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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): December 23, 1999
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ENTERCOM COMMUNICATIONS CORP.
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(Exact name of registrant as specified in its charter)
PENNSYLVANIA 001-14461 23-1701044
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(State or Other (Commission (IRS Employer
Jurisdiction of File Number) Identification No.)
Incorporation)
401 CITY AVENUE, SUITE 409, BALA CYNWYD, PENNSYLVANIA 19004
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(Address of Principal Executive Offices) (Zip Code)
REGISTRANT'S TELEPHONE NUMBER, INCLUDING AREA CODE: (610) 660-5610
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(Former Name or Former Address, if Changed Since Last Report)
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ITEM 2. ACQUISITION OF ASSETS.
On December 16, 1999, Entercom Communications Corp., a Pennsylvania
corporation (the "Company" or "Entercom") announced the completion of its
previously announced acquisition of 41 of 46 radio stations from Sinclair
Broadcast Group, Inc. for $700.4 million (the "Sinclair Acquisition"). As part
of this acquisition, Entercom has entered into a time brokerage agreement for
one station in Wilkes-Barre, PA, WKRF-FM, pending FCC approval of the
acquisition of WKRF-FM. Entercom has a separate agreement to purchase four
stations in Kansas City from Sinclair Broadcast Group, Inc., which Entercom
expects to complete in the first half of 2000. Entercom has previously announced
its intent to divest three stations in the Kansas City market to meet regulatory
requirements.
The purchase price paid by the Company was determined through arm's
length negotiations between unrelated parties and was financed through a
combination of proceeds from the sale of 8,000,000 million shares of Class A
Common Stock, 6 1/4% Convertible Preferred Securities and borrowings under the
Company's new credit facility. The sale of Class A Common Stock and the 6-1/4%
Convertible Preferred Securities was consummated on October 6, 1999, and the net
proceeds of $396.4 million were used to repay all amounts outstanding under the
Company's existing credit facility, with the balance invested in short term,
interest bearing securities. On December 16, 1999, Entercom Radio, LLC, a wholly
owned subsidiary of the Company entered into a new senior credit agreement with
a syndicate of banks, including Bank of America, N.A. and Key Corporate Capital
Inc., in the committed amount of $650.0 million, of which $468.5 million was
drawn to fund the Sinclair Acquisition. As a result of the replacement of its
prior credit facility, the Company plans to take an extraordinary charge of
approximately $0.9 million (net of taxes) in the current quarter to account for
the write off of deferred bank financing fees related to the Company's prior
credit facility. The Company's new revolving credit facility is filed herewith
as Exhibit 10.1.
The Company's press release related to this transaction is filed
herewith as Exhibit 99.1.
ITEM 7. FINANCIAL STATEMENTS, PRO FORMA FINANCIAL INFORMATION AND EXHIBITS.
(a) Financial Statements of Stations Acquired.
Financial Statements for the Sinclair Broadcast Group, Inc.
and Subsidiaries - Radio Division for the periods specified in Rule 3-05(b) of
Regulation S-X have been previously filed with the Securities and Exchange
Commission (the "SEC") as part of the Company's Registration Statements on
Forms S-1 (File No. 333-86397 and File No. 333-86843) and are incorporated by
reference herein.
(b) Pro Forma information required pursuant to Article 11 of Regulation
S-X has been previously filed with the SEC as part of the Company's Registration
Statements on Forms S-1 (File No. 333-86397 and File No. 333-86843) and is
incorporated by reference herein.
(c) Exhibits.
10.1 Credit Agreement dated December 16, 1999, by and
among Entercom Radio, LLC, as the Borrower, Entercom
Communications Corp., as a Guarantor, Banc of America
Securities LLC, as Sole Lead Arranger and Book
Manager, Key Corporate Capital Inc., as
Administrative Agent and Co-Documentation Agent, Bank
of America, N.A., as Syndication Agent, and
Co-Documentation Agent and the Financial Institutions
listed therein.(1)
10.08 Amended and Restated Asset Purchase Agreement, dated
as of August 20, 1999, among Entercom, Sinclair
Communications, Inc., WCGV, Inc., Sinclair Radio of
Milwaukee Licensee, LLC, Sinclair Radio of New
Orleans Licensee, LLC, Sinclair Radio of Memphis,
Inc., Sinclair Radio of Memphis Licensee, Inc.,
Sinclair Properties, LLC, Sinclair Radio of
Norfolk/Greensboro Licensee, L.P., Sinclair Radio of
Buffalo, Inc., Sinclair Radio of Buffalo Licensee,
LLC, WLFL, Inc., Sinclair Radio of Greenville
Licensee, Inc., Sinclair Radio of Wilkes-Barre, Inc.
and Sinclair Radio of Wilkes-Barre Licensee, LLC.*
23.03 Consent of Arthur Anderson LLP, Baltimore, MD.(1)
99.1 Press Release.(1)
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* Previously filed.
(1) Filed herewith.
1
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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.
Date: December 23, 1999 By: /s/ David J. Field
----------------------------------------
David J. Field, President and
Chief Operating Officer
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EXHIBIT 10.1
EXECUTION COPY
CREDIT AGREEMENT
by and among
ENTERCOM RADIO, LLC,
as the Borrower,
ENTERCOM COMMUNICATIONS CORP.,
as a Guarantor,
BANC OF AMERICA SECURITIES LLC,
as Sole Lead Arranger and Book Manager,
KEY CORPORATE CAPITAL INC.,
as Administrative Agent and Co-Documentation Agent,
BANK OF AMERICA, N.A.,
as Syndication Agent and Co-Documentation Agent,
and
THE FINANCIAL INSTITUTIONS LISTED HEREIN
AS OF DECEMBER 16, 1999
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SECTION 1 DEFINITIONS................................................................................1
1.1 Definitions...........................................................................1
1.2 Other Terms..........................................................................16
1.3 Accounting Provisions................................................................17
SECTION 2 THE LOANS.................................................................................17
2.1 The Revolving Commitment and the Revolving Loans.....................................17
2.2 The Term Commitment and the Term Loans...............................................18
2.3 Letters of Credit....................................................................20
2.4 Making and Continuation/Conversion of the Loans......................................24
2.5 The Notes............................................................................25
2.6 Fees.................................................................................26
2.7 Prepayment...........................................................................27
2.8 Reserves or Deposit Requirements, Etc................................................30
2.9 Tax Law, Increased Costs, Etc........................................................30
2.10 Eurodollar Deposits Unavailable or Interest Rate Unascertainable.....................31
2.11 Changes in Law Rendering LIBOR Loans Unlawful........................................31
2.12 Funding..............................................................................31
2.13 Indemnity............................................................................31
2.14 Capital Adequacy.....................................................................32
2.15 Taxes................................................................................32
2.16 Incremental Commitment...............................................................33
2.17 Right to Remove Affected Lender......................................................34
SECTION 3 INTEREST; PAYMENTS.........................................................................34
3.1 Interest.............................................................................34
3.2 Manner of Payments...................................................................36
SECTION 4 CLOSING....................................................................................36
SECTION 5 REPRESENTATIONS AND WARRANTIES.............................................................36
5.1 Organization and Powers..............................................................37
5.2 Authorization........................................................................37
5.3 Financial Statements.................................................................38
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5.4 Projections..........................................................................38
5.5 Capitalization of the Loan Parties...................................................38
5.6 Title to Properties; Patents, Trademarks, Etc........................................39
5.7 Litigation; Proceedings..............................................................39
5.8 Taxes................................................................................39
5.9 Absence of Conflicts.................................................................40
5.10 Indebtedness.........................................................................40
5.11 Compliance...........................................................................40
5.12 Statements Not Misleading............................................................41
5.13 Consents or Approvals................................................................41
5.14 Material Contracts and Commitments...................................................41
5.15 Employee Benefit Plans...............................................................42
5.16 Licenses and Operating Agreements....................................................42
5.17 Material Restrictions................................................................43
5.18 Investment Company Act...............................................................43
5.19 Absence of Material Adverse Effect...................................................43
5.20 Defaults.............................................................................43
5.21 Real Estate..........................................................................43
5.22 Securities Laws......................................................................43
5.23 Insurance............................................................................43
5.24 Labor Matters........................................................................43
5.25 Environmental Compliance.............................................................44
5.26 Solvency.............................................................................45
5.27 License Subsidiaries.................................................................46
5.28 Sinclair Purchase Agreements, TIDES Indenture and TIDES Prospectus...................46
5.29 The Parent...........................................................................47
5.30 Year 2000............................................................................47
SECTION 6 CONDITIONS PRECEDENT TO OBLIGATIONS OF THE LENDERS.........................................47
6.1 Compliance...........................................................................48
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6.2 Security Agreements..................................................................48
6.3 Pledge Agreements....................................................................48
6.4 Financing Statements.................................................................49
6.5 Guaranties...........................................................................49
6.6 Opinion of Borrower's Counsel........................................................49
6.7 Consummation of Drop Down............................................................50
6.8 Consummation of Acquisition Agreements...............................................50
6.9 Financial Information................................................................51
6.10 Borrowing Request....................................................................52
6.11 Insurance Certificates...............................................................52
6.12 Organizational Documents.............................................................52
6.13 Lien Searches, Consents and Releases of Liens........................................52
6.14 No Order, Judgment or Decree.........................................................52
6.15 No Material Adverse Effect...........................................................53
6.16 Fee Letters..........................................................................53
6.17 Legal Approval.......................................................................53
6.18 Year 2000 Compliance Certificate.....................................................53
6.19 Other Documents......................................................................53
SECTION 7 AFFIRMATIVE COVENANTS......................................................................53
7.1 Use of Proceeds......................................................................53
7.2 Continued Existence; Maintenance of Rights and Licenses; Compliance with Law.........53
7.3 Insurance............................................................................54
7.4 Obligations and Taxes................................................................54
7.5 Financial Statements and Reports.....................................................55
7.6 Notices..............................................................................57
7.7 Maintenance of Property..............................................................58
7.8 Information and Inspection...........................................................58
7.9 Maintenance of Liens.................................................................58
7.10 Title To Property....................................................................59
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7.11 Environmental Compliance and Indemnity...............................................59
7.12 Rate Hedging Obligations.............................................................60
7.13 FCC Consents.........................................................................60
7.14 Covenants Regarding Formation of Subsidiaries and the Making of Investments
and Acquisitions.....................................................................61
7.15 Year 2000............................................................................61
7.16 Sinclair Purchase Agreements.........................................................62
7.17 FCC Licenses for Rochester Stations..................................................62
SECTION 8 NEGATIVE COVENANTS.........................................................................62
8.1 Indebtedness.........................................................................62
8.2 Liens................................................................................63
8.3 Guaranties...........................................................................63
8.4 Rental and Conditional Sale Obligations..............................................64
8.5 Real Property Interests..............................................................64
8.6 Capitalized Lease Obligations........................................................64
8.7 Subordinated Debt....................................................................64
8.8 Notes, Accounts Receivable and Claims................................................65
8.9 Capital Distributions................................................................65
8.10 Disposal of Property; Mergers; Acquisitions; Reorganizations.........................66
8.11 Investments..........................................................................68
8.12 Amendment of Governing Documents.....................................................69
8.13 Financial Covenants..................................................................70
8.14 Management Agreements and Fees.......................................................71
8.15 Fiscal Year..........................................................................71
8.16 ERISA................................................................................71
8.17 Affiliates...........................................................................71
8.18 Change of Name, Identity or Structure................................................72
8.19 Amendments or Waivers................................................................72
8.20 Issuance or Transfer of Capital Stock................................................72
8.21 Change in, and Conduct of, Business..................................................72
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8.22 Regulation U.........................................................................73
8.23 License Subsidiaries.................................................................73
SECTION 9 EVENTS OF DEFAULT..........................................................................73
9.1 Non-Payment..........................................................................73
9.2 Failure of Performance in Respect of Other Obligations...............................73
9.3 Breach of Warranty...................................................................73
9.4 Cross-Defaults.......................................................................74
9.5 Assignment for Benefit of Creditors..................................................74
9.6 Bankruptcy...........................................................................74
9.7 Appointment of Receiver; Liquidation.................................................74
9.8 Judgments............................................................................74
9.9 Impairment of Collateral; Invalidation of any Loan Document..........................74
9.10 Termination of License or Operating Agreement........................................75
9.11 Change of Control....................................................................75
9.12 Condemnation.........................................................................76
9.13 Cessation of Operations..............................................................76
9.14 Subordination........................................................................76
9.15 Material Adverse Effect..............................................................77
SECTION 10 REMEDIES..................................................................................77
10.1 Optional Defaults...................................................................77
10.2 Automatic Defaults..................................................................77
10.3 Performance by the Lenders..........................................................78
10.4 Other Remedies......................................................................78
10.5 Enforcement and Waiver by the Lenders...............................................78
SECTION 11 GUARANTY BY THE PARENT....................................................................78
11.1 Guarantee...........................................................................78
11.2 Extension or Renewal of Guaranteed Obligations; Waiver..............................79
11.3 Nature of Guaranty:Continuing, Absolute and Unconditional...........................79
11.4 No Discharge or Diminishment of Guaranty............................................80
11.5 Miscellaneous.......................................................................81
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SECTION 12 THE AGENTS................................................................................82
12.1 Appointment.........................................................................82
12.2 Powers..............................................................................82
12.3 General Immunity....................................................................82
12.4 Action on Instructions of the Lenders...............................................83
12.5 Employment of Agents and Counsel....................................................83
12.6 Reliance on Documents; Counsel......................................................83
12.7 Administrative Agent's Reimbursement and Indemnification............................83
12.8 Rights as a Lender..................................................................84
12.9 Lender Credit Decision..............................................................84
12.10 Successor Administrative Agent......................................................84
12.11 Ratable Sharing.....................................................................85
12.12 Actions by the Administrative Agent and the Lenders.................................85
SECTION 13 MISCELLANEOUS.............................................................................86
13.1 Construction........................................................................86
13.2 Further Assurance...................................................................86
13.3 Expenses of the Administrative Agent and the Lenders; Indemnification...............86
13.4 Notices.............................................................................87
13.5 Waiver and Release by the Parent and the Borrower...................................89
13.6 Right of Set Off....................................................................89
13.7 Successors and Assigns; Participations..............................................89
13.8 Applicable Law......................................................................91
13.9 Binding Effect and Entire Agreement.................................................91
13.10 Counterparts........................................................................91
13.11 Survival of Agreements..............................................................91
13.12 Modification........................................................................92
13.13 Separability........................................................................92
13.14 Section Headings....................................................................92
13.15 Enforcement.........................................................................92
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13.16 Termination.........................................................................93
13.17 FCC Compliance......................................................................93
13.18 Jury Trial Waiver...................................................................94
13.19 Sale as a Going Concern.............................................................95
13.20 Marshaling; Payments Set Aside......................................................95
13.21 Confidentiality.....................................................................96
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CREDIT AGREEMENT
THIS CREDIT AGREEMENT is made and entered into as of December 16, 1999,
by and among ENTERCOM RADIO, LLC, a Delaware limited liability company (the
"Borrower"), ENTERCOM COMMUNICATIONS CORP., a Pennsylvania corporation (the
"Parent"), the LENDERS (as that term is defined below), KEY CORPORATE CAPITAL
INC., as Administrative Agent and Co-Documentation Agent, and BANK OF AMERICA
N.A., as Syndication Agent and Co-Documentation Agent.
R E C I T A L S:
The Borrower desires to borrow from the Lenders up to $650,000,000
(subject to increase under certain circumstances up to $1,000,000,000), the
proceeds of which will be used to refinance amounts outstanding under the Loan
Agreement dated as of February 13, 1998, as amended (the "Original Loan
Agreement"), among the Parent, Key Corporate Capital Inc., as Administrative
Agent, Bank of America National Trust and Savings Association (now known as Bank
of America, N.A.), as Syndication Agent, and the financial institutions which
are a party thereto, to fund certain acquisitions and for capital expenditures
and working capital purposes in the operations of the Borrower.
A G R E E M E N T S:
Accordingly, the Borrower, the Lenders, the Administrative Agent and
the Syndication Agent agree as follows:
Section 1 DEFINITIONS.
1.1 Definitions. All terms typed with leading capitals are terms
defined in this Agreement. For the purposes of this Agreement, the terms defined
in this Section 1 shall have the meanings set out below.
"Acquisition Agreements" means the Sinclair Purchase Agreements and any
other purchase or exchange agreement pursuant to which the Borrower or any of
its Subsidiaries is to acquire a Station pursuant to a Permitted Acquisition.
"Administrative Agent" means Key Corporate Capital Inc. in its capacity
as Administrative Agent for the Lenders hereunder together with any successor
Administrative Agent hereunder.
"Affiliate" means, with respect to any Person (a) any other Person that
is directly or indirectly controlled by, under common control with or
controlling the first specified Person; (b) a Person owning beneficially or
controlling 10% or more of the equity interest in such other Person; (c) any
officer, director or partner of such other Person; or (d) any spouse or relative
(by blood, adoption or marriage) of any such individual Person. The term
"control" means possession, directly or indirectly, of the power to direct or
cause the direction of the management
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and policies of a Person whether through the ownership of voting securities,
capital stock, membership interests, partnership interests, by contract or
otherwise.
"Agents" means the Administrative Agent and the Syndication Agent.
"Applicable Margin" means, as of any date of determination, the
percentage determined from the following table based upon the Leverage Ratio:
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Leverage Ratio: Applicable Margin for Base Applicable Margin for
Rate Loans: LIBOR Loans:
<S> <C> <C>
Greater than 6.50:1.0: 1.125% 2.375%
Greater than 6.00:1.0 but less 0.750% 2.000%
than or equal to 6.50:1.0:
Greater than 5.50:1.0 but less 0.375% 1.625%
than or equal to 6.00:1.0:
Greater than 5.00:1.0 but less 0.250% 1.500%
than or equal to 5.50:1.0:
Greater than 4.50:1.0 but less 0.000% 1.250%
than or equal to 5.00:1.0:
Greater than 4.00:1.0 but less 0.000% 1.125%
than or equal to 4:50:1.0:
Greater than 3.50:1.0 but less 0.000% 0.875%
than or equal to 4.00:1.0:
Less than or equal to 3.50:1.0: 0.000% 0.750%
</TABLE>
provided, however, that for the first six months after the Closing Date, for
purposes solely of calculating the Applicable Margin, the Leverage Ratio shall
be deemed to be the higher of (i) 6.0 to 1.0 and (ii) the actual Leverage Ratio
as calculated in accordance with the definition of that term.
"Asset Sale" means the sale, exchange, transfer or other disposition by
any Loan Party to any Person of any of the stock, partnership interests,
membership interests or other equity interests of any Subsidiary of the Person
making such disposition or any other assets of any Loan Party, other than (a)
the sale, exchange, transfer or other disposition of assets in one transaction
or a series of transactions with an aggregate value which does not exceed in any
fiscal year an amount whether in cash or property equal to $10,000,000; (b) the
sale in the ordinary course of business of assets held for resale in the
ordinary course of business or the trade in or replacement of assets in the
ordinary course of business; and (c) the sale, exchange, transfer or other
disposition from the Borrower to a wholly owned Subsidiary or from a wholly
owned Subsidiary to the Borrower or another wholly owned Subsidiary.
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"Banking Day" means a day on which (i) the main office of the
Administrative Agent is open to the public for the transaction of business, (ii)
banks are authorized by law to be open in the City of New York, and (iii) with
respect to any LIBOR Loan, banks are open for business in London, England, and
quoting deposit rates for dollar deposits.
"Base Rate" means the higher of (a) the rate of interest determined and
publicly announced by KeyBank from time to time as its prime rate at its main
office in Cleveland, Ohio, and (b) the sum of the Federal Funds Rate and 0.50%
per annum. The prime rate functions as a reference rate index, and KeyBank may
charge borrowers more or less than the prime rate. Any change in the Base Rate
due to a change in the prime rate or the Federal Funds Rate shall be effective
from and including the effective date of such change in the prime rate or the
Federal Funds Rate, respectively.
"Base Rate Loans" means those Loans described in Sections 2.1 and 2.2
on which the Borrower shall pay interest at a rate based on the Base Rate.
"Benefit Arrangement" means any pension, profit-sharing, thrift, or
other retirement plan, medical, hospitalization, vision, dental, life,
disability or other insurance or benefit plan, deferred compensation, stock
ownership, stock purchase, stock option, performance share, bonus, fringe
benefit, savings or other incentive plan, severance plan or other similar plan,
agreement, arrangement or understanding, to which the Borrower or any member of
the Controlled Group is, or in the preceding six years was, required to
contribute on behalf of its employees or directors, whether or not such plan,
agreement, arrangement or understanding is subject to ERISA.
"Borrower Pledge Agreement" has the meaning assigned to it in Section
6.3(b).
"Borrower Security Agreement" has the meaning assigned to it in Section
6.2(b).
"Capital Distribution" means any dividend, payment or distribution
made, liability incurred or other consideration given for the purchase,
acquisition, redemption or retirement of any stock, membership interest,
partnership interest or other equity interest of the Borrower or any of its
Subsidiaries or as a dividend, return of capital or other payment or
distribution of any kind to a shareholder, member or partner of the Borrower or
any of its Subsidiaries in respect of the Borrower's or such Subsidiary's stock,
membership interests or partnership interests.
"Capital Expenditures" means any payments by a Person for or in
connection with the rental, lease, purchase, construction or use of any real or
personal property the value or cost of which, under GAAP, should be capitalized
and appear on such Person's balance sheets in the category of property, plant or
equipment, without regard to the manner in which such payments or the instrument
pursuant to which they are made are characterized by such Person or any other
Person; provided, however, that neither (a) the capitalized portion of the
purchase price payable in connection with a Permitted Acquisition, nor (b)
expenditures of proceeds of casualty insurance policies reasonably and promptly
applied to replace insured assets, nor (c) up to $2,000,000 paid by a Loan Party
pursuant to the Sinclair Purchase Agreements to reimburse Sinclair for the cost
of studio construction in Buffalo shall constitute a Capital Expenditure for
purposes of this Agreement.
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"Capitalized Lease Obligations" means, as to any Person, the
obligations of such Person to pay rent or other amounts under leases of, or
other agreements conveying the right to use real or personal property, which
obligations are required to be classified and accounted for as capital leases on
a balance sheet of such Person, prepared in accordance with GAAP.
"Closing" and "Closing Date" have the meanings assigned to them in
Section 4.
"Code" means the Internal Revenue Code of 1986, as amended, or any
successor statute thereto.
"Collateral Documents" means all Security Agreements, Pledge
Agreements, the Notes, the Subsidiary Guaranty, the Letters of Credit and any
other promissory notes, letters of credit, security agreements, pledge
agreements, agreements, assignments, guaranties, mortgages, financing
statements, certificates and other instruments and documents which are required
by this Agreement or any other Collateral Document to be executed or delivered
by or on behalf of the Parent, the Borrower, any of its Subsidiaries or any
other Person.
"Commitments" means the Revolving Commitment and the Term Commitment.
"Confidential Offering Memorandum" means the Confidential Offering
Memorandum dated October 1999 and furnished to the Lenders.
"Controlled Group" means a controlled group of entities which are
treated as a single employer under Sections 414(b), 414(c) or 414(m) of the Code
of which any Loan Party is a part.
"Default Interest Rate" means, with respect to any Loan, a rate of
interest equal to the sum of the rate of interest otherwise applicable to such
Loan pursuant to Section 3.1 plus 2.00% per annum, and, in the case of any other
Obligation, a rate of interest equal to the sum of the Base Rate, plus the
Applicable Margin for Base Rate Loans then in effect plus 2.00% per annum.
"Drop Down" has the meaning assigned to it in Section 6.7.
"Environmental Claim" means, with respect to any Person, any written or
oral notice, claim, demand, request for information, citation, summons, order or
other communication (each, a "claim") by any other Person alleging or asserting
the liability of the recipient of such claim for investigatory costs, cleanup
costs, governmental response costs, damages to natural resources or other
property or health, personal injuries, fines or penalties arising out of, based
on or resulting from (a) the presence, or Release, of any Hazardous Material at
or from any location, whether or not owned by such Person, or (b) circumstances
forming the basis of any violation, or alleged violation, of any Environmental
Law. The term "Environmental Claim" shall include, without limitation, any claim
by any governmental authority for enforcement, cleanup, removal, response,
remedial or other actions or damages pursuant to any applicable Environmental
Law, and any claim by any third party seeking damages, contribution,
indemnification, cost recovery, compensation or injunctive relief resulting from
the presence or Release of Hazardous Materials or arising from alleged injury or
threat of injury to health, safety or the environment.
"Environmental Laws" means all provisions of law, statutes, ordinances,
rules, regulations, permits, licenses, judgments, writs, injunctions, decrees,
orders, awards and
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standards promulgated by the government of the United States of America or by
any state or municipality thereof or by any court, agency, instrumentality,
regulatory authority or commission of any of the foregoing concerning health,
safety and protection of, or regulation of the emission, release or discharge of
substances into, the environment.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended, and the regulations thereunder.
"ERISA Event" shall mean (a) any "reportable event," as defined in
ERISA Section 4043 or the regulations issued thereunder, with respect to a
Pension Plan; (b) the existence with respect to any Pension Plan of an
"accumulated funding deficiency" (as defined in ERISA Section 302 or Code
Section 412), whether or not waived; (c) the failure to make by its due date a
required installment under Code Section 412(m) with respect to any Pension Plan
or the failure to make any required contribution to any multiemployer plan (as
defined in ERISA Section 4001(a)(3)); (d) the filing, under ERISA Section 303(d)
or Code Section 412(d), of an application for a waiver of the minimum funding
standard with respect to any Pension Plan; (e) the occurrence of any liability
of either the Borrower or a member of the Controlled Group of any liability
under Title IV of ERISA with respect to the termination of any Pension Plan; (f)
the occurrence of any event or condition which could reasonably be expected to
constitute grounds under ERISA for the termination of or the appointment of a
trustee to administer, any Pension Plan; (g) the occurrence of any liability
with respect to the withdrawal or partial withdrawal from any Pension Plan or
multiemployer plan by the Borrower or any member of the Controlled Group; (h)
the making of any amendment to any Pension Plan which could result in the
imposition of any lien or the posting of a bond or other security under ERISA
Section 307 or Code Section 401(a)(29) or otherwise; or (i) the occurrence of a
non-exempt prohibited transaction (within the meaning of ERISA Section 406 or
Code Section 4975) which could result in any liability to the Borrower or any
member of its Controlled Group.
"Event of Default" means any of the events specified in Section 9.
"Excess Cash Flow" for any fiscal year of the Borrower means Operating
Cash Flow for such fiscal year, minus the sum of the following without
duplication: (a) all actual cash principal payments required to be made on the
Revolving Loans as a result of scheduled Revolving Commitment reductions
pursuant to Sections 2.1 and 2.7(b)(i) during such fiscal year and required to
be made on the Term Loans pursuant to Section 2.2(b) during such fiscal year,
plus (b) all principal payments required to be made by the Loan Parties on Total
Debt (other than the Loans) during such fiscal year, plus (c) all Interest
Expense of the Loan Parties incurred during such fiscal year, plus (d) Capital
Expenditures paid or incurred by the Loan Parties during such fiscal year, plus
(e) federal, state and local income taxes (excluding deferred income taxes)
incurred by the Loan Parties during such fiscal year, plus (f) the increase, if
any, in Working Capital as of the end of such fiscal year over Working Capital
as of the end of the prior fiscal year, plus (g) $5,000,000.
"Excluded Foreign Subsidiary" means any Subsidiary of the Borrower not
organized under the laws of any jurisdiction within the United States in respect
of which either (a) the pledge of all of the capital stock or other equity
securities of such Subsidiary as security for the
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<PAGE> 14
Obligations or (b) the guaranteeing by such Subsidiary of the Obligations would,
in the good faith judgment of the Borrower, result in adverse tax consequences
to the Borrower.
"Excluded Licenses" means the FCC Licenses relating to the Stations
located in Wilkes-Barre, Pennsylvania, and, subject to the provisions of Section
7.17, FCC Licenses relating to the Stations in Rochester, New York.
"Existing Letter of Credit" means the Sinclair Letter of Credit, as the
same may be amended, modified, supplemented and replaced from time to time.
"FCC" means the Federal Communications Commission or any governmental
authority at any time substituted therefor.
"Federal Funds Rate" means, for any day, the weighted average (rounded
upwards, if necessary, to the next 1/100 of 1%) of the rates on overnight
Federal funds transactions with members of the Federal Reserve System arranged
by Federal funds brokers, as published on the next succeeding Business Day by
the Federal Reserve Bank of New York, or, if such rate is not so published for
any day that is a Business Day, the average (rounded upwards, if necessary, to
the next 1/100 of 1%) of the quotations for such day for such transactions
received by the Administrative Agent from three Federal funds brokers of
recognized standing selected by it.
"Fee Letters" means collectively the letter agreement dated October 6,
1999, between the Borrower and the Administrative Agent and the letter agreement
dated October 6, 1999, among the Borrower, Banc of America Securities LLC and
Bank of America, N.A.
"Final Order" means an action or order issued by the FCC (a) which has
not been reversed, stayed, enjoined, set aside, annulled or suspended, and (b)
with respect to which (i) no requests or petitions have been filed for
administrative or judicial review, reconsideration, rehearing, appeal or stay,
and the time for filing any such requests or petitions and for the FCC to set
aside the action on its own motion has expired, (ii) in the event of review,
reconsideration or appeal, the time for further review, reconsideration or
appeal has expired, and (iii) no appeal to a court or request for stay by a
court of such action is pending or in effect, and, if any deadline for filing
any such appeal or request is designated by statute or rule, it has passed.
"Fixed Charge Coverage Ratio" means, as of the end of any fiscal
quarter, the ratio of Operating Cash Flow for the four quarter period then ended
to the sum of, without duplication, (a) all Interest Expense (including
quarterly payments incurred in connection with the TIDES Subordinated
Debentures, whether paid or deferred) incurred during such four quarter period,
plus (b) all payments required to be made on the Loans during such four quarter
period pursuant to Sections 2.1(b), 2.2(b) and 2.7(b)(i), plus (c) all principal
payments required to be made by the Loan Parties on Total Debt (other than the
Loans) during such four quarter period, plus (d) Capital Expenditures made by
the Loan Parties during such four quarter period, plus (e) any federal, state or
local income taxes incurred (excluding deferred taxes) by the Loan Parties
during such four quarter period (other than taxes on items of income excluded in
calculating Operating Cash Flow).
"GAAP" means generally accepted accounting principles in effect from
time to time in the United States, consistently applied.
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<PAGE> 15
"Guarantor" means one who pledges its credit or property in any manner,
or otherwise becomes responsible for the payment or other performance of the
indebtedness, contract or other obligation of another Person and includes
(without limitation) any guarantor (whether of payment or of collection),
surety, co-maker, endorser or one who agrees conditionally or otherwise to make
any purchase, loan or investment in order thereby to enable another to prevent
or correct a default of any kind and one who has endorsed (otherwise than for
collection or deposit in the ordinary course of business), or has discounted
with recourse or agreed (contingently or otherwise) to purchase or repurchase or
otherwise acquire or become liable for, any Indebtedness.
"Hazardous Material" means, collectively, (a) any petroleum or
petroleum products, flammable materials, explosives, radioactive materials,
asbestos, urea formaldehyde foam insulation, and transformers or other equipment
that contain polychlorinated biphenyls ("PCBs"), (b) any chemicals or other
materials or substances that are now or hereafter become defined as or included
in the definition of "hazardous substances", "hazardous wastes", "hazardous
materials", "extremely hazardous wastes", "restricted hazardous wastes", "toxic
substances", "toxic pollutants", "contaminants", "pollutants" or words of
similar import under any Environmental Law and (c) any other chemical or other
material or substance, exposure to which is now or hereafter prohibited, limited
or regulated under any Environmental Law.
"Indebtedness" of any Person means, without duplication, all
liabilities, obligations and reserves, contingent or otherwise, which, in
accordance with GAAP, would be reflected as a liability on a balance sheet
(excluding trade accounts payable and accrued expenses arising in the ordinary
course of business), and (without duplication) (a) all obligations of such
Person for borrowed money or with respect to deposits or advances of any kind,
(b) all obligations of such Person evidenced by bonds, debentures, notes or
similar instruments, (c) all obligations of such Person upon which interest
charges are customarily paid, (d) all obligations of such Person under
conditional sale or other title retention agreements relating to assets
purchased by such Person, (e) all obligations of such Person issued or assumed
as the deferred purchase price of property or services, (f) all Indebtedness of
others secured by (or for which the holder of such Indebtedness has an existing
right, contingent or otherwise, to be secured by) any Lien on property owned or
acquired by such Person, whether or not the obligations secured thereby have
been assumed by such Person, (g) all obligations or liabilities in respect of
which such Person is a Guarantor, (h) all Capitalized Lease Obligations of such
Person, (i) all Rate Hedging Obligations of such Person, and (j) all obligations
of such Person as an account party to reimburse any Person in respect of letters
of credit (including the Letters of Credit) or bankers' acceptances. The
Indebtedness of any Person shall include any recourse Indebtedness for which
such Person is liable of any partnership or joint venture in which such Person
is a general partner or joint venturer.
"Indebtedness for Borrowed Money" means (a) all Indebtedness of the
Loan Parties for borrowed money, including, without limitation, the Loans, and
(b) all other Indebtedness of the Loan Parties represented by bonds, debentures,
notes or drafts or other similar instruments representing extensions of credit
or on which interest is charged.
"Interest Expense" shall mean, for any period, the gross interest
expense incurred by the Loan Parties in respect of their Indebtedness for such
period (including, without limitation,
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<PAGE> 16
amortization of debt issuance costs and original issue discount and accreted
interest, non-cash interest payments, the interest component of any deferred
payment obligations, the interest component of all payments associated with
Capitalized Lease Obligations, commissions, discounts and other fees and charges
incurred in respect of letter of credit or bankers' acceptance financings and
quarterly payments incurred in connection with the TIDES Subordinated
Debentures), determined on a consolidated basis, all fees payable under Section
2.6 or the Fee Letters (other than any one-time closing fees) and any other
fees, charges, commissions and discounts in respect of Indebtedness, including
fees payable in connection with the Letters of Credit. For purposes of
calculating Interest Expense in any period, (a) net payments made or received by
the Borrower with respect to Rate Hedging Obligations shall be included in the
computation of gross interest expense and (b) any acquisition of any Station,
and any sale or other disposition of any Station, and any related incurrence or
repayment of Indebtedness, which occurs during such period shall be deemed to
have occurred on the first day of such period.
"Interest Period" means, with respect to any LIBOR Loan, the period
selected by the Borrower, commencing on the date such Loan is made, continued or
converted and ending on the last day of such period as selected by the Borrower.
The Interest Period for each LIBOR Loan shall be one, two, three or six months;
provided, however, that whenever the last day of such Interest Period would
otherwise occur on a day other than a Banking Day, the last day of such Interest
Period shall occur on the next succeeding Banking Day; provided, further, that
if such extension of time would cause the last day of such Interest Period to
occur in the next calendar month, the last day of such Interest Period shall
occur on the next preceding Banking Day; and provided, further, that if the
first day of an Interest Period is the last Banking Day of a month or a day for
which there is no numerically corresponding day in the appropriate subsequent
calendar month, then such Interest Period shall end on the last Banking Day of
the appropriate subsequent calendar month. The Borrower shall not select any
Interest Period which extends beyond any date on which a scheduled payment is or
may be required to be made pursuant to Sections 2.1, 2.2 or 2.7(b)(i) unless the
sum of the amount available to be drawn under the Commitments plus the aggregate
principal balance of all Base Rate Loans and all LIBOR Loans with Interest
Periods ending prior to such date is at least equal to the maximum amount that
is, or may be, required to be paid on such date.
"Issuing Bank" means KCCI in its capacity as the issuer of the Letters
of Credit, or any successor issuer of the Letters of Credit. The Issuing Bank
may, in its discretion, arrange for one or more Letters of Credit to be issued
by Affiliates of the Issuing Bank, in which case the term "Issuing Bank" shall
include any such Affiliate with respect to Letters of Credit issued by such
Affiliate.
"KCCI" means Key Corporate Capital Inc., a Michigan corporation.
"KeyBank" means KeyBank National Association.
"Knowledge" has the meaning assigned to it in Section 1.2.
"Lenders" means the financial institutions listed on the signature
pages of this Agreement and their respective successors (which shall include any
entity resulting from a merger or consolidation) and assigns; the term "Lenders"
shall include the Issuing Bank.
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<PAGE> 17
"Letters of Credit" has the meaning assigned to it in Section 2.3.
"Leverage Ratio", as of any date, means the ratio of Total Debt as of
such date to Operating Cash Flow for the four fiscal quarter period then ended
or most recently ended.
"LIBOR" means the average (rounded upwards, if necessary, to the
nearest 1/100th of 1%) of the per annum rates at which deposits in immediately
available funds in United States dollars for the relevant Interest Period and in
an amount approximately equal to the Loan to be disbursed or to remain
outstanding during such Interest Period, as the case may be, are offered to the
Administrative Agent by prime banks in the London Eurodollar market, determined
as of 11:00 a.m. London time (or as soon thereafter as practicable), two Banking
Days prior to the beginning of the relevant Interest Period.
"LIBOR Loans" means those Loans described in Sections 2.1 and 2.2 on
which the Borrower shall pay interest at a rate based on the applicable LIBOR
Rate.
"LIBOR Rate" means a rate per annum equal to the quotient obtained
(rounded upwards, if necessary, to the nearest 1/100th of 1%) by dividing (a)
the applicable LIBOR by (b) 1.00 minus the LIBOR Reserve Percentage.
"LIBOR Reserve Percentage" means for any day that percentage (expressed
as a decimal) which is in effect on such day, as prescribed by the Board of
Governors of the Federal Reserve System (or any successor) for determining the
maximum reserve requirement (including, without limitation, all basic,
supplemental, marginal and other reserves and taking into account any
transitional adjustments or other scheduled changes in reserve requirements) for
a member bank of the Federal Reserve System in respect of Eurocurrency
Liabilities (as that term is defined in Regulation D of the Board of Governors
of the Federal Reserve System, as in effect from time to time). The LIBOR Rate
shall be adjusted automatically on and as of the effective date of any change in
the LIBOR Reserve Percentage.
