CORPORATE SERVICES AGREEMENT DATED , 2005 BETWEEN CLEAR CHANNEL MANAGEMENT SERVICES, LP AND CLEAR CHANNEL OUTDOOR HOLDINGS, INC.
Exhibit 10.3
DATED , 2005
BETWEEN
CLEAR CHANNEL MANAGEMENT SERVICES, LP
AND
This CORPORATE SERVICES AGREEMENT, dated to be effective as of [ ], 2005
(this “Agreement”), is made by and between Clear Channel Management Services, L.P., a Texas
limited partnership (“Management Services”), and Clear Channel Outdoor Holdings, Inc., a
Delaware corporation (“Outdoor”). Management Services is indirectly wholly-owned by Clear
Channel Communications, Inc., a Texas corporation (“CCU”), and as of the date hereof,
Outdoor is an indirect, wholly-owned subsidiary of CCU. Certain capitalized terms used in this
Agreement are defined in Section 1.1 and the definitions of the other capitalized terms
used in this Agreement are cross-referenced in Section 1.2.
W I T N E S S E T H:
WHEREAS, CCU and Outdoor have entered into a Master Agreement, dated as of
[ ], 2005 (the “Master Agreement”), pursuant to which, among other
things, CCU will separate its outdoor advertising and related businesses and operations from the
other businesses and operations of CCU by contributing, assigning and transferring such businesses,
operations and related assets and liabilities to Outdoor and its Subsidiaries, as set forth in the
Master Agreement;
WHEREAS, after the separation of the outdoor advertising and related businesses and operations
from CCU by contribution, transfer and assignment to the Outdoor Group, it is contemplated that an
initial public offering will be made of the class A common stock of Outdoor, resulting in partial
public ownership of Outdoor;
WHEREAS, after such separation and the initial public offering, both Outdoor and CCU desire
for Management Services to provide certain administrative and support services and other assistance
to the Outdoor Group in accordance with the terms and subject to the conditions set forth herein,
and Management Services desires to provide, or cause to be provided by other members of the CCU
Group, such services and assistance to the Outdoor Group;
WHEREAS, because of the parent-subsidiary relationships among CCU, Outdoor and Management
Services, the terms and conditions set forth herein have not resulted from arms length negotiations
between the parties, and accordingly, such terms may be in some respects less favorable to Outdoor
than those it could obtain from unaffiliated third parties;
NOW, THEREFORE, in consideration of the foregoing and the mutual agreements contained herein
and for other good and valuable consideration, the receipt and adequacy of which are hereby
acknowledged, the parties hereto hereby agree as follows:
ARTICLE I
DEFINITIONS
DEFINITIONS
Section 1.1 Certain Defined Terms.
The following capitalized terms used in this Agreement will have the meanings set forth below:
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“Information Systems” means computing, telecommunications or other digital operating
or processing systems or environments, including, without limitation, computer programs, data,
databases, computers, computer libraries, communications equipment, networks and systems. When
referenced in connection with Services, Information Systems will mean the Information Systems
accessed and/or used in connection with the Services.
“Intellectual Property” means all of the following, whether protected, created or
arising under the laws of the United States or any other foreign jurisdiction: (i) patents, patent
applications (along with all patents issuing thereon), statutory invention registrations,
divisions, continuations, continuations-in-part, substitute applications of the foregoing and any
extensions, reissues, restorations and reexaminations thereof, and all rights therein provided by
international treaties or conventions; (ii) copyrights, mask work rights, database rights and
design rights, whether or not registered, published or unpublished, and registrations and
applications for registration thereof, and all rights therein whether provided by international
treaties or conventions or otherwise; (iii) trademarks, service marks, trade dress, logos and other
identifiers of source, including all goodwill associated therewith and all common law rights,
registrations and applications for registration thereof, and all rights therein provided by
international treaties or conventions, and all reissues, extensions and renewals of any of the
foregoing; (iv) intellectual property rights arising from or in respect of domain names, domain
name registrations and reservations and URLs; (v) trade secrets; (vi) intellectual property rights
arising from or in respect of Technology; and (vii) all other applications and registrations
related to any of the intellectual property rights set forth in the foregoing clauses (i)
through (vi) above.
“Provider” means Management Services or another member of the CCU Group that is
providing a Service pursuant to this Agreement.
“Recipient” means Outdoor or another member of the Outdoor Group to whom a Service
pursuant to this Agreement is being provided.
“Representative” of a Person means any director, officer, employee, agent, consultant,
accountant, auditor, financing source, attorney, investment banker or other representative of such
Person.
“Service Termination Date” means the effective date of the termination of this
Agreement pursuant to Section 9.1 or such earlier scheduled termination date as may be
specified in Schedule A or in Schedule D in respect of any specified Service.
“Software” means the object and source code versions of computer programs and any
associated documentation therefor.
“Tax Matters Agreement” means the Tax Matters Agreement entered into pursuant to the
Master Agreement and in substantially the form of Exhibit C to the Master Agreement.
“Technology” means, collectively, all designs, formulas, algorithms, procedures,
techniques, ideas, know-how, software, programs, models, routines, confidential and proprietary
information, databases, tools, inventions, invention disclosures, creations, improvements, works of
authorship, and all recordings, graphs, drawings, reports, analyses, other writings, and any other
embodiment of the above, in any form, whether or not specifically listed herein.
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“Trademark License” means the Amended and Restated Trademark License Agreement entered
into pursuant to the Master Agreement and in substantially the form of Exhibit E to the Master
Agreement.
“Trigger Date” means the first date on which members of the CCU Group cease to
beneficially own more than fifty percent (50%) of the total voting power of Outdoor Common Stock.
“Undertakings” means the obligations of the respective CCU and Outdoor Groups set
forth in Article III.
Section 1.2 Other Terms.
