month if: (x) Station has submitted its Affidavits in accordance with Section II(A) of this Agreement and (y) each of the nine Top 3 Market Stations were in substantial compliance with their obligations to submit their Affidavits under their Metro Traffic Affiliation Agreements, Metro News Affiliation Agreements and Metro Source Affiliation Agreements (collectively, “Station Agreements”) on a Timely Basis for the immediately preceding six-month period. For the purposes of this Section XI(B), in order to be timely, Top 3 Market Stations must submit Affidavits within seven (7) days of the originally scheduled broadcast date of the Commercials required by the Station Agreements, such constituting a “Timely Basis” for purposes of this Section. For purposes hereof, if at any time, one of the nine Top 3 Market Stations fails to substantially comply with the aforementioned requirements to submit their Affidavits on a Timely Basis each week over a four-week period, notwithstanding that they previously fulfilled the six-month requirement described above, Network shall no longer be required to make payment to any Station within 45 days and instead, until such time as the nine Top 3 Market Stations have been in substantial compliance with their obligations to submit their Affidavits on a Timely Basis for a new six-month period Network shall make payments hereunder within 90 days after receipt by Network of complete and fully executed Affidavits for the applicable month. The foregoing monthly compensation rate is (i) based on Base Audience Level for the time period in question and (ii) calculated based on an annual compensation rate which is the product of (a)[Exh. 1, Col. K] (“Compensation Factor”) and (b)[Exh. 1, Col. H]/1000. ] |
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C. | Subject to Schedule 7 of the Master Agreement (which shall not apply to any Buyer upon the transfer or assignment of the Station pursuant to a Transaction as defined in Section IV hereof), if Broadcaster fails to broadcast the agreed number of commercial minutes per week as listed in the Commercial Schedule, then deductions shall be made from the monthly payment at the rates below: |
Percentage of | ||||
Commercial | ||||
Minutes | ||||
Broadcast by | Deduction per | Deduction per | ||
Station | :60 | :30 | ||
100% -³ 90% | $[Exh. 1, Col. D | $[Exh. 1, Col. E] | ||
<90% - 75% | $[Exh. 1, Col. F] | $[Exh. 1, Col. G] | ||
<75% | No payment | No payment |
D. | Clearances at times other than indicated in the Commercial Schedules or during the Make Good Period, the Sports Preemption Make Good Period or the Time Sensitive Sports Preemption Make Good Period will be counted as missed commercials and will negatively affect Station’s clearance rate indicated in Section XI(C) above. Broadcaster shall begin earning the aforementioned compensation on the date hereof. The deduction amounts set forth in Section XI(C) are subject to semi-annual adjustment upwards or downwards proportionate to the semi-annual adjustment to monthly compensation payments set forth below in Section XI(E) below. |
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E. | Monthly compensation payments will be adjusted up or down to reflect changes in Station’s audience delivery in the Adults DMA AQH Monday through Sunday 6AM-12 Midnight demographic as reported in each Arbitron Radio Report for Station’s DMA[Exh. 1, Col. J]; provided, however, that following reset of the Base Audience Level to reflect PPM conversion, compensation payments shall be adjusted up or down to reflect changes in PPM measured AQH. Said adjustments will be effective beginning on April 1 for Fall Reports and October 1 for Spring Reports, the first of which shall take effect April 1, 2008 including during the period of PPM conversion described in Section XIA(i) hereof so long as results of diary measurement for the entire DMA are available. This adjusted monthly compensation rate will be calculated based on an adjusted annual compensation rate which is the product of (i) the applicable Compensation Factor set forth on Exhibit 2 and (ii) the sum of (x) the Base Audience Level and (y) the difference between (A) the most recent Spring or Fall audience delivery, as applicable, and (B) the Base Audience Level plus 3% of such Base Audience Level in the case of an audience increase from the Base Audience Level, or minus a 3% threshold in the case of an audience decrease from the Base Audience Level (such Base Audience Level plus or minus a 3% threshold, as applicable, the “Threshold”) (such sum, the “Adjusted Audience Delivery”), divided by 1000. Notwithstanding the foregoing, if the Adjusted Audience Delivery is less than the Threshold in the case of an audience increase or greater than the Threshold in the case of any audience decrease, then the adjusted annual compensation rate shall be the product of (i) the applicable Compensation Factor set forth on Exhibit 2 and (ii) the Base Audience Level, divided by 1000. For example: (a) if the most recent Spring audience delivery is 20,000 and the Base Audience Level is 22,000 then the Adjusted Audience Delivery for Spring is 20,660, and (b) if the current Fall audience delivery is 24,000 and the Base Audience Level is 22,000, then the Adjusted Audience Delivery for Fall is 23,340. |
CBS RADIO INC: | WESTWOOD ONE, INC.: | |||||||
BY: | BY: | |||||||
NAME: | NAME: | |||||||
TITLE: | TITLE: | |||||||
DATE: | DATE: | |||||||
FOR CBS RADIO STATION(S)
1. | Term. Subject to clause (ii) of the last sentence of Section 8(a), the term of this Agreement shall commence on the Effective Date as defined in the Master Agreement (“Master Agreement”), dated of even date herewith, by and between Westwood One, Inc. and Broadcaster (“Commencement Date”) and shall continue through and including March 31, 2017, unless earlier terminated as provided herein (the “Term”). |
2. | Services. Network shall provide Station with the following services (“Services”): |
a. | To the extent traffic feeds are indicated in[Exh. 1, Col. D], traffic reports (“Traffic Reports”), and in connection therewith the parties will execute the Metro Traffic Network Radio Affiliate Agreement (“Metro Traffic Agreement”) set forth in Exhibit 4 attached hereto; | ||
b. | To the extent news feeds are indicated in[Exh. 1, Col. H],news reports or other information (“News Reports” and collectively with the Traffic Reports, the “Reports”), and in connection therewith the parties will execute the Metro News Network Radio Affiliate Agreement (“Metro News Agreement”) set forth in Exhibit 5 attached hereto; and | ||
c. | To the extent sponsorships are indicated inExh.1 Col. M, the Metro Source service, in which case the parties will execute the Metro Source Affiliate Agreement (“Metro Source Agreement”) in the form set forth in Exhibit 6 attached hereto (with the Metro Traffic Agreement, the Metro News Agreement and the Metro Source Agreement collectively referred to in this Agreement as the “Station Agreements”). | ||
d. | In the event of a conflict between the terms of this Metro Affiliation Agreement and the terms of the Form Agreements, the terms of this Metro Affiliation Agreement shall prevail. |
e. | Station understands and agrees that the Reports are distributed as a non-exclusive product. Network agrees to provide Reports that are professional and of broadcast-quality in accordance with prevailing industry standards (“Prevailing Industry Standards”) and otherwise as set forth in Station’s Metro Traffic Agreement, Metro News Agreement and Metro Source Agreement, as applicable. |
3. | Commercials. Station shall broadcast on its analog and HD1 facilities Network billboards and commercial announcements (“Commercials”) as indicated in Exhibit 1 hereof and in Station’s Metro Traffic Agreement, Metro News Agreement and Metro Source Agreement, as applicable. Station shall broadcast such Commercials in fair and equal rotation within dayparts as indicated in Exhibit 2 hereof and in the Station’s Metro Traffic Agreement, Metro News Agreement and Metro Source Agreement as applicable. |
4. | Days/Times of Broadcast. All Reports shall be broadcast at the days and times, as indicated in Exhibit 3 hereof and subject to the terms and conditions, set forth in Station’s Metro Traffic Agreement, Metro News Agreement and Metro Source Agreements, as applicable. |
5. | Proof of Broadcast. During the Term of this Agreement, Station agrees to verify and report to Network all clearances of Commercials via affidavits (“Affidavits”) as set forth in Station’s Metro Traffic Agreement, Metro News Agreement and Metro Source Agreements, as applicable. |
6. | Force Majeure. Neither party will have any liability hereunder if performance by such party shall be prevented, interfered with or omitted because of labor dispute, failure of facilities, act of God, government or court action, terrorist act, or any other similar or dissimilar cause beyond the control of the party so failing to perform hereunder. |
7. | Compensation. In consideration for Station’s broadcast of the Reports and Commercials, Network agrees: |
a. | to pay Station during the Term, $[Exh. 1, Col. P per month (the “Monthly Payment”), payable within 90 days after receipt by Network of complete and fully executed Affidavits for the applicable month; provided that: (i) beginning in the seventh month of this Agreement, Network agrees to make good faith efforts to make payment in less than 90 days so long as: (x) Station has submitted Affidavits on a Timely Basis for such month in accordance with the terms of the Station Agreements and (y) all three (3) stations in each of the top three radio markets (as defined by Arbitron) where Broadcaster has radio stations which are required to clear the highest level of Commercials pursuant to a Station Westwood Affiliation Agreement (“Top 3 Markets” and the nine Stations in the Top 3 Markets, the “Top 3 Market Stations”) are in substantial compliance with their |
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obligations to submit their Affidavits under their Station Agreements on a Timely Basis for such month and (ii) beginning in the second year of this Agreement, Network agrees to make payments within 45 days after receipt by Network of complete and fully executed Affidavits for the applicable month if: (x) Station has submitted its Affidavits on a Timely Basis in accordance with the terms of the Station Agreements and (y) each of the nine Top 3 Market Stations were in substantial compliance with their obligations to submit their Affidavits under their Metro Traffic Affiliation Agreements, Metro News Affiliation Agreements and Metro Source Affiliation Agreements (collectively, “Station Agreements”) on a Timely Basis for the immediately preceding six-month period. For the purposes of this Section 7(a), in order to be timely, Top 3 Market Stations must submit Affidavits within seven (7) days of the originally scheduled broadcast date of the Commercials, such constituting a “Timely Basis” for purposes of this Section. For purposes hereof, if at any time, one of the nine Top 3 Market Stations fails to substantially comply with the aforementioned requirements to submit their Affidavits on a Timely Basis each week over a four-week period, notwithstanding that they previously fulfilled the six-month requirement described above, Network shall no longer be required to make payment to any Station within 45 days and instead, until such time as the nine Top 3 Market Stations have been in substantial compliance with their obligations to submit their Affidavits on a Timely Basis for a new six-month period Network shall make payments hereunder within 90 days after receipt by Network of complete and fully executed Affidavits for the applicable month. | |||
b. | The Monthly Payment shall be increased annually, commencing on October 1, 2008 by a percentage amount equal to the following on the dates indicated below: |
