1
EXHIBIT 10.17
STATION LICENSE AGREEMENT TO RECEIVE AND
USE ARBITRON RADIO LISTENING ESTIMATES
Date of Proposal: June 10, 1997
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THIS AGREEMENT is between The Arbitron Company, a division of Ceridian
Corporation, ("Arbitron") and the undersigned radio broadcaster ("Station"), a
Pennsylvania Corporation. Arbitron hereby grants to Station, for the radio
stations listed below, a limited license to receive and use Arbitron data and
listening estimates ("Arbitron Data" or "Data") for the survey(s) and for the
geographic area ("Market") described in Section 1. This license is personal,
nontransferable and nonexclusive. Such Arbitron Data may be furnished to Station
in printed or other form ("Reports"), at Arbitron's option, but title thereto
will remain with Arbitron at all times.
1. SERVICES PROVIDED; TERM:
This Agreement shall become effective when countersigned by Arbitron's Contract
Manager and shall be for a period of 5 years beginning and ending on the dates
described below (the "Term"). This Agreement will continue without regard to
Station's ownership of the radio station(s) licensed hereunder absent a valid
Assignment pursuant to Section 11 of this Agreement.
Broadcaster ("Station"): CBS Radio; a division of
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Westinghouse Electric Corporation
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For use only by radio station(s):
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See Attachment A
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Arbitron Radio Geographic Area:
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See Attachment A ("Market")
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Term Begins January 1, 1997 ends December 31, 2001 .
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Number of surveys currently provided during first Term year: 4 .
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Number of copies currently provided per survey: 30 .
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Reports currently shall be titled: Spring, Fall, Winter, Summer.
First Report: See Attachment A
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All representations in this Section regarding number of surveys, number of
printed copies and Report titles are subject to qualifications set forth in
Section 6(a) herein.
2. ANNUAL RATE:
A License Charge in the form of a Net Annual Rate for each year of the Term,
which may be subject to adjustments and discounts pursuant to Sections 3, 4, 6,
11 and 16 of this Agreement, shall be paid by Station; with the first of 60
payments due on January 1, 1997 (the "Periodic Charge" or "Charge").
The Gross Annual Rate for the first Term year is $ See Attachment A. Subject to
Sections 3, 4, 6 and 11 hereof, neither the Gross nor the Net Annual Rate will
change during a Term year.
For each succeeding Term year, the Gross Annual Rate shall be the Gross
Annual Rate for the previous Term year increased by a factor of N/A percent. Any
applicable discounts or other adjustments will be applied thereafter to the
Annual Rate so derived.
3. DISCOUNTS:
(a) Continuous Service Discount: A discount of ten percent (10%) in calculating
the Periodic Charge shall be allowed for each month in excess of 12
consecutive months that Station is continuously licensed to use the Arbitron
Data for this Market.
(b) Group Discount: If Station owns two or more radio stations located in
different markets and such radio stations are under common ownership as
defined by Arbitron, Station may be entitled to a Group Discount based on
the number of subscribing radio stations owned at the time this Agreement is
executed, which discount may vary and be adjusted during the Term of this
Agreement in accordance with Arbitron's Group Discount Schedule should the
number of subscribing commonly owned radio stations change.
(c) Long-Term Discount: A discount of 20% in months 1-12,
20 % in months 13-24, 20 % in months 25-36,
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20 % in months 37-48, 20 % in months 49-60,
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N/A % in months 61-72, and N/A % in months 73-84,
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shall be allowed in calculating the Net Annual Rate charged during the
applicable months.
4. PERIODIC CHARGE:
The Periodic Charge, due and payable by Station on the first day of each billing
period, shall be: (a) the Gross Annual Rate plus any adjustments; (b) less any
applicable Continuous Service Discount; (c) less, from the amount thereby
derived, any applicable Group Discount; (d) less, from the amount thereby
derived, any applicable Long-Term Discount; (e) with such amount prorated
equally between the number of payments for the Term year.
In addition to and together with the above payments, excluding taxes imposed
upon Arbitron's net income, gross receipts, capital or similar taxes, Station
shall pay to Arbitron any sales, excise, service, use or other taxes, however
designated, now or hereafter imposed upon or required to be collected by
Arbitron by any authority having jurisdiction over the Market being surveyed or
over any location to which Station directs Arbitron to deliver Data, or by any
other taxing jurisdiction, and such obligation shall survive the termination of
this Agreement.