For purposes of this Agreement, the following terms have the meanings set forth in the
sections or agreements indicated.
| Term | Section | |
Affiliate
|
Master Agreement | |
After-Tax Basis
|
Master Agreement | |
Agreement
|
Preamble | |
Breaching Party
|
Section 9.1(a) | |
CCU
|
Preamble | |
CCU Confidential Information
|
Master Agreement | |
CCU Executives
|
Section 2.2 | |
CCU Group
|
Master Agreement | |
CCU Indemnified Parties
|
Section 3.1(c) | |
CCU Services Manager
|
Section 2.3 | |
CCU Vendor Agreements
|
Section 3.1(a) | |
Closing
|
Master Agreement | |
Closing Date
|
Master Agreement | |
Consents
|
Section 5.2 | |
Conversion Costs
|
Section 5.3 | |
Force Majeure
|
Master Agreement | |
Group
|
Master Agreement | |
Laws
|
Master Agreement | |
Liabilities
|
Master Agreement | |
Management Services
|
Preamble | |
Master Agreement
|
Recitals | |
Non-Breaching Party
|
Section 9.1(a) |
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| Term | Section | |
Other Costs
|
Section 5.1(a) | |
Outdoor
|
Preamble | |
Outdoor Business
|
Master Agreement | |
Outdoor Common Stock
|
Master Agreement | |
Outdoor Confidential Information
|
Master Agreement | |
Outdoor Group
|
Master Agreement | |
Outdoor Indemnified Parties
|
Section 3.1(d) | |
Outdoor Services Manager
|
Section 2.3 | |
Outdoor Vendor Agreements
|
Section 3.1(b) | |
Services
|
Section 2.1(a) | |
Service Charges
|
Section 5.1(a) | |
Standard for Services
|
Section 6.1 | |
Substitute Service
|
Section 2.1(a) | |
Taxes
|
Master Agreement |
ARTICLE II
SERVICES AND TERMS
SERVICES AND TERMS
Section 2.1 Services; Scope.
(a) During the period commencing on the Closing Date and continuing until the earlier of the
termination of this Agreement or an individual Service pursuant to Section 9.1, subject to
the terms and conditions set forth in this Agreement, Management Services will provide, or will
cause to be provided to the Outdoor Group, finance, information technology, human resources, legal
services, management oversight and other general services of an administrative and/or advisory
nature with respect to the Outdoor Business, as set forth on Schedule A (the
“Services”), and Outdoor will, and will cause the other members of the Outdoor Group to,
utilize such Services in the conduct of their respective businesses. The “Services” also will
include (1) any Services to be provided by the CCU Group to the Outdoor Group as agreed pursuant to
Section 10.3(a), and (2) any Substitute Service; provided, however, that
(i) the scope of each Service will be substantially the same as the scope of such service provided
by the CCU Group to the Outdoor Group on the last day prior to the Closing in the ordinary course;
(ii) the use of each Service by the Outdoor Group will include use by the Outdoor Group’s
contractors in substantially the same manner as used by the contractors of the Outdoor Group prior
to the Closing; and (iii) nothing in this Agreement will require that any Service be provided other
than for use in, or in connection with, the Outdoor Business. Nothing in the preceding sentence or
elsewhere in this Agreement will be deemed to restrict or otherwise limit the volume or quantity of
any Service; provided, that, certain volume or quantity changes with respect to a
Service may require the parties to negotiate in good faith and use their commercially reasonable
efforts to agree upon a price change with respect to such Service. If, for any reason, Management
Services is unable to provide any Service pursuant to the terms of this Agreement, Management
Services will provide to the Outdoor Group a substantially equivalent service (a “Substitute
Service”) at or below the cost for the substituted Service as set forth on Schedule A
and otherwise in accordance with the terms of this Agreement, including the Standard for Services.
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(b) The Services will include, and the Service Charges reflect charges for, such maintenance,
support, error correction, training, updates and enhancements normally and customarily provided by
members of the CCU Group to other CCU Group members that receive such services. If Outdoor
requests that Management Services provides a custom modification in connection with any Service,
Outdoor will be responsible for the cost of such custom modification. The Services will include
all functions, responsibilities, activities and tasks, and the materials, documentation, resources,
rights and licenses to be used, granted or provided by the CCU Group that are not specifically
described in this Agreement as a part of the Services, but are incidental to, and would normally be
considered an inherent part of, or necessary subpart included within, the Services or are otherwise
necessary for the CCU Group to provide, or the Outdoor Group to receive, the Services.
(c) This Agreement will not assign any rights to Technology or Intellectual Property between
the parties, other than as specifically set forth herein or in the Trademark License. Any
upgrades, updates or other modifications to Software or other electronic content made available or
delivered to the Outdoor Group pursuant to this Agreement will be deemed to be Intellectual
Property of the CCU Group and licensed to the Outdoor Group, notwithstanding that such upgrades,
updates or other modifications (i) were not used, held for use or contemplated to be used by the
Outdoor Group as of the Closing Date, (ii) were not controlled by any member of the CCU Group as of
the Closing Date, or (iii) may constitute improvements made after the Closing Date.
(d) Throughout the term of this Agreement, the Provider and the Recipient of any Service will
cooperate with one another and use their good faith, commercially reasonable efforts to effect the
efficient, timely and seamless provision and receipt of such Service.
(e) Any Software delivered by a Provider hereunder will be delivered, at the election of the
Provider, either (i) with the assistance of the Provider, through electronic transmission or
downloaded by the Recipient from the applicable intranet, or (ii) by installation by the Provider
on the relevant equipment, with retention by the Provider of all tangible media on which such
Software resides. The Provider and the Recipient acknowledge and agree that no tangible medium
containing such Software (including any enhancements, upgrades or updates) will be transferred to
the Recipient at any time for any reason under the terms of this Agreement, and that the Provider
will, at all times, retain possession and control of any such tangible medium used or consumed by
the Provider in the performance of this Agreement. Each party will comply with all reasonable
security measures implemented by the other party in connection with the delivery of Software.
Section 2.2 Executive Services.