Year | Percentage Increase From Prior Year | |
10/1/08 | 3.46% | |
10/1/09 | 3.34% | |
10/1/10 | 3.45% | |
10/1/11 | 3.13% | |
10/1/12 | 3.19% | |
10/1/13 | 3.19% | |
10/1/14 | 3.19% | |
10/1/15 | 3.19% | |
10/1/16 | 3.19% |
c. | The payment set forth in this Agreement is the total reimbursement and/or compensation payable by Network to Station related to the Station’s Metro Traffic Agreement, Metro News Agreement and Metro Source Agreement, as applicable, and is based entirely on the Station airing the Commercials called for by this Agreement. If Station does not air the number of Commercials required by the Station’s Metro Traffic Agreement, Metro News Agreement or Metro Source Agreement, as applicable, then the reimbursement amounts set forth in this Section 7 shall be reducedpro rata.. |
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d. | If at any point during the Term, Broadcaster provides audience guarantees to advertisers and/or ties pricing of advertising to audience delivery in a material portion of its traffic advertising business (for the limited purpose of this Section 7, “material portion” shall mean 20% of Broadcaster’s traffic advertising revenues), then the compensation payable by Network under this Agreement to Station shall be adjusted in a manner, or based on a methodology, at least as favorable as the most favorable manner/methodology used to adjust the compensation payable by Broadcaster’s major traffic advertisers when taking audience delivery into account. |
8. | Transfer/Sale of Station. |
a. | Broadcaster shall provide Network written notice within fourteen (14) business days of the execution of an agreement that requires the filing of an application with the FCC seeking the FCC’s consent for the assignment or transfer of control of the main broadcast license for the Station to a bona fide third party (“Transaction”). Broadcaster shall use commercially reasonable efforts to assign this Agreement (including all of Broadcaster’s rights and obligations with respect to the applicable Station) to the assignee or transferee (who is a bona fide third party) in the Transaction (the “Buyer”) for the remainder of the Term beginning on the date when the Buyer assumes operation of said Station and shall use commercially reasonable efforts to cause the Buyer to assume Broadcaster’s rights and obligations under this Agreement. Such assignment and assumption of rights and obligations shall be made on a form of agreement that is acceptable to Network, but consent to such form of agreement shall not be unreasonably withheld, conditioned or delayed. If after such efforts, Broadcaster is unable to effectuate such an assignment and assumption of rights and obligations for the Station, then Broadcaster shall be entitled, with respect to said Station, either to: (i) terminate this Agreement and reapportion all the gross impressions delivered by said Station to other Broadcaster owned or operated radio stations to achieve Substantially Equivalent Distribution for Network; or (ii) if the Station is a 36 Plus Station only, assign this Agreement (including all of Broadcaster’s rights and obligations with respect to the applicable Station), and cause the related assumption by Buyer of Broadcaster’s rights and obligations under this Agreement, for a term equal to the later of: (x) December 31, 2014 or (y) the fifth anniversary of the closing date of the Transaction (in which case the Terms shall expire on such later date, notwithstanding Section 1 herein, but in no event shall the Term extend beyond March 31, 2017). |
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b. | For purposes of this Section 8, the following terms shall have the following meanings: |
i. | “36 Plus Station” shall mean the 36th radio station sold, assigned or otherwise transferred or conveyed in any one or more Transaction or Transactions by Broadcaster after the Effective Date of the Master Agreement and any radio stations sold, assigned or otherwise transferred or conveyed in any one or more Transaction or Transactions thereafter by Broadcaster, not including (in any such case) any Transaction that was announced, consummated or pending at the time of, or prior to, the date of execution of the Master Agreement. | ||
ii. | To achieve “Substantially Equivalent Distribution” Broadcaster shall initially seek to reapportion gross impressions by redistribution of inventory to another Broadcaster owned or operated radio station in the same MSA, or if not applicable DMA, of the radio station(s) sold. If in Broadcaster’s reasonably exercised business judgment, redistribution in the same MSA or DMA as applicable, would have a materially detrimental effect on a Broadcaster station(s) located in such MSA or DMA, then Broadcaster shall not be required to redistribute such gross impressions on such Broadcaster Station(s), subject to Network’s right to dispute same as set forth below, and may achieve Substantially Equivalent Distribution as follows: |
Market Size Where | ||
Market Size of Sold Station(s) | Broadcaster May Re-Distribute | |
(as determined by Arbitron) | Network Commercials | |
1-3 | 1-3 | |
4-8 | 1-8 | |
9-14 | 1-14 | |
15-20 | 1-20 | |
21-27 | 1-27 | |
28+ | 1+ |
In the event that Network disputes Broadcaster’s determination that distribution in the same MSA or DMA would have a materially detrimental effect on Broadcaster or any of its stations located in the MSA or DMA, then Network may submit its proposal for redistribution of Commercial inventory to be resolved by an arbitrator pursuant to Section 13(p) hereof, in which case the arbitrator shall have the authority to determine if the distribution in the same MSA or DMA would have such detrimental effect, and if not, to require a revised redistribution of Commercials. |
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9. | Assignment/Binding Effect. This Agreement shall be binding upon and shall inure to the benefit of the parties hereto and their respective successors and permitted assigns. Subject to Section 8(a) hereof and Section 26 of the Master Agreement, neither Broadcaster nor Network may assign its rights or obligations hereunder without the prior written consent of the other party hereto;provided that (i) subject to Section 26 of the Master Agreement, Network may assign all or any of its rights and related obligations hereunder to any of its controlled affiliates, or a third party who acquires more than 50% of the equity or voting interests of Network, all or substantially all of the assets of Network or all or substantially all of the assets comprising any significant business unit or division of Network, in each case, in a single transaction or series of related transactions, without the prior consent of Broadcaster;provided that (x) in the case of any assignment in connection with the sale of all or substantially all of the assets comprising any significant business unit or division of Network, such assignment shall be limited to those rights and related obligations that are related to such business unit or division, (y) in connection with any permitted assignment under this clause (i), the assignee shall assume all of the obligations relating to the rights being assigned, and (z) no assignment under this clause (i) shall relieve Network from any of its obligations or liabilities under this Agreement; (ii) Broadcaster may assign, without the prior consent of Network, all or any of its rights or obligations hereunder to (x) any of its affiliates and (y) any third party who acquires any Broadcaster Station, to the extent the assigned rights are related to the Broadcaster Stations acquired thereby;provided that no assignment under this clause (ii) shall relieve Broadcaster from any of its obligations or liabilities hereunder; and (iii) in respect of any assignment of Broadcaster’s rights and related obligations hereunder to any third party who is not an affiliate of Broadcaster, Network’s prior written consent shall not be unreasonably withheld. Any purported assignment or transfer in violation of the provisions of this Section 9 is null and void and of no force or effect. For the avoidance of doubt, (i) Network agrees that that a sale of Broadcaster as an entity, whether directly or indirectly and whether by merger, asset sale, stock sale or otherwise, shall not constitute an assignment for purposes of this Agreement or otherwise require the consent of Network and (ii) Broadcaster agrees that, subject to Section 26 of the Master Agreement, a sale of Network as an entity, whether directly or indirectly and whether by merger, asset sale, stock sale or otherwise shall not constitute an assignment for purposes of this Agreement or otherwise require the consent of Broadcaster. In addition, Broadcaster acknowledges that the Network may engage third parties to manage the distribution of the Programs, or act as an agent of the Network relating to the distribution or production of Programs for the Network or sale of any commercial inventory associated with the Programs, in each case, not from any broadcast facilities leased by, or leased from, Broadcaster (other than independent contractors who shall be permitted access to such broadcast facilities consistent with Past Practice (as such term is defined in the |
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Technical Services Agreement, between Westwood One, Inc. and Broadcaster)), and Broadcaster agrees that it shall remain, and any third party engaged by it shall be, subject to all of the applicable terms and conditions of this Agreement and the Amended and Restated News Programming Agreement, between Westwood One, Inc. and Broadcaster (“Amended News Agreement”). Furthermore, Owner acknowledges that the foregoing shall not constitute an assignment hereunder. Upon the transfer or assignment of the Station pursuant to Sections 8(a) hereof, the terms of Sections 7(a)(ii), 8(a) and 10(f) hereof shall be of no further force or effect and shall not apply to the Buyer of the Station or to any subsequent Buyers. |
10. | Termination. This Agreement may be terminated: |
a. | by mutual written consent of Broadcaster and Network; | ||
b. | by Broadcaster if Network fails to pay an undisputed amount owed to Broadcaster under this Agreement following 30 days written notice; | ||
c. | by Broadcaster if Network fails to pay an amount owed to Broadcaster that was previously disputed but has since been determined by arbitration pursuant to Section 13(p) or mutual agreement of the parties to be owed to Broadcaster under this Agreement, within 15 days of such arbitration award or following 15 days written notice of such mutual agreement; | ||
d. | by Broadcaster following 30 days written notice if (x) three (3) or more disputed payments are submitted to arbitration under Section 13(p) during the Term of this Agreement, (y) such disputed payments are not deposited with a third party escrow agent reasonably acceptable to Broadcaster and Network within five (5) business days following submission to arbitration and (z) the arbitrator(s) finds in each case that the amount claimed by Broadcaster to be properly payable by Network to Broadcaster under this Agreement is in fact properly payable to Broadcaster under this Agreement; | ||
e. | by either party hereto if (x) it notifies the other party in writing that such other party is in material breach of one or more of its material covenants (other than payment covenants) under this Agreement and such breach is not cured within 30 days of receipt of such written notice, (y) it submits to arbitration under Section 13(p) such breach or breaches and requests termination as a remedy, and (z) the arbitrator(s) determines (A) that the breaching party has in fact materially breached one or more material covenants (other than payment covenants) under this Agreement, (B) that such breach or breaches have not been cured and have caused significant harm to the non-breaching party, and (C) that termination of this Agreement is an appropriate remedy (after considering other appropriate remedies short of termination); |