5. LATE PAYMENT CHARGE AND RIGHT TO SUSPEND REPORT DELIVERY OR TERMINATE
AGREEMENT:
In addition, Arbitron may, without terminating, breaching or committing a
default under this Agreement: suspend delivery to Station of any Data or
Report(s), in any form, due under this Agreement until such time as Station is
current in its payments of all sums due hereunder with respect to periodic
charges due and owing at the time of such suspension. Arbitron's suspension
hereunder of delivery of Data and/or Reports to Station, and of this License,
shall not relieve Station of any of its obligations hereunder. This Agreement
may be terminated immediately by Arbitron should Station default in payment of
any sum due or should Station default in any other condition or obligation of
this Agreement for the market or markets so affected if not cured within 90 days
of notice.
6. CHANGES IN RADIO MARKET SERVICE:
Modification of Rates, Surveys, Report Content or Report Format:
(a) While Arbitron will use professional research efforts to conduct its surveys
and produce its Data in accordance with its Description of Methodology, and
the Minimum Standards for Broadcast Rating Research of the Electronic Media
Rating Council, Arbitron reserves the right to change at any time the
geographical territory comprising the Market, its policies and procedures,
survey dates, survey length, survey frequency, sampling procedures,
methodology, method of Data delivery, number of printed copies of Reports,
Report content, Report titles, Report format, and to cancel surveys and the
preparation of Arbitron Data, or any other aspect of the Data services
supplied.
[ARBITRON LOGO] KPER-UNI 6/97
2
Arbitron need not produce any Data or Reports whenever, in its judgment,
insufficient data are available to meet its minimum research standards or
any event has jeopardized the reliability of the data. In the event that
Data and/or Reports are not produced, Station shall receive refund
reflecting the pro rata value of the Net Annual Rate for said Data and/or
Report(s). Without limiting the foregoing, Station expressly understands and
agrees that Arbitron may, at any time during the Term of this Agreement,
reduce the number of surveys conducted and/or Reports published for this
Market and consequently reduce the number of Reports provided to Station and
that, in the event such reduction occurs, Station is not relieved of any of
its obligations under this Agreement except that Licensee's Annual Licensee
Fee will be reduced by the pro rata amount equal to such reduction in
service.
(b) In the event that any cause(s) prevents Arbitron from conducting any survey
in accordance with its Description of Methodology, schedules or other
publications, Arbitron reserves the right to produce abbreviated Report(s).
Station hereby consents to publication of such abbreviated Report(s) under
such circumstances. In the event that such an abbreviated Report covers a
substantially decreased geographic area, or deletes twenty-five percent
(25%) or more of the survey days from the aggregate number of days
scheduled, Station shall be entitled to either a proportionate refund for
the abbreviated Report, or a full refund for the abbreviated Report, upon
return of the abbreviated Report within 10 days, at Station's option.
Further, Arbitron reserves the right in its sole discretion to augment
available data by means of expanded or extended samples and Station agrees
it shall not be entitled to any refund in such event.
7. PERMITTED USES AND CONFIDENTIALITY:
Subject to the limitations stated herein, Station agrees to limit its uses of
the Arbitron Data and Report(s) to such uses as are necessary in the ordinary
course of Station's broadcasting business for programming and media selling.
Station understands and agrees that this use is limited exclusively to the radio
station(s) specified in Section 1 of this Agreement and only for the Term of
this Agreement. In this connection, Station agrees that the Arbitron Data and
Report(s) will only be disclosed:
(a) directly or through its Station representatives to advertisers, prospective
advertisers and their agencies for the purpose of obtaining and retaining
advertising accounts; and
(b) through advertising or other promotional literature.
(c) Station may disclose such information to the investment community including
bankers, potential purchaser of Station, in which case Station will inform
such party of the confidentiality of the information.
All such disclosures shall identify Arbitron as the source of the disclosed
Arbitron Data and Report(s) and should identify the Market, survey period and
type of audience estimate, daypart and survey area and shall state that the
Arbitron Data and Report(s) quoted therein are copyrighted by Arbitron and are
subject to all limitations and qualifications disclosed in the Data and
Report(s) ("Sourcing").* At all times during the Term of this Agreement and
thereafter, Station agrees to keep the Arbitron Data and Report(s) supplied by
Arbitron confidential and not to disclose the same except as permitted by this
Agreement. Station agrees to use its best efforts to prevent the unauthorized
disclosure of Arbitron Data and Report(s) by Station's employees and/or its
radio station(s)'s employees and agents, by its radio station(s)'s
representatives, by its advertisers and their advertising agencies, by data
processing firms, and by all other persons who obtain the Arbitron Data from
Station or its radio station(s)'s employees or agents. For Station or its radio
station(s) to divulge any Arbitron Data and/or Report(s) to a nonsubscribing
station or to lend and/or give an original copy or any reproduction of any part
of any Data and/or Report(s) or any Arbitron estimates or data to any
nonsubscriber, not authorized by this Agreement, constitutes a breach of this
Agreement and an infringement of Arbitron's copyright.