"License" means any authorization, permit, consent, franchise,
ordinance, registration, certificate, license, agreement or other right filed
with, granted by, or entered into by a federal, state or local governmental
authority which permits or authorizes the acquisition, construction or operation
of a radio broadcasting station, or any part of a radio broadcasting station or
which is required for the acquisition, ownership or operation of any Station.
"License Subsidiary" means any Subsidiary of the Borrower formed or
acquired solely for the purpose of holding Licenses issued by the FCC.
"Licensing Authority" means a governmental authority which has granted
or issued a License.
"Lien" as applied to the property of any Person means: (a) any
mortgage, lien, pledge, charge, lease constituting a Capitalized Lease
Obligation, conditional sale or other title retention agreement, or other
security interest or encumbrance of any kind in respect of any property of such
Person, or upon the income or profits therefrom; (b) any arrangement, express or
implied, under which any property of such Person is transferred, sequestered or
otherwise identified for the purpose of subjecting the same to the payment of
Indebtedness in priority to the payment of
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<PAGE> 18
the general, unsecured creditors of such Person; (c) the filing of, or any
agreement to give, any financing statement under the Uniform Commercial Code or
its equivalent of any jurisdiction in respect of Indebtedness; and (d) in the
case of securities or other equity interests, any purchase option, call or
similar right of a third party with respect to such securities or other equity
interests.
"LLC Agreement" means the limited liability company agreement of the
Borrower as in effect as of the date hereof or as amended in accordance with
Section 8.12.
"Loan Parties" means the Parent, the Borrower and all of the Borrower's
Subsidiaries.
"Loans" means the Revolving Loans and the Term Loans.
"Material Adverse Effect" means a material adverse effect upon or
change in (a) the properties, assets, business, operations, financial condition
or prospects of the Loan Parties taken as a whole or on the ability of any Loan
Party to conduct its business (other than matters reflected in the audited
financial statements contained in the Confidential Offering Memorandum or
otherwise disclosed herein), (b) the ability of any Loan Party to perform its
obligations hereunder or under any other Collateral Document to which it is a
party, (c) the validity or enforceability of this Agreement, the Notes or any
other Collateral Document, or (d) the rights or remedies of the Agents or the
Lenders under this Agreement, the Notes or any other Collateral Document.
"Membership Interest" means the entire ownership or equity interest of
a Person in the Borrower, including all of such Person's limited liability
company interest, as that term is defined in the Delaware Limited Liability
Company Act (the "Delaware LLC Act"), and all of such Person's rights and
obligations under the Delaware LLC Act in respect of the Borrower and under the
LLC Agreement of the Borrower.
"Net Earnings" means, with respect to the Parent, the consolidated net
income (or deficit) of the Parent and its Subsidiaries for the period involved,
after taxes incurred and after all proper charges and reserves (excluding,
however, non-recurring special charges and credits), all as determined in
accordance with GAAP.
"Notes" means the Revolving Notes and the Term Notes.
"Obligations" means any obligation of any Loan Party (a) to pay to the
Lenders the principal of and interest on the Loans in accordance with the terms
hereof and of the Notes, including, without limitation, any interest accruing
after the date of any filing by any Loan Party of any petition in bankruptcy or
the commencing of bankruptcy, insolvency or similar proceedings with respect to
any Loan Party, regardless of whether such interest is allowable as a claim in
any such proceeding; (b) in respect of the contingent liability of the Borrower
under all outstanding Letters of Credit; (c) in respect of any net Rate Hedging
Obligations owing to any Lender or any Affiliate of any Lender; (d) to pay,
satisfy or perform any other liability or obligation to either Agent or any
Lender, arising under this Agreement or any Collateral Document, whether now
existing or hereafter incurred by reason of future advances or otherwise,
matured or unmatured, direct or contingent, joint or several, including any
extensions, modifications or renewals thereof and substitutions therefor, and
including without limitation all
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<PAGE> 19
fees, indemnification amounts, costs and expenses, including interest thereon
and reasonable attorneys' fees, incurred by either Agent or any Lender for the
protection, preservation or enforcement of its rights and remedies arising
hereunder or under the Collateral Documents; (e) to repay to the Agents and the
Lenders all amounts advanced at any time by the Agents or the Lenders hereunder
or under any Collateral Document, including, without limitation, advances for
principal or interest payments to prior secured parties, mortgagees, lienors or
other Persons, or for taxes, levies, insurance, rent or repairs to, or
maintenance or storage of, any of the property of the Borrower or any of its
Subsidiaries; (f) to perform any covenant or agreement made with the Lenders
pursuant to this Agreement or any Collateral Document; or (g) to take any other
action in respect of any other liability of any nature of any Loan Party to the
Lenders under this Agreement or any Collateral Document.
"Operating Agreement" means any programming agreement, time brokerage,
local marketing or similar agreement, franchise agreement, lease or other
agreement relating to the operation of a Station by the Borrower or any of its
Subsidiaries, the termination or adverse modification of which could have a
Material Adverse Effect.
"Operating Cash Flow" means, during any period, the consolidated Net
Earnings of the Parent for such period (excluding, to the extent included in Net
Earnings, (i) the effect of any exchange of advertising time for non-cash
consideration, such as merchandise or services, (ii) any other non-cash income
or expense (including the cumulative effect of a change in accounting principles
and extraordinary items), (iii) any gains or losses net of taxes from sales,
exchanges and other dispositions of property not in the ordinary course of
business, including non-recurring charges relating to such sales, exchanges or
dispositions, and (iv) any gains or losses associated with minority interests),
minus any non-operating income (other than cash interest income and cash
investment income), plus the sum of (a) depreciation on or obsolescence of fixed
or capital assets and amortization of intangibles and leasehold improvements for
such period, plus (b) Interest Expense incurred in such period to the extent
included in calculating Net Earnings, plus (c) federal, state and local income
taxes incurred in such period to the extent deducted in calculating Net Earnings
in such period (other than any such taxes resulting from any gains from sales
and exchanges and other distributions not in the ordinary course of business),
plus (d) the costs relating to discontinued operations up to a maximum of
$5,000,000 in any twelve month period, plus (e) operating income from Stations
located in the Kansas City market that the Parent is required to dispose of by
the FCC or the Department of Justice in connection with the Sinclair Purchase
Agreements to the extent such operating income was not included in calculating
Net Earnings, all on a consolidated basis and computed on the accrual method.
For purposes of calculating Operating Cash Flow in any period (other than for
purposes of calculating Excess Cash Flow):
(A) any acquisition of any Station, and any sale or other
disposition of any Station, and any related incurrence or repayment of
Indebtedness, which occurs during such period shall be deemed to have
occurred on the first day of such period; provided, however, that in
calculating Operating Cash Flow attributable to any Station acquired
pursuant to the Sinclair Purchase Agreements for any period prior to
the date on which such Station was acquired by the Borrower, such
attributable Operating Cash Flow shall be increased by the amount of
any Sinclair corporate overhead that was deducted in calculating such
attributable Operating Cash Flow; and
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(B) Operating Cash Flow for each of the four quarter periods
ending March 31, 2000, June 30, 2000, and September 30, 2000, shall be
decreased by the amounts of $1,125,000, $750,000 and $375,000,
respectively (which amounts have been agreed upon based on the
Borrower's estimate of additional corporate overhead expenditures that
it will be required to make in respect of the acquisition of the
Stations pursuant to the Sinclair Purchase Agreements, as set forth on
Schedule 1.2 attached hereto, but actual deviation from such estimates
shall not affect the adjustment set forth above).
"Organizational Documents" means, with respect to any Person, such
Person's certificate or articles of incorporation, By-Laws, partnership
agreement, certificate of limited partnership, operating or limited liability
company agreement, certificate of formation, stockholders agreement or other
organizational or governing document or instrument.
"Original Loan Agreement" has the meaning assigned to it in the
Recitals.
"Parent" means Entercom Communications Corp., a Pennsylvania
corporation that owns all of the issued and outstanding Membership Interests of
the Borrower.
"Parent Pledge Agreement" has the meaning assigned to it in Section
6.3(a).
"Parent Security Agreement" has the meaning assigned to it in Section
6.2(a).
"PBGC" means the Pension Benefit Guaranty Corporation or any
governmental authority at any time substituted therefor.
"Pension Plan" means an employee pension benefit plan as defined in
Section 3(2) of ERISA which is subject to the provisions of Section 302 or Title
IV of ERISA or Section 412 of the Code.
"Permitted Acquisition" has the meaning assigned to it in Section
8.10(b).
"Permitted Lien" means any of the following Liens:
(a) Liens for taxes or assessments and similar charges, which
are either not delinquent or being contested diligently and in good faith by
appropriate proceedings, and (i) as to which the applicable Loan Party has set
aside any reserves required in accordance with GAAP on its books and (ii) which
do not entail any significant risk of loss, forfeiture, foreclosure or sale of
the property subject thereto;
(b) statutory Liens, such as mechanic's, materialman's,
warehouseman's, landlord's, artisan's, worker's, contractor's, carrier's or
other like Liens, (i) incurred in good faith in the ordinary course of business,
(ii) which are either not delinquent or are being contested diligently and in
good faith by appropriate proceedings, (iii) as to which the applicable Loan
Party has set aside any reserves on its books required in accordance with GAAP
or bonded satisfactorily to the Administrative Agent and (iv) which do not
entail any significant risk of loss, forfeiture, foreclosure or sale of the
property subject thereto;
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<PAGE> 21
(c) encumbrances consisting of zoning restrictions, easements,
licenses, reservations, provisions, covenants, conditions, waivers, restrictions
on the use of real property or minor irregularities of title, provided that none
of such encumbrances materially impairs the use or value of any property in the
operation of the applicable Loan Party's business;
(d) Liens securing conditional sale, rental or purchase money
obligations permitted under Section 8.4 and Capitalized Lease Obligations
permitted under Section 8.6 (and protective UCC-1 financing statements filed by
lessors in connection therewith under leases not intended as security), but only
in the property which is the subject of such obligations and proceeds thereof;
(e) Liens arising under or pursuant to this Agreement or any
Collateral Document or otherwise securing any Obligation;
(f) Liens in respect of judgments or awards with respect to
which any Loan Party is, in good faith, prosecuting an appeal or proceeding for
review and with respect to which a stay of execution upon such appeal or
proceeding for review has been secured, and as to which judgments or awards such
Loan Party has established any reserves on its books required in accordance with
GAAP or has bonded in a manner satisfactory to the Administrative Agent;
(g) pledges or deposits made in the ordinary course of
business to secure payment of worker's compensation, or to participate in any
fund in connection with worker's compensation, unemployment insurance, old-age
pensions or other social security programs;
(h) Liens granted to secure the performance of bids, tenders,
contracts, leases, public or statutory obligations, surety, customs, appeal and
performance bonds and other similar obligations and not incurred in connection
with the borrowing of money, the obtaining of advances or the payment of the
deferred purchase price of any property; and
(i) any other Liens listed on Schedule 5.10 hereto or to which
the Required Lenders have consented in writing.
"Person" includes natural persons, corporations, business trusts,
associations, companies, limited liability companies, joint ventures and
partnerships.
"Plan" means any employee benefit plan, as defined under Section 3(3)
of ERISA, established or maintained by the Borrower or any member of the
Controlled Group or any such Plan to which the Borrower or any member of the
Controlled Group is, or in the last six years was, required to contribute on
behalf of its employees.
"Pledge Agreements" means the Parent Pledge Agreement, the Borrower
Pledge Agreement and the Subsidiary Pledge Agreement.
"Possible Default" means an event, condition, situation or thing which
constitutes, or which with the lapse of any applicable grace period or the
giving of notice or both would constitute, an Event of Default.
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"Prepayment Premium" with respect to the prepayment or conversion of
any LIBOR Loan or any other receipt or recovery of any LIBOR Loan prior to the
end of the applicable Interest Period, whether by voluntary prepayment,
acceleration, conversion to a Base Rate Loan or otherwise, means, with respect
to each Lender, any loss, cost or expense incurred by such Lender as a result of
such prepayment, conversion, receipt or recovery, as certified in writing to the
Administrative Agent and the Borrower by such Lender.
"Pro Forma Debt Service" means, as of the end of any fiscal quarter,
the sum of, without duplication, (a) all principal payments required to be made
on the Loans pursuant to Sections 2.1(b), 2.2(b) and 2.7(b)(i) during the four
quarter period following such date, (b) all principal payments required to be
made by the Loan Parties on Total Debt, other than the Loans, during such
subsequent four quarter period, and (c) all Interest Expense (including
quarterly payments incurred in connection with the TIDES Subordinated
Debentures, whether paid or deferred) during such subsequent four quarter
period. In calculating Pro Forma Debt Service, (i) the interest rate in effect
in such subsequent period on any Indebtedness which does not bear interest at a
rate which is fixed for the entire subsequent period (whether by virtue of a
Rate Hedging Obligation or otherwise) shall be deemed to be the interest rate in
effect on such Indebtedness as of the date of determination, and (ii) for the
purpose of determining the amount of principal and interest payments required on
the Loans and on other Total Debt in future periods, it shall be assumed that
the principal amount of Loans and other Total Debt outstanding as of the date of
determination will be outstanding for the subsequent four quarter period,
subject to any required commitment reductions and scheduled payments on Total
Debt.
"Quarterly Date" means the last day of each of the Borrower's fiscal
quarters.
"Ratable Share" means, with respect to any Lender, its pro rata share
of (a) the Revolving Commitment, the Letters of Credit and the Revolving Loans,
(b) the Term Commitment and the Term Loans, or (c) all of the Loans, as the case
may be, as such pro rata share may be modified pursuant to Section 2.16 or by
assignment pursuant to Section 13.7. As of the date of this Agreement, the
Ratable Shares of the Lenders shall be as listed on Schedule 1.1 attached
hereto.
"Rate Hedging Obligations" means any and all obligations of the
Borrower, whether absolute or contingent and howsoever and whensoever created,
arising, evidenced or acquired (including all renewals, extensions and
modifications thereof and substitutions therefor), under (a) any and all
agreements, devices or arrangements designed to protect the Borrower from the
fluctuations of interest rates, including interest rate exchange or swap
agreements, interest rate cap or collar protection agreements, and interest rate
options, puts and warrants, and (b) any and all cancellations, buy backs,
reversals, terminations or assignments of any of the foregoing.
"Regulatory Change" means the adoption of or any change in federal,
state or local treaties, laws, rules or regulations or the adoption of or change
in any interpretations, guidelines, directives or requests of or under any
federal, state or local treaties, laws, rules or regulations (whether or not
having the force of law) by any court, governmental authority, central bank or
comparable agency charged with the interpretation or administration thereof.
"Release" shall mean any release, spill, emission, leaking, pumping,
injection, deposit, disposal, discharge, dispersal, leaching or migration into
the indoor or outdoor environment,
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<PAGE> 23
including, without limitation, the movement of Hazardous Materials through
ambient air, soil, surface water, ground water, wetlands, land or subsurface
strata.
"Reportable Event" means a reportable event as that term is defined in
Title IV of ERISA, excluding, however, such events as to which the PBGC by
regulation has waived the requirement of Section 4043(a) of ERISA that it be
notified within thirty days of the occurrence of such event (provided that a
failure to meet the minimum funding standard of Section 412 of the Code and of
Section 302 of ERISA shall be a Reportable Event regardless of the issuance of
any such waivers in accordance with Section 412(d) of the Code).
"Required Lenders" means, at any time, Lenders holding more than 50% of
the then aggregate unpaid principal amount of the Notes and participations in
the stated amount of the outstanding Letters of Credit, or, if no principal
amount of the Notes or any Letter of Credit is then outstanding, Lenders having
more than 50% of the Commitments.
"Revolving Commitment" has the meaning assigned to it in Section
2.1(a).
"Revolving Lenders" means the Lenders who have committed to provide the
Revolving Loans to the Borrower. The initial Revolving Lenders are listed on
Schedule 1.1.
"Revolving Loans" has the meaning assigned to it in Section 2.1(a).
"Revolving Notes" has the meaning assigned to it in Section 2.5.
"Security Agreements" means the Parent Security Agreement, the Borrower
Security Agreement and the Subsidiary Security Agreement.
"Sinclair Letter of Credit" means the existing letter of credit No.
KCCS96255 issued by KCCI in the original stated amount of $50,000,000, which
will reduce to $7,526,000 on the Closing Date, and with an expiration date of
August 16, 2000, which was issued for the account of the Borrower (as successor
to the Parent) in connection with the Sinclair Purchase Agreements, which letter
of credit shall constitute a Letter of Credit hereunder.
"Sinclair Purchase Agreements" means (a) the Asset Purchase Agreement,
entered into on August 20, 1999, but effective as of August 18, 1999, among
Sinclair Communications, Inc. ("Sinclair"), Sinclair Media III, Inc., Sinclair
Radio of Kansas City Licensee, LLC, and the Parent, and (b) the Amended and
Restated Asset Purchase Agreement, entered into on August 20, 1999, but
effective as of August 18, 1999, among Sinclair, certain of its subsidiaries and
the Parent, as amended by those Letter Agreements dated as of December 3, 1999.
"Station Contracts" has the meaning assigned to it in Section 8.21.
"Stations" means, as of any date, the radio broadcasting stations owned
by the Borrower or any of its Subsidiaries as of such date; all auxiliary
stations owned or operated in connection with the foregoing or any other
communications station owned or operated at such time by the Borrower or any of
its Subsidiaries.
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<PAGE> 24
"Subordinated Debt" means the unsecured Indebtedness of the Parent in
respect of the TIDES Subordinated Debentures and all other unsecured
Indebtedness of the Borrower and the Parent incurred pursuant to the provisions
of Section 8.1(g).
"Subsidiary" of a Person means each partnership, corporation, limited
liability company, business trust or other entity, the majority of the
outstanding partnership interests, capital stock, membership interests or voting
power of which is (or upon the exercise of all outstanding warrants, options and
other rights would be) owned, directly or indirectly, at the time in question by
such Person.
"Subsidiary Guaranty" has the meaning assigned to it in Section 6.5.
"Subsidiary Pledge Agreement" has the meaning assigned to it in Section
6.3(c).
"Subsidiary Security Agreement" has the meaning assigned to it in
Section 6.2(c).
"Syndication Agent" means Bank of America, N.A. in its capacity as
Syndication Agent hereunder together with any successor Syndication Agent
hereunder.
"Term Commitment" has the meaning assigned to it in Section 2.2(a).
"Term Lenders" means the Lenders who have committed to provide the Term
Loans to the Borrower. The initial Term Lenders are listed on Schedule 1.1.
"Term Loans" has the meaning assigned to it in Section 2.2(a).
"Term Notes" has the meaning assigned to it in Section 2.5.
"Termination Date" means September 30, 2007.
"TIDES Indenture" means the Indenture dated as of October 6, 1999,
between the Parent and Wilmington Trust Company, as Trustee, with respect to the
Parent's 6 1/4% Convertible Subordinated Debentures due 2014.
"TIDES Preferred Securities" means the 6 1/4% Convertible Preferred
Securities issued by the TIDES Trust on October 6, 1999.
"TIDES Subordinated Debentures" means the Parent's 6 1/4% Convertible
Subordinated Debentures due 2014 issued on October 6, 1999, pursuant to the
TIDES Indenture.
"TIDES Trust" means Entercom Communications Capital Trust, a Delaware
business trust.
"TIDES Trust Declaration" means the Amended and Restated Declaration of
Trust, dated as of October 6, 1999, of the TIDES Trust.
"Total Debt" means, without duplication, (a) all Indebtedness of the
Loan Parties for borrowed money, including, without limitation, the Loans, (b)
all Capitalized Lease Obligations of the Loan Parties, (c) all other
Indebtedness of any Loan Party represented by notes or drafts
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<PAGE> 25
representing extensions of credit or on which interest is typically charged, (d)
all obligations of any Loan Party evidenced by bonds, debentures, notes or other
similar instruments (including all such obligations to which any property or
asset owned by any Loan Party is subject, whether or not the obligation secured
thereby shall have been assumed), (e) all obligations of any Loan Party under
conditional sale or other title retention agreements relating to purchased
assets, (f) all obligations of any Loan Party that are incurred, issued or
assumed as the deferred purchase price of property or services and that are
payable over a period in excess of one year, (g) all obligations or liabilities
in respect of which any Loan Party is a Guarantor, (h) at any time after the
occurrence and during the continuance of an event of default under any agreement
of any Loan Party governing Rate Hedging Obligations, the aggregate amount
payable by such Loan Party under such agreement, and (i) all obligations of any
Loan Party as an account party to reimburse any Person in respect of letters of
credit (including the Letters of Credit) or bankers' acceptances; provided,
however, that the Indebtedness evidenced by the TIDES Subordinated Debentures
shall not constitute Total Debt; provided, further, however, that all interest
or other financing costs accrued on the TIDES Subordinated Debentures during any
Deferral Period (as that term is defined in the TIDES Indenture) shall be
included in Total Debt.
"Working Capital" means, as of any date, the excess of the consolidated
current assets, other than cash, of the Borrower and its Subsidiaries over their
consolidated current liabilities, other than the current portion of long term
debt, as of such date.
1.2 Other Terms. Except as otherwise specifically provided in this
Agreement, each term not otherwise expressly defined herein which is defined in
the Uniform Commercial Code, as amended (the "UCC") as adopted in any applicable
jurisdiction shall have the meaning assigned to it in the UCC in effect in such
jurisdiction. Whenever the context may require, any pronoun shall include the
corresponding masculine, feminine and neuter forms. All references herein to
Sections, Schedules or Exhibits shall be deemed to be references to Sections of,
and Schedules and Exhibits to, this Agreement unless the context shall otherwise
require. Whenever any agreement, promissory note or other instrument or document
is defined in this Agreement, such definition shall be deemed to mean and
include, from and after the date of any amendment, restatement or modification
thereof, such agreement, promissory note or other instrument or document as so
amended, restated or modified. All terms defined in this Agreement in the
singular shall have comparable meanings when used in the plural and vice versa.
The words "hereof," "herein" and "hereunder" and words of similar import when
used in this Agreement shall refer to this Agreement as a whole and not to any
particular provision of this Agreement. "Knowledge" of a Person means the actual
knowledge of such Person (in the case of an individual) or of an executive
officer or director of such Person (in all other cases) or, in the case of a
Loan Party, the general manager of any of the Stations, as well as the knowledge
that any such Person would be deemed to have upon a reasonable inquiry into the
facts and surrounding circumstances.
1.3 Accounting Provisions. All accounting terms used in this Agreement
which are not expressly defined herein shall have the respective meanings given
to them in accordance with GAAP, all computations shall be made in accordance
with GAAP, and all balance sheets and other financial statements shall be
prepared in accordance with GAAP.
Section 2 THE LOANS.
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<PAGE> 26
2.1 The Revolving Commitment and the Revolving Loans.
(a) Subject to the terms and conditions hereof, during the period from
the Closing Date up to but not including the Termination Date, the Revolving
Lenders severally, but not jointly, shall make loans to the Borrower in such
amounts as the Borrower may from time to time request but not exceeding in
aggregate principal amount at any one time outstanding $325,000,000 (as such
amount may be (i) increased pursuant to Section 2.16 or (ii) reduced pursuant to
Section 2.1(d), 2.7 or any other provision of this Agreement, from time to time,
the "Revolving Commitment"); provided, however, that in no event shall the
aggregate principal amount of such loans plus the aggregate stated amount of the
Letters of Credit exceed the Revolving Commitment. All amounts borrowed by the
Borrower pursuant to this Section 2.1(a) and all amounts drawn under any Letter
of Credit and not repaid may be referred to hereinafter collectively as the
"Revolving Loans." Each Revolving Loan requested by the Borrower shall be funded
by the Revolving Lenders in accordance with their Ratable Shares of the
requested Revolving Loan. A Revolving Lender shall not be obligated hereunder to
make any additional Revolving Loan if immediately after making such Loan, the
aggregate principal balance of all Revolving Loans made by such Lender plus such
Lender's Ratable Share of any outstanding Letters of Credit would exceed such
Lender's Ratable Share of the Revolving Commitment. The Revolving Loans may be
comprised of Base Rate Loans or LIBOR Loans, as provided in Section 2.4.
(b) On each date set forth in the table below, the Revolving Commitment
shall automatically reduce by that percentage of the Revolving Commitment (as in
effect on September 30, 2002, before giving effect to the reduction required by
this Section 2.1(b) on that date) set forth for such date in such table;
<TABLE>
<CAPTION>
Year March 31 June 30 September 30 December 31
- ---------- ------------------ ----------------- ---------------------- ---------------------
<S> <C> <C> <C> <C>
2002 0% 0% 3.75% 3.75%
2003 4.375% 4.375% 4.375% 4.375%
2004 5% 5% 5% 5%
2005 5% 5% 5% 5%
2006 5% 5% 5% 5%
2007 5% 5% 5% N/A
</TABLE>
(c) Prior to the Termination Date, the Borrower may, at its option,
from time to time prepay all or any portion of the Revolving Loans, subject to
the provisions of Section 2.7, and the Borrower may reborrow from time to time
hereunder amounts so paid up to the amount of the Revolving Commitment in effect
at the time of reborrowing.
(d) At any time prior to the Termination Date, by written notice to the
Administrative Agent no later than 11:00 A.M. Cleveland, Ohio time five Banking
Days prior to such termination or reduction, the Borrower may permanently
terminate, or from time to time permanently reduce, the Revolving Commitment.
Such notice shall be irrevocable and in writing or by telephonic communication
confirmed by telecopy or other facsimile transmission on the same day as such
telephone notice. Any such partial reduction hereunder shall be in an amount
which is not less than $5,000,000 or an integral multiple of $1,000,000 in
excess thereof. The
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<PAGE> 27
Administrative Agent shall promptly thereafter notify the Lenders of any such
reduction or termination of the Revolving Commitment.
(e) All Revolving Loans, together with all interest accrued thereon,
shall be paid in full no later than the Termination Date.
(f) All reductions of the Revolving Commitment pursuant to Section
2.1(d), 2.7(c) or any other provision of this Agreement shall be permanent
reductions and shall be made ratably among the Lenders, and the Revolving
Commitment shall not be increased (except pursuant to Section 2.16).
2.2 The Term Commitment and the Term Loans.
(a) Subject to the terms and conditions hereof, during the period from
the Closing Date up to and including September 29, 2000, or such later date as
may be approved by the Required Lenders, the Term Lenders severally, but not
jointly, shall make loans to the Borrower in such amounts as the Borrower may
from time to time request but not exceeding in aggregate principal amount at any
one time outstanding $325,000,000 (as such amount may be increased pursuant to
Section 2.16 or reduced pursuant to Section 2.2(c), 2.7 or any other provision
of this Agreement, from time to time, the "Term Commitment"); provided, however,
that there shall not be more than four borrowings under the Term Commitment, and
each borrowing shall be in an aggregate principal amount of at least
$50,000,000. All amounts borrowed by the Borrower pursuant to this Section
2.2(a) may be referred to hereinafter collectively as the "Term Loans." The Term
Commitment shall expire on September 29, 2000, or such later date as may be
approved by the Required Lenders, and no Term Loan may be borrowed thereafter.
Each Term Loan requested by the Borrower shall be funded by the Term Lenders in
accordance with their Ratable Shares of the requested Term Loan. A Term Lender
shall not be obligated hereunder to make any additional Term Loan if immediately
after making such Loan, the aggregate principal balance of all Term Loans made
by such Lender would exceed such Lender's Ratable Share of the Term Commitment.
The Term Loans may be comprised of Base Rate Loans or LIBOR Loans, as provided
in Section 2.4.
(b) The aggregate principal of the Term Loans shall be repaid in
twenty-one consecutive quarterly installments commencing on September 30, 2002.
The installments shall be due on each date set forth in the following table,
with each installment being in an amount equal to that percentage set forth in
such table for such date of the principal amount of the Term Loans outstanding
as of September 30, 2002, before giving effect to the payment required by this
Section 2.2(b) on that date, with the final installment of all then outstanding
principal, together with all accrued interest, due no later than the Termination
Date:
<TABLE>
<CAPTION>
Year March 31 June 30 September 30 December 31
- ---------- ------------------ ----------------- ---------------------- ---------------------
<S> <C> <C> <C> <C>
2002 0% 0% 3.75% 3.75%
2003 4.375% 4.375% 4.375% 4.375%
2004 5% 5% 5% 5%
2005 5% 5% 5% 5%
2006 5% 5% 5% 5%
2007 5% 5% 5% N/A
</TABLE>
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<PAGE> 28
(c) At any time, by written notice to the Administrative Agent no later
than 11:00 A.M. Cleveland, Ohio time five Banking Days prior to such termination
or reduction, the Borrower may permanently terminate, or from time to time
permanently reduce, the Term Commitment. Such notice shall be irrevocable and in
writing or by telephonic communication confirmed by telecopy or other facsimile
transmission on the same day as such telephone notice. Any such partial
reduction hereunder shall be in an amount which is not less than $5,000,000 or
an integral multiple of $1,000,000 in excess thereof. The Administrative Agent
shall notify the Lenders of any such reduction or termination of the Term
Commitment.
(d) All Term Loans, together with all interest accrued thereon, shall
be paid in full no later than the Termination Date.
(e) All reductions of the Term Commitment pursuant to Section 2.2(c),
2.7(c) or any other provision of this Agreement shall be permanent reductions,
and the Term Commitment shall not be increased (except pursuant to Section
2.16). All payments and prepayments of the Term Loans shall be permanent, and no
amounts so prepaid may be reborrowed.
2.3 Letters of Credit.
(a) Issuance. KCCI issued the Existing Letter of Credit pursuant to the
Original Loan Agreement. The Borrower hereby assumes, subject to the
consummation of the Closing hereunder, the reimbursement obligations of the
Parent in respect of the Existing Letter of Credit. Subject to the terms and
conditions hereof, including the provisions of Section 6, the Borrower may
request that the Issuing Bank issue, from time to time during the period from
the Closing Date through the date that is thirty days prior to the Termination
Date, and the Issuing Bank agrees to issue, from time to time, additional
commercial or standby letters of credit in an aggregate stated amount not
exceeding the difference of $50,000,000 minus the aggregate stated amount of the
Existing Letter of Credit (the Existing Letter of Credit and such additional
Letters of Credit, the "Letters of Credit"). Each Letter of Credit shall be
denominated and payable in U.S. dollars. No Letter of Credit shall be issued for
a term of more than three hundred sixty-four days, and no Letter of Credit shall
have an expiration date which is later than the tenth Banking Day prior to the
Termination Date. No Letter of Credit shall be issued if after giving effect to
such issuance, the sum of the outstanding principal balance of the Revolving
Loans (including amounts drawn on Letters of Credit and not repaid), plus the
aggregate stated amount of outstanding Letters of Credit, would exceed the
Revolving Commitment. Each Letter of Credit shall be issued in the manner and on
the conditions set forth in this Section 2.3 and Section 6. Each Letter of
Credit shall require delivery of a sight draft for payment.
(b) Application. Each request for a Letter of Credit shall be made to
the Issuing Bank by an application on the Issuing Bank's standard form or in
such other manner as the Issuing Bank may approve. In the event of any conflict
between the terms and conditions of such application and the terms and
conditions of this Agreement, the terms and conditions of this Agreement shall
prevail. Promptly following the issuance of any Letter of Credit, the Issuing
Bank shall notify the Administrative Agent and the Revolving Lenders of such
issuance.
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<PAGE> 29
(c) Participation by the Revolving Lenders.
(i) By the Borrower's assumption of the reimbursement obligations in
respect of the Existing Letter of Credit, and by the issuance of any additional
Letter of Credit and without any further action on the part of the Issuing Bank,
the Administrative Agent or the other Revolving Lenders in respect thereof, the
Issuing Bank hereby grants to each other Revolving Lender, and each other
Revolving Lender hereby agrees to acquire from the Issuing Bank, a participation
in each Letter of Credit (including the Existing Letter of Credit) equal to such
Lender's Ratable Share of the stated amount of such Letter of Credit, effective
upon the Closing Date, in respect of the Existing Letter of Credit, and upon the
issuance thereof in respect of any additional Letter of Credit; provided,
however, that no Revolving Lender shall be required to acquire participations in
any Letter of Credit that would result in its Ratable Share of the sum of
outstanding Revolving Loans plus the stated amount of all outstanding Letters of
Credit to be greater than its Ratable Share of the Revolving Commitment. In
consideration and in furtherance of the foregoing, each Revolving Lender hereby
absolutely and unconditionally agrees to pay to the Administrative Agent, for
the account of the Issuing Bank, in accordance with Section 2.3(d), such
Lender's Ratable Share of each amount disbursed pursuant to a Letter of Credit;
provided, that payment by the Issuing Bank under such Letter of Credit against
presentation of such draft or document shall not have constituted gross
negligence or willful misconduct of the Issuing Bank.
(ii) Each Revolving Lender acknowledges and agrees that its obligation
to acquire participations pursuant to paragraph (i) above in respect of Letters
of Credit issued in accordance with the terms hereof is absolute and
unconditional and shall not be affected by any circumstances whatsoever,
including the occurrence and continuance of an Event of Default or Possible
Default, or the reduction or termination of the Revolving Commitment, and that
each such payment shall be made without any offset, abatement, withholding or
reduction whatsoever.
(d) Letter of Credit Disbursements.
(i) If the Administrative Agent has not received from the Borrower the
payment required or permitted pursuant to paragraph (ii) of this Section 2.3(d)
by 11:00 a.m., Cleveland time, on the date on which the Issuing Bank has
notified the Borrower that payment of a draft presented under any Letter of
Credit will be made, as provided in such paragraph (ii), the Administrative
Agent shall promptly notify the Issuing Bank and each other Revolving Lender of
the disbursement to be made under such Letter of Credit and, in the case of each
Revolving Lender, its Ratable Share of such disbursement. Each Revolving Lender
shall pay to the Administrative Agent, not later than 1:00 P.M., Cleveland time,
on such date (or, if the Issuing Bank shall elect to defer reimbursement from
the Revolving Lenders hereunder, such later date as the Issuing Bank shall
specify by notice to the Administrative Agent and the Revolving Lenders), such
Lender's Ratable Share of such disbursement, which the Administrative Agent
shall promptly pay to the Issuing Bank. The Administrative Agent will promptly
remit to each Revolving Lender its share of any amount subsequently received by
the Administrative Agent from the Borrower in respect of such disbursement;
provided that amounts so received for the account of any Revolving Lender prior
to payment by such Lender of amounts required to be paid by it hereunder in
respect of any disbursement shall be remitted to the Issuing Bank.
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<PAGE> 30
(ii) If the Issuing Bank shall receive any draft presented under any
Letter of Credit, the Issuing Bank shall give notice thereof as provided in
paragraph (iii) below. If the Issuing Bank shall pay any draft in an amount less
than $1,000,000 presented under a Letter of Credit, the Borrower shall pay to
the Administrative Agent, for the account of the Issuing Bank, an amount equal
to the amount of such draft before 11:00 A.M., Cleveland time, on the Banking
Day on which the Issuing Bank shall have notified the Borrower that payment of
such draft will be made. If the Issuing Bank shall pay any draft in an amount
equal to or greater than $1,000,000 presented under a Letter of Credit, the
Borrower may, if no Possible Default or Event of Default then exists (but shall,
if a Possible Default or Event of Default then exists) pay to the Administrative
Agent, for the account of the Issuing Bank, an amount equal to the amount of
such draft before 11:00 A.M., Cleveland time, on the Banking Day on which the
Issuing Bank shall have notified the Borrower that payment of such draft will be
made. The Administrative Agent will promptly pay any such amounts received by it
to the Issuing Bank.
(iii) The Issuing Bank shall, promptly following its receipt thereof,
examine all documents purporting to represent a demand for payment under a
Letter of Credit to ascertain that the same appear on their face to be in
substantial conformity with the terms and conditions of such Letter of Credit.
The Issuing Bank shall as promptly as reasonably practicable give oral
notification, confirmed in writing, to the Administrative Agent and the Borrower
of such demand for payment and the determination by the Issuing Bank as to
whether such demand for payment was in accordance with the terms and conditions
of such Letter of Credit and whether the Issuing Bank has made or will make a
disbursement thereunder, provided that the failure to give such notice shall not
relieve the Borrower of its obligation to reimburse such disbursement, and the
Administrative Agent shall promptly give each Revolving Lender notice thereof.
(iv) Any amounts paid by the Issuing Bank on any Letter of Credit
(other than from funds timely provided by the Borrower pursuant to clause (ii)
above) shall be deemed initially to be a Base Rate Revolving Loan for all
purposes of this Agreement and shall bear interest from the date of payment by
the Issuing Bank at the rates provided in Section 3.1 until paid in full.
(e) Obligation to Repay Letter of Credit Disbursements, etc. The Borrower
assumes all risks in connection with the Letters of Credit, and the Borrower's
obligation to repay each disbursement under a Letter of Credit shall be
absolute, unconditional and irrevocable under any and all circumstances and
irrespective of:
(i) any lack of validity or enforceability of any Letter of Credit;
(ii) the existence of any claim, setoff, defense or other right which
the Borrower or any other Person may at any time have against the beneficiary
under any Letter of Credit, the Administrative Agent, the Issuing Bank or any
other Lender (other than the defense of payment in accordance with the terms of
this Agreement or a defense based on the gross negligence or willful misconduct
of the Issuing Bank) or any other Person in connection with this Agreement or
any other agreement or transaction;
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<PAGE> 31
(iii) any draft or other document presented under a Letter of Credit
proving to be forged, fraudulent, invalid or insufficient in any respect or any
statement therein being untrue or inaccurate in any respect other than a defense
based on the willful misconduct or gross negligence of the Issuing Bank; and
(iv) any other circumstance or event whatsoever, whether or not similar
to any of the foregoing that does not result from the willful misconduct or
gross negligence of the Issuing Bank.
It is understood that in making any payment under a Letter of Credit (A)
the Issuing Bank's exclusive reliance as to any and all matters set forth
therein, including reliance on the amount of any draft presented under such
Letter of Credit, whether or not the amount due to the beneficiary equals the
amount of such draft and whether or not any documents presented pursuant to such
Letter of Credit prove to be insufficient in any respect, if such document on
its face appears to be in order, and whether or not any such Letter of Credit
proves to be forged or invalid or any statement therein proves to be inaccurate
or untrue in any respect whatsoever, shall, in each case, not in and of itself
be deemed willful misconduct or gross negligence of the Issuing Bank and (B) any
noncompliance in any immaterial respect of the documents presented under a
Letter of Credit with the terms thereof, shall, in each case, not in and of
itself be deemed willful misconduct or gross negligence of the Issuing Bank.