Until the earlier of the Trigger Date or termination of this Agreement in accordance with
Section 9.1, in conjunction with the provision of the Services, Management Services will
make available to Outdoor, and Outdoor will utilize, the management oversight services of the
executive officers of CCU referenced on Schedule A and from time to time as mutually agreed
to by the parties, certain other officers of CCU (collectively, “CCU Executives”);
provided, however, that Outdoor may terminate the provision of management oversight
services by any particular executive officer of CCU at any time by providing notice of such
termination to CCU,
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such termination to be effective on the later of the date specified in the notice, if any, or
the date that is six months after delivery of such notice. In rendering such services, until their
resignation or the termination of Services as otherwise provided in this Section 2.2, the
Chief Executive Officer of CCU shall serve as the Chief Executive Officer of Outdoor, and the Chief
Financial Officer of CCU shall serve as the Chief Financial Officer of Outdoor. The obligations of
Management Services pursuant to this Section 2.2 will be subject to the reasonable demands
imposed by, and the reasonable requirements of, the on-going operations of the CCU Group and the
Outdoor Group, respectively.
Section 2.3 Services Managers.
Management Services will designate a dedicated services account manager (the “CCU Services
Manager”) who will be directly responsible for coordinating and managing the delivery of the
Services and will have authority to act on the CCU Group’s behalf with respect to the Services.
Outdoor will designate a dedicated services account manager (the “Outdoor Services
Manager”) who will be directly responsible for coordinating and managing the delivery of the
Services and will have authority to act on the Outdoor Group’s behalf with respect to the Services.
The CCU Services Manager and the Outdoor Services Manager will work together to address the
Outdoor Group’s issues and the parties’ relationship under this Agreement.
Section 2.4 Performance and Receipt of Services.
Each of Management Services and Outdoor will, and will cause its respective Groups to, comply
with the following provisions with respect to the Services:
(a) Each Provider and Recipient will at all times comply with its own then in-force security
guidelines and policies applicable to the performance, access and/or use of the Services and
Information Systems.
(b) Each Provider and Recipient will take commercially reasonable measures to ensure that no
computer viruses or similar items are coded or introduced into the Services or Information Systems.
If a computer virus is found to have been introduced into the Services or Information Systems, the
parties hereto will use their commercially reasonable efforts to cooperate and to diligently work
together to eliminate the effects of such computer virus.
(c) Each Provider and Recipient will exercise reasonable care in providing and receiving the
Services to (i) prevent access to the Services or Information Systems by unauthorized Persons, and
(ii) not damage, disrupt or interrupt the Services or Information Systems.
Section 2.5 WARRANTIES.
THIS IS A SERVICE AGREEMENT. EXCEPT AS EXPRESSLY STATED IN THIS AGREEMENT, THERE ARE NO
EXPRESS WARRANTIES OR GUARANTIES, AND THERE ARE NO IMPLIED WARRANTIES OR GUARANTIES, INCLUDING, BUT
NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE AND FITNESS FOR A PARTICULAR
PURPOSE.
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ARTICLE III
OTHER ARRANGEMENTS
OTHER ARRANGEMENTS
Section 3.1 Vendor Agreements.
(a) A member of the CCU Group is or may become a party to certain corporate purchasing
contracts, master services agreements, vendor contracts, software and other Intellectual Property
licenses or similar agreements unrelated to the Services (the “CCU Vendor Agreements”)
under which (or under open work orders thereunder) the Outdoor Group purchases goods or services,
licenses rights to use Intellectual Property and realizes certain other benefits and rights.
Management Services agrees that prior to the Trigger Date, the Outdoor Group will continue to
retain the right to purchase goods or services and continue to realize such other benefits and
rights under each CCU Vendor Agreement to the extent allowed by such CCU Vendor Agreement until the
expiration or termination date of such rights or benefits pursuant to the terms of such CCU Vendor
Agreement (including, without limitation, any voluntary termination of such CCU Vendor Agreement by
the CCU Group).
(b) A member of the Outdoor Group is or may become a party to certain corporate purchasing
contracts, master services agreements, vendor contracts, software and other Intellectual Property
licenses or similar agreements unrelated to the Outdoor Services (the “Outdoor Vendor
Agreements”) under which (or under open work orders thereunder) the CCU Group purchases goods
or services, licenses rights to use Intellectual Property and realizes certain other benefits and
rights. Outdoor agrees that prior to the Trigger Date, the CCU Group will continue to retain the
right to purchase goods or services and continue to realize such other benefits and rights under
each Outdoor Vendor Agreement to the extent allowed by such Outdoor Vendor Agreement until the
expiration or termination date of such rights or benefits pursuant to the terms of such Outdoor
Vendor Agreement (including, without limitation, any voluntary termination of such Outdoor Vendor
Agreements by the Outdoor Group).
(c) The Outdoor Group will indemnify, defend and hold harmless on an After-Tax Basis the CCU
Group and each of their respective directors, officers and employees, and each of the heirs,
executors, successors and assigns of any of the foregoing (collectively, the “CCU Indemnified
Parties”), from and against any and all Liabilities of the CCU Indemnified Parties relating to,
arising out of or resulting from the Outdoor Group purchasing goods or services, licensing rights
to use Intellectual Property or otherwise realizing benefits and rights under any CCU Vendor
Agreements.
(d) The CCU Group will indemnify, defend and hold harmless on an After-Tax Basis the Outdoor
Group and each of their respective directors, officers and employees, and each of the heirs,
executors, successors and assigns of any of the foregoing (collectively, the “Outdoor
Indemnified Parties”), from and against any and all Liabilities of the Outdoor Indemnified
Parties relating to, arising out of or resulting from the CCU Group purchasing goods or services,
licensing rights to use Intellectual Property or otherwise realizing benefits and rights under any
Outdoor Vendor Agreements.
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ARTICLE IV
ADDITIONAL AGREEMENTS
ADDITIONAL AGREEMENTS
Section 4.1 Leases.
