UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

 

 

FORM 8-K

 

 

CURRENT REPORT

Pursuant to Section 13 OR 15(d)

of the Securities Exchange Act of 1934

Date of Report (Date of earliest event reported): November 17, 2017 (November 16, 2017)

 

 

ENTERCOM COMMUNICATIONS CORP.

(Exact name of registrant as specified in its charter)

 

 

 

Pennsylvania   001-14461   23-1701044

(State or other jurisdiction

of incorporation)

 

(Commission

File Number)

 

(IRS Employer

Identification Number)

 

401 E. City Avenue, Suite 809

Bala Cynwyd, Pennsylvania

  19004
(Address of principal executive offices)   (Zip Code)

Registrant’s telephone number, including area code: (610)-660-5610

N/A

(Former name or former address, if changed since last report.)

 

 

Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:

 

Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)

 

Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)

 

Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))

 

Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))

Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (§230.405 of this chapter) or Rule 12b-2 of the Securities Exchange Act of 1934 (§240.12b-2 of this chapter).

Emerging growth company  ☐

If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act.  ☐

 

 

 


EXPLANATORY NOTE

On November 17, 2017 (the “Closing Date”), pursuant to that certain Agreement and Plan of Merger, dated as of February 2, 2017 and amended as of July 10, 2017 and September 13, 2017 (as amended, the “Merger Agreement”), by and among Entercom Communications Corp., a Pennsylvania corporation (the “Company”), Constitution Merger Sub Corp., a Delaware corporation and wholly owned subsidiary of Entercom (“Merger Sub”), CBS Corporation, a Delaware corporation (“CBS”), and CBS Radio Inc., a Delaware corporation and wholly owned subsidiary of CBS (“CBS Radio”), the Company combined with CBS’s radio business (the “CBS Radio Business”) in a two-step all-stock “Reverse Morris Trust” transaction that involved (i) a separation of CBS Radio from CBS (the “Separation”) pursuant to that certain Master Separation Agreement, dated as of February 2, 2017 (the “Separation Agreement”), followed by (ii) the merger of CBS Radio with Merger Sub (the “Merger”, and together with the Separation and the other transactions contemplated by the Merger Agreement and the Separation Agreement, the “Transactions”), with CBS Radio surviving the merger as a wholly owned subsidiary of the Company.

 

Item 1.01. Entry into a Material Definitive Agreement.

Transition Agreements

In connection with the Transactions, the Company, CBS and CBS Radio, or certain of their respective subsidiaries, entered into the agreements listed below, in each case as of November 16, 2017. A summary of the material terms of such agreements is contained in the Company’s registration statement on Form S-4, as amended (Registration No. 333-217273), which was declared effective by the U.S. Securities and Exchange Commission (the “SEC”) on October 19, 2017 (the “Entercom Registration Statement”), and is incorporated by reference into this Item 1.01.

 

    Transition Services Agreement

 

    Joint Digital Services Agreement

 

    CBS Brands License Agreements:
  o Trademark License Agreement (CBS RADIO Brand)
  o Trademark License Agreement (TV Station Brands)
  o Trademark License Agreement (CBS SPORTS RADIO Brand)

 

    Tax Matters Agreement

The Transition Services Agreement, Joint Digital Services Agreement, CBS Brands License Agreements and Tax Matters Agreement are attached hereto as Exhibits 2.5-2.10 and are incorporated by reference into this Item 1.01.

CBS Radio Financing

In connection with the entry into the Merger Agreement, CBS Radio entered into a commitment letter with Goldman Sachs Bank USA and Morgan Stanley Senior Funding, Inc., as the initial commitment parties, pursuant to which the lenders named therein committed to provide, subject to customary closing conditions, $500 million of senior secured term loans as an additional tranche under that certain Credit Agreement, dated as of October 17, 2016, by and among CBS Radio, the guarantors named therein, the lenders from time to time party thereto, and JPMorgan Chase Bank, N.A., as administrative agent (as amended by Amendment No. 1, dated as of March 3, 2017, the “CBS Radio Credit Agreement”). On the Closing Date, the new tranche of $500 million of senior secured term loans under the CBS Radio Credit Agreement was funded, and the proceeds were used to repay certain indebtedness of the Company (as described below), to redeem the Company’s preferred stock (as described below), to pay fees and expenses in connection with the Merger and for other general corporate purposes.

In connection with the consummation of the Merger, Entercom Radio, LLC, which owns and operates the radio stations of the Company, became a wholly owned subsidiary of CBS Radio through the contribution by the Company of all of the issued and outstanding equity interests of Entercom Radio, LLC to CBS Radio. In connection with the consummation of the Merger and funding of the new $500 million tranche of senior secured term loans thereunder, Entercom Radio, LLC repaid all outstanding amounts under its Credit Agreement, dated as of November 1, 2016, and terminated all commitments thereunder, and it and its subsidiaries became guarantors under the CBS Radio Credit Agreement. In addition, Entercom Radio, LLC and its subsidiaries became guarantors under that certain Indenture, dated as of October 17, 2016, by and among CBS Radio, the guarantors named therein and Deutsche Bank Trust Company Americas, as trustee (the “CBS Radio Indenture”), pursuant to a supplemental indenture (the “Supplemental Indenture”) entered into as of the Closing Date.

Immediately following the consummation of the Merger, CBS Radio entered into Amendment No. 2 to the Credit Agreement, by and among CBS Radio, the guarantors named therein, the lenders party thereto, and JPMorgan Chase Bank, N.A., as administrative agent, to effect certain amendments to the existing term loans and revolver, including (i) a reduction in certain interest rates and fees, (ii) certain changes with respect to financial definitions and mandatory prepayment provisions, (iii) modifications to certain thresholds, baskets and timing requirements, and (iv) an extension of the maturity date for the revolver to November 17, 2022 and the term loans to November 17, 2024. For further information regarding the terms and conditions of this amendment, reference is made to the complete text of the amendment, which will be filed as an exhibit to the Company’s Annual Report on Form 10-K for the year ending December 31, 2017.


Also in connection with the consummation of the Merger, the Company redeemed all outstanding shares of its Series A Convertible Preferred Stock, par value $0.01 per share, for a total purchase price of approximately $27.7 million.

The CBS Radio Credit Agreement and Amendment No. 1 thereto are attached hereto as Exhibits 10.1 and 10.2, respectively, and are incorporated by reference into this Item 1.01. The CBS Radio Indenture and the Supplemental Indenture are attached hereto as Exhibits 4.1 and 4.2, respectively, and are incorporated by reference into this Item 1.01.

 

Item 2.01. Completion of Acquisition or Disposition of Assets.

On the Closing Date, the Merger was consummated pursuant to the Merger Agreement and the Separation Agreement. Pursuant to the Merger Agreement, each issued and outstanding share of CBS Radio was converted into the right to receive one share of the Company’s Class A common stock, par value $0.01 per share (the “Common Stock”). The Company issued 101,407,494 shares of Common Stock to the former stockholders of CBS Radio, together with cash in lieu of any fractional shares. On the Closing Date, CBS Radio merged with and into Merger Sub, with CBS Radio surviving the merger and becoming a wholly owned subsidiary of the Company.

Immediately after consummation of the Merger, approximately 72% of the economic interest in the Company was held by pre-Merger shareholders of CBS Radio common stock and approximately 28% of the economic interest in the Company was held by pre-Merger shareholders of the Company. In connection with the Transactions, the Company, CBS and CBS Radio entered into certain additional agreements relating to, among other things, certain tax matters and the provision of certain transition services during a transition period following the consummation of the Merger. The information set forth in Item 1.01 of this Current Report on Form 8-K is incorporated by reference into this Item 2.01.

The Entercom Registration Statement sets forth certain additional information regarding CBS Radio and the Transactions. The information contained in Items 1.01 and 5.02 of this Current Report on Form 8-K is incorporated by reference into this Item 2.01. In addition, the foregoing description of the Transactions is qualified in its entirety by reference to the Merger Agreement and the Separation Agreement, copies of which are attached as exhibits hereto and are incorporated by reference into this Item 2.01.

 

Item 2.03 Creation of a Direct Financial Obligation or an Obligation under an Off-Balance Sheet Arrangement of a Registrant.

The information set forth in Item 1.01 of this Current Report on Form 8-K is incorporated by reference into this Item 2.03.

 

Item 5.02. Departure of Directors or Principal Officers; Election of Directors; Appointment of Principal Officers.

Board of Directors

Effective as of the effective time of the Merger (the “Effective Time”), the board of directors of the Company increased the size of the board from six members to ten members and appointed the four individuals designated by CBS, Leslie Moonves, Joseph R. Ianniello, Stefan Selig and Sean Creamer, to serve as directors. Further, in connection with the Merger, the shareholders of the Company approved an amendment to the Company’s Articles of Incorporation to classify the Company’s board of directors. As a result, the board composition will be as follows:

 

Class I Directors

(expiring at 2018 annual meeting)

  

Leslie Moonves

Joseph R. Ianniello

David Levy

Stefan M. Selig

Class II Directors

(expiring at 2019 annual meeting)

  

Mark R. LaNeve

Sean Creamer

Joel Hollander

Class III Directors

(expiring at 2020 annual meeting)

  

Joseph M. Field

David J. Field

David J. Berkman

Each of the CBS designated directors will be entitled to receive the standard remuneration provided to the Company’s non-management directors. In accordance with the Merger Agreement, Messrs. Moonves and Ianniello have each executed and delivered an irrevocable letter of resignation from the Company’s board of directors effective upon the earlier of (a) six months after the Closing Date and (b) the day prior to the first annual meeting of the Company following the consummation of the Merger. Following such resignations, the resulting vacancies on the Company’s board of directors will be addressed in accordance with the Company’s bylaws. The Company currently does not have any plans to fill the vacancies that will be created by the resignations of Messrs. Moonves and Ianniello. If the vacancies remain unfilled, the size of the Company’s board of directors will be reduced from ten members to eight members.


In addition, effective as of the Effective Time, the board of directors of the Company elected David J. Field as Chairman of the board of directors and elected Joseph M. Field as Chairman Emeritus of the board of directors.

Listed below is the biographical information for the four new directors designated by CBS:

Leslie Moonves has served as Chairman of the Board of Directors of CBS since February 3, 2016, and President and Chief Executive Officer and a Director of CBS since January 2006. Previously, Mr. Moonves served as Co-President and Co-Chief Operating Officer of former Viacom Inc. since June 2004. Prior to that, he served as Chairman and Chief Executive Officer of CBS Broadcasting since 2003 and as its President and Chief Executive Officer since 1998. Mr. Moonves joined former CBS Corporation in 1995 as President, CBS Entertainment. Prior to that, Mr. Moonves was President of Warner Bros. Television since July 1993. During the past five years, he was also a director of CBS Outdoor Americas Inc. (currently known as Outfront Media Inc.) and KB Home.

Joseph R. Ianniello has served as the Chief Operating Officer of CBS since June 2013, and, prior to that, its Executive Vice President and Chief Financial Officer since August 2009. Previously, Mr. Ianniello served as Deputy Chief Financial Officer of CBS since November 2008, and prior to that, in various executive and finance positions at CBS since 2000. During the past five years, he was also a director of CBS Outdoor Americas Inc. (currently known as Outfront Media Inc.).

Stegan M. Selig served as Under Secretary of Commerce for International Trade at the U.S. Department of Commerce from June 2014 to June 2016, and during this period headed the International Trade Administration, a global bureau of more than 2,200 trade and investment professionals. During this period, he also served as the Executive Director of the Travel and Tourism Advisory Board, sat on the board of directors of the Overseas Private Investment Corporation, was a Commissioner for the Congressional Executive Commission on China and was the Executive Director of the President’s Advisory Council on Doing Business in Africa. Prior to that, he held various senior level leadership positions at Bank of America Merrill Lynch beginning in 1999, including being the Executive Vice Chairman of Global Corporate & Investment Banking from 2009 to 2014, and prior to that, he was Vice Chairman of Global Investment Banking and Global Head of Mergers & Acquisitions. Prior to joining Bank of America, he held various senior investment banking positions at UBS Securities and Wasserstein Perella & Co., and began his investment banking career at The First Boston Corporation.

Sean Creamer has been Executive Vice President, Chief Financial Officer and a member of the board of directors of Merkle Inc. since April 2016. Formerly, he was Executive Vice President and Chief Financial Officer of The Madison Square Garden Company (“MSG”) from 2014 to 2015. Prior to that, he served as President and Chief Executive Officer of Arbitron Inc. (now known as Nielsen Audio) from 2012 to 2014, its Executive Vice President and Chief Operating Officer from 2011-2012, and various other financial leadership positions at Arbitron beginning in 2005. During that time CBS Radio conducted business with Arbitron Inc., and continues to do so. During the past five years, Mr. Creamer was also a director of Arbitron.

Executive Officers

Effective as of the Effective Time, the Company’s board of directors elected the following officers of the Company to the offices set forth opposite their name:

 

David J. Field

   President & Chief Executive Officer

Joseph M. Field

   Chairman Emeritus

Richard J. Schmaeling

   Executive Vice President - Chief Financial Officer

Louise “Weezie” Kramer

   Chief Operating Officer

Andrew P. Sutor, IV

   Executive Vice President & Secretary

Robert E. Philips

   Chief Revenue Officer

Eugene D. Levin

   Vice President, Treasurer & Assistant Secretary

Michael E. Dash

   Vice President & Assistant Secretary

Carmela M. Masi

   Vice President - Real Estate & Assistant Secretary

David Field Employment Agreement

On November 16, 2017, the Compensation Committee of the Company’s board of directors approved an amendment to David J. Field’s employment agreement, effective as of the Closing Date, (i) extending the term for four years, with one year automatic renewals thereafter unless either party provides prior notice of non-extension, (ii) increasing his salary to $1,200,000 per year, subject to annual increases beginning on the first anniversary of the Closing Date, and (iii) increasing his target annual cash bonus to 200% of his annual salary. The foregoing summary is qualified in its entirety by reference to the full terms and conditions of the amendment, a copy of which is attached hereto as Exhibit 10.3 and is incorporated by reference into this Item 5.02.


Departure of Fernandez and Siegel

On the Closing Date, Entercom terminated without cause the employment of Andre J. Fernandez, CBS Radio’s President and Chief Executive Officer, and Matthew Siegel, CBS Radio’s Chief Financial Officer, entitling each to severance under the terms of their employment agreements with CBS Radio.

Deferred Compensation Plans

Effective November 17, 2017, the Company’s board of directors approved an amendment to the Entercom Key Employee Deferred Compensation Plan, as previously amended and restated effective January 1, 2008 (the “Entercom Plan”) to cease deferrals with respect to any compensation for services provided on or after January 1, 2018, and to not accept any new participants in the Entercom Plan.

Also effective November 17, 2017, the Company’s board of directors delegated the authority to the Company’s authorized officers to cause CBS Radio to adopt an amendment to the CBS Radio Excess 401(k) Plan (the “CBS Radio Plan”) to cease deferrals with respect to compensation for services provided on or after January 1, 2018 and to not accept any new participants into the CBS Radio Plan.

 

Item 5.03. Amendments to Articles of Incorporation or Bylaws; Change in Fiscal Year.

Amendment to Articles of Incorporation

On the Closing Date, in connection with the consummation of the Merger, the Company amended its Articles of Incorporation to classify the Company’s board of directors and to permit the Company’s board of directors to require certain information from its shareholders and take certain actions in order to continue to comply with federal communications laws, as described in the Entercom Registration Statement and the definitive proxy statement for the special meeting of shareholders, dated October 16, 2017. Such amendment is attached hereto as Exhibit 3.1 and is incorporated by reference into this Item 5.03.

Amendment to Bylaws

On the Closing Date, in connection with the consummation of the Merger, the Company amended its bylaws to, among other things, implement the classification of the Company’s board of directors as approved by the Company’s shareholders and incorporate other revisions to reflect changes to Pennsylvania corporate law. Such amendment is attached hereto as Exhibit 3.2 and is incorporated by reference into this Item 5.03.

 

Item 8.01. Other Events.

On November 17, 2017, the Company issued a press release announcing the consummation of the Merger. A copy of the press release is attached hereto as Exhibit 99.1 and is incorporated by reference into this Item 8.01.

 

Item 9.01. Financial Statements and Exhibits.

(a) Financial Statements of Business Acquired

The audited consolidated financial statements of CBS Radio as of and for the years ended December 31, 2016, 2015 and 2014, and the notes thereto, were included in the Entercom Registration Statement on Form S-4, as amended (Registration No. 333-217273), which was declared effective by the SEC on October 19, 2017, and are incorporated by reference into this Item 9.01(a).

The unaudited interim consolidated balance sheets of CBS Radio as of June 30, 2017 and December 31, 2016 and the unaudited interim consolidated statements of operations and cash flows for the six months ended June 30, 2017 and 2016, and the notes thereto, were included in the Entercom Registration Statement on Form S-4, as amended (Registration No. 333-217273), which was declared effective by the SEC on October 19, 2017, and are incorporated by reference into this Item 9.01(a).

The unaudited interim consolidated balance sheets of CBS Radio as of September 30, 2017 and December 31, 2016 and the unaudited interim consolidated statements of operations and cash flows for the three months and nine months ended September 30, 2017 and 2016, and the notes thereto, were included in CBS Radio’s Current Report on Form 8-K filed on November 3, 2017 and are incorporated by reference into this Item 9.01(a).


(b) Pro Forma Financial Information

The unaudited pro forma condensed combined balance sheet of Entercom and CBS Radio as of June 30, 2017 and the unaudited pro forma condensed combined statement of operations for the six months ended June 30, 2017 and for the year ended December 31, 2016, and the notes thereto, were included in the Entercom Registration Statement on Form S-4, as amended (Registration No. 333-217273), which was declared effective by the SEC on October 19, 2017, and are incorporated by reference into this Item 9.01(b).

(d) Exhibits

The information set forth in the Exhibit Index following the signature page hereto is incorporated herein by reference.

 


EXHIBIT INDEX

 

Exhibit
No.

  

Title

2.1+    Agreement and Plan of Merger, dated as of February  2, 2017, by and among CBS Corporation, CBS Radio Inc., Entercom Communications Corp. and Constitution Merger Sub Corp. (incorporated by reference to Exhibit 2.1 of Entercom’s Current Report on Form 8-K filed on February 3, 2017)
2.2+    Amendment No. 1, dated as of July 10, 2017, to the Agreement and Plan of Merger, dated as of February  2, 2017, by and among CBS Corporation, CBS Radio Inc., Entercom Communications Corp. and Constitution Merger Sub Corp. (incorporated by reference to Exhibit 2.1 of Entercom’s Current Report on Form 8-K filed on July 10, 2017)
2.3+    Amendment No. 2, dated as of September 13, 2017, to the Agreement and Plan of Merger, dated as of February  2, 2017, by and among CBS Corporation, CBS Radio Inc., Entercom Communications Corp. and Constitution Merger Sub Corp. (incorporated by reference to Exhibit 2.1 of Entercom’s Current Report on Form 8-K filed on September 13, 2017)
2.4+    Master Separation Agreement, dated as of February  2, 2017, by and between CBS Corporation and CBS Radio Inc. (incorporated by reference to Exhibit A to Exhibit 2.1 to Entercom’s Current Report on Form 8-K filed on February 3, 2017)
2.5    Transition Services Agreement, by and between CBS Corporation and Entercom Communications Corp., dated as of November 16, 2017.
2.6    Joint Digital Services Agreement, by and between CBS Corporation and Entercom Communications Corp., dated as of November 16, 2017.
2.7    Trademark License Agreement (CBS Radio Brand), by and between CBS Broadcasting Inc. and CBS Radio Inc., dated as of November 16, 2017.
2.8    Trademark License Agreement (TV Station Brands), by and between CBS Broadcasting Inc., CBS Mass Media Corporation, CBS Radio Inc. and Certain Subsidiaries of CBS Radio Inc., dated as of November  16, 2017.
2.9    Trademark License Agreement (CBS Sports Radio Brand) by and between CBS Broadcasting Inc., CSTV Networks, Inc. d/b/a CBS Sports Network, CBS Radio Inc. and CBS Sports Radio Network Inc., dated as of November 16, 2017.
2.10    Tax Matters Agreement, by and between CBS Corporation and Entercom Communications Corp., dated as of November 16, 2017.
3.1    Articles of Amendment to the Articles of Incorporation of Entercom Communications Corp.
3.2    Amendment No. 2 to the Amended and Restated Bylaws of Entercom Communications Corp.
4.1+    Indenture for Senior Notes, dated as of October  17, 2016, by and among CBS Radio, Inc., the guarantors named therein, and Deutsche Bank Trust Company Americas, as trustee (incorporated by reference to Exhibit 4.2 of Entercom’s Registration Statement on Form S-4 (File No. 333-217273))
4.2    Supplemental Indenture, dated as of November 17, 2017, by and among Entercom Radio, LLC, the other guarantor parties named therein, and Deutsche Bank Trust Company Americas, as trustee
10.1+    Credit Agreement, dated as of October  17, 2016, by and among CBS Radio Inc., the guarantors named therein, the lenders and L/C issuers named therein, and JPMorgan Chase Bank, N.A., as administrative agent and collateral agent (incorporated by reference to Exhibit 10.9 of Entercom’s Registration Statement on Form S-4 (File No. 333-217273))
10.2+    Amendment No. 1, dated as of March 3, 2017, to the Credit Agreement, dated as of October  17, 2016, by and among CBS Radio Inc., the guarantors named therein, the lenders and L/C issuers named therein, and JPMorgan Chase Bank, N.A., as administrative agent and collateral agent (incorporated by reference to Exhibit 10.10 of Entercom’s Registration Statement on Form S-4 (File No. 333-217273))


10.3    Amendment No. 1, dated November 16, 2017, to that certain Amended and Restated Employment Agreement by and between David J. Field and Entercom Communications Corp.
99.1    Press Release, dated November 17, 2017

 

+ Incorporated by reference

 


SIGNATURE

Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.

 

   

Entercom Communications Corp.

Dated: November 17, 2017     By:   /s/ Andrew P. Sutor, IV
   

Name:

 

Andrew P. Sutor, IV

   

Title:

 

Executive Vice President and Secretary

Exhibit 2.5

EXECUTION VERSION

 

 

 

TRANSITION SERVICES AGREEMENT

BY AND BETWEEN

CBS CORPORATION

AND

ENTERCOM COMMUNICATIONS CORP.

DATED AS OF NOVEMBER 16, 2017


TABLE OF CONTENTS

 

          Page  
   ARTICLE I   
   DEFINITIONS   
   ARTICLE II   
   SERVICES, DURATION AND SERVICES MANAGERS   
Section 2.01.    Services      4  
Section 2.02.    Duration of Services      4  
Section 2.03.    Additional Unspecified Services; Changes      4  
Section 2.04.    New Services      6  
Section 2.05.    Services Not Included      6  
Section 2.06.    Transition Services Managers      6  
Section 2.07.    Personnel      7  
   ARTICLE III   
   ADDITIONAL ARRANGEMENTS   
Section 3.01.    Software and Software Licenses      8  
Section 3.02.    Access to Facilities      9  
Section 3.03.    Cooperation; Cutover      10  
Section 3.04.    Data Protection; System Security      11  
   ARTICLE IV   
   COSTS AND DISBURSEMENTS   
Section 4.01.    Costs and Disbursements      11  
Section 4.02.    Tax Matters      12  
Section 4.03.    No Right to Set-Off      13  
   ARTICLE V   
   STANDARD FOR SERVICE   
Section 5.01.    Standard for Service      14  
Section 5.02.    Disclaimer of Warranties      14  
Section 5.03.    Compliance with Laws and Regulations      15  
   ARTICLE VI   
   LIMITED LIABILITY AND INDEMNIFICATION   
Section 6.01.    Consequential and Other Damages      15  
Section 6.02.    Limitation of Liability      15  
Section 6.03.    Obligation To Re-perform; Liabilities      15  
Section 6.04.    Release and Recipient Indemnity      16  
Section 6.05.    Provider Indemnity      16  
Section 6.06.    Indemnification Procedures      16  

 

-i-


          Page  
Section 6.07.    Liability for Payment Obligations      16  
Section 6.08.    Exclusion of Other Remedies      16  
Section 6.09.    Confirmation      16  
   ARTICLE VII   
   TERM AND TERMINATION   
Section 7.01.    Term and Termination      17  
Section 7.02.    Effect of Termination      18  
Section 7.03.    Force Majeure      19  
   ARTICLE VIII   
   GENERAL PROVISIONS   
Section 8.01.    No Agency      19  
Section 8.02.    Subcontractors      19  
Section 8.03.    Treatment of Confidential Information      20  
Section 8.04.    Further Assurances      20  
Section 8.05.    Dispute Resolution      21  
Section 8.06.    Notices      21  
Section 8.07.    Severability      21  
Section 8.08.    Entire Agreement      21  
Section 8.09.    No Third-Party Beneficiaries      22  
Section 8.10.    Governing Law      22  
Section 8.11.    Amendment      22  
Section 8.12.    Rules of Construction      22  
Section 8.13.    Counterparts      23  
Section 8.14.    Assignability      23  
Section 8.15.    Public Announcements      24  
Section 8.16.    Non-Recourse      24  

 

SCHEDULE A CBS Services      A-1  
SCHEDULE B Radio Services      B-1  
EXHIBIT I Services Managers      I-1  

 

-ii-


TRANSITION SERVICES AGREEMENT

This TRANSITION SERVICES AGREEMENT, dated as of November 16, 2017 (this “ Agreement ”), is by and between CBS Corporation, a Delaware corporation (“ CBS ”), and Entercom Communications Corp., a Pennsylvania corporation (“ Entercom ”). CBS and Entercom are herein referred to individually as a “ Party ” and collectively as the “ Parties .” Unless otherwise defined in this Agreement, all capitalized terms used in this Agreement shall have the meaning set forth in the Master Separation Agreement, dated as of February 2, 2017, by and between CBS and CBS Radio Inc. (as amended, modified or supplemented from time to time in accordance with its terms, the “ Separation Agreement ”).

RECITALS

WHEREAS, prior to the Separation, CBS was engaged, directly and indirectly, in the Radio Business and CBS Radio Inc. (“ Radio ”) was a wholly owned indirect subsidiary of CBS;

WHEREAS, pursuant to the Agreement and Plan of Merger, dated as of February 2, 2017 (as amended from time to time, the “ Merger Agreement ”), by and among CBS, Entercom, Radio, and certain of their Affiliates, Entercom has agreed to acquire the Radio Business and in order to facilitate the transactions contemplated thereby, the Parties have agreed to separate the Radio Business from the other businesses of CBS, on the terms and conditions set forth in the Separation Agreement;

WHEREAS, prior to the Separation, CBS has heretofore provided certain services to Radio in support of the Radio Business and Radio has provided certain services to CBS in support of the CBS Business;

WHEREAS, Entercom has requested from CBS, and CBS has requested from Entercom, that certain such services continue for a limited period of time pursuant to this Agreement;

WHEREAS, CBS and Radio have entered into the Separation Agreement;

WHEREAS, in order to facilitate and provide for an orderly transition under the Separation Agreement and Merger Agreement, the Parties desire to enter into this Agreement to set forth the terms and conditions pursuant to which each of the Parties shall provide to the other the Services (as defined herein) for a transitional period; and

WHEREAS, the Merger Agreement requires execution and delivery of this Agreement by CBS and Entercom on or prior to the Distribution Date.

NOW, THEREFORE, in consideration of the foregoing and the mutual agreements contained in this Agreement, the Parties, intending to be legally bound, hereby agree as follows:

ARTICLE I

DEFINITIONS

The following capitalized terms used in this Agreement shall have the meanings set forth below:


Additional Services ” shall have the meaning set forth in Section 2.03(a).

Agreement ” shall have the meaning set forth in the Preamble .

CBS ” shall have the meaning set forth in the Preamble .

CBS Business ” shall mean the businesses and operations of the CBS Group other than the Radio Business.

CBS Group ” shall have the meaning set forth in the Separation Agreement.

CBS Local Service Manager ” shall have the meaning set forth in Section  2.06(a) .

CBS Services ” shall have the meaning set forth in Section  2.01 .

CBS Services Manager ” shall have the meaning set forth in Section  2.06(a) .

Change of Control ” means, with respect to a Party, (i) a transaction whereby any Person or group (within the meaning of Section 13(d)(3) of the Securities and Exchange Act of 1934, as amended) would acquire, directly or indirectly, voting securities representing more than 50% of the total voting power of such Party; (ii) a merger, consolidation, recapitalization or reorganization of such party, unless securities representing more than 50% of the total voting power of the legal successor to such Party as a result of such merger, consolidation, recapitalization or reorganization are immediately thereafter beneficially owned, directly or indirectly, by the Persons who beneficially owned such Party’s outstanding voting securities immediately prior to such transaction or (iii) the sale of all or substantially all of the consolidated assets of such Party; provided , in each case, that none of the Transactions shall be deemed to be a “Change of Control.”

Common Agreements ” shall have the meaning set forth in the Separation Agreement.

Confidential Information ” shall have the meaning set forth in Section  8.03(a) .

Cutover ” shall have the meaning set forth in Section 3.03(b).

Cutover Plan ” shall have the meaning set forth in Section 3.03(b).

Digital Serivces ” shall mean any digital service provided by or for a Party which is the subject of the Joint Digital Services Areement between the Parties.

Entercom Group ” shall mean Entercom and its Subsidiaries, including the Radio Group.

Force Majeure ” shall mean, with respect to a Party, an event beyond the control of such Party (or any Person acting on its behalf), which event (a) does not arise or result from the fault or negligence of such Party (or any Person acting on its behalf) and (b) by its nature would not reasonably have been foreseen by such Party (or such Person), or, if it would reasonably have been foreseen, was unavoidable, and includes acts of God, acts of civil or military authority, embargoes, epidemics, war, riots, insurrections, fires, explosions, earthquakes, floods, unusually severe weather conditions, labor problems or unavailability of parts, or, in the case of computer systems, any failure in electrical or air conditioning equipment.

 

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Interest Payment ” shall have the meaning set forth in Section  4.01(d) .

New Services ” shall have the meaning set forth in Section  2.04(a) .

Non-Income Taxes ” shall have the meaning set forth in Section  4.02(a) .

Person ” means an individual, corporation, partnership, limited liability company, association, trust or other entity or organization.

Provider ” shall mean the Party or its Subsidiary or Affiliate providing a Service under this Agreement.

Provider Indemnified Party ” shall have the meaning set forth in Section  6.04 .

Radio ” shall have the meaning set forth in the Preamble .

Radio Business ” shall have the meaning set forth in the Separation Agreement.

Radio Group ” shall have the meaning set forth in the Separation Agreement.

Radio Local Service Manager ” shall have the meaning set forth in Section  2.06(b) .

Radio Services Manager ” shall have the meaning set forth in Section  2.06(b)

Recipient ” shall mean the Party or its Subsidiary or Affiliate to whom a Service under this Agreement is being provided.

Recipient Indemnified Party ” shall have the meaning set forth in Section  6.05 .

Reimbursement Charges ” shall have the meaning set forth in Section  4.01(c) .

Schedule(s) ” shall have the meaning set forth in Section  2.02 .

Separation Agreement ” shall have the meaning set forth in the Preamble .

Service Charges ” shall have the meaning set forth in Section  4.01(a) .

Service Extension ” shall have the meaning set forth in Section 7.01(d) .

Service Increases ” shall have the meaning set forth in Section  2.03(b) .

Services ” shall have the meaning set forth in Section  2.01 .

Taxes ” shall have the meaning set forth in the Tax Matters Agreement.

 

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ARTICLE II

SERVICES, DURATION AND SERVICES MANAGERS

Section 2.01.     Services . Subject to the terms and conditions of this Agreement, (a) CBS shall provide or cause to be provided to the Entercom Group the services listed on Schedule A to this Agreement (the “ CBS Services ”) and (b) Entercom shall provide or cause to be provided to the CBS Group the services listed on Schedule B to this Agreement (the “ Radio Services ,” and, collectively with the CBS Services, any Additional Services, any Service Increases and any New Services, the “ Services ”). All of the CBS Services shall be for the sole use and benefit of the Radio Business and all of the Radio Services shall be for the sole use and benefit of the CBS Business.

Section 2.02.     Duration of Services . Subject to the terms of this Agreement, each of CBS and Entercom shall provide or cause to be provided to the respective Recipients each Service until the earlier to occur of, with respect to each such Service, (i) the expiration of the term for such Service (or, subject to the terms of Section 7.01(d), the expiration of any Service Extension) as set forth on Schedule A or Schedule B (each a “ Schedule ,” and, collectively, the “ Schedules ”) or (ii) the date on which such Service is terminated under Section  7.01(b) .

Section 2.03.     Additional Unspecified Services; Changes .

(a)    After the date of this Agreement, if (i) (x) Entercom identifies a service (other than a Digital Service) that the CBS Group provided to the Radio Group prior to the Separation that Entercom reasonably needs in order for the Radio Business to continue to operate in substantially the same manner in which the Radio Business operated prior to the Separation, and such service was included on the initial draft of Schedule A provided by CBS prior to the execution of the Merger Agreement but thereafter removed, or (y) CBS identified a service (other than a Digital Service) that the Radio Group provided to the CBS Group prior to the Separation that CBS reasonably needs in order for the CBS Business to continue to operate in substantially the same manner in which the CBS Business operated prior to the Separation, and such service was included on the initial draft of Schedule B provided by CBS prior to the execution of the Merger Agreement but thereafter removed, and (ii) the requesting Party provides written notice to the other Party within 120 days following the date of this Agreement requesting such additional services, then such other Party shall provide such requested additional services (such requested additional services, the “ Additional Services ”). In connection with any request for Additional Services in accordance with this Section  2.03(a) , the CBS Services Manager and the Radio Services Manager shall in good faith negotiate the terms of a supplement to the applicable Schedule, which terms shall be consistent with the terms of, and the pricing methodology used for, similar Services provided under this Agreement. Upon the mutual written agreement of the Parties, the supplement to the applicable Schedule shall describe in reasonable detail the nature, scope, service period(s), termination provisions and other terms applicable to such Additional Services in a manner similar to that in which the Services are described in the existing Schedules. Each supplement to the applicable Schedule, as agreed to in writing by the Parties, shall be deemed part of this Agreement as of the date of such agreement, and the Additional Services set forth therein shall be deemed “Services” provided under this Agreement, in each case subject to the terms and conditions of this Agreement.

 

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(b)    After the date of this Agreement, if (i) a Recipient requests to increase, relative to historical levels prior to the Separation, the volume, amount, level or frequency, as applicable, of any Service provided by the Provider of such Service and (ii) such increase is reasonably determined by such Recipient as necessary for the Recipient to operate its businesses (such increases, the “ Service Increases ”), then such Provider shall consider such request in good faith; provided , however , that no Party shall be obligated to provide any Service Increase, including because, after good-faith negotiations between the Parties, the Parties fail to reach an agreement with respect to the terms thereof (including with respect to Service Charges therefor) or if and to the extent such Service Increase would require a material increase in the resources dedicated by Provider to the Services. In connection with any request for Service Increases in accordance with this Section  2.03(b) , the CBS Services Manager and the Radio Services Manager shall in good faith negotiate the terms of an amendment to the applicable Schedule, which amendment shall be consistent with the terms of, and the pricing methodology used for, the applicable Service. Each amended Schedule, as agreed to in writing by the Parties, shall be deemed part of this Agreement as of the date of such agreement, and the Service Increases set forth therein shall be deemed a part of the “Services” provided under this Agreement, in each case subject to the terms and conditions of this Agreement.

(c)    The Parties may, in accordance with the procedures specified in this Section  2.03(c) , agree to modify the terms and conditions relating to the performance of or payment for a previously agreed-upon Service in order to reflect, among other things, new procedures, processes or other methods of providing such Service (a “ Service Modification ”).

(i)     Change Requests . In the event either of the Parties desires a Service Modification, the Party requesting the Service Modification will deliver a written description of the proposed Service Modification (a “ Change Request ”) to the other Party’s Services Manager. Unless the Party receiving the Change Request agrees to implement the Change Request as proposed, the Services Managers will meet in person or by telephone to discuss in good faith the Change Request no later than ten (10) Business Days after delivery of the Change Request to the other Party.

(ii)     Approval of Recipient Change Requests . All Change Requests from a Recipient must be consented to by the applicable Provider’s Services Manager in writing before the Service Modification may be implemented. Such consent will not be unreasonably withheld, conditioned or delayed. For the purposes of the preceding sentence, the Parties agree that it is not unreasonable to: (i) withhold such consent to the extent that such proposed Service Modification would materially increase the resources provided by Provider after giving effect to the Change Request, or (ii) condition such consent on Recipient agreeing to bear any reasonable and documented increase in Provider’s cost of performance.

(iii)     Approval of Provider Change Requests . All Change Requests from a Provider must be consented to by the applicable Recipient’s Service Manager in writing before the Service Modifications may be implemented. Such consent will not be unreasonably withheld, conditioned or delayed. For the purposes of the preceding sentence, the Parties agree that it is not unreasonable to: (i) withhold such consent to the extent that such proposed Service Modification would materially decrease the resources

 

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provided by Provider or otherwise materially adversely affect Provider’s performance of the Services after giving effect to the Change Request, or (ii) condition such consent on Provider agreeing to bear any cost increases.

(iv)     Implementation of Approved Change. If a Change Request is approved in accordance with this Section, the corresponding Schedule and the definition of Services will be deemed amended as agreed by the Parties to reflect the implementation of the Change Request as well as any conditions or other terms agreed upon by the Parties in writing.

Section 2.04.     New Services . (a) From time to time during the term of this Agreement, either Party may request the other Party to provide additional or different services (other than Digital Services) which such other Party is not expressly obligated to provide under this Agreement (excluding, for the avoidance of doubt, any Additional Services or Service Increases, the “ New Services ”). The Party receiving such request shall consider such request in good faith; provided , however , that no Party shall be obligated to provide any New Services, including because, (i) after good faith negotiations between the Parties pursuant to Section  2.04(b) , the Parties fail to reach an agreement with respect to the terms (including the Service Charges) applicable to the provision of such New Services or (ii) it does not, in its reasonable judgment, have adequate resources to provide such New Service or if the provision of such New Service would significantly disrupt the operation of its businesses.

(b)    In connection with any request for New Services in accordance with Section  2.04(a) , the CBS Services Manager and the Radio Services Manager shall in good faith (i) negotiate the applicable Service Charge and the terms of a supplement to the applicable Schedule, which supplement shall describe in reasonable detail the nature, scope, service period(s), termination provisions and other terms applicable to such New Services and (ii) determine any costs and expenses, including any start-up costs and expenses, that would be incurred by the Provider in connection with the provision of such New Services, which costs and expenses shall be borne solely by the Recipient. Each supplement to the applicable Schedule, as agreed to in writing by the Parties, shall be deemed part of this Agreement as of the date of such agreement, and the New Services set forth therein shall be deemed “Services” provided under this Agreement, in each case subject to the terms and conditions of this Agreement.

Section 2.05.     Services Not Included . Except as expressly set forth on a Schedule, it is not the intent of the Provider to render, nor of the Recipient to receive from the Provider, professional advice or opinions, whether with regard to Tax, legal, treasury, finance, employment or other business or financial matters, technical advice, whether with regard to information technology or other matters, or the handling of or addressing environmental matters; the Recipient shall not rely on, or construe, any Service rendered by or on behalf of the Provider as such professional advice or opinions or technical advice; and the Recipient shall seek all third-party professional advice or opinions or technical advice as it may desire or need.

Section 2.06.     Transition Services Managers . (a) CBS hereby appoints and designates the individual holding the CBS position set forth on Exhibit I

 

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to act as its initial services manager (the “ CBS Services Manager ”), who will be directly responsible for coordinating and managing the delivery of the CBS Services and have authority to act on CBS’s behalf with respect to matters relating to the provision of Services under this Agreement. The CBS Services Manager will work with the personnel of the CBS Group to periodically address issues and matters raised by the Entercom Group relating to the provision of Services under this Agreement. Notwithstanding the requirements of Section  8.06 , all communications from the Entercom Group to CBS pursuant to this Agreement regarding routine matters involving a Service shall be made first through the individual specified as the local service manager (the “ CBS Local Service Manager ”) with respect to such Service on Schedule A or such other individual as may be specified by the CBS Services Manager in writing and delivered to Entercom by email or facsimile transmission with receipt confirmed; provided that, if the CBS Local Service Manager is not available, communication shall thereafter be made through the CBS Services Manager. CBS shall notify Entercom of the appointment of a different CBS Services Manager or CBS Local Service Manager(s), if necessary, in accordance with Section  8.06 .

(b)    Entercom hereby appoints and designates the individual holding the Radio position set forth on Exhibit I to act as its initial services manager (the “ Radio Services Manager ”), who will be directly responsible for coordinating and managing the delivery of the Radio Services and have authority to act on Entercom’s behalf with respect to matters relating to this Agreement. The Radio Services Manager will work with the personnel of the CBS Group to periodically address issues and matters raised by CBS relating to this Agreement. Notwithstanding the requirements of Section  8.06 , all communications from CBS to Entercom pursuant to this Agreement regarding routine matters involving a Service shall be made through the individual specified as the local service manager (the “ Radio Local Service Manager ”) with respect to such Service on Schedule B or as specified by the Radio Services Manager in writing and delivered to CBS by email or facsimile transmission with receipt confirmed; provided that if the Radio Local Service Manager is not available, communication shall thereafter be made through the Radio Services Manager. Entercom shall notify CBS of the appointment of a different Radio Services Manager or Radio Local Service Manager(s), if necessary, in accordance with Section  8.06 .

(c)    The Parties shall cause their respective Service Managers and/or Local Service Managers, as applicable, to meet (in person or by phone or videoconference) on a monthly basis during the Term, or with such other frequency as they may mutually agree in good faith as is necessary to support an orderly transition of the Radio Business. At such meetings, the Service Managers or Local Service Managers shall discuss the performance of the Services and any concerns of the Parties or a Party regarding such Services (including the provision of and payment for the Services provided under this Agreement, potential changes to systems or personnel used to perform the Service, and/or the status of the Parties’ transition efforts to achieve the Cutover).

Section 2.07.     Personnel . (a) The Provider of any Service will make available to the Recipient of such Service such appropriately qualified personnel as may be necessary to provide such Service on the understanding that such personnel shall remain employed and/or engaged by

 

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the Provider. The Provider will have the right, in its reasonable discretion, to (i) designate which personnel it will assign to perform such Service and (ii) remove and replace such personnel at any time; provided , however , that any such removal or replacement shall not be the basis for any increase in any Service Charge or Reimbursement Charge payable hereunder or relieve the Provider of its obligation to provide any Service hereunder; and provided , further , that the Provider will use its commercially reasonable efforts to limit the disruption to the Recipient in the transition of the Services to different personnel.

(b)    In the event that the provision of any Service by the Provider requires the cooperation and services of the personnel of the Recipient, the Recipient will make available to the Provider such personnel (who shall be appropriately qualified for purposes of so supporting the provision of such Service by the Provider) as may be necessary for the Provider to provide such Service on the understanding that such personnel shall remain employed and/or engaged by the Recipient. The Recipient will have the right, in its reasonable discretion, to (i) designate which personnel it will make available to the Provider in connection with the provision of such Service and (ii) remove and replace such personnel at any time; provided , however , that any directly resulting increase in costs to the Provider shall be borne by the Recipient and any directly resulting adverse effect to the provision of such Service by the Provider shall not be deemed a breach of this Agreement; and provided , further , that the Recipient will use its commercially reasonable efforts to limit the disruption to the Provider in the transition of such personnel.

(c)    No Provider shall be liable under this Agreement for any liabilities incurred by the Recipient Indemnified Parties that are primarily attributable to, or that are primarily a consequence of, any actions or inactions of the personnel of the Recipient, except for any such actions or inactions undertaken pursuant to the direction of the Provider.

(d)    Nothing in this Agreement shall grant the Provider, or its employees or agents that are performing the Services, the right directly or indirectly to control or direct the operations of the Recipient or any member of its Group. Such employees and agents shall not be required to report to the management of the Recipient nor be deemed to be under the management or direction of the Recipient. The Recipient acknowledges and agrees that, except as may be expressly set forth herein as a Service (including any Additional Services, Service Increases or New Services) or otherwise expressly set forth in the Separation Agreement, another Ancillary Agreement or any other applicable agreement, no Provider or any member of its Group shall be obligated to provide, or cause to be provided, any service or goods to any Recipient or any member of its Group.

ARTICLE III

ADDITIONAL ARRANGEMENTS

Section 3.01.     Software and Software Licenses . (a) If and to the extent requested by Entercom, CBS shall use commercially reasonable efforts to assist Entercom in its efforts to obtain licenses (or other appropriate rights) to use, duplicate and distribute, as necessary and applicable, certain computer software necessary for CBS to provide, and the Radio Business to receive, CBS Services; provided that CBS shall not be required to pay any fees or other payments or incur any obligations or liabilities to enable Entercom to obtain any such license or

 

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rights (except and to the extent that Entercom advances such fees or payments to CBS); provided , further , that CBS shall not be required to seek broader rights or more favorable terms for Entercom than those applicable to CBS or Radio, as the case may be, prior to the Separation or as may be applicable to CBS from time to time hereafter; and, provided , further , that Radio shall bear only those costs that relate solely and directly to obtaining such licenses (or other appropriate rights) in the ordinary course. The Parties acknowledge and agree that there can be no assurance that CBS’s efforts will be successful or that Entercom will be able to obtain such licenses or rights on acceptable terms or at all, and, where CBS enjoys rights under any enterprise or site license or similar license, the Parties acknowledge that such license typically precludes partial transfers or assignments or operation of a service bureau on behalf of unaffiliated entities. In the event that Entercom is unable to obtain such software licenses, the Parties shall work together using commercially reasonable efforts to obtain an alternative software license to allow CBS to provide, and the Radio Business to receive, such CBS Services, and the Parties shall negotiate in good faith an amendment to the applicable Schedule to reflect any such new arrangement.

(b)    If and to the extent requested by CBS, Entercom shall use commercially reasonable efforts to assist CBS in its efforts to obtain licenses (or other appropriate rights) to use, duplicate and distribute, as necessary and applicable, certain computer software necessary for Entercom to provide, and CBS to receive, Radio Services; provided that Radio shall not be required to pay any fees or other payments or incur any obligations or liabilities to enable CBS to obtain any such license or rights (except and to the extent that CBS advances such fees or payments to Radio); provided , further , that Entercom shall not be required to seek broader rights or more favorable terms for CBS than those applicable to Radio or CBS, as the case may be, prior to the date of this Agreement or as may be applicable to Entercom from time to time hereafter; and, provided, further, that CBS shall bear only those costs that relate solely and directly to obtaining such licenses (or other appropriate rights) in the ordinary course. The Parties acknowledge and agree that there can be no assurance that Entercom’s efforts will be successful or that CBS will be able to obtain such licenses or rights on acceptable terms or at all, and, where Entercom enjoys rights under any enterprise or site license or similar license, the Parties acknowledge that such license typically precludes partial transfers or assignments or operation of a service bureau on behalf of unaffiliated entities. In the event that CBS is unable to obtain such software licenses, the Parties shall work together using commercially reasonable efforts to obtain an alternative software license to allow Entercom to provide, and CBS to receive, such Radio Services, and the Parties shall negotiate in good faith an amendment to the applicable Schedule to reflect any such new arrangement.

(c)    In the event that there are any costs associated with obtaining software licenses in accordance with this Section  3.01 that (i) would not be payable in the ordinary course, including in the form of a “transfer fee” or other similar fees or expenses payable by the Recipient or the Provider and (ii) would not have been payable by the Recipient or the Provider absent the need for a consent or waiver in connection with the license that the Recipient is seeking to obtain, such costs shall be borne by the Recipient.

Section 3.02.     Access to Facilities . (a) Entercom shall, and shall cause other members of the Entercom Group to, allow CBS and its Representatives reasonable access to the facilities of the Entercom Group necessary for CBS to fulfill its obligations under this Agreement.

 

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(b)    CBS shall, and shall cause its Subsidiaries to, allow Entercom and its Representatives reasonable access to the facilities of the CBS Group necessary for Entercom to fulfill its obligations under this Agreement.

(c)    Notwithstanding the other rights of access of the Parties under this Agreement, each Party shall, and shall cause its Subsidiaries to, afford the other Party, its Subsidiaries and Representatives, following not less than five (5) business days’ prior written notice from the other Party, reasonable access during normal business hours to the facilities, information, systems, infrastructure and personnel of the relevant Providers as reasonably necessary for the other Party to verify the adequacy of internal controls over information technology, reporting of financial data and related processes employed in connection with the Services, including in connection with verifying compliance with Section 404 of the Sarbanes-Oxley Act of 2002; provided , however , such access shall not unreasonably interfere with any of the business or operations of such Party or its Subsidiaries.

(d)    Except as otherwise permitted by the other Party in writing, each Party shall permit only its authorized Representatives, contractors, invitees or licensees to access the other Party’s facilities.

(e)    Unless otherwise agreed to in writing by the Parties, each Party will: (i) use the facilities of the other Party solely for the purpose of providing or receiving the Services, as applicable, and not to provide goods or services to or for the benefit of any third party or for any unlawful purpose; (ii) comply with all reasonable policies and procedures governing access to and use of the other Party’s facilities made known to the accessing Party in advance, including, without limitation, all reasonable security requirements applicable to accessing the facilities and any systems, technologies, or assets of Buyer; (iii) instruct its Representatives, when visiting the other Party’s facilities, not to photograph or record, duplicate, remove, disclose, or transmit to a third party any of the other Party’s information, except as necessary to perform the Services; and (iv) return such space to the other Party in the same condition it was in prior to the accessing Party’s use of such space, ordinary wear and tear excepted.

Section 3.03.     Cooperation ; Cutover .

(a)    It is understood that it will require the significant efforts of both Parties to implement this Agreement and to ensure performance of this Agreement by the Parties at the agreed-upon levels in accordance with all of the terms and conditions of this Agreement. The Parties will cooperate, acting in good faith and using commercially reasonable efforts, to effect a smooth and orderly transition of the Services provided under this Agreement from the Provider to the Recipient (including repairs and maintenance Services and the assignment or transfer of the rights and obligations under any third-party contracts relating to the Services); provided , however , that this Section  3.03 shall not require either Party to incur any out-of-pocket costs or expenses unless reimbursed by the other Party.

(b)    Recipient shall be responsible for planning and preparing for the transition to its own internal organization or other third-party service providers the provision of all of the Services in a timely manner, such transition to be completed by the end of the Term (the “ Cutover ”). At Recipient’s request, Provider shall meet with Recipient upon reasonable notice

 

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and at a mutually agreeable time, following such request to assist Recipient with the initial development of a plan for Cutover (the “ Cutover Plan ”) and shall, in good faith, provide Recipient with all information in the possession of Provider related to the Services reasonably requested by the Recipient that is necessary for the development and implementation of the Cutover Plan. Recipient shall prepare a Cutover Plan with sufficient lead time in order to achieve a timely Cutover. Once the Cutover Plan is prepared, Recipient shall promptly provide Provider a copy of the Cutover Plan, and Provider shall use commercially reasonable efforts to cooperate in implementing the Cutover Plan, subject to the terms and conditions of this Agreement, the Separation Agreement, any other Ancillary Agreement or any other applicable agreement.

Section 3.04.     Data Protection; System Security .

(a)    The Provider shall only process personal data which it may receive from the Recipient, while carrying out its duties under this Agreement, (i) in such a manner as is necessary to carry out those duties, (ii) in accordance with the instructions of the Recipient, (iii) using appropriate technical and organizational measures to prevent the unauthorized or unlawful processing of such personal data and/or the accidental loss or destruction of, or damage to, such personal data and (iv) in compliance with all applicable Laws.

(b)    The Provider will maintain and enforce physical, technical and logical security procedures with respect to the access and maintenance of any Confidential Information of the Recipient that is in the Provider’s possession in performing the Services, which procedures shall: (i) be in full compliance with applicable Law and (ii) conform with the Provider’s information security policies. With respect to any Provider systems that are used to store or process data or other information of Recipient, Provider shall maintain and implement the same backup, redundancy, and disaster avoidance and recovery policies and procedures as Provider does with respect to the systems it uses to store or process its own data and information. In the event there is a material security breach which could reasonably be expected to have resulted in unauthorized access to, or alteration, destruction or corruption of, any data or information of Recipient, Provider will notify Recipient of such breach immediately. The Provider will use diligent efforts to remedy such breach of security or unauthorized access in a timely manner.

ARTICLE IV

COSTS AND DISBURSEMENTS

Section 4.01.     Costs and Disbursements . (a) Except as otherwise provided in this Agreement, a Recipient of Services shall pay to the Provider of such Services a monthly fee for the Services (or category of Services, as applicable) (each fee constituting a “ Service Charge ” and, collectively, “ Service Charges ”) as listed on the Schedules hereto; provided that Entercom shall have a credit of $7,500,000 (the “ Services Credit ”), which credit shall be applied to the first $7,500,000 of Service Charges invoiced by CBS hereunder and provided , further , that the Services Credit shall expire one year after the Effective Time (the “Credit Termination Date”) and Entercom shall not be permitted to apply any of the Services Credit to any services invoiced by CBS to Entercom after the Credit Termination Date; and accordingly, Entercom shall have no obligation to pay any Service Charges until the aggregate Service Charges invoice exceeds $7,500,000. Subject to Section 4.01(b), the Service Charges shall be no greater than the transfer

 

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pricing or other internal cost allocation utilized by CBS for the Radio Services and the CBS Services prior to the Separation, as disclosed by CBS to Entercom prior to the execution of the Merger Agreement.

(b)    During the term of this Agreement, the amount of a Service Charge for any Services (or category of Services, as applicable) may increase to the extent of: (i) any increases mutually agreed to by the Parties, (ii) any Service Charges applicable to any Additional Services, Service Increases or New Services and (iii) any increase in the rates or charges imposed by any unaffiliated third-party provider that is providing Services, provided that, Provider shall provide Recipient with as much advance notice as is reasonably possible of any such increases imposed by a third-party provider. Together with any monthly invoice for Service Charges and Reimbursement Charges, the Provider shall provide the Recipient with documentation to support the calculation of such Service Charges or any Reimbursement Charges.

(c)    The Recipient shall reimburse the Provider for reasonable unaffiliated third-party out-of-pocket costs and expenses incurred by the Provider or its Affiliates in connection with providing the Services (including necessary travel-related expenses) (each such cost or expense, a “ Reimbursement Charge ” and, collectively, “ Reimbursement Charges ”); provided , however , that any such cost or expense that is materially inconsistent with historical practice between the Parties for any Service (including business travel and related expenses) shall require advance approval of the Recipient. Any authorized travel-related expenses incurred in performing the Services shall be incurred and charged to the Recipient in accordance with the Provider’s then-applicable business travel policies made known to the Recipient.

(d)    The Service Charges and Reimbursement Charges due and payable hereunder shall be invoiced and paid in U.S. dollars. The Recipient shall pay the amount of each monthly invoice by wire transfer (or such other method of payment as may be agreed between the Parties) to the Provider within sixty (60) days of the receipt of each such invoice, including appropriate documentation as described herein. In the absence of a timely notice of billing dispute in accordance with the provisions of Article VII of the Separation Agreement, if the Recipient fails to pay such amount by the due date, the Recipient shall be obligated to pay to the Provider, in addition to the amount due, interest at an annual default interest rate of three percent (3%), or the maximum legal rate, whichever is lower (the “ Interest Payment ”), accruing from the date the payment was due through the date of actual payment. In the event of any billing dispute, the Recipient shall promptly pay any undisputed amount.

(e)    Subject to the confidentiality provisions set forth in Section  8.03 , each Party shall, and shall cause their respective Affiliates to, provide, upon ten (10) days’ prior written notice from the other Party, any information within such Party’s or its Affiliates’ possession that the requesting Party reasonably requests in connection with any Services being provided to such requesting Party by an unaffiliated third-party provider, including any applicable invoices, agreements documenting the arrangements between such third-party provider and the Provider and other supporting documentation.

Section 4.02.     Tax Matters . (a) Without limiting any provisions of this Agreement, the Recipient shall be responsible for and shall promptly pay (i) all excise, sales, use, transfer, stamp, documentary, filing, recordation and other similar Taxes and (ii) any related interest and

 

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penalties, excluding in each case any Taxes imposed on or measured by income (collectively, “ Non-Income Taxes ”), in each case imposed or assessed as a result of the provision of Services by the Provider. Upon the written request of the Provider, the Recipient shall submit evidence of payment of such Non-Income Taxes to the relevant Governmental Authority. The Provider agrees that it shall take commercially reasonable actions to cooperate with the Recipient in obtaining any refund, return, rebate or the like of any Non-Income Tax, including by filing any necessary exemption or other similar forms, certificates or other similar documents. The Recipient shall promptly reimburse the Provider for any unaffiliated third-party out-of-pocket costs incurred by the Provider or its Affiliates in connection with the Recipient obtaining a refund or overpayment of refund, return, rebate or the like of any Non-Income Tax. For the avoidance of doubt, any applicable income-based Taxes measured by or imposed on the income of the Provider that are imposed or assessed as a result of the provision of Services by the Provider shall be borne by the Provider, unless the Provider is required by law to obtain reimbursement of such Taxes from the Recipient.

(b)    The Recipient shall be entitled to deduct and withhold Taxes required by any applicable law to be withheld on payments made pursuant to this Agreement. To the extent any amounts are so withheld, the Recipient shall (i) pay, in addition to the amount otherwise due to the Provider under this Agreement, such additional amount as is necessary to ensure that the net amount actually received by the Provider will equal the full amount the Provider would have received had no such deduction or withholding been required, (ii) pay when due such deducted and withheld amount to the proper Governmental Authority and (iii) promptly provide to the Provider evidence of such payment to such Governmental Authority. The Provider shall, prior to the date of any payment to be made pursuant to this Agreement, at the request of the Recipient, make commercially reasonable efforts to provide the Recipient any certificate or other documentary evidence (x) required by applicable law or (y) which the Provider is entitled by applicable law to provide in order to reduce the amount of any Taxes that may be deducted or withheld from such payment, and the Recipient agrees to accept and act in reliance on any such duly and properly executed certificate or other applicable documentary evidence.