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f. | automatically in the event of a termination of the Master Agreement and the parties’ rights and obligations shall be governed by the terms of Section 27 of the Master Agreement; | ||
g. | by Network effective immediately by giving Station notice of termination if Station has delivered to Network intentionally or repeatedly false, inaccurate or incomplete Affidavits concerning the broadcast of the Reports and Commercials; provided however in the event that Network determines that Station has submitted intentionally or repeatedly false, inaccurate or incomplete Affidavits, Network will provide notice to Broadcaster and Station (through a designated official at each) of such failure or problem. Network further agrees that Station shall have thirty (30) days notice and opportunity to cure in the event that such delivery of false, inaccurate or incomplete Affidavits was due to circumstances not approved or condoned by a management level Station official; provided, however, that such opportunity to cure in this instance shall be available to Station on three (3) occasions only during the Term of this Agreement. | ||
h. | by Broadcaster pursuant to clause (i) of the last sentence of Section 8(a) herein. |
11. | Copyright, Trademarks and Service Mark Limitations; Licenses. |
a. | During the Term of this Agreement, in addition to such rights granted to Network under the terms of the Amended and Restated Trademark License Agreement, dated of even date herewith, by and between CBS Radio Inc. and Westwood One, Inc. (the “Amended and Restated Trademark License Agreement”) and subject to Section 26 of the Master Agreement, Network shall have the right to use the name of Broadcaster and Station’s call letters solely in connection with promotion of the Network and Broadcaster’s association with it. During the Term of this Agreement, Broadcaster and Station shall have the right to use the name of Network solely in connection with promotion of the Network and Broadcaster’s association with it. The copyrights, trademarks and all other rights in the material supplied by Network shall remain the property of Network or the property of such copyright, trademark and other rights holders from whom Network has licensed or otherwise acquired rights. The copyrights, trademarks and all ; other rights in the material supplied by Broadcaster and Station shall remain the property of Broadcaster or the property of such copyright, trademark and other rights holders from whom Broadcaster or Station has licensed or otherwise acquired rights. Each party shall be obligated to comply with all copyrights, trademark and other laws in any applicable jurisdiction necessary to protect the other party’s copyrights, trademarks and all other rights in the material on behalf of the rights holders. The foregoing shall not limit either party’s rights or remedies for the other party’s unauthorized use of the proprietary interests of its trademarks, copyrights or service marks. The parties further agree that any use by Network of the trademarks, logos and service marks set forth in Schedule A to the Amended and Restated Trademark License Agreement shall be subject to the terms of the Amended and Restated Trademarks License Agreement and that the terms of this Agreement shall not apply to the matters described therein. |
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b. | Network represents and warrants that all ideas, creations, materials and intellectual properties provided to Station in the Reports or Commercials hereunder are either (a) controlled by BMI, ASCAP or SESAC; (b) in the public domain; or (c) are materials which Network is fully licensed to use. Network agrees to indemnify and hold Broadcaster and Station harmless from and against any damage or expenses, including reasonable attorney’s fees, which may arise out of the broadcasting hereunder of materials the performing rights to which are not within category (a) above and Station agrees that it is the obligation of Station to secure the necessary performing rights license for music within category (a) above. Except as otherwise set forth herein, in no event, however, shall either party be liable to the other party for any special, indirect, consequential or exemplary damages or any loss of any business profits, whether or not foreseeable, arising out of or in connection with broadcast of the Reports or Commercials. |
12. | Indemnification. |
a. | From and after the Commencement Date, Broadcaster shall indemnify, defend and hold Network, its affiliates and their respective officers, directors, employees and representatives, and the predecessors, successors and assigns of any of them harmless, from and against any and all actions, claims, damages and liabilities (and all actions in respect thereof and any legal or other expenses in giving testimony or furnishing documents in response to a subpoena or otherwise and whether or not a party thereto), whether or not arising out of third party claims, including reasonable legal fees and expenses in connection with, and other costs of, investigating, preparing or defending any such action or claim, whether or not in connection with litigation in which such person is a party, and as and when incurred (collectively, “Losses”), caused by, relating to, based upon or arising out of (directly or indirectly) (i) any breach of, or inaccuracy in, any representation or warranty of Broadcaster or Station in this Agreement or any certificate or other document delivered pursuant hereto in connection herewith, or (ii) any breach of any covenant or agreement made by Broadcaster or Station in this Agreement. |
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b. | From and after the Commencement Date, Network shall indemnify, defend and hold Broadcaster, Station, their affiliates and their respective officers, directors, employees and representatives, and the predecessors, successors and assigns of any of them harmless, from and against any Losses, caused by, relating to, based upon or arising out of (directly or indirectly) (i) any breach of, or inaccuracy in, any representation or warranty of Network in this Agreement or any certificate or other document delivered pursuant hereto in connection herewith, (ii) any breach of any covenant or agreement made by Network or Station in this Agreement, or (iii) any claim that the Reports or Commercials, or the Broadcaster or Station’s use thereof in accordance with the terms and conditions hereunder, violates or infringes the rights of any third party. | ||
c. | In the event of a claim for breach of the representations and warranties contained in this Agreement or for failure to fulfill a covenant or agreement, the party asserting such breach or failure shall provide a written notice to the other party which shall state specifically the representation, warranty, covenant or agreement with respect to which the claim is made, the facts giving rise to an alleged basis for the claim and the amount of liability asserted against the other party by reason of the claim. If any suit, action, proceeding or investigation shall be commenced or any claim or demand shall be asserted by any third party (a “Third Party Claim”) in respect of which indemnification may be sought by any party or parties from any other party or parties under the provisions of this Section 12, the party or parties seeking indemnification (collectively, the “Indemnitee”) shall promptly provide written notice to the party or parties from which indemnification is sought (collectively, the “Indemnitor”);provided,however, that any failure by an Indemnitee to so notify an Indemnitor will not relieve the Indemnitor from its obligations hereunder, except to the extent that such failure shall have materially prejudiced the defense of such Third Party Claim. The Indemnitor shall have the right to control (except where an insurance carrier has the right to control or where an insurance policy or applicable law prohibits the Indemnitor from taking control of) the defense of any Third Party Claim;provided,however, that the Indemnitee may participate in any such proceeding with counsel of its choice and at its own expense unless there exists a conflict between the Indemnitor and the Indemnitee as to their respective legal defenses, in which case the fees and expenses of any such counsel shall be reimbursed by the Indemnitor. Except as otherwise set forth herein, the Indemnitee shall have the right to participate in (but not control) the defense of any Third Party Claim and to retain its own counsel in connection therewith, but the fees and expenses of any such counsel for the Indemnitee shall be borne by the Indemnitee. The Indemnitor shall not, without the prior written consent of the Indemnitee, effect any settlement of any pending or threatened proceeding in respect of which such Indemnitee is, or with reasonable foresee ability could have been, a party and indemnity could have been sought to be collected from the Indemnitor, unless such settlement includes an unconditional release of such Indemnitee from all liability arising out of such proceeding (provided,however, that, whether or not such a release is required to be obtained, the Indemnitor shall |
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remain liable to such Indemnitee in accordance with this Section 12 in the event that a Third Party Claim is subsequently brought against or sought to be collected from such Indemnitee). The Indemnitor shall be liable for all Losses arising out of any settlement of any Third Party Claim;provided,however, that the Indemnitor shall not be liable for any settlement of any Third Party Claim brought against or sought to be collected from an Indemnitee, the settlement of which is effected by such Indemnitee without such Indemnitor’s written consent, but if settled with such Indemnitor’s written consent, or if there is a final judgment for the plaintiff in any such Third Party Claim, such Indemnitor shall (to the extent stated above) indemnify the Indemnitee from and against any Losses in connection with such Third Party Claim. The indemnification required by this Section 12 shall be made by periodic payments of the amount thereof during the course of the investigation or defense, as and when bills are received or Losses are incurred. | |||
d. | Neither party shall be liable to the other party for any special, indirect, consequential, or exemplary damages, and any loss of business or profits, whether or not foreseeable, arising out of or in connection with this Agreement (other then in connection with Third Party Claims). The obligations of each party under this Section shall continue notwithstanding any termination of this Agreement and such indemnification shall survive termination of this Agreement. |
13. | Miscellaneous. |
a. | Notices. All notices, requests and other communications hereunder must be in writing and will be deemed to have been duly given only if delivered personally or by facsimile transmission (with receipt acknowledged) or mailed (registered or certified mail, return receipt requested) to the parties at the following addresses or facsimile numbers: |
Westwood One, Inc.
40 West 57th Street, 15th Floor
New York, New York 10019
Attention: General Counsel
Telecopy: (212) 641-2198
Skadden, Arps, Slate, Meagher & Flom LLP
300 South Grand Avenue
Los Angeles, California 90071
Attention: Brian J. McCarthy, Esq.
Telecopy: (213) 687-5600
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CBS Radio Inc.