(f) Indemnification. The Borrower shall: (i) indemnify and hold the
Administrative Agent and each Lender (including the Issuing Bank) harmless from
any loss resulting from any claim, demand or liability which may be asserted
against the Administrative Agent or such Lender in connection with actions taken
under any Letter of Credit, and (ii) reimburse the Administrative Agent or such
Lender for any fees or other reasonable expenses paid or incurred by the
Administrative Agent or such Lender in connection with any Letter of Credit,
other than any loss or expense resulting from the Administrative Agent's or such
Lender's willful misconduct or gross negligence.
(g) Security. Upon the occurrence of any Event of Default, the Borrower
shall, upon demand (or, upon the occurrence and during the continuance of any
Event of Default referred to in Sections 9.5, 9.6 or 9.7, immediately), pay to
the Issuing Bank the stated amount of all outstanding Letters of Credit, which
amount the Issuing Bank shall hold as security for the obligations incurred
under the Letters of Credit, this Agreement and the Notes. The payment by the
Borrower of such security shall not terminate the obligations of the Borrower
under this Section 2.3, but the stated amount of such Letters of Credit to the
extent of such security payment shall not be deemed to be Indebtedness for
purposes of determining the Borrower's compliance with the covenants set forth
in Section 8.13 or for determining the Applicable Margin.
(h) Additional Costs. If any Regulatory Change shall either (i) impose
upon, modify, require, make or deem applicable to the Issuing Bank, the
Administrative Agent or any Lender (or its holding company) any reserve
requirement, special deposit requirement, insurance assessment or similar
requirement against or affecting any Letter of Credit issued or to be issued
hereunder, or (ii) subject the Issuing Bank, the Administrative Agent or any
Lender to any tax (other than taxes imposed on the net income of the
Administrative Agent, the Issuing Bank or
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<PAGE> 32
such other Lender), charge, fee, deduction or withholding of any kind
whatsoever, or (iii) impose any condition upon or cause in any manner the
addition of any supplement to or increase of any kind to the Issuing Bank's, the
Administrative Agent's or any Lender's (or its holding company's) capital or
cost base for issuing such Letter of Credit which results in an increase in the
capital requirement supporting such Letter of Credit, or (iv) impose upon,
modify, require, make or deem applicable to the Issuing Bank, the Administrative
Agent or any Lender (or its holding company) any capital requirement, increased
capital requirement or similar requirement such as the deeming of such Letters
of Credit to be assets held by the Issuing Bank, the Administrative Agent or
such Lender (or its holding company) for capital calculation or other purposes
and the result of any events referred to in (i), (ii), (iii) or (iv) above shall
be to increase the costs or decrease the benefit in any way to the Issuing Bank,
the Administrative Agent or a Lender (or its holding company) of issuing,
maintaining or participating in such Letters of Credit, then and in such event
the Borrower shall, within ten days after the mailing of written notice of such
increased costs and/or decreased benefits to the Administrative Agent and the
Borrower, pay to the Issuing Bank, the Administrative Agent or such Lender all
such additional amounts which in the Issuing Bank's, the Administrative Agent's
or such Lender's good faith calculation as allocated to such Letters of Credit,
shall be sufficient to compensate it (or its holding company) for all such
increased costs and/or decreased benefits. The Issuing Bank's, the
Administrative Agent's or such Lender's calculation shall be conclusive absent
manifest error.
(i) Fees. Each Letter of Credit shall be issued for a fee equal to the
product of the Applicable Margin applicable to LIBOR Loans as of the date of
issuance thereof times the stated amount thereof, payable upon issuance. No such
issuance fee shall be payable upon the assumption by the Borrower of the
Existing Letter of Credit on the Closing Date; however, the Issuing Bank shall,
promptly following the Closing, pay to the Lenders their pro rata share of the
fee originally paid by the Parent (0.75% of the original stated amount, or
$375,000) on the stated amount of the Existing Letter of Credit as reduced as of
the Closing Date for the period from the Closing Date through the remainder of
the term of the Existing Letter of Credit. The fee for Letters of Credit issued
on or after the Closing Date shall be payable to the Administrative Agent for
the benefit of the Revolving Lenders in accordance with their Ratable Shares of
such Letter of Credit. If any Letter of Credit is drawn upon prior to its
expiration date, the Revolving Lenders shall reimburse to the Borrower that
portion of the fee allocable to the period from the date of the draw to the
expiration date, calculated in accordance with the Issuing Bank's standard
letter of credit procedures. In addition, the Borrower shall pay to the Issuing
Bank for its own account a fronting fee of 0.125% per annum of the stated amount
of each Letter of Credit (other than the Existing Letter of Credit except upon
renewal thereof) and its standard charges for the issuance of letters of credit
and for draws upon letters of credit.
2.4 Making and Continuation/Conversion of the Loans.
(a) Making of the Loans.
(i) Each Loan shall be made by the Lenders in such amount as the
Borrower shall request, provided that, in addition to the restriction set forth
in Section 2.2(b) with respect to the Term Loans, each borrowing shall be in an
amount which is a minimum of (A), with respect to any LIBOR Loan, $5,000,000,
and integral multiples of $1,000,000 in excess thereof, and (B) with respect to
any Base Rate Loan, $1,000,000 and integral multiples of
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<PAGE> 33
$500,000 in excess thereof or such lesser amount as may be equal to the then
unused portion of the Commitment. The obligation of the Lenders to make any Loan
and of the Issuing Bank to issue any Letter of Credit is conditioned upon the
fact that (x) no Possible Default or Event of Default shall then exist or
immediately after the Loan would exist; (y) all of the Collateral Documents
shall still be in full force and effect; and (z) the representations and
warranties contained herein and in the Collateral Documents shall be true and
correct in all material respects as if made on and as of the date of such
borrowing, except to the extent that any thereof expressly relate to an earlier
date.
(ii) Loans shall be effected at the principal banking office of the
Administrative Agent in Cleveland, Ohio, and shall be made at such times as the
Borrower may request by notice to the Administrative Agent no later than 11:00
A.M. Cleveland, Ohio time (A) three Banking Days prior to the date of a
requested LIBOR Loan and (B) one Banking Day prior to the date of a requested
Base Rate Loan. Such notices shall be in writing, or by telephonic communication
confirmed by telecopy or other facsimile transmission on the same day as the
telephone request, shall be irrevocable and shall specify the proposed date and
the amount of the requested Loan, whether it is a Term Loan or a Revolving Loan,
whether it is to bear interest initially based upon the Base Rate or the LIBOR
Rate, and the Interest Period thereof, if applicable. The Administrative Agent
shall be entitled to rely on any such telephonic communication regardless of
whether it is subsequently confirmed in writing.
(iii) Upon receipt of each borrowing notice for a Loan, the
Administrative Agent shall promptly notify each Lender of the type, Interest
Period, if applicable, amount and date of the proposed borrowing. Not later than
11:00 A.M. Cleveland time, on the date of a proposed borrowing of a Loan, each
Lender shall provide the Administrative Agent at its address specified in
Section 13.4 with immediately available funds covering such Lender's Ratable
Share, if any, of such Loan, and the Administrative Agent shall pay over such
immediately available funds to the Borrower.
(b) Conversion/Continuation of the Loans. At the Borrower's election
pursuant to notice given to the Administrative Agent not later than 11:00 A.M.
Cleveland, Ohio time three Banking Days prior to such conversion or
continuation, any Base Rate Loan may be converted to, or any LIBOR Loan may be
continued as, a LIBOR Loan as requested by the Borrower; provided, however, that
each conversion shall be in an amount which is a minimum of $5,000,000, and
integral multiples of $1,000,000 in excess thereof; and provided, further, that
no Loan may be continued as or converted to a LIBOR Loan at any time that an
Event of Default or Possible Default exists. Such notice shall be in writing, or
by telephonic communication confirmed by telecopy or other facsimile
transmission on the same day as the telephone request, shall be irrevocable and
shall specify the proposed Interest Period of the new LIBOR Loan. The
Administrative Agent shall be entitled to rely on any such telephonic
communication regardless of whether it is subsequently confirmed in writing. If
the Borrower has not delivered to the Administrative Agent such notice with
respect to any terminating Interest Period at least three Banking Days prior to
the end of such Interest Period, the affected LIBOR Loan shall convert to a Base
Rate Loan at the end of such Interest Period.
(c) Number of Interest Rate Options. In no event shall the Borrower have
more than seven LIBOR Loans outstanding at any time.
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<PAGE> 34
(d) Expiration of Commitments. The Commitments shall expire and the
Lenders shall have no obligations to make any Loans to the Borrower if the
Closing Date has not occurred on or prior to December 31, 1999.
2.5 The Notes. All Revolving Loans shall be evidenced by separate
promissory notes payable to the Revolving Lenders substantially in the form
attached hereto as Exhibit A to be duly executed and delivered by the Borrower
at or prior to the Closing in the aggregate principal amount of the Revolving
Commitment (such notes, together with any notes issued in connection with the
issuance of a Letter of Credit being referred to hereinafter as the "Revolving
Notes"). All Term Loans shall be evidenced by separate promissory notes payable
to the Term Lenders substantially in the form attached hereto as Exhibit B to be
duly executed and delivered by the Borrower at or prior to the Closing in the
aggregate principal amount of the Term Commitment (such notes being referred to
hereinafter as the "Term Notes"). The Lenders may, and are hereby authorized by
the Borrower to, set forth on the grids attached to the Notes, or in other
comparable records maintained by them, the amount of each Loan, all payments and
prepayments of principal and interest received, the current outstanding
principal balance, and other appropriate information. The aggregate unpaid
amount of any Loan set forth in any records maintained by a Lender with respect
to a Note shall be presumptive evidence of the principal amount owing and unpaid
on such Note. Failure of a Lender to record the principal amount of any Loan on
the grid(s) attached to a Note shall not limit or otherwise affect the
obligation of the Borrower hereunder or under such Note to repay the principal
amount of such Loan and all interest accruing thereon.
2.6 Fees.
(a) Revolving Commitment Fees. The Borrower shall pay to the
Administrative Agent for the benefit of the Revolving Lenders a non-refundable
commitment fee on the excess of the aggregate average daily undisbursed amount
of the Revolving Commitment over the aggregate stated amount of the Letters of
Credit then outstanding (the "Unused Revolving Commitment"). The amount of the
commitment fee shall be calculated on a year having 360 days and actual days
elapsed and shall be based on the Leverage Ratio and the percentage of the
Revolving Commitment represented by the Unused Revolving Commitment, as set
forth in the following table:
<TABLE>
<CAPTION>
Leverage Ratio: Unused Revolving Unused Revolving
Commitment is greater Commitment is less than or
than 50% of Revolving equal to 50% of Revolving
Commitment: Commitment:
<S> <C> <C>
Greater than or equal to 4.0 to 1.0: 0.500% 0.375%
Less than 4.0 to 1.0: 0.375% 0.250%
</TABLE>
Such commitment fee shall (i) commence to accrue as of the date hereof and
continue for each day to and including the Termination Date, (ii) be in addition
to any other fee required by the terms and conditions of this Agreement, (iii)
be payable quarterly in arrears on each Quarterly
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<PAGE> 35
Date and on the date the Revolving Commitment is terminated, and (iv) be shared
by the Revolving Lenders in accordance with their Ratable Shares of the
Revolving Commitment.
(b) Term Loan Commitment Fees. The Borrower shall pay to the
Administrative Agent for the benefit of the Term Lenders a non-refundable
commitment fee on the aggregate average daily undisbursed amount of the Term
Commitment (the "Unused Term Commitment"). The amount of the commitment fee
shall be calculated on a year having 360 days and actual days elapsed and shall
be based on the Leverage Ratio and the percentage of the Term Commitment
represented by the Unused Term Commitment, as set forth in the following table:
<TABLE>
<CAPTION>
Leverage Ratio: Unused Term Commitment is greater Unused Term Commitment is less than
than 50% of Term Commitment: or equal to 50% of Term Commitment:
<S> <C> <C>
Greater than or equal to 4.0 to 1.0: 0.500% 0.375%
Less than 4.0 to 1.0: 0.375% 0.250%
</TABLE>
Such commitment fee shall (i) commence to accrue as of the date hereof and
continue for each day to and including the date on which the Term Commitment
expires, (ii) be in addition to any other fee required by the terms and
conditions of this Agreement, (iii) be payable quarterly in arrears on each
Quarterly Date and on the date the Term Commitment is terminated, and (iv) be
shared by the Term Lenders in accordance with their Ratable Shares of the Term
Commitment.
(c) Other Fees. The Borrower shall pay to the Agents such other fees as
are set forth in the Fee Letters.
2.7 Prepayment.
(a) Voluntary Prepayments. By notice to the Administrative Agent (which
shall be irrevocable and in writing or by telephonic communication confirmed by
telecopy or other facsimile transmission on the same day as such telephone
notice) no later than 11:00 A.M. Cleveland, Ohio time on the Banking Day prior
to such prepayment (with respect to any Base Rate Loan) or on the third Banking
Day prior to such prepayment (with respect to any LIBOR Loan), the Borrower may,
at its option, prepay the Loans in whole at any time or in part from time to
time without penalty or premium (except that any such prepayment of any LIBOR
Loan shall be made together with any applicable Prepayment Premium); provided,
however, that each partial prepayment shall be in the aggregate principal amount
of not less than $1,000,000 or an integral multiple of $500,000 in excess
thereof.
(b) Mandatory Prepayments.
(i) Reduction of Commitment. If at any time the sum of the
outstanding principal amount of the Revolving Loans plus the stated amount of
all outstanding Letters of Credit exceeds the Revolving Commitment (as the
Revolving Commitment may be increased or reduced pursuant to the terms hereof),
or if the outstanding principal amount of the
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<PAGE> 36
Term Loans exceeds the Term Commitment, the Borrower shall immediately prepay
the Revolving Loans or the Term Loans, as the case may be, without penalty or
premium (except that any such prepayment of any LIBOR Loan shall be made
together with the applicable Prepayment Premium), in an amount necessary to
cause the sum of the outstanding principal amount of the Revolving Loans plus
the stated amount of all outstanding Letters of Credit, or the outstanding
principal amount of the Term Loans, not to exceed the Revolving Commitment or
the Term Commitment, as the case may be. All accrued interest on the amount
prepaid shall be paid with the prepayment.
(ii) Excess Cash Flow. If the Leverage Ratio as of the end of any
fiscal year of the Borrower ending on or after December 31, 2002, is 5.0 to 1.0
or greater, then within one hundred twenty-five days after the end of such
fiscal year the Borrower shall make a mandatory prepayment of the Loans in an
amount equal to 50% (or, if an Event of Default is then continuing, 100%) of
Excess Cash Flow, if any, for such fiscal year. Mandatory prepayments made
pursuant to this Section 2.7(b)(ii) shall be determined from the annual
financial statements for such fiscal year delivered by the Borrower pursuant to
Section 7.5(a) and shall be accompanied by a certificate signed by a financial
officer of the Borrower setting forth the calculations from which the amount of
such prepayment was determined.
(iii) Proceeds of Asset Sales and Insurance Proceeds.
(A) Subject to paragraph (B) below, if, at any time during the
period (the "Reinvestment Period") beginning on the date of consummation of an
Asset Sale or the date on which any Loan Party receives insurance proceeds in
respect of any casualty to any property of a Loan Party which proceeds are in
the amount of $10,000,000 or more (either such date being the "Start Date") and
ending on the earlier of the first anniversary of the Start Date and the date on
which the net cash proceeds of such Asset Sale or of such insurance are
reinvested pursuant to a Permitted Acquisition or used to repair or replace such
damaged or destroyed property, the Leverage Ratio is greater than 5.5 to 1.0,
then the Borrower shall make a mandatory prepayment of the Loans; provided,
however that the Borrower shall not be required to make such a mandatory
prepayment of the Loans, so long as (I) the Borrower or one of its Subsidiaries
reinvests such proceeds by making a Permitted Acquisition or replacing such
damaged or destroyed property within twelve months after the Start Date, and
(II) no Event of Default or Possible Default exists as of the Start Date or at
any time during the Reinvestment Period. If any such Event of Default or
Possible Default exists at any time during the Reinvestment Period or if such
proceeds are not so reinvested during the Reinvestment Period, then the Borrower
shall make a mandatory prepayment of the Loans promptly following the occurrence
of such Event of Default or Possible Default or the end of the Reinvestment
Period, whichever is earlier, in an amount equal to the cash proceeds of such
Asset Sale or the amount of such insurance proceeds, net of any reasonable costs
directly incurred in connection with such Asset Sale or with collecting such
insurance proceeds, any taxes payable by a Loan Party in connection with such
Asset Sale and any amounts reinvested, or contractually obligated to be
reinvested, pursuant to a Permitted Acquisition or to replace damaged or
destroyed property. Together with any prepayment required by this Section
2.7(b)(iii), the Borrower shall deliver to the Administrative Agent a
certificate executed by a financial officer of the Borrower setting forth the
calculation of the net cash proceeds of such Asset Sale or of such insurance
proceeds, including a calculation of the taxes payable by a Loan Party in
respect of such sale.
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<PAGE> 37
(B) Notwithstanding the foregoing provisions of this Section
2.7(b)(iii), the Borrower shall not be required to make a mandatory prepayment
of the Loans in connection with the consummation of an Asset Sale if (I) the
Asset Sale is structured as an exchange of like-kind property under Section 1031
of the Code to the maximum extent possible under Section 1031 (a "Like Kind
Exchange"), (II) the property acquired in the Like-Kind Exchange is a radio
station located in one of the top 75 markets, as ranked by Metro Survey Area as
determined by The Arbitron Company, or in a market in which the Borrower or one
of its Subsidiaries already owns a Station, (III) no Possible Default or Event
of Default exists at the time of such Asset Sale or would exist after giving
effect thereto, and (IV) the Borrower shall have delivered to the Administrative
Agent a certificate of a financial officer of the Borrower in form and substance
satisfactory to the Administrative Agent which shall contain calculations
demonstrating on a pro forma basis the Borrower's compliance with the financial
covenants set forth in Section 8 after giving effect to such Asset Sale. If the
Borrower desires to effect a Like-Kind Exchange, at or prior to closing the
disposition of any Station pursuant to this paragraph, the Borrower shall (A)
establish a "qualified escrow account" within the meaning of Treas. Reg. Section
1.1031(k)-1(g)(3) with a "qualified intermediary" within the meaning of Treas.
Reg. Section 1.1031(k)-1(g)(4) (the "Qualified Intermediary"), which account
shall be governed by an escrow agreement complying with the requirements of
Treas. Reg. Sections 1.1031(k)-1(g)(4) and 1.1031(k)-1(g)(6), and enter
into an "exchange agreement" within the meaning of Treas. Reg. Section
1.1031(k)-1(g)(4)(iii)(B) with the Qualified Intermediary and (B) deliver to the
Administrative Agent, as soon as reasonably practicable but in no event later
than the closing of the transfer or other disposition of such Station by the
Borrower or one of its Subsidiaries, a pledge of its rights in the escrow
agreement in form and substance reasonably satisfactory to the Administrative
Agent which governs the "qualified escrow account" and the proceeds thereof. No
later than immediately before the consummation of the closing of the transfer or
other disposition of such Station by the Borrower or one of its Subsidiaries,
the Administrative Agent shall release any and all liens of the Administrative
Agent or the Lenders in the cash proceeds from the transfer or other disposition
of such Station for the period necessary (but no longer than necessary) to
comply with the requirements of Treas. Reg. Section 1.1031(k)-1(g)(6). The terms
of the escrow agreement governing the "qualified escrow account" shall, among
other things, provide that immediately upon the occurrence of any event set
forth in Treas. Reg. Section 1.1031(k)-1(g)(6)(ii) or (iii), the cash proceeds
from the transfer or other disposition of such Station, together with any
interest thereon, net of any reasonable costs directly incurred by the Borrower
or its Subsidiary in connection with the transactions contemplated by the
Like-Kind Exchange, and any taxes payable by the Borrower with respect to such
transactions and Like-Kind Exchange, shall be released to the Administrative
Agent, to the extent of any then outstanding balance of the Loans, to be applied
as provided in Section 2.7(c) hereof.
(iv) Net Equity Proceeds. If the Borrower issues or sells any
shares of its capital stock or other equity interests or securities convertible
into or exercisable for any shares of its capital stock or other equity
interests, and if as of the end of the quarter most recently ended prior to such
issuance or sale (the "Test Date") the Leverage Ratio was greater than 6.0 to
1.0, then the Borrower shall make a mandatory prepayment of the Loans. Such
prepayment shall be in an amount equal to the lesser of 50% of the cash proceeds
of such issuance or sale, net of any reasonable costs directly incurred in
connection with such issuance or sale, and the amount of such proceeds which,
had it been prepaid on the Test Date and applied to the Loans, would have caused
the Leverage Ratio to equal 6.0 to 1.0.
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<PAGE> 38
(c) Application of Prepayments; Reduction of Commitment.
(i) Application to Prepayment Premium, Accrued Interest and
Principal. All prepayments made pursuant to this Section 2.7 shall be applied
first to any Prepayment Premium then due, then to accrued interest in accordance
with the Administrative Agent's standard operating procedures and then to the
principal outstanding under the Loans. All prepayments made pursuant to Sections
2.7(b)(ii), (iii) or (iv) shall be applied to the Revolving Loans and the Term
Loans pro rata. For purposes of the calculation of interest and the
determination of whether any Prepayment Premium is due in connection with any
such prepayment, such principal prepayments shall be applied first to the Base
Rate Loans and then to the LIBOR Loans with the shortest remaining Interest
Periods.
(ii) Reduction of Revolving Commitment and Revolving Loans.
Any mandatory prepayment of the Revolving Loans (other than pursuant to Section
2.7(b)(i)) shall cause the Revolving Commitment to be immediately, automatically
and permanently reduced by the amount of such prepayment, and no amount so
prepaid may be reborrowed. Each such mandatory prepayment of the Revolving Loans
shall be applied to all subsequent Revolving Commitment reductions set forth in
Section 2.1(b) pro rata.
(iii) Reduction of Term Commitment and Term Loans. Any
mandatory prepayment of the Term Loans (other than pursuant to Section
2.7(b)(i)) shall cause the Term Commitment (to the extent not already expired)
to be immediately, automatically and permanently reduced by the amount of such
prepayment. Each such mandatory prepayment of the Term Loans shall be applied to
all subsequent principal installments due pursuant to Section 2.2(b) pro rata.
No amount so prepaid may be reborrowed.
(d) Prepayment Premium. The Borrower shall pay to the Administrative
Agent, for the benefit of the Lenders, any applicable Prepayment Premium upon
any prepayment or conversion (whether voluntary or involuntary) of any LIBOR
Loan not made on the last day of the applicable Interest Period.
2.8 Reserves or Deposit Requirements, Etc. If at any time any
Regulatory Change (including without limitation, any change after the date
hereof to Regulation D of the Board of Governors of the Federal Reserve System)
shall impose any reserve and/or special deposit requirement (other than reserves
included in the LIBOR Reserve Percentage, the effect of which is reflected in
the interest rate of any LIBOR Loan) against assets held by, or deposits in or
for the amount of any loans by, any Lender, and the result of the foregoing is
to increase the cost (whether by incurring a cost or adding to a cost) to such
Lender of taking or maintaining hereunder any LIBOR Loan or to reduce the amount
of principal, interest or fees received by such Lender with respect to any such
Loan, then such Lender shall notify the Administrative Agent and the Borrower of
such occurrence. Thereafter, upon demand by such Lender the Borrower shall pay
to such Lender additional amounts sufficient to compensate and indemnify such
Lender for such increased cost or reduced amount. A statement as to the
increased cost or reduced amount as a result of any event mentioned in this
Section shall be submitted by such Lender to the Administrative Agent and the
Borrower and shall, in the absence of manifest error, be conclusive and binding
as to the amount thereof.
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<PAGE> 39
2.9 Tax Law, Increased Costs, Etc. In the event that by reason of any
Regulatory Change, any Lender shall, with respect to this Agreement or any
transaction under this Agreement, be subjected to any tax, levy, impost, charge,
fee, duty, deduction or withholding of any kind whatsoever (other than any tax
imposed upon the net income of such Lender and other than changes in franchise
taxes), and if any such measure or any other similar measure shall result in an
increase in the costs to such Lender of making or maintaining any LIBOR Loan or
in a reduction in the amount of principal or interest ultimately receivable by
such Lender in respect of such Loan, then such Lender shall notify the
Administrative Agent and the Borrower stating the reasons therefor. The Borrower
shall thereafter pay to such Lender within ten days after written demand such
additional amounts as will compensate such Lender for such increased cost or
reduced amount. A statement as to any such increased cost or reduced amount
shall be submitted by such Lender to the Administrative Agent and the Borrower
and shall, in the absence of manifest error, be conclusive and binding as to the
amount thereof.
2.10 Eurodollar Deposits Unavailable or Interest Rate Unascertainable.
If any Lender determines that dollar deposits of the relevant amount for the
relevant Interest Period are not available to it in the applicable Eurodollar
market or that, by reason of circumstances affecting such market, adequate and
reasonable means do not exist for ascertaining the LIBOR Rate applicable to such
Interest Period, or that the LIBOR Rate does not adequately reflect the cost to
such Lender of making such Loan, as the case may be, such Lender shall promptly
give notice of such determination to the Administrative Agent and the Borrower,
and any request for a new LIBOR Loan from such Lender or notice of conversion of
an existing Loan to a LIBOR Loan from such Lender given thereafter or previously
given by the Borrower and not yet made or converted shall be deemed a notice for
such Lender to make a Base Rate Loan, unless and until such Lender shall have
determined that the circumstances giving rise to such determination no longer
apply, in which event such Lender shall promptly notify the Administrative Agent
and the Borrower of that fact.
2.11 Changes in Law Rendering LIBOR Loans Unlawful. If at any time any
Regulatory Change shall make it unlawful for any Lender to fund any LIBOR Loan
which it has committed to make hereunder with moneys obtained in the applicable
Eurodollar market, such Lender shall notify the Administrative Agent and the
Borrower, and the obligation of such Lender to fund such LIBOR Loan shall, upon
the happening of such event, forthwith be suspended for the duration of such
illegality and any request by the Borrower for a LIBOR Loan of such Lender shall
be deemed to be a request for a Base Rate Loan. If any such change makes it
unlawful for any Lender to continue in effect the funding in the applicable
Eurodollar market of any LIBOR Loan previously made by it hereunder, such Lender
shall, upon the happening of such event, notify the Administrative Agent and the
Borrower thereof in writing stating the reasons therefor, and the Borrower
shall, on the earlier of (a) the last day of the then current Interest Period or
(b) if required by such Regulatory Change on such date as shall be specified in
such notice, either convert all such Loans of such Lender to Base Rate Loans or
prepay all such Lender's LIBOR Loans in full.
2.12 Funding. Any Lender may, but shall not be required to, make LIBOR
Loans hereunder with funds obtained outside the United States.
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<PAGE> 40
2.13 Indemnity. Without prejudice to any other provisions of Sections
2.8 through Section 2.12 or to the obligation of the Borrower to pay the
Prepayment Premium pursuant to Section 2.7(d), but without duplication, the
Borrower hereby agrees to indemnify the Administrative Agent and each Lender
against any loss (other than lost profits) or expense which it may sustain or
incur as a consequence of the Borrower's failure to borrow any LIBOR Loan
requested pursuant to this Agreement, or the Borrower's failure to continue any
LIBOR Loan or convert any Base Rate Loan to a LIBOR Loan, in either case after
notice of such continuation or conversion shall have been given to the
Administrative Agent pursuant to Section 2.4(b), or any default by the Borrower
in payment when due of any amount due hereunder in respect of any LIBOR Loan,
including, but not limited to, any premium or penalty actually incurred by such
Lender in respect of funds borrowed by it for the purpose of making or
maintaining such Loan, as determined by such Lender. A statement as to any such
loss or expense shall be submitted by the Administrative Agent or such Lender to
the Borrower for payment under the aforesaid indemnification, with a copy to the
Administrative Agent, which statement shall, in the absence of manifest error,
be conclusive and binding as to the amount thereof.
2.14 Capital Adequacy. If any Lender shall determine that any
Regulatory Change regarding capital adequacy or compliance by such Lender (or
its lending office) with any request or directive regarding capital adequacy
(whether or not having the force of law) of any governmental authority, central
bank or comparable agency first made after the date hereof has the effect of
reducing the rate of return on such Lender's capital (or on the capital of such
Lender's holding company) as a consequence of its obligations hereunder to a
level below that which such Lender (or its holding company) could have achieved
but for such Regulatory Change or compliance (taking into consideration such
Lender's policies or the policies of its holding company with respect to capital
adequacy) by an amount which such Lender deems to be material, then from time to
time, within ten days after demand by such Lender, the Borrower shall pay to
such Lender such additional amount or amounts as will compensate such Lender (or
its holding company) for such reduction. Such Lender will designate a different
lending office if such designation will avoid the need for, or reduce the amount
of, such compensation and will not, in the sole judgment of such Lender, be
otherwise disadvantageous to such Lender. A certificate of such Lender claiming
compensation under this Section and setting forth the additional amount to be
paid to it hereunder shall be conclusive in the absence of manifest error. In
determining such amount, such Lender may use any reasonable averaging and
attribution methods. Failure on the part of any Lender to demand compensation
for any reduction in return on capital with respect to any period shall not
constitute a waiver of such Lender's rights to demand compensation for any
reduction in return on capital in such period or in any other period; provided,
however, the Borrower shall not be responsible to pay any such compensation to a
Lender in respect of any period prior to the date that is one year prior to the
date of its receipt of such demand from such Lender. The protection of this
Section shall be available to each Lender regardless of any possible contention
of the invalidity or inapplicability of the law, regulation or other condition
which shall have been imposed.
2.15 Taxes.
(a) Without duplication of any other Section of this
Agreement, including, without limitation Section 2.9, all sums payable by the
Borrower hereunder or under the Notes or in respect of the Letters of Credit,
whether of principal, interest, fees, expenses or otherwise,
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<PAGE> 41
shall be paid in full, free of any deductions or withholdings for any and all
present and future taxes, levies, imposts, stamps, duties, fees, assessments,
deductions, withholdings, and other governmental charges and all liabilities
with respect thereto, in each case other than income and franchise taxes (all
such non-excluded amounts are collectively referred to as "Taxes"). If the
Borrower is prohibited by law from making payments hereunder or under the Notes
or in respect of the Letters of Credit free of such deductions or withholdings,
then the Borrower shall pay such additional amount of Taxes as may be necessary
in order that the actual amount received by the Lenders after such deduction or
withholding shall equal the full amount stated to be payable hereunder or under
the Notes or in respect of the Letters of Credit. The Borrower shall pay
directly to all appropriate taxing authorities any and all present and future
Taxes, and all liabilities with respect thereto imposed by law or by any taxing
authority on or with regard to any aspect of the transactions contemplated by
this Agreement or the execution and delivery of this Agreement or the Notes or
the issuance of the Letters of Credit, except for any Taxes or other liabilities
that the Borrower is contesting in good faith by appropriate proceedings,
provided that the Borrower hereby indemnifies the Administrative Agent and the
Lenders and holds them harmless from and against any and all liabilities, fees
or additional expense with respect to or resulting from any delay in paying, or
omission to pay, Taxes. Within thirty days after the payment by the Borrower of
any Taxes, the Borrower shall furnish the Administrative Agent with the original
or a certified copy of the receipt evidencing payment thereof, together with any
other information the Administrative Agent may reasonably require to establish
to its satisfaction that full and timely payment of such Taxes has been made.
Each Lender shall notify the Borrower and the Administrative Agent of any
payment of Taxes required or requested of it and shall give due consideration to
any advice or recommendation given in response thereto by the Borrower, and upon
notice from such Lender that Taxes or any liability relating thereto (including
penalties and interest, to the extent caused by the Borrower) have been paid,
the Borrower shall pay or reimburse such Lender therefor within ten days of such
notice. The foregoing to the contrary notwithstanding, in no event shall any
Lender receive any amount pursuant to this Section in excess of the amount
required to be paid by it in respect of any Taxes. Without prejudice to the
survival of any other agreement of the Borrower hereunder, the agreements and
obligations of the Borrower contained in this Section shall survive the payment
in full of principal and interest hereunder and under the Notes.
(b) Upon the timely request of the Borrower, each Lender shall
execute and deliver to the Borrower, prior to the due date of any sum payable by
the Borrower under this Agreement, one or more (as the Borrower may reasonably
request) United States Internal Revenue Service Forms 4224, Forms 1001, Forms
W-8 or Forms W-9, or any applicable successor form, as may be appropriately
applicable to such Lender and which such Lender is lawfully able and legally
required to execute and deliver. Notwithstanding the provisions of Sections 2.9
or 2.15(a) to the contrary, the Borrower shall have no obligation to increase
any sum payable in respect of any Tax pursuant to such Sections to the extent
such Lender has failed to deliver to the Borrower any such Forms reasonably
requested by the Borrower pursuant to this Section which is applicable to such
Lender and which such Lender is lawfully able and legally required to execute
and deliver.
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2.16 Incremental Commitment.
(a) At any time prior to December 31, 2001, the Borrower may
solicit from the Lenders increases in the Commitments of up to an aggregate
amount of $350,000,000; provided, however, that the Borrower may not request
such increase at any time that a Possible Default or an Event of Default has
occurred and is continuing; and provided, further, that each such increase shall
be in an amount of at least $50,000,000. With such solicitation, the Borrower
shall deliver to the Administrative Agent and the Lenders revised projections
for the period from the date of such solicitation through the Termination Date
which shall be in form and substance reasonably satisfactory to the
Administrative Agent and shall demonstrate the Borrower's ability to timely
repay the Loans, assuming the Commitments as increased pursuant to this Section
are fully drawn, and to comply with the financial covenants contained in Section
8. No Lender shall be obligated to increase its share of either Commitment, and
no Lender shall be removed as a Lender for failure to agree to such increase.
(b) If any Lender desires to participate in such increase in a
Commitment (a "Consenting Lender"), such Lender shall notify the Administrative
Agent and the Borrower of the amount by which it desires to increase its share
of such Commitment. The Commitments shall be increased by the aggregate amount
that the Consenting Lenders are willing to increase their respective commitments
hereunder, but in no event shall the Commitments be increased pursuant to this
Section by more than $350,000,000. The loans made pursuant to any such increase
in the Commitments shall be Revolving Loans or Term Loans (as requested by the
Borrower), shall be deemed to be Loans for all purposes of this Agreement and
the Collateral Documents and shall be subject to the terms and conditions of
this Agreement, except as may be otherwise agreed upon among the Borrower and
the Required Lenders; provided, however, that such Loans shall not have a
maturity date prior to the Termination Date without the consent of all of the
Lenders. The aggregate increase in the Commitments shall be shared by the
Consenting Lenders in such ratio as the Borrower and the Agents shall determine.
The increase in the Commitments shall be implemented pursuant to documentation
consistent herewith and otherwise in form and substance reasonably satisfactory
to the Administrative Agent, the Issuing Bank, the Required Lenders and the
Borrower. The Borrower shall deliver to each Consenting Lender a new Note or
Notes reflecting the increase in its share of such Commitment. The Ratable
Shares of all of the Lenders shall be adjusted to reflect such increase in the
Commitments, and Schedule 1.1 shall be deemed modified to reflect such
adjustment to the Ratable Shares of the Lenders. Any fees payable in connection
with such increase in the Commitment shall be payable only to the Agents, with
respect to fees payable to the Agents, and to the Consenting Lenders, in their
capacity as Consenting Lenders.
2.17 Right to Remove Affected Lender. In the event that (a) the
Borrower receives a notice under Sections 2.8, 2.9, 2.10, 2.11 (if such
illegality or condition is not generally applicable to the Lenders), 2.14 or
2.15 from any Lender, (b) any Lender makes a demand for compensation from the
Borrower pursuant to Sections 2.8, 2.9, 2.11, 2.14 or 2.15 or (c) any Lender
fails for any reason to make its Ratable Share of any Loan it is required to
make pursuant to Section 2.1(a) or Section 2.2(a) (such Lender being referred to
in this Section as the "Affected Lender"), the Borrower, at its option, shall
have the right to designate a replacement Lender that is acceptable to the
Administrative Agent, to purchase for cash the Affected Lender's Loans, if any,
and to assume all of the Affected Lender's Ratable Share of the Commitments and
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the Letters of Credit and all of the Affected Lender's other rights and
obligations hereunder (including its obligations under Section 2.3(d)) without
recourse to or warranty by, or expense to, the Affected Lender, for a purchase
price equal to (i) the principal amount of all of the Affected Lender's
outstanding Loans, plus (ii) any accrued but unpaid interest thereon, plus (iii)
any accrued but unpaid commitment fees in respect of the Affected Lender's
Ratable Share of the Commitments, plus (iv) any other amounts that may be owing
to the Affected Lender hereunder, including any amount which would be payable to
the Affected Lender pursuant to Sections 2.8, 2.9, 2.11, 2.13, 2.14 or 2.15. The
assignee Lender shall pay to the Administrative Agent the fee set forth in
Section 13.7(c) in connection with any assignment made pursuant to this Section.
If any Lender becomes an Affected Lender pursuant to clause (c) above, then it
shall not have the right to vote on any matter presented to the Lenders for a
vote until such time as its failure to make its Ratable Share of a Loan has been
cured or until it has been removed pursuant to this Section, and any portion of
Loans made by it shall be deemed not to be outstanding solely for purposes of
such vote.
Section 3 INTEREST; PAYMENTS.
3.1 Interest.
(a) Subject to Section 3.1(c), prior to maturity, Loans that
are LIBOR Loans shall bear interest at the LIBOR Rate plus the Applicable
Margin, and Loans that are Base Rate Loans shall bear interest at the Base Rate
plus the Applicable Margin.
