As filed with the Securities and Exchange Commission on July 15, 1997
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 10-Q
(Mark One)
Quarterly report pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934
For the quarterly period ended May 31, 1997 or
Transition report pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934
For the transition period from ________ to ________
Commission file number: 0-23264
EMMIS BROADCASTING CORPORATION
(Exact name of registrant as specified in its charter)
INDIANA 35-1542018
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
950 NORTH MERIDIAN STREET
SUITE 1200
INDIANAPOLIS, INDIANA 46204
(Address of principal executive offices) (Zip Code)
(317) 266-0100
(Registrant's Telephone Number, Including Area Code)
NOT APPLICABLE
(Former Name, Former Address and Former Fiscal Year, if Changed Since
Last Report)
Indicate by check mark whether the registrant: (1) has filed all
reports required to be filed by Section 13 or 15(d) of the Securities
Exchange Act of 1934 during the preceding 12 months (or for such shorter
period that the registrant was required to file such reports), and (2)
has been subject to such filing requirements for the past 90 days.
Yes X No
The number of shares outstanding of each of the Registrant's classes
of common stock, as of July 9, 1997, was:
8,272,077 Shares of Class A Common Stock, $.01 Par Value
2,574,470 Shares of Class B Common Stock, $.01 Par Value
<PAGE>
<PAGE>
INDEX
Page
PART I - FINANCIAL INFORMATION
Item 1. Financial Statements. . . . . . . . . . . . . . . . .4
Condensed Consolidated Balance Sheets
at May 31, 1997 and February 28, 1997. . . . . . . . . .4
Condensed Consolidated Statements of
Operations for the three months
ended May 31, 1997 and 1996. . . . . . . . . . . . . . .6
Condensed Consolidated Statements of Cash
Flows for the three months ended
May 31, 1997 and 1996 . . . . . . . . . . . . . . . . .8
Notes to Condensed Consolidated
Financial Statements. . . . . . . . . . . . . . . . . .10
Item 2. Management's Discussion and
Analysis of Financial Condition
and Results of Operations . . . . . . . . . . . . . . .16
PART II - OTHER INFORMATION
Item 6. Exhibits and Reports on Form 8-K . . . . . . . . . .19
<PAGE>
<PAGE>
REPORT OF INDEPENDENT PUBLIC ACCOUNTANTS
To the Board of Directors and Shareholders of
Emmis Broadasting Corporation and Subsidiaries:
We have reviewed the accompanying condensed consolidated balance sheet of
Emmis Broadcasting Corporation (an Indiana corporation) and Subsidiaries
as of May 31, 1997, and the related condensed consolidated statements of
operations and cash flows for the three-month periods ended May 31, 1997
and 1996. These financial statements are the responsibility of the Company's
management .
We conducted our review in accordance with standards established by the
American Institute of Certified Public Accountants. A review of interim
financial information consists principally of applying analytical procedures
to financial data and making inquiries of persons responsible for financial
and accounting matters. It is substantially less in scope than an audit
conducted in accordance with generally accepted auditing standards, the
objective of which is the expression of an opinion regarding the financial
statements taken as a whole. Accordingly, we do not express such an opinion.
Based on our review, we are not aware of any meterial modifications that
should be made to the financial statements referred to above for them to be
in conformity with generally accepted accounting principles.
We have previously audited, in accordance with generally accepted auditing
standards, the consolidated balance sheet of Emmis Broadcasting Corporation
as of February 28, 1997, and related consolidated statements of operations,
changes in shareholders' equity and cash flows for the year ended (not
presented separately herein), and in our report dated April 2, 1997, we
expressed an unqualified opinion on those financial statements. In our
opinion, the information set forth in the accompanying condensed consolidated
balance sheet as of February 28, 1997 is fairly stated, in all material
respects, in relation to the balance sheet from which it has been derived.
ARTHUR ANDERSEN LLP
Indianapolis, Indiana,
July 14, 1997.
<PAGE>
<PAGE>
ITEM 1. FINANCIAL STATEMENTS
EMMIS BROADCASTING CORPORATION AND SUBSIDIARIES
-----------------------------------------------
CONDENSED CONSOLIDATED BALANCE SHEETS
-------------------------------------
(Dollars in thousands, except per share data)
<TABLE>
<CAPTION>
February 28, May 31,
1997 1997
------- -------
(Note 1) (unaudited)
ASSETS
<S> <C> <C>
CURRENT ASSETS:
Cash and cash equivalents $ 1,191 $ 1,354
Accounts receivable, net 20,831 26,240
Current income tax receivable 2,482 825
Prepaid expenses and other 4,243 4,404
-------- --------
Total current assets 28,747 32,823
Property and equipment, net 12,991 18,018
Intangible assets, net 131,743 170,617
Other assets, net 16,235 9,690
-------- --------
Total assets $ 189,716 $ 231,148
======== ========
LIABILITIES AND SHAREHOLDERS' EQUITY
------------------------------------
CURRENT LIABILITIES:
Current maturities of long-term debt $ 2,868 $ 62
Book cash overdraft 1,942 -
Accounts payable 3,687 4,384
Accrued salaries and commissions 1,561 2,529
Accrued interest 174 358
Deferred revenue 1,593 2,544
Other 1,459 1,382
------- -------
Total current liabilities 13,284 11,259
LONG-TERM DEBT, NET OF CURRENT MATURITIES 112,304 151,089
OTHER NONCURRENT LIABILITIES 436 515
<PAGE>
<PAGE>
DEFERRED INCOME TAXES 29,270 29,055
------- ------
Total liabilities 155,294 191,918
------- ------
SHAREHOLDERS' EQUITY:
Class A common stock, $.01 par value;
authorized 34,000,000 shares; issued
and outstanding 8,410,956 shares at
February 28, 1997 and 8,447,646 shares
at May 31, 1997 84 84
Class B common stock, $.01 par value;
authorized 6,000,000 shares; issued
and outstanding 2,574,470 shares at
February 28, 1997 and May 31, 1997 26 26
Additional paid-in capital 70,949 72,390
Accumulated deficit (36,637) (33,270)
------- -------
Total shareholders' equity 34,422 39,230
------- -------
Total liabilities and shareholders'
equity $ 189,716 $ 231,148
======= =======
</TABLE>
The accompanying notes to condensed consolidated financial
statements are an integral part of these balance sheets.
<PAGE>
<PAGE>
EMMIS BROADCASTING CORPORATION AND SUBSIDIARIES
-----------------------------------------------
CONDENSED CONSOLIDATED STATEMENTS OF OPERATIONS
-----------------------------------------------
(Dollars in thousands, except per share data)
<TABLE>
<CAPTION>
Three Months Ended May 31,
(Unaudited)
--------------------------
1996 1997
------ ------
<S> <C> <C>
GROSS BROADCASTING REVENUES $ 29,948 $ 33,820
LESS: AGENCY COMMISSIONS 4,598 5,258
------- -------
NET BROADCASTING REVENUES 25,350 28,562
Broadcasting operating expenses 13,131 16,225
Publication and other revenue, net
of operating expenses 271 245
International business development expenses 260 338
Corporate expenses 1,468 1,644
Depreciation and amortization 1,345 1,682
Noncash compensation 1,131 827
------- ------
OPERATING INCOME 8,286 8,091
------- ------
OTHER INCOME (EXPENSE):
Interest expense (2,502) (2,649)
Other income (expense), net 21 172
------- ------
Total Other Income (Expense) (2,481) (2,477)
------- ------
INCOME BEFORE INCOME TAXES 5,805 5,614
<PAGE>
<PAGE>
PROVISION FOR INCOME TAXES 2,300 2,246
-------- -------
NET INCOME $ 3,505 $ 3,368
======== =======
Net income per common and common
equivalent share $ .30 $ .29
======== =======
Net income per fully diluted common share $ .30 $ .29
======== =======
Weighted average common shares outstanding:
Before full dilution 11,497,105 11,488,463
Assuming full dilution 11,516,894 11,504,312
</TABLE>
The accompanying notes to condensed consolidated financial
statements are an integral part of these statements.
<PAGE>
<PAGE>
EMMIS BROADCASTING CORPORATION AND SUBSIDIARIES
-----------------------------------------------
CONDENSED CONSOLIDATED STATEMENTS OF CASH FLOWS
-----------------------------------------------
(Dollars in thousands)
<TABLE>
<CAPTION>
Three Months Ended
May 31,
(Unaudited)
-------------------
1996 1997
---- ----
<S> <C> <C>
OPERATING ACTIVITIES:
Net income $ 3,505 $ 3,368
Adjustments to reconcile net income to net
cash provided by operating activities-
Depreciation and amortization of
property and equipment 337 582
Amortization of debt issuance costs
and cost of interest rate cap agreements 360 191
Amortization of intangible assets 1,008 1,100
Benefit from deferred income taxes - (215)
Compensation related to stock options
granted 930 661
Contribution to profit sharing plan paid
with common stock 201 166
(Increase) decrease in certain current
assets -
Accounts receivable (4,130) (5,409)
Prepaid expenses and other 526 1,496
Increase (decrease) in certain current
liabilities -
Accounts payable 457 (1,245)
Accrued salaries and commissions (1,211) 968
Accrued interest (35) 184
Deferred revenue 177 (48)
Other 367 2
Increase in other assets, net (58) (143)
----- -----
Net cash provided by operating
activities 2,434 1,658
----- -----
INVESTING ACTIVITIES:
Purchases of property and equipment (885) (941)
Aquisition of WALC-FM, WKBQ-AM, and WKKX-FM - (36,964)
----- -----
Net cash used by investment
activities (885) (37,905)
----- -----
<PAGE>
<PAGE>
FINANCING ACTIVITIES:
Payments on long-term debt (2,022) (2,022)
Proceeds from Long-term debt - 38,000
Purchase of interest rate cap agreements and
other debt related costs - (181)
Proceeds from exercise of stock options and
related income taxe benefits 489 613
------ ------
Net cash provided (used) by
financing activities (1,533) 36,410
------ ------
INCREASE IN CASH AND CASH EQUIVALENTS 16 163
CASH AND CASH EQUIVALENTS:
Beginning of period 1,218 1,191
------ ------
End of period $1,234 $1,354
====== ======
SUPPLEMENTAL DISCLOSURES:
Cash paid for-
Interest $ 2,177 $ 2,274
Income taxes 416 589
ACQUISITION OF WALC-FM, WKBQ-AM AND WKKX-FM:
Fair value of assets acquired $ 44,642
Cash paid 43,642
------
Liabilities assumed $1,000
======
</TABLE>
The accompanying notes to condensed consolidated financial
statements are an integral part of these statements.
<PAGE>
<PAGE>
EMMIS BROADCASTING CORPORATION AND SUBSIDIARIES
-----------------------------------------------
NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS
-----------------------------------------------------
(Unaudited)
MAY 31, 1997
-------------
NOTE 1. GENERAL
--------
The condensed consolidated interim financial statements included
herein have been prepared by Emmis Broadcasting Corporation and
Subsidiaries (Emmis or the Company) without audit, pursuant to the rules
and regulations of the Securities and Exchange Commission. Certain
information and footnote disclosures normally included in financial
statements prepared in accordance with generally accepted accounting
principles have been condensed or omitted pursuant to such rules and
regulations; however, Emmis believes that the disclosures are adequate
to make the information presented not misleading. The condensed
consolidated financial statements included herein should be read in
conjunction with the consolidated financial statements and the notes
thereto included in the Company's Annual Report on Form 10-K for the year
ended February 28, 1997.
In the opinion of the registrant, the accompanying interim financial
statements contain all material adjustments (consisting only of normal
recurring adjustments), necessary to present fairly the consolidated
financial position of Emmis at May 31, 1997 and the results of its
operations for the three months ended May 31, 1997 and 1996 and its cash
flows for the three months ended May 31, 1997 and 1996.
NOTE 2. PRO FORMA CONDENSED CONSOLIDATED STATEMENT
OF OPERATIONS
-------------
On March 31, 1997, Emmis completed its acquisition of substantially
all of the assets of radio stations WALC-FM, WKBQ-AM, and WKKX-FM in St.
Louis from Zimco, Inc. for approximately $43.1 million in cash, plus an
agreement to broadcast approximately $1 million in trade spots, for
Zimco, Inc. over a period of several years. Emmis financed the
acquisition through additional borrowings under its existing Credit
Facility. The acquisition was accounted for as a purchase.
Concurrent with the signing of the asset purchase agreement, Emmis
entered into a time brokerage agreement that permitted Emmis to operate
<PAGE>
<PAGE>
the acquired stations effective December 1, 1996 through the date of
closing. Operating results of these stations are reflected in the
consolidated statements of operations for the period March 1, 1997
through May 31, 1997.
A pro forma condensed consolidated statement of operations is
presented below for the three months ended May 31, 1996, assuming the
acquisition of WALC-FM, WKBQ-AM and WKKX-FM all had occurred on the first
date of the three month period ended May 31, 1996. Pro forma results for
the period ended May 31, 1997, include pro forma results for March and
actual results for April and May. Pro forma interest expense,
depreciation of property and equipment and amortization expense related
to the intangibles resulting from the allocation of the purchase price
for the above acquisition have been included in the pro forma statements
presented below.
PRO FORMA CONDENSED CONSOLIDATED
--------------------------------
STATEMENT OF OPERATIONS
----------------------
(Dollars in thousands, except per share data)
<TABLE>
<CAPTION>
Three Months Ended
May 31,
------------------
1996 1997
---- ----
Pro forma Pro forma
---------- ----------
<S> <C> <C>
Net broadcasting revenues $ 26,415 $ 28,562
Broadcasting operating expenses 14,143 16,225
Publication and other revenue,
net of operating expenses 271 245
International business development
expenses 260 338
Corporate expenses 1,468 1,644
Depreciation and amortization 1,746 1,815
Noncash compensation 1,131 827
------ ------
Operating income 7,938 7,958
Interest expense (3,226) (2,828)
Other income (expense), net 24 172
<PAGE>
<PAGE>
------ ------
Income before income taxes 4,736 5,302
Provision for income taxes 1,870 2,100
------ ------
Net income $ 2,866 $ 3,202
====== ======
Net income per common and common
equivalent share $ .25 $ .28
====== ======
Net income per fully diluted common
share $ .25 $ .28
====== ======
Weighted average shares outstanding
Before full dilution 11,497,105 11,488,463
Assuming full dilution 11,516,894 11,504,312
</TABLE>
The pro forma condensed consolidated statements of operations presented
above do not purport to be indicative of the results that actually
would have been obtained if the indicated transaction had been effective
at the beginning of the three month periods ended May 31, 1996 and 1997,
and is not intended to be projection of future results or trends.
NOTE 3. NET INCOME PER COMMON AND COMMON EQUIVALENT SHARE
-------------------------------------------------
Net income per share is computed by dividing net income by the weighted
average number of common shares outstanding during the period. Weighted
average common shares outstanding assumes the exercise of stock options when
the effect would be dilutive.
Fully diluted net income per share assumes the fully dilutive effect
of the exercise of stock options.
NOTE 4. ACCOUNTING PRONOUNCEMENTS
-------------------------
In February 1997, Statement of Financial Accounting Standards No. 128,
"Earnings Per Share", was issued. This new statement supersedes APB
Opinion No. 15, "Earnings Per Share", and supersedes or amends other
related accounting pronouncements. SFAS No. 128 must be adopted by the
Company in the fourth quarter of fiscal 1998. All prior period earnings
per share (EPS) data will be restated when the new statement is adopted.
SFAS No. 128 replaces the presentation of primary EPS with a presentation of
of basic EPS. It also requires dual presentation of basic and diluted EPS
on the face of the income statement for all entities with complex capital
structures such as the Company's. Basic EPS excludes dilution and is computed
<PAGE>
<PAGE>
by dividing net income available to common shareholders by the weighted-average
number of common shares outstanding for the period. Diluted EPS
reflects the potential dilution that could occur if securities or other
contracts to issue common stock were exercised or converted into common
stock or resulted in the issuance of common stock that then shared in the
earnings of the entity.
Pro forma EPS, assuming the Company had adopted SFAS No. 128 as of
March 1, 1996 is as follows:
<TABLE>
<CAPTION>
Three Month Period Ended May 31, 1996 1997
- ------------------------------- ---- ----
<S> <C> <C>
Weighted Average Common Shares 10,905,132 11,004,147
Weighted Average Common Shares
and Potential Common Shares 11,323,318 11,372,963
Net income per common share $ .32 $ .31
Net income per common share-
Assuming dilution $ .31 $ .30
</TABLE>
NOTE 5. INCOME TAXES
------------
Under Statement of Financial Accounting Standards No. 109, the Company
recognizes income taxes under the liability method of accounting for
income taxes. The liability method measures the expected tax impact of
future taxable income or deductions resulting from differences in the tax
and financial reporting bases of assets and liabilities reflected in the
consolidated balance sheet and the expected tax impact of carryforwards
for tax purposes.
Income tax expense is reported during interim periods on the basis of
the estimated annual effective tax rate for the taxable jurisdictions in
which the Company operates.
NOTE 6. SUBSEQUENT EVENTS
-----------------
On July 14, 1997, Emmis signed a definitive agreement to acquire
substantially all of the assets of radio stations WTLC-FM and AM in
Indianapolis from Panache Broadcasting, L.P. for approximately $15
million in cash. As part of the transaction, Emmis made a $750,000
escrow payment which will be credited against the purchase price at the
closing date. The acquisition is subject to various conditions,
including regulatory approval. The acquisition will be accounted for as
a purchase. Emmis intends to finance the acquisition through additional
<PAGE>
<PAGE>
borrowings under the Company's amended and restated Credit Facility dated
July 1, 1997.
In June 1997, Emmis acquired 194,444 shares of its common stock from
Morgan Stanley at $36 per share. The aggregate purchase price of
$6,999,984 was financed through additional borrowings under the Company's
existing Credit Facility.
On May 15, 1997, the Company entered into an agreement involving radio
station WQCD-FM in New York City wereby the current owner of the station
has the option to require the Company to purchase the station at any date
through May 2000. The current owner may extend the option for an
additional one-year period. The Company has an option to acquire the
radio station during the two month period subsequent to the current
owner's option. In connection therewith, the Company has issued an
irrevocable letter of credit totaling $50 million as security to the
current owner of the Company's obligations under this agreement. The
purchase price agreed to ranges from approximately $145 million to $160
million based on certain events and conditions as specified in the
agreement.
In connection with the above agreement, the Company entered into a
time brokerage agreement which permitted them to begin operating the
station effective July 1, 1997. This agreement expires upon the purchase
of the station by the Company or by agreement by the parties to
terminate. In consideration for the time brokerage agreement, the
Company will pay a monthly fee of approximately $700,000. If the current
owner elects to extend the option beyond May 2000, the monthly fee to
operate the station will be waived during the extension period.
On July 1, 1997, the Company entered into an amended and restated
Credit Facility. As a result of the early payoff of the refinanced
debt, the Company will record a loss of approximately $ 1.3 million in the
quarter ending August 31, 1997 related to unamortized deferred debt
issuance costs. The amended and restated Credit Facility matures on
February 28, 2005 and consists of the following:
Credit Facility Amount
- --------------- ------
Revolving Credit Facility Up to $250,000,000; subject
to certain adjustments as
defined in the Credit
Facility; An additional
commitment for $100,000,000
may be requested by Emmis
prior to May 31, 1999.
<PAGE>
<PAGE>
Term Note $100,000,000
In addition to the above facilities, the Company has also negotiated
a $150 million Revolving Credit Facility/Term Note which will be
effective upon completion of syndication of the Credit Facility to
participating institutions.
The Credit Facility provides for Letters of Credit to be made
available to the Company not to exceed $50,000,000. The
aggregate amount of outstanding Letters of Credit and amounts borrowed
under the Revolving Credit Facility cannot exceed the Revolving Credit
Facility commitment.
All outstanding amounts under the Credit Facility bear interest, at
the option of Emmis, at a rate equal to the Eurodollar Rate or an
alternative base rate (as defined in the Credit Facility) plus a margin.
The margin over the Eurodollar Rate or the alternative base rate varies
from time to time, depending on Emmis' ratio of debt to earnings before
interest, taxes, depreciation and amortization (EBITDA), as defined in
the agreement. Interest is due on a calendar quarter basis under the
alternative base rate and at least every three months under the
Eurodollar Rate.
The Credit Facility requires the Company to maintain interest rate
protection agreements through July 2000. The notional amount required
varies based upon Emmis' ratio of adjusted debt to EBITDA, as defined in
the Credit Facility.
The aggregate amount of the Revolving Credit Facility reduces
quarterly beginning May 31, 2000. Amortization of the outstanding
principal amount under the Term Note and pending Revolving Credit
Facility/Term Note is payable in quarterly installments beginning May 31, 2000.
The annual amortization and reduction schedules as of February 28, 1998,
assuming the entire $500 million Credit Facility was outstanding prior to the
scheduled amortization payments are as follows:
SCHEDULED AMORTIZATION/REDUCTION OF
----------------------------------
CREDIT FACILITY AVAILABILITY
----------------------------
(In thousands)
<TABLE>
<CAPTION>
Revolving
Revolving Credit Facility/
Year ended Credit Facility Term Note Term Note
February 28(29) Amortization Amortization Amortization Total
- -------------- ------------- ------------ ------------ ------
<S> <C> <C> <C> <C>
2001 $ 37,500 $ 15,000 $15,000 $67,500
<PAGE>
<PAGE>
2002 50,000 20,000 22,500 92,500
2003 50,000 20,000 22,500 92,500
2004 50,000 20,000 37,500 107,500
2005 62,500 25,000 52,500 140,000
------- ------- ------- -------
Total $250,000 $100,000 $150,000 $500,000
======= ======= ======= =======
</TABLE>
Commencing with the fiscal year ending February 28, 2001 and
continuing through February 29, 2004, in addition to the scheduled
amortization/reduction of the Credit Facility, within 60 days after the
end of each fiscal year, the Credit Facility is permanently reduced by
50% of the Company's excess cash flow if the ratio of adjusted debt (as
defined in the Credit Facility) to EBITDA exceeds 5 to 1. Excess cash
flow is generally defined as EBITDA reduced by cash taxes, capital
expenditures, required debt service, increases in working capital (net
of cash or cash equivalents), the fixed fees paid under the WQCD-FM time
brokerage agreement, and $3,000,000. The net proceeds of any sale of
certain assets must also be used to permanently reduce borrowings under
the Credit Facility. If the ratio of adjusted debt to EBITDA is less
than 5.5 to 1 and certain other conditions are met, the Company will be
permitted in certain circumstances to reborrow the amount of the net
proceeds within nine months solely for the purpose of funding an
acquisition.
The Credit Facility contains various financial and operating covenants
and other restrictions with which Emmis must comply, including, among
others, restrictions on additional indebtedness, engaging in businesses
other than radio broadcasting and publishing, paying cash dividends,
redeeming or repurchasing capital stock of Emmis and use of borrowings,
as well as requirements to maintain certain financial ratios. The Credit
Facility also prohibits Emmis, under certain circumstances, from making
acquisitions and disposing of certain assets without the prior consent
of the lenders, and will provide that an event of default will occur if
Jeffrey H. Smulyan ceases to maintain (i) a significant equity investment
in Emmis (as specified in the Credit Facility), (ii) the ability to elect
a majority of Emmis' directors or (iii) control of a majority of
shareholder voting power. Substantially all of Emmis' assets, including
the stock of Emmis' subsidiaries, are pledged to secure the Credit
Facility.
<PAGE>
<PAGE>
ITEM 2. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND
RESULTS OF OPERATIONS
GENERAL
The performance of a radio group, such as the Company, is customarily
measured by the ability of its stations to generate Broadcast Cash Flow
and Operating Cash Flow. Operating Cash Flow is defined as operating
income before depreciation, amortization and noncash compensation
expenses. Broadcast Cash Flow is defined as Operating Cash Flow before
corporate expenses (excluding noncash compensation), publication and
other revenue net of operating expenses, and international business
development expenses. Although Broadcast Cash Flow and Operating Cash
Flow are not measures of performance calculated in accordance with
generally accepted accounting principles, and should be viewed as a
supplement to and not a substitute for the Company's results of
operations presented on the basis of generally accepted accounting
principles, the Company believes that Broadcast Cash Flow and Operating
Cash Flow are useful because they are generally recognized by the radio
broadcasting industry as a measure of performance and are used by
analysts who report on the performance of broadcast companies.
RESULTS OF OPERATIONS
Net broadcasting revenues for the quarter ended May 31, 1997 were
$28.6 million compared to $25.4 million for the same quarter of the prior
year, an increase of $3.2 million or 12.7%. This increase is principally
due to the St. Louis acquisition and the ability to realize higher
advertising rates at the Company's broadcasting properties, resulting
from higher ratings at certain broadcasting properties, as well as
increases in general radio spending in the markets in which the Company
operates. On a pro forma basis, assuming the acquisition of the St. Louis
stations had occurred for the periods presented,net broadcasting revenues
would have increased $2.2 million or 8.1%. Pro forma basis assumes the
comparison between historical results for the quarter ended May 31, 1997 and
the pro forma results for the quarter ended May 31, 1996.
Broadcasting operating expenses for the quarter ended May 31, 1997
were $16.2 million compared to $13.1 million for the same quarter of the
prior year, an increase of $3.1 million or 23.6%. This increase is
principally attributable to the St. Louis acquisition and increased
promotional spending at the Company's broadcasting properties. On a pro
forma basis, broadcasting operating expenses would have increased $2.1
million or 14.7%.
Broadcast Cash Flow for the fiscal quarter ended May 31, 1997 was
$12.3 million compared to $12.2 million for the same quarter of the prior
year, an increase of $.1 million or 1.0%. This increase is principally
<PAGE>
<PAGE>
due to increased net broadcasting revenues offset by increased
broadcasting operating expenses as discussed above. On a pro forma
basis, broadcast cash flow would have increased less than $.1 million.
Corporate expenses for the quarter ended May 31, 1997 were $1.6
million compared to $1.5 million for the same quarter of the prior year,
an increase of $0.1 million or 12%. This increase was primarily due to
increased travel expenses and other expenses related to potential
acquisitions.
International business development expenses for the quarters ended May
31, 1997 and 1996 were $.3 million. These expenses reflect costs
associated with Emmis International Corporation. The purpose of this
wholly owned subsidiary is to identify, investigate and develop
international broadcast investments or other international business
opportunities. Expenses consist primarily of salaries, travel and
various administrative costs.
Operating Cash Flow for the quarter ended May 31, 1997 was $10.6
million compared to $10.8 million for the same quarter of the prior year,
a decrease of $.2 million or 1.5%. This decrease is principally due to
increased corporate and international expenses.
On a pro forma basis, operating cash flow would have also decreased $.2
million.
Interest expense was $2.6 million for the quarter ended May 31, 1997
compared to $2.5 million for the same quarter of the prior year, an
increase of $.1 million or 5.9%. This increase reflects higher
outstanding debt due to the St. Louis acquisition offset by voluntary
repayments made under the Company's Credit Facility.
LIQUIDITY AND CAPITAL RESOURCES
The increase in accounts receivable from February 28, 1997 to May 31,
1997 is due to the increase of net broadcasting revenues in the quarter
ended May 31, 1997 compared to the quarter ended February 28, 1997.
In the fiscal quarter ended May 31, 1997, the Company made voluntary
payments of $2.0 million under its Credit Facility.
In August 1996, Emmis announced its plan to build an office building
in downtown Indianapolis for its corporate office and its Indianapolis
operations. The project is expected to be completed in 1999 for an
estimated cost of $20 million, net of reimbursable construction costs of
<PAGE>
<PAGE>
$2 million. Certain factors such as additional studio costs related to
digital technology and historical landmark requirements may cause the
cost of this project to increase. The Company plans to fund this project
through additional borrowings under the Credit Facility.
In the fiscal quarter ended May 31, 1997, the Company had capital
expenditures of $.9 million. These capital expenditures consist
primarily of progress payments in connection with the Indianapolis
building project.
In June 1997, the Company acquired 194,444 shares of its common stock
at $36 per share. On July 14, 1997, the Company signed a definitive
agreement to acquire substantially all of the assets of radio stations
WTLC-FM and AM, for approximately $15 million. Both transactions were/will be
financed through additional borrowings. In July 1997, the Company
amended and restated their existing Credit Facility. These items are
more fully discussed in Note 6 to the financial statements.
The Company expects that cash flow from operating activities will be
sufficient to fund all debt service, working captial and capital
expenditure requirements. As part of its business strategy, the Company
frequently evaluates potential acquisitions of radio stations. In
connection with future acquisition opportunities, the Company may incur
additional debt or issue additional equity or debt securities depending
on market conditions and other factors.
PART II - OTHER INFORMATION
ITEM 6. EXHIBITS AND REPORTS ON FORM 8-K
Exhibits.
The following exhibits are filed or incorporated by reference as a
part of this report:
10.1 Amended and Restated Revolving Credit and Term Loan Agreement
10.2 Option Agreement (WQCD-FM, New York, New York)
10.3 Time Brokerage Agreement (WQCD-FM, New York, New York)
11 Statements re: Calculations of per share net income (loss)
15 Letter re: unaudited interim financial information
27 Financial data schedule (Edgar version only)
Reports on Form 8-K
The Company filed Form 8-K on April 15, 1997, to report the closing
under the Asset Purchase Agreement dated as of October 31, 1996, by
and between Zimco, Inc. and Emmis Broadcasting Corporation, as amended
by first and second amendments to the Asset Purchase Agreement.
Additionally, the Company filed Form 8-K/A on June 16, 1997, to include
the financial statements of Zimco, Inc. as of December 31, 1996.
<PAGE>
<PAGE>
SIGNATURES
-----------
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 thereunto duly authorized.
EMMIS BROADCASTING CORPORATION
Date: July 15, 1997 By: /s/ Howard L.Schrott
-------------------------
Howard L. Schrott
Vice President(Authorized
Corporate Officer), Chief
Financial Officer and
Treasurer
AMENDED AND RESTATED
REVOLVING CREDIT
AND
TERM LOAN AGREEMENT
Dated as of July 1, 1997
Among
EMMIS BROADCASTING CORPORATION
as Borrower,
THE FINANCIAL INSTITUTIONS
NOW OR HEREAFTER PARTIES HERETO,
and
BANKBOSTON, N.A.,
as Managing Agent
<PAGE>
<PAGE>
TABLE OF CONTENTS
Page
1. Definitions and Rules of Interpretation . . . . . . . . . . . . 1
1.1. Definitions . . . . . . . . . . . . . . . . . . . . . . . 1
1.2. Rules of Interpretation . . . . . . . . . . . . . . . . . 22
2. The Revolving Credit Facilities . . . . . . . . . . . . . . . . 23
2.1. Tranche A . . . . . . . . . . . . . . . . . . . . . . . . 23
2.1.1. Commitment to Lend . . . . . . . . . . . . . . . 23
2.1.2. Commitment Fee . . . . . . . . . . . . . . . . . 23
2.1.3. Reduction of Tranche A Commitment Amount . . . . 23
2.1.4. The Tranche A Notes. . . . . . . . . . . . . . . 25
2.2. Tranche C . . . . . . . . . . . . . . . . . . . . . . . 25
2.2.1. Commitment to Lend . . . . . . . . . . . . . . . 25
2.2.2. Commitment Fee . . . . . . . . . . . . . . . . . 25
2.2.3. Reduction of Tranche Commitment . . . . . . . . 26
2.2.4. The Tranche C Notes. . . . . . . . . . . . . . . 26
2.3. Interest on Revolving Credit Loans. . . . . . . . . . . 27
2.4. Requests for Revolving Credit Loans . . . . . . . . . . 27
2.5. Conversion Options. . . . . . . . . . . . . . . . . . . 27
2.5.1. Conversion to Different Type of Revolving
\ Credit Loan. . . . . . . . . . . . . . . . . . . 27
2.5.2. Continuation of Type of Revolving Credit
Loan . . . . . . . . . . . . . . . . . . . . . . 28
2.5.3. Eurodollar Rate Loans. . . . . . . . . . . . . . 28
2.6. Funds for Revolving Credit Loans. . . . . . . . . . . . 28
2.6.1. Funding Procedures . . . . . . . . . . . . . . . 28
2.6.2. Advances by Managing Agent . . . . . . . . . . . 29
3. The Term Loans. . . . . . . . . . . . . . . . . . . . . . . . . 29
3.1. Tranche B Term Loan . . . . . . . . . . . . . . . . . . . 29
3.1.1. The Tranche B Term Loan. . . . . . . . . . . . . 29
3.1.2. The Tranche B Term Notes . . . . . . . . . . . . 29
3.2. Tranche C Term Loan.. . . . . . . . . . . . . . . . . . 30
3.2.1. Tranche C Term Loan... . . . . . . . . . . . . . 30
3.2.2. The Tranche C Term Notes.. . . . . . . . . . . . 30
3.3. Mandatory Payments. . . . . . . . . . . . . . . . . . . 31
3.3.1. Schedule of Installment Payments of
Principal of Tranche B Term Loan.. . . . . . . . 31
3.3.2. Schedule of Installment Payments of
Principal of Tranche C Term Loan.. . . . . . . . 31
3.4. Interest on Term Loan . . . . . . . . . . . . . . . . . 32
3.4.1. Interest Rates . . . . . . . . . . . . . . . . . 32
3.4.2. Notification by Borrower . . . . . . . . . . . . 32
<PAGE>
<PAGE>
3.4.3. Amounts, etc . . . . . . . . . . . . . . . . . . 32
4. Prepayments of Loans. . . . . . . . . . . . . . . . . . . . . 33
4.1. Optional Repayments of Revolving Credit Loans . . . . . . . 33
4.2. Optional Prepayment of Term Loan. . . . . . . . . . . . . . . 33
4.3. Mandatory Repayments of Loans . . . . . 33
5. LETTERS OF CREDIT.. . . . . . 35
5.1. Letter of Credit Commitments. . . . . . 35
5.1.1. Commitment to Issue Letters of Credit.. . . . . . 35
5.1.2. Letter of Credit Applications.. . . . . . . . 35
5.1.3. Term of Letters of Credit.. . . . . . . 36
5.1.4. Reimbursement Obligations of Banks. . . . . . . . 36
5.1.5. Participations of Banks.. . . . . . 36
5.2. Reimbursement Obligation of the Borrower. . . . . . . . 36
5.3. Letter of Credit Payments.. . . . . . . 37
5.4. Obligations Absolute. . . . . . . . 37
5.5. Reliance by Issuer. . . . . . 38
5.6. Letter of Credit Fee. . . . . . . . 38
6. Certain General Provisions. . . . . . . 39
6.1. Fees. . . . . . . . . . . . . . . . . . . . . . . . . . . 39
6.2. Funds for Payments. . . . . . . . . . . . . . . . . . . . 39
6.2.1. Payments to Managing Agent . . . . . . . . . . . 39
6.2.2. No Offset, etc.. . . . . . . . . . . . . . . . . 39
6.2.3. Withholding Tax Exemption. . . . . . . . . . . . 39
6.3. Computations. . . . . . . . . . . . . . . . . . . . . . 39
6.4. Inability to Determine Eurodollar Rate. . . . . . . . . 40
6.5. Illegality. . . . . . . . . . . . . . . . . . . . . . . 40
6.6. Additional Costs, Etc.. . . . . . . . . . . . . . . . . 40
6.7. Capital Adequacy. . . . . . . . . . . . . . . . . . . . 42
6.8. Certificate . . . . . . . . . . . . . . . . . . . . . . 42
6.9. Indemnity . . . . . . . . . . . . . . . . . . . . . . . 42
6.10. Interest After Default. . . . . . . . . . . . . . . . . 42
7. Security and Guaranties . . . . . . . . . . . . . . . . . . . . 43
7.1. Security of Borrower. . . . . . . . . . . . . . . . . . 43
7.2. Guaranties and Security of Subsidiaries . . . . . . . . 43
8. Representations and Warranties. . . . . . . . . . . . . . . . . 43
8.1. Corporate Authority . . . . . . . . . . . . . . . . . . 43
8.1.1. Incorporation; Good Standing . . . . . . . . . . 44
<PAGE>
<PAGE>
8.1.2. Authorization. . . . . . . . . . . . . . . . . . 44
8.1.3. Enforceability . . . . . . . . . . . . . . . . . 44
8.2. Governmental Approvals. . . . . . . . . . . . . . . . . 44
8.3. Title to Properties; Leases . . . . . . . . . . . . . . 44
8.4. Financial Statements and Projections. . . . . . . . . . 45
8.4.1. Financial Statements . . . . . . . . . . . . . . 45
8.4.2. Projections. . . . . . . . . . . . . . . . . . . 45
8.5. No Material Changes, Etc. . . . . . . . . . . . . . . . 45
8.6. Franchises, Patents, Copyrights, Etc. . . . . . . . . . 46
8.7. Litigation. . . . . . . . . . . . . . . . . . . . . . . 46
8.8. No Materially Adverse Contracts, Etc. . . . . . . . . . 46
8.9. Compliance With Other Instruments, Laws, Etc. . . . . . 46
8.10. Tax Status. . . . . . . . . . . . . . . . . . . . . . . 46
8.11. No Event of Default . . . . . . . . . . . . . . . . . . 47
8.12. Holding Company, Investment Company and
Communications Acts . . . . . . . . . . . . . . . . . . 47
8.13. Absence of Financing Statements, Etc. . . . . . . . . . 47
8.14. Perfection of Security Interest . . . . . . . . . . . . 47
8.15. Certain Transactions. . . . . . . . . . . . . . . . . . 47
8.16. Employee Benefit Plans. . . . . . . . . . . . . . . . . 47
8.16.1. In General. . . . . . . . . . . . . . . . . . . 47
8.16.2. Terminability of Welfare Plans. . . . . . . . . 48
8.16.3. Guaranteed Pension Plans. . . . . . . . . . . . 48
8.16.4. Multiemployer Plans . . . . . . . . . . . . . . 48
8.17. Regulations U and X . . . . . . . . . . . . . . . . . . 48
8.18. Environmental Compliance. . . . . . . . . . . . . . . . 49
8.19. Subsidiaries, etc.. . . . . . . . . . . . . . . . . . . 50
8.20. Bank Accounts . . . . . . . . . . . . . . . . . . . . . 50
8.21. Licenses and Approvals. . . . . . . . . . . . . . . . . 51
8.22. Material Agreements . . . . . . . . . . . . . . . . . . 51
9. Affirmative Covenants of the Borrower . . . . . . . . . . . . . 51
9.1. Punctual Payment. . . . . . . . . . . . . . . . . . . . 52
9.2. Maintenance of Office . . . . . . . . . . . . . . . . . 52
9.3. Records and Accounts. . . . . . . . . . . . . . . . . . 52
9.4. Financial Statements, Certificates and
Information . . . . . . . . . . . . . . . . . . . . . . 52
9.5. Notices . . . . . . . . . . . . . . . . . . . . . . . . 54
9.5.1. Defaults. . . . . . . . . . . . . . . . . . . . 54
9.5.2. Environmental Events. . . . . . . . . . . . . . 54
9.5.3. Notification of Claims against Collateral 55
<PAGE>
<PAGE>
9.5.4. Notice of Litigation and Judgments. . . . . . . 55
9.6. Corporate Existence; Maintenance of Properties. . . . . . 55
9.7. Insurance . . . . . . . . . . . . . . . . . . . . . . . 56
9.8. Taxes . . . . . . . . . . . . . . . . . . . . . . . . 56
9.9. Inspection of Properties and Books, Etc.. . . . . . . . 57
9.9.1. General . . . . . . . . . . . . . . . . . . . . 57
9.9.2. Appraisals. . . . . . . . . . . . . . . . . . . 57
9.9.3. Environmental Assessments . . . . . . . . . . . 57
9.9.4. Communication with Accountants. . . . . . . . . 57
9.10. Compliance with Laws, Contracts, Licenses, and
Permits . . . . . . . . . . . . . . . . . . . . . . . . 58
9.11. Employee Benefit Plans. . . . . . . . . . . . . . . . . 58
9.12. Use of Proceeds . . . . . . . . . . . . . . . . . . . . 59
9.13. Additional Collateral . . . . . . . . . . . . . . . . . 59
9.14. Interest Rate Protection. . . . . . . . . . . . . . . . 59
9.15. Holding Company . . . . . . . . . . . . . . . . . . . . 59
9.16. Further Assurances. . . . . . . . . . . . . . . . . . . 59
10. Certain Negative Covenants of the Borrower. . . . . . . . . . . 60
10.1. Restrictions on Indebtedness. . . . . . . . . . . . . . 60
10.2. Restrictions on Liens . . . . . . . . . . . . . . . . . 60
10.3. Restrictions on Investments . . . . . . . . . . . . . . 63
10.4. Restricted Payments . . . . . . . . . . . . . . . . . . 64
10.5. Mergers, Acquisitions, Dispositions of Assets . . . . . 65
10.6. Sale and Leaseback. . . . . . . . . . . . . . . . . . . 67
10.7 Compliance with Environmental Laws. . . . . . . . . . . 67
10.8 Employee Benefit Plans. . . . . . . . . . . . . . . . . 68
10.9 WQCD Acquisition Documents. . . . . . . . . . . . . . . 68
11. FINANCIAL COVENANTS OF THE BORROWER . . . . . . . . . . . . . . 68
11.1. Consolidated EBITDA to Consolidated Total
Interest Expense... . . . . . . . . . . . . . . . . . . 69
11.2. Total Leverage Ratio. . . . . . . . . . . . . . . . . . 69
11.3. Senior Total Leverage Ratio . . . . . . . . . . . . . . 69
11.4. Pro Forma Fixed Charge Coverage Ratio . . . . . . . . . 69
12. Closing Conditions . . . . . . . 70
12.1. Loan Documents. . . . . . . . . . . . . . . . . . . . . 70
12.2. Certified Copies of Charter Documents . . . . . . . . . 70
12.3. Corporate Action. . . . . . . . . . . . . . . . . . . . 70
12.4. Incumbency Certificate. . . . . . . . . . . . . . . . . 70
12.5. Financial Condition . . . . . . . . . . . . . . . . . . 70
<PAGE>
<PAGE>
12.6. Validity of Liens . . . . . . . . . . . . . . . . . . . 70
12.7. Perfection Certificates and UCC Search Results. . . . . 71
12.8. Taxes.......... . . . . . . . . . . . . . . . . . . . . 71
12.9. Title Insurance . . . . . . . . . . . . . . . . . . . . 71
12.10. Landlord Consents . . . . . . . . . . . . . . . . . . . 71
12.11. Certificates of Insurance . . . . . . . . . . . . . . . 71
12.12. Opinions of Counsel . . . . . . . . . . . . . . . . . . 71
12.13. Payment of Fees . . . . . . . . . . . . . . . . . . . . 72
12.14. Assignment and Acceptance . . . . . . . . . . . . . . . 72
12.15. Disbursement Instructions. . . . . . . . 72
12.16. FCC Licenses; Third Party Consents....... . . . . . . 72
12.17. Accountant's Letter.. . . . . . . . . . . . . . . . . . 72
12.18. WQCD Acquisition. . . . . . . . . . . . . . . . . . . . 72
13. Conditions To All Borrowings. . . . . . . . . . . . . . . . . . 73
13.1. Representations True; No Event of Default . . . . . . . 73
13.2. No Legal Impediment . . . . . . . . . . . . . . . . . . 73
13.3. Governmental Regulation . . . . . . . . . . . . . . . . 73
13.4. Proceedings and Documents . . . . . . . . . . . . . . . 73
14. WQCD ACQUISITION; WTLC ACQUISITION CLOSING CONDITIONS.. . . . . 74
15. CORPORATE RESTRUCTURING CLOSING CONDITIONS. . . . . . . . . . . 76
16. Events of Default; Acceleration; Etc. . . . . . . . . . . . . . 78
16.1. Events of Default and Acceleration. . . . . . . . . . . 78
16.2. Termination of Commitments. . . . . . . . . . . . . . . 82
16.3. Remedies. . . . . . . . . . . . . . . . . . . . . . . . 82
16.4. Distribution of Collateral Proceeds . . . . . . . . . . 83
17. ADDITIONAL FINANCING. . . . . . . . . . . . . . . . . . . . . . 83
17.1. Tranche A Commitment Amount.. . . . . . . . . . . . . . . 84
17.2. Commitment Percentages. . . . . . . . . . . . . . . . . . 84
17.3. Tranche A Notes.... . . . . . . . . . . . . . . . . . . . 84
18. SETOFF................. . . . . . . . . . . . . . . . . . . . . 84
19. THE AGENT........ . . . . . . . . . . . . . . . . . . . . . . . 85
19.1. Authorization . . . . . . . . . . . . . . . . . . . . . . 85
19.2. Employees and Managing Agents . . . . . . . . . . . . . . 86
19.3. No Liability. . . . . . . . . . . . . . . . . . . . . . . 86
19.4. No Representations. . . . . . . . . . . . . . . . . . . . 86
<PAGE>
<PAGE>
19.5. Payments. . . . . . . . . . . . . . . . . . . . . . . . . 87
19.5.1. Payments to Managing Agent . . . . . . . . . . . 87
19.5.2. Distribution by Managing Agent . . . . . . . . . 87
18.5.3. Delinquent Banks . . . . . . . . . . . . . . . . 87
19.6. Holders of Notes. . . . . . . . . . . . . . . . . . . . . 88
19.7. Indemnity . . . . . . . . . . . . . . . . . . . . . . . . 88
19.8. Managing Agent as Bank. . . . . . . . . . . . . . . . . . 88
19.9. Resignation . . . . . . . . . . . . . . . . . . . . . . . 88
19.10. Notification of Defaults and Events of Default. . . . . 88
19.11. Delegation of Duties. . . . . . . . . . . . . . . . . . 89
19.12. Documentation Agents; Co-Agents.. . . . . . . . . . . . 89
20. EXPENSES. . . . . . . . . . . . . . . . . . . . . . . . . . . . 89
21. INDEMNIFICATION . . . . . . . . . . . . . . . . . . . . . . . . 89
22. SURVIVAL OF COVENANTS, ETC. . . . . . . . . . . . . . . . . . . 90
23. ASSIGNMENT AND PARTICIPATION. . . . . . . . . . . . . . . . . . 91
23.1. Conditions to Assignment by Banks . . . . . . . . . . . . 91
23.2. Certain Representations and Warranties;
Limitations; Covenants. . . . . . . . . . . . . . . . . . 91
23.3. Register. . . . . . . . . . . . . . . . . . . . . . . . . 92
23.4. New Notes . . . . . . . . . . . . . . . . . . . . . . . . 92
23.5. Participations. . . . . . . . . . . . . . . . . . . . . . 93
23.6. Disclosure. . . . . . . . . . . . . . . . . . . . . . . . 93
23.7. Assignee or Participant Affiliated with the
Borrower. . . . . . . . . . . . . . . . . . . . . . . . . 93
23.8. Miscellaneous Assignment Provisions . . . . . . . . . . . 93
23.9. Assignment by Borrower. . . . . . . . . . . . . . . . . . 94
24. NOTICES, ETC. . . . . . . . . . . . . . . . . . . . . . . . . . 94
25. GOVERNING LAW . . . . . . . . . . . . . . . . . . . . . . . . . 94
26. HEADINGS. . . . . . . . . . . . . . . . . . . . . . . . . . . . 95
27. COUNTERPARTS. . . . . . . . . . . . . . . . . . . . . . . . . . 95
28. ENTIRE AGREEMENT, ETC.. . . . . . . . . . . . . . . . . . . . . 95
29. WAIVER OF JURY TRIAL. . . . . . . . . . . . . . . . . . . . . . 95
<PAGE>
<PAGE>
30. CONSENTS, AMENDMENTS, WAIVERS, ETC. . . . . . . . . . . . . . . 96
31. TRANSITIONAL ARRANGEMENTS . . . . . . . . . . . . . . . . . . . 96
31.1. Existing Credit Agreement Superseded. . . . . . . . . . . 96
31.2. Fees Under Existing Credit Agreement... . . . . . . . . . 97
32. FCC APPROVAL. . . . . . . . . . . . . . . . . . . . . . . . . . 97
33. SEVERABILITY... . . . . . . . . . . . . . . . . . . . . . . . . 98
<PAGE>
<PAGE>
AMENDED AND RESTATED
--------------------
REVOLVING CREDIT
----------------
AND
----
TERM LOAN AGREEMENT
--------------------
This AMENDED AND RESTATED REVOLVING CREDIT AND TERM LOAN AGREEMENT is
made as of the 1st day of July, 1997, by and among (a) EMMIS
BROADCASTING CORPORATION, an Indiana corporation (the "Borrower"), (b)
the lending institutions listed on Schedule 1 hereto, (c) BANKBOSTON,
N.A., a national banking association, as managing agent (the "Managing
Agent") and (d) such other lending institutions which may become parties
hereto from time to time and which are identified on Schedule 1 hereto
as documentation agents or co-agents.