In the event that a Report listed in Section 1 of this Agreement is delivered
after the expiration of the Term of this License Agreement, Licensee's license
to use all Report shall continue under the terms and conditions of this License
until the release of the next Survey Report in this Market.
Subject to the following conditions, Station may authorize a third party to
process the Arbitron data and estimates licensed hereunder on Station's behalf.
Station understands and agrees that it may do so only on condition: 1) that to
the best of Station's knowledge said third party excluding custom in house
processing of data by Station consultant is a then current Arbitron licensee in
good standing who is authorized to process Arbitron data and estimates; and 2)
that all restrictions concerning the use of the data and estimates provided
under this Agreement shall apply with full force and effect to any data,
estimates, reports or other output, in any form, containing or derived from the
Arbitron data and estimates, produced by said third party for Station.
8. CONFIDENTIALITY OF ARBITRON RESPONDENTS:
Station agrees that it will not try either before, during or after a survey, or
in connection with any litigation, to determine or discover the identity or
location of any Arbitron survey participant. Station will under no circumstances
directly or indirectly attempt to contact any such persons. Station agrees to
promptly report to Arbitron any evidence or indication that has come to
Station's attention regarding the identity or location of any such persons.
Station agrees to abide by Minimum Standard A9 (or any successor provision
concerning confidentiality of survey respondents) of the Electronic Media Rating
Council and shall abide by any determination of the Electronic Media Rating
Council concerning respondent confidentiality. Station further agrees that
Arbitron may enjoin any breach of the above-stated obligations and shall have
the right to seek damages or other remedies (including costs, expenses and
reasonable attorneys' fees) available to it at law or hereunder.
9. METHODOLOGY
ARBITRON MAKES NO WARRANTIES WHATSOEVER, EXPRESS OR IMPLIED, INCLUDING WITHOUT
LIMITATION ANY WARRANTY OF MERCHANTABILITY OR FITNESS, CONCERNING:
(A) DATA GATHERED OR OBTAINED BY ARBITRON FROM ANY SOURCE;
(B) THE PRESENT OR FUTURE METHODOLOGY EMPLOYED BY ARBITRON IN PRODUCING ARBITRON
DATA AND REPORT(S); OR
(C) THE ARBITRON DATA AND REPORT(S) LICENSED HEREUNDER.
ALL ARBITRON DATA AND REPORT(S) REPRESENT ONLY THE OPINION OF ARBITRON. RELIANCE
THEREON AND USE THEREOF BY STATION IS AT STATION'S OWN RISK.
10. LIABILITIES AND LIMITATIONS OF REMEDIES:
THE SOLE AND EXCLUSIVE REMEDY, AT LAW OR IN EQUITY, FOR ARBITRON'S BREACH OF ANY
WARRANTY, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY WARRANTY OF
MERCHANTABILITY OR FITNESS, AND THE SOLE AND EXCLUSIVE REMEDY FOR ARBITRON'S
LIABILITY OF ANY KIND,
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* STATION(s) SHOULD REFER TO CURRENT REGULATIONS AND GUIDELINES OF THE FEDERAL
GOVERNMENT FOR FURTHER REQUIREMENTS CONCERNING THE MANNER OF QUOTING AUDIENCE
ESTIMATES.
(C)The Arbitron Company 2 KPER-UNI 6/97
3
INCLUDING WITHOUT LIMITATION LIABILITY FOR NEGLIGENCE OR DELAY WITH RESPECT TO
THE ARBITRON DATA AND REPORTS AND ALL PERFORMANCE PURSUANT TO THIS AGREEMENT,
SHALL BE LIMITED TO A CREDIT (FOR EACH REPORT MATERIALLY AFFECTED BY ANY SUCH
BREACH) TO STATION OF AN AMOUNT EQUAL TO THE NET ANNUAL CHARGES PAYABLE
HEREUNDER BY STATION DIVIDED BY THE NUMBER OF REPORTS PRODUCED ANNUALLY BY
ARBITRON FOR THE MARKET. IN NO EVENT SHALL ARBITRON BE LIABLE FOR INCIDENTAL OR
CONSEQUENTIAL DAMAGES, NOR SHALL IT BE SUBJECT TO INJUNCTIVE RELIEF WITH RESPECT
TO THE PUBLICATION OF ANY DATA OR REPORT. STATION UNDERSTANDS THAT THE DATA AND
REPORTS EITHER WOULD NOT BE PREPARED OR WOULD BE AVAILABLE ONLY AT A
SUBSTANTIALLY INCREASED LICENSE FEE WERE IT NOT FOR THE LIMITATIONS OF
LIABILITIES AND REMEDIES AS SET FORTH IN THIS SECTION.