(b) The Applicable Margin shall be determined by the
Administrative Agent quarterly, and upon the making of each Loan and issuance of
each Letter of Credit, in each case in an amount in excess of $10,000,000, based
on the financial statements and the Compliance Certificate delivered to the
Lenders pursuant to Sections 7.5(b) and (d) (in the case of a quarterly
determination) and the compliance certificate delivered pursuant to Section
6.9(c) (in the case of determination of the Applicable Margin upon the making of
a Loan or issuance of a Letter of Credit). Any change in the interest rate on
the Loans due to a change in the Applicable Margin shall be effective on the
fifth Banking Day after delivery of such financial statements or compliance
certificate; provided, however, that if any such quarterly financial statements
and compliance certificate indicate an increase in the Applicable Margin and
such financial statements and certificate are not provided within the time
period required in Section 7.5(b), without limiting the effect of any other
consequences of such Possible Default, the increase in the interest rate due to
such increase in the Applicable Margin shall be effective retroactively as of
the fifth Banking Day after the date on which such financial statements and
certificate were due. For the first six months after the Closing Date, for
purposes solely of calculating the Applicable Margin, the Leverage Ratio shall
be deemed to be the higher of (i) 6.0 to 1.0 and (ii) the actual Leverage Ratio
as calculated in accordance with the definition of that term. The Borrower shall
deliver to the Lenders with each set of quarterly financial statements or
compliance certificate delivered pursuant to Section 6.9(c) that indicates a
change in the Applicable Margin a notice with respect to such change, which
notice shall set forth the calculation of, and the supporting evidence for, such
change.
(c) Upon the occurrence of any Event of Default, the entire
outstanding principal amount of each Loan and (to the extent permitted by law)
unpaid interest thereon and
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all other amounts due hereunder shall bear interest, from the date of occurrence
of such Event of Default until the earlier of the date such Loan or other amount
is paid in full and the date on which such Event of Default is cured or waived
in writing, at the Default Interest Rate which shall be payable from time to
time upon demand.
(d) Interest shall be computed on a Three Hundred Sixty day
year basis calculated for the actual number of days elapsed. Interest accrued on
each Base Rate Loan shall be paid quarterly in arrears on each Quarterly Date
after the date hereof until such Loan is paid in full and on the date such Loan
is paid in full, and interest accrued on each LIBOR Loan shall be paid on the
last day of the Interest Period thereof and on the date such Loan is paid in
full, and, in addition, if such Interest Period is more than three months, on
the day that would have been the last day of such Interest Period if such
Interest Period had been three months.
(e) The rate of interest payable on any Note from time to time
shall in no event exceed the maximum rate, if any, permissible under applicable
law. If the rate of interest payable on any Note is ever reduced as a result of
the preceding sentence and any time thereafter the maximum rate permitted by
applicable law shall exceed the rate of interest provided for on such Note, then
the rate provided for on such Note shall be increased to the maximum rate
permitted by applicable law for such period as is required so that the total
amount of interest received by the holder of such Note is that which would have
been received by such holder but for the operation of the preceding sentence.
3.2 Manner of Payments.
(a) Prior to each Quarterly Date and the end of each Interest
Period (and for Interest Periods of more than three months, each three months
after the first day of such Interest Period), the Administrative Agent shall
render a statement to the Borrower of all amounts due to the Lenders for
principal, interest and fees hereunder. All amounts listed on each such
statement shall be due and payable on the Quarterly Date or, for LIBOR Loans,
the last day of such Interest Period (and for Interest Periods of more than
three months, each three months after the first day of such Interest Period), in
respect of which such statement was sent. As to all other Obligations which
become due and payable other than on a fixed date by their terms, the
Administrative Agent shall advise the Borrower by a written statement that they
are due and payable, and the Borrower shall pay the same within five days of
receipt of such statement. Any failure by the Administrative Agent to render any
such statement or give any such advice shall in no way relieve the Borrower of
any liability for or obligation to pay any amount due and payable hereunder.
(b) Whenever any payment to be made hereunder, including
without limitation any payment to be made on a Note, shall be stated to be due
on a day which is not a Banking Day, such payment may be made on the next
succeeding Banking Day, and such extension of time shall in each case be
included in the computation of the interest payable on such Note.
(c) Unless otherwise provided in this Agreement, all payments
or prepayments made or due hereunder or under the Notes shall be made in
immediately available funds by federal funds wire transfer, and without setoff,
deduction or counterclaim, to the
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Administrative Agent prior to 1:00 P.M., Cleveland time, on the date when due,
at its offices at 127 Public Square, Cleveland, Ohio 44114, or at such other
place as may be designated by the Administrative Agent. Funds received after
1:00 P.M., Cleveland time, shall be deemed to have been received on the next
Banking Day. To the extent any such payment is made for the ratable benefit of
the Lenders, the Administrative Agent shall promptly distribute such payment to
the Lenders in accordance with their respective Ratable Shares.
Section 4 CLOSING.
The closing of the first Loan to be made hereunder and the other
transactions contemplated by this Agreement shall take place at the offices of
the Administrative Agent at 127 Public Square, Cleveland, Ohio 44114 on or about
December 16, 1999, or such other date and place as to which the parties may
agree (the "Closing" and the "Closing Date"). Subject to the terms and
conditions hereof, upon the fulfillment or waiver in writing of all the
conditions precedent set out in Section 6 below, and the delivery to the
Administrative Agent of the Notes, the Lenders shall make such Loans as the
Borrower may request.
Section 5 REPRESENTATIONS AND WARRANTIES.
To induce the Lenders to enter into this Agreement and to make the
Loans, the Parent and the Borrower, jointly and severally, represent and warrant
as follows:
5.1 Organization and Powers.
(a) The Borrower is a limited liability company, duly
organized, validly existing and in good standing under the laws of the State of
Delaware. The Borrower is duly qualified or registered to conduct business and
in good standing under the laws of each other jurisdiction in which the
character of its business or the ownership of its assets makes such
qualification or registration necessary, except where failure to so qualify or
register could not reasonably be expected to have a Material Adverse Effect. The
Borrower has all requisite power and authority to own and operate its
properties, to carry on its business as now conducted and proposed to be
conducted, to enter into and perform the Sinclair Purchase Agreements, this
Agreement, the Collateral Documents to which it is a party and all other
documents to be executed by it in connection with the transactions contemplated
hereby and thereby, to acquire the additional Stations pursuant to the Sinclair
Purchase Agreements and to carry out the terms hereof and thereof.
(b) The Parent is a corporation , duly organized, validly
existing and in good standing under the laws of the Commonwealth of
Pennsylvania. The Parent is duly qualified or registered to conduct business and
in good standing under the laws of each other jurisdiction in which the
character of its business or the ownership of its assets makes such
qualification or registration necessary, except where failure to so qualify or
register could not reasonably be expected to have a Material Adverse Effect. The
Parent has all requisite power and authority to own and operate its properties,
to carry on its business as now conducted and proposed to be conducted, to enter
into and perform this Agreement, the Collateral Documents to which it is a party
and all other documents to be executed by it in connection with the transactions
contemplated hereby and thereby and to carry out the terms hereof and thereof.
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(c) As of the date hereof, the Borrower has no Subsidiaries
other than those listed on Schedule 5.1. Each Subsidiary is duly organized,
validly existing and in good standing under the laws of its jurisdiction of
organization and is duly qualified and in good standing under the laws of each
other jurisdiction in which the character of its business or the ownership of
its assets makes such qualification or registration necessary, except where
failure to so qualify or register could not reasonably be expected to have a
Material Adverse Effect. Each Subsidiary is directly or indirectly wholly owned
by the Borrower. Each Subsidiary has all requisite power and authority to own
and operate its properties, to carry on its business as now conducted and
proposed to be conducted, to enter into and perform the Collateral Documents to
which it is a party and all other documents to be executed by it in connection
with the transactions contemplated hereby and thereby and to carry out the terms
hereof and thereof.
(d) The Parent has no Subsidiaries other than the Borrower and
the Borrower's Subsidiaries and the TIDES Trust, which was created for the sole
purpose of issuing common trust securities to the Parent and the TIDES Preferred
Securities.
5.2 Authorization. All necessary corporate, limited liability company,
partnership, shareholder, member or other actions on the part of each Loan Party
to authorize the Drop Down and the execution and delivery of the Sinclair
Purchase Agreements, this Agreement and the Collateral Documents and the
performance of the respective obligations of the Loan Parties herein and therein
have been taken. The Sinclair Purchase Agreements, this Agreement and each
Collateral Document have been duly authorized, executed and delivered by each
Loan Party and are valid and legally binding upon each Loan Party, to the extent
it is a party thereto, and enforceable in accordance with their respective
terms, except to the extent that the enforceability hereof and thereof may be
limited by bankruptcy, insolvency or like laws affecting creditors rights
generally and by the application of general equitable principles.
5.3 Financial Statements. The Confidential Offering Memorandum contains
complete and correct copies of (a) the audited consolidated financial statements
of the Parent and its Subsidiaries for the fiscal years ending September 30,
1997, and September 30, 1998, and (b) the unaudited consolidated financial
statements of the Parent and its Subsidiaries as of June 30, 1999, and for the
six month period then ended (the "Financial Statements"). The Financial
Statements are true and complete in all material respects (including, without
limitation, a disclosure of all material contingent liabilities) and present
fairly the financial condition and results of operations of the Parent and its
Subsidiaries, as of the dates and for the periods indicated and have been
prepared in accordance with GAAP, subject in the case of statements for interim
periods to normal year-end adjustments and the absence of footnotes.
5.4 Projections. The Confidential Offering Memorandum contains the
Borrower's projections for the fiscal years 1999 through 2008. Such projections
were prepared by the Borrower in good faith on the basis of assumptions the
Borrower believes were reasonable in light of the conditions existing at the
time of preparation thereof and remain reasonable as of the date hereof, and as
of the date hereof there are no facts that are known to the Borrower that the
Borrower believes would cause a material adverse change in such projections.
5.5 Capitalization of the Loan Parties. The capitalization of each Loan
Party as of the Closing Date, after giving effect to the Drop Down, is as set
forth on Schedule 5.5 attached
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hereto. All of the issued and outstanding capital stock of the Parent has been
duly and validly issued and is fully paid and non-assessable. All of the issued
and outstanding Membership Interests of the Borrower have been duly and validly
issued and are held by the Parent. All of the issued and outstanding membership
interests, capital stock, partnership interests and other equity interests of
the Borrower's Subsidiaries have been duly and validly issued and are held as of
the Closing Date as set forth on Schedule 5.5. All of the Membership Interests
of the Borrower and all of the membership interests, partnership interests,
capital stock or other equity interests of the Borrower's Subsidiaries are free
and clear of any Lien, charge, encumbrance or right or option to purchase except
for the Liens granted pursuant to the Pledge Agreements. None of the capital
stock of the Parent, none of the Membership Interests of the Borrower, and none
of the membership interests, partnership interests, capital stock or other
equity interests of the Borrower's Subsidiaries have been issued in violation of
the Securities Act of 1933, as amended, or the securities or "Blue Sky" or any
other applicable laws, rules or regulations of any applicable jurisdiction.
Except as set forth on Schedule 5.5, as of the Closing Date, neither the
Borrower nor any of its Subsidiaries has any commitment or obligation, either
firm or conditional, to issue, deliver, purchase or sell, under any offer,
option agreement, bonus agreement, purchase plan, incentive plan, compensation
plan, warrant, conversion rights, contingent share agreement, shareholders
agreement, operating agreement, limited liability company agreement, partnership
agreement or otherwise, any shares of its capital stock, membership interests,
partnership interests or other equity securities or securities convertible into
shares of capital stock, membership interests, partnership interests or other
equity securities.
5.6 Title to Properties; Patents, Trademarks, Etc. The Loan Parties
have, and will have after giving effect to the Drop Down and the closings under
the Sinclair Purchase Agreements, good and marketable title to all of their
material assets, whether real or personal, tangible or intangible, free and
clear of any Liens or adverse claims, except Permitted Liens. The Loan Parties
own or possess, and will own or possess after giving effect to the Drop Down and
the closings under the Sinclair Purchase Agreements, the valid right to use all
the patents, patent applications, patent and know-how licenses, inventions,
technology, permits, trademark registrations and applications, trademarks,
service marks, trade names, copyrights, product designs, applications, formulae,
processes, circulation, and other subscriber lists, industrial property rights
and licenses and rights in respect of the foregoing used or necessary for the
conduct of their business (collectively, "proprietary rights"), except where the
failure to have such right could not reasonably be expected to have a Material
Adverse Effect. The Borrower is not aware of any existing or threatened
infringement or misappropriation of (a) any such proprietary rights of others by
any Loan Party or (b) any proprietary rights of any Loan Party by others, in
each case that could reasonably be expected to have a Material Adverse Effect.
5.7 Litigation; Proceedings. Except as disclosed on Schedule 5.7
attached hereto, there is no action, suit, complaint, proceeding, inquiry or
investigation at law or in equity, or by or before any court or governmental
instrumentality or agency, nor any order (including, without limitation, any
order to show cause or order of forfeiture), decree or judgment in effect,
pending or, to the best of the Parent's and the Borrower's knowledge, threatened
against or affecting any Loan Party, any Station or any of the properties or
rights relating to any Station which could reasonably be expected to have a
Material Adverse Effect. No Person has filed or, to the best of the Borrower's
knowledge, threatened to file, any competing application, petition to deny,
petition for reconsideration or other opposition against any application,
including any renewal
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application, filed or to be filed by any Loan Party, including any application
filed in connection with the Sinclair Purchase Agreements that could in any such
case reasonably be expected to have a Material Adverse Effect.
5.8 Taxes. Except as disclosed on Schedule 5.8 attached hereto, all
Federal and all material state and local tax returns, reports and statements
(including, without limitation, those relating to income taxes, withholding,
social security and unemployment taxes, sales and use taxes, and franchise
taxes) required to be filed by any Loan Party have been properly filed with the
appropriate governmental agencies in all jurisdictions in which such returns,
reports and statements are required to be filed, which returns, reports and
statements are complete and accurate in all material respects, and all material
taxes and other impositions due and payable have been timely paid prior to the
date on which any fine, penalty, interest, late charge or loss may be added
thereto for non-payment thereof except where contested in good faith and by
appropriate proceedings. As of the Closing Date, no Loan Party has filed with
the Internal Revenue Service or any other governmental authority any agreement
or other document extending or having the effect of extending the period for
assessment or collection of any Federal, state, local or foreign taxes or other
impositions. All material tax deficiencies asserted or assessments made as a
result of any examinations conducted by the Internal Revenue Service or any
other governmental authority relating to any Loan Party have been fully paid or
are being contested in accordance with the provisions of Section 7.4. Proper and
accurate amounts have been withheld by each Loan Party from its employees for
all periods to fully comply with the tax, social security and unemployment
withholding provisions of applicable Federal, state, local and foreign law,
except where the failure to do so could not reasonably be expected to have a
Material Adverse Effect. The charges, accruals and reserves on the books of each
Loan Party in respect of any material taxes or other governmental charges are
adequate.
5.9 Absence of Conflicts. The Drop Down and the execution, delivery and
performance of the Sinclair Purchase Agreements, this Agreement and the
Collateral Documents and all actions and transactions contemplated hereby and
thereby will not (a) violate, be in conflict with, result in a breach of or
constitute (with due notice or lapse of time or both) a default under (i) any
provision of the Organizational Documents of any Loan Party, (ii) any
arbitration award or any order of any court or of any other governmental agency
or authority binding on any Loan Party, (iii) any License of any Loan Party or
under which any Loan Party operates or will operate after giving effect to the
Drop Down and the closings under the Sinclair Purchase Agreements, (iv) any
applicable law, rule, order, ordinance or regulation (including without
limitation, (A) the Communications Act of 1934, as amended, (B) any law, rule,
regulation or policy of the FCC or any other Licensing Authority or (C)
Regulations T, U or X of the Board of Governors of the Federal Reserve System)
or (v) any Operating Agreement, the TIDES Indenture, the TIDES Trust Declaration
or other material agreement, instrument or document relating to a Station or to
which any Loan Party is a party, or by which any Loan Party or any of its
properties is bound, or (b) result in the creation or imposition of any Lien of
any nature whatsoever, other than those Liens arising hereunder or under the
Collateral Documents, upon any of the material properties of any Loan Party.
5.10 Indebtedness. As of the Closing Date, no Loan Party has any
Indebtedness of any nature, whether due or to become due, absolute, contingent
or otherwise, including Indebtedness for taxes and any interest or penalties
relating thereto, which exceeds in
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the aggregate for all the Loan Parties, $5,000,000, except (a) the liability to
pay legal and accounting fees and reasonable closing expenses in connection with
this Agreement and the Sinclair Purchase Agreements, (b) the Obligations, (c)
Indebtedness incurred in the ordinary course of business since September 30,
1998, (d) as disclosed in the Financial Statements, (e) Indebtedness under the
TIDES Subordinated Debentures, and (f) as disclosed on Schedule 5.10 attached
hereto.
5.11 Compliance. Except as disclosed in Schedule 5.11 attached hereto,
neither any Loan Party nor the ownership, construction or operation of any
Station is in material violation of any Loan Party's Organizational Documents,
any License or any statute, ordinance, law, rule, regulation or order of the
United States of America or the FCC (including, without limitation, applicable
federal laws and the rules, regulation, policies and orders of the FCC relating
to foreign ownership restrictions or to limitations on the nature and number of
media outlets that may be held under common ownership or control), the Federal
Aviation Administration or any other federal, state, county, municipal or other
governmental agency or authority applicable to the Loan Parties, their
properties, the ownership, construction or operation of any Station or the
conduct of their business. Neither any Loan Party nor the ownership,
construction or operation of any Station is in violation or has breached the
provisions of the TIDES Indenture, the TIDES Trust Declaration or any indenture,
License, Operating Agreement, note, lease or other instrument or document to
which it is a party or by which it is bound, nor does there exist any default,
or any event or condition which, upon notice or lapse of time, or both, would
become a default, under the TIDES Indenture, the TIDES Trust Declaration or any
such indenture, License, Operating Agreement, note, lease, or other instrument
or document except for violations, breaches or defaults that could not,
individually or in the aggregate, reasonably be expected to have a Material
Adverse Effect. The Loan Parties have the legal right and authority to conduct
their respective businesses in all material respects as now conducted or
proposed to be conducted.
5.12 Statements Not Misleading. No statement, representation or
warranty made by any Loan Party in or pursuant to the Confidential Offering
Memorandum, this Agreement or the Schedules or Exhibits attached hereto or any
of the Collateral Documents contains any untrue statement of a material fact,
nor omits to state a material fact necessary to make such statement not
misleading in light of the circumstances under which such statement was made, or
otherwise violates any federal or state securities laws, rules or regulations.
There is no fact known to the Parent or the Borrower (other than matters of a
general economic nature or relating to the broadcasting industry generally or
matters reflected in the audited financial statements contained in the
Confidential Offering Memorandum or otherwise disclosed herein) that has had or
could reasonably be expected to have a Material Adverse Effect.
5.13 Consents or Approvals. No consent, approval or authorization of,
or filing, registration or qualification with, any governmental authority or any
other Person (including, without limitation, the FCC and any other Licensing
Authority) is required to be obtained by any Loan Party in connection with the
Drop Down or the execution, delivery or performance of the Sinclair Purchase
Agreements or this Agreement or any of the Collateral Documents, including
without limitation, in connection with the granting of Liens in the Membership
Interests and assets of the Borrower or in the equity interests or assets of its
Subsidiaries, which has not already been obtained or completed, except for (a)
the filing with the
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FCC of this Agreement and certain of the Collateral Documents pursuant to FCC
rules, which shall be accomplished within the required time period after the
Closing, (b) the filing of financing statements and other actions expressly
required to be taken pursuant to the Collateral Documents, (c) the consent of
the FCC to the extent required (i) in connection with the transfer to a License
Subsidiary of the FCC Licenses relating to the Rochester Stations pursuant to
Section 7.17 and (ii) in connection with the exercise by the Administrative
Agent or the Lenders of their rights and remedies hereunder or under the
Collateral Documents and (d) the consent of the FCC to the consummation of the
Sinclair Purchase Agreements.
5.14 Material Contracts and Commitments. Schedule 5.14 attached hereto
contains a true and complete description of all material contracts and
commitments of the Loan Parties or which relate to a Station, as of the Closing
Date, whether oral or written, including, without limitation, (a) any security
agreement, pledge agreement, mortgage or guaranty; (b) any material management,
construction supervision, service or employment agreements, conditional sale
contract or lease of personal property which involves expenditures in excess of
$5,000,000 in any single case; (c) any collective bargaining agreement; (d) any
material contract or commitment for the future purchase or sale of goods which
involves expenditures in excess of $5,000,000 in any single case; (e) any
contract or commitment which involves a material Capital Expenditure in excess
of $5,000,000 in any single case; (f) all Licenses; and (g) all Operating
Agreements. To the best of the Borrower's knowledge, except as disclosed on
Schedule 5.14, as of the Closing Date, all of the items listed on Schedule 5.14
are in full force and effect without material default. Schedule 5.14 further
identifies each such contract which requires consent to the granting of a Lien
in favor of the Administrative Agent for the benefit of the Lenders on the
rights of any Loan Party under such contract. The Borrower has made available to
the Administrative Agent true and complete copies of each of the above.
5.15 Employee Benefit Plans. Schedule 5.15 contains a true and complete
list of all Plans maintained as of the Closing Date by the Borrower or any
member of the Controlled Group. Neither the Borrower nor any member of the
Controlled Group has or will have, after giving effect to the Drop Down and the
closings under the Sinclair Purchase Agreements, any liability, or reasonably
anticipates any liability, of any kind (other than current expenses incurred in
the ordinary course of business) in excess, in the aggregate, of $1,000,000, to
or in respect of any Plan or Benefit Arrangement, which liability is not
reflected in the financial statements included in the Confidential Offering
Memorandum. With respect to the Plans and Benefit Arrangements maintained by the
Borrower or any member of the Controlled Group and except as could not
reasonably be expected individually or in the aggregate to have a Material
Adverse Effect: (a) each Plan that is intended to be qualified under Code
Section 401(a) is so qualified and has been so qualified since its adoption, and
each trust forming a part thereof is exempt from tax under Code Section 501(a);
(b) each Plan complies in all material respects with all applicable requirements
of law, has been administered in accordance with its terms and all required
contributions have been made; (c) neither the Borrower nor any member of the
Controlled Group knows or has reason to know that the Borrower or any member of
the Controlled Group has engaged in a transaction which would subject it to any
material tax, penalty or liability under ERISA or the Code for any prohibited
transaction; (d) except as disclosed on Schedule 5.15, no Plan is subject to the
minimum funding requirements under ERISA Section 302 or Code Section 412, is a
multiemployer plan (as defined in ERISA Section 4001(a)(3)), is a defined
benefit plan (as defined under ERISA Section 3(35) or Code Section 414(j)), or
is a multiple employer plan
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(as defined in ERISA Section 4063) and no ERISA Event has occurred or is
reasonably expected to occur with respect to any such Plan. Except as could not
reasonably be expected, individually or in the aggregate, to have a Material
Adverse Effect, no Plan or Benefit Arrangement maintained by the Borrower or any
member of the Controlled Group is a multiple employer welfare arrangement (as
defined in ERISA Section 3(40)).
5.16 Licenses and Operating Agreements. The Licenses and Operating
Agreements shown on Schedule 5.14 constitute all of the Licenses and Operating
Agreements which, as of the Closing Date, are necessary for the lawful
ownership, construction or operation of the Stations and of the other businesses
of the Loan Parties in the manner and to the full extent they are currently
owned, constructed or operated. Schedule 5.14 sets forth a correct and complete
list, as of the Closing Date, of the expiration date of each License and of each
pending application for a License. Except as specified on Schedule 5.14, or as
disclosed to the Administrative Agent in writing, all of the Licenses relating
to the Stations and all other Licenses of the Loan Parties have been duly and
validly issued or assigned to and are legally held by License Subsidiaries and
are in full force and effect without condition except those of general
application. Except as set forth on Schedule 5.14, or as disclosed to the
Administrative Agent in writing, the Borrower knows of no facts or conditions
which would constitute grounds for any Licensing Authority to deny any pending
application for a License, to suspend, revoke, materially adversely modify,
designate for a hearing, annul, fail to renew on or before its renewal date, or
renew for less than a full license period any License or to impose a material
financial penalty on any Loan Party.
5.17 Material Restrictions. No Loan Party is a party to any agreement
or other instrument or subject to any other restriction which has had or could
reasonably be expected to have a Material Adverse Effect.
5.18 Investment Company Act. No Loan Party (a) is an investment company
as that term is defined in the Investment Company Act of 1940, as amended, (b)
directly or indirectly controls, or is directly or indirectly controlled by, a
company which is an investment company as that term is defined in such act or
(c) is otherwise subject to regulation under such act.
5.19 Absence of Material Adverse Effect. No Material Adverse Effect has
occurred since September 30, 1998.
5.20 Defaults. No Possible Default or Event of Default now exists or
will exist upon the making of any Loan.
5.21 Real Estate. Schedule 5.21 attached hereto lists all real estate
owned as of the Closing Date by any Loan Party and all leases pursuant to which
any Loan Party has acquired, as of the Closing Date, a leasehold interest in
real estate other than real estate or leases that are not material to the
operations of any Loan Party. Schedule 5.21 lists the use as of the Closing Date
of such owned and leased property in the Loan Parties' operations.
5.22 Securities Laws. Except as permitted pursuant to Section 8.11, no
proceeds of any Loan will be used by any Loan Party to acquire any security in
any transaction
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which is subject to Section 13(d) or 14(d) of the Securities Exchange Act of
1934, as amended. Neither the registration of any security under the Securities
Act of 1933, as amended, or the securities laws of any state, nor the
qualification of an indenture in respect thereof under the Trust Indenture Act
of 1939, as amended, is required in connection with the consummation of this
Agreement or the execution and delivery of the Notes.
5.23 Insurance. All policies of insurance of any kind or nature owned
by or issued to any Loan Party are in compliance with the requirements of
Section 7.3 and are in full force and effect.
5.24 Labor Matters. Except as set forth in Schedule 5.24 attached
hereto, there are no material strikes, unfair labor practice charges or other
material labor disputes or grievances pending or, to the best of the Parent's
and the Borrower's knowledge, threatened against any Loan Party or any Station
that could, individually or in the aggregate, reasonably be expected to have a
Material Adverse Effect. No Loan Party has received any written complaints or
knowledge of any threatened complaints, nor to the best of the Parent's and the
Borrower's knowledge, are any such complaints on file with any Federal, state or
local governmental agency, alleging employment discrimination by any Loan Party
or in connection with any Station which would, individually or in the aggregate,
reasonably be expected to have a Material Adverse Effect. All material payments
due under any collective bargaining agreement to which any Loan Party is a party
have been paid or accrued as a liability on the books of any Loan Party.
5.25 Environmental Compliance.
Except as set forth in Schedule 5.25 attached hereto and as would not
reasonably be expected to have a Material Adverse Effect, and giving effect to
the consummation of the Sinclair Purchase Agreements:
(a) The Loan Parties have obtained all permits, licenses and
other authorizations which are required under all Environmental Laws. The Loan
Parties are in compliance with all terms and conditions of all such permits,
licenses and authorizations and are also in compliance with all other
limitations, restrictions, conditions, standards, prohibitions, requirements,
obligations, schedules and timetables contained in any applicable Environmental
Law or in any regulation, code, plan, order, decree, judgment, injunction,
notice or demand letter issued, entered, promulgated or approved thereunder,
including, without limitation, all Environmental Laws in all jurisdictions in
which any Loan Party owns or operates a Station, a facility or site, arranges or
has arranged for disposal or treatment of Hazardous Materials, solid waste or
other wastes, accepts or has accepted for transport any Hazardous Materials,
solid waste or other wastes or holds or has held any interest in real property
or otherwise.
(b) No Environmental Claim has been issued, no complaint has
been filed, no penalty has been assessed and no litigation, proceeding,
investigation or review is pending or, to the best of the Parent's and the
Borrower's knowledge, threatened by any Person with respect to any alleged
failure by any Loan Party or any property owned by any Loan Party to comply with
any Environmental Law or to have any permit, license or authorization required
in connection with the conduct of the business of any Loan Party or with respect
to any generation, treatment, storage, recycling, transportation, use, disposal
or Release of any Hazardous Materials generated
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by any Loan Party or with respect to any real property in which any Loan Party
holds or has held an interest or any past or present operation of any Loan
Party.
(c) There are no Environmental Laws requiring any work,
repairs, construction, Capital Expenditures or other remedial work of any nature
whatsoever, with respect to any real property in which any Loan Party holds or
has held an interest or any past or present operation of any Loan Party.
(d) No Loan Party has handled any Hazardous Material, on any
property now or previously owned or leased by a Loan Party.
(e) To the best of the Parent's and the Borrower's knowledge:
(i) no PCBs or asbestos is present at any property
now or previously owned or any premises now or previously leased by any Loan
Party;
(ii) no underground storage tanks for Hazardous
Materials, active or abandoned, are now or were previously operated at any
property now or previously owned by any Loan Party, and, with respect to
premises now or previously leased by any Loan Party, no underground storage
tanks for Hazardous Materials, active or abandoned, are now or were previously
operated by any Loan Party;
(iii) no Hazardous Materials have been Released, in a
reportable quantity, where such a quantity has been established by statute,
ordinance, rule, regulation or order, at, on or under any property now or
previously owned by any Loan Party; and
(iv) no Hazardous Materials have been otherwise
Released at, on or under any property now or previously owned or any premises
now or previously leased by any Loan Party.
(f) No Loan Party has transported or arranged for the
transportation of any Hazardous Material to any location that is listed on the
National Priorities List ("NPL") under the Comprehensive Environmental Response,
Compensation and Liability Act of 1980, as amended ("CERCLA"), listed for
possible inclusion on the NPL by the Environmental Protection Agency in the
Comprehensive Environmental Response and Liability Information System, as
provided for by 40 C.F.R. Section 300.5 ("CERCLIS"), or on any similar state or
local list or that is the subject of Federal, state or local enforcement actions
or other investigations that may lead to Environmental Claims against any Loan
Party.
(g) No Hazardous Material generated by any Loan Party has been
recycled, treated, stored, disposed of or Released by any Loan Party at any
location.
(h) No oral or written notification of a Release of a
Hazardous Material has been filed by or on behalf of any Loan Party and no
property now or previously owned or premises leased by any Loan Party is listed
or proposed for listing on the National Priorities list promulgated pursuant to
CERCLA, on CERCLIS or on any similar state list of sites requiring investigation
or clean-up.
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(i) There are no Liens arising under or pursuant to any
Environmental Laws on any of the property owned or premises leased by any Loan
Party, and no government actions have been taken or are in process which could
subject any of such property to such Liens, and no Loan Party would be required
to place any notice or restriction relating to the presence of Hazardous
Materials at any property owned by it in any deed to such property.
(j) No Loan Party has retained or assumed any liabilities
(contingent or otherwise) in respect of any Environmental Claims under the terms
of any contract or agreement or by operation of law as a result of the sale of
assets or stock.
(k) There have been no environmental investigations, studies,
audits, tests, reviews or other analyses conducted by or which are in the
possession of any Loan Party in relation to any property or facility now or
previously owned or leased by such Loan Party which have not been made available
to the Administrative Agent.
5.26 Solvency. Each of the Parent and the Borrower has received, or has
the right hereunder to receive, consideration which is the reasonably equivalent
value of the obligations and liabilities that it has incurred to the Lenders.
Neither the Parent nor the Borrower is insolvent as defined in Section 101 of
Title 11 of the United States Code or any applicable state insolvency statute,
nor, after giving effect to the consummation of the transactions contemplated
herein and in the Sinclair Purchase Agreements, will it be rendered insolvent by
the execution and delivery of this Agreement, the Notes or the Collateral
Documents to the Lenders. Neither the Parent nor the Borrower is engaged or
about to engage in any business or transaction for which the assets retained by
it shall be an unreasonably small capital, taking into consideration the
obligations to the Lenders incurred hereunder. Neither the Parent nor the
Borrower intends to, nor does either believe that it will, incur debts beyond
its ability to pay them as they mature.
5.27 License Subsidiaries. No Loan Party (other than a License
Subsidiary) holds any License (other than an Excluded License) issued by the
FCC. No License Subsidiary (a) has any Indebtedness (other than pursuant to the
Subsidiary Guaranty and the Subsidiary Security Agreement and Indebtedness owing
by a License Subsidiary to another Loan Party), (b) has any assets other than
FCC Licenses, (c) is a party to or bound by any contract or agreement other than
agreements pursuant to which Loan Parties that are not License Subsidiaries
manage and operate the Stations, (d) conducts any business or (e) has any
employees, and there are no Liens of any nature whatsoever on any of the
property or assets of any License Subsidiary except in favor of the
Administrative Agent, for the benefit of the Lenders. All of the Licenses issued
by the FCC in connection with the ownership and operation of the Stations (other
than the Excluded Licenses), including the Stations being acquired pursuant to
the Sinclair Purchase Agreements, have been, or at the applicable closing under
the Sinclair Purchase Agreements will be, duly assigned to a License Subsidiary.
5.28 Sinclair Purchase Agreements, TIDES Indenture and TIDES
Prospectus.
(a) The Borrower has provided to the Administrative Agent a
complete and correct copy of the Sinclair Purchase Agreements. The Parent has,
or will have prior the Closing Date, duly assigned the Sinclair Purchase
Agreements to the Borrower or to wholly owned
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Subsidiaries of the Borrower. All of the representations and warranties of the
Parent and the Borrower and, to the Knowledge of the Parent and the Borrower,
each other party to the Sinclair Purchase Agreements are true and correct in all
material respects as of the date hereof as if given as of the date hereof and
will be true and correct in all material respects as of the Closing Date as if
given as of such date. Except as disclosed in writing to the Administrative
Agent, no party to the Sinclair Purchase Agreements has given notice of any
breach of its representations, warranties or covenants therein. All of the
representations and warranties of the Parent and the Borrower in this Section 5
shall be deemed to be given after giving effect to the consummation of the
initial closing under the Sinclair Purchase Agreements, and each radio station
being acquired pursuant to the Sinclair Purchase Agreements shall, upon such
acquisition, be deemed to be a Station for all purposes of these representations
and warranties.
(b) The Borrower has provided to the Administrative Agent a
complete and correct copy of the TIDES Indenture, the TIDES Subordinated
Debentures, the TIDES Trust Declaration and the other material agreements and
documents executed and delivered pursuant thereto. Neither the TIDES Indenture
nor the TIDES Trust Declaration has been amended or modified, and no provisions
thereof have been waived, in each case except as permitted hereunder. The
Obligations constitute Designated Secured Senior Debt (as that term is defined
in the TIDES Indenture) for all purposes of the TIDES Indenture and the TIDES
Subordinated Debentures.
(c) The Borrower has provided to the Administrative Agent
complete and correct copies of (i) the Registration Statement on Form S-1
(Registration No. 333-86843) relating to the TIDES Preferred Securities and (ii)
the Registration Statement on Form S-1 (Registration No. 333-86397) relating to
the Borrower's issuance on October 6, 1999, of 8,000,000 shares of its Class A
Common Stock. No statement, representation or warranty made in either such
Registration Statement (including the prospectuses contained therein) contained
any untrue statement of a material fact, nor omitted to state a material fact
necessary to make such statement not misleading in light of the circumstances
under which such statement was made, or otherwise violates any federal or state
securities laws, rules or regulations.
5.29 The Parent. After giving effect to the Drop Down, the Parent (a)
has no Indebtedness (other than (i) pursuant hereto, (ii) pursuant to the TIDES
Subordinated Debentures and the TIDES Indenture and the guaranties and other
documents and instruments entered into in connection therewith and (iii) certain
trade payables reasonably incurred in the ordinary course of the operation of
the Stations and of the Parent's corporate headquarters), (b) has no assets
other than furniture, fixtures and equipment located in its corporate office and
certain other non-material assets not used in the operation of any Station, (c)
is not a party to or bound by any contract or agreement other than the Station
Contracts and certain contracts relating to the TIDES Subordinated Debentures
and (d) does not conduct any business other than holding the Membership
Interests in the Borrower and the common securities of the TIDES Trust and
entering into and performing the Station Contracts, and there are no Liens of
any nature whatsoever on any of the property or assets of the Parent except
Permitted Liens.
5.30 Year 2000. Each Loan Party is taking such actions and devoting
such resources that, in the good faith exercise of its business judgment, it
believes to be reasonably necessary to permit the proper functioning, in and
following the year 2000, of its computer
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systems and equipment containing embedded microchips (including systems and
equipment supplied by others). The Borrower believes that the cost to the Loan
Parties of such actions and of the reasonably foreseeable consequences of year
2000 to the Loan Parties (including, without limitation, reprogramming errors
and the failure of its systems or equipment supplied by others) will not result
in an Event of Default or a Material Adverse Effect. The Borrower believes that,
subject to completion of the actions referred to above, the computer and
management information systems of the Loan Parties are and, with ordinary course
upgrading and maintenance, will continue to be, sufficient to permit the Loan
Parties to conduct their business without any Material Adverse Effect.
Section 6 CONDITIONS PRECEDENT TO OBLIGATIONS OF THE LENDERS.
The obligations of the Lenders to make any Loan and of the Issuing Bank
to issue any Letter of Credit and the performance by the Lenders of the other
actions to be taken by them on or after the Closing Date are subject to the
fulfillment or waiver in writing of each of the following conditions precedent.
The Borrower shall deliver to the Administrative Agent copies for each Lender of
each document, instrument or other item to be delivered pursuant to this Section
6.
6.1 Compliance. All of the representations and warranties of the Loan
Parties herein and in the Collateral Documents shall be true in all material
respects on and as of the Closing Date, the date of issuance of any Letter of
Credit and the date of any subsequent Loan (other than a Loan resulting from the
funding of a Letter of Credit), as if made on and as of such date (except to the
extent that such representations and warranties expressly relate to an earlier
date, in which case such representations and warranties shall be true in all
material respects as of such earlier date) both before and after giving effect
to the making of the proposed Loan or the issuance of the proposed Letter of
Credit. No Possible Default or Event of Default shall have occurred and be
continuing, on and as of the Closing Date and the date of any subsequent Loan
(other than a Loan resulting from the funding of a Letter of Credit) or the
issuance of a Letter of Credit, before and after giving effect to the making of
the proposed Loan or the issuance of the proposed Letter of Credit. On the
Closing Date and on the date of each subsequent Loan (other than a Loan
resulting from the funding of a Letter of Credit) and the date of issuance of
any Letter of Credit, the Borrower shall deliver to the Lenders a certificate,
dated as of such date, and signed by an executive officer of the Borrower,
certifying compliance with the conditions of this Section 6.1. Each request by
the Borrower for a Loan or a Letter of Credit shall, in and of itself,
constitute a representation and warranty that the Borrower, as of the date of
such Loan or Letter of Credit, is in compliance with this Section.