(a) Management Services and Outdoor agree that each lease or sublease listed on Schedule
B, pursuant to which any member of the Outdoor Group leases or subleases real property from any
member of the CCU Group, will remain in full force and effect pursuant to its terms unless
otherwise agreed to in writing by the parties.
(b) Management Services and Outdoor agree that each lease or sublease listed on Schedule
C, pursuant to which any member of the CCU Group leases or subleases real property from any
member of the Outdoor Group, will remain in full force and effect pursuant to its terms unless
otherwise agreed to in writing by the parties.
Section 4.2 Computer-Based Resources.
(a) Management Services and Outdoor agree that (i) prior to the Trigger Date, the Outdoor
Group will continue to have access to the Information Systems of the CCU Group, and (ii) on and
after the Trigger Date, the Outdoor Group will not have access to all or any part of the
Information Systems of the CCU Group, except to the extent necessary for the Outdoor Group to
receive the Services (subject to the Outdoor Group complying with all reasonable security measures
implemented by the CCU Group as deemed necessary by the CCU Group to protect its Information
Systems; provided, that, the Outdoor Group has had a commercially reasonable period
of time in which to comply with such security measures).
(b) Management Services and Outdoor agree that (i) prior to the Trigger Date, the CCU Group
will continue to have access to the Information Systems of the Outdoor Group, and (ii) on and after
the Trigger Date, the CCU Group will not have access to all or any part of the Information Systems
of the Outdoor Group, except to the extent necessary for the CCU Group to perform the Services
(subject to the CCU Group complying with all reasonable security measures implemented by the
Outdoor Group as deemed necessary by the Outdoor Group to protect its Information Systems;
provided, that, the CCU Group has had a commercially reasonable period of time in
which to comply with such security measures).
Section 4.3 Access.
Outdoor will allow the CCU Group and its Representatives reasonable access to the facilities
of the Outdoor Group necessary for the performance of the Services and to enable the CCU Group and
to fulfill its obligations under this Agreement.
ARTICLE V
COSTS AND DISBURSEMENTS; PAYMENTS
COSTS AND DISBURSEMENTS; PAYMENTS
Section 5.1 Service Charges.
(a) Schedule A sets forth with respect to each Service a description of the charges
for such Service or the basis for the determination thereof (the “Service Charges”).
Further, in
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connection with performance of the Services and in connection with the Undertakings, the
Provider will make payments for the benefit of and on behalf of the Recipient and will incur
out-of-pocket costs and expenses (collectively, the “Other Costs”), which will be
reimbursed to the Provider by the Recipient; provided, that, any Other Costs will
only be payable by the Recipient if it receives from the Provider reasonably detailed data and
other documentation sufficient to support the calculation of amounts due to the Provider as a
result of such Other Costs.
(b) (i) Prior to the Trigger Date, Management Services and Outdoor will arrange for the
payment of all Service Costs and Other Charges in a manner consistent with past practices for
similar services provided by the CCU Group to the Outdoor Group prior to the date hereof. The
Recipient will have the right to dispute any Service Charges and Other Costs by delivering written
notice of such dispute, setting forth in reasonable detail the basis therefor, to the Provider
within, and no later than, 60 days after notice of billing. As soon as practicable after receipt
of any such notice, the Provider will provide the Recipient with reasonably detailed data and
documentation sufficient to support the calculation of any Service Charges and Other Costs that are
the subject of the dispute. If the Provider’s furnishing of such information does not promptly
resolve such dispute, the dispute will be resolved pursuant to Section 8.2.
(i) From and after the Trigger Date, the Provider will deliver an invoice to the Recipient on
a monthly basis (or at such other frequency as is set forth on Schedule A) in arrears for
the Service Charges and any Other Costs. The Recipient will pay the amount of such invoice to the
Provider in U.S. dollars within 30 days of the date of such invoice, provided,
that, to the extent consistent with past practice with respect to Services rendered outside
the United States, payments may be made in local currency. If the Recipient fails to pay such
amount (excluding any amount contested in good faith) by such date, the Recipient will be obligated
to pay to the Provider, in addition to the amount due, interest on such amount at the lesser of (i)
the three month London Interbank Offered Rate (LIBOR) plus 100 basis points or (ii) the maximum
rate of interest allowed by applicable law, from the date the payment was due through the date of
payment. As soon as practicable after receipt by the Provider of any reasonable written request by
the Recipient, the Provider will provide the Recipient with reasonably detailed data and
documentation sufficient to support the calculation of any amount due to the Provider under this
Agreement for the purpose of verifying the accuracy of such calculation. If, after reviewing such
data and documentation, the Recipient disputes the Provider’s calculation of any amount due to the
Provider, then the dispute will be resolved pursuant to Section 8.2.
Section 5.2 Consents.
Management Services and Outdoor acknowledge and agree that certain Software and other
licenses, consents, approvals, notices, registrations, recordings, filings and other actions
(collectively, “Consents”) may be required by Management Services, Outdoor or members of
their respective Groups in connection with the provision of the Services. With respect to each
Service, the Recipient will, after consultation with the Provider, either directly pay the
out-of-pocket expenses incurred to obtain, perform or otherwise satisfy each such Consent or after
any such Consent is obtained, performed or otherwise satisfied, reimburse the Provider for all
actual, out-of-pocket costs incurred by the Provider and related to such Consent. Prior to payment
of, or reimbursement for, such out-of-pocket expenses, the Provider will provide the Recipient with
an invoice accompanied by reasonably detailed data and documentation sufficient to evidence the
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out-of-pocket expenses for which the Provider is seeking payment or reimbursement. Upon
receipt of such invoice and data and documentation, the Recipient will either pay the amount of
such invoice directly in accordance with its general payment terms with vendors or reimburse the
Provider for its payment of the invoice within 30 days of the date of its receipt of such invoice.