(c)    If the Provider (i) receives any refund (whether by payment, offset, credit or otherwise) or (ii) utilizes any overpayment of Taxes that are borne by Recipient pursuant to this Agreement, then the Provider shall promptly pay, or cause to be paid, to the Recipient an amount equal to the deficiency or excess, as the case may be, with respect to the amount that the Recipient has borne if the amount of such refund or overpayment (including, for the avoidance of doubt, any interest or other amounts received with respect to such refund or overpayment) had been included originally in the determination of the amounts to be borne by Recipient pursuant to this Agreement, net of any additional Taxes the Provider incurs or will incur as a result of the receipt of such refund or such overpayment.

Section 4.03.     No Right to Set-Off . Subject to Section 4.02(b), the Recipient shall timely pay the full amount of Service Charges and Reimbursement Charges and shall not set-off, counterclaim or otherwise withhold any amount owed to the Provider under this Agreement on account of any obligation owed by the Provider to the Recipient.

 

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ARTICLE V

STANDARD FOR SERVICE

Section 5.01.     Standard for Service .

(a)    The Provider agrees to perform the Services in a good and workman-like manner, in compliance with all applicable Laws, and with substantially the same nature, quality, standard of care and service levels at which the same or similar services were performed by or on behalf of the Provider during the one-year period prior to the Separation or, if not so previously provided, then substantially similar to that which are applicable to similar services provided to the Provider’s Affiliates or other business components. Subject to Section 7.03, the Provider agrees to respond to any outage, interruption or other failure of which it is aware of a Service in a manner that is substantially similar to the manner in which such Provider or its Affiliates responded to any outage, interruption or other failure of the same or similar services during the one-year period prior to the Separation.

(b)    Nothing in this Agreement shall require the Provider to perform or cause to be performed any Service to the extent the manner of such performance would constitute a violation of applicable Law or any existing contract or agreement with a third party. If the Provider is or becomes aware of any potential violation on the part of the Provider, the Provider shall promptly send a written notice to the Recipient of any such potential violation. The Parties each agree to cooperate and use commercially reasonable efforts to obtain any necessary third-party consents required under any existing contract or agreement with a third party to allow the Provider to perform or cause to be performed any Service in accordance with the standards set forth in this Section  5.01 . Any out-of-pocket costs and expenses incurred by either Party in connection with obtaining any such third-party consent that is required to allow the Provider to perform or cause to be performed any Service shall be solely the responsibility of the Recipient. If, with respect to a Service, the Parties, despite the use of such commercially reasonable efforts, are unable to obtain a required third-party consent, or the performance of such Service by the Provider would continue to constitute a violation of applicable Laws, the Provider shall use commercially reasonable efforts in good faith to provide such Services in a manner as closely as possible to the standards described in this Section  5.01 that would apply absent the exception provided for in the first sentence of this Section  5.01(b) .

Section 5.02.     Disclaimer of Warranties . EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, THE PARTIES ACKNOWLEDGE AND AGREE THAT THE SERVICES ARE PROVIDED AS-IS, THAT EACH RECIPIENT ASSUMES ALL RISKS AND LIABILITY ARISING FROM OR RELATING TO ITS USE OF AND RELIANCE UPON THE SERVICES, AND EACH PROVIDER, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, MAKES NO REPRESENTATION OR WARRANTY WITH RESPECT THERETO. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, EACH PROVIDER HEREBY EXPRESSLY DISCLAIMS ALL REPRESENTATIONS AND WARRANTIES REGARDING THE SERVICES, WHETHER EXPRESS OR IMPLIED, EITHER IN FACT OR BY OPERATION OF LAW, BY STATUTE OR OTHERWISE, INCLUDING ANY REPRESENTATION OR WARRANTY IN REGARD TO QUALITY, PERFORMANCE, NONINFRINGEMENT, COMMERCIAL UTILITY, MERCHANTABILITY OR FITNESS OF ANY SERVICE FOR A PARTICULAR PURPOSE.

 

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Section 5.03.     Compliance with Laws and Regulations . Each Party shall be responsible for its own compliance and its subcontractors’ compliance with any and all Laws applicable to its performance under this Agreement. No Party will knowingly take any action in violation of any such applicable Law that results in liability being imposed on the other Party.

ARTICLE VI

LIMITED LIABILITY AND INDEMNIFICATION

Section 6.01.     Consequential and Other Damages . Notwithstanding anything to the contrary contained in the Separation Agreement or this Agreement, except with respect to a Party’s gross negligence or willful misconduct, neither Party shall be liable to the other Party or any of the other Party’s Affiliates or Representatives, whether in contract, tort (including negligence and strict liability) or otherwise, at law or equity, for any special, indirect, incidental, punitive or consequential damages whatsoever (including lost profits or damages calculated on multiples of earnings approaches), which in any way arise out of, relate to or are a consequence of, its performance or nonperformance (or the performance or nonperformance of any of its Affiliates, Representatives and any unaffiliated third-party providers, in each case, performing obligations hereunder) under this Agreement or the provision of, or failure to provide, any Services under this Agreement, including with respect to loss of profits, business interruptions or claims of customers.

Section 6.02.     Limitation of Liability . Except with respect to liabilities arising from gross negligence or willful misconduct, the liabilities of each Provider and its Affiliates and Representatives, collectively, under this Agreement for any act or failure to act in connection herewith (including the performance or breach of this Agreement), or from the sale, delivery, provision or use of any Services provided under or contemplated by this Agreement, whether in contract, tort (including negligence and strict liability) or otherwise, at law or equity, shall not exceed the total aggregate Service Charges (excluding any Reimbursement Charges) actually paid to such Provider by the Recipient pursuant to this Agreement. The foregoing limitations on liability in this Section  6.02 shall not apply to any breach of Section  8.03 and shall not limit any obligation to re-perform as set forth in Section 6.03. This Section  6.02 shall survive any termination of this Agreement.

Section 6.03.     Obligation To Re-perform; Liabilities . In the event of any breach of this Agreement by any Provider with respect to the provision of any Services (with respect to which the Provider can reasonably be expected to re-perform in a commercially reasonable manner), the Provider shall (a) promptly correct in all material respects such error, defect or breach or re-perform in all material respects such Services in accordance with this Agreement at the request of the Recipient and at the sole cost and expense of the Provider and (b) subject to the limitations set forth in Sections 6.01 and 6.02 , reimburse the Recipient and its Affiliates and Representatives for damages suffered by Recipient and its Affiliates that are attributable to such breach by the Provider. The remedy set forth in this Section 6.03 shall be the sole and exclusive remedy of the Recipient for any such breach of this Agreement. Any request for re-performance in accordance with this Section  6.03 by the Recipient must be in writing and specify in reasonable detail the

 

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particular error, defect or breach, and such request must be made no more than one (1) month from the date such error, defect or breach becomes apparent or should have reasonably become apparent to the Recipient. This Section 6.03 shall survive any termination of this Agreement.

Section 6.04.     Release and Recipient Indemnity . Subject to Section 6.01, each Recipient hereby releases the applicable Provider and its Affiliates and Representatives (each, a “Provider Indemnified Party”), and each Recipient hereby agrees to indemnify, defend and hold harmless each such Provider Indemnified Party from and against any and all liabilities arising from, relating to or in connection with: (a) the use of any Services by such Recipient or any of its Affiliates, Representatives or other Persons using such Services; or (b) the sale, delivery, provision or use of any Services provided under or contemplated by this Agreement, in the case of each of clause (a) and (b), except to the extent that such liabilities arise out of, relate to or are a consequence of the applicable Provider Indemnified Party’s (i) bad faith, gross negligence or willful misconduct or (ii) breach of this Agreement.

Section 6.05.     Provider Indemnity . Subject to Section 6.01, each Provider hereby agrees to indemnify, defend and hold harmless the applicable Recipient and its Affiliates and Representatives (each, a “Recipient Indemnified Party”), from and against any and all liabilities arising from, relating to or in connection with: (a) the use of any Services by such Recipient or any of its Affiliates, Representatives or other Persons using such Services; or (b) the sale, delivery, provision or use of any Services provided under or contemplated by this Agreement, in the case of each of clause (a) and (b), to the extent that such liabilities arise out of, relate to or are a consequence of the applicable Provider’s (i) bad faith, gross negligence or willful misconduct or (ii) breach of this Agreement.

Section 6.06.     Indemnification Procedures . The provisions of Article VI of the Separation Agreement shall govern claims for indemnification under this Agreement.

Section 6.07.     Liability for Payment Obligations . Nothing in this Article VI shall be deemed to eliminate or limit, in any respect, CBS’s or Entercom’s express obligation in this Agreement to pay Service Charges and Reimbursement Charges for Services rendered in accordance with this Agreement.

Section 6.08.     Exclusion of Other Remedies . The provisions of Sections 6.03, 6.04 and 6.05 of this Agreement shall, to the maximum extent permitted by applicable Law, be the sole and exclusive remedies of the Provider Indemnified Parties and the Recipient Indemnified Parties, as applicable, for any claim, loss, damage, expense or liability, whether arising from statute, principle of common or civil law, principles of strict liability, tort, contract or otherwise under this Agreement, except as set forth in Section 8.03.

Section 6.09.     Confirmation . Neither Party excludes responsibility for any liability which cannot be excluded pursuant to applicable Law.

 

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ARTICLE VII

TERM AND TERMINATION

Section 7.01.     Term and Termination . (a) This Agreement shall commence immediately after the Effective Time and shall terminate upon the earlier to occur of: (i) the last date on which either Party is obligated to provide any Service to the other Party in accordance with the terms of this Agreement or (ii) the mutual written agreement of the Parties to terminate this Agreement in its entirety.

(b)    Either Party may terminate this Agreement in its entirety, or from time to time with respect to the entirety of any individual Service, in its sole discretion, in the event of any Change of Control of Entercom, upon providing at least twenty (20) days’ prior written notice.

(c)    Without prejudice to a Recipient’s rights with respect to a Force Majeure, a Recipient may from time to time terminate this Agreement with respect to the entirety of any individual Service but not a portion thereof:

(i)    for any reason or no reason, upon providing at least sixty (60) days’ prior written notice to the Provider; provided , however , that the Recipient shall pay to the Provider the necessary and reasonable documented out-of-pocket costs incurred by Provider solely as a result of the early termination of such Service other than any employee severance and relocation expenses, but including sunken costs for the provision of the applicable Service which cannot be recovered, non-terminable contractual obligations under agreements used to provide such Service, any breakage or termination fees and any other termination costs payable by the Provider with respect to any resources or pursuant to any other third-party agreements that were used by the Provider to provide such Service (or an equitably allocated portion thereof, in the case of any such equipment, resources or agreements that also were used for purposes other than providing Services); provided , further , that Provider shall notify Recipient of all such costs prior to termination, and Recipient is given the option of rescinding the termination notice for a period of two (2) days following receipt of notice of such costs; or

(ii)    if the Provider of such Service has failed to perform any of its material obligations under this Agreement with respect to such Service, and such failure shall continue to exist twenty (20) days after receipt by the Provider of written notice of such failure from the Recipient.

In the event that any Service is terminated other than at the end of a month, the Service Charge associated with such Service shall be pro-rated appropriately. The Parties acknowledge that there may be interdependencies among the Services being provided under this Agreement that may not be identified on the applicable Schedules and agree that, if the Provider’s ability to provide a particular Service in accordance with this Agreement is materially and adversely affected by the termination of another Service in accordance with Section 7.01(c)(i) , then the Parties shall negotiate in good faith to amend the Schedule relating to such affected continuing Service, which amendment shall be consistent with the terms of, and the pricing methodology used for, comparable Services.

 

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(d)    In connection with the termination of any Service, if the Recipient reasonably determines that it will require such Service to continue beyond the date on which such Service is scheduled to terminate, the Recipient may extend such Service (any such extension, a “ Service Extension ”) for a specified period beyond the scheduled termination of such Service (which period (i) shall in no event be longer than one (1) year and (ii) shall in no event terminate later than two (2) years after the date of the Final Distribution) by written notice to the Provider no less than thirty (30) days prior to the date of such scheduled termination on the same terms and conditions as such Service was provided prior to the Service Extension, provided that the Parties agree to negotiate any changes to such terms or conditions in good faith if so requested by a Party; provided, however; that (i) there shall be no more than one (1) Service Extension with respect to each Service and (ii) the Provider shall not be obligated to provide such Service Extension if a third-party consent is required and cannot be obtained by the Provider. Unless otherwise agreed to by Provider and Recipient, for the first ninety (90) days of a Service Extension, the Service Charge applicable to any such Service Extension shall be one hundred and ten percent (110%) of the Service Charge applicable to such Service immediately prior to the Service Extension and after the first ninety (90) days of a Service Extension, the Service Charge applicable to any such Service Extension shall be one hundred and twenty percent (120%) of the Service Charge applicable to such Service immediately prior to the Service Extension; provided, however, that there shall be no increase in Service Charges for any Service Extension if the failure of the Recipient to achieve a timely Cutover with respect to such Service resulted from the Provider’s breach of Section 3.03. In connection with any request for Service Extensions in accordance with this Section 7.01(d), the CBS Services Manager and the Radio Services Manager shall in good faith (x) negotiate the terms of an amendment to the applicable Schedule, which amendment shall be consistent with the terms of the applicable Service, and (y) determine the costs and expenses (other than Service Charges), if any, that would be incurred by the Provider or the Recipient, as the case may be, in connection with the provision of such Service Extension, which costs and expenses shall be borne solely by the Party requesting the Service Extension. Each amended Schedule to implement a Service Extension, as agreed to in writing by the Parties, shall be deemed part of this Agreement as of the date of such agreement and any Services provided pursuant to such Service Extensions shall be deemed “Services” provided under this Agreement, in each case subject to the terms and conditions of this Agreement.

Section 7.02.     Effect of Termination . Upon termination of any Service pursuant to this Agreement, the Provider of the terminated Service will have no further obligation to provide the terminated Service, and the relevant Recipient will have no obligation to pay any future Service Charges relating to any such Service; provided , however , that the Recipient shall remain obligated to the relevant Provider for the (i) Service Charges and Reimbursement Charges owed and payable in respect of Services provided prior to the effective date of termination and (ii) any applicable charges described in Section 7.01(c)(i), which charges shall be payable only in the event that the Recipient terminates any Service pursuant to Section 7.01(c)(i). In connection with the termination of any Service, the provisions of this Agreement not relating solely to such terminated Service shall survive any such termination, and in connection with a termination of this Agreement, Article I , Article VI (including liability in respect of any indemnifiable liabilities under this Agreement arising or occurring on or prior to the date of termination), Article VII , Article VIII and all confidentiality obligations under this Agreement and liability for all due and unpaid Service Charges and Reimbursement Charges and any applicable charges payable pursuant to Section 7.01(c)(i), shall continue to survive indefinitely. For the avoidance of doubt, termination of any Service pursuant to this Agreement will not affect the rights and obligations of the Parties with respect to any Common Agreements under the Separation Agreement.

 

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Section 7.03.     Force Majeure . (a) Neither Party (nor any Person acting on its behalf) shall 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 obligation is prevented, frustrated, hindered or delayed as a consequence of a Force Majeure; provided , however , that (i) such Party (or such Person) shall have exercised commercially reasonable efforts to minimize the effect of such Force Majeure on its obligations and, to the extent and as soon as possible and commercially reasonable, to remove such Force Majeure; and (ii) the nature, quality and standard of care that the Provider shall provide in delivering a Service after a Force Majeure shall be substantially the same as the nature, quality and standard of care that the Provider provides to its Affiliates with respect to such Service. In the event of an occurrence of a Force Majeure, the Party whose performance is affected thereby shall give notice of suspension as soon as reasonably practicable to the other stating the date and extent of such suspension and the cause thereof, and such Party shall resume the performance of such obligations as soon as reasonably practicable after the removal of such cause.

(b)    During the period of a Force Majeure, the Recipient shall be entitled to permanently terminate such Service(s) (and shall be relieved of the obligation to pay Service Charges for such Services(s) throughout the duration of such Force Majeure) if a Force Majeure shall continue to exist for more than fifteen (15) consecutive days, it being understood that Recipient shall not be required to provide any advance notice of such termination to Provider or pay any charges in connection therewith.

ARTICLE VIII

GENERAL PROVISIONS

Section 8.01.     No Agency . Nothing in this Agreement shall be deemed in any way or for any purpose to constitute any Party as an agent of an unaffiliated party in the conduct of such other party’s business. A Provider of any Service under this Agreement shall act as an independent contractor and not as the agent of the Recipient in performing such Service, maintaining control over its employees, its subcontractors and their employees and complying with all withholding of income at source requirements, whether federal, national, state, local or foreign.

Section 8.02.     Subcontractors . A Provider may hire or engage one or more subcontractors to perform any or all of its obligations under this Agreement; provided , however , that (i) such Provider shall use the same degree of care in selecting any such subcontractor as it would if such contractor was being retained to provide similar services to the Provider and (ii) such Provider shall in all cases remain primarily responsible for all of its obligations under this Agreement with respect to the scope of the Services, the standard for services as set forth in Article V and the content of the Services provided to the Recipient.

 

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Section 8.03.     Treatment of Confidential Information .

(a)    The Parties shall not, and shall cause all other Persons providing Services or having access to information of the other Party that is confidential or proprietary (“ Confidential Information ”) not to, disclose to any other Person or use, except for purposes of this Agreement, any Confidential Information of the other Party; provided , however , that the Confidential Information may be used by such Party to the extent that such Confidential Information has been (i) in the public domain through no fault of such Party or any member of such Group or any of their respective Representatives, (ii) later lawfully acquired from other sources by such Party (or any member of such Party’s Group) which sources are not themselves bound by a confidentiality obligation, or (iii) independently generated without reference to any Confidential Information of the other Party; provided , further , that each Party may disclose Confidential Information of the other Party, to the extent not prohibited by applicable Law: (i) to its Representatives on a need-to-know basis in connection with the performance of such Party’s obligations under this Agreement; (ii) in any report, statement, testimony or other submission required to be made to any Governmental Authority having jurisdiction over the disclosing Party; or (iii) in order to comply with applicable Law, or in response to any summons, subpoena or other legal process or formal or informal investigative demand issued to the disclosing Party in the course of any litigation, investigation or administrative proceeding. In the event that a Party becomes legally compelled (based on advice of counsel) by deposition, interrogatory, request for documents subpoena, civil investigative demand or similar judicial or administrative process to disclose any Confidential Information of the other Party, such disclosing Party shall provide the other Party with prompt prior written notice of such requirement, and, to the extent reasonably practicable, cooperate with the other Party (at such other Party’s expense) to obtain a protective order or similar remedy to cause such Confidential Information not to be disclosed, including interposing all available objections thereto, such as objections based on settlement privilege. In the event that such protective order or other similar remedy is not obtained, the disclosing Party shall furnish only that portion of the Confidential Information that has been legally compelled, and shall exercise its commercially reasonable efforts (at such other Party’s expense) to obtain assurance that confidential treatment will be accorded such Confidential Information.

(b)    Each Party shall, and shall cause its Representatives to, protect the Confidential Information of the other Party by using the same degree of care to prevent the unauthorized disclosure of such as the Party uses to protect its own confidential information of a like nature, but in any event no less than a reasonable degree of care.

(c)    Each Party shall be liable for any failure by its respective Representatives to comply with the restrictions on use and disclosure of Confidential Information contained in this Agreement.

(d)    Each Party shall comply with all applicable local, state, national, federal and foreign privacy and data protection Laws that are or that may in the future be applicable to the provision of Services under this Agreement.

Section 8.04.     Further Assurances . Each Party covenants and agrees that, without any additional consideration, it shall execute and deliver any further legal instruments and perform any acts that are or may become necessary to effectuate this Agreement.

 

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Section 8.05.     Dispute Resolution . Any Dispute shall be resolved in accordance with the procedures set forth in Article VII of the Separation Agreement, which shall be the sole and exclusive procedures for the resolution of any such Dispute unless otherwise specified herein or in Article VII of the Separation Agreement.

Section 8.06.     Notices . Except with respect to routine communications by the CBS Services Manager, Radio Services Manager, CBS Local Services Manager and Radio Local Service Manager under Section  2.06 , all notices, requests, claims, demands and other communications under this Agreement shall be in writing and shall be given or made (and shall be deemed to have been duly given or made upon receipt) by delivery in person, by overnight courier service, by facsimile or electronic transmission 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 shall be specified in a notice given in accordance with this Section  8.06 ):

 

(i)   if to CBS:
  CBS Corporation
  51 West 52nd Street
  New York, New York 10019
  Attn: Chief Legal Officer
(ii)   if to Entercom:
  Entercom Communications Corp.
  401 E. City Avenue, Suite 809
  Bala Cynwyd, PA 19004
  Attention: Andrew P. Sutor, IV,
                   Executive Vice President and General Counsel

Section 8.07.     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 shall nevertheless remain in full force and effect so long as the economic or legal substance of the transactions contemplated by this Agreement is not affected in any manner materially adverse to any Party. Upon such determination that any term or other provision is invalid, illegal or incapable of being enforced, the Parties shall negotiate in good faith to modify this Agreement so as to effect the original intent of the Parties 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 8.08.     Entire Agreement . This Agreement, together with the documents referenced herein (including the Separation Agreement and any other Ancillary Agreements) constitutes the entire agreement between the Parties with respect to the subject matter hereof, supersede all prior written and oral and all contemporaneous oral agreements, negotiations, discussions, writings, understandings, commitments and conversations with respect to such subject matter and there are no agreements or understandings between the Parties other than those set forth or referred to herein or therein.

 

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Section 8.09.     No Third-Party Beneficiaries . Except as provided in Article VI with respect to Provider Indemnified Parties and Recipient Indemnified Parties, this Agreement is for the sole benefit of the Parties and their permitted successors and assigns and nothing in this Agreement, express or implied, is intended to or shall confer upon any other Person, including any union or any employee or former employee of CBS or Entercom, any legal or equitable right, benefit or remedy of any nature whatsoever, including any rights of employment for any specified period, under or by reason of this Agreement.

Section 8.10.     Governing Law . This Agreement (and any claims or disputes arising out of or related to this Agreement or to the transactions contemplated by this Agreement or to the inducement of any Party to enter into this Agreement or the transactions contemplated by this Agreement, whether for breach of contract, tortious conduct or otherwise and whether predicated on common law, statute or otherwise) shall in all respects be governed by, and construed in accordance with, the Laws of the State of New York, including all matters of construction, validity and performance, in each case without reference to any conflict of Law rules that might lead to the application of the Laws of any other jurisdiction (other than Section 5-1401 and Section  5-1402 of the General Obligations Law of the State of New York).

Section 8.11.      Amendment . No provision of this Agreement, including any Schedules to this Agreement, may be amended, supplemented or modified except by a written instrument making specific reference to this Agreement or any such Schedules to this Agreement, as applicable, signed by all the Parties.

Section 8.12.     Rules of Construction . Interpretation of this Agreement shall be governed by the following rules of construction: (a) words in the singular shall be held to include the plural and vice versa, and words of one gender shall be held to include the other gender as the context requires; (b) references to the terms Article, Section, paragraph and Schedules are references to the Articles, Sections, paragraphs and Schedules of this Agreement unless otherwise specified; (c) references to “$” shall mean U.S. dollars; (d) the word “including” and words of similar import when used in this Agreement shall mean “including without limitation,” unless otherwise specified; (e) the word “or” shall not be exclusive; (f) references to “written” or “in writing” include in electronic form; (g) provisions shall apply, when appropriate, to successive events and transactions; (h) the headings contained in this Agreement are for reference purposes only and shall not affect in any way the meaning or interpretation of this Agreement; (i) CBS and Entercom have each participated in the negotiation and drafting of this Agreement and if an ambiguity or question of interpretation should arise, this Agreement shall be construed as if drafted jointly by the Parties and no presumption or burden of proof shall arise favoring or burdening either Party by virtue of the authorship of any of the provisions in this Agreement or any interim drafts of this Agreement; (j) a reference to any Person includes such Person’s successors and permitted assigns; (k) any reference to “days” means calendar days unless business days are expressly specified; and (l) when calculating the period of time before which, within which or following which any act is to be done or step taken pursuant to this Agreement, the date that is the reference date in calculating such period shall be excluded, and if the last day of such period is not a business day, the period shall end on the next succeeding business day.

 

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Section 8.13.     Counterparts . This Agreement may be executed in one or more counterparts, and by each Party in separate counterparts, each of which when executed shall be deemed to be an original but all of which taken together shall constitute one and the same agreement. Delivery of an executed counterpart of a signature page to this Agreement by facsimile or portable document format (PDF) shall be as effective as delivery of a manually executed counterpart of this Agreement.

Section 8.14.     Assignability . Without prejudice to Section 7.01(b), this Agreement shall be binding upon and inure to the benefit of the Parties and their respective successors and permitted assigns. For the purposes of this Agreement, a “successor” shall include any entity that is a legal successor to either Party as a result of a sale or acquisition of such Party, whether by merger, consolidation, reorganization, recapitalization or sale of all or substantially all of such Party’s assets or stock. Except (i) for any assignment (including by operation of law) to a Party’s successor (without prejudice to Section 7.01(b)) or (ii) as explicitly set forth herein, this Agreement shall not be assigned without the prior written consent of CBS and Entercom; provided, that each Party may:

(a)    assign all of its rights and obligations under this Agreement to any of its Subsidiaries; provided that, in connection with any such assignment, the assigning Party provides a guarantee to the non-assigning Party (in a form reasonably agreed upon) for any liability or obligation of the assignee under this Agreement;

(b)    in connection with the divestiture of any Subsidiary or business of such Party that is a Recipient to an acquirer that is not a competitor of the Provider, assign to the acquirer of such Subsidiary or business its rights and obligations as a Recipient with respect to the Services provided to such divested Subsidiary or business under this Agreement; provided that (i) in connection with any such assignment, the assigning Party provides a guarantee to the non-assigning Party (in a form reasonably agreed upon) for any liability or obligation of the assignee under this Agreement, (ii) any and all costs and expenses incurred by either Party in connection with such assignment (including in connection with clause (iii) of this proviso) shall be borne solely by the assigning Party, and (iii) the Parties shall in good faith negotiate any amendments to this Agreement, including the Schedules hereto, that may be necessary or appropriate in order to assign such Services; and

(c)    in connection with the divestiture of any Subsidiary or business of such Party that is a Recipient to an acquirer that is a competitor of the Provider, assign to the acquirer of such Subsidiary or business its rights and obligations as a Recipient with respect to the Services provided to such divested Subsidiary or business under this Agreement; provided that (i) in connection with any such assignment, the assigning Party provides a guarantee to the non-assigning Party (in a form reasonably agreed upon) for any liability or obligation of the assignee under this Agreement, (ii) any and all costs and expenses incurred by either Party in connection with such assignment (including in connection with clause (iii) of this proviso) shall be borne solely by the assigning Party, (iii) the Parties shall in good faith negotiate any amendments to this Agreement, including the Schedules hereto, that may be necessary or appropriate in order to

 

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ensure that such assignment will not (x) materially and adversely affect the businesses and operations of each of the Parties and their respective Affiliates or (y) create a competitive disadvantage for the Provider with respect to an acquirer that is a competitor, and (iv) no Party shall be obligated to provide any such assigned Services to an acquirer that is a competitor if the provision of such assigned Services to such acquirer would disrupt the operation of such Party’s businesses or create a competitive disadvantage for such Party with respect to such acquirer.

Section 8.15.     Public Announcements . From and after the Separation, the Parties shall consult with each other before issuing, and give each other the opportunity to review and comment upon, that portion of any press release or other public statements that relates to the transactions contemplated by this Agreement, and shall not issue any such press release or make any such public statement prior to such consultation, except (a) as may be required by applicable Law, court process or by obligations pursuant to any listing agreement with any national securities exchange or national securities quotation system; or (b)  as otherwise set forth in the Separation Agreement.

Section 8.16.     Non-Recourse . No past, present or future director, officer, employee, incorporator, member, partner, shareholder, Affiliate, agent, attorney or representative of either CBS or Entercom or their Affiliates shall have any liability for any obligations or liabilities of CBS or Entercom, respectively, under this Agreement or for any claims based on, in respect of, or by reason of, the transactions contemplated by this Agreement.

[The remainder of this page is intentionally left blank.]

 

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IN WITNESS WHEREOF, the Parties have caused this Agreement to be executed on the date first written above by their respective duly authorized officers.

 

CBS CORPORATION
By:  

/s/ Joseph R. Ianniello

  Name: Joseph R. Ianniello
  Title:   Chief Operating Officer
ENTERCOM COMMUNICATIONS CORP.
By:  

/s/ Andrew P. Sutor, IV

  Name: Andrew P. Sutor, IV
  Title:   Executive Vice President

Exhibit 2.6

EXECUTION VERSION

 

 

 

JOINT DIGITAL SERVICES AGREEMENT

BY AND BETWEEN

CBS CORPORATION

AND

ENTERCOM COMMUNICATIONS CORP.

DATED AS OF NOVEMBER 16, 2017

 


TABLE OF CONTENTS

 

          Page  
   ARTICLE I   
   DEFINITIONS   
   ARTICLE II   
   SERVICES, DURATION AND SERVICES MANAGERS   
Section 2.01.    Services      4  
Section 2.02.    Duration of Services      4  
Section 2.03.    Additional Unspecified Services; Changes      4  
Section 2.04.    New Services      6  
Section 2.05.    Services Not Included      6  
Section 2.06.    Transition Services Managers      7  
Section 2.07.    Personnel      8  
   ARTICLE III   
   ADDITIONAL ARRANGEMENTS   
Section 3.01.    Software and Software Licenses      9  
Section 3.02.    Access to Facilities      10  
Section 3.03.    Cooperation; Cutover      10  
Section 3.04.    Data Protection; System Security      11  
   ARTICLE IV   
   COSTS AND DISBURSEMENTS   
Section 4.01.    Costs and Disbursements      12  
Section 4.02.    Tax Matters      13  
Section 4.03.    No Right to Set-Off      14  
   ARTICLE V   
   STANDARD FOR SERVICE   
Section 5.01.    Standard for Service      14  
Section 5.02.    Disclaimer of Warranties      14  

 

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          Page  
Section 5.03.    Compliance with Laws and Regulations      15  
   ARTICLE VI   
   LIMITED LIABILITY AND INDEMNIFICATION   
Section 6.01.    Consequential and Other Damages      15  
Section 6.02.    Limitation of Liability      15  
Section 6.03.    Obligation To Re-perform; Liabilities      15  
Section 6.04.    Release and Recipient Indemnity      16  
Section 6.05.    Provider Indemnity      16  
Section 6.06.    Indemnification Procedures      16  
Section 6.07.    Liability for Payment Obligations      17  
Section 6.08.    Exclusion of Other Remedies      17  
Section 6.09.    Confirmation      17  
   ARTICLE VII   
   TERM AND TERMINATION   
Section 7.01.    Term and Termination      17  
Section 7.02.    Effect of Termination      17  
Section 7.03.    Force Majeure      18  
   ARTICLE VIII   
   GENERAL PROVISIONS   
Section 8.01.    No Agency      19  
Section 8.02.    Subcontractors      19  
Section 8.03.    Treatment of Confidential Information      20  
Section 8.04.    Further Assurances      20  
Section 8.05.    Dispute Resolution      21  
Section 8.06.    Notices      21  
Section 8.07.    Severability      21  

 

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          Page  
Section 8.08.    Entire Agreement      21  
Section 8.09.    No Third-Party Beneficiaries      22  
Section 8.10.    Governing Law      22  
Section 8.11.    Amendment      22  
Section 8.12.    Rules of Construction      22  
Section 8.13.    Counterparts      23  
Section 8.14.    Assignability      23  
Section 8.15.    Public Announcements      24  
Section 8.16.    Non-Recourse      24  

 

SCHEDULE A CBS Services      A-1  
SCHEDULE B Radio Services      B-1  
EXHIBIT I Digital Services Managers      I-1  

 

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JOINT DIGITAL SERVICES AGREEMENT

This JOINT DIGITAL SERVICES AGREEMENT, dated as of November 16, 2017 (this “ Agreement ”), is by and between CBS Corporation, a Delaware corporation (“ CBS ”), and Entercom Communications Corp., a Pennsylvania corporation (“ Entercom ”). CBS and Entercom are herein referred to individually as a “ Party ” and collectively as the “ Parties .” Unless otherwise defined in this Agreement, all capitalized terms used in this Agreement shall have the meaning set forth in the Master Separation Agreement, dated as of February 2, 2017, by and between CBS and CBS Radio Inc. (as amended, modified or supplemented from time to time in accordance with its terms, the “ Separation Agreement ”).

RECITALS

WHEREAS, prior to the Separation, CBS was engaged, directly and indirectly, in the Radio Business and CBS Radio Inc. (“ Radio ”) was a wholly owned indirect subsidiary of CBS;

WHEREAS, pursuant to the Agreement and Plan of Merger, dated as of February 2, 2017 (as amended from time to time, the “ Merger Agreement ”), by and among CBS, Entercom, Radio, and certain of their Affiliates, Entercom has agreed to acquire the Radio Business and in order to facilitate the transactions contemplated thereby, the Parties have agreed to separate the Radio Business from the other businesses of CBS, on the terms and conditions set forth in the Separation Agreement;

WHEREAS, prior to the Separation, CBS has heretofore provided certain digital services to Radio in support of the Radio Business and Radio has provided certain digital services to CBS in support of the CBS Business;

WHEREAS, Entercom has requested from CBS, and CBS has requested from Entercom, that certain such digital services continue for a limited period of time pursuant to this Agreement;

WHEREAS, CBS and Radio have entered into the Separation Agreement;

WHEREAS, in order to facilitate and provide for an orderly transition under the Separation Agreement and Merger Agreement, the Parties desire to enter into this Agreement to set forth the terms and conditions pursuant to which each of the Parties shall provide to the other the Services (as defined herein) for a transitional period;

WHEREAS, pursuant to this Agreement and as set forth in further detail in the schedules hereto, (a) CBS and Entercom will share costs of various digital services in a manner designed to maintain the historical profitability of CBS and Entercom for the period from the Distribution Date through the end of 2018, unless Entercom exercises its option to terminate such arrangement at an earlier date, and (b) during 2019, Entercom will have the option to continue use certain market-focused local websites; and

WHEREAS, the Merger Agreement requires execution and delivery of this Agreement by CBS and Entercom on or prior to the Distribution Date.


NOW, THEREFORE, in consideration of the foregoing and the mutual agreements contained in this Agreement, the Parties, intending to be legally bound, hereby agree as follows:

ARTICLE I

DEFINITIONS

The following capitalized terms used in this Agreement shall have the meanings set forth below:

Additional Services ” shall have the meaning set forth in Section 2.03(a).

Agreement ” shall have the meaning set forth in the Preamble.

CBS ” shall have the meaning set forth in the Preamble.

CBS Business ” shall mean the businesses and operations of the CBS Group other than the Radio Business.

CBS Group ” shall have the meaning set forth in the Separation Agreement.

CBS Local Service Manager ” shall have the meaning set forth in Section  2.06(a) .

CBS Services ” shall have the meaning set forth in Section  2.01 .

CBS Services Manager ” shall have the meaning set forth in Section  2.06(a) .

Change of Control ” means, with respect to a Party, (i) a transaction whereby any Person or group (within the meaning of Section 13(d)(3) of the Securities and Exchange Act of 1934, as amended) would acquire, directly or indirectly, voting securities representing more than 50% of the total voting power of such Party; (ii) a merger, consolidation, recapitalization or reorganization of such party, unless securities representing more than 50% of the total voting power of the legal successor to such Party as a result of such merger, consolidation, recapitalization or reorganization are immediately thereafter beneficially owned, directly or indirectly, by the Persons who beneficially owned such Party’s outstanding voting securities immediately prior to such transaction or (iii) the sale of all or substantially all of the consolidated assets of such Party; provided , in each case, that none of the Transactions shall be deemed to be a “Change of Control.”

Common Agreements ” shall have the meaning set forth in the Separation Agreement.

Confidential Information ” shall have the meaning set forth in Section  8.03(a) .

Content ” shall have the meaning set forth in the Separation Agreement.

Cutover ” shall have the meaning set forth in Section 3.03(b).

Cutover Plan ” shall have the meaning set forth in Section 3.03(b).

Entercom Group ” shall mean Entercom and its Subsidiaries, including the Radio Group.

 

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Force Majeure ” shall mean, with respect to a Party, an event beyond the control of such Party (or any Person acting on its behalf), which event (a) does not arise or result from the fault or negligence of such Party (or any Person acting on its behalf) and (b) by its nature would not reasonably have been foreseen by such Party (or such Person), or, if it would reasonably have been foreseen, was unavoidable, and includes acts of God, acts of civil or military authority, embargoes, epidemics, war, riots, insurrections, fires, explosions, earthquakes, floods, unusually severe weather conditions, labor problems or unavailability of parts, or, in the case of computer systems, any failure in electrical or air conditioning equipment.

Intellectual Property Rights ” shall have the meaning set forth in the Separation Agreement.

Interest Payment ” shall have the meaning set forth in Section  4.01(d) .

New Services ” shall have the meaning set forth in Section  2.04(a) .

Non-Content Assets ” shall have the meaning set forth in the Separation Agreement.

Non-Income Taxes ” shall have the meaning set forth in Section  4.02(a) .

Person ” means an individual, corporation, partnership, limited liability company, association, trust or other entity or organization.

Provider ” shall mean the Party or its Subsidiary or Affiliate providing a Service under this Agreement.

Provider Indemnified Party ” shall have the meaning set forth in Section  6.04 .

Radio ” shall have the meaning set forth in the Preamble.

Radio Business ” shall have the meaning set forth in the Separation Agreement.

Radio Content ” shall have the meaning set forth in Section 6.06(a).

Radio Group ” shall have the meaning set forth in the Separation Agreement.

Radio Local Service Manager ” shall have the meaning set forth in Section  2.06(b) .

Radio Services Manager ” shall have the meaning set forth in Section  2.06(b) .

Recipient ” shall mean the Party or its Subsidiary or Affiliate to whom a Service under this Agreement is being provided.

Recipient Indemnified Party ” shall have the meaning set forth in Section  6.05 .

Reimbursement Charges ” shall have the meaning set forth in Section  4.01(c) .

Schedule(s) ” shall have the meaning set forth in Section  2.02 .

 

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Separation Agreement ” shall have the meaning set forth in the Preamble.

Service Charges ” shall have the meaning set forth in Section  4.01(a) .

Service Extension ” shall have the meaning set forth in Section 7.01(d) .

Service Increases ” shall have the meaning set forth in Section  2.03(b) .

Services ” shall have the meaning set forth in Section  2.01 .

Taxes ” shall have the meaning set forth in the Tax Matters Agreement.

ARTICLE II

SERVICES, DURATION AND SERVICES MANAGERS

Section 2.01.     Services . Subject to the terms and conditions of this Agreement, (a) CBS shall provide or cause to be provided to the Entercom Group the services listed on Schedule A to this Agreement (the “ CBS Services ”) and (b) Entercom shall provide or cause to be provided to the CBS Group the services listed on Schedule B to this Agreement (the “ Radio Services ,” and, collectively with the CBS Services, any Additional Services, any Service Increases and any New Services, the “ Services ”). All of the CBS Services shall be for the sole use and benefit of the Radio Business and all of the Radio Services shall be for the sole use and benefit of the CBS Business.

Section 2.02.     Duration of Services . Subject to the terms of this Agreement, each of CBS and Entercom shall provide or cause to be provided to the respective Recipients each Service until the earlier to occur of, with respect to each such Service, (i) the expiration of the term for such Service (or, subject to the terms of Section 7.01(d), the expiration of any Service Extension) as set forth on Schedule A or Schedule B (each a “ Schedule ,” and, collectively, the “ Schedules ”) or (ii) the date on which such Service is terminated under Section  7.01(b) .

Section 2.03.     Additional Unspecified Services; Changes .

(a)    After the date of this Agreement, if (i) (x) Entercom identifies a digital service that the CBS Group provided to the Radio Group prior to the Separation that Entercom reasonably needs in order for the Radio Business to continue to operate in substantially the same manner in which the Radio Business operated prior to the Separation, and such digital service was included on the initial draft of Schedule A provided by CBS prior to the execution of the Merger Agreement (the “ Initial Schedule A ”) but thereafter removed, or (y) CBS identifies a digital service that the Radio Group provided to the CBS Group prior to the Separation that CBS reasonably needs in order for the CBS Business to continue to operate in substantially the same manner in which the CBS Business operated prior to the Separation, and such digital service was initially included on the initial draft of Schedule B provided by CBS prior to the execution of the Merger Agreement (the “ Initial Schedule B ”) but thereafter removed, and (ii) the requesting Party provides written notice to the other Party within 120 days following the date of this Agreement requesting such additional services, then such other Party shall provide such requested additional services (such requested additional services, the “ Additional Services ”). In connection with any request for Additional Services in accordance with this Section  2.03(a) , the

 

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CBS Services Manager and the Radio Services Manager shall in good faith negotiate the terms of a supplement to the applicable Schedule, which terms shall be consistent with the terms of, and the pricing methodology used for, similar Services provided under this Agreement. Upon the mutual written agreement of the Parties, the supplement to the applicable Schedule shall describe in reasonable detail the nature, scope, service period(s), termination provisions and other terms applicable to such Additional Services in a manner similar to that in which the Services are described in the existing Schedules. Each supplement to the applicable Schedule, as agreed to in writing by the Parties, shall be deemed part of this Agreement as of the date of such agreement, and the Additional Services set forth therein shall be deemed “Services” provided under this Agreement, in each case subject to the terms and conditions of this Agreement.

(b)    After the date of this Agreement, if (i) a Recipient requests to increase, relative to historical levels prior to the Separation, the volume, amount, level or frequency, as applicable, of any Service provided by the Provider of such Service and (ii) such increase is reasonably determined by such Recipient as necessary for the Recipient to operate its businesses (such increases, the “ Service Increases ”), then such Provider shall consider such request in good faith; provided , however , that no Party shall be obligated to provide any Service Increase, including because, after good-faith negotiations between the Parties, the Parties fail to reach an agreement with respect to the terms thereof (including with respect to Service Charges therefor) or if and to the extent such Service Increase would require a material increase in the resources dedicated by Provider to the Services. In connection with any request for Service Increases in accordance with this Section  2.03(b) , the CBS Services Manager and the Radio Services Manager shall in good faith negotiate the terms of an amendment to the applicable Schedule, which amendment shall be consistent with the terms of, and the pricing methodology used for, the applicable Service. Each amended Schedule, as agreed to in writing by the Parties, shall be deemed part of this Agreement as of the date of such agreement, and the Service Increases set forth therein shall be deemed a part of the “Services” provided under this Agreement, in each case subject to the terms and conditions of this Agreement.

(c)    The Parties may, in accordance with the procedures specified in this Section  2.03(c) , agree to modify the terms and conditions relating to the performance of or payment for a previously agreed-upon Service in order to reflect, among other things, new procedures, processes or other methods of providing such Service (a “ Service Modification ”).

(i)     Change Requests . In the event either of the Parties desires a Service Modification, the Party requesting the Service Modification will deliver a written description of the proposed Service Modification (a “ Change Request ”) to the other Party’s Services Manager. Unless the Party receiving the Change Request agrees to implement the Change Request as proposed, the Services Managers will meet in person or by telephone to discuss in good faith the Change Request no later than ten (10) Business Days after delivery of the Change Request to the other Party.

(ii)     Approval of Recipient Change Requests . All Change Requests from a Recipient must be consented to by the applicable Provider’s Services Manager in writing before the Service Modification may be implemented. Such consent will not be unreasonably withheld, conditioned or delayed. For the purposes of the preceding sentence, the Parties agree that it is not unreasonable to: (i) withhold such consent to the

 

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extent that such proposed Service Modification would materially increase the resources provided by Provider after giving effect to the Change Request, or (ii) condition such consent on Recipient agreeing to bear any reasonable and documented increase in Provider’s cost of performance.

(iii)     Approval of Provider Change Requests . All Change Requests from a Provider must be consented to by the applicable Recipient’s Service Manager in writing before the Service Modifications may be implemented. Such consent will not be unreasonably withheld, conditioned or delayed. For the purposes of the preceding sentence, the Parties agree that it is not unreasonable to: (i) withhold such consent to the extent that such proposed Service Modification would materially decrease the resources provided by Provider or otherwise materially adversely affect Provider’s performance of the Services after giving effect to the Change Request, or (ii) condition such consent on Provider agreeing to bear any cost increases.

(iv)     Implementation of Approved Change. If a Change Request is approved in accordance with this Section, the corresponding Schedule and the definition of Services will be deemed amended as agreed by the Parties to reflect the implementation of the Change Request as well as any conditions or other terms agreed upon by the Parties in writing.

Section 2.04.     New Services . (a) From time to time during the term of this Agreement, either Party may request the other Party to provide additional or different digital services which such other Party is not expressly obligated to provide under this Agreement (excluding, for the avoidance of doubt, any Additional Services or Service Increases, the “ New Services ”). The Party receiving such request shall consider such request in good faith; provided , however , that no Party shall be obligated to provide any New Services, including because, (i) after good faith negotiations between the Parties pursuant to Section  2.04(b) , the Parties fail to reach an agreement with respect to the terms (including the Service Charges) applicable to the provision of such New Services or (ii) it does not, in its reasonable judgment, have adequate resources to provide such New Service or if the provision of such New Service would significantly disrupt the operation of its businesses.

(b)    In connection with any request for New Services in accordance with Section  2.04(a) , the CBS Services Manager and the Radio Services Manager shall in good faith (i) negotiate the applicable Service Charge and the terms of a supplement to the applicable Schedule, which supplement shall describe in reasonable detail the nature, scope, service period(s), termination provisions and other terms applicable to such New Services and (ii) determine any costs and expenses, including any start-up costs and expenses, that would be incurred by the Provider in connection with the provision of such New Services, which costs and expenses shall be borne solely by the Recipient. Each supplement to the applicable Schedule, as agreed to in writing by the Parties, shall be deemed part of this Agreement as of the date of such agreement, and the New Services set forth therein shall be deemed “Services” provided under this Agreement, in each case subject to the terms and conditions of this Agreement.

Section 2.05.     Services Not Included . Except as expressly set forth on a Schedule, it is not the intent of the Provider to render, nor of the Recipient to receive from the Provider,

 

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professional advice or opinions, whether with regard to Tax, legal, treasury, finance, employment or other business or financial matters, technical advice, whether with regard to information technology or other matters, or the handling of or addressing environmental matters; the Recipient shall not rely on, or construe, any Service rendered by or on behalf of the Provider as such professional advice or opinions or technical advice; and the Recipient shall seek all third-party professional advice or opinions or technical advice as it may desire or need.

Section 2.06.     Digital Services Managers . (a) CBS hereby appoints and designates the individual holding the CBS position set forth on Exhibit I to act as its initial services manager (the “ CBS Services Manager ”), who will be directly responsible for coordinating and managing the delivery of the CBS Services and have authority to act on CBS’s behalf with respect to matters relating to the provision of Services under this Agreement. The CBS Services Manager will work with the personnel of the CBS Group to periodically address issues and matters raised by the Entercom Group relating to the provision of Services under this Agreement. Notwithstanding the requirements of Section  8.06 , all communications from the Entercom Group to CBS pursuant to this Agreement regarding routine matters involving a Service shall be made first through the individual specified as the local service manager (the “ CBS Local Service Manager ”) with respect to such Service on Schedule A or such other individual as may be specified by the CBS Services Manager in writing and delivered to Entercom by email or facsimile transmission with receipt confirmed; provided that, if the CBS Local Service Manager is not available, communication shall thereafter be made through the CBS Services Manager. CBS shall notify Entercom of the appointment of a different CBS Services Manager or CBS Local Service Manager(s), if necessary, in accordance with Section  8.06 .

(b)    Entercom hereby appoints and designates the individual holding the Radio position set forth on Exhibit I to act as its initial services manager (the “ Radio Services Manager ”), who will be directly responsible for coordinating and managing the delivery of the Radio Services and have authority to act on Entercom’s behalf with respect to matters relating to this Agreement. The Radio Services Manager will work with the personnel of the CBS Group to periodically address issues and matters raised by CBS relating to this Agreement. Notwithstanding the requirements of Section  8.06 , all communications from CBS to Entercom pursuant to this Agreement regarding routine matters involving a Service shall be made through the individual specified as the local service manager (the “ Radio Local Service Manager ”) with respect to such Service on Schedule B or as specified by the Radio Services Manager in writing and delivered to CBS by email or facsimile transmission with receipt confirmed; provided that if the Radio Local Service Manager is not available, communication shall thereafter be made through the Radio Services Manager. Entercom shall notify CBS of the appointment of a different Radio Services Manager or Radio Local Service Manager(s), if necessary, in accordance with Section  8.06 .

(c)    The Parties shall cause their respective Service Managers and/or Local Service Managers, as applicable, to meet (in person or by phone or videoconference) on a monthly basis during the Term, or with such other frequency as they may mutually agree in good faith as is necessary to support an orderly transition of the Radio Business. At such meetings, the Service Managers or Local Service Managers shall discuss the performance of the Services and any concerns of the Parties or a Party regarding such Services (including the provision of and payment for the Services provided under this Agreement, potential changes to systems or personnel used to perform the Service, and/or the status of the Parties’ transition efforts to achieve the Cutover).

 

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Section 2.07.     Personnel . (a) The Provider of any Service will make available to the Recipient of such Service such appropriately qualified personnel as may be necessary to provide such Service on the understanding that such personnel shall remain employed and/or engaged by the Provider. The Provider will have the right, in its reasonable discretion, to (i) designate which personnel it will assign to perform such Service and (ii) remove and replace such personnel at any time; provided , however , that any such removal or replacement shall not be the basis for any increase in any Service Charge or Reimbursement Charge payable hereunder or relieve the Provider of its obligation to provide any Service hereunder; and provided , further , that the Provider will use its commercially reasonable efforts to limit the disruption to the Recipient in the transition of the Services to different personnel.

(b)    In the event that the provision of any Service by the Provider requires the cooperation and services of the personnel of the Recipient, the Recipient will make available to the Provider such personnel (who shall be appropriately qualified for purposes of so supporting the provision of such Service by the Provider) as may be necessary for the Provider to provide such Service on the understanding that such personnel shall remain employed and/or engaged by the Recipient. The Recipient will have the right, in its reasonable discretion, to (i) designate which personnel it will make available to the Provider in connection with the provision of such Service and (ii) remove and replace such personnel at any time; provided , however , that any directly resulting increase in costs to the Provider shall be borne by the Recipient and any directly resulting adverse effect to the provision of such Service by the Provider shall not be deemed a breach of this Agreement; and provided , further , that the Recipient will use its commercially reasonable efforts to limit the disruption to the Provider in the transition of such personnel.

(c)    No Provider shall be liable under this Agreement for any liabilities incurred by the Recipient Indemnified Parties that are primarily attributable to, or that are primarily a consequence of, any actions or inactions of the personnel of the Recipient, except for any such actions or inactions undertaken pursuant to the direction of the Provider.

(d)    Nothing in this Agreement shall grant the Provider, or its employees or agents that are performing the Services, the right directly or indirectly to control or direct the operations of the Recipient or any member of its Group. Such employees and agents shall not be required to report to the management of the Recipient nor be deemed to be under the management or direction of the Recipient. The Recipient acknowledges and agrees that, except as may be expressly set forth herein as a Service (including any Additional Services, Service Increases or New Services) or otherwise expressly set forth in the Separation Agreement, another Ancillary Agreement or any other applicable agreement, no Provider or any member of its Group shall be obligated to provide, or cause to be provided, any service or goods to any Recipient or any member of its Group.

Section 2.08.     Intellectual Property . Sections 5.2(f) – (h) of the Separation Agreement shall govern any Intellectual Property Rights of the Parties under this Agreement.

 

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ARTICLE III

ADDITIONAL ARRANGEMENTS

Section 3.01.     Software and Software Licenses . (a) If and to the extent requested by Entercom, CBS shall use commercially reasonable efforts to assist Entercom in its efforts to obtain licenses (or other appropriate rights) to use, duplicate and distribute, as necessary and applicable, certain computer software necessary for CBS to provide, and the Radio Business to receive, CBS Services; provided that CBS shall not be required to pay any fees or other payments or incur any obligations or liabilities to enable Entercom to obtain any such license or rights (except and to the extent that Entercom advances such fees or payments to CBS); provided , further , that CBS shall not be required to seek broader rights or more favorable terms for Entercom than those applicable to CBS or Radio, as the case may be, prior to the Separation or as may be applicable to CBS from time to time hereafter; and, provided , further , that Radio shall bear only those costs that relate solely and directly to obtaining such licenses (or other appropriate rights) in the ordinary course. The Parties acknowledge and agree that there can be no assurance that CBS’s efforts will be successful or that Entercom will be able to obtain such licenses or rights on acceptable terms or at all, and, where CBS enjoys rights under any enterprise or site license or similar license, the Parties acknowledge that such license typically precludes partial transfers or assignments or operation of a service bureau on behalf of unaffiliated entities. In the event that Entercom is unable to obtain such software licenses, the Parties shall work together using commercially reasonable efforts to obtain an alternative software license to allow CBS to provide, and the Radio Business to receive, such CBS Services, and the Parties shall negotiate in good faith an amendment to the applicable Schedule to reflect any such new arrangement.

(b)    If and to the extent requested by CBS, Entercom shall use commercially reasonable efforts to assist CBS in its efforts to obtain licenses (or other appropriate rights) to use, duplicate and distribute, as necessary and applicable, certain computer software necessary for Entercom to provide, and CBS to receive, Radio Services; provided that Radio shall not be required to pay any fees or other payments or incur any obligations or liabilities to enable CBS to obtain any such license or rights (except and to the extent that CBS advances such fees or payments to Radio); provided , further , that Entercom shall not be required to seek broader rights or more favorable terms for CBS than those applicable to Radio or CBS, as the case may be, prior to the date of this Agreement or as may be applicable to Entercom from time to time hereafter; and, provided, further, that CBS shall bear only those costs that relate solely and directly to obtaining such licenses (or other appropriate rights) in the ordinary course. The Parties acknowledge and agree that there can be no assurance that Entercom’s efforts will be successful or that CBS will be able to obtain such licenses or rights on acceptable terms or at all, and, where Entercom enjoys rights under any enterprise or site license or similar license, the Parties acknowledge that such license typically precludes partial transfers or assignments or operation of a service bureau on behalf of unaffiliated entities. In the event that CBS is unable to obtain such software licenses, the Parties shall work together using commercially reasonable efforts to obtain an alternative software license to allow Entercom to provide, and CBS to receive, such Radio Services, and the Parties shall negotiate in good faith an amendment to the applicable Schedule to reflect any such new arrangement.

 

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(c)    In the event that there are any costs associated with obtaining software licenses in accordance with this Section  3.01 that (i) would not be payable in the ordinary course, including in the form of a “transfer fee” or other similar fees or expenses payable by the Recipient or the Provider and (ii) would not have been payable by the Recipient or the Provider absent the need for a consent or waiver in connection with the license that the Recipient is seeking to obtain, such costs shall be borne by the Recipient.

Section 3.02.     Access to Facilities . (a) Entercom shall, and shall cause other members of the Entercom Group to, allow CBS and its Representatives reasonable access to the facilities of the Entercom Group necessary for CBS to fulfill its obligations under this Agreement.

(b)    CBS shall, and shall cause its Subsidiaries to, allow Entercom and its Representatives reasonable access to the facilities of the CBS Group necessary for Entercom to fulfill its obligations under this Agreement.

(c)    Notwithstanding the other rights of access of the Parties under this Agreement, each Party shall, and shall cause its Subsidiaries to, afford the other Party, its Subsidiaries and Representatives, following not less than five (5) business days’ prior written notice from the other Party, reasonable access during normal business hours to the facilities, information, systems, infrastructure and personnel of the relevant Providers as reasonably necessary for the other Party to verify the adequacy of internal controls over information technology, reporting of financial data and related processes employed in connection with the Services, including in connection with verifying compliance with Section 404 of the Sarbanes-Oxley Act of 2002; provided , however , such access shall not unreasonably interfere with any of the business or operations of such Party or its Subsidiaries.

(d)    Except as otherwise permitted by the other Party in writing, each Party shall permit only its authorized Representatives, contractors, invitees or licensees to access the other Party’s facilities.

(e)    Unless otherwise agreed to in writing by the Parties, each Party will: (i) use the facilities of the other Party solely for the purpose of providing or receiving the Services, as applicable, and not to provide goods or services to or for the benefit of any third party or for any unlawful purpose; (ii) comply with all reasonable policies and procedures governing access to and use of the other Party’s facilities made known to the accessing Party in advance, including, without limitation, all reasonable security requirements applicable to accessing the facilities and any systems, technologies, or assets of Buyer; (iii) instruct its Representatives, when visiting the other Party’s facilities, not to photograph or record, duplicate, remove, disclose, or transmit to a third party any of the other Party’s information, except as necessary to perform the Services; and (iv) return such space to the other Party in the same condition it was in prior to the accessing Party’s use of such space, ordinary wear and tear excepted.

Section 3.03.     Cooperation ; Cutover .

(a)    It is understood that it will require the significant efforts of both Parties to implement this Agreement and to ensure performance of this Agreement by the Parties at the agreed-upon levels in accordance with all of the terms and conditions of this Agreement. The

 

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Parties will cooperate, acting in good faith and using commercially reasonable efforts, to effect a smooth and orderly transition of the Services provided under this Agreement from the Provider to the Recipient (including repairs and maintenance Services and the assignment or transfer of the rights and obligations under any third-party contracts relating to the Services); provided , however , that this Section  3.03 shall not require either Party to incur any out-of-pocket costs or expenses unless reimbursed by the other Party.

(b)    Recipient shall be responsible for planning and preparing for the transition to its own internal organization or other third-party service providers the provision of all of the Services in a timely manner, such transition to be completed by the end of the Term (the “ Cutover ”). At Recipient’s request, Provider shall meet with Recipient upon reasonable notice and at a mutually agreeable time, following such request to assist Recipient with the initial development of a plan for Cutover (the “ Cutover Plan ”) and shall, in good faith, provide Recipient with all information in the possession of Provider related to the Services reasonably requested by the Recipient that is necessary for the development and implementation of the Cutover Plan. Recipient shall prepare a Cutover Plan with sufficient lead time in order to achieve a timely Cutover. Once the Cutover Plan is prepared, Recipient shall promptly provide Provider a copy of the Cutover Plan, and Provider shall use commercially reasonable efforts to cooperate in implementing the Cutover Plan, subject to the terms and conditions of this Agreement, the Separation Agreement, any other Ancillary Agreement or any other applicable agreement.

Section 3.04.     Data Protection; System Security .