1515 Broadway, 46th Floor
New York, NY 10036
Attention: President/CEO
Telecopy: (212) 846-3939
with a copy to each of: | ||
CBS Law Department | ||
51 West 52nd Street | ||
New York, NY 10019 | ||
Attention: General Counsel | ||
Telecopy: (212) 975-4215 | ||
Weil, Gotshal & Manges LLP | ||
767 Fifth Avenue | ||
New York, NY 10153 | ||
Attention: Howard Chatzinoff | ||
Telecopy: (212) 310-8007 |
b. | Waiver. Any term or condition of this Agreement may be waived at any time by the party that is entitled to the benefit thereof, but no such waiver shall be effective unless set forth in a written instrument duly executed by or on behalf of the party waiving such term or condition. No waiver by any party of any term or condition of this Agreement, in any one or more instances, shall be deemed to be or construed as a waiver of the same or any other term or condition of this Agreement on any future occasion. No failure or delay on the part of party in exercising any right or power under this Agreement shall operate as a waiver thereof, nor shall any single or partial exercise of any such right or power, or any abandonment or discontinuance of steps to enforce such a right or power, preclude any other or further exercise thereof or the exercise of any other right or power. All remedies, either under this Agreement or by law or otherwise afforded, will be cumulative and not alternative. | ||
c. | Amendment. This Agreement may be amended, supplemented or modified only by a written instrument duly executed by or on behalf of each party hereto. |
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d. | No Third-Party Beneficiary. The terms and provisions of this Agreement are intended solely for the benefit of each party hereto and their respective successors or permitted assigns, and it is not the intention of the parties to confer third-party beneficiary rights upon any other person. | ||
e. | Headings. The headings used in this Agreement have been inserted for convenience of reference only and do not define or limit the provisions hereof. | ||
f. | Invalid Provisions. If any provision of this Agreement is held to be illegal, invalid or unenforceable under any present or future law, and if the rights or obligations of any party hereto under this Agreement will not be materially and adversely affected thereby, (i) such provision will be fully severable, (ii) this Agreement will be construed and enforced as if such illegal, invalid or unenforceable provision had never comprised a part hereof, (iii) the remaining provisions of this Agreement will remain in full force and effect and will not be affected by the illegal, invalid or unenforceable provision or by its severance herefrom and (iv) in lieu of such illegal, invalid or unenforceable provision, there will be added automatically as a part of this Agreement a legal, valid and enforceable provision as similar in terms to such illegal, invalid or unenforceable provision as may be possible. | ||
g. | Press Release. Except as required by law, the timing and content of any public disclosure of the terms of this Agreement shall be made only upon the mutual approval of Network and Broadcaster. | ||
h. | Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the state of New York, its rules of conflict of laws notwithstanding. | ||
i. | Process. Each party hereby irrevocably consents to the service of any and all process in any such suit, action or proceeding by registered or certified mail addressed and sent to the chief executive officer of such party at such party’s address as noted in Section 13(a) above. | ||
j. | Counterparts. This Agreement may be executed in counterparts and by facsimile signature, each of which will be deemed an original, but all of which together will constitute one and the same instrument. |
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k. | Expenses. Each of Network and Broadcaster shall bear its own expenses relating to this Agreement. | ||
l. | Entire Agreement. Except as set forth otherwise herein, this Agreement, this Agreement contains the entire understanding between Network and Broadcaster with respect to its subject matter and constitutes the sole relationship between Network and Broadcaster, supersedes all previous agreements or understandings (including but not limited to any and all other “Metro Networks Affiliation Agreement(s)” between Network and Station, with the exception of the indemnification provision(s) of such agreements, which shall survive in accordance with their terms) between them with respect thereto, and, except for changes and revisions by Station to Reports and Commercials specifically contemplated herein, shall not be modified except by a signed writing. | ||
m. | Authority. The individual executing this Agreement hereby warrants and represents that he/she is legally authorized to execute agreements on behalf of either Network or Broadcaster/ Station, as the case may be, and does so intending to be bound legally. | ||
n. | Commercial Rights. Network represents and warrants that it possesses all rights necessary to license the Reports and Commercials supplied by Network under this Agreement. | ||
o. | Communications Act of 1934. Network agrees to disclose to Broadcaster and Station any and all information that it has or that has been disclosed to it as to any money, service or other valuable consideration which any person has been paid or accepted, or has agreed to pay or accept for the inclusion of any matter as a part of the report other than sponsorships\commercial mentions\spots. The term “service or other valuable consideration” as used in this paragraph shall not include any service or property furnished without charge or at a nominal charge for use on, or in connection with, the reports unless it is so furnished in consideration for an identification in the material provided by Network of any person, product, service, trademark or brand name beyond an identification that is reasonably related to the use of such service or property in such material. With respect to any material for which an announcement is required, Station may, at its option, cancel the broadcast of such material. |
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p. | Arbitration. Any dispute, controversy or claim arising out of or relating to this Agreement or the breach, termination or validity thereof (“Dispute”), shall on the demand of any party be finally and exclusively resolved by arbitration in accordance with the then-prevailing JAMS Comprehensive Arbitration Rules and Procedures as modified herein (the “Rules”);provided,however, that any party hereto shall have the right to seek injunctive relief against the other party hereto in the courts of New York, New York, prior to the resolution of any Dispute by arbitration in accordance with this Section 13(p). There shall be three neutral arbitrators of whom each party shall select one. The claimant shall select its arbitrator in its demand for arbitration and the respondent shall select its arbitrator within 30 days after receipt of the demand for arbitration. The two arbitrators so appointed shall select a third arbitrator to serve as chairperson within fourteen days of the designation of the second of the two arbitrators. If any arbitrator is not timely appointed, at the request of any party such arbitrator shall be appointed by JAMS pursuant to the listing, striking and ranking procedure in the Rules. The place of arbitration shall be New York, New York. The arbitral tribunal shall be required to follow the law of the State of New York. The arbitral tribunal is not empowered to award damages in excess of compensatory damages, and each party hereby irrevocably waives any right to recover punitive, exemplary or similar damages with respect to any Dispute. Any arbitration proceedings, decision or award rendered hereunder and the validity, effect and interpretation of this arbitration provision shall be governed by the Federal Arbitration Act, 9 U.S.C. §1 et seq. The award shall be final and binding upon the parties and shall be the sole and exclusive remedy between the parties regarding any claims, counterclaims, issues or accounting presented to the arbitral tribunal. Judgment upon any award may be entered in any court having jurisdiction. |
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WESTWOOD ONE, INC. | CBS RADIO INC. | |||||||
By: | By: | |||||||
Name: | Name: | |||||||
Title: | Title: |
2800 Post Oak Blvd., Suite 4000 Agreement No.: Houston, TX 77056-6199 Phone: 713-407-6000 Fax: 713-407-6348 |
NEWS NETWORK RADIO AFFILIATE AGREEMENT FOR CBS RADIO STATION |
Station: [Metro Affiliate Exhibit 1; Column B] Start Date: [Effective Date of Master Agreement] |
Frequency: [Metro Affiliate Exhibit 1; Column C] Term: [Effective Date of Master Agreement – March 31, 2017] |
Station Market: [Metro Affiliate Exhibit 1; Column A] Network Contact: |
Address: Phone Number: |
City: State: Zip Code: Fax Number: |
Station Contact: E-Mail: |
Phone Number: |
Fax Number: |
E-Mail: |
DAILY MINIMUM NUMBER DAILY MINIMUM NUMBER DAILY MINIMUM NUMBER DAILY MINIMUM NUMBER OF TRAFFIC REPORTS OF TRAFFIC REPORTS OF COMMERCIALS OF COMMERCIALS WEEKDAYS (MON-FRI) WEEKENDS (SAT-SUN) WEEKDAYS (MON-FRI) WEEKENDS (SAT-SUN) |
5 a.m. – 10 a.m. 24 hours [Metro 5 a.m. – 10 a.m. [Metro Aff. Ex. 2; Col. G] 24 hours [Metro [Metro Aff. Ex. 3; Aff. Ex. 3; Col. I] Aff. Ex. 2; Col. L] Col. E] |
10 a.m. – 3 p.m 10 a.m. – 3 p.m. [Metro Aff. Ex. 2; Col. [Metro Aff. Ex. 3; H] Col. F] |
3 p.m. – 8 p.m. 3 p.m. – 8 p.m. [Metro Aff. Ex. 2; Col. I] [Metro Aff. Ex. 3; Col. G] |
8 p.m. – 5 a.m. 8 p.m. – 5 a.m. [Metro Aff. Ex. 2; Col. J] [Metro Aff. Ex. 3; Col. H] |
Total [Metro Aff. Total [Metro Aff. Total [Metro Aff. Ex. 2; Col. K] Total [Metro Aff. Ex. 3; Col. J] Ex. 3; Col. I] Ex. 2; Col. L] |
ADDITIONAL SERVICES PROVIDED BY NETWORK/STATION |
Spot Announcements[Metro Affiliate Exhibit 1; Column N] (Specify weekly amount and day part.) |
Station Sports/NASCAR Make Good Requirement (If yes, see Exhibit 1 to this Agreement.) |
With CBS Station(s)
CONDITIONS OF AGREEMENT
Originally Scheduled Broadcast | ||||
Date | Make Good Window* | Make Good Time* | ||
Monday �� Wednesday | Monday- Friday within the same week as the originally scheduled broadcast date | Same or better daypart as the originally scheduled broadcast date | ||
Thursday- Friday | Monday-Friday within the same week as the originally scheduled broadcast date OR Monday-Wednesday in the week following the originally scheduled broadcast date | Same or better daypart as the originally scheduled broadcast date | ||
Thursday – Friday for time sensitive commercials (e.g., retail sales (including airlines), seasonal copy, movie or other openings or TV or other media “tune-in” (including newspapers), lotteries and sweepstakes) that Network has provided CBS with reasonable advance notice of pursuant to Section I(d) | Reasonable best efforts Monday-Friday within the same week as the originally scheduled broadcast date | Same or better daypart as the originally scheduled broadcast date | ||
Saturday-Sunday | Monday-Sunday in the week following the originally scheduled broadcast date | Same daypart as the originally scheduled broadcast date |
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Skadden, Arps, Slate, Meagher & Flom LLP
300 South Grand Avenue
Los Angeles, California 90071
Attention: Brian J. McCarthy, Esq.