WHEREAS, pursuant to the Revolving Credit and Term Loan Agreement,
dated as of December 21, 1993 (as amended from time to time, the
"Existing Credit Agreement"), by and among the Borrower, the lending
institutions party thereto (the "Existing Banks"), BankBoston, N.A.
(formerly known as The First National Bank of Boston), as documentation
agent, collateral agent, and together with The Toronto Dominion Bank,
syndication agents, Toronto Dominion (Texas), Inc., as administrative
agent, and First Union National Bank of North Carolina, as co-agent, the
Existing Banks have made available certain financing to the Borrower
upon the terms and conditions contained therein;
WHEREAS, the Borrower has requested that the terms of the Existing
Credit Agreement be amended and restated, and the Banks (as defined
below) and the Managing Agent are willing to make such amendments on the
terms and conditions set forth herein;
NOW, THEREFORE, in consideration of the foregoing premises and the
mutual covenants contained herein, the Borrower, the Banks and the
Managing Agent agree that as of the Closing Date (as defined below), the
<PAGE>
<PAGE>
Existing Credit Agreement shall be amended and restated in its entirety
as set forth herein:
1. DEFINITIONS AND RULES OF INTERPRETATION.
1.1. DEFINITIONS. The following terms shall have the meanings set
forth in this Section 1 or elsewhere in the provisions of this Credit
Agreement referred to below:
Adjusted Total Funded Debt. At any time of determination, the sum of
(a) total Funded Debt, plus (b) the Net WQCD Acquisition Amount.
Affiliate. Any Person that would be considered to be an affiliate of
the Borrower under Rule 144(a) of the Rules and Regulations of the
Securities and Exchange Commission, as in effect on the date hereof, if
the Borrower were issuing securities.
Aggregate Facilities Commitment. As of any date, the amount equal to
the sum of (a) the aggregate principal amounts of the Term Loans
outstanding on such date, plus (b) the Total Commitment as of such date.
Applicable Margin. With respect to any fiscal quarter of the Borrower
and each Type of Loan, the applicable percentage set forth below
opposite the Leverage Ratio determined as at the last day of the most
recently ended period of four (4) consecutive fiscal quarters for which the
Borrower has delivered financial statements pursuant to Section 9.4(b) hereof:
<TABLE>
<CAPTION>
Base Rate Eurodollar
Leverage Applicable Applicable
Ratio Margin Margin
-------- ------ -------
<S> <C> <C>
Greater than or
equal
to 6.50:1.00 1.125% 2.125%
Less than
6.50:1.00
but greater than
or equal to
6.00:1.00 0.875% 1.875%
<PAGE>
<PAGE>
Less than
6.00:1.00
but greater than
or equal to
5.50:1.00 0.500% 1.500%
Less than
5.50:1.00
but greater than
or equal to
5.00:1.00 0.250% 1.250%
Less than
5.00:1.00
but greater than
or equal to
4.50:1.00 0.125% 1.125%
Less than
4.50:1.00
but greater than
or equal to
4.00:1.00 0.000% 1.000%
Less than
4.00:1.00
but greater than
or equal to
3.50:1.00 0.000% 0.875%
Less than
3.50:1.00 0.00% 0.750%
</TABLE>
;provided, that if the Borrower's financial statements are not furnished
to the Banks pursuant to Section 9.4(b) within five (5) Business Days
after the relevant period of time specified in Section 9.4 therefor, the
Applicable Margin with respect to (a) Base Rate Loans shall be 1.125%
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and (b) Eurodollar Rate Loans shall be 2.125% during the period
commencing on the date such statements are due and (provided that such
financial statements are subsequently furnished to the Banks) ending on
the date two (2) days following the delivery to the Managing Agent of
such financial statements; provided, further, that if at any time the
financial statements furnished to the Banks pursuant to Section 9.4
hereof indicate that the Leverage Ratio, as reported as of any previous
date, was higher than the actual Leverage Ratio as of such date, then
the Borrower shall, promptly, but in any event no less than five (5)
days after delivery of such financial statements, retroactively pay to
the Banks the difference (if any) between the interest rate calculated
based on the Leverage Ratio as adjusted and that calculated based on the
Leverage Ratio as previously reported pursuant to the table set forth
above.
Assignment and Acceptance. See Section 23.1 hereof.
Balance Sheet Date. February 28, 1997.
Banks. Collectively, (a) the lending institutions listed on Schedule
1 hereto, (b) any other Person who becomes an assignee of any rights and
obligations of any Bank pursuant to Section 23 hereof and (c) any other
Person who becomes a party hereto by executing and delivering to the
Managing Agent an Instrument of Accession pursuant to Section 17.1
hereof.
Base Rate. The higher of (a) the annual rate of interest announced
from time to time by the Managing Agent at its head office in Boston,
Massachusetts, as its "prime rate", and (b) one-half of one percent
(0.50%) above the Federal Funds Effective Rate. For the purposes of
this definition, "Federal Funds Effective Rate" shall mean, for any day,
the rate per annum equal to the weighted average of the rates on
overnight federal funds transactions with members of the Federal Reserve
System arranged by federal funds brokers, as published for such day (or
if such day is not a Business Day, for the next preceding 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 of the
quotations for such day on such transactions received by the Managing
Agent from three funds brokers of recognized standing selected by the
Managing Agent.
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Base Rate Loans. Revolving Credit Loans and all or any portions of
the Term Loans bearing interest calculated by reference to the Base
Rate.
BKB. BankBoston, N.A., a national banking association.
Borrower. As defined in the preamble hereto.
Borrower Security Agreement. The Amended and Restated Security
Agreement, dated as of the date hereof, as the same may be amended from
time to time hereafter, between the Borrower and the Managing Agent, in
form and substance satisfactory to the Banks and the Managing Agent.
Borrower Stock Pledge Agreement. The Amended and Restated Stock
Pledge Agreement, dated as of the date hereof, as the same may be
amended from time to time hereafter, between the Borrower and the
Managing Agent, in form and substance satisfactory to the Banks and the
Managing Agent.
Business Day. Any day on which banking institutions in Boston,
Massachusetts and New York, New York are open for the transaction of
banking business and, in the case of Eurodollar Rate Loans, also a day
which is a Eurodollar Business Day.
Capital Assets. Fixed assets, both tangible (such as land, buildings,
fixtures, machinery and equipment) and intangible (such as patents,
copyrights, trademarks, franchises, licenses and good will); provided
that Capital Assets shall not include any item customarily charged
directly to expense or depreciated over a useful life of twelve (12)
months or less in accordance with generally accepted accounting
principles.
Capital Expenditures. Amounts paid or indebtedness incurred by the
Borrower or any of its Subsidiaries in connection with the purchase or
lease by the Borrower or any of its Subsidiaries of Capital Assets that
would be required to be capitalized and shown on the balance sheet of
such Person in accordance with generally accepted accounting principles.
Capitalized Leases. Leases under which the Borrower or any of its
Subsidiaries is the lessee or obligor, the discounted future rental
payment obligations under which are required to be capitalized on the
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balance sheet of the lessee or obligor in accordance with generally
accepted accounting principles.
CERCLA. See Section 8.18 hereof.
Closing Date. The first date on which the conditions set forth in
Section 12 hereof have been satisfied and any Revolving Credit Loans and
the Tranche B Term Loan are to be made or any Letter of Credit is to be
issued hereunder.
Code. The Internal Revenue Code of 1986, as amended.
Collateral. All of the properties, assets, rights and interests of
the Borrower and each of its Subsidiaries that are or are intended to be
subject to the security interests and mortgages created by the Security
Documents.
Collateral Assignments of Contracts. Collectively, (a) the Collateral
Assignment of WQCD Contracts, and (b) each other collateral assignment
of contracts entered into by the Borrower and/or certain of its
Subsidiaries pursuant to Sections 10.5(c) and 10.5(h) hereof.
Collateral Assignments of Leases. Collectively, the several
Collateral Assignment of Station Leases and the several Collateral
Assignment of Station Tower Leases identified on Schedule 1.1(a) hereof,
each dated as of the date hereof, as the same may be amended from time
to time hereafter, from the Borrower and/or certain of its Subsidiaries
to the Managing Agent with respect to the non-recorded leasehold
interests of the Borrower and such Subsidiaries in the Stations and the
Station towers.
Collateral Assignment of WQCD Contracts. The Collateral Assignment of
WQCD Contracts, dated as of the date hereof, as the same may be amended
from time to time hereafter, from the Borrower to the Managing Agent,
with respect to all of the Borrower's rights and interests in, to and
under each of the Option Agreement and the WQCD Time Brokerage
Agreement.
Commitment. The agreement of each Bank, subject to the terms and
conditions of this Credit Agreement, to make Loans to, and to
participate in the issuance, renewal and extension of Letters of Credit
for the account of, the Borrower.
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Commitment Percentage. With respect to each Bank, the respective
percentages set forth on Schedule 1 hereto as such Bank's percentage of
each of the Tranche A Loans, the Tranche B Term Loan, the Tranche C Loan
(or after the Tranche C Conversion Date, the Tranche C Term Loan) and
the Total Commitment, respectively.
Common Stock. The Common Stock of the Borrower, par value $.01 per
share.
Communications Act. The Communications Act of 1934, as amended, and
the rules and regulations of the FCC thereunder as now or hereafter in
effect.
Consolidated or consolidated. With reference to any term defined
herein, shall mean that term as applied to the accounts of the Borrower
and its Subsidiaries, consolidated in accordance with generally accepted
accounting principles.
Consolidated Broadcast Cash Flow. For any period, the sum of
consolidated EBITDA for such period plus Corporate Overhead for such
period.
Consolidated Current Assets. As of any date, all assets of the
Borrower and its Subsidiaries on a consolidated basis that, in
accordance with generally accepted accounting principles, are properly
classified as current assets as of such date, but excluding cash or cash
equivalents.
Consolidated Current Liabilities. As of any date, all liabilities of
the Borrower and its Subsidiaries on a consolidated basis maturing on
demand or within one (1) year from such date, and such other liabilities
as of such date as may properly be classified as current liabilities in
accordance with generally accepted accounting principles.
Consolidated EBITDA. For any period, an amount equal to (a) the sum
of (i) Consolidated Net Income for such period, plus (ii) depreciation,
amortization and all other non-cash charges for such period, plus (iii)
to the extent deducted in the calculation of Consolidated Net Income,
Consolidated Total Interest Expense and taxes paid or payable for such
period, plus (iv) to the extent not already included in clause (iii) above
any scheduled monthly fees paid during such period to Tribune pursuant to
Section 3 of the WQCD Time Brokerage Agreement, less
(b) Corporate Overhead for such period to the extent not deducted in the
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calculation of Consolidated Net Income. For purposes of calculating
Consolidated EBITDA for any period, any Permitted Acquisition or Sale of
assets of the Borrower or any of its Subsidiaries which occurred during
such period shall be deemed to have occurred immediately prior to the
beginning of such period; provided that, with respect to any such
Permitted Acquisition, Consolidated EBITDA shall be increased by (i) the
amount of any pre-acquisition management fees paid during such period in
connection with the operation of any Station subject to such Permitted
Acquisition to the extent such fees are not payable after such
acquisition, (ii) the amount of any bad debt reserve adjustment
associated with any accounts receivable on the books of such acquired
Station on the date of acquisition thereof to the extent that such
accounts receivable are not acquired by the Borrower or its Subsidiaries
and (iii) the amount of any bad debt reserve adjustment associated with
any accounts receivable on the books of such acquired Station on the
date of acquisition thereof to the extent such bad debt reserve
adjustment exceeds the amount the Borrower would have reserved with
respect to such accounts receivable in accordance with its customary
reserve practices.
Consolidated Excess Cash Flow. With respect to the Borrower and its
Subsidiaries and any particular fiscal period, an amount equal to (a)
Consolidated EBITDA for such period less (b) the sum of (i) Consolidated
Total Interest Expense for such period, plus (ii) any mandatory
repayments (whether scheduled or otherwise) of principal on any
Indebtedness of the Borrower or any of its Subsidiaries paid or due and
payable during such period, plus (iii) any voluntary repayments of
principal of the Revolving Credit Loans to the extent that such
repayments were accompanied by permanent reductions in the Total
Commitment in like amount, plus (iv) cash payments made during such
period on account of Capital Expenditures, plus (v) cash taxes paid
during such period, plus (vi) the excess of Consolidated Working Capital
as at the last day of such period over Consolidated Working Capital as
at the first day of such period, plus (vii) $3,000,000, plus (viii) any
scheduled monthly fees paid during such period to Tribune pursuant to
Section 3 of the WQCD Time Brokerage Agreement.
Consolidated Net Income. For any period, the consolidated net income
of the Borrower and its Subsidiaries for such period, after deduction of
all expenses, taxes, and other proper charges for such period,
determined in accordance with generally accepted accounting principles,
after eliminating therefrom (a) all extraordinary nonrecurring gains or
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<PAGE>
losses, including, without limitation, any gains (or losses) from any
Sale of any Station or other assets, (b) non-cash dividends or non-cash
Distributions from Investments and (c) income and expenses arising from
or in connection with Trades, in each case to the extent otherwise
included in consolidated net income for such period.
Consolidated Total Interest Expense. For any period, the sum of (a)
the aggregate amount of interest required to be paid or accrued by the
Borrower, any of its Subsidiaries or the Holding Company during such
period on all Indebtedness of the Borrower, any of its Subsidiaries or
the Holding Company outstanding during all or any part of such period,
whether such interest was or is required to be reflected as an item of
expense or capitalized, including, without limitation, payments
consisting of interest in respect of Capitalized Leases and Letter of
Credit Fees and commitment fees payable pursuant to this Credit
Agreement (provided that, if such interest is capitalized, only the
portion amortized for such period shall be included as interest for such
period), plus (b) all scheduled monthly fees paid during such period to
Tribune pursuant to Section 3 of the WQCD Time Brokerage Agreement. For
purposes of determining the Consolidated Total Interest Expense for any
period, a portion of which falls prior to and includes the Closing Date,
the Consolidated Total Interest Expense for the portion of such period
prior to and including the Closing Date (the "Pro-Forma Period") shall
be determined as if (a) the Total Funded Debt outstanding as of the
Closing Date and after giving effect to the funding of the Loans, the
issuance of the Letters of Credit and the application of the Loan
proceeds on the Closing Date was outstanding throughout the Pro-Forma
Period, (b) the interest rate payable with respect to any particular
item of Total Funded Debt during the Pro-Forma Period was at all times
during the Pro-Forma Period equal to the interest rate payable on such
item of Total Funded Debt on and as of the Closing Date, and any
commitment fees and Letter of Credit Fees applicable on the Closing Date
were applicable at all times during the Pro Forma Period, and (c) all
such interest was payable on a periodic basis throughout the Pro-Forma
Period in a manner consistent with the terms of the instruments
governing such Total Funded Debt as of the Closing Date. For purposes
of determining the Consolidated Total Interest Expenses for any period,
any Permitted Acquisition or Sale of assets of the Borrower or its
Subsidiaries which occurred during such period as permitted pursuant to
Section 10.5 hereof shall be deemed to have occurred immediately prior
to such period, and Consolidated Total Interest Expense shall be
determined as if (i) any Indebtedness incurred in connection with such
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Permitted Acquisition or repaid in connection with such Sale was
incurred or repaid, as the case may be, immediately prior to such period
and (ii) the interest rate payable with respect to any increase in
Indebtedness in connection with such Permitted acquisition which was
outstanding during all or any part of such period was at all times equal
to the rate of interest payable with respect to such Indebtedness on the
last day of the period for which Consolidated Total Interest Expense is
to be determined or if earlier, the last day on which such Indebtedness
was outstanding.
Consolidated Working Capital. As of any date, the excess of
Consolidated Current Assets over Consolidated Current Liabilities as of
such date.
Conversion Request. A notice given by the Borrower to the Managing
Agent of the Borrower's election to convert or continue a Loan in
accordance with Section 2.5 or 3.4.2 hereof.
Copyright Notice. The Amended and Restated Memorandum of Grant of
Security Interest in Copyrights, dated as of the date hereof, as the
same may be amended from time to time hereafter, made by the Borrower in
favor of the Managing Agent, in form and substance satisfactory to the
Banks and the Managing Agent.
Corporate Overhead. For any period, that portion of the cash overhead
expenses of the Borrower and its Subsidiaries, on a consolidated basis,
for such period which are not directly allocable to the operations of
any of the Stations and other operating assets of the Borrower and its
Subsidiaries, calculated on a basis consistent with past financial
statements of the Borrower, including, without duplication, the amount
of salaries and bonuses paid to the management of the Borrower.
Corporate Restructure. The proposed corporate restructuring of the
Borrower and its Subsidiaries in accordance with the chart set forth in
Exhibit J hereto.
Corporate Restructure Closing Date. The date on which the Corporate
Restructure is consummated and each of the conditions set forth in
Sections 13 and 15 hereof are satisfied in full.
CPF Letter of Credit. That certain Letter of Credit issued by The
Toronto Dominion Bank for the account of the Borrower and the benefit of
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the New York City District Council of Carpenters Pension Fund in the
face amount of $1,086,925.
Credit Agreement. This Amended and Restated Revolving Credit and Term
Loan Agreement, including the Schedules and Exhibits hereto.
Default. See Section 16 hereof.
Distribution. The declaration or payment of any dividend (whether in
cash or otherwise) on or in respect of any shares of any class of
capital stock of any Person, other than dividends payable solely in
shares of common stock of such Person; the purchase, redemption, or
other retirement of any shares of any class of capital stock of any
Person, directly or indirectly through a Subsidiary or otherwise; the
return of capital by any Person to its shareholders as such; or any
other distribution on or in respect of any shares of any class of
capital stock of any Person.
Dollars or $. Dollars in lawful currency of the United States of
America.
Domestic Lending Office. Initially, the office of each Bank
designated as such in Schedule 1 hereto; thereafter, such other office
of such Bank, if any, located within the United States of America that
will be making or maintaining Base Rate Loans.
Drawdown Date. The date on which any Revolving Credit Loan or
Term Loan is made or is to be made, and the date on which any Revolving
Credit Loan is converted from one Type of Loan to another or continued
as a particular Type of Loan in accordance with Section 2.5 hereof, or
all or any portion of the Term Loans is converted from one Type of Loan
to another or continued as a particular Type of Loan in accordance with
Section 3.4.2 hereof.
Eligible Assignee. Any of (a) a commercial bank or finance company
organized under the laws of the United States of America, any State
thereof or the District of Columbia, and having total assets in excess
of $1,000,000,000; (b) a savings and loan association or savings bank
organized under the laws of the United States of America, any State
thereof or the District of Columbia, and having a net worth of at least
$100,000,000, calculated in accordance with generally accepted
accounting principles; (c) a commercial bank organized under the laws of
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any other country which is a member of the Organization for Economic
Cooperation and Development (the "OECD"), or a political subdivision of
any such country, and having total assets in excess of $1,000,000,000;
provided that, such bank is acting through a branch or agency located in
the country in which it is organized or another country which is also a
member of the OECD; (d) the central bank of any country which is a
member of the OECD; and (e) if, but only if, an Event of Default has
occurred and is continuing, any other bank, insurance company,
commercial finance company or other financial institution approved by
the Managing Agent, such approval not to be unreasonably withheld.
Employee Benefit Plan. Any employee benefit plan within the meaning
of Section 3(2) of ERISA maintained or contributed to by the Borrower or
any ERISA Affiliate, other than a Multiemployer Plan.
Environmental Laws. See Section 8.18(a) hereof.
ERISA. The Employee Retirement Income Security Act of 1974.
ERISA Affiliate. Any Person which is treated as a single employer
with the Borrower under Section 414 of the Code.
ERISA Reportable Event. A reportable event with respect to a
Guaranteed Pension Plan within the meaning of Section 4043 of ERISA and
the regulations promulgated thereunder as to which the requirement of
notice has not been waived.
Eurocurrency Reserve Rate. For any day with respect to a Eurodollar
Rate Loan, the maximum rate (expressed as a decimal) at which any Bank
subject thereto would be required to maintain reserves under Regulation
D of the Board of Governors of the Federal Reserve System (or any
successor or similar regulations relating to such reserve requirements)
against "Eurocurrency Liabilities" (as that term is used in Regulation
D), if such liabilities were outstanding. The Eurocurrency Reserve Rate
shall be adjusted automatically on and as of the effective date of any
change in the Eurocurrency Reserve Rate.
Eurodollar Business Day. Any day on which commercial banks are open
for international business (including dealings in Dollar deposits) in
London or such other eurodollar interbank market as may be selected by
the Managing Agent in its sole discretion acting in good faith.
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Eurodollar Lending Office. Initially, the office of each Bank
designated as such in Schedule 1 hereto; thereafter, such other office
of such Bank, if any, that shall be making or maintaining Eurodollar
Rate Loans.
Eurodollar Rate. For any Interest Period with respect to a Eurodollar
Rate Loan, the rate of interest equal to (a) the arithmetic average
(rounded upwards to the nearest 1/16 of one percent) of the rates per
annum at which the Managing Agent's Eurodollar Lending Office is offered
Dollar deposits two (2) Eurodollar Business Days prior to the beginning
of such Interest Period in the interbank eurodollar market where the
eurodollar and foreign currency and exchange operations of such
Eurodollar Lending Office are customarily conducted at or about 11:00
a.m., Boston, Massachusetts time, for delivery on the first day of such
Interest Period for the number of days comprised therein and in an
amount comparable to the amount of the Eurodollar Rate Loan to which
such Interest Period applies, divided by (b) a number equal to 1.00
minus the Eurocurrency Reserve Rate, if applicable.
Eurodollar Rate Loans. Revolving Credit Loans and all or any portion
of the Term Loans bearing interest calculated by reference to the
Eurodollar Rate.
Event of Default. See Section 16 hereof.
Existing Stations. Collectively, (a) KPWR-FM, Los Angeles,
California, (b) WQHT-FM, New York, New York, (c) WKQX-FM, Chicago,
Illinois, (d) KSHE-FM, St. Louis, Missouri, (e) WENS-FM, Indianapolis,
Indiana, (f) WRKS-FM, New York, New York, (g) WALC-FM, St. Louis,
Missouri, (h) WKKX-FM, St. Louis, Missouri, (i) WKBQ-AM, St. Louis, Missouri,
(j) WNAP-FM, Indianapolis, Indiana, (k) WIBC-AM, Indianapolis, Indiana, and
(l) any other Station acquired by the Borrower or any of its Subsidiaries after
the Closing Date pursuant to a Permitted Acquisition.
FCC. The Federal Communications Commission (or any successor agency,
commission, bureau, department or other political subdivision of the
United States of America).
FCC License. Any license, permit, certificate of compliance,
franchise, approval or authorization granted or issued by the FCC.
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Fee Letter. The Fee Letter, dated as of the date hereof, between the
Borrower and the Managing Agent.
generally accepted accounting principles. (a) When used in Section 11
hereof, whether directly or indirectly through reference to a
capitalized term used therein, means (i) principles that are consistent
with the principles promulgated or adopted by the Financial Accounting
Standards Board and its predecessors, in effect for the fiscal year
ended on the Balance Sheet Date, and (ii) to the extent consistent with
such principles, the accounting practice of the Borrower reflected in
its financial statements for the year ended on the Balance Sheet Date,
and (b) when used in general, other than as provided above, means
principles that are (i) consistent with the principles promulgated or
adopted by the Financial Accounting Standards Board and its
predecessors, as in effect from time to time and (ii) consistently
applied with past financial statements of the Borrower adopting the same
principles; provided that in each case referred to in this definition of
"generally accepted accounting principles" a certified public accountant
would, insofar as the use of such accounting principles is pertinent, be
in a position to deliver an unqualified opinion (other than a
qualification regarding changes in generally accepted accounting
principles) as to financial statements in which such principles have
been properly applied.
Guaranteed Pension Plan. Any employee pension benefit plan within the
meaning of Section 3(2) of ERISA maintained or contributed to by the
Borrower or any ERISA Affiliate the benefits of which are guaranteed on
termination in full or in part by the PBGC pursuant to Title IV of
ERISA, other than a Multiemployer Plan.
Guaranty. The Amended and Restated Guaranty, dated as of the date
hereof, as the same may be amended from time to time hereafter, made by
each of the Subsidiaries of the Borrower in favor of the Banks and the
Managing Agent, pursuant to which each such Subsidiary of the Borrower
guaranties to the Banks and the Managing Agent the irrevocable payment
and performance in full of the Obligations, in form and substance
satisfactory to the Banks and the Managing Agent.
Hazardous Substances. See Section 8.18(b) hereof.
Holding Company. A corporation which may be formed after the Closing
Date, the sole business purpose of which shall be to own directly one
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hundred percent (100%) of the equity of the Borrower and to issue
Indebtedness permitted under Section 10.1(k) hereof.
Indebtedness. All obligations, contingent and otherwise, that in
accordance with generally accepted accounting principles should be
classified upon the obligor's balance sheet as liabilities, or to which
reference should be made by footnotes thereto, including in any event
and whether or not so classified: (a) all debt and similar monetary
obligations, whether direct or indirect; (b) all liabilities secured by
any mortgage, pledge, security interest, lien, charge, or other
encumbrance existing on property owned or acquired subject thereto,
whether or not the liability secured thereby shall have been assumed;
and (c) all guarantees, endorsements and other contingent obligations
whether direct or indirect in respect of indebtedness of others,
including any obligation to supply funds to or in any manner to invest
in, directly or indirectly, the debtor, to purchase indebtedness, or to
assure the owner of indebtedness against loss, through an agreement to
purchase goods, supplies, or services for the purpose of enabling the
debtor to make payment of the indebtedness held by such owner or
otherwise, and the obligations to reimburse the issuer in respect of any
letters of credit.
Instrument of Accession. An Instrument of Accession in the form of
Exhibit I hereto.
Interest Payment Date. (a) As to any Base Rate Loan, the last day of
the calendar quarter which includes the Drawdown Date thereof and the
last day of each calendar quarter thereafter; and (b) as to any
Eurodollar Rate Loan in respect of which the Interest Period is (i) 3
months or less, the last day of such Interest Period and (ii) more than
3 months, the date that is 3 months from the first day of such Interest
Period and, in addition, the last day of such Interest Period.
Interest Period. With respect to each Eurodollar Rate Loan, (a)
initially, a period consisting of 1, 2, 3 or 6 months commencing on the
Drawdown Date of such Loan and ending on the last day of such period as
selected by the Borrower in a Loan Request; and (b) thereafter, each
period commencing on the last day of the next preceding Interest Period
applicable to such Loan and ending on the last day of one of the periods
set forth above, as selected by the Borrower in a Conversion Request;
provided that all of the foregoing provisions relating to Interest
Periods are subject to the following:
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(A) if any Interest Period with respect to a Eurodollar Rate
Loan would otherwise end on a day that is not a Eurodollar Business
Day, that Interest Period shall be extended to the next succeeding
Eurodollar Business Day unless the result of such extension would
be to carry such Interest Period into another calendar month, in
which event such Interest Period shall end on the immediately
preceding Eurodollar Business Day;
(B) if the Borrower shall fail to give notice as provided
in Section 2.5 or 3.4.2 hereof, as applicable, the Borrower shall
be deemed to have requested a conversion of the affected Eurodollar
Rate Loan to a Base Rate Loan on the last day of the then current
Interest Period with respect thereto;
(C) any Interest Period that begins on the last Eurodollar
Business Day of a calendar month (or on a day for which there is
no numerically corresponding day in the calendar month at the end
of such Interest Period) shall end on the last Eurodollar Business
Day of a calendar month; and
(D) any Interest Period relating to any Eurodollar Rate Loan
that would otherwise extend beyond the Maturity Date shall end on
the Maturity Date.
Interest Rate Protection Agreements. See Section 9.14 hereof.
Investments. All expenditures made and all liabilities incurred
(contingently or otherwise) for the acquisition of stock or Indebtedness
of, or for loans, advances, capital contributions or transfers of
property to, or in respect of any guaranties (or other commitments as
described under Indebtedness) or obligations of, any Person. In
determining the aggregate amount of Investments outstanding at any
particular time: (a) the amount of any Investment represented by a
guaranty shall be taken at not less than the principal amount of the
obligations guaranteed and still outstanding; (b) there shall be
deducted in respect of each such Investment any cash amount received as
a return of capital (but only by repurchase, redemption, retirement,
repayment, liquidating dividend or liquidating distribution); (c) there
shall not be deducted in respect of any Investment any amounts received
as earnings on such Investment, whether as dividends, interest or
otherwise; and (d) there shall not be deducted from the aggregate amount
of Investments any decrease in the value thereof.
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Letter of Credit. See Section 5.1.1 hereof.
Letter of Credit Application. See Section 5.1.1 hereof.
Letter of Credit Fee. See Section 5.6 hereof.
Letter of Credit Participation. See Section 5.1.4 hereof.
Leverage Ratio. As of any date of determination, the ratio of (a)
Total Funded Debt as at such date to (b) Consolidated EBITDA for the
period of four (4) consecutive fiscal quarters ending on such date.
License Subsidiaries. Collectively, Emmis License Corporation of New
York, Emmis FM License Corporation of St. Louis, Emmis FM License
Corporation of Chicago, KPWR License, Inc., Emmis FM License Corporation
of Indianapolis, Emmis FM Radio License Corporation of Indianapolis,
Emmis AM Radio License Corporation of Indianapolis, Emmis Radio License
Corporation of New York, Emmis 104.1 FM Radio License Corporation of St.
Louis, Emmis 106.5 FM License Corporation of St. Louis, and Emmis 1380
AM Radio License Corporation of St. Louis.
Loan Documents. Collectively, this Credit Agreement, the Notes, the
Letter of Credit Applications, the Letters of Credit, the Security
Documents, the Fee Letter, and any other documents, agreements or
instruments contemplated hereby or thereby or executed in connection
herewith or therewith.
Loan Request. See Section 2.4 hereof.
Loans. Collectively, the Revolving Credit Loans and the Term Loans.
Majority Banks. As of any date, the Banks which hold collectively at
least fifty-one percent (51%) of the Aggregate Facilities Commitment.
Managing Agent. BankBoston, N.A., in its capacity as managing agent
hereunder.
Managing Agent's Head Office. The Managing Agent's head office
located at 100 Federal Street Boston, Massachusetts 02110, or at such
other location as the Managing Agent may designate from time to time.
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Managing Agent's Special Counsel. Bingham, Dana & Gould LLP or such
other counsel as may be approved by the Managing Agent.
Material Labor Dispute. With respect to any Person, any strike, work
stoppage, material unfair labor practice claim or charge, arbitration or
other material labor dispute against or affecting such Person.
Maturity Date. February 28, 2005.
Maximum Drawing Amount. The maximum aggregate amount that the
beneficiaries may at any time draw under outstanding Letters of credit,
as such aggregate amount may be reduced from time to time pursuant to
the terms of the Letters of Credit.
Mortgaged Property. Any Real Estate which is subject to any Mortgage.
Mortgages. Collectively, the several mortgages and deeds of trust
identified on Schedule 1.1(b) hereto, as each may be amended from time
to time hereafter, from the Borrower and/or its Subsidiaries to the
Managing Agent, in each case with respect to the fee and recorded
leasehold interests of the Borrower and such Subsidiaries in the Real
Estate.
Multiemployer Plan. Any multiemployer plan within the meaning of
Section 3(37) of ERISA maintained or contributed to by the Borrower or
any ERISA Affiliate.
Net Proceeds. One hundred percent (100%) of the cash proceeds from a
Sale of any assets, less the sum of (a) customary and reasonable amounts
paid or payable in respect of brokerage fees, (b) other reasonable
closing costs, and (c) sales or other gross receipts, income, or
property transfer taxes payable in cash, in each case relating to such
sale. If the Borrower or any of its Subsidiaries receives any promissory
notes or other instruments as part of the consideration for such Sale or
if payment in cash of any portion of the consideration for such Sale is
otherwise deferred, Net Proceeds shall be deemed to include any cash
payments in respect of such notes or instruments or otherwise deferred
portion of such consideration when and to the extent received by such
Person.
Net WQCD Acquisition Amount. $160,000,000 less the sum of the Maximum
Drawing Amount under, and all Unpaid Reimbursement Obligations relating
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to, all Letters of Credit issued for the benefit of Tribune to support
the Borrower's obligations under the WQCD Acquisition Documents.
Note Record. The grid attached to a Note, or the continuation of such
grid, or any other similar record, including computer records,
maintained by any Bank with respect to any Loan referred to in such
Note.
Notes. The Term Notes and the Revolving Credit Notes.
Obligations. All indebtedness, obligations and liabilities of any of
the Borrower and its Subsidiaries to any of the Banks or, with respect to
clause (b) below, to any of their affiliates or to any other financial
institution which at the time of entering into the Interest Rate Protection
Agreement in question was either a "Bank" hereunder or an affiliate of a
Bank and the Managing Agent, individually or collectively, existing on the date
of this Credit Agreement or arising thereafter, direct or indirect, joint or
several, absolute or contingent, matured or unmatured, liquidated or
unliquidated, secured or unsecured, arising by contract, operation of
law or otherwise, arising or incurred under or with respect to (a) this
Credit Agreement or any of the other Loan Documents or in respect of any
of the Loans made or Reimbursement Obligations incurred or any other
instruments at any time evidencing any thereof, (b) the Interest Rate
Protection Agreements or (c) for purposes of the obligations secured by
the Security Documents only, the CPF Letter of Credit.
Operating Subsidiaries. collectively, Emmis FM Broadcasting
Corporation of Indianapolis, Emmis FM Broadcasting Corporation of
Chicago, Emmis FM Broadcasting Corporation of St. Louis, Emmis
Broadcasting Corporation of New York, KPWR, Inc., Emmis FM Radio
Corporation of Indianapolis, Emmis AM Radio Corporation of Indianapolis,
Emmis Holding Corporation of New York, Emmis Radio Corporation of New
York, Emmis 104.1 FM Radio Corporation of St. Louis, Emmis 106.5 FM
Broadcasting Corporation of St. Louis, Emmis 1380 AM Radio Corporation
of St. Louis, and Emmis International Corporation.
Option Agreement. The Option Agreement, dated as of May 15, 1997,
between the Borrower and Tribune, in the form delivered to the Managing
Agent prior to the Closing Date.
Outstanding. With respect to the Loans, the aggregate unpaid
principal thereof as of any date of determination.
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PBGC. The Pension Benefit Guaranty Corporation created by Section
4002 of ERISA and any successor entity or entities having similar
responsibilities.
Perfection Certificates. The Perfection Certificates as defined in
the Security Agreements.
Permitted Acquisition. Any Station Acquisition permitted under
Section 10.5(c) hereof.
Permitted Liens. Liens, security interests and other encumbrances
permitted by Section 10.2 hereof.
Person. Any individual, corporation, partnership, trust,
unincorporated association, business, or other legal entity, and any
government or any governmental agency or political subdivision thereof.
Pledge Agreements. Collectively, the Borrower Stock Pledge Agreement
and the Subsidiary Pledge Agreement.