(a)    The Provider shall only process personal data which it may receive from the Recipient, while carrying out its duties under this Agreement, (i) in such a manner as is necessary to carry out those duties, (ii) in accordance with the instructions of the Recipient, (iii) using appropriate technical and organizational measures to prevent the unauthorized or unlawful processing of such personal data and/or the accidental loss or destruction of, or damage to, such personal data and (iv) in compliance with all applicable Laws.

(b)    The Provider will maintain and enforce physical, technical and logical security procedures with respect to the access and maintenance of any Confidential Information of the Recipient that is in the Provider’s possession in performing the Services, which procedures shall: (i) be in full compliance with applicable Law and (ii) conform with the Provider’s information security policies. With respect to any Provider systems that are used to store or process data or other information of Recipient, Provider shall maintain and implement the same backup, redundancy, and disaster avoidance and recovery policies and procedures as Provider does with respect to the systems it uses to store or process its own data and information. In the event there is a material security breach which could reasonably be expected to have resulted in unauthorized access to, or alteration, destruction or corruption of, any data or information of Recipient, Provider will notify Recipient of such breach immediately. The Provider will use diligent efforts to remedy such breach of security or unauthorized access in a timely manner.

 

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ARTICLE IV

COSTS AND DISBURSEMENTS

Section 4.01.     Costs and Disbursements . (a) Except as otherwise provided in this Agreement, a Recipient of Services shall pay to the Provider of such Services a monthly fee for the Services (or category of Services, as applicable) (each fee constituting a “ Service Charge ” and, collectively, “ Service Charges ”) as listed on the Schedules hereto.

(b)    During the term of this Agreement, the amount of a Service Charge for any Services (or category of Services, as applicable) may increase to the extent of: (i) any increases mutually agreed to by the Parties, (ii) any Service Charges applicable to any Additional Services, Service Increases or New Services and (iii) any increase in the rates or charges imposed by any unaffiliated third-party provider that is providing Services, provided that, Provider shall provide Recipient with as much advance notice as is reasonably possible of any such increases imposed by a third-party provider. Together with any monthly invoice for Service Charges and Reimbursement Charges, the Provider shall provide the Recipient with documentation to support the calculation of such Service Charges or any Reimbursement Charges.

(c)    The Recipient shall reimburse the Provider for reasonable unaffiliated third-party out-of-pocket costs and expenses incurred by the Provider or its Affiliates in connection with providing the Services (including necessary travel-related expenses) (each such cost or expense, a “ Reimbursement Charge ” and, collectively, “ Reimbursement Charges ”); provided , however , that any such cost or expense that is materially inconsistent with historical practice between the Parties for any Service (including business travel and related expenses) shall require advance approval of the Recipient. Any authorized travel-related expenses incurred in performing the Services shall be incurred and charged to the Recipient in accordance with the Provider’s then-applicable business travel policies made known to the Recipient.

(d)    The Service Charges and Reimbursement Charges due and payable hereunder shall be invoiced and paid in U.S. dollars. The Recipient shall pay the amount of each monthly invoice by wire transfer (or such other method of payment as may be agreed between the Parties) to the Provider within sixty (60) days of the receipt of each such invoice, including appropriate documentation as described herein. In the absence of a timely notice of billing dispute in accordance with the provisions of Article VII of the Separation Agreement, if the Recipient fails to pay such amount by the due date, the Recipient shall be obligated to pay to the Provider, in addition to the amount due, interest at an annual default interest rate of three percent (3%), or the maximum legal rate, whichever is lower (the “ Interest Payment ”), accruing from the date the payment was due through the date of actual payment. In the event of any billing dispute, the Recipient shall promptly pay any undisputed amount.

(e)    Subject to the confidentiality provisions set forth in Section  8.03 , each Party shall, and shall cause their respective Affiliates to, provide, upon ten (10) days’ prior written notice from the other Party, any information within such Party’s or its Affiliates’ possession that the requesting Party reasonably requests in connection with any Services being provided to such requesting Party by an unaffiliated third-party provider, including any applicable invoices, agreements documenting the arrangements between such third-party provider and the Provider and other supporting documentation.

 

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(f)    Notwithstanding anything herein to the contrary, (i) following the date of this Agreement, Entercom shall pay CBS the fees set forth in Note A to the Initial Schedule A, in accordance with the terms of such Note A (including with respect to the timing and amount of such fees), regardless of the level and type of services provided hereunder and (ii) Schedule B shall be in substantially similar form as set forth in the Initial Schedule B. This Section 4.01(f) and Note A to the Initial Schedule A shall survive any termination of this Agreement.

Section 4.02.     Tax Matters . (a) Without limiting any provisions of this Agreement, the Recipient shall be responsible for and shall promptly pay (i) all excise, sales, use, transfer, stamp, documentary, filing, recordation and other similar Taxes and (ii) any related interest and penalties, excluding in each case any Taxes imposed on or measured by income (collectively, “ Non-Income Taxes ”), in each case imposed or assessed as a result of the provision of Services by the Provider. Upon the written request of the Provider, the Recipient shall submit evidence of payment of such Non-Income Taxes to the relevant Governmental Authority. The Provider agrees that it shall take commercially reasonable actions to cooperate with the Recipient in obtaining any refund, return, rebate or the like of any Non-Income Tax, including by filing any necessary exemption or other similar forms, certificates or other similar documents. The Recipient shall promptly reimburse the Provider for any unaffiliated third-party out-of-pocket costs incurred by the Provider or its Affiliates in connection with the Recipient obtaining a refund or overpayment of refund, return, rebate or the like of any Non-Income Tax. For the avoidance of doubt, any applicable income-based Taxes measured by or imposed on the income of the Provider that are imposed or assessed as a result of the provision of Services by the Provider shall be borne by the Provider, unless the Provider is required by law to obtain reimbursement of such Taxes from the Recipient.

(b)    The Recipient shall be entitled to deduct and withhold Taxes required by any applicable law to be withheld on payments made pursuant to this Agreement. To the extent any amounts are so withheld, the Recipient shall (i) pay, in addition to the amount otherwise due to the Provider under this Agreement, such additional amount as is necessary to ensure that the net amount actually received by the Provider will equal the full amount the Provider would have received had no such deduction or withholding been required, (ii) pay when due such deducted and withheld amount to the proper Governmental Authority and (iii) promptly provide to the Provider evidence of such payment to such Governmental Authority. The Provider shall, prior to the date of any payment to be made pursuant to this Agreement, at the request of the Recipient, make commercially reasonable efforts to provide the Recipient any certificate or other documentary evidence (x) required by applicable law or (y) which the Provider is entitled by applicable law to provide in order to reduce the amount of any Taxes that may be deducted or withheld from such payment, and the Recipient agrees to accept and act in reliance on any such duly and properly executed certificate or other applicable documentary evidence.

(c)    If the Provider (i) receives any refund (whether by payment, offset, credit or otherwise) or (ii) utilizes any overpayment of Taxes that are borne by Recipient pursuant to this Agreement, then the Provider shall promptly pay, or cause to be paid, to the Recipient an amount equal to the deficiency or excess, as the case may be, with respect to the amount that the Recipient has borne if the amount of such refund or overpayment (including, for the avoidance of doubt, any interest or other amounts received with respect to such refund or overpayment) had been included originally in the determination of the amounts to be borne by Recipient pursuant to this Agreement, net of any additional Taxes the Provider incurs or will incur as a result of the receipt of such refund or such overpayment.

 

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Section 4.03.     No Right to Set-Off . Subject to Section 4.02(b), the Recipient shall timely pay the full amount of Service Charges and Reimbursement Charges and shall not set-off, counterclaim or otherwise withhold any amount owed to the Provider under this Agreement on account of any obligation owed by the Provider to the Recipient.

ARTICLE V

STANDARD FOR SERVICE

Section 5.01.     Standard for Service .

(a)    The Provider agrees to perform the Services in a good and workman-like manner, in compliance with all applicable Laws, and with substantially the same nature, quality, standard of care and service levels at which the same or similar services were performed by or on behalf of the Provider during the one-year period prior to the Separation or, if not so previously provided, then substantially similar to that which are applicable to similar services provided to the Provider’s Affiliates or other business components. Subject to Section 7.03, the Provider agrees to respond to any outage, interruption or other failure of which it is aware of a Service in a manner that is substantially similar to the manner in which such Provider or its Affiliates responded to any outage, interruption or other failure of the same or similar services during the one-year period prior to the Separation.

(b)    Nothing in this Agreement shall require the Provider to perform or cause to be performed any Service to the extent the manner of such performance would constitute a violation of applicable Law or any existing contract or agreement with a third party. If the Provider is or becomes aware of any potential violation on the part of the Provider, the Provider shall promptly send a written notice to the Recipient of any such potential violation. The Parties each agree to cooperate and use commercially reasonable efforts to obtain any necessary third-party consents required under any existing contract or agreement with a third party to allow the Provider to perform or cause to be performed any Service in accordance with the standards set forth in this Section  5.01 . Any out-of-pocket costs and expenses incurred by either Party in connection with obtaining any such third-party consent that is required to allow the Provider to perform or cause to be performed any Service shall be solely the responsibility of the Recipient. If, with respect to a Service, the Parties, despite the use of such commercially reasonable efforts, are unable to obtain a required third-party consent, or the performance of such Service by the Provider would continue to constitute a violation of applicable Laws, the Provider shall use commercially reasonable efforts in good faith to provide such Services in a manner as closely as possible to the standards described in this Section  5.01 that would apply absent the exception provided for in the first sentence of this Section  5.01(b) .

Section 5.02.     Disclaimer of Warranties . EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, THE PARTIES ACKNOWLEDGE AND AGREE THAT THE SERVICES ARE PROVIDED AS-IS, THAT EACH RECIPIENT ASSUMES ALL RISKS AND LIABILITY ARISING FROM OR RELATING TO ITS USE OF AND RELIANCE UPON THE SERVICES, AND EACH PROVIDER, TO THE MAXIMUM EXTENT

 

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PERMITTED BY APPLICABLE LAW, MAKES NO REPRESENTATION OR WARRANTY WITH RESPECT THERETO. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, EACH PROVIDER HEREBY EXPRESSLY DISCLAIMS ALL REPRESENTATIONS AND WARRANTIES REGARDING THE SERVICES, WHETHER EXPRESS OR IMPLIED, EITHER IN FACT OR BY OPERATION OF LAW, BY STATUTE OR OTHERWISE, INCLUDING ANY REPRESENTATION OR WARRANTY IN REGARD TO QUALITY, PERFORMANCE, NONINFRINGEMENT, COMMERCIAL UTILITY, MERCHANTABILITY OR FITNESS OF ANY SERVICE FOR A PARTICULAR PURPOSE.

Section 5.03.     Compliance with Laws and Regulations . Each Party shall be responsible for its own compliance and its subcontractors’ compliance with any and all Laws applicable to its performance under this Agreement. No Party will knowingly take any action in violation of any such applicable Law that results in liability being imposed on the other Party.

ARTICLE VI

LIMITED LIABILITY AND INDEMNIFICATION

Section 6.01.     Consequential and Other Damages . Notwithstanding anything to the contrary contained in the Separation Agreement or this Agreement, except with respect to a Party’s gross negligence or willful misconduct, neither Party shall be liable to the other Party or any of the other Party’s Affiliates or Representatives, whether in contract, tort (including negligence and strict liability) or otherwise, at law or equity, for any special, indirect, incidental, punitive or consequential damages whatsoever (including lost profits or damages calculated on multiples of earnings approaches), which in any way arise out of, relate to or are a consequence of, its performance or nonperformance (or the performance or nonperformance of any of its Affiliates, Representatives and any unaffiliated third-party providers, in each case, performing obligations hereunder) under this Agreement or the provision of, or failure to provide, any Services under this Agreement, including with respect to loss of profits, business interruptions or claims of customers.

Section 6.02.     Limitation of Liability . Except with respect to liabilities arising from gross negligence or willful misconduct, the liabilities of each Provider and its Affiliates and Representatives, collectively, under this Agreement for any act or failure to act in connection herewith (including the performance or breach of this Agreement), or from the sale, delivery, provision or use of any Services provided under or contemplated by this Agreement, whether in contract, tort (including negligence and strict liability) or otherwise, at law or equity, shall not exceed the total aggregate Service Charges (excluding any Reimbursement Charges) actually paid to such Provider by the Recipient pursuant to this Agreement. The foregoing limitations on liability in this Section  6.02 shall not apply to any breach of Section  8.03 and shall not limit any obligation to re-perform as set forth in Section 6.03. This Section  6.02 shall survive any termination of this Agreement.

Section 6.03.     Obligation To Re-perform; Liabilities . In the event of any breach of this Agreement by any Provider with respect to the provision of any Services (with respect to which the Provider can reasonably be expected to re-perform in a commercially reasonable manner), the Provider shall (a) promptly correct in all material respects such error, defect or breach or re-

 

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perform in all material respects such Services in accordance with this Agreement at the request of the Recipient and at the sole cost and expense of the Provider and (b) subject to the limitations set forth in Sections 6.01 and 6.02 , reimburse the Recipient and its Affiliates and Representatives for damages suffered by Recipient and its Affiliates that are attributable to such breach by the Provider. The remedy set forth in this Section 6.03 shall be the sole and exclusive remedy of the Recipient for any such breach of this Agreement. Any request for re-performance in accordance with this Section  6.03 by the Recipient must be in writing and specify in reasonable detail the particular error, defect or breach, and such request must be made no more than one (1) month from the date such error, defect or breach becomes apparent or should have reasonably become apparent to the Recipient. This Section 6.03 shall survive any termination of this Agreement.

Section 6.04.     Release and Recipient Indemnity . Subject to Section 6.01, each Recipient hereby releases the applicable Provider and its Affiliates and Representatives (each, a “Provider Indemnified Party”), and each Recipient hereby agrees to indemnify, defend and hold harmless each such Provider Indemnified Party from and against any and all liabilities arising from, relating to or in connection with: (a) the use of any Services by such Recipient or any of its Affiliates, Representatives or other Persons using such Services; or (b) the sale, delivery, provision or use of any Services provided under or contemplated by this Agreement, in the case of each of clause (a) and (b), except to the extent that such liabilities arise out of, relate to or are a consequence of the applicable Provider Indemnified Party’s (i) bad faith, gross negligence or willful misconduct or (ii) breach of this Agreement.

Section 6.05.     Provider Indemnity . Subject to Section 6.01, each Provider hereby agrees to indemnify, defend and hold harmless the applicable Recipient and its Affiliates and Representatives (each, a “Recipient Indemnified Party”), from and against any and all liabilities arising from, relating to or in connection with: (a) the use of any Services by such Recipient or any of its Affiliates, Representatives or other Persons using such Services; or (b) the sale, delivery, provision or use of any Services provided under or contemplated by this Agreement, in the case of each of clause (a) and (b), to the extent that such liabilities arise out of, relate to or are a consequence of the applicable Provider’s (i) bad faith, gross negligence or willful misconduct or (ii) breach of this Agreement.

Section 6.06.     Intellectual Property Indemnification .

(a)    Entercom agrees to indemnify, defend and hold harmless CBS and its Affiliates and Representatives (each a “ CBS Party ”), from and against any and all Losses, as incurred, arising out of, relating to or in connection with Content furnished by a Radio Party (“ Radio Content ”) with respect to any third party claims that the Radio Content infringes the Intellectual Property Rights of any such third party or constitutes libel or defamation, except to the extent any such Loss arises as a result of any change to the Radio Content made by a CBS Party.

(b)    CBS agrees to indemnify, defend and hold harmless Entercom and its Affiliates and Representatives (each a “ Radio Party ”) from and against any and all Losses, as incurred, arising out of, relating to or in connection with Content furnished by a CBS Party (“ CBS Content ”) with respect to any third party claims that the CBS Content infringes the Intellectual Property Rights of any such third party or constitutes libel or defamation, except to the extent any such Loss arises as a result of any change to the CBS Content made by a Radio Party.

 

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Section 6.07.     Indemnification Procedures . The provisions of Article VI of the Separation Agreement shall govern claims for indemnification under this Agreement.

Section 6.08.     Liability for Payment Obligations . Nothing in this Article VI shall be deemed to eliminate or limit, in any respect, CBS’s or Entercom’s express obligation in this Agreement to pay Service Charges and Reimbursement Charges for Services rendered in accordance with this Agreement.

Section 6.09.     Exclusion of Other Remedies . The provisions of Sections 6.03, 6.04, 6.05 and Section 6.06 of this Agreement shall, to the maximum extent permitted by applicable Law, be the sole and exclusive remedies of the Provider Indemnified Parties and the Recipient Indemnified Parties, as applicable, for any claim, loss, damage, expense or liability, whether arising from statute, principle of common or civil law, principles of strict liability, tort, contract or otherwise under this Agreement, except as set forth in Section 8.03.

Section 6.10.     Confirmation . Neither Party excludes responsibility for any liability which cannot be excluded pursuant to applicable Law.

ARTICLE VII

TERM AND TERMINATION

Section 7.01.     Term and Termination . (a) This Agreement shall commence immediately after the Effective Time and shall terminate upon the earlier to occur of: (i) the last date on which either Party is obligated to provide any Service to the other Party in accordance with the terms of this Agreement or (ii) the mutual written agreement of the Parties to terminate this Agreement in its entirety.

(b)    Either Party may terminate this Agreement in its entirety, or from time to time with respect to the entirety of any individual Service, in its sole discretion, in the event of any Change of Control of the other Party, upon providing at least twenty (20) days’ prior written notice.

(c)    Without prejudice to a Recipient’s rights with respect to a Force Majeure, a Recipient may from time to time terminate this Agreement with respect to the entirety of any individual Service but not a portion thereof:

(i)    for any reason or no reason, upon providing at least sixty (60) days’ prior written notice to the Provider; provided , however , that the Recipient shall pay to the Provider the necessary and reasonable documented out-of-pocket costs incurred by Provider solely as a result of the early termination of such Service other than any employee severance and relocation expenses, but including sunken costs for the provision of the applicable Service which cannot be recovered, non-terminable contractual obligations under agreements used to provide such Service, any breakage or termination fees and any other termination costs payable by the Provider with respect to any resources or pursuant to any other third-party agreements that were used by the Provider to provide such Service (or an equitably allocated portion thereof, in the case of any such equipment, resources or agreements that also were used for purposes other than providing Services); provided , further , that Provider shall notify Recipient of all such costs prior to termination, and Recipient is given the option of rescinding the termination notice for a period of two (2) days following receipt of notice of such costs; or

 

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(ii)    if the Provider of such Service has failed to perform any of its material obligations under this Agreement with respect to such Service, and such failure shall continue to exist twenty (20) days after receipt by the Provider of written notice of such failure from the Recipient.

In the event that any Service is terminated other than at the end of a month, the Service Charge associated with such Service shall be pro-rated appropriately. The Parties acknowledge that there may be interdependencies among the Services being provided under this Agreement that may not be identified on the applicable Schedules and agree that, if the Provider’s ability to provide a particular Service in accordance with this Agreement is materially and adversely affected by the termination of another Service in accordance with Section 7.01(c)(i) , then the Parties shall negotiate in good faith to amend the Schedule relating to such affected continuing Service, which amendment shall be consistent with the terms of, and the pricing methodology used for, comparable Services.

(d)    In connection with the termination of any Service, if the Recipient reasonably determines that it will require such Service to continue beyond the date on which such Service is scheduled to terminate, the Recipient may extend such Service (any such extension, a “ Service Extension ”) for a specified period beyond the scheduled termination of such Service (which period (i) shall in no event be longer than one (1) year and (ii) shall in no event terminate later than two (2) years after the date of the Final Distribution) by written notice to the Provider no less than thirty (30) days prior to the date of such scheduled termination on the same terms and conditions as such Service was provided prior to the Service Extension, provided that the Parties agree to negotiate any changes to such terms or conditions in good faith if so requested by a Party; provided , further , that (i) there shall be no more than one (1) Service Extension with respect to each Service and (ii) the Provider shall not be obligated to provide such Service Extension if a third-party consent is required and cannot be obtained by the Provider. In connection with any request for Service Extensions in accordance with this Section 7.01(d), the CBS Services Manager and the Radio Services Manager shall in good faith (x) negotiate the terms of an amendment to the applicable Schedule, which amendment shall be consistent with the terms of the applicable Service, and (y) determine the costs and expenses (other than Service Charges), if any, that would be incurred by the Provider or the Recipient, as the case may be, in connection with the provision of such Service Extension, which costs and expenses shall be borne solely by the Party requesting the Service Extension. Each amended Schedule to implement a Service Extension, as agreed to in writing by the Parties, shall be deemed part of this Agreement as of the date of such agreement and any Services provided pursuant to such Service Extensions shall be deemed “Services” provided under this Agreement, in each case subject to the terms and conditions of this Agreement.

Section 7.02.     Effect of Termination . Upon termination of any Service pursuant to this Agreement, the Provider of the terminated Service will have no further obligation to provide the terminated Service, and the relevant Recipient will have no obligation to pay any future Service Charges relating to any such Service; provided , however , that the Recipient shall remain obligated to the relevant Provider for the (i) Service Charges and Reimbursement Charges owed

 

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and payable in respect of Services provided prior to the effective date of termination and (ii) any applicable charges described in Section 7.01(c)(i), which charges shall be payable only in the event that the Recipient terminates any Service pursuant to Section 7.01(c)(i). In connection with the termination of any Service, the provisions of this Agreement not relating solely to such terminated Service shall survive any such termination, and in connection with a termination of this Agreement, Article I , Article VI (including liability in respect of any indemnifiable liabilities under this Agreement arising or occurring on or prior to the date of termination), Article VII , Article VIII and all confidentiality obligations under this Agreement and liability for all due and unpaid Service Charges and Reimbursement Charges and any applicable charges payable pursuant to Section 7.01(c)(i), shall continue to survive indefinitely. For the avoidance of doubt, termination of any Service pursuant to this Agreement will not affect the rights and obligations of the Parties with respect to any Common Agreements under the Separation Agreement.

Section 7.03.     Force Majeure . (a) Neither Party (nor any Person acting on its behalf) shall 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 obligation is prevented, frustrated, hindered or delayed as a consequence of a Force Majeure; provided , however , that (i) such Party (or such Person) shall have exercised commercially reasonable efforts to minimize the effect of such Force Majeure on its obligations and, to the extent and as soon as possible and commercially reasonable, to remove such Force Majeure; and (ii) the nature, quality and standard of care that the Provider shall provide in delivering a Service after a Force Majeure shall be substantially the same as the nature, quality and standard of care that the Provider provides to its Affiliates with respect to such Service. In the event of an occurrence of a Force Majeure, the Party whose performance is affected thereby shall give notice of suspension as soon as reasonably practicable to the other stating the date and extent of such suspension and the cause thereof, and such Party shall resume the performance of such obligations as soon as reasonably practicable after the removal of such cause.

(b)    During the period of a Force Majeure, the Recipient shall be entitled to permanently terminate such Service(s) (and shall be relieved of the obligation to pay Service Charges for such Services(s) throughout the duration of such Force Majeure) if a Force Majeure shall continue to exist for more than fifteen (15) consecutive days, it being understood that Recipient shall not be required to provide any advance notice of such termination to Provider or pay any charges in connection therewith.

ARTICLE VIII

GENERAL PROVISIONS

Section 8.01.     No Agency . Nothing in this Agreement shall be deemed in any way or for any purpose to constitute any Party as an agent of an unaffiliated party in the conduct of such other party’s business. A Provider of any Service under this Agreement shall act as an independent contractor and not as the agent of the Recipient in performing such Service, maintaining control over its employees, its subcontractors and their employees and complying with all withholding of income at source requirements, whether federal, national, state, local or foreign.

 

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Section 8.02.     Subcontractors . A Provider may hire or engage one or more subcontractors to perform any or all of its obligations under this Agreement; provided , however , that (i) such Provider shall use the same degree of care in selecting any such subcontractor as it would if such contractor was being retained to provide similar services to the Provider and (ii) such Provider shall in all cases remain primarily responsible for all of its obligations under this Agreement with respect to the scope of the Services, the standard for services as set forth in Article V and the content of the Services provided to the Recipient.

Section 8.03.     Treatment of Confidential Information .

(a)    The Parties shall not, and shall cause all other Persons providing Services or having access to information of the other Party that is confidential or proprietary (“ Confidential Information ”) not to, disclose to any other Person or use, except for purposes of this Agreement, any Confidential Information of the other Party; provided , however , that the Confidential Information may be used by such Party to the extent that such Confidential Information has been (i) in the public domain through no fault of such Party or any member of such Group or any of their respective Representatives, (ii) later lawfully acquired from other sources by such Party (or any member of such Party’s Group) which sources are not themselves bound by a confidentiality obligation, or (iii) independently generated without reference to any Confidential Information of the other Party; provided , further , that each Party may disclose Confidential Information of the other Party, to the extent not prohibited by applicable Law: (i) to its Representatives on a need-to-know basis in connection with the performance of such Party’s obligations under this Agreement; (ii) in any report, statement, testimony or other submission required to be made to any Governmental Authority having jurisdiction over the disclosing Party; or (iii) in order to comply with applicable Law, or in response to any summons, subpoena or other legal process or formal or informal investigative demand issued to the disclosing Party in the course of any litigation, investigation or administrative proceeding. In the event that a Party becomes legally compelled (based on advice of counsel) by deposition, interrogatory, request for documents subpoena, civil investigative demand or similar judicial or administrative process to disclose any Confidential Information of the other Party, such disclosing Party shall provide the other Party with prompt prior written notice of such requirement, and, to the extent reasonably practicable, cooperate with the other Party (at such other Party’s expense) to obtain a protective order or similar remedy to cause such Confidential Information not to be disclosed, including interposing all available objections thereto, such as objections based on settlement privilege. In the event that such protective order or other similar remedy is not obtained, the disclosing Party shall furnish only that portion of the Confidential Information that has been legally compelled, and shall exercise its commercially reasonable efforts (at such other Party’s expense) to obtain assurance that confidential treatment will be accorded such Confidential Information.

(b)    Each Party shall, and shall cause its Representatives to, protect the Confidential Information of the other Party by using the same degree of care to prevent the unauthorized disclosure of such as the Party uses to protect its own confidential information of a like nature, but in any event no less than a reasonable degree of care.

(c)    Each Party shall be liable for any failure by its respective Representatives to comply with the restrictions on use and disclosure of Confidential Information contained in this Agreement.

 

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(d)    Each Party shall comply with all applicable local, state, national, federal and foreign privacy and data protection Laws that are or that may in the future be applicable to the provision of Services under this Agreement.

Section 8.04.     Further Assurances . Each Party covenants and agrees that, without any additional consideration, it shall execute and deliver any further legal instruments and perform any acts that are or may become necessary to effectuate this Agreement.

Section 8.05.     Dispute Resolution . Any Dispute shall be resolved in accordance with the procedures set forth in Article VII of the Separation Agreement, which shall be the sole and exclusive procedures for the resolution of any such Dispute unless otherwise specified herein or in Article VII of the Separation Agreement.

Section 8.06.     Notices . Except with respect to routine communications by the CBS Services Manager, Radio Services Manager, CBS Local Services Manager and Radio Local Service Manager under Section  2.06 , all notices, requests, claims, demands and other communications under this Agreement shall be in writing and shall be given or made (and shall be deemed to have been duly given or made upon receipt) by delivery in person, by overnight courier service, by facsimile or electronic transmission 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 shall be specified in a notice given in accordance with this Section  8.06 ):

 

  (i)    if to CBS:

CBS Corporation

51 West 52nd Street

New York, New York 10019

Attn: Chief Legal Officer

 

  (ii)    if to Entercom:

Entercom Communications Corp.

401 E. City Avenue, Suite 809

Bala Cynwyd, PA 19004

  Attention: Andrew P. Sutor, IV,
     Executive Vice President and General Counsel

Section 8.07.     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 shall nevertheless remain in full force and effect so long as the economic or legal substance of the transactions contemplated by this Agreement is not affected in any manner materially adverse to any Party. Upon such determination that any term or other provision is invalid, illegal or incapable of being enforced, the Parties shall negotiate in good faith to modify this Agreement so as to effect the original intent of the Parties 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.

 

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Section 8.08.     Entire Agreement . This Agreement, together with the documents referenced herein (including the Separation Agreement and any other Ancillary Agreements) constitutes the entire agreement between the Parties with respect to the subject matter hereof, supersede all prior written and oral and all contemporaneous oral agreements, negotiations, discussions, writings, understandings, commitments and conversations with respect to such subject matter and there are no agreements or understandings between the Parties other than those set forth or referred to herein or therein.

Section 8.09.     No Third-Party Beneficiaries . Except as provided in Article VI with respect to Provider Indemnified Parties and Recipient Indemnified Parties, this Agreement is for the sole benefit of the Parties and their permitted successors and assigns and nothing in this Agreement, express or implied, is intended to or shall confer upon any other Person, including any union or any employee or former employee of CBS or Entercom, any legal or equitable right, benefit or remedy of any nature whatsoever, including any rights of employment for any specified period, under or by reason of this Agreement.

Section 8.10.     Governing Law . This Agreement (and any claims or disputes arising out of or related to this Agreement or to the transactions contemplated by this Agreement or to the inducement of any Party to enter into this Agreement or the transactions contemplated by this Agreement, whether for breach of contract, tortious conduct or otherwise and whether predicated on common law, statute or otherwise) shall in all respects be governed by, and construed in accordance with, the Laws of the State of New York, including all matters of construction, validity and performance, in each case without reference to any conflict of Law rules that might lead to the application of the Laws of any other jurisdiction (other than Section 5-1401 and Section  5-1402 of the General Obligations Law of the State of New York).

Section 8.11.      Amendment . No provision of this Agreement, including any Schedules to this Agreement, may be amended, supplemented or modified except by a written instrument making specific reference to this Agreement or any such Schedules to this Agreement, as applicable, signed by all the Parties.

Section 8.12.     Rules of Construction . Interpretation of this Agreement shall be governed by the following rules of construction: (a) words in the singular shall be held to include the plural and vice versa, and words of one gender shall be held to include the other gender as the context requires; (b) references to the terms Article, Section, paragraph and Schedules are references to the Articles, Sections, paragraphs and Schedules of this Agreement unless otherwise specified; (c) references to “$” shall mean U.S. dollars; (d) the word “including” and words of similar import when used in this Agreement shall mean “including without limitation,” unless otherwise specified; (e) the word “or” shall not be exclusive; (f) references to “written” or “in writing” include in electronic form; (g) provisions shall apply, when appropriate, to successive events and transactions; (h) the headings contained in this Agreement are for reference purposes only and shall not affect in any way the meaning or interpretation of this Agreement; (i) CBS and Entercom have each participated in the negotiation and drafting of this Agreement and if an ambiguity or question of interpretation should arise, this Agreement shall be

 

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construed as if drafted jointly by the Parties and no presumption or burden of proof shall arise favoring or burdening either Party by virtue of the authorship of any of the provisions in this Agreement or any interim drafts of this Agreement; (j) a reference to any Person includes such Person’s successors and permitted assigns; (k) any reference to “days” means calendar days unless business days are expressly specified; and (l) when calculating the period of time before which, within which or following which any act is to be done or step taken pursuant to this Agreement, the date that is the reference date in calculating such period shall be excluded, and if the last day of such period is not a business day, the period shall end on the next succeeding business day.

Section 8.13.     Counterparts . This Agreement may be executed in one or more counterparts, and by each Party in separate counterparts, each of which when executed shall be deemed to be an original but all of which taken together shall constitute one and the same agreement. Delivery of an executed counterpart of a signature page to this Agreement by facsimile or portable document format (PDF) shall be as effective as delivery of a manually executed counterpart of this Agreement.

Section 8.14.     Assignability . Without prejudice to Section 7.01(b), this Agreement shall be binding upon and inure to the benefit of the Parties and their respective successors and permitted assigns. For the purposes of this Agreement, a “successor” shall include any entity that is a legal successor to either Party as a result of a sale or acquisition of such Party, whether by merger, consolidation, reorganization, recapitalization or sale of all or substantially all of such Party’s assets or stock. Except (i) for any assignment (including by operation of law) to a Party’s successor (without prejudice to Section 7.01(b)) or (ii) as explicitly set forth herein, this Agreement shall not be assigned without the prior written consent of CBS and Entercom; provided, that each Party may:

(a)    assign all of its rights and obligations under this Agreement to any of its Subsidiaries; provided that, in connection with any such assignment, the assigning Party provides a guarantee to the non-assigning Party (in a form reasonably agreed upon) for any liability or obligation of the assignee under this Agreement;

(b)    in connection with the divestiture of any Subsidiary or business of such Party that is a Recipient to an acquirer that is not a competitor of the Provider, assign to the acquirer of such Subsidiary or business its rights and obligations as a Recipient with respect to the Services provided to such divested Subsidiary or business under this Agreement; provided that (i) in connection with any such assignment, the assigning Party provides a guarantee to the non-assigning Party (in a form reasonably agreed upon) for any liability or obligation of the assignee under this Agreement, (ii) any and all costs and expenses incurred by either Party in connection with such assignment (including in connection with clause (iii) of this proviso) shall be borne solely by the assigning Party, and (iii) the Parties shall in good faith negotiate any amendments to this Agreement, including the Schedules hereto, that may be necessary or appropriate in order to assign such Services; and

(c)    in connection with the divestiture of any Subsidiary or business of such Party that is a Recipient to an acquirer that is a competitor of the Provider, assign to the acquirer of such Subsidiary or business its rights and obligations as a Recipient with respect to the Services

 

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provided to such divested Subsidiary or business under this Agreement; provided that (i) in connection with any such assignment, the assigning Party provides a guarantee to the non-assigning Party (in a form reasonably agreed upon) for any liability or obligation of the assignee under this Agreement, (ii) any and all costs and expenses incurred by either Party in connection with such assignment (including in connection with clause (iii) of this proviso) shall be borne solely by the assigning Party, (iii) the Parties shall in good faith negotiate any amendments to this Agreement, including the Schedules hereto, that may be necessary or appropriate in order to ensure that such assignment will not (x) materially and adversely affect the businesses and operations of each of the Parties and their respective Affiliates or (y) create a competitive disadvantage for the Provider with respect to an acquirer that is a competitor, and (iv) no Party shall be obligated to provide any such assigned Services to an acquirer that is a competitor if the provision of such assigned Services to such acquirer would disrupt the operation of such Party’s businesses or create a competitive disadvantage for such Party with respect to such acquirer.

Section 8.15.     Public Announcements . From and after the Separation, the Parties shall consult with each other before issuing, and give each other the opportunity to review and comment upon, that portion of any press release or other public statements that relates to the transactions contemplated by this Agreement, and shall not issue any such press release or make any such public statement prior to such consultation, except (a) as may be required by applicable Law, court process or by obligations pursuant to any listing agreement with any national securities exchange or national securities quotation system; or (b) as otherwise set forth in the Separation Agreement.

Section 8.16.     Non-Recourse . No past, present or future director, officer, employee, incorporator, member, partner, shareholder, Affiliate, agent, attorney or representative of either CBS or Entercom or their Affiliates shall have any liability for any obligations or liabilities of CBS or Entercom, respectively, under this Agreement or for any claims based on, in respect of, or by reason of, the transactions contemplated by this Agreement.

[The remainder of this page is intentionally left blank.]

 

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IN WITNESS WHEREOF, the Parties have caused this Agreement to be executed on the date first written above by their respective duly authorized officers.

 

CBS CORPORATION
By:  

/s/ Joseph R. Ianniello

  Name: Joseph R. Ianniello
  Title:   Chief Operating Officer
ENTERCOM COMMUNICATIONS CORP.
By:  

/s/ Andrew P. Sutor, IV

  Name: Andrew P. Sutor, IV
  Title:   Executive Vice President

Exhibit 2.7

EXECUTION VERSION

TRADEMARK LICENSE AGREEMENT (CBS RADIO BRAND)

BY AND BETWEEN

CBS BROADCASTING INC.

AND

CBS RADIO INC.

DATED AS OF NOVEMBER 16, 2017


LICENSE AGREEMENT (CBS RADIO BRAND)

This TRADEMARK LICENSE AGREEMENT (CBS RADIO BRAND) (this “ Agreement ”), dated as of November 16, 2017 (the “ Effective Date ”), is by and between CBS Broadcasting Inc., a New York corporation (the “ Licensor ”), and CBS Radio Inc., a Delaware corporation (“ Radio ” and collectively with its wholly-owned Subsidiaries, the “ Licensee ”). Unless otherwise defined in this Agreement, all capitalized terms used in this Agreement shall have the meanings set forth in the Separation Agreement, dated as of February 2, 2017 by and between CBS Corporation, a Delaware corporation (“ CBS ”) and the Licensee (as amended, modified or supplemented from time to time in accordance with its terms, the “ Separation Agreement ”).

RECITALS

WHEREAS, prior to the Separation (as defined below), Licensor was engaged in the Radio Business and Radio was a wholly owned subsidiary of Licensor;

WHEREAS, pursuant to the Merger Agreement, Entercom Communications Corp. (“Acquiror”), a Pennsylvania corporation, has agreed to acquire the Radio Business and in order to facilitate the transactions contemplated thereby, the Parties have agreed to separate the Radio Business from the other businesses of CBS, on the terms and conditions set forth in the Separation Agreement and the Merger Agreement (the “Separation”);

WHEREAS, in furtherance of the transactions contemplated in the Separation Agreement and Merger Agreement, the Parties desire that Licensor grant a license to use certain of its assets for a twelve (12) month period to allow Licensee to phase out use of those assets; and

WHEREAS, the Merger Agreement requires execution and delivery of this Agreement by Licensor and Licensee on the Distribution Date.

NOW, THEREFORE, in consideration of the premises and the covenants and agreements contained herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, intending to be legally bound, the Parties agree as follows:

 

1 Definitions and Interpretations

1.1    In this Agreement, the following terms shall have the following meanings assigned to them:

(a)    “ Acquisition ” means, except for any transaction contemplated by the Separation Agreement, the Merger Agreement or any Ancillary Agreement, with respect to Radio or, after the Effective Time, Acquiror, (i) a transaction whereby any Person or group (within the meaning of Section 13(d)(3) of the Securities and Exchange Act of 1934, as amended) would acquire, directly or indirectly, voting securities representing more than 30% of the total voting power of Radio or, after the Effective Time, Acquiror; (ii) a merger, consolidation, recapitalization or reorganization of Radio or, after the Effective Time, Acquiror,

 

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unless securities representing more than 70% of the total voting power of the legal successor to Radio as a result of such merger, consolidation, recapitalization or reorganization are immediately thereafter beneficially owned, directly or indirectly, by the Persons who beneficially owned outstanding voting securities of Radio or, after the Effective Time, Acquiror, immediately prior to such transaction; or (iii) the sale of all or substantially all of the consolidated assets of the Radio Group or, after the Effective Time, Acquiror;

(b)    “ Agreement ” has the meaning set forth in the Preamble;

(c)    “ Brand Guidelines ” means the brand guidelines attached at Schedule 3;

(d)    “ CBS ” has the meaning set forth in the Preamble;

(e)    “ Defaulting Party ” has the meaning set forth in Section 10.2(a)(iv);

(f)    “ Domain Names ” means the domain names listed in Schedule 1 (or as may be deemed added to that schedule by written agreement of the Parties);

(g)    “ Effective Date ” has the meaning set forth in the Preamble;

(h)    “ Effective Time ” has the meaning set forth in the Merger Agreement;

(i)    “ Eye Design ” means the trademark LOGO ;

(j)    “ Insolvency ” means the earlier of any of the following with regard to a member of the Licensee, any Permitted Sublicensee or any substantial part of any of their assets: (i) a voluntary or involuntary proceeding or petition is commenced or filed seeking relief under any federal, state or foreign bankruptcy, insolvency, receivership or other law providing relief for debtors; (ii) the appointment of a receiver, trustee, custodian, sequestrator, conservator or similar official or any petition for or acquiescence in the appointment thereof; (iii) winding-up or liquidation or other cessation of operations, or suspension of all or a substantial part of its business, or (iv) a general assignment for the benefit of creditors or inability, admitting in writing its inability or failing generally to pay its debts as they become due or the occurrence of any event which accelerates or permits acceleration of the maturity of any of its debts;

(k)    “ Licensed Property ” means the Trademarks and Domain Names. For the avoidance of doubt, the term “Licensed Property” excludes the trademarks WCBS, KCBS and CBS SPORTS RADIO (which are subject to other CBS Brand License Agreements);

(l)    “ Licensed Services ” has the meaning set forth in Section 2.1;

(m)    “ Licensee ” has the meaning set forth in the Preamble;

(n)    “ Licensee Indemnified Parties ” has the meaning set forth in Section 11.1;

(o)    “ Licensor ” has the meaning set forth in the Preamble;

 

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(p)    “ Licensor Indemnified Parties ” has the meaning set forth in Section 11.2;

(q)    “ Non-Defaulting Party ” has the meaning set forth in Section 10.2(a)(iv);

(r)    “ Party ” means either Licensor or Licensee and “ Parties ” means collectively Licensor and Licensee.

(s)    “ Permitted Sublicensee ” has the meaning set forth in Section 2.5; provided that a Permitted Sublicensee shall no longer be deemed to be a Permitted Sublicensee hereunder if it is terminated pursuant to Section 10.2;

(t)    “ Permitted Video Use ” has the meaning set forth in Section 2.4;

(u)    “ Promotional Use ” means, subject to the Permitted Video Uses set forth in Section 2.4, promotion internally facing to Licensee’s employees or Affiliates and promotion externally facing to the public of the Radio Business, in each case to the extent used as of the Effective Date, including: (i) any such use in the Radio Business; (ii) any such use on any current or future online or digital platform (including a platform or audio application whether owned or operated by CBS or its Affiliates or a third party) which permits promotion of brands, promotional content (including user generated content), or services to the general public or a group of users or consumers, including YouTube, Twitter, Facebook, Snapchat and Instagram (the foregoing platforms and other similar platforms, “ Social Digital Platforms ”); (iii) all forms of promotions of the Radio Business by or on behalf of the Licensee or a Permitted Sublicensee, including joint promotions, promotion on a Social Digital Platform or registering a Social Digital Platform Account Name; (iv) any concert, festival, party, production, performance, live show, or other event held, organized, promoted or sponsored by or on behalf of the Licensee or a Permitted Sublicensee; (v) merchandise that displays the Licensed Property; and (vi) any other promotion of the Radio Business as used as of the Effective Date;

(v)    “ Radio Entity ” means an entity engaged in the business of radio broadcasting in the United States or engaged in the business of audio streaming in the United States, and in either case not engaged in the business of television broadcasting in the United States.

(w)    “ Separation Agreement ” has the meaning set forth in the Preamble;

(x)    “ Social Digital Platform ” has the meaning set forth in Section 1.1(u);

(y)    “ Social Digital Platform Account Name ” means a method of identification or authentication of a user or publisher on a Social Digital Platform, including registering a name, setting up an account name and/or otherwise establishing a means of identification;

(z)     “ Term ” has the meaning set forth in Section 10.1; and

(aa)    “ Trademarks ” means the registered trademarks listed in Schedule 2, which registrations may be updated from time to time by the Licensor at its sole discretion.

 

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2 Grant of Rights

2.1    Subject to the terms and conditions of this Agreement and for no additional royalties or consideration apart from the consideration provided to CBS in connection with the transactions contemplated by the Merger Agreement and Separation Agreement, the Licensor hereby grants to the Licensee a limited, non-exclusive, non-assignable and non-transferrable (except as set forth in Section 12.7), non-sublicensable (except as set forth in Section 2.5) license in the United States (which, for the purposes of this Agreement, shall include its territories and possessions as set forth in Section 2.2) for the Term to:

(a)    use the Trademarks as part of: (i) the Radio Business; (ii) registered business names set forth on Schedule 4 and unregistered business names; and (iii) registered company names set forth in Schedule 5; and

(b)    subject to Section 3.6, use the Domain Names;

in each case under the foregoing (a)-(b) solely as used to identify the operation of the Radio Business in the manner and to the extent of such use as of the Effective Date (the foregoing collectively referred to herein as the “ Licensed Services ”); provided that Licensee shall take reasonable efforts to wind-down and cease such licensed use of the Licensed Property as soon as practicable after the Effective Date, as required in order to meet its obligations under Sections 3.7 and 10.4, and, in any event, no later than twelve (12) months from the Effective Date.

2.2     Licensed Territory Uses . Under the license granted pursuant to Section 2.1, the Licensee may use the Licensed Property for the Licensed Services only in the United States (including its territories and possessions); provided , however , the Parties acknowledge that the Licensee is permitted to use the Licensed Property for terrestrial radio broadcasting, and related online, digital uses and Promotional Uses solely for providing the Licensed Services or the marketing and promotion thereof to users and consumers within the United States. The Licensee may not direct use of the Licensed Property to terrestrial radio, online or digital users or consumers outside the United States, provided that, to the extent permitted uses are directed to terrestrial radio, online or digital users or consumers in the United States and can be accessed or consumed by terrestrial radio, online or digital users or consumers outside the United States, the Licensee shall not be deemed in breach of Section 2.1 or this Section 2.2.

2.3     Prohibited Uses of Licensed Property . The Licensee may not use the Licensed Property for any good or service or in any manner that is: (a) pornographic or reasonably considered by Licensor as offensive; or (b) unlawful or obscene (as determined in accordance with applicable Federal Communications Commission standards). The Parties acknowledge and agree that all uses of the Licensed Property that are consistent with the uses of the Licensed Property by the Radio Business during the one-year period prior to the Effective Date are not prohibited by this Section 2.3.

2.4     Further Prohibited Uses of Licensed Property . The Licensee shall not use the Licensed Property to identify audio-visual content including news, sports, weather, traffic reporting or other videos or video services (including, video-on-demand or video streaming, syndication of video content or video streams, or any other distribution of audio-visual content), except to the extent so used by the Radio Business as of the Effective Date, such as (x) in simultaneous video streams or recordings that are created by the Licensee’s placement of

 

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camera(s) in a terrestrial radio studio to capture the simultaneous broadcast of audio programming of a radio station owned and operated by the Licensee or (y) musical performances and associated music videos; or (z) audio-visual recordings of interviews streaming from or recorded at speaker series, panel discussions or conferences hosted by the Licensee (“ Permitted Video Use ) .

2.5     Permitted Sublicensees . In addition to Section 2.8(b), the Licensee may not license or authorize any other Person to use the Licensed Property, except that the Licensee may grant limited, non-assignable (including non-assignable in an Acquisition) sublicenses of its rights under Section 2.1 to those third parties who have been granted licenses or sublicenses of the Licensed Property by Licensor or any of its Affiliates in connection with the operation of the Radio Business prior to the Effective Date ( provided that the sublicense to such third party is for uses substantially similar to those permitted by Licensor and its Affiliates during the one year period prior to the Effective Date), or to any third parties for which the Licensee obtains prior written consent of Licensor (which shall not be unreasonably withheld, conditioned or delayed); provided , in each case, that (a) Licensee has sent Licensor written notice with detailed information regarding all proposed uses of the Licensed Property by such third party (including identification of all types of uses and media in connection with which the Licensed Property will be used); and (b) such third parties agree to comply with all terms and conditions hereunder applicable to the Licensee (each such third party approved by Licensor, a “ Permitted Sublicensee ”); provided that Licensor may terminate the purported sublicense to use the Licensed Property granted to any purported Permitted Sublicensee at any time if the transfer or assignment of such Licensed Property to such Permitted Sublicensee occurred in violation of the foregoing requirements of this Section 2.5.

Notwithstanding the grant of any sublicense, the Licensee shall remain liable for compliance by each Permitted Sublicensee with all terms and conditions of this Agreement applicable to the Licensee and such terms and conditions shall be deemed to be applicable to each Permitted Sublicensee.

For the avoidance of doubt, Licensee may engage manufacturers and service providers to apply the Trademarks to Licensee’s promotional goods of the types and in the manner used during the one year period prior to the Effective Date or otherwise use the Trademarks in connection with the advertising or marketing of Licensee’s goods or services solely at the direction and on behalf of the Licensee (e.g. t-shirt or banner manufacturer, or newspaper carrying an advertisement) without prior consent or approval from Licensor.

2.6     Licensor s Restrictions . The Licensor agrees not to use or license (or cause or induce others to do so) the trademark “CBS RADIO” for the operation of a terrestrial radio network in the United States for four (4) years following the Effective Date.

2.7     Licensor s Reserved Rights . All rights of the Licensor and its Affiliates not expressly granted by the Licensor to the Licensee pursuant to this Agreement are reserved without exception or limitation.

 

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2.8     Licensee s Acknowledgement Concerning the Licensed Property . Subject to Section 2.6 and the other CBS Brand License Agreements, the Licensee hereby acknowledges and agrees that:

(a)    No Claims Against CBS. For the avoidance of doubt, CBS and its Affiliates have the right to use (and Licensee shall not have any basis to object to or make claims against CBS or its Affiliates for their use of):

(i)     the Licensed Property;

(ii)    the Eye Design, “CBS”, “CBS NEWS,” “CBS NEWS RADIO” and “CBS RADIO NEWS”; and

(iii)    “WCBS”, “KCBS” and “CBS SPORTS RADIO” (which are subject to other CBS Brand License Agreements);

in each case either alone or in combination with other symbols, words, phrases or logos (including the Trademarks in combination with “TV” or any other term indicating audio or audio-visual content or other media) for any uses in connection with any goods and services (including domain names), whether known as of the date of this Agreement or created in the future, including use in association with any activities of CBS or its Affiliates’ television station brand names, such as WCBS and KCBS, and related activity and for any audio products or otherwise;

(b)     FCC Licenses . The Licensee shall not grant consent to any Person to use any of the Licensed Property as call letters, even if its status at the Federal Communications Commission would permit the Licensee to provide such consent; and

(c)     Risk of Confusion . The Licensee shall cooperate with any reasonable requests of Licensor in connection with any Licensed Services that may create a risk of confusion with any current or anticipated business of CBS or any of its Affiliates.

 

3 Licensee’s Use of the Licensed Property

3.1     Brand Guidelines and Logo Changes . The Licensee shall use the Trademarks in accordance with the Brand Guidelines, comply with all applicable Laws and the quality standards set forth in Section 3.3, and shall observe all reasonable directions given by the Licensor as to the representations of the Trademarks. The Licensee is not permitted to adopt any new visual representation of the Trademarks or to use, reproduce or represent any of the Trademarks in any form or manner that is not already in use by the Radio Business as of the Effective Date, unless prior written approval is provided by the Licensor, not to be unreasonably withheld. The Licensee shall adopt any new visual representation of the Trademarks that may be required from time to time by the Licensor upon reasonable prior written notice to Licensee.

3.2     Licensor’s Quality Control . The Licensee agrees to provide representative samples of any goods, services and materials to or in which the Licensed Property is affixed or incorporated, including marketing and promotional materials, audio recordings of content and all

 

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other uses of the Licensed Property by the Licensee (whether written, electronic or recorded in any other medium), as reasonably requested by the Licensor. If at any time the Licensor notifies the Licensee in writing that a deficiency exists in the form, manner or quality of any goods, services or materials to or in which the Licensed Property is affixed or incorporated, the Licensee will use diligent efforts to remedy such deficiency promptly and provide the Licensor with evidence of same.

3.3     Licensee s Obligations / Quality Control . In using the Licensed Property, the Licensee shall:

(a)    maintain such quality standards for the Radio Business that are in place as of the Effective Date;

(b)    not do any act which would reasonably be expected to dilute or materially weaken the strength of the Licensed Property, or render the Trademarks generic or invalid (it being understood that uses of the Licensed Property that are consistent with those uses by the Radio Business in use during the one year period prior to the Effective Date shall not be considered violations of this Section 3.3(b));

(c)    conduct its business and operations in a manner that would not reasonably be expected to have an adverse effect on the reputation of Licensor or its goodwill associated with the Licensed Property (it being understood that the conduct of the Radio Business in the manner in which it was conducted during the one year period prior to the Effective Date shall not be considered a breach of this Section 3.3(c));

(d)    not perform any act or fail to act in any way that could reasonably be expected to injure, denigrate or otherwise, devalue the Licensed Property or the goodwill or reputation of the Licensor or any of the Licensor’s Affiliates (it being understood that the conduct of the Radio Business in the manner in which it was conducted during the one year period prior to the Effective Date shall not be considered a breach of this Section 3.3(d)). The Licensee hereby agrees that it will use commercially reasonable efforts to ensure that the Licensee’s employees and other personnel (and, for the avoidance of doubt, the employees and other personnel of its Permitted Sublicensees) do not make any offensive remarks, commit any criminal act, or commit any other act which could reasonably be expected to reflect unfavorably upon the Licensed Property or the Licensor or its Affiliates in any material respect; and, in the event of any such conduct, the Licensee will work with the Licensor to promptly minimize any resulting adverse impact on the Licensed Property and to remedy any such conduct (without limiting other remedies available to the Licensor under this Agreement); and

(e)    not make any representation or do any act which may be taken to indicate that it has any right, title or interest in or to the ownership of any of the Licensed Property other than the licensed rights conferred by this Agreement.

3.4     Legal Lines . To the extent the legends, markings, and notices referred to below in this Section 3.4 were used by the Radio Business in connection with uses of the Trademarks prior to the Effective Date, the Licensee shall where reasonably practicable cause the following legend to appear on all marketing and promotional materials on or in connection with which the Trademarks are used:

 

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“The Eye Design ® and CBS RADIO ® are Registered Trademarks of CBS Broadcasting Inc. All Rights Reserved.”

and/or such legends, markings, and notices as the Licensor may reasonably request in order to give appropriate written notice of any trademark, trade name or other rights therein; but failure to use such symbol shall not be deemed a breach of this Agreement that could give rise to termination pursuant to Section 10.2. Licensee agrees that upon reasonable request from Licensor to add the aforementioned legend, Licensee will take all reasonable steps necessary to add such legend.

3.5     Domain Name Fees . The Licensee shall be responsible for all fees in connection with the registration of domain names that Licensor agrees to add to Schedule 1 as Domain Names, and registration and renewal of registration of the Domain Names during the Term and during the eighteen (18) months following the end of the Term for redirection as described in Section 3.6.

3.6     Domain Name Cooperation . Subject to the Licensee’s compliance with the terms and conditions of this Agreement, the Licensor shall cooperate with the Licensee to enable the Domain Names to be directed to the appropriate servers for the websites relating to the Radio Business. Furthermore, for a period of eighteen (18) months following the end of the Term, Licensor agrees to maintain the registrations and redirect traffic from the Domain Names to new website addresses designated by Licensee, with an appropriate notice agreed to by the Parties indicating that the applicable web site addresses have changed.

3.7     Phase Out. The Licensee shall use all reasonable efforts to reduce its usage of the Licensed Property for which a license is granted pursuant to Article 2, including by completing the removal of the Licensed Property from all goods, services and materials in the Licensee’s possession or control, such that, as at the expiration of the Term, the Licensee will have ceased and discontinued all use of the Licensed Property in accordance with Section 10.4; provided that in the event of any de minimis use that continues after expiration or termination of the Term, Licensee shall quickly after becoming aware thereof discontinue such use, except as otherwise provided in Section 7.24(c) of the Merger Agreement. For the avoidance of doubt, the Licensee shall not commence any new uses of the Licensed Property during the Term not expressly permitted hereunder by Section 2.1, unless approved in writing by the Licensor.

 

4 Ownership

4.1    The Licensee acknowledges that nothing contained in this Agreement shall give the Licensee any right, title or interest in or to the Licensed Property or any other intellectual property of Licensor or its Affiliates, or any right to use such Licensed Property or other intellectual property in any territory save as expressly granted by the Licensor in relation to the Licensed Property under Section 2.1. The Licensee will not directly or indirectly claim any rights in the Licensed Property or apply to register the Licensed Property, “CBS” or the Eye Design or any confusingly similar name or mark whether alone or in combination with any other name or mark or otherwise as copyright, trademark, trade name, domain name in any territory.

 

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4.2    Any goodwill derived by, and any rights acquired by, the Licensee from the use of the Licensed Property or any derivatives thereof shall inure to the sole benefit of the Licensor. At the request and expense of the Licensor, the Licensee shall execute all documents or take all such actions that are reasonably necessary to assign such goodwill and/or rights to the Licensor or otherwise to confirm the Licensor’s ownership of the Licensed Property.

4.3    The Licensee agrees that the Licensor will, in its sole cost and discretion, clear, file, maintain and defend any and all trademark and domain name applications and resulting registrations worldwide for the Licensed Property until the termination of this Agreement. The Licensee further agrees to abide by all reasonable trademark clearance, filing and maintenance decisions made by the Licensor in connection and in accordance with this Agreement, to execute any other documents or other materials or provide such assistance as the Licensor may reasonably request in furtherance of the purpose of this Agreement, and to cooperate with the Licensor in connection therewith, as requested.

4.4    If, in breach of this Agreement, the Licensee registers, or applies to register, any copyright, trademark, trade name, domain name or other designation identical or confusingly similar to the Licensed Property, “CBS” or the Eye Design, it shall immediately, at its cost, transfer the registration or application to the Licensor or, at the Licensor’s request, take all steps necessary to abandon, cancel or withdraw, as requested, such registration or application.

4.5    The Licensee agrees that it will not, nor authorize any other Person to, and it will ensure its Affiliates do not, nor authorize any other Person to, (a) subject to Section 2.5, use or (b) apply to register, any copyright, trademark, trade name, domain name or other designation identical or confusingly similar to, any of the Licensed Property, “CBS” or the Eye Design or any mark which combines the Licensed Property with any other trademark, trade name or domain name or other designation, unless permitted under another written agreement with Licensor to use a brand related to Licensor’s licensed content (e.g. CBS SPORTS RADIO).

 

5 Licensor Obligations

Notwithstanding anything to the contrary in this Agreement, during the Term, Licensor shall maintain all registrations set forth in Schedule 2 for the Trademarks and all registrations for the Domain Names set forth in Schedule 1 in a manner that will permit Licensee to use the Trademarks and Domain Names as set forth in this Agreement.

 

6 Warranties

6.1    Each Party hereto warrants and represents to the other that it has the full right, power and authority to execute and perform its obligations under this Agreement.

6.2    The Licensor warrants and represents to Radio that:

(a)    it holds all such rights and interest in the Licensed Property as are required to permit the Licensor to enter into this Agreement;

(b)    to the knowledge of Licensor’s trademark counsel as of the Effective Date, the Licensee’s use of the Licensed Property in accordance with the terms and conditions of this Agreement does not and will not infringe or violate any other Person’s intellectual property rights;

 

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(c)    there are no pending claims, judgments or unpaid settlements against the Licensor or any of its Affiliates relating to the Licensed Property which, if adversely determined, would have a material adverse effect on the Licensor’s ability to license the Licensed Property or interfere in any material respect with Licensee’s use of the Licensed Property during the Term as set forth in this Agreement.