Station agrees that it will notify Arbitron in writing of any alleged defect in
any Data or Report within ninety (90) days after Station learns of said alleged
defect. In the event that Station does not timely notify Arbitron, then Station
waives all rights with regard to said alleged defect. Station further agrees
that any action to be brought by it concerning any Data or Report shall be
brought not more than one (1) year after such Data or Report was originally
published by Arbitron.
11. ASSIGNMENTS AND CHANGES IN STATION STATUS:
Station acknowledges and agrees that the Charges due and the adjustments and
discounts applied hereunder are based on Station's group ownership status and/or
any joint operating agreement with one or more other radio stations and/or
Station's ownership of radio stations in this Market or other Markets. In the
event Station conveys any one of its radio stations, Station remains fully
obligated for the Charges specified for any radio station covered by the terms
of this Agreement. Station may only be released from such obligations upon valid
assignment of this Agreement and subject to the terms thereof.
12. SPECIAL SERVICES AND REPORTS:
If, during the Term of this Agreement, Station orders any Special Services or
Report(s) not licensed through any other Arbitron Agreement ("Specials"),
Station hereby agrees that this Agreement shall be applicable with respect to
all such Services with the same force and effect as if printed out at length in
a separate agreement executed by Station; provided, however, that any credit
required when applying Section 10 to any such services shall be limited to the
license fee actually paid for such services.
13. RATINGS DISTORTION ACTIVITY:
(a) Station agrees that it shall not engage in any activities which are
determined by Arbitron to be ratings distortion. Such prohibited activities
may include, but are not limited to, activities which could:
(i) cause any survey participant to record erroneous listening information
in his or her Arbitron diary; or
(ii) cause any survey participant to utilize an Arbitron diary for a contest
or promotion conducted by Station or its radio station(s).
(b) Station further agrees that Arbitron may delete all estimates of listening
to Station and/or its radio station(s) from any Report, computer tape or
other Arbitron service or method of delivery where, in its judgment it has
deemed that Station or its radio station(s) has engaged in such activities.
Arbitron shall:
(i) first give Station and its radio station(s) notice setting forth what
activities it deems Station and its radio station(s) has engaged in
which allegedly could cause or have caused ratings distortion;
(ii) present evidence to substantiate the allegations set forth in (i)
above; and
(iii)give Station and its radio station(s) reasonable opportunity (in light
of Arbitron's publication schedule for any Report) to present its
position both in writing and orally.
In the event that Station or its radio station(s) is notified by Arbitron that
allegations of ratings distortion have been made against Station or its radio
station(s), then Station or its radio station(s) shall submit a written response
to Arbitron's inquiry concerning the allegations within seven (7) days from the
receipt of Arbitron's notice, which time may be shortened by Arbitron for
reasons relating to the Report publication schedule. Arbitron shall then advise
Station or its radio station(s) of its decision or reason for delay within seven
(7) days following its receipt of Station's or its radio station(s)' written
response or oral presentation, whichever is later. All such writings shall be
addressed and sent to the respective party by facsimile, overnight courier
service, or certified mail with return receipt requested. In the event that
estimates of listening to Station and/or its radio station(s) are deleted from a
Report(s) (and/or other Arbitron services) following the procedure set forth
above, Station and its radio station(s) agree that the only remedy for such
deletion shall be a credit of the fee paid by Station for such Report(s) or
other affected services and that in no event shall Arbitron be liable for
incidental or consequential damages or be subject to injunctive relief with
respect to any such deletion of estimates of listening to station and/or its
radio station(s). In the event that estimates of listening to Station and/or its
radio stations are deleted from a Report pursuant to this Section, Arbitron
agrees that it will give Station and its radio station(s) an opportunity to
submit to Arbitron a written statement (not exceeding 200 words) of Station
and/or its radio station(s) views concerning its alleged activities, with such
written statement to be published in the Report subject to such reasonable
editing deemed necessary by Arbitron.