Pro Forma Fixed Charge Coverage Ratio. With respect to any date of
determination, the ratio of (a) Consolidated EBITDA for the period of
four consecutive fiscal quarters ending on such date to (b) Pro Forma
Fixed Charges for the period of four consecutive fiscal quarters
commencing on the date following such date of determination.
Pro Forma Fixed Charges. With respect to any date of determination,
the sum of (a) Consolidated Total Interest Expense required to be paid
or accrued by the Borrower, any of its Subsidiaries or the Holding
Company during the period of four (4) consecutive fiscal quarters
commencing on the date following such date of determination, plus (b)
the sum of all principal scheduled to be paid by each such Person with
respect to Adjusted Total Funded Debt during such four (4) quarter
period, plus (c) all Capital Expenditures scheduled to be made by the
Borrower and/or its Subsidiaries during such four (4) quarter period,
plus (d) the aggregate amount of cash taxes scheduled to be paid by the
Borrower and/or its Subsidiaries during such four (4) quarter period.
For purposes of the foregoing calculation, (A) the amount of Capital
Expenditures scheduled to be made by the Borrower and its Subsidiaries
shall be deemed to equal the amount of Capital Expenditures projected to
be made during such prospective four (4) quarter period pursuant to the
Projections or any updated projections which have been approved by the
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Banks for use in this definition, (B) the amount of cash taxes scheduled
to be paid by the Borrower and its Subsidiaries during such prospective
four (4) quarter period shall be deemed to be equal to the aggregate
amount of cash taxes paid by the Borrower and its Subsidiaries during
the period of the four (4) fiscal quarters ended on such date of
determination, after excluding therefrom cash taxes paid during such
period with respect to the gain from any Sale of one or more Stations
during such period, (c) interest payable hereunder for such prospective
four (4) quarter period shall be determined based upon the Type of Loans
outstanding as of the date of determination and using the interest rate
in effect for each Type of Loan on such date, (D) the principal amount
of and the interest rate on any other Indebtedness for borrowed money
during such prospective four (4) quarter period shall be the principal
amount of and the interest rate on such Indebtedness on the date of
determination, (E) the aggregate principal amount of Loans outstanding
during each day of such prospective four (4) quarter period shall be
deemed, for purposes of calculating interest payable hereunder, to be
equal to the sum of (i) the lesser of (x) the average daily principal
amount of the Revolving Credit Loans outstanding during the fiscal
quarter ending on such date of determination and (y) the Total
Commitment in effect on the date of determination adjusted during such
period to reflect scheduled reductions in such Total Commitment during
such period plus (ii) the aggregate principal amount of the Term Loans
outstanding on the date of determination as adjusted to reflect
principal payments scheduled to be made during such period, (F) the
aggregate principal amount of Tranche A Loans scheduled to be paid
during such prospective four (4) quarter period shall be deemed to be
equal to the amount by which the average daily principal amount of the
Tranche A Loans outstanding during the fiscal quarter ending on such
date of determination exceeds the Tranche A Commitment Amount in effect
on the last day of such prospective four (4) quarter period, and (G)
should the Tranche C Conversion Date occur during such prospective four
(4) quarter period, the amount of Tranche C Loans outstanding on the
Tranche C Conversion Date shall be deemed to be the amount of the
Tranche C Loans outstanding during the fiscal quarter ending on such
date of determination.
Projections. See Section 8.4.2 hereof.
Real Estate. All real property at any time owned or leased (as lessee
or sublessee) by the Borrower or any of its Subsidiaries.
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Refinancing Obligations. The Indebtedness of the Borrower in the
aggregate principal amount of $155,300,000 under the Existing Credit
Agreement, plus all accrued and unpaid interest thereon and all
commitment and prepayment fees and other charges relating thereto.
Reimbursement Obligation. The Borrower's obligation to reimburse the
Managing Agent and the Banks for amounts drawn under any Letter of
Credit as provided in Section 5.2 hereof.
Restricted Payments. Collectively, distributions, dividends or other
payments in respect of the capital stock of the Borrower; payments in
respect of any subordinated debt (including, without limitation, any
Indebtedness permitted under Section 10.1(k) hereof); and payments of
management, consulting or similar fees to affiliates.
Revolving Credit Loans. Collectively, the Tranche A Loans and, from
the Secondary Closing Date until the Tranche C Conversion Date, the
Tranche C Loans.
Revolving Credit Notes. Collectively, the Tranche A Notes and, from
the Secondary Closing Date until the Tranche C Conversion Date, the
Tranche C Notes.
Sale. Any sale, transfer or other disposition of assets, including by
means of a simultaneous exchange of Stations.
Secondary Closing Date. The date on which (a) the participants in the
general syndication of the facilities offered under this Credit
Agreement have executed all documentation necessary to become "Banks"
hereunder and to fully syndicate each such facility, (b) the Borrower
has delivered to the Managing Agent evidence, in form and substance
satisfactory to the Managing Agent, of all necessary corporate actions
by the Borrower having been taken for the valid execution, delivery and
performance by the Borrower of the Tranche C Notes and the Tranche C
Term Notes, and (c) each of the conditions set forth in Section 13
hereof have been satisfied in full.
Security Agreements. Collectively, the Borrower Security Agreement
and the Subsidiary Security Agreement.
Security Documents. Collectively, the Guaranty, the Security
Agreements, the Mortgages, the Trademark Assignments, the Copyright
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<PAGE>
Notice, the Collateral Assignments of Contracts, the Collateral
Assignments of Leases and the Pledge Agreements.
Senior Debt. At any time of determination, Adjusted Total Funded Debt
minus the principal amount of all indebtedness which is by its terms
expressly subordinated to the Obligations of the borrower arising or
outstanding under this Credit Agreement or any of the other Loan
documents pursuant to subordination provisions satisfactory to the Banks
and the Managing Agent, including, without limitation, the principal
amount of the Indebtedness permitted under Section 10.1(k) hereof
outstanding on such date.
Senior Total Leverage Ratio. As of any date of determination, the
ratio of (a) Senior Debt as at such date to (b) Consolidated EBITDA for
the period of four (4) consecutive fiscal quarters ending on such date.
Station. All of the properties, assets and operating rights constituting
a system for transmitting radio signals from a transmitter licensed by the
FCC, together with any subsystem which is ancillary to such aystem, and
including each of the Existing Stations.
Station Acquisition. Any transaction (including through a
simultaneous exchange of Stations) by which the Borrower or any of its
Subsidiaries acquires any Station or the control of a majority of the
equity interest in any Person whose primary business is the operation of
one or more Stations, as evidenced by the transfer to the Borrower of
title in the assets so acquired and the receipt of any FCC approval
required in connection with the transfer of such assets and the
operation of such Station or Stations thereby acquired, whether directly
or indirectly through the acquisition of an equity interest in any
Person.
Stations Cash Flow. See Section 10.5(e) hereof.
Subsidiary. Any corporation, association, trust, or other business
entity of which the designated parent shall at any time own directly or
indirectly through a Subsidiary or Subsidiaries at least a majority (by
number of votes) of the outstanding Voting Stock.
Subsidiary Pledge Agreement. The Amended and Restated Pledge
Agreement, dated as of the date hereof, as the same may be amended from
time to time hereafter, among certain of the Subsidiaries of the
Borrower, on the one hand, and the Managing Agent, on the other hand, in
form and substance satisfactory to the Banks and the Managing Agent.
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<PAGE>
Subsidiary Security Agreement. The Amended and Restated Security
Agreement, dated as of the date hereof, as the same may be amended from
time to time hereafter, among each of the Subsidiaries of the Borrower,
on the one hand, and the Managing Agent, on the other hand, in form and
substance satisfactory to the Banks and the Managing Agent.
Super Majority Banks. As of any date, the Banks which hold
collectively at least seventy percent (70%) of the Aggregate Facilities
Commitment.
Term Loans. Collectively, the Tranche B Term Loan and, from and after
the Tranche C Conversion Date, the Tranche C Term Loan.
Term Notes. Collectively, the Tranche B Term Notes and, from and
after the Tranche C Conversion Date, the Tranche C Term Notes.
Title Insurance Company. Collectively, Ticor Title Insurance Company
with respect to the Mortgaged Properties in Indiana; Lawyers Title
Insurance Corporation with respect to the Mortgaged Property in
California; and Commonwealth Land Title Insurance Company with respect
to the Mortgaged Properties in Missouri and Illinois.
Title Policy. In relation to each Mortgaged Property, an ALTA
standard form title insurance policy issued by the Title Insurance
Company (with such reinsurance or co-insurance as the Managing Agent may
require, any such reinsurance to be with direct access endorsements) in
such amount as may be determined by the Managing Agent insuring the
priority of the Mortgage of such Mortgaged Property and that the
Borrower or one of its Subsidiaries holds marketable fee simple or
leasehold title (as applicable) to such Mortgaged Property, subject only
to the encumbrances permitted by such Mortgage and which shall not
contain exceptions for mechanics liens, persons in occupancy or matters
which would be shown by a survey (except as may be permitted by such
Mortgage), shall not insure over any matter except to the extent that
any such affirmative insurance is acceptable to the Managing Agent in
its sole discretion, and shall contain such endorsements and affirmative
insurance as the Managing Agent in its discretion may require, including
but not limited to (a) comprehensive endorsement, (b) variable rate of
interest endorsement, (c) usury endorsement, (d) revolving credit
endorsement, (e) tie-in endorsement, (f) doing business endorsement and
(g) ALTA form 3.1 zoning endorsement.
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Total Commitment. The sum of the Tranche A Commitment Amount plus,
from the Secondary Closing Date until the Tranche C Conversion Date, the
Tranche C Commitment Amount.
Total Funded Debt. At any time of determination, the sum of (a) the
outstanding principal amount of the Loans and other Obligations due and
payable, plus (b) the outstanding principal amount of any other
Indebtedness for borrowed money owed by the Borrower, any of its
Subsidiaries and/or the Holding Company on a consolidated basis
(including, without limitation, the outstanding principal amount of all
Indebtedness permitted under Section 10.1(k) hereof), plus (c) to the
extent not otherwise included, all obligations (contingent or otherwise)
relating to letters of credit issued for the account of the Borrower
and/or its Subsidiaries, plus (d) to the extent not otherwise included,
all liabilities in respect of Capitalized Leases for the Borrower and/or
its Subsidiaries on a consolidated basis.
Total Leverage Ratio. As of any date of determination, the ratio of
(a) Adjusted Total Funded Debt as at such date to (b) Consolidated
EBITDA for the period of four consecutive fiscal quarters ending on such
date.
Trademark Assignments. Collectively, (a) the Amended and Restated
Trademark Collateral Security and Pledge Agreement, dated as of the date
hereof, between the Borrower and the Managing Agent, and (b) the Amended
and Restated Trademark Collateral Security and Pledge Agreement, dated
as of the date hereof, among certain Subsidiaries of the Borrower and
the Managing Agent, each in form and substance satisfactory to the Banks
and the Managing Agent.
Trades. Those assets and liabilities of the Borrower and any of its
Subsidiaries which do not represent the right to receive payment in cash
or the obligation to make payment in cash and which arise pursuant to
so-called trade or barter transactions.
Tranche. Collectively, the Tranche A Loans if any are outstanding,
the Tranche A Commitment Amount, the Tranche B Loans, the Tranche C
Commitment Amount and the Tranche C Loans (or Tranche C Term Loans as
the case may be) if any are outstanding.
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Tranche A Loans. The Revolving Credit Loans made or to be made by the
Banks to the Borrower pursuant to Section 2.1 hereof.
Tranche A Notes. See Section 2.1.4 hereof.
Tranche A Commitment Amount. $250,000,000, as such amount is (a)
reduced pursuant to Sections 2.1.3, 4.3(c) and 4.3(d) hereof or (b)
increased pursuant to Section 17 hereof; provided that, the Tranche A
Commitment Amount shall be permanently reduced by an amount equal to the
Net WQCD Acquisition Amount on (x) the earlier to occur of (A) the date
on which the Option Agreement is terminated for any reason, and (B) July
15, 2000 if the option of Tribune to sell, or of the Borrower to buy,
WQCD-FM has not been exercised, or extended for an additional one year
period, in accordance with the terms of the Option Agreement, on or
prior to such date, (y) July 15, 2001 if the option of Tribune to sell,
or of the Borrower to buy, WQCD-FM has been extended for an additional
one year period, but not exercised on or prior to such date, or (z) the
first anniversary of the date on which Tribune or the Borrower exercised
its respective option under the Option Agreement if the WQCD Acquisition
has not been consummated by such date.
Tranche B Term Loan. The term loan made or to be made by the Banks to
the Borrower on the Closing Date in the aggregate principal amount of
$100,000,000 pursuant to Section 3.1 hereof.
Tranche B Term Notes. See Section 3.1.2 hereof.
Tranche C Commitment Amount. Prior to the Secondary Closing Date,
$0, and thereafter, $150,000,000, as such amount is reduced pursuant to
Sections 2.2.3, 4.3(c) and 4.3(d) hereof.
Tranche C Conversion Date. May 31, 2000.
Tranche C Loans. The revolving credit loans made or to be made by
the Banks to the Borrower after the Secondary Closing Date and prior to
the Tranche C Conversion Date, pursuant to Section 2.2 hereof.
Tranche C Notes. See Section 2.2.4 hereof.
Tranche C Term Loan. The Term Loan made or to be made by the Banks
to the Borrower after the Tranche C Conversion Date, pursuant to Section
3.2.1 hereof.
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Tranche C Term Notes. See Section 3.2.2 hereof.
Tribune. Tribune New York Radio, Inc., a Delaware corporation, or
its assignee or successor.
Type. As to any Revolving Credit Loan or all or any portion of the
Term Loans, its nature as a Base Rate Loan or a Eurodollar Rate Loan.
Uniform Customs. With respect to any Letter of Credit, the Uniform
Customs and Practice for Documentary Credits (1993 Revision),
International Chamber of Commerce Publication No. 500, or any successor
version thereto adopted by the Managing Agent in the ordinary course of
its business as a letter of credit issuer and in effect at the time of
issuance of such Letter of Credit.
Unpaid Reimbursement Obligation. Any Reimbursement Obligation for
which the Borrower does not reimburse the Managing Agent and the Banks
on the date specified in, and in accordance with, Section 5.2 hereof.
Voting Stock. Stock or similar interests, of any class or classes
(however designated), the holders of which are at the time entitled, as
such holders, to vote for the election of a majority of the directors
(or persons performing similar functions) of the corporation,
association, trust or other business entity involved, whether or not the
right so to vote exists by reason of the happening of a contingency.
WQCD Acquisition. The acquisition by the Borrower of substantially
all of the assets of WQCD-FM pursuant to the Option Agreement, for a
purchase price not to exceed $160,000,000.
WQCD Acquisition Documents. Collectively, (a) the Option
Agreement, together with all schedules, exhibits and annexes thereto,
(b) the WQCD Time Brokerage Agreement, together with all schedules,
exhibits and annexes thereto, and (c) all other agreements and documents
entered into or delivered pursuant to or in connection with the WQCD
Acquisition, in form and substance satisfactory to the Managing Agent.
WQCD Closing Date. The date on which the WQCD Acquisition is
consummated and the conditions set forth in Section 13 hereof and the
conditions set forth in Section 14 hereof applicable thereto, are
satisfied in full.
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WQCD-FM. Radio Station WQCD-FM, New York, New York.
WQCD Time Brokerage Agreement. The Time Brokerage Agreement, dated as
of May 15, 1997, between the Borrower and Tribune, in the form delivered
to the Managing Agent prior to the Closing Date.
WTLC Acquisition. The acquisition by the borrower of substantially
all of the assets of WTLC-FM, Indianapolis, Indiana and WTLC-AM,
Indianapolis, Indiana.
WTLC Acquisition Documents. Collectively, all agreements and
documents entered into or delivered pursuant to or in connection with
the WTLC Acquisition, in form and substance satisfactory to the Managing
Agent.
WTLC Closing Date. The date on which the WTLC Acquisition is
consummated and the conditions set forth in Section 13 hereof and the
conditions set forth in Section 14 hereof applicable thereto, are
satisfied in full.
WTLC-AM. Radio Station WTLC-AM, Indianapolis, Indiana.
WTLC-FM. Radio Station WTLC-FM, Indianapolis, Indiana.
1.2. RULES OF INTERPRETATION.
(a) A reference to any document or agreement shall include
such document or agreement as amended, modified or supplemented
from time to time in accordance with its terms and the terms of
this Credit Agreement.
(b) The singular includes the plural and the plural includes
the singular.
(c) A reference to any law includes any amendment or
modification to such law.
(d) A reference to any Person includes its permitted
successors and permitted assigns.
(e) Accounting terms not otherwise defined herein have the
meanings assigned to them by generally accepted accounting
principles applied on a consistent basis by the accounting entity
to which they refer.
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(f) The words "include", "includes" and "including" are not
limiting.
(g) All terms not specifically defined herein or by
generally accepted accounting principles, which terms are defined
in the Uniform Commercial Code as in effect in Massachusetts, have
the meanings assigned to them therein.
(h) Reference to a particular "Section " refers to that
section of this Credit Agreement unless otherwise indicated.
(i) The words "herein", "hereof", "hereunder" and words of
like import shall refer to this Credit Agreement as a whole and not
to any particular section or subdivision of this Credit Agreement.
2. THE REVOLVING CREDIT FACILITIES.
2.1. TRANCHE A.
2.1.1. COMMITMENT TO LEND. Subject to the terms and
conditions set forth in this Credit Agreement, each of the Banks
severally agrees to lend to the Borrower and the Borrower may
borrow, repay, and reborrow from time to time between the Closing
Date and the Maturity Date upon notice by the Borrower to the
Managing Agent given in accordance with Section 2.4 hereof, such
sums as are requested by the Borrower up to a maximum aggregate
principal amount outstanding (after giving effect to all amounts
requested) at any one time equal to the Tranche A Commitment Amount
minus the sum of (a) the Maximum Drawing Amount plus (b) all Unpaid
Reimbursement Obligations plus (c) prior to the WQCD Closing Date,
the Net WQCD Acquisition amount; provided that, with respect to
each Bank, the sum of the outstanding amount of the Tranche A Loans
(after giving effect to all amounts requested) made by such Bank
plus such Bank's Commitment Percentage of the sum of the Maximum
Drawing Amount and all unpaid reimbursement Obligations shall not
at any time exceed such Bank's Commitment Percentage of the Tranche
A Commitment Amount. The Tranche A Loans shall be made by each
Bank pro rata in accordance with each Bank's applicable Commitment
Percentage. Each request for a Tranche A Loan hereunder shall
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constitute a representation and warranty by the Borrower that the
conditions set forth in Sections 12 and 13, in the case of the
initial Tranche A Loans to be made on the Closing Date, and Section
13, in the case of all other Tranche A Loans, have been satisfied
on the date of such request.
2.1.2. COMMITMENT FEE. The Borrower agrees to pay to the
Managing Agent for the pro rata accounts of the Banks in accordance
with their respective Commitment Percentages of the Tranche A
Commitment Amount a commitment fee calculated at the rate of (a)
at any time when the Leverage Ratio determined as at the last day of
the period of four (4)
consecutive fiscal quarters most recently ended, equals or exceeds
5.00:1.00, 0.375% per annum, and (b) at any time when the Leverage
Ratio determined as at the last day of the period of four (4) consecutive
fiscal quarters most
recently ended, is less than 5.00:1.00, 0.25% per annum, on the
average daily amount during each calendar quarter or portion
thereof from the Closing Date to the Maturity Date by which the
Tranche A Commitment Amount minus the sum of the Maximum Drawing
Amount and all Unpaid Reimbursement Obligations, exceeds the amount
of Tranche A Loans outstanding during such calendar quarter. The
commitment fee shall be payable quarterly in arrears on the last
day of each calendar quarter, commencing on the first such date
following the date hereof, with a final payment on the Maturity
Date or any earlier date on which the Commitments shall terminate.
2.1.3. REDUCTION OF TRANCHE A COMMITMENT AMOUNT.
(a) On each of the Reduction Dates set forth below, the
Tranche A Commitment Amount shall be reduced by the amount equal
to the product of the Reduction Percentage set forth below opposite
such date multiplied by the amount equal to (i) the Tranche A
Commitment Amount as in effect on May 31, 2000, minus (ii) to the
extent that the Tranche A Commitment Amount has been permanently
reduced on or prior to such Reduction Date by the Net WQCD
Acquisition Amount in accordance with the terms set forth in the
definition of "Tranche A Commitment Amount" in Section 1.1 above,
the Net WQCD Acquisition Amount, with a final payment on the
Maturity Date in an amount equal to the unpaid balance of
(including principal of, interest on and other amounts payable in
respect of) the Tranche A Loan:
<TABLE>
<CAPTION>
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<PAGE>
Reduction Date Reduction Percentage
<S> <C>
May 31, 2000 3.75%
August 31, 2000 3.75%
November 30, 2000 3.75%
February 28, 2001 3.75%
May 31, 2001 5.00%
August 31, 2001 5.00%
November 30, 2001 5.00%
February 28, 2002 5.00%
May 31, 2002 5.00%
August 31, 2002 5.00%
November 30, 2002 5.00%
February 28, 2003 5.00%
May 31, 2003 5.00%
August 31, 2003 5.00%
November 30, 2003 5.00%
February 29, 2004 5.00%
May 31, 2004 6.25%
August 31, 2004 6.25%
November 30, 2004 6.25%
February 28, 2005 6.25%
</TABLE>
Each payment required to be made by the Borrower pursuant to this
Section 2.1.3 shall be allocated among the Banks pro rata in
accordance with each Bank's Commitment Percentage of the Tranche
A Commitment Amount.
(b) The Borrower shall have the right at any time and from
time to time upon five (5) Business Days' prior written notice to
the Managing Agent to reduce by $500,000 or an integral multiple
thereof or terminate entirely the unborrowed portion of the Tranche
A Commitment Amount, whereupon the Tranche A Commitment Amount
shall be reduced pro rata among the Banks in accordance with their
respective Commitment Percentages of the amount specified in such
notice or, as the case may be, terminated. Promptly after
receiving any notice of the Borrower delivered pursuant to this
Section 2.1.3, the Managing Agent will notify the Banks of the
substance thereof. Upon the effective date of any such reduction
or termination, the Borrower shall pay to the Managing Agent for
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the respective accounts of the Banks the full amount of any
commitment fee then accrued on the amount of the reduction. No
reduction of the Tranche A Commitment Amount may be reinstated.
2.1.4. THE TRANCHE A NOTES. The Tranche A Loans shall be
evidenced by separate promissory notes of the Borrower in
substantially the form of Exhibit A hereto (each a "Tranche A
Note"), each dated as of the Closing Date and completed with
appropriate insertions. One Tranche A Note shall be payable to the
order of each Bank in a principal amount equal to such Bank's
Commitment Percentage of the Tranche A Commitment Amount or, if
less, the outstanding amount of all Tranche A Loans made by such
Bank, plus interest accrued thereon, as set forth below. The
Borrower irrevocably authorizes each Bank to make or cause to be
made, at or about the time of the Drawdown Date of any Tranche A
Loan or at the time of receipt of any payment of principal on such
Bank's Tranche A Note, an appropriate notation on such Bank's Note
Record reflecting the making of such Tranche A Loan or (as the case
may be) the receipt of such payment. The outstanding amount of the
Tranche A Loans set forth on such Bank's Note Record shall be prima
facie evidence of the principal amount thereof owing and unpaid to
such Bank, but the failure to record, or any error in so recording,
any such amount on such Bank's Note Record shall not limit or
otherwise affect the obligations of the Borrower hereunder or under
any Tranche A Note to make payments of principal of or interest on
any Tranche A Note when due.
2.2. TRANCHE C.
2.2.1. COMMITMENT TO LEND. Subject to the terms and
conditions set forth in this Credit Agreement, each of the Banks
severally agrees to lend to the Borrower and the Borrower may
borrow, repay, and reborrow from time to time after the Secondary
Closing Date and until the earlier of the Tranche C Conversion Date
and, in the event that the Borrower has not borrowed any Tranche
C Loans prior to such date, May 31, 1999, upon notice by the
Borrower to the Managing Agent given in accordance with Section 2.4
hereof, such sums as are requested by the Borrower up to a maximum
aggregate principal amount outstanding (after giving effect to all
amounts requested) at any one time equal to the Tranche C
Commitment Amount; provided that, with respect to each Bank, the
sum of the outstanding amount of the Tranche C Loans (after giving
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<PAGE>
effect to all amounts requested) made by such Bank shall not at any
time exceed such Bank's Commitment Percentage of the Tranche C
Commitment Amount. The Tranche C Loans shall be made by each Bank
pro rata in accordance with each Bank's applicable Commitment
Percentage of the Tranche C Commitment Amount. Each request for
a Tranche C Loan hereunder shall constitute a representation and
warranty by the Borrower that the conditions set forth in Section
13 hereof have been satisfied on the date of such request.
2.2.2. COMMITMENT FEE. The Borrower agrees to pay to the
Managing Agent for the accounts of the Banks in accordance with
their respective Commitment Percentages of the Tranche C Commitment
Amount a commitment fee on the average daily amount during each
calendar quarter or portion thereof from the Secondary Closing Date
until the Tranche C Conversion Date by which the Tranche C
Commitment Amount exceeds the amount of Tranche C Loans outstanding
during such calendar quarter or portion thereof, calculated at the
rate of (a) at any time prior to the date on which the Borrower
first borrows any Tranche C Loans (i) when the Leverage Ratio determined
as at the last day of the period of four (4) consecutive fiscal quarters
most recently
ended, equals or exceeds 5.00:1.00, 0.30% per annum, and (ii) when
the Leverage Ratio determined as at the last day of the period of four
(4) consecutive fiscal
quarters most recently ended, is less than 5.00:1.00, 0.20% per
annum, and (b) at any time after the date on which the Borrower
first borrows any Tranche C Loans (i) when the Leverage Ratio determined
as at the last day of
the period of four (4) consecutive fiscal quarters most recently
ended, equals or exceeds 5.00:1.00, 0.375% per annum, and (ii) when
the Leverage Ratio for the period of four (4) consecutive fiscal
quarters most recently ended is less than 5.00:1.00, 0.25% per
annum. The commitment fee shall be payable quarterly in arrears
on the last date of each calendar quarter, commencing on the first
such date following the Secondary Closing Date, with a final
payment on the earlier of the Tranche C Conversion Date, or in the
event that the Borrower does not borrow any Tranche C Loans prior
to May 31, 1999, May 31, 1999 and any earlier date on which the
Tranche C Commitment Amount shall terminate.
2.2.3. REDUCTION OF TRANCHE C COMMITMENT. The Borrower
shall have the right at any time and from time to time upon five
(5) Business Days' prior written notice to the Managing Agent to
reduce by $500,000 or an integral multiple thereof or terminate
<PAGE>
<PAGE>
entirely the unborrowed portion of the Tranche C Commitment Amount,
whereupon the Tranche C Commitment Amount shall be reduced pro rata
among the Banks in accordance with their respective Commitment
Percentages of the amount specified in such notice or, as the case
may be, terminated. Promptly after receiving any notice of the
Borrower delivered pursuant to this Section 2.2.3, the Managing
Agent will notify the Banks of the substance thereof. Upon the
effective date of any such reduction or termination, the Borrower
shall pay to the Managing Agent for the respective accounts of the
Banks the full amount of any commitment fee then accrued on the
amount of the reduction. No reduction of the Tranche C Commitment
Amount may be reinstated.
2.2.4. THE TRANCHE C NOTES. The Tranche C Loans shall be
evidenced by separate promissory notes of the Borrower in
substantially the form of Exhibit B-1 hereto (each a "Tranche C
Note"), each dated as of the Secondary Closing Date and completed
with appropriate insertions. One Tranche C Note shall be payable
to the order of each Bank in a principal amount equal to such
Bank's Commitment Percentage of the Tranche C Commitment Amount or,
if less, the outstanding amount of all Tranche C Loans made by such
Bank, plus interest accrued thereon, as set forth below. The
Borrower irrevocably authorizes each Bank to make or cause to be
made, at or about the time of the Drawdown Date of any Tranche C
Loan or at the time of receipt of any payment of principal on such
Bank's Tranche C Note, an appropriate notation on such Bank's Note
Record reflecting the making of such Tranche C Loan or (as the case
may be) the receipt of such payment. The outstanding amount of the
Tranche C Loans set forth on such Bank's Note Record shall be prima
facie evidence of the principal amount thereof owing and unpaid to
such Bank, but the failure to record, or any error in so recording,
any such amount on such Bank's Note Record shall not limit or
otherwise affect the obligations of the Borrower hereunder or under
any Tranche C Note to make payments of principal of or interest on
any Tranche C Note when due.
2.3. INTEREST ON REVOLVING CREDIT LOANS. Except as otherwise
provided in Section 6.10 hereof.
(a) The unpaid principal balance of each Base Rate Loan
shall bear interest at the Base Rate plus the Applicable Margin.
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(b) The unpaid principal balance of each Eurodollar Rate
Loan shall bear interest for the period commencing with the
Drawdown Date thereof and ending on the last day of the Interest
Period with respect thereto at the Eurodollar Rate determined for
such Interest Period plus the Applicable Margin.
(c) The Borrower promises to pay interest on each Loan in
arrears on each Interest Payment Date with respect thereto.
2.4. REQUESTS FOR REVOLVING CREDIT LOANS. The Borrower shall give to
the Managing Agent written notice in the form of Exhibit C hereto (or
telephonic notice confirmed in a writing in the form of Exhibit C
hereto) of each Revolving Credit Loan requested hereunder (a "Loan
Request") no less than (a) one (1) Business Day prior to the proposed
Drawdown Date of any Base Rate Loan and (b) three (3) Eurodollar
Business Days prior to the proposed Drawdown Date of any Eurodollar Rate
Loan. Each such notice shall specify (i) the principal amount of the
Revolving Credit Loan requested, (ii) the proposed Drawdown Date of such
Revolving Credit Loan, (iii) the Type of such Revolving Credit Loan,
(iv) if such Revolving Credit Loan is a Eurodollar Rate Loan, the
Interest Period therefor, and (v) whether the Revolving Credit Loan
requested shall be a Tranche A Loan or a Tranche C Loans. Promptly upon
receipt of any such notice, the Managing Agent shall notify each of the
Banks thereof. Each such notice shall be irrevocable and binding on the
Borrower and shall obligate the Borrower to accept the Revolving Credit
Loan requested from the Banks on the proposed Drawdown Date. Each Loan
Request shall be in a minimum aggregate amount of (a) in the case of
Base Rate Loans, $500,000 or in integral multiples of $100,000 in excess
thereof and (b) in the case of Eurodollar Rate Loans, $1,000,000 or in
integral multiples of $100,000 in excess thereof; provided, that the
number of Eurodollar Rate Loans outstanding at any time shall not exceed
ten.
2.5. CONVERSION OPTIONS.
2.5.1. CONVERSION TO DIFFERENT TYPE OF REVOLVING CREDIT
LOAN. The Borrower may elect from time to time to convert any
outstanding Revolving Credit Loan to a Revolving Credit Loan of
another Type, provided that (a) with respect to any such conversion
of a Eurodollar Rate Loan into a Base Rate Loan, such conversion
shall only be made on the last day of the Interest Period with
respect thereto; (b) with respect to any such conversion of a Base
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Rate Loan to a Eurodollar Rate Loan, the Borrower shall give the
Managing Agent at least three (3) Eurodollar Business Days' prior
written notice of such election and (c) no Loan may be converted
into a Eurodollar Rate Loan when any Default or Event of Default
has occurred and is continuing. On the date on which such
conversion is being made each Bank shall take such action as is
necessary to transfer its Commitment Percentage of such Revolving
Credit Loans to its Domestic Lending Office or its Eurodollar
Lending Office, as the case may be. All or any part of outstanding
Revolving Credit Loans of any Type may be converted as provided
herein; provided that partial conversions shall be in a minimum
aggregate principal amount of (a) in the case of Base Rate Loans,
$500,000 or in integral multiples of $100,000 in excess thereof and
(b) in the case of Eurodollar Rate Loans, $1,000,000 or in integral
multiples of $100,000 in excess thereof. Each Conversion Request
relating to the conversion of a Base Rate Loan to a Eurodollar Rate
Loan shall be irrevocable by the Borrower.
2.5.2. CONTINUATION OF TYPE OF REVOLVING CREDIT LOAN. Any
Revolving Credit Loans of any Type may be continued as such upon
the expiration of an Interest Period with respect thereto by
compliance by the Borrower with the notice provisions contained in
Section 2.5.1; provided that no Eurodollar Rate Loan may be
continued as such when any Default or Event of Default has occurred
and is continuing, but shall be automatically converted to a Base
Rate Loan on the last day of the first Interest Period relating
thereto ending during the continuance of such Default or Event of
Default of which the officers of the Managing Agent active upon the
Borrower's account have actual knowledge. In the event that the
Borrower fails to provide any such notice with respect to the
continuation of any Eurodollar Rate Loan as such, then such
Eurodollar Rate Loan shall be automatically converted to a Base
Rate Loan on the last day of the then current Interest Period
related thereto. The Managing Agent shall notify the Banks promptly
when any such automatic conversion contemplated by this Section
2.5.2 hereof is scheduled to occur.
2.5.3. EURODOLLAR RATE LOANS. Any conversion to or from
Eurodollar Rate Loans shall be in such amounts and be made pursuant
to such elections so that, after giving effect thereto, (a) the
aggregate principal amount of all Eurodollar Rate Loans having the
same Interest Period shall not be less than $1,000,000 or an
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<PAGE>
integral multiple of $100,000 in excess thereof and (b) the number
of Eurodollar Rate Loans outstanding at any time shall not exceed
ten.
2.6. FUNDS FOR REVOLVING CREDIT LOANS.
2.6.1. FUNDING PROCEDURES. Not later than 12 o'clock p.m.
(Boston, Massachusetts time) on the proposed Drawdown Date of any
Revolving Credit Loans, each of the Banks will make available to
the Managing Agent, at its Head Office, in immediately available
funds, the amount of such Bank's applicable Commitment Percentage
of the amount of the requested Revolving Credit Loans. Upon
receipt from each Bank of such amount, and upon receipt of the
documents required by Sections 12 and 13 hereof and the
satisfaction of the other conditions set forth therein, to the
extent applicable, the Managing Agent will make available to the
Borrower the aggregate amount of such Revolving Credit Loans made
available to the Managing Agent by the Banks, subject to the
provisions of Section 2.6.2 below. The failure or refusal of any
Bank to make available to the Managing Agent at the aforesaid time
and place on any Drawdown Date the amount of its applicable
Commitment Percentage of the requested Revolving Credit Loans shall
not relieve any other Bank from its several obligation hereunder
to make available to the Managing Agent the amount of such other
Bank's applicable Commitment Percentage of any requested Revolving
Credit Loans.
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<PAGE>
2.6.2. ADVANCES BY MANAGING AGENT. The Managing Agent may,
unless notified to the contrary by any Bank prior to a Drawdown
Date, assume that such Bank has made available to the Managing
Agent on such Drawdown Date the amount of such Bank's Commitment
Percentage of the Revolving Credit Loans to be made on such
Drawdown Date, and the Managing Agent may (but it shall not be
required to), in reliance upon such assumption, make available to
the Borrower a corresponding amount. If any Bank makes available
to the Managing Agent such amount on a date after such Drawdown
Date, such Bank shall pay to the Managing Agent on demand an amount
equal to the product of (a) the average computed for the period
referred to in clause (c) below of the weighted average interest
rate paid by the Managing Agent for federal funds acquired by the
Managing Agent during each day included in such period, times (b)
the amount of such Bank's Commitment Percentage of such Revolving
Credit Loans, times (c) a fraction, the numerator of which is the
number of days that elapse from and including such Drawdown Date
to the date on which the amount of such Bank's Commitment
Percentage of such Revolving Credit Loans shall become immediately
available to the Managing Agent, and the denominator of which is
365. A statement of the Managing Agent submitted to such Bank with
respect to any amounts owing under this paragraph shall be prima
facie evidence of the amount due and owing to the Managing Agent
by such Bank. If the amount of such Bank's Commitment Percentage
of such Revolving Credit Loans is not made available to the
Managing Agent by such Bank within three (3) Business Days
following such Drawdown Date, the Managing Agent shall be entitled
to recover such amount from the Borrower on demand, with interest
thereon at the rate per annum applicable to the Revolving Credit
Loans made on such Drawdown Date.
3. THE TERM LOANS.
3.1. TRANCHE B TERM LOAN.
3.1.1. TRANCHE B TERM LOAN. On the Closing Date, subject to
the terms and conditions set forth in this Credit Agreement, each
Bank agrees to lend to the Borrower the amount of its Commitment
Percentage of the Tranche B Term Loan.
3.1.2. THE TRANCHE B TERM NOTES. The Tranche B Term Loan
shall be evidenced by separate promissory notes of the Borrower in
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substantially the form of Exhibit D hereto (each a "Tranche B Term
Note"), each dated the Closing Date and completed with appropriate
insertions. One Tranche B Term Note shall be payable to the order
of each Bank in a principal amount equal to such Bank's Commitment
Percentage of the Tranche B Term Loan and representing the
obligation of the Borrower to pay to such Bank such principal
amount or, if less, the outstanding amount of such Bank's
Commitment Percentage of the Tranche B Term Loan, plus interest
accrued thereon, as set forth below. The Borrower irrevocably
authorizes each Bank to make or cause to be made a notation on such
Bank's Note Record reflecting the original principal amount of such
Bank's Commitment Percentage of the Tranche B Term Loan and, at or
about the time of such Bank's receipt of any principal payment on
such Bank's Tranche B Term Note, an appropriate notation on such
Bank's Note Record reflecting such payment. The aggregate unpaid
amount set forth on such Bank's Note Record shall be prima facie
evidence of the principal amount thereof owing and unpaid to such
Bank, but the failure to record, or any error in so recording, any
such amount on such Bank's Note Record shall not affect the
obligations of the Borrower hereunder or under any Tranche B Term
Note to make payments of principal of and interest on any Tranche
B Term Note when due.
3.2. TRANCHE C TERM LOAN.
3.2.1 TRANCHE C TERM LOAN. Subject to the terms and
conditions set forth in this Credit Agreement, on the Tranche C
Conversion Date, upon the execution and delivery of the Tranche C
Term Notes (as defined in Section 3.2.2 below) to the Banks, all
outstanding Tranche C Loans shall automatically convert into a term
loan (the "Tranche C Term Loan") in the amount of the Tranche C
Loans then outstanding. The Borrower shall pay to the Managing
Agent on the Tranche C Conversion Date any commitment fees accrued
to date and payable with respect to the Tranche C Commitment
Amount. all interest accrued to such date on the Tranche C Loans
shall be paid to the Managing Agent for the account of the Banks
as provided in Section 2.3(c) hereof on the dates set forth
therein.
3.2.2 THE TRANCHE C TERM NOTES. The Tranche C Term Loan
shall be evidenced by separate promissory notes of the Borrower in
substantially the form of Exhibit B-2 hereto (each a "Tranche C
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<PAGE>
Term Note"), each dated the Tranche C Conversion Date and completed
with appropriate insertions. One Tranche C Term Note shall be
payable to the order of each Bank in a principal amount equal to
such Bank's Commitment Percentage of the Tranche C Term Loan and
representing the obligation of the Borrower to pay to such Bank
such principal amount or, if less, the outstanding amount of such
Bank's Commitment Percentage of the Tranche C Term Loan, plus
interest accrued thereon, as set forth below. The Borrower
irrevocably authorizes each Bank to make or cause to be made a
notation on such Bank's Note Record reflecting the original
principal amount of such Bank's Commitment Percentage of the
Tranche C Term Loan and, at or about the time of such Bank's
receipt of any principal payment on such Bank's Tranche C Term
Note, an appropriate notation on such Bank's Note Record reflecting
such payment. The aggregate unpaid amount set forth on such Bank's
Note Record shall be prima facie evidence of the principal amount
thereof owing and unpaid to such Bank, but the failure to record,
or any error in so recording, any such amount on such Bank's Note
Record shall not affect the obligations of the Borrower hereunder
or under any Tranche C Term Note to make payments of principal of
and interest on any Tranche C Term Note when due. Each Bank,
within five (5) Business Days after the receipt of a Tranche C Term
Note, shall deliver the Tranche C Note currently held by it marked
"substituted".
3.3. MANDATORY PAYMENTS.
3.3.1. SCHEDULE OF INSTALLMENT PAYMENTS OF PRINCIPAL OF
TRANCHE B TERM LOAN. The Borrower promises to pay to the Managing
Agent for the account of the Banks the principal amount of the
Tranche B Term Loan in twenty (20) consecutive installments, due
and payable in arrears on the last day of each fiscal quarter of
each fiscal year in the amounts set forth in the table below,
commencing on May 31, 2000, with a final payment on the Maturity
Date in an amount equal to the unpaid balance of (including
principal of, interest on and other amounts payable in respect of)
the Tranche B Term Loan.