 

7 [Intentionally Blank]

 

8 Further Assurances

Each Party shall, at the cost and the request of the other Party and at any time, execute such documents and perform such acts as the other Party may reasonably require for the purpose of giving effect to this Agreement.

 

9 Infringement

9.1    The Licensee shall, as soon as it becomes aware thereof, give the Licensor full particulars, in writing, of any actual or threatened conduct of any Person which amounts or might amount either to: (a) infringement or unlicensed use of; (b) passing-off or unfair competition in relation to; or (c) breach of any analogous or comparable right of the Licensor’s rights in relation to, “CBS”, the Eye Design or the Licensed Property.

9.2    If the Licensee becomes aware of any allegation that “CBS”, the Eye Design or the Licensed Property is invalid or that use thereof infringes any rights of the Licensor or that “CBS”, the Eye Design or the Licensed Property may be susceptible to challenge, the Licensee promptly shall provide the Licensor with the particulars thereof.

9.3    The Licensor may, in its sole discretion, commence or prosecute any claims or suits to protect its rights hereunder, and the Licensee agrees to cooperate fully with the Licensor, at Licensor’s expense; provided that Licensor shall consider in good faith any request by Licensee to assert Licensor’s rights in the Licensed Property that Licensee reasonably believe are adversely impacting Licensee’s rights hereunder.

 

10 Term and Termination

10.1     Term . Except as otherwise set forth in Section 2.1(a)(iii), Section 3.5 and Section 10.2, this Agreement shall begin on the Effective Date and expire twelve (12) months after the Effective Date (the “ Term ”).

10.2     Termination .

(a)    This Agreement may terminate before the expiration of its Term under any of the following circumstances:

 

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(i)    automatically, without the requirement of written notice by either Party, in the event of an Insolvency;

(ii)    automatically, if Licensee ceases use of the Licensed Property before the expiration of the Agreement;

(iii)    automatically, if an Acquisition occurs with an entity other than a Radio Entity;

(iv)    by either Party (“ Non-Defaulting Party ”), upon written notice to the other Party, if the other Party or, where the Licensee is the other party, any Permitted Sublicensee (the “ Defaulting Party ”) fails to comply with any of its material obligations pursuant to this Agreement and does not within 15 days of receipt of written notice from the Non-Defaulting Party specifying the failure, for any such failure, either: (x) remedy such failure (if capable of being remedied) or (y) if the failure is not capable of being remedied, agree with the Non-Defaulting Party upon a plan to mitigate the impact of such failure and to prevent such failure from occurring in the future;

(v)    by either Party immediately on written notice to the other Party on the third (3rd) or any subsequent failure to comply with any material obligation of this Agreement by the other Party or, where the Licensee is the other Party, by any Permitted Sublicensee, provided that the non-breaching Party has provided written notice to the breaching Party on two prior occasions of breach and, upon each such prior notice, provided the breaching party with a 15 calendar day opportunity to cure such failure to comply with such material obligation or obligations; or

(vi)    by the Licensor immediately on written notice to the Licensee, if the Licensee or any Permitted Sublicensee, alone or with others, seeks a declaration or other order from a Governmental Authority that any of Licensor’s or its Affiliates’ rights in or to any Licensed Property, or any registration thereof, is invalid or otherwise attacks the validity of the foregoing.

(b)    This Agreement shall terminate, upon written notice delivered by the Licensor to the Licensee, if there is a purported unauthorized assignment or transfer in violation of Section 12.7; provided that the Licensee shall have 15 calendar days from the latest delivery of such notice of breach to cure such purported unauthorized assignment or transfer.

10.3     Acquisitions . Licensee shall provide Licensor written notice immediately or, where confidentiality obligations apply, immediately upon public announcement of reaching agreement with any Person for any Acquisition of any member of the Licensee or any Permitted Sublicensee.

10.4     Survival . Upon any expiration or termination of this Agreement in its entirety, as expressly set forth in this Section 10.4, all rights to use any Licensed Property granted pursuant to this Agreement to the Licensee and all Permitted Sublicensees shall immediately cease and the Licensee and all Permitted Sublicensees shall take all necessary steps to cease use of the Licensed Property in all ways, except as permitted under Section 7.24(c) of the Merger Agreement or the other CBS Brands License Agreements. Upon any expiration or termination of

 

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this Agreement as to, as expressly set forth in this Section 10.4, any Permitted Sublicensee, all rights to use any Licensed Property granted pursuant to this Agreement to such Permitted Sublicensee shall immediately cease and such Permitted Sublicensee shall take all necessary steps to cease use of the Licensed Property in all ways, except as permitted under Section 7.24(c) of the Merger Agreement or the other CBS Brands License Agreements. The foregoing obligations to cease use include, in each case, the following, except as permitted under Section 7.24(c) of the Merger Agreement or the other CBS Brands License Agreements:

(a)    change all of the registered and unregistered business names, registered company names and the name of the Radio Business to names that do not include the Trademarks, “CBS” or any term confusingly similar or any term that implies association or successor relationship with the Licensor or its Affiliates;

(b)    cease the use of all Domain Names;

(c)    cease use of the Licensed Property in all Promotional Use;

(d)    remove or obliterate all signage that displays the Licensed Property; and

(e)    at the Licensor’s reasonable written request, destroy all marketing, promotional or other materials bearing the Licensed Property for which a license is granted pursuant to this Agreement.

10.5     Wind Down . With respect to any termination under Section 10.2(a)(iv), the Licensee and Permitted Sublicensees will be given until the earlier of (x) thirty (30) days following any such termination and (y) the expiration of the Term to wind down their use of the Licensed Property.

10.6     Survival . Notwithstanding anything herein to the contrary, Articles 4, 8, 9 and 11-12, Sections 2.6 (for the period set forth therein), 3.7 and this Section 10.6 shall survive any expiration or termination of this Agreement and shall remain in full force and effect.

 

11 Indemnification

11.1    The Licensor agrees to indemnify and hold harmless Licensee, its past, present or future Subsidiaries and Affiliates and Permitted Licensees and any of its or their past, present or future Representatives, heirs, executors and any of its or their permitted successors and assigns (“ Licensee Indemnified Parties ”) against any and all payments, losses, liabilities, damages, claims, and expenses (including attorney’s fees and expenses incurred in good faith) and costs whatsoever (“ Losses ”), as incurred, arising out of or relating to (a) any third-party claims of infringement, dilution or unfair competition arising from the use of the Licensed Property as described herein to the extent that Licensee’s use of the Licensed Property is in compliance with the terms of this Agreement; (b) any violation by the Licensor of applicable laws; and (c) any violation or breach of this Agreement by the Licensor. In the event of any such Losses involving an allegation of trademark infringement, the Licensee shall take all actions requested by the Licensor in order to mitigate any damages and other costs in connection therewith, including ceasing or modifying use of any Licensed Property.

 

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11.2    The Licensee agrees to indemnify and hold harmless the Licensor and its past, present or future Subsidiaries and Affiliates and any of their past, present or future Representatives, heirs, executors and any of their permitted successors and assigns (“ Licensor Indemnified Parties ”) against any and all Losses, as incurred, arising out of or relating to (a) all claims with respect to the use of the Licensed Property (including use by or on behalf of any Permitted Sublicensee) except third-party claims of infringement, dilution or unfair competition as set forth in Section 11.1(a) above; (b) any violation by the Licensee or any Permitted Sublicensee of applicable laws; and (c) any violation or breach of this Agreement by the Licensee or any Permitted Sublicensee.

11.3    The provisions of Article VI of the Separation Agreement shall govern claims for indemnification under this Agreement.

 

12 General

12.1     No Agency . Nothing in this Agreement shall be deemed to create any joint venture, partnership or principal agent relationship between the Licensee and the Licensor or any of their Affiliates and no Party shall hold itself out in its advertising or otherwise in any manner which would indicate or imply any such relationship with the other or its Affiliates.

12.2     Entire Agreement . This Agreement, the Separation Agreement and the Merger Agreement constitute the entire agreement between CBS and/or the Licensor, on the one hand, and the Licensee, on the other hand, with respect to the Licensed Property, supersede all prior written and oral and all contemporaneous oral agreements, negotiations, discussions, writings, understandings, commitments and conversations with respect to such subject matter and there are no agreements or understandings between CBS and/or the Licensor, on the one hand, and the Licensee, on the other hand other than those set forth or referred to herein or therein.

12.3     Amendments . No provision of this Agreement, including any Schedules to this Agreement, may be amended, supplemented or modified except by a written instrument making specific reference to this Agreement or any such Schedules to this Agreement, as applicable, signed by the Licensor, Radio and Acquiror.

12.4     Dispute Resolution . Any Agreement Dispute shall be resolved in accordance with the procedures set forth in Article VII of the Separation Agreement, which shall be the sole and exclusive procedures for the resolution of any such Agreement Dispute unless otherwise specified herein or in Article VII of the Separation Agreement.

12.5     Liability . Except in connection with breaches of Section  12.6 or a Party’s indemnification obligations under Article 11 , neither Party shall be liable in contract, tort (including negligence) or otherwise arising out of or in connection with this Agreement for any special, punitive, indirect or consequential loss or damage including any economic loss (including loss of revenues, profits, contracts, business or anticipated savings); in any case, whether or not such losses were within the contemplation of the Parties at the date of this Agreement.

12.6     Confidentiality . Each Party shall keep confidential the terms and conditions of this Agreement and all information concerning the business of the other Party hereto exchanged

 

14


in the course of negotiating the same or pursuant to the terms hereof and shall not divulge the same to any third parties (other than to their respective professional advisers), provided that the foregoing shall not apply to information (a) already in the public domain at the time the information is disclosed other than as a result of disclosure in violation of any confidentiality obligation or agreement, (b) required by law to be disclosed in any document to be filed with any Governmental Authority, (c) required to be disclosed by court or administrative order or under laws, rules and regulations applicable to such Party or its respective Affiliates (including securities laws, rules and regulations), as the case may be, or pursuant to the rules and regulations of any stock exchange or stock market on which securities of such Party or its respective Affiliates may be listed for trading, (d) disclosed by Licensor for the purpose of maintaining or enforcing its rights under this Agreement or to any of the Licensed Property, or (e) disclosed with the prior written approval of the other Party.

12.7     Assignability .

(a)    This Agreement shall not be assigned or transferred by Licensee in whole or in part by operation of Law, except in an Acquisition of the Licensee with a Radio Entity, and only with the prior written consent of the Licensor, which consent will not be unreasonably withheld; provided that Radio upon written notice to the Licensor may assign or transfer this Agreement in whole to its wholly-owned Subsidiary or in an Acquisition of the Licensee with a Radio Entity without consent; provided , further , that in the event of any permitted assignment or transfer by Licensee in accordance with the foregoing, Licensee shall provide a guarantee to the Licensor (in a form reasonably agreed upon) for any liability or obligation of the assignee or transferee under this Agreement and the assignee or transferee shall agree in a written agreement with the Licensor to assume all of the obligations under this Agreement relating to the Licensee.

(b)    Any purported assignment or transfer in violation of this Section 12.7 shall be null and void and of no effect.

(c)    Subject to the foregoing Sections 12.7(a) and 12.7(b), this Agreement shall be binding upon and inure to the benefit of and be enforceable by the Parties and their permitted successors and assigns.

(d)    For the purposes of this Agreement, a “successor” shall include any entity that is a legal successor to either Party as a result a sale or acquisition of such Party, whether by merger, consolidation, sale of all or substantially all of such Party’s assets.

12.8     Notices . All notices, requests, claims, demands and other communications under this Agreement shall be in writing and shall be given or made (and shall be deemed to have been duly given or made upon receipt) by delivery in person, by overnight courier service, by facsimile or electronic transmission 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 shall be specified in a written notice given in accordance with this Section 12.8):

 

15


(a) if to Licensor:

CBS Corporation

51 West 52 nd Street

New York, New York 10019

  Attn: Chief Legal Officer and Trademarks Counsel
  Fax: 212-975-4215

and to:

CBS Broadcasting Inc.

Attn: Chief Legal Officer and Trademarks Counsel

51 West 52 nd Street

New York, New York, 10019

  Fax: 212-975-4215

with a copy (which shall not constitute notice) to:

Wachtell, Lipton, Rosen & Katz

51 West 52nd Street

New York, NY 10019

  Fax: (212) 403-2000
  Attention: David E. Shapiro, Esq.
       Marshall P. Shaffer, Esq.

(b) if to Licensee or any Permitted Sublicensee (such notices shall be deemed given to each Permitted Sublicensee if given or served to Licensee):

CBS Radio Inc.

1271 Avenue of the Americas, Fl. 44

New York, NY 10020

  Attn: General Counsel
  Fax: 212-246-3657

Entercom Communications Corp.

401 E. City Avenue, Suite 809

Bala Cynwyd, PA 19004

  Fax: (610) 660-5662
  Attention: Andrew P. Sutor, IV,
       Senior Vice President and General Counsel

with a copy (which shall not constitute notice) to:

Latham & Watkins LLP

330 N. Wabash Ave., Suite 2800

Chicago, IL 60611

  Fax: (312) 993-9767
  Attention: Mark D. Gerstein
       Zachary A. Judd

 

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12.9     Waivers . The observance of any term of this Agreement may be waived (either generally or in a particular instance and either retroactively or prospectively) by the Party entitled to enforce such term (each such entity, a “ Waiving Entity ”), but such waiver shall be effective only if it is in writing signed by a duly authorized officer of the Waiving Entity against which such waiver is to be asserted. Unless otherwise expressly provided in this Agreement, no delay or omission on the part of any Party in exercising any right or privilege under this Agreement shall operate as a waiver thereof, nor shall any waiver on the part of any Party of any right or privilege under this Agreement operate as a waiver of any other right or privilege under this Agreement, nor shall any single or partial exercise of any right or privilege preclude any other or future exercise thereof or the exercise of any other right or privilege under this Agreement. No failure by either Party to take any action or assert any right or privilege hereunder shall be deemed to be a waiver of such right or privilege in the event of the continuation or repetition of the circumstances giving rise to such right unless expressly waived in writing by the entity against whom the existence of such waiver is asserted. The rights and remedies of the Parties hereunder are cumulative and are not exclusive of any rights or remedies that they would otherwise have hereunder.

12.10     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 shall nevertheless remain in full force and effect so long as the economic or legal substance of the transactions contemplated by this Agreement is not affected in any manner materially adverse to either the Licensor or the Licensee. Upon such determination that any term or other provision is invalid, illegal or incapable of being enforced, the Licensor and the Licensee shall negotiate in good faith to modify this Agreement so as to effect the original intent of the Licensor and the Licensee 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.

12.11     No Third-Party Beneficiaries . Except to the extent that this Agreement shall benefit Acquiror, as set forth explicitly herein, and to the extent of any indemnification of any Licensee Indemnified Parties and Licensor Indemnified Parties, as set forth in Section 11, this Agreement is for the sole benefit of the Licensor and the Licensee and their permitted successors and assigns and nothing in this Agreement, express or implied, is intended to or shall confer upon any other Person any legal or equitable right, benefit or remedy of any nature whatsoever, including any rights of employment for any specified period, under or by reason of this Agreement.

12.12     Counterparts . This Agreement may be executed in one or more counterparts, and by each Party in separate counterparts, each of which when executed shall be deemed to be an original but all of which taken together shall constitute one and the same agreement. Delivery of an executed counterpart of a signature page to this Agreement by facsimile or portable document format (PDF) shall be as effective as delivery of a manually executed counterpart of this Agreement.

 

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12.13     Rules of Construction . Interpretation of this Agreement shall be governed by the following rules of construction: (a) words in the singular shall be held to include the plural and vice versa, and words of one gender shall be held to include the other gender as the context requires; (b) references to the terms Article, Section, paragraph and Schedules are references to the Articles, Sections, paragraphs and Schedules of this Agreement unless otherwise specified; (c) references to “ $ ” shall mean U.S. dollars; (d) the word “including” and words of similar import when used in this Agreement shall mean “including without limitation,” unless otherwise specified; (e) the word “or” shall not be exclusive; (f) references to “written” or “in writing” include in electronic form; (g) provisions shall apply, when appropriate, to successive events and transactions; (h) the headings contained in this Agreement are for reference purposes only and shall not affect in any way the meaning or interpretation of this Agreement; if an ambiguity or question of interpretation should arise, this Agreement shall be construed as if drafted jointly by the Licensor and the Licensee and no presumption or burden of proof shall arise favoring or burdening either Party by virtue of the authorship of any of the provisions in this Agreement or any interim drafts of this Agreement; (i) a reference to any Person includes such Person’s permitted successors and permitted assigns; (j) any reference to “days” means calendar days unless Business Days are expressly specified; and (k) when calculating the period of time before which, within which or following which any act is to be done or step taken pursuant to this Agreement, the date that is the reference date in calculating such period shall be excluded, and if the last day of such period is not a Business Day, the period shall end on the next succeeding Business Day. Any action, determination or approval of or required by the Licensor under this Agreement shall be understood to be at the Licensor’s sole discretion unless expressly stated otherwise hereunder.

12.14    Parties in Interest. This Agreement is binding upon and is for the benefit of the Parties and, as set forth in Section 12.7, their respective permitted successors and permitted assigns.

12.15    Jurisdiction.

(a)    This Agreement is to be construed in accordance with and governed by the internal laws of the State of Delaware without giving effect to any choice of law rule that would cause the application of the laws of any jurisdiction other than the internal laws of the State of Delaware to the rights and duties of the Parties.

(b)    EACH PARTY TO THIS AGREEMENT WAIVES TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM BROUGHT BY ANY OF THEM AGAINST THE OTHER ARISING OUT OF OR IN ANY WAY CONNECTED WITH THIS AGREEMENT OR THE ADMINISTRATION THEREOF. NO PARTY TO THIS AGREEMENT SHALL SEEK A JURY TRIAL IN ANY LAWSUIT, PROCEEDING, COUNTERCLAIM OR ANY OTHER LITIGATION PROCEDURE BASED UPON, OR ARISING OUT OF, THIS AGREEMENT. NO PARTY WILL SEEK TO CONSOLIDATE ANY SUCH ACTION IN WHICH A JURY TRIAL HAS BEEN WAIVED WITH ANY OTHER ACTION IN WHICH A JURY TRIAL CANNOT BE OR HAS NOT BEEN WAIVED. EACH PARTY TO THIS AGREEMENT CERTIFIES THAT IT HAS BEEN INDUCED TO ENTER INTO THIS AGREEMENT OR INSTRUMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS SET FORTH ABOVE IN THIS SECTION.

 

18


NO PARTY HAS IN ANY WAY AGREED WITH OR REPRESENTED TO ANY OTHER PARTY THAT THE PROVISIONS OF THIS SECTION WILL NOT BE FULLY ENFORCED IN ALL INSTANCES.

[ Remainder of Page Intentionally Left Blank;

Signature Page Follows. ]

 

19


IN WITNESS WHEREOF, the Parties have caused this Agreement to be duly executed and delivered as of the Effective Date.

 

CBS BROADCASTING INC.
By:  

/s/ Joseph R. Ianniello

  Name:   Joseph R. Ianniello
  Title:   Executive Vice President
CBS RADIO INC.
By:  

/s/ Andre Fernandez

  Name:   Andre Fernandez
  Title:   President & Chief Executive Officer, CBS Radio

 

[Signature Page to License Agreement #1 (CBS RADIO brand)]

Exhibit 2.8

EXECUTION VERSION

 

 

 

TRADEMARK LICENSE AGREEMENT (TV STATION BRANDS)

BY AND BETWEEN

CBS BROADCASTING INC.

CBS MASS MEDIA CORPORATION

AND

CBS RADIO INC.,

AND CERTAIN SUBSIDIARIES OF CBS RADIO INC.

DATED AS OF NOVEMBER 16, 2017


LICENSE AGREEMENT (TV STATION BRANDS)

This TRADEMARK LICENSE AGREEMENT (TV STATION BRANDS) (this “ Agreement ”), dated as of November 16, 2017 (the “ Effective Date ”), is by and between CBS Broadcasting Inc., a New York corporation (“ CBS Broadcasting ”), and CBS Mass Media Corporation, a Delaware corporation (“ CBS Mass Media ” and together with CBS Broadcasting, the “ Licensors ”), on the one hand, and CBS Radio Inc., a Delaware corporation (“ Radio ”), and certain Subsidiaries of Radio that are executing this Agreement as “Licensees” as set forth on the signature pages hereof (together with Radio and its wholly-owned direct and indirect Subsidiaries, the “ Licensees ”), on the other hand. Unless otherwise defined in this Agreement, all capitalized terms used in this Agreement shall have the meanings set forth in the Separation Agreement, dated as of February 2, 2017, by and between CBS Corporation, a Delaware corporation (“ CBS ”) and Radio (as amended, modified or supplemented from time to time in accordance with its terms, the “ Separation Agreement ”).

RECITALS

WHEREAS, prior to the Separation (as defined below), CBS was engaged, directly and indirectly, in the Radio Business and Radio was a wholly owned indirect subsidiary of CBS;

WHEREAS, pursuant to the Merger Agreement, Entercom Communications Corp. (“ Entercom ”), a Pennsylvania corporation, has agreed to acquire the Radio Business and in order to facilitate the transactions contemplated thereby, the Parties have agreed to separate the Radio Business from the other businesses of CBS, on the terms and conditions set forth in the Separation Agreement and the Merger Agreement (the “Separation”);

WHEREAS, the Merger Agreement requires execution and delivery of this Agreement by Licensors and Licensees on the Distribution Date; and

WHEREAS, in order to allow the Radio Business to operate the Parties desire that Licensors grant certain licenses to use certain of their assets.

NOW, THEREFORE, in consideration of the premises and the covenants and agreements contained herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, intending to be legally bound, the Parties agree as follows:

 

1 Definitions and Interpretations

1.1    In this Agreement, the following terms shall have the following meanings assigned to them:

(a)    “ Acquisition ” means, except for any transaction contemplated by the Separation Agreement, the Merger Agreement or any Ancillary Agreement, with respect to any Licensee, (i) a transaction whereby any Person or group (within the meaning of Section 13(d)(3) of the Securities and Exchange Act of 1934, as amended) would acquire, directly or indirectly, voting securities representing more than 30% of the total voting power of any Licensee; (ii) a

 

2


merger, consolidation, recapitalization or reorganization of any Licensee, unless securities representing more than 70% of the total voting power of the legal successor to any Licensee as a result of such merger, consolidation, recapitalization or reorganization are immediately thereafter beneficially owned, directly or indirectly, by the Persons who beneficially owned outstanding voting securities of any Licensee, immediately prior to such transaction; or (iii) the sale of all or substantially all of the consolidated assets of the any Licensee;

(b)    “ Agreement ” has the meaning set forth in the Preamble;

(c)    “ Applicable Licensee ” means, with respect to a Licensed Radio Station, the Licensee for such Licensed Radio Station as set forth on Schedule 1;

(d)    “ Brand Guidelines ” means the applicable brand guidelines for each Licensed Radio Station attached as Schedule 2, as may be updated from time to time by Licensors on reasonable prior written notice to Licensees;

(e)    “ CBS ” has the meaning set forth in the Preamble;

(f)    “ Defaulting Party ” has the meaning set forth in Section 10.2(a)(v);

(g)    “ Divested Station ” means a radio station previously or currently owned by Licensor or an affiliate of Licensor in the Radio Business, which is being sold or otherwise transferred, or is planned to be sold or otherwise transferred, in connection with the consummation of the transactions contemplated by the Separation Agreement and Merger Agreement.

(h)    “ Domain Names ” means the domain names listed under the “Domain Names” column set forth on Schedule 1 (or as may be deemed added to that schedule by written agreement of the Parties);

(i)    “ Effective Date ” has the meaning set forth in the Preamble;

(j)    “ Effective Time ” has the meaning set forth in the Preamble;

(k)    “ Eye Design ” means the trademark LOGO ;

(l)    “ Format ” means, with respect to each Station Business, the format for such Station Business that is set forth under the “Format” column on Schedule 1;

(m)    “ Insolvency ” means the earlier of any of the following with regard to any entity, as specified herein: (i) a voluntary or involuntary proceeding or petition is commenced or filed seeking relief under any federal, state or foreign bankruptcy, insolvency, receivership or other law providing relief for debtors; (ii) the appointment of a receiver, trustee, custodian, sequestrator, conservator or similar official or any petition for or acquiescence in the appointment thereof; (iii) winding-up or liquidation or other cessation of operations, or suspension of all or a substantial part of its business, or (iv) a general assignment for the benefit of creditors or inability, admitting in writing its inability or failing generally to pay its debts as they become due or the occurrence of any event which accelerates or permits acceleration of the maturity of any of its debts;

 

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(n)    “ Licensed Market ” means, with respect to each Licensed Radio Station, the designated marketing area (“ DMA ”) as established by Nielsen as of the Effective Date for such Licensed Radio Station as identified under the “Market” column on Schedule 1 (and as may be updated by Nielsen from time to time);

(o)    “ Licensed Property ” means the Trademarks and Domain Names. For the avoidance of doubt, the term “Licensed Property” excludes the trademarks “CBS RADIO” and “CBS SPORTS RADIO” (which are subject to other CBS Brand License Agreements) and the trademark “CBS NEWS RADIO”;

(p)    “ Licensed Radio Station ” means the radio stations including HD stations identified under the “Radio Station” column on Schedule 1 that are owned and operated by the Applicable Licensee set forth in Schedule 1, as Licensee will update and deliver to Licensors promptly in connection with changes in Licensed Radio Stations and Licensees made under Section 12.7(b) in this Agreement, and are not otherwise terminated pursuant to Section 10.2;

(q)    “ Licensed Services ” has the meaning set forth in Section 2.1;

(r)    “ Licensee ” has the meaning set forth in the Preamble and shall be deemed to be a Licensee hereunder with respect to (i) Radio Station Call Letters if listed as a “Radio Station Call Letter Licensee” on Schedule 1 and (ii) Radio Station Branding if listed as a “Radio Station Branding Licensee” on Schedule 1; provided that a Licensee shall no longer be deemed to be a Licensee hereunder if it is terminated pursuant to Section 10.2 and shall no longer be deemed to be a Licensee hereunder with respect to a particular Licensed Radio Station if such Licensed Radio Station is terminated pursuant to Section 10.2;

(s)    “ Licensee Indemnified Parties ” has the meaning set forth in Section 11.1;

(t)    “ Licensor ” has the meaning set forth in the Preamble;

(u)    “ Licensor Indemnified Parties ” has the meaning set forth in Section 11.2;

(v)    “ Non-Defaulting Party ” has the meaning set forth in Section 10.2(a)(v);

(w)    “ Party ” means either Licensors or Licensees and “ Parties ” means collectively Licensors and Licensees;

(x)    “ Permitted Sublicensee ” has the meaning set forth in Section 2.5; provided that a Permitted Sublicensee shall no longer be deemed to be a Permitted Sublicensee hereunder if it is terminated pursuant to Section 10.2 and shall no longer be deemed to be a Permitted Sublicensee hereunder with respect to a license under Section 2.1 as to a particular Licensed Radio Station if such Licensed Radio Station is terminated pursuant to Section 10.2;

(y)    “ Permitted Video Use ” has the meaning set forth in Section 2.4;

 

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(z)    “ Promotional Use ” means, subject to the Permitted Video Uses set forth in Section 2.4, promotion internally facing to Licensees’ employees or Affiliates and promotion externally facing to the public of the Station Business, including: (i) any such use on any Licensed Radio Station (both analog and digital signal); (ii) any such use on any current or future online or digital platform (including a platform or audio application whether owned or operated by CBS or its Affiliates or a third party) which permits promotion of brands, promotional content (including user generated content), or services to the general public or a group of users or consumers, including YouTube, Twitter, Facebook, Snapchat and Instagram (the foregoing platforms and other similar platforms, “ Social Digital Platforms ”), (iii) all forms of promotions of a Station Business by or on behalf of a Licensee or Permitted Sublicensee, including joint promotions, promotion on a Social Digital Platform or registering a Social Digital Platform Account Name; (iv) any concert, festival, party, production, performance, live show, or other event held, organized, promoted or sponsored by or on behalf of a Licensee or Permitted Sublicensee; (v) merchandise that displays the Licensed Property; and (vi) any other promotion of the Station Business as used as of the Effective Date.

(aa)    “ Radio Business ” has the meaning set forth in the Separation Agreement, as applicable, provided that for the purposes of this Agreement, the “Radio Business” shall include the distribution of Audio Products by Radio Station broadcasts or audio-only technology and audio-only distribution methods now known or later developed during the Term.

(bb)    “ Radio Entity ” means an entity engaged in the business of radio broadcasting in the United States or engaged in the business of audio streaming in the United States, and in either case not engaged in the business of television broadcasting in the United States.

(cc)     “ Radio Indicator ” means any identifier that is used consistently in audio and written forms (and with respect only to a Licensee, for the Licensed Radio Station Call Letters and the Licensed Radio Station Branding as at the Effective Date and shown on Schedule 1) that (i) indicates that a service (and with respect only to a Licensee, a Licensed Service) is being provided by a terrestrial radio station and (ii) includes at least one of the following:

(i)    an indication whether the radio station is an AM or FM or HD station, expressed as “AM” or “FM” or “FM-HD2” or “FM-HD3”;

(ii)    the terrestrial radio dial location (e.g., “880” or “1060”);.

(iii)    to the extent there are no other Relevant Radio Stations using Trademarks as of the Effective Date, the term “Radio;” or

(iv)    such other term that Licensors approve in advance in writing (such approval not to be unreasonably withheld) as sufficient to indicate that the Licensed Services are from a terrestrial radio source and would not create a risk of confusion with CBS’ or its Affiliates’ current or anticipated business (e.g. Format such as “Talk Radio”);

(dd)    “ Radio Station Branding ” means the branding for the Licensed Radio Station operated by the Applicable Licensee that is set forth under the “Radio Station Branding” column on Schedule 1;

 

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(ee)    “ Radio Station Call Letters ” means the call letters assigned by the Federal Communications Commission to the Licensed Radio Station operated by the Applicable Licensee that are set forth under the “Radio Station Call Letters” column on Schedule 1;

(ff)    “ Relevant Radio Stations ” means the radio stations identified under the “Licensed Radio Station” column on Schedule 1, including any radio stations terminated, assigned or sublicensed under this Agreement, and any stations listed in Schedule 3;

(gg)    “ Separation Agreement ” has the meaning set forth in the Preamble;

(hh)    “ Social Digital Platform ” has the meaning set forth in Section 1.1(z);

(ii)    “ Social Digital Platform Account Name ” means a method of identification or authentication of a user or publisher on a Social Digital Platform, including registering a name, setting up an account name, and/or otherwise establishing a means of identification.

(jj)    “ Station Business ” means, with respect to a Licensed Radio Station, the conduct of the Radio Business of such radio station in its Licensed Market and Format;

(kk)    “ Term ” has the meaning set forth in Section 10.1; and

(ll)    “ Trademarks ” means the registered trademarks that contain WCBS, KCBS, KDKA, WBBM, KYW, WBZ, WCCO, WJZ or WWJ, as listed under the “Trademarks” column set forth on Schedule 1, which registrations may be updated from time to time by Licensors at their sole discretion, together with all unregistered trademarks, service marks, trade names, logos and designs that are incorporated in the Radio Station Call Letters, Radio Station Branding and Domain Names.

 

2 Grant of Rights

2.1    Subject to the terms and conditions of this Agreement and for no additional royalties or consideration apart from the consideration provided to CBS in connection with the Separation, each Licensor hereby grants to the Applicable Licensee (as set forth on Schedule 1) for the applicable Licensed Radio Station, a limited, non-exclusive (but subject to Section 2.6), non-assignable and non-transferrable (except as set forth in Section 12.7), non-sublicensable (except as set forth in Section  2.5 ) license in the Licensed Market (except as set forth in Section 2.2) for a period not to exceed the Term applicable to such use to:

(a)    use the Trademarks as part of the Radio Station Branding including on terrestrial radio, online, digital and Promotional Use and distribution of the Radio Station broadcasts and simultaneous audio streams of the Radio Station broadcasts on audio-only media, and via audio-only technology and audio-only distribution methods now known or later developed during the Term, in each case solely to the extent used with a Radio Indicator for any audio use and any Permitted Video Use (except that de minimis use of the Trademarks in audio only content without a Radio Indicator (i.e. audio only use of “KYW News coming up on the hour”) is permitted hereunder);

 

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(b)    use the Trademarks as part of the Radio Station Call Letters solely to the extent used with a Radio Indicator (except that de minimis use of a shortened form of the trademarks “WCBS” and “KCBS” in audio-only content, solely to the extent used with a Radio Indicator but never as primary branding, is permitted hereunder); and

(c)    subject to Section 3.6, use the Domain Names;

in each case under the foregoing (a)-(c) solely as used to identify the Station Business consistent with the manner and extent of such use as of the Effective Date (the foregoing collectively referred to herein as the “ Licensed Services ”); provided that Licensee shall take reasonable efforts to wind-down and cease such licensed use of the Eye Design as soon as practicable after the Effective Date, and the Licensed Property as required in order to meet its obligations under Sections 3.7 and 10.4, and, in any event, no later than the expiration of the applicable Term.

2.2     Licensed Market Uses . Under the license granted pursuant to Section 2.1, the Licensees may use the Licensed Property for the Licensed Services only in the Licensed Market; provided , however , the Parties hereto acknowledge that the Licensees are permitted to use the Licensed Property for terrestrial radio broadcasting, and related online, digital uses and Promotional Use for providing the Licensed Services and the marketing and promotion thereof to users and consumers which are solely directed to the Licensed Market and the Parties acknowledge that such broadcasts and related online, digital uses or Promotional Uses may be accessed or consumed by users or consumers outside the License Market (“ Spill-Over Use ”), and Licensees are permitted to use the Licensed Property for the Licensed Services directed outside the Licensed Market solely for joint promotions that involve other Licensed Radio Stations (“ Multi Market Promotion ”). Licensees may not direct use of the Licensed Property to terrestrial radio, online or digital users or consumers outside the Licensed Market, except Spill-Over Use and Multi Market Promotion will not be a breach of Section 2.1 nor this Section 2.2.

2.3     Prohibited Uses of Licensed Property .

The Licensees may use the Licensed Property only in the applicable Format and may not use the Licensed Property for any good or service or in any manner that is: (a) pornographic or reasonably considered by Licensors as offensive; or (b) unlawful or obscene (as determined in accordance with applicable Federal Communications Commission standards). The Parties acknowledge and agree that all uses of the Licensed Property that are consistent with the uses of the Licensed Property by the Radio Business during the one year period prior to the Effective Date are not prohibited by this Section 2.3.

2.4     Further Prohibited Uses of Licensed Property . The Licensees shall not use the Licensed Property to identify audio-visual content including news, sports, weather, traffic reporting or other videos or video services (including, video-on-demand or video streaming, syndication of video content or video streams, or any other distribution of audio-visual content), except (a) in simultaneous video streams or recordings that are created by a Licensee’s placement of camera(s) in a terrestrial radio studio to capture the simultaneous broadcast of audio programming of a Station Business; (b) in musical performances and associated music videos; (c) in audio-visual recordings of interviews streaming from or recorded at speaker series, panel discussions or conferences hosted by a Licensee, a Permitted Sublicensee, or a Licensed

 

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Radio Station; and (d) use of promotional video on Social Digital Platforms provided that such video: (i) is less than two (2) minutes, (ii) is promotional of the Radio Business in nature and not a separately marketable video product, and (iii) is not a series or stream of news, traffic, sports or weather reporting including updates; in each case always used with a Radio Indicator (“ Permitted Video Use ”). To the extent that a Licensee wishes to create and distribute audio-visual content other than Permitted Video Use, the Licensee (i) may not use the Licensed Property or any term confusingly similar thereto in connection therewith and (ii) must develop and use a name to identify the applicable Station Business and other identifiers for such audio-visual content in each case that does not include (in whole or in part) the Licensed Property, the Eye Design or the name and trademark “CBS” or any term that is confusingly similar to any of the foregoing (e.g. for such uses, a Licensee may use a name such as “Newsradio 1060” but not “KYW Newsradio 1060”).

2.5     Permitted Sublicensees. In addition to Section 2.8, a Licensee may not license or authorize any other Person to use the Licensed Property, except that a Licensee may grant limited, non-assignable (including non-assignable in an Acquisition) sublicenses of its rights under Section 2.1 to any Affiliate providing support or services to such Licensee in connection with the applicable Station Business as well as to those third parties who have been granted licenses or sublicenses of the Licensed Property by Licensors or any of their Affiliates in connection with the operation of the Radio Business during the one year period prior to the Effective Date ( provided that the sublicense to such third party is for uses substantially similar to those permitted by Licensors and their Affiliates during the one year period prior to the Effective Date), or to any third parties for which such Licensee obtains prior written consent of Licensors (which shall not be unreasonably withheld); provided that (a) such Licensee has sent Licensors written notice with detailed information regarding all proposed uses of the Licensed Property by such third party (including identification of all types of uses and media in connection with which the Licensed Property will be used); and (b) such third parties agree to comply with all terms and conditions hereunder applicable to the Licensees (each a “ Permitted Sublicensee ”); provided that Licensors may terminate the purported sublicense to use the Licensed Property granted to any purported Permitted Sublicensee at any time if the transfer or assignment of such Licensed Property to such Permitted Sublicensee occurred in violation of the foregoing requirements of this Section 2.5. Notwithstanding the grant of any sublicenses, the Licensees shall remain liable for compliance by such Permitted Sublicensees with all terms and conditions of this Agreement applicable to the Licensees and such terms and conditions shall be deemed to be applicable to each Permitted Sublicensee. For the avoidance of doubt, there is nothing in this Agreement that permits any Licensee’s use of Licensed Property at radio stations other than those listed on Schedule 1.

For the avoidance of doubt, the Licensees may engage manufacturers and service providers to apply the Trademarks to Licensees’ promotional goods of the types and in the manners used prior to the Effective Date, or otherwise use the Trademarks in connection with the advertising or marketing of Licensees’ Licensed Services solely at the direction and on behalf of the Licensee (e.g. t-shirt or banner manufacturer or newspaper carrying an advertisement) without prior consent or approval from Licensor.

2.6     Licensors Restrictions . The Licensors agree not to use or license (or cause or induce or permit others to do so) any Licensed Property in connection with the operation of a

 

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terrestrial radio network or with any Radio Indicators during the applicable Term for such Licensed Property, unless the right to use the Licensed Property is earlier terminated or assigned or sublicensed to a Divested Station. For the avoidance of doubt, the Licensors’ use or license of (a) the Licensed Property (i) without Radio Indicators , or (ii) with relevant Radio Indicators as listed on Schedule 1 for Radio Stations where a Divested Station is licensed to use the same Trademarks as listed in the Trademarks column in Schedule 1 (e.g. KCBS-FM and WCBS-AM or WCBS Newsradio 880); and (b) the marks “CBS,” “CBS NEWS RADIO” or “CBS RADIO NEWS” (either alone or in combination with other symbols, words, phrases or logos) is not prohibited by the foregoing . The Licensors shall not grant consent to any third party to use any of the Licensed Property as call letters for a radio station, even if its status at the Federal Communications Commission would permit the Licensors to provide such consent except to a Divested Station.

2.7     Licensors Reserved Rights . All rights of the Licensors and their Affiliates not expressly granted by the Licensors to the Licensees pursuant to this Agreement are reserved without exception or limitation.

2.8     Licensees Acknowledgement Concerning the Licensed Property . Subject to Section 2.6 and the other CBS Brands License Agreements, the Licensees hereby acknowledge and agree that:

(a)     No Claims Against CBS . For the avoidance of doubt, CBS and its Affiliates have the right to use and license (and Licensees shall not have any basis to object to or make claims against CBS or its Affiliates for their use or license of):

(i)     the Licensed Property;

(ii)    the Eye Design, “CBS,” “CBS NEWS RADIO” and “CBS RADIO NEWS”;

in the case of either (i) or (ii), either alone or in combination with other symbols, words, phrases or logos (including the Trademarks in combination with “TV” (e.g., “KYW-TV”) or any other term indicating audio or audio-visual content or other media) for any uses or licenses in connection with any goods and services (including domain names), whether known as of the date of this Agreement or created in the future, including use or license in association with any activities of CBS or its Affiliates’ television station brand names, such as WCBS and KCBS, and related activity and for any audio products or otherwise;

(iii)    “CBS RADIO” and “CBS SPORTS RADIO” (which are subject to other CBS Brand License Agreements); or

(iv)     any trademarks or domain names associated with Relevant Radio Stations not included under this Agreement.

 

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(b)     FCC Licenses . The Licensees shall not grant consent to any Person to use any of the Licensed Property as call letters, even if its status at the Federal Communications Commission would permit the Licensees to provide such consent.

(c)     Risk of Confusion . The parties shall cooperate at Licensors’ cost (approved by Licensors in advance) with any reasonable requests of Licensors in connection with any Licensed Services that may create a risk of confusion with any current or anticipated business of CBS or any of its Affiliates.

(d)    For the avoidance of doubt, except as set forth in Section 2.1, Licensees have no rights hereunder to use the Licensed Property without a Radio Indicator and all use of the Licensed Property hereunder by the Licensees (including any Promotional Use, domain names or other online or digital uses) shall be only in conjunction with a Radio Indicator.

 

3 Licensees’ Use of the Licensed Property

3.1     Brand Guidelines and Logo Changes .

(a)    The Licensees shall use the Trademarks in accordance with the Brand Guidelines as amended by the Licensors from time to time with written notice to the Licensees, shall observe all reasonable directions given by any Licensor as to the representations of the Trademarks, and shall adopt any new visual representation of the Trademarks that may be required from time to time by the Licensors upon reasonable prior written notice to Licensees (each a “ Guideline Update ”) and shall comply with all applicable Laws and the quality standards set forth in Section 3.3, provided that:

(i)    any Guideline Update required by Licensors would not reasonably be expected to effectively prohibit the use of the Trademarks by Licensees;

(ii)    if in any given 12 month period, the Guideline Updates for a Licensed Radio Station, individually or in the aggregate, require Licensees to expend material funds or resources to implement, then Licensors may not require any further Guideline Updates for such Licensed Radio Station which Licensees reasonably expects would require, individually or in the aggregate, the expenditure of material funds or resources for the subsequent one year period; and

(iii)    Licensee shall have six (6) months from receipt of Licensor’s notification of a Guideline Update to comply with such update, provided that Licensees shall use reasonable efforts to promptly complete all necessary changes. Notwithstanding the foregoing, Licensees shall not be required to implement any Guideline Update with respect to inventory, goods, material or other products existing as of the date Licensees were notified of such Guideline Update.

(b)    The Parties anticipate that the Licensees may wish to alter the Radio Station Branding during the Term (in addition to the alterations contemplated by Section 3.7), and Licensees shall obtain Licensor’s prior written approval (not to be unreasonably withheld) before adopting any new visual representation of the Trademarks or to use, reproduce or represent any of the Trademarks in any form or manner that is not already in use in the Station Businesses as of the Effective Date.

 

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3.2     Licensors’ Quality Control . The Licensees agree to provide representative samples of any goods, services and materials to or in which the Licensed Property is affixed or incorporated, including marketing and promotional materials, audio recordings of content and all other uses of the Licensed Property by the Licensees (whether written, electronic or recorded in any other medium), as reasonably requested by the Licensors. If at any time a Licensor notifies a Licensee in writing that a deficiency exists in the form, manner or quality of any goods, services or materials to or in which the Licensed Property is affixed or incorporated, the Licensee will use diligent efforts to remedy such deficiency promptly and provide such Licensor with evidence of same.

3.3     Licensees Obligations / Quality Control . In using the Licensed Property, each Licensee shall at each Licensed Radio Station:

(a)    maintain such quality standards for its business and operations in connection with each Licensed Radio Station that are in place as of the Effective Date, as well as any higher quality standards observed by the applicable Licensor or its Affiliates from time to time which are communicated to Licensees;

(b)    not do any act which would reasonably be expected to dilute or materially weaken the strength of the Licensed Property or render the Trademarks generic or invalid (it being understood that uses of the Licensed Property that are consistent with those uses by the Radio Business in the one year period prior to the Effective Date shall not be considered a breach of this Section 3.3(b));

(c)    conduct its business and operations in a manner that would not reasonably be expected to have adverse effect on the reputation of Licensors or their goodwill associated with the Licensed Property (it being understood that the conduct of the Radio Business in a manner consistent with how it was conducted during the one year period prior to the Effective Date shall not be considered a breach of this Section 3.3(c));

(d)    not perform any act or fail to act in any way that could reasonably be expected to injure, denigrate or otherwise, devalue the Licensed Property, or the goodwill or reputation, of the Licensors or any of the Licensors’ Affiliates (it being understood that actions and inactions consistent with the conduct of the Radio Business during the one year period prior to the Effective Date shall not be considered breaches of this Section 3.3(d)). The Licensees hereby agree that they will use commercially reasonable efforts to ensure that the Licensees’ employees and other personnel (and, for the avoidance of doubt, the employees and other personnel of their Permitted Sublicensees) do not make any offensive remarks, commit any criminal act, or commit any other act which could reasonably be expected to reflect unfavorably upon the Licensed Property or the Licensors or their Affiliates in any material respect; and, in the event of any such conduct, the Licensees will work with the Licensors to promptly minimize any resulting adverse impact on the Licensed Property and to remedy any such conduct (without limiting other remedies available to the Licensors under this Agreement); and

 

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(e)    not make any representation or do any act which may be taken to indicate that it has any right, title or interest in or to the ownership of any of the Licensed Property other than the licensed rights conferred by this Agreement.

3.4     Legal Lines . Each Licensee shall where practicable cause a legend in the form set out in Schedule 2 to appear on all marketing and promotional materials on or in connection with which any Trademark that has a registration set forth on Schedule 1 is used, and/or such legends, markings, and notices as the applicable Licensor may reasonably request in order to give appropriate written notice of any trademark, trade name or other rights therein; but failure to use such symbol shall not be deemed a breach of this Agreement that could give rise to termination pursuant to Section 10.2. Licensees agree that upon reasonable request from Licensors to add the aforementioned legend, Licensees will take all reasonable steps necessary to add such legend.

3.5     Domain Name Fees . The Licensees shall be responsible for all fees in connection with the registration of any Domain Names that a Licensor agrees to add to Schedule 1 and renewal of registration of the Domain Names during the applicable Term and the term of redirection set forth in Section 3.6.

3.6     Domain Name Cooperation . Subject to the Licensees’ compliance with the terms and conditions of this Agreement, the Licensors shall cooperate with the Licensees to enable the Domain Names to be directed to the appropriate servers for the websites relating to the Station Business. Furthermore, for a period of eighteen (18) months following the end of the applicable Term, Licensors agree to redirect traffic from the Domain Names to new website addresses designated by Licensees, with an appropriate notice agreed to by the Parties indicating that the applicable web site addresses have changed.

3.7     Phase Out Eye Design . The Licensees shall use all reasonable efforts to reduce their usage of the Eye Design for which a license is granted pursuant to Article 2, including by completing the removal of the Eye Design from all goods, services and materials in the Licensees’ possession or control, such that, within twelve (12) months after the Split-Off, the Licensees will have ceased and discontinued all use of the Eye Design; provided that if Licensees wish to replace any usage of the Eye Design with any new logo incorporating the Licensed Property (other than, for the avoidance of doubt, the Eye Design), Licensees shall propose to Licensors any such new logos no later than six (6) months after the Effective Date, and Licensors shall consider such proposal in good faith. A Licensee is not in breach of this Agreement if it inadvertently makes de minimis uses of the Eye Design in contravention of its obligations, so long as it quickly ceases use once such use is discovered except as otherwise provided in Section 7.24(c) of the Merger Agreement.

3.8     Phase Out Other Licensed Property . The Licensee shall use all reasonable efforts to reduce its usage of the Licensed Property WCBS and KCBS for which a license is granted pursuant to Article 2, including by completing the removal of such Licensed Property from all goods, services and materials in the Licensee’s possession or control, such that, as at the expiration of the applicable Term with respect to the usage of such Licensed Property, the Licensee will have ceased and discontinued all use of such Licensed Property in accordance with Section 10.4, except as otherwise provided in Section 7.24(c) of the Merger Agreement. A Licensee is not in breach of this Agreement if it makes de minimis use of a Licensed Property in contravention of its obligations, so long as it quickly ceases use once it discovers such use, except as otherwise provided in Section 7.24(c) of the Merger Agreement.

 

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4 Ownership

4.1    The Licensees acknowledge that nothing contained in this Agreement shall give the Licensees any right, title or interest in or to the Licensed Property or any other intellectual property of Licensors or their Affiliates, or any right to use such Licensed Property or other intellectual property in any territory save as expressly granted by the Licensors in relation to the Licensed Property under Section 2.1. Except for those rights expressly granted under Section 2.1, the Licensees will not directly or indirectly claim any rights in the Licensed Property or apply to register the Licensed Property, “CBS” or the Eye Design or any confusingly similar name or mark whether alone or in combination with any other name or mark or otherwise as copyright, trademark, trade name, domain name in any territory.

4.2    Any goodwill derived by, and any rights acquired by, any Licensee from the use of the Licensed Property or any derivatives thereof shall inure to the sole benefit of the Licensors. At the request and expense of the Licensors, the Licensees shall execute all documents or take all such actions that are reasonably necessary to assign such goodwill and/or rights to the applicable Licensor or otherwise to confirm such Licensor’s ownership of the Licensed Property.

4.3    Subject to the Licensees’ obligations to pay fees related to Domain Name registrations in Section 3.5, the Licensees agree that the Licensors will, at their sole cost and discretion, clear, file, maintain and defend any and all trademark and domain name applications and resulting registrations worldwide for the Licensed Property until the termination of this Agreement. The Licensees further agree to abide by all reasonable trademark clearance, filing and maintenance decisions made by either Licensor in connection and in accordance with this Agreement, to execute any other documents or other materials or provide such assistance as the Licensors may reasonably request in furtherance of the purpose of this Agreement, and to cooperate with the Licensors in connection therewith, as requested. Licensees may request Licensors seek trademark registration of any Licensed Property with a Radio Indicator in the name of a Licensor, and if such Licensor agrees, Licensees must promptly reimburse Licensors’ out of pocket costs and execute any other documents or other materials and provide such assistance as the Licensors request in connection therewith.

4.4    If, in breach of this Agreement, a Licensee registers, or applies to register, any copyright, trademark, trade name, domain name or other designation identical or confusingly similar to the Licensed Property, “CBS” or the Eye Design, it shall immediately, at such Licensee’s cost, transfer the registration or application to the applicable Licensor or, at a Licensor’s request, take all steps necessary to abandon, cancel or withdraw, as requested, such registration or application.

4.5    The Licensees agree that they will not, nor authorize nor permit any other Person to, and they will ensure their Affiliates do not, nor authorize any other Person to, (a) subject to Section 2.5, use or (b) apply to register any copyright, trademark, trade name, domain name or other designation identical or confusingly similar to any of the Licensed Property, “CBS” or the Eye Design or any mark which combines the Licensed Property with any other trademark, trade

 

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name or domain name or other designation, unless permitted under another written agreement with Licensors to use a brand related to Licensors’ licensed content (e.g., CBS SPORTS RADIO).

4.6    Nothing under this Agreement gives the Licensees any right to use the Licensed Property in their corporate names or registered business names; but Licensors acknowledges that the Licensees do use the Licensed Property in unregistered “d/b/a” names that include Radio Indicators (e.g., WCBS(AM) does business under the unregistered name “WCBS(AM)” or “WCBS Newsradio 880”), which use shall not be considered a breach of this Agreement.

 

5 Licensors’ Obligations

Notwithstanding anything to the contrary in this Agreement, during the applicable Term, subject to Section 3.5, Licensors shall be required to maintain all registrations set forth in Schedule 1 for the Trademarks and all registrations for the Domain Names set forth in Schedule 1 in a manner that will permit Licensees to use the Trademarks and Domain Names as set forth in this Agreement.

 

6 Warranties

6.1    Each Party hereto warrants and represents to the other Party that it has the full right, power and authority to execute and perform its obligations under this Agreement.

6.2    Each Licensor warrants and represents to the Licensees that:

(a)    it holds all such rights and interest in the Licensed Property as are required to permit such Licensor to enter into this Agreement; and

(b)    to the knowledge of Licensor’s trademark counsel as of the Effective Date, the Licensees’ use of the Licensed Property in accordance with the terms and conditions of this Agreement does not and will not infringe or violate any other Person’s intellectual property rights; and

(c)    there are no pending claims, judgments or unpaid settlements against such Licensor or any of its Affiliates relating to the Licensed Property which, if adversely determined, would have a material adverse effect on such Licensor’s ability to license the Licensed Property or interfere in any material respect with Licensees’ use of the Licensed Property during the applicable Term as set forth in this Agreement.

 

7 Taxes

[Intentionally Left Blank]

 

8 Further Assurances

Each Party shall, at the cost and the request of the requesting Party and at any time, execute such documents and perform such acts as a Party may reasonably require for the purpose of giving effect to this Agreement.

 

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9 Infringement

9.1    Each Licensee shall, as soon as it becomes aware thereof, give the Licensors full particulars, in writing, of any actual or threatened conduct of any Person which amounts or might amount either to: (a) infringement or unlicensed use of; (b) passing-off or unfair competition in relation to; or (c) breach of any analogous or comparable right of the Licensors’ rights in relation to, “CBS”, the Eye Design or the Licensed Property.

9.2    If any Licensee becomes aware of any allegation that “CBS”, the Eye Design or the Licensed Property is invalid or that use thereof infringes any rights of the Licensors or that “CBS”, the Eye Design or the Licensed Property may be susceptible to challenge, such Licensee promptly shall provide the Licensors with the particulars thereof.

9.3    The Licensors may in their sole discretion commence or prosecute any claims or suits to protect their rights hereunder, and the Licensees agree to cooperate fully with the Licensors, at the Licensors’ reasonable expense; provided that Licensors shall consider in good faith any request by Licensees to assert Licensors’ rights in the Licensed Property that Licensees reasonably believe are adversely impacting Licensees’ rights hereunder.

 

10 Term and Termination

10.1     Term . Except as otherwise set forth in Section 10.2, this Agreement shall begin on the Effective Date and be in effect:

(a)    (x) until 20 years after the Effective Date with respect to the license to use the WCBS and KCBS Licensed Property for all uses including as and to the extent used as Trademarks and in the Radio Station Call Letters, Radio Station Branding and Domain Names; and (y) perpetually with respect to the license to use the KDKA, WBBM, KYW, WBZ, WCCO, WJZ and WWJ Licensed Property for all uses including as and to the extent used as Trademarks and in the Radio Station Call Letters, Radio Station Branding and Domain Names (the applicable term that applies with respect to each such license set forth in this clause (a), the “ Term ”); and

(b)    in its entirety until the expiration of the Terms of all of the Licensed Properties (the “ Full Term ”).

10.2     Termination .

(a)    This Agreement may terminate in full before the expiration of the Full Term under any of the following circumstances:

(i)    automatically, without the requirement of written notice by either Party, in the event of an Insolvency of Radio;

(ii)    automatically, as to a Licensee, Permitted Sublicensee or Licensed Radio Station and without the requirement of written notice by any Party, in the event of an Insolvency of such Licensee, Permitted Sublicensee or Licensed Radio Station;

 

15


(iii)    automatically, as to a particular Licensed Radio Station and the applicable Licensed Property as listed in Schedule 1, if any Licensee ceases using such Licensed Property for Licensed Services;

(iv)    automatically, as to a Licensee if an Acquisition of such Licensee occurs and the Licensors have not given prior written consent (not to be unreasonably withheld);

(v)    by either Party (“ Non-Defaulting Party ”), upon written notice to the other Party, if the other Party or, where the Licensees are the other Party, any Permitted Sublicensee (the “ Defaulting Party ”) fails to comply with any of its material obligations pursuant to this Agreement and does not within 15 days of receipt of written notice from the Non-Defaulting Party specifying the failure, for any such failure either: (x) remedy such failure (if capable of being remedied) or (y) if the failure is not capable of being remedied, agree with the Non-Defaulting Party upon a plan to mitigate the impact of such failure and to prevent such failure from occurring in the future;

(vi)    by either Party immediately on written notice to the other Party on the third (3rd) or any subsequent failure to comply with a material obligation of this Agreement by the other Party or, where the Licensees are the other Party, by any Permitted Sublicensee, provided that the non-breaching Party has provided written notice to the breaching Party on two prior occasions of breach and, upon each such prior notice, provided the breaching party with a 15 calendar day opportunity to cure such failure to comply with such material obligation or obligations; or

(vii)    by the Licensors immediately on written notice to the Licensees, if any Licensee or Permitted Sublicensee, alone or with others, seeks a declaration or other order from a Governmental Authority that any of Licensors’ or their Affiliates’ rights in or to any Licensed Property, or any registration thereof, is invalid or otherwise attacks the validity of the foregoing.

(b)    This Agreement shall terminate, upon written notice delivered by the Licensors to the Licensees, if there is a purported unauthorized assignment or transfer in violation of Section 12.7; provided that the Licensees shall have 15 calendar days from the latest delivery of such notice of breach to cure such purported unauthorized assignment or transfer.

(c)    If any Licensee changes Format of the main analogue station (HD-1) in connection with any Licensed Radio Station, without any further action required by any Party, all rights granted under this Agreement shall immediately terminate with respect to such Licensed Radio Station, and such Licensee will (i) prior to such Format change, obtain new call letters that are not confusingly similar to the Licensed Property and do not include in whole or in substantial part any Licensed Property, and (ii) cease use of all relevant Licensed Property upon such Format change.

10.3     Acquisitions and Format Changes and Cessation of Use . Licensees shall provide Licensors written notice (a) immediately upon reaching agreement, or where confidentiality obligations apply, immediately upon public announcement of reaching agreement, with any

 

16


Person for any Acquisition of any Licensee, Permitted Sublicensee or any Licensed Radio Station, (b) as soon as practicable after any Format change of any Licensed Radio Station as set forth in Section 10.2(c), or (c) immediately upon any Licensee substantially ceasing use of the Licensed Property for Licensed Services as set forth in Section 10.2(a)(i).