If the Recipient disputes the invoiced amount, then the parties will work together to resolve such
dispute. If the parties are unable to resolve such dispute, the dispute will be resolved pursuant
to Section 8.2. Management Services and Outdoor acknowledge and agree that no prior
approval of the Recipient will be required for the Provider to seek any reimbursement pursuant to
this Section 5.2.
Section 5.3 Conversion Costs.
Management Services and Outdoor acknowledge and agree that in connection with the
implementation, provision, receipt and transition of the Services, there will be certain
nonrecurring, out-of-pocket conversion costs incurred by Management Services, Outdoor and their
respective Groups (“Conversion Costs”). With respect to each Service, the Recipient of the
Service will either reimburse the Provider as incurred for all actual, out-of-pocket Conversion
Costs incurred by the Provider and related to such Service or, after consultation with the
Provider, pay such Conversion Costs directly on an as-incurred basis, in either case regardless of
whether the Recipient replaces such Service with the same application, system, vendor or other
means of effecting the Service. Prior to payment of, or reimbursement for, such actual
out-of-pocket Conversion Costs, the Provider will provide the Recipient with an invoice accompanied
by reasonably detailed data and documentation sufficient to evidence the out-of-pocket expenses for
which the Provider is seeking payment or reimbursement. Upon receipt of such invoice and data and
documentation, the Recipient will either pay the amount of such invoice directly in accordance with
its general payment terms with vendors or reimburse the Provider for its payment of the invoice
within 30 days of the date of its receipt of such invoice. If the Recipient disputes the invoiced
amount, then the dispute will be resolved pursuant to Section 8.2. Management Services and
Outdoor acknowledge and agree that no prior approval will be required from the Recipient for the
Provider to seek any reimbursement for Conversion Costs pursuant to this Section 5.3.
ARTICLE VI
STANDARD FOR SERVICE; COMPLIANCE WITH LAWS
STANDARD FOR SERVICE; COMPLIANCE WITH LAWS
Section 6.1 Standard for Service.
Except as otherwise provided in this Agreement (including in Schedule A), Management
Services agrees that the Provider will perform the Services such that the nature, quality, standard
of care and the service levels at which such Services are performed are no less than the nature,
quality, standard of care and service levels at which the substantially same services were provided
to the members of the Outdoor Group by or on behalf of the Provider on the last day prior to the
Closing Date in the ordinary course (the “Standard for Services”).
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Section 6.2 Compliance with Laws.
Each of Management Services and Outdoor will be responsible for its, and its respective
Group’s, compliance with any and all Laws applicable to its performance under this Agreement;
provided, however, that each of Management Services and Outdoor will, subject to
reimbursement of out-of-pocket expenses by the requesting party, use commercially reasonable
efforts to cooperate and provide the other party with all reasonably requested assistance
(including, without limitation, the execution of documents and the provision of relevant
information) to ensure compliance with all applicable Laws in connection with any regulatory
action, requirement, inquiry or examination related to this Agreement or the Services.
ARTICLE VII
INDEMNIFICATION; LIMITATION ON LIABILITY
INDEMNIFICATION; LIMITATION ON LIABILITY
Section 7.1 Limited Liability of a Provider.
Notwithstanding the provisions of Section 6.1, none of Management Services, any other
members of the CCU Group, their respective Affiliates or any of their respective directors,
officers or employees, or any of the heirs, executors, successors or assigns of any of the
foregoing (each, a “Provider Indemnified Party”), will have any liability in contract, tort
or otherwise, including for any such party’s ordinary or contributory negligence, to the Recipient
or its Affiliates or Representatives for or in connection with (i) any Services rendered or to be
rendered by any Provider Indemnified Party pursuant to this Agreement, (ii) the transactions
contemplated by this Agreement, or (iii) any Provider Indemnified Party’s actions or inactions in
connection with any such Services or transactions; provided, however, that such
limitation on liability will not extend to or otherwise limit any Liabilities that have resulted
directly from such Provider Indemnified Party’s (a) gross negligence or willful misconduct, (b)
improper use or disclosure of information of, or regarding, a customer or potential customer of a
Recipient Indemnified Party or (c) violation of applicable Law.
Section 7.2 Indemnification by Each Provider.
Management Services will, and will cause each Provider to indemnify, defend and hold harmless
each relevant Recipient and each of its Subsidiaries and each of their respective directors,
officers and employees, and each of the heirs, executors, successors and assigns of any of the
foregoing (each, a “Recipient Indemnified Party”), from and against any and all Liabilities
of the Recipient Indemnified Parties relating to, arising out of, or resulting from (a) the gross
negligence or willful misconduct of a Provider Indemnified Party in connection with such Provider
Indemnified Party’s provision of the Services, (b) the improper use or improper disclosure of
information of, or regarding, a customer or potential customer of a Recipient Indemnified Party in
connection with the transactions contemplated by this Agreement or such Provider Indemnified
Party’s provision of the Services, or (c) any violation of applicable Law by a Provider Indemnified
Party in connection with the transactions contemplated by this Agreement or such Provider
Indemnified Party’s provision of the Services; provided, that, the aggregate
liability of the CCU Group as Providers pursuant to this Article VII will in no event
exceed an amount equal to the aggregate payments made by the Recipients to the Providers for
Services pursuant to this Agreement for the 12 month period preceding the date of such event
giving rise to indemnification hereunder.
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Section 7.3 Indemnification by Each Recipient.
Outdoor will, and will cause each member of the Outdoor Group to, indemnify, defend and hold
harmless each relevant Provider Indemnified Party from and against any and all Liabilities of the
Provider Indemnified Parties relating to, arising out of, or resulting from the provision of the
Services by any Provider or any of its Affiliates, except for (a) any Liabilities that result from
a Provider Indemnified Party’s gross negligence in connection with the provision of the Services,
and (b) any Liabilities that result from a Provider Indemnified Party’s material breach of this
Agreement.
Section 7.4 Indemnification Matters; Exclusivity.