6.2 Security Agreements.
(a) On the Closing Date, the Parent shall have executed and
delivered to the Administrative Agent a Security Agreement in form and substance
satisfactory to the Administrative Agent (the "Parent Security Agreement"),
granting to the Administrative Agent, for the benefit of the Lenders, a first
priority security interest in substantially all of the Parent's personal
property; and the Parent Security Agreement, and the security interests granted
pursuant thereto, shall be in full force and effect.
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(b) On the Closing Date, the Borrower shall have executed and
delivered to the Administrative Agent a Security Agreement in form and substance
satisfactory to the Administrative Agent (the "Borrower Security Agreement"),
granting to the Administrative Agent, for the benefit of the Lenders, a first
priority security interest in substantially all of the Borrower's personal
property; and the Borrower Security Agreement, and the security interests
granted pursuant thereto, shall be in full force and effect.
(c) On the Closing Date, each Subsidiary of the Borrower,
other than any Excluded Foreign Subsidiaries, shall have executed and delivered
to the Administrative Agent a Security Agreement in form and substance
satisfactory to the Administrative Agent (the "Subsidiary Security Agreement"),
granting to the Administrative Agent, for the benefit of the Lenders, a first
priority security interest in substantially all of such Subsidiary's personal
property; and the Subsidiary Security Agreement, and the security interests
granted pursuant thereto, shall be in full force and effect.
6.3 Pledge Agreements.
(a) On the Closing Date, the Parent shall have executed and
delivered to the Administrative Agent a Pledge Agreement in form and substance
satisfactory to the Administrative Agent (the "Parent Pledge Agreement"),
granting to the Administrative Agent, for the benefit of the Lenders, a first
priority security interest in all of the issued and outstanding Membership
Interests of the Borrower; the Parent shall have delivered to the Administrative
Agent all certificates, if any, evidencing all of such Membership Interests and
powers, duly endorsed in blank, with respect thereto; the Parent shall have
taken all other actions as may be required to effect the grant and perfection of
the Administrative Agent's security interest in such Membership Interests; and
the Parent Pledge Agreement, and the security interests granted pursuant
thereto, shall be in full force and effect.
(b) On the Closing Date, the Borrower shall have executed and
delivered to the Administrative Agent a Pledge Agreement in form and substance
satisfactory to the Administrative Agent (the "Borrower Pledge Agreement"),
granting to the Administrative Agent, for the benefit of the Lenders, a first
priority security interest in all (or in the case of Excluded Foreign
Subsidiaries, 65%) of the issued and outstanding capital stock, membership
interests, partnership interests and other equity interests in any direct
Subsidiary of the Borrower; the Borrower shall have taken all actions as may be
required to effect the grant and perfection of the Administrative Agent's
security interest in such capital stock, membership interests, partnership
interests and other equity interests; and the Borrower Pledge Agreement, and the
security interests granted pursuant thereto, shall be in full force and effect.
(c) On the Closing Date, each Subsidiary of the Borrower that
has a Subsidiary shall have executed and delivered to the Administrative Agent a
Pledge Agreement in form and substance satisfactory to the Administrative Agent
(the "Subsidiary Pledge Agreement"), granting to the Administrative Agent, for
the benefit of the Lenders, a first priority security interest in all (or in the
case of Excluded Foreign Subsidiaries, 65%) of the issued and outstanding
capital stock, membership interests, partnership interests and other equity
interests of each Subsidiary owned by such Subsidiary; each such Subsidiary
shall have delivered to the Administrative Agent all certificates, if any,
evidencing such equity interests, and powers, duly
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endorsed in blank, with respect thereto; each such Subsidiary shall have taken
all actions as may be required to effect the grant and perfection of the
Administrative Agent's security interest in such equity interests; and the
Subsidiary Pledge Agreement, and the security interests granted pursuant
thereto, shall be in full force and effect.
6.4 Financing Statements. On the Closing Date, any financing statements
required by the Security Agreements and the Pledge Agreements shall have been
executed and delivered to the Administrative Agent or its counsel for filing
with the appropriate governmental authorities.
6.5 Guaranties. On the Closing Date, each Subsidiary of the Borrower,
other than an Excluded Foreign Subsidiary, shall have executed and delivered to
the Administrative Agent, for the benefit of the Lenders, a guaranty (the
"Subsidiary Guaranty"), in form and substance satisfactory to the Administrative
Agent, pursuant to which such Subsidiary shall guarantee the Obligations of the
Borrower to the Lenders. The Parent shall have executed this Agreement and
agreed to the guaranty set forth in Section 11.
6.6 Opinion of Borrower's Counsel. On the Closing Date, the
Administrative Agent shall have received the favorable written opinions of
counsel to the Loan Parties and of FCC counsel to the Loan Parties, in each case
dated the Closing Date, addressed to the Lenders and in form and substance
satisfactory to the Administrative Agent.
6.7 Consummation of Drop Down. Prior to funding on the Closing Date:
the Parent shall have transferred to the Borrower or to wholly owned
Subsidiaries of the Borrower substantially all of its assets, including cash and
cash equivalents, other than the assets referred to in Section 5.29 (the "Drop
Down"); all governmental and third party consents, approvals, filings and
authorizations required in connection with the Drop Down shall have been
obtained or made; and the Drop Down shall be accomplished pursuant to
documentation in form and substance satisfactory to the Administrative Agent.
6.8 Consummation of Acquisition Agreements.
(a) On or prior to the date on which any Loan is made
hereunder the proceeds of which will be used to pay any part of the purchase
price of a Permitted Acquisition, the Borrower shall have delivered to the
Administrative Agent a certified copy of the Acquisition Agreement, and of all
agreements, documents and instruments entered into in connection therewith,
relating to such Permitted Acquisition. The transactions contemplated by such
Acquisition Agreement to be consummated at such time shall have been
consummated, or shall be consummated simultaneously with the making of such
Loan, without the waiver of any material term or condition by any Loan Party.
Without limiting the foregoing sentence, the Borrower or a Subsidiary of the
Borrower shall have purchased pursuant to such Acquisition Agreement
substantially all of the assets being acquired at such time, free and clear of
all Liens, except Permitted Liens. The consummation of the transactions
contemplated by such Acquisition Agreement shall be completed in a manner
satisfactory to the Administrative Agent, and the Administrative Agent shall
have received conformed copies or photocopies of all documents relating thereto.
The Borrower shall use commercially reasonable efforts to cause all opinions and
related certificates of the seller under such Acquisition Agreement delivered in
connection with such closing to be addressed to the Lenders. The FCC consent to
the
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assignment of the FCC Licenses relating to the Stations being acquired pursuant
to such Permitted Acquisition at such time (the "FCC Consent") shall have become
a Final Order unless (i) no filing shall have been made with the FCC that
pertains to or becomes associated with any request for consent to the assignment
of any of the FCC Licenses being acquired pursuant to such Permitted Acquisition
or (ii) if any such filing shall have been made, the Borrower shall have
delivered to the Administrative Agent and the Lenders an opinion of the
Borrower's FCC counsel in form and substance reasonably satisfactory to the
Administrative Agent and the Lenders to the effect that the objection set forth
in such filing would not reasonably be expected to result in a denial of the FCC
Consent or the designation for hearing of the applications for FCC Consent.
(b) On or prior to the Closing Date, the Borrower and its
Subsidiaries shall have executed and delivered to the Administrative Agent a
collateral assignment, in form and substance satisfactory to the Administrative
Agent, of all of their rights (together with reliance letters, to the extent
available, with respect to all legal opinions) under the Sinclair Purchase
Agreements, and each other party to the Sinclair Purchase Agreements shall have
acknowledged and consented to such collateral assignment.
(c) On or prior to the Closing Date, the first closing under
the Sinclair Purchase Agreements shall have occurred, and such first closing
shall have occurred on or prior to December 31, 1999.
6.9 Financial Information.
(a) Agreed Upon Procedures Report. On or prior to the date on
which any Loan is made hereunder the proceeds of which will be used to pay any
part of the purchase price of a Permitted Acquisition, the purchase price of
which is in excess of $25,000,000, the Borrower shall have delivered to the
Administrative Agent a report, in form and substance satisfactory to the
Administrative Agent relating to the financial condition of the stations being
acquired pursuant to such Permitted Acquisition, signed by an accounting or
consulting firm acceptable to the Administrative Agent and prepared in
accordance with the procedures reasonably requested by the Administrative Agent.
The Administrative Agent hereby acknowledges that the information on the
financial condition of the stations to be acquired under the Sinclair Purchase
Agreements contained in the Form S-1 filed with the Securities and Exchange
Commission on September 30, 1999, satisfies the provisions of this Section
6.9(a) with respect to the stations to be acquired under the Sinclair Purchase
Agreements.
(b) Pro Forma Financial Statements. On the Closing Date, the
Borrower shall have delivered to the Administrative Agent a consolidated pro
forma balance sheet as of September 30, 1999, and an income statement, for the
four quarter period then ended, after giving effect to the Drop Down and the
closings under this Agreement and the Sinclair Purchase Agreements, which pro
forma financial statements may contain certain adjustments acceptable to the
Administrative Agent and described therein.
(c) Compliance Certificate. On, or one Banking Day prior to,
the date of each borrowing hereunder of $10,000,000 or more and the date of each
issuance of a Letter of Credit with a stated amount of $10,000,000 or more, the
Borrower shall have delivered to the
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Administrative Agent a pro forma compliance certificate using the most recently
available quarterly financial statements, in form and substance reasonably
satisfactory to the Administrative Agent, showing the Leverage Ratio as the date
of such borrowing or issuance of a Letter of Credit and the Borrower's
compliance on a pro forma basis with the financial covenants set forth in
Section 8.
(d) Financial Statements. On or prior to the Closing Date, the
Borrower shall have furnished to the Lenders the following financial statements:
(i) audited consolidated balance sheets of the Parent and its Subsidiaries as of
September 30, 1997, and September 30, 1998; (ii) audited consolidated income
statements and statements of cash flows of the Parent and its Subsidiaries for
the twelve month periods ended September 30, 1997, and September 30, 1998; (iii)
unaudited consolidated income statements and statements of cash flows of the
Parent and its Subsidiaries for the three month period ended December 31, 1998;
(iv) unaudited consolidated income statement and statement of cash flows of the
Parent and its Subsidiaries for the twelve month period ended December 31, 1998;
and (v) an unaudited consolidated balance sheet of the Parent and its
Subsidiaries as of December 31, 1998.
6.10 Borrowing Request. On or within three days prior to the date of
each Loan, the Borrower shall have delivered to the Administrative Agent a
borrowing request, substantially in the form attached hereto as Exhibit C, for
such Loan, setting forth (a) the application of the proceeds of such Loan, (b)
evidence that such application is permitted pursuant to Section 7.1, (c) if
applicable, the recipient, the amount of the payment and the wire transfer
instructions, and (d) a certification from a financial officer or executive of
the Borrower, in form and substance reasonably acceptable to the Administrative
Agent, that the entire amount of such Loan, together with the aggregate amount
of all outstanding Loans, constitutes "Designated Secured Senior Debt" as that
term is defined in the TIDES Indenture.
6.11 Insurance Certificates. On the Closing Date, the Borrower shall
have furnished to the Administrative Agent certificates of insurance together
with copies, if requested by the Administrative Agent, of all policies or other
satisfactory evidence that the insurance required by Section 7.3 is in full
force and effect.
6.12 Organizational Documents. On the Closing Date, the Borrower shall
have delivered to the Administrative Agent the following:
(a) certificates of good standing for each Loan Party from the
Secretary of State of the State of its organization and from the Secretary of
State of each other state in which such Loan Party is qualified or registered to
do business, in each case dated as of a date as near to the Closing Date as
practicable;
(b) certificates signed by the Secretary or Assistant
Secretary of each Loan Party, dated as of the Closing Date, certifying that
attached thereto are true and complete copies of (i) the Organizational
Documents of such Loan Party and (ii) resolutions adopted by the Board of
Directors or other governing body of such Loan Party authorizing the execution,
delivery and performance of this Agreement and the Collateral Documents to the
extent it is a party thereto;
(c) incumbency certificates for each Loan Party; and
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(d) such other documents as any Lender may reasonably request
in connection with the proceedings taken by the Loan Parties authorizing this
Agreement and the Collateral Documents.
6.13 Lien Searches, Consents and Releases of Liens. On or prior to the
Closing Date, the Administrative Agent shall have received: (a) certified copies
of UCC, judgment and tax lien search reports listing all effective financing
statements and other Liens on any of the property of any Loan Party, (b)
consents to the granting of Liens in all Operating Agreements and other material
contracts and leases of the Loan Parties, which by their terms require such
consent, and (c) releases of any existing Liens encumbering any assets of any
Loan Party, except for Permitted Liens.
6.14 No Order, Judgment or Decree. No order, judgment or decree of any
court, arbitrator or governmental authority shall purport to enjoin or restrain
the Lenders from making the Loans.
6.15 No Material Adverse Effect. There shall have occurred no Material
Adverse Effect since September 30, 1998.
6.16 Fee Letters. The Borrower shall have paid all fees, expenses and
other amounts due pursuant hereto and pursuant to the Fee Letters.
6.17 Legal Approval. As of the Closing Date, all legal matters incident
to this Agreement and the consummation of the transactions contemplated hereby
shall be reasonably satisfactory to Dow, Lohnes & Albertson, PLLC, special
counsel to the Agents.
6.18 Year 2000 Compliance Certificate. On or prior to the Closing Date,
the Borrower shall have delivered to the Administrative Agent either (a) a
certificate of the Borrower signed by an executive officer of the Borrower
certifying that to the Borrower's Knowledge the material computer systems of the
Loan Parties and equipment of the Loan Parties containing embedded microchips
(including such systems and equipment supplied by others), are then and will
continue to be following the year 2000, sufficient to permit the Loan Parties to
conduct their businesses through the transition to the year 2000 and for at
least six months thereafter without Material Adverse Effect, or (b) a
contingency plan, reasonably satisfactory to the Administrative Agent,
demonstrating the Borrower's preparedness for business operations in and
following the year 2000 should the proper functioning of such computer systems
and equipment be materially impaired.
6.19 Other Documents. The Administrative Agent shall have received all
Collateral Documents duly executed, and each Lender shall have received such
other certificates, opinions, agreements and documents, in form and substance
satisfactory to it, as it may reasonably request through the Administrative
Agent.
Section 7 AFFIRMATIVE COVENANTS.
The Parent and the Borrower agree with the Lenders that so long as this
Agreement shall remain in effect or any of the Obligations shall remain unpaid
or to be performed, or any Letter
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of Credit remains outstanding, they shall perform and comply with the
affirmative covenants contained in this Section.
7.1 Use of Proceeds. The Borrower shall use the proceeds of the Loans
only for the following purposes: (a) to refinance on the Closing Date existing
indebtedness under the Original Loan Agreement, (b) to fund draws on the Letters
of Credit, (c) to pay all or a portion of the purchase price of Permitted
Acquisitions, (d) for Capital Expenditures, (e) for Capital Distributions
permitted pursuant to Section 8.9, (f) to fund investments permitted pursuant to
Section 8.11(g), and (g) for other general corporate and working capital
purposes.
7.2 Continued Existence; Maintenance of Rights and Licenses; Compliance
with Law. Subject to Section 8.10, each of the Parent and the Borrower shall,
and shall cause each of the Borrower's Subsidiaries to, do or cause to be done
all things necessary to preserve, renew and keep in full force and effect (a)
its corporate, limited liability company or partnership existence and (b) its
rights and Licenses, except to the extent the loss of any such rights and
Licenses could not reasonably be expected to have a Material Adverse Effect.
Without limiting the generality of the foregoing, the Parent and the Borrower
shall, and shall cause each of the Borrower's Subsidiaries to, maintain in full
force and effect, until termination in accordance with their respective terms,
and to comply with the terms and provisions of, all Licenses, Operating
Agreements and other material contracts and other rights necessary to operate
the Stations and not breach or violate the same, except as could not,
individually or in the aggregate, reasonably be expected to have a Material
Adverse Effect. The Parent and the Borrower shall, and shall cause each of the
Borrower's Subsidiaries to, comply in all material respects with all applicable
laws, statutes, rules, regulations, orders and decrees now in effect or
hereafter promulgated by any governmental authority.
7.3 Insurance. Each of the Parent and the Borrower shall, and shall
cause each of the Borrower's Subsidiaries to, keep its insurable properties
insured to the full replacement cost thereof at all times by financially sound
and reputable insurers reasonably acceptable to the Administrative Agent, and
maintain such other property insurance, to such extent and against such risks,
including fire, lightning, vandalism, flood (to the extent required by the
Administrative Agent, if any Loan Party's property is located in an identified
flood hazard area, in which insurance has been made available pursuant to the
National Flood Insurance Act of 1968) and other risks insured against by
extended coverage, as is customary with companies in the broadcasting business.
All such insurance shall be in amounts sufficient to prevent any Loan Party from
becoming a coinsurer, shall name the Administrative Agent, for the benefit of
the Lenders, as loss payee and may contain loss deductible provisions which
shall not exceed $500,000 (or, in the case of earthquake, flood and windstorm
coverage, $1,000,000). The Parent and the Borrower shall maintain, for
themselves and the Borrower's Subsidiaries, in full force and effect liability
insurance, business interruption insurance, errors and omissions insurance,
general accident and public liability insurance and all other insurance, in each
case as is usually carried by companies engaged in the same or similar
businesses similarly situated against claims for personal or bodily injury,
death or property damage occurring upon, in, about or in connection with the use
or operation of any property or motor vehicles owned, occupied, controlled or
used by any Loan Party and their employees or agents, or arising in any other
manner out of the business conducted by any Loan Party. All of such insurance
shall be in amounts reasonably satisfactory to the Administrative Agent and
shall be obtained and
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maintained by means of policies with generally recognized, responsible insurance
companies authorized to do business in such states as may be necessary depending
upon the locations of the Loan Parties' assets and shall name the Administrative
Agent, for the benefit of the Lenders, as an additional insured or loss payee,
as the case may be. The insurance to be provided may be blanket policies. Each
policy of insurance shall be written (if available at commercially reasonable
cost) so as not to be subject to cancellation or substantial modification
without not less than thirty days advance written notice to the Administrative
Agent. The Borrower shall furnish the Administrative Agent annually with
certificates or other evidence satisfactory to the Administrative Agent that the
insurance required hereby has been obtained and is in full force and effect and,
prior to the expiration of any such insurance, the Borrower shall furnish the
Administrative Agent with evidence satisfactory to the Administrative Agent that
such insurance has been renewed or replaced. The Borrower shall, upon request of
the Administrative Agent, furnish the Administrative Agent such information
about such insurance as the Administrative Agent may from time to time
reasonably request.
7.4 Obligations and Taxes. The Parent and the Borrower shall, and shall
cause each of the Borrower's Subsidiaries to, pay and perform all of its
material Indebtedness and other material liabilities and obligations in a timely
manner in accordance with normal business practices and with the terms governing
the same, other than any such Indebtedness or other liabilities or obligations
that do not exceed, individually or in the aggregate for all Loan Parties,
$5,000,000. The Parent and the Borrower shall, and shall cause each of the
Borrower's Subsidiaries to, comply with the terms and covenants of all material
agreements and all material leases of real or personal property and shall keep
them all in full force and effect until termination thereof in accordance with
their respective terms, except to the extent the failure to comply and to keep
in full force and effect could not reasonably be expected to have a Material
Adverse Effect. Each of the Parent and the Borrower shall, and shall cause each
of the Borrower's Subsidiaries to, pay and discharge promptly all taxes,
assessments and governmental charges or levies imposed upon it or in respect of
its property before the imposition of any penalty, as well as all lawful claims
for labor, materials, supplies or other matters which, if unpaid, might become a
Lien or charge upon such properties or any part thereof; provided, however, that
no Loan Party shall be required to pay and discharge any such tax, assessment,
charge, levy or claim so long as (a) the validity or amount thereof is being
contested diligently and in good faith by appropriate proceedings and the
enforcement thereof is stayed, pending the outcome of such proceedings, (b) such
Loan Party has set aside on its books adequate reserves in accordance with GAAP
with respect thereto, and (c) such contest will not endanger the Lien of the
Administrative Agent or the Lenders in any of such Loan Party's assets.
7.5 Financial Statements and Reports. The Parent and the Borrower
shall, and shall cause each of the Borrower's Subsidiaries to, maintain true and
complete books and records of account in accordance with GAAP. The Borrower
shall furnish to the Administrative Agent, for delivery to the Lenders, the
following financial statements and projections at the following times:
(a) As soon as available, but in no event later than ninety
days after the end of each fiscal year of the Borrower, the Borrower shall
furnish (i) audited consolidated financial statements, including audited
consolidated balance sheets and income and expense statements, of the Parent,
the Borrower and the Borrower's Subsidiaries as of the close of such fiscal year
reflecting the results of their operations during such fiscal year, and a
consolidated statement of
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cash flows for such fiscal year, together with such additional statements,
schedules and footnotes as are customary in a complete accountant's report; such
financial statements shall be certified by independent certified public
accountants selected by the Parent and acceptable to the Administrative Agent,
and the opinion of such accountants shall be unqualified; and (ii) a statement
signed by such accountants to the effect that in connection with their
examination of such financial statements they have reviewed the provisions of
this Agreement and have no knowledge of any event or condition which constitutes
an Event of Default or Possible Default or, if they have such knowledge,
specifying the nature and period of existence thereof; provided, however, that
in issuing such statement, such independent accountants shall not be required to
go beyond normal auditing procedures conducted in connection with their opinion
referred to above;
(b) As soon as available, but in no event later than
forty-five days after the end of each fiscal quarter of the Borrower (or, in the
case of the last quarter of the Borrower's fiscal year, sixty days after the end
of such quarter), the Borrower shall furnish unaudited consolidated financial
statements, including consolidated balance sheets and income and expense
statements, of the Parent, the Borrower and the Borrower's Subsidiaries as of
the end of such period reflecting the results of their operations during such
period and for the then elapsed portion of the fiscal year, and a consolidated
statement of cash flows for the portion of the fiscal year ended with the last
day of such quarter; all such financial statements shall set forth, in
comparative form, corresponding figures for the equivalent period of the prior
year and a comparison to budget for the applicable quarter and year to date,
shall be in form and detail satisfactory to the Administrative Agent, and shall
be certified as to accuracy and completeness by an executive officer or the
treasurer of the Parent or the Borrower, as applicable;
(c) As soon as available, but in no event later than
forty-five days after the end of each quarter (or, in the case of the last
quarter of the Borrower's fiscal year, sixty days after the end of such
quarter), the Borrower shall furnish unaudited statements of income and expense
for the Stations in each market in which it owns or operates any Station, which
shall contain a comparison with the budget or projections for such period and a
comparison to the comparable period for the prior year, and which shall be
certified by an executive officer or the treasurer of the Borrower; such
financial statements for the fourth quarter of each fiscal year may be
preliminary statements;
(d) The financial statements required under (a) and (b) above
shall be accompanied by a compliance certificate in the form attached hereto as
Exhibit D of an executive officer or the treasurer of the Borrower (i) setting
forth the computations showing compliance with the financial covenants set forth
in Section 8 below, and (ii) certifying that no Possible Default or Event of
Default has occurred, or if any Possible Default or Event of Default has
occurred, stating the nature thereof and the actions the Borrower has taken or
intends to take in connection therewith;
(e) The Borrower shall furnish (i) no later than thirty days
after the commencement of each fiscal year, an annual operating budget or fiscal
projections for such fiscal year, and (ii) promptly upon preparation thereof,
any material revisions of such annual budget or fiscal projections;
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(f) Promptly upon their becoming available, the Borrower shall
furnish (i) copies of any periodic or special reports filed by any Loan Party
with the FCC or any other federal, state or local governmental agency or
authority if such reports indicate any material change in the ownership of such
Loan Party, or any materially adverse change in the business, operations,
affairs or condition of any Loan Party, and (ii) copies of any material notices
and other material communications from the FCC or any other federal, state or
local governmental agency or authority which specifically relate to any Loan
Party, any Station or any material License, and the substance of which relates
to a matter that could reasonably be expected to have a Material Adverse Effect;
(g) The Borrower shall furnish (i) upon request, promptly
after the filing thereof with the Internal Revenue Service, copies of each
annual report with respect to each Plan established or maintained by the
Borrower or any member of the Controlled Group for each plan year, including (A)
where required by law, a statement of assets and liabilities of such Plan as of
the end of such plan year and statements of changes in fund balance and in
financial position, or a statement of changes in net assets available for plan
benefits, for such plan year, certified by an independent public accountant
satisfactory to the Administrative Agent, and (B) if prepared by or available to
the Borrower, an actuarial statement of such Plan applicable to such plan year,
certified by an enrolled actuary of recognized standing acceptable to the
Administrative Agent; (ii) promptly after receipt thereof, a copy of any notice
the Borrower or a member of the Controlled Group may receive from the Department
of Labor or the Internal Revenue Service with respect to any Plan (other than
notices of general application) which could result in a material liability to
the Borrower; the Borrower will promptly notify the Lenders of any material
taxes assessed, proposed to be assessed or which the Borrower has reason to
believe may be assessed against the Borrower or any member of the Controlled
Group by the Internal Revenue Service with respect to any Plan or Benefit
Arrangement; (iii) within thirty days after the Borrower has Knowledge that any
Reportable Event with respect to any Plan has occurred, a statement of an
executive officer of the Borrower setting forth details as to such Reportable
Event and the action which the Borrower proposes to take with respect thereto,
together with a copy of the notice of such reportable event given to the PBGC if
a copy of such notice is available to the Borrower; (iv) notice within thirty
days after the Borrower or any other member of the Controlled Group has
Knowledge that any multiemployer plan (as defined in Code Section 414(f)) under
which the Borrower or member of the Controlled Group is an employer, is in
reorganization (as defined in Code Section 418 or ERISA Title IV) or is
insolvent; and (v) notice of any withdrawal liability asserted against the
Borrower or any member of the Controlled Group under ERISA Section 4201(a) with
respect to any Plan;
(h) Promptly upon their becoming available, the Borrower shall
furnish copies of all financial statements and reports that the Parent or the
Borrower sends to the holders of any class of its debt securities or public
equity securities and, within five days after the same are filed, copies of all
registration statements, financial statements and reports that the Parent or the
Borrower may make to, or file with, the Securities and Exchange Commission or
any stock exchange; and
(i) Upon the Administrative Agent's written request, such
other information about the financial condition, properties and operations of
any Loan Party as any Lender may from time to time reasonably request.
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7.6 Notices. The Borrower shall give the Administrative Agent, for
distribution to the Lenders, notice :
(a) within five days after its Knowledge thereof, of any
action, suit, investigation or proceeding by or against any Loan Party, which,
if adversely determined, could reasonably be expected to have a Material Adverse
Effect, including, without limitation, any material admonition, censure or
adverse citation or order by the FCC or any other governmental authority or
regulatory agency;
(b) within three days after its Knowledge thereof,
(i) of any action or event constituting an event of
default or violation of the TIDES Indenture, the TIDES Trust Declaration or any
License or Operating Agreement, and
(ii) of any competing application, petition to deny
or other opposition to any license renewal application filed by the Borrower or
any of its Subsidiaries with the FCC if such matter could reasonably be expected
to have a Material Adverse Effect;
(c) within three days after its Knowledge thereof, of the
occurrence of any Possible Default or Event of Default and the actions the
Borrower intends to take in connection therewith;
(d) within five days after its Knowledge thereof, of any
cancellation of or any material amendment to any of the insurance policies
maintained in accordance with the requirements of this Agreement, except for
cancellations and amendments that occur in the ordinary course of business;
(e) promptly after its Knowledge of the occurrence thereof, of
any material, adverse change in the business or financial condition of any Loan
Party; and
(f) promptly after its Knowledge of the occurrence thereof, of
any material strike, labor dispute, slow down or work stoppage due to a labor
disagreement (or any material development regarding any thereof) affecting any
Loan Party.
7.7 Maintenance of Property. The Parent and the Borrower shall, and
shall cause each of the Borrower's Subsidiaries to, at all times maintain and
preserve its towers, machinery, equipment, motor vehicles, fixtures and other
property in good working order, condition and repair, normal wear and tear
excepted, and in compliance with all material applicable standards, rules or
regulations imposed by any governmental authority or agency (including, without
limitation, the FCC, the Federal Aviation Administration or any other Licensing
Authority) or policy of insurance, except for such property which, in the
judgment of the Borrower, is no longer necessary to the business of any Loan
Party, and except where the failure to do so could not reasonably be expected to
have a Material Adverse Effect.
7.8 Information and Inspection. The Parent and the Borrower shall
furnish to the Administrative Agent and the Lenders from time to time, promptly
upon request, information reasonably requested by the Administrative Agent or
any Lender pertaining to any covenant,
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provision or condition hereof or of any Collateral Document, or to any matter
connected with the books, records, operations, financial condition, properties,
activities or business of any Loan Party. The Parent and the Borrower shall
permit any authorized representative designated by any Lender to visit and
inspect any of the properties of the Loan Parties, and their books and records,
and to take extracts therefrom and make copies thereof, and to discuss the Loan
Parties' affairs, finances and accounts with the management of the Loan Parties
and with their independent accountants. So long as no Possible Default or Event
of Default then exists, the Lender requesting such inspection shall conduct such
inspection at reasonable times during normal business hours and shall give
reasonable advance notice to the applicable Loan Party.
7.9 Maintenance of Liens. The Parent and the Borrower shall do all
things necessary or reasonably requested by the Administrative Agent to preserve
and perfect the Liens of the Administrative Agent, for the benefit of the
Lenders, arising pursuant hereto and pursuant to the Collateral Documents as
first Liens, except for Permitted Liens, and to insure that the Administrative
Agent, for the benefit of the Lenders, has a perfected Lien on all (or in the
case of Excluded Foreign Subsidiaries, 65%) of the membership interests and
other equity interests of the Borrower and each of its Subsidiaries and on
substantially all of the personal property of each of the Loan Parties (other
than Excluded Foreign Subsidiaries). If any Loan Party enters into a new
Operating Agreement or other material contract which prohibits the assignment
thereof or the granting of a security interest therein without the consent of
the other party, the Loan Parties shall use their commercially reasonable
efforts to obtain the written consent of such other party to the grant to the
Administrative Agent, for the benefit of the Lenders, of a security interest
therein pursuant to the Security Agreements; provided, however, that the Loan
Parties shall not be obligated to accept any material adverse change in any such
agreement or contract or expend a material amount in attempting to obtain such
consent.
7.10 Title To Property. The Parent and the Borrower shall, and shall
cause each of the Borrower's Subsidiaries to, own and hold title to all of their
assets in their own name and not in the name of any nominee.
7.11 Environmental Compliance and Indemnity.
(a) The Parent and the Borrower shall, and shall cause each of the
Borrower's Subsidiaries to, comply in all material respects with any and all
Environmental Laws, including, without limitation, all Environmental Laws in
jurisdictions in which any Loan Party owns or operates a facility or site,
arranges for disposal or treatment of Hazardous Materials, solid waste or other
wastes, accepts for transport any Hazardous Materials, solid wastes or other
wastes or holds any interest in real property or otherwise. No Loan Party shall
cause or permit the Release of Hazardous Materials, solid waste or other wastes
on, under or to any real property in which such Loan Party holds any interest or
performs any of its operations, in material violation of any Environmental Law.
The Borrower shall notify the Lenders promptly after its receipt of notice
thereof, of any Environmental Claim which any Loan Party receives involving any
potential or actual material liability of any Loan Party arising in connection
with any noncompliance with or violation of the requirements of any
Environmental Law or a material Release or threatened Release of any Hazardous
Materials, solid waste or other waste into the environment. The Borrower shall
promptly notify the Lenders (i) of any material Release of Hazardous Material
on, under or from the real property in which any Loan Party holds or has held an
interest, upon
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the Borrower's learning thereof by receipt of notice that any Loan Party is or
may be liable to any Person as a result of such Release or that any Loan Party
has been identified as potentially responsible for, or is subject to
investigation by any governmental authority relating to, such Release, and (ii)
of the commencement or threat of any material judicial or administrative
proceeding alleging a violation of any Environmental Laws.
(b) If the Administrative Agent at any time has a reasonable
basis to believe that there may be a violation of any Environmental Law by, or
any liability arising thereunder of, any Loan Party or related to any real
property owned, leased or operated by any Loan Party or real property adjacent
to such real property, which violation or liability could reasonably be expected
to have a Material Adverse Effect, then the Borrower shall, upon request from
the Administrative Agent, provide the Administrative Agent with such reports,
certificates, engineering studies or other written material or data as the
Administrative Agent may require so as to satisfy the Administrative Agent that
such Loan Party is in material compliance with all applicable Environmental
Laws.
(c) The Borrower shall defend, indemnify and hold the Agents
and the Lenders, and their respective officers, directors, shareholders,
employees, agents, affiliates, successors and assigns harmless from and against
all costs, expenses, claims, demands, damages, penalties and liabilities of
every kind or nature whatsoever incurred by them (including reasonable attorneys
fees) arising out of, resulting from or relating to (i) the noncompliance of any
Loan Party or any property owned or leased by any Loan Party with any
Environmental Law, or (ii) any investigatory or remedial action involving any
Loan Party or any property owned or leased by any Loan Party and required by
Environmental Laws or by order of any governmental authority having jurisdiction
under any Environmental Laws, or (iii) any injury to any Person whatsoever or
damage to any property arising out of, in connection with or in any way relating
to the breach of any of the environmental warranties or covenants contained in
this Agreement or any facts or circumstances that cause any of the environmental
representations or warranties contained in this Agreement to cease to be true,
or (iv) the existence, treatment, storage, Release, generation, transportation,
removal, manufacture or other handling of any Hazardous Material on or affecting
any property owned or leased by any Loan Party, or (v) the presence of any
asbestos-containing material or underground storage tanks, whether in use or
closed, under or on any property owned or leased by any Loan Party; provided,
however, that the foregoing indemnity shall not apply to any such costs,
expenses, claims, demands, damages, penalties or liabilities that are determined
in a final non-appealable order of a court of competent jurisdiction to have
arisen solely out of the gross negligence or willful misconduct of the
indemnified Person.
7.12 Rate Hedging Obligations. The Borrower shall within forty-five
days after the Closing enter into, and shall at all times thereafter maintain in
full force and effect, agreements having an initial term of at least two years
and in form and substance reasonably satisfactory to the Administrative Agent
regarding Rate Hedging Obligations so that the sum of the notional amount
subject to such agreements plus the outstanding principal amount of Indebtedness
for Borrowed Money of the Borrower which bears interest at a fixed rate equals
at all times at least 50% of the principal amount of Indebtedness for Borrowed
Money then outstanding, and the Borrower shall maintain Rate Hedging Obligations
for such percentage coverage for an average term of at least one year at all
times thereafter.
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7.13 FCC Consents. The Parent and the Borrower acknowledge that certain
transactions contemplated by this Agreement or the Collateral Documents, and
certain actions which may be taken by the Administrative Agent or the Lenders in
the exercise of their rights under this Agreement or the Collateral Documents,
may require the consent of the FCC. If counsel to the Administrative Agent
determines that the consent of the FCC is required in connection with the
execution, delivery and performance of any of the aforesaid documents or any
documents delivered to the Administrative Agent or the Lenders in connection
therewith or as a result of any action which may be taken pursuant thereto, then
during the continuance of an Event of Default the Parent and the Borrower, at
their sole cost and expense, shall use their best efforts, and shall cause the
Borrower's Subsidiaries to use their best efforts, to secure such consent and to
cooperate with the Administrative Agent and the Lenders in any action commenced
by the Administrative Agent or the Lenders to secure such consent. Neither the
Parent nor the Borrower shall take any action, and they shall not permit any of
the Borrower's Subsidiaries to take any action, that interferes with the
exercise or completion of any such action taken by the Administrative Agent or
the Lenders. The Parent and the Borrower further consent to the transfer of
control or assignment of Licenses to a receiver or trustee or similar official
or to any purchaser of the collateral securing the Loans pursuant to any public
or private sale, judicial sale, foreclosure or exercise of other remedies
available to the Administrative Agent or the Lenders as permitted by applicable
law upon the occurrence and during the continuance of an Event of Default.
7.14 Covenants Regarding Formation of Subsidiaries and the Making of
Investments and Acquisitions. If the Borrower acquires a Subsidiary pursuant to
Section 8.10(b) or forms a new Subsidiary, the Borrower shall, and shall cause
its Subsidiaries, as applicable, promptly following such acquisition or
formation, to:
(a) provide to the Administrative Agent a duly executed
supplement to the Subsidiary Security Agreement for such new Subsidiary (other
than a Excluded Foreign Subsidiary), together with appropriate UCC-1 financing
statements, as well as a duly executed supplement to the Subsidiary Guaranty for
such new Subsidiary (other than a Excluded Foreign Subsidiary), which shall
constitute Collateral Documents for purposes of this Agreement, as well as a
certificate for such new Subsidiary, attaching copies of the Organizational
Documents of such Subsidiary and resolutions duly adopted by the governing body
of such Subsidiary authorizing the execution and delivery of all Collateral
Documents to which such Subsidiary is to become a party pursuant hereto;
(b) pledge to the Administrative Agent all (or in the case of
Excluded Foreign Subsidiaries, 65%) of the capital stock, membership interests,
partnership interests and other equity interests (or other instruments or
securities evidencing ownership) of such Subsidiary as additional collateral for
the Obligations to be held by the Administrative Agent in accordance with the
terms of the Borrower Pledge Agreement or the Subsidiary Pledge Agreement, and
execute and deliver to the Administrative Agent all such documentation for such
pledge (including, without limitation, a supplement to the Subsidiary Pledge
Agreement, original stock certificates and duly executed stock powers) as, in
the reasonable opinion of the Administrative Agent, is required to perfect or
protect such Lien; and
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(c) provide all other documentation, including, without
limitation, any other security agreement covering any additional intellectual
property obtained by the Borrower or such Subsidiary, reasonably requested by
the Administrative Agent with respect to such acquisition or the formation of
such new Subsidiary. Investments made by the Borrower or any of its Subsidiaries
after the date hereof shall also be treated as additional collateral and shall
be subject to the provisions of the appropriate Collateral Documents. Any
document, agreement or instrument executed or issued pursuant to this Section
shall be a "Collateral Document" for purposes of this Agreement.