10.4     Survival . Upon any expiration or termination of this Agreement in its entirety, as expressly set forth in this Section 10.4 of this Agreement, all rights to use any Licensed Property granted pursuant to this Agreement to all Licensees and Permitted Sublicensees shall immediately cease and each Licensee and Permitted Sublicensee shall take all necessary steps to cease use of the Licensed Property in all ways, except as permitted under Section 7.24(c) of the Merger Agreement or the other CBS Brands License Agreements. Upon any expiration or termination of this Agreement, as expressly set forth in this Section 10.4 of this Agreement, as to any Licensee, Permitted Sublicensee or Licensed Radio Station, all rights to use any Licensed Property granted pursuant to this Agreement to such Licensee, Permitted Sublicensee or to the Applicable Licensee with respect to such Licensed Radio Station shall immediately cease and such Licensee, Permitted Sublicensee or Applicable Licensee shall take all necessary steps to cease use of the Licensed Property or the Licensed Property with respect to such Licensed Radio Station, as applicable, except as permitted under Section 7.24(c) of the Merger Agreement or the other CBS Brands License Agreements. The foregoing obligations to cease use include, in each case, the following, except as permitted under Section 7.24(c) of the Merger Agreement or the other CBS Brands License Agreements:

(a)    change all of their station names to names that do not include the Trademarks, “CBS” or any term confusingly similar or any term that implies association with the Licensors or their Affiliates;

(b)    cease the use of all Domain Names;

(c)    cease use of the Licensed Property in all Promotional Uses;

(d)    remove or obliterate all signage that displays the Licensed Property; and

(e)    at a Licensor’s written request, destroy all marketing, promotional or other materials bearing the Licensed Property for which a license is granted pursuant to this Agreement; and

(f)    (i) cease use of and relinquish to the Federal Communications Commission all call letters assigned by the Federal Communications Commission, (ii) not seek to use any call letters and (iii) to the extent possible prior to such termination obtain new call letters, in each case of (i) through (iii) solely to the extent such call letters include in whole or in substantial part any Licensed Property or any term confusingly similar or any term that implies association with CBS or its Affiliates and (iv) not obtain new call letters that are confusingly similar to the relinquished call letters.

10.5      Obligations to cease use of KCBS/WCBS . If any Licensee’s obligations to cease use in accordance with Section 10.2(a)(v) or (vi) are in connection with:

 

17


(a)    the Licensed Property KCBS, then all Licensees must cease all uses of both KCBS and WCBS; and

(b)    the Licensed Property WCBS, then all Licensees must cease all uses of both WCBS and KCBS.

10.6      Wind Down. With respect to any termination under Section 10.2(a)(iii) or (iv), the applicable Licensees and Permitted Sublicensees will be given thirty (30) days following any such termination to wind down their use of the applicable terminated Licensed Property.

10.7      Survival . Notwithstanding anything herein to the contrary, Articles 4, 7, 8 and 11-12, Sections 3.7, and Section 10.4 shall survive any expiration or termination of this Agreement and shall remain in full force and effect.

 

11 Indemnification

11.1    The Licensors agree to indemnify and hold harmless Licensees and their past, present or future Subsidiaries and Affiliates and Permitted Licensees and any of their past, present or future Representatives, heirs, executors and any of their permitted successors and assigns (“ Licensee Indemnified Parties ”) against any and all payments, losses, liabilities, damages, claims, and expenses (including attorney’s fees and expenses incurred in good faith) and costs whatsoever (“ Losses ”), as incurred, arising out of or relating to (a) any third-party claim of infringement, dilution or unfair competition arising from the use of the Licensed Property as described herein to the extent that Licensees’ use of the Licensed Property is in compliance with the terms of this Agreement; (b) any violation by the Licensors of applicable laws; and (c) any violation or breach of this Agreement by the Licensors. In the event of any such Losses involving an allegation of trademark infringement, the Licensees shall take all actions requested by the Licensors in order to mitigate any damages and other costs in connection therewith, including ceasing or modifying use of any Licensed Property.

11.2    The Licensees agree to indemnify and hold harmless Licensors and their past, present or future Subsidiaries and Affiliates and any of their past, present or future Representatives, heirs, executors and any of their permitted successors and assigns (“ Licensor Indemnified Parties ”) against any and all Losses, as incurred, arising out of or relating to (a) all claims with respect to the use of the Licensed Property (including use by or on behalf of any Permitted Sublicensee) except third party claims of infringement, dilution or unfair competition as set forth in Section 11.1(a) above; (b) any violation by a Licensee or any Permitted Sublicensee of applicable laws; and (c) any violation or breach of this Agreement by a Licensee or any Permitted Sublicensee.

11.3    The provisions of Article VI of the Separation Agreement shall govern claims for indemnification under this Agreement.

 

12 General

12.1     No Agency . Nothing in this Agreement shall be deemed to create any joint venture, partnership or principal agent relationship between the Licensees and the Licensors or any of their Affiliates and no Party shall hold itself out in its advertising or otherwise in any manner which would indicate or imply any such relationship with the other or its Affiliates.

 

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12.2     Entire Agreement . This Agreement, the Separation Agreement and the Merger Agreement constitute the entire agreement between CBS and/or the Licensors, on the one hand, and the Licensees, on the other hand, with respect to the Licensed Property, supersede all prior written and oral and all contemporaneous oral agreements, negotiations, discussions, writings, understandings, commitments and conversations with respect to such subject matter and there are no agreements or understandings between CBS and/or the Licensors, on the one hand, and the Licensees, on the other hand other than those set forth or referred to herein or therein.

12.3     Amendments . No provision of this Agreement, including any Schedules to this Agreement, may be amended, supplemented or modified except by a written instrument making specific reference to this Agreement or any such Schedules to this Agreement, as applicable, signed by the Licensors and the Licensees.

12.4     Dispute Resolution . Any Agreement Dispute shall be resolved in accordance with the procedures set forth in Article VII of the Separation Agreement, which shall be the sole and exclusive procedures for the resolution of any such Agreement Dispute unless otherwise specified herein or in Article VII of the Separation Agreement.

12.5     Liability . Except in connection with breaches of Section 12.6 or a Party’s indemnification obligations under Article 11, no Party shall be liable in contract, tort (including negligence) or otherwise arising out of or in connection with this Agreement for any special, punitive, indirect or consequential loss or damage including any economic loss (including loss of revenues, profits, contracts, business or anticipated savings); in any case, whether or not such losses were within the contemplation of the Parties at the date of this Agreement.

12.6     Confidentiality . Each Party shall keep confidential the terms and conditions of this Agreement and all information concerning the business of the other Party exchanged in the course of negotiating the same or pursuant to the terms hereof and shall not divulge the same to any third parties (other than to their respective professional advisers), provided that the foregoing shall not apply to information (a) already in the public domain at the time the information is disclosed other than as a result of disclosure in violation of any confidentiality obligation or agreement, (b) required by law to be disclosed in any document to be filed with any Governmental Authority, (c) required to be disclosed by court or administrative order or under laws, rules and regulations applicable to such Party or its respective Affiliates (including securities laws, rules and regulations), as the case may be, or pursuant to the rules and regulations of any stock exchange or stock market on which securities of such Party or its respective Affiliates may be listed for trading, (d) disclosed by Licensor for the purpose of maintaining or enforcing its rights under this Agreement or to any of the Licensed Property, or (e) disclosed with the prior written approval of the other Party.

12.7     Assignability .

(a)    This Agreement shall not be assigned or transferred by any Licensee in whole or in part, including by operation of Law, without the prior written consent of the

 

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Licensors, which consent will not be unreasonably withheld; provided that in the event of any permitted assignment or transfer by a Licensee in accordance with the foregoing, the Licensees shall provide a guarantee to the Licensors (in a form reasonably agreed upon) for any liability or obligation of the assignee or transferee under this Agreement and the assignee or transferee shall agree in a written agreement with Licensors to assume all of the obligations under this Agreement relating to the relevant Licensee(s) or Licensed Radio Station(s) that are the subject of such assignment or transfer; provided , further , that Licensees shall update Schedule 1 to disclose any permitted assignment or transfer pursuant to the requirements in Section 1.1(o).

(b)    Notwithstanding the foregoing, this Agreement may be assigned or transferred by any Licensee in whole or in part upon prior written notice to the Licensors to (i) a Radio Entity (other than Entercom or a Subsidiary of Entercom) solely with respect to rights to use the Licensed Property other than Licensed Property that is or includes WCBS or KCBS; provided , that in the event of any such permitted assignment or transfer by a Licensee, the assignee or transferee shall agree in a written agreement with Licensors to assume all of the obligations under this Agreement relating to the relevant Licensee(s) or Licensed Radio Station(s) that are the subject of such assignment or transfer and the assigning party shall be relieved of its obligations hereunder and no longer deemed a “Licensee” for the purposes of this Agreement; or (ii) Entercom or a Subsidiary of Entercom so long as Entercom and its Subsidiaries or any of their respective parents or Affiliates are not engaged in the business of television broadcasting in the United States; provided , that any such assignee or transferee agrees in writing to be bound by the terms and conditions of this Agreement; provided , further , in each case, Licensees shall update Schedule 1 to disclose the removal of, or permitted assignment or transfer to, a Licensed Radio Station or Licensee, which update shall be delivered concurrent with Licensees notice to Licensors of such assignment or transfer.

(c)    Any purported assignment or transfer in violation of this Section 12.7 shall be null and void and of no effect.

(d)    Subject to the foregoing Sections (a) and (b), this Agreement shall be binding upon and inure to the benefit of and be enforceable by the Parties and their permitted successors and assigns. For the purposes of this Agreement, a “successor” shall include any entity that is a legal successor to any Party as a result of a sale or acquisition of such Party, whether by merger, consolidation, sale of all or substantially all of such Party’s assets.

12.8     Notices . All notices, requests, claims, demands and other communications under this Agreement shall be in writing and shall be given or made (and shall be deemed to have been duly given or made upon receipt) by delivery in person, by overnight courier service, by facsimile or electronic transmission 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 hereto at the following addresses (or at such other address for a Party as shall be specified in a written notice given in accordance with this Section 12.8):

 

20


(a) if to Licensor:

CBS Corporation

51 West 52 nd Street

New York, New York 10019

  Attn: Chief Legal Officer and Trademarks Counsel
  Fax: 212-975-4215

and to:

CBS Broadcasting Inc.

Attn: Chief Legal Officer and Trademarks Counsel

51 West 52 nd Street

New York, New York, 10019

  Fax: 212-975-4215

with a copy (which shall not constitute notice) to:

Wachtell, Lipton, Rosen & Katz

51 West 52 nd Street

New York, NY 10019

  Fax: (212) 403-2000
  Attention: David E. Shapiro, Esq.
       Marshall P. Shaffer, Esq.

(b) if to Licensee or a Permitted Sublicensee:

CBS Radio Inc.

1271 Avenue of the Americas, Fl. 44

New York, NY 10020

  Attn: General Counsel
  Fax: 212-246-3657

Entercom Communications Corp.

401 E. City Avenue, Suite 809

Bala Cynwyd, PA 19004

  Fax: (610) 660-5662
  Attention: Andrew P. Sutor, IV,
       Senior Vice President and General Counsel

with a copy (which shall not constitute notice) to:

Latham & Watkins LLP

330 N. Wabash Ave., Suite 2800

Chicago, IL 60611

  Fax: (312) 993-9767
  Attention: Mark D. Gerstein
       Zachary A. Judd

 

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12.9     Waivers . The observance of any term of this Agreement may be waived (either generally or in a particular instance and either retroactively or prospectively) by the Party entitled to enforce such term (each such entity, a “ Waiving Entity ”), but such waiver shall be effective only if it is in writing signed by a duly authorized officer of the Waiving Entity against which such waiver is to be asserted. Unless otherwise expressly provided in this Agreement, no delay or omission on the part of any Party in exercising any right or privilege under this Agreement shall operate as a waiver thereof, nor shall any waiver on the part of any Party of any right or privilege under this Agreement operate as a waiver of any other right or privilege under this Agreement, nor shall any single or partial exercise of any right or privilege preclude any other or future exercise thereof or the exercise of any other right or privilege under this Agreement. No failure by any Party to take any action or assert any right or privilege hereunder shall be deemed to be a waiver of such right or privilege in the event of the continuation or repetition of the circumstances giving rise to such right unless expressly waived in writing by the entity against whom the existence of such waiver is asserted. The rights and remedies of the Parties hereunder are cumulative and are not exclusive of any rights or remedies that they would otherwise have hereunder.

12.10     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 shall nevertheless remain in full force and effect so long as the economic or legal substance of the transactions contemplated by this Agreement is not affected in any manner materially adverse to either the Licensors or the Licensees. Upon such determination that any term or other provision is invalid, illegal or incapable of being enforced, the Licensors and the Licensees shall negotiate in good faith to modify this Agreement so as to effect the original intent of the Licensors and the Licensees 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.

12.11     No Third-Party Beneficiaries . Except to the extent that this Agreement shall benefit Entercom, as set forth explicitly herein, and to the extent of any indemnification of any Licensee Indemnified Parties and Licensor Indemnified Parties, as set forth in Section 11, this Agreement is for the sole benefit of the Licensors and the Licensee and their permitted successors and assigns and nothing in this Agreement, express or implied, is intended to or shall confer upon any other Person any legal or equitable right, benefit or remedy of any nature whatsoever, including any rights of employment for any specified period, under or by reason of this Agreement.

12.12     Counterparts . This Agreement may be executed in one or more counterparts, and by each Party in separate counterparts, each of which when executed shall be deemed to be an original but all of which taken together shall constitute one and the same agreement. Delivery of an executed counterpart of a signature page to this Agreement by facsimile or portable document format (PDF) shall be as effective as delivery of a manually executed counterpart of this Agreement.

12.13     Rules of Construction . Interpretation of this Agreement shall be governed by the following rules of construction: (a) words in the singular shall be held to include the plural and vice versa, and words of one gender shall be held to include the other gender as the context

 

22


requires; (b) references to the terms Article, Section, paragraph and Schedules are references to the Articles, Sections, paragraphs and Schedules of this Agreement unless otherwise specified; (c) references to “ $ ” shall mean U.S. dollars; (d) the word “including” and words of similar import when used in this Agreement shall mean “including without limitation,” unless otherwise specified; (e) the word “or” shall not be exclusive; (f) references to “written” or “in writing” include in electronic form; (g) provisions shall apply, when appropriate, to successive events and transactions; (h) the headings contained in this Agreement are for reference purposes only and shall not affect in any way the meaning or interpretation of this Agreement; if an ambiguity or question of interpretation should arise, this Agreement shall be construed as if drafted jointly by the Licensors and the Licensees and no presumption or burden of proof shall arise favoring or burdening any Party by virtue of the authorship of any of the provisions in this Agreement or any interim drafts of this Agreement; (i) a reference to any Person includes such Person’s permitted successors and permitted assigns; (j) any reference to “days” means calendar days unless Business Days are expressly specified; and (k) when calculating the period of time before which, within which or following which any act is to be done or step taken pursuant to this Agreement, the date that is the reference date in calculating such period shall be excluded, and if the last day of such period is not a Business Day, the period shall end on the next succeeding Business Day. Any action, determination or approval of or required by the Licensors under this Agreement shall be understood to be at the Licensors’ sole discretion unless expressly stated otherwise hereunder.

12.14     Parties in Interest . This Agreement is binding upon and is for the benefit of the Parties and, as set forth in Section 12.7, their respective permitted successors and permitted assigns.

12.15     Jurisdiction

(a)    This Agreement is to be construed in accordance with and governed by the internal laws of the State of Delaware without giving effect to any choice of law rule that would cause the application of the laws of any jurisdiction other than the internal laws of the State of Delaware to the rights and duties of the parties.

(b)    EACH PARTY TO THIS AGREEMENT WAIVES TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM BROUGHT BY ANY OF THEM AGAINST THE OTHER ARISING OUT OF OR IN ANY WAY CONNECTED WITH THIS AGREEMENT OR THE ADMINISTRATION THEREOF. NO PARTY TO THIS AGREEMENT SHALL SEEK A JURY TRIAL IN ANY LAWSUIT, PROCEEDING, COUNTERCLAIM OR ANY OTHER LITIGATION PROCEDURE BASED UPON, OR ARISING OUT OF, THIS AGREEMENT. NO PARTY WILL SEEK TO CONSOLIDATE ANY SUCH ACTION IN WHICH A JURY TRIAL HAS BEEN WAIVED WITH ANY OTHER ACTION IN WHICH A JURY TRIAL CANNOT BE OR HAS NOT BEEN WAIVED. EACH PARTY TO THIS AGREEMENT CERTIFIES THAT IT HAS BEEN INDUCED TO ENTER INTO THIS AGREEMENT OR INSTRUMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS SET FORTH ABOVE IN THIS SECTION. NO PARTY HAS IN ANY WAY AGREED WITH OR REPRESENTED TO ANY OTHER PARTY THAT THE PROVISIONS OF THIS SECTION WILL NOT BE FULLY ENFORCED IN ALL INSTANCES.

 

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[ Remainder of Page Intentionally Left Blank;

Signature Pages Follow. ]

 

24


IN WITNESS WHEREOF, the Parties have caused this Agreement to be duly executed and delivered as of the Effective Date.

CBS BROADCASTING INC. (Licensor of WCBS, KCBS, KDKA, WBBM, WCCO, WJZ, KYW and WWJ)

 

  Signature:  

/s/ Joseph R. Ianniello

  Name:   Joseph R. Ianniello
  Title:   Executive Vice President
  Date:  

November 16, 2017

CBS MASS MEDIA CORPORATION (Licensor of KYW)

 

  Signature:  

/s/ Joseph R. Ianniello

    Name:   Joseph R. Ianniello
    Title:   Executive Vice President
    Date:  

November 16, 2017

[Signature Page to License Agreement #2 (CBS TV Stations Brands ]


IN WITNESS WHEREOF, the Parties hereto have caused this Agreement to be duly executed and delivered as of the Effective Date.

CBS RADIO INC., as Brand Licensee and Operator of Licensed Radio Stations (WCBS-AM, WCBS-AM HD1WXYT-FM for simulcast of WWJ-AM, WCBS-FM, KCBS-AM, KCBS-AM HD1, KCBS-AM HD2, KCBS-AM HD3, KCBS-FM, KCBS-FM HD1, KCBS-FM HD2, KCBS-FM, HD3 KFRC-FM for simulcast of KCBS, KFRC-FM HD1 for simulcast of KCBS, WWJ-AM, WWJ-AM HD1)

 

 

Signature:

 

/s/ Jo Ann Haller

 

Name:

 

Jo Ann Haller

 

Title:

 

SVP and General Counsel

 

Date:

 

November 16, 2017

[ Signature Page to License Agreement #2 (CBS TV Stations Brands ]


IN WITNESS WHEREOF, the Parties have caused this Agreement to be duly executed and delivered as of the Effective Date.

CBS RADIO EAST INC., as Brand Licensee and Operator of Licensed Radio Stations (KDKA-AM, KDKA-AM HD1, KDKA-AM HD2, WBBM-AM, WBBM-AM HD1, WBBM-FM, WBBM-FM HD2, WCBS-AM, WCBS-FM, WCBS-FM HD1, WCBS-FM HD2, WCBS-FM HD3, KYW-AM KYW-AM HD1, KYW-AM HD2), WIP-FM HD2 for simulcast of KYW-AM and Call Letters Licensee of (WCBS-AM, WCBS-AM HD1, WCBS-FM, KCBS-FM, KCBS-FM HD1, KCBS-FM HD2, KCBS-AM, KDKA-FM, WBBM-AM, WBBM-AM HD1, WBBM-FM, WBBM-FM HD 1, WBBM FM HD2, KYW-AM, KYW-AM HD1, WWJ-AM, WWJ-AM HD1, WWJ-AM HD2, WBZ-AM)

 

 

Signature:

 

/s/ Jo Ann Haller

 

Name:

 

Jo Ann Haller

 

Title:

 

SVP and General Counsel

 

Date:

 

November 16, 2017

[ Signature Page to License Agreement #2 (CBS TV Stations Brands ]


IN WITNESS WHEREOF, the Parties have caused this Agreement to be duly executed and delivered as of the Effective Date.

CBS RADIO STATIONS INC., as Brand Licensee and Operator of Licensed Radio Stations and call letter licensee (WJZ-FM, WJZ-FM HD1, WJZ-FM HD2, WJZ-FM HD3, WBZ-FM, WBZ-FM HD2) and call letter licensee (KDKA-FM, KDKA-FM HD1, KDKA-FM HD2, KDKA-FM HD3, WBZ-FM, WBZ-FM HD2)

 

 

Signature:

 

/s/ Jo Ann Haller

 

Name:

 

Jo Ann Haller

 

Title:

 

SVP and General Counsel

 

Date:

 

November 16, 2017

[ Signature Page to License Agreement #2 (CBS TV Stations Brands )]


IN WITNESS WHEREOF, the Parties hereto have caused this Agreement to be duly executed and delivered as of the Effective Date.

CBS RADIO MEDIA CORPORATION, as Brand Licensee and Operator of WCCO-AM and KMNB-FM for simulcast of WCCO-AM and call letter licensee for (WCCO-AM)

 

 

Signature:

 

/s/ Jo Ann Haller

 

Name:

 

Jo Ann Haller

 

Title:

 

SVP and General Counsel

 

Date:

 

November 16, 2017

CBS RADIO EAST HOLDINGS CORPORATION, as Brand Licensee and Operator of WBZ-AM.

 

 

Signature:

 

/s/ Jo Ann Haller

 

Name:

 

Jo Ann Haller

 

Title:

 

SVP and General Counsel

 

Date:

 

November 16, 2017

CBS RADIO WLIF-AM INC., as call letter licensee for (WJZ-AM, WJZ-AM HD1)

 

 

Signature:

 

/s/ Jo Ann Haller

 

Name:

 

Jo Ann Haller

 

Title:

 

SVP and General Counsel

 

Date:

 

November 16, 2017

[ Signature Page to License Agreement #2 (CBS TV Stations Brands )]

CBS RADIO HOLDINGS CORP of Orlando as Brand Licensee and Operator of Licensed Radio Station WCFS-FM, WCBS-FM HD1 for simulcasting WBBM-FM)

 

 

Signature:

 

/s/ Jo Ann Haller

 

Name:

 

Jo Ann Haller

 

Title:

 

SVP and General Counsel

 

Date:

 

November 16, 2017

Exhibit 2.9

EXECUTION VERSION

 

 

 

TRADEMARK LICENSE AGREEMENT (CBS SPORTS RADIO BRAND)

BY AND BETWEEN

CBS BROADCASTING INC.,

CSTV NETWORKS, INC. d/b/a CBS SPORTS NETWORK,

AND

CBS RADIO INC., AND

CBS SPORTS RADIO NETWORK INC.

DATED AS OF NOVEMBER 16, 2017


LICENSE AGREEMENT (CBS SPORTS RADIO BRAND)

This TRADEMARK LICENSE AGREEMENT (CBS SPORTS RADIO BRAND) (this “ Agreement ”), dated as of November 16, 2017 (the “ Effective Date ”), is by and between CBS Broadcasting Inc., a New York corporation (the “ Licensor ”), and CSTV Networks, Inc. d/b/a CBS Sports Network (“ CBSSN ”), one the one hand, and CBS Sports Radio Network Inc., a Delaware corporation (“ CBSRN ”), and CBS Radio Inc., a Delaware corporation (“ Radio ” and collectively with CBSRN, and Radio’s wholly-owned direct and indirect Subsidiaries identified in Schedule 2, the “ Licensees ”), on the other hand. Unless otherwise defined in this Agreement, all capitalized terms used in this Agreement shall have the meanings set forth in the Master Separation Agreement, dated as of February 2, 2017, by and between CBS Corporation, a Delaware corporation (“ CBS ”) and Radio (as amended, modified or supplemented from time to time in accordance with its terms, the “ Separation Agreement ”).

RECITALS

WHEREAS, prior to the Separation (as defined below), Licensor was engaged in the Radio Business and Radio was a wholly owned subsidiary of Licensor;

WHEREAS, pursuant to the Merger Agreement, Entercom Communications Corp. (“ Entercom ”), a Pennsylvania corporation, has agreed to acquire the Radio Business and in order to facilitate the transactions contemplated thereby, the Parties have agreed to separate the Radio Business from the other businesses of CBS, on the terms and conditions set forth in the Separation Agreement and the Merger Agreement (the “ Separation ”);

WHEREAS, in furtherance of the transactions contemplated in the Separation Agreement and Merger Agreement, the Parties desire that Licensor grant Licensee a license to use certain of its assets for a certain period; and

WHEREAS, the Merger Agreement requires execution and delivery of this Agreement by Licensor and Licensee on the Distribution Date.

NOW, THEREFORE, in consideration of the premises and the covenants and agreements contained herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, intending to be legally bound, the Parties hereto agree as follows:

 

1 Definitions and Interpretations

1.1    In this Agreement, the following terms shall have the following meanings assigned to them:

(a)    “ Acquisition ” means, except for any transaction contemplated by the Separation Agreement, the Merger Agreement or any Ancillary Agreement, with respect to each of CBSRN and Entercom, (i) a transaction whereby any Person or group (within the meaning of Section 13(d)(3) of the Securities and Exchange Act of 1934, as amended) would acquire, directly or indirectly, voting securities representing more than 30% of the total voting power of CBSRN or Entercom, as applicable; (ii) a merger, consolidation, recapitalization or

 

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reorganization of CBSRN or Entercom, as applicable, unless securities representing more than 70% of the total voting power of the legal successor to CBSRN or Entercom, as applicable, as a result of such merger, consolidation, recapitalization or reorganization are immediately thereafter beneficially owned, directly or indirectly, by the Persons who beneficially owned outstanding voting securities of CBSRN or Entercom, as applicable, immediately prior to such transaction; or (iii) the sale of all or substantially all of the consolidated assets of the CBSRN or the Entercom Group, as applicable;

(b)    “ Agreement ” has the meaning set forth in the Preamble;

(c)    “ Applicable Licensee ” means (i) with respect to the license under Sections 2.1(a), 2.1(c) and 2.1(d) to CBSRN and its Permitted Sublicensees and (ii) with respect to the license under Section 2.1(b) to a Licensed Radio Station, and their the Permitted Sublicensees, listed under “Radio Station Licensee” as set forth on Schedule 2 for such Licensed Radio Station, as such Schedule may be updated from time to time by Licensee pursuant to Section 2.2(b)(ii) .

(d)    “ Brand Guidelines ” means the brand guidelines attached at Schedule 3, as may be updated from time to time by Licensor on reasonable prior written notice to Licensees;

(e)    “ CBS ” has the meaning set forth in the Preamble;

(f)    “ CBS Sports Network ” means CSTV Networks, Inc. d/b/a CBS Sports Network and its video programming service currently known as “CBS Sports Network.”

(g)    “ Defaulting Party ” has the meaning set forth in Section 10.2(a)(iv);

(h)    “ Divested Station ” means a radio station previously or currently owned by Licensor or an affiliate of Licensor in the Radio Business, which is being sold or otherwise transferred, or is planned to be sold or otherwise transferred, in connection with the consummation of the transactions contemplated by the Separation Agreement and Merger Agreement.

(i)    “ Domain Names ” means (i) the “radio.cbssports.com” domain name, (ii) the domain names listed on Schedule 1, and (iii) the domain names listed under the “Domain Names” column set forth on Schedule 2 (or as may be deemed added to that schedule by written agreement of the Parties hereto);

(j)    “ Effective Date ” has the meaning set forth in the Preamble;

(k)    “ Eye Design ” means the trademark LOGO ;

(l)    “ Format ” means, with respect to each Licensed Radio Station, the format for such Licensed Radio Station that is set forth under the “Format” column on Schedule 2;

(m)    “ Initial Term ” has the meaning set forth in Section 10.1;

 

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(n)    “ Insolvency ” means the earlier of any of the following with regard to any entity, as specified herein: (i) a voluntary or involuntary proceeding or petition is commenced or filed seeking relief under any federal, state or foreign bankruptcy, insolvency, receivership or other law providing relief for debtors; (ii) the appointment of a receiver, trustee, custodian, sequestrator, conservator or similar official or any petition for or acquiescence in the appointment thereof; (iii) winding-up or liquidation or other cessation of operations, or suspension of all or a substantial part of its business, or (iv) a general assignment for the benefit of creditors or inability, admitting in writing its inability or failing generally to pay its debts as they become due or the occurrence of any event which accelerates or permits acceleration of the maturity of any of its debts;

(o)    “ Licensee Sports Programming ” means (i) all sports audio content carried by CBSRN on its national audio programming network including sports audio content carried by CBSRN and also carried by CBS Sports Network on its video programming services as of the Effective Date, (ii) other sports audio content produced by CBSRN, of at least the same quality as the Licensor Sports Network Content and approved by Licensor for distribution as CBS Sports Network Programming, (iii) short promotional clips of any of the foregoing provided that such clips are used consistently with the limitations associated with the clip guidelines issued by CBSSN.

(p)    “ Licensee Sports Programming Business ” means the business of CBSRN packaging Licensor Sports Content and Licensor Sports Network Content and Licensee Sports Programming and licensing it under the Licensed Property for distribution or syndication by itself or by Permitted Programming Sublicensees.

(q)    “ Licensee Sports Video Programming ” means simultaneous video streams or recordings that are created by the placement of camera(s) to capture the simultaneous Telecast of Licensee Sports Programming.

(r)    “ Licensor Sports Content ” means all sports audio content produced by Licensor as CBSSN and provided by Licensor to Licensees for use in the Licensee Sports Programming Business.

(s)    “ Licensor Sports Network Content ” means all sports audio content produced by Licensor’s subsidiaries as CBS Sports Network and provided by Licensor to Licensees for use in the Licensee Sports Programming Business.

(t)    “ Licensed Market ” means, with respect to each Licensed Radio Station, the designated marketing area (“DMA”) as established by Nielsen as of the Effective Date for such Licensed Radio Station as identified under the “Location” column on Schedule 2 (and as may be updated by Nielsen from time to time);

(u)    “ Licensed Property ” means the: (i) the Trademarks (including as used in “CBS SPORTS RADIO NETWORK”, “CBS SPORTS MINUTE” and “CBS SPORTS RADIO WEEKEND”) consistent with the manner and to extent used in the Licensee Sports Programming Business as of the Effective Date; (ii) the “radio.cbssports.com” domain name and the other Domain Names; and (ii) any logo created by Licensees incorporating the names “CBS

 

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SPORTS RADIO”, “CBS SPORTS RADIO NETWORK”, “CBS SPORTS MINUTE” or “CBS SPORTS RADIO WEEKEND” and approved in advance in writing by Licensor for use in connection with the Licensee Sports Programming Business. For the avoidance of doubt, “Licensed Property” excludes “CBS RADIO” (which is subject to another CBS Brands License Agreement);

(v)    “ Licensed Radio Station ” means the radio stations identified under the “Radio Station” column on Schedule 2, as CBSRN or Radio will update and deliver to Licensor promptly in connection with changes in Licensed Radio Stations and Licenses made under Section 12.7(b), that are not otherwise terminated pursuant to Section 10.2;

(w)    “ Licensed Services ” has the meaning set forth in Section 2.1;

(x)    “ Licensees ” has the meaning set forth in the Preamble;

(y)    “ Licensee Indemnified Parties ” has the meaning set forth in Section 11.1;

(z)    “ Licensor ” has the meaning set forth in the Preamble;

(aa)     “ Licensor Indemnified Parties ” has the meaning set forth in Section 11.2;

(bb)    “ Non-Defaulting Party ” has the meaning set forth in Section 10.2(a)(iv);

(cc)    “ Party ” means either Licensor and CBSSN, on the one hand, or Licensees, on the other hand, and “ Parties ” means collectively Licensor, CBSSN and Licensees;

(dd)    “ Permitted Sublicensee ” has the meaning set forth in Section 2.5; provided that a Permitted Sublicensee shall no longer be deemed to be a Permitted Sublicensee hereunder if it is terminated pursuant to Section 10.2 and shall no longer be deemed to be a Permitted Sublicensee hereunder with respect to a license under Section 2.1(b) as to a particular Licensed Radio Station if such Licensed Radio Station is terminated pursuant to Section 10.2;

(ee)    “ Permitted Video Use ” has the meaning set forth in Section 2.4;

(ff)    “ Promotional Use ” means, subject to the Permitted Video Uses as set forth in Section 2.4, promotion internally facing to Licensees’ employees or Affiliates and promotion externally facing to the public of the Licensee Sports Programming Business or a Station Business, as the case may be, in each case to the extent used as of the Effective Date, including:    (i) any such use on any Licensed Radio Station (both analog and digital signal); (ii) any such use on any current or future online or digital platform (including a platform or audio application whether owned or operated by CBS or its Affiliates or a third party) which permits promotion of brands, promotional content (including user generated content), or services to the general public or a group of users or consumers, including YouTube, Twitter, Facebook, Snapchat and Instagram (the foregoing platforms and other similar platforms, “ Social Digital Platforms ”); (iii) all forms of promotions of the Licensee Sports Programming Business or a Station Business, as the case may be, by or on behalf of a Licensee or Permitted Sublicensee, including joint promotions, promotion on a Social Digital Platform or registering a Social Digital Platform

 

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Account Name; (iv) any concert, festival, party, production, performance, live show, or other event held, organized, promoted or sponsored by or on behalf of a Licensee or a Permitted Sublicensee; (v) merchandise that displays the Licensed Property; and (vi) any other promotion of the Licensed Radio Stations as used as of the Effective Date, provided that all of the above uses are subject to the Brand Guidelines;

(gg)     “ Radio Business ” has the meaning set forth in the Separation Agreement, as applicable, provided that for the purposes of this Agreement, the “Radio Business” shall include the distribution of Audio Products by Radio Station broadcasts or audio-only technology and audio-only distribution methods now known or later developed during the Term.

(hh)    “ Radio Indicator ” means any identifier that is used consistently in audio and written forms that (i) indicates that a Licensed Service being provided by a terrestrial radio station or (ii) includes at least one of the following:

(i)    an indication whether the radio station is an AM or FM station, expressed as “AM” or “FM”;

(ii)    the terrestrial radio dial location (e.g., “880” or “1060”);

(iii)    the term “Radio;” or

(iv)    such other term that Licensor approves in advance in writing (such approval not to be unreasonably withheld, conditioned or delayed) as sufficient to indicate that the Licensed Services are from a terrestrial radio source and would not create a risk of confusion with CBS’ or its Affiliates’ current or anticipated business;

(ii)    “ Radio Station Branding ” means the branding for the Licensed Radio Station operated by the Applicable Licensee that is set forth under the “Radio Station Branding” column on Schedule 2;

(jj)    “ Renewal Term ” has the meaning set forth in Section 10.1;

(kk)     “ Separation Agreement ” has the meaning set forth in the Preamble;

(ll)    “ Social Digital Platform ” has the meaning set forth in Section 1.1(ee);

(mm)    “ Social Digital Platform Account Name ” means a method of identification or authentication of a user or publisher on a Social Digital Platform, including registering a name, setting up an account name, and/or otherwise establishing a means of identification;

(nn)    “ Station Business ” means, with respect to “Licensed Radio Station” column set forth on Schedule 2, the conduct of the Radio Business of such radio station in its Licensed Market and Format;

(oo)    “ Telecast ” means any and all media, technology, and distribution methods, including over any form of television, interactive, and online media (whether currently existing or hereafter developed), including over-the-air and any type of satellite or cable television or

 

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comparable technology whether by CATV (community antenna television), MDS (multipoint distribution systems), MMDS (multichannel multipoint distribution systems), DBS (direct broadcast satellite), STV (subscription television), TVRO (television receive-only), SMATV (single master antenna television), VOD (Video on Demand), SVOD (subscription video on demand) and/or VDT (Video Dial Tone), as well as Internet and broadband, including both audio and audiovisual rights.

(pp)    “ Term ” has the meaning set forth in Section 10.1; and

(qq)    “ Trademarks ” means (i) the registered trademarks listed in Schedule 1 and (ii) the registered trademarks listed in Schedule 2, which registrations may be updated from time to time by the Licensor at its sole discretion, in each case, together with all unregistered trademarks, service marks, trade names, logos and designs that are incorporated in the Radio Station Branding and Domain Names.

 

2 Grant of Rights

2.1    Subject to the terms and conditions of this Agreement and for no additional royalties or consideration apart from the consideration provided to CBS in connection with the Separation, the Licensor hereby grants to the Applicable Licensees a limited, non-exclusive (but subject to Section 2.6), non-assignable, non-transferrable (except as set forth in Section 12.7), and non-sublicensable (except as set forth in Section 2.5) license for a period not to exceed the applicable Term:

(a)    (i) to use the Trademarks and Domain Names on Schedule 1 for the Licensee Sports Programming Business and its marketing and Promotional Use, subject to Section 2.1(d), in the United States and Canada; and (ii) to use solely as approved by Licensor or CBSSN, the Licensee Sports Video Programming. Licensees may only use the Trademarks for sports video programs that they provide to Licensor or CBS Sports Network and Licensee’s video use is subject to any clip guidelines and any other guidelines issued by CBSSN or Licensor; in each case solely to the extent used with a Radio Indicator to identify the Licensee Sports Programming Business consistent with the manner and extent of such use as of the Effective Date;

(b)    to use (i) Trademarks as part of the Radio Station Branding for the applicable Licensed Radio Station in the applicable Licensed Market and for the applicable Format and (ii) to use the Domain Names, in each case solely to the extent used with a Radio Indicator to identify a Station Business consistent with the manner and extent of such use as of the Effective Date; provided that the applicable Licensed Radio Station continues to broadcast the Licensee Sports Programming twenty-four (24) hours a day and seven (7) days a week;

(c)    to use the “radio.cbssports.com” Domain Name as part of the Licensee Sports Programming Business solely to the extent used with a Radio Indicator to identify the Licensee Sports Programming Business in the manner and to the extent of such use as of the Effective Date only until 12 months after the Effective Date or December 31, 2017, whichever is later; provided that the Licensees shall use all reasonable efforts to reduce its usage of such Domain Name after the Effective Date as required in order to meet its obligations under Sections 3.7 and 3.8(b); and

 

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(d)    to use the Eye Design as part of the Licensee Sports Programming Business in the United States and Canada and Radio Station Branding consistent with the manner and to the extent of such use as of the Effective Date only for twelve (12) months after the Separation; provided that the Licensees shall use all reasonable efforts to reduce its usage of the Eye Design after the Effective Date as required in order to meet its obligations under Sections 3.7 and 3.8(c).

The foregoing Sections 2.1(a) through 2.1(d) are collectively referred to herein as the “ Licensed Services .” Licensee shall take reasonable efforts to wind-down and cease such licensed use of the Licensed Property, as required in order to meet its obligations under Article 10.

2.2     Licensed Market Uses .

(a)    Under the license granted pursuant to Sections 2.1(a), 2.1(c) and 2.1(d), the Applicable Licensees may use the Licensed Property for the Licensed Services only in the United States (including its territories and possessions) and in Canada; provided , however , the Parties hereto acknowledge that the Licensees are permitted to use the Licensed Property for terrestrial radio broadcasting, and related online, digital uses and Promotional Use for providing the Licensed Services or the marketing and promotion thereof directed to users and consumers within the United States and Canada. The Licensees may not direct use of the Licensed Property to terrestrial radio, online or digital users or consumers outside the United States and Canada; provided that to the extent permitted uses which are directed to terrestrial radio, online or digital users or consumers in the United States and Canada can be consumed by terrestrial radio, online or digital users or consumers outside the United States or Canada, the Licensees shall not be deemed in breach of Section 2.1 nor this Section 2.2.

(b)    Under the license granted pursuant to Section 2.1(b):

(i)    the Applicable Licensees may use the Licensed Property only in the applicable Licensed Market; provided , however , the Parties acknowledge that the Applicable Licensees are permitted to use the Licensed Property for terrestrial radio broadcasting, and related online, digital uses and Promotional Use for providing the Licensed Services and the marketing and promotion thereof to users and consumers which are solely directed to the Licensed Market and the Parties acknowledge that such broadcasts and related online, digital uses or Promotional Uses may be accessed or consumed by users or consumers outside the License Market (“ Spill-Over Use ”), and Licensees are permitted to use the Licensed Property for the Licensed Services directed outside the Licensed Market solely for joint promotions that involve other Licensed Radio Stations (“ Multi Market Promotion ”). Licensees may not direct use of the Licensed Property to terrestrial radio, online or digital users or consumers outside the Licensed Market, except Spill-Over Use and Multi Market Promotion will not be a breach of Section 2.1 nor this Section 2.2; and

 

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(ii)    Radio may seek prior written consent of Licensor (which consent shall not be unreasonably withheld) to designate additional radio stations owned or operated by an Affiliate of Radio to be licensed hereunder to use CBS SPORTS RADIO as a Licensed Radio Station, provided that such applicable radio stations will broadcast the Licensee Sports Programming twenty-four (24) hours a day and seven (7) days a week. Such written request shall include the new radio station’s designated marketing area, format and a description of the branding to be used by such radio station. Upon receipt of Licensor’s written consent, the radio station will be deemed a “Licensed Radio Station” hereunder and Schedule 2 amended accordingly.

2.3    Prohibited Uses of Licensed Property.

The Licensees may not use the Licensed Property for any good or service or in any manner that is: (a) pornographic or reasonably considered by Licensor as offensive; or (b) unlawful or obscene (as determined in accordance with applicable Federal Communications Commission standards). The Parties acknowledge and agree that all uses of the Licensed Property that are consistent with the uses of the Licensed Property by the Radio Business during the one year period prior to the Effective Date are not prohibited by this Section 2.3.

2.4     F urther Prohibited Uses of Licensed Property.

Subject to Section 2.1(a)(ii), the Licensees shall not use the Licensed Property to identify audio-visual content including news, sports, weather, traffic reporting or other videos or video services (including, video-on-demand or video streaming, syndication of video content or video streams, or any other distribution of audio-visual content), except to promote the Licensee Sports Programming Business to the extent used as of the Effective Date and subject to Licensor’s approval, not to be unreasonably withheld (“ Permitted Video Use ”).

2.5     Permitted Sublicensees. In addition to Section 2.8(c), a Licensee may not license or authorize any other Person to use the Licensed Property, except that, a Licensee may grant limited, non-assignable (including in an Acquisition) sublicenses of its rights:

(a)    under Section 2.1(a), to (i) any Affiliate providing Licensed Services to such Licensee in connection with the Licensee Sports Programming Business, (ii) those third parties who have been granted licenses or sublicenses of the Licensed Property by Licensor or any of its Affiliates in connection with the operation of the Radio Business prior to the Effective Date (“ Existing Permitted Sublicensees ”), and (iii) a radio programming business or to any terrestrial radio stations that are subject to a programming license agreement with a Licensee or its Existing Permitted Sublicensees as part of the Licensee Sports Programming Business provided that such business or station agrees to comply with all terms and conditions hereunder applicable to the Licensee (each a “ Permitted Programming Sublicensee ”); and

(b)    under Section 2.1(b), to (i) any Affiliate providing Licensed Services to such Licensee in connection with the applicable Station Business, (ii) those third parties who have been granted licenses or sublicenses of the Licensed Property by Licensor or any of their Affiliates in connection with the operation of the Radio Business prior to the Effective Date ( provided that the sublicense to such third party is for uses substantially similar to those

 

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permitted by Licensor and their Affiliates prior to the Effective Date), or (iii) any third parties for which such Licensee obtains prior written consent of Licensor (which shall not be unreasonably withheld); provided that (A) such Licensee has sent Licensor written notice with detailed information regarding all proposed uses of the Licensed Property by such third party (including identification of all types of uses and media in connection with which the Licensed Property will be used); and (B) such third parties agree to comply with all terms and conditions hereunder applicable to the Licensees (each such third party, together with Existing Permitted Sublicensees and Permitted Programming Sublicensee, the “ Permitted Sublicensees ”).

Notwithstanding the grant of any sublicenses, the Licensees shall remain liable for compliance by each Permitted Sublicensee with all terms and conditions of this Agreement applicable to the Licensees and such terms and conditions shall be deemed to be applicable to each Permitted Sublicensee and Licensor may terminate the purported sublicense to use the Licensed Property granted to any purported Permitted Sublicensee at any time if the transfer or assignment of such Licensed Property to such Permitted Sublicensee occurred in violation of the foregoing requirements of this Section 2.5.

For the avoidance of doubt, the Licensees may engage manufacturers and service providers to apply the Licensed Marks to Licensees’ promotional goods of the types and in the manner used prior to the Effective Date, or otherwise use the Trademarks in connection with the advertising or marketing of Licensees’ Licensed Services solely at the direction and on behalf of the Licensees (e.g. t-shirt or banner manufacturer or newspaper carrying an advertisement) without prior consent or approval from Licensor. .

2.6     Licensor s Restrictions . The Licensor agrees not to use or license (or cause or induce or permit others to do so) the Licensed Property for the operation of a terrestrial radio or Internet audio streaming station or network in the United States or Canada during the Term, unless the right to use the Licensed Property is earlier assigned or sublicensed to a Divested Station. For the avoidance of doubt, the Licensor’s use or license of the trademarks CBS or “CBS SPORTS” (either alone or in combination with other symbols, words, phrases or logos other than CBS SPORTS RADIO) and CBS RADIO (which is the subject of a license between Licensor and Radio) is not prohibited by the foregoing; and the Licensors’ use or license of the Licensed Property is not prohibited by the foregoing where the right to use a Trademark is assigned or sublicensed to a Divested Station.

2.7     Licensor s Reserved Rights . All rights of the Licensor and its Affiliates not expressly granted by the Licensor to the Licensees pursuant to this Agreement are reserved without exception or limitation. For the avoidance of doubt, Licensees have no rights under Section 2.1(a) to directly or indirectly use the Licensed Property independently from the Licensee Sports Programming Business and have no rights under Section 2.1(b) to use the Licensed Property for Radio Station Branding other than at those stations listed in Schedule 2.

2.8     Licensees Acknowledgements Concerning the Licensed Property . Subject to Section 2.6 and the other CBS Brands License Agreements, the Licensees hereby acknowledge and agree that:

 

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(a)     No Claims Against CBS . For the avoidance of doubt, CBS and its Affiliates have the right to use and license (and Licensees shall not have any basis to object to or make claims against CBS or its Affiliates for their use or license of):

(i)    the Licensed Property,

(ii)    the Eye Design, “CBS,” “CBS RADIO NEWS,” “CBS NEWS RADIO” and “CBS SPORTS; or

(iii)    “KCBS,” and “WCBS” and “CBS RADIO” (which are subject to other CBS Brand License Agreements);

in each case either alone or in combination with other symbols, words, phrases or logos (including the Trademarks in combination with “TV” or any other term indicating audio or audio-visual content or other media) for any uses in connection with any goods and services (including domain names), whether known as of the date of this Agreement or created in the future, including use in association with any activities of CBS or its Affiliates’ television station brand names, such as WCBS and KCBS, and related activity and for any audio products or otherwise;

(b)     FCC Licenses . The Licensee shall not grant consent to any Person to use any of the Licensed Property as call letters, even if its status at the Federal Communications Commission would permit the Licensee to provide such consent; and

(c)     Risk of Confusion . The Parties shall cooperate with any reasonable requests of Licensor in connection with any Licensed Services that may create a risk of confusion with any current or anticipated business of CBS or any of its Affiliates.

 

3 Licensees’ Use of the Licensed Property

3.1     Brand Guidelines and Logo Changes .

(a)    The Licensees shall use the Trademarks in accordance with the Brand Guidelines as amended by the Licensor from time to time with written notice to Licensees, shall observe all reasonable directions given by the Licensor as to the representations of the Trademarks and shall adopt any new visual representation of the Trademarks that may be required from time to time by the Licensor upon reasonable prior written notice to Licensees (“ Guideline Update ”), comply with all applicable Laws and the quality standards set forth in Section 3.3, provided that:

(i)    any Guideline Update required by Licensor would not reasonably be expected to effectively prohibit the use of the Trademarks by Licensee;

(ii)    if in any given 12 month period, the Guideline Updates, individually or in the aggregate, require Licensee to expend material funds or resources to implement, Licensor agrees to consult with Licensee in good faith on such expenditures; and

 

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(iii)    Licensee shall have six (6) months from receipt of Licensor’s notification of a Guideline Update to comply with such update, provided that Licensees shall use reasonable efforts to promptly complete all necessary changes. Notwithstanding the foregoing, Licensees shall not be required to implement any Guideline Update with respect to inventory, goods, material or other products existing as of the date Licensees were notified of such Guideline Update.

(b)    The Parties anticipate that the Licensees may wish to alter the branding associated with the Licensee Sports Programming Business or Station Business during the Term (in addition to the alterations contemplated by Section 3.8), and Licensees shall obtain Licensor’s prior written approval (not to be unreasonably withheld) before adopting any new visual representation of the Trademarks or to use, reproduce or represent any of the Trademarks in any form or manner that is not already in use in the Station Businesses as of the Effective Date.

3.2     Licensor’s Quality Control . The Licensees agree to provide representative samples of any goods, services and materials to or in which the Licensed Property is affixed or incorporated, including marketing and promotional materials, audio recordings of content and all other uses of the Licensed Property by the Licensees (whether written, electronic or recorded in any other medium), as reasonably requested by the Licensor. If at any time the Licensor notifies the Licensees in writing that a deficiency exists in the form, manner or quality of any goods, services or materials to or in which the Licensed Property is affixed or incorporated, the Licensees will use diligent efforts to remedy such deficiency promptly and provide the Licensor with evidence of same.

3.3     Licensees Obligations / Quality Control . In using the Licensed Property, the Licensees shall:

(a)    maintain such quality standards for its Sports Programming Business or the Licensed Radio Stations that are in place as of the Effective Date, as well as any higher quality standards observed by Licensor or its Affiliates from time to time which are communicated to Licensees;

(b)    not do any act which would reasonably be expected to dilute or materially weaken the strength of the Licensed Property or render the Trademarks generic or invalid (it being understood that uses of the Licensed Property that are consistent with those uses by the Radio Business in the one year period prior to the Effective Date shall not be considered a breach of this Section 3.3(b));

(c)    conduct its business and operations in a manner that would not reasonably be expected to have an adverse effect on the reputation of Licensor or their goodwill associated with the Licensed Property (it being understood that the conduct of the Radio Business in a manner consistent with how it was conducted during the one year period prior to the Effective Date shall not be considered a breach of this Section 3.3(c));

(d)    not perform any act or fail to act in any way that could reasonably be expected to injure, denigrate or otherwise devalue the Licensed Property, or the goodwill or

 

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reputation of the Licensor or any of the Licensor’s Affiliates (it being understood that action and inaction consistent with the conduct of the Radio Business during the one year period prior to the Effective Date shall not be considered breaches of this Section 3.3(d)). The Licensees hereby agree that they will use commercially reasonable efforts to ensure that the Licensees’ employees and other personnel (and, for the avoidance of doubt, the employees and other personnel of their Permitted Sublicensees) do not make any offensive remarks, commit any criminal act, or commit any other act which could reasonably be expected to reflect unfavorably upon the Licensed Property or the Licensor or its Affiliates in any material respect; and, in the event of any such conduct, the Licensees will work with the Licensor to promptly minimize any resulting adverse impact on the Licensed Property and to remedy any such conduct (without limiting other remedies available to the Licensor under this Agreement, including under Section 3.4(b)); and

(e)    not make any representation or do any act which may be taken to indicate that it has any right, title or interest in or to the ownership of any of the Licensed Property other than the licensed rights conferred by this Agreement.

3.4    In the event that any Licensee Sports Programming talent employed or otherwise engaged by any Licensee or any Permitted Sublicensee makes any remarks that are unlawful, obscene or, in the reasonable discretion Licensor, believed to be offensive, or the talent commits any criminal act.

(a)    Licensor may terminate this Agreement to the extent it relates to the particular Licensed Radio Station or the applicable Licensee Sports Programming in which the talent participates; and

(b)    Licensees must, at Licensor’s written request, broadcast and/or display a prominent disclaimer with any content in which the talent participates including a statement that such content is not endorsed by or associated with the Licensor or its Affiliates (the form and content of such disclaimer being subject Licensor’s prior written approval, which approval shall not be unreasonably withheld, conditioned or delayed).

3.5     Legal Lines . To the extent legends, markings, and notices were used by the Radio Business in connection with uses of the Trademarks prior to the Effective Date, the Licensees shall where practicable cause the following legend to appear on all marketing and promotional materials on or in connection with which the Trademarks set forth on Schedules 1 and 2 are used:

“CBS SPORTS RADIO ® is a Registered Trademark of CBS Broadcasting Inc. All Rights Reserved.”

and/or such legends, markings, and notices as the Licensor may reasonably request in order to give appropriate written notice of any trademark, trade name or other rights therein. but failure to use such symbol shall not be deemed a breach of this Agreement that could give rise to termination pursuant to Section 10.2. Licensees agree that upon reasonable request from Licensor to add the aforementioned legend, Licensees will take all reasonable steps necessary to add such legend.

 

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3.6     Domain Name Fees . The Licensees shall be responsible for all fees in connection with the registration of any Domain Names that Licensor agrees to add to Schedule 1 or Schedule 2 and renewal of registration of the Domain Names during the Term and the term of redirection set forth in Section 3.7.

3.7     Domain Name Cooperation . Subject to the Licensees’ compliance with this Agreement, the Licensor shall cooperate with the Licensees to enable (i) the “radio.cbssports.com” domain name for 12 months after the Effective Date and the Domain Name set forth on Schedule 1 for the Term to be directed to the appropriate servers for the Licensees, and (ii) the Domain Names set forth on Schedule 2 to be directed to the appropriate servers for the websites relating to the applicable Station Business during the Term, provided that for a period of eighteen (18) months following the end of the Term, Licensor agree to redirect traffic from such Domain Names to new website addresses designated by Licensees, with an appropriate notice agreed to by the Parties indicating that the applicable website addresses have changed.

3.8     Phase Out .

(a)    The Licensees shall use all reasonable efforts to reduce its usage of the Licensed Property for which a license is granted pursuant to Article 2, including by completing the removal of the Licensed Property from all goods, services and materials in the Licensee’s possession or control, such that, as at the expiration of the Term, the Licensees will have ceased and discontinued all use of the Licensed Property in accordance with Section 10.4; provided that in the event of any de minimis use that continues after expiration or termination of the Term, Licensees shall quickly after becoming aware thereof discontinue such use. The Licensee shall not commence any new uses of the Licensed Property during the Term, unless approved in writing by the Licensor, except as otherwise provided in Section 7.24(c) of the Merger Agreement or the CBS Brands License Agreements.

(b)    The Licensees shall adopt a new domain name for the Licensee Sports Programming Business as of 12 months after the Effective Date or December 31, 2017, whichever is later, provided that if Licensees wish to replace such domain name with any domain name incorporating the Licensed Property, Licensees shall propose to Licensor any such new domain name no later than six (6) months after the Effective Date, and Licensor shall consider such proposal in good faith.

(c)    The Licensees shall use all reasonable efforts to reduce its usage of the Eye Design for which a license is granted pursuant to Article 2, including by completing the removal of the Eye Design from all goods, services and materials in the Licensees’ possession or control, such that, within twelve (12) months after the Effective Date, the Licensees will have ceased and discontinued all use of the Eye Design; provided that if Licensees wish to replace any usage of the Eye Design with any new logo incorporating the Licensed Property (other than, for the avoidance of doubt, the Eye Design), Licensees shall propose to Licensor any such new logos no later than six (6) months after the Effective Date, and Licensor shall consider such proposal in good faith. A Licensee is not in breach of this Agreement if it makes de minimis uses of the Eye Design in contravention of its obligations, so long as it quickly ceases use once such use is discovered except as otherwise provided in Section 7.24(c) of the Merger Agreement.

 

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4 Ownership

4.1    The Licensees acknowledges that nothing contained in this Agreement shall give the Licensees any right, title or interest in or to the Licensed Property or any other intellectual property of Licensor or its Affiliates, or any right to use such Licensed Property or other intellectual property in any territory except as expressly granted by the Licensor in relation to the Licensed Property under Section 2.1. Except for those rights expressly granted under Section 2.1, the Licensees will not directly or indirectly claim any rights in the Licensed Property or apply to register the Licensed Property, “CBS” or the Eye Design or any confusingly similar name or mark whether alone or in combination with any other name or mark or otherwise as copyright, trademark, trade name, domain name in any territory.

4.2    Any goodwill derived by, and any rights acquired by, any Licensee from the use of the Licensed Property or any derivatives thereof shall inure to the sole benefit of the Licensor. At the request and expense of the Licensor, the Licensees shall execute all documents or take all such actions that are reasonably necessary to assign such goodwill and/or rights to the Licensor or otherwise to confirm the Licensor’s ownership of the Licensed Property.

4.3    Subject to the Licensees’ obligations to pay fees related to Domain Name registrations in Section 3.6, the Licensees agree that the Licensor will, at its sole cost and discretion, clear, file, maintain and defend any and all trademark and domain name applications and resulting registrations worldwide for the Licensed Property until the termination of this Agreement. The Licensees further agree to abide by all reasonable trademark clearance, filing and maintenance decisions made by the Licensor in connection and in accordance with this Agreement, to execute any other documents or other materials or provide such assistance as the Licensor may reasonably request in furtherance of the purpose of this Agreement, and to cooperate with the Licensor in connection therewith, as requested.

4.4    If, in breach of this Agreement, the Licensees register, or apply to register, any copyright, trademark, trade name, domain name or other designation identical or substantially similar to the Licensed Property, “CBS” or the Eye Design, they shall immediately, at the Licensees’ cost, transfer the registration or application to the Licensor or, at the Licensor’s request, take all steps necessary to abandon, cancel or withdraw, as requested, such registration or application.

4.5    The Licensees agree that they will not, nor authorize nor permit any other Person to, and they will ensure their Affiliates do not, nor authorize any other Person to: (a) subject to Section 2.5, use or (b) apply to register any copyright, trademark, trade name, domain name or other designation identical or confusingly similar to any of the Licensed Property, “CBS” or the Eye Design or any mark or which combines the Licensed Property with any other trademark, trade name or domain name or other designation unless permitted to do so under another written agreement with Licensor.

4.6    Nothing under this Agreement gives the Licensees any right to use the Licensed Property in their corporate names or registered or unregistered business names. Nothing under this Agreement gives the Licensees any right to use the Licensed Property in any call letters.

 

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5 Licensor Obligations

Notwithstanding anything to the contrary in this Agreement, during the Term and subject to Section 3.6, Licensor shall be required to maintain all Trademark registrations and Domain Names in Schedules 1 and 2 in a manner that will permit Licensees to use such Trademarks and Domain Names as set forth in this Agreement.

 

6 Warranties

6.1    Each Party hereto warrants and represents to the other that it has the full right, power and authority to execute and perform its obligations under this Agreement.