The indemnification provisions set forth in Sections 5.6 through 5.8 of the Master Agreement
are hereby incorporated into, and made a part of, this Article VII, Sections 3.1(c)
and 3.1(d) and as otherwise applicable to this Agreement. The provisions of this
Article VII will constitute the sole and exclusive remedy for Liabilities arising under
this Agreement, other than Liabilities arising under Sections 3.1(c) and 3.1(d).
Section 7.5 Limitation on Liability.
Notwithstanding any other provision contained in this Agreement, Management Services and
Outdoor agree on their behalf, and on behalf of their respective Groups, that no member of the CCU
Group on the one hand, and no member of the Outdoor Group, on the other hand, will be liable to any
member of the other Group, whether based on contract, tort (including negligence), warranty or any
other legal or equitable grounds, for any special, indirect, punitive, incidental or consequential
losses, damages or expenses of the other Group, including, without limitation, loss of data, loss
of profits, interest or revenue, or use or interruption of business, arising from any claim
relating to breach of this Agreement or otherwise relating to any of the Services or Undertakings
provided hereunder. For clarification purposes only, the parties hereto agree that the limitation
on liability contained in this Section 7.5 will not apply to (a) damages awarded to a third
party pursuant to a third party claim for which a Provider is required to indemnify, defend and
hold harmless any Recipient Indemnified Party under Section 7.2; (b) damages awarded to a
third party pursuant to a third party claim for which a Recipient is required to indemnify, defend
and hold harmless any Provider Indemnified Party under Section 7.3; (c) damages awarded to
a third party pursuant to a third party claim for which the Outdoor Group is required to indemnify,
defend and hold harmless any CCU Indemnified Party under Section 3.1(c); and (d) damages
awarded to a third party pursuant to a third party claim for which the CCU Group is required to
indemnify, defend and hold harmless any Outdoor Indemnified Party under Section 3.1(d).
Section 7.6 Liability for Payment Obligations.
Nothing in this Article VII will be deemed to eliminate or limit, in any respect, any
member of the CCU Group’s or any member of the Outdoor Group’s express obligation in this Agreement
to pay or reimburse, as applicable, for (a) Service Charges; (b) Other Costs;
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(c) amounts payable or reimbursable with respect to any custom modification provided pursuant to
Section 2.1(b); (d) any amounts payable or reimbursable pursuant to the terms of the leases
referred to in Section 4.1; (e) any amounts payable or reimbursable pursuant in respect of
the Consents pursuant to Section 5.2; (f) amounts payable or reimbursable in respect of
Conversion Costs pursuant to Section 5.3; (g) amounts payable or reimbursable pursuant to
Section 6.2 with respect to compliance with Laws; (h) amounts payable or reimbursable
pursuant to Section 10.3(b) with respect to books and records; and (i) amounts payable or
reimbursable pursuant to Section 10.6 with respect to Taxes.
ARTICLE VIII
DISPUTE RESOLUTION
DISPUTE RESOLUTION
Section 8.1 Applicable Law.
This Agreement will be governed by, and construed and interpreted in accordance with, the laws
of the State of Texas, without giving effect to any conflicts of law rule or principle that might
require the application of the laws of another jurisdiction.
Section 8.2 Dispute Resolution.
To the extent not resolved through discussions between the CCU Services Manager and the
Outdoor Services Manager, any dispute, controversy or claim arising out of, or relating to, this
Agreement will be resolved in accordance with Article VII of the Master Agreement, which dispute
resolution provisions are hereby incorporated into, and made a part of, this Section 8.2.
ARTICLE IX
TERMINATION
TERMINATION
Section 9.1 Termination.
(a) This Agreement may be terminated (1) after the Trigger Date by either Management Services
or Outdoor upon no less than six months’ prior written notice; provided, however,
after the Trigger Date, Management Services will continue to provide, and Outdoor will utilize, and
will cause the other members of the Outdoor Group to utilize, the Services identified on
Schedule D for the applicable time periods after the Trigger Date set forth in Schedule
D, and therefore (A) the effective date of such termination of this Agreement must be no
earlier than the latest date provided on Schedule D for the provision of Services, (B) the
effective date of termination of individual Services specified on Schedule D must be no
earlier than the date provided on Schedule D for such individual Service, and (C) all other
Services that are not specified on Schedule D will terminate upon the effective termination
date provided in such written notice, or (2) at any time upon mutual agreement of Management
Services and Outdoor. Notwithstanding the foregoing, with respect to specific Services provided
hereunder, (i) either party hereto (the “Non-Breaching Party”) may terminate this Agreement
with respect to any individual Service, in whole but not in part, at any time upon prior written
notice by the Non-Breaching Party to the other party (the “Breaching Party”) if the
Breaching Party (including any member of its respective Group) has failed to perform any of its
material obligations under this Agreement relating to such Service, and such failure will have
continued without cure for a period of 60 days after receipt by the Breaching Party of a written
notice of such failure from the
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Non-Breaching Party seeking to terminate such Service; provided, however, that
no Service may be terminated pursuant to this clause (i) until the parties have completed
the dispute resolution process set forth in Section 8.2 with respect to such Service; (ii)
Management Services and Outdoor may from time to time mutually agree to terminate any individual
Service, in whole but not in part, provided, that, any such agreement to terminate
a Service will comply with Section 10.10 and include all terms and conditions applicable to
termination of the Service to be terminated and (iii) as provided in Section 2.2, Outdoor
may terminate the provision of management oversight services by any particular executive officer of
CCU at any time by providing notice of such termination to CCU, such termination to be effective on
the later of the date specified in the notice, if any, or the date that is six months after
delivery of such notice. Any such termination of an individual Service will not in any way affect
the obligations of the party terminating such Service to continue to receive all other Services not
so terminated and to continue to provide Services as required by this Agreement.