Telecopy: (213) 687-5600
CBS Law Department
51 West 52nd Street
New York, NY 10019
Attention: General Counsel
Telecopy: (212) 975-4215
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AND MAKE GOOD OBLIGATIONS
2800 Post Oak Blvd., Suite 4000 Agreement No.: Houston, TX 77056-6199 Phone: 713-407-6000 Fax: 713-407-6348 |
METRO SOURCESM AFFILIATE AGREEMENT FOR CBS RADIO STATION |
Station: [Metro Affiliate Exhibit 1; Column B] Start Date: [Effective Date of Master Agreement] |
Frequency: [Metro Affiliate Exhibit 1; Column C] Term: [Effective Date of Master Agreement — March 31, 2017] |
Station Market: [Metro Affiliate Exhibit 1; Column A] Network Contact: |
Address: Phone Number: |
City: State: Zip Code: Fax Number: |
Station Contact: E-Mail: |
Phone Number: |
Fax Number: |
E-Mail: |
METRO SOURCESM PRODUCT(S) Installation Charges: None |
Basic Metro Source or Basic Metro Source Target Installation Date: Internet No. of work stations Installation Address: |
Supplemental Services (list) |
Equipment Security Deposit $ None |
DAILY NUMBER OF SPONSORSHIPS (MON-FRI) Special Instructions Comments: 5 a.m. — 10 a.m. [Metro Aff. Ex. 2; Col. G] |
10 a.m. — 3 p.m. [Metro Aff. Ex. 2; Col. H] |
3 p.m. — 8 p.m. [Metro Aff. Ex. 2; Col. I] |
8 p.m. — 5 a.m. [Metro Aff. Ex. 2; Col. J] |
Total per week: [Metro Aff. Ex. 2; Col. K] |
FEE Radio Station shall pay Metro $ None |
net per month in advance. |
With CBS Station(s)
CONDITIONS OF AGREEMENT
2
Originally Scheduled Broadcast | ||||
Date | Make Good Window* | Make Good Time* | ||
Monday – Wednesday | Monday- Friday within the same week as the originally scheduled broadcast date | Same or better daypart as the originally scheduled broadcast date | ||
Thursday- Friday | Monday-Friday within the same week as the originally scheduled broadcast date OR Monday-Wednesday in the week following the originally scheduled broadcast date | Same or better daypart as the originally scheduled broadcast date | ||
Thursday – Friday for time sensitive commercials (e.g., retail sales (including airlines), seasonal copy, movie or other openings or TV or other media “tune-in” (including newspapers), lotteries and sweepstakes) that Network has provided CBS with reasonable advance notice of pursuant to Section I(d) | Reasonable best efforts Monday-Friday within the same week as the originally scheduled broadcast date | Same or better daypart as the originally scheduled broadcast date | ||
Saturday-Sunday | Monday-Sunday in the week following the originally scheduled broadcast date | Same daypart as the originally scheduled broadcast date |
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With CBS Station(s)
CONDITIONS OF AGREEMENT
Originally Scheduled Broadcast | ||||
Date | Make Good Window* | Make Good Time* | ||
Monday – Wednesday | Monday- Friday within the same week as the originally scheduled broadcast date | Same or better daypart as the originally scheduled broadcast date | ||
Thursday- Friday | Monday-Friday within the same week as the originally scheduled broadcast date OR Monday-Wednesday in the week following the originally scheduled broadcast date | Same or better daypart as the originally scheduled broadcast date | ||
Thursday – Friday for time sensitive commercials (e.g., retail sales (including airlines), seasonal copy, movie or other openings or TV or other media “tune-in” (including newspapers), lotteries and sweepstakes) that Network has provided CBS with reasonable advance notice of pursuant to Section I(d) | Reasonable best efforts Monday-Friday within the same week as the originally scheduled broadcast date | Same or better daypart as the originally scheduled broadcast date | ||
Saturday-Sunday | Monday-Sunday in the week following the originally scheduled broadcast date | Same daypart as the originally scheduled broadcast date |
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Skadden, Arps, Slate, Meagher & Flom LLP
300 South Grand Avenue
Los Angeles, California 90071
Attention: Brian J. McCarthy, Esq.
Telecopy: (213) 687-5600
CBS Law Department
51 West 52nd Street
New York, NY 10019
Attention: General Counsel
Telecopy: (212) 975-4215
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Twelve (12)-Month Period Ending March 31, | Annual Programming Fee ($) | ||
2008 | 12,458,268 | ||
2009 | 12,989,324 | ||
2010 | 13,448,167 | ||
2011 | 13,937,129 | ||
2012 | 14,373,361 | ||
2013 | 14,831,872 | ||
2014 | 15,305,008 | ||
2015 | 15,793,238 | ||
2016 | 16,297,042 | ||
2017 | 16,816,918 |
1 | Specified rates to be effective as of April 1, 2008 even if the Closing occurs after March 31, 2008. |
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CBS RADIO INC. | ||||
By: | ||||
Name: | ||||
Title: | ||||
WESTWOOD ONE, INC. | ||||
By: | ||||
Name: | ||||
Title: | ||||
• | CBS News on-the Hour Newscasts (24 x 7 x 365) (no less than four (4) minutes of news content, format consistent with past practice) | ||
• | World News Roundup (AM and PM Editions) (weekdays, format consistent with past practice) | ||
• | CBS News Updates at :31 (24 x 7 x 365) (no less than :60 in length) | ||
• | What’s in the News (M-F) | ||
• | Katie Couric Notebook (M-F daily feature by anchor of CBS Evening News) | ||
• | Just A Minute w/ Harry Smith (M-F daily feature) | ||
• | CBS Newsfeeds — 18 feed a day M-F and 6 on weekends – (number of soundbites/cuts consistent with past practice) | ||
• | CBS Spectrum Newscasts (M-F, 6a-11a, :60 in length) | ||
• | CBS Weekend Roundup (format consistent with past practice) | ||
• | CBS Daily Features (M-F, number and format of features consistent with past practice) | ||
• | CBS Weekend Features (number and format consistent with past practice) | ||
• | Unanchored feeds of major speeches, news conferences, hearings and other news events, consistent with past practice. | ||
• | Coverage produced specifically for radio and anchored of major scheduled news events, e.g. presidential speeches, space shuttle launches and newsmaker news conferences. | ||
• | Continuous anchored coverage and short form reports of major breaking news stories, consistent with past practice. |
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If to the Company: | Westwood One, Inc. | |||
40 West 57th Street, 15th Floor | ||||
New York, New York 10019 | ||||
Attention: General Counsel | ||||
Telecopy: (212) 641-2198 | ||||
with a copy to: | Skadden, Arps, Slate, Meagher & Flom | |||
300 South Grand Avenue | ||||
Los Angeles, California 90071 | ||||
Attention: Brian J. McCarthy, Esq. | ||||
Facsimile: (213) 687-5600 | ||||
If to CBS: | CBS Radio Inc. | |||
1515 Broadway, 46th Floor | ||||
New York, New York 10036 | ||||
Attention: Chairman & CEO | ||||
Telecopy: (212) 846-2342 | ||||
with copies to: | CBS Corporation | |||
51 West 52 Street | ||||
New York, New York 10019 | ||||
Attention: General Counsel | ||||
Facsimile: (212) 975-4215 | ||||
Weil, Gotshal & Manges LLP | ||||
767 Fifth Avenue | ||||
New York, New York 10153 | ||||
Attention: Howard Chatzinoff, Esq. | ||||
Michael Lubowitz, Esq. | ||||
Facsimile: (212) 310-8007 |
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WESTWOOD ONE, INC. | ||||
By: | ||||
Name: | ||||
Title: | ||||
CBS RADIO INC. | ||||
By: | ||||
Name: | ||||
Title: | ||||
Other Registration Rights Agreements
A-1 attached hereto and hereby made a part hereof, as well as such trademarks, logos and service marks developed by the parties together or by Licensor, in each case, for programming provided by Licensor to Licensee in connection with the Business;provided that Licensor and Licensee agree and acknowledge that such trademarks, logos and service marks so developed shall be owned exclusively by Licensor.
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If to Licensee: | ||
Westwood One, Inc. | ||
40 West 57th Street, 15th Floor | ||
New York, New York 10019 | ||
Attention: General Counsel | ||
Telecopy: (212) 641-2198 |
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with a copy to: | ||
Skadden, Arps, Slate, Meagher & Flom LLP | ||
300 South Grand Avenue | ||
Los Angeles, California 90071 | ||
Attention: Brian J. McCarthy, Esq. | ||
Telecopy: (213) 687-5600 | ||
If to Licensor: | ||
CBS Radio Inc. | ||
1515 Broadway, 46th Floor | ||
New York, New York 10036 | ||
Attention: Chairman & CEO | ||
Telecopy: (212) 846-2342 | ||
with a copy to each of: |
CBS Corporation | ||
51 West 52 Street | ||
New York, New York 10019 | ||
Attention: General Counsel | ||
Telecopy: (212) 975-4215 | ||
Weil, Gotshal & Manges LLP | ||
767 Fifth Avenue | ||
New York, New York 10153 | ||
Attention: Howard Chatzinoff, Esq. | ||
Michael Lubowitz, Esq. | ||
Telecopy: (212) 310-8007 |
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CBS RADIO INC. | ||||
By: | ||||
Name: | ||||
Title: | ||||
WESTWOOD ONE, INC. | ||||
By: | ||||
Name: | ||||
Title: | ||||
Terminated Upon the Termination of the News Programming Agreement
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40 West 57th Street, 15th Floor
New York, New York 10019
Attention: General Counsel
Telecopy: (212) 641-2198
300 South Grand Avenue
Los Angeles, California 90071
Attention: Brian J. McCarthy, Esq.