7.15 Year 2000. The Parent and the Borrower shall take, and shall cause
each of the Borrower's Subsidiaries to take, all such actions and devote such
resources that, in the good faith exercise of their business judgment, they
believe to be reasonably necessary to permit the proper functioning, in and
following the year 2000, of the material computer systems of the Loan Parties
and equipment of the Loan Parties containing embedded microchips (including such
systems and equipment supplied by others), including, without limitation,
performing a comprehensive review and assessment of all of the Loan Parties'
material computer systems and adopting a detailed plan, with budget, for the
remediation, monitoring and testing of such computer systems.
7.16 Sinclair Purchase Agreements. If on June 15, 2001, the Parent (or
other Loan Party to which the Sinclair Purchase Agreements have been assigned)
has the right to terminate either or both of the Sinclair Purchase Agreements
pursuant to Section 9.3(c) thereof, the Parent (or such other Loan Party) shall
terminate each such Agreement pursuant to that Section on such date if the
amount then remaining in escrow pursuant to the Sinclair Purchase Agreements is
$10,000,000 or more and there is a reasonable likelihood, as determined by the
Administrative Agent, that such escrow deposit may be forfeited and paid to
Sinclair.
7.17 FCC Licenses for Rochester Stations. The Borrower shall, within
thirty days of the Closing Date, transfer to a License Subsidiary all of the FCC
Licenses relating to the Stations in Rochester, New York. From and after the
date that is thirty days after the Closing Date, such FCC Licenses relating to
the Rochester Stations shall not be Excluded Licenses for any purposes of this
Agreement.
Section 8 NEGATIVE COVENANTS.
The Parent and the Borrower agree with the Lenders that so long as this
Agreement shall remain in effect or any of the Obligations shall remain unpaid
or to be performed, or any Letter of Credit remains outstanding, the Parent and
the Borrower shall not, directly or indirectly, take any of the actions set out
in this Section 8 nor permit any of the conditions set out herein to occur.
8.1 Indebtedness. The Parent and the Borrower shall not, and shall not
permit any of the Borrower's Subsidiaries to, incur, create, assume or permit to
exist any Indebtedness, except:
(a) the Obligations;
(b) Indebtedness permitted under Sections 8.4, 8.5 or 8.6
hereof and any other Indebtedness secured by a Permitted Lien;
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(c) unsecured trade accounts payable and other unsecured
current Indebtedness incurred in the ordinary course of business (but excluding
any Indebtedness for borrowed money);
(d) Indebtedness for taxes, assessments, governmental charges,
liens or similar claims to the extent that payment thereof shall not be required
to be made by the provisions of Section 7.4;
(e) Indebtedness incurred in respect of Rate Hedging
Obligations required pursuant to Section 7.12;
(f) Indebtedness of the Parent in respect of the TIDES
Subordinated Debentures issued on October 6, 1999, pursuant to the terms of the
TIDES Indenture;
(g) Subordinated Debt incurred by the Parent or the Borrower
(other than the indebtedness evidenced by the TIDES Subordinated Debentures
referred to in clause (f) above), so long as (i) no principal is payable on such
Indebtedness prior to the date that is at least six months after the Termination
Date, (ii) the aggregate principal amount of all Indebtedness of the Parent and
the Borrower incurred pursuant to this clause 8.1(g) does not exceed at any time
$250,000,000, (iii) the terms and conditions of all agreements, documents and
instruments evidencing or governing such Indebtedness, including the terms and
conditions of subordination, shall be satisfactory to the Required Lenders, (iv)
the Borrower shall have delivered to the Administrative Agent and the Lenders
revised projections for the period from the incurrence of such Indebtedness
through the Termination Date which shall be in form and substance reasonably
satisfactory to the Administrative Agent, and the Borrower shall have
demonstrated to the satisfaction of the Administrative Agent that the Borrower
will be in compliance with all of the covenants contained herein after giving
effect to the incurrence of such Indebtedness, (v) no Possible Default or Event
of Default exists at the time of incurrence of such Indebtedness or would exist
after giving effect thereto, (vi) the Borrower shall have delivered to the
Administrative Agent a certificate executed by an executive officer of the
Borrower in form and substance satisfactory to the Administrative Agent which
shall contain calculations demonstrating on a pro forma basis the Borrower's
compliance with the financial covenants set forth in this Section 8 after giving
effect to the incurrence of such Indebtedness, and (vii) if such Subordinated
Debt is incurred by the Parent, the Parent shall contribute the net proceeds
thereof to the Borrower promptly upon receipt;
(h) other unsecured Indebtedness of the Parent or the Borrower
in an aggregate principal amount not to exceed at any one time outstanding
$10,000,000 for the Parent and the Borrower;
(i) Indebtedness owing by a Subsidiary to the Borrower or a
wholly owned Subsidiary of the Borrower; and
(j) existing Indebtedness listed on Schedule 5.10.
8.2 Liens. The Parent and the Borrower shall not, and shall not permit
any of the Borrower's Subsidiaries to, incur, create, assume or permit to exist
any Lien of any nature whatsoever on any property or assets, whether real,
personal or mixed, now owned or hereafter
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acquired by such Loan Party, other than Permitted Liens. From and after the
Closing Date, the Parent and the Borrower shall not, and shall not permit any of
the Borrower's Subsidiaries to, enter into or permit to exist any arrangement or
agreement, other than pursuant to this Agreement or any Collateral Document,
which directly or indirectly prohibits any Loan Party from creating or incurring
any Lien on any of its assets, other than (a) leases and agreements regarding
purchase money Indebtedness permitted pursuant to Section 8.4 (so long as such
prohibition only relates to the asset that is subject to such lease or that
secures such Indebtedness and proceeds thereof), and (b) provisions in
agreements which prohibit the assignment of such agreements.
8.3 Guaranties. The Parent and the Borrower shall not, and shall not
permit any of the Borrower's Subsidiaries to, become a Guarantor for any Person,
except for (a) the guaranty by the Parent of the TIDES Preferred Securities, (b)
guaranties by a Loan Party of obligations of the Borrower or the Borrower's
Subsidiaries entered into in the ordinary course of business, (c) endorsements
of negotiable instruments for collection in the ordinary course of business, (d)
the Subsidiary Guaranty and the Parent's guaranty pursuant to Section 11, and
(e) contingent obligations incurred in the ordinary course of business of the
operation of the Stations with respect to surety and appeal bonds, performance
and return-of-money bonds and other similar obligations not exceeding at any
time outstanding $5,000,000 in aggregate liability.
8.4 Rental and Conditional Sale Obligations. The Parent and the
Borrower shall not, and shall not permit any of the Borrower's Subsidiaries to,
incur, create, assume or permit to exist, with respect to any personal property,
any conditional sale obligation, any purchase money obligation, any rental
obligation, any purchase money security interest or any other arrangement for
the use of personal property of any other Person, which in any such case has an
unexpired term of not less than one year, other than an arrangement constituting
a Capitalized Lease Obligation, if the aggregate amount payable by the Loan
Parties pursuant to all such arrangements in any fiscal year would exceed the
sum of $5,000,000 plus the amount of any such obligations incurred pursuant to a
Permitted Acquisition.
8.5 Real Property Interests. The Parent and the Borrower shall not, and
shall not permit any of the Borrower's Subsidiaries to, be obligated under,
enter into, assume or permit to exist any lease or rental obligation for real
property (other than any lease or rental obligation where the Borrower or one of
its Subsidiaries receives rent from sublessees in an amount in excess of the
rents payable by the Borrower or such Subsidiary to the lessor) which has an
unexpired term of not less than one year, if the aggregate amount payable in
respect of all such arrangements by the Loan Parties in any fiscal year would
exceed the sum of $10,000,000 plus the amount of any such obligations incurred
pursuant to a Permitted Acquisition.
8.6 Capitalized Lease Obligations. The Parent and the Borrower shall
not, and shall not permit any of the Borrower's Subsidiaries to, incur, create,
assume or permit to exist Capitalized Lease Obligations if the aggregate amount
payable by the Loan Parties in respect of all such Capitalized Lease Obligations
would exceed the sum of $20,000,000 plus the amount of any such obligations
incurred pursuant to a Permitted Acquisition.
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8.7 Subordinated Debt.
(a) The Parent shall not make any interest payment on the
TIDES Subordinated Debentures, and shall not permit the TIDES Trust to make any
distribution on the TIDES Preferred Securities, at any time that an Event of
Default has occurred and is continuing or would exist after giving effect to
such payment. Upon the occurrence of an Event of Default, the Parent shall
immediately notify the Trustee under the TIDES Indenture of such occurrence, and
the Parent shall be deemed to be a representative of the Lenders for the sole
purpose of giving such notice in accordance with the provisions of the TIDES
Indenture. Upon such occurrence, the Parent shall immediately take all actions
necessary under the TIDES Indenture to commence a Deferral Period, as that term
is defined in the TIDES Indenture. The Parent shall not terminate any Deferral
Period until (i) such Event of Default shall have been waived in writing or
cured to the satisfaction of the Required Lenders, (ii) unless the Required
Lenders shall have otherwise agreed in writing, two complete consecutive fiscal
quarters shall have passed since such waiver or cure prior to the end of such
Deferral Period and no other Event of Default shall have occurred or exist
during such period, (iii) the Parent and the Borrower shall have delivered to
the Lenders updated projections, in form and substance satisfactory to the
Required Lenders, through the Termination Date, after giving effect to the
termination of such Deferral Period and the payment of accrued interest required
in connection with such termination, and (iv) the Parent and the Borrower shall
have delivered to the Administrative Agent a pro forma compliance certificate,
in form and substance satisfactory to the Required Lenders, using the most
recently available quarterly financial statements, which shall contain
calculations demonstrating on a pro forma basis, for the subsequent four quarter
period, the Borrower's compliance with the financial covenants set forth in this
Section 8 after giving effect to the termination of such Deferral Period and the
payment of accrued interest required in connection with such termination. The
Parent shall take all actions necessary under the TIDES Indenture to cause the
Obligations to be Designated Secured Senior Debt (as that term is defined in the
TIDES Indenture) at all times and for all purposes of the TIDES Indenture and
the TIDES Subordinated Debentures.
(b) The Parent and the Borrower shall not redeem, discharge,
pay, prepay or defease all or any portion of the principal of any Subordinated
Debt, including the TIDES Subordinated Debentures, prior to the payment in full
in cash of all Obligations. Neither the Parent nor the Borrower shall make any
interest payment on any Subordinated Debt, other than the TIDES Subordinated
Debentures, except in accordance with the provisions of the agreements,
instruments and other documentation governing such Subordinated Debt and
approved by the Required Lenders pursuant to Section 8.1(g).
8.8 Notes, Accounts Receivable and Claims. During the continuance of an
Event of Default, the Parent and the Borrower shall not, and shall not permit
any of the Borrower's Subsidiaries to, sell, discount or otherwise dispose of
any note, account receivable or other right to receive payment, with or without
recourse, except for collection in the ordinary course of business; or fail to
timely assert any claim, cause of action or contract right which it possesses
against any third party or agree to settle or compromise any such claim, cause
of action or contract right except in any case in the exercise of its good faith
business judgment and except for settlements or compromises made in the
reasonable exercise of business judgment in the ordinary course of business.
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8.9 Capital Distributions.
(a) The Parent and the Borrower shall not, and shall not
permit any of the Borrower's Subsidiaries to, make, or declare or incur any
liability to make, any Capital Distribution, except that:
(i) any Subsidiary of the Borrower may make Capital
Distributions to the Borrower or to a wholly owned Subsidiary of the Borrower;
(ii) subject to Section 8.7, the Borrower may make
quarterly Capital Distributions to the Parent on each date that a payment is
required to be made pursuant to the TIDES Indenture in an amount equal to the
amount required to pay interest in respect of such quarter on the TIDES
Subordinated Debentures so long as no Event of Default exists at the time of
making such distribution or would exist after giving effect thereto;
(iii) the Borrower may make Capital Distributions to
the Parent in an amount equal to the amount required to pay interest on
Subordinated Debt permitted pursuant to the terms of Section 8.1(g) so long as:
(A) no Possible Default or Event of Default exists at the time of making such
distribution or would exist after giving effect thereto; and (B) such
distributions shall not be made more frequently than four times per year; and
(iv) the Borrower may make Capital Distributions to
the Parent in an amount required to permit the Parent to pay its reasonable
corporate overhead costs and to pay other trade payables reasonably incurred in
the ordinary course of business in conducting the operations of the Stations so
long as no Possible Default or Event of Default exists at the time of making
such distribution or would exist after giving effect thereto.
(b) The Borrower shall not permit any of its Subsidiaries to
agree to or to be subject to any restriction on its ability to make Capital
Distributions or loans or other asset transfers to the Borrower or any
Subsidiary of the Borrower other than restrictions imposed by applicable law and
the restrictions set forth in this Section.
8.10 Disposal of Property; Mergers; Acquisitions; Reorganizations.
(a) Except as provided in paragraph (b) below, the Parent and
the Borrower shall not, and shall not permit any of its Subsidiaries to, (i)
dissolve or liquidate (except that a Subsidiary of the Borrower may liquidate
into a wholly owned Subsidiary of the Borrower); (ii) sell, lease, transfer or
otherwise dispose of any material portion of its properties and assets to any
Person (other than a wholly owned Subsidiary of the Borrower), except for (A)
the disposition of assets in the ordinary course of business in an aggregate
amount not to exceed $10,000,000 for all Loan Parties in any transaction or
related series of transactions, (B) the disposition of any asset which, in the
good faith exercise of its business judgment, the Borrower determines is no
longer useful in the conduct of its or its Subsidiaries' business, (C) the
exchange of a Station in connection with a Permitted Acquisition, subject to the
satisfaction of the provisions of Section 2.7(b)(iii), (D) Capital Distributions
permitted to be made pursuant to Section 8.9(a), and (E) the liquidation or
merger into the Borrower of a wholly owned Subsidiary that has no material
liabilities and no material assets other than the capital stock or other equity
interests in a wholly owned Subsidiary of the Borrower; (iii) be a party to any
consolidation, merger, recapitalization
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or other form of reorganization (except that a Subsidiary may merge into a
wholly owned Subsidiary of the Borrower); (iv) make any acquisition of all or
substantially all the assets of any Person, or of a business division or line of
business of any Person, or of any other assets constituting a going business;
(v) create or acquire any Subsidiary (except as permitted in Section 7.14), or
(vi) be or become a party to any joint venture or other partnership except as
set forth on Schedule 8.10 attached hereto or permitted pursuant to Section
8.11.
(b) The Borrower may make the acquisitions contemplated in the
Sinclair Purchase Agreements subject to its compliance with clauses (v), (vi),
(vii), (viii) and (ix) below. In addition, the Borrower may make acquisitions of
substantially all of the assets of any radio station or tower site or of all of
the capital stock or other equity interests of a Person that owns a radio
station or tower site, subject to the satisfaction of the following conditions
(the acquisitions pursuant to the Sinclair Purchase Agreements and any other
acquisition which satisfies all of the following conditions being referred to
hereinafter as a "Permitted Acquisition"):
(i) after giving effect to such acquisition, at least
80% of the Borrower's consolidated revenues, on a pro forma basis, shall be
derived from Stations located in the 100 largest Metro Survey Areas, as
determined by The Arbitron Company;
(ii) the Borrower shall have given to the
Administrative Agent notice of any such acquisition with a purchase price of
$25,000,000 or more at least five days prior to executing any binding commitment
with respect thereto, which notice shall state the additional amounts, if any,
by which the Borrower proposes to increase the dollar limitations set forth in
Sections 8.4, 8.5 and 8.6;
(iii) the Agents shall have received evidence
satisfactory to them prior to the closing of such acquisition that the structure
of the transaction shall satisfy all material, applicable legal and regulatory
requirements relating to such acquisition;
(iv) no Possible Default or Event of Default shall
exist as of the date of consummation of such acquisition or after giving effect
to such acquisition;
(v) with respect to acquisitions with a purchase
price of $25,000,000 or more, the Borrower shall have demonstrated to the
satisfaction of the Administrative Agent that the Borrower will be in compliance
with all of the covenants contained herein after giving effect to such
acquisition and that no Event of Default or Possible Default then exists or
would exist after giving effect to such acquisition, and the Borrower shall have
delivered to the Administrative Agent within ten days prior to the consummation
of such acquisition an acquisition report signed on behalf of the Borrower by an
executive officer of the Borrower in form and substance satisfactory to the
Administrative Agent which shall contain (A) calculations demonstrating on a pro
forma basis the Borrower's compliance with the financial covenants set forth in
this Section 8 after giving effect to such acquisition, and (B) projections for
the Borrower for a five year period after the closing of such acquisition giving
effect to the acquisition and including a statement of sources and uses of funds
for such acquisition showing, among other things, the source of financing for
the acquisition;
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(vi) all FCC Licenses acquired in connection with such
acquisition shall be transferred immediately upon consummation of such
acquisition to a License Subsidiary;
(vii) the Borrower shall have delivered to the Administrative
Agent UCC, judgment and tax lien searches for each relevant jurisdiction and
shall have taken any actions as may be necessary or reasonably requested by the
Administrative Agent to grant to the Administrative Agent, for the benefit of
the Lenders, perfected Liens in all personal property acquired by the Borrower
or any of its Subsidiaries in such acquisition pursuant to the Collateral
Documents, subject to no prior Liens except Permitted Liens;
(viii) if the Borrower acquires a Subsidiary or creates a
Subsidiary (including a License Subsidiary) pursuant to or in connection with
such acquisition, the Borrower shall have complied with the provisions of
Section 7.14 in respect of the acquisition or creation of such Subsidiary;
(ix) the Borrower shall have delivered to the Administrative
Agent evidence reasonably satisfactory to the Administrative Agent to the effect
that all material approvals, consents or authorizations required in connection
with such acquisition (including the formation of any License Subsidiary and the
transfer of FCC Licenses to a License Subsidiary) from any Licensing Authority
or other governmental authority shall have been obtained, and such opinions as
the Administrative Agent may reasonably request as to the Liens granted to the
Administrative Agent, for the benefit of the Lenders, as required pursuant to
this Section, as to any required regulatory approvals for such acquisition and
as to such other matters as the Administrative Agent may reasonably request; and
(x) the Borrower shall cause such acquisition to be
consummated by a Subsidiary and not by it.
8.11 Investments. The Parent and the Borrower shall not, and shall not
permit any of the Borrower's Subsidiaries to, purchase or otherwise acquire,
hold or invest in any stock, membership interests, partnership interests or
other equity interests or securities or evidences of indebtedness of, or any
interest or investment in, or make or permit to exist any loans or advances to,
any other Person, except:
(a) the Borrower and its Subsidiaries may hold direct obligations of
the United States government maturing within one year;
(b) the Borrower and its Subsidiaries may hold certificates of deposit
of a member bank of the Federal Reserve System having capital, surplus and
undivided profits in excess of $2,000,000,000;
(c) the Borrower and its Subsidiaries may hold any investment in
commercial paper which at the time of such investment is assigned the highest
quality rating in accordance with the rating systems employed by either Moody's
Investors Service, Inc. or any successor rating agency, or Standard & Poor's
Rating Services, a division of The McGraw-Hill Companies, Inc., or any successor
rating agency;
(d) the Borrower and its Subsidiaries may hold money market funds;
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(e) the Borrower and its Subsidiaries may hold securities received
pursuant to a plan of reorganization adopted in an insolvency proceeding or
otherwise in immaterial amounts in exchange for accounts receivable of the
entity which is the subject of such insolvency proceeding generated in the
ordinary course of the Borrower's or any of its Subsidiaries' business;
(f) the Parent may hold its investments in the Borrower and in the
TIDES Trust, and the Borrower and its Subsidiaries may make and hold their
investments in the Borrower's Subsidiaries existing as of the date hereof or
acquired or created in accordance with the provisions of Section 7.14 or Section
8.10(b), and the Borrower and its Subsidiaries may make and hold investments,
loans and advances in the Borrower and any of its wholly owned Subsidiaries;
(g) the Borrower and its Subsidiaries may hold investments having an
aggregate cost for all investments made pursuant to this clause (g) of not to
exceed $50,000,000, so long as: (i) no Event of Default or Possible Default
exists as of the date of making any such investment or would exist after giving
effect thereto, (ii) the Borrower shall have given notice to the Administrative
Agent of each such investment in excess of $5,000,000 at least three Banking
Days prior to making such investment, (iii) each such investment shall be
structured so that it is non-recourse to the Loan Parties and that no Loan Party
shall have any liability or obligation, contingent or otherwise, in respect of
such investment, (iv) the business conducted by each entity in which the
Borrower or any of its Subsidiaries may invest pursuant to this subsection shall
be related or incidental to the Borrower's and its Subsidiaries' business of
owning and operating radio stations and the board of directors, executive
committee of such board or chief executive officer of the Borrower shall have
determined in good faith that each such investment shall benefit the Borrower's
and its Subsidiaries' business of owning and operating radio stations; provided,
however, $10,000,000 of such $50,000,000 limitation shall not be subject to the
limitations contained in this subclause (iv), and (v) each such investment shall
be pledged to the Administrative Agent for the benefit of the Banks pursuant to
the applicable Pledge Agreement or other documentation in form and substance
satisfactory to the Administrative Agent as security for the Obligations or such
investment shall be held by a wholly owned Subsidiary of the Borrower that has
no operations and no material liabilities, and all of the equity interests of
such Subsidiary shall be pledged to the Administrative Agent for the benefit of
the Banks pursuant to the applicable Pledge Agreement or other documentation in
form and substance satisfactory to the Administrative Agent as security for the
Obligations; and
(h) the Borrower and its Subsidiaries may make investments solely for
promotional or advertising inventory, with no monetary commitment, so long as:
(i) no Event of Default or Possible Default exists as of the date of making any
such investment or would exist after giving effect thereto, (ii) the Borrower
shall have given notice to the Administrative Agent of each such investment with
a value in excess of $10,000,000 at least three Banking Days prior to making
such investment, (iii) each such investment shall be structured so that it is
non-recourse to the Loan Parties and that no Loan Party shall have any liability
or obligation, contingent or otherwise, in respect of such investment, other
than to provide promotional support or advertising, (iv) the business conducted
by each entity in which the Borrower or any of its Subsidiaries may invest
pursuant to this subsection shall be related or incidental to the Internet or
the Borrower's and its Subsidiaries' business of owning and operating radio
stations and the
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board of directors, executive committee of such board or chief executive officer
of the Borrower shall have determined in good faith that each such investment
shall benefit the Borrower's and its Subsidiaries' business of owning and
operating radio stations and (v) each such investment shall be pledged to the
Administrative Agent for the benefit of the Banks pursuant to the applicable
Pledge Agreement or other documentation in form and substance satisfactory to
the Administrative Agent as security for the Obligations or such investment
shall be held by a wholly owned Subsidiary of the Borrower that has no
operations and no material liabilities, and all of the equity interests of such
Subsidiary shall be pledged to the Administrative Agent for the benefit of the
Banks pursuant to the applicable Pledge Agreement or other documentation in form
and substance satisfactory to the Administrative Agent as security for the
Obligations.
8.12 Amendment of Governing Documents. The Parent and the Borrower shall
not, and shall not permit any of the Borrower's Subsidiaries to, amend, modify
or supplement its Organizational Documents, unless required by law, in any
manner that is adverse to the interests of the Lenders (as may be reasonably
determined by the Agents). The Parent and the Borrower shall immediately provide
copies of any such amendments, modifications or supplements to the
Administrative Agent.
8.13 Financial Covenants.
(a) Leverage Ratio. The Borrower shall not permit the Leverage Ratio at
any time during any period listed in Column A below to be greater than the ratio
set forth in Column B below opposite such period:
<TABLE>
<CAPTION>
Column A Column B
- -------- --------
Period: Permitted Ratio:
- ------- ----------------
<S> <C>
Closing through December 31, 1999: 7.0:1.0
January 1, 2000, through June 30, 2000: 6.5:1.0
July 1, 2000, through December 31, 2000: 6.0:1.0
January 1, 2001, through December 31, 2001: 5.5:1.0
January 1, 2002, through December 31, 2002: 5.0:1.0
January 1, 2003, through December 31, 2003: 4.5:1.0
January 1, 2004, and thereafter: 4.0:1.0
</TABLE>
(b) Operating Cash Flow to Interest Expense. The Borrower shall not
permit the ratio of Operating Cash Flow for any four fiscal quarter period
ending during any period listed in Column A below to Interest Expense for such
four quarter period to be less than the ratio set forth in Column B below
opposite such period:
<TABLE>
<CAPTION>
Column A Column B
- -------- --------
Period: Permitted Ratio:
- ------- ----------------
<S> <C>
Closing through March 31, 2000: 1.75:1.0
April 1, 2000, through December 31, 2000: 2.00:1.0
</TABLE>
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<TABLE>
<S> <C>
January 1, 2001, and thereafter: 2.50:1.0
</TABLE>
(c) Pro Forma Debt Service Ratio. The Borrower shall not permit the
ratio of Operating Cash Flow for any four fiscal quarter period ending during
any period listed in Column A below to Pro Forma Debt Service as of the end of
such period to be less than the ratio set forth in Column B below opposite such
period:
<TABLE>
<CAPTION>
Column A Column B
- -------- --------
Period: Permitted Ratio:
- ------- ----------------
<S> <C>
Closing through March 31, 2000: 1.50:1.0
April 1, 2000, and thereafter: 1.75:1.0
</TABLE>
(d) Fixed Charge Coverage Ratio. The Borrower shall not permit the
Fixed Charge Coverage Ratio as of the end of any fiscal quarter to be less than
1.25 to 1.00.
8.14 Management Agreements and Fees.
(a) Except for agreements permitted pursuant to Section 8.14(b), the
Parent and the Borrower shall not, and shall not permit any of the Borrower's
Subsidiaries to, make or enter into, or pay any management fees pursuant to, any
so-called management or service agreement or joint operating agreement whereby
management, supervision or control of its business, or any significant aspect
thereof, shall be delegated to or placed in any Person other than a Loan Party
or an employee of a Loan Party. The Parent and the Borrower shall not, and shall
not permit any of the Borrower's Subsidiaries to, make or enter into, or receive
any management fees pursuant to, any so-called management or service agreement
or joint operating agreement whereby management, supervision or control of the
business of any other Person (other than a Subsidiary of the Borrower), or any
significant aspect thereof, shall be delegated to or placed in any Loan Party.
(b) Without the prior written consent of the Administrative Agent, the
Parent and the Borrower shall not, and shall not permit any of the Borrower's
Subsidiaries to, enter into, or otherwise be obligated under any local marketing
agreement (other than with respect to Stations being acquired pursuant to
Permitted Acquisitions), time brokerage agreement, program service agreement,
joint sales agreement, facilities leasing agreement or similar arrangement;
provided, however, that the Borrower may enter into any such arrangements with
respect to any AM Station owned by it upon written notice to the Administrative
Agent.
8.15 Fiscal Year. The Parent and the Borrower shall not, and shall not
permit any Subsidiary to, change its fiscal year.
8.16 ERISA. Except as could not reasonably be expected to have a
Material Adverse Effect, neither the Borrower nor any member of the Controlled
Group shall (a) fail to make any contributions which are required pursuant to
the terms of any Plan or any Benefit Arrangement; (b) permit the occurrence of
any ERISA Event which would result in any liability to the Borrower or any
member of the Controlled Group which could, individually or
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collectively, result in a Material Adverse Effect; or (c) permit the present
value of all benefit liabilities under all Pension Plans other than any
multiemployer plan (as defined in ERISA Section 4001(a)(3)) to exceed the
current value of the assets of such plans allocable to such benefit liabilities
by more than an amount which, if such Plan were terminated, could result in a
Material Adverse Effect.
8.17 Affiliates. The Parent and the Borrower shall not, and shall not
permit any of the Borrower's Subsidiaries to, enter into any transaction or
agreement with any Affiliate of any Loan Party (other than another Loan Party
or, with respect to employment compensation and salaries, an officer, director
or employee of any Loan Party) or pay any compensation to any such Person,
unless such transaction or agreement is in the ordinary course of and pursuant
to the reasonable requirements of the business of such Loan Party and the terms
of such transaction or agreement are not substantially less favorable to such
Loan Party than could be obtained in an arms-length transaction with an
unaffiliated third party or unless the amount paid to such Person is not
substantially in excess of the fair value of the services rendered by such
Person.
8.18 Change of Name, Identity or Structure. The Parent and the Borrower
shall not, and shall not permit any of the Borrower's Subsidiaries to, change
its name, identity or organizational structure without thirty days (or such
shorter period as is agreed to by the Administrative Agent) prior written notice
to the Administrative Agent.
8.19 Amendments or Waivers. The Parent and the Borrower shall not, and
shall not permit any of the Borrower's Subsidiaries to, amend, alter or modify,
or consent to or suffer any amendment, alteration or modification of, the TIDES
Indenture, the TIDES Subordinated Debentures, the TIDES Trust Declaration or the
TIDES Preferred Securities or any notes or other documents, instruments or
agreements relating thereto, or any Acquisition Agreement, License or Operating
Agreement to which such Loan Party is a party without the prior written consent
of the Required Lenders if such amendment, alteration or modification imposes
any significantly more onerous term or condition on a Loan Party than is
contained in such agreement, note, document, License or contract as of the date
hereof or is otherwise materially adverse to the Lenders, in either case as
reasonably determined by the Administrative Agent.
8.20 Issuance or Transfer of Capital Stock. The Borrower shall not sell
or issue any of its Membership Interests or other equity interests or any
options, warrants or other securities convertible into or exercisable for any
Membership Interests or other equity interests, other than to the Parent, and
shall not permit the transfer of any of its Membership Interests or other equity
interests or any options, warrants or other securities convertible into or
exercisable for any Membership Interests or other equity interests. The Borrower
shall not permit any of its Subsidiaries to sell or issue any membership
interests, capital stock, partnership interests or other equity interests or any
warrants, options or other securities convertible into or exercisable for any
membership interests, capital stock, partnership interests or other equity
interests, and the Borrower shall not permit any of its Subsidiaries to permit
the transfer of any membership interests, capital stock, partnership interests
or other such equity interests, except in any such case to the Borrower or a
wholly owned Subsidiary of the Borrower.
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8.21 Change in, and Conduct of, Business. The Borrower shall not, and
shall not permit any of its Subsidiaries to, change the nature of its business
in any material respect. The Borrower shall not permit its pro forma
consolidated revenues from the broadcasting operations of the Stations to be
less than 80% of its total pro forma consolidated revenues. The Parent shall not
engage in any business other than entering into and performing contracts on
behalf of the Borrower and its Subsidiaries in connection with the ordinary
course of operation of the Stations ("Station Contracts") and the contracts
relating to the TIDES Subordinated Debentures as in effect as of the date hereof
or as amended, altered or modified in accordance with Section 8.19, and holding
the Membership Interests in the Borrower, and the common securities of the TIDES
Trust. The Parent shall not hold any material assets other than the assets
referred to in Section 5.29.
8.22 Regulation U. The Parent and the Borrower shall not, and shall not
permit any of the Borrower's Subsidiaries to, directly or indirectly, (a) apply
any part of the proceeds of the Loans to the purchasing or carrying of any
"margin stock" within the meaning of Regulations T, U or X of the Federal
Reserve Board, or any regulations, interpretations or rulings thereunder, (b)
extend credit to others for the purpose of purchasing or carrying any such
margin stock, or (c) retire Indebtedness which was incurred to purchase or carry
any such margin stock.
8.23 License Subsidiaries. The Parent and the Borrower shall not, and
shall not permit any of their Subsidiaries (other than a License Subsidiary) to,
hold any FCC Licenses (other than Excluded Licenses), but rather shall cause all
FCC Licenses relating to the Stations (other than Excluded Licenses) to be
issued to and held by a License Subsidiary. The Borrower shall not permit any
License Subsidiary to (a) incur, create, assume or permit to exist any
Indebtedness other than pursuant to the Subsidiary Guaranty and the other
Collateral Documents, (b) incur, create, assume or permit to exist any Lien of
any nature whatsoever on any property or assets now owned or hereafter acquired
by it except in favor of the Administrative Agent, for the benefit of the
Lenders, (c) make any Capital Expenditures, (d) acquire any assets other than
the Licenses, (e) conduct any business, or (f) hire or engage any employees.
Section 9 EVENTS OF DEFAULT.
The occurrence of any one or more of the following events, whether
voluntarily or involuntarily or by operation of law, shall constitute an Event
of Default hereunder:
9.1 Non-Payment. The Borrower shall fail to pay when due, whether by
acceleration of maturity or otherwise, any installment of principal due
hereunder or under any Note or shall fail to pay within three days of the date
when due, whether by acceleration of maturity or otherwise, any installment of
interest due hereunder or under any Note, any reimbursement obligation hereunder
in respect of a Letter of Credit or any fee or other payment obligation in
respect of the Obligations.
9.2 Failure of Performance in Respect of Other Obligations. (a) Any Loan
Party shall fail to observe, perform or be in compliance with any of the
provisions of Section 8, Section 7.1, Section 7.3, Section 7.8 or the first
sentence of Section 7.2; or (b) any Loan Party shall fail to observe, perform or
be in compliance with the terms of any Obligation, covenant or agreement (other
than those referred to in Section 9.1, Section 8, Section 7.1, Section 7.3,
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Section 7.8 or the first sentence of Section 7.2) to be observed, performed or
complied with by such Loan Party under this Agreement or any Collateral Document
and, provided that such failure described in this subclause (b) is of a type
which can be cured, such failure shall continue and not be cured for thirty days
after: (i) written notice thereof from the Administrative Agent or a Lender or
(ii) the Administrative Agent or the Lenders are notified thereof or should have
been notified thereof pursuant to the provisions of Section 7.6, whichever is
earlier.
9.3 Breach of Warranty. Any financial statement, representation,
warranty, statement or certificate made or furnished by any Loan Party in or in
connection with this Agreement or any Collateral Document, or as an inducement
to the Administrative Agent or the Lenders to enter into this Agreement and the
Collateral Documents, including, without limitation, those in Section 5 above,
shall have been false, incorrect or incomplete in any material respect when made
or deemed made.
9.4 Cross-Defaults. Any Event of Default, as that term is defined in
either the TIDES Indenture or the TIDES Trust Declaration, shall occur; or any
Loan Party shall default in any payment due on any Total Debt in excess of
$5,000,000 and such default shall continue for more than the period of grace, if
any, applicable thereto; or any Loan Party shall default in the performance of
or compliance with any term of any evidence of such Total Debt or of any
mortgage, indenture or other agreement relating thereto, and any such default
shall continue for more than the period of grace, if any, specified therein if
such default causes, or permits the holder thereof (or a trustee or agent on
behalf of such holder) to cause, the acceleration of all or any portion in
excess of $5,000,000 of such Total Debt.
9.5 Assignment for Benefit of Creditors. Any Loan Party shall make an
assignment for the benefit of its creditors, or shall admit its insolvency or
shall fail to pay its debts generally as such debts become due.
9.6 Bankruptcy. Any petition seeking relief under Title 11 of the United
States Code, as now constituted or hereafter amended, shall be filed by or
against any Loan Party or any proceeding shall be commenced by or against any
Loan Party with respect to relief under the provisions of any other applicable
bankruptcy, insolvency or other similar law of the United States or any State
providing for the reorganization, winding-up or liquidation of Persons or an
arrangement, composition, extension or adjustment with creditors, and, in the
case of any such involuntary petition or proceeding, such involuntary petition
or proceeding shall not have been discharged within sixty days of its filing or
commencement or an order or decree approving or ordering any of the foregoing
shall be entered.
9.7 Appointment of Receiver; Liquidation. A receiver or trustee shall be
appointed for any Loan Party or for any substantial part of its assets, and such
receiver or trustee shall not be discharged within sixty days of his
appointment; any proceedings shall be instituted for the dissolution or the full
or partial liquidation of any Loan Party and such proceedings shall not be
dismissed or discharged within sixty days of their commencement; or any Loan
Party shall discontinue its business except as otherwise permitted hereunder.
9.8 Judgments. Any Loan Party or Loan Parties shall incur non-appealable
final judgments for the payment of money aggregating at any one time in excess
of $5,000,000 in the
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aggregate for all such judgments (to the extent not covered by insurance) and
shall not discharge (or make adequate provision for the discharge of) the same
within a period of thirty days unless, pending further proceedings, execution
thereon has been effectively stayed; or a non-monetary judgment or order shall
be rendered against any Loan Party or Loan Parties that could reasonably be
expected to have a Material Adverse Effect, and there shall be any period in
excess of thirty consecutive days during which a stay of enforcement of such
judgment or order, by reason of a pending appeal or otherwise, shall not be in
effect.
9.9 Impairment of Collateral; Invalidation of any Loan Document. (i) A
creditor of any Loan Party shall obtain possession of a material portion of the
collateral for the Obligations by any means, including, without limitation,
levy, distraint, replevin or self-help, or any creditor shall establish or
obtain any right in a material portion of such collateral which is equal or
senior to a Lien of the Administrative Agent, for the benefit of the Lenders, in
such collateral; or (ii) any material damage to, or loss, theft or destruction
of, any material collateral for the Loans shall occur, except to the extent such
loss, damage or injury is covered by insurance; or (iii) the Administrative
Agent, for the benefit of the Lenders, shall cease to have a first priority
perfected lien (except for Permitted Liens) in all of the issued and outstanding
Membership Interests of the Borrower, in all (or, in the case of Excluded
Foreign Subsidiaries, 65%) of the membership interests, capital stock,
partnership interests and other equity interests and securities of each of the
Borrower's Subsidiaries and in substantially all of the properties and assets of
each Loan Party (other than an Excluded Foreign Subsidiary); or (iv) any Lien
granted or created or purported to be granted or created by this Agreement or
any Collateral Document shall cease or fail to be a first priority (subject to
Permitted Liens) perfected Lien with respect to any significant portion of the
collateral purported to be covered thereby (as reasonably determined by the
Required Lenders); or (v) this Agreement, any Note or any Collateral Document
ceases to be a legal, valid and binding agreement or obligation enforceable
against any Loan Party in accordance with its terms, or shall be terminated,
invalidated, set aside or declared ineffective or inoperative and such
cessation, termination, invalidity, set aside or declaration could reasonably be
expected to have a Material Adverse Effect; or (vi) any Loan Party shall contest
or deny the validity or enforceability of this Agreement or any Collateral
Document to which it is a party or any lien or security interest purported to be
created thereby.