<TABLE>
<CAPTION>
Year Ended Quarterly Payment Aggregate Annual Payment
<PAGE>
<PAGE>
<S> <C> <C>
February 28, 2001 $3,750,000 $ 15,000,000
February 28, 2002 $5,000,000 $ 20,000,000
February 28, 2003 $5,000,000 $ 20,000,000
February 29, 2004 $5,000,000 $ 20,000,000
February 28, 2005 $6,250,000 $ 25,000,000
TOTAL $100,000,000
</TABLE>
3.3.2. SCHEDULE OF INSTALLMENT PAYMENTS OF PRINCIPAL OF
TRANCHE C TERM LOAN. On each of the Reduction Dates set forth
below, the borrower shall permanently reduce the principal amount
of the Tranche C Term Loan by the amount equal to the product of
the Reduction Percentage set forth below opposite such date
multiplied by the amount of Tranche C Loans outstanding on the
Tranche C Conversion Date, with a final payment on the Maturity
Date in an amount equal to the unpaid balance of (including
principal of, interest on and other amounts payable in respect of)
the Tranche C Term Loan:
<TABLE>
<CAPTION>
Reduction Date Reduction Percentage
<S> <C>
May 31, 2000 2.50%
August 31, 2000 2.50%
November 30, 2000 2.50%
February 28, 2001 2.50%
May 31, 2001 3.75%
August 31, 2001 3.75%
November 30, 2001 3.75%
February 28, 2002 3.75%
May 31, 2002 3.75%
August 31, 2002 3.75%
November 30, 2002 3.75%
February 28, 2003 3.75%
May 31, 2003 6.25%
August 31, 2003 6.25%
November 30, 2003 6.25%
February 29, 2004 6.25%
May 31, 2004 8.75%
August 31, 2004 8.75%
<PAGE>
<PAGE>
November 30, 2004 8.75%
February 28, 2005 8.75%
</TABLE>
3.4. INTEREST ON TERM LOANS.
3.4.1. INTEREST RATES. Except as otherwise provided in
Section 6.10 hereof, the Term Loans shall bear interest at the
following rates:
(a) To the extent that all or any portion of any Term Loan
is a Base Rate Loan, such Term Loan or such portion shall bear
interest at the Base Rate plus the Applicable Margin.
(b) To the extent that all or any portion of any Term Loan
is a Eurodollar Rate Loan, such Term Loan or such portion shall
bear interest during the Interest Period relating thereto at the
Eurodollar Rate plus the Applicable Margin.
The Borrower promises to pay interest on the Term Loans or any
portion thereof outstanding in arrears on each Interest Payment
Date.
3.4.2. NOTIFICATION BY BORROWER. The Borrower shall notify
the Managing Agent, such notice to be irrevocable, at least three
(3) Eurodollar Business Days prior to the Drawdown Date of any Term
Loan if all or any portion of such Loan is to bear interest at the
Eurodollar Rate. After any Term Loan has been made, the provisions
of Section 2.5 above shall apply mutatis mutandis with respect to
all or any portion of such Loan so that the Borrower may have the
same interest rate options with respect to all or any portion of
such Loan as it would be entitled to with respect to the Revolving
Credit Loans.
3.4.3. AMOUNTS, ETC. Any portion of the Term Loans bearing
interest at the Eurodollar Rate relating to any Interest Period
shall be in the amount of $1,000,000 or in integral multiples of
$100,000 in excess thereof. The number of Eurodollar Rate Loans
outstanding at any time shall not exceed ten. No Interest Period
relating to the Term Loans or any portion thereof shall extend
beyond the date on which a regularly scheduled installment payment
of the principal of such Term Loan is to be made unless a portion
of such Term Loan at least equal to such installment payment is
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<PAGE>
either a Base Rate Loan or has an Interest Period ending on such
date.
4. PREPAYMENTS OF LOANS.
4.1. OPTIONAL REPAYMENTS OF REVOLVING CREDIT LOANS. The Borrower
shall have the right, at its election, to repay the outstanding amount
of the Revolving Credit Loans, as a whole or in part, at any time
without penalty or premium, provided that the full or partial prepayment
of the outstanding amount of any Eurodollar Rate Loans pursuant to this
Section 4.1 may be made only on the last day of the Interest Period
relating thereto. The Borrower shall give the Managing Agent, no later
than 11:00 a.m., Boston, Massachusetts time, at least one (1) Business
Day's prior written notice, of any proposed repayment pursuant to this
Section 4.1 of Base Rate Loans, and three (3) Eurodollar Business Days'
notice of any proposed repayment pursuant to this Section 4.1 of
Eurodollar Rate Loans, in each case, specifying the proposed date of
payment of Revolving Credit Loans and the principal amount to be paid.
Each such partial prepayment of the Loans shall be in the amount of
$500,000 or in integral multiples of $100,000 in excess thereof, shall
be accompanied by the payment of accrued interest on the principal
repaid to the date of payment and shall be applied to the principal of
Base Rate Loans or to the principal of Eurodollar Rate Loans, at the
Borrower's option. Each partial prepayment shall be allocated among the
Banks, in proportion, as nearly as practicable, to the respective unpaid
principal amount of each Bank's Tranche A Note or Tranche C Note, at the
Borrower's option, with adjustments to the extent practicable to
equalize any prior repayments not exactly in proportion.
4.2. OPTIONAL PREPAYMENT OF TERM LOANS. The Borrower shall have the
right at any time to prepay the Term Notes on or before the Maturity
Date, as a whole, or in part, upon not less than three (3) Business
Days' prior written notice to the Managing Agent, without premium or
penalty; provided that, (a) each partial prepayment shall be in the
principal amount of $500,000 or in integral multiples of $100,000 in
excess thereof, (b) any portion of the Term Loans bearing interest at
the Eurodollar Rate may only be prepaid pursuant to this Section 4.2 on
the last day of the Interest Period relating thereto, and (c) each
partial prepayment shall be allocated among the Banks, in proportion, as
nearly as practicable, to the respective outstanding amount of each
Bank's Tranche B Term Note or Tranche C Term Note, at the Borrower's
option, with adjustments to the extent practicable to equalize any prior
prepayments not exactly in proportion. Any prepayment of principal of
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the Term Loans shall include all interest accrued to the date of
prepayment and shall be applied against the scheduled installments of
principal due on the Tranche B Term Loan or the Tranche C Term Loan, at
the Borrower's option, in the inverse order of maturity. No amount
repaid with respect to the Term Loans may be reborrowed.
4.3. MANDATORY REPAYMENTS OF LOANS.
(a) If at any time the sum of the outstanding amount of the
Tranche A Loans, the Maximum Drawing Amount and all Unpaid
Reimbursement Obligations exceeds the Tranche A Commitment Amount,
then the Borrower shall immediately pay the amount of such excess
to the Managing Agent for the respective accounts of the Banks for
application first to any Unpaid Reimbursement Obligations,
second to the Tranche A Loans and third, to be held by the Managing
Agent, as cash collateral for the Maximum Drawing Amount.
(b) If at any time the sum of the outstanding amount of the
Tranche C Loans exceeds the Tranche C Commitment Amount, then the
Borrower shall immediately pay the amount of such excess to the
Managing Agent for the respective accounts of the Banks for
application to the Tranche C Loans.
(c) Within sixty (60) days after the end of each fiscal year
of the Borrower commencing with the fiscal year ending February 28,
2001 and continuing through, and including, February 28, 2004, if
the Total Leverage Ratio as at the last day of such fiscal year exceeds
5.00:1.00, the Borrower shall repay the Loans in the aggregate
principal amount equal to fifty percent (50%) of Consolidated
Excess Cash Flow for such fiscal year. Each such mandatory
prepayment of the Loans shall be applied (i) first, pro rata to the
remaining principal installments of the Tranche B Term Loan and of
the Tranche C Term Loan and (ii) second, if the Tranche B Term Loan
and the Tranche C Term Loan have been repaid in full, to repay the
Tranche A Loans. Each such mandatory prepayment shall be allocated
among the Banks in proportion, as nearly as practicable, to the
respective aggregate amounts outstanding of each Bank's Notes
evidencing the applicable Loan or Loans advanced under the
applicable Tranche. Any mandatory prepayment of principal of the
Loans required hereunder shall be accompanied by a payment of all
interest accrued to the date of such prepayment. In the event that
any Term Loan is required to be prepaid hereunder, all principal
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<PAGE>
amounts prepaid shall be applied against the scheduled installments
of principal due on such Term Loan in the inverse order of
maturity. In the event that any Tranche A Loans are required to be
prepaid hereunder, the Tranche A Commitment Amount shall be reduced
by the amount of such prepayment.
(d) Within ten (10) days after any sale of any assets of the
Borrower or of any of its Subsidiaries pursuant to Section 10.5
hereof, the Borrower shall prepay the Loans by an amount equal to
the net proceeds from such sale. Such Net Proceeds shall be
applied (i) (A) prior to the Tranche C Conversion Date, pro rata
to the remaining principal installments of the Tranche B Term Loan
and to repay Tranche C Loans, and (B) after the Tranche C
Conversion Date, pro rata to the remaining principal installments
of the Tranche B Term Loan and of the Tranche C Term Loan, and (ii)
if the Term Loans have been paid in full and no Tranche C Loans are
outstanding, to repay Tranche A Loans. If the Total Leverage Ratio
as of the last day of the fiscal quarter most recently ended prior
to such Sale is greater than 5.50:1.00, the Tranche A Commitment
Amount and the Tranche C Commitment Amount, respectively, shall be
permanently reduced by the amount of such Net Proceeds applied to
repay Tranche A Loans and Tranche C Loans (as the case may be);
provided that, such reduction shall not reduce the scheduled
Tranche A Commitment Amount reductions set forth in Section 2.1.3
above. If the Total Leverage Ratio as of the last day of the
fiscal quarter most recently ended prior to such sale is less than
or equal to 5.50:1.00, the amount of Net Proceeds applied to repay
the Tranche A Loans and, prior to the Tranche C Conversion Date,
the amount of Net Proceeds applied to repay the Tranche C Loans may
be reborrowed subject to the satisfaction in full of all other
terms and conditions to such reborrowings set forth in this Credit
Agreement and provided that (i) after giving effect to any such
reborrowing, the Total Leverage Ratio as of the last day of the
fiscal quarter most recently ended after such reborrowing is less
than or equal to 5.50:1.00 and (ii) the proceeds of all such
reborrowings are used solely for the purpose of funding Permitted
Acquisitions within the nine (9) month period commencing on the
date of such Sale. The Tranche A Commitment Amount and the Tranche
C Commitment Amount, respectively, shall be permanently reduced by
the amount of any Tranche C Loans or Tranche A Loans so repaid and
not reborrowed and applied in accordance with this Section 4.3(d).
Any mandatory prepayment of principal of the Loans required
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hereunder shall be accompanied by a payment of all interest accrued
to the date of such prepayment. Each such mandatory prepayment
shall be allocated among the Banks in proportion, as nearly as
practicable, to the respective aggregate amounts outstanding of
each Bank's Notes evidencing the Loan or Loans advanced under the
applicable Tranche. In the event that any Term Loan is required
to be prepaid hereunder, all principal amounts prepaid shall be
applied against the scheduled installments of principal due on such
Term Loan in the inverse order of maturity.
5. LETTERS OF CREDIT.
5.1. LETTER OF CREDIT COMMITMENTS.
5.1.1 COMMITMENT TO ISSUE LETTERS OF CREDIT.
Subject to the terms and conditions hereof and the execution and
delivery by the Borrower of a letter of credit application on the
Managing Agent's customary form (a "Letter of Credit Application"),
the Managing Agent on behalf of the Banks and in reliance upon the
agreement of the Banks set forth in Section 5.1.4 below and upon
the representations and warranties of the Borrower contained
herein, agrees to issue, extend and renew for the account of the
Borrower one or more standby letters of credit (individually, each
a "Letter of Credit"), in such form as may be requested from time
to time by the Borrower and agreed to by the Managing Agent;
provided, however, that, after giving effect to such request, (a)
the sum of the aggregate Maximum Drawing Amount and all Unpaid
Reimbursement Obligations shall not exceed $50,000,000 at any one
time, and (b) the sum of (i) the Maximum Drawing Amount on all
Letters of Credit, (ii) all Unpaid Reimbursement Obligations, and
(iii) the amount of all Tranche A Loans outstanding shall not
exceed the Tranche A Commitment Amount.
5.1.2 LETTER OF CREDIT APPLICATIONS.
Each Letter of Credit Application shall be completed to the
satisfaction of the Managing Agent. In the event that any
provision of any Letter of Credit Application shall be inconsistent
with any provision of this Credit Agreement, then the provisions
of this Credit Agreement shall, to the extent of any such
inconsistency, govern.
5.1.3 TERMS OF LETTERS OF CREDIT.
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Each Letter of Credit issued, extended or renewed hereunder shall,
among other things, (a) provide for the payment of sight drafts for
honor thereunder when presented in accordance with the terms
thereof and when accompanied by the documents described therein,
and (b) have an expiration date no later than the date which is
fourteen (14) days prior to the Maturity Date. Each Letter of
Credit so issued, extended or renewed shall be subject to the
Uniform Customs.
5.1.4 REIMBURSEMENT OBLIGATIONS OF BANKS.
Each Bank severally agrees that it shall be absolutely liable,
without regard to the occurrence of any Default or Event of Default
or any other condition precedent whatsoever, to the extent of such
Bank's Commitment Percentage of all Letters of Credit issued,
extended or renewed and all Unpaid Reimbursement Obligations, to
reimburse the Managing Agent on demand for the amount of each draft
paid by the Managing Agent under each Letter of Credit to the
extent that such amount is not reimbursed by the Borrower pursuant
to Section 5.2 below (such agreement for a Bank being called herein
the "Letter of Credit Participation" of such Bank).
5.1.5 PARTICIPATIONS OF BANKS.
Each such payment made by a Bank shall be treated as the purchase
by such Bank of a participating interest in the Borrower's
Reimbursement Obligation under Section 5.2 below in an amount equal
to such payment. Each Bank shall share in accordance with its
participating interest in any interest which accrues pursuant to
Section 5.2.
5.2. REIMBURSEMENT OBLIGATION OF THE BORROWER.
In order to induce
the Managing Agent to issue, extend and renew each Letter of Credit and
the Banks to participate therein, the Borrower hereby agrees to
reimburse or pay to the Managing Agent, for the account of the Managing
Agent or (as the case may be) the Banks, with respect to each Letter of
Credit issued, extended or renewed by the Managing Agent hereunder,
(a) except as otherwise expressly provided in Sections
5.2(b) and (c) below, on each date that any draft presented under
such Letter of Credit is honored by the Managing Agent, or the
Managing Agent otherwise makes a payment with respect thereto, (i)
the amount paid by the Managing Agent under or with respect to such
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Letter of Credit, and (ii) the amount of any taxes, fees, charges
or other costs and expenses whatsoever incurred by the Managing
Agent or any Bank in connection with any payment made by the
Managing Agent or any Bank under, or with respect to, such Letter
of Credit,
(b) upon the reduction (but not termination) of the Tranche
A Commitment Amount to an amount less than the Maximum Drawing
Amount, an amount equal to such difference, which amount shall be
held by the Managing Agent for the benefit of the Banks and the
Managing Agent as cash collateral for all Reimbursement
Obligations, and
(c) upon the termination of the Tranche A Commitment Amount,
or the acceleration of the Reimbursement Obligations with respect
to all Letters of Credit in accordance with Section 16 hereof, an
amount equal to the then Maximum Drawing Amount on all Letters of
Credit, which amount shall be held by the Managing Agent for the
benefit of the Banks and the Managing Agent as cash collateral for
all Reimbursement Obligations.
Each such payment shall be made to the Managing Agent at the Managing
Agent's Head Office in immediately available funds. Interest on any and
all amounts remaining unpaid by the Borrower under this Section 5.2, at
any time from the date such amounts become due and payable (whether as
stated in this Section 5.2, by acceleration or otherwise) until payment
in full (whether before or after judgment), shall be payable to the
Managing Agent on demand at the rate specified in Section 6.10 hereof for
Base Rate Loans.
5.3. LETTER OF CREDIT PAYMENTS.
IF any draft shall be presented or
other demand for payment shall be made under any Letter of Credit, the
Managing Agent shall notify the Borrower of the date and amount of the
draft presented or of the demand for payment made and of the date and
time when it expects to pay such draft or honor such demand for payment.
If the Borrower fails to reimburse the Managing Agent as provided in
Section 5.2 above on or before the date that such draft is paid or other
payment is made by the Managing Agent, the Managing Agent may at any
time thereafter notify the Banks of the amount of any such Unpaid
Reimbursement Obligation. No later than 4:00 p.m. (Boston,
Massachusetts time) on the Business Day next following the receipt of
such notice, each Bank shall make available to the Managing Agent, at
its Head Office, in immediately available funds, such Bank's Commitment
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Percentage of such Unpaid Reimbursement Obligation, together with an
amount equal to the product of (a) the average, computed for the period
referred to in clause (c) below, of the weighted average interest rate
paid by the Managing Agent for federal funds acquired by the Managing
Agent during each day included in such period, times (b) the amount
equal to such Bank's Commitment Percentage of such Unpaid Reimbursement
Obligation, times (c) a fraction, the numerator of which is the number
of days that elapse from and including the date the Managing Agent paid
the draft presented for honor or otherwise made payment to the date on
which such Bank's Commitment Percentage of such Unpaid Reimbursement
obligation shall become immediately available to the Managing Agent, and
the denominator of which is 365. The responsibility of the Managing
Agent to the Borrower and the Banks shall be only to determine that the
documents (including each draft) delivered under each Letter of Credit
in connection with such presentment shall be in conformity in all
material respects with such Letter of Credit.
5.4. OBLIGATIONS ABSOLUTE.
The Borrower's obligations under this
Section 5 shall be absolute and unconditional under any and all
circumstances and irrespective of the occurrence of any Default or Event
of Default or any condition precedent whatsoever or any setoff,
counterclaim or defense to payment which the Borrower may have or have
had against the Managing Agent, any Bank or any beneficiary of a Letter
of Credit. The Borrower further agrees with the Managing Agent and the
Banks that the Managing Agent and the Banks shall not be responsible
for, and the Borrower's Reimbursement Obligations under Section 5.2
above shall not be affected by, among other things, the validity or
genuineness of documents or of any endorsements thereon, even if such
documents should in fact prove to be in any or all respects invalid,
fraudulent or forged, or any dispute between or among the Borrower, the
beneficiary of any Letter of Credit or any financing institution or
other party to which any Letter of Credit may be transferred or any
claims or defenses whatsoever of the Borrower against the beneficiary of
any Letter of Credit or any such transferee. The Managing Agent and the
Banks shall not be liable for any error, omission, interruption or delay
in transmission, dispatch or delivery of any message or advice, however
transmitted, in connection with any Letter of Credit. The Borrower
agrees that any action taken or omitted by the Managing Agent or any
Bank under or in connection with each Letter of Credit and the related
drafts and documents, if done in good faith, shall be binding upon the
Borrower and shall not result in any liability on the part of the
Managing Agent or any Bank.
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5.5. RELIANCE BY ISSUER.
To the extent not inconsistent with Section
5.4 above, the Managing Agent shall be entitled to rely, and shall be
fully protected in relying upon, (a) any Letter of Credit, draft,
writing, resolution, notice, consent, certificate, affidavit, letter,
cablegram, telegram, telecopy, telex or teletype message, statement,
order or other document believed by it to be genuine and correct and to
have been signed, sent or made by the proper Person or Persons, and (b)
any advice and statements of legal counsel, independent accountants and
other experts selected by the Managing Agent with due care. The
Managing Agent shall be fully justified in failing or refusing to take
any action under this Agreement unless it shall first have received such
advice or concurrence of the Majority Banks as it reasonably deems
appropriate or it shall first be indemnified to its reasonable
satisfaction by the Banks against any and all liability and expense
which may be incurred by it by reason of taking or continuing to take
any such action. The Managing Agent shall in all cases be fully
protected in acting, or in refraining from acting, under this Agreement
in accordance with a request of the Majority Banks, and such request and
any action taken or failure to act pursuant thereto shall be binding
upon the Banks and all future holders of the Revolving Credit Notes or
of a Letter of Credit Participation.
5.6. LETTER OF CREDIT FEE.
The Borrower shall, on the date of
issuance or of any extension or renewal of any Letter of Credit and at
such other time or times as such charges are customarily made by the
Managing Agent, pay in advance an annual fee (in each case, a "Letter of
Credit Fee") to the Managing Agent in an amount equal to the sum of (for
each day in such annual period) the product of the Applicable Margin for
Eurodollar Rate Loans in effect on the first day of such annual period
times the Maximum Drawing Amount scheduled to be available under such
Letter of Credit on such day; provided that should any Letter of Credit
be terminated prior to its scheduled expiration date, each Bank shall
refund to the Borrower an amount equal to that portion of the annual fee
received by it which is attributable to the period after such early
termination. A portion of each such Letter of Credit Fee equal to one-eighth
percent (0.125%) per annum of the face amount of each such Letter
of Credit (and such other issuance, amendment, negotiation, document
examination and other administrative processing fees of the Managing
Agent as referred to below) to be for the Managing Agent's own account,
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and with the remainder of each such Letter of Credit Fee to be for the
accounts of the Banks in accordance with their respective Commitment
Percentages of all such Letters of Credit then issued, extended or
renewed. The Borrower shall also pay to the Managing Agent for the
Managing Agent's own account the Managing Agent's customary issuance,
amendment, negotiation, document examination and other administrative
processing fees, and the term "Letter of Credit Fee" herein shall
include all such other fees of the Managing Agent.
6. CERTAIN GENERAL PROVISIONS.
6.1. FEES. The Borrower shall to pay to the Managing Agent the fees
in accordance with the terms of the Fee Letter.
6.2. FUNDS FOR PAYMENTS.
6.2.1. PAYMENTS TO MANAGING AGENT. All payments of
principal, interest, Reimbursement Obligations, commitment fees,
Letter of Credit Fees and any other amounts due hereunder or under
any of the other Loan Documents shall be made to the Managing
Agent, for the respective accounts of the Banks and the Managing
Agent, at the Managing Agent's Head Office or at such other
location that the Managing Agent may from time to time designate,
in each case in immediately available funds.
6.2.2. NO OFFSET, ETC. All payments by the Borrower
hereunder and under any of the other Loan Documents shall be made
without setoff or counterclaim and free and clear of and without
deduction for any taxes, levies, imposts, duties, charges, fees,
deductions, withholdings, compulsory loans, restrictions or
conditions of any nature now or hereafter imposed or levied by any
jurisdiction or any political subdivision thereof or taxing or
other authority therein unless the Borrower is compelled by law to
make such deduction or withholding. The Borrower will deliver
promptly to the Managing Agent certificates or other valid vouchers
for all taxes or other charges deducted from or paid with respect
to payments made by the Borrower hereunder or under such other Loan
Document.
6.2.3. WITHHOLDING TAX EXEMPTION. Each Bank that is not
organized under the laws of the United States of America or a state
thereof agrees that it will deliver to each of the Borrower and the
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Managing Agent, two duly completed copies of United States Internal
Revenue Service Form 1001 or 4224, in either case certifying whether
such Bank is entitled to receive payments under this Agreement and
the Notes without deduction or withholding of any United State
Federal income taxes.
6.3. COMPUTATIONS. All computations of interest on the Loans and of
commitment, Letter of Credit and other fees, other than interest
calculations on Base Rate Loans, shall be based on a 360-day year and
paid for the actual number of days elapsed. All computations of
interest on Base Rate Loans shall be based on a 365-day or 366-day year,
as the case may be, for the actual number of days elapsed. Except as
otherwise provided in the definition of the term "Interest Period" with
respect to Eurodollar Rate Loans, whenever a payment hereunder or under
any of the other Loan Documents becomes due on a day that is not a
Business Day, the due date for such payment shall be extended to the
next succeeding Business Day, and interest shall accrue during such
extension.
6.4. INABILITY TO DETERMINE EURODOLLAR RATE. In the event, prior to
the commencement of any Interest Period relating to any Eurodollar Rate
Loan, the Managing Agent shall determine or be notified by the Majority
Banks that adequate and reasonable methods do not exist for ascertaining
the Eurodollar Rate that would otherwise determine the rate of interest
to be applicable to any Eurodollar Rate Loan during any Interest Period,
the Managing Agent shall forthwith give notice of such determination
(which shall be conclusive and binding on the Borrower and the Banks) to
the Borrower and the Banks. In such event (a) any Loan Request or
Conversion Request with respect to Eurodollar Rate Loans shall be
automatically withdrawn and shall be deemed a request for Base Rate
Loans, (b) each Eurodollar Rate Loan will automatically, on the last day
of the then current Interest Period thereof, become a Base Rate Loan,
and (c) the obligations of the Banks to make Eurodollar Rate Loans shall
be suspended until the Managing Agent or the Majority Banks determine
that the circumstances giving rise to such suspension no longer exist,
whereupon the Managing Agent or, as the case may be, the Managing Agent
upon the instruction of the Majority Banks, shall so notify the Borrower
and the Banks.
6.5. ILLEGALITY. Notwithstanding any other provisions herein, if any
present or future law, regulation, treaty or directive or the
interpretation or application thereof shall make it unlawful for any
Bank to make or maintain Eurodollar Rate Loans, such Bank shall
forthwith give notice of such circumstances to the Borrower and the
other Banks and thereupon (a) the commitment of such Bank to make
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Eurodollar Rate Loans or convert Loans of another Type to Eurodollar
Rate Loans shall forthwith be suspended and (b) such Bank's Loans then
outstanding as Eurodollar Rate Loans, if any, shall be converted
automatically to Base Rate Loans on the last day of each Interest Period
applicable to such Eurodollar Rate Loans or within such earlier period
as may be required by law. The Borrower hereby agrees promptly to pay
the Managing Agent for the account of such Bank, upon demand by such
Bank, any additional amounts necessary to compensate such Bank for any
costs incurred by such Bank in making any conversion in accordance with
this Section 6.5, including any interest or fees payable by such Bank to
lenders of funds obtained by it in order to make or maintain its
Eurodollar Rate Loans hereunder.
6.6. ADDITIONAL COSTS, ETC. If any present or future applicable law,
which expression, as used herein, includes statutes, rules and
regulations thereunder and interpretations thereof by any competent
court or by any governmental or other regulatory body or official
charged with the administration or the interpretation thereof and
requests, directives or instructions at any time or from time to time
hereafter made upon or otherwise issued to any Bank or the Managing
Agent by any central bank or other fiscal, monetary or other authority
(whether or not having the force of law), shall:
(a) subject any Bank or the Managing Agent to any tax, levy,
impost, duty, charge, fee, deduction or withholding of any nature
with respect to this Credit Agreement, the other Loan Documents,
such Bank's Commitment or the Loans (other than taxes based upon
or measured by the income or profits of such Bank or the Managing
Agent), or
(b) materially change the basis of taxation (except for
changes in taxes on income or profits) of payments to any Bank of
the principal of or the interest on any Loans or any other amounts
payable to any Bank or the Managing Agent under this Credit
Agreement or the other Loan Documents, or
(c) impose or increase or render applicable (other than to
the extent specifically provided for elsewhere in this Credit
Agreement) any special deposit, reserve, assessment, liquidity,
capital adequacy or other similar requirements (whether or not
having the force of law) against assets held by, or deposits in or
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for the account of, or loans by, or letters of credit issued by,
or commitments of an office of any Bank or the Managing Agent, or
(d) impose on any Bank or the Managing Agent any other
conditions or requirements with respect to this Credit Agreement,
the other Loan Documents, the Loans, such Bank's Commitment, or any
class of loans or commitments of which any of the Loans or such
Bank's Commitment forms a part,
and the result of any of the foregoing is
(i) to increase the cost to any Bank of making,
funding, issuing, renewing, extending or maintaining any of
the Loans or such Bank's Commitment or any Letter of Credit,
or
(ii) to reduce the amount of principal, interest,
Reimbursement Obligation or other amount payable to such Bank
or to the Managing Agent hereunder on account of such Bank's
Commitment or Notes, any Letter of Credit or any of the
Loans, or
(iii) to require such Bank or the Managing Agent to
make any payment or to forego any interest or Reimbursement
Obligation or other sum payable hereunder, the amount of
which payment or foregone interest or Reimbursement
Obligation or other sum is calculated by reference to the
gross amount of any sum receivable or deemed received by such
Bank or the Managing Agent from the Borrower hereunder,
then, and in each such case, the Borrower will, upon demand made by such
Bank or (as the case may be) the Managing Agent at any time and from
time to time and as often as the occasion therefor may arise, pay to
such Bank or the Managing Agent such additional amounts as will be
sufficient to compensate such Bank or the Managing Agent for such
additional cost, reduction, payment or foregone interest or
Reimbursement Obligation or other sum. Each Bank agrees promptly to
notify the Borrower and the Managing Agent of any event of which it has
knowledge, occurring after the date hereof, which will entitle such Bank
to compensation pursuant to this section and will designate a different
lending office if such designation will avoid the need for, or reduce
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the amount of, such compensation and will not, in the sole judgment of
such Bank made in good faith, be otherwise disadvantageous to such Bank.
6.7. CAPITAL ADEQUACY. If after the date hereof any Bank determines
that (a) the adoption of or change in any law, governmental rule,
regulation, policy, guideline or directive (whether or not having the
force of law) regarding capital requirements for banks or bank holding
companies or any change in the interpretation or application thereof by
a court or governmental authority with appropriate jurisdiction, or (b)
compliance by such Bank or any corporation controlling such Bank with
any law, governmental rule, regulation, policy, guideline or directive
(whether or not having the force of law) of any such entity regarding
capital adequacy, has the effect of reducing the return on such Bank's
commitment with respect to any Loans to a level below that which such
Bank could have achieved but for such adoption, change or compliance
(taking into consideration such Bank's then existing policies with
respect to capital adequacy and assuming full utilization of such
entity's capital) by any amount deemed by such Bank to be material, then
such Bank may notify the Borrower of such fact. To the extent that the
amount of such reduction in the return on capital is not reflected in
the Base Rate, the Borrower agrees to pay such Bank for the amount of
such reduction in the return on capital as and when such reduction is
determined upon presentation by such Bank of a certificate in accordance
with Section 6.8 hereof. Each Bank shall allocate such cost increases
among its customers in good faith and on an equitable basis.
6.8. CERTIFICATE. A certificate setting forth any additional amounts
payable pursuant to Section 6.6 or 6.7 above and a brief explanation of
such amounts which are due, submitted by any Bank or the Managing Agent
to the Borrower, shall be conclusive, absent manifest error, that such
amounts are due and owing.
6.9. INDEMNITY. The Borrower agrees to indemnify each Bank and to
hold each Bank harmless from and against any loss, cost or expense
(including loss of anticipated profits) that such Bank may sustain or
incur as a consequence of (a) default by the Borrower in payment of the
principal amount of or any interest on any Eurodollar Rate Loans as and
when due and payable, including any such loss or expense arising from
interest or fees payable by such Bank to lenders of funds obtained by it
in order to maintain its Eurodollar Rate Loans, (b) default by the
Borrower in making a borrowing or conversion after the Borrower has
given (or is deemed to have given) a Loan Request, notice (in the case
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of all or any portion of the Term Loans pursuant to Section 3.4.2 above)
or a Conversion Request relating thereto in accordance with Section 2.5
above or (c) the making of any payment of a Eurodollar Rate Loan or the
making of any conversion of any such Loan to a Base Rate Loan on a day
that is not the last day of the applicable Interest Period with respect
thereto, including interest or fees payable by such Bank to lenders of
funds obtained by it in order to maintain any such Loans.
6.10. INTEREST AFTER DEFAULT. During the continuance of a Default or
an Event of Default (a) under Section 16.1(a), 16.1(b), 16.1(c) (with
respect only to Section 11 hereof) 16.1(g) or 16.1(h) hereof and (b)
under any other subsection of Section 16.1 upon the request of the
Majority Banks, the principal of the Loans and (to the extent permitted
by applicable law) interest and all other amounts payable hereunder or
under any of the other Loan Documents shall, until such Default or Event
of Default has been cured or remedied or such Default or Event of
Default has been waived by the Majority Banks pursuant to Section 30
below, bear interest at a rate per annum equal to two percent (2%) above
the rate of interest otherwise applicable to such amounts (the "Default
Rate"); provided, that, in the case of a Default or an Event of Default
under Section 16.1(c) hereof with respect to Section 11 hereof for a
particular fiscal quarter, if, the financial statements furnished to the
Banks pursuant to Section 9.4 hereof indicate that such Default or Event
of Default does not exist as at the end of any subsequent fiscal quarter
then commencing with the first day following the end of such subsequent
fiscal quarter the Default Rate shall no longer apply to such amounts.
7. SECURITY AND GUARANTIES.
7.1. SECURITY OF BORROWER. The Obligations shall be secured by (a)
a pledge of and perfected first-priority lien on all of the issued and
outstanding shares of the capital stock of each of the Borrower's direct
Subsidiaries, (b) a perfected first-priority security interest (subject
only to Permitted Liens entitled to priority under applicable law) in
all of the assets and properties (both personal and real) of the
Borrower, whether now owned or hereafter acquired, (c) an assignment of
all insurance policies concerning the business, assets and properties of
the Borrower, and (d) an assignment of all of the Borrower's rights and
interests in, to and under (i) each non-recorded Station lease and
Station tower lease to which the Borrower is a party, (ii) the Option
Agreement and the WQCD Time Brokerage Agreement and (iii) each contract
and agreement entered into by the Borrower in connection with the
transactions contemplated by Sections 10.5(c) and 10.5(h) hereof,
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pursuant to the terms of the Security Documents to which the Borrower is
a party.
7.2. GUARANTIES AND SECURITY OF SUBSIDIARIES. The Obligations shall
also be guaranteed pursuant to the terms of the Guaranty. The
obligations of the Borrower's Subsidiaries under the Guaranty shall be
in turn secured by (a) a pledge of and perfected first-priority lien on
all of the issued and outstanding shares of the capital stock of each
indirect Subsidiary of the Borrower, (b) a perfected first-priority
security interest (subject only to Permitted Liens entitled to priority
under applicable law) in all of the assets and properties (both personal
and real) of each such Subsidiary, whether now owned or hereafter
acquired, and (c) an assignment of each such Subsidiary's rights and
interests in, to and under each (A) non-recorded Station lease and
Station tower lease to which each such Subsidiary is a party and (B)
contract and agreement entered into by each such Subsidiary in
connection with the transactions contemplated by Sections 10.5(c) and
10.5(h) hereof, pursuant to the terms of the Security Documents to which
such Subsidiary is a party.
8. REPRESENTATIONS AND WARRANTIES.
The Borrower represents and warrants to the Banks and the Managing
Agent as follows:
8.1. CORPORATE AUTHORITY.
8.1.1. INCORPORATION; GOOD STANDING. Each of the Borrower
and its Subsidiaries (a) is a corporation duly organized, validly
existing and in good standing under the laws of its state of
incorporation, (b) has all requisite corporate power to own its
property and conduct its business as now conducted and as presently
contemplated, and (c) is in good standing as a foreign corporation
and is duly authorized to do business in each jurisdiction where
such qualification is necessary except where a failure to be so
qualified would not have a materially adverse effect on the
business, assets or financial condition of the Borrower or its
Subsidiaries.
8.1.2. AUTHORIZATION. The execution, delivery and
performance of this Credit Agreement and the other Loan Documents
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to which the Borrower or any of its Subsidiaries is or is to become
a party and the transactions contemplated hereby and thereby (a)
are within the corporate authority of such Person, (b) have been
duly authorized by all necessary corporate proceedings, (c) do not
conflict with or result in any breach or contravention of any
provision of law, statute, rule or regulation to which the Borrower
or any of its Subsidiaries is subject or any judgment, order, writ,
injunction, license or permit applicable to the Borrower or any of
its Subsidiaries and (d) do not conflict with any provision of the
corporate charter or bylaws of, or any agreement or other
instrument binding upon, the Borrower or any of its Subsidiaries.
8.1.3. ENFORCEABILITY. The execution and delivery of this
Credit Agreement and the other Loan Documents to which the Borrower
or any of its Subsidiaries is or is to become a party will result
in valid and legally binding obligations of such Person enforceable
against it in accordance with the respective terms and provisions
hereof and thereof, except as enforceability is limited by
bankruptcy, insolvency, reorganization, moratorium or other laws
relating to or affecting generally the enforcement of creditors'
rights and except to the extent that availability of the remedy of
specific performance or injunctive relief is subject to the
discretion of the court before which any proceeding therefor may
be brought.
8.2. GOVERNMENTAL APPROVALS. The execution, delivery and performance
by the Borrower and any of its Subsidiaries of this Credit Agreement and
the other Loan Documents to which the Borrower or any of its
Subsidiaries is or is to become a party and the transactions
contemplated hereby and thereby do not require the approval or consent
of, or filing with, any governmental agency or authority, including the
FCC, other than those already obtained.
8.3. TITLE TO PROPERTIES; LEASES. Except as indicated on
Schedule 8.3(a) hereto, the Borrower and its Subsidiaries own all of the
assets reflected in the consolidated balance sheet of the Borrower and
its Subsidiaries as at the Balance Sheet Date or acquired since that
date (except property and assets which are not integral to the
operations of the Existing Stations as such Stations are operated
immediately prior to the Balance Sheet Date and which have been sold or
otherwise disposed of in the ordinary course of business since that date
or property and assets which have been replaced since that date),
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subject to no rights of others, including any mortgages, leases,
conditional sales agreements, title retention agreements, liens or other
encumbrances except Permitted Liens. Except as listed on Schedule
8.3(b) hereto, none of the Borrower or any of its Subsidiaries owns any
Real Estate. Except as listed on Schedule 8.3(c) hereto, none of the
Borrower or any of its Subsidiaries is party to any lease concerning
Real Estate (including any studio or tower leases relating to any
Station). None of the leases listed on Schedule 8.3(c) have been
recorded in the land records of any jurisdiction or in any other office
of any governmental authority.
8.4. FINANCIAL STATEMENTS AND PROJECTIONS.
8.4.1. FINANCIAL STATEMENTS. There has been furnished to
the Banks the consolidated and consolidating balance sheets of the
Borrower and its Subsidiaries as at the Balance Sheet Date, and the
related consolidated and consolidating statements of income and
cash flow for the fiscal year then ended, each, in the case of
consolidated financial statements, certified by both the Borrower's
independent certified public accountants and an authorized officer
of the Borrower. Such balance sheets and statements of income and
cash flow have been prepared in accordance with generally accepted
accounting principles and fairly present the financial condition
of the Borrower and its Subsidiaries as at the close of business
on the date thereof and the results of operations for the fiscal
periods then ended. There are no contingent liabilities of the
Borrower or any of its Subsidiaries as of the Closing Date
involving material amounts, known to any officer of the Borrower
or of any of its Subsidiaries not disclosed in the balance sheet
dated the Balance Sheet Date and the related notes thereto other
than contingent liabilities disclosed to the Banks in writing.
8.4.2. PROJECTIONS. The projections, dated May 2, 1997 of
the annual operating budgets and operating cash flow of the
Borrower and its Subsidiaries on a consolidated and consolidating
basis, for the 1998 to 2005 fiscal years, copies of which are
attached hereto as Exhibit E (the "Projections"), disclose all
assumptions made with respect to general economic, financial and
market conditions used in formulating the Projections. To the
knowledge of the Borrower or any of its Subsidiaries, no facts
exist that (individually or in the aggregate) would result in any
material change in any of the Projections. The Projections are
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based upon reasonable estimates and assumptions, have been prepared
on the basis of the assumptions stated therein and reflect the
reasonable estimates of the Borrower and its Subsidiaries of the
results of operations and other information projected therein.
8.5. NO MATERIAL CHANGES, ETC. Since the Balance Sheet Date there
has occurred no materially adverse change in the financial condition or
business of the Borrower and its Subsidiaries as shown on or reflected
in the consolidated balance sheet of the Borrower and its Subsidiaries
as at the Balance Sheet Date, or the consolidated statement of income
for the fiscal year then ended, other than changes in the ordinary
course of business that have not had any materially adverse effect
either individually or in the aggregate on the business or financial
condition of the Borrower and any of the Operating Subsidiaries and
License Subsidiaries taken as a whole. Since the Balance Sheet Date,
the Borrower has not made any Distributions, except as set forth on
Schedule 8.5 hereto.
8.6. FRANCHISES, PATENTS, COPYRIGHTS, ETC. Each of the Borrower and
its Subsidiaries possesses all franchises, patents, copyrights,
trademarks, and trade names, and rights in respect of the foregoing,
adequate for the conduct of its business substantially as now conducted
without known conflict with any rights of others.
8.7. LITIGATION. Except as set forth on Schedule 8.7 hereto, there
are no actions, suits, proceedings or investigations of any kind,
including without limitation any Material Labor Dispute, pending or, to
the Borrower's knowledge, threatened against the Borrower or any of its
Subsidiaries before any court, tribunal or administrative agency or
board (including the FCC). None of such actions, suits, proceedings or
investigations, if adversely determined, might, either in any case or in
the aggregate, materially adversely affect the properties, assets,
financial condition or business of the Borrower, or the Borrower, its
Subsidiaries or any of the Stations owned or operated by the Borrower or
any of its Subsidiaries considered as a whole, or materially impair the
right of the Borrower and its Subsidiaries, considered as a whole, to
carry on business substantially as now conducted by them, or result in
any substantial liability not adequately covered by insurance, or for
which adequate reserves are not maintained on the consolidated balance
sheet of the Borrower and its Subsidiaries, or which question the
validity of this Credit Agreement, any of the other Loan Documents, or
any action taken or to be taken pursuant hereto or thereto.
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8.8. NO MATERIALLY ADVERSE CONTRACTS, ETC. Neither the Borrower nor
any of its Subsidiaries is subject to any charter, corporate or other
legal restriction, or any judgment, decree, order, rule or regulation
that has or is expected in the future to have a materially adverse
effect on the business, assets or financial condition of the Borrower or
any of its Subsidiaries. Neither the Borrower nor any of its
Subsidiaries is a party to any contract or agreement that has or is
expected, in the judgment of the Borrower's officers, to have any
materially adverse effect on the business of the Borrower or the
Borrower and its Subsidiaries considered as a whole.
8.9. COMPLIANCE WITH OTHER INSTRUMENTS, LAWS, ETC. Neither the
Borrower nor any of its Subsidiaries is in violation of any provision of
its charter documents, bylaws, or any agreement or instrument to which
it may be subject or by which it or any of its properties or assets may
be bound or any decree, order, judgment, statute, license, rule or
regulation, in any of the foregoing cases in a manner that could result
in the imposition of substantial penalties or materially and adversely
affect the financial condition, properties or business of the Borrower
or the Borrower and its Subsidiaries considered as a whole.