Telecopy: (213) 687-5600
1515 Broadway, 46th Floor
New York, New York 10036
Attention: Chairman and CEO
Telecopy: 212-846-2342
CBS Corporation | ||
51 West 52 Street | ||
New York, New York 10019 | ||
Attention: General Counsel | ||
Telecopy: (212) 975-4215 | ||
Weil, Gotshal & Manges LLP | ||
767 Fifth Avenue | ||
New York, New York 10153 | ||
Attention: Howard Chatzinoff, Esq. | ||
Michael Lubowitz, Esq. | ||
Telecopy: (212) 310-8007 |
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CBS RADIO INC. | ||||||||
By: | ||||||||
Name: | ||||||||
Title: | ||||||||
WESTWOOD ONE, INC. | ||||||||
By: | ||||||||
Name: | ||||||||
Title: |
1. | office space listed in Exhibit A to Broadcast Center Lease | ||
2. | office space listed in Exhibit A to 2020 M Street Lease | ||
3. | office space listed in Exhibit A to 2000 M Street Sub- Lease |
• | JT Packard Service Contract, date of order 9/13/06 (purchase order dated 9/7/06) |
• | ENCO Systems DAD Digital Audio Delivery System, reference SO #10857 |
• | Harris |
• | Jutel RadioMan Support and Maintenance Agreement for Infinity Broadcasting Corporation |
Year Commencing on | ||||
April 1, | Escalator (%) | |||
2008 | 3.46 | |||
2009 | 3.34 | |||
2010 | 3.45 | |||
2011 | 3.13 | |||
2012 | 3.19 | |||
2013 | 3.19 | |||
2014 | 3.19 | |||
2015 | 3.19 | |||
2016 | 3.19 |
2
Time Period | Annual Rent Amount ($) | Monthly Rent Amount ($) | ||||||
Commencement Date to One-Year Anniversary | 474,000.00 | 39,500.00 | ||||||
One-Year Anniversary to Two-Year Anniversary | 490,400.40 | 40,866.70 | ||||||
Two-Year Anniversary to Three-Year Anniversary | 656,779.77 | 54,731.65 | ||||||
Three-Year Anniversary to Four-Year Anniversary | 679,438.68 | 56,619.89 | ||||||
Four-Year Anniversary to Five-Year Anniversary | 700,705.11 | 58,392.09 | ||||||
Five-Year Anniversary to Six-Year Anniversary | 723,057.60 | 60,254.80 | ||||||
Six-Year Anniversary to Seven-Year Anniversary | 746,123.14 | 62,176.93 | ||||||
Seven-Year Anniversary to Eight-Year Anniversary | 769,924.46 | 64,160.37 | ||||||
Eight-Year Anniversary to Nine-Year Anniversary | 794,485.05 | 66,207.09 | ||||||
Nine-Year Anniversary to Ten-Year Anniversary | 819,829.13 | 68,319.09 |
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(a) | All notices, requests and other communications hereunder must be in writing and will be deemed to have been duly given only if delivered personally or by facsimile transmission (with receipt acknowledged) or mailed (registered or certified mail, return receipt requested) to the parties at the following addresses or facsimile numbers: |
40 West 57th Street, 15th Floor
New York, New York 10019
Attention: General Counsel
Telecopy: (212) 641-2198
300 South Grand Avenue
Los Angeles, California 90071
Attention: Brian J. McCarthy, Esq.
Telecopy: (213) 687-5600
524 West 57th Street
New York, New York 10019
Attention: COE
Telecopy: (212) 975-3926
1515 Broadway, 46th Floor
New York, New York 10036
Attention: Chairman & CEO
Telecopy: (212) 846-2342
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51 West 52 Street
New York, New York 10019
Attention: General Counsel
Telecopy: (212) 975-4215
767 Fifth Avenue
New York, New York 10153
Attention: Howard Chatzinoff, Esq.
Michael Lubowitz, Esq.
Telecopy: (212) 310-8007
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CBS BROADCASTING INC. | ||||
By: | ||||
Name: | ||||
Title: | ||||
WESTWOOD ONE, INC. | ||||
By: | ||||
Name: | ||||
Title: | ||||
Acknowledged, as of the date first written above, by: CBS RADIO INC. | ||||
By: | ||||
Name: | ||||
Title: | ||||
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Time Period | Annual Rent Amount ($) | Monthly Rent Amount ($) | ||||||
Commencement Date to One-Year Anniversary | 48,000.00 | 4,000.00 | ||||||
One-Year Anniversary to Two-Year Anniversary | 49,660.80 | 4,138.40 | ||||||
Two-Year Anniversary to Three-Year Anniversary | 58,519.47 | 4,876.62 | ||||||
Three-Year Anniversary to Four-Year Anniversary | 60,538.39 | 5,044.87 | ||||||
Four-Year Anniversary to Five-Year Anniversary | 62,433.24 | 5,202.77 | ||||||
Five-Year Anniversary to Six-Year Anniversary | 64,424.86 | 5,368.74 | ||||||
Six-Year Anniversary to Seven-Year Anniversary | 66,480.02 | 5,540.00 | ||||||
Seven-Year Anniversary to Eight-Year Anniversary | 68,600.73 | 5,716.73 | ||||||
Eight-Year Anniversary to Nine-Year Anniversary | 70,789.09 | 5,899.09 | ||||||
Nine-Year Anniversary to Ten-Year Anniversary | 73,047.27 | 6,087.27 |
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(a) | All notices, requests and other communications hereunder must be in writing and will be deemed to have been duly given only if delivered personally or by facsimile transmission (with receipt acknowledged) or mailed (registered or certified mail, return receipt requested) to the parties at the following addresses or facsimile numbers: | |||
If to Tenant: | ||||
Westwood One, Inc. | ||||
40 West 57th Street, 15th Floor | ||||
New York, New York 10019 | ||||
Attention: General Counsel | ||||
Telecopy: (212) 641-2198 | ||||
with a copy to: | ||||
Skadden, Arps, Slate, Meagher & Flom LLP | ||||
300 South Grand Avenue | ||||
Los Angeles, California 90071 | ||||
Attention: Brian J. McCarthy, Esq. | ||||
Telecopy: (213) 687-5600 | ||||
If to Landlord: | ||||
CBS News Inc. | ||||
2020 M Street, N.W. | ||||
Washington, D.C. 20036 | ||||
Attention: Fred Schneider | ||||
Telecopy: (202) 457-1519 |
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with a copy to each of: | ||||
CBS Radio Inc. | ||||
1515 Broadway, 46th Floor | ||||
New York, New York 10036 | ||||
Attention: Chairman & CEO | ||||
Telecopy: (212) 846-2342 | ||||
CBS Corporation | ||||
51 West 52 Street | ||||
New York, New York 10019 | ||||
Attention: General Counsel | ||||
Telecopy: (212) 975-4215 | ||||
Weil, Gotshal & Manges LLP | ||||
767 Fifth Avenue | ||||
New York, New York 10153 | ||||
Attention: Howard Chatzinoff, Esq. | ||||
Michael Lubowitz, Esq. | ||||
Telecopy: (212) 310-8007 |
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CBS BROADCASTING INC. | ||||
By: | ||||
Name: | ||||
Title: | ||||
WESTWOOD ONE, INC. | ||||
By: | ||||
Name: | ||||
Title: | ||||
By: | ||||
Title: |
1. | PREMISES: |
2. | TERM; TERMINATION: |
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3. | RENT: |
Time Period | Annual Rent Amount ($) | Monthly Rent Amount ($) | ||||||
Commencement Date to December 31, 2008 | 16,100.00 | 1,341.67 | ||||||
January 1, 2009 to December 31, 2009 | 16,504.80 | 1,375.40 | ||||||
January 1, 2010 to December 31, 2010 | 16,914.20 | 1,409.52 | ||||||
January 1, 2011 to December 31, 2011 | 17,337.40 | 1,444.78 | ||||||
January 1, 2012 to December 30, 2012 | 17,769.80 | 1,480.82 |
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5. | USE OF SUBLEASED PREMISES; COMPLIANCE WITH LAWS: |
6. | MASTER LEASE: |
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7. | SERVICES: |
(i) | cable services (including T-1, internet, cable connections); | ||
(ii) | installation and maintenance of computers; and | ||
(iii) | transmission lines. |
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8. | ALTERATIONS AND IMPROVEMENTS: |
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(a) | All notices, requests and other communications hereunder must be in writing and will be deemed to have been duly given only if delivered personally or by facsimile transmission (with receipt acknowledged) or mailed (registered or certified mail, return receipt requested) to the parties at the following addresses or facsimile numbers: |
40 West 57th Street, 15th Floor
New York, New York 10019
Attention: General Counsel
Telecopy: (212) 641-2198
300 South Grand Avenue
Los Angeles, California 90071
Attention: Brian J. McCarthy, Esq.
Telecopy: (213) 687-5600
2020 M Street, NW
Washington, DC 20036
Attention: Fred Schneider
Telecopy: (202) 457-1519
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1515 Broadway, 46th Floor
New York, New York 10036
Attention: Chairman & CEO
Telecopy: (212) 846-2342
51 West 52 Street
New York, New York 10019
Attention: General Counsel
Telecopy: (212) 975-4215
767 Fifth Avenue
New York, New York 10153
Michael Lubowitz, Esq.