6.2    The Licensor warrants and represents to the Licensees that:

(a)    it holds all such rights and interest in the Licensed Property as are required to permit the Licensor to enter into this Agreement;

(b)    to the knowledge of Licensor’s trademark counsel as of the Effective Date, the Licensees’ use of the Licensed Property in accordance with the terms and conditions of this Agreement does not and will not infringe or violate any other Person’s intellectual property rights; and

(c)    there are no pending claims, judgments or unpaid settlements against Licensor or any of its Affiliates relating to the Licensed Property which, if adversely determined, would have a material adverse effect on Licensor’s ability to license the Licensed Property or interfere in any material respect with Licensees’ use of the Licensed Property during the Term as set forth in this Agreement.

 

7 [Intentionally Blank]

 

8 Further Assurances

Each Party hereto shall, at the cost and the request of the other Party and at any time, execute such documents and perform such acts as the other Party may reasonably require for the purpose of giving effect to this Agreement.

 

9 Infringement

9.1    Each Licensee shall, as soon as it becomes aware thereof, give the Licensor full particulars, in writing, of any actual or threatened conduct of any Person which amounts or might amount either to: (a) infringement or unlicensed use of; (b) passing-off or unfair competition in relation to; or (c) breach of any analogous or comparable right of the Licensor’s rights in relation to, “CBS”, the Eye Design or the Licensed Property.

9.2    If any Licensee becomes aware of any allegation that “CBS”, the Eye Design or the Licensed Property is invalid or that use thereof infringes any rights of the Licensor or that “CBS”, the Eye Design or the Licensed Property may be susceptible to challenge, the Licensee promptly shall provide the Licensor with the particulars thereof.

 

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9.3    The Licensor may, in its sole discretion, commence or prosecute any claims or suits to protect its rights hereunder, and the Licensees agree to cooperate fully with the Licensor and the Licensor shall be responsible for reimbursing the Licensees for any and all documented costs reasonably incurred by the Licensees in providing such assistance to the Licensor; provided that Licensor shall consider in good faith any request by Licensee to assert Licensor’s rights in the Licensed Property that Licensee reasonably believe are adversely impacting Licensee’s rights hereunder.

 

10 Term and Termination

10.1     Term . Except as otherwise set forth in Section 10.2, this Agreement shall begin on the Effective Date and expire on December 31, 2020 (the “ Initial Term ”). During the Initial Term, the Parties shall reasonably cooperate to negotiate in good faith with respect to an extension of the Initial Term. Prior to the end of the Initial Term, but in no event later than October 1, 2020, commencing on a date selected by the Licensee, the Parties agree to commence a 90-day period of good faith negotiations for an extension of the Initial Term, during which period the Licensor shall not negotiate with any other party with respect to the rights in the Licensed Property for use in the radio broadcasting business (any such extension a “ Renewal Term ” and together with the Initial Term, the “ Term ”).

10.2     Termination .

(a)    This Agreement may terminate before the expiration of its Term under any of the following circumstances:

(i)    automatically, without the requirement of written notice by either Party, in the event of an Insolvency of Entercom or CBSRN;

(ii)    automatically, as to a Licensee, Permitted Sublicensee, or Licensed Radio Station and without the requirement of written notice by either Party, in the event of an Insolvency of such Licensee, Permitted Sublicensee, or Licensed Radio Station;

(iii)    after December 31, 2019, automatically, as to the Licensee Sports Programming Business, if the CBSRN ceases using the Licensed Property to identify the Licensee Sports Programming Business; and as to a particular Licensed Radio Station and the applicable Licensed Property as listed in Schedule 1, if any Licensee ceases using such Licensed Property for Licensed Services;

(iv)    automatically, if there is an Acquisition for which the CBSRN or Entercom, as applicable, has not received the prior written consent of Licensor (which consent shall not to be unreasonably withheld);

(v)    by either Party (“ Non-Defaulting Party ”), upon written notice to the other Party, if the other Party or, where the Licensees are the other Party, any Permitted Sublicensee (the “ Defaulting Party ”) fails to comply with any of its material obligations pursuant to this Agreement and does not within 15 days of receipt of written notice from the Non-Defaulting Party specifying the failure, for any such failure either: (x) remedy such failure (if capable of being remedied) or (y) if the failure is not capable of being remedied, agree with the Non-Defaulting Party upon a plan to mitigate the impact of such failure and to prevent such failure from occurring in the future;

 

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(vi)    by either Party immediately on written notice to the other Party on the third (3rd) or any subsequent failure to comply with a material obligation of this Agreement by the other Party or, where the Licensees are the other party, by any Permitted Sublicensee, provided that the non-breaching Party has provided written notice to the breaching Party on two prior occasions of breach and, upon each such prior notice, provided the breaching party with a 15 calendar day opportunity to cure such failure to comply with such material obligation or obligations; or

(vii)    by the Licensor immediately on written notice to the Licensees, if any Licensee or Permitted Sublicensee, alone or with others, seeks a declaration or other order from a Governmental Authority that any of Licensor’s or their Affiliates’ rights in or to any Licensed Property, or any registration thereof, is invalid or otherwise attacks the validity of the foregoing.

(b)    This Agreement shall terminate, upon written notice delivered by the Licensor to the Licensees, if there is a purported unauthorized assignment or transfer in violation of Section 12.7; provided that the Licensees shall have 15 calendar days from the latest delivery of such notice of breach to cure such purported unauthorized assignment or transfer.

(c)    If any Licensee changes Format of either an HD-1 or other sub-HDs broadcasted by any Licensed Radio Station, without any further action required by either Party, all rights granted under this Agreement shall immediately terminate with respect to such station of such Licensed Radio Station, and such Licensee will cease use of all relevant Licensed Property prior to such Format change.

(d)    If the conditions set forth in Section 10.4 are satisfied, Licensees may terminate this Agreement as set forth in Section 10.4.

10.3     Acquisitions and Format Changes and Cessation of Use . Licensees shall provide Licensor written notice (a) immediately upon reaching agreement, or where confidentiality obligations apply, immediately upon public announcement of reaching agreement, with any Person for any Acquisition of any Licensee, Permitted Sublicensee or any Licensed Radio Station or (b) as soon as practicable after any Format change of any Licensed Radio Station as set forth in Section 10.2(e), and (c) immediately upon any Licensee substantially ceasing use of the Licensed Property for Licensed Services as set forth in Section 10.2(a)(i).

10.4    [Intentionally Omitted]

10.5     Survival . Upon any expiration or termination of this Agreement in its entirety, as expressly set forth in this Section 10.5 of this Agreement all rights to use any Licensed Property granted pursuant to this Agreement to the Licensees and all Permitted Sublicensees shall immediately cease and the Licensees and all Permitted Sublicensees shall take all necessary steps to cease use of the Licensed Property in all ways , except as permitted under Section 7.24(c) of the Merger Agreement or the other CBS Brands License Agreements. Upon any expiration or termination of this Agreement as to any, as expressly set forth in this Section 10.5 of this

 

17


Agreement, Licensee, Permitted Sublicensee or Licensed Radio Station, all rights to use any Licensed Property granted pursuant to this Agreement to such Licensee, Permitted Sublicensee or to the Applicable Licensee with respect to such Licensed Radio Station shall immediately cease and such Licensee, Permitted Sublicensee or Applicable Licensee shall take all necessary steps to cease use of the Licensed Property or the Licensed Property with respect to such Licensed Radio Station, in all ways, except as permitted under Section 7.24(c) of the Merger Agreement or the other CBS Brands License Agreements. The foregoing obligations to cease use include, in each case, the following, except as permitted under Section 7.24(c) of the Merger Agreement or the other CBS Brands License Agreements:

(a)    change all of the Radio Station Branding or Licensee Sports Programming Business to names that do not include the Trademarks, “CBS” or any term confusingly similar or any term that implies association or successor relationship with the Licensor or its Affiliates;

(b)    cease the use of all Domain Names;

(c)    cease use of the Licensed Property in all Promotional Use;

(d)    remove or obliterate all signage that displays the Licensed Property; and

(e)    at the Licensor’s written request, destroy all marketing, promotional or other materials bearing the Licensed Property for which a license is granted pursuant to this Agreement.

10.6     Wind Down. With respect to any termination under Section 10.2(a)(iii) or 10.2(a)(iv), or 10.2(a)(v), the applicable Licensees and Permitted Sublicensees will be given sixty (60) days following any such termination to wind down their use of the applicable terminated Licensed Property.

10.7     Survival . Notwithstanding anything herein to the contrary, Articles 4, 7, 8, and 11-12, Sections 3.7, and this Section 10.7 shall survive any expiration or termination of this Agreement and shall remain in full force and effect.

 

11 Indemnification

11.1    The Licensor agrees to indemnify and hold harmless Licensees and their past, present or future Subsidiaries, Affiliates and Permitted Licensees and any of their past, present or future Representatives, heirs, executors and any of their permitted successors and assigns (“ Licensee Indemnified Parties ”) against any and all payments, losses, liabilities, damages, claims, and expenses (including attorney’s fees and expenses incurred in good faith) and costs whatsoever (“ Losses ”), as incurred, arising out of or relating to (a) any third-party claim of infringement, dilution or unfair competition arising from the use of the Licensed Property as described herein to the extent that Licensees’ use of the Licensed Property is in compliance with the terms of this Agreement; (b) any violation by the Licensor of applicable laws; and (c) any violation or breach of this Agreement by the Licensor. In the event of any such Losses involving an allegation of trademark infringement, the Licensees shall take all actions requested by the Licensor in order to mitigate any damages and other costs in connection therewith, including ceasing or modifying use of any Licensed Property.

 

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11.2    The Licensees agree to indemnify and hold harmless the Licensor and its past, present or future Subsidiaries and Affiliates and any of their past, present or future Representatives, heirs, executors and any of their permitted successors and assigns (“ Licensor Indemnified Parties ”) against any and all Losses, as incurred, arising out of or relating to (a) all claims with respect to the use of the Licensed Property (including use by or on behalf of any Permitted Sublicensee) except third party claims of infringement, dilution or unfair competition as set forth in Section 11.1(a) above; (b) any violation by a Licensee or any Permitted Sublicensee of applicable laws; and (c) any violation or breach of this Agreement by a Licensee or any Permitted Sublicensee.

11.3    The provisions of Article  VI of the Separation Agreement shall govern claims for indemnification under this Agreement.

 

12 General

12.1     No Agency . Nothing in this Agreement shall be deemed to create any joint venture, partnership or principal agent relationship between the Licensees and the Licensor or any of their Affiliates and no party hereto shall hold itself out in its advertising or otherwise in any manner which would indicate or imply any such relationship with the other or its Affiliates.

12.2     Entire Agreement . This Agreement, the Separation Agreement and the Merger Agreement constitute the entire agreement between CBS, CBSSN and/or the Licensor, on the one hand, and the Licensees, on the other hand, with respect to the Licensed Property, supersede all prior written and oral and all contemporaneous oral agreements, negotiations, discussions, writings, understandings, commitments and conversations with respect to such subject matter and there are no agreements or understandings between CBS and/or the Licensor and CBSSN, on the one hand, and the Licensees, on the other hand other than those set forth or referred to herein or therein.

12.3     Amendments . No provision of this Agreement, including any Schedules to this Agreement, may be amended, supplemented or modified except by a written instrument making specific reference to this Agreement or any such Schedules to this Agreement, as applicable, signed by the Licensor and Radio.

12.4     Dispute Resolution . Any Agreement Dispute shall be resolved in accordance with the procedures set forth in Article VII of the Separation Agreement, which shall be the sole and exclusive procedures for the resolution of any such Agreement Dispute unless otherwise specified herein or in Article VII of the Separation Agreement.

12.5     Liability . Except in connection with breaches of Section 12.6 or a Party’s indemnification obligations under Article 11, neither Party shall be liable in contract, tort (including negligence) or otherwise arising out of or in connection with this Agreement for any special, punitive, indirect or consequential loss or damage including any economic loss (including loss of revenues, profits, contracts, business or anticipated savings); in any case, whether or not such losses were within the contemplation of the Parties at the date of this Agreement.

 

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12.6     Confidentiality . Each Party hereto shall keep confidential the terms and conditions of this Agreement and all information concerning the business of the other Party hereto exchanged in the course of negotiating the same or pursuant to the terms hereof and shall not divulge the same to any third (other than to their respective professional advisers), provided that the foregoing shall not apply to information (a) already in the public domain at the time the information is disclosed other than as a result of disclosure in violation of any confidentiality obligation or agreement, (b) required by law to be disclosed in any document to be filed with any Governmental Authority, (c) required to be disclosed by court or administrative order or under laws, rules and regulations applicable to such Party or its respective Affiliates (including securities laws, rules and regulations), as the case may be, or pursuant to the rules and regulations of any stock exchange or stock market on which securities of such Party or its respective Affiliates may be listed for trading, (d) disclosed by Licensor for the purpose of maintaining or enforcing its rights under this Agreement or to any of the Licensed Property, or (e) disclosed with the prior written approval of the other party.

12.7     Assignability .

(a)    Notwithstanding any Acquisition, this Agreement shall not be assigned or transferred by a Licensee in whole or in part, including by operation of Law, without the prior written consent of the Licensor, which consent will not be unreasonably withheld; provided , that in the event of any permitted assignment or transfer by a Licensee in accordance with the foregoing, Licensee shall provide a guarantee to the Licensor (in a form reasonably agreed upon) for any liability or obligation of the assignee or transferee under this Agreement and the assignee or transferee shall agree in a written agreement with the Licensor to assume all of the obligations under this Agreement; provided, further, that Licensees shall update Schedule 1 to disclose any such permitted assignment or transfer.

(b)    Notwithstanding the foregoing, this Agreement may be assigned or transferred by any Licensee in whole or in part upon prior written notice to the Licensor to Entercom or a Subsidiary of Entercom so long as Entercom and its Subsidiaries or any of their respective parents or Affiliates are not engaged in the business of television broadcasting in the United States; provided, that any such assignee or transferee agrees in writing to be bound by the terms and conditions of this Agreement; and provided, further, Licensees shall update Schedule 2 to disclose the removal of, or permitted assignment or transfer to, a Licensed Radio Station or Licensee, which update shall be delivered concurrent with Licensees notice to Licensor of such assignment or transfer.

(c)    Any purported assignment or transfer in violation of this Section 12.7 shall be null and void and of no effect.

(d)    Subject to Sections 12.7(a) and 12.7(b), this Agreement shall be binding upon and inure to the benefit of and be enforceable by the Parties and their permitted successors and assigns.

(e)    For the purposes of this Agreement, a “successor” shall include any entity that is a legal successor to either Party as a result of a sale or acquisition of such Party, whether by merger, consolidation, sale of all or substantially all of such Party’s assets.

 

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12.8     Notices . All notices, requests, claims, demands and other communications under this Agreement shall be in writing and shall be given or made (and shall be deemed to have been duly given or made upon receipt) by delivery in person, by overnight courier service, by facsimile or electronic transmission 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 shall be specified in a written notice given in accordance with this Section 12.8):

 

  (a) if to Licensor:

CBS Broadcasting Inc.

Attn: Chief Legal Officer and Trademarks Counsel

51 West 52 nd Street

New York, New York, 10019

Fax: 212-975-4215

with a copy (which shall not constitute notice) to:

Wachtell, Lipton, Rosen & Katz

51 West 52nd Street

New York, NY 10019

  Fax: (212) 403-2000
  Attention: David E. Shapiro, Esq.
       Marshall P. Shaffer, Esq.

if to CBSSN:

CBS Sports Network

Attn: Senior Counsel

51 West 52nd Street

New York, New York 10019

Fax: (212) 975-3531

with a copy (which shall not constitute notice) to:

Wachtell, Lipton, Rosen & Katz

51 West 52nd Street

New York, NY 10019

  Fax: (212) 403-2000
  Attention: David E. Shapiro, Esq.
       Marshall P. Shaffer, Esq.

 

  (b) if to Licensee or a Permitted Sublicensee:

 

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CBS Radio Inc.

1271 Avenue of the Americas, Fl. 44

New York, NY 10020

Attn:  General Counsel

Fax:   212-246-3657

Entercom Communications Corp.

401 E. City Avenue, Suite 809

Bala Cynwyd, PA 19004

  Fax: (610) 660-5662
  Attention: Andrew P. Sutor, IV,
       Senior Vice President and General Counsel

with a copy (which shall not constitute notice) to:

Latham & Watkins LLP

330 N. Wabash Ave., Suite 2800

Chicago, IL 60611

  Fax: (312) 993-9767
  Attention: Mark D. Gerstein
       Zachary A. Judd

12.9     Waivers . The observance of any term of this Agreement may be waived (either generally or in a particular instance and either retroactively or prospectively) by the Party entitled to enforce such term, (each such entity, a “ Waiving Entity ”), but such waiver shall be effective only if it is in writing signed by a duly authorized officer of the Waiving Entity against which such waiver is to be asserted. Unless otherwise expressly provided in this Agreement, no delay or omission on the part of any Party in exercising any right or privilege under this Agreement shall operate as a waiver thereof, nor shall any waiver on the part of any Party of any right or privilege under this Agreement operate as a waiver of any other right or privilege under this Agreement, nor shall any single or partial exercise of any right or privilege preclude any other or future exercise thereof or the exercise of any other right or privilege under this Agreement. No failure by either Party to take any action or assert any right or privilege hereunder shall be deemed to be a waiver of such right or privilege in the event of the continuation or repetition of the circumstances giving rise to such right unless expressly waived in writing by the entity against whom the existence of such waiver is asserted. The rights and remedies of the Parties hereunder are cumulative and are not exclusive of any rights or remedies that they would otherwise have hereunder.

12.10     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 shall nevertheless remain in full force and effect so long as the economic or legal substance of the transactions contemplated by this Agreement is not affected in any manner materially adverse to either the Licensor or the Licensees. Upon such determination that any term or other provision is invalid, illegal or incapable of being enforced, the Licensor and the Licensees shall negotiate in good faith to modify this Agreement so as to effect the original intent of the Licensor and the Licensees 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.

 

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12.11     No Third-Party Beneficiaries . Except to the extent that this Agreement shall benefit Entercom, as set forth explicitly herein, and to the extent of any indemnification of any Licensee Indemnified Parties and Licensor Indemnified Parties, as set forth in Section 11, this Agreement is for the sole benefit of the Licensor and the Licensees and their permitted successors and assigns and nothing in this Agreement, express or implied, is intended to or shall confer upon any other Person any legal or equitable right, benefit or remedy of any nature whatsoever, including any rights of employment for any specified period, under or by reason of this Agreement.

12.12     Counterparts . This Agreement may be executed in one or more counterparts, and by each Party hereto in separate counterparts, each of which when executed shall be deemed to be an original but all of which taken together shall constitute one and the same agreement. Delivery of an executed counterpart of a signature page to this Agreement by facsimile or portable document format (PDF) shall be as effective as delivery of a manually executed counterpart of this Agreement.

12.13     Rules of Construction . Interpretation of this Agreement shall be governed by the following rules of construction: (a) words in the singular shall be held to include the plural and vice versa, and words of one gender shall be held to include the other gender as the context requires; (b) references to the terms Article, Section, paragraph and Schedules are references to the Articles, Sections, paragraphs and Schedules of this Agreement unless otherwise specified; (c) references to “ $ ” shall mean U.S. dollars; (d) the word “including” and words of similar import when used in this Agreement shall mean “including without limitation,” unless otherwise specified; (e) the word “or” shall not be exclusive; (f) references to “written” or “in writing” include in electronic form; (g) provisions shall apply, when appropriate, to successive events and transactions; (h) the headings contained in this Agreement are for reference purposes only and shall not affect in any way the meaning or interpretation of this Agreement; if an ambiguity or question of interpretation should arise, this Agreement shall be construed as if drafted jointly by the Licensor and the Licensees and no presumption or burden of proof shall arise favoring or burdening either Party hereto by virtue of the authorship of any of the provisions in this Agreement or any interim drafts of this Agreement; (i) a reference to any Person includes such Person’s successors and permitted assigns; (j) any reference to “days” means calendar days unless Business Days are expressly specified; and (k) when calculating the period of time before which, within which or following which any act is to be done or step taken pursuant to this Agreement, the date that is the reference date in calculating such period shall be excluded, and if the last day of such period is not a Business Day, the period shall end on the next succeeding Business Day. Any action, determination or approval of or required by the Licensor under this Agreement shall be understood to be at the Licensor’s sole discretion unless expressly stated otherwise hereunder.

12.14     Parties in Interest . This Agreement is binding upon and is for the benefit of the Parties and, as set forth in Section 12.7, their respective permitted successors and permitted assigns.

 

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12.15     Jurisdiction; Waiver of Jury Trial .

(a)    This Agreement is to be construed in accordance with and governed by the internal laws of the State of Delaware without giving effect to any choice of law rule that would cause the application of the laws of any jurisdiction other than the internal laws of the State of Delaware to the rights and duties of the parties.

(b)    EACH PARTY TO THIS AGREEMENT WAIVES TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM BROUGHT BY ANY OF THEM AGAINST THE OTHER ARISING OUT OF OR IN ANY WAY CONNECTED WITH THIS AGREEMENT OR THE ADMINISTRATION THEREOF. NO PARTY TO THIS AGREEMENT SHALL SEEK A JURY TRIAL IN ANY LAWSUIT, PROCEEDING, COUNTERCLAIM OR ANY OTHER LITIGATION PROCEDURE BASED UPON, OR ARISING OUT OF, THIS AGREEMENT. NO PARTY WILL SEEK TO CONSOLIDATE ANY SUCH ACTION IN WHICH A JURY TRIAL HAS BEEN WAIVED WITH ANY OTHER ACTION IN WHICH A JURY TRIAL CANNOT BE OR HAS NOT BEEN WAIVED. EACH PARTY TO THIS AGREEMENT CERTIFIES THAT IT HAS BEEN INDUCED TO ENTER INTO THIS AGREEMENT OR INSTRUMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS SET FORTH ABOVE IN THIS SECTION. NO PARTY HAS IN ANY WAY AGREED WITH OR REPRESENTED TO ANY OTHER PARTY THAT THE PROVISIONS OF THIS SECTION WILL NOT BE FULLY ENFORCED IN ALL INSTANCES.

[ Remainder of Page Intentionally Left Blank; Signature Pages Follow. ]

 

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IN WITNESS WHEREOF, the Parties hereto have caused this Agreement to be duly executed and delivered as of the Effective Date.

 

CBS BROADCASTING INC.
By:  

/s/ Joseph R. Ianniello

  Name:  Joseph R. Ianniello
  Title:    Executive Vice President

CSTV NETWORKS, INC. d/b/a

CBS Sports Network

By:  

/s/ Joseph R. Ianniello

  Name:  Joseph R. Ianniello
  Title:    Executive Vice President
CBS RADIO INC.
By:  

/s/ Andre Fernandez

  Name:Andrew Fernandez
  Title: President & Chief Executive Officer, CBS Radio
CBS SPORTS RADIO NETWORK INC.
By:  

/s/ Andre Fernandez

  Name: Andre Fernandez
  Title: President & Chief Executive Officer, CBS Radio

[ Signature Page to License Agreement #3 (CBS RADIO Brand) ]

Table of Contents

Exhibit 2.10

EXECUTION VERSION

TAX MATTERS AGREEMENT

by and among

CBS CORPORATION,

CBS RADIO INC.,

and

ENTERCOM COMMUNICATIONS CORP.

dated as of

November 16, 2017


Table of Contents

TABLE OF CONTENTS

 

          Page  

Article 1.        Definition of Terms

     2  

Article 2.      Responsibility for Tax Liabilities

     11  

Section 2.01

  

General Rule

     11  

Section 2.02

  

Joint Returns

     11  

Section 2.03

  

Separate Returns

     11  

Section 2.04

  

Allocation Conventions

     11  

Section 2.05

  

Additional Acquiror and Radio Liability

     11  

Section 2.06

  

Additional CBS Liability

     12  

Section 2.07

  

Limitation on CBS Liability for Other Taxes

     13  

Section 2.08

  

No Liability for Prior Payments

     13  

Article 3.      Preparation and Filing of Tax Returns

     13  

Section 3.01

  

CBS Responsibility

     13  

Section 3.02

  

Radio Responsibility

     14  

Section 3.03

  

Tax Reporting Practices

     14  

Section 3.04

  

Consolidated or Combined Tax Returns

     15  

Section 3.05

  

Straddle Period Tax Allocation

     15  

Section 3.06

  

Radio Carrybacks and Claims for Refunds

     15  

Section 3.07

  

Apportionment of Tax Attributes

     16  

Article 4.      Calculation of Tax and Payments

     17  

Section 4.01

  

Payment of Liability With Respect to Tax Due

     17  

Section 4.02

  

Adjustments Resulting in Underpayments

     17  

Section 4.03

  

Method for Making Payments

     17  

Article 5.      Refunds

     18  

Section 5.01

  

Refunds

     18  

Article 6.      Tax-Free Status

     19  

Section 6.01

  

Representations and Warranties

     19  

Section 6.02

  

Restrictions Relating to the Distributions.

     19  

Section 6.03

  

Procedures Regarding Post Distribution Rulings and Unqualified Tax Opinions

     21  

Section 6.04

  

Liability for Separation Tax Losses

     22  

Section 6.05

  

Payment of Separation Taxes

     23  

Section 6.06

  

Protective Election

     23  

Section 6.07

  

CBS Actions

     24  

Article 7.      Assistance and Cooperation

     24  

Section 7.01

  

Assistance and Cooperation

     24  

Section 7.02

  

Tax Return Information

     25  

Section 7.03

  

Reliance by CBS

     25  

Section 7.04

  

Reliance by Acquiror and Radio

     26  

 

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          Page  

Article 8.      Tax Records

     26  

Section 8.01

  

Retention of Tax Records

     26  

Section 8.02

  

Access to Tax Records

     26  

Section 8.03

  

Preservation of Privilege

     27  

Article 9.      Tax Contests

     27  

Section 9.01

  

Notice

     27  

Section 9.02

  

Control of Tax Contests

     27  

Article 10.    Effective Date

     29  

Article 11.    Survival of Obligations

     29  

Article 12.    Treatment of Payments

     29  

Section 12.01

  

Treatment of Tax Indemnity Payments

     29  

Section 12.02

  

Interest Under This Agreement

     30  

Article 13.    Disagreements

     30  

Section 13.01

  

Discussion

     30  

Section 13.02

  

Escalation

     30  

Article 14.    Late Payments

     30  

Article 15.    Expenses

     30  

Article 16.    General Provisions

     31  

Section 16.01

  

Addresses and Notices

     31  

Section 16.02

  

Binding Effect

     31  

Section 16.03

  

Waiver

     31  

Section 16.04

  

Severability

     31  

Section 16.05

  

Authority

     32  

Section 16.06

  

Further Action

     32  

Section 16.07

  

Integration

     32  

Section 16.08

  

Construction

     32  

Section 16.09

  

No Double Recovery

     32  

Section 16.10

  

Counterparts

     32  

Section 16.11

  

Governing Law

     33  

Section 16.12

  

Jurisdiction

     33  

Section 16.13

  

Amendment

     33  

Section 16.14

  

Subsidiaries

     33  

Section 16.15

  

Successors

     33  

Section 16.16

  

Injunctions

     33  

 

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INDEX OF DEFINED TERMS

 

     Page  

Acquiror

     1  

Acquiror Capital Stock

     2  

Acquiror Common Stock

     2  

Acquiror Group

     2  

Adjustment Request

     2  

Affiliate

     3  

Agreement

     1  

Ancillary Agreements

     3  

Benefited Party

     18  

Business

     3  

Business Day

     3  

CBS

     1  

CBS Affiliated Group

     3  

CBS Broadcasting

     1  

CBS Business

     3  

CBS Class B Common Stock

     3  

CBS Common Stock

     3  

CBS Federal Consolidated Income Tax Return

     3  

CBS Group

     3  

CBS Indemnified Party

     3  

CBS Separate Return

     3  

Code

     3  

Companies

     1  

Company

     1  

Controlling Party

     28  

Dispute

     30  

Distributing Company

     4  

Distribution Date

     4  

Distribution Tax Opinion

     4  

Distributions

     1  

Effective Time

     4  

Exchange Offer

     1  

Extraordinary Transaction

     4  

Federal Income Tax

     4  

Fifty-Percent or Greater Interest

     4  

Final Determination

     4  

Final Distribution

     1  

First Distribution

     1  

Governmental Authority

     4  

Group

     4  

Income Tax

     5  

Indemnitee

     30  

Indemnitor

     30  

Internal Distributions

     1  

 

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     Page  

IRS

     5  

Joint Return

     5  

Law

     5  

Merger

     2  

Merger Agreement

     1  

Merger Sub

     2  

Merger Tax Opinion

     5  

Non-Controlling Party

     28  

Notified Action

     21  

Ordinary Course of Business

     5  

Other Taxes

     5  

Parties and Party

     1  

Past Practice

     14  

Payment Date

     5  

Person

     5  

Post-Distribution Period

     6  

Post-Distribution Ruling

     21  

Pre-Distribution Period

     6  

Prime Rate

     6  

Privilege

     6  

Proposed Acquisition Transaction

     6  

Radio

     1  

Radio Active Trade or Business

     7  

Radio Business

     7  

Radio Capital Stock

     7  

Radio Carryback

     7  

Radio Common Stock

     7  

Radio Entity

     7  

Radio Group

     7  

Radio Indemnified Party

     7  

Radio Reorganization

     1  

Radio SAG

     7  

Radio Separate Return

     7  

Radio Working Capital

     7  

Refund

     8  

Representation Letters

     8  

Retention Date

     26  

Ruling Request

     8  

Second Distribution

     1  

Separate Return

     8  

Separation Agreement

     1  

Separation Tax Losses

     8  

State Income Tax

     9  

Stock Split

     9  

Straddle Period

     9  

Subsidiary

     9  

 

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     Page  

Tax Advisor

     9  

Tax Attribute

     9  

Tax Authority

     9  

Tax Benefit

     9  

Tax Contest

     9  

Tax Item

     10  

Tax Law

     10  

Tax Opinions

     10  

Tax or Taxes

     9  

Tax Period

     10  

Tax Records

     10  

Tax Return or Return

     10  

Tax-Free Status

     9  

Treasury Regulations

     10  

Unqualified Tax Opinion

     10  

Westinghouse

     1  

 

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TAX MATTERS AGREEMENT

This TAX MATTERS AGREEMENT (this “ Agreement ”) is entered into as of November 16, 2017, by and among CBS Corporation, a Delaware corporation (“ CBS ”), CBS Radio Inc. (“ Radio ”), a Delaware corporation and an indirect wholly owned subsidiary of CBS (CBS and Radio are sometimes collectively referred to herein as the “ Companies ” and, as the context requires, individually referred to herein as the “ Company ”), and Entercom Communications Corp., a Pennsylvania corporation (“ Acquiror ”). Each of CBS, Radio, and Acquiror are herein referred to individually as a “ Party ” and collectively as the “ Parties .”

RECITALS

WHEREAS, CBS is indirectly engaged in the Radio Business;

WHEREAS, CBS presently owns 100% of the equity of Westinghouse (as defined below), Westinghouse presently owns 100% of the equity of CBS Broadcasting (as defined below) and CBS Broadcasting presently owns 100% of the equity of Radio;

WHEREAS, CBS Broadcasting Inc., a New York corporation and an indirectly wholly owned subsidiary of CBS (“ CBS Broadcasting ”) presently owns all of the outstanding shares of Radio Common Stock (as defined below);

WHEREAS, the CBS Divestiture Committee has determined that it would be in the best interests of CBS and its stockholders to separate the Radio Business from the other businesses of CBS;

WHEREAS, CBS and Radio entered into the Master Separation Agreement, dated as of February 2, 2017 (as amended from time to time, the “ Separation Agreement ”), pursuant to which (a) (i) CBS Broadcasting will distribute all of the outstanding equity of Radio to Westinghouse CBS Holding Company, Inc. (“ Westinghouse ” and such distribution, the “ First Distribution ”), (ii) Westinghouse will distribute all of the equity of Radio to CBS, (the “ Second Distribution ” and, together with the First Distribution, the “ Internal Distributions ”) and (iii) Radio will effect the Stock Split (together with the Internal Distributions, the “ Radio Reorganization ”); (b) following the consummation of the Internal Distributions, on the Distribution Date, CBS will consummate an offer to exchange all of the outstanding shares of Radio Common Stock owned by CBS for shares of CBS Class B Common Stock then outstanding (the “ Exchange Offer ”) and (ii) in the event that holders of CBS Class B Common Stock subscribe for less than all of the shares of Radio Common Stock owned by CBS in the Exchange Offer, CBS will distribute the remaining shares of Radio Common Stock owned by CBS on a pro rata basis to holders of CBS Common Stock whose shares of CBS Common Stock remain outstanding after consummation of the Exchange Offer (collectively, the “ Final Distribution ,” and together with the Internal Distributions, the “ Distributions ”);

WHEREAS, pursuant to the Agreement and Plan of Merger, dated as of February 2, 2017, and amended by the Amendment No. 1 to the Agreement and Plan of Merger, dated as of July 10, 2017, and by the Amendment No. 2 to the Agreement and Plan of Merger, dated as of September 13, 2017 (as so amended, the “ Merger Agreement ”), by and among CBS, Radio, Acquiror, and Constitution Merger Sub Corp., a Delaware corporation and a wholly owned

 

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subsidiary of Acquiror (“ Merger Sub ”), immediately following the Final Distribution, Merger Sub will merge with and into Radio (the “ Merger ”), with Radio surviving as a wholly owned subsidiary of Acquiror;

WHEREAS, the Parties intend that, for U.S. federal income Tax purposes, (i) each of the Distributions will qualify as a Tax-free transaction under Section 355 of the Code, and (ii) the Merger will qualify as a “reorganization” within the meaning of Section 368(a) of the Code;

WHEREAS, prior to consummation of the Final Distribution, CBS was the common parent of an affiliated group of corporations, including Radio, within the meaning of Section 1504 of the Code;

WHEREAS, as a result of the Final Distribution, Radio and its Subsidiaries will cease to be members of the affiliated group of corporations within the meaning of Section 1504 of the Code of which CBS is the common parent; and

WHEREAS, the Parties desire to provide for and agree upon the allocation between the Parties of liabilities for certain Taxes, and to provide for and agree upon other matters relating to Taxes;

NOW THEREFORE, in consideration of the mutual agreements contained herein, the Parties hereby agree as follows:

Article  1. Definition of Terms For purposes of this Agreement (including the recitals hereof), the following terms have the following meanings:

Acquiror ” has the meaning set forth in the first sentence of this Agreement.

Acquiror Capital Stock ” means all classes or series of capital stock of Acquiror (or any entity treated as a successor to Acquiror), including (i) the Acquiror Common Stock, (ii) all options, warrants and other rights to acquire such capital stock and (iii) all instruments treated as stock in Acquiror (or any entity treated as a successor to Acquiror) for U.S. federal income tax purposes.

Acquiror Indemnified Party ” means any officer, director or employee or Acquiror or any of its Affiliates.

Acquiror Common Stock ” has the meaning set forth in the Merger Agreement.

Acquiror Group ” has the meaning set forth in the Merger Agreement.

Acquiror Representation Letters ” has the meaning set forth in Section  6.01(a) of this Agreement.

Adjustment Request ” means any formal or informal claim or request filed with any Tax Authority, or with any administrative agency or court, for the adjustment, refund, or credit of Taxes, including (i) any amended Tax Return claiming adjustment to the Taxes as reported on a Tax Return or, if applicable, as previously adjusted, (ii) any claim for equitable recoupment or other offset, and (iii) any claim for a Tax Benefit with respect to Taxes previously paid.

 

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Affiliate ” has the meaning set forth in the Merger Agreement.

Agreement ” has the meaning set forth in the first sentence of this Agreement.

Ancillary Agreements ” has the meaning set forth in the Merger Agreement; provided , however , that for purposes of this Agreement, this Agreement shall not constitute an Ancillary Agreement.

Benefited Party ” has the meaning set forth in Section  5.01(b) .

Business ” has the meaning set forth in the Separation Agreement.

Business Day ” has the meaning set forth in the Merger Agreement.

CBS ” has the meaning set forth in the first sentence of this Agreement.

CBS Affiliated Group ” means the affiliated group (as that term is defined in Section 1504 of the Code and the Treasury Regulations thereunder) of which CBS is the common parent.

CBS Broadcasting ” has the meaning set forth in the Recitals.

CBS Business ” has the meaning set forth in the Separation Agreement.

CBS Class  B Common Stock ” has the meaning set forth in the Merger Agreement.

CBS Common Stock ” has the meaning set forth in the Merger Agreement.

CBS Federal Consolidated Income Tax Return ” means any United States federal Income Tax Return for the CBS Affiliated Group.

CBS Group ” has the meaning set forth in the Merger Agreement.

CBS Indemnified Party ” means any officer, director or employee of CBS or any of its Affiliates.

CBS Separate Return ” means any Tax Return of or including any member of the CBS Group (including any consolidated, combined or unitary Tax Return that does not include any member of the Radio Group).

Code ” means the U.S. Internal Revenue Code of 1986, as amended.

Companies ” and “ Company ” have the meaning set forth in the first sentence of this Agreement.

Controlling Party ” has the meaning set forth in Section  9.02(c) of this Agreement.

 

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Dispute ” has the meaning set forth in Section  13.01 of this Agreement.

Distributing Company ” means any company that distributes the stock of another company pursuant to any of the Distributions.

Distribution Date ” has the meaning set forth in the Separation Agreement.

Distribution Tax Opinion ” has the meaning set forth in the Separation Agreement.

Distributions ” has the meaning set forth in the Recitals.

Effective Time ” has the meaning set forth in the Merger Agreement.

Exchange Offer ” has the meaning set forth in the Recitals.

Extraordinary Transaction ” means any action that is not in the Ordinary Course of Business, but shall not include any action described in or contemplated by the Separation Agreement, the Merger Agreement or any Ancillary Agreement or that is undertaken pursuant to the Radio Reorganization or the Distribution.

Federal Income Tax ” means any Tax imposed by Subtitle A of the Code.

Fifty-Percent or Greater Interest ” has the meaning ascribed to such term for purposes of Sections 355(d) and (e) of the Code and the Treasury Regulations thereunder.

Final Allocation ” has the meaning set forth in Section  3.07(b) of this Agreement.

Final Determination ” means the final resolution of liability for any Tax, which resolution may be for a specific issue or adjustment or for a taxable period, (i) by IRS Form 870 or 870-AD (or any successor forms thereto), on the date of

acceptance by or on behalf of the taxpayer, or by a comparable form under the laws of a state, local, or foreign taxing jurisdiction, except that a Form 870-AD or comparable form shall not constitute a Final Determination to the extent that it reserves (whether by its terms or by operation of law) the right of the taxpayer to file a claim for a Tax Benefit or the right of the Tax Authority to assert a further deficiency in respect of such issue or adjustment or for such taxable period (as the case may be); (ii) by a decision, judgment, decree, or other order by a court of competent jurisdiction, which has become final and unappealable; (iii) by a closing agreement or accepted offer in compromise under Sections 7121 or 7122 of the Code, or a comparable agreement under the laws of a state, local, or foreign taxing jurisdiction; or (iv) by any other final disposition, including by reason of the expiration of the applicable statute of limitations or by mutual agreement of the parties.

Final Distribution ” has the meaning set forth in the Recitals.

First Distribution ” has the meaning set forth in the Recitals.

Governmental Authority ” has the meaning set forth in the Merger Agreement.

Group ” has the meaning set forth in the Separation Agreement.

 

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Income Tax ” means any Tax that is a Federal Income Tax or a State Income Tax.

Indemnitee ” has the meaning set forth in Section  12.02 of this Agreement.

Indemnitor ” has the meaning set forth in Section  12.02 of this Agreement.

Internal Distributions ” has the meaning set forth in the Recitals.

IRS ” means the United States Internal Revenue Service.

Joint Return ” means any Tax Return that actually includes, by election or otherwise, or is required to include under applicable Law, one or more members of the CBS Group together with one or more members of the Radio Group.

Law ” has the meaning set forth in the Merger Agreement.

Merger ” has the meaning set forth in the Recitals.

Merger Agreement ” has the meaning set forth in the Recitals.

Merger Sub ” has the meaning set forth in the Recitals.

Merger Tax Opinion ” has the meaning set forth in the Merger Agreement.

Non-Controlling Party ” has the meaning set forth in Section  9.02(c) of this Agreement.

Notified Action ” has the meaning set forth in Section  6.03(a) of this Agreement.

Ordinary Course of Business ” means an action taken by a Person only if such action is taken in the ordinary course of the normal day-to-day operations of such Person.

Other Taxes ” means any Tax imposed by any Tax Authority other than any Income Tax.

Parties ” and “ Party ” has the meaning set forth in the second sentence of this Agreement.

Past Practice ” has the meaning set forth in Section  3.03(a) of this Agreement.

Payment Date ” means (i) with respect to any CBS Federal Consolidated Income Tax Return, (A) the due date for any required installment of estimated Taxes determined under Section 6655 of the Code, (B) the due date (determined without regard to extensions) for filing such Tax Return determined under Section 6072 of the Code, or (C) the date such Tax Return is filed, as the case may be, and (ii) with respect to any other Tax Return, the corresponding dates determined under the applicable Tax Law.

Person ” has the meaning set forth in the Merger Agreement.

 

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Post-Distribution Period ” means any Tax Period beginning after the Distribution Date and, in the case of any Straddle Period, the portion of such Straddle Period beginning after the Distribution Date.

Post-Distribution Ruling ” has the meaning set forth in Section  6.02(b) of this Agreement.

Pre-Distribution Period ” means any Tax Period ending on or before the Distribution Date, and, in the case of any Straddle Period, the portion of such Straddle Period ending on the Distribution Date.

Prime Rate ” means a rate equal to the prime lending rate prevailing during the relevant period as published in The Wall Street Journal , calculated on a daily basis.

Privilege ” means any privilege that may be asserted under applicable law, including, any privilege arising under or relating to the attorney-client relationship (including the attorney-client and work product privileges), the accountant-client privilege and any privilege relating to internal evaluation processes.

Proposed Acquisition Transaction ” means a transaction or series of transactions (or any agreement, understanding or arrangement, within the meaning of Section 355(e) of the Code and Treasury Regulation Section 1.355-7, or any other Treasury Regulations promulgated thereunder, to enter into a transaction or series of transactions), whether such transaction is supported by Radio or Acquiror management or shareholders, is a hostile acquisition, or otherwise, as a result of which any Person or Persons would (directly or indirectly) acquire, or have the right to acquire, from Radio and/or one or more holders of outstanding shares of Radio Capital Stock, a number of shares of Radio Capital Stock or Acquiror Capital Stock that would, when combined with any other changes in ownership of Radio Capital Stock or Acquiror Capital Stock pertinent for purposes of Section 355(e) of the Code (including the Merger), comprise 50% or more of (i) the value of all outstanding shares of stock of Radio or Acquiror, as applicable, as of the date of such transaction, or in the case of a series of transactions, the date of the last transaction of such series, or (ii) the total combined voting power of all outstanding shares of voting stock of Radio or Acquiror, as applicable, as of the date of such transaction, or in the case of a series of transactions, the date of the last transaction of such series. Notwithstanding the foregoing, a Proposed Acquisition Transaction shall not include (i) the adoption by Radio or Acquiror of a shareholder rights plan, (ii) issuances by Radio or Acquiror that satisfy Safe Harbor VIII (relating to acquisitions in connection with a person’s performance of services) or Safe Harbor IX (relating to acquisitions by a retirement plan of an employer), in each case, of Treasury Regulation Section 1.355-7(d), including such issuances net of exercise price and/or tax withholding (provided, however, that any sale of such stock in connection with a net exercise or tax withholding is not exempt under this clause (ii) unless it satisfies the requirements of Safe Harbor VII of Treasury Regulations Section 1.355-7(d)), (iii) transfers of Radio Capital Stock or Acquiror Capital Stock that satisfy Safe Harbor VII (relating to public trading) of Treasury Regulation Section 1.355-7(d), or (iv) Specified Repurchases or Redemptions. For purposes of determining whether a transaction constitutes an indirect acquisition, any recapitalization resulting in a shift of voting power or any redemption of shares of stock shall be treated as an indirect acquisition of shares of stock by the non-exchanging

 

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shareholders. For purposes of this definition, each reference to Radio shall include a reference to any entity treated as a successor thereto. This definition and the application thereof is intended to monitor compliance with Section 355(e) of the Code and shall be interpreted accordingly. Any clarification of, or change in, the statute, Treasury Regulations promulgated under Section 355(e) of the Code or official IRS guidance with respect thereto shall be incorporated in this definition and its interpretation.

Proposed Allocation ” has the meaning set forth in Section  3.07(b) of this Agreement.

Radio ” has the meaning set forth in the first sentence of this Agreement.

Radio Active Trade or Business ” means the active conduct (as defined in Section 355(b)(2) of the Code and the Treasury Regulations thereunder) of the business of operating radio stations in the (i) New York, New York, (ii) Chicago, Illinois and (iii) Philadelphia, Pennsylvania markets, as conducted immediately prior to the First Distribution by the Radio SAG.

Radio Business ” has the meaning set forth in the Separation Agreement.

Radio Capital Stock ” means all classes or series of capital stock of Radio (or any entity treated as a successor to Radio), including (i) the Radio Common Stock, (ii) all options, warrants and other rights to acquire such capital stock and (iii) all instruments treated as stock in Radio (or any entity treated as a successor to Radio) for U.S. federal income tax purposes.

Radio Carryback ” means any net operating loss, net capital loss, excess tax credit, or other similar Tax item of any member of the Radio Group which may or must be carried from one Tax Period to another prior Tax Period under the Code or other applicable Tax Law.

Radio Common Stock ” means the common stock of Radio.

Radio Entity ” means an entity which is a member of the Radio Group.

Radio Group ” has the meaning set forth in the Separation Agreement.

Radio Indemnified Party ” means any officer, director or employee of Radio or any of its Affiliates.

Radio Reorganization ” has the meaning set forth in the Recitals.

Radio SAG ” means the separate affiliated group of Radio, within the meaning of Section 355(b)(3)(B) of the Code.

Radio Separate Return ” means any Tax Return of or including any member of the Radio Group (including any consolidated, combined or unitary Tax Return) that does not include any member of the CBS Group.

Radio Working Capital ” has the meaning set forth in the Merger Agreement.

 

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Refund ” means any Tax Benefit, but only to the extent such Tax Benefit is actually realized in cash or as a reduction to Taxes otherwise payable by the relevant party, together with any interest paid on or with respect to such Tax Benefit; provided , however , that the amount of any Tax Benefit shall be net of any Taxes imposed by any Tax Authority on the receipt of the Tax Benefit, including any Taxes imposed by way of withholding or offset.

Representation Letters ” means the statements of facts and representations, officer’s certificates, representation letters and any other materials delivered by CBS, Radio, Acquiror or any of their respective Affiliates or representatives in connection with the rendering by the Tax Advisors of the Tax Opinions, in each case containing customary representations and statements, reasonably satisfactory in form and substance to the Tax Advisors of Acquiror and CBS.

Responsible Party ” means, with respect to any Tax Return, the Party having responsibility for preparing and filing such Tax Return under this Agreement.

Retention Date ” has the meaning set forth in Section  8.01 of this Agreement.

Ruling Request ” means any letter filed by CBS with the IRS or other Tax Authority requesting a Post-Distribution Ruling (including all attachments, exhibits, and other materials submitted with such ruling request letter) and any amendments or supplements to such ruling request letter.

Second Distribution ” has the meaning set forth in the Recitals.

Separate Return ” means a CBS Separate Return or a Radio Separate Return, as the case may be.

Separation Agreement ” has the meaning set forth in the Recitals.

Separation Tax Losses ” means (i) all Taxes imposed pursuant to (or any reduction to a Refund resulting from) any Final Determination or otherwise; (ii) all third party accounting, legal and other professional fees and court costs incurred in connection with such Taxes, as well as any other out-of-pocket costs incurred in connection with such Taxes; and (iii) all third party costs, expenses and damages associated with any stockholder litigation or other controversy and any amount paid by CBS (or any CBS Affiliate) or Radio (or any Radio Affiliate) in respect of any liability of or to shareholders, whether paid to shareholders or to the IRS or any other Tax Authority, in each case, resulting from the failure of the Distributions to have Tax-Free Status.

Specified Repurchases or Redemptions ” means repurchases or redemptions by Acquiror that satisfy the following criteria: (i) the repurchase or redemption is motivated by a non-tax business purpose, (ii) the stock to be repurchased or redeemed is widely held, (iii) the repurchase or redemption is made in the open market, (iv) the repurchase or redemption is not motivated to any extent by a desire to increase or decrease the ownership percentage of any particular shareholder or group of shareholders, and (v) Acquiror will not know the identity of any shareholder from which its stock is redeemed or repurchased; provided that, no repurchase or redemption will be considered a Specified Repurchase or Redemption if at the time of the repurchase or redemption any shareholder of Acquiror was either (A) a controlling shareholder (within the meaning of Treasury Regulations Section 1.355-7(h)(3)), (B) a ten-percent

 

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shareholder (within the meaning of Treasury Regulations Section 1.355-7(h)(14)) or (C) a member of a controlled group of corporations within the meaning of Section 1563 of the Code of which Acquiror is a member.

State Income Tax ” means any Tax imposed by any state of the United States or by any political subdivision of any such state which is imposed on or measured by income, including state or local franchise or similar Taxes measured by income, as well as any state or local franchise, capital or similar Taxes imposed in lieu of or in addition to a tax imposed on or measured by income.

Stock Split ” has the meaning set forth in the Separation Agreement.

Straddle Period ” means any Tax Period that begins before and ends after the Distribution Date.

Subsidiary ” has the meaning set forth in the Merger Agreement.

Tax ” or “ Taxes ” means all taxes, charges, fees, duties, levies, imposts, rates or other assessments or governmental charges of any kind imposed by any federal, state, local or foreign Tax Authority, including income, gross receipts, employment, excise, severance, stamp, occupation, premium, windfall profits, environmental (including Taxes under Section 59A of the Code), custom duties, property, sales, use, license, capital stock, transfer, franchise, registration, payroll, withholding, social security (or similar), unemployment, disability, value added, alternative or add-on minimum or other taxes (including any amounts owed to any Governmental Authority or other Person in respect of abandoned or unclaimed property, escheat or similar Laws), whether disputed or not, and including any interest, penalties or additions attributable thereto. For the avoidance of doubt, Tax includes any increase in Tax as a result of a Final Determination.

Tax Advisor ” means tax counsel of recognized national standing.

Tax Attribute ” means a net operating loss, net capital loss, unused investment credit, unused foreign tax credit, excess charitable contribution, general business credit, research and development credit, earnings and profits, basis or any other Tax Item that could reduce a Tax or create a Tax Benefit.

Tax Authority ” means any Governmental Authority imposing any Tax, charged with the collection of Taxes or otherwise having jurisdiction with respect to any Tax.

Tax Benefit ” means any refund, reimbursement, offset, credit, or other reduction in liability for Taxes.

Tax Contest ” means an audit, review, examination, or any other administrative or judicial proceeding with respect to Taxes (including any administrative or judicial review of any claim for any Tax Benefit with respect to Taxes previously paid).

Tax-Free Status ” means the qualification of (i) each of the Distributions as a transaction (a) described in Section 355(a) of the Code; (b) in which the stock distributed thereby

 

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is “qualified property” for purposes of Sections 355(c) and 361(c) of the Code (and neither Section 355(d) or 355(e) of the Code cause such stock to be treated as other than “qualified property” for any purposes), and (c) in which the relevant Distributing Company, Radio and the shareholders of CBS, as applicable, recognize no income or gain for U.S. federal income tax purposes pursuant to Sections 355, 361 and/or 1032 of the Code, as applicable, other than, in the case of CBS (or any other member of the CBS Group) and Radio (or any other member of the Radio Group), intercompany items or excess loss accounts taken into account pursuant to the Treasury Regulations promulgated pursuant to Section 1502 of the Code; (ii) the Merger as not causing Section 355(e) of the Code to apply to any of the Distributions; and (iii) the Merger as a “reorganization” within the meaning of Section 368(a) of the Code and each of Acquiror, Merger Sub, and Radio as a “party to a reorganization” within the meaning of Section 368(b) of the Code.

Tax Item ” means, with respect to any Income Tax, any item of income, gain, loss, deduction, or credit.

Tax Law ” means the law of any Governmental Authority relating to any Tax.

Tax Opinions ” means the Distribution Tax Opinion and the Merger Tax Opinions.

Tax Period ” means, with respect to any Tax, the period for which the Tax is reported as provided under the Code or other applicable Tax Law.

Tax Records ” means any (i) Tax Returns, (ii) Tax Return work papers, (iii) documentation relating to Tax Contests, and (iv) other books of account or records (whether or not in written, electronic or other tangible or intangible forms and whether or not stored on electronic or any other medium) maintained or required to be maintained under the Code or other applicable Tax Laws or under any record retention agreement with any Tax Authority, in each case filed or required to be filed with respect to or otherwise relating to Taxes.

Tax Return ” or “ Return ” means any report of Taxes due, any claim for a Tax Benefit, any information return or estimated Tax return with respect to Taxes, or any other similar report, statement, declaration, or document filed or required to be filed under the Code or other Tax Law with respect to Taxes, including any attachments, exhibits, or other materials submitted with any of the foregoing, and including any amendments or supplements to any of the foregoing.

Treasury Regulations ” means the regulations promulgated from time to time under the Code as in effect for the relevant Tax Period.

Unqualified Tax Opinion ” means an unqualified “will” opinion of a Tax Advisor, which Tax Advisor is reasonably acceptable to CBS, and on which CBS may rely to the effect that a transaction will not adversely affect the Tax-Free Status. Any such opinion must assume that the Distributions and the Merger would have qualified for Tax-Free Status if the transaction in question did not occur.

Westinghouse ” has the meaning set forth in the Recitals.

 

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Article 2. Responsibility for Tax Liabilities.

Section 2.01 General Rule .

(a) CBS Liability . CBS shall be liable for, and shall indemnify, defend, and hold harmless the Acquiror Group, the Radio Group, any Acquiror Indemnified Party and any Radio Indemnified Party from and against any liability for, Taxes for which CBS is responsible under this Article  2 .

(b) Acquiror and Radio Liability . Acquiror and Radio shall be liable for, and shall indemnify, defend, and hold harmless the CBS Group and any CBS Indemnified Party from and against any liability for, Taxes for which Acquiror or Radio is responsible under this Article  2 .

Section 2.02 Joint Returns . Except as provided in Section  2.05 and/or Section  2.07 , CBS shall be responsible for all Taxes reported, or required to be reported, on any Joint Return that any member of the CBS Group files or is required to file under the Code or other applicable Tax Law; provided , however , that to the extent any such Joint Return includes any Tax Item attributable to any member of the Radio Group or to the Radio Business for any Post-Distribution Period, Acquiror and Radio shall be responsible for all Taxes attributable to such Tax Items.

Section 2.03 Separate Returns . Except as provided in Section  2.05 , Section  2.06 , and/or Section  2.07 , CBS, Acquiror and Radio shall be responsible for all Taxes reported, or required to be reported, on any Separate Return as follows:

(a) CBS Separate Returns . CBS shall be responsible for all Taxes reported, or required to be reported, on (x) a CBS Separate Return or (y) a Radio Separate Return with respect to a Pre-Distribution Period.

(b) Radio Separate Returns . Acquiror and Radio shall be responsible for all Taxes reported, or required to be reported, on a Radio Separate Return with respect to a Post-Distribution Period.

Section 2.04 Allocation Conventions . For purposes of Section  2.02 and Section  2.03 , Taxes shall be allocated in accordance with Section  3.01(c) , Section  3.05 , and Section  3.07 .

Section 2.05 Additional Acquiror and Radio Liability . Acquiror and Radio shall be liable for, and shall indemnify, defend, and hold harmless the CBS Group and any CBS Indemnified Party from and against, any liability for, without duplication:

(a) any Tax resulting from a breach by Acquiror or, after the Effective Time, Radio of any covenant in this Agreement, the Merger Agreement, the Separation Agreement or any Ancillary Agreement, in each case, that causes the Tax-Free Status of any of the Distributions or the Merger to be lost;

(b) any Tax resulting from any breach by Acquiror or Radio of any representations, or portions thereof, made by it in this Agreement, the Merger Agreement, the Separation Agreement or any Ancillary Agreement or in connection with any Representation Letter or any

 

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Tax Opinion, in each case, only to the extent such breach is as a result of any action (or failure to take any action) of Acquiror, Radio, or any member of the Acqiuror Group after the Effective Time that causes the Tax-Free Status of any of the Distributions or the Merger to be lost;

(c) any Separation Tax Losses for which Acquiror or Radio is responsible pursuant to Section  6.04 of this Agreement; and

(d) any costs and expenses (including reasonable legal fees and expenses), other than those taken into account as Separation Tax Losses, incurred in connection with any amounts for which Acquiror or Radio is required to indemnify any Person pursuant to Section  2.01 , the above provisions of this Section  2.05 , Section  6.04 or otherwise pursuant to this Agreement;

provided , however , that neither Acquiror nor Radio shall be required to indemnify, defend or hold harmless the CBS Group or any CBS Indemnified Party pursuant to this Section  2.05 in respect of any Tax resulting from any action required by the Separation Agreement, the Merger Agreement or any Ancillary Agreement or that is undertaken pursuant to the Radio Reorganization, the Distribution, or the Merger, in each case, to the extent such action does not constitute a breach by Acquiror or, after the Effective Time, Radio of any representation, warranty or covenant made by it in this Agreement, the Merger Agreement, the Separation Agreement or any Ancillary Agreement.

Section 2.06 Additional CBS Liability . CBS shall be liable for, and shall indemnify defend, and hold harmless the Acquiror Group, the Radio Group, any Acquiror Indemnified Party and any Radio Indemnified Party from and against, any liability for, without duplication:

(a) any Tax resulting from a breach by CBS of any covenant in this Agreement, the Merger Agreement, the Separation Agreement or any Ancillary Agreement, in each case, that causes the Tax-Free Status of any of the Distributions or the Merger to be lost;

(b) any Tax resulting from any breach of or inaccuracy in any representations made by CBS in this Agreement, Merger Agreement, the Separation Agreement or any Ancillary Agreement or in connection with any Representation Letter or any Tax Opinion, in each case, that causes the Tax-Free Status of any of the Distributions or the Merger to be lost;

(c) any Separation Tax Losses for which Acquiror and Radio are not responsible pursuant to Section  6.04 of this Agreement;

(d) any liability for Taxes imposed on any member of the Radio Group pursuant to Treasury Regulation Section 1.1502-6 or any analogous provision of state law as a result of such member of the Radio Group having been a member of an affiliated, combined, consolidated, unitary or other similar group for a Tax Period or portion thereof ending on or before the Distribution Date; and

(e) any costs and expenses (including reasonable legal fees and expenses), other than those taken into account as Separation Tax Losses, incurred in connection with any amounts for which CBS is required to indemnify any Person pursuant to Section  2.01 , the above provisions of this Section  2.06 , Section  6.04 or otherwise pursuant to this Agreement.