8.10. TAX STATUS. The Borrower and its Subsidiaries (a) have made or
filed all federal and state income and all other tax returns, reports
and declarations required by any jurisdiction to which any of them is
subject, (b) have paid all taxes and other governmental assessments and
charges shown or determined to be due on such returns, reports and
declarations, except those being contested in good faith and by
appropriate proceedings and (c) have set aside on their books provisions
reasonably adequate for the payment of all taxes for periods subsequent
to the periods to which such returns, reports or declarations apply.
There are no unpaid taxes in any material amount claimed to be due by
the taxing authority of any jurisdiction, and the officers of the
Borrower know of no basis for any such claim.
8.11. NO EVENT OF DEFAULT. No Default or Event of Default has
occurred and is continuing.
8.12. HOLDING COMPANY, INVESTMENT COMPANY AND COMMUNICATIONS ACTS.
Neither the Borrower nor any of its Subsidiaries is a "holding company",
or a "subsidiary company" of a "holding company", or an affiliate" of a
"holding company", as such terms are defined in the Public Utility
Holding Company Act of 1935; nor is it an "investment company", or an
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"affiliated company" or a "principal underwriter" of an "investment
company", as such terms are defined in the Investment Company Act of
1940. The Borrower and each of its Subsidiaries is in compliance with
the Communications Act with regard to alien control or ownership.
8.13. ABSENCE OF FINANCING STATEMENTS, ETC. Except with respect to
Permitted Liens, there is no financing statement, security agreement,
chattel mortgage, real estate mortgage or other document filed or
recorded with any filing records, registry, or other public office, that
purports to cover, affect or give notice of any present or possible
future lien on, or security interest in, any assets or property of the
Borrower or any of its Subsidiaries or rights thereunder.
8.14. PERFECTION OF SECURITY INTEREST. All filings, assignments,
pledges and deposits of documents or instruments have been made and all
other actions have been taken that are necessary or advisable, under
applicable law, to establish and perfect the Managing Agent's security
interest in the Collateral. The Collateral and the Managing Agent's
rights with respect to the Collateral are not subject to any setoff,
claims, withholdings or other defenses. The Collateral owned by each of
the Borrower and its Subsidiaries is free from any lien, security
interest, encumbrance and any other claim or demand, except for
Permitted Liens (excluding on the Closing Date, in the case of the
Mortgaged Properties, liens permitted under Section 10.2(v) hereof).
8.15. CERTAIN TRANSACTIONS. Except for Investments permitted under
Section 10.3, none of the officers, directors, or employees of the
Borrower or any of its Subsidiaries is presently a party to any
transaction with the Borrower or any of its Subsidiaries (other than for
services as employees, officers and directors), including any contract,
agreement or other arrangement providing for the furnishing of services
to or by, providing for rental of real or personal property to or from,
or otherwise requiring payments to or from any officer, director or such
employee or, to the knowledge of the Borrower, any corporation,
partnership, trust or other entity in which any officer, director, or
any such employee has a substantial interest or is an officer, director,
trustee or partner.
8.16. EMPLOYEE BENEFIT PLANS.
8.16.1. IN GENERAL. Each Employee Benefit Plan has been
maintained and operated in compliance in all material respects with
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the provisions of ERISA and, to the extent applicable, the Code,
including but not limited to the provisions thereunder respecting
prohibited transactions. The Borrower has heretofore delivered to
the Managing Agent the most recently completed annual report, Form
5500, with all required attachments, and actuarial statement
required to be submitted under Section 103(d) of ERISA, with
respect to each Guaranteed Pension Plan.
8.16.2. TERMINABILITY OF WELFARE PLANS. Under each Employee
Benefit Plan which is an employee welfare benefit plan within the
meaning of Section 3(1) or 3(2)(B) of ERISA, no benefits are due
unless the event giving rise to the benefit entitlement occurs
prior to plan termination (except as required by Title I, Part 6
of ERISA). The Borrower or an ERISA Affiliate, as appropriate, may
terminate each such Plan at any time (or at any time subsequent to
the expiration of any applicable bargaining agreement) in the
discretion of the Borrower or such ERISA Affiliate without
liability to any Person.
8.16.3. GUARANTEED PENSION PLANS. Each contribution
required to be made to a Guaranteed Pension Plan, whether required
to be made to avoid the incurrence of an accumulated funding
deficiency, the notice or lien provisions of Section 302(f) of
ERISA, or otherwise, has been timely made. No waiver of an
accumulated funding deficiency or extension of amortization periods
has been received with respect to any Guaranteed Pension Plan. No
liability to the PBGC (other than required insurance premiums, all
of which have been paid) has been incurred by the Borrower or any
ERISA Affiliate with respect to any Guaranteed Pension Plan and
there has not been any ERISA Reportable Event, or any other event
or condition which presents a material risk of termination of any
Guaranteed Pension Plan by the PBGC. Based on the latest valuation
of each Guaranteed Pension Plan (which in each case occurred within
twelve months of the date of this representation), and on the
actuarial methods and assumptions employed for that valuation, the
aggregate benefit liabilities of all such Guaranteed Pension Plans
within the meaning of Section 4001 of ERISA did not exceed the
aggregate value of the assets of all such Guaranteed Pension Plans,
disregarding for this purpose the benefit liabilities and assets
of any Guaranteed Pension Plan with assets in excess of benefit
liabilities.
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8.16.4. MULTIEMPLOYER PLANS. Neither the Borrower nor any
ERISA Affiliate has incurred any material liability (including
secondary liability) to any Multiemployer Plan as a result of a
complete or partial withdrawal from such Multiemployer Plan under
Section 4201 of ERISA or as a result of a sale of assets described
in Section 4204 of ERISA. Neither the Borrower nor any ERISA
Affiliate has been notified that any Multiemployer Plan is in
reorganization or insolvent under and within the meaning of Section
4241 or 4245 of ERISA or that any Multiemployer Plan intends to
terminate or has been terminated under Section 4041A of ERISA.
8.17. USE OF PROCEEDS; REGULATIONS U AND X. The proceeds of the
Tranche A Loans shall be used for the purpose of (a) working capital and
general corporate purposes and (b) funding Permitted Acquisitions
including, without limitation, the WQCD Acquisition and the WTLC
Acquisition. The proceeds of the Tranche B Term Loan shall be used to
fund the Refinancing Obligations and the transaction costs incurred in
connection therewith. The proceeds of the Tranche C Loans and the
Tranche C Term Loan shall be used for the purpose of funding Permitted
Acquisitions. No portion of any Loan is to be used for the purpose of
purchasing or carrying any "margin security" or "margin stock" as such
terms are used in Regulations U and X of the Board of Governors of the
Federal Reserve System, 12 C.F.R. Parts 221 and 224. No portion of any
Loan is to be used, and no portion of any Letter of Credit is to be
obtained, for an Investment in any Subsidiary of the Borrower which is
not a party to a Guaranty.
8.18. ENVIRONMENTAL COMPLIANCE. The Borrower has taken all necessary
steps to investigate the past and present condition and usage of the
Real Estate and the operations conducted thereon and, based upon such
diligent investigation, has determined that:
(a) none of the Borrower, its Subsidiaries or any operator
of the Real Estate or any operations thereon is in violation, or
alleged violation, of any judgment, decree, order, law, license,
rule or regulation pertaining to environmental matters, including
without limitation, those arising under the Resource Conservation
and Recovery Act ("RCRA"), the Comprehensive Environmental
Response, Compensation and Liability Act of 1980 as amended
("CERCLA"), the Superfund Amendments and Reauthorization Act of
1986 ("SARA"), the Federal Clean Water Act, the Federal Clean Air
Act, the Toxic Substances Control Act, or any state or local
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statute, regulation, ordinance, order or decree relating to health,
safety or the environment (hereinafter, collectively,
"Environmental Laws"), which violation would have a material
adverse effect on the environment or the business, assets or
financial condition of the Borrower or any of its Subsidiaries;
(b) neither the Borrower nor any of its Subsidiaries has
received notice from any third party including, without limitation:
any federal, state or local governmental authority, (i) that any
one of them has been identified by the United States Environmental
Protection Agency ("EPA") as a potentially responsible party under
CERCLA with respect to a site listed on the National Priorities
List, 40 C.F.R. Part 300 Appendix B (1986); (ii) that any hazardous
waste, as defined by 42 U.S.C. Section 6903(5), any hazardous
substances as defined by 42 U.S.C. Section 9601(14), any pollutant
or contaminant as defined by 42 U.S.C. Section 9601(33) and any
toxic substances, oil or hazardous materials or other chemicals or
substances regulated by any Environmental Laws (collectively,
"Hazardous Substances") which any one of them has generated,
transported or disposed of has been found at any site at which a
federal, state or local agency or other third party has conducted
or has ordered that the Borrower or any of its Subsidiaries conduct
a remedial investigation, removal or other response action pursuant
to any Environmental Law; or (iii) that it is or shall be a named
party to any claim, action, cause of action, complaint, or legal
or administrative proceeding (in each case, contingent or
otherwise) arising out of any third party's incurrence of costs,
expenses, losses or damages of any kind whatsoever in connection
with the release of Hazardous Substances;
(c) except as set forth on Schedule 8.18 attached hereto:
(i) no portion of the Real Estate has been used for the handling,
processing, storage or disposal of Hazardous Substances except in
accordance with applicable Environmental Laws; and no underground
tank or other underground storage receptacle for Hazardous
Substances is located on any portion of the Real Estate; (ii) in
the course of any activities conducted by the Borrower, its
Subsidiaries or operators of its properties, no Hazardous
Substances have been generated or are being used on the Real Estate
except in accordance with applicable Environmental Laws; (iii)
there have been no releases (i.e. any past or present releasing,
spilling, leaking, pumping, pouring, emitting, emptying,
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discharging, injecting, escaping, disposing or dumping) or
threatened releases of Hazardous Substances on, upon, into or from
the properties of the Borrower or its Subsidiaries, which releases
would have a material adverse effect on the value of any of the
Real Estate or adjacent properties or the environment; (iv) to the
best of the Borrower's knowledge, there have been no releases on,
upon, from or into any real property in the vicinity of any of the
Real Estate which, through soil or groundwater contamination, may
have come to be located on, and which would have a material adverse
effect on the value of, the Real Estate; and (v) in addition, any
Hazardous Substances that have been generated on any of the Real
Estate have been transported offsite only by carriers having an
identification number issued by the EPA, treated or disposed of
only by treatment or disposal facilities maintaining valid permits
as required under applicable Environmental Laws, which transporters
and facilities have been and are, to the best of the Borrower's
knowledge, operating in compliance with such permits and applicable
Environmental Laws; and
(d) None of the Borrower, its Subsidiaries, any Mortgaged
Property or any of the other Real Estate is subject to any
applicable environmental law requiring the performance of Hazardous
Substances site assessments, or the removal or remediation of
Hazardous Substances, or the giving of notice to any governmental
agency or the recording or delivery to other Persons of an
environmental disclosure document or statement by virtue of the
transactions set forth herein and contemplated hereby, or as a
condition to the recording of any Mortgage or to the effectiveness
of any other transactions contemplated hereby.
8.19. SUBSIDIARIES, ETC. Set forth on Schedule 8.19 hereto is a list
of all Subsidiaries of the Borrower. Except as set forth on Schedule
8.19, the Borrower owns all of the issued and outstanding shares of
capital stock of each such Subsidiary, and neither the Borrower nor any
Subsidiary of the Borrower is engaged in any joint venture or
partnership with any other person. Emmis FM Broadcasting Corporation of
D.C. and Emmis FM Broadcasting Corporation of Minnesota have each been
dissolved and no longer exist as separate corporate entities. Neither
Emmis International Corporation nor Emmis International Broadcasting
Corporation leases or owns any real property, employs any employees,
agents (other than a registered service agent in its respective state of
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incorporation) or represenatives, or owns any assets or personal
property of any kind or nature.
8.20. BANK ACCOUNTS. SCHEDULE 8.20 hereto sets forth the account
numbers and location of all bank accounts of the Borrower or any of its
Subsidiaries.
8.21. LICENSES AND APPROVALS.
(a) Each of the Borrower and its Subsidiaries has all
requisite power and authority and necessary licenses, permits and
approvals, including all FCC Licenses, to hold the FCC Licenses and
to own and operate its Stations and to carry on its businesses as
now conducted.
(b) Set forth in Schedule 8.21 hereto is a complete
description of all FCC Licenses of the Borrower and/or its
Subsidiaries and the dates on which such FCC Licenses expire.
Complete and correct copies of all such FCC licenses have been
delivered to the Managing Agent. Each such FCC License which is
necessary to the operation of the business of the Borrower or any
of its Subsidiaries is validly issued and in full force and effect.
The Borrower and each of its Subsidiaries has fulfilled and
performed all of its obligations with respect to each such FCC
License. No event has occurred which: (i) has resulted in, or
after notice or lapse of time or both would result in, revocation
or termination of any FCC License, or (ii) materially and adversely
affects or in the future could reasonably be expected to materially
adversely affect any of the rights of the Borrower or any of its
Subsidiaries thereunder. No license or franchise, other than the
FCC Licenses described in Schedule 8.21, is necessary for the
operation of the business (including the Stations) of the Borrower
or any of its Subsidiaries as now conducted.
(c) None of the Borrower or any of its Subsidiaries is a
party to or has knowledge of any investigation, notice of
violation, order or complaint issued by or before any governmental
authority, including the FCC, or of any other proceedings (other
than proceedings relating to the radio broadcasting industry
generally) which could in any manner threaten or adversely affect
the validity or continued effectiveness of the FCC Licenses of the
Borrower or any of its Subsidiaries or the business of the Borrower
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or any of its Subsidiaries. None of the Borrower or any of its
Subsidiaries has reason to believe that any of the FCC Licenses
described in Schedule 8.21 will not be renewed in the ordinary
course. Each of the Borrower and its Subsidiaries has filed all
material reports, applications, documents, instruments and
information required to be filed by it pursuant to applicable rules
and regulations or requests of every regulatory body having
jurisdiction over any of its FCC Licenses or the activities or
business of such Person with respect thereto.
8.22. MATERIAL AGREEMENTS. Schedule 8.22 hereto accurately and
completely lists all agreements among the Borrower and its Subsidiaries
(including all agreements between the License Subsidiaries and the
Operating Subsidiaries) and all material network affiliation,
programming, engineering, consulting, management, employment and related
agreements of the Borrower and its Subsidiaries, if any, which are
presently in effect in connection with the conduct of the business of
the Borrower or any of its Subsidiaries, including without limitation
the operation of any Station by the Borrower or any Subsidiary of the
borrower. All of the foregoing agreements are valid, subsisting and in
full force and effect and none of the Borrower, any of its Subsidiaries
or, to the Borrower's best knowledge, any other Person are in material
default thereunder. Copies of all such agreements have been furnished
to the Managing Agent.
9. AFFIRMATIVE COVENANTS OF THE BORROWER.
The Borrower covenants and agrees that, until all of the Obligations
have been irrevocably paid and satisfied in full, and so long as any
Loan, Note or Letter of Credit is outstanding or any Bank has any
obligation to make any Loans, or the Managing Agent has any obligation
to issue, extend or renew any Letters of Credit hereunder:
9.1. PUNCTUAL PAYMENT. The Borrower will duly and punctually pay or
cause to be paid the principal and interest on the Loans, all
Reimbursement Obligations, the Letter of Credit Fees, the commitment
fees and all other fees and amounts provided for in this Credit
Agreement, all in accordance with the terms of this Credit Agreement and
the other Loan Documents.
9.2. MAINTENANCE OF OFFICE. The Borrower will maintain its chief
executive office in Indianapolis, Indiana, or at such other place in the
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United States of America as the Borrower shall designate upon written
notice to the Managing Agent, where notices, presentations and demands
to or upon the Borrower in respect of the Loan Documents may be given or
made.
9.3. RECORDS AND ACCOUNTS. The Borrower will (a) keep, and cause
each of its Subsidiaries to keep, true and accurate records and books of
account in which full, true and correct entries will be made in
accordance with generally accepted accounting principles and (b)
maintain adequate accounts and reserves for all taxes (including income
taxes), depreciation, depletion, obsolescence and amortization of its
properties and the properties of its Subsidiaries, contingencies, and
other reserves.
9.4. FINANCIAL STATEMENTS, CERTIFICATES AND INFORMATION. The
Borrower will deliver to each of the Banks:
(a) as soon as practicable, but in any event not later than
ninety (90) days after the end of each fiscal year of the Borrower,
the consolidated balance sheet of the Borrower and its Subsidiaries
and the consolidating balance sheet of the Borrower and its
Subsidiaries, each as at the end of such year, and the related
consolidated statement of income and consolidated statement of cash
flow and consolidating statement of income and consolidating
statement of cash flow for such year, each setting forth in
comparative form the figures for the previous fiscal year and all
such consolidated and consolidating statements to be in reasonable
detail, prepared in accordance with generally accepted accounting
principles, and, in the case of all consolidated statements,
certified without qualification by Arthur Andersen & Co. or Katz
Sapper & Miller or by other independent certified public
accountants satisfactory to the Managing Agent, together with a
written statement from such accountants to the effect that they
have read a copy of this Credit Agreement, and that, in making the
examination necessary to said certification, they have obtained no
knowledge of any Default or Event of Default, or, if such
accountants shall have obtained knowledge of any then existing
Default or Event of Default they shall disclose in such statement
any such Default or Event of Default; provided that such
accountants shall not be liable to the Banks for failure to obtain
knowledge of any Default or Event of Default;
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(b) as soon as practicable, but in any event not later than
forty-five (45) days after the end of each fiscal quarter of the
Borrower, copies of the unaudited consolidated balance sheet of the
Borrower and its Subsidiaries and the unaudited consolidating
balance sheet of the Borrower and its Subsidiaries, each as at the
end of such quarter, and the related consolidated statement of
income and consolidated statement of cash flow and consolidating
statement of income and consolidating statement of cash flow for
the portion of the Borrower's and Subsidiaries' fiscal year then
elapsed, all in reasonable detail and prepared in accordance with
generally accepted accounting principles, together with a
certification by the principal financial or accounting officer of
the Borrower that the information contained in such financial
statements fairly presents the financial position of the Borrower
and its Subsidiaries on the date thereof (subject to year-end
adjustments);
(c) as soon as practicable, but in any event within thirty
(30) days after the end of each month in each fiscal year of the
Borrower, unaudited monthly consolidated and consolidating
statements of income and cash flows of the Borrower and its
Subsidiaries for such month, each prepared in accordance with
generally accepted accounting principles, together with a
certification by the principal financial or accounting officer of
the Borrower that the information contained in such financial
statements fairly presents the financial condition of the Borrower
and its Subsidiaries on the date thereof (subject to year-end
adjustments);
(d) simultaneously with the delivery of the financial
statements referred to in subsections (a) and (b) above, a
statement certified by the principal financial or accounting
officer of the Borrower in substantially the form of Exhibit F
hereto and setting forth in reasonable detail computations
evidencing compliance with the covenants contained in Section 11
and (if applicable) reconciliations to reflect changes in generally
accepted accounting principles since the Balance Sheet Date; and
simultaneously with the delivery of the fiscal year-end financial
statements referred to in subsection (a) above, a detailed
statement of operating expenses incurred by Emmis International
Corporation for such fiscal year in form and substance satisfactory
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to the Managing Agent and certified by the principal financial or
accounting officer of the Borrower;
(e) promptly upon completion thereof and in any event no
later than thirty (30) days after the beginning of each fiscal year
of the Borrower, the Borrower's annual operating budget in the form
of consolidated and consolidating (on a Station-by-Station basis)
financial projections for each such fiscal year prepared on a
monthly basis and setting forth projected operating results for
each month in such fiscal year and for the fiscal year as a whole,
including projections of operating cash flow, together with a
statement of reasonable assumptions made by the Borrower in
preparing such budgets and projections and explanations attached
thereto;
(f) contemporaneously with the filing or mailing thereof,
copies (i) of all material of a financial nature filed with the
Securities and Exchange Commission (including any registration
statements) or sent to the stockholders of the Borrower and (ii)
any periodic or special reports filed with the FCC and relating to
any Station owned or operated by the Borrower or any of its
Subsidiaries;
(g) from time to time upon the request thereof of the
Managing Agent, projections of the Borrower and its Subsidiaries
updating the Projections or, if applicable, updating any later such
projections delivered in response to a request pursuant to this
Section 9.4(g);
(h) promptly upon their becoming available, and in any event
within 15 days following receipt thereof, all quarterly Arbitron
audience surveys and other ratings reports prepared by Arbitron
Rating Company with respect to the Stations owned or operated by
the Borrower or any of its Subsidiaries that relate to the most
recent "twelve plus" Arbitron ratings for each such Station and the
most recent ratings for each such Station's target demographics;
and
(i) from time to time such other financial data and
information (including accountants' management letters) as the
Managing Agent or any Bank may reasonably request; and
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(j) promptly upon their becoming available, copies of all
annual appraisals of the then current business value of the
Borrower and its Subsidiaries conducted, commissioned or received
by the Borrower, whether prepared by an independent appraiser or
otherwise.
9.5. NOTICES.
9.5.1. DEFAULTS. The Borrower will promptly notify the
Managing Agent and each of the Banks in writing of the occurrence
of any Default or Event of Default. If any Person shall give any
notice or take any other action in respect of a claimed default
(whether or not constituting a Default or an Event of Default)
under this Credit Agreement or any other note, evidence of
indebtedness, indenture or other obligation to which or with
respect to which the Borrower or any of its Subsidiaries is a party
or obligor, whether as principal or surety, the Borrower shall
forthwith give written notice thereof to each of the Banks and the
Managing Agent, describing the notice or action and the nature of
the claimed default.
9.5.2. ENVIRONMENTAL EVENTS. The Borrower will promptly
give notice to the Managing Agent (a) of any violation of any
Environmental Law that the Borrower or any of its Subsidiaries
reports in writing or is reportable by such Person in writing (or
for which any written report supplemental to any oral report is
made) to any federal, state or local environmental agency and (b)
upon becoming aware thereof, of any inquiry, proceeding,
investigation, or other action, including a notice from any agency
of potential environmental liability, or any federal, state or
local environmental agency or board, that has the potential to
materially affect the business, assets, liabilities, financial
conditions or operations of the Borrower or any of its
Subsidiaries, or the Managing Agent's security interests pursuant
to the Security Documents.
9.5.3. NOTIFICATION OF CLAIMS AGAINST COLLATERAL. The
Borrower will, immediately upon becoming aware thereof, notify the
Managing Agent in writing of any setoff, claims (including, with
respect to the Real Estate, environmental claims), withholdings or
other defenses to which any of the Collateral, or the Managing
Agent's rights with respect to the Collateral, are subject.
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9.5.4. NOTICE OF LITIGATION AND JUDGMENTS. The Borrower
will, and will cause each of its Subsidiaries to, give notice to
the Managing Agent in writing within fifteen (15) days of becoming
aware of any litigation or proceedings threatened in writing or any
pending litigation or proceedings affecting the Borrower or any of
its Subsidiaries or to which the Borrower or any of its
Subsidiaries is or becomes a party involving an uninsured claim
against the Borrower or any of its Subsidiaries that could
reasonably be expected to have a materially adverse effect on the
Borrower or any of its Subsidiaries, or on any of such Person's
material assets or properties, and stating the nature and status
of such litigation or proceedings. The Borrower will, and will
cause each of its Subsidiaries to, give notice to the Managing
Agent, in writing, in form and detail satisfactory to the Managing
Agent, within ten (10) days of any judgment not covered by
insurance, final or otherwise, against the Borrower or any of its
Subsidiaries in an amount in excess of $250,000.
9.6. CORPORATE EXISTENCE; MAINTENANCE OF PROPERTIES. The Borrower
will do or cause to be done all things necessary to preserve and keep in
full force and effect its corporate existence, rights and franchises and
those of its Subsidiaries. It (a) will cause all of its properties and
those of its Subsidiaries used or useful in the conduct of its business
or the business of its Subsidiaries to be maintained and kept in good
condition, repair and working order and supplied with all necessary
equipment, (b) will make or cause to be made all necessary repairs,
renewals, replacements, betterments and improvements thereof, all as in
the judgment of the Borrower may be necessary so that the business
carried on in connection therewith may be properly and advantageously
conducted at all times, (c) will, and will cause each of its
Subsidiaries (other than the License Subsidiaries) to, continue to
engage primarily in the radio broadcasting and/or publishing businesses
now conducted by each of them and in related businesses, (d) will cause
each of its License Subsidiaries to engage solely in the business of
holding the FCC Licenses necessary for the Operating Subsidiaries to
operate the Stations operated by each of them and (e) will, and will
cause each of its Subsidiaries to, obtain, maintain, preserve, renew,
extend and keep in full force and effect all permits, rights, licenses,
franchises, authorizations patents, trademarks, copyrights and
privileges necessary for the proper conduct of its business, including
FCC Licenses; provided that nothing in this Section 9.6 shall prevent
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the Borrower from discontinuing the operation and maintenance of any of
its properties or those of its Subsidiaries if such discontinuance is,
in the judgment of the Borrower, desirable in the conduct of its or
their business and does not in the aggregate materially adversely affect
the business of the Borrower and its Subsidiaries on a consolidated
basis.
9.7. INSURANCE. The Borrower will, and will cause each of its
Subsidiaries to, maintain with financially sound and reputable insurers
insurance with respect to its properties and business against such
casualties and contingencies as shall be in accordance with the general
practices of businesses engaged in similar activities in similar
geographic areas and in amounts, containing such terms, in such forms
and for such periods as may be reasonable and prudent and in accordance
with the terms of the Security Agreements and written by such companies
as may be satisfactory to the Managing Agent, and to maintain business
interruption insurance in form satisfactory in all respects to the Banks
and the Managing Agent and in an amount with respect to each Station
owned by the Borrower or any of its Subsidiaries equal to 20% of the
operating cash flow of such Station for the previous fiscal year,
subject to a maximum of $700,000 for KPWR-FM, Los Angeles, California
for business interruption caused by earthquake; provided that, (a) in no
event will the deductible amount in respect of any covered loss exceed
an amount which is usual and customary for similar businesses engaged in
similar activities, (b) all policies of insurance shall be payable to
the Managing Agent as loss payee and additional insured for the benefit
of the Managing Agent and the Lenders and shall provide for thirty (30)
days' minimum cancellation notice to the Managing Agent, (c) in the
event of any failure by the Borrower or any of its Subsidiaries to
provide and maintain insurance as required herein or in the Security
Documents to which such Person is a party, the Managing Agent may, after
notice to the Borrower to such effect, provide such insurance and charge
the amount thereof to the Borrower and the Borrower hereby promises to
pay to the Managing Agent on demand the amount of any disbursements made
by the Managing Agent for such purpose, and (d) the Borrower shall
furnish to the Managing Agent certificates or other evidence
satisfactory to the Managing Agent of compliance with the foregoing
provisions. The Borrower will, and will cause each of its Subsidiaries
to, maintain insurance on the Mortgaged Properties in accordance with
the terms of the Mortgages.
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9.8. TAXES. The Borrower will, and will cause each of its
Subsidiaries to, duly pay and discharge, or cause to be paid and
discharged, before the same shall become overdue, all taxes, assessments
and other governmental charges (other than taxes, assessments and other
governmental charges imposed by foreign jurisdictions that in the
aggregate are not material to the business or assets of the Borrower on
an individual basis or of the Borrower and its Subsidiaries on a
consolidated basis) imposed upon it and its real properties, sales and
activities, or any part thereof, or upon the income or profits
therefrom, as well as all claims for labor, materials, or supplies that
if unpaid might by law become a lien or charge upon any of its property;
provided that any such tax, assessment, charge, levy or claim need not
be paid if the validity or amount thereof shall currently be contested
in good faith by appropriate proceedings and if the Borrower or such
Subsidiary shall have set aside on its books adequate reserves with
respect thereto; and provided further that the Borrower and each
Subsidiary of the Borrower will pay all such taxes, assessments,
charges, levies or claims forthwith upon the commencement of proceedings
to foreclose any lien that may have attached as security therefor.
9.9. INSPECTION OF PROPERTIES AND BOOKS, ETC..
9.9.1. GENERAL. The Borrower shall permit the Banks,
through the Managing Agent or any of the Banks' other designated
representatives, to visit and inspect any of the properties of the
Borrower or any of its Subsidiaries to examine the books of account
of the Borrower and its Subsidiaries (and to make copies thereof
and extracts therefrom), and to discuss the affairs, finances and
accounts of the Borrower and its Subsidiaries with, and to be
advised as to the same by, its and their officers, all at such
reasonable times and intervals as the Managing Agent or any Bank
may reasonably request.
9.9.2. APPRAISALS. If an Event of Default under Section
16.1(a) or (b) hereof shall have occurred and be continuing, upon
the request of the Managing Agent, the Borrower will obtain and
deliver to the Managing Agent appraisal reports in form and
substance and from appraisers satisfactory to the Managing Agent,
stating (a) the then current fair market, orderly liquidation and
forced liquidation values of all or any portion of the equipment
or real estate owned by the Borrower or any of its Subsidiaries and
any Station and (b) the then current business value of each of the
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Borrower and its Subsidiaries. All such appraisals shall be
conducted and made at the expense of the Borrower.
9.9.3. ENVIRONMENTAL ASSESSMENTS. Whether or not an Event
of Default shall have occurred, the Managing Agent may, from time
to time, in its discretion for the purpose of assessing and
ensuring the value of any Mortgaged Property, obtain one or more
environmental assessments or audits of such Mortgaged Property
prepared by a hydrogeologist, an independent engineer or other
qualified consultant or expert approved by the Managing Agent to
evaluate or confirm (a) whether any Hazardous Substances are present
in the soil or water at such Mortgaged Property and (b) whether the
use and operation of such Mortgaged Property complies with all
Environmental Laws; provided, that such assessments shall be
conducted only if in the reasonable judgment of the Managing Agent
or of the Majority Banks there is a basis for believing any such
environmental problems may exist. Environmental assessments may
include without limitation detailed visual inspections of such
Mortgaged Property including any and all storage areas, storage
tanks, drains, dry wells and leaching areas, and the taking of soil
samples, surface water samples and ground water samples, as well
as such other investigations or analyses as the Managing Agent
deems appropriate. All such environmental assessments shall be
conducted and made at the expense of the Borrower.
9.9.4. COMMUNICATION WITH ACCOUNTANTS. The Borrower
authorizes the Managing Agent and, if accompanied by the Managing
Agent, any of the Banks to communicate directly with the Borrower's
independent certified public accountants and authorizes such
accountants to disclose to the Managing Agent and the Banks any and
all financial statements and other supporting financial documents
and schedules including copies of any management letter with
respect to the business, financial condition and other affairs of
the Borrower or any of its Subsidiaries. At the request of the
Managing Agent, the Borrower shall deliver a letter addressed to
such accountants instructing them to comply with the provisions of
this Section 9.9.4.
9.10. COMPLIANCE WITH LAWS, CONTRACTS, LICENSES, AND PERMITS.
(a) The Borrower will, and will cause each of its Subsidiaries to,
comply with (i) the applicable laws and regulations wherever its
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business is conducted, including all Environmental Laws and the
Communications Act, unless failure to comply would not result in the
imposition of substantial penalties or materially and adversely affect
the financial condition, properties or business of the Borrower or the
Borrower and its Subsidiaries taken as a whole, (ii) the provisions of
its charter documents and by-laws, (iii) all agreements and instruments
by which it or any of its properties may be subject or bound and (iv)
all applicable decrees, orders, and judgments, unless failure to comply
therewith would not result in the imposition of substantial penalties or
materially and adversely affect the financial condition, properties or
business of the Borrower or the Borrower and its Subsidiaries taken as
a whole. If at any time any authorization, consent, approval, permit or
license from any officer, agency or instrumentality of any government
shall become necessary or required in order that the Borrower may
fulfill any of its obligations hereunder, the Borrower will immediately
take or cause to be taken all reasonable steps within the power of the
Borrower to obtain such authorization, consent, approval, permit or
license and furnish the Banks with evidence thereof.
(b) The Borrower will, and will cause each of its Subsidiaries to,
(i) operate its Stations in all material respects in accordance with and
in compliance with the Communications Act, (ii) file in a timely manner
all necessary applications for renewal of all FCC Licenses that are
material to the operations of its Stations, (iii) use its best efforts
to defend any proceedings which could result in the termination,
forfeiture or non-renewal of any FCC License, and (iv) promptly furnish
or cause to be furnished to the Managing Agent: (A) a copy of any order
or notice of the FCC which designates any of the Borrower's or any of
its Subsidiaries' FCC Licenses for a hearing or which refuses renewal or
extension thereof, or reverses or suspends its or any of its
Subsidiaries' authority to operate a Station, (B) a copy of any
competing application filed with respect to any of its franchises,
licenses (including FCC Licenses), rights, permits, consents or other
authorizations pursuant to which the Borrower or any of the Borrower's
Subsidiaries operates any Station, (C) a copy of any citation, notice of
violation or order to show cause issued by the FCC in relation to any of
the Borrower's or any of its Subsidiaries' Stations and (D) a copy of
any notice or application by the Borrower or any of its Subsidiaries
requesting authority to cease broadcasting on any Station or to cease
operating any Station for any period in excess of five (5) days.
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9.11. EMPLOYEE BENEFIT PLANS. The Borrower will (a) promptly upon
filing the same with the Department of Labor or Internal Revenue
Service, upon request of the Managing Agent, furnish to the Managing
Agent a copy of the most recent actuarial statement required to be
submitted under Section 103(d) of ERISA and Annual Report, Form 5500,
with all required attachments, in respect of each Guaranteed Pension
Plan, and (b) promptly upon receipt or dispatch, furnish to the Managing
Agent any notice, report or demand sent or received in respect of a
Guaranteed Pension Plan under Sections 302, 4041, 4042, 4043, 4063,
4065, 4066 and 4068 of ERISA, or in respect of a Multiemployer Plan,
under Sections 4041A, 4202, 4219, 4242, or 4245 of ERISA.
9.12. USE OF PROCEEDS. The Borrower will use the proceeds of the
Loans solely for the purposes specified in Section 8.17 above.
9.13. ADDITIONAL COLLATERAL. The Borrower will, and will cause each
of its Subsidiaries to, from time to time at its own cost and expense,
promptly secure or cause to be secured the Obligations by creating or
causing to be created in favor of the Managing Agent for the benefit of
the Banks perfected security interests (subject only to Permitted Liens)
with respect to all inventory, receivables,
equipment, accounts, copyrights, patents, trademarks, licenses, other
general intangibles, real property and other assets of the Borrower and
its Subsidiaries, now owned or hereafter acquired, to the extent the
Managing Agent shall so request. All such security interests will be
created under security agreements, mortgages and other instruments and
documents in form and substance satisfactory to the Managing Agent, and
the Borrower shall deliver to the Managing Agent all such instruments
and documents (including, without limitation, legal opinions, title
insurance policies and lien searches) as the Managing Agent shall
reasonably request to evidence the satisfaction of the obligations
created by this Section 9.13 . The Borrower agrees to provide such
evidence as the Managing Agent shall request as to the perfection and
priority of such security interests (subject only to Liens permitted by
the Security Documents).
9.14. INTEREST RATE PROTECTION. The Borrower shall enter into and
maintain in full force and effect at all times during the three (3) year
period following the Closing Date while any Loans are outstanding or any
Commitment remains in effect, on terms and conditions satisfactory to
the Managing Agent, agreements and arrangements ("Interest Rate
Protection Agreements") as shall be necessary to effectively cap or fix
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the interest cost to the Borrower with respect to (a) at any time during
such three (3) year period when the Total Leverage Ratio determined as at
the last day of the period
of four (4) consecutive fiscal quarters most recently ended, equals or
exceeds 5.00:1.00, not less than fifty percent (50%) of the amount equal
to Total Funded Debt as of the last day of such four (4) quarter period
less the Maximum Drawing Amount available under Letters of Credit
outstanding during such period and (b) at any time during such three (3)
year period when the Total Leverage Ratio determined as at the last day of
the period of four (4)
consecutive fiscal quarters most recently ended, is less than 5.00:1.00,
not less than twenty-five percent (25%) of the amount equal to Total
Funded Debt as of the last day of such four (4) quarter period less the
Maximum Drawing Amount available under Letters of Credit outstanding
during such period.
9.15. HOLDING COMPANY. The Borrower shall use its best efforts to
prevent the Holding Company from, at any time, engaging in any business
activity other than (a) holding beneficially all of the issued and
outstanding capital stock of the Borrower and (b) incurring Indebtedness
permitted by Section 10.1(k) hereof.
9.16. FURTHER ASSURANCES. The Borrower will, and will cause each of
its Subsidiaries to, cooperate with the Banks and the Managing Agent and
execute such further instruments and documents as the Banks or the
Managing Agent shall reasonably request to carry out to their
satisfaction the transactions contemplated by this Credit Agreement and
the other Loan Documents.
10. CERTAIN NEGATIVE COVENANTS OF THE BORROWER.
The Borrower covenants and agrees that until all of the Obligations
have been irrevocably paid and satisfied in full, and, so long as any
Loan, Note or Letter of Credit is outstanding or any Bank has any
obligation to make any Loans, or the Managing Agent has any obligation
to issue, extend or renew any Letters of Credit hereunder:
10.1. RESTRICTIONS ON INDEBTEDNESS. The Borrower will not, and will
not permit any of its Subsidiaries or the Holding Company to, create,
incur, assume, guarantee or be or remain liable, contingently or
otherwise, with respect to any Indebtedness other than:
(a) Indebtedness to the Banks and the Managing Agent arising
under any of the Loan Documents;
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(b) current liabilities of the Borrower or such Subsidiary
(including under any operating leases and studio and tower leases)
incurred in the ordinary course of business not incurred through
(i) the borrowing of money, or (ii) the obtaining of credit except
for credit on an open account basis customarily extended and in
fact extended in connection with normal purchases of goods and
services;
(c) Indebtedness in respect of taxes, assessments,
governmental charges or levies and (except in the case of the
License Subsidiaries) claims for labor, materials and supplies to
the extent that payment therefor shall not at the time be required
to be made in accordance with the provisions of Section 9.8 hereof;
(d) Indebtedness in respect of (i) judgments or awards that
have been in force for less than the applicable period for taking
an appeal so long as execution is not levied thereunder or in
respect of which the Borrower or such Subsidiary (as the case may
be) shall at the time in good faith be prosecuting an appeal or
proceedings for review and in respect of which a stay of execution
shall have been obtained pending such appeal or review, (ii) final
judgments against the Borrower or any of its Subsidiaries that in
the aggregate do not exceed $1,000,000 and (iii) claims which are
currently being contested in good faith by appropriate proceedings
if adequate reserve shall have been set aside with respect thereto;
(e) endorsements for collection, deposit or negotiation
other than by any License Subsidiary and warranties of products or
services, in each case incurred in the ordinary course of business;
(f) obligations (other than obligations of any License
Subsidiary) under Capitalized Leases not exceeding $5,000,000 in
aggregate amount at any time outstanding;
(g) Indebtedness incurred after the Closing Date in
connection with the acquisition of any real or personal property
by the Borrower or any Subsidiary of the Borrower (other than any
License Subsidiary) after the Closing Date; provided that, the
aggregate principal amount of such Indebtedness of the Borrower and
its Subsidiaries, collectively, shall not exceed (i) the aggregate
amount of $3,000,000 at any one time and (ii) the lesser of the
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purchase price for such property or the fair market value of such
property at the time of such acquisition;
(h) Indebtedness existing on the Closing Date and listed and
described on Schedule 10.1 hereto;
(i) Indebtedness of a Subsidiary of the Borrower owing to
the Borrower or to any wholly-owned Subsidiary of the Borrower;
(j) Indebtedness in respect of interest rate protection
Agreements entered into pursuant to Section 9.14 above;
(k) Indebtedness of the Borrower and/or the Holding Company,
collectively, in an aggregate amount not to exceed $150,000,000;
provided that (i) neither Person incurs such Indebtedness prior to
the Secondary Closing Date, (ii) such Indebtedness is unsecured and
fully subordinated, on terms satisfactory to the Managing Agent and
the Super Majority Banks, to the Obligations and the Managing
Agent's and the Banks' rights hereunder and under the other Loan
Documents, (iii) no Default or Event of Default has occurred and
is continuing immediately prior to the incurrence thereof and no
Default or Event of Default will result therefrom, (iv) the terms
of such Indebtedness prohibits payments of principal thereof prior
to one (1) year after the Maturity Date, and (v) to the extent the
Holding Company incurs such Indebtedness, the proceeds therefrom
are contributed as an equity contribution to the Borrower; and
(l) other Indebtedness, contingent or otherwise, in an
aggregate amount outstanding at any one time not to exceed
$5,000,000.
