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Portions herein identified by [***] have been omitted pursuant to a
request for
confidential treatment under Rule 406 of the Securities Act of
1933, as amended.
A complete copy of this document has been filed separately with the
Securities
and Exchange Commission.
Exhibit 10.9
TRAFFIC REPORT SUPPLY AGREEMENT
BETWEEN:
THE AUSTRALIA TRAFFIC NETWORK PTY LIMITED ABN 53078993736 (-ATN-)
AND
AUSTEREO PTY LTD, ABN 58095552060
("Austereo")
RECITALS
a.
Austereo is the
licensee of the radio broadcasting stations known as
In Sydney: 2Day FM and Triple M
In Melbourne Fox FM and Triple M
In Brisbane B105 and Triple M
In Adelaide SA FM and Triple M
In Perth Mix 94.5 and 92.9
1. DEFINITIONS
AND INTERPRETATION
1.1 DEFINITIONS
In this agreement:
BROADCASTER means Licensee of the Stations that are party to
this
agreement.
BSA means the Broadcasting Services Act 1992 (CIth)
COMMENCEMENT DATE means 1 April, 2004
TAG means an eight second tag read live by an ATN reporter at the
end
of each report or otherwise supplied in prerecorded form, and
which
complies in content and style with the standard Austereo policy
for
allowable tags or credit lines permitted to other sponsors on
Stations.
CRA Codes means the Commercial Radio Australia Codes of Practice
and
any Commercial Radio Standards endorsed or applied (as the case
may
be) by the Australian Broadcasting Authority pursuant to the
BSA;
FORCE MAJEURE means acts of God, fire, unavoidable accident, acts
of
war, (declared or undeclared) laws, rules, regulations and orders
of
any Government or Government Agency, emergency broadcast or
other
broadcast requirements under CRA Codes or as a result of
government
requirements, strikes, walkouts, lockouts and other
disturbances,
delays in transportation, floods, storms and other natural
disturbances, the failure or destruction of any technical
equipment,
weather or flying conditions, and other matters beyond the control
of,
or not reasonably foreseeable to the
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party concerned (other than the ability of the party for
whatever
reason, to pay money it is obliged to pay), whether or not similar
to
those enumerated.
NOTICE includes all notices, consents, requests, waivers, demands
or
other communications by a party to another party permitted or
required
by this agreement;
TRAFFIC REPORT means a report on road traffic conditions in
appropriate Market area, together with an eight-second tag.
STATIONS MEANS THE FOLLOWING RADIO STATIONS THAT ARE CONTROLLED
OR
OPERATED BY AUSTEREO:
2DAY FM AND TRIPLE M (SYDNEY)
FOX FM AND TRIPLE (MELBOURNE)
B105 AND TRIPLE M (BRISBANE)
SA FM AND TRIPLE M (ADELAIDE)
MIX94.5 AND 92.9 FM (PERTH)
1.2 INTERPRETATION
In this agreement including the recitals unless the contrary
intention appears;
a.
words denoting
the singular include the plural and vice versa;
b.
a reference to
any one of an individual, corporation, partnership,
joint venture, association, authority, trust or government,
includes
(as the context requires) any other of them,
c.
a reference to a
party is a reference to a party to this agreement and
includes that party's executors, administrators, successors and
permitted assigns; and
d.
related body
corporate has the meaning ascribed by section 50 of the
Corporation Law.
2. BROADCAST OF
REPORTS AND COMMERCIAL ANNOUNCEMENTS.
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2.1 ATN agrees to
provide at ATN's expense to Broadcaster, and Broadcaster
agrees to broadcast on STATIONS commencing (subject to clause 2.2)
on the
Commencement Date a minimum number of Traffic Reports per day,
Monday to
Saturday inclusive, fifty two weeks per annum, as described in
Exhibit A
attached and in accordance with specifications in Exhibit B
attached, plus
at
other times or for special events as agreed between the parties
from
time
to time excepting Christmas Day and the Holidays listed on Schedule
G.
During the periods listed on Schedule G, no traffic reports will
be
broadcast. In addition to the times listed on Exhibit A, ATN will
forward
any
significant traffic information to Broadcasters, if and when it
should
become available. Stations reserve the right to edit the Tags
should the
Tags
not meet Austereo programming guidelines as described on Exhibit
B.
Any
editing will be done with the prior knowledge and cooperation
of
advertiser and ATN.