 

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Section 2.07 Limitation on CBS Liability for Other Taxes . Notwithstanding anything to the contrary in this Agreement, CBS shall not be required to indemnify, defend or hold harmless the Acquiror Group, the Radio Group or any Radio Indemnified Party for any Other Taxes pursuant to Section  2.01(a)  (a) to the extent such Other Taxes were taken into account as liabilities in the determination of Radio Working Capital pursuant to the Merger Agreement and (b) until the aggregate amount of such Other Taxes indemnified pursuant to Section  2.01(a) exceeds $25,000, in which event CBS shall be required to indemnify the Acquiror Group, the Radio Group or any Radio Indemnified Party for all such Other Taxes from the first dollar thereof.

Section 2.08 No Liability for Prior Payments . For the avoidance of doubt, no Party shall have any responsibility with respect to, or have any obligation to repay, any payment made by another Party or any of its Affiliates prior to the date of this Agreement (whether made to such first Party, to any Tax Authority or to any other Person) in respect of any Taxes or other amounts for which such first Party is responsible hereunder.

Article 3. Preparation and Filing of Tax Returns

Section 3.01 CBS Responsibility .

(a) CBS shall prepare and timely file, or cause to be prepared and timely filed (in each case, taking into account extensions), (x) all Joint Returns and CBS Separate Returns which are required to be filed and (y) all Radio Separate Returns which are required to be filed for any Tax Period ending on or before the Distribution Date. CBS shall pay all Taxes shown to be due on such Tax Returns to the relevant Tax Authority, and Acquiror and Radio shall make any payments to CBS required pursuant to Section  2.01(b) .

(b) With respect to any Radio Separate Return or Joint Return required to be filed by CBS pursuant to this Section  3.01 , to the extent that the positions taken on such Tax Return would reasonably be expected to materially adversely affect the Tax position of any member of the Acquiror Group or (following the Effective Time) Radio Group, CBS shall submit a draft of the portion of such Tax Return that relates solely to the Radio Business to Acquiror at least 30 days prior to the due date for the filing of such Tax Return (taking into account any applicable extensions), and Acquiror shall have the right to review such portion of such Tax Return and to submit any reasonable changes to such portion of such Tax Return no later than 15 days prior to the due date for the filing of such Tax Return; provided , however , that nothing herein shall prevent CBS from timely filing any such Tax Return. The Parties agree to consult and to attempt to resolve in good faith any issues arising as a result of the review of any such Tax Return. Any disputes that the Parties are unable to resolve shall be resolved pursuant to Article  13 hereof. In the event that any dispute is not resolved (whether pursuant to good faith negotiations among the Parties or pursuant to Article  13 hereof) prior to the due date for the filing of such Tax Return (taking into account any applicable extensions), such Tax Return shall be timely filed by CBS and the Parties agree to amend such Tax Return as necessary to reflect the resolution of such dispute in a manner consistent with such resolution.

 

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(c) With respect to the CBS Federal Consolidated Income Tax Return for the taxable year that includes the Distribution Date, CBS shall use the closing of the books method under Treasury Regulation Section 1.1502-76, unless otherwise agreed by CBS and Acquiror.

Section 3.02 Radio Responsibility .

(a) Acquiror and Radio shall prepare and timely file, or cause to be prepared and timely filed (in each case, taking into account extensions), all Tax Returns required to be filed by or with respect to members of the Radio Group other than those Tax Returns which CBS is required to prepare and file pursuant to Section  3.01 . Acquiror and Radio shall pay all Taxes shown to be due on such Tax Return to the relevant Tax Authority.

(b) With respect to any Tax Return required to be filed by Acquiror or Radio pursuant to Section  3.02 , to the extent that such Tax Return relates to a Pre-Distribution Period, Acquiror and Radio shall submit a draft of such Tax Return to CBS at least 30 days prior to the due date for the filing of such Tax Return (taking into account any applicable extensions), and CBS shall have the right to review such Tax Return and to submit any reasonable changes to such Tax Return no later than 15 days prior to the due date for the filing of such Tax Return; provided , however , that nothing herein shall prevent Acquiror or Radio from timely filing (or causing to be timely filed) any such Tax Return. The Parties agree to consult and to attempt to resolve in good faith any issues arising as a result of the review of any such Tax Return. Any disputes that the Parties are unable to resolve shall be resolved pursuant to Article  13 hereof. In the event that any dispute is not resolved (whether pursuant to good faith negotiations among the Parties or pursuant to Article  13 hereof) prior to the due date for the filing of such Tax Return (taking into account any applicable extensions), such Tax Return shall be timely filed (or caused to be timely filed) by Acquiror and Radio and the Parties agree to amend such Tax Return as necessary to reflect the resolution of such dispute in a manner consistent with such resolution.

Section 3.03 Tax Reporting Practices .

(a) CBS General Rule . Except to the extent otherwise provided in Section  3.03(c) , CBS shall report any item on any Tax Return that it is required to prepare and file or to cause to be prepared and filed pursuant to this Agreement in accordance with the past practices, accounting methods, elections or conventions (“ Past Practice ”) previously used by CBS with respect to the item in question (unless otherwise required by applicable Law), and to the extent that there is no Past Practice with respect to such item, in accordance with reasonable Tax accounting practices selected by CBS.

(b) Radio General Rule . Except to the extent otherwise provided in Section  3.03(c) , Acquiror and Radio shall report any item on any Tax Return that it is required to prepare and file or cause to be prepared and filed pursuant to this Agreement in accordance with Past Practice previously used by CBS or the appropriate Radio Entity, as appropriate, with respect to the item in question (unless otherwise required by applicable Law), and to the extent that there is no Past Practice, in accordance with reasonable Tax accounting practices selected by Acquiror and Radio.

 

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(c) Reporting of Transactions . The Tax treatment of the Distributions and the Merger reported on any Tax Return shall be consistent with the treatment thereof in the Tax Opinions (to the extent still valid and in effect), taking into account the jurisdiction in which such Tax Returns are filed, provided , however , that if no Tax Opinion specifies the Tax treatment of any of the Distributions or the Merger in a particular Tax jurisdiction, the Tax treatment of such Distribution or Merger, as applicable, for such jurisdiction shall be as determined by the Party liable for any Tax with respect to such Distribution or Merger, after consulting in good faith with the other Parties.

Section 3.04 Consolidated or Combined Tax Returns . Acquiror and Radio shall take all actions and shall cause their respective Affiliates to take all actions as CBS may determine, after consulting with Acquiror in good faith, are required or appropriate, or otherwise requested by CBS in connection with the filing of any Joint Returns.

Section 3.05 Straddle Period Tax Allocation. CBS, Acquiror and Radio shall take all actions necessary or appropriate to close the taxable year of Radio and each Radio Entity for all Tax purposes as of the close of the Distribution Date to the extent required by applicable Law. With respect to Taxes for any Straddle Period, (i) if applicable Law does not require Radio or a Radio Entity, as the case may be, to close its taxable year on the Distribution Date, then the allocation of income or deductions required to determine any Taxes or other amounts attributable to the portion of the Straddle Period ending on, or beginning after, the Distribution Date shall be made by means of a closing of the books and records of Radio or such Radio Entity as of the close of the Distribution Date; provided , that exemptions, allowance or deductions that are calculated on an annual or periodic basis shall be allocated between such portions in proportion to the number of days in each such portion, and (ii) property Taxes or other non-Income Taxes that are calculated on an annual or periodic basis and not assessed with respect to a transaction or series of transactions shall be allocated to the portion of the Straddle Period ending on the Distribution Date and the portion of the Straddle Period beginning after the Distribution Date in proportion to the number of days in each such portion.

Section 3.06 Radio Carrybacks and Claims for Refunds .

(a) General. Unless CBS otherwise consents in writing or as required by Law, neither Acquiror nor Radio shall (i) file any Adjustment Request with respect to any Joint Return, (ii) fail to waive any available elections to carry back to any Joint Return any Radio Carryback arising in a Post-Distribution Period, and (iii) make any affirmative election to claim any such Radio Carryback with respect to any Joint Return.

(b) Extraordinary Transactions . Notwithstanding anything to the contrary in this Agreement, except as required by Law, for all Tax purposes, the Parties shall report any Extraordinary Transactions that are caused or permitted by Radio or any Radio Entity on the Distribution Date after the Effective Time as occurring on the day after the Distribution Date pursuant to Treasury Regulation Section 1.1502-76(b)(1)(ii)(B) or any similar or analogous provision of state, local or foreign Law, unless such allocation is not “reasonable” within the meaning of Treasury Regulation Section 1.1502-76(b)(1)(ii)(B).

 

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(c) In the event that Acquiror and Radio (or the appropriate member of the Radio Group) are prohibited by applicable Law from waiving or otherwise forgoing a Radio Carryback or CBS consents to a Radio Carryback, CBS shall cooperate with Acquiror and Radio, at Acquiror’s and Radio’s expense, in seeking from the appropriate Tax Authority such Tax Benefit (which, to the extent permitted by applicable Law, CBS shall elect to receive in the form of a cash refund rather than as a credit toward or reduction in future Taxes) as reasonably would result from such Radio Carryback, to the extent that such Tax Benefit is directly attributable to such Radio Carryback. To the extent such Tax Benefit is received in the form of a Refund in cash, CBS shall pay over to Acquiror or Radio the amount of such Refund within 10 days after such Refund is received and, to the extent that a Tax Authority requires CBS to apply or cause to be applied the Tax Benefit as a credit toward or a reduction in Taxes in lieu of a cash Refund, within 10 days after a Refund with respect to such Tax Benefit is actually realized; provided , however , that Acquiror and Radio shall indemnify and hold the members of the CBS Group harmless from and against any and all collateral Tax consequences resulting from or caused by any such Radio Carryback, including, without limitation, the loss or postponement of any benefit from the use of Tax Attributes generated by a member of the CBS Group if (i) such Tax Attributes expire unused, but would have been utilized but for such Radio Carryback, or (ii) the use of such Tax Attributes is postponed to a later Tax Period than the Tax Period in which such Tax Attributes would have been used but for such Radio Carryback.

(d) Unless Acquiror otherwise consents in writing or as required by Law, no member of the CBS Group shall file any Adjustment Request with respect to any Radio Separate Tax Return or any Joint Return for a Straddle Period if, in each case, such Adjustment Request could reasonably be expected to increase the Tax liability of any member of the Acquiror Group for any Tax Period or Radio Group for any Post-Distribution Period. For any Joint Return for any other Tax Period, unless required by Law, any such Adjustment Request filed by any member of the CBS Group shall be done in good faith with respect to any adverse Tax impact regarding any member of the Acquiror Group for any Tax Period or Radio Group for any Post-Distribution Period.

Section 3.07 Apportionment of Tax Attributes .

(a) Tax Attributes arising in a Pre-Distribution Period will be allocated to (and the benefits and burdens of such Tax Attributes will inure to) the members of the CBS Group and the members of the Radio Group in accordance with the Code, Treasury Regulations, and any other applicable Tax Law, and, in the absence of controlling legal authority or unless otherwise provided under this Agreement (including Schedule 3.07(a) hereto), Tax Attributes shall be allocated to the legal entity that created such Tax Attributes.

(b) On or before the first anniversary of the Distribution Date, CBS shall deliver to Acquiror its determination in writing of the portion, if any, of any Tax Attributes, overall foreign loss or other affiliated, consolidated, combined, unitary, fiscal unity or other group basis Tax Attribute which is allocated or apportioned to the members of the Radio Group under applicable Tax Law and this Agreement (the “ Proposed Allocation ”). Acquiror shall have 60 days to review the Proposed Allocation and provide CBS any comments with respect thereto. If Acquiror either provides no comments or provides comments to which CBS agrees in writing, such resulting determination will become final (the “ Final Allocation ”). If Acquiror provides

 

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comments to the Proposed Allocation and CBS does not agree, the Final Allocation (or such portion(s) of the Final Allocation as to which the Parties do not agree) will be determined by a neutral accounting firm reasonably acceptable to the Parties (the “ Accounting Firm ”). The Accounting Firm shall resolve the dispute according to such procedures as the Accounting Firm deems advisable and shall furnish written notice to the Parties of its resolution of any such dispute as soon as practicable, but in any event no later than 45 days after its acceptance of the matter for resolution. Any such resolution by the Accounting Firm shall be consistent with the terms of this Agreement, and, if so consistent, shall be conclusive on the Parties and shall be the Final Allocation (or shall replace the disputed portion(s) of the Final Allocation, as applicable). In accordance with Article 15, each Party shall pay its own fees and expenses (including the fees and expenses of its representatives) incurred in connection with the referral of the matter to the Accounting Firm, and all fees and expenses of the Accounting Firm in connection with such referral shall be shared equally by the Companies. All members of the CBS Group, Acquiror Group and Radio Group shall prepare all Tax Returns in accordance the Final Allocation. In the event of an adjustment to any Tax Attributes, overall foreign loss or other affiliated, consolidated, combined, unitary, fiscal unity or other group basis attribute, CBS shall promptly notify Acquiror in writing of such adjustment. For the avoidance of doubt, CBS shall not be liable to any member of the Acquiror Group or Radio Group for any failure of any determination under this Section  3.07(b) to be accurate under applicable Tax Law, provided such determination was made in good faith.

(c) To the extent that the amount of any Tax Attribute is later reduced or increased by a Tax Authority or Tax Proceeding, such reduction or increase shall be allocated to the Party to which such Tax Attribute was allocated pursuant to Section  3.07(a) .

Article 4. Calculation of Tax and Payments.

Section 4.01 Payment of Liability With Respect to Tax Due . Except as provided in Section  6.05 , at least 7 Business Days prior to any Payment Date for any Tax Return for which CBS is the Responsible Party, Acquiror and Radio shall pay to CBS the amount Acquiror and Radio are responsible for under the provisions of Article  2 as calculated pursuant to this Agreement. Except as provided in Section  6.05 , at least 7 Business Days prior to any Payment Date for any Tax Return for which Acquiror or Radio is the Responsible Party, CBS shall pay to Acquiror and Radio the amount CBS is responsible for under the provisions of Article  2 as calculated pursuant to this Agreement. To the extent a payment attributable to estimated taxes is made pursuant to this Section  4.01 , the amounts owed will be recomputed and appropriate adjustments shall be made no later than December 31 st of the year in which the Tax Return for the full year with respect to which such estimated Tax payments were made is filed.

Section 4.02 Adjustments Resulting in Underpayments . In the case of any adjustment pursuant to a Final Determination with respect to any Tax, the Party to which such Tax is allocated pursuant to this Agreement shall pay to the applicable Tax Authority when due any additional Tax required to be paid as a result of such adjustment.

Section 4.03 Method for Making Payments . All payments required to be made under this Agreement shall be made by CBS directly to Acquiror and by Acquiror directly to CBS; provided , however , that if the Parties mutually agree with respect to any such indemnification payment, any member of the CBS Group, on the one hand, may make such indemnification

 

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payment to any member of the Acquiror Group, on the other hand, and vice versa. Unless otherwise specified in this agreement, all indemnification payments shall be made within 10 Business Days of the receipt by the indemnifying party of notification of the amount owed, together with reasonable documentation showing the basis for the calculation of such amount and evidence of payment of such amounts by the indemnified party to the relevant Tax Authority or other recipient. All indemnification payments shall be treated in the manner described in Section  12.01 .

Article 5. Refunds.

Section 5.01 Refunds .

(a) CBS shall be entitled to any Refund attributable to Taxes for which CBS is liable hereunder and, to the extent permitted by applicable Law, shall elect to receive any such Refund as a cash refund rather than as a credit toward or reduction in future Taxes. Acquiror or Radio shall be entitled to any Refund attributable to Taxes for which Acquiror or Radio is liable hereunder and, to the extent permitted by applicable Law, shall elect to receive any such Refund as a cash refund rather than as a credit toward or reduction in future Taxes. To the extent that a Tax Authority requires CBS to apply or cause to be applied an overpayment of Taxes for which Acquiror or Radio (after the Effective Time) is liable under this Agreement as a credit toward or a reduction in Taxes otherwise payable by CBS in lieu of a Refund and such overpayment of Taxes, if received as a Refund, would have been payable by CBS to Acquiror or Radio pursuant to this Section  5.01(a) , CBS shall pay such amount to Acquiror no later than the due date for filing the Tax Return for which such overpayment is applied. To the extent that a Tax Authority requires Acquiror or Radio (after the Effective Time) to apply or cause to be applied an overpayment of Taxes for which CBS is liable under this Agreement as a credit toward or a reduction in Taxes otherwise payable by Acquiror or Radio (after the Effective Time) in lieu of a Refund and such overpayment of Taxes, if received as a Refund, would have been payable by Acquiror or Radio to CBS pursuant to this Section  5.01(a) , Acquiror shall pay such amount to CBS no later than the due date for filing the Tax Return for which such overpayment is applied. A Party receiving a Refund to which another Party is entitled hereunder shall pay such Refund to such other Party within 10 Business Days after such Refund is received or the benefit of such Refund is realized.

(b) In the event of an adjustment pursuant to a Final Determination relating to Taxes for which Acquiror and Radio, on the one hand, or CBS, on the other hand, are or is responsible pursuant to Article  2 which would have given rise to a Refund but for an offset against the Taxes for which the other Party or Parties are or may be responsible pursuant to Article  2 (the “ Benefited Party ”), then the Benefited Party shall pay to the other Party or Parties, within 10 Business Days of the Final Determination of such adjustment an amount equal to the amount of such reduction in the Taxes of the Benefited Party plus interest at the Prime Rate on such amount for the period from the filing date of the Tax Return that would have given rise to such Refund to the payment date.

(c) To the extent that the amount of any Refund under this Section  5.01 or Section  3.06 is later reduced by a Tax Authority or in a Tax Proceeding, such reduction shall be allocated to the Party to which such Refund was allocated pursuant to this Section  5.01 or Section  3.06 , and an appropriate adjusting payment shall be made.

 

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Article 6. Tax-Free Status.

Section 6.01 Representations and Warranties .

(a) Acquiror hereby represents and warrants or covenants and agrees, as appropriate, that the facts represented and the representations made in the Representation Letters from Acquiror (the “ Acquiror Representation Letters ”), to the extent (i) descriptive of (A) the Acquiror Group at any time (including the plans, proposals, intentions and policies of the Acquiror Group at any time, and including the representation that Acquiror would not have consummated the Merger but for the Distributions), or (B) the Radio Group (including the plans, proposals, intentions and policies of Radio, its Subsidiaries, the Radio Business or the Radio Group) after the Effective Time, or (ii) relating to the actions or non-actions of the Radio Group to be taken (or not taken, as the case may be) after the Effective Time, are, or will be from the time presented or made through and including the Effective Time (and thereafter as relevant) true, correct and complete in all respects.

(b) CBS hereby represents and warrants or covenants and agrees, as appropriate, that (i) the facts presented and the representations made in the Representation Letters, to the extent descriptive of (A) the CBS Group at any time or (B) the Radio Group at any time at or prior to the Effective Time (including, in each case, (x) the business purposes for each of the Distributions described in the Representation Letters to the extent that they relate to the CBS Group at any time or the Radio Group at any time at or prior to the Effective Time, and (y) the plans, proposals, intentions and policies of the CBS Group at any time or the Radio Group at any time prior to the Effective Time), are, or will be from the time presented or made through and including the Effective Time (and thereafter as relevant) true, correct and complete in all respects.

(c) Each of CBS, Radio and Acquiror represents and warrants that it knows of no fact (after due inquiry) that may cause the Tax treatment of the Distributions or the Merger to be other than the Tax-Free Status.

(d) CBS represents and warrants that neither it, nor any of its Affiliates has any plan or intent to take any action that is inconsistent with any statements or representations made in the Representation Letters. Acquiror represents that neither it, nor any of its Subsidiaries (including, after the Effective Time, the members of the Radio Group), has any plan or intent to take any action that is inconsistent with any statements or representations made in the Acquiror Representation Letters.

Section 6.02 Restrictions Relating to the Distributions .

(a) Neither Acquiror nor Radio shall, and neither will permit any of its Affiliates to, take or fail to take, as applicable, any action if such action or failure to act would be inconsistent with or cause to be untrue any statement, information, covenant or representation in the Acquiror Representation Letters. Neither Acquiror nor Radio shall, and neither will permit any of its Affiliates to, take or fail to take, as applicable, any action if such action or failure to act would or reasonably could be expected to adversely affect the Tax-Free Status of the Distributions or the Merger.

 

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(b) Each of Acquiror and Radio and each other member of their respective Groups agrees that, from the date on which this Agreement is effective for such Person pursuant to Article  10 until the first Business Day after the two-year anniversary of the Distribution Date:

(i) Radio shall continue and cause to be continued the Radio Active Trade or Business of the Radio SAG,

(ii) Radio shall not voluntarily dissolve or liquidate (including any action that is a liquidation for federal income tax purposes),

(iii) neither Acquiror nor Radio shall enter into any Proposed Acquisition Transaction or, to the extent Acquiror or Radio or any other member of their respective Groups has the right to prohibit any Proposed Acquisition Transaction, permit any Proposed Acquisition Transaction to occur (whether by (A) redeeming rights under a shareholder rights plan, (B) finding a tender offer to be a “permitted offer” under any such plan or otherwise causing any such plan to be inapplicable or neutralized with respect to any Proposed Acquisition Transaction, (C) approving any Proposed Acquisition Transaction, whether for purposes of Section 203 of the General Corporation Law of the State of Delaware or any similar corporate statute, any “fair price” or other provision of the charter or bylaws of Radio or Acquiror, as applicable, (D) amending its certificate of incorporation to declassify its Board of Directors or approving any such amendment, or otherwise),

(iv) neither Acquiror nor Radio (or any successor of Acquiror or Radio) will, or will agree to, merge, consolidate or amalgamate with any other Person (except as provided for under the Merger Agreement), provided that this Section  6.02(b )( iv) shall not apply to mergers, consolidations or amalgamations which do not result in Radio (or any successor) ceasing to exist as a corporation for U.S. federal income tax purposes,

(v) Radio will not in a single transaction or series of transactions sell, transfer, or otherwise dispose of or agree to sell, transfer or otherwise dispose of (including in any transaction treated for federal income tax purposes as a sale, transfer or disposition), or permit any other member of the Radio Group to sell, transfer, or otherwise dispose of or agree to sell, transfer or otherwise dispose of assets (including any shares of capital stock of a Subsidiary) that, in the aggregate, constitute 30% or more of the gross assets of the Radio Active Trade or Business (such percentage to be measured based on fair market value as of the Distribution Date), in each case other than (A) sales, transfers or dispositions of assets in the Ordinary Course of Business, (B) any cash paid to acquire assets from an unrelated Person in an arm’s-length transaction, (C) any assets transferred to a Person that is disregarded as an entity separate from the transferor for U.S. federal income tax purposes, (D) any mandatory or optional repayment (or pre-payment) of any indebtedness of Radio or any member of the Radio Group, or (E) any sales, transfers or other dispositions of assets within the Radio SAG,

 

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(vi) neither Acquiror nor Radio shall redeem or otherwise repurchase (directly or through an Affiliate) any stock, or rights to acquire stock, except to the extent such repurchases satisfy Section 4.05(1)(b) of Revenue Procedure 96-30 (as in effect prior to the amendment of such Revenue Procedure by Revenue Procedure 2003-48),

(vii) neither Acquiror nor Radio will amend, or permit any other members of their respective Groups to amend, its certificate of incorporation (or other organizational documents), or take any other action, whether through a stockholder vote or otherwise, affecting the voting rights of Radio Capital Stock or Acquiror Capital Stock (including, without limitation, through the conversion of one class of Radio Capital Stock or Acquiror Capital Stock into another class of Radio Capital Stock or Acquiror Capital Stock), or

(viii) neither Acquiror nor Radio shall take, or permit any other member of its respective Group to take, any other action or actions (including any action or transaction that would be reasonably likely to be inconsistent with any representation made or to be made in the Acquiror Representation Letters) which in the aggregate (and taking into account the Merger, and any other transactions described in this subparagraph (b) ) would be reasonably likely to have the effect of causing or permitting one or more Persons (whether or not acting in concert) to acquire directly or indirectly stock representing a Fifty-Percent or Greater Interest in Acquiror or Radio (or any successor) or would reasonably be expected to result in a failure to preserve the Tax-Free Status;

in each case, unless prior to taking any such action set forth in the foregoing clauses (i) through (viii), (A) Acquiror shall have requested that CBS obtain a private letter ruling (including a supplemental ruling, if applicable) from the IRS (a “ Post-Distribution Ruling ”) in accordance with Sections  6.03(a) and (c)  of this Agreement to the effect that such transaction will not affect the Tax-Free Status and CBS shall have received such a Post-Distribution Ruling in form and substance satisfactory to CBS in its reasonable discretion, (B) Acquiror or Radio shall have provided CBS with an Unqualified Tax Opinion in form and substance satisfactory to CBS in its reasonable discretion (and in determining whether an opinion is satisfactory, CBS may consider, among other factors, the appropriateness of any underlying assumptions and any management representations used as a basis for the Unqualified Tax Opinion, and, for the avoidance of doubt, CBS may determine that no opinion would be acceptable to CBS if such a determination is reasonable) or (C) CBS shall have waived (which waiver may be withheld by CBS in its sole and absolute discretion) the requirement to obtain such Post-Distribution Ruling and/or Unqualified Tax Opinion.

Section 6.03 Procedures Regarding Post Distribution Rulings and Unqualified Tax Opinions .

(a) If Acquiror notifies CBS that it or Radio desires to take one of the actions described in Section  6.02(b) (a “ Notified Action ”), CBS shall cooperate with Acquiror and use its reasonable best efforts to seek to obtain a Post-Distribution Ruling from the IRS or an Unqualified Tax Opinion for the purpose of permitting Acquiror or Radio, as applicable, to take the Notified Action, unless CBS shall have waived the requirement to obtain such ruling or opinion. Notwithstanding the foregoing, CBS shall not be required to file or cooperate in the

 

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filing of any Ruling Request for a Post-Distribution Ruling under this Section 6.03(a) unless Acquiror represents that (A) it has read the Ruling Request, and (B) all statements, information and representations relating to any member of the Acquiror Group, contained in such Ruling Request are (subject to any qualifications therein) true, correct and complete. Acquiror shall reimburse CBS for all reasonable costs and expenses, including out-of-pocket expenses and expenses relating to the utilization of CBS personnel, incurred by the CBS Group in obtaining a Post-Distribution Ruling or Unqualified Tax Opinion requested by Acquiror within ten Business Days after receiving an invoice from CBS therefor.

(b) Post-Distribution Rulings or Unqualified Tax Opinions at CBS s Request . CBS shall have the right to obtain a Post-Distribution Ruling or an Unqualified Tax Opinion at any time in its sole and absolute discretion. If CBS determines to obtain a Post-Distribution Ruling or an Unqualified Tax Opinion, Acquiror and Radio shall (and shall cause their respective Affiliates to) cooperate with CBS and take any and all actions reasonably requested by CBS in connection with obtaining the Post-Distribution Ruling or Unqualified Tax Opinion (including, without limitation, by making any representation or covenant or providing any materials or information reasonably requested by the IRS or Tax Advisor; provided that Acquiror and Radio shall not be required to make (or cause any member of the Acquiror Group to make) any representation or covenant that is untrue or inconsistent with historical facts or as to future matters or events over which matters or events they have no control). CBS shall reimburse Acquiror for all reasonable costs and expenses, including out-of-pocket expenses and expenses relating to the utilization of Acquiror personnel, incurred by the Acquiror Group in connection with such cooperation within ten Business Days after receiving an invoice from Acquiror therefor.

(c) Except as provided in Sections  6.03(a) and (b), following the Distribution Date, neither Acquiror nor Radio shall, nor shall either Acquiror or Radio permit their respective Affiliates to, seek any guidance from the IRS or any other Tax Authority (whether written, verbal or otherwise) at any time concerning any of the Distributions (including the impact of any other transaction on the Distributions) unless Acquiror and Radio shall have obtained the prior written consent of CBS, such consent not to be unreasonably withheld, conditioned or delayed.

Section 6.04 Liability for Separation Tax Losses .

(a) Notwithstanding anything in this Agreement, the Separation Agreement or the Merger Agreement to the contrary (and in each case regardless of whether a Post-Distribution Ruling, Unqualified Tax Opinion or waiver described in clauses (A), (B) or (C) of Section  6.02(b) may have been provided), but subject to Section  2.06 and Section  6.07 , Acquiror and Radio shall be responsible for any Separation Tax Losses that are attributable to or result from any one or more of the following: (A) the acquisition following the Merger of all or a portion of either or both of Acquiror’s and/or Radio’s stock and/or of the Radio Group’s assets by any means whatsoever by any Person, (B) any negotiations, understandings, agreements or arrangements by either or both of Acquiror and/or Radio or any other member of their respective Groups (provided that, in the case of Radio or any other member of the Radio Group, such negotiations, understandings, agreements or arrangements follow the Merger) with respect to transactions or events (including, without limitation, stock issuances, whether pursuant to the exercise of stock options or otherwise, option grants, capital contributions or acquisitions, or a

 

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series of such transactions or events), other than the Merger or any transactions contemplated by the Merger Agreement, the Separation Agreement or any Ancillary Agreement, that cause any of the Distributions to be treated as part of a plan (which plan may include the Merger) pursuant to which one or more Persons acquire directly or indirectly stock of either or both of Acquiror and/or Radio representing a Fifty-Percent or Greater Interest therein, as applicable, (C) any action or failure to act by either or both of Acquiror and/or Radio or any other member of their respective Groups (in the case of Radio or any member of the Radio Group, after the Merger) (including, without limitation, any amendment to such Person’s certificate of incorporation (or other organizational documents), whether through a stockholder vote or otherwise) affecting the voting rights of either or both of Acquiror’s and/or Radio’s stock (including, without limitation, through the conversion of one class of Radio Capital Stock or Acquiror Capital Stock into another class of Radio Capital Stock or Acquiror Capital Stock, but not including the composition of the Acquiror Board (as defined in the Merger Agreement) as contemplated by Section 7.22(a) of the Merger Agreement), other than entering into the Merger or any transactions contemplated by the Merger Agreement, the Separation Agreement or any Ancillary Agreement, (D) any act or failure to act by either or both of Acquiror and/or Radio or any other member of their respective Groups that would affect the Tax-Free Status of the Distributions or Merger (regardless whether such act or failure to act may be covered by a Post-Distribution Ruling, Unqualified Tax Opinion or waiver described in clauses (A), (B) or (C) of Section  6.02(b) ), other than entering into the Merger, or (E) any breach or inaccuracy by either or both of Acquiror and/or Radio or any other member of their respective Groups of any of their agreements or representations set forth herein; provided, however, that notwithstanding the foregoing, in the case of an acquisition described in clause (A) of this Section 6.04(a), which acquisition is made in the open market by any person (x) who is not (i) a member of the Acquiror Group, (ii) an Affiliate of Acquiror, (iii) an officer or director of Acquiror, (iv) a controlling shareholder (within the meaning of Treasury Regulations Section 1.355-7(h)(3)) of Acquiror, or (v) any other person acting with the implicit or explicit permission of Acquiror, and (y) who was not solicited to make such acquisition by any person described in subclauses (i), (ii), (iii), (iv) or (v) of this sentence, then Acquiror and Radio shall be responsible for only fifty percent (50%) of any Separation Tax Losses attributable to or resulting from such acquisition.

(b) To the extent that any Separation Tax Loss reasonably could be subject to indemnity under both Section  2.05 and Section  2.06 , responsibility for such Separation Tax Loss shall be shared by CBS, on the one hand, and Acquiror and Radio, on the other hand, according to relative fault as determined by the Parties in good faith.

Section 6.05 Payment of Separation Taxes . Acquiror shall pay CBS the amount of any Separation Tax Losses for which Acquiror and Radio are responsible under Section  6.04 as a result of a Final Determination no later than 5 Business Days after the date such Separation Tax Losses are determined as a result of a Final Determination to be due.

Section 6.06 Protective Election . If CBS determines, in its reasonable discretion, that a protective election under Section 336(e) of the Code shall be made with respect to the Final Distribution, Acquiror and Radio agree to take any such action that is reasonably necessary to effect such election. If such a protective election is made, then this Agreement shall be amended in such a manner as is determined by the Parties to take into account the Tax Benefits resulting from such election.

 

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Section 6.07 CBS Actions . If (a) (x) CBS waives, modifies or alters the condition in Section 2.2(a)(ii) of the Separation Agreement or the condition in Section 3.3(a)(ii) of the Separation Agreement and (y) CBS does not receive an opinion from Wachtell, Lipton, Rosen & Katz, counsel to CBS, concluding at a comfort level of “should” or higher that each of the Distributions qualifies as a tax-free transaction under Section 355 of the Code, or (b) CBS takes, or fails to take, or permits any CBS Affiliate to take or fail to take, any action, and solely as a result of such action or failure to act, together with all other actions or failures to act by CBS and any CBS Affiliates, one or more of the Distributions would reasonably be expected to fail to have Tax-Free Status, then, notwithstanding anything in this Agreement, the Separation Agreement or the Merger Agreement to the contrary, (i) CBS shall promptly provide notice to Acquiror of such fact; (ii) the Distribution Tax Opinion shall no longer be considered valid or in effect for purposes of Section  3.03(c) ; (iii) Section  6.02(b) shall be of no force or effect; (iv) no member of the Acquiror Group or Radio Group shall be responsible for any Separation Tax Losses pursuant to Section  6.04 or otherwise; (v) no member of the Acquiror Group or Radio Group shall be liable under Section  2.05 for the breach of any representation or covenant because any of the Distributions fails to have Tax-Free Status; and (vi) the Parties shall cooperate in good faith to revise the Proposed Allocation or Final Allocation and to file any amended Tax Returns as required by Law.

Article 7. Assistance and Cooperation.

Section 7.01 Assistance and Cooperation .

(a) The Parties shall cooperate (and cause their respective Affiliates to cooperate) with each other and with each other’s agents, including accounting firms and legal counsel, in connection with Tax matters relating to the Parties and their Affiliates, including (i) preparation and filing of Tax Returns, (ii) determining the liability for and amount of any Taxes due (including estimated Taxes) or the right to and amount of any Tax Benefit, (iii) examinations of Tax Returns, and (iv) any administrative or judicial proceeding in respect of Taxes assessed or proposed to be assessed. Such cooperation shall include making all information and documents in their possession relating to any other Party and its Affiliates available to such other Party as provided in Article  8 . Each of the Parties shall also make available to any other Party, as reasonably requested and available, personnel (including officers, directors, employees and agents of the Parties or their respective Affiliates) responsible for preparing, maintaining, and interpreting information and documents relevant to Taxes, and personnel reasonably required as witnesses or for purposes of providing information or documents in connection with any administrative or judicial proceedings relating to Taxes. Acquiror and Radio and each other member of their respective Groups shall cooperate with CBS and take any and all actions reasonably requested by CBS in connection with obtaining the Tax Opinions (including, without limitation, by making any new representation or covenant, confirming any previously made representation or covenant or providing any materials or information reasonably requested by any Tax Advisor or Tax Authority; provided that none of Radio, Acquiror or any other member of their respective Groups shall be required to make or confirm any representation or covenant that is inconsistent with historical facts or as to future matters or events over which matters or events it has no control).

 

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(b) Any information or documents provided under this Article  7 shall be kept confidential by the Party receiving the information or documents, except as may otherwise be necessary in connection with the filing of Tax Returns or in connection with any administrative or judicial proceedings relating to Taxes. Notwithstanding any other provision of this Agreement, the Merger Agreement, the Separation Agreement or any Ancillary Agreement, (i) neither CBS nor any CBS Affiliate shall be required to provide Radio, Acquiror or any of their respective Affiliates or any other Person access to or copies of any information, documents or procedures (including the proceedings of any Tax Contest) other than information, documents or procedures that relate solely to a member of the Radio Group, the Radio Business or the assets of Radio or any Radio Affiliate, (ii) neither Radio, Acquiror nor any of their respective Affiliates shall be required to provide CBS or any CBS Affiliate or any other Person access to or copies of any information, documents or procedures (including the proceedings of any Tax Contest) other than information, documents or procedures that relate solely to a member of the CBS Group, the CBS Business or the assets of CBS or any CBS Affiliate, (iii) in no event shall CBS or any CBS Affiliate be required to provide Radio, Acquiror, or any of their respective Affiliates or any other Person access to or copies of any information or documents if such action would or reasonably could be expected to result in the waiver of any Privilege, and (iv) in no event shall Radio, Acquiror or any of their respective Affiliates be required to provide CBS or any CBS Affiliate or any other Person access to or copies of any information or documents if such action would or reasonably could be expected to result in the waiver of any Privilege. In addition, in the event that CBS reasonably determines that the provision of any information or documents to Radio, Acquiror or any of their respective Affiliates, or Radio or Acquiror reasonably determines that the provision of any information or documents to CBS or any CBS Affiliate, could be commercially detrimental, violate any Law or agreement or waive any Privilege, the Parties shall use reasonable best efforts to permit each other’s compliance with its obligations under this Article  7 in a manner that avoids any such harm or consequence.

Section 7.02 Tax Return Information . Each of Radio, Acquiror and CBS, and each member of their respective Groups, acknowledges that time is of the essence in relation to any request for information, assistance or cooperation made by CBS, Acquiror or Radio pursuant to this Agreement. Each of Radio, Acquiror and CBS, and each member of their respective Groups, acknowledge that failure to conform to the deadlines set forth in this Agreement could cause irreparable harm. Each Party shall provide to the other Parties information and documents relating to its Group reasonably required by the other Parties to prepare Tax Returns, including any pro forma returns required by the Responsible Party for purposes of preparing such Tax Returns. Any information or documents the Responsible Party requires to prepare such Tax Returns shall be provided in such form as the Responsible Party reasonably requests and at or prior to the time reasonably specified by the Responsible Party so as to enable the Responsible Party to file such Tax Returns on a timely basis.

Section 7.03 Reliance by CBS . If any member of the Acquiror Group supplies information to a member of the CBS Group in connection with Taxes and an officer of a member of the CBS Group signs a statement or other document under penalties of perjury in reliance upon the accuracy of such information, then upon the written request of such member of the CBS Group identifying the information being so relied upon, the chief financial officer of Acquiror (or any officer of Radio or Acquiror as designated by the chief financial officer of Acquiror) shall certify in writing that to his or her knowledge (based upon consultation with appropriate employees) the information so supplied is accurate and complete.

 

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Section 7.04 Reliance by Acquiror and Radio . If any member of the CBS Group supplies information to a member of the Acquiror Group or the Radio Group in connection with Taxes and an officer of a member of the Acquiror Group or the Radio Group, as applicable, signs a statement or other document under penalties of perjury in reliance upon the accuracy of such information, then upon the written request of such member of the Acquiror Group or the Radio Group, as applicable, identifying the information being so relied upon, the chief financial officer of CBS (or any officer of CBS as designated by the chief financial officer of CBS) shall certify in writing that to his or her knowledge (based upon consultation with appropriate employees) the information so supplied is accurate and complete.

Article 8. Tax Records

Section 8.01 Retention of Tax Records . Each Company shall preserve and keep all Tax Records and related work papers and other documentation in its possession as of the date hereof for so long as the contents thereof may become material in the administration of any matter under the Code or other applicable Tax Law, but in any event until the later of (i) the expiration of any applicable statutes of limitations, or (ii) seven years after the Distribution Date (such later date, the “ Retention Date ”). After the Retention Date, each Company may dispose of such Tax Records upon 60 days’ prior written notice to the other Parties. If, prior to the Retention Date, (a) a Company reasonably determines that any Tax Records which it would otherwise be required to preserve and keep under this Article 8 are no longer material in the administration of any matter under the Code or other applicable Tax Law and the other Parties agree, then such first Party may dispose of such Tax Records upon 60 days’ prior notice to the other Parties. Any notice of an intent to dispose given pursuant to this Section 8.01 shall include a list of the Tax Records to be disposed of describing in reasonable detail each file, book, or other record accumulation being disposed. The notified Party shall have the opportunity, at its cost and expense, to copy or remove, within such 60-day period, all or any part of such Tax Records. If, at any time prior to the Retention Date, a Company determines to decommission or otherwise discontinue any computer program or information technology system used to access or store any Tax Records, then such Company may decommission or discontinue such program or system upon 60 days’ prior notice to the other Parties and the other Parties shall have the opportunity, at their cost and expense, to copy, within such 60-day period, all or any part of the underlying data relating to the Tax Records accessed by or stored on such program or system.

Section 8.02 Access to Tax Records . The Parties and their respective Affiliates shall make available to each other for inspection and copying during normal business hours upon reasonable notice all Tax Records (and, for the avoidance of doubt, any pertinent underlying data accessed or stored on any computer program or information technology system) in their possession pertaining to (a) in the case of any Tax Return of the CBS Group, the portion of such return that relates to Taxes for which the Radio Group or the Acqiuror Group may be liable pursuant to this Agreement or (b) in the case of any Tax Return of the Radio Group or the Acqiuror Group, the portion of such return that relates to Taxes for which the CBS Group may be liable pursuant to this Agreement, and shall permit the other Parties and their Affiliates, authorized agents and representatives and any representative of a Tax Authority or other Tax

 

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auditor direct access, at the cost and expense of the requesting Party, during normal business hours upon reasonable notice to any computer program or information technology system used to access or store any Tax Records, in each case to the extent reasonably required by the other Company in connection with the preparation of Tax Returns or financial accounting statements, audits, litigation, or the resolution of items under this Agreement.

Section 8.03 Preservation of Privilege . The Parties and their respective Affiliates shall not provide access to, copies of, or otherwise disclose to any Person any documentation relating to Taxes existing prior to the Distribution Date to which Privilege may reasonably be asserted without the prior written consent of the other Party, such consent not to be unreasonably withheld, conditioned or delayed.

Article  9. Tax Contests .

Section 9.01 Notice . Each of CBS, Radio and Acquiror shall provide prompt notice to the other Parties of any written communication from a Tax Authority regarding any pending Tax audit, assessment or proceeding or other Tax Contest of which it becomes aware related to Taxes for Tax Period for which it reasonably expects to be indemnified by another Party hereunder or for which it reasonably may be required to indemnify another Party hereunder, or otherwise relating to the Tax-Free Status of the Distributions or the Merger (including the resolution of any Tax Contest relating thereto). Such notice shall attach copies of the pertinent portion of any written communication from a Tax Authority and contain factual information (to the extent known) describing any asserted Tax liability in reasonable detail and shall be accompanied by copies of any notice and other documents received from any Tax Authority in respect of any such matters. If an indemnified Party has knowledge of an asserted Tax liability with respect to a matter for which it is to be indemnified hereunder and such Party fails to give the indemnifying Party prompt notice of such asserted Tax liability and the indemnifying Party is entitled under this Agreement to contest the asserted Tax liability, then (i) if the indemnifying Party is precluded from contesting the asserted Tax liability in any forum as a result of the failure to give prompt notice, the indemnifying Party shall have no obligation to indemnify the indemnified Party for any Taxes arising out of such asserted Tax liability, and (ii) if the indemnifying Party is not precluded from contesting the asserted Tax liability in any forum, but such failure to give prompt notice results in a material monetary detriment to the indemnifying Party, then any amount which the indemnifying Party is otherwise required to pay the indemnified Party pursuant to this Agreement shall be reduced by the amount of such detriment.

Section 9.02 Control of Tax Contests .

(a) CBS Control . Notwithstanding anything in this Agreement to the contrary, CBS shall have the right to control any Tax Contest with respect to any Tax matters relating to (i) a Joint Return, (ii) any member of the CBS Group, (iii) any member of the Radio Group relating to the Pre-Distribution Period, and (iv) Separation Tax Losses. Subject to Sections  9.02(c) and (d) , CBS shall have reasonable discretion with respect to any decisions to be made, or the nature of any action to be taken, with respect to any such Tax Contest relating to a Radio Separate Return for a Straddle Period, and absolute discretion with respect to any decisions to be made, or the nature of any action to be taken, with respect to any other such Tax Contest, including exclusive authority with respect to any settlement of such Tax liability.

 

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(b) Acquiror Control . Except as otherwise provided in this Section  9.02 , Acquiror shall have the right to control any Tax Contest with respect to any member of the Radio Group to the extent related solely to any Post-Distribution Period. Subject to Section  9.02(c) and (d) , Acqiuror shall have absolute discretion with respect to any decisions to be made, or the nature of any action to be taken, with respect to any such Tax Contest, including exclusive authority with respect to any settlement of such Tax liability.

(c) Settlement Rights . The Controlling Party shall have the sole right to contest, litigate, compromise and settle any Tax Contest without obtaining the prior consent of the Non-Controlling Party; provided, however, that, to the extent any such Tax Contest may give rise to a claim for indemnity by the Controlling Party or its Affiliates against the Non-Controlling Party or its Affiliates under this Agreement, the Controlling Party shall not settle any such Tax Contest without obtaining the prior written consent of the Non-Controlling Party (which consent shall not be unreasonably withheld). Subject to Section  9.02(e) , and unless waived by the Parties in writing, in connection with any potential adjustment in a Tax Contest as a result of which adjustment the Non-Controlling Party may reasonably be expected to become liable to make any indemnification payment to the Controlling Party under this Agreement: (i) the Controlling Party shall keep the Non-Controlling Party informed in a timely manner of all actions taken or proposed to be taken by the Controlling Party with respect to such potential adjustment in such Tax Contest; (ii) the Controlling Party shall timely provide the Non-Controlling Party copies of any written materials relating to such potential adjustment in such Tax Contest received from any Tax Authority; (iii) the Controlling Party shall timely provide the Non-Controlling Party with copies of any correspondence or filings submitted to any Tax Authority or judicial authority in connection with such potential adjustment in such Tax Contest; (iv) the Controlling Party shall consult with the Non-Controlling Party and offer the Non-Controlling Party a reasonable opportunity to comment before submitting any written materials prepared or furnished in connection with such potential adjustment in such Tax Contest; and (v) the Controlling Party shall defend such Tax Contest diligently and in good faith. The failure of the Controlling Party to take any action specified in the preceding sentence with respect to the Non-Controlling Party shall not relieve the Non-Controlling Party of any liability and/or obligation which it may have to the Controlling Party under this Agreement except to the extent that the Non-Controlling Party was actually harmed by such failure, and in no event shall such failure relieve the Non-Controlling Party from any other liability or obligation which it may have to the Controlling Party. In the case of any Tax Contest described in Section  9.02(a) or (b) , “ Controlling Party ” means the Company entitled to control the Tax Contest under such Section and “ Non-Controlling Party ” means (x) CBS if Acquiror is the Controlling Party and (y) Acquiror if CBS is the Controlling Party.

(d) Tax Contest Participation . Subject to Section  9.02(e) , and unless waived by the Parties in writing, the Controlling Party shall provide the Non-Controlling Party with written notice reasonably in advance of, and the Non-Controlling Party shall have the right to attend, any formally scheduled meetings with Tax Authorities or hearings or proceedings before any judicial authorities in connection with any potential adjustment in a Tax Contest pursuant to which the Non-Controlling Party may reasonably be expected to become liable to make any indemnification payment to the Controlling Party under this Agreement. The failure of the Controlling Party to provide any notice specified in this Section  9.02(d) to the Non-Controlling Party shall not relieve the Non-Controlling Party of any liability and/or obligation which it may

 

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have to the Controlling Party under this Agreement except to the extent that the Non-Controlling Party was actually harmed by such failure, and in no event shall such failure relieve the Non-Controlling Party from any other liability or obligation which it may have to the Controlling Party.

(e) CBS Consolidated Federal Income Tax Return . Notwithstanding anything in this Article  9 to the contrary, in the case of a Tax Contest related to (x) a CBS Federal Consolidated Income Tax Return or (y) any other consolidated, combined or unitary Income Tax Return that includes any member of the Radio Group, on the one hand, and any member of the CBS Group, on the other hand, (i) the rights of Acquiror and Radio and their respective Affiliates under Section  9.02(c) and Section  9.02(d) shall be limited in scope to the portion of such Tax Contest relating to Taxes for which Acquiror or Radio may reasonably be expected to become liable to make any indemnification payment to CBS under this Agreement, and (ii) CBS shall have exclusive authority with respect to the settlement of such Tax Contest and shall exercise such authority in good faith with respect to any adverse Tax impact regarding any member of the Acquiror Group for any Tax Period or Radio Group for any Post-Distribution Period.

(f) Power of Attorney . Each member of the Acquiror Group shall execute and deliver to CBS (or such member of the CBS Group as CBS shall designate) any power of attorney or other similar document reasonably requested by CBS (or such designee) in connection with any Tax Contest (as to which CBS is the Controlling Party) described in this Article  9 within 2 Business Days of such request. Each member of the CBS Group shall execute and deliver to Acquiror (or such member of the Acquiror Group as Acquiror shall designate) any power of attorney or other similar document requested by Acquiror (or such designee) in connection with any Tax Contest (as to which Acquiror is the Controlling Party) described in this Article  9 within 2 Business Days of such request.

Article  10. Effective Date . Except as expressly set forth in this Agreement, as between CBS and Radio, this Agreement shall become effective upon the consummation of the Final Distribution, and as between CBS, Radio, and Acquiror, this Agreement shall become effective upon the consummation of the Merger.

Article  11. Survival of Obligations . The representations, warranties, covenants and agreements set forth in this Agreement shall be unconditional and absolute and shall remain in effect without limitation as to time.

Article  12. Treatment of Payments .

Section 12.01 Treatment of Tax Indemnity Payments . In the absence of any change in Tax treatment under the Code or except as otherwise required by other applicable Tax Law, any payment required by this Agreement, the Separation Agreement, the Merger Agreement or any Ancillary Agreement (other than (x) any payment of interest accruing after the Distribution Date or (y) any payment pursuant to Section 3.5 of the Merger Agreement) shall be reported for Tax purposes by the payor and the recipient as either a contribution by CBS to Radio or a distribution by Radio to CBS, as the case may be, occurring immediately prior to the Final Distribution (but only to the extent the payment does not relate to a Tax allocated to the payor in accordance with Section 1552 of the Code or the Treasury Regulations thereunder or Treasury Regulation

 

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Section 1.1502-33(d) (or under corresponding principles of other applicable Tax Laws)) or as payments of an assumed or retained liability. Except to the extent provided in Section 12.02, any Tax indemnity payment made by a Company under this Agreement shall be increased as necessary so that after making all payments in respect of Taxes imposed on or attributable to such indemnity payment, the recipient Company receives an amount equal to the sum it would have received had no such Taxes been imposed.

Section 12.02 Interest Under This Agreement . Notwithstanding anything herein to the contrary, to the extent one Party (“ Indemnitor ”) makes a payment of interest to another Party (“ Indemnitee ”) under this Agreement with respect to the period from the date that the Indemnitee made a payment of Tax to a Tax Authority to the date that the Indemnitor reimbursed the Indemnitee for such Tax payment, the interest payment shall be treated as interest expense to the Indemnitor (deductible to the extent provided by Law) and as interest income by the Indemnitee (includible in income to the extent provided by Law). The amount of the payment shall not be adjusted to take into account any associated Tax Benefit to the Indemnitor or increase in Tax to the Indemnitee.

Article  13. Disagreements .

Section 13.01 Discussion . The Parties mutually desire that friendly collaboration will continue between them. Accordingly, they will endeavor, and they will cause their respective Group members to endeavor, to resolve in an amicable manner all disagreements and misunderstandings connected with their respective rights and obligations under this Agreement, including any amendments hereto. In furtherance thereof, in the event of any dispute or disagreement between any member of the CBS Group and any member of the Acquiror Group as to the interpretation of any provision of this Agreement or the performance of obligations hereunder (a “ Dispute ”), the Tax departments of the Parties shall negotiate in good faith to resolve the Dispute.

Section 13.02 Escalation .

(a) If such good faith negotiations do not resolve the Dispute, then the matter will be resolved through the procedures provided in Article VII of the Separation Agreement.

Article 14. Late Payments. Any amount owed by one Party to another Party under this Agreement which is not paid when due shall bear interest at the Prime Rate plus two percent, compounded semiannually, from the due date of the payment to the date paid. To the extent interest required to be paid under this Article 14 duplicates interest required to be paid under any other provision of this Agreement, interest shall be computed at the higher of the interest rate provided under this Article 14 or the interest rate provided under such other provision.

Article 15. Expenses. Except as otherwise provided in this Agreement, each Party and its Affiliates shall bear their own expenses incurred in connection with preparation of Tax Returns, Tax Contests, and other matters related to Taxes under the provisions of this Agreement.

 

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Article 16. General Provisions.

Section 16.01 Addresses and Notices . Each Party giving any notice required or permitted under this Agreement will give the notice in writing and use one of the following methods of delivery to the Party to be notified, at the address set forth below or another address of which the sending Party has been notified in accordance with this Section 16.01 : (a) personal delivery; (b) facsimile or telecopy transmission with a reasonable method of confirming transmission; (c) commercial overnight courier with a reasonable method of confirming delivery; or (d) pre-paid, United States of America certified or registered mail, return receipt requested. Notice to a Party is effective for purposes of this Agreement only if given as provided in this Section 16.01 and shall be deemed given on the date that the intended addressee actually receives the notice.

 

  (i) if to CBS:

CBS Corporation

51 West 52nd Street

New York, New York 10019

Attn: General Tax Counsel

Fax: (212) 597-4103

 

  (ii) if to Radio, after the Effective Time, or Acquiror:

Entercom Communications Corp.

401 E. City Avenue, Suite 809

Bala Cynwyd, Pennsylvania 19004

Attn: Senior Vice President and General Counsel

Fax: (610) 660-5662

A Party may change the address for receiving notices under this Agreement by providing written notice of the change of address to the other Party.

Section 16.02 Binding Effect . This Agreement shall be binding upon and inure to the benefit of the Parties and their successors and permitted assigns.

Section 16.03 Waiver . The Parties may waive a provision of this Agreement only by a writing signed by the Party intended to be bound by the waiver. A Party is not prevented from enforcing any right, remedy or condition in the Party’s favor because of any failure or delay in exercising any right or remedy or in requiring satisfaction of any condition, except to the extent that the Party specifically waives the same in writing. A written waiver given for one matter or occasion is effective only in that instance and only for the purpose stated. A waiver once given is not to be construed as a waiver for any other matter or occasion. Any enumeration of a Party’s rights and remedies in this Agreement is not intended to be exclusive, and a Party’s rights and remedies are intended to be cumulative to the extent permitted by law and include any rights and remedies authorized in law or in equity.

Section 16.04 Severability . If any provision of this Agreement is determined to be invalid, illegal or unenforceable, the remaining provisions of this Agreement remain in full force, if the essential terms and conditions of this Agreement for each Party remain valid, binding and enforceable.

 

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Section 16.05 Authority . Each of the Parties represents to the other that (a) it has the corporate or other requisite power and authority to execute, deliver and perform this Agreement, (b) the execution, delivery and performance of this Agreement have been duly authorized by all necessary corporate or other action, (c) it has duly and validly executed and delivered this Agreement, and (d) this Agreement is a legal, valid and binding obligation, enforceable against it in accordance with its terms, subject to applicable bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting creditors’ rights generally and general equity principles.

Section 16.06 Further Action . The Parties shall execute and deliver all documents, provide all information, and take or refrain from taking action as may be reasonably necessary or appropriate to achieve the purposes of this Agreement, including the execution and delivery to the other Party and their Affiliates and representatives of such powers of attorney or other authorizing documentation as is reasonably necessary or appropriate in connection with Tax Contests (or portions thereof) under the control of such other Party in accordance with Article 9 .

Section 16.07 Integration . This Agreement, together with each of the exhibits appended hereto, contains the entire agreement among the Parties with respect to the subject matter hereof and supersedes all other agreements, whether or not written, in respect of any Tax between or among any member or members of the CBS Group, on the one hand, and any member or members of the Radio Group, on the other hand. In the event of any inconsistency between this Agreement, the Merger Agreement and the Separation Agreement, or any other agreements relating to the transactions contemplated by the Merger Agreement or the Separation Agreement, with respect to the subject matter hereof, the provisions of this Agreement shall control. The parties agree and acknowledge that the references to “Section 2.2(b)” of the Separation Agreement in (i) the definition of “Distribution Tax Opinion” in the Separation Agreement and (ii) Section 3.1(d) of the Merger Agreement, in each case, are typographical errors and instead such provisions refer to Section 2.2(a)(ii) of the Separation Agreement.

Section 16.08 Construction . The language in all parts of this Agreement shall in all cases be construed according to its fair meaning and shall not be strictly construed for or against any Party. The captions, titles and headings included in this Agreement are for convenience only, and do not affect this Agreement’s construction or interpretation. Unless otherwise indicated, all “Section” references in this Agreement are to sections of this Agreement.

Section 16.09 No Double Recovery . No provision of this Agreement shall be construed to provide an indemnity or other recovery for any costs, damages, or other amounts for which the damaged Party has been fully compensated under any other provision of this Agreement or under any other agreement or action at law or equity. Unless expressly required in this Agreement, a Party shall not be required to exhaust all remedies available under other agreements or at law or equity before recovering under the remedies provided in this Agreement.

Section 16.10 Counterparts . The Parties may execute this Agreement in multiple counterparts, each of which constitutes an original as against the Party that signed it, and all of

 

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which together constitute one agreement. This Agreement is effective upon delivery of one executed counterpart from each Party to the other Party. The signatures of the Parties need not appear on the same counterpart. The delivery of signed counterparts by facsimile or email transmission that includes a copy of the sending Party’s signature is as effective as signing and delivering the counterpart in person.

Section 16.11 Governing Law . The internal laws of the State of New York (without reference to its principles of conflicts of law) govern the construction, interpretation and other matters arising out of or in connection with this Agreement and each of the exhibits hereto and thereto (whether arising in contract, tort, equity or otherwise).