Telecopy: (212) 310-8007
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CBS NEWS INC. | ||||
By: | ||||
Name: | ||||
Title: | ||||
WESTWOOD ONE, INC. | ||||
By: | ||||
Name: | ||||
Title: | ||||
By: | ||||
Name: | ||||
Title: |
This Mutual General Release and Covenant Not to Sue (this “Release Agreement”) is entered into as of [ ], 200[_], by and among the following parties (individually a “Party” and collectively the “Parties”)1: | |||
A. | CBS Radio Inc., a Delaware Corporation, together with its present and former officers and directors and subsidiaries, affiliates and divisions, and their respective Related Entities2 (collectively, “CBS”); and | ||
B. | Westwood One, Inc., a Delaware Corporation, together with its present and former officers and directors and subsidiaries, affiliates and divisions, and their respective Related Entities (collectively “Westwood One”). |
II.RECITALS | |||
A. | Westwood One and CBS (or certain of their respective affiliates) are parties to various agreements including, without limitation, the following agreements (collectively, the “Existing Agreements”). |
1. | Management Agreement, dated as of March 30, 1999, as amended by the Letter Agreement (the “Letter Agreement”), dated as of April 15, 2002 (the “Management Agreement”); | ||
2. | Amended and Restated Representation Agreement, dated as of March 30, 1999, as amended by the Letter Agreement (the “Representation Agreement”); | ||
3. | Trademark License Agreement, dated as of March 30, 1999, as amended by the Letter Agreement (the “License”); | ||
4. | News Programming Agreement, dated as of March 30, 1999, as amended by the Letter Agreement (the “Programming Agreement”); | ||
5. | Technical Services Agreement, dated as of March 30, 1999, as amended by the Letter Agreement the (“Services Agreement”); and |
1 | Any references to “Party” or “Parties” hereinafter shall also include the Party’s or Parties’ Related Entities. | |
2 | For purposes of this Release, the “Related Entities” of any Party shall mean the Party’s successors, predecessors, assignees, heirs, legatees, devisees, executors, administrators, legal representatives, consultants, officers and directors; and any other representative, person or entity claiming by, through or under the Party. |
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6. | Multiple affiliation agreements (written and oral) between radio stations owned and operated by CBS Radio or CBS affiliates, or their respective predecessors, as more particularly described in the Representation Agreement (collectively, the “Affiliation Agreements”). |
B. | Pursuant to the Management Agreement, CBS has been responsible for providing management services and personnel (including the Chief Executive Officer) to Westwood One since 1994. | ||
C. | Pursuant to certain of the Existing Agreements and other arrangements and agreements, whether in writing or otherwise, CBS and its affiliates have provided products and services to Westwood One in exchange for Westwood One providing products, services and payments to CBS. | ||
D. | The Parties intend to include within the scope of this Release Agreement all matters that in any way relate to or arise out of: |
1. | Any act or failure to act by CBS in connection with the Management Agreement or the provision of management services at any time prior to the moment this Release Agreement is executed by the Parties (collectively, the “Management Claims”); | ||
2. | Any act or failure to act by CBS or Westwood One in connection with the provision of products and services pursuant to the Existing Agreements (other than the Management Agreement) or any other agreements or arrangements, whether in writing or otherwise, at anytime prior to the moment this Release Agreement is executed by the Parties (collectively, the “Services Claims”); | ||
3. | Any act or failure to act by CBS that involves CBS competing or allegedly competing with Westwood One whether or not in breach or violation of the Management Agreement or any other Existing Agreement (collectively, the “Competition Claims”); | ||
4. | Any amounts owed by Westwood One to CBS, or owed by CBS to Westwood One, for the performance of services or provision of products under the Existing Agreements or any other agreements or arrangements, whether in writing or otherwise, other than ordinary course trade payables or receivables not yet due as of the date hereof and as described on Schedule 13 (the “Excluded Amounts”), at any time prior to the moment this Release Agreement is executed by the Parties (collectively the “Payment Claims”); |
3 | Schedule to be completed at closing. |
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5. | Any other act or failure to act by CBS at any time prior to the moment this Release Agreement is executed by the Parties (collectively, the “Other Claims Against CBS” and together with the Management Claims, the Competition Claims, all Service Claims of Westwood One against CBS and all Payment Claims of Westwood One against CBS, the “Disputed CBS Matters”); and | ||
6. | Any other act or failure to act by Westwood One at any time prior to the moment this Release Agreement is executed by the Parties (collectively, the “Other Claims Against Westwood One” and together with any Services Claims of CBS against Westwood One and any Payment Claims of CBS against Westwood One, the “Disputed Westwood One Matters”); |
provided, however, that the scope of this Release Agreement shall not include any matters that in any way relate to or arise out of (i) any indemnification claims pursuant to the Existing Agreements resulting from third party claims (which claims shall be resolved in accordance with the terms of the applicable Existing Agreements) or (ii) the breach of any agreements in effect on the date hereof between any affiliates of CBS Corporation other than in connection with the CBS radio business, on the one hand, and Westwood One, Inc. and its affiliates, on the other hand. | |||
E. | The Parties intend to include within the scope of this Release Agreement all known or presently unknown, suspected or unsuspected, contingent or fixed complaints, grievances, allegations, demands, liabilities, losses, obligations, promises, damages, costs, expenses (including, without limitation, attorneys’ fees), lawsuits, actions (in law, equity or otherwise), causes of action, rights and privileges of whatever kind, except for the Excluded Amounts and the third party claims referred to in the last paragraph of Section II.D.6. above, which: |
1. | CBS may have or ever come to have against Westwood One that in any way relate to or arise out of the Disputed Westwood One Matters, including the Unknown CBS Injury Risk and Unknown CBS Magnitude Risk, as defined below, but excluding the Excluded Amounts and the third party claims referred to in the last paragraph of Section II.D.6. above (collectively referred to as the “CBS Claims”); or | ||
2. | Westwood One may have or ever come to have against CBS and that in any way relate to or arise out of the Disputed CBS Matters, including the Unknown Westwood One Injury Risk and Unknown Westwood One Magnitude Risk, as defined below, but excluding the Excluded Amounts and the third party claims referred to in the last paragraph of Section II.D.6. above (collectively referred to as the “Westwood One Claims”). |
F. | Concurrently with the execution of this Release Agreement, the Parties have entered into certain new agreements that, when effective, among other things, will terminate certain of the Existing Agreements and amend and restate certain other Existing Agreements (collectively, the “New Agreements”). |
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G. | This Release Agreement is a condition precedent to the entry into and the effectiveness of the New Agreements. | ||
H. | It also shall be a condition precedent to the effectiveness of the New Agreements and this Release Agreement that the stockholders of Westwood One approve the New Agreements and this Release Agreement by a vote of stockholders representing a majority of the shares of the Common Stock and Class B Stock of Westwood One, which are not owned by CBS or its affiliates (provided the shares owned by CBS will count toward the determination of a quorum), voting together as a single class, represented in person or proxy at a meeting of stockholders (“Stockholder Approval”). |
III. | RELEASES |
A. | CBS: Release of Westwood One. In consideration of the terms and provisions of this Release Agreement and the New Agreements, and subject to Stockholder Approval, CBS shall, and hereby does, relieve, release and forever discharge Westwood One of and from any and all CBS Claims. | ||
B. | Westwood One Parties: Release of CBS. In consideration of the terms and provisions of this Release Agreement, the New Agreements and subject to Stockholder Approval, Westwood One shall, and hereby does, relieve, release and forever discharge CBS of and from any and all Westwood One Claims. | ||
C. | Unknown Claims and Risks Released by CBS. It is understood by CBS that there is a risk that after the execution of this Release Agreement, CBS may incur or suffer losses, damages or injuries that are included within the definition of CBS Claims, but that are unknown or unanticipated, for whatever reason, at the time of the execution of this Release Agreement (“Unknown CBS Injury Risk”). Further, it is understood by CBS that there is a risk that loss or damage to CBS presently known may be or become, for whatever reason, greater than CBS now expects or anticipates (“Unknown CBS Magnitude Risk”). CBS understands, accepts and assumes both the Unknown CBS Injury Risk and the Unknown CBS Magnitude Risk and intends that the releases contained herein shall apply to all unknown and unanticipated losses, damages or injuries included with the definition of CBS Claims, as well as those known and anticipated. | ||
D. | Unknown Claims and Risks Released by Westwood One. It is understood by Westwood One that there is a risk that after the execution of this Release Agreement, Westwood One may incur or suffer losses, damages or injuries that are included within the definition of Westwood One Claims, but that are unknown or unanticipated, for whatever reason, at the time of the execution of this release (“Unknown Westwood One Injury Risk”). Further, it is understood by Westwood One that there is a risk that loss or damage to Westwood One presently known may be or become, for whatever reason, greater than Westwood One now expects or anticipates (“Unknown Westwood One Magnitude Risk”). Westwood One understands, accepts and assumes both the Unknown Westwood One Injury Risk and the Unknown Westwood One Magnitude Risk and intends that the releases contained herein shall apply to all unknown and unanticipated losses, damages or injuries included with the definition of Westwood One Claims, as well as those known and anticipated. |
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E. | The Parties intend and agree that the releases set forth in this Release Agreement shall be effective as a bar to any and all currently unsuspected, unknown or partially known claims within the scope of their express terms and provisions, other than the Excluded Amounts. Accordingly, the Parties hereby expressly waive any and all rights and benefits conferred upon them by the provisions of Section 1542 of the California Civil Code and all similar provisions of the laws of any other state, territory or other jurisdiction. Section 1542 reads in pertinent part: | ||
“A general release does not extend to claims that that creditor does not know or suspect to exist in his favor at the time of executing the release, which if known by him may have materially affected his settlement with the debtor.” | |||
The Parties hereby acknowledge that the foregoing waiver of the provisions of Section 1542 of the California Civil Code and all similar provisions of the laws of any other state, territory or other jurisdiction was separately bargained for and that they would not enter into this Release Agreement unless it included a broad release of all unknown claims, including specifically any claim of fraud or misrepresentation in the inducement of this Release Agreement. The Parties expressly agree that all release provisions shall be given full force and effect in accordance with each and all of their express terms and provisions, including those terms and provisions relating to unknown, unsuspected or future claims, demands and causes of action. The Parties each assume for themselves the risk of the subsequent discovery or understanding of any matter, fact or law, that if now known or understood, would in any respect have affected its entering into this Release Agreement. | |||