10.2. RESTRICTIONS ON LIENS. The Borrower will not, and will not
permit any of its Subsidiaries to, (a) create or incur or suffer to be
created or incurred or to exist any lien, encumbrance, mortgage, pledge,
charge, restriction or other security interest of any kind upon any of
its property or assets of any character whether now owned or hereafter
acquired, or upon the income or profits therefrom; (b) transfer any of
such property or assets or the income or profits therefrom for the
purpose of subjecting the same to the payment of Indebtedness or
performance of any other obligation in priority to payment of its
general creditors; (c) acquire, or agree or have an option to acquire,
any property or assets upon conditional sale or other title retention or
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purchase money security agreement, device or arrangement; (d) suffer to
exist for a period of more than thirty (30) days after the same shall
have been incurred any Indebtedness or claim or demand against it that
if unpaid might by law or upon bankruptcy or insolvency, or otherwise,
be given any priority whatsoever over its general creditors; or (e)
sell, assign, pledge or otherwise transfer any accounts, contract
rights, general intangibles, chattel paper or instruments, with or
without recourse; provided that the Borrower and any Subsidiary of the
Borrower may create or incur or suffer to be created or incurred or to
exist:
(i) liens to secure taxes, assessments and other
government charges in respect of obligations not overdue or
liens on properties to secure claims for labor, material or
supplies in respect of obligations not overdue;
(ii) deposits or pledges made in connection with,
or to secure payment of, workmen's compensation, unemployment
insurance, old age pensions or other social security
obligations;
(iii) liens on properties in respect of judgments or
awards, the Indebtedness with respect to which is permitted
by Section 10.1(d) hereof;
(iv) liens of carriers, warehousemen, mechanics and
materialmen, and other like liens on properties in existence
less than 120 days from the date of creation thereof in
respect of obligations not overdue; provided that, such liens
are being contested in good faith and by appropriate
proceedings;
(v) encumbrances on Real Estate consisting of
easements, rights of way, zoning restrictions, restrictions
on the use of real property and defects and irregularities in
the title thereto, landlord's or lessor's liens under leases
to which the Borrower or a Subsidiary of the Borrower is a
party, and other minor liens or encumbrances none of which in
the opinion of the Borrower interferes materially with the
use of the property affected in the ordinary conduct of the
business of the Borrower and its Subsidiaries, which defects
do not individually or in the aggregate have a materially
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adverse effect on the business of the Borrower individually
or of the Borrower and its Subsidiaries on a consolidated
basis;
(vi) liens existing on the Closing Date and listed
on Schedule 10.2 hereto;
(vii) purchase money security interests in or
purchase money mortgages on real or personal property
acquired after the Closing Date (other than Mortgaged
Properties) to secure purchase money Indebtedness of the type
and amount permitted by Section 10.1(g) hereof, incurred in
connection with the acquisition of such property, which
security interests or mortgages cover only the real or
personal property so acquired;
(viii) liens and encumbrances on each Mortgaged
Property as and to the extent permitted by the Mortgage
applicable thereto; and
(ix) liens in favor of the Managing Agent for the
benefit of the Banks and the Managing Agent under the Loan
Documents.
10.3. RESTRICTIONS ON INVESTMENTS. The Borrower will not, and will
not permit any of its Subsidiaries to, make or permit to exist or to
remain outstanding any Investment except Investments in:
(a) marketable direct or guaranteed obligations of the
United States of America that mature within one (1) year from the
date of purchase by the Borrower;
(b) demand deposits, certificates of deposit, bankers
acceptances and time deposits of United States banks having total
assets in excess of $1,000,000,000;
(c) securities commonly known as "commercial paper" issued
by a corporation organized and existing under the laws of the
United States of America or any state thereof that at the time of
purchase have been rated and the ratings for which are not less
than "P 1" as rated by Moody's Investors Services, Inc., and not
less than "A 1" as rated by Standard and Poor's;
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(d) Investments existing on the Closing Date and listed on
Schedule 10.3 hereto, including the Investments described elsewhere
in this Section 10.3 and existing on the Closing Date and the
Investment by the Borrower in Entercitement, LLC, an Indiana
limited liability company, in an aggregate amount not in excess of
$4,500,000;
(e) subject to the limitations set forth in Section 10.3(m)
hereof, Investments with respect to Indebtedness permitted by
Section 10.1(i) so long as such entities remain Subsidiaries of the
Borrower;
(f) Investments consisting of the Guaranty or, so long as
such entities remain Subsidiaries of the Borrower, Investments by
the Borrower or by a Subsidiary of the Borrower in wholly-owned
direct or indirect Subsidiaries of the Borrower existing on the
Closing Date;
(g) Investments consisting of promissory notes received as
proceeds of asset dispositions permitted by Section 10.5 below;
(h) Investments (in addition to those permitted pursuant to
clause (j) below) consisting of loans and advances to executive
officers and employees of the Borrower or its Subsidiaries for
moving, entertainment, travel and other similar expenses in the
ordinary course of business not to exceed $500,000 in the aggregate
at any time outstanding;
(i) Investments by the Borrower in non-broadcasting
businesses related to the current businesses of the Borrower and
its Subsidiaries not to exceed $10,500,000 in the aggregate at any
time outstanding;
(j) Investments on terms and conditions acceptable to the
Banks, consisting of loans to executive officers of the Borrower
not to exceed the aggregate principal amount of $2,000,000 at any
time outstanding; provided that, prior to making any such
Investment, the Total Leverage Ratio determined as at the last day of
of the most recently ended fiscal quarter, is less than 5.00:1.00;
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(k) Investments by the Borrower or a Subsidiary of the
Borrower in Subsidiaries formed for the purpose of consummating
Permitted Acquisitions;
(l) Investments made after the Closing Date of a character
not described under (a) through (k) of this Section 10.3 in an
aggregate amount not exceeding $1,000,000 at any time;
(m) additional Investments by the Borrower and any of its
Subsidiaries (provided that the Managing Agent has received a
pledge of all of the issued and outstanding shares of capital stock
of each such Subsidiary and a first-priority security interest in
all of the assets and properties of each such Subsidiary prior
thereto), in broadcasting businesses not to exceed $20,000,000 in
aggregate amount at any time outstanding;
(n) Investments by the Borrower in Emmis International
Corporation, which Investments shall be limited to (i) Investments
in an amount not to exceed the amount of operating expenses
incurred by Emmis International Corporation; provided that, the
Borrower delivers to each of the Banks on an annual basis, a
detailed statement of the operating expenses incurred by Emmis
International Corporation as required by Section 9.4(d) above, and
(ii) Investments in an amount not to exceed the aggregate amount
of Investments made by Emmis International Corporation permitted
by Section 10.3(m) above; and
provided, however, that, with the exception of Investments referred to
in Sections 10.3(a), (b), (c), (d) (other than Emmis Meadowlands
Corporation's limited partnership interest in Ten Fifty Limited
Partnership and, to the extent evidenced by an instrument, loans to
Jeffrey Smulyan), (e) (if such Investments under subsection (e) are not
evidenced by an instrument), (h), (l) and (n) above, such Investments
will be considered Investments permitted by this Section 10.3 only if
all actions have been taken to the satisfaction of the Managing Agent to
provide to the Managing Agent, for the benefit of the Banks and the
Managing Agent, a first-priority perfected security interest in all of
such Investments free of all encumbrances other than Permitted Liens.
10.4. RESTRICTED PAYMENTS. The Borrower will not, and will not
permit any Subsidiary to make any Restricted Payments other than (a)
Restricted Payments by any Subsidiary of the borrower to the Borrower or
<PAGE>
<PAGE>
to any other wholly-owned direct or indirect Subsidiary of the borrower,
(b) payments by the Borrower to its employees pursuant to its profit
sharing plan, as in effect on the Closing Date, of cash in exchange for
fractional shares of the Borrower's Common Stock, (c) so long as no
Default or Event of Default has occurred or is continuing or would occur
as a result thereof, payments by the Borrower in an aggregate amount not
to exceed $25,000,000 to repurchase shares of the borrower's Common
Stock, and (d) so long as no Default or Event of Default has occurred or
is continuing or would occur as a result thereof, scheduled payments of
interest by the Borrower on Indebtedness permitted by Section 10.1(k)
above.
10.5. MERGERS, ACQUISITIONS, DISPOSITIONS OF ASSETS. Except as
permitted by Section 10.3 above, the Borrower will not, and will not
permit any of its Subsidiaries to, become a party to any merger or
consolidation, or agree to or effect any acquisition or Sale of assets
or enter into any local market agreement or time brokerage agreement
except:
(a) the merger or consolidation of two or more wholly-owned
direct or indirect Subsidiaries of the Borrower;
(b) the acquisition of assets (other than Station
Acquisitions), the disposition of assets (other than Stations or
Subsidiaries), and the disposition of items of obsolete equipment
which are not material to the operation of the business of the
Borrower or its Subsidiaries, in each case in the ordinary course
of business consistent with past practices;
(c) any Station Acquisition (including through a
simultaneous exchange of Stations of the type described in Section
10.5(f) below) after the Secondary Closing Date; provided that, (i)
either the Total Leverage Ratio determined as at the last day of
the period of four (4)
consecutive fiscal quarters most recently ended, prior to such
Station Acquisition and after giving pro forma effect to such
Station Acquisition is less than or equal to 5.50:1.00, or the
Majority Banks shall have given their prior written consent to such
Station Acquisition, (ii) either seventy-five percent (75%) or more
of the consolidated cash flow from the Stations acquired as part
of such Station Acquisition is generated from Stations in one of
the top 30 "areas of dominant influence" as determined by Arbitron
Rating Company, or the Majority Banks shall have given their prior
<PAGE>
<PAGE>
written consent to such Station Acquisition, (iii) no Default or
Event of Default has occurred and is continuing immediately prior
to such acquisition or would result therefrom, (iv) the Borrower
has delivered to each of the Banks and the Managing Agent such
financial projections as shall be necessary, in the judgment of the
Managing Agent, to demonstrate that, after giving effect to such
Station Acquisition, all covenants contained herein will be
satisfied on a pro forma basis and that the Borrower's ability to
satisfy its payment obligations hereunder and under the other Loan
Documents will not be impaired in any way, (v) such Station
Acquisition is consummated by a Subsidiary of the Borrower whose
stock has been pledged to the Managing Agent, any FCC Licenses
acquired in the Station Acquisition shall be held in a separate
Subsidiary of the Borrower whose shares have been pledged to the
Managing Agent and such Subsidiaries shall have executed and
delivered a guaranty of the Obligations in favor of the Banks and
the Managing Agent substantially in the form of the Guaranty, (vi)
all acquired assets and properties (both personal and real) have
been pledged in favor of, or assigned to (as applicable), the
Managing Agent as security for the irrevocable payment and
performance in full of the Obligations pursuant to documentation
satisfactory to the Managing Agent and all filings or other actions
which the Managing Agent deems necessary or advisable to create a
first-priority lien in such assets and properties in favor of the
Managing Agent have been made or taken, (vii) all of the Borrower's
and/or its Subsidiaries' (as the case may be) rights and interests
in, to and under each contract and agreement entered into by any
such Person in connection with such Station Acquisition have been
assigned to the Managing Agent as additional security for the
irrevocable payment and performance in full of the Obligations,
pursuant to collateral assignments substantially in the form of the
Collateral Assignment of WQCD Contracts, (viii) no Stations which
the Borrower intends to exchange with Tribune in connection with
the WQCD Acquisition shall be acquired unless the consummation of
such Station Acquisition occurs on the WQCD Closing Date, and (ix)
the Borrower has delivered to the Managing Agent a duly executed
certificate substantially in the form of Exhibit G hereto;
(d) the WQCD Acquisition and the WTLC Acquisition; provided
that, (i) no Default or Event of Default has occurred and is
continuing immediately prior to such acquisition or would result
therefrom, (ii) the Borrower has demonstrated to the Managing
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Agent's satisfaction that after giving effect to such acquisition
all covenants contained herein will be satisfied on a pro forma
basis and that the borrower's ability to satisfy its payment
obligations hereunder and under the other Loan Documents will not
be impaired in any way, and (iii) each of the conditions specified
in Section 13 hereof and each of the conditions specified in
Section 14 hereof applicable to such acquisition shall have been
satisfied;
(e) the sale of any Station (including through a
simultaneous exchange of Stations of the type described in Section
10.5(f) below) after the Secondary Closing Date; provided that, (i)
the Net Proceeds from such Sale shall be applied to prepay the
Loans pursuant to Section 4.3(d) hereof, (ii) either (A) if the
operating cash flow of such Station for the previous four (4)
consecutive fiscal quarters plus the aggregate operating cash flow
of all other Stations disposed of by the Borrower (including
through a simultaneous exchange of Stations) during such period
(collectively, the "Stations' Cash Flow"), does not exceed twenty
percent (20%) of the Consolidated Broadcast Cash Flow of the
Borrower and its Subsidiaries for such period, the Majority Banks
shall have given their prior written consent to such Sale, or (B)
if the Stations' Cash Flow exceeds twenty percent (20%) of the
Consolidated Broadcast Cash Flow of the Borrower and its
Subsidiaries for the previous four (4) consecutive fiscal quarters,
the Super Majority Banks shall have given their prior written
consent to such Sale, and (iii) such Sale is pursuant to an arm's
length transaction for fair market value with a Person who is not
an Affiliate of the Borrower;
(f) the exchange after the Secondary Closing Date of any
Station owned by the borrower or any of its Subsidiaries for
another Station or Stations owned by a Person who is not an
Affiliate of the borrower; provided that (i) no Default or Event
of Default has occurred and is continuing immediately prior to such
exchange or would result therefrom, (ii) the Borrower has
demonstrated to the Managing Agent's satisfaction that after giving
effect to such exchange all covenants contained herein will be
satisfied on a pro forma basis and that the Borrower's ability to
satisfy its payment obligations hereunder and under the other Loan
Documents will not be impaired in any way, (iii) such exchange is
pursuant to an arm's-length transaction for fair market value, (iv)
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the Total Leverage Ratio determined as at the last day of the period
of four (4) consecutive the
fiscal quarters most recently ended, prior to such exchange does not
exceed 5.50:1.00, and (v) either (A) if the Stations' cash flow does
not exceed twenty percent
(20%) of the Consolidated Broadcast Cash Flow of the Borrower and its
Subsidiaries for the
previous four (4) consecutive fiscal quarters, the Majority Banks
shall have given their prior written consent to such exchange, or
(B) if the Stations' cash flow exceeds twenty percent (20%) of the
Consolidated Broadcast Cash Flow of the Borrower and its
Subsidiaries for the previous four (4) consecutive fiscal quarters,
the Super Majority Banks shall have given their prior written
consent to such exchange;
(g) the WQCD Time Brokerage Agreement; and
(h) Any other so-called "local market agreement" or "time
brokerage agreement" or any other agreement or arrangement pursuant
to which the Borrower or any of its Subsidiaries purchases
broadcast time on any other station (other than any Station owned
by the Borrower or any of its Subsidiaries) for the purpose of
programming such broadcast time; provided that, (i) no Default or
Event of Default has occurred and is continuing immediately prior
to the effectiveness of such agreement or arrangement, and no
Default or Event of Default would result from such agreement or
arrangement, (ii) the aggregate amount of payments required by the
Borrower and its Subsidiaries under all such agreements and
arrangements (exclusive of the WQCD Time Brokerage Agreement) shall
not exceed $1,000,000 during any fiscal year, and (iii) all of the
Borrower's and/or its Subsidiaries' (as the case may be) rights and
interests in, to and under each such agreement and arrangement have
been assigned to the Managing Agent as security for the irrevocable
payment and performance in full of the Obligations, pursuant to
collateral assignments substantially in the form of the Collateral
Assignment of WQCD Contracts; provided further that, if any such
agreement or arrangement contemplates a Station Acquisition, such
Station Acquisition must satisfy the provisions of Section 10.5(c)
above.
10.6. SALE AND LEASEBACK. The Borrower will not, and will not permit
any of its Subsidiaries to, enter into any arrangement, directly or
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<PAGE>
indirectly, whereby the Borrower or any Subsidiary of the Borrower shall
sell or transfer any property owned by it in order then or thereafter to
lease such property or lease other property that the Borrower or any
Subsidiary of the Borrower intends to use for substantially the same
purpose as the property being sold or transferred.
10.7. COMPLIANCE WITH ENVIRONMENTAL LAWS. The Borrower will not, and
will not permit any of its Subsidiaries to, (a) use any of the Real
Estate or any portion thereof for the handling, processing, storage or
disposal of Hazardous Substances, (b) cause or permit to be located on
any of the Real Estate any underground tank or other underground storage
receptacle for Hazardous Substances, (c) generate any Hazardous
Substances on any of the Real Estate, (d) conduct any activity at any
Real Estate or use any Real Estate in any manner so as to cause a
release (i.e., releasing, spilling, leaking, pumping, pouring, emitting,
emptying, discharging, injecting, escaping, leaching, disposing or
dumping) or threatened release of Hazardous Substances on, upon or into
the Real Estate or (e) otherwise conduct any activity at any Real Estate
or use any Real Estate in any manner that would violate any
Environmental Law or bring such Real Estate in violation of any
Environmental Law.
10.8. EMPLOYEE BENEFIT PLANS. Neither the Borrower nor any ERISA
Affiliate will:
(a) engage in any "prohibited transaction" within the
meaning of Section 406 of ERISA or Section 4975 of the Code which
could result in a material liability for the Borrower or any of its
Subsidiaries; or
(b) permit any Guaranteed Pension Plan to incur an
"accumulated funding deficiency", as such term is defined in
Section 302 of ERISA, whether or not such deficiency is or may be
waived; or
(c) fail to contribute to any Guaranteed Pension Plan to an
extent which, or terminate any Guaranteed Pension Plan in a manner
which, could result in the imposition of a lien or encumbrance on
the assets of the Borrower or any of its Subsidiaries pursuant to
Sections 302(f) or 4068 of ERISA; or
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(d) permit or take any action which would result in the
aggregate benefit liabilities (with the meaning of Section 4001 of
ERISA) of all Guaranteed Pension Plans exceeding the value of the
aggregate assets of such Plans, disregarding for this purpose the
benefit liabilities and assets of any such Plan with assets in
excess of benefit liabilities.
10.9. WQCD ACQUISITION DOCUMENTS. The Borrower will not, and will
not permit any of its Subsidiaries to, amend either of the Option
Agreement of the WQCD Time Brokerage Agreement in any way without the
prior written consent of the Majority Banks, which consent shall not be
unreasonably withheld.
11. FINANCIAL COVENANTS OF THE BORROWER.
The Borrower covenants and agrees that, until all of the Obligations
have been irrevocably paid and satisfied in full, and so long as any
Loan, Note or Letter of Credit is outstanding or any Bank has any
obligation to make any Loans, or the Managing Agent has any obligation
to issue, extend or renew any Letters of Credit hereunder:
11.1. CONSOLIDATED EBITDA TO CONSOLIDATED TOTAL INTEREST EXPENSE.
The Borrower will not permit the ratio of (a) Consolidated EBITDA for
any period of four (4) consecutive fiscal quarters ending during any
period described in the table set forth below to (b) Consolidated Total
Interest Expense for such period to be less than the ratio set forth
opposite the applicable period in such table:
<TABLE>
<CAPTION>
Period Ratio
<S> <C>
Closing Date through 2/27/01 2.00:1.00
2/28/01 and thereafter 2.50:1.00
</TABLE>
11.2. TOTAL LEVERAGE RATIO. The Borrower will not permit the Total
Leverage Ratio determined as at the last day of any fiscal quarter ending
during any
period described in the table set forth below, to exceed the ratio set
forth opposite such period in such table:
<TABLE>
<CAPTION>
Period Ratio
<S> <C>
Closing Date to 2/27/98 7.00:1.00
2/28/98 to 2/27/99 6.50:1.00
<PAGE>
<PAGE>
2/28/99 to 2/28/00 6.00:1.00
2/29/00 to 2/27/01 5.50:1.00
2/28/01 to 2/27/02 5.00:1.00
2/28/02 and thereafter 4.50:1.00
</TABLE>
11.3. SENIOR TOTAL LEVERAGE RATIO. as at the end of any fiscal
quarter during which any Indebtedness of the borrower or the Holding
Company of the type permitted under Section 10.1(k) above is
outstanding, the Borrower will not permit the Senior Total Leverage
Ratio determined as at the last day of any such period described in the
table set forth below, to
exceed the ratio set forth opposite such period in such table:
<TABLE>
<CAPTION>
Period Ratio
<S> <C>
Closing Date to 2/27/98 6.00:1.00
2/28/98 to 2/27/99 5.50:1.00
2/28/99 to 2/28/00 5.00:1.00
2/29/00 to 2/27/01 4.50:1.00
2/28/01 to 2/27/02 4.00:1.00
2/28/02 and thereafter 3.50:1.00
</TABLE>
11.4. PRO FORMA FIXED CHARGE COVERAGE RATIO. As at the end of any
fiscal quarter ending during any period set forth below, the Borrower
will not permit the Pro Forma Fixed Charge Coverage Ratio to be less
than the ratio set forth opposite such period in such table:
<TABLE>
<CAPTION>
Period Ratio
<S> <C>
Closing Date to 2/27/01 1.05:1.00
2/28/01 to 2/27/04 1.10:1.00
2/28/04 and thereafter 1.00:1.00
</TABLE>
12. CLOSING CONDITIONS.
The obligations of the Banks to make the initial Loans, and the
Managing Agent to issue any initial Letters of Credit shall be subject
to the satisfaction of the following conditions precedent on or prior to
the Closing Date:
12.1. LOAN DOCUMENTS. Each of the Loan Documents shall have been
duly executed and delivered by the respective parties thereto, shall be
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<PAGE>
in full force and effect and shall be in form and substance satisfactory
to each of the Banks. Each Bank shall have received a fully executed
copy of each such document.
12.2. CERTIFIED COPIES OF CHARTER DOCUMENTS. The Managing Agents
shall have received from the Borrower and each Subsidiary of the
Borrower, a copy of each of (a) its charter or other incorporation
documents, certified by the Secretary of State of the jurisdiction of
incorporation of such Person, as in effect on such date of
certification, and (b) its by-laws, certified by a duly authorized
officer of such Person to be true and complete on the Closing Date as in
effect on such date.
12.3. CORPORATE ACTION. All corporate action necessary for the valid
execution, delivery and performance by the Borrower and each of its
Subsidiaries of this Credit Agreement and the other Loan Documents to
which it is or is to become a party shall have been duly and effectively
taken, and evidence thereof satisfactory to the Banks shall have been
provided to each of the Banks.
12.4. INCUMBENCY CERTIFICATE. Each of the Banks shall have received
from the Borrower and each of its Subsidiaries an incumbency
certificate, dated as of the Closing Date, signed by a duly authorized
officer of the Borrower or such Subsidiary (as the case may be), and
giving the name and bearing a specimen signature of each individual who
shall be authorized: (a) to sign, in the name and on behalf of each of
the Borrower or such Subsidiary, each of the Loan Documents to which the
Borrower or such Subsidiary is or is to become a party; (b) in the case
of the Borrower, to make Loan Requests and Conversion Requests and to
apply for Letters of Credit; and (c) to give notices and to take other
action on its behalf under the Loan Documents.
12.5. FINANCIAL CONDITION. The Managing Agent shall be satisfied
that there has been no adverse change in the financial condition, assets
or business operations of the Borrower and its Subsidiaries since the
Balance Sheet Date.
12.6. VALIDITY OF LIENS.
(a) The Security Documents shall be effective to create in favor of
the Managing Agent a legal, valid and enforceable first-priority (except
for Permitted Liens entitled to priority under applicable law) security
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<PAGE>
interest in the Collateral. All filings, recordings, deliveries of
instruments and other actions necessary or desirable in the opinion of
the Managing Agent to protect and preserve such security interests shall
have been duly effected. The Managing Agent shall have received
evidence thereof in form and substance satisfactory to the Managing
Agent.
(b) Each owner of equity interests in any of the Borrower's
Subsidiaries shall have delivered to the Managing Agent the certificated
securities, if any, to be pledged pursuant to the applicable Pledge
Agreement and such certificated securities shall be either endorsed in
blank or with stock powers or other appropriate instruments of transfer
therefor executed in blank.
12.7. PERFECTION CERTIFICATES AND UCC SEARCH RESULTS. The Managing
Agent shall have received from each of the Borrower and its Subsidiaries
a completed and fully executed Perfection Certificate and the results of
UCC searches with respect to the Collateral, indicating no liens other
than Permitted Liens and otherwise in form and substance satisfactory to
the Managing Agent.
12.8. TAXES. The Managing Agent shall have received evidence of
payment of real estate taxes and municipal charges on all Real Estate
not delinquent on or before the Closing Date.
12.9. TITLE INSURANCE. The Managing Agent shall have received a
Title Policy covering each Mortgaged Property (or commitments to issue
such policies, with all conditions to issuance of the Title Policy
deleted by an authorized agent of the Title Insurance Company except to
the extent acceptable to the Managing Agent), together with proof of
payment of all fees and premiums for such policies, from the Title
Insurance Company and in amounts satisfactory to the Managing Agent,
insuring the interest of the Managing Agent and each of the Banks as
mortgagee under the Mortgages as of the Closing Date.
12.10. LANDLORD; LESSOR CONSENTS. The Borrower and its Subsidiaries
shall have delivered to the Managing Agent all consents required for the
Managing Agent to receive, as part of the Security Documents, a
collateral assignment of each material leasehold of personal property
and each material, non-recorded leasehold of real property, and a
mortgage of each material, recorded leasehold of real property, together
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<PAGE>
in each case with such estoppel certificates as the Managing Agent may
request.
12.11. CERTIFICATES OF INSURANCE. The Managing Agent shall have
received (a) a certificate of insurance from an independent insurance
broker dated as of the Closing Date, identifying insurers, types of
insurance, insurance limits, and policy terms, naming the Managing Agent
as loss payee and otherwise describing the insurance obtained in
accordance with the provisions of the Security Agreements and Section
9.7 hereof and (b) certified copies of all policies evidencing such
insurance (or certificates therefore signed by the insurer or an agent
authorized to bind the insurer).
12.12. OPINIONS OF COUNSEL. Each of the Banks and the Managing Agent
shall have received a favorable opinion addressed to the Banks and the
Managing Agent, dated as of the Closing Date, in form and substance
satisfactory to the Banks and the Managing Agent, from:
(a) Bose McKinney & Evans, counsel to the Borrower and its
Subsidiaries;
(b) local counsel to the Borrower and its Subsidiaries as
applicable; and
(c) FCC counsel to the Borrower and its Subsidiaries.
12.13. PAYMENT OF FEES. The Borrower shall have paid to the Managing
Agent and the Banks (as applicable) all fees, costs, expenses and
amounts owing and payable to such Persons on the Closing Date under this
Credit Agreement, including the fees specified in the Fee Letter which
are to be paid on or before the Closing Date and all fees and expenses
of the Managing Agent's Special Counsel and the expenses of the Managing
Agent.
12.14. ASSIGNMENT AND ACCEPTANCE. Each of the Existing Banks (as
defined in the preamble hereto) other than BKB shall have entered into
an Assignment and Acceptance with BKB, pursuant to which such Existing
Bank shall have assigned to BKB all of its interests, rights and
obligations under the Existing Credit Agreement and the "Notes" (as
defined in the Existing Credit Agreement) held by it, such that
immediately prior to the Closing Date, BKB shall be the sole "Bank"
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<PAGE>
under the Existing Credit Agreement and BKB shall own and have rights to
all interests and rights of the other Existing Banks thereunder.
12.15. DISBURSEMENT INSTRUCTIONS. The Managing Agent shall have
received a notice of borrowing and disbursement instructions from the
Borrower with respect to the proceeds of the Loans to be made on the
Closing Date.
12.16. FCC LICENSES; THIRD PARTY CONSENTS.
(a) The Borrower shall have furnished to the Managing Agent copies
of all FCC Licenses necessary for the operation of the business of each
of the Borrower and its Subsidiary or necessary for the operation of any
Station.
(b) The Borrower shall have furnished to the Managing Agent copies
of all agreements pursuant to which the Operating Subsidiaries shall
have acquired the rights to use the FCC Licenses held by the License
Subsidiaries, which agreements shall be in form and substance
satisfactory to the Banks and the Managing Agent.
(c) All other necessary governmental and third party consents to and
notices of the transactions contemplated by the Loan Documents shall
have been obtained and given, and evidence thereof satisfactory to the
Managing Agent shall have been provided to the Managing Agent
12.17. ACCOUNTANT'S LETTER. The Managing Agent shall have received
a copy of the letter to the Borrower's accountants pursuant to Section
9.9.4 above.
12.18. WQCD ACQUISITION. The Borrower and Tribune shall have each
executed each of the Option Agreement and the WQCD Time Brokerage
Agreement, and such Agreements (copies of which the Borrower shall have
delivered to the Managing Agent and the Banks prior to the Closing Date)
shall be in form and substance satisfactory to the Banks and shall be in
full force and effect on the Closing Date and no default in respect of
performance by any party thereto of such Person's obligations thereunder
shall have occurred and be continuing, and the Borrower shall have
executed and delivered to the Managing Agent the Collateral Assignment
of WQCD Contracts with respect to the Borrower's rights and interests
in, to and under the Option Agreement and the WQCD Time Brokerage
Agreement.
<PAGE>
<PAGE>
13. CONDITIONS TO ALL BORROWINGS.
The obligations of the Banks to make any Loans, and of the Managing
Agent to issue, extend or renew any Letter of Credit, in each case
whether on or after the Closing Date, shall also be subject to the
satisfaction of the following conditions precedent:
13.1. REPRESENTATIONS TRUE; NO EVENT OF DEFAULT. Each of the
representations and warranties of any of the Borrower and its
Subsidiaries contained in this Credit Agreement, the other Loan
Documents or in any document or instrument delivered pursuant to or in
connection herewith or therewith shall be true as of the date as of
which they were made and shall also be true at and as of the time of the
making of such Loan or the issuance, extension or renewal of such Letter
of Credit, with the same effect as if made at and as of that time
(except to the extent of changes resulting from transactions
contemplated or permitted by this Credit Agreement and the other Loan
Documents and changes occurring in the ordinary course of business that
singly or in the aggregate are not materially adverse, and to the extent
that such representations and warranties relate expressly to an earlier
date) and no Default or Event of Default shall have occurred and be
continuing.
13.2. NO LEGAL IMPEDIMENT. No change shall have occurred in any law
or regulations thereunder or interpretations thereof that in the
reasonable opinion of any Bank would make it illegal for such Bank to
make such Loan or to participate in the issuance, extension or renewal
of such Letter of Credit or, in the reasonable opinion of the Managing
Agent, would make it illegal for the Managing Agent to issue, extend or
renew such Letter of Credit.
13.3. GOVERNMENTAL REGULATION. Each Bank shall have received such
statements in substance and form reasonably satisfactory to such Bank as
such Bank shall require for the purpose of compliance with any
applicable regulations of the Comptroller of the Currency or the Board
of Governors of the Federal Reserve System.
13.4. PROCEEDINGS AND DOCUMENTS. All proceedings in connection with
the transactions contemplated by this Credit Agreement, the other Loan
Documents and all other documents incident hereto or thereto shall be
satisfactory in substance and in form to the Banks and to the Managing
Agent and the Managing Agent's Special Counsel, and the Banks, the
<PAGE>
<PAGE>
Managing Agent and such counsel shall have received all information and
such counterpart originals or certified or other copies of such
documents as the Managing Agent may reasonably request.
14. WQCD ACQUISITION and WTLC ACQUISITION CLOSING CONDITIONS.
The Borrower agrees to satisfy and perform in full each of the
following conditions precedent relevant to each of (a) the WQCD
Acquisition prior to or on the WQCD Closing Date and (b) the WTLC
Acquisition prior to or on the WTLC Closing Date:
(a) the Borrower shall have delivered to the Managing Agent
such amendments to the Security Documents and executed and
delivered such other documents, instruments and writings as are
necessary to grant the Managing Agent a first-priority security
interest in all of the assets and properties acquired by the
Borrower or any of its Subsidiaries in connection with the WQCD
Acquisition or the WTLC Acquisition (as the case may be);
(b) the Borrower shall have delivered to the Managing Agent
(i) a completed and fully executed Perfection Certificate for each
Subsidiary of the Borrower incorporated for the purpose of
facilitating the WQCD Acquisition or the WTLC Acquisition (as the
case may be) or of holding the assets so acquired or the related
licenses (each a "New Subsidiary"), each in form and substance
satisfactory to the Managing Agent, and (ii) the results of UCC
searches with respect to the Collateral of each such New
Subsidiary, indicating no liens other than Permitted Liens;
(c) the Borrower shall have filed, recorded and delivered
all instruments and taken all other actions necessary or desirable
in the opinion of the Managing Agent to perfect the Managing
Agent's security interest in all of the assets and properties
acquired by the borrower or any of its Subsidiaries in connection
with the WQCD Acquisition or the WTLC Acquisition (as the case may
be), and each such filing, recording and delivery shall have been
duly effected and the Managing Agent shall have received evidence
thereof in form and substance satisfactory to the Managing Agent;
);
(d) the Borrower shall have delivered to the Managing Agent
stock certificates representing all of the issued and outstanding
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capital stock of each New Subsidiary, duly endorsed in blank or
with stock powers attached thereto executed in blank;
(e) the Borrower shall have caused each New Subsidiary to
(i) enter into (A) a guaranty substantially in the form of the
Guaranty pursuant to which such New Subsidiary shall
unconditionally guaranty the irrevocable payment and performance
in full of the Obligations, (B) a security agreement substantially
in the form of the Subsidiary Security Agreement pursuant to which
such New Subsidiary shall grant a first-priority security interest
in favor of the Managing Agent in all of such New Subsidiary's
assets and properties, (C) a stock pledge agreement substantially
in the form of the Subsidiary Pledge Agreement pursuant to which
such New Subsidiary shall grant the Managing Agent a security
interest in all of the issued and outstanding shares of capital
stock of each Subsidiary of such New Subsidiary, and (D) if such
New Subsidiary owns or leases any Real Estate (including any
Station or Station tower), a mortgage substantially in the form of
the Mortgages (as applicable), related title insurance policies,
collateral assignments in the form of the Collateral Assignments
of Leases (as applicable) and all necessary consents from each
applicable landlord and lessor in form and substance satisfactory
to the Managing Agent, and (ii) take all actions necessary or
desirable in the opinion of the Managing Agent to perfect the
Managing Agent's security interest in all of the assets and
properties of such New Subsidiary (including, without limitation,
the delivery to the Managing Agent of stock certificates
representing all of the issued and outstanding capital stock of
each Subsidiary of such New Subsidiary, duly endorsed in blank or
with stock powers attached thereto executed in blank);
(f) the Borrower shall have delivered to the Managing Agent
copies of environmental reports with respect to the Real Estate (if
any) of WQCD-FM or WTLC-FM and WTLC-AM (as appropriate), in form
and substance satisfactory to the Managing Agent;
(g) the Managing Agent shall have received from each other
Person party to the WQCD Acquisition Documents or the WTLC
Acquisition Documents (as the case may be) and listed therein as
the "Seller", (i) a certificate of the Secretary of State in the
jurisdiction of its incorporation as to the legal existence and
good standing of such Person, (ii) its charter, certified as of a
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recent date by the Secretary of State of the jurisdiction of
incorporation of such Person, (iii) its by-laws, certified by a
duly authorized officer of such Person to be true and complete as
of the date of the WQCD Acquisition or the WTLC Acquisition (as
applicable), (iv) the resolutions of the Board of Directors of such
Person and, if required by applicable law, of its stockholders
authorizing the execution, delivery and performance of the WQCD
Acquisition Documents or the WTLC Acquisition Documents (as the
case may be) to which such Person is a party, certified by a duly
authorized officer of such Person, (v) a certificate of an officer
of such Person as to the incumbency and signature of officers
authorized to execute and deliver such documents, and (vi) a
certificate of the Secretary of State in each jurisdiction in which
such Person is required to be qualified to do business as to such
Person's qualification to do business in such jurisdiction;
(h) the Banks and the Managing Agent shall have received
opinions from counsel to the Borrower and its Subsidiaries, counsel
to each other Person a party to the WQCD Acquisition Documents or
the WTLC Acquisition Documents (as the case may be) and listed
therein as the "Seller", and FCC counsel to the Borrower and its
Subsidiaries, in each case as to the WQCD Acquisition and the WQCD
Acquisition Documents or the WTLC Acquisition and the WTLC
Acquisition Documents (as the case may be), and each in form and
substance satisfactory to the Banks and the Managing Agent;
(i) the Borrower shall have delivered to the Managing Agent
evidence satisfactory to the Managing Agent that (i) all liens and
encumbrances with respect to the properties and assets of WQCD-FM
or WTLC-FM and WTLC-AM (as the case may be), other than Permitted
liens, have been discharged in full and (ii) all outstanding
Indebtedness of WQCD-FM or WTLC-FM and WTLC-AM (as the case may
be), other than Indebtedness permitted by the Credit Agreement, has
been paid in full;
(j) the Borrower shall have delivered to the Managing Agent
(i) evidence that the Borrower has completed the WQCD Acquisition
in accordance with the terms of the WQCD Acquisition Documents or
the WTLC Acquisition in accordance with the terms of the WTLC
Acquisition Documents (as the case may be), and (ii) certified
copies of all such documents;
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(k) either (i) the FCC shall have issued orders approving
or consenting to the wqcd Acquisition or the WTLC Acquisition (as
the case may be) and such FCC consent shall be in full force and
effect on the wqcd Closing Date or the WTLC Closing Date (as
applicable) and such FCC consent shall have become final in the
sense that it is no longer subject to any further judicial or
administrative reconsideration or review, or (ii) the FCC shall
have approved the transfer of such FCC licenses contemplated by the
WQCD Acquisition Documents or the WTLC Acquisition Documents (as
the case may be) by staff action and no petitions or appeals shall
be pending before the FCC or threatened with respect to the
transfer of such FCC licenses; and
(l) the Borrower shall have furnished to the Managing Agent
a duly executed certificate substantially in the form of Exhibit
H hereto.
15. CORPORATE RESTRUCTURE CLOSING CONDITIONS.
The Borrower agrees to satisfy and perform in full each of the
following conditions precedent prior to or on the Corporate Restructure
Closing Date:
(a) the Borrower shall have delivered to the Managing Agent
(i) a completed and fully executed Perfection Certificate for each
of the Subsidiary of the Borrower incorporated for the purpose of
facilitating the Corporate Restructure (each such Subsidiary, a
"Corporate Restructure Subsidiary"), each in form and substance
satisfactory to the Managing Agent, and (ii) the results of UCC
searches with respect to the Collateral of each such Corporate
Restructure Subsidiary, indicating no liens other than Permitted
Liens;
(b) the Borrower shall have delivered to the Managing Agent
such amendments to the Security Documents and executed and
delivered such other documents, instruments and writings as are
necessary to grant the Managing Agent a first-priority security
interest in all of the assets and properties of the Borrower and
each of its Subsidiaries (including without limitation each of the
Corporate Restructure Subsidiaries), and filed and/or recorded (as
appropriate), and delivered evidence thereof to the Managing Agent,
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all instruments and taken all other actions necessary or desirable
in the opinion of the Managing Agent to perfect the Managing
Agent's security interests therein;
(c) the Borrower shall have delivered to the Managing Agent
stock certificates representing all of the issued and outstanding
capital stock of each of the Corporate Restructure Subsidiaries,
duly endorsed in blank or with stock powers attached thereto
executed in blank;
(d) the Borrower shall have caused each of the Corporate
Restructure Subsidiaries to (i) enter into (A) a guaranty
substantially in the form of the Guaranty pursuant to which such
Subsidiary shall unconditionally guaranty the irrevocable payment
and performance in full of the Obligations, (B) a security
agreement substantially in the form of the Subsidiary Security
Agreement pursuant to which such Subsidiary shall grant a first-priority
security interest in favor of the Managing Agent in all
of such Subsidiary's assets and properties, (C) a stock pledge
agreement substantially in the form of the Subsidiary Pledge
Agreement pursuant to which such Subsidiary shall grant the
Managing Agent a security interest in all of the issued and
outstanding shares of capital stock, and, as the case may, member
interests, of each Subsidiary of such Subsidiary, and (D) if such
Subsidiary owns or leases any Real Estate (including any Station
or Station tower), a mortgage substantially in the form of the
Mortgages (as applicable), related title insurance policies,
collateral assignments in the form of the Collateral Assignments
of Leases (as applicable) and all necessary consents from each
applicable landlord and lessor in form and substance satisfactory
to the Managing Agent, and (ii) take all actions necessary or
desirable in the opinion of the Managing Agent to perfect the
Managing Agent's security interest in all of the assets and
properties of such Subsidiary (including, without limitation, the
delivery to the Managing Agent of stock certificates representing
all of the issued and outstanding capital stock of each Subsidiary
of such Subsidiary, duly endorsed in blank or with stock powers
attached thereto executed in blank);
(e) the Banks and the Managing Agent shall have received
opinions from counsel to the Borrower and its Subsidiaries and FCC
counsel to the Borrower and its Subsidiaries, in each case as to
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the Borrower and its Subsidiaries (including each of the Corporate
Restructure Subsidiaries) and as to the Corporate Restructure, and
each in form and substance satisfactory to the Banks and the
Managing Agent;
(f) the Borrower shall have delivered to the Managing Agent
evidence, in form and substance satisfactory to the Managing Agent,
that the Borrower has completed the Corporate Restructure in
accordance with the chart set forth in Exhibit J hereto; and
(g) either (i) the FCC shall have issued orders approving
or consenting to the Corporate Restructure and such FCC consent
shall be in full force and effect on the Corporate Restructure
Closing Date and such FCC consent shall have become final in the
sense that it is no longer subject to any further judicial or
administrative reconsideration or review, or (ii) the FCC shall
have approved the transfer of such FCC licenses contemplated by the
Corporate Restructure by staff action and no petitions or appeals
shall be pending before the FCC or threatened with respect to the
transfer of such FCC licenses.