In addition, Station and its radio station(s) agree to abide by the Arbitron
policies and procedures governing various Special Station Activities, including,
but not limited to, ratings bias.
14. INFORMATION TO BE PROVIDED BY STATION AND ITS RADIO STATION(s):
Station and its radio station(s) agree to provide to Arbitron, consistent with
past requests within ten (10) days of receipt of Arbitron's request, such
information consistent with past requests which Arbitron deems necessary for the
publication of a Report, including, but not limited to, accurate descriptions of
the following information for Station and its radio station(s): (a) facilities;
(b) broadcast station names; (c) broadcast hours; (d) simulcast hours; (e) radio
frequency; (f) operating power; (g) format; (h) height of antenna above average
terrain, and (i) programming schedule and information. Station and its radio
station(s) further understand and agree to notify Arbitron of any changes to the
above-referenced information. Station and its radio station(s) hereby hold
Arbitron harmless and agree to indemnify Arbitron from and against any and all
loss, cost or expense (including reasonable attorneys' fees) arising out of any
omission or error in information provided to Arbitron by Station and its radio
station(s) pursuant to this Section.
15. GENERAL:
(a) All notices to either party shall be in writing and shall be directed to the
addresses stated hereafter (unless notice of an address change has
previously been given).
(b) This Agreement shall be deemed to be an agreement made under, and to be
construed and governed by, the laws of the State of New York, exclusive of
its choice of law rules. The parties expressly agree that any and all
disputes arising out of or concerning this Agreement or the Arbitron Data or
Reports licensed hereunder shall be litigated and adjudicated exclusively in
State and/or Federal Courts located in the State of New York, and each party
consents to and submits to both such jurisdiction.
(C) The Arbitron Company 3 KPER-UNI 6/97
4
(c) This Agreement constitutes the entire agreement between the parties
concerning the subject matter hereof, notwithstanding any previous
discussions and understandings; and shall not be deemed to have been
modified in whole or in part except by written instruments signed hereafter
by officers of all of the parties or other persons to whom the parties have
delegated such authority.
(d) Any litigated question regarding the legality, enforceability or validity of
any section or part hereof shall not affect any other section, and if any
section or part hereof is ultimately determined illegal, invalid,
unconstitutional or unenforceable, that section or part hereof shall be
severed from this Agreement and the balance of the Agreement shall
thereafter remain in full force and effect for the remainder of the Term.
16. CALCULATION OF LICENSE CHARGES: SEE
First Term Year Gross Annual Rate (Combined) $ SEE ATTACHMENT A
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Combination Rate
Station $ [ ] YES [ ] NO
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Station $ [ ] YES [ ] NO
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Station $ [ ] YES [ ] NO
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Station $ [ ] YES [ ] NO
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Station $ [ ] YES [ ] NO
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Station $ [ ] YES [ ] NO
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Station $ [ ] YES [ ] NO
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Station $ [ ] YES [ ] NO
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Station $ [ ] YES [ ] NO
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Station $ [ ] YES [ ] NO
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LESS
DISCOUNTS: [ ] Continuous
Service (10%): $
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[ ] Group [ ] 10% [ ] 7.5% [ ] 5% [ ] 2.5%
[ ] 2.5% at beginning of Term $
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[ ] Long-Term Discount:
% in months 1-12
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(see Section 3(c) above) $
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FIRST TERM YEAR NET ANNUAL RATE: $ [ SEE ATTACHMENT A ] *
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AGREED TO
CBS RADIO; A DIVISION OF
WESTINGHOUSE ELECTRIC CORPORATION
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BROADCASTER ("STATION")
SEE ATTACHMENT A
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FOR USE ONLY BY STATION(S)
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ADDRESS
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CITY STATE ZIP
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BY (AUTHORIZED SIGNATURE)
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NAME (TYPE OR PRINT NAME OF PERSON SIGNING ABOVE)
Attorney
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TITLE DATE
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ACCEPTED BY
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CONTRACT MANAGER
3/20/98
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DATE
The Arbitron Company
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A division of Ceridian Corporation
(C) The Arbitron Company 4 KPER-UNI 6/97
5
ARBITRON LOCAL MARKET REPORT SERVICES LICENSE AGREEMENT
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ATTACHMENT "A" TO LICENSE DATED JUNE 10, 1997:
GRAND TOTALS $68,642,698 $44,537,329
AGREED TO AND ACCEPTED BY:
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Attorney Title of signatory
CBS RADIO, a Division of Westinghouse Electric Corporation
3/17/98 (date)
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