Section 16.12 Jurisdiction . If any dispute arises out of or in connection with this Agreement, except as expressly contemplated by another provision of this Agreement, the Parties irrevocably (and the Parties will cause each other member of their respective Group to irrevocably) (a) consent and submit to the exclusive jurisdiction of federal and state courts located in the Borough of Manhattan in New York, New York, (b) waive any objection to that choice of forum based on venue or to the effect that the forum is not convenient, and (c) WAIVE TO THE FULLEST EXTENT PERMITTED BY LAW ANY RIGHT TO TRIAL OR ADJUDICATION BY JURY.

Section 16.13 Amendment . The Parties may amend this Agreement only by a written agreement signed by each Party to be bound by the amendment and that identifies itself as an amendment to this Agreement.

Section 16.14 Subsidiaries . If, at any time, CBS, Acquiror or Radio acquires or creates one or more subsidiaries that are includable in the CBS Group, Acquiror Group or Radio Group, as applicable, they shall be subject to this Agreement and all references to the CBS Group, Acquiror Group or Radio Group, as applicable, herein shall thereafter include a reference to such subsidiaries.

Section 16.15 Successors . This Agreement shall be binding on and inure to the benefit of any successor by merger, acquisition of assets, or otherwise, to any of the Parties (including but not limited to any successor of CBS, Acquiror or Radio succeeding to the Tax Attributes of either under Section 381 of the Code), to the same extent as if such successor had been an original party to this Agreement. Other than as permitted in the previous sentence, neither Party may assign its rights or obligations hereunder without the prior written consent of the other Party.

Section 16.16 Injunctions . The Parties acknowledge that irreparable damage may occur in the event that any of the provisions of this Agreement, including Section 6.01 and Section 6.02 , were not performed in accordance with its specific terms or were otherwise breached. The Parties shall be entitled to seek an injunction or injunctions to prevent breaches of the provisions of this Agreement, including Section 6.01 and Section 6.02 , and to enforce specifically the terms and provisions hereof in any court having jurisdiction, such remedy being in addition to any other remedy to which they may be entitled at law or in equity.

[Signatures appear on next page]

 

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IN WITNESS WHEREOF, each Party has caused this Agreement to be executed on its behalf by a duly authorized officer on the date first set forth above.

 

CBS CORPORATION, a Delaware corporation
By:  

/s/ Richard M. Jones

  Name:   Richard M. Jones
  Title:   Executive Vice President and
    General Tax Counsel
CBS RADIO INC., a Delaware corporation
By:      

/s/ Richard M. Jones

  Name:   Richard M. Jones
  Title:   Senior Vice President and
    General Tax Counsel

 

[Signature page to the Tax Matters Agreement by and among CBS Corporation, CBS Radio Inc. and Entercom Communications Corp.]


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ENTERCOM COMMUNICATIONS
CORP., a Pennsylvania Corporation

By:      

/s/ Andrew P. Sutor, IV

  Name:   Andrew P. Sutor, IV
  Title:   Executive Vice President

 

[Signature page to the Tax Matters Agreement by and among CBS Corporation, CBS Radio Inc. and Entercom Communications Corp.]

Exhibit 3.1

ARTICLES OF AMENDMENT

 

1. The name of the corporation is Entercom Communications Corp (the “ Corporation ”).

 

2. The address of its registered office (which is located in Montgomery County) is 401 E. City Avenue, Suite 809, Bala Cynwyd, Pennsylvania 19004.

 

3. The Corporation was incorporated under the provisions of the Business Corporation Law, Act of May 5, 1933, as amended. The date of its incorporation is October 21, 1968.

 

4. The amendment was adopted by the Corporation by vote of its shareholders in accordance with 15 Pa.C.S. § 1914.

 

5. The amendment adopted by the Corporation is set forth in full in Exhibit A attached hereto and made a part hereof.

IN WITNESS WHEREOF, the Corporation has executed these articles of amendment on November 17, 2017.

 

  Entercom Communications Corp.
By:  

/s/ Andrew P. Sutor, IV

  Name:   Andrew P. Sutor, IV
  Title:   Executive Vice President

 

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Exhibit A

Articles Eleventh, Thirteen, and Fifteenth of the Amended and Restated Articles of Incorporation are amended to read in full as follows:

ELEVENTH: Definitions. Capitalized terms used in these Amended and Restated Articles of Incorporation and not otherwise defined are used with the meanings set forth below.

“Affiliate” shall have the same meaning as such term has under Rule 12b-2 of the Exchange Act.

“Exchange Act” shall mean the Securities Exchange Act of 1934.

“FCC” shall mean the Federal Communications Commission, or any successor agency.

“Going Private Transaction” shall mean any transaction that is a “Rule 13e-3 transaction,” as such term is defined in Rule 13e-3(a)(3) promulgated under the Exchange Act; provided, however, that the term “affiliate” as used in Rule 13e-3(a)(3)(i) shall be deemed to include an Affiliate, as defined in these Amended and Restated Articles of Incorporation.

“Independent Director” shall mean a Person who is not an officer or employee of the Corporation or its subsidiaries or a “family member” of any of the foregoing, and who does not have a relationship which, in the opinion of the Board of Directors, would interfere with the exercise of independent judgment in carrying out the responsibilities of a director. For purposes of this definition, “family member” shall mean a spouse, sibling, child, parent, brother-in-law, sister-in-law, mother-in-law or father-in-law.

“IPO” shall mean a firm commitment underwritten initial public offering of Class A Common Stock for cash pursuant to a registration statement under the Securities Act of 1933 where the aggregate proceeds to the Company (prior to deducting any underwriters’ discounts and commissions from such offering) exceed $10 million.

“Management Shareholder” shall mean Joseph M. Field or David J. Field.

“Pennsylvania BCL” shall mean the Pennsylvania Business Corporation Law of 1988, as amended.

“Permitted Class B Transferee” A “Permitted Class B Transferee” shall mean:

 

  (i) A Management Shareholder, the spouse or lineal descendant of a Management Shareholder and any spouse of such lineal descendant;

 

  (ii) The trustee of a trust (including a voting trust) principally for the benefit of one or more of the Persons described in (i) above;

 

  (iii) The estate of any of the Persons described in (i) above.

 

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  (iv) For purposes of the definition of Permitted Class B Transferee:

 

  (A) The relationship of any Person that is derived by or through legal adoption shall be treated the same as if such relationship were a natural one.

 

  (B) Ownership in the form of joint tenancy by a Permitted Class B Transferee shall be considered ownership by the Permitted Class B Transferee provided that the terms of such joint tenancy includes a right of survivorship. Upon the death of a Permitted Class B Transferee, at least one of the surviving joint tenants must independently qualify as a Permitted Class B Transferee or there will be an Event of Automatic Conversion.

 

  (C) A minor for whom shares of Class B Common Stock are held pursuant to a Uniform Gifts to Minors Act or similar law shall be considered to be held by a Class B Holder for so long as the Person entitled to vote the shares under applicable laws independently qualifies as a Permitted Class B Transferee or there will be an Event of Automatic Conversion.

“Person” shall mean any natural person, partnership (limited or general), association, corporation, limited liability company, joint venture or other legal entity.

“Qualified Voting Agreement” shall mean any proxy, voting agreement, voting trust or similar document, instrument or agreement pursuant to which a Management Shareholder generally controls the vote of the shares of Class B Common Stock held by a Management Shareholder or held by a Permitted Class B Transferee which shares are subject to such Qualified Voting Agreement (the “Qualified Voting Shares”),regardless of whether the beneficial owner of the Qualified Voting Shares reserves or is granted a limited right to vote the Qualified Voting Shares in certain circumstances or retains the right to revoke such right and/or to reinstate such right at any time or from time to time. A good faith determination by the Board of Directors as to whether a proxy, voting agreement, voting trust or similar document, instrument or agreement constitutes a Qualified Voting Agreement shall be conclusive and binding on all shareholders.

“Regulated Entity” means (i) any entity that is a “bank holding company” (as defined in Section 2(a) of the Bank Holding Company Act of 1956, as amended (the “BHC Act”)) or any non-bank subsidiary of such an entity and (ii) any entity that, pursuant to Section 8(a) of the International Banking Act of 1978, as amended, is subject to the provisions of the BHC Act or any non-bank subsidiary of such an entity.

THIRTEENTH: Board of Directors.

 

  (a) The number of directors of the Corporation and the procedures to elect directors, to remove directors, and to fill vacancies in the Board of Directors shall be as stated in the Corporation’s By-Laws.

 

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  (b) The directors of the Corporation shall be classified, in respect of the time for which they severally hold office, into three classes, as nearly equal in number as possible, as follows:

 

  (i) One class of directors shall hold office initially for a term expiring at the annual meeting of shareholders to be held in 2018. At that meeting, the successors to this class of directors shall be elected to hold office for a term of three year and until their successors are elected and qualified.

 

  (ii) One class of directors shall hold office initially for a term expiring at the annual meeting of shareholders to be held in 2019. At that meeting, the successors to this class of directors shall be elected to hold office for a term of three year and until their successors are elected and qualified.

 

  (iii) One class of directors shall hold office initially for a term expiring at the annual meeting of shareholders to be held in 2020. At that meeting, the successors to this class of directors shall be elected to hold office for a term of three year and until their successors are elected and qualified.

 

  (iv) One Class A Director shall be assigned to the class of directors to be elected at the annual meeting in 2018, and one Class A Director shall be assigned to the class of directors to be elected at the annual meeting in 2019.

 

  (v) If the number of directors is changed, any increase or decrease shall be apportioned among the classes so as to maintain the number of directors in each class as nearly equal as possible, but in no case will a decrease in the number of authorized directors shorten the term of any incumbent director.

 

  (c) The holders of the outstanding Class A Common Stock at the time shall have the right to remove either or both of the Class A Directors at any annual meeting of the shareholders of the Corporation and to elect their successors at the same meeting in the manner provided in the bylaws.

FIFTEENTH:    The following provisions are included for the purposes of ensuring that the ownership of the Corporation’s capital stock by certain holders of those shares will not result in a violation of the Federal Communications Laws.

 

  (a) Definitions . The following terms as used in this Article FIFTEENTH shall have the meanings set forth below.

 

  (i)

“Fair Market Value” shall mean, with respect to a share of the Corporation’s capital stock of any class or series, the volume weighted average sales price for such a share on the New York Stock Exchange or, if such stock is not listed on such exchange, on the principal U.S. registered securities exchange on which such stock is listed, during the 30 most recent days on which shares of stock of such class or series shall

 

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  have been traded preceding the day on which notice of redemption shall be given pursuant to Section (d) of this Article FIFTEENTH; provided , however , that if shares of stock of such class or series are not traded on any securities exchange, “Fair Market Value” shall be determined by the Board of Directors in good faith; and provided, further , that “Fair Market Value” as to any stockholder who purchased stock within 120 days of a Redemption Date need not (unless otherwise determined by the Board of Directors) exceed the purchase price paid by such stockholder.

 

  (ii) “FCC Regulatory Limitation” shall have the meaning set forth in Section (b) of this Article FIFTEENTH.

 

  (iii) “Federal Communications Laws” shall mean any law of the United States now or hereafter in effect (and any regulation thereunder), including, without limitation, the Communications Act of 1934, as amended, and regulations thereunder, pertaining to the ownership and/or operation, or regulating the business activities, of (x) any broadcast television or radio station, daily newspaper, cable television system or other medium of mass communications or (y) any provider of programming content to any such medium.

 

  (iv) “Redemption Date” shall mean the date fixed by the Board of Directors for the redemption of any shares of stock of the Corporation pursuant to Section (d) of this Article FIFTEENTH.

 

  (v) “Redemption Securities” shall mean any debt or equity securities of the Corporation, any subsidiary of the Corporation or any other corporation or entity, or any combination thereof, having such terms and conditions as shall be approved by the Board of Directors and which, together with any cash to be paid as part of the redemption price, in the opinion of any nationally recognized investment banking firm selected by the Board of Directors (which may be a firm which provides other investment banking, brokerage or other services to the Corporation), has a value, at the time notice of redemption is given pursuant to Section (d) of this Article FIFTEENTH, at least equal to the Fair Market Value of the shares to be redeemed pursuant to such Section (d) (assuming, in the case of Redemption Securities to be publicly traded, such Redemption Securities were fully distributed and subject only to normal trading activity).

 

  (b)

Restrictions on Stock Ownership or Conversion . The Corporation may restrict the ownership, proposed ownership, or conversion of shares of capital stock of the Corporation by any Person if such ownership, proposed ownership or conversion, either alone or in combination with other actual or proposed ownership (including due to conversion) of shares of capital stock of any other Person, and whether by reason of a change in such Person’s ownership, a change in the number of shares outstanding or in any class, or for any other reason: (i) is or could be inconsistent with, or in violation of, any provision of the Federal Communications Laws, (ii)

 

5


  limits or impairs or could limit or impair any business activities or proposed business activities of the Corporation under the Federal Communications Laws, or (iii) subjects or could subject the Corporation to any regulation under the Federal Communications Laws to which the Corporation would not be subject but for such ownership, proposed ownership or conversion (each of clauses (i), (ii) and (iii) of this Section (b), an “FCC Regulatory Limitation”).

 

  (c) Requests for Information . If the Corporation believes that the ownership, proposed ownership, or conversion of shares of capital stock of the Corporation by any Person (a) may result in an FCC Regulatory Limitation, or (b) may subject the Corporation to reporting requirements regarding such Person, such Person shall furnish promptly to the Corporation such information (including, without limitation, information with respect to its citizenship, ownership structure, other ownership interests and affiliations) as the Corporation shall request.

 

  (d) Denial of Rights, Refusal to Transfer, Redemption . If (i) any Person from whom information is requested pursuant to Section (c) of this Article FIFTEENTH does not provide all the information requested by the Corporation completely, accurately and in a timely manner, or (ii) the Corporation concludes that a Person’s ownership, proposed ownership or conversion of, or that a Person’s exercise of any rights of ownership with respect to, shares of capital stock of the Corporation results or could result in an FCC Regulatory Limitation, then, in the case of either clause (i) or clause (ii) of this Section (d), the Corporation may (A) refuse to permit the transfer or conversion of shares of capital stock of the Corporation to such proposed stockholder, (B) suspend those rights of stock ownership the exercise of which causes or could cause such FCC Regulatory Limitation, (C) require the conversion of any or all shares of capital stock held by such stockholder into shares of any other class of capital stock in the Corporation of equivalent economic but not voting rights, (D) require the exchange of any or all shares of capital stock held by such stockholder for warrants to acquire, at a nominal exercise price, the same number and class of shares of capital stock in the Corporation, the exercise of such warrants to be subject to compliance with the Federal Communications Laws and to be conditioned upon the absence of an FCC Regulatory Limitation, (E) condition the acquisition (including due to conversion) of such shares of capital stock on the prior consent of the FCC, (F) redeem such shares of capital stock of the Corporation held by such stockholder in accordance with the terms and conditions set forth in this Section (d), and/or (G) exercise any and all appropriate remedies, at law or in equity, in any court of competent jurisdiction, against any such stockholder or proposed transferee, with a view towards obtaining such information or preventing or curing any situation which causes or could cause an FCC Regulatory Limitation. Any such refusal of transfer or suspension of rights pursuant to clauses (A) and (B), respectively, of the immediately preceding sentence shall remain in effect until the requested information has been received and the Corporation has determined that such transfer, or the exercise of such suspended rights, as the case may be, will not result in an FCC Regulatory Limitation. The terms and conditions of redemption pursuant to clause (F) of this Section (d) shall be as follows:

 

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  (1) the redemption price of any shares to be redeemed pursuant to this Section (d) shall be equal to the Fair Market Value of such shares;

 

  (2) the redemption price of such shares may be paid in cash, Redemption Securities or any combination thereof;

 

  (3) if less than all such shares are to be redeemed, the shares to be redeemed shall be selected in such manner as shall be determined by the Board of Directors, which may include selection first of the most recently purchased shares thereof, selection by lot or selection in any other manner determined by the Board of Directors;

 

  (4) at least 15 days’ written notice of the Redemption Date shall be given to the record holders of the shares selected to be redeemed (unless waived in writing by any such holder); provided that the Redemption Date may be the date on which written notice shall be given to record holders if the cash or Redemption Securities necessary to effect the redemption shall have been deposited in trust for the benefit of such record holders and subject to immediate withdrawal by them upon surrender of the stock certificates for their shares to be redeemed;

 

  (5) from and after the Redemption Date, any and all rights of whatever nature in respect of the shares selected for redemption (including, without limitation, any rights to vote or participate in dividends declared on stock of the same class or series as such shares), shall cease and terminate and the holders of such shares shall thenceforth be entitled only to receive the cash or Redemption Securities payable upon redemption; and

 

  (6) such other terms and conditions as the Board of Directors shall determine.

The Corporation may, but is not required to, take any action permitted under this Article FIFTEENTH; and the grant of specific powers to the Corporation under this Article FIFTEENTH shall not be deemed to restrict the Corporation from pursuing, alternatively or concurrently, any other remedy or alternative course of action available to the Corporation.

 

  (e) Legends . The Corporation shall instruct the Corporation’s transfer agent that the shares of capital stock of the Corporation are subject to the restrictions set forth in this Article FIFTEENTH and such restrictions shall be noted conspicuously on the certificate or certificates representing such capital stock or, in the case of uncertificated securities, contained in the notice or notices sent as required by applicable law.

 

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  (f) Authority of Board of Directors . In the case of an ambiguity in the application of any of the provisions of this Article FIFTEENTH, including any definition used herein, the Board of Directors shall have the power to determine the application of such provisions. In the event this Article FIFTEENTH permits any action by the Corporation but fails to provide specific guidance with respect to such action, the Board of Directors shall have the power to determine whether to take any action and the action to be taken (if any). All such actions, calculations, interpretations and determinations which are done or made by the Board of Directors in good faith shall be conclusive and binding on the Corporation and all other Persons for all other purposes of this Article FIFTEENTH. The Board of Directors may delegate all or any portion of its powers under this Article FIFTEENTH to a committee of the Board of Directors as it deems necessary or advisable and, to the fullest extent permitted by law, may exercise the authority granted by this Article FIFTEENTH through duly authorized officers or agents of the Corporation. Nothing in this Article FIFTEENTH shall be construed to limit or restrict the Board of Directors in the exercise of its fiduciary duties under applicable law.

 

  (g) Reliance . To the fullest extent permitted by law, the Corporation and the members of the Board of Directors shall be fully protected in relying in good faith upon any information provided by any Person pursuant to this Article FIFTEENTH (including, without limitation, Section (c) of this Article FIFTEENTH) and the information, opinions, reports or statements of the chief executive officer, the chief financial officer or the principal accounting officer of the Corporation and the Corporation’s legal counsel, independent auditors, transfer agent, investment bankers or other employees and agents in making any determinations and findings contemplated by this Article FIFTEENTH. The members of the Board of Directors shall not be responsible for any good faith errors made in connection therewith. For purposes of determining the existence and identity of, and the amount of any shares of stock of the Corporation owned by any stockholder, the Corporation is entitled to rely on the existence or absence of filings of Schedule 13D or 13G under the Securities Exchange Act of 1934, as amended (or similar filings), or on any other information upon which the Corporation may rely under the Federal Communications Laws, as of any date, subject to its actual knowledge of the ownership of shares of stock of the Corporation.

 

  (h) Severability . If any provision of this Article FIFTEENTH or the application of any such provision to any Person under any circumstance shall be held invalid, illegal or unenforceable in any respect by a court of competent jurisdiction, such invalidity, illegality or unenforceability shall not affect any other provision of this Article FIFTEENTH or the application of such provision to any other Person.

 

8

Exhibit 3.2

SECOND AMENDMENT

TO

AMENDED AND RESTATED BYLAWS

OF ENTERCOM COMMUNICATIONS CORP.

This Amendment (this “ Amendment ”) to the Amended and Restated Bylaws, as previously amended as of February 1, 2017 (as amended, the “ Bylaws ”) of Entercom Communications Corp., a Pennsylvania corporation (the “ Corporation ”) is made as of November 17, 2017 and adopted by the Board of Directors of the Corporation (the “ Board ”). Any term used herein that is not otherwise defined herein shall have the meaning ascribed to such term as provided in the Bylaws.

WHEREAS, the Corporation has entered into that certain Agreement and Plan of Merger, dated February 2, 2017 and amended as of July 10, 2017 and September 13, 2017 (as amended, the “ Merger Agreement ”), by and among CBS Corporation, a Delaware corporation (“ CBS ”), CBS Radio Inc., a Delaware corporation and a wholly owned subsidiary of CBS (“ Radio ”), the Company and Constitution Merger Sub Corp., a Delaware corporation (the “ Merger Sub ”), pursuant to which, upon the terms and subject to the conditions set forth in the Merger Agreement, Merger Sub will merge with and into Radio, with Radio surviving as a wholly owned subsidiary of the Company (the “ Merger ” and, together with the other transactions contemplated by the Merger Agreement, the “ Transactions ”)

WHEREAS, the Board desires to amend the Bylaws as set forth below, with such amendment to be effective only upon the consummation of the Merger;

WHEREAS, pursuant to Section 11.01 of the Bylaws, the Bylaws may be amended by a majority vote of members of the Board; and

WHEREAS, the Board has approved this Amendment pursuant to resolutions adopted on November 13, 2017.

NOW, THEREFORE, in consideration of the foregoing, the Board hereby amends the Bylaws as follows:

1.    Section 3.03(a) of the Bylaws is hereby amended and restated in its entirety as follows:

“(a) General Rule . Except as otherwise provided in Section 3.01(b), notice of every meeting of the shareholders shall be given by, or at the direction of, the Secretary of other authorized person or designated agent to each shareholder of record entitled to vote at the meeting at least (i) ten (10) days prior to the day named for a meeting (and, in case of a meeting called to consider a merger, interest exchange or, conversion, division or domestication, to each shareholder of record not entitled to vote at the meeting) called to consider a fundamental change under 15 Pa.C.S. Chapter 3 or 19 or (ii) five days (5) days prior to the day named for the meeting in any other case. If the Secretary neglects or refuses to give notice of a meeting, the person or persons calling the meeting may do so. In the case of a special meeting of shareholders, the notice shall specify the general nature of the business to be transacted.”


2.    Section 3.03(c) of the Bylaws is hereby is hereby amended and restated in its entirety as follows

“(c) Notice of Action by Shareholders on Fundamental Change . In the case of a meeting of the shareholders that has as one of its purposes action with respect to any fundamental change under 15 Pa.C.S. Chapter 3 or 19, each shareholder shall be given, together with notice of the meeting, a copy or summary of the amendment or plan to be considered at the meeting in compliance with the provisions of Chapter 19.”

3.    Section 4.03 of the Bylaws is hereby is hereby amended and restated in its entirety as follows:

“Section 4.03. Special Meetings . Special meetings of the shareholders may be called by the Chairman, CEO, or by resolution of the Board of Directors, which may fix the date, time, the geographic location of the meeting, if any, and/or the electronic communication technology through which the shareholders may participate in the meeting, if any; provided, however, that if there are two vacancies in the offices for the Class A Directors, then the holders of 50% of the Class A Common Stock outstanding shall have the right to call a special meeting of shareholders for the purpose of electing Class A Directors to fill such vacancies. If the Board does not fix the date, time or place of the meeting, it shall be the duty of the Secretary to do so. A date fixed by the Secretary shall not be more than 60 days after the date of the adoption of the resolution of the Board calling the special meeting.”

4.    Section 4.13 of the Bylaws is hereby amended and restated in its entirety as follows:

“Section 4.13. Voting Lists . If a judge or judges of election are not appointed in connection with a meeting of the shareholders, the officer or agent having charge of the transfer books for shares of the Corporation shall make a complete list of the shareholders entitled to vote at any the meeting of shareholders, arranged in alphabetical order, with the address of and the number of shares held by each. The list shall be produced and kept open at the time and place of the meeting and shall be subject to the inspection of any shareholder during the whole time of the meeting for the purposes thereof.”

5.    Section 5.03 of the Bylaws is hereby amended and restated in its entirety as follows:

“(a) Number . The full Board of Directors shall consist of such number of directors, not less than five (5) nor more than fifteen (15), as shall be determined from time to time by resolution of the Board of Directors. The Board of Directors shall include such number of directors as may be elected from time to time by the holders of any class or series of Preferred Stock entitled to elect directors (“ Preferred Stock Directors ”), and two directors elected by the holders of the Class A Common Stock by class vote (“ Class  A Directors ”).


(b) Term of Office . Each director shall hold office for a term of three years and until the director’s successor has been selected and qualified or until his or her earlier, death, resignation or removal.

(c) Resignation . Any director may resign at any time upon written notice to the Corporation. The resignation shall be effective upon receipt thereof by the Corporation or at such subsequent time as shall be specified in the notice of resignation.

(d) Class  A Directors . Each Class A Director will be elected at the annual meeting of the shareholders of the Corporation at which the class of directors in which the Class A Director is included is up for election. Notwithstanding the foregoing, if a Class A Director is removed from office at any annual meeting of the shareholders of the Corporation as provided in Section 5.05(c), the holders of Class A Common Stock shall have the right to elect a successor to the removed Class A Director at the same meeting.”

6.    Section 5.04(a) of the Bylaws is hereby amended and restated in its entirety as follows:

“(a) General Rule . Vacancies in the Board of Directors, including vacancies resulting from an increase in the number of directors, may be filled by a majority vote of the remaining members of the Board though less than a quorum, or by a sole remaining director, and each person so selected shall be a director to serve until the next selection of their class for which such director has been chosen and until a successor has been selected and qualified or until his or her earlier death, resignation or removal, provided however that a vacancy in the position of Class A Director that is not filled as provided in Section 5.05(c) may only be filled by the sole remaining Class A Director, and if both Class A director positions are vacant, then only the holders of the Class A Common Stock may fill such vacancies.”

7.    Section 5.05 of the Bylaws is hereby amended and restated in its entirety as follows:

“(a) Removal by the Shareholders . The following apply to removal of directors by the shareholders:

(1) Except as provided in subsection (c), the entire Board of Directors, or any class of the Board, or any individual director may be removed from office only for cause by vote of a majority of the shareholders entitled to vote thereon.

(2) In case the Board, or a class of the Board or any one or more directors are removed by the shareholders, new directors may be elected at the same meeting.

(3) The repeal of a provision of the Articles or Bylaws prohibiting, or the addition of a provision to the Articles or Bylaws permitting, the removal by the shareholders of the Board, a class of the Board or any individual director without assigning any cause shall not apply to any incumbent director during the balance of the term for which the director was selected.


(b) Removal by the Board . The Board of Directors may declare vacant the office of a director who has been judicially declared of unsound mind or who has been convicted of an offense punishable by imprisonment for a term of more than one year or if, within 60 days after notice of his or her selection, the director does not accept the office either in writing or by attending a meeting of the Board of Directors.

(c) Class  A Directors . A holder of Class A Common Stock may propose that either or both Class A Directors be removed from office without cause at any annual meeting of the shareholders by making a proposal to that effect within the time period described in Section 4.17(a). A proposal under this subsection to remove one or both Class A Directors must include the information required by Section 4.17(b). If a Class A Director is removed from office pursuant to this subsection (c), any holder of Class A Common Stock may nominate a candidate for election to succeed the removed director at the same meeting of shareholders by complying with the requirements of Section 4.16. Sections 4.16(c) and 4.17(c) shall apply to nominations and proposals by holders of Class A Common Stock under this subsection.”

8.    The penultimate sentence of Section 6.01(a) of the Bylaws is hereby be amended and restated in its entirety as follows:

“The Board of Directors may elect from among the members of the Board a Vice Chairman of the Board and a Chairman Emeritus of the Board, each of whom may but need not be an officer of the Corporation.”

9.    This Amendment shall be and is hereby incorporated in and forms a part of the Bylaws. All other terms and provisions of the Bylaws shall remain unchanged except as specifically modified herein. The Bylaws, as amended by this Amendment, are hereby ratified and confirmed.

[ signature page follows ]


I hereby certify that the foregoing Amendment was duly adopted by the Board as of the date indicated above.

 

By:  

/s/ Andrew P. Sutor, IV

Name:   Andrew P. Sutor, IV
Title:   Secretary

[Signature Page to Second Amendment to Amended and Restated Bylaws of Entercom Communications Corp]

Exhibit 4.2

EXECUTION VERSION

 

 

 

CBS RADIO, INC.

as Issuer

and

DEUTSCHE BANK TRUST COMPANY AMERICAS,

as Trustee

 

7.250% SENIOR NOTES DUE 2024

FIRST SUPPLEMENTAL INDENTURE

 

 

Dated as of November 17, 2017

 

 

 

 

 


Supplemental Indenture (this “ Supplemental Indenture ”), dated as of November 17, 2017, among Entercom Radio, LLC, a Delaware limited liability company, Entercom Austin, LLC, a Delaware limited liability company, Entercom Boston, LLC, a Delaware limited liability company, Entercom California, LLC, a Delaware limited liability company, Entercom Denver, LLC, a Delaware limited liability company, Entercom Gainesville, LLC, a Delaware limited liability company, Entercom North Carolina, LLC, a Delaware limited liability company, Entercom Greenville, LLC, a Delaware limited liability company, Entercom Indianapolis, LLC, a Delaware limited liability company, Entercom Kansas City, LLC, a Delaware limited liability company, Entercom Madison, LLC, a Delaware limited liability company, Entercom Tennessee, LLC, a Delaware limited liability company, Entercom Milwaukee, LLC, a Delaware limited liability company, Entercom New Orleans, LLC, a Delaware limited liability company, Entercom New Orleans License, LLC, a Delaware limited liability company, Entercom Buffalo, LLC, a Delaware limited liability company, Entercom Buffalo License, LLC, a Delaware limited liability company, Entercom Rochester, LLC, a Delaware limited liability company, Entercom Rochester License, LLC, a Delaware limited liability company, Entercom Virginia, LLC, a Delaware limited liability company, Entercom Portland, LLC, a Delaware limited liability company, Entercom Providence, LLC, a Delaware limited liability company, Entercom Seattle, LLC, a Delaware limited liability company, Entercom Springfield, LLC, a Delaware limited liability company, Entercom Wichita, LLC, a Delaware limited liability company, Entercom Wilkes-Barre Scranton, LLC, a Delaware limited liability company, Entercom Abe Holdings, LLC, a Delaware limited liability company, Entercom Miami, LLC, a Delaware limited liability company, Entercom Miami License, LLC, a Delaware limited liability company, Entercom Atlanta, LLC, a Delaware limited liability company, Entercom Atlanta License, LLC, a Delaware limited liability company, Entercom San Diego, LLC, a Delaware limited liability company, Entercom San Diego License, LLC, a Delaware limited liability company, Entercom Denver II, LLC, a Delaware limited liability company, Entercom Denver II License, LLC, a Delaware limited liability company, Delaware Equipment Holdings, LLC, a Delaware limited liability company, Entercom Properties, LLC, a Delaware limited liability company, SmartReach Digital, LLC, a Delaware limited liability company, Entercom License, LLC, a Delaware limited liability company, Entercom New York City, LLC, a Delaware limited liability company, and Entercom New York, Inc., a New York corporation (each a “ Guaranteeing Subsidiary ” and collectively the “ Guaranteeing Subsidiaries ”), affiliates of CBS Radio Inc., a Delaware corporation (the “ Issuer ”), and Deutsche Bank Trust Company Americas, a New York banking corporation, as trustee (the “ Trustee ”).

W I T N E S S E T H

WHEREAS , the Issuer and the Subsidiary Guarantors (as defined in the Indenture referred to below) have heretofore executed and delivered to the Trustee an indenture (the “ Indenture ”), dated as of October 17, 2016, providing for the issuance of an unlimited aggregate principal amount of Senior Notes due 2024 (the “ Notes ”);

WHEREAS , the Indenture provides that under certain circumstances the Guaranteeing Subsidiaries shall execute and deliver to the Trustee a supplemental indenture pursuant to which each Guaranteeing Subsidiary shall unconditionally guarantee all of the Issuer’s Obligations under the Notes and the Indenture on the terms and conditions set forth herein and under the Indenture (the “ Guarantee ”); and


WHEREAS , pursuant to Section 9.01 of the Indenture, the Trustee is authorized to execute and deliver this Supplemental Indenture.

NOW THEREFORE , in consideration of the foregoing and for other good and valuable consideration, the receipt of which is hereby acknowledged, the parties mutually covenant and agree for the equal and ratable benefit of the Holders of the Notes as follows:

(1)     Capitalized Terms . Capitalized terms used herein without definition shall have the meanings assigned to them in the Indenture.

(2)     Agreement to Guarantee . The Guaranteeing Subsidiaries hereby agree as follows:

(a)    Along with all Subsidiary Guarantors named in the Indenture, to jointly and severally unconditionally guarantee to each Holder of a Note authenticated and delivered by the Trustee and to the Trustee and its successors and assigns, irrespective of the validity and enforceability of the Indenture, the Notes or the obligations of the Issuer hereunder or thereunder, that:

(i)    the principal of and interest and premium on the Notes will be promptly paid in full when due, whether at maturity, by acceleration, redemption or otherwise, and interest on the overdue principal of and interest on the Notes, if any, if lawful, and all other obligations of the Issuer to the Holders or the Trustee hereunder or thereunder will be promptly paid in full or performed, all in accordance with the terms hereof and thereof; and

(ii)    in case of any extension of time of payment or renewal of any Notes or any of such other obligations, that same will be promptly paid in full when due or performed in accordance with the terms of the extension or renewal, whether at stated maturity, by acceleration or otherwise. Failing payment when due of any amount so guaranteed or any performance so guaranteed for whatever reason, the Subsidiary Guarantors and the Guaranteeing Subsidiaries shall be jointly and severally obligated to pay the same immediately. This is a guarantee of payment and not a guarantee of collection.

(b)    The obligations hereunder shall be unconditional, irrespective of the validity, regularity or enforceability of the Notes or the Indenture, the absence of any action to enforce the same, any waiver or consent by any Holder of the Notes with respect to any provisions hereof or thereof, the recovery of any judgment against the Issuer, any action to enforce the same or any other circumstance which might otherwise constitute a legal or equitable discharge or defense of a guarantor.

(c)    The following is hereby waived: diligence, presentment, demand of payment, filing of claims with a court in the event of insolvency or bankruptcy of the Issuer, any right to require a proceeding first against the Issuer, protest, notice and all demands whatsoever.

(d)    This Guarantee shall not be discharged except by complete performance of the obligations contained in the Notes, the Indenture and this Supplemental Indenture, and the Guaranteeing Subsidiaries accept all obligations of a Subsidiary Guarantor under the Indenture.


(e)    If any Holder or the Trustee is required by any court or otherwise to return to the Issuer, the Subsidiary Guarantors (including the Guaranteeing Subsidiaries), or any custodian, trustee, liquidator or other similar official acting in relation to either the Issuer or the Subsidiary Guarantors, any amount paid either to the Trustee or such Holder, this Guarantee, to the extent theretofore discharged, shall be reinstated in full force and effect.

(f)    [ Reserved ].

(g)    As between the Guaranteeing Subsidiaries, on the one hand, and the Holders and the Trustee, on the other hand, (x) the maturity of the obligations guaranteed hereby may be accelerated as provided in Article 6 of the Indenture for the purposes of this Guarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the obligations guaranteed hereby, and (y) in the event of any declaration of acceleration of such obligations as provided in Article 6 of the Indenture, such obligations (whether or not due and payable) shall forthwith become due and payable by the Guaranteeing Subsidiaries for the purpose of this Guarantee.

(h)    To the extent that the Guaranteeing Subsidiaries make a payment under its Guarantee, the Guaranteeing Subsidiaries shall be entitled upon payment in full of all guaranteed obligations under the Indenture to a contribution from each other Subsidiary Guarantor in an amount equal to such other Subsidiary Guarantor’s pro rata portion of such payment based on the respective net assets of all the Subsidiary Guarantors at the time of such payment determined in accordance with GAAP.

(i)    Pursuant to Section 10.02 of the Indenture, after giving effect to all other contingent and fixed liabilities that are relevant under any applicable Bankruptcy or fraudulent conveyance laws, and after giving effect to any collections from, rights to receive contribution from or payments made by or on behalf of any other Subsidiary Guarantor in respect of the obligations of such other Subsidiary Guarantor under Article 10 of the Indenture, this new Guarantee shall be limited to the maximum amount permissible such that the obligations of such Guaranteeing Subsidiaries under this Guarantee will not constitute a fraudulent transfer or conveyance.

(j)    This Guarantee shall remain in full force and effect and continue to be effective should any petition be filed by or against the Issuer for liquidation, reorganization, should the Issuer become insolvent or make an assignment for the benefit of creditors or should a receiver or trustee be appointed for all or any significant part of the Issuer’s assets, and shall, to the fullest extent permitted by law, continue to be effective or be reinstated, as the case may be, if at any time payment and performance of the Notes are, pursuant to applicable law, rescinded or reduced in amount, or must otherwise be restored or returned by any obligee on the Notes and Guarantee, whether as a “ voidable preference ”, “ fraudulent transfer ” or otherwise, all as though such payment or performance had not been made. In the event that any payment or any part thereof, is rescinded, reduced, restored or returned, the Note shall, to the fullest extent permitted by law, be reinstated and deemed reduced only by such amount paid and not so rescinded, reduced, restored or returned.


(k)    In case any provision of this Guarantee shall be invalid, illegal or unenforceable, the validity, legality, and enforceability of the remaining provisions shall not in any way be affected or impaired thereby.

(l)    This Guarantee shall be a general unsecured senior obligation of such Guaranteeing Subsidiaries.

(m)    Each payment to be made by the Guaranteeing Subsidiaries in respect of this Guarantee shall be made without set-off, counterclaim, reduction or diminution of any kind or nature.

(3)     Execution and Delivery . The Guaranteeing Subsidiaries agree that the Guarantee shall remain in full force and effect notwithstanding the absence of the endorsement of any notation of such Guarantee on the Notes.

(4)     [ Reserved ] .

(5)     Releases . The Guarantee of each Guaranteeing Subsidiary shall be automatically and unconditionally released and discharged, and no further action by each Guaranteeing Subsidiary, the Issuer or the Trustee is required for the release of such Guaranteeing Subsidiary’s Guarantee, upon:

(1)    (A) any sale, exchange or transfer (by merger or otherwise) of the Capital Stock of such Guaranteeing Subsidiary (including any sale, exchange or transfer), after which such Guaranteeing Subsidiaries is no longer a Restricted Subsidiary or all or substantially all the assets of the Guaranteeing Subsidiary which sale, exchange or transfer is made in compliance with the applicable provisions of the Indenture;

(B)    the release or discharge of the guarantee by such Guaranteeing Subsidiary of the Senior Credit Facilities or the guarantee which resulted in the creation of the Guarantee, except a discharge or release by or as a result of payment under such guarantee;

(C)    the proper designation of such Guaranteeing Subsidiary as an Unrestricted Subsidiary; or

(D)    the Issuer exercising its Legal Defeasance option or Covenant Defeasance option in accordance with Article 8 of the Indenture or the Issuer’s obligations under the Indenture being discharged in accordance with the terms of the Indenture; and

(2)    such Guaranteeing Subsidiary delivering to the Trustee an Officer’s Certificate and an Opinion of Counsel, each stating that all conditions precedent provided for in the Indenture relating to such transaction have been complied with.

(6)     No Recourse Against Others . No director, officer, employee, incorporator, member or stockholder of a Guaranteeing Subsidiary shall have any liability for any obligations of the Issuer or the Subsidiary Guarantors (including the Guaranteeing Subsidiary) under the


Notes, any Guarantees, the Indenture or this Supplemental Indenture or for any claim based on, in respect of, or by reason of, such obligations or their creation. Each Holder by accepting Notes waives and releases all such liability. The waiver and release are part of the consideration for issuance of the Notes.

(7)     Governing Law . THIS SUPPLEMENTAL INDENTURE WILL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.

(8)     Counterparts . The parties may sign any number of copies of this Supplemental Indenture. Each signed copy shall be an original, but all of them together represent the same agreement. The exchange of copies of this Supplemental Indenture and of signature pages by facsimile or PDF transmission shall constitute effective execution and delivery of this Supplemental Indenture as to the parties hereto and may be used in lieu of the original Supplemental Indenture and signature pages for all purposes.

(9)     Effect of Headings . The Section headings herein are for convenience only and shall not affect the construction hereof.

(10)     The Trustee . The Trustee shall not be responsible in any manner whatsoever for or in respect of the validity or sufficiency of this Supplemental Indenture or for or in respect of the recitals contained herein, all of which recitals are made solely by the Guaranteeing Subsidiaries.

(11)     Subrogation . The Guaranteeing Subsidiaries shall be subrogated to all rights of Holders of Notes against the Issuer in respect of any amounts paid by the Guaranteeing Subsidiaries pursuant to the provisions of Section 2 hereof and Section 10.01 of the Indenture; provided that the Guaranteeing Subsidiaries shall not be entitled to enforce or receive any payments arising out of, or based upon, such right of subrogation until all obligations of the Issuer under the Indenture and the Notes shall have been paid in full.

(12)     Benefits Acknowledged . The Guaranteeing Subsidiaries’ Guarantee is subject to the terms and conditions set forth in the Indenture. Each Guaranteeing Subsidiary acknowledges that it will receive direct and indirect benefits from the financing arrangements contemplated by the Indenture and this Supplemental Indenture and that the guarantee and waivers made by it pursuant to this Guarantee are knowingly made in contemplation of such benefits.

(13)     Successors . All agreements of each Guaranteeing Subsidiary in this Supplemental Indenture shall bind its Successors, except as otherwise provided in Section 2(k) hereof or elsewhere in this Supplemental Indenture. All agreements of the Trustee in this Supplemental Indenture shall bind its successors.


IN WITNESS WHEREOF, the parties hereto have caused this Supplemental Indenture to be duly executed, all as of the date first above written.

 

CBS RADIO, INC.
By:  

/s/ Andrew P. Sutor, IV

  Name: Andrew P. Sutor, IV
  Title: Executive Vice President
ENTERCOM RADIO, LLC
By:  

/s/ Andrew P. Sutor, IV

  Name: Andrew P. Sutor, IV
  Title: Executive Vice President
ENTERCOM AUSTIN, LLC
By:  

/s/ Andrew P. Sutor, IV

  Name: Andrew P. Sutor, IV
  Title: Executive Vice President
ENTERCOM BOSTON, LLC
By:  

/s/ Andrew P. Sutor, IV

  Name: Andrew P. Sutor, IV
  Title: Executive Vice President
ENTERCOM CALIFORNIA, LLC
By:  

/s/ Andrew P. Sutor, IV

  Name: Andrew P. Sutor, IV
  Title: Executive Vice President
ENTERCOM DENVER, LLC
By:  

/s/ Andrew P. Sutor, IV

  Name: Andrew P. Sutor, IV
  Title: Executive Vice President
ENTERCOM GAINESVILLE, LLC
By:  

/s/ Andrew P. Sutor, IV

  Name: Andrew P. Sutor, IV
  Title: Executive Vice President

[Signature Page to the First Supplemental Indenture]


ENTERCOM NORTH CAROLINA, LLC
By:  

/s/ Andrew P. Sutor, IV

  Name: Andrew P. Sutor, IV
  Title: Executive Vice President
ENTERCOM GREENVILLE, LLC
By:  

/s/ Andrew P. Sutor, IV

  Name: Andrew P. Sutor, IV
  Title: Executive Vice President
ENTERCOM INDIANAPOLIS, LLC
By:  

/s/ Andrew P. Sutor, IV

  Name: Andrew P. Sutor, IV
  Title: Executive Vice President
ENTERCOM KANSAS CITY, LLC
By:  

/s/ Andrew P. Sutor, IV

  Name: Andrew P. Sutor, IV
  Title: Executive Vice President
ENTERCOM MADISON, LLC
By:  

/s/ Andrew P. Sutor, IV

  Name: Andrew P. Sutor, IV
  Title: Executive Vice President
ENTERCOM TENNESSEE, LLC
By:  

/s/ Andrew P. Sutor, IV

  Name: Andrew P. Sutor, IV
  Title: Executive Vice President
ENTERCOM MILWAUKEE, LLC
By:  

/s/ Andrew P. Sutor, IV

  Name: Andrew P. Sutor, IV
  Title: Executive Vice President

[Signature Page to the First Supplemental Indenture]


ENTERCOM NEW ORLEANS, LLC
By:  

/s/ Andrew P. Sutor, IV

  Name: Andrew P. Sutor, IV
  Title: Executive Vice President
ENTERCOM NEW ORLEANS LICENSE, LLC
By:  

/s/ Andrew P. Sutor, IV

  Name: Andrew P. Sutor, IV
  Title: Executive Vice President
ENTERCOM BUFFALO, LLC
By:  

/s/ Andrew P. Sutor, IV

  Name: Andrew P. Sutor, IV
  Title: Executive Vice President
ENTERCOM BUFFALO LICENSE, LLC
By:  

/s/ Andrew P. Sutor, IV

  Name: Andrew P. Sutor, IV
  Title: Executive Vice President
ENTERCOM ROCHESTER, LLC
By:  

/s/ Andrew P. Sutor, IV

  Name: Andrew P. Sutor, IV
  Title: Executive Vice President
ENTERCOM ROCHESTER LICENSE, LLC
By:  

/s/ Andrew P. Sutor, IV

  Name: Andrew P. Sutor, IV
  Title: Executive Vice President
ENTERCOM VIRGINIA, LLC
By:  

/s/ Andrew P. Sutor, IV

  Name: Andrew P. Sutor, IV
  Title: Executive Vice President

[Signature Page to the First Supplemental Indenture]


ENTERCOM PORTLAND, LLC

By:  

/s/ Andrew P. Sutor, IV

 

Name: Andrew P. Sutor, IV

 

Title: Executive Vice President

ENTERCOM PROVIDENCE, LLC

By:  

/s/ Andrew P. Sutor, IV

 

Name: Andrew P. Sutor, IV

 

Title: Executive Vice President

ENTERCOM SEATTLE, LLC
By:  

/s/ Andrew P. Sutor, IV

 

Name: Andrew P. Sutor, IV

 

Title: Executive Vice President

ENTERCOM SPRINGFIELD, LLC
By:  

/s/ Andrew P. Sutor, IV

 

Name: Andrew P. Sutor, IV

 

Title: Executive Vice President

ENTERCOM WICHITA, LLC
By:  

/s/ Andrew P. Sutor, IV

 

Name: Andrew P. Sutor, IV

 

Title: Executive Vice President

ENTERCOM WILKES-BARRE SCRANTON, LLC
By:  

/s/ Andrew P. Sutor, IV

 

Name: Andrew P. Sutor, IV

 

Title: Executive Vice President

ENTERCOM ABE HOLDINGS, LLC
By:  

/s/ Andrew P. Sutor, IV

 

Name: Andrew P. Sutor, IV

 

Title: Executive Vice President

[Signature Page to the First Supplemental Indenture]


ENTERCOM MIAMI, LLC
By:  

/s/ Andrew P. Sutor, IV

  Name: Andrew P. Sutor, IV
  Title: Executive Vice President
ENTERCOM MIAMI LICENSE, LLC
By:  

/s/ Andrew P. Sutor, IV

  Name: Andrew P. Sutor, IV
  Title: Executive Vice President
ENTERCOM ATLANTA, LLC
By:  

/s/ Andrew P. Sutor, IV

  Name: Andrew P. Sutor, IV
  Title: Executive Vice President
ENTERCOM ATLANTA LICENSE, LLC
By:  

/s/ Andrew P. Sutor, IV

  Name: Andrew P. Sutor, IV
  Title: Executive Vice President
ENTERCOM SAN DIEGO, LLC
By:  

/s/ Andrew P. Sutor, IV

  Name: Andrew P. Sutor, IV
  Title: Executive Vice President
ENTERCOM SAN DIEGO LICENSE, LLC
By:  

/s/ Andrew P. Sutor, IV

  Name: Andrew P. Sutor, IV
  Title: Executive Vice President
ENTERCOM DENVER II, LLC
By:  

/s/ Andrew P. Sutor, IV

  Name: Andrew P. Sutor, IV
  Title: Executive Vice President

[Signature Page to the First Supplemental Indenture]


ENTERCOM DENVER II LICENSE, LLC

By:  

/s/ Andrew P. Sutor, IV

 

Name: Andrew P. Sutor, IV

 

Title: Executive Vice President

DELAWARE EQUIPMENT HOLDINGS, LLC
By:  

/s/ Andrew P. Sutor, IV

 

Name: Andrew P. Sutor, IV

 

Title: Executive Vice President

ENTERCOM PROPERTIES, LLC
By:  

/s/ Andrew P. Sutor, IV

 

Name: Andrew P. Sutor, IV

 

Title: Executive Vice President

SMARTREACH DIGITAL, LLC
By:  

/s/ Andrew P. Sutor, IV

 

Name: Andrew P. Sutor, IV

 

Title: Executive Vice President

ENTERCOM LICENSE, LLC
By:  

/s/ Andrew P. Sutor, IV

 

Name: Andrew P. Sutor, IV

 

Title: Executive Vice President

ENTERCOM NEW YORK CITY, LLC
By:  

/s/ Andrew P. Sutor, IV

 

Name: Andrew P. Sutor, IV

 

Title: Executive Vice President

ENTERCOM NEW YORK, INC.
By:  

/s/ Andrew P. Sutor, IV

 

Name: Andrew P. Sutor, IV

 

Title: Executive Vice President

[Signature Page to the First Supplemental Indenture]


DEUTSCHE BANK TRUST COMPANY
AMERICAS, as Trustee
By:  

/s/ Kathryn Fischer

  Name: Kathryn Fischer
  Title: Assistant Vice President
By:  

/s/ Irina Golovashchuk

  Name: Irina Golovashchuk
  Title: Vice President

[Signature Page to the First Supplemental Indenture]

Exhibit 10.3

FIRST AMENDMENT TO AMENDED

AND RESTATED EMPLOYMENT AGREEMENT

This First Amendment (this “ Amendment ”) is entered into as of November 16, 2017, between Entercom Communications Corp., a Pennsylvania corporation (the “ Company ”), and David J. Field (“ Executive ”) in order to amend as follows that certain Amended and Restated Employment Agreement, effective as of April 22, 2016, between the Company and Executive (the “ Employment Agreement ”).

WHEREAS, the Company and Executive are parties to the Employment Agreement;

WHEREAS, the parties agree to amend the Employment Agreement to extend the term and alter certain compensation terms thereof, provided that such amendments shall be contingent on and effective as of the closing of the Company’s transaction with CBS Radio, Inc. (the “ Closing Date ”);

NOW THEREFORE, in consideration of the mutual covenants set forth below, the receipt and sufficiency of which are hereby acknowledged, the parties agree to amend the Employment Agreement as follows:

1.     Term . Section 3 of the Employment Agreement is hereby amended in its entirety to read as follows:

“3.     Term . Unless terminated earlier as provided in this Agreement, the term of this Agreement shall commence on the Effective Date and shall terminate and expire on the fourth anniversary of Closing Date (the “ Initial Term ”), provided that the Initial Term shall automatically renew for additional twelve (12) month periods from year to year thereafter, unless either party gives at least one hundred twenty (120) days’ prior written notice of its election to either terminate or to renegotiate the terms of this Agreement at the end of the Initial Term or any then current renewal term (the Initial Term and any subsequent renewal terms, collectively the “ Employment Term ”) .”

2.     Compensation .

2.1.    Section 4.2 of the Employment Agreement is hereby amended in its entirety to read as follows:

“4.2.    Effective on the Company’s next full payroll cycle following the Closing Date, an annual salary in the amount of one million two hundred thousand dollars ($1,200,000) to be paid consistent with the standard payroll practices of Employer in place from time-to-time (the “ Base Compensation ”). Beginning on the first anniversary of the Closing Date and each anniversary thereafter during the Employment Term, Executive’s Base Compensation shall be automatically increased by three percent (3%).”

2.2.    Section 4.3 of the Employment Agreement is hereby amended in its entirety to read as follows:

 

1


“4.3 Executive shall have the opportunity to earn an annual performance bonus (the “ Annual Bonu s”) to be determined by the Compensation Committee of the Board (the “ Compensation Committee ”) to be based on criteria to be established by the Compensation Committee in its discretion. For any fiscal year of the Company, Executive’s target bonus amount under this Section 4.3 shall be two hundred percent (200%) of the Base Compensation for each such fiscal year; provided, however, that the Compensation Committee shall determine the actual bonus amount to be paid for each such fiscal year based on the Company’s and Executive’s performance. Such Annual Bonus shall be payable as soon as reasonably practicable following, and in no event later than two and one-half (2  1 2 ) months following, the end of the fiscal year for which such Annual Bonus is earned.”

3.     Equity Compensation . Section 5 of the Employment Agreement is hereby amended to add a new Section 5.3, which shall provide as follows in its entirety:

“5.3.    Notwithstanding anything in this Section 5 or in this Agreement to the contrary, following the Closing Date, Executive will be eligible to receive annual equity grants as may be determined by the Compensation Committee in its sole discretion based on the Company’s and Executive performance.”

4.     No Other Changes to the Employment Agreement . Except as expressly amended by this Amendment, all of the terms of the Employment Agreement shall remain in full force and effect.

IN WITNESS WHEREOF, the parties have entered into this Amendment as of the date first set forth above.

 

/s/ David J. Field

David J. Field
Date: November 16, 2017
Entercom Communications Corp.

/s/ Andrew P. Sutor, IV

Andrew P. Sutor, IV
Executive Vice President, General Counsel
Date: November 16, 2017

 

2

Exhibit 99.1

 

LOGO

ENTERCOM COMPLETES MERGER WITH CBS RADIO

Creates a Leading, Integrated Media and Entertainment Company and One

of America’s Top Two Radio Broadcasters

 

 

BALA CYNWYD, PA – November  17, 2017 Entercom Communications Corp. (“Entercom”) (NYSE: ETM) today announced that it has completed its merger with CBS Radio Inc. (“CBS Radio”), creating a leading American media and entertainment company and one of the top two radio broadcasters in the country. Entercom is now the #1 creator of live, original, local audio content in the United States and the nation’s unrivaled leader in news and sports radio. With a nationwide footprint of 235 stations, Entercom will engage over 100 million people weekly with a premier collection of highly-rated, award-winning radio stations, digital platforms and live events.

“We are thrilled to officially close our transformational merger with CBS Radio and welcome their talented employees and iconic brands to Entercom,” said David Field, Entercom’s President and Chief Executive Officer. “We look forward to capitalizing on our unique positions in sports, news, music, podcasting, live events, digital and more to provide outstanding experiences for our listeners and compelling integrated marketing opportunities for our advertisers. We now have the scale and capabilities to drive meaningful growth and to compete more effectively with other media for a larger share of advertising dollars. We also look forward to helping to elevate the Radio industry, which remains massively undervalued by advertisers despite having emerged as America’s #1 Reach medium, delivering outstanding ROI to customers.”

About Entercom Communications Corp.

Entercom Communications Corp. (NYSE: ETM) is a leading American media and entertainment company reaching and engaging over 100 million people each week through its premier collection of highly rated, award winning radio stations, digital platforms and live events. As one of the country’s two largest radio broadcasters, Entercom offers integrated marketing solutions and delivers the power of local connection on a national scale with coverage of close to 90% of persons 12+ in the top 50 markets. Entercom is the #1 creator of live, original, local audio content and the nation’s unrivaled leader in news and sports radio. Learn more about Philadelphia-based Entercom at www.Entercom.com , Facebook and Twitter (@Entercom).

Forward-Looking Statements

This communication contains “forward-looking statements.” All statements other than statements of historical fact contained in this report are forward-looking statements within the meaning of Section 27A of the United States Securities Act of 1933, as amended (the “Securities Act”), and Section 21E of the United States Securities Exchange Act of 1934, as amended (the “Exchange Act”). Forward-looking statements usually relate to future events and anticipated revenues, earnings, cash flows or other aspects of our operations or operating results. Forward-looking statements are often identified by the words “believe,” “expect,” “anticipate,” “plan,” “intend,” “foresee,” “should,” “projects,” “would,” “will,” “could,” “may,”


“estimate,” “outlook” and similar expressions, including the negative thereof. The absence of these words, however, does not mean that the statements are not forward-looking. These forward-looking statements are based on our current expectations, beliefs and assumptions concerning future developments and business conditions and their potential effect on us. While management believes that these forward-looking statements are reasonable as and when made, there can be no assurance that future developments affecting us will be those that we anticipate.

Factors that could cause actual results to differ materially from those in the forward-looking statements include, among others, risks associated with tax liabilities, or changes in U.S. federal tax laws or interpretations to which they are subject; risks that the new businesses will not be integrated successfully or that the combined companies will not realize estimated cost savings, value of certain tax assets, synergies and growth or that such benefits may take longer to realize than expected; failure to realize anticipated benefits of the combined operations; risks relating to unanticipated costs of integration; the impact of consummation of the transaction on relationships with third parties, including advertiser clients, employees and competitors; a decline in advertising revenue and the seasonality of advertising revenue; intense competition in the broadcast radio and media distribution industries; impact on advertising rates and revenues due to technological changes and failure to timely or appropriately respond to such changes; ability to attract new and retain existing advertiser clients in the manner anticipated; increases in or new royalties; high fixed costs; ability to hire and retain key personnel; failure to protect our intellectual property; availability of sources of funding on favorable terms or at all; changes in legislation or governmental regulations affecting the companies; economic, social or political conditions that could adversely affect the companies or their advertiser clients; conditions in the credit markets; and risks associated with assumptions the parties make in connection with the parties’ critical accounting estimates and legal proceedings.

All of our forward-looking statements involve risks and uncertainties (some of which are significant or beyond our control) and assumptions that could cause actual results to differ materially from our historical experience and our present expectations or projections. You should carefully consider the foregoing factors and the other risks and uncertainties that affect the parties’ businesses, including those described in the Annual Reports on Form 10-K, Quarterly Reports on Form 10-Q, Current Reports on Form 8-K and other documents filed from time to time with the U.S. Securities and Exchange Commission (the “SEC”) by Entercom Communications Corp. (“Entercom”), CBS Corporation (“CBS”) (to the extent they relate to CBS Radio Inc. (“CBS Radio”) and its relevant subsidiaries) and CBS Radio. We wish to caution you not to place undue reliance on any forward-looking statements, which speak only as of the date hereof. We undertake no obligation to publicly update or revise any of our forward-looking statements after the date they are made, whether as a result of new information, future events or otherwise, except to the extent required by law.

# # #

CONTACT:

Esther-Mireya Tejeda

610.822.0861

Esther-Mireya.Tejeda@entercom.com

@EntercomPR