16. EVENTS OF DEFAULT; ACCELERATION; ETC.
16.1 EVENTS OF DEFAULT AND ACCELERATION. If any of the following
events ("Events of Default" or, if the giving of notice or the lapse of
time or both is required, then, prior to such notice or lapse of time,
"Defaults") shall occur:
(a) the Borrower shall fail to pay any principal of the
Loans or any Reimbursement Obligations when the same shall become
due and payable, whether at the stated date of maturity or any
accelerated date of maturity or at any other date fixed for
payment;
(b) the Borrower shall fail to pay any interest on the
Loans, any fee payable hereunder, or other sums due hereunder,
under any of the other Loan Documents or under the Fee Letter, when
the same shall become due and payable, whether at the stated date
of maturity or any accelerated date of maturity or at any other
date fixed for payment;
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(c) the Borrower shall fail to comply with any of its
covenants contained in Sections 9, 10 or 11 hereof or any of the
covenants contained in any of the Mortgages after expiration of any
applicable grace period provided for in the Mortgages;
(d) the Borrower or any of its Subsidiaries shall fail to
perform any term, covenant or agreement contained herein or in any
of the other Loan Documents (other than those specified elsewhere
in this Section 16) for fifteen (15) days after written notice of
such failure has been given to the Borrower by the Managing Agent;
(e) any representation or warranty of the Borrower, any of
its Subsidiaries or the Holding Company in this Credit Agreement
or any of the other Loan Documents or in any other document or
instrument delivered pursuant to or in connection with this Credit
Agreement shall prove to have been false in any material respect
upon the date when made or deemed to have been made or repeated;
(f) the Borrower or any of its Subsidiaries shall fail to
pay at maturity, or within any applicable period of grace, any
obligation for borrowed money or credit received or in respect of
any Capitalized Leases, in each case in any amount greater than
$250,000, or fail to observe or perform any material term, covenant
or agreement contained in any agreement by which it is bound,
evidencing or securing borrowed money or credit received or in
respect of any Capitalized Leases, in each case in any amount
greater than $250,000 for such period of time as would permit
(assuming the giving of appropriate notice if required) the holder
or holders thereof or of any obligations issued thereunder to
accelerate the maturity thereof;
(g) the Borrower, any of its Subsidiaries or the Holding
Company shall make an assignment for the benefit of creditors, or
admit in writing its inability to pay or generally fail to pay its
debts as they mature or become due, or shall petition or apply for
the appointment of a trustee or other custodian, liquidator or
receiver of the Borrower, any of its Subsidiaries or the Holding
Company or of any substantial part of the assets of the Borrower,
any of its Subsidiaries or the Holding Company or shall commence
any case or other proceeding relating to the Borrower, any of its
Subsidiaries or the Holding Company under any bankruptcy,
reorganization, arrangement, insolvency, readjustment of debt,
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dissolution or liquidation or similar law of any jurisdiction, now
or hereafter in effect, or shall take any action to authorize or
in furtherance of any of the foregoing, or if any such petition or
application shall be filed or any such case or other proceeding
shall be commenced against the Borrower, any of its Subsidiaries
or the Holding Company and the Borrower, any of its Subsidiaries
or the Holding Company shall indicate its approval thereof, consent
thereto or acquiescence therein, or if any involuntary proceeding
shall be commenced or an involuntary petition shall be filed
against the Borrower, any of its Subsidiaries or the Holding
Company and such proceeding or petition shall continue undismissed
for thirty (30) days;
(h) a decree or order is entered appointing any such
trustee, custodian, liquidator or receiver or adjudicating the
Borrower, any of its Subsidiaries or the Holding Company bankrupt
or insolvent, or approving a petition in any such case or other
proceeding, or a decree or order for relief is entered in respect
of the Borrower, any of its Subsidiaries or the Holding Company in
an involuntary case under federal bankruptcy laws as now or
hereafter constituted;
(i) there shall remain in force, undischarged, unsatisfied
and unstayed, for more than thirty (30) days, whether or not
consecutive, any final judgment against the Borrower or any of its
Subsidiaries that, with other outstanding final judgments,
undischarged, against the Borrower or any of its Subsidiaries
exceeds in the aggregate $250,000;
(j) if any of the Loan Documents shall be canceled,
terminated, revoked or rescinded or the Managing Agent's security
interests, mortgages or liens on or in a substantial portion of the
Collateral shall cease to be perfected, or shall cease to have the
priority contemplated by the Security Documents, in each case
otherwise than in accordance with the terms thereof or with the
express prior written agreement, consent or approval of the
Managing Agent and the Banks, or any action at law, suit or in
equity or other legal proceeding to cancel, revoke or rescind any
of the Loan Documents shall be commenced by or on behalf of the
Borrower or any of its Subsidiaries party thereto or any of their
respective stockholders, or any court or any other governmental or
regulatory authority or agency of competent jurisdiction shall make
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a determination that, or issue a judgment, order, decree or ruling
to the effect that, any one or more of the Loan Documents is
illegal, invalid or unenforceable in accordance with the terms
thereof;
(k) with respect to any Guaranteed Pension Plan, an ERISA
Reportable Event shall have occurred and the Majority Banks shall
have determined in their reasonable discretion that such event
reasonably could be expected to result in liability of the Borrower
or any of its Subsidiaries to the PBGC or such Guaranteed Pension
Plan in an aggregate amount exceeding $250,000 and such event in
the circumstances occurring reasonably could constitute grounds for
the termination of such Guaranteed Pension Plan by the PBGC or for
the appointment by the appropriate United States District Court of
a trustee to administer such Guaranteed Pension Plan; or a trustee
shall have been appointed by the United States District Court to
administer such Guaranteed Pension Plan; or the PBGC shall have
instituted proceedings to terminate such Guaranteed Pension Plan;
(l) the Borrower or any of its Subsidiaries shall be
enjoined, restrained or in any way prevented by the order of any
court or any administrative or regulatory agency from conducting
any material part of its business and such order shall continue in
effect for more than thirty (30) days;
(m) there shall occur any material damage to, or loss, theft
or destruction of, any Collateral, whether or not insured, or any
strike, lockout, labor dispute, embargo, condemnation, act of God
or public enemy, or other casualty, which in any such case causes,
for more than fifteen (15) consecutive days, the cessation or
substantial curtailment of revenue producing activities at any
Station of the Borrower or any of its Subsidiaries;
(n) there shall occur the loss, suspension or revocation of,
or failure to renew, any license or permit (including any FCC
License) now held or hereafter acquired by the Borrower or any of
its Subsidiaries if such loss, suspension, revocation or failure
to renew would have a material adverse effect on the business or
financial condition of the Borrower or such Subsidiary;
(o) the Borrower or any of its Subsidiaries shall be
indicted for a federal crime, a punishment for which could include
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the forfeiture of any assets of the Borrower or any of its
Subsidiaries having a fair market value in excess of $250,000;
(p) at any time prior to the incorporation of the Holding
Company, Jeffrey Smulyan shall (i) legally or beneficially own less
than 316,950 shares of the common stock of the Borrower, as
adjusted pursuant to any stock split, reverse stock split, stock
dividend or recapitalization or reclassification of the capital of
the Borrower, (ii) cease to own common stock having the right at
all times to elect a majority of the Board of Directors of the
Borrower or a majority of the Board of Directors of the Borrower
shall cease at any time to be comprised of Persons nominated or
otherwise approved by Jeffrey Smulyan, or (iii) cease to control
the outcome of any vote of the shareholders of the Borrower (except
as prohibited by Indiana corporate law to the extent such law
requires specific class majorities or unanimity and except with
respect to any vote of shareholders to take the Borrower private);
(q) at any time after the incorporation of the Holding
Company (i) the Holding Company shall legally or beneficially own
less than one hundred percent (100%) of the capital stock of the
Borrower, or (ii) Jeffrey Smulyan shall (A) legally or beneficially
own less than 316,950 shares of the common stock of the Holding
Company, as adjusted pursuant to any stock split, reverse stock
split, stock dividend or recapitalization or reclassification of
the capital of the Holding Company, (B) cease to own common stock
having the right at all times to elect a majority of the Board of
Directors of the Holding Company or a majority of the Board of
Directors of the Holding Company shall cease at any time to be
comprised of Persons nominated or otherwise approved by Jeffrey
Smulyan, or (C) cease to control the outcome of any vote of the
shareholders of the Holding Company (except as prohibited by
applicable corporate law to the extent such law requires specific
class majorities or unanimity and except with respect to any vote
of shareholders to take the Holding Company private);
(r) the on-the-air broadcasting operations of any Stations
owned by the Borrower or any of its Subsidiaries accounting for,
in the aggregate, ten percent (10%) or more of the consolidated net
operating revenues of the Borrower and its Subsidiaries (i) are
interrupted at any time for more than 120 hours during any period
of twenty (20) consecutive days and (ii) by the sixtieth day
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following such period, the Borrower shall not have received the
proceeds of business interruption insurance sufficient to cover the
aggregate lost operating revenues resulting from such interruption;
(s) the commencement of proceedings to suspend, revoke,
terminate or substantially and adversely modify any material FCC
License of the Borrower, any of its Subsidiaries or of any Stations
thereof if such proceeding shall continue uncontested for forty-five (45)
days or the Banks shall reasonably believe that the
result thereof shall be the termination, revocation, or suspension
of such FCC License; or the designation of an application for
renewal of any such material FCC License for an evidentiary hearing
if the Banks shall reasonably believe that the result thereof shall
be the termination, revocation or suspension of such FCC License;
(t) any default or event of default shall occur under any
of the WQCD Acquisition Documents, the WTLC Acquisition Documents
or any other documents entered into in connection with any other
Permitted Acquisition, which such default or event of default is
likely to have a material adverse effect on the business or
financial condition of the Borrower or any of its Subsidiaries; and
(u) the Holding Company shall, at any time, (i) engage in
any business activity other than (A) to hold beneficially all of
the issued and outstanding capital stock of the Borrower and (B)
to incur Indebtedness permitted by (and incurred in accordance with
the provisions of) Section 10.1(k) hereof; or (ii) lease or own any
real property or employ any employees, agents (other than a
registered agent in its state of incorporation) or representatives
for any reason whatsoever;
then, and in any such event, so long as the same may be continuing, the
Managing Agent may, and upon the request of the Majority Banks shall, by
notice in writing to the Borrower declare all amounts owing with respect
to this Credit Agreement, the Notes and the other Loan Documents and all
Reimbursement Obligations to be, and they shall thereupon forthwith
become, immediately due and payable without presentment, demand, protest
or other notice of any kind, all of which are hereby expressly waived by
the Borrower; provided that in the event of any Event of Default
specified in Section 16.1(g) or 16.1(h), all such amounts shall become
immediately due and payable automatically and without any requirement of
notice from the Managing Agent or any Bank.
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16.2 TERMINATION OF COMMITMENTS. If any one or more of the Events of
Default specified in Section 16.1(g) or 16.1(h) above shall occur, any
unused portion of the credit hereunder shall forthwith terminate and
each of the Banks shall be relieved of all obligations to make Loans to
the Borrower and the Managing Agent shall be relieved of all obligations
to issue, extend or renew Letters of Credit. If any other Event of
Default shall have occurred and be continuing, the Managing Agent may,
and upon the request of the Majority Banks shall, by notice to the
Borrower, terminate the unused portion of the credit hereunder, and upon
such notice being given, such unused portion of the credit hereunder
shall terminate immediately and each of the Banks shall be relieved of
all further obligations to make Loans and the Managing Agent shall be
relieved of all further obligations to issue, extend or renew Letters of
Credit. If any such notice is given to the Borrower, the Managing Agent
will forthwith furnish a copy thereof to each of the Banks. No
termination of the credit hereunder shall relieve the Borrower of any of
the Obligations or any of its existing obligations to any of the Banks
arising under other agreements or instruments.
16.3 REMEDIES. In case any one or more of the Events of Default
shall have occurred and be continuing, and whether or not the Managing
Agent shall have accelerated the maturity of the Loans pursuant to
Section 16.1 above, each Bank, if owed any amount with respect to the
Loans or the Reimbursement Obligations, may, with the consent of the
Majority Banks but not otherwise, proceed to protect and enforce its
rights by suit in equity, action at law or other appropriate proceeding,
whether for the specific performance of any covenant or agreement
contained in this Credit Agreement and the other Loan Documents or any
instrument pursuant to which the Obligations to such Bank are evidenced,
including as permitted by applicable law the obtaining of the ex parte
appointment of a receiver, and, if such amount shall have become due, by
declaration or otherwise, proceed to enforce the payment thereof or any
other legal or equitable right of such Bank. No remedy herein conferred
upon any Bank or the Managing Agent or the holder of any Note or the
purchaser of any Letter of Credit Participation is intended to be
exclusive of any other remedy and each and every remedy shall be
cumulative and shall be in addition to every other remedy given
hereunder or now or hereafter existing at law or in equity or by statute
or any other provision of law.
16.4 DISTRIBUTION OF COLLATERAL PROCEEDS. In the event that
following the occurrence or during the continuance of any Default or
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Event of Default, the Managing Agent or any Bank, as the case may be,
receives any monies in connection with the enforcement of any of the
Security Documents, or otherwise with respect to the realization upon
any of the Collateral, such monies shall be distributed for application
as follows:
(a) First, to the payment of, or (as the case may be) the
reimbursement of the Managing Agent for or in respect of all
reasonable costs, expenses, disbursements and losses which shall
have been incurred or sustained by the Managing Agent in connection
with the collection of such monies by the Managing Agent, for the
exercise, protection or enforcement by the Managing Agent of all
or any of the rights, remedies, powers and privileges of the
Managing Agent under this Credit Agreement or any of the other Loan
Documents or in respect of the Collateral and to support the
provision of adequate indemnity to the Managing Agent against all
taxes or liens which by law shall have, or may have, priority over
the rights of the Managing Agent to such monies;
(b) Second, to all other Obligations in such order or
preference as the Majority Banks may determine; provided, however,
that distributions in respect of such Obligations owing to the
Banks, with respect to each type of Obligation, such as interest,
principal, fees and expenses, and Obligations under any interest
rate protection agreement with any Bank or any affiliate of any
Bank, shall be made among the Banks pro rata in relation to their
share of such type of Obligation; and provided, further, that the
Managing Agent may in its sole discretion make proper allowance to
take into account any Obligations not then due and payable and to
require that cash collateral be set aside in an amount equal to the
Maximum Drawing Amount under any or all Letters of Credit then
outstanding (for purposes of this Section 16.4(b), Obligations
arising under any interest rate protection agreement with any Bank
or any affiliate of any Bank and principal with respect to the
Loans shall be treated as the same type of Obligation);
(c) Third, upon payment and satisfaction in full or other
provisions for payment in full satisfactory to the Banks and the
Managing Agent of all of the Obligations, to the payment of any
obligations required to be paid pursuant to Section 9-504(1)(c) of
the Uniform Commercial Code of the Commonwealth of Massachusetts;
and
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(d) Fourth, the excess, if any, shall be returned to the
Borrower or to such other Persons as are entitled thereto.
For purposes of this Section 16.4 only, the term "Obligations" shall
include the obligations of the Borrower under the CPF Letter of Credit
and such Obligations under the CPF Letter of Credit shall be treated as
the same type of Obligation as principal with respect to the Loans.
17. ADDITIONAL FINANCING
17.1. TRANCHE A COMMITMENT AMOUNT. At any time, and from time to
time, from the Secondary Closing Date until May 31, 1999, the Borrower
may solicit any or all of the Banks and any other lending institution to
provide the Borrower with additional commitments to make Tranche A Loans
hereunder; provided that, (a) no such additional commitments shall be in
an amount less than $10,000,000, (b) the aggregate amount of all such
additional commitments, collectively, shall not exceed $100,000,000, and
the Tranche A Commitment Amount (together with all such additional
commitments) shall not, at any time, exceed $350,000,000, (c) no Default
or Event of Default shall have occurred and be continuing immediately
prior thereto or will occur as a result therefrom, (d) with respect to
each lending institution not yet a party hereto providing additional
commitments, (i) the Borrower shall have received the Managing Agent's
prior written consent thereto five (5) days prior to the effectiveness
of such additional commitment and (ii) such lending institution shall
have become a party to this Credit Agreement (and become subject to all
the rights and obligations of a Bank hereunder) by executing and
delivering to the Managing Agent an original, executed Instrument of
Accession in the form of Exhibit I hereto, and (e) the Borrower shall
have delivered to the Managing Agent, prior to the effectiveness of such
additional commitment, copies of all documents and instruments related
thereto. Neither the Managing Agent nor any Bank shall have any
obligation to provide the Borrower with any such additional commitments.
17.2. COMMITMENT PERCENTAGES. Immediately upon the effectiveness of
any such additional commitments to make Tranche A Loans to the Borrower,
each Bank's Commitment Percentage of the Tranche A Loans and of the
Total Commitment shall be automatically adjusted to reflect the same,
and the Borrower shall deliver to the Managing Agent an amended Schedule
1 hereto reflecting the same.
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17.3. TRANCHE A NOTES. Subsequent to the receipt by the Managing
Agent of an original executed Instrument of Accession by a lending
institution not yet a party hereto as set forth above and simultaneously
with the effectiveness of such lending institution's commitment to make
Tranche A Loans to the Borrower, the Borrower shall execute and deliver
to such lending institution a Tranche A Note, dated as of the date of
such effectiveness, in a principal amount equal to such lending
institution's Commitment Percentage of the Tranche A Commitment Amount
or, if less, the outstanding amount of all Tranche A loans made by such
Person, plus interest accrued thereon at the rate set forth herein for
all Tranche A Notes. The Borrower shall, within five (5) days of the
effectiveness of any such additional commitments from any Bank which is
already a party hereto, deliver to such Bank an amended Tranche A Note,
in the form of the Tranche A Note then held by such Bank (the "Current
Note") in an amount equal to such Bank's Commitment Percentage of the
Tranche A Commitment as increased pursuant to this Section 17. Within
five (5) days of the receipt of the amended Tranche A Note, such Bank
shall deliver to the Borrower the Current Note marked "substituted."
18. SETOFF.
Regardless of the adequacy of any collateral, during the continuance
of any Event of Default, any deposits or other sums credited by or due
from any of the Banks to the Borrower and any securities or other
property of the Borrower in the possession of such Bank may be applied
to or set off by such Bank against the payment of Obligations and any
and all other liabilities, direct, or indirect, absolute or contingent,
due or to become due, now existing or hereafter arising, of the Borrower
to such Bank. Each of the Banks agrees with each other Bank that (a) if
an amount to be set off is to be applied to Indebtedness of the Borrower
to such Bank, other than Indebtedness included in the Obligations and
owing to such Bank, such amount shall be applied ratably to such other
Indebtedness and to the Indebtedness included in the Obligations and
owing to such Bank, and (b) if such Bank shall receive from the
Borrower, whether by voluntary payment, exercise of the right of setoff,
counterclaim, cross action, enforcement of the claim in respect of the
Obligations owing to such Bank by proceedings against the Borrower at
law or in equity or by proof thereof in bankruptcy, reorganization,
liquidation, receivership or similar proceedings, or otherwise, and
shall retain and apply to the payment of Obligations owing to such Bank
any amount in excess of its ratable portion of the payments received by
all of the Banks with respect to the Obligations owing to all of the
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Banks, such Bank will make such disposition and arrangements with the
other Banks with respect to such excess, either by way of distribution,
pro tanto assignment of claims, subrogation or otherwise as shall result
in each Bank receiving in respect of the Obligations owing to it its
proportionate payment as contemplated by this Credit Agreement; provided
that if all or any part of such excess payment is thereafter recovered
from such Bank, such disposition and arrangements shall be rescinded and
the amount restored to the extent of such recovery, but without
interest.
19. THE AGENT.
19.1. AUTHORIZATION.
(a) The Managing Agent is authorized to take such action on
behalf of each of the Banks and to exercise all such powers as are
hereunder and under any of the other Loan Documents and any related
documents delegated to the Managing Agent, together with such
powers as are reasonably incident thereto; provided that no duties
or responsibilities not expressly assumed herein or therein shall
be implied to have been assumed by the Managing Agent.
(b) The relationship between the Managing Agent and each of
the Banks is that of an independent contractor. The use of the
term "Managing Agent" is for convenience only and is used to
describe, as a form of convention, the independent contractual
relationship between the Managing Agent and each of the Banks.
Nothing contained in this Credit Agreement nor the other Loan
Documents shall be construed to create an agency, trust or other
fiduciary relationship between the Managing Agent and any of the
Banks.
(c) As an independent contractor empowered by the Banks to
exercise certain rights and perform certain duties and
responsibilities hereunder and under the other Loan Documents, the
Managing Agent is nevertheless a "representative" of the Banks, as
that term is defined in Article 1 of the Uniform Commercial Code,
for purposes of actions for the benefit of the Banks and the
Managing Agent with respect to all collateral security and
guaranties contemplated by the Loan Documents. Such actions
include the designation of the Managing Agent as "secured party",
"mortgagee" or the like on all financing statements and other
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documents and instruments, whether recorded or otherwise, relating
to the attachment, perfection, priority or enforcement of any
security interests, mortgages or deeds of trust in collateral
security intended to secure the payment or performance of any of
the Obligations, all for the benefit of the Banks and the Managing
Agent.
19.2. EMPLOYEES AND MANAGING AGENT. The Managing Agent may exercise
its powers and execute its duties by or through employees or agents and
shall be entitled to take, and to rely on, advice of counsel concerning
all matters pertaining to its rights and duties under this Credit
Agreement and the other Loan Documents. The Managing Agent may utilize
the services of such Persons as the Managing Agent in its sole
discretion may reasonably determine, and all reasonable fees and
expenses of any such Persons shall be paid by the Borrower.
19.3. NO LIABILITY. None of the Managing Agent, its shareholders,
directors, officers or employees nor any other Person assisting them in
their duties nor any agent or employee thereof, shall be liable for any
waiver, consent or approval given or any action taken, or omitted to be
taken, in good faith by it or them hereunder or under any of the other
Loan Documents, or in connection herewith or therewith, or be
responsible for the consequences of any oversight or error of judgment
whatsoever, except that the Managing Agent or such other Person, as the
case may be, may be liable for losses due to its willful misconduct or
gross negligence.
19.4. NO REPRESENTATIONS. The Managing Agent shall not be
responsible (a) for the execution or validity or enforceability of this
Credit Agreement, the Notes, any of the other Loan Documents or any
instrument at anytime constituting, or intended to constitute,
collateral security for the Notes, (b) for the value of any such
collateral security, (c) for the validity, enforceability or
collectability of any such amounts owing with respect to the Notes, (d)
for any recitals or statements, warranties or representations made
herein or in any of the other Loan Documents or in any certificate or
instrument hereafter furnished to it by or on behalf of the Borrower,
any of its Subsidiaries or the Holding Company, (e) to ascertain or
inquire as to the performance or observance of any of the terms,
conditions, covenants or agreements herein or in any instrument at any
time constituting, or intended to constitute, collateral security for
the Notes, (f) to inspect any of the properties, books or records of the
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Borrower, any of its Subsidiaries or the Holding Company, or (g) to
ascertain whether any notice, consent, waiver or request delivered to it
by the Borrower, any of its Subsidiaries, the Holding Company. or any
holder of any of the Notes shall have been duly authorized or is true,
accurate and complete. The Managing Agent has not made nor does it now
make any representations or warranties, express or implied, nor does it
assume any liability to the Banks, with respect to the credit worthiness
or financial conditions of the Borrower, any of its Subsidiaries or
(upon the incorporation thereof) the Holding Company. Each Bank
acknowledges that it has, independently and without reliance upon the
Managing Agent or any other Bank, and based upon such information and
documents as it has deemed appropriate, made its own credit analysis and
decision to enter into this Credit Agreement.
19.5. PAYMENTS.
19.5.1 PAYMENTS TO MANAGING AGENT. A payment by the
Borrower to the Managing Agent hereunder or any of the other Loan
Documents for the account of any Bank shall constitute a payment
to such Bank. The Managing Agent agrees promptly to distribute to
each Bank such Bank's pro rata share of payments received by the
Managing Agent for the account of the Banks except as otherwise
expressly provided herein or in any of the other Loan Documents.
19.5.2. DISTRIBUTION BY MANAGING AGENT. If in the opinion
of the Managing Agent the distribution of any amount received by
it in such capacity hereunder, under the Notes or under any of the
other Loan Documents might involve it in liability, it may refrain
from making distribution until its right to make distribution shall
have been adjudicated by a court of competent jurisdiction. If a
court of competent jurisdiction shall adjudge that any amount
received and distributed by the Managing Agent is to be repaid,
each Person to whom any such distribution shall have been made
shall either repay to the Managing Agent its proportionate share
of the amount so adjudged to be repaid or shall pay over the same
in such manner and to such Persons as shall be determined by such
court.
19.5.3. DELINQUENT BANKS. Notwithstanding anything to the
contrary contained in this Credit Agreement or any of the other
Loan Documents, any Bank that fails (a) to make available to the
Managing Agent its pro rata share of any Loan or to purchase any
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Letter of Credit Participation or (b) to comply with the provisions
of Section 18 with respect to making dispositions and arrangements
with the other Banks, where such Bank's share of any payment
received, whether by setoff or otherwise, is in excess of its pro
rata share of such payments due and payable to all of the Banks,
in each case as, when and to the full extent required by the
provisions of this Credit Agreement, shall be deemed delinquent (a
"Delinquent Bank") and shall be deemed a Delinquent Bank until such
time as such delinquency is satisfied. A Delinquent Bank shall be
deemed to have assigned any and all payments due to it from the
Borrower, whether on account of outstanding Loans, and Unpaid
Reimbursement Obligations, interest, fees or otherwise, to the
remaining nondelinquent Banks for application to, and reduction of,
their respective pro rata shares of all outstanding Loans and
Unpaid Reimbursement Obligations. The Delinquent Bank hereby
authorizes the Managing Agent to distribute such payments to the
nondelinquent Banks in proportion to their respective pro rata
shares of all outstanding Loans and Unpaid Reimbursement
Obligations. A Delinquent Bank shall be deemed to have satisfied
in full a delinquency when and if, as a result of application of
the assigned payments to all outstanding Loans and Unpaid
Reimbursement Obligations of the nondelinquent Banks, the Banks'
respective pro rata shares of all outstanding Loans and Unpaid
Reimbursement Obligations have returned to those in effect
immediately prior to such delinquency and without giving effect to
the nonpayment causing such delinquency.
19.6. HOLDERS OF NOTES. The Managing Agent may deem and treat the
payee of any Note or the purchaser of any Letter of Credit Participation
as the absolute owner thereof for all purposes hereof until it shall
have been furnished in writing with a different name by such payee or by
a subsequent holder.
19.7. INDEMNITY. The Banks ratably agree hereby to indemnify and
hold harmless the Managing Agent from and against any and all claims,
actions and suits (whether groundless or otherwise), losses, damages,
costs, expenses (including any expenses for which the Managing Agent has
not been reimbursed by the Borrower as required by Section 20), and
liabilities of every nature and character arising out of or related to
this Credit Agreement, the Notes, or any of the other Loan Documents or
the transactions contemplated or evidenced hereby or thereby, or the
Managing Agent's actions taken hereunder or thereunder, except to the
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extent that any of the same shall be directly caused by the Managing
Agent's willful misconduct or gross negligence.
19.8. MANAGING AGENT AS BANK. In its individual capacity, BKB shall
have the same obligations and the same rights, powers and privileges in
respect to its Commitment and the Loans made by it, and as the holder of
any of the Notes and as the purchaser of any Letter of Credit
Participations, as it would have were it not also the Managing Agent.
19.9. RESIGNATION. The Managing Agent may resign at any time by
giving sixty (60) days' prior written notice thereof to the Banks and
the Borrower. Upon any such resignation, the Majority Banks shall have
the right to appoint a successor Managing Agent. Unless a Default or
Event of Default shall have occurred and be continuing, such successor
Managing Agent shall be reasonably acceptable to the Borrower. If no
successor Managing Agent shall have been so appointed by the Majority
Banks and shall have accepted such appointment within thirty (30) days
after the retiring Managing Agent's giving of notice of resignation,
then the retiring Managing Agent may, on behalf of the Banks, appoint a
successor Managing Agent, which shall be a financial institution having
a rating of not less than A or its equivalent by Standard & Poor's
Corporation and shall be reasonably acceptable to the Borrower. Upon
the acceptance of any appointment as Managing Agent hereunder by a
successor Managing Agent, such successor Managing Agent shall thereupon
succeed to and become vested with all the rights, powers, privileges and
duties of the retiring Managing Agent, and the retiring Managing Agent
shall be discharged from its duties and obligations hereunder. After
any retiring Managing Agent's resignation, the provisions of this Credit
Agreement and the other Loan Documents 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 Managing Agent.
19.10. NOTIFICATION OF DEFAULTS AND EVENTS OF DEFAULT. Each Bank
hereby agrees that, upon learning of the existence of a Default or an
Event of Default, it shall promptly notify the Managing Agent thereof.
The Managing Agent hereby agrees that upon receipt of any notice under
this Section 19.10 it shall promptly notify the other Banks of the
existence of such Default or Event of Default.
19.11. DELEGATION OF DUTIES. The Managing Agent may execute any of
its duties under this Agreement by or through agents or attorneys-in-fact
and shall be entitled to advice of counsel concerning all matters
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pertaining to such duties. The Managing Agent shall not be responsible
for the negligence or misconduct of any agents or attorneys-in-fact
selected by it with reasonable care.
19.12. DOCUMENTATION AGENTS; CO-AGENTS. No documentation agent or
co-agent shall have any right, power, obligation, liability,
responsibility or duty under this Credit Agreement or any of the other
Loan Documents other than those applicable to all Banks; provided that
each documentation agent and co-agent shall be entitled to the same
protections provided to the Managing Agent under Sections 19.3, 19.4 and
19.7 hereof.
20. EXPENSES.
The Borrower agrees to pay (a) the reasonable costs of producing and
reproducing this Credit Agreement, the other Loan Documents and the
other agreements and instruments mentioned herein, (b) any taxes
(including any interest and penalties in respect thereto) payable by the
Managing Agent or any of the Banks (other than taxes based upon the
Managing Agent's or any Bank's gross or net income) on or with respect
to the transactions contemplated by this Credit Agreement (the Borrower
hereby agreeing to indemnify the Managing Agent and each Bank with
respect thereto), (c) the reasonable fees, expenses and disbursements of
the Managing Agent's Special Counsel or any local counsel to the
Managing Agent incurred in connection with the preparation, syndication,
administration or interpretation of the Loan Documents and other
instruments mentioned herein, each closing hereunder, and amendments,
modifications, approvals, consents or waivers hereto or hereunder, (d)
the fees, expenses and disbursements of the Managing Agent incurred by
the Managing Agent in connection with the preparation, syndication,
administration or interpretation of the Loan Documents and other
instruments mentioned herein, including all title insurance premiums and
surveyor, engineering and appraisal charges, (e) all reasonable out-of-pocket
expenses (including without limitation reasonable attorneys' fees
and costs, which attorneys may be employees of any Bank or the Managing
Agent, and reasonable consulting, accounting, appraisal, investment
banking and similar professional fees and charges) incurred by any Bank
or the Managing Agent in connection with (i) the enforcement of or
preservation of rights under any of the Loan Documents against the
Borrower or any of its Subsidiaries or the administration thereof after
the occurrence of a Default or Event of Default and (ii) any litigation,
proceeding or dispute whether arising hereunder or otherwise, in any way
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related to any Bank's or the Managing Agent's relationship with the
Borrower or any of its Subsidiaries, and (f) all reasonable fees,
expenses and disbursements of any Bank or the Managing Agent incurred in
connection with UCC searches, UCC filings or mortgage recordings. The
covenants of this Section 20 shall survive payment or satisfaction of
payment of amounts owing with respect to the Notes.
21. INDEMNIFICATION.
The Borrower agrees to indemnify and hold harmless the Managing Agent,
the Banks and their respective officers, employees, directors, agents,
trustees and affiliates (each an "Indemnified Party") from and against
any and all claims, actions and suits whether groundless or otherwise,
and from and against any and all liabilities, losses, damages and
expenses of every nature and character arising out of this Credit
Agreement or any of the other Loan Documents or the transactions
contemplated hereby including, without limitation, (a) any actual or
proposed use by the Borrower or any of its Subsidiaries of the proceeds
of any of the Loans, (b) any actual or alleged infringement of any
patent, copyright, trademark, service mark or similar right of the
Borrower or any of its Subsidiaries comprised in the Collateral, (c) the
Borrower or any of its Subsidiaries entering into or performing this
Credit Agreement or any of the other Loan Documents or (d) with respect
to the Borrower and its Subsidiaries and their respective properties and
assets, the violation of any Environmental Law, the presence, disposal,
escape, seepage, leakage, spillage, discharge, emission, release or
threatened release of any Hazardous Substances or any action, suit,
proceeding or investigation brought or threatened with respect to any
Hazardous Substances (including, but not limited to claims with respect
to wrongful death, personal injury or damage to property), in each case
including, without limitation, the reasonable fees and disbursements of
counsel and allocated costs of internal counsel incurred in connection
with any such investigation, litigation or other proceeding; provided
that the Borrower shall not be liable under this indemnification
provision for any losses, claims, damages, costs or expenses incurred by
an Indemnified Party which a court of competent jurisdiction has found,
in a final, nonappealable order, resulted from such Person's own
negligence or willful misconduct. In litigation, or the preparation
therefor, the Banks and the Managing Agent shall be entitled to select
their own counsel and, in addition to the foregoing indemnity, the
Borrower agrees to pay promptly the reasonable fees and expenses of no
more than one set of such counsel, as selected by the Majority Banks.
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If, and to the extent that the obligations of the Borrower under this
Section 21 are unenforceable for any reason, the Borrower hereby agrees
to make the maximum contribution to the payment in satisfaction of such
obligations which is permissible under applicable law. The covenants
contained in this Section 21 shall survive payment of satisfaction in
full of all other obligations.
22. SURVIVAL OF COVENANTS, ETC.
All covenants, agreements, representations and warranties made herein,
in the Notes, in any of the other Loan Documents or in any documents or
other papers delivered by or on behalf of the Borrower or any of its
Subsidiaries pursuant hereto shall be deemed to have been relied upon by
the Banks and the Managing Agent, notwithstanding any investigation
heretofore or hereafter made by any of them, and shall survive the
making by the Banks of any of the Loans and the issuance, extension or
renewal of any Letters of Credit, as herein contemplated, and shall
continue in full force and effect so long as any Letters of Credit or
any amount due under this Credit Agreement or the Notes or any of the
other Loan Documents remains outstanding or any Bank has any obligation
to make any Loans or the Managing Agent has any obligations to issue,
extend or renew any Letter of Credit, and for such further time as may
be otherwise expressly specified in this Credit Agreement. All
statements contained in any certificate or other paper delivered to any
Bank or the Managing Agent at any time by or on behalf of the Borrower
or any of its Subsidiaries pursuant hereto or in connection with the
transactions contemplated hereby shall constitute representations and
warranties by such Person hereunder.
23. ASSIGNMENT AND PARTICIPATION.
23.1. CONDITIONS TO ASSIGNMENT BY BANKS. Except as provided herein,
each Bank may assign to one or more Eligible Assignees all or a portion
of its interests, rights and obligations under this Credit Agreement
(including all or a portion of any of its Commitment Percentages for
Loans from any Tranche, its Commitment with respect to any Tranche and
the same portion of the Loans at the time owing to it) and the Notes and
Letter of Credit Participations held by it; provided that (a) the
Managing Agent and (unless such assignment is (i) to any Federal Reserve
Bank or (ii) from an Managing Agent to an affiliate of the Managing
Agent) the Borrower shall have given its prior written consent to such
assignment, which consent will not be unreasonably withheld, (b) each
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such assignment shall be of a constant, and not a varying, percentage of
all the assigning Bank's rights and obligations under this Credit
Agreement, (c) each assignment shall be in an amount that is not less
than $5,000,000 and in multiples of $1,000,000 thereafter, and (d) the
parties to such assignment shall execute and deliver to the Managing
Agent, for recording in the Register (as hereinafter defined), an
Assignment and Acceptance, substantially in the form of Exhibit K hereto
(an "Assignment and Acceptance"), together with any Notes subject to
such assignment. Upon such execution, delivery, acceptance and
recording, from and after the effective date specified in each
Assignment and Acceptance, which effective date shall be at least five
(5) Business Days after the execution thereof, (i) the assignee
thereunder shall be a party hereto and, to the extent provided in such
Assignment and Acceptance, have the rights and obligations of a Bank
hereunder, and (ii) the assigning Bank shall, to the extent provided in
such assignment and upon payment to the Managing Agent of the
registration fee referred to in Section 23.3, be released from its
obligations under this Credit Agreement.
23.2. CERTAIN REPRESENTATIONS AND WARRANTIES; LIMITATIONS; COVENANTS.
By executing and delivering an Assignment and Acceptance, the parties to
the assignment thereunder confirm to and agree with each other and the
other parties hereto as follows: (a) other than the representation and
warranty that it is the legal and beneficial owner of the interest being
assigned thereby free and clear of any adverse claim, the assigning Bank
makes no representation or warranty, express or implied, and assumes no
responsibility with respect to any statements, warranties or
representations made in or in connection with this Credit Agreement or
the execution, legality, validity, enforceability, genuineness,
sufficiency or value of this Credit Agreement, the other Loan Documents
or any other instrument or document furnished pursuant hereto or the
attachment, perfection or priority of any security interest or mortgage;
(b) the assigning Bank makes no representation or warranty and assumes
no responsibility with respect to the financial condition of the
Borrower and its Subsidiaries or any other Person primarily or
secondarily liable in respect of any of the Obligations, or the
performance or observance by the Borrower and its Subsidiaries or any
other Person primarily or secondarily liable in respect of any of the
Obligations of any of their obligations under this Credit Agreement or
any of the other Loan Documents or any other instrument or document
furnished pursuant hereto or thereto; (c) such assignee confirms that it
has received a copy of this Credit Agreement, together with copies of
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the most recent financial statements referred to in Sections 8.4 and 9.4
above and such other documents and information as it has deemed
appropriate to make its own credit analysis and decision to enter into
such Assignment and Acceptance; (d) such assignee will, independently
and without reliance upon the assigning Bank, the Managing Agent or any
other Bank 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 Credit Agreement; (e) such
assignee represents and warrants that it is an Eligible Assignee; (f)
such assignee appoints and authorizes the Managing Agent to take such
action as agent on its behalf and to exercise such powers under this
Credit Agreement and the other Loan Documents as are delegated to the
Managing Agent by the terms hereof or thereof, together with such powers
as are reasonably incidental thereto; (g) such assignee agrees that it
will perform in accordance with their terms all of the obligations that
by the terms of this Credit Agreement and other Loan Documents are
required to be performed by it as a Bank; (h) such assignee represents
and warrants that it is legally authorized to enter into such Assignment
and Acceptance; and (i) such assignee acknowledges that it has made
arrangements with the assigning Bank satisfactory to such assignee with
respect to its pro rata share of Letter of Credit Fees in respect of
outstanding Letters of Credit.
23.3. REGISTER. The Managing Agent shall maintain a copy of each
Assignment and Acceptance delivered to it and a register or similar list
(the "Register") for the recordation of the names and addresses of the
Banks and the Commitment Percentages of, and principal amount of the
Loans owing to and Letter of Credit Participations purchased by, the
Banks from time to time. The entries in the Register shall be
conclusive, in the absence of manifest error, and the Borrower, the
Managing Agent and the Banks may treat each Person whose name is
recorded in the Register as a Bank hereunder for all purposes of this
Credit Agreement. The Register shall be available for inspection by the
Borrower and the Banks at any reasonable time and from time to time upon
reasonable prior notice. Upon each such recordation, the assigning Bank
agrees to pay to the Managing Agent a registration fee in the sum of
$3,500.
23.4. NEW NOTES. Upon its receipt of an Assignment and Acceptance
executed by the parties to such assignment, together with each Note
subject to such assignment, the Managing Agent shall (a) record the
information contained therein in the Register, and (b) give prompt
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notice thereof to the Borrower and the Banks (other than the assigning
Bank). Within five (5) Business Days after receipt of such notice, the
Borrower, at its own expense, shall execute and deliver to the Managing
Agent, in exchange for each surrendered Note, a new Note to the order of
such Eligible Assignee in an amount equal to the amount assumed by such
Eligible Assignee pursuant to such Assignment and Acceptance and, if the
assigning Bank has retained some portion of its obligations hereunder,
a new Note to the order of the assigning Bank in an amount equal to the
amount retained by it hereunder. Such new Notes shall provide that they
are replacements for the surrendered Notes, shall be in an aggregate
principal amount equal to the aggregate principal amount of the
surrendered Notes, shall be dated the effective date of such Assignment
and Acceptance and shall otherwise be in substantially the form of the
assigned Notes. Within five (5) days of issuance of any new Notes
pursuant to this Section 23.4, the Borrower shall deliver an opinion of
counsel, addressed to the Banks and the Managing Agent, relating to the
due authorization, execution and delivery of such new Notes and the
legality, validity and binding effect thereof, in form and substance
satisfactory to the Banks. The surrendered Notes shall be canceled and
returned to the Borrower.
23.5. PARTICIPATIONS. Each Bank may sell participations to one or
more banks or other entities in all or a portion of such Bank's rights
and obligations under this Credit Agreement and the other Loan
Documents; provided that (a) each such participation shall be in an
amount of not less than $5,000,000, (b) any such sale or participation
shall not affect the rights and duties of the selling Bank hereunder to
the Borrower and (c) the only rights granted to the participant pursuant
to such participation arrangements with respect to waivers, amendments
or modifications of the Loan Documents shall be the rights to approve
waivers, amendments or modifications that would (i) reduce the principal
of or the interest rate on any Loans, (ii) extend the term or increase
the amount of the Commitment of such Bank as it relates to such
participant, (iii) reduce the amount of any commitment fees or Letter of
Credit Fees to which such participant is entitled, or (iv) extend any
regularly scheduled payment date for principal or interest.
23.6. DISCLOSURE. The Borrower agrees that in addition to
disclosures made in accordance with standard and customary banking
practices, any Bank may disclose information obtained by such Bank
pursuant to this Credit Agreement to assignees or participants and
potential assignees or participants hereunder; provided that such
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assignees or participants or potential assignees or participants shall
agree (a) to treat in confidence such information unless such
information otherwise becomes public knowledge, (b) not to disclose such
information to a third party, except as required by law or legal process
and (c) not to make use of such information for purposes of transactions
unrelated to such contemplated assignment or participation.
23.7. ASSIGNEE OR PARTICIPANT AFFILIATED WITH THE BORROWER. If any
assignee Bank is an Affiliate of the Borrower, then any such assignee
Bank shall have no right to vote as a Bank hereunder or under any of the
other Loan Documents for purposes of granting consents or waivers or for
purposes of agreeing to amendments or other modifications to any of the
Loan Documents or for purposes of making requests to the Managing Agent
pursuant to Section 16.1 or 16.2 hereof, and the determination of the
Majority Banks shall for all purposes of this Agreement and the other
Loan Documents be made without regard to such assignee Bank's interest
in any of the Loans. If any Bank sells a participating interest in any
of the Loans or Reimbursement Obligations to a participant, and such
participant is the Borrower or an Affiliate of the Borrower, then such
transferor Bank shall promptly notify the Managing Agent of the sale of
such participation. A transferor Bank shall have no right to vote as a
Bank hereunder or under any of the other Loan Documents for purposes of
granting consents or waivers or for purposes of agreeing to amendments
or modifications to any of the Loan Documents or for purposes of making
requests to the Managing Agent pursuant to Section 16.1 or 16.2 to the
extent that such participation is beneficially owned by the Borrower or
any Affiliate of the Borrower, and the determination of the Majority
Banks shall for all purposes of this Agreement and the other Loan
Documents be made without regard to the interest of such transferor Bank
in the Loans to the extent of such participation.