(b) In addition to and not in limitation of the rights and obligations set forth in
Section 2.1(d), upon the request of the Recipient of a Service, (i) the Provider of such
Service will cooperate with the Recipient and use its good faith, commercially reasonable efforts
to assist the transition of such Service to the Recipient (or Affiliate of the Recipient or such
third-party vendor designated by the Recipient) by the Service Termination Date for such Service.
Section 9.2 Effect of Termination.
Upon termination or expiration of any Service or Undertaking pursuant to this Agreement, the
relevant Provider will have no further obligation to provide the terminated Service or expired
Undertaking, and the relevant Recipient will have no obligation to pay any future Service Charges
or Other Costs relating to any such Service or Undertaking (other than for or in respect of
Services or Undertakings provided in accordance with the terms of this Agreement and received by
such Recipient prior to such termination). Upon termination of this Agreement in accordance with
its terms, no Provider will have any further obligation to provide any Service or Undertaking, and
no Recipient will have any obligation to pay any Service Charges or Other Costs relating to any
Service or Undertaking or make any other payments under this Agreement (other than for or in
respect of Services or Undertakings received by such Recipient prior to such termination).
Section 9.3 Survival.
Each of Section 4.1 (Leases), Section 4.2 (Computer-Based Resources),
Article V (Costs and Disbursements), Article VII (Indemnification; Limitation on
Liability), Article VIII (Dispute Resolution), Section 9.2 (Effect of Termination),
this Section 9.3 (Survival), and Article X (General Provisions) will survive the
expiration or other termination of this Agreement and remain in full force and effect.
Section 9.4 Force Majeure.
No party hereto (or any member of its Group or any other Person acting on its behalf) will
have any liability or responsibility for failure to fulfill any obligation (other than a payment
obligation) under this Agreement so long as and to the extent to which the fulfillment of such
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obligation is prevented, frustrated, hindered or delayed as a consequence of circumstances of
Force Majeure. A party claiming the benefit of this provision will, as soon as reasonably
practicable after the occurrence of any such event: (a) notify the other party of the nature and
extent of any such Force Majeure condition and (b) use commercially reasonable efforts to remove
any such causes and resume performance under this Agreement as soon as feasible.
ARTICLE X
GENERAL PROVISIONS
GENERAL PROVISIONS
Section 10.1 Independent Contractors.
In providing Services hereunder, the Provider will act solely as independent contractor and
nothing in this Agreement will constitute or be construed to be or create a partnership, joint
venture, or principal/agent relationship between the Provider, on the one hand, and the Recipient,
on the other. All Persons employed by the Provider in the performance of its obligations under
this Agreement will be the sole responsibility of the Provider.
Section 10.2 Subcontractors.
Any Provider may hire or engage one or more subcontractors to perform any or all of its
Services; provided, that, Management Services will in all cases remain responsible
for all its obligations under this Agreement, including, without limitation, with respect to the
scope of the Services, the Standard for Services and the content of the Services provided to the
Recipient. Under no circumstances will any Recipient be responsible for making any payments
directly to any subcontractor engaged by a Provider.
Section 10.3 Additional Services; Books and Records.
(a) If, during the term of this Agreement, a party hereto identifies a need for additional or
other corporate services to be provided by or on behalf of Management Services, the parties hereto
agree to negotiate in good faith to provide such requested services (provided that such services
are of a type generally provided by the CCU Group at such time) and the applicable service fees,
payment procedures, and other rights and obligations with respect thereto. To the extent
practicable, such additional or other services will be provided on terms substantially similar to
those applicable to Services of similar types and otherwise on terms consistent with those
contained in this Agreement.
(b) All books, records and data maintained by a Provider for a Recipient with respect to the
provision of a Service will be the exclusive property of such Recipient. The Recipient, at its
sole cost and expense, will have the right to inspect, and make copies of, any such books, records
and data during regular business hours upon reasonable advance notice to the Provider. At the sole
cost and expense of the Provider, upon termination of the provision of any Service, the relevant
books, records and data relating to such terminated Service will be delivered by the Provider to
the Recipient in a mutually agreed upon format to the address of Outdoor set forth in Section
10.5 or any other mutually agreed upon location; provided, however, that the
Provider will be entitled to retain one copy of all such books, records and data relating to such
terminated Service for archival purposes and for purposes of responding to any dispute that may
arise with respect thereto.
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Section 10.4 Confidential Information.
Outdoor agrees to, and will cause the other members of the Outdoor Group to, maintain and
safeguard all the Information pursuant to Section 6.2 of the Master Agreement and Management
Services agrees to, and will cause the other members of the CCU Group to, maintain and safeguard
all Outdoor Confidential Information pursuant to Section 6.2 of the Master Agreement, and each
party hereto agrees that Section 6.2 of the Master Agreement is hereby incorporated by reference
into, and made a part of, this Agreement.
Section 10.5 Notices.
All notices, requests, claims, demands and other communications under this Agreement will be
in writing and will be given or made (and will be deemed to have been duly given or made upon
receipt) by delivery in person, by overnight courier service, by facsimile with receipt confirmed
(followed by delivery of an original via overnight courier service) or by registered or certified
mail (postage prepaid, return receipt requested) to the respective parties at the following
addresses (or at such other address for a party as will be specified in a notice given in
accordance with this Section 10.5):
If to any member of the CCU Group:
| Clear Channel Management Services, LP | ||
Attention: |
||
Facsimile: |
||
If to any member of the Outdoor Group:
| Clear Channel Outdoor Holdings, Inc. | ||
Attention: |
||
Facsimile: |
||
Section 10.6 Taxes. Except as otherwise specifically provided for in the Tax Matters
Agreement:
(a) Each party will be responsible for any personal property Taxes on property it owns or
leases, for franchise and privilege Taxes on its business, and for Taxes based on its net income or
gross receipts.
(b) Each Recipient may report and (as appropriate) pay any sales, use, excise, value-added,
services, consumption, and other Taxes directly if the Recipient provides the applicable Provider
with a direct pay or exemption certificate.