F. | The Parties agree that this Release Agreement shall be effective immediately and automatically following Stockholder Approval without any further act and shall have no effect if Stockholder Approval is not obtained. |
IV. | COVENANT NOT TO SUE |
A. | General Covenant Not to Sue. |
1. | Subject to the exceptions set forth in Section IV.D. below, CBS agrees that it will forever refrain and forbear from commencing, instituting or prosecuting any lawsuit, action or other proceeding, in law, equity, admiralty or otherwise, or from inducing others to do so against Westwood One, which in any way arise out of or relate to any of the CBS Claims including, but not limited to, an action claiming that this Release Agreement, or any portion thereof, was fraudulently induced. |
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2. | Subject to the exceptions set forth in Section IV.D. below, Westwood One agrees that it will forever refrain and forbear from commencing, instituting or prosecuting any lawsuit, action or other proceeding, in law, equity, admiralty or otherwise, or from inducing others to do so against CBS, which in any way arise out of or relate to any of the Westwood Claims, including, but not limited to, an action claiming that this Release Agreement, or any portion thereof, was fraudulently induced. |
B. | Attorneys’ Fees. The Parties agree further that in the event any Party breaches this Covenant Not to Sue, the breaching Party, or in the case of a breach by any of a Party’s Related Entities, the Party to whom the breaching Related Entity is related, shall pay any and all reasonable costs, expenses and attorneys’ fees actually incurred by any non-breaching Party and by any of such non-breaching Party’s Related Entities, in defending or otherwise responding to or participating in any such action or proceeding. | ||
C. | Injunctive Relief. The Parties acknowledge and agree that monetary damages alone are inadequate to compensate any Party for injury caused or threatened by a breach of this Release Agreement and that any Party by whom this Release Agreement is enforceable shall be entitled to apply for specific performance, injunctive relief (in the form of both a temporary restraining order and a preliminary injunction) and/or any other equitable remedy necessary or appropriate to protect the Party’s rights hereunder (“Equitable Relief”). Such Party may, in its sole discretion, apply to a court of competent jurisdiction for such Equitable Relief in order to enforce this Release Agreement or prevent any violation hereof. Nothing contained in this paragraph, however, shall be interpreted or construed to prohibit or in any way limit the right of any non-breaching Party to obtain, in addition to Equitable Relief, an award of monetary damages against any person or entity breaching this Covenant Not to Sue or this Release Agreement. | ||
D. | Exceptions.The following specific matters are excepted from this Release Agreement and the Covenant Not to Sue: |
1. | All claims of a Party resulting from a breach by any other Party of any representations or warranties contained in this Release Agreement or any of the New Agreements or any of the agreements or documents executed or delivered in connection with the transactions contemplated by any of the foregoing; | ||
2. | All claims of a Party resulting from a breach or failure to perform by any other Party of any covenants contained in this Release Agreement or any of the New Agreements, or any of the agreements or documents executed in connection with the transactions contemplated by any of the foregoing; | ||
3. | Any claim related to the Excluded Amounts brought by any Party; |
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4. | Any claim or matter referred to in the proviso in Section II.D.6. above; | ||
5. | Any claim brought by a stockholder of any Party in his capacity as a stockholder; and | ||
6. | Any claim that a present or former officer or director of CBS Radio (or its affiliates) or Westwood One (or its affiliates) may have with respect to indemnification or insurance in his capacity as such an officer or director. |
V. | ADDITIONAL COVENANTS |
A. | Non-Assistance. The Parties further agree that they will not affirmatively assist any other person or entity in litigation or other proceedings against each other to the extent such litigation or proceedings relate to the Disputed CBS Matters or the Disputed Westwood One Matters. Nothing herein, however, precludes the Parties from obeying lawful process or cooperating with or making disclosures that may be requested or required by the Securities and Exchange Commission or any court or regulatory agency or body. In the event a Party is served or otherwise provided with a subpoena and/or any other request for information and/or documents (“Request For Information”) regarding or related to any of the other Parties hereto, the Party receiving such subpoena and/or Request For Information hereby agrees (subject to any limitations imposed by law, court or regulatory order or rule or regulation) to provide notice immediately of such occurrence pursuant to the Notices provision contained in this Release Agreement. The Notice shall include a copy of the subpoena and/or Request For Information together with any other document(s) that accompanied such subpoena and/or Request For Information. | ||
B. | Proxy Statement. Westwood One shall include a proposal to obtain Stockholder Approval in a proxy statement to be delivered in connection with a meeting of stockholders (the “Proxy Statement”). The Proxy Statement shall include such disclosure about this Release Agreement and the New Agreements as the Audit Committee and the independent directors of the Board of Directors of Westwood One deem appropriate, and such disclosure shall not be subject to the approval of CBS or any officers or directors of Westwood One employed, or otherwise affiliated, with CBS. |
VI. | REPRESENTATIONS AND WARRANTIES |
A. | Independent Legal Advice. Each of the Parties represents, warrants and agrees that it has received independent legal advice from its attorneys with respect to the advisability of executing this Release Agreement. Accordingly, any rule of law, or any legal decision, that would require interpretation of any claimed ambiguities in this Release Agreement against the Party that drafted it has no application and is expressly waived. The provisions of this Release Agreement shall be interpreted in a reasonable manner to effect the intent of the Parties. |
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B. | Factual Investigation. Each of the Parties represents, warrants and agrees that it has made such investigation of the facts pertaining to the claims it has released hereby and other matters contained in or relating to this Release Agreement as it deems necessary or desirable. | ||
C. | No Assignment. Each of the Parties represents and warrants that there has been no assignment to any person or entity whatsoever of claims released by that Party pursuant to this Release Agreement. Each of the Parties further agrees that it will not assign any claim released by that Party pursuant to this Release Agreement to any person or entity whatsoever and any attempted assignment of any such claim shall be void and unenforceable. | ||
D. | Authority. Each of the Parties represents, warrants and agrees that it has the full right and authority to enter into this Release Agreement, and that the person executing this Release Agreement on its behalf has the full right and authority to fully commit and bind such Party. |
VII. | GENERAL |
A. | Affiliate. When used in this Release Agreement the term “affiliate” shall have the meaning assigned to such term in Rule 405 promulgated under the Securities Act of 1933, as amended;provided that, with respect to any affiliates of CBS, such term shall mean the controlled affiliates of CBS Corporation. | ||
B. | No Admissions. Each of the Parties hereto expressly agrees and acknowledges that this Release Agreement represents a settlement of disputed claims and that, by entering into this Release Agreement, no Party hereto admits or acknowledges the existence of any claim or wrongdoing on its part. | ||
C. | Full Integration. This Release Agreement contain the final written expression and the complete and exclusive statement of all of the agreements, conditions, promises, representations and covenants between the Parties with respect to the subject matter hereof, and supersede all prior or contemporaneous agreements, negotiations, representations, understandings and discussions between and among the Parties, their respective representatives and any other person or entity, with respect to the subject matter covered hereby or thereby. Any amendment to this Release Agreement must be in writing, must specifically refer to this Release Agreement, and must be signed by duly authorized representatives of each of the Parties. | ||
D. | Counterparts. This Release Agreement may be executed, including by facsimile, in any number of counterparts by the Parties, and when each Party has signed and delivered at least one (1) such counterpart to the other Party, each counterpart shall be deemed an original and, taken together, shall constitute one and the same Release Agreement that shall be binding and effective as to all the Parties. |
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E. | New York Law Governs. This Release Agreement shall be construed and enforced in accordance with, and governed by, the laws of the State of New York, notwithstanding conflicts of laws rules. | ||
F. | Headings. The headings to the paragraphs of this Release Agreement are inserted for convenience only and will not be deemed a part hereof or affect the construction or interpretation of the provisions hereof. | ||
G. | Survival of Warranties. All representations, warranties and covenants contained in this Release Agreement shall survive its execution, effectiveness and delivery. | ||
H. | Notices. Unless otherwise provided herein, all notices, demands, requests, claims and other communications hereunder shall be in writing and may be given by any of the following methods: (a) personal delivery; (b) facsimile transmission; (c) registered or certified mail, postage prepaid, return receipt requested; or (d) internationally recognized overnight courier service. Such notices and communications shall be sent to the appropriate Party at its address or facsimile number given below or at such other address or facsimile number for such as shall be specified by notice given hereunder (and shall be deemed given upon receipt by such Party or upon actual delivery to the appropriate address, or, in case of a facsimile transmission, upon transmission thereof by the sender and issuance by the transmitting machine of a confirmation slip that the number of pages constituting the notice have been transmitted without error; in the case of notices sent by facsimile transmission, the sender shall contemporaneously mail a copy of the notice to the addressee at the address provided for below,provided,however, that such mailing shall in no way alter the time at which the facsimile notice is deemed received): |
If to Westwood One to: | ||||||
Name: | Westwood One, Inc. | |||||
Address: | 40 West 57th Street, 15th Floor | |||||
New York, New York 10014 | ||||||
Attention: | Legal Dept. | |||||
Fax No.: | (212) 641-2198 | |||||
with a copy (which shall not constitute notice) to: | ||||||
Name: | Brian J. McCarthy | |||||
Skadden, Arps, Slate, Meagher & Flom LLP | ||||||
Address: | 300 S. Grand Avenue, Suite 3400 | |||||
Los Angeles, CA 90071 | ||||||
Fax No.: | (213) 687-5600 |
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If to CBS to: | ||||||
Name: | CBS Radio Inc. | |||||
Address: | 1515 Broadway, 46th Floor | |||||
New York, New York 10036 | ||||||
Fax No.: | (212) 846-2342 | |||||
Attention: | Chairman & CEO | |||||
with copies (which shall not constitute notice) to: | ||||||
Name: | CBS Corporation | |||||
Address: | 51 West 52 Street | |||||
New York, New York 10019 | ||||||
Fax No.: | (212) 975-4215 | |||||
Attention: | General Counsel | |||||
Name: | Weil, Gotshal & Manges LLP | |||||
Address: | 767 Fifth Avenue | |||||
New York, New York 10153 | ||||||
Fax No.: | (212) 310-8007 | |||||
Attention: | Howard Chatzinoff | |||||
Michael Lubowitz |
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CBS RADIO INC. | ||||
By: | ||||
Name: | ||||
Title: | ||||
WESTWOOD ONE, INC. | ||||
By: | ||||
Name: | ||||
Title: | ||||