9.10 Termination of License or Operating Agreement. The FCC or any other
Licensing Authority shall (a) revoke, terminate, substantially and adversely
modify or fail to renew any material License relating to a Station or Stations
that have contributed 5% or more, in the aggregate, of Operating Cash Flow in
the twelve month period then most recently ended, or (b) designate any such
material License for hearing or commence proceedings to suspend, revoke,
terminate or substantially and adversely modify any such License and such
proceedings shall not be dismissed or discharged within sixty days; or the
Borrower or any License Subsidiary shall be required pursuant to a final
non-appealable order to sell or otherwise dispose of any such material Station
(other than the stations in the Kansas City market as a condition to regulatory
approval to the transfer of such stations pursuant to the Sinclair Purchase
Agreements); or any Operating Agreement shall be revoked or terminated or
materially, adversely modified and not replaced by a substitute acceptable to
the Required Lenders within thirty days of such revocation, termination or
modification.
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9.11 Change of Control.
(a) Joseph M. Field and David J. Field and their immediate families,
including their wives, their children or grandchildren, the spouses of their
children and their grandchildren, or trusts created for the benefit of any of,
or the estates of, the foregoing or entities controlled by Joseph M. Field or
David J. Field (collectively, the "Permitted Holders"), shall cease to own
collectively 35% of the voting power of the capital stock of the Parent
(provided, however, that no Event of Default shall occur if the Permitted
Holders cease to hold 35% of such voting power solely as a result of the death
or incapacity of both Joseph M. Field and David J. Field so long as either (i)
successors to such individuals having expertise and experience in the
broadcasting industry comparable to that of Joseph M. Field and David J. Field
shall have been retained within 120 days of such cessation or (ii) the board of
directors of the Parent shall have provided to the Required Lenders within such
120 day period a written statement reasonably acceptable to the Required Lenders
detailing the Parent's plans for replacing Joseph M. Field and David J. Field);
or
(b) any "person" or "group" (as such terms are used in Sections 13(d)
and 14(d) of the Securities Exchange Act of 1934, as amended (the "Exchange
Act")), excluding the Permitted Holders, shall (i) become, or obtain rights
(whether by means or warrants, options or otherwise) to become, the "beneficial
owner" (as defined in Rules 13(d)-3 and 13(d)-5 under the Exchange Act),
directly or indirectly, of a greater percentage than that held by the Permitted
Holders of the voting power of the capital stock of the Parent or (ii) otherwise
obtain direct or indirect control (as that term is defined in the definition of
the term "Affiliate" in Section 1.1) of the Parent or the Borrower; or
(c) a majority of the seats on the board of directors or other
governing body of the Parent or the Borrower shall be occupied by Persons who
were not (i) nominated by the board of directors or other governing body of the
Parent (in the case of the Parent's board) or the Borrower (in the case of the
Borrower's board), (ii) appointed by directors so nominated or (iii) in the case
of the Parent, nominated by Permitted Holders; or
(d) the Parent shall cease to own 100% of the issued and outstanding
Membership Interests and other equity interests and securities of the Borrower,
free and clear of Liens (other than those granted pursuant to the Parent Pledge
Agreement), or the Borrower shall cease to own, directly or indirectly, all of
the issued and outstanding membership interests, capital stock, partnership
interests or other equity interests of each Subsidiary, free and clear of Liens
(other than those granted pursuant to the Borrower Pledge Agreement or the
Subsidiary Pledge Agreement).
9.12 Condemnation. Any court, government or governmental agency shall
condemn, seize or otherwise appropriate, or take custody or control of any
substantial portion of the assets of any Loan Party pursuant to a final,
non-appealable order unless such taking could not reasonably be expected to have
a Material Adverse Effect.
9.13 Cessation of Operations. The on-the-air broadcast operations at any
Station (other than a Station which has not, in the four quarter period most
recently ended prior to the date of determination, contributed at least 5% to
Operating Cash Flow) shall be interrupted
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at any time for more than forty-eight hours, whether or not consecutive, during
any period of five consecutive days, unless (a) the broadcasting operations of
all or substantially all of the radio stations in the relevant market also are
interrupted for a like period of time, or (b) the Borrower shall be receiving
during such period of interruption insurance sufficient to assure that its per
diem Operating Cash Flow during such period is a least equal to that which could
reasonably have been expected during such period but for the interruption.
9.14 Subordination. Any Loan Party shall fail to comply with the
subordination provisions of the agreement or instrument governing or evidencing
such Subordinated Debt or any separate subordination agreement, and the Required
Lenders shall have determined that such failure to comply could reasonably be
expected to have a Material Adverse Effect.
9.15 Material Adverse Effect. Any event or circumstance shall occur or
fail to occur or any action shall be taken or fail to be taken if the result of
such occurrence or failure to occur or such action or failure to take action
could reasonably be expected to have a material adverse effect on the ability of
any Loan Party to perform its obligations hereunder or under any of the
Collateral Documents.
Section 10 REMEDIES.
Notwithstanding any contrary provision or inference herein or elsewhere,
10.1 Optional Defaults. If any Event of Default referred to in Section
9.1 through and including Section 9.4 or Section 9.8 through and including
Section 9.15 shall occur, the Administrative Agent may, with the consent of, and
shall at the direction of, the Required Lenders, upon written notice to the
Borrower,
(a) terminate the Commitments and the credit hereby established and
forthwith upon such election the obligations of the Lenders to make any further
Loans hereunder (other than Loans resulting from the funding of Letters of
Credit) immediately shall be terminated, and/or
(b) accelerate the maturity of the Loans and all other Obligations,
whereupon all Obligations shall become and thereafter be immediately due and
payable in full without any presentment or demand and without any further or
other notice of any kind, all of which are hereby waived by the Parent and the
Borrower,
(c) direct the Issuing Bank to not issue any additional Letters of
Credit during the continuance of such Event of Default; and/or
(d) demand the payment to the Issuing Bank of the aggregate stated
amount of the outstanding Letters of Credit, and the Borrower shall immediately
pay such amount, which amount the Issuing Bank shall hold as security for the
obligations incurred under the Letters of Credit.
10.2 Automatic Defaults. If any Event of Default referred to in Sections
9.5-9.7 shall occur,
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(a) the Commitments and the credit hereby established shall
automatically and forthwith terminate, and the Lenders thereafter shall be under
no obligation to make any further Loans hereunder (other than Loans resulting
from the funding of Letters of Credit), and
(b) the principal of and interest on the Notes, then outstanding, and
all of the other Obligations shall thereupon become and thereafter be
immediately due and payable in full, all without any presentment, demand or
notice of any kind, which are hereby waived by the Parent and the Borrower, and
(c) the Issuing Bank shall not issue any additional Letters of Credit,
and the aggregate stated amount of the outstanding Letters of Credit shall be
immediately payable by the Borrower to the Issuing Bank, which amount the
Issuing Bank shall hold as security for the obligations incurred under the
Letters of Credit.
10.3 Performance by the Lenders. If at any time any Loan Party fails or
refuses to pay or perform any material obligation or duty to any third Person,
except for payments which are the subject of bona fide disputes in the ordinary
course of business, during the continuance of the resulting Event of Default the
Administrative Agent or the Lenders may, in their sole discretion, but shall not
be obligated to, pay or perform the same on behalf of such Loan Party, and the
Borrower shall promptly repay all amounts so paid, and all costs and expenses so
incurred. This repayment obligation shall become one of the Obligations of the
Borrower hereunder and shall bear interest at the Default Interest Rate.
10.4 Other Remedies. Upon the occurrence of an Event of Default, the
Administrative Agent and the Lenders may exercise any other right, power or
remedy as may be provided herein, in the Notes or in any other Collateral
Document, or as may be provided at law or in equity, including, without
limitation, the right to recover judgment against the Borrower for any amount
due either before, during or after any proceedings for the enforcement of any
security or any realization upon any security.
10.5 Enforcement and Waiver by the Lenders. The Administrative Agent and
the Lenders shall have the right at all times to enforce the provisions of this
Agreement and all Collateral Documents in strict accordance with the terms
hereof and thereof, notwithstanding any conduct or custom on the part of the
Administrative Agent or the Lenders in refraining from so doing at any time,
unless the Administrative Agent or the Lenders shall have waived such
enforcement in writing in respect of a particular instance. The failure of the
Administrative Agent or the Lenders at any time to enforce their rights under
such provisions shall not be construed as having created a custom or course of
dealing in any way contrary to the specific provisions of this Agreement or the
Collateral Documents, or as having in any way modified or waived the same. All
rights, powers and remedies of the Administrative Agent and the Lenders are
cumulative and concurrent and the exercise of one right, power or remedy shall
not be deemed a waiver or release of any other right, power or remedy.
Section 11 GUARANTY BY THE PARENT.
11.1 Guarantee. The Parent, from and after the Closing Date, hereby
absolutely, unconditionally and irrevocably guarantees as primary obligor, and
not merely as
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surety, the prompt performance and payment in full when due, whether at stated
maturity, by acceleration or otherwise (including, without limitation,
obligations that would become due but for the operation of the automatic stay
under Section 362(a) of Title 11 of the United States Code, and including
interest, fees and other charges whether or not a claim is allowed for such
obligations in any such bankruptcy proceeding), of (i) all Obligations of the
Borrower arising at any time, now or in the future, pursuant to this Agreement,
the Notes or any Collateral Document, and including, without limitation, the
Borrower's obligations under any outstanding Letters of Credit; (ii) all
Obligations of the Borrower arising at any time, now or in the future, pursuant
to any agreement with any Lender or an Affiliate of any Lender with respect to
interest rate swap agreements or other agreements regarding Rate Hedging
Obligations; (iii) all costs and expenses incurred by the Administrative Agent
or any Lender, including, without limitation, reasonable attorneys fees and
legal expenses, in the exercise, preservation or enforcement of any of the
rights, powers or remedies of the Administrative Agent or the Lenders, or in the
enforcement of the obligations of the Parent, hereunder and under any other
Collateral Document to which the Parent is a party; and (iv) any renewals,
continuations or extensions of any of the foregoing (all of which are referred
to herein as the "Guaranteed Obligations").
11.2 Extension or Renewal of Guaranteed Obligations; Waiver. The Parent
agrees that the Guaranteed Obligations may be extended or renewed, in whole or
in part, without notice or further assent from it, that the Parent will remain
bound upon this Guaranty notwithstanding any extension, renewal or other
alteration of any Guaranteed Obligation and the guaranty herein made shall apply
to the Guaranteed Obligations as so amended, renewed or altered; provided,
however, nothing contained herein shall be construed to obligate the Lenders to
extend or renew the Guaranteed Obligations and, furthermore, the Lenders shall
have no obligation to extend or renew the Guaranteed Obligations. The Parent
waives diligence, presentment, demand of payment, filing of claims with a court
in the event of insolvency or bankruptcy of the Borrower, any right to require a
proceeding first against the Borrower, protest, notice and all demands
whatsoever and covenants that its guaranty of the Borrower's Obligations under
this Guaranty will not be discharged except by complete performance by the
Borrower or another guarantor of such Obligations.
11.3 Nature of Guaranty: Continuing, Absolute and Unconditional.
(a) This Guaranty is and is intended to be a continuing guaranty of
payment when due of the Guaranteed Obligations, and not of collection, and is
independent of and in addition to any other guaranty, endorsement, collateral or
other agreement held by the Lenders or by the Administrative Agent, for the
benefit of the Lenders, therefor or with respect thereto, whether or not
furnished by the Parent. The Parent waives any right to require that any resort
be had by the Administrative Agent or the Lenders to any other guarantor or to
any of the security held for payment of any of the Guaranteed Obligations or to
any balance of any deposit account or credit on the books of the Administrative
Agent or any Lender in favor of the Borrower or any other Person. Upon the
occurrence and during the continuance of any Event of Default, the
Administrative Agent or the Lenders may, at their sole election, proceed
directly and at once, without notice, against the Parent to collect and recover
the full amount or any portion of the Guaranteed Obligations, without first
proceeding against the Borrower, any other guarantor or any other Person, or
against any security or collateral for the Guaranteed Obligations. All
Guaranteed Obligations shall be conclusively presumed to have been created in
reliance hereon.
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(b) This Guaranty shall not be changed or affected by any
representation, oral agreement, act or thing whatsoever, except as herein
provided. This Guaranty is intended by the Parent to be the final, complete and
exclusive expression of the agreement among the Parent, the Administrative Agent
and the Lenders with respect to the subject matter hereof.
(c) The obligations of the Parent under this Guaranty are absolute and
unconditional and shall not be impaired or discharged by:
(i) the failure of the Administrative Agent or the Lenders to
assert any claim or demand or to enforce any right or remedy against the
Borrower, any other guarantor or any other party to a Collateral Document under
the provisions of this Agreement, the Notes, any Collateral Document or any
other agreement or otherwise;
(ii) any extension, renewal or other alteration of any
provision of this Agreement, the Notes, any Collateral Document or any other
agreement or otherwise;
(iii) any rescission, waiver, amendment or modification of any
of the terms or provisions of this Agreement, the Notes, any Collateral Document
or any other agreement or otherwise;
(iv) the failure of the Administrative Agent or the Lenders to
assert any claim or demand or to exercise or enforce any right or remedy under
this Agreement, any Collateral Document or any other agreement or otherwise, or
against any other guarantor of, or any other party which has provided security
for, any of the Guaranteed Obligations;
(v) the sale, exchange, release, surrender, realization of or
upon or the failure to perfect with respect to or otherwise deal with in any
manner and in any order any property by whomsoever at any time pledged or
mortgaged to secure, or howsoever securing, the Guaranteed Obligations;
(vi) the settlement or compromise of any of the Guaranteed
Obligations, any security therefor or any liability (including any of those
hereunder) incurred directly or indirectly in respect thereof or hereof, or any
subordination of the payment of all or any part thereof to the payment of any
liability (whether due or not) of the Borrower to creditors of the Borrower
other than the Administrative Agent, the Lenders and the Parent;
(vii) application of any sums by whomsoever paid or howsoever
realized to any liability or liabilities of the Borrower to the Administrative
Agent or the Lenders regardless of what liability or liabilities of the Borrower
remain unpaid;
(viii) the act or failure to act in any manner referred to in
this Guaranty which may deprive the Parent of its right to subrogation or
contribution against the Borrower or any other guarantor to recover any payments
made pursuant to this Guaranty; or
(ix) or any other act or agreement or thing or omission or
delay to do any other act or thing that may or might in any manner or to any
extent vary the risk of the Parent or that would otherwise operate as a
discharge of the Parent as a matter of law or equity.
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(d) The Parent's obligation hereunder is to pay the Guaranteed
Obligations in full when due according to this Agreement to the extent provided
herein, and such obligation shall not be affected by any stay or extension of
time for payment by the Borrower resulting from any proceeding under Title 11 of
the United States Code, as now constituted or hereafter amended or replaced, or
any similar federal or state law.
11.4 No Discharge or Diminishment of Guaranty. The obligations of the
Parent under this Guaranty shall not be subject to any reduction, limitation,
impairment or termination for any reason (other than if the Guaranteed
Obligations have been indefeasibly paid in full and the Commitments have
terminated and no Letters of Credit remain outstanding), including, without
limitation, any claim of waiver, release, surrender, alteration or compromise of
any of the Guaranteed Obligations, and shall not be subject to any defense or
set-off, counterclaim, recoupment or termination whatsoever by reason of the
invalidity, illegality or unenforceability of any of the Guaranteed Obligations
or any discharge of the Borrower from any of the Guaranteed Obligations in a
bankruptcy or similar proceeding or otherwise. Without limiting the generality
of the foregoing, the obligations of the Parent under this Guaranty shall not be
discharged or impaired or otherwise affected by the failure of the
Administrative Agent or any Lender to assert any claim or demand or to enforce
any remedy under this Agreement, any Collateral Document or any other agreement
or otherwise, by any waiver or modification of any such agreement, by any
default, waiver or delay, or by any other act or agreement or thing or omission
or delay to do any other act or thing that may or might in any manner or to any
extent vary the risk of the Parent or that would otherwise operate as a
discharge of the Parent as a matter of law or equity
11.5 Miscellaneous.
(a) If a claim is ever made upon any of the Administrative Agent or the
Lenders for the repayment or recovery of any amount or amounts received by such
Person in payment of any of the Obligations and such Person repays all or part
of such amount by reason of (i) any judgment, decree or order of any court or
administrative body having jurisdiction over such Person or any of its property,
or (ii) any settlement or compromise of any such claim effected by such Person
with any such claimant, including the Borrower, then in such event the Parent
shall be and remain obligated to such Person hereunder for the amount so repaid
or recovered to the same extent as if such amount had never originally been
received by such Person.
(b) The Parent expressly represents and acknowledges that any financial
accommodations by the Administrative Agent and the Lenders, or any of them, to
the Borrower, including without limitation the extension of the Loans are and
will be of direct interest, benefit and advantage to the Parent.
(c) Until the indefeasible payment in full of the Guaranteed
Obligations and the termination of the Commitments and the cancellation of all
outstanding Letters of Credit, the Parent hereby waives any claim, right or
remedy, direct or indirect, that the Parent now has or may hereafter have
against the Borrower or its assets in connection with this Guaranty or the
performance by the Parent of its obligations hereunder, in each case whether
such claim, right or remedy arises in equity, under contract, by statute, under
common law or otherwise, including,
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without limitation (a) any right of subrogation, reimbursement or
indemnification that the Parent now has or may hereafter have against the
Borrower, (b) any right to enforce, or to participate in, any claim, right or
remedy that the Administrative Agent or the Lenders now have or may hereafter
have against the Borrower or any other guarantor, and (c) any benefit of, and
any right to participate in, any collateral or security now or hereafter held by
the Administrative Agent or the Lenders. In addition, until the Guaranteed
Obligations shall have been indefeasibly paid in full and the Commitments shall
have terminated and all outstanding Letters of Credit shall have been canceled,
the Parent shall withhold exercise of any right of contribution that the Parent
may have against any other guarantor of the Guaranteed Obligations at law or in
equity or otherwise. The Parent further agrees that, to the extent the waiver of
its rights of subrogation, reimbursement, indemnification and contribution as
set forth herein is found by a court of competent jurisdiction to be void or
voidable for any reason, such rights of subrogation, reimbursement or
indemnification that the Parent may have against the Borrower or against any
collateral or security, and any rights of contribution that the Parent may have
against any such other guarantor, shall be junior and subordinate to any rights
that the Administrative Agent and the Lenders may have against the Borrower, to
all right, title and interest the Administrative Agent or the Lenders may have
in any such collateral or security, and to any right the Administrative Agent or
the Lenders may have against such other guarantor. The Administrative Agent or
the Lenders may use, sell or dispose of any items of collateral or security as
they see fit without regard to any subrogation rights arising out of this
Guaranty that the Parent may have and, upon any such disposition or sale, any
rights of subrogation that the Parent may have shall, with respect to the
collateral disposed of, terminate. If any amount shall be paid to the Parent on
account of subrogation rights at any time when all Guaranteed Obligations shall
not have been paid in full in cash or the Commitments shall not have been
terminated, or any Letters of Credit shall remain outstanding, such amount shall
be held in trust for the Administrative Agent, on behalf of the Lenders, and
shall forthwith be paid over to the Administrative Agent, for the benefit of the
Lenders, to be credited and applied against the Guaranteed Obligations, whether
matured or unmatured, in accordance with the terms hereof, the Notes or any
applicable Collateral Document.
Section 12 THE AGENTS.
12.1 Appointment. KCCI is hereby appointed administrative agent and
co-documentation agent hereunder, and each of the Lenders irrevocably authorizes
KCCI to act as the administrative agent and co-documentation agent of such
Lender. Bank of America, N.A. is hereby appointed syndication agent and
co-documentation agent hereunder, and each of the Lenders irrevocably authorizes
Bank of America, N.A. to act as the syndication agent and co-documentation agent
of such Lender. The Agents agree to act as such upon the express conditions
contained in this Section 12. In their capacities as Agents hereunder, the
Agents do not hereby assume any fiduciary duties to any of the Lenders and are
acting as independent contractors, the rights and duties of which are limited to
those expressly set forth in this Agreement and the other Collateral Documents.
Each of the Lenders hereby agrees not to assert any claim against either Agent
on any agency theory or any other theory of liability for breach of fiduciary
duty, all of which claims each Lender hereby waives.
12.2 Powers. The Administrative Agent shall have and may exercise such
powers hereunder as are specifically delegated to it by the terms hereof,
together with such
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powers as are reasonably incidental thereto. Neither the Administrative Agent
nor the Syndication Agent shall have any implied duties or any obligation to the
Lenders to take any action hereunder except any action specifically provided by
this Agreement to be taken by such Agent.
12.3 General Immunity. Neither the Administrative Agent, nor the
Syndication Agent nor any of their respective directors, officers, affiliates,
agents or employees shall be liable to the Lenders or any Lender for any action
taken or omitted to be taken by it or them hereunder or in connection herewith
except for its or their own gross negligence or willful misconduct. Without
limiting the foregoing, neither the Administrative Agent, nor the Syndication
Agent nor any of their respective directors, officers, affiliates, agents or
employees shall be responsible for, or have any duty to examine (a) the
genuineness, execution, validity, effectiveness, enforceability, value or
sufficiency of this Agreement, any Collateral Document, or any other document or
instrument furnished pursuant to or in connection with this Agreement or any
Collateral Document, (b) the collectibility of any amounts owed by any Loan
Party, (c) any recitals, statements, reports, representations or warranties made
in connection with this Agreement or any Collateral Document, (d) the
performance or satisfaction by any Loan Party of any covenant or agreement
contained herein or in any Collateral Document, (e) any failure of any party to
this Agreement to receive any communication sent, including any telegram,
teletype, bank wire, cable, radiogram or telephone message sent or any writing,
application, notice, report, statement, certificate, resolution, request, order,
consent letter or other instrument or paper or communication entrusted to the
mails or to a delivery service, or (f) the assets or liabilities or financial
condition or results of operations or business or credit-worthiness of any Loan
Party. The Administrative Agent shall not be bound to ascertain or inquire as to
the performance or observance of any of the terms of this Agreement or any
Collateral Document.
12.4 Action on Instructions of the Lenders. The Administrative Agent
shall not be required to exercise any discretion or take any action, but shall
be required to act or to refrain from acting (and shall be fully protected in so
acting or refraining from acting) upon the instructions of the Required Lenders
(subject to Section 12.12 hereof), and such instructions shall be binding upon
all the Lenders and all holders of the Notes; provided, however, that the
Administrative Agent shall not be required to take any action which exposes it
to personal liability or which is contrary to this Agreement or applicable law.
The foregoing provisions of this Section 12.4 shall not limit in any way the
exercise by any Lender of any right or remedy granted to such Lender pursuant to
the terms of this Agreement or any Collateral Document. Except as otherwise
expressly provided herein, any reference in this Agreement to action by the
Lenders shall be deemed to be a reference to the Required Lenders.
12.5 Employment of Agents and Counsel. The Administrative Agent may
execute any of its duties as Administrative Agent hereunder by or through
employees, agents and attorneys-in-fact and shall not be answerable or liable to
the Lenders, except as to money or securities received by it or its authorized
agents, for the default or misconduct of any such agents or attorneys-in-fact
selected by it with reasonable care.
12.6 Reliance on Documents; Counsel. The Administrative Agent shall be
entitled to rely upon any Note, notice, consent, certificate, affidavit, letter,
telegram, statement, paper, document or other communication believed by it to be
genuine and correct and to have
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been signed or sent by the proper person or persons, and, with respect to legal
matters, upon the opinion of counsel selected by the Administrative Agent, which
counsel may be employees of the Administrative Agent, concerning all matters
pertaining to the agency hereby created and its duties hereunder.
12.7 Administrative Agent's Reimbursement and Indemnification. The
Lenders agree to reimburse and indemnify the Administrative Agent (which
indemnification shall be shared by the Lenders ratably in proportion to their
respective Ratable Shares of the Loans at the time such indemnification is
sought hereunder, or, if indemnification is sought after the date on which the
Commitments have terminated and the Loans have been repaid, ratably in
accordance with such Ratable Shares immediately prior to such date) (a) for any
amounts not reimbursed by the Borrower for which the Administrative Agent is
entitled to reimbursement by the Borrower hereunder or under any Collateral
Document (but without in any way limiting the Borrower's obligation to do so),
(b) for any other expenses reasonably incurred by the Administrative Agent on
behalf of the Lenders, in connection with the preparation, execution, delivery,
administration, amendment or enforcement hereof or of any of the Collateral
Documents and (c) for any liabilities, obligations, losses, damages, penalties,
actions, judgments, suits, costs, expenses or disbursements of any kind and
nature whatsoever which may be imposed on, incurred by or asserted against the
Administrative Agent in any way relating to or arising out of this Agreement,
any Collateral Document or any other document related hereto or thereto or the
transactions contemplated hereby or the enforcement of any of the terms hereof
or thereof or of any such other documents, provided that no Lender shall be
liable for any of the foregoing to the extent they arise from the gross
negligence or willful misconduct of the Administrative Agent.
12.8 Rights as a Lender. With respect to its Ratable Share of the
Commitments, the Loans made by it, the Letters of Credit issued by the Issuing
Bank and the Notes issued to it, each of the Administrative Agent and the
Syndication Agent shall have the same rights and powers hereunder as any Lender
and may exercise the same as though it were not the Administrative Agent or the
Syndication Agent, as the case may be, and the term "Lender" or "Lenders" shall,
unless the context otherwise indicates, include the Administrative Agent and the
Syndication Agent in their individual capacities. Each of the Administrative
Agent and the Syndication Agent may accept deposits from, lend money to, and
generally engage in any kind of banking or trust business with the Loan Parties
as if it were not the Administrative Agent or the Syndication Agent hereunder.
12.9 Lender Credit Decision. Each Lender acknowledges that it has,
independently and without reliance upon the Administrative Agent or any other
Lender and based on the financial statements prepared by the Parent and the
Borrower and such other documents and information as it has deemed appropriate,
made its own credit analysis and decision to enter into this Agreement and the
other Collateral Documents. Each Lender also acknowledges that it will,
independently and without reliance upon the Administrative Agent or any other
Lender and based on such documents and information as it shall deem appropriate
at the time, continue to make its own credit decisions in taking or not taking
action under this Agreement and the other Collateral Documents. The
Administrative Agent shall not be required to keep the Lenders informed as to
the performance or observance by the Loan Parties of this Agreement or any other
document referred to or provided for herein or to inspect the properties
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or books of the Loan Parties. Except for notices, reports and other documents
and information expressly required to be furnished to the Lenders by the
Administrative Agent hereunder, the Administrative Agent shall not have any duty
or responsibility to provide any Lender with any credit or other information
concerning the affairs, financial condition or business of any Loan Party that
may come into its possession.
12.10 Successor Administrative Agent.
(a) The Administrative Agent may, without the consent of the Borrower
or the other Lenders, assign its rights and obligations as Administrative Agent
hereunder and under the Collateral Documents to its parent or to any wholly
owned subsidiary of its parent which has capital and retained earnings of at
least $500,000,000, and upon such assignment, the former Administrative Agent
shall be deemed to have retired, and such parent or wholly owned subsidiary
shall be deemed to be a successor Administrative Agent.
(b) The Administrative Agent may resign at any time by giving written
notice thereof to the Lenders and the Borrower. Upon any such resignation, the
Required Lenders shall have the right to appoint a successor Administrative
Agent with the consent of the Borrower so long as no Event of Default or
Possible Default has occurred and is continuing. If no successor Administrative
Agent shall have been so appointed by the Required Lenders and shall have
accepted such appointment within thirty days after the notice of resignation,
then the retiring Administrative Agent may appoint a successor Administrative
Agent, with the consent of the Borrower (so long as no Event of Default or
Possible Default has occurred and is continuing), which consent shall not be
unreasonably or untimely withheld, and if the Borrower reasonably and timely
objects to two such appointments, the Administrative Agent may appoint a Lender
as the successor Administrative Agent. Such successor Administrative Agent shall
be a commercial bank having capital and retained earnings of at least
$500,000,000.
(c) Upon the acceptance of any appointment as the Administrative Agent
hereunder by a successor Administrative Agent, such successor Administrative
Agent shall thereupon succeed to and become vested with all the rights, powers,
privileges and duties of the assigning or retiring Administrative Agent, and the
assigning or retiring Administrative Agent shall be discharged from its duties
and obligations hereunder. After any assigning or retiring Administrative
Agent's resignation hereunder as the Administrative Agent, the provisions of
this Section 12 shall continue in effect for its benefit in respect of any
actions taken or omitted to be taken by it while it was acting as the
Administrative Agent hereunder.
12.11 Ratable Sharing. All principal and interest payments on Loans and
commitment fees received by the Administrative Agent shall be remitted to the
Lenders in accordance with their Ratable Shares. Any amounts received by the
Administrative Agent or any other Lender upon the sale of any collateral for the
Loans or upon the exercise of any remedies hereunder or under any of the
Collateral Documents or upon the exercise of any right of setoff shall be
remitted to the Lenders in accordance with their Ratable Shares of the Loans;
provided, however, that, solely for purposes of the sharing of any amounts
received by the Administrative Agent or any other Lender, if at the time of any
such receipt the Borrower has defaulted under any agreements regarding Rate
Hedging Obligations entered into pursuant to Section 7.12 with any Lender or any
Affiliate of any Lender, then the Ratable Share of the
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affected Lender shall be proportionately increased and the Ratable Shares of the
other Lenders shall be proportionately decreased based upon the amount due to
the affected Lender (or such Lender's Affiliate) pursuant to such agreements. If
any Lender shall obtain any payment hereunder (whether voluntary, involuntary,
through exercise of any right of set-off or otherwise) in excess of its Ratable
Share, then such Lender shall immediately remit such excess to the other Lenders
pro rata.
12.12 Actions by the Administrative Agent and the Lenders. The
Administrative Agent shall take formal action following the occurrence of a
Possible Default or an Event of Default only upon the agreement of the Required
Lenders; provided, however, that if the Administrative Agent gives notice to the
Lenders of a Possible Default or an Event of Default, and the Required Lenders
cannot agree (which agreement shall not be unreasonably withheld) on a mutual
course of action within thirty days following such notice, the Administrative
Agent may (but shall not be required to) pursue such legal rights and remedies
against the Borrower as it deems necessary and appropriate to protect the
Lenders and any collateral under the circumstances; provided, further, however,
that nothing in this Section shall permit the Administrative Agent to take any
action which pursuant to Section 13.12 would require the consent of all of the
Lenders without such consent of all of the Lenders.
Section 13 MISCELLANEOUS.
13.1 Construction. The provisions of this Agreement shall be in addition
to those of the Collateral Documents and to those of any other guaranty,
security agreement, note or other evidence of the liability relating to the Loan
Parties held by the Lenders, all of which shall be construed as complementary to
each other. Nothing contained herein shall prevent the Administrative Agent or
the Lenders from enforcing any or all of such instruments in accordance with
their respective terms. Each right, power or privilege specified or referred to
in this Agreement or in any Collateral Document is in addition to any other
rights, powers or privileges that the Administrative Agent or the Lenders may
otherwise have or acquire by operation of law, by other contract or otherwise.
No course of dealing in respect of, nor any omission or delay in the exercise
of, any right, power or privilege by the Administrative Agent or the Lenders
shall operate as a waiver thereof, nor shall any single or partial exercise
thereof preclude any further or other exercise thereof or of any other, as each
right, power or privilege may be exercised independently or concurrently with
others and as often and in such order as the Administrative Agent or the Lenders
may deem expedient. Notwithstanding any other provision of this Agreement, the
Borrower shall not be required to pay any amount of interest pursuant hereto or
pursuant to any Note that is in excess of the maximum amount permitted by law.
13.2 Further Assurance. From time to time, the Parent and the Borrower
shall, and shall cause the Borrower's Subsidiaries to, execute and deliver to
the Lenders such additional documents and take such actions as the
Administrative Agent may reasonably require to carry out the purposes of this
Agreement or any of the Collateral Documents, or to preserve and protect the
rights of the Administrative Agent and the Lenders hereunder or thereunder.
13.3 Expenses of the Administrative Agent and the Lenders;
Indemnification.
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(a) Whether or not the transactions contemplated by this Agreement are
consummated, the Borrower shall pay the costs and expenses, including the
reasonable fees and disbursements of the Agents' special counsel, incurred by
the Administrative Agent, the Syndication Agent, the Issuing Bank and the
Lenders in connection with (i) the negotiation, preparation, amendment,
administration or enforcement of this Agreement and the Collateral Documents and
any amendment or modification thereof and the closing of the transactions
contemplated hereby and thereby and the primary syndication of the Loans; (ii)
the perfection of the Liens granted pursuant hereto and pursuant to the
Collateral Documents; (iii) the making of the Loans and issuance of the Letters
of Credit hereunder; (iv) the negotiation, preparation or enforcement of any
other document in connection with this Agreement, the Collateral Documents, the
Letters of Credit or the Loans made hereunder; (v) any proceeding brought or
formal action taken by the Administrative Agent or the Lenders to enforce any
provision of this Agreement or any Collateral Document, or to enforce or
exercise any right, power or remedy hereunder or thereunder; or (vi) any action
which may be taken or instituted by any Person against the Administrative Agent
or any Lender as a result of any of the foregoing; provided, however, that
notwithstanding the foregoing, the Borrower shall not be responsible for the
costs and expenses, including legal fees, of any Lender other than the
Administrative Agent in respect of any period prior to the occurrence of a
Possible Default. The estimated fees and expenses of the Administrative Agent's
special counsel through the Closing shall be paid on the Closing Date.
(b) The Borrower hereby indemnifies and holds harmless each Agent and
each Lender and their respective directors, officers, employees, agents,
counsel, subsidiaries and affiliates (the "Indemnified Persons") from and
against any and all claims, losses, liabilities, obligations, damages,
penalties, actions, judgments, suits, costs, expenses or disbursements of any
kind or nature whatsoever (including, without limitation, reasonable attorneys
fees) which may be imposed on, incurred by, or asserted against any Indemnified
Person in each case arising out of or in connection with or by reason of any
investigation, litigation, claim or proceeding or preparation of a defense in
connection therewith in any way relating to or arising out of this Agreement,
the Collateral Documents, or any of them, or the Loans made pursuant hereto, or
the Letters of Credit issued pursuant hereto, or the use of the proceeds of the
Loans or any of the transactions contemplated hereby or thereby or the ownership
or operation of the Stations or any of the other assets of any Loan Party or the
breach by any Loan Party of any of the representations, warranties, covenants
and agreements contained herein or in any Collateral Document, or the Sinclair
Purchase Agreements or any of the transactions contemplated thereby; provided,
however, that the Borrower shall not be liable to any Indemnified Person, if
there is a final judicial determination that such claims, losses, liabilities,
obligations, damages, penalties, actions, judgments, suits, costs, expenses or
disbursements resulted solely from the gross negligence or willful misconduct of
such Indemnified Person; and provided, further, that notwithstanding the
foregoing, the Borrower shall not be responsible for the costs and expenses,
including legal fees, of any Lender other than the Administrative Agent in
respect of any period prior to the occurrence of a Possible Default which legal
fees are incurred by such Lender in connection with the negotiation,
preparation, amendment or modification of this Agreement and the Collateral
Documents and the closing of the transactions contemplated hereby and thereby.
13.4 Notices. Except as otherwise expressly provided herein, all
notices, demands and requests required or permitted to be given under the
provisions of this Agreement
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shall be in writing and shall be deemed to have been duly delivered and received
(a) on the date of personal delivery, (b) on the date of receipt (as shown on
the return receipt) if mailed by registered or certified mail, postage prepaid
and return receipt requested, (c) on the next business day after delivery to a
courier service that guarantees delivery on the next business day if the
conditions to the courier's guarantee are complied with, or (d) on the date of
receipt by telecopy, in each case addressed as follows:
TO THE ADMINISTRATIVE AGENT:
Key Corporate Capital Inc.
127 Public Square
M/C OH-01-127-0602
Cleveland, Ohio 44114-1306
Attention: Media and Telecommunications Finance Division
Telecopy: 216-689-4666
Copy to:
Timothy J. Kelley, Esq.
Dow, Lohnes & Albertson, PLLC
1200 New Hampshire Ave., N.W., Suite 800
Washington, D.C. 20036
Telecopy: 202-776-2222
TO THE SYNDICATION AGENT:
BANK OF AMERICA, N.A.
901 Main Street
Dallas, Texas 75202
Attention: Communications Finance Division
Dallas, Texas
Telecopy: 214-209-2744
TO THE LENDERS, AT THE ADDRESSES LISTED ON THE SIGNATURE PAGES
HEREOF OR IN THE ASSIGNMENT INSTRUMENT DELIVERED PURSUANT TO
SECTION 13.7(b)
TO ANY LOAN PARTY:
c/o Entercom Radio, LLC
401 City Avenue, Suite 409
Bala Cynwyd, Pennsylvania 19004
Attention: David J. Field, President
Telecopy: 610-660-5620
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Copy to:
John C. Donlevie, Esq.
Executive Vice President and General Counsel
Entercom Radio, LLC
401 City Avenue, Suite 409
Bala Cynwyd, Pennsylvania 19004
Telecopy: 610-660-5641
or to such other address or addresses as the party to which such notice is
directed may have designated in writing to the other parties hereto.