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(c) A Provider will promptly notify the applicable Recipient of, and coordinate with the
Recipient the response to and settlement of, any claim for Taxes asserted by applicable taxing
authorities for which the Recipient is alleged to be financially responsible hereunder.
(d) Each Recipient will be entitled to receive and to retain any refund of Taxes paid to a
Provider pursuant to this Agreement. In the event a Provider receives a refund of any Taxes paid
by a Recipient to the Provider, the Provider will promptly pay, or cause the payment of, such
refund to the Recipient.
(e) Each of the parties hereto agrees that if reasonably requested by the other party, it will
cooperate with such other party to enable the accurate determination of such other party’s Tax
liability and assist such other party in minimizing its Tax liability to the extent legally
permissible. The Provider’s invoices will separately state the amounts of any Taxes the Provider
is proposing to collect from the Recipient.
Section 10.7 Severability.
If any term or other provision of this Agreement is invalid, illegal or incapable of being
enforced under any Law or as a matter of public policy, all other conditions and provisions of this
Agreement will nevertheless remain in full force and effect. Upon such determination that any term
or other provision is invalid, illegal or incapable of being enforced, the parties hereto will
negotiate in good faith to modify this Agreement so as to effect the original intent of the parties
hereto as closely as possible in a mutually acceptable manner in order that the transactions
contemplated by this Agreement be consummated as originally contemplated to the greatest extent
possible.
Section 10.8 Entire Agreement.
Except as otherwise expressly provided in this Agreement, this Agreement constitutes the
entire agreement of the parties hereto with respect to the subject matter of this Agreement and
supersedes all prior agreements and undertakings, both written and oral, between or on behalf of
the parties hereto with respect to the subject matter of this Agreement. The Schedules and
Recitals to this Agreement are hereby incorporated by reference into and made part of this
Agreement for all purposes.
Section 10.9 Assignment; No Third-Party Beneficiaries.
This Agreement will not be assigned by any party hereto without the prior written consent of
the other party hereto; provided, however, Management Services may assign this
Agreement in connection with a merger, consolidation, reorganization, sale of all or substantially
all of its assets or similar transaction within the CCU Group whether or not Management Services is
the surviving entity. Except as provided in Article III and Article VII with
respect to indemnified parties, this Agreement is for the sole benefit of the parties to this
Agreement, the members of their respective Group and their permitted successors and assigns and
nothing in this Agreement, express or implied, is intended to or will confer upon any other Person
any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of this
Agreement. Outdoor will cause each member of the Outdoor Group receiving Services hereunder as a
Recipient to abide by the terms and conditions of this Agreement, and
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Management Services will cause each member of the CCU Group providing Services hereunder as a
Provider to abide by the terms and conditions of this Agreement.
Section 10.10 Amendment.
No provision of this Agreement may be amended or modified except by a written instrument
signed by all the parties to such agreement. No waiver by any party of any provision hereof will
be effective unless explicitly set forth in writing and executed by the party so waiving. The
waiver by either party hereto of a breach of any provision of this Agreement will not operate or be
construed as a waiver of any other subsequent breach.
Section 10.11 Rules of Construction.
(a) Interpretation of this Agreement will be governed by the following rules of construction:
(i) words in the singular will be held to include the plural and vice versa and words of one gender
will be held to include the other gender as the context requires, (ii) references to the terms
Article, Section, paragraph, and Schedule are references to the Articles, Sections, paragraphs, and
Schedules to this Agreement unless otherwise specified, (iii) the word “including” and words of
similar import will mean “including, without limitation,” (iv) provisions will apply, when
appropriate, to successive events and transactions, (v) the headings contained herein are for
reference purposes only and will not affect in any way the meaning or interpretation of this
Agreement, (vi) the recitals are and (vii) this Agreement will be construed without regard to any
presumption or rule requiring construction or interpretation against the party drafting or causing
any instrument to be drafted.
(b) Unless specifically stated in the Master Agreement that a particular provision of the
Master Agreement should be given effect in lieu of a conflicting provision in this Agreement, to
the extent that any provision contained in this Agreement conflicts with, or cannot logically be
read in accordance with, any provision of the Master Agreement, the provision contained in this
Agreement will prevail.
(c) Unless specifically stated in the Schedules to this Agreement, to the extent that any
provision contained in this Agreement conflicts with, or cannot logically be read in accordance
with, any provision of a Schedule to this Agreement the provision contained in such Schedule will
prevail.
Section 10.12 Counterparts.
This Agreement may be executed in one or more counterparts, and by the different parties to
each such agreement in separate counterparts, each of which when executed will be deemed to be an
original but all of which taken together will constitute one and the same agreement. Delivery of
an executed counterpart of a signature page to this Agreement by facsimile or electronic mail will
be as effective as delivery of a manually executed counterpart of any such Agreement.
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Section 10.13 No Right to Set-Off.
Outdoor will, and will cause each other Recipient to, pay the full amount of costs and
disbursements, including Other Costs, incurred under this Agreement, and will not set-off,
counterclaim or otherwise withhold any other amount owed to a Provider on account of any obligation
owed by a Provider to a Recipient.
[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, the parties have caused this Corporate Services Agreement to be executed
to be effective on the date first written above by their respective duly authorized officers.
| CLEAR CHANNEL MANAGEMENT SERVICES, LP | ||||||||
| By: | [ | ], | ||||||
| its General Partner | ||||||||
| By: | ||||||||
| Name: | ||||||||
| Title: | ||||||||
| CLEAR CHANNEL OUTDOOR HOLDINGS, INC. | ||||||||
| By: | ||||||||
| Name: | ||||||||
| Title: | ||||||||
S-1
SCHEDULES
Schedule A
|
— | Services | ||
Schedule B
|
— | Leased Facilities (CCU Group as Lessor) | ||
Schedule C
|
— | Leased Facilities (Outdoor Group as Lessor) | ||
Schedule D
|
— | Mandatory Services Post Trigger Date |