2.2 During the period
from December 26 through January 9, inclusive,
Broadcaster will reduce the number of traffic reports to be
broadcast by
50%.
During the periods of reduced reports, ATN may at its
discretion
reduce or eliminate the use of aircraft for aerial observation.
2.3 Immediately after
each Traffic Report provided by ATN, Broadcasters must
broadcast on the Stations an eight-second tag which will be
provided live
to
Broadcasters by ATN as part of the Traffic Report. If, by agreement
with
Broadcaster a Tag is not read live by ATN, or if Broadcaster
prefers to
play
a recorded Tag, then the Broadcasters must themselves broadcast
the
recorded Tag immediately after the Traffic Report. All payments
received
for
the Tag will be for the benefit of ATN.
2.4 Notwithstanding
anything to the contrary contained in this agreement,
Broadcasters are not obliged to broadcast any Traffic Report which
is in
the
reasonable opinion of Broadcasters,
a.
unreliable
b.
not of broadcast
quality
c.
in Breach of the
BSA, the CRA Codes or is otherwise contrary to Law.
2.5 ATN warrants to
and agrees with Broadcasters that no Traffic Report
provided by it to Broadcasters will contain any matter which is in
breach
of
BSA, the CRA Codes or which is otherwise contrary to law or in
breach of
the
proprietary or other rights of any person.
2.6 All Traffic
reports will be broadcast from ATN aircraft, ATN premises, or
other place of broadcast, via appropriate communication technology
as shall
be
mutually agreed from time to time. All costs providing the
Traffic
Reports will be the responsibility of ATN.
2.7 ATN will insure
that the Traffic Reports are of high quality, containing
relevant and timely information so as to be of maximum benefit to
the
audience of Broadcasters' Stations and that the persons engaged by
ATN at
its
expense for the purpose of presentation of the Traffic Reports
are
persons who are approved by Austereo as being suitable for the
audience of
Stations.
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3. CLEARANCE OF
REPORTS AND COMMERCIALS.
3.1 Broadcasters
agrees to carry on Stations, ATN Traffic Reports in accordance
with
the respective schedule for that Station attached as Exhibit A, or
as
otherwise mutually agreed in writing from time to time. Any
additions,
deletions, or changes to the schedule must be mutually approved at
least
thirty days in advance of any anticipated change.
3.2 Nothing in this
agreement will affect the right of ATN to provide to other
radio or television stations the same Traffic Reports or Traffic
Reports
containing the same or similar information as those provided to
Broadcasters for Stations.
3.3 In addition to
traffic reports, ATN will supply, at the request of
Broadcaster, reports for special promotional events, sporting
events, beach
reports or weekend reports. These reports will also carry an eight
second
tag
at the conclusion of each report, and the reports will be scheduled
and
agreed upon at least 30 days in advance. Emergency and disaster
reports
will
be provided to Broadcaster without an eight second tag.
3.4 In the event of a
recorded or delayed broadcast of a Traffic Report,
Broadcaster agrees to broadcast Traffic Reports within five minutes
of the
times listed on Schedule A.
3.5 In the event of a
delayed or recorded broadcast, Broadcasters must verify
to
ATN that the Traffic Reports were broadcast. If ATN so requests,
within
5
weeks of the allocated broadcast date for the requested Traffic
Report,
Broadcasters must provide written verification of the times the
Traffic
Reports were broadcast as required under this agreement and in the
absence
of
obvious and material error, such written verification will be
conclusive
evidence that the Traffic Reports were broadcast under this
agreement.
4. FAILURE TO
BROADCAST
4.1 Neither ATN nor
Broadcasters will incur any liability under this agreement
because of any failure to provide or failure to broadcast any
Traffic
Reports due to Force Majeure.
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5.
NON-DISCLOSURE OF INFORMATION, COPYRIGHT AND CREDITS
5.1
a.
Broadcaster
acknowledges that ATN owns copyright in all Traffic
Reports provided by ATN.
b.
ATN acknowledges
that subject to clause 3.2 Broadcasters owns the
copyright in its broadcast of the Traffic Reports on Stations.
c.
Broadcaster
acknowledges that ATN will be entitled to provide to other
broadcasters and radio stations, Traffic Reports which are
substantially identical in content to the Traffic Reports provided
to
Broadcasters under this agreement, but that the voicing or
personality
utilized for Station's reports may not be utilized by any
station
considered by Broadcaster in its sole discretion, to be
competitive
with any Austereo Stations without the prior consent of
Broadcaster.