13.5 Waiver and Release by the Parent and the Borrower. Neither the
Administrative Agent, nor the Syndication Agent, nor any Lender, nor any
Affiliate, officer, director, employee, attorney, or agent of the Administrative
Agent, the Syndication Agent or any Lender shall have any liability with respect
to, and the Parent and the Borrower hereby waive, release and agree not to sue
any of them upon, any claim for any special, indirect, incidental or
consequential damages suffered or incurred by any Loan Party in connection with,
arising out of, or in any way related to, this Agreement or any of the
Collateral Documents, or any of the transactions contemplated by this Agreement
or any of the Collateral Documents, unless arising from the gross negligence or
willful misconduct of such Person as determined by a final judgment of a court
of competent jurisdiction.
13.6 Right of Set Off. Upon the occurrence and during the continuance of
any Event of Default, each Lender is hereby authorized at any time and from time
to time, to the fullest extent permitted by law, to set-off and apply any and
all deposits (general or special, time or demand, provisional or final) at any
time held and other indebtedness at any time owing by such Lender or an
Affiliate of such Lender to or for the credit or the account of any Loan Party
against any and all of the obligations of the Loan Parties now or hereafter
existing hereunder or under any Collateral Document, irrespective of whether or
not such Lender shall have made any demand hereunder or under any Collateral
Document and although such obligations may be unmatured. Such Lender agrees
promptly to notify the Administrative Agent and the Borrower after any such
set-off and application made by such Lender; provided, however, that the failure
to give such notice shall not affect the validity of such set-off and
application. The rights of the Lenders under this Section are in addition to
other rights and remedies (including without limitation, other rights of
set-off) which the Lenders may have. The Parent and the Borrower agree, to the
fullest extent they may effectively do so under applicable law, that any holder
of a participation in the Notes may exercise rights of set-off or counterclaim
and other rights with respect to such participation as fully as if such holder
of a participation were a direct creditor of a Loan Party in the amount of such
participation.
13.7 Successors and Assigns; Participations.
(a) Whenever in this Agreement any of the parties hereto is referred
to, such reference shall be deemed to include the successors and assigns of such
party; provided, however, that neither the Parent nor the Borrower may assign or
transfer any of its rights or obligations hereunder or under the Notes without
the prior written consent of all of the Lenders
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and the Administrative Agent and any purported assignment in violation of this
Section 13.7(a) shall be void.
(b) Each Lender may assign all or any part of any of its Loans, its
Notes, and its share of the Commitments and the Letters of Credit with the
consent of the Borrower and the Administrative Agent, which consent shall not be
unreasonably withheld; provided that (i) no such consent by the Borrower shall
be required (A) for any such assignment by any Lender to an Affiliate of such
Lender or to another branch or a principal office of such Lender, (B) if, at the
time of such assignment, an Event of Default or Possible Default has occurred
and is continuing, or (C) for any such assignment to another Lender or an
Affiliate of another Lender; (ii) any such partial assignment shall be in an
amount at least equal to $5,000,000, except with respect to assignments from one
Lender to another Lender; and (iii) each such assignment shall be made by a
Lender in such manner that the same portion of its Loans, its Notes, its share
of the Commitments and its participation in the Letters of Credit is assigned to
the assignee. Upon execution and delivery by the assignor and the assignee to
the Borrower and the Administrative Agent of an Assignment and Amendment
Agreement in the form attached hereto as Exhibit E pursuant to which such
assignee agrees to become a "Lender" hereunder (if not already a Lender) having
the share of the Commitments, the Loans and the Letters of Credit specified in
such instrument, and upon consent thereto by the Administrative Agent and the
Borrower (to the extent required), the assignee shall have, to the extent of
such assignment (unless otherwise provided in such assignment with the consent
of the Administrative Agent), the obligations, rights and benefits of a Lender
hereunder holding the share of the Commitments, the Loans and the Letters of
Credit (or portions thereof) assigned to it (in addition to the share of the
Commitments, the Loans and the Letters of Credit, if any, theretofore held by
such assignee) and the assigning Lender shall, to the extent of such assignment,
be released from the share of the Commitments and the obligations hereunder so
assigned.
(c) Upon its receipt of an assignment pursuant to Section 13.7(b) above
duly executed by an assigning Lender and the assignee, together with the
Administrative Agent's standard processing and recordation fee of $3,500, the
Administrative Agent shall, if such assignment has been completed, accept such
assignment. Within five business days after receipt of such notice, the
Borrower, at the Borrower's own expense, shall execute and deliver to the
Administrative Agent in exchange for the surrendered Notes new Notes to the
order of the assignee in an amount equal to the share of the Commitments, the
Loans and the Letters of Credit assumed by the assignee and, if the assigning
Lender has retained a portion of the Commitments, the Loans and the Letters of
Credit hereunder, new Notes to the order of the assigning Lender in an amount
equal to the share of the Commitments and the Loans retained by it hereunder.
Such new Notes shall be in an aggregate principal amount equal to the aggregate
principal amount of such surrendered Notes, shall be dated the effective date of
such assignment and shall otherwise be in substantially the form of Exhibits A
and B hereto. Cancelled Notes shall be returned to the Borrower.
(d) A Lender may sell or agree to sell to one or more other Persons
(each, a "Participant") a participation in all or any part of any Loans held by
it, or in its share of the Commitments and the Letters of Credit. Except as
otherwise provided in the last sentence of this Section 13.7(d), no Participant
shall have any rights or benefits under this Agreement or any Note or any other
Collateral Documents (the Participant's rights against such Lender in respect
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of such participation to be those set forth in the agreements executed by such
Lender in favor of the Participant). All amounts payable by the Borrower to any
Lender under Section 2 hereof in respect of Loans held by it, and its share of
the Commitments and of the Letters of Credit, shall be determined as if such
Lender had not sold or agreed to sell any participations in such Loans and share
of the Commitments, and as if such Lender were funding each of such Loans and
its share of the Commitments in the same way that it is funding the portion of
such Loans and its share of the Commitments in which no participations have been
sold. In no event shall a Lender that sells a participation agree with the
Participant to take or refrain from taking any action hereunder or under any
other Collateral Document except that such Lender may agree with the Participant
that it will not, without the consent of the Participant, agree to any
modification, supplement or waiver hereof or of any of the other Collateral
Documents to the extent that the same, under Section 13.12 hereof, requires the
consent of each Lender. The Borrower agrees that each Participant shall be
entitled to the benefits of Sections 2.8 through 2.15 and Section 13.6 with
respect to its participating interest.
(e) In addition to the assignments and participations permitted under
the foregoing provisions of this Section 13.7, any Lender may assign and pledge
all or any portion of its Loans and its Notes to any Federal Reserve Bank as
collateral security pursuant to Regulation A of the Board of Governors of the
Federal Reserve System and any Operating Circular issued by such Federal Reserve
Bank. No such assignment shall release the assigning Lender from its obligations
hereunder.
(f) A Lender may furnish any information concerning the Loan Parties in
the possession of such Lender from time to time to assignees and participants
(including prospective assignees and participants).
(g) Anything in this Section 13.7 to the contrary notwithstanding, no
Lender may assign or participate any interest in any Loan held by it hereunder
to the Borrower or any of its Affiliates without the prior written consent of
all of the Lenders.
(h) Notwithstanding anything in this Section 13.7 to the contrary, any
Lender (each, a "Granting Lender") may grant to any special purpose funding
vehicle, identified as such in writing from time to time by the Granting Lender
to the Administrative Agent and the Borrower (each, a "SPC"), the option to
provide to the Borrower all or any part of any Loan that such Granting Lender
otherwise would be obligated to make to the Borrower pursuant to this Agreement,
provided that: (i) nothing herein shall constitute a commitment by any SPC to
make any Loan; (ii) if an SPC elects not to exercise such option or otherwise
fails to provide all or any part of such Loan, the Granting Lender shall be
obligated to make such Loan pursuant to the terms of this Agreement, and such
Granting Lender shall be liable hereunder generally for all acts and omissions
of such SPC as if such acts and omissions were committed by such Granting
Lender; (iii) the SPC shall have no rights or benefits under this Agreement or
any Note or any other Collateral Documents (its rights against such Granting
Lender being as set forth in any agreements between such SPC and such Granting
Lender), and shall not constitute a "Lender" hereunder; (iv) all amounts payable
by any Loan Party to the Granting Lender shall be determined as if such Granting
Lender had not granted such option, and as if such Granting Lender were funding
each of its Loans and its share of the Commitments in the same way that it is
funding the portion of such Loans and its share of the Commitments in which no
such option
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<PAGE> 100
has been granted; and (v) in no event shall a Granting Lender agree with a SPC
to take or refrain from taking any action hereunder or under any Note or any
other Collateral Document, except that such Granting Lender may agree with the
SPC that it will not, without the consent of the SPC, agree to any modification,
supplement or waiver of this Section 13.7(h). The making of a Loan by a SPC
hereunder shall utilize the Commitment of the Granting Lender to the same
extent, and as if, such Loan were made by such Granting Lender. Each party
hereto hereby agrees that no SPC shall be liable for any indemnity or similar
payment obligation under this Agreement (all liability for which will remain
with the Granting Lender). In furtherance of the foregoing, each party hereto
hereby agrees (which agreement shall survive the termination of this Agreement)
that, prior to the date that is one year and one day after the payment in full
of all outstanding commercial paper or other senior indebtedness of the
applicable SPC, it will not institute against, or join any other person in
instituting against, such SPC any bankruptcy, reorganization, arrangement,
insolvency or liquidation proceedings under the laws of the United States or any
State thereof, in each case for any matter relating to or otherwise arising
under or out of this Agreement or any Loan or other payment made (or omitted to
be made) by such SPC hereunder or in connection herewith. In addition, any SPC
may (1) with prior notice to, but without the prior written consent of, the
Borrower and the Administrative Agent and without paying any processing fee
therefor, assign all or a portion of its interest in any Loans to the applicable
Granting Lender or, with the prior written consent of the Borrower and the
Administrative Agent, assign all or a portion of its interest in any Loans to
any financial institutions providing liquidity and/or credit support to or for
the account of such SPC to support the funding or maintenance of such Loans
(each, a "Credit Support Provider"), and (2) disclose, on a confidential basis
only, to any rating agency or any of its Credit Support Providers, non-public
information relating to the Loans supported by such Person, provided, that the
applicable rating agency or Credit Support Provider agrees in writing for the
benefit of the Loan Parties to keep such information confidential.
13.8 Applicable Law. This Agreement and the Collateral Documents, and
the duties, rights, powers and remedies of the parties hereto and thereto, shall
be construed in accordance with, and governed by, the laws of the State of New
York, without regard to the conflicts of laws provisions thereof, except to the
extent that any Collateral Document provides that the local law of another
jurisdiction governs the grant, perfection or enforcement of the Liens granted
pursuant to such Collateral Document.
13.9 Binding Effect and Entire Agreement. This Agreement shall inure to
the benefit of, and shall be binding upon, the respective successors and
permitted assigns of the parties hereto. This Agreement, the Schedules and
Exhibits hereto, which are hereby incorporated in this Agreement, and the
Collateral Documents constitute the entire agreement among the parties on the
subject matter hereof. There are no unwritten or oral agreements among the
Parent, the Borrower, the Agents and the Lenders, and this written Agreement,
the Notes, the other Collateral Documents and the instruments and documents
executed in connection herewith represent the final agreement among the parties
and may not be contradicted by evidence of prior, contemporaneous or subsequent
oral agreements of the parties.
13.10 Counterparts. This Agreement may be executed in any number of
counterparts or duplicate originals, each of which shall be deemed to be an
original, but all of which together shall constitute one and the same
instrument.
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<PAGE> 101
13.11 Survival of Agreements. All covenants, agreements, representations
and warranties made herein or in any Collateral Document shall survive any
investigation and the Closing and shall continue in full force and effect so
long as any of the Obligations remain to be performed or paid or the Lenders
have any obligation to advance sums or issue Letters of Credit hereunder or any
Letter of Credit remains outstanding.
13.12 Modification. Any term of this Agreement or of the Notes may be
amended and the observance of any term of this Agreement or of the Notes may be
waived (either generally or in a particular instance and either retroactively or
prospectively) only with the written consent of the Borrower and the Required
Lenders; provided, however, that no such amendment or waiver or other action
shall, without the prior written consent of all of the Lenders or the holders of
all of the Notes at the time outstanding, (a) extend the maturity or reduce the
principal amount of, or reduce the rate or extend the time of payment of
interest on, or reduce the amount or extend the time of payment of any principal
installment of, any Note, (b) reduce the amount or extend the time of payment of
the commitment fees or the fees shared by the Lenders and payable in respect of
Letters of Credit, (c) change the Revolving Commitment or Term Commitment or the
Ratable Share of any Lender (other than any change in Revolving Commitment or
Term Commitment or Ratable Share resulting from (i) the sale of a participation
in or assignment of any Lender's interest in such Commitment and Loans in
accordance with subsection 13.7 or (ii) an increase in such Commitment pursuant
to Section 2.16), (d) change the percentage referred to in the definition of
"Required Lenders" contained in Section 1.1, (e) amend this Section 13.12, (f)
amend or waive compliance with Section 2.1(b), 2.2(b) or 2.7(b), (g) release any
collateral for, or any guarantor of, the Loans except in connection with a sale
or other disposition permitted pursuant to Section 8.10, (h) increase the
Commitments pursuant to Section 2.16 with any Loans that have a final maturity
date prior to the Termination Date, or (i) waive any of the material conditions
precedent to the obligations of the Lenders set forth in Section 6 in connection
with the initial Loan; and provided, further, that notwithstanding the foregoing
provisions of this Section 13.12, this Agreement and the Notes may be amended or
modified in the manner contemplated by Section 13.7 for the purpose of
permitting any Lender to assign its interest, rights and obligations hereunder
to another Person if the appropriate assignment agreement or counterparts
thereof are executed by the Borrower (to the extent required), the
Administrative Agent and the appropriate Lender assignor and assignee. In
addition, no amendment, waiver or consent to the provisions of Section 12 or any
other provision affecting the rights or duties of either Agent shall be made
without the written consent of such Agent, and no amendment, modification or
waiver to the provisions of Section 2.3 or any other provision affecting the
rights or duties of the Issuing Bank shall be made without the written consent
of the Issuing Bank. Any amendment or waiver effected in accordance with this
Section 13.12 shall be binding upon each holder of any Note at the time
outstanding, each future holder of any Note and the Borrower.
13.13 Separability. If any one or more of the provisions contained in
this Agreement or any Collateral Document should be invalid, illegal or
unenforceable in any respect, the validity, legality and enforceability of all
remaining provisions shall not in any way be affected or impaired. Any provision
of this Agreement which is prohibited or unenforceable in any jurisdiction
shall, as to such jurisdiction, be ineffective to the extent of such prohibition
or unenforceability without invalidating the remaining provisions hereof or
affecting the validity or enforceability of such provision in any other
jurisdiction.
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<PAGE> 102
13.14 Section Headings. The section headings contained herein are for
reference purposes only and shall not in any way affect the meaning or
interpretation of this Agreement.
13.15 Enforcement. Each of the Parent and the Borrower:
(a) hereby irrevocably submits to the jurisdiction of the state courts
of the State of New York and to the jurisdiction of the United States District
Court for the Southern District of New York, for the purpose of any suit, action
or other proceeding arising out of or based upon this Agreement or any
Collateral Document or the subject matter hereof or thereof brought by the
Administrative Agent or the Lenders or their successors or assigns and
(b) hereby waives, and agrees not to assert, by way of motion, as a
defense, or otherwise, in any such suit, action or proceeding, any claim that it
is not subject personally to the jurisdiction of the above-named courts, that
its property is exempt or immune from attachment or execution, that the suit,
action or proceeding is brought in an inconvenient forum, that the venue of the
suit, action or proceeding is improper or that this Agreement or any Collateral
Document or the subject matter hereof or thereof may not be enforced in or by
such court, and
(c) hereby waives and agrees not to seek any review by any court of any
other jurisdiction which may be called upon to grant an enforcement of the
judgment of any such New York state or federal court. Each of the Parent and the
Borrower hereby consents to service of process by registered mail at the address
to which notices are to be given. Each of the Parent and the Borrower agrees
that its submission to jurisdiction and its consent to service of process by
mail is made for the express benefit of the Administrative Agent and the
Lenders. Final judgment against either the Parent or the Borrower in any such
action, suit or proceeding may be enforced in other jurisdictions by suit,
action or proceeding on the judgment, or in any other manner provided by or
pursuant to the laws of such other jurisdiction; provided, however, that the
Administrative Agent or the Lenders may at their option bring suit, or institute
other judicial proceedings, against the Parent or the Borrower or any of its
assets in any state or federal court of the United States or of any country or
place where the Parent, the Borrower or such assets, may be found.
13.16 Termination. This Agreement shall terminate when all amounts due
hereunder, under the Notes and under each Collateral Document shall have been
indefeasibly paid in full in cash and all other Obligations hereunder or
thereunder shall have been fully performed, so long as no Letters of Credit are
then outstanding and the Lenders have no further obligation to advance sums or
issue Letters of Credit hereunder. Upon such termination, at the request of the
Borrower, the Administrative Agent and the Lenders shall release all Liens
granted herein or in any Collateral Document at the Borrower's expense and
return all collateral held pursuant hereto or to any Collateral Document without
recourse or representation. Notwithstanding anything to the contrary contained
herein, each expense reimbursement and indemnification provision in this
Agreement or in any Collateral Document shall survive the repayment in full of
the Loans and the termination of this Agreement.
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<PAGE> 103
13.17 FCC Compliance.
(a) Notwithstanding anything herein or in any of the Collateral
Documents to the contrary, but without limiting or waiving any Loan Party's
obligations hereunder or under any of the Collateral Documents, the
Administrative Agent's and the Lenders' remedies hereunder and under the
Collateral Documents are subject to compliance with the Communications Act of
1934, as amended, and to all applicable rules, regulations and policies of the
FCC, and neither the Administrative Agent nor the Lenders will take any action
pursuant to this Agreement or any of the Collateral Documents that will
constitute or result in any assignment of a License issued by the FCC or any
change of control of the Borrower or any of its Subsidiaries which owns any FCC
License if such assignment of License or change of control would require under
then existing law (including the written rules and regulations promulgated by
the FCC), the prior approval of the FCC, without first obtaining such approval
of the FCC. This Agreement, the Collateral Documents and the transactions
contemplated hereby and thereby do not and will not constitute, create, or have
the effect of constituting or creating, directly or indirectly, actual or
practical ownership of any Loan Party by the Administrative Agent or the Lenders
or control, affirmative or negative, direct or indirect, of any Loan Party by
the Administrative Agent or the Lenders, over the management or any other aspect
of the operation of any Loan Party, which ownership and control remain
exclusively and at all times in the members, stockholders and directors of the
Loan Parties until such time as the Administrative Agent and the Lenders have
complied with such law, rules, regulations and policies.
(b) Furthermore, the parties acknowledge their intent that, upon the
occurrence of an Event of Default, the Lenders shall receive, to the fullest
extent permitted by applicable law and governmental policy (including, without
limitation, the rules, regulations and policies of the FCC), all rights
necessary or desirable to obtain, use or sell the Licenses and the collateral
securing the Loans, and to exercise all remedies available to them under this
Agreement, the Collateral Documents, the Uniform Commercial Code or other
applicable law. Therefore, the parties agree that, in the event of changes in
law or governmental policy occurring after the date hereof that affect in any
manner the Administrative Agent's or the Lenders' rights of access to, or use or
sale of, the Licenses or such collateral, or the procedures necessary to enable
the Administrative Agent or the Lenders to obtain such rights of access, use or
sale, the Administrative Agent, the Lenders, the Parent and the Borrower shall
amend this Agreement and the Collateral Documents in such manner as the
Administrative Agent shall reasonably request, in order to provide the
Administrative Agent and the Lenders such rights to the greatest extent possible
consistent with then applicable law and governmental policy.
13.18 Jury Trial Waiver. THE PARENT, BORROWER, THE AGENTS AND THE
LENDERS EACH WAIVE ANY RIGHT TO HAVE A JURY PARTICIPATE IN RESOLVING ANY
DISPUTE, WHETHER SOUNDING IN CONTRACT, TORT OR OTHERWISE, AMONG THE LENDERS, THE
PARENT AND THE BORROWER ARISING OUT OF, IN CONNECTION WITH, RELATED TO, OR
INCIDENTAL TO THE RELATIONSHIP ESTABLISHED AMONG THEM IN CONNECTION WITH THIS
AGREEMENT OR THE NOTES OR ANY OTHER INSTRUMENT, DOCUMENT OR AGREEMENT EXECUTED
OR DELIVERED IN CONNECTION HEREWITH OR THE TRANSACTIONS RELATED THERETO. THE
SCOPE OF THIS WAIVER IS INTENDED TO BE ALL-ENCOMPASSING OF ANY AND ALL DISPUTES
THAT MAY BE FILED IN
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<PAGE> 104
ANY COURT AND THAT RELATE TO THE SUBJECT MATTER OF THIS TRANSACTION, INCLUDING
WITHOUT LIMITATION, CONTRACT CLAIMS, TORT CLAIMS, BREACH OF DUTY CLAIMS, AND ALL
OTHER COMMON LAW AND STATUTORY CLAIMS. THE PARENT, THE BORROWER, THE AGENTS AND
THE LENDERS ACKNOWLEDGE THAT THIS WAIVER IS A MATERIAL INDUCEMENT TO ENTER INTO
A BUSINESS RELATIONSHIP, THAT EACH HAS ALREADY RELIED ON THE WAIVER IN ENTERING
INTO THIS AGREEMENT AND THAT EACH WILL CONTINUE TO RELY ON THE WAIVER IN THEIR
RELATED FUTURE DEALINGS. THE PARENT, THE BORROWER, THE AGENTS AND THE LENDERS
FURTHER WARRANT AND REPRESENT THAT EACH HAS REVIEWED THIS WAIVER WITH ITS LEGAL
COUNSEL, AND THAT EACH KNOWINGLY AND VOLUNTARILY WAIVES ITS JURY TRIAL RIGHTS
FOLLOWING CONSULTATION WITH LEGAL COUNSEL. THIS WAIVER IS IRREVOCABLE, MEANING
THAT IT MAY NOT BE MODIFIED EITHER ORALLY OR IN WRITING (UNLESS EXPRESSLY
MODIFIED IN WRITING BY ALL PARTIES HERETO), AND THE WAIVER SHALL APPLY TO ANY
SUBSEQUENT AMENDMENTS, THE COLLATERAL DOCUMENTS, OR TO ANY OTHER DOCUMENTS OR
AGREEMENTS RELATING TO THE LOANS. IN THE EVENT OF LITIGATION, THIS AGREEMENT MAY
BE FILED AS A WRITTEN CONSENT TO A TRIAL BY THE COURT.
13.19 Sale as a Going Concern. Notwithstanding anything to the contrary
in this Agreement, the Security Agreements, the Pledge Agreements or any other
Collateral Document, the Administrative Agent and the Lenders acknowledge that
the value of each Station as a going concern is, as of the date hereof,
significantly greater than the sum of the values of the individual collateral
used in the operation of that Station in which the Administrative Agent, for the
benefit of the Lenders, has been granted a lien or security interest. Therefore,
the Administrative Agent and the Lenders agree that upon any foreclosure of
their liens or security interests in the assets of such Station pursuant to the
Collateral Documents, they shall first attempt to sell such Station as a going
concern and that they shall not sell such collateral separately unless:
(a) any Loan Party (or any of their respective agents, representatives
or employees) has refused to cooperate fully in connection with the
Administrative Agent's or the Lenders' exercise of their remedies hereunder,
(b) the Administrative Agent has attempted to sell such Station as a
going concern and, after reasonable efforts, has not been able to do so, or
(c) the Administrative Agent determines in its sole discretion that
selling such Station as a going concern is not feasible for any reason or is not
likely to permit the Administrative Agent or the Lenders to raise sufficient
funds to pay in full the Obligations secured by the Collateral Documents.
Notwithstanding anything herein to the contrary, the Administrative Agent and
the Lenders shall have the right, in their sole discretion, but subject to the
terms and conditions of the Collateral Documents, (i) to sell any Station or
group of Stations individually without being required to sell all of the
Stations in one transaction, and (ii) to exercise their remedies under the
Pledge Agreements prior to any exercise of remedies under the other Collateral
Documents provided that anything to the contrary herein notwithstanding the
exercise of such remedies shall be conducted in a commercially reasonable
manner.
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<PAGE> 105
13.20 Marshaling; Payments Set Aside. Subject to Section 13.19, the
Administrative Agent and the Lenders shall not be under any obligation to
marshal any assets in favor of any Loan Party or any other Person or against or
in payment of any or all of the Obligations. To the extent that any Loan Party
makes a payment or payments to the Administrative Agent or the Lenders or the
Administrative Agent or any Lender enforces its security interest or exercises
its rights of setoff, and such payment or payments or the proceeds of such
enforcement or setoff or any part thereof are subsequently invalidated, declared
to be fraudulent or preferential, set aside or required to be repaid to a
trustee, receiver or any other party under any bankruptcy or insolvency law,
state or federal law, common law or equitable cause, then to the extent of such
recovery, the Obligations or part thereof originally intended to be satisfied,
and all Liens, rights and remedies therefor, shall be revived and continued in
full force and effect as if such payment had not been made or such enforcement
had not occurred.
13.21 Confidentiality. All agreements, instruments, documents and other
information received pursuant to this Agreement or any other Collateral Document
by the Agents or the Lenders shall be held in confidence by the Agents and the
Lenders, except for disclosures made (a) in connection with assignments of or
participations in the Loans made pursuant to Section 13.7 (provided that such
assignees or participants shall agree to keep such information confidential as
provided herein), (b) as otherwise required to be disclosed by banking
regulations, process of law or other applicable law, or to government
regulators, (c) of information received by an Agent or a Lender without
restriction as to its disclosure or use from a Person who, to such Agent's or
Lender's knowledge or reasonable belief, was not prohibited from disclosing it
by any duty of confidentiality, (d) in connection with litigation arising from
this Agreement or any other Collateral Document to which an Agent or Lender is a
party, (e) of information which is or has become public (other than through
unauthorized disclosure by such Agent or Lender), (f) to the attorneys,
accountants and other expert consultants (including rating agencies) for any
Agent or Lender (who shall be requested to similarly hold such information in
confidence) or (g) as otherwise permitted hereunder.
[SIGNATURE PAGES FOLLOW]
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<PAGE> 106
TO WITNESS THE ABOVE, the Parent, the Borrower, the Lenders and the
Agents have caused this Credit Agreement to be executed by their respective
representatives thereunto duly authorized as of the date first above written.
BORROWER:
ENTERCOM RADIO, LLC
By:___________________________
Name:_________________________
Title:_________________________
PARENT:
ENTERCOM COMMUNICATIONS CORP.
By:___________________________
Name:_________________________
Title:________________________
LENDERS:
ALLFIRST BANK
By: __________________________
Name:_________________________
Title:________________________
Address: 25 South Charles St
18th Floor; Mail Code 101-511
Baltimore MD 21201
Attention: Tim A. Knabe
Telecopy: (410) 244-4920
BANK OF AMERICA, N.A.
By:___________________________
Name:_________________________
Title:________________________
Address: 901 Main Street
Dallas, Texas 75202
Attention: Todd Shipley
Telecopy: (214) 209-9390
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<PAGE> 107
BANK OF MONTREAL
By: __________________________
Name:_________________________
Title:________________________
Address: 430 Park Avenue
New York NY 10022
Attention: Ola B. Anderssen
Telecopy: FAX: (212) 605-1648
BANK OF NOVA SCOTIA
By: __________________________
Name:_________________________
Title:________________________
Address: One Liberty Plaza
New York NY 10006
Attention: Brenda S. Insull
Telecopy: (212)225-5090
BANQUE NATIONALE DE PARIS
By: __________________________
Name:_________________________
Title:________________________
Address: 499 Park Avenue
New York, NY 10022-1240
Attention: Nuala Marley
Telecopy: (212) 415-9695
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<PAGE> 108
THE CHASE MANHATTAN BANK
By: __________________________
Name:_________________________
Title:________________________
Address: 270 Park Avenue
New York, NY 10017
Attention: Joan Fitzgibbon
Telecopy: (212) 270-4164
COMPAGNIE FINANCIERE DE CIC
ET DE L'UNION EUROPEENNE
By:___________________________
Name:_________________________
Title:________________________
By:___________________________
Name:_________________________
Title:________________________
Address: 520 Madison Avenue
New York, NY 10022
Attention: Marcus Edward
Telecopy: (212) 715-4535
CREDIT SUISSE FIRST BOSTON
By: __________________________
Name:_________________________
Title:________________________
By: __________________________
Name:_________________________
Title:________________________
Address: 11 Madison Avenue
New York NY 10010-3629
Attention: Guy Baron
Telecopy: (212) 325-8309
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<PAGE> 109
THE DAI-ICHI KANGYO BANK, LTD.
By: __________________________
Name:_________________________
Title:________________________
Address: One World Trade Center, 49th Floor
New York, NY 10048
Attention: Nancy Stengel
Telecopy: (212) 466-3348
BANKERS TRUST COMPANY
By: __________________________
Name:_________________________
Title:________________________
Address: 130 Liberty Street
MS 2276
New York, NY 10006
Attention: Susan L. Le Fevre
Telecopy: (212) 250-7218
ERSTE BANK
By: __________________________
Name:_________________________
Title:________________________
Address: 280 Park Avenue
32 West Building
New York, NY 10017
Attention: Anca Trifan
Telecopy: (212) 984-5627
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<PAGE> 110
FIRST HAWAIIAN BANK
By: __________________________
Name:_________________________
Title:________________________
Address: 180 Montgomery St
25th Floor
San Francisco, CA 94104
Attention: Travis Ruetenik
Telecopy: (415) 362-4855
FLEET BANK, N.A.
By: __________________________
Name:_________________________
Title:________________________
Address: 1185 Avenue of the Americas
16th Floor - Media & Communications
New York, NY 10036
Attention: Garret Komjathy
Telecopy: (212) 819-6202
THE INDUSTRIAL BANK OF JAPAN, LIMITED
By: __________________________
Name:_________________________
Title:________________________
Address: 1251 Avenue of the Americas
New York, NY 10020-1104
Attention: R. William Kennedy, Jr.
Telecopy: (212) 282-4487
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<PAGE> 111
ING (U.S.) CAPITAL LLC
By: __________________________
Name:_________________________
Title:________________________
Address: 333 South Grand Avenue
Los Angeles, CA 90071
Attention: Bill James
Telecopy: (213) 346-3993
KEY CORPORATE CAPITAL INC.
By:___________________________
Name:_________________________
Title: _______________________
Address: 127 Public Square
Cleveland, Ohio 44114-1306
Attention: Media and Telecommunications Finance Division
Telecopy: (216) 689-4666
THE MITSUBISHI TRUST AND BANKING CORPORATION
By: __________________________
Name:_________________________
Title:________________________
Address: 520 Madison Avenue
26th Floor
New York, NY 10022
Attention: Eric Mann
Telecopy: (212) 644-6825
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<PAGE> 112
PNC BANK, NATIONAL ASSOCIATION
By: __________________________
Name:_________________________
Title:________________________
Address: 1600 Market Street
21st Floor
Philadelphia, PA 19103
Attention: Steffen W. Crowther
Telecopy: (215) 585-6680
COOPERATIEVE CENTRALE RAIFFEISEN-BOERENLEENBANK B.A.,
"Rabobank International", New York Branch
By: __________________________
Name:_________________________
Title:________________________
By: __________________________
Name:_________________________
Title:________________________
Address: 300 South Wacker Drive
Suite 3500
Chicago IL, 60606
Attention: Kimberly Miller
Telecopy: (312) 786-0052
SUMMIT BANK
By: __________________________
Name:_________________________
Title:________________________
Address: 301 Carnegie Center
Princeton, NJ 08543
Attention: Michael Thomson
Telecopy: (609) 734-9125
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<PAGE> 113
SUNTRUST BANK, CENTRAL FLORIDA, N.A.
By: __________________________
Name:_________________________
Title:________________________
Address: 200 South Orange Avenue
Mail Code FL-Orlando-1109
Orlando, FL 32801
Attention: David D. Miller
Telecopy: (407) 237-5126
UNION BANK OF CALIFORNIA, N.A.
By: __________________________
Name:_________________________
Title:________________________
Address: 445 S Figuerroa St
16th Floor
Los Angeles, CA 90071
Attention: Lena Bryant
Telecopy: (213) 236-5747
U.S. BANK NATIONAL ASSOCIATION
By: __________________________
Name:_________________________
Title:________________________
Address: 1420 Fifth Avenue
10th Floor
Seattle, WA 98101
Attention: Matthew S. Thoreson
Telecopy: (206) 344-2331
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<PAGE> 114
WEBSTER BANK
By: __________________________
Name:_________________________
Title:________________________
Address: 185 Asylum Street
3rd Floor
Mail Stop HFD-610
Hartford, CT 06702
Attention: Richard F. DiLorenzo
Telecopy: (860) 692-1658
ISSUING BANK:
KEY CORPORATE CAPITAL INC.
By:___________________________
Name:_________________________
Title:________________________
ADMINISTRATIVE AGENT:
KEY CORPORATE CAPITAL INC.
By:___________________________
Name:_________________________
Title:________________________
SYNDICATION AGENT:
BANK OF AMERICA, N.A.
By:___________________________
Name: ________________________
Title: _______________________
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<PAGE> 115
LIST OF SCHEDULES AND EXHIBITS
------------------------------
<TABLE>
<S> <C>
Schedule 1.1 Ratable Shares of the Lenders
Schedule 1.2 Adjustments to Operating Cash Flow
Schedule 5.1 List of Subsidiaries
Schedule 5.5 Capitalization
Schedule 5.7 Proceedings, Litigation
Schedule 5.8 Tax Matters
Schedule 5.10 Liens and Indebtedness
Schedule 5.11 Non-Compliance with Law
Schedule 5.14 Schedule of Contracts, Commitments, Material
Agreements, licenses and Consents
Schedule 5.15 ERISA Liabilities and Plans
Schedule 5.21 Real Estate
Schedule 5.24 Labor Matters
Schedule 5.25 Environmental Matters
Schedule 8.10 Existing Interests in Partnerships and Joint Ventures
Exhibit A Form of Revolving Note
Exhibit B Form of Term Note
Exhibit C Form of Borrowing Request
Exhibit D Form of Compliance Certificate
Exhibit E Form of Assignment and Amendment Agreement
</TABLE>
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<PAGE> 116
SCHEDULE 1.1
------------
Ratable Shares
--------------
<TABLE>
<CAPTION>
Ratable Share of
Revolving
Commitment, Ratable Share of
Lender Revolving Loans and Term Commitment Ratable Share
Letters of Credit: and Term Loans: of All Loans:
------------------ --------------- -------------
<S> <C> <C> <C>
Bank of America, N.A. 6.9230769% 6.9230769% 6.9230769%
Key Corporate Capital Inc. 6.9230769% 6.9230769% 6.9230769%
Bank of Montreal 5.0000000% 5.0000000% 5.0000000%
The Chase Manhattan Bank 5.0000000% 5.0000000% 5.0000000%
Compagnie Financiere De CIC 5.0000000% 5.0000000% 5.0000000%
Et De L'Union Europeenne
Credit Suisse First Boston 5.0000000% 5.0000000% 5.0000000%
Bankers Trust Company 5.0000000% 5.0000000% 5.0000000%
Fleet Bank, N.A. 5.0000000% 5.0000000% 5.0000000%
PNC Bank, National Association 5.0000000% 5.0000000% 5.0000000%
Suntrust Bank, Central Florida Inc. 5.0000000% 5.0000000% 5.0000000%
Union Bank of California, N.A. 5.0000000% 5.0000000% 5.0000000%
U.S. Bank 5.0000000% 5.0000000% 5.0000000%
Bank of Nova Scotia 3.8461538% 3.8461538% 3.8461538%
Banque Nationale De Paris 3.8461538% 3.8461538% 3.8461538%
Industrial Bank of Japan, Limited 3.8461538% 3.8461538% 3.8461538%
Ing (U.S.) Capital LLC 3.8461538% 3.8461538% 3.8461538%
The Mitsubishi Trust and Banking 3.8461538% 3.8461538% 3.8461538%
Corporation
Rabobank Nederland 3.8461538% 3.8461538% 3.8461538%
Allfirst Bank 2.3076923% 2.3076923% 2.3076923%
The Dai-Ichi Kangyo Bank, Ltd. 2.3076923% 2.3076923% 2.3076923%
Erste Bank 2.3076923% 2.3076923% 2.3076923%
First Hawaiian Bank 2.3076923% 2.3076923% 2.3076923%
Summit Bank 2.3076923% 2.3076923% 2.3076923%
Webster Bank 1.5384615% 1.5384615% 1.5384615%
Total: 100% 100% 100%
==== ==== ====
</TABLE>
- 108 -
<PAGE> 1
Exhibit 23.03
ARTHUR ANDERSEN LLP
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the incorporation by
reference of our reports (and to all references to our Firm) included in or
made a part of this Form 8-K.
Arthur Andersen LLP
Baltimore, Maryland,
December 21, 1999
<PAGE> 1
Exhibit 99.1
FOR IMMEDIATE RELEASE
ENTERCOM COMPLETES ACQUISITION OF 41 RADIO STATIONS FROM SINCLAIR
BROADCAST GROUP
(Bala Cynwyd, PA. December 16, 1999) Entercom Communications Corp.
(NYSE: ETM) today announced the completion of its asset purchase of 41 radio
stations from Sinclair Broadcast Group, Inc. As part of this acquisition
Entercom also entered into a time brokerage agreement for one station in
Wilkes-Barre, PA, WKRF-FM, pending FCC approval of the acquisition of WKRF-FM.
Entercom has a separate agreement to purchase four stations in Kansas City which
it expects to complete in the first half of 2000. Entercom has announced its
intent to divest three stations in its Kansas City cluster to meet regulatory
requirements.
Upon completion of other recently announced acquisitions, Entercom will
be the fourth largest radio broadcasting company in the United States. Entercom
will own or operate 90 stations in 17 markets, including Boston, Seattle,
Portland, Sacramento, Kansas City, Milwaukee, New Orleans, Memphis, Buffalo,
Norfolk, Greensboro, Rochester, Greenville, Scranton/Wilkes-Barre, Wichita,
Gainesville/Ocala and Longview/Kelso, WA.
CONTACT: Mr. Steve Fisher
Senior Vice President and Chief Financial Officer
Entercom
610-660-5647