5.2 ATN licenses
Broadcasters to broadcast on Stations, Traffic Reports
provided to Broadcasters by ATN and to make a taped copy of that
Traffic
Report solely for the purpose of making a delayed broadcast on
Stations as
permitted pursuant to clause 3.5 and to edit the Traffic Report
(provided
that
the Tag is incorporated in full) for such delayed broadcast.
Broadcasters have no other rights in the Traffic Reports provided
by ATN
and,
without limiting generality, must not without the prior written
consent of ATN broadcast the Traffic Reports on any other Stations
owned or
operated by Broadcasters or any of their related bodies corporate
nor
provide copies or purport to authorise any other broadcasters
to
re-broadcast such Traffic Reports.
5.3 Broadcasters must
not, without the prior written consent of ATN, provide
(other than by broadcast required pursuant to this agreement) or
sell to
any
other entity broadcasting in any market, the information or any
part of
the
information contained in the Traffic Reports provided by ATN.
6. ASSIGNMENT
AND MODIFICATIONS
6.1 This agreement
cannot be assigned by either party except to its related
bodies corporate.
6.2 This agreement
represents the entire understanding between the parties. No
waiver, alteration, or modification of any provision hereof shall
be
binding unless in
writing and signed by authorised agents or employees of
both
parties to this agreement.
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7. AGREEMENT
TERM
7.1 This agreement
shall commence on the Commencement Date (1 April 2004) and,
shall continue until June 30, 2006.
7.2 Broadcasters have
the option to terminate this agreement immediately by
written notice to ATN in the event that ATN fails to generate the
Traffic
Reports required under this agreement for a period of more than
[two]
consecutive days, Monday through Friday, unless the reports were
not
generated by reason of Force Majeure.
7.3 Either party may
terminate this agreement at any time on thirty (30) days
notice in writing if the other party commits any material breach of
any
term
of this agreement which (in the case of a breach being capable
of
being remedied) has not been remedied within fourteen days of a
written
request from the other party to remedy same.
7.4 Either Party may
terminate this agreement at any time by forty eight hours
notice in writing in the event of a persistent breach (not being
one of a
trivial nature) or of a serious breach of the provisions of this
agreement
by
the other party that has not been cured within 48 hours of
written
notice.
7.5 Either party may
terminate this agreement immediately by giving written
notice to the other party if that other party becomes insolvent or
has a
receiver or a manager appointed to all or a substantial part of its
assets,
or
undertaking, or goes into liquidation.
8. ATN
EMPLOYEES
8.1 Broadcasters
understands that all employees of ATN are under written or
verbal contracts with ATN and Broadcasters may not attempt to
solicit
employees of ATN without the written consent of ATN during the
course of
this
agreement, or the course of any extensions of this agreement, and
for
a
period of six months after the termination of any agreement.
9. ENFORCEMENT
AND INDEMNITY
9.1 Broadcasters
recognises that the Traffic Reports are subject to copyright,
and
that unauthorised use of such Traffic Reports may be the subject
of
injunctive relief, as well as a claim in damages.
9.2 Broadcasters
indemnifies and must keep indemnified ATN against all
liabilities, damages,
losses, (excluding indirect and consequential losses)
costs and expenses suffered, paid or incurred by ATN (including
legal fees
on a
party-party basis as a result of or in connection with a breach
by
Broadcasters of this agreement or any wilful or negligent act or
default by
Broadcasters.
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9.3 ATN indemnifies
and must keep indemnified Broadcasters against all
liabilities, damages, losses, (excluding indirect and consequential
losses)
costs and expenses suffered, paid or incurred by Broadcasters
(including
legal fees on a party-party basis) as a result of or in connection
with a
breach by ATN of this agreement or any wilful or negligent act or
default
by
ATN.
9.4 ATN indemnifies
and must keep indemnified Broadcasters against all
liabilities, damages, losses, (excluding indirect and consequential
losses)
costs and expenses suffered, paid or incurred by Broadcasters
(including
legal fees on a party-party basis) arising out of the content
and/or
broadcast of the Traffic Reports referred to in clause 2.1.
10. GENERAL
10.1 This agreement shall be govern