23.8. MISCELLANEOUS ASSIGNMENT PROVISIONS. Any assigning Bank shall
retain its rights to be indemnified pursuant to Section 19 with respect
to any claims or actions arising prior to the date of such assignment.
If any assignee Bank is not incorporated under the laws of the United
States of America or any state thereof, it shall, prior to the date on
which any interest or fees are payable hereunder or under any of the
other Loan Documents for its account, deliver to the Borrower and the
Managing Agent certification as to its exemption from deduction or
withholding of any United States federal income taxes. Anything
contained in this Section 23 to the contrary notwithstanding, any Bank
may at any time pledge all or any portion of its interest and rights
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under this Credit Agreement (including all or any portion of its Notes)
to any of the twelve Federal Reserve Banks organized under Section 4 of
the Federal Reserve Act, 12 U.S.C. Section 341. No such pledge or the
enforcement thereof shall release the pledgor Bank from its obligations
hereunder or under any of the other Loan Documents.
23.9. ASSIGNMENT BY BORROWER. The Borrower shall not assign or
transfer any of its rights or obligations under any of the Loan
Documents without the prior written consent of each of the Banks.
24. NOTICES, ETC.
Except as otherwise expressly provided in this Credit Agreement, all
notices and other communications made or required to be given pursuant
to this Credit Agreement or the Notes or any Letter of Credit
Applications shall be in writing and shall be delivered in hand, mailed
by United States registered or certified first class mail, postage
prepaid, sent by overnight courier, or sent by telegraph, telecopy or
telefax and confirmed by delivery via courier or postal service,
addressed as follows:
(a) if to the Borrower, at Gateway Plaza, 950 N. Meridian
Street, Suite 1200, Indianapolis, Indiana 46204, Attention: Jeffrey
H. Smulyan, Chairman, with a copy to David L. Wills, Esq., Bose,
McKinney & Evans, 135 North Pennsylvania Street, Indianapolis,
Indiana 46204, or at such other address for notice as the Borrower
shall last have furnished in writing to the Person giving the
notice;
(b) if to any Bank or the Managing Agent, at such Bank's or
Managing Agent's address set forth on Schedule 1 hereto, with a
copy to Sula R. Fiszman, Esq., Bingham, Dana & Gould LLP, 150
Federal Street, Boston, Massachusetts 02110, or such other address
for notice as such party shall have last furnished in writing to
the Person giving the notice.
Any such notice or demand shall be deemed to have been duly given or
made and to have become effective (i) if delivered by hand, overnight
courier or facsimile to a responsible officer of the party to which it
is directed, at the time of the receipt thereof by such officer or the
sending of such facsimile and (ii) if sent by registered or certified
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first-class mail, postage prepaid, on the third Business Day following
the mailing thereof.
25. GOVERNING LAW.
THIS CREDIT AGREEMENT AND EACH OF THE OTHER LOAN DOCUMENTS, EXCEPT AS
OTHERWISE SPECIFICALLY PROVIDED THEREIN, ARE CONTRACTS UNDER THE LAWS OF
THE COMMONWEALTH OF MASSACHUSETTS AND SHALL FOR ALL PURPOSES BE
CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAWS OF SAID
COMMONWEALTH (EXCLUDING THE LAWS APPLICABLE TO CONFLICTS OR CHOICE OF
LAW). THE BORROWER AGREES THAT ANY SUIT FOR THE ENFORCEMENT OF THIS
CREDIT AGREEMENT OR ANY OF THE OTHER LOAN DOCUMENTS MAY BE BROUGHT IN
THE COURTS OF THE COMMONWEALTH OF MASSACHUSETTS OR ANY FEDERAL COURT
SITTING THEREIN AND CONSENT TO THE NONEXCLUSIVE JURISDICTION OF SUCH
COURT AND THE SERVICE OF PROCESS IN ANY SUCH SUIT BEING MADE UPON THE
BORROWER BY MAIL AT THE ADDRESS SPECIFIED IN SECTION 24 ABOVE. THE
BORROWER HEREBY WAIVES ANY OBJECTION THAT IT MAY NOW OR HEREAFTER HAVE
TO THE VENUE OF ANY SUCH SUIT OR ANY SUCH COURT OR THAT SUCH SUIT IS
BROUGHT IN AN INCONVENIENT COURT.
26. HEADINGS.
The captions in this Credit Agreement are for convenience of reference
only and shall not define or limit the provisions hereof.
27. COUNTERPARTS.
This Credit Agreement and any amendment hereof may be executed in
several counterparts and by each party on a separate counterpart, each
of which when so executed and delivered shall be an original, and all of
which together shall constitute one instrument. In proving this Credit
Agreement it shall not be necessary to produce or account for more than
one such counterpart signed by the party against whom enforcement is
sought.
28. ENTIRE AGREEMENT, ETC.
The Loan Documents and any other documents executed in connection
herewith or therewith express the entire understanding of the parties
with respect to the transactions contemplated hereby. Neither this
Credit Agreement nor any term hereof may be changed, waived, discharged
or terminated, except as provided in Section 30 below.
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29. WAIVER OF JURY TRIAL.
Each of the Managing Agent, the Banks and the Borrower hereby waives
its right to a jury trial with respect to any action or claim arising
out of any dispute in connection with this Credit Agreement, the Notes
or any of the other Loan Documents, any rights or obligations hereunder
or thereunder or the performance of such rights and obligations. The
Borrower (a) certifies that no representative, agent or attorney of any
Bank or of the Managing Agent has represented, expressly or otherwise,
that such Bank or the Managing Agent would not, in the event of
litigation, seek to enforce the foregoing waivers and (b) acknowledges
that the Managing Agent and the Banks have been induced to enter into
this Credit Agreement, the other Loan Documents to which it is a party
by, among other things, the waivers and certifications contained herein.
30. CONSENTS, AMENDMENTS, WAIVERS, ETC.
Except as otherwise expressly provided in this Credit Agreement, any
consent or approval required or permitted by this Credit Agreement to be
given by the Banks may be given, and any term of this Credit Agreement
or of any other instrument related hereto or mentioned herein may be
amended, and the performance or observance by the Borrower of any terms
of this Credit Agreement or such other instrument or the continuance of
any Default or Event of Default may be waived (either generally or in a
particular instance and either retroactively or prospectively) with, but
only with, the written consent of the Borrower and the written consent
of the Majority Banks. Notwithstanding the foregoing, (a)(i) the rate
of interest on the Notes (other than interest accruing pursuant to
Section 6.10 hereof following the effective date of any waiver by the
Majority Banks of the Default or Event of Default relating thereto),
(ii) the dates and amounts fixed for any payment of principal or
interest or fees on the Notes or Loans, (iii) the term of the Notes,
(iv) the amount of the Commitments of the Banks, and (v) the amount of
any commitment fees or Letter of Credit Fees hereunder, may not be
changed without the written consent of the Borrower and all of the
Banks; (b)(i) the definition of Majority Banks, (ii) the provisions of
this Section 30 and (iii) the aggregate percentage or number of Banks
required for any action to be taken under the Loan Documents, may not be
amended without the written consent of all of the Banks; (c) the
Managing Agent shall not release any Collateral nor shall any guarantor
be released without the written consent of all of the Banks, unless such
release is in connection with a transaction permitted by Section 10.5
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hereof; and (d) the amount of the Managing Agent's fee and any Letter of
Credit fees payable to the Managing Agent's account and the provisions
of Section 19 hereof, may not be amended without the written consent of
the Managing Agent. No waiver shall extend to or affect any obligation
not expressly waived or impair any right consequent on any obligation
not expressly waived. No course of dealing or delay or omission on the
part of any Bank in exercising any right shall operate as a waiver
thereof or otherwise be prejudicial thereto. No notice to or demand
upon the Borrower shall entitle the Borrower to other or further notice
or demand in similar or other circumstances.
31. TRANSITIONAL ARRANGEMENTS
31.1. EXISTING CREDIT AGREEMENT SUPERSEDED. Upon the effectiveness
of this Credit Agreement, this Credit Agreement shall supersede the
Existing Credit Agreement in its entirety, except as otherwise provided
in this Section 31. As of the Closing Date, the rights and obligations
of the parties under the Existing Credit Agreement and the "Notes" as
defined in the Existing Credit Agreement shall be subsumed within and be
governed by this Credit Agreement and the Notes; provided, however, that
each of the "Loans" (as defined in the Existing Credit Agreement)
advanced by the Existing Banks and outstanding under the Existing Credit
Agreement on the Closing Date (after giving effect to the conditions set
forth in Section 12.15 hereof) shall, for purposes of this Agreement, be
Loans, and shall bear interest at (a) if such Loans are Eurodollar Rate
Loans the then applicable Eurodollar Rate plus the Applicable Margin
determined hereunder for the remainder of the then current Interest
Period, or (b) if such Loans are Base Rate Loans, at the Base Rate plus
the Applicable Margin determined hereunder. Interest with respect to
Loans outstanding under the Existing Credit Agreement on the Closing
Date shall be paid at the times provided herein for Base Rate Loans and
Eurodollar Rate Loans.
31.2. FEES UNDER EXISTING CREDIT AGREEMENT. All commitment fees, and
other fees and expenses owing or accruing under or in respect of the
Existing Credit Agreement shall be calculated and paid as of the Closing
Date and paid by the Borrower to the Managing Agent for the accounts, as
appropriate, of the Managing Agent and/or the "Banks" under, and as
defined in, the Existing Credit Agreement.
32. FCC APPROVAL
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Notwithstanding anything to the contrary contained in this Credit
Agreement or in the other Loan Documents, neither the Managing Agent nor
any Bank will take any action pursuant to this Credit Agreement or any
of the other Loan Documents, which would constitute or result in a
change in control of the Borrower or any of its Subsidiaries requiring
the prior approval of the FCC without first obtaining such prior
approval of the FCC. After the occurrence of an Event of Default, the
Borrower shall take or cause to be taken any action which the Managing
Agent may reasonably request in order to obtain from the FCC such
approval as may be necessary to enable the Managing Agent to exercise
and enjoy the full rights and benefits granted to the Managing Agent,
for the benefit of the Managing Agent and the Banks by this Credit
Agreement or any of the other Loan Documents, including, at the
Borrower's cost and expense, the use of the Borrower's best efforts to
assist in obtaining such approval for any action or transaction
contemplated by this Credit Agreement or any of the other Loan Documents
for which such approval is required by law, including specifically,
without limitation, upon request, to prepare, sign and file with the FCC
the assignor's or transferor's portion of any application or
applications for the consent to the assignment or transfer of control
necessary or appropriate under the FCC's rules and approval of any of
the transactions contemplated by this Credit Agreement or any of the
other Loan Documents.
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33. SEVERABILITY.
The provisions of this Credit Agreement are severable and if any one
clause or provision hereof shall be held invalid or unenforceable in
whole or in part in any jurisdiction, then such invalidity or
unenforceability shall affect only such clause or provision, or part
thereof, in such jurisdiction, and shall not in any manner affect such
clause or provision in any other jurisdiction, or any other clause or
provision of this Credit Agreement in any jurisdiction.
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IN WITNESS WHEREOF, the undersigned have duly executed this Credit
Agreement as a sealed instrument as of the date first set forth above.
EMMIS BROADCASTING
CORPORATION
By: /s/ Howard L. Schrott
-------------------------
Name: Howard L. Schrott
Title: Executive Vice President,
Chief Financial Officer and
Treasurer
BANKBOSTON, N.A.,
individually and as Managing Agent
By: /s/ Julie V. Jalelian
-------------------------
Name:Julie V. Jalelian
Title: Vice President
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OPTION AGREEMENT
(WQCD-FM, NEW YORK, NEW YORK)
OPTION AGREEMENT ("Agreement"), dated as of May 15, 1997, by and
between TRIBUNE NEW YORK RADIO, INC., a Delaware corporation ("Seller"),
and EMMIS BROADCASTING CORPORATION, an Indiana corporation ("Buyer").
RECITALS:
1. Seller owns and operates radio station WQCD-FM in New York,
New York (the "Station"), and holds the licenses and authorizations
issued by the Federal Communications Commission (the "FCC") for the
operation of the Station.
2. Seller and Buyer desire that Seller grant Buyer an option to
purchase, and that Buyer grant Seller the right to require that Buyer
purchase, substantially all the assets used in the business and operation
of the Station, all on the terms and subject to the conditions set forth
herein.
3. Buyer is concurrently herewith delivering to Seller in
accordance with Section 2.4 of this Agreement a letter of credit in the
amount of Fifty Million Dollars ($50,000,000.00) to secure Buyer's
obligations to purchase such assets if so required hereunder.
Accordingly, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, Seller and Buyer agree as
follows:
ARTICLE I
TERMINOLOGY
1.1 Defined Terms. As used herein, the following terms shall have
the meanings indicated:
Affiliate: With respect to any specified person or entity, another
person or entity which, or a member of an immediate family which,
directly or indirectly controls, is controlled by, or is under common
control with, the specified person or entity.
AFTRA Agreement: That certain Agreement dated March 22, 1995 between
Seller and American Federation of Television and Radio Artists, and any
subsequent agreement in effect during the Term (as defined in the TBA).
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Closing Working Capital: (i) The current assets of the Station
minus (ii) the current liabilities of the Station (other than accrued
interest, dividends, income taxes and any current indebtedness for
borrowed money or for the deferred purchase price of property or services
(other than trade payables incurred in the ordinary course of business)),
all determined as of the close of business on the day preceding the date
hereof in accordance with generally accepted accounting principles.
Code: The Internal Revenue Code of 1986, as amended.
Documents: This Agreement and all Exhibits and Schedules hereto,
the TBA and each other agreement, certificate or instrument delivered
pursuant to this Agreement.
FCC Order: An order or decision of the FCC granting its consent to
the transfer of the FCC Licenses to Buyer.
Final Action: An action of the FCC (including the FCC Order) that
has not been reversed, stayed, enjoined, set aside, annulled or
suspended; with respect to which no timely petition for reconsideration
or administrative or judicial appeal or sua sponte action of the FCC with
comparable effect is pending; and as to which the time for filing any
such petition or appeal (administrative or judicial) or for the taking
of any such sua sponte action of the FCC has expired.
Lien: Any mortgage, deed of trust, pledge, hypothecation, title
defect, right of first refusal, security or other adverse interest,
encumbrance, claim, option, lien, lease or charge of any kind, whether
voluntarily incurred or arising by operation of law or otherwise,
affecting any assets or property, including any agreement to give or
grant any of the foregoing, any conditional sale or other title retention
agreement, and the filing of or agreement to give any financing statement
with respect to any assets or property under the Uniform Commercial Code
or comparable law of any jurisdiction.
Loss: With respect to any person or entity, any and all costs,
obligations, liabilities, demands, claims, settlement payments, awards,
judgments, fines, penalties, damages and reasonable out-of-pocket
expenses, including court costs and reasonable attorneys' fees, whether
or not arising out of a third party claim.
Material Adverse Condition: A condition which would restrict,
limit, increase the cost or burden of or otherwise adversely affect or
impair, in each case in any material respect, the right of Buyer to the
ownership, use, control or operation of the Station or the proceeds
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therefrom; provided, however, that any condition which requires (i) that
Buyer or any of its subsidiaries file periodic reports with the FCC
regarding compliance with rules and policies of the FCC pertaining to
affirmative action and equal opportunity employment, or (ii) that the
Station be operated in accordance with conditions similar to and not more
adverse than those contained in the present FCC Licenses issued for
operation of the Station, shall not be a Material Adverse Condition.
Material Adverse Effect: A material adverse effect on the assets,
business, operations, financial condition or results of operations of the
Station.
Option: Either the Call Option or Put Option.
Permitted Lien: Any statutory lien which secures a payment not yet
due that arises, and is customarily discharged, in the ordinary course
of Seller's business; or any other liens or imperfections in Seller's
title to any of its assets or properties that, individually and in the
aggregate, are not material in character or amount and do not and could
not reasonably be expected to materially detract from the value or
materially interfere with the existing use of any of the Sale Assets.
Taxes: All federal, state, local and foreign taxes including,
without limitation, income, gains, transfer, unemployment, withholding,
payroll, social security, real property, personal property, excise,
sales, use and franchise taxes, levies, assessments, imposts, duties,
licenses and registration fees and charges of any nature whatsoever,
including interest, penalties and additions with respect thereto and any
interest in respect of such additions or penalties.
Tax Return: Any return, filing, report, declaration, questionnaire
or other document required to be filed for any period with any taxing
authority (whether domestic or foreign) in connection with any Taxes
(whether or not payment is required to be made with respect to such
document).
TBA: The Time Brokerage Agreement executed and delivered by Seller
and Buyer on this date.
TBA Effective Date: The Effective Date of the TBA as defined in
Section 2.2 of the TBA.
1.2 Additional Defined Terms. As used herein, the following terms
shall have the meanings defined in the recitals or section indicated
below:
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Acquisition Proposal Section 6.14
Act Section 4.7(b)
Adjusted Purchase Price Section 14.2
Adjustment Amount Section 3.3.4(a)
Arbitrating Firm Section 3.3.4(e)
Assumed Obligations Section 3.3.1(a)
Benefit Plans Section 4.16(a)
Buyer's Trade Credit Section 3.3.4(b)(ii)
Call Exercise Period Section 2.2(b)
Call Option Section 2.2(a)
Closing Section 9.1
Closing Date Section 9.1
Collection Period Section 3.3.5(b)
Defendant Section 14.15
Employees Section 4.16(a)
ERISA Section 4.16(a)
Excluded Assets Section 3.2
FCC Recitals
FCC Licenses Section 4.7(a)
HSR Act Section 6.3
Intellectual Property Section 3.1(e)
Interim Balance Sheet Section 4.12(c)
Letter of Credit Section 2.4
Mid-Range Section 3.3.4(e)
Multiemployer Plan Section 4.16(c)
Permitted Recognized Gain Section 14.2
Preliminary Adjustment Report Section 3.3.4(d)
Purchase Price Section 3.3.2
Put Option Section 2.1(a)
Qualified Intermediary Swap Section 14.2
Related Persons Section 4.16(a)
Rescission Agreement Section 6.17
Retained Receivables Section 3.3.5(a)
Sale Assets Section 3.1
Seller's Trade Credit Section 3.3.4(b)(ii)
Station Recitals
Station Agreements Section 3.1(d)
Stock Acquisition Swap Section 14.2
Studio Lease Section 3.2(j)
Survival Period Section 10.1
Swap Corporation Section 14.2
Tangible Personal Property Section 3.1(a)
Trade Agreements Section 4.8(a)
Transmitter Antenna Lease Section 3.1(b)
ARTICLE II
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OPTIONS
2.1 Put Option.
(a) Buyer grants to Seller the right and option (the "Put
Option") to require that Buyer, on the Closing Date, purchase the Sale
Assets, and assume the Assumed Obligations, upon and subject to the terms
and conditions of this Agreement, including, without limitation,
Article XIV.
(b) The term of the Put Option shall commence on the date
hereof and end, subject to Section 2.3, on the third anniversary of the
date hereof.
(c) Seller may exercise the Put Option only by giving to
Buyer at any time during the term of the Put Option written notification
of such exercise. If the Put Option is duly exercised, Seller and Buyer
shall be required to consummate the purchase and sale of the Sale Assets,
and the assumption of the Assumed Obligations, in accordance with this
Agreement.
2.2 Call Option.
(a) Seller grants to Buyer the exclusive right and option
(the "Call Option") to purchase, on the Closing Date, the Sale Assets,
and assume the Assumed Obligations, upon and subject to the terms and
conditions of this Agreement, including, without limitation, Article XIV.
(b) Buyer may exercise the Call Option only by giving written
notification of such exercise to Seller at any time during the period
commencing on the third anniversary of the date hereof and ending two
months after the third anniversary of the date hereof (the "Call Exercise
Period"), provided that Buyer shall not be entitled to exercise the Call
Option if Seller has previously and duly exercised the Put Option. If
the Call Option is duly exercised, Seller and Buyer shall be required to
consummate the purchase and sale of the Sale Assets, and the assumption
of the Assumed Obligations, in accordance with this Agreement.
2.3 Extension. Seller may elect to extend the term of the Put
Option by one year by giving written notice to Buyer not later than
thirty (30) days prior to the third anniversary of the date hereof, in
which case (i) the Call Exercise Period shall commence on the fourth
anniversary of the date hereof and end two (2) months after such fourth
anniversary and (ii) the payment obligations of Buyer under the TBA with
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respect to the purchase of air time on the Station shall be waived for
the duration of such one-year extension.
2.4 Letter of Credit.
(a) In order to secure Buyer's obligation to close the
transactions contemplated by this Agreement pursuant to the due exercise
of the Option, Buyer shall, at its sole cost and expense, deliver to
Seller within three (3) days after the TBA Effective Date an irrevocable
$50,000,000 letter of credit (the "Letter of Credit"). The initial
expiration date of the Letter of Credit will be the first anniversary of
its issue date, with four (4) successive automatic one-year extensions
unless the issuer gives Seller written notice of non-extension (a "Non-
Extension Notice") at least thirty (30) days prior to the then current
expiration date.
(b) The Letter of Credit shall initially be issued by
BankBoston, N.A. and shall be in the form and substance of Exhibit A.
Thereafter, Buyer shall be entitled to substitute for the Letter of
Credit a letter of credit that (i) is issued by a financially sound bank
approved by Seller, which approval shall not be unreasonably withheld,
and (ii) is in the amount and otherwise in the form and substance of the
replaced Letter of Credit. Upon the issuance and delivery of such a
substitute letter of credit to Seller, Seller shall deliver the replaced
Letter of Credit to Buyer, and the substitute letter of credit shall
thereafter constitute the Letter of Credit for purposes of this
Agreement.
(c) Seller shall be entitled to draw under the Letter of Credit
prior to its then expiration date if:
(i) The issuer timely gives Seller a Non-Extension Notice,
in which case the amount drawn shall be invested by Seller in direct
general obligations of, or obligations the payment of the principal
of and interest on which are unconditionally guaranteed by, the
United States of America; or
(ii) Buyer wrongfully fails or refuses to close the
transactions contemplated by this Agreement pursuant to the due
exercise of the Option, and such failure continues for five (5)
business days after Buyer's receipt of written notice thereof from
Seller.
(d) In the event of the wrongful failure or refusal by Buyer to
close, Seller may apply the amount drawn under either foregoing
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Subsection (c)(i) or (c)(ii), together with any earnings thereon while
held by Seller (such amount, together with such earnings, the "LOC
Fund"), to payment of Losses indemnifiable by Buyer under Section 10.3,
and shall pay the excess, if any, of the LOC Fund to Buyer.
(e) In the event Closing occurs, Seller shall (i) return the
Letter of Credit to Buyer concurrently with consummation of the Closing
or (ii) apply the LOC Fund toward payment of the Purchase Price if Seller
has previously drawn under the Letter of Credit.
(f) In the event this Agreement is terminated for any reason other
than Buyer's material breach of this Agreement or the TBA, Seller shall
promptly (i) return the Letter of Credit to Buyer, or (ii) transfer the
LOC Fund to Buyer if Seller has previously drawn under the Letter of
Credit.
ARTICLE III
PURCHASE AND SALE
3.1 Sale Assets. Provided the Option is duly exercised, Seller
will sell, transfer, assign and convey to Buyer, and Buyer will purchase
from Seller, on the Closing Date upon and subject to the terms and
conditions provided herein, all of Seller's right, title and interest in
and to all tangible and intangible assets (except Excluded Assets) used
in the operation of the Station on the Closing Date (the "Sale Assets"),
including the following:
(a) Tangible Personal Property. All transmitter, antenna and
other broadcast equipment, studio equipment, parts, "CD 101.9" artwork,
computers and office equipment related to advertising sales, supplies and
music library owned or leased by Seller and used in the operation of the
Station, including but not limited to the items listed on Schedule 4.9,
together with such modifications, replacements, improvements and
additional items, and subject to such deletions therefrom, made or
acquired by Seller between the date hereof and the Closing Date in
accordance with the terms and provisions of this Agreement or the TBA
(the "Tangible Personal Property").
(b) Transmitter Antenna Lease. The transmitter antenna lease
and related agreements listed on Schedule 4.10 (the "Transmitter Antenna
Lease").
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(c) Permits. The FCC Licenses and all other governmental
permits, licenses and authorizations (and any renewals, extensions,
amendments or modifications thereof) now held by Seller or hereafter
obtained by Seller between the date hereof and the Closing Date, that are
necessary for the operation of the Station.
(d) Station Agreements. All rights of Seller in, to and
under all contracts, leases, agreements, commitments and other
arrangements of Seller, and any amendments and modifications, now in
effect or made or entered into by Seller between the date hereof and the
Closing Date in compliance with this Agreement, that are used primarily
in connection with the operation of the Station (the "Station
Agreements").
(e) Intellectual Property. All trade names, trademarks,
service marks, copyrights, patents, jingles, slogans, symbols, logos, the
call letters WQCD, inventions, and any other proprietary material,
process, trade secret or trade right used by Seller in the operation of
the Station, and all registrations, applications and licenses for any of
the foregoing, including, without limitation, those set forth on Schedule
4.11; any additional such items acquired or used by Seller in connection
with the operation of the Station between the date hereof and the Closing
Date; and all goodwill associated with any of the foregoing
(collectively, the "Intellectual Property"); provided, however, that the
Intellectual Property shall not include any rights, title or interest
whatsoever in or to the names "Tribune," "Tribune Broadcasting," "TBC,"
"Tribune New York Radio" or any derivations thereof or any signs, symbols
or logos bearing the name "Tribune," "Tribune Broadcasting, "TBC" or
"Tribune New York Radio."
(f) Records. The originals or true and complete copies of
all of the books, records, accounts, files, logs, ledgers and journals
pertaining to or used in the operation of the Station, including, but not
limited to, any of such items stored on computer disks or tapes, but
excluding any such items relating primarily to a business of Tribune
Company or any of its Affiliates unrelated to the Station.
3.2 Excluded Assets. Notwithstanding any provision of this
Agreement to the contrary, the Sale Assets shall not include the
following (the "Excluded Assets"):
(a) Any and all cash, bank deposits and other cash
equivalents, certificates of deposits, marketable securities, cash
deposits made by Seller to secure contract obligations (except to the
extent Seller receives a credit therefor under Section 3.3.4), and all
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accounts receivable (other than non-cash receivables under Trade
Agreements) for services performed or provided or for goods sold and
delivered by Seller prior to the Closing Date;
(b) Any and all rights in and to claims or causes of action
of Seller against third parties (including, without limitation, for
indemnification) with respect to, or which are made under or pursuant to,
other Excluded Assets;
(c) All prepaid expenses (and rights arising therefrom or
related thereto) except to the extent taken into account in determining
the Adjustment Amount under Section 3.3.4;
(d) All Benefit Plans (other than the AFTRA Health and
Retirement Funds described in the AFTRA Agreement (the "AFTRA Plan"));
(e) All employment agreements except those written employment
agreements and collective bargaining agreements listed on Schedule
4.8(b);
(f) All contracts of insurance, all coverages and proceeds
thereunder and all rights in connection therewith, including, without
limitation, rights arising from any refunds due with respect to insurance
premium payments to the extent they relate to such insurance policies;
(g) All tangible personal property disposed of or consumed
between the date hereof and the Closing Date in accordance with the terms
and provisions of this Agreement and the TBA;
(h) Any Station Agreement that has expired prior to the
Closing Date;
(i) Seller's corporate minute books, corporate seal, stock
transfer records and other corporate records (except to the extent such
records pertain primarily to or are used primarily in the operation of
the Station) and any records relating to Excluded Assets, to liabilities
other than the Assumed Obligations or primarily to a business which is
unrelated to the Station;
(j) The real property lease for the Station's studio and
office space dated December 30, 1993 between Two Twenty East Limited
Partnership, as landlord, and Seller and Tribune Company, collectively
as tenant, as amended (the "Studio Lease"), and all furniture, fixtures,
tangible personal property and other leasehold improvements (but not
including studio equipment and furniture and computers and office
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equipment related to advertising sales) located on or about the premises
subject to the Studio Lease;
(k) Any and all claims, rights and interests in and to any
refunds due from federal, state, local or other taxing authorities with
respect to Taxes paid by Seller with respect to any period or portion of
any period ending on or prior to the Closing;
(l) Seller's rights under or pursuant to this Agreement, the
TBA or any other Document;
(m) Any records prepared in connection with the sale or
exchange of the Station, including bids received from others and analyses
relating to the Station and the Sale Assets; and
(n) Any tradename, trademark, service mark, copyright,
patent, jingle, slogan, symbol or logo incorporating the names "Tribune,"
"Tribune Broadcasting, "TBC," "Tribune New York Radio" or any derivations
thereof.
3.3 Certain Terms of Sale. If the Option is duly exercised:
3.3.1 Assumption of Liabilities.
(a) Buyer shall at Closing assume and agree to pay, discharge
and perform when due the following liabilities and obligations of Seller
(collectively, the "Assumed Obligations"):
(i) The obligations under the Trade Agreements to
provide advertising on the Station on or after Closing Date.
(ii) Liabilities and obligations arising under all other
Station Agreements transferred to Buyer in accordance with this
Agreement to the extent such liabilities and obligations arise
during and relate to any period on or after the Closing Date
(including, without limitation, the AFTRA Agreement).
(iii) Provided that Seller pays Buyer the amount,
if any, owed by Seller after Closing under Section 3.3.4, the
Assumed Obligations shall also include such other liabilities of
Seller to the extent, and only to the extent, the amount thereof is
included as a credit to Buyer in calculating the Adjustment Amount
as ultimately determined pursuant to Section 2.6.
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(b) The Assumed Obligations shall in no event include any
liability or obligation to the extent arising (i) from the assignment to
Buyer of any Station Agreement in violation of its terms or (ii) from any
other breach or default by Seller upon or prior to Closing under any
Station Agreement unless caused by Buyer's action or failure to perform
under the TBA.
3.3.2 Purchase Price. The purchase price for the Sale Assets
("Purchase Price") shall equal One Hundred Sixty Million Dollars
($160,000,000), subject to adjustment as provided in Sections 3.3.4 and
14.2(c), and shall be paid by Buyer to Seller at Closing by wire transfer
of immediately available funds. Seller shall furnish Buyer wire
instructions at least three (3) business days prior to the Closing Date.
3.3.3 Allocation of the Purchase Price. Seller and Buyer shall
use good faith efforts to agree upon, prior to Closing, an allocation of
the Purchase Price among the Sale Assets which, if agreed upon, will be
incorporated in a schedule to be executed by the parties prior to or at
Closing. Buyer and Seller each agree to report such allocation, if
agreed upon, to the Internal Revenue Service in the form required by
Treasury Regulation 1.1060-IT and to use such allocation for all other
reporting purposes after Closing in connection with federal, state and
local income and, to the extent permitted under applicable law, franchise
taxes.
3.3.4 Adjustment of Purchase Price.
(a) All operating income and operating expenses of the
Station shall be adjusted and allocated between Seller and Buyer, and an
adjustment in the Purchase Price shall be made as provided in this
Section, to the extent necessary to reflect the principle that all such
income and expenses attributable to the operation of the Station on or
before the date preceding the Closing Date shall be for the account of
Seller, and all such income and expenses attributable to the operation
of the Station on and after the Closing Date shall be for the account of
Buyer. The net amount by which the Purchase Price is to be increased or
decreased in accordance with this Section is herein referred to as the
"Adjustment Amount". Notwithstanding the foregoing, the operating income
to which Buyer is entitled under the TBA, and the operating expenses
required to be paid by Buyer under the TBA, shall not be taken into
account in determining the Adjustment Amount.
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(b) Without limiting the generality of the foregoing:
(i) Seller shall receive a credit for the unapplied
portion, as of Closing, of the security deposits made by Seller
under those Station Agreements assumed by Buyer at Closing in
accordance with Section 3.3.1.
(ii) Buyer shall be given a credit ("Buyer's Trade
Credit") in the amount equal to the financial value (determined in
accordance with generally accepted accounting principles
consistently applied) of all time required to be broadcast on the
Station on or after the Closing Date under the Trade Agreements, and
Seller shall be given a credit ("Seller's Trade Credit") for the
financial value (determined in accordance with generally accepted
accounting principles consistently applied) of the goods and
services to be received on or after the Closing Date under the Trade
Agreements; provided that Seller's Trade Credit shall in no event
exceed Buyer's Trade Credit.
(iii) With respect to each vacation or portion
thereof earned but not taken before the Closing Date by each Station
employee hired by Buyer, Buyer shall receive a credit equal to the
compensation equivalent thereof, including applicable payroll taxes.
(iv) The credit given Seller for each prepaid expense
shall not exceed an amount commensurate with the benefit therefrom
to be received by Buyer after Closing.
(c) To the extent not inconsistent with the express
provisions of this Agreement, the allocations made pursuant to this
Section 3.3.4 shall be made in accordance with generally accepted
accounting principles.
(d) Three (3) business days prior to the Closing Date, Seller
shall provide Buyer with a statement setting forth a detailed computation
of Seller's reasonable and good faith estimate of the Adjustment Amount
as of the Closing Date (the "Preliminary Adjustment Report"). If the
Adjustment Amount reflected on the Preliminary Adjustment Report is a
credit to Buyer, the Purchase Price payable on the Closing Date shall be
reduced by the amount of the preliminary Adjustment Amount, and if the
Adjustment Amount reflected on the Preliminary Adjustment Report is a
charge to Buyer, the Purchase Price payable on the Closing Date shall be
increased by the amount of such preliminary Adjustment Amount.
Thereafter, Seller and its auditors and Buyer and its auditors shall have
ninety (90) days after the Closing Date to review the Preliminary
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Adjustment Report and the related books and records of Seller, and Buyer
and Seller will in good faith seek to reach agreement on the final
Adjustment Amount as of the Closing Date. If agreement is reached within
ninety (90) days after the Closing Date, then upon reaching such
agreement, Seller shall pay to Buyer or Buyer shall pay to Seller, as the
case may be, an amount equal to the difference between (i) the agreed
Adjustment Amount and (ii) the preliminary Adjustment Amount indicated
in the Preliminary Adjustment Report. Any such payment shall be made as
provided in Section 3.3.4(h). If agreement is not reached within such
90-day period, then the dispute resolutions of Section 3.3.4(e) shall
apply.
(e) If Seller and its auditors and Buyer and its auditors do
not, within the 90-day period specified in Section 3.3.4(d), reach an
agreement on the Adjustment Amount as of the Closing Date, then an
independent accounting firm of recognized national standing (the
"Arbitrating Firm") selected by Seller and Buyer shall resolve the
disputed items. If Seller and Buyer are unable to agree on the
Arbitrating Firm, the Arbitrating Firm shall be a "big-six" accounting
firm selected by lot (after excluding one firm designated by Seller and
one firm designated by Buyer). Buyer and Seller shall each inform the
Arbitrating Firm in writing as to their respective positions concerning
the Adjustment Amount as of the Closing Date, and each shall make readily
available to the Arbitrating Firm any books and records and work papers
relevant to the preparation of such firm's computation of the Adjustment
Amount. The Arbitrating Firm shall be instructed to complete its
analysis within thirty (30) days from the date of its engagement and upon
completion to inform the parties in writing of its own determination of
the Adjustment Amount, the basis for its determination, whether Buyer's
or Seller's written position as to the Adjustment Amount is closer to its
own determination, and whether its own determination of the Adjustment
Amount is within a range that (i) equals twenty percent (20%) of the
absolute difference between the written positions of Buyer and Seller as
to the Adjustment Amount and (ii) has a midpoint equal to the median of
such written positions of Buyer and Seller (the "Mid-Range"). Any
determination by the Arbitrating Firm in accordance with this Section
shall be final and binding on the parties for purposes of this Section.
Within five (5) days after the Arbitrating Firm delivers to the parties
its written determination of the Adjustment Amount, Seller shall pay to
Buyer, or Buyer shall pay to Seller, as the case may be, an amount equal
to the difference between (i) the Adjustment Amount as determined by the
Arbitrating Firm and (ii) the preliminary Adjustment Amount indicated in
the Preliminary Adjustment Report. Any such payment shall be made as
provided in Section 3.3.4(h).
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(f) In the event that the Arbitrating Firm determines that
the written position of Buyer concerning the Adjustment Amount is closer
to its own determination, Seller shall pay the fees and disbursements of
the Arbitrating Firm in connection with its analysis. In the event that
the Arbitrating Firm determines that the written position of Seller
concerning the Adjustment Amount is closer to its own determination,
Buyer shall pay the fees and disbursements of the Arbitrating Firm in
connection with its analysis. However, in the event the Arbitrating
Firm's determination of the Adjustment Amount is within the Mid-Range,
Seller and Buyer shall each pay one-half of the fees and disbursements
of the Arbitrating Firm in connection with its analysis.
(g) Concurrently with the payment of any amount required to
be paid under foregoing Subsection (d) or (e), the payor shall pay the
payee interest thereon for the period from the Closing Date until the
date paid at a rate equal to two percentage points over the floating
annual rate of interest on commercial loans announced from time to time
by The First National Bank of Boston as its "base rate".
(h) Any payments required under foregoing Subsection (d), (e)
or (g) shall be paid by wire transfer in immediately available funds to
the account of the payee with a financial institution in the United
States and shall for all purposes be deemed an adjustment to the Purchase
Price.
3.3.5 Accounts Receivable.
(a) Within ten (10) days after the Closing Date, Seller shall
furnish to Buyer a true and complete list of Seller's accounts receivable
(other than non-cash receivables under Trade Agreements) arising from the
operation of the Station prior to the Closing Date (the "Retained
Receivables"), which list shall set forth for each Retained Receivable
the name of the debtor, the date of the invoice, the amount of any
payments previously received on the invoice and the balance due.
(b) For a period of one hundred eighty (180) days after the
Closing Date (the "Collection Period"), Buyer will, without charge to
Seller, use commercially reasonable procedures to collect the Retained
Receivables as Seller's agent for collection, provided that (i) Buyer
shall not be required to commence litigation, employ legal counsel or a
collection agency or make any other extraordinary collection efforts, and
(ii) Buyer's obligation to act as Seller's agent in the collection of the
Retained Receivables shall terminate upon expiration of the Collection
Period. For the purpose of determining amounts collected by Buyer with
respect to the Retained Receivables, each payment by an account debtor
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shall be applied to the older or oldest accounts receivable of such
account debtor unless the account debtor identifies such an account in
writing as being in dispute and directs in writing that a particular
payment be applied to a specific newer account receivable.
(c) Every two weeks during the Collection Period (and within
fifteen (15) days after the end of the Collection Period), Buyer shall
deliver to Seller a statement showing all collections of Retained
Receivables made on behalf of Seller since the last previous report and
shall pay such collections to Seller by check at the time such statement
is delivered.
(d) Seller shall not engage in any collection efforts against
account debtors under the Retained Receivables during the Collection
Period, other than with respect to accounts receivable identified as in
dispute as provided in foregoing Subsection (b).
(e) Buyer shall not, without Seller's prior written consent,
compromise or settle for less than full value any of the Retained
Receivables unless Buyer pays Seller the full amount of any deficiency.
Buyer shall be entitled to purchase from Seller any Retained Receivable
for the full amount thereof at any time during or at the expiration of
the Collection Period.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF SELLER
Seller represents and warrants to Buyer as follows:
4.1 Organization, Good Standing and Corporate Power. Seller is a
corporation duly organized, validly existing and in good standing under
the laws of the State of Delaware, and has all requisite corporate power
to own, operate and lease the Sale Assets and carry on its business.
Seller is duly licensed, qualified to do business and in good standing
as a foreign corporation under the laws of the State of New York.
4.2 Ownership. All of the issued and outstanding capital stock of
Seller is owned beneficially and of record by Tribune Broadcasting
Company, a Delaware corporation.
4.3 Authorization and Binding Effect of Documents. Seller has all
requisite corporate power and authority to enter into this Agreement and
the other Documents and to consummate the transactions contemplated by
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this Agreement. The execution and delivery of this Agreement and each
of the other Documents by Seller and the consummation by Seller of the
transactions contemplated hereby and thereby have been duly authorized
by all necessary corporate action (including all necessary shareholder
approvals, if any) on the part of Seller. This Agreement has been, and
each of the other Documents at or prior to Closing will be, duly executed
and delivered by Seller. This Agreement constitutes (and each of the
other Documents, when executed and delivered, will constitute) the valid
and binding obligation of Seller enforceable against Seller in accordance
with its terms.
4.4 Absence of Conflicts. Except as set forth on Schedule 4.4,
the execution, delivery and performance by Seller of this Agreement and
the other Documents, and consummation by Seller of the transactions
contemplated hereby and thereby, do not and will not (i) conflict with
or result in any breach of any of the terms, conditions or provisions of,
(ii) constitute a default under, (iii) result in a violation of,
(iv) give any third party the right to modify, terminate or accelerate
any obligation under, or (v) result in the creation of any Lien upon the
Sale Assets under, the provisions of the articles or certificate of
incorporation or by-laws of Seller, any material indenture, mortgage,
lease, loan agreement or other material agreement or instrument to which
Seller is bound or affected, or any law, statute, rule, judgment, order
or decree to which Seller is subject; provided, however, this Section 4.4
shall not apply to any Trade Agreement, Station Agreement or any other
indenture, mortgage, lease, loan agreement or other agreement or
instrument to which Seller is bound or by which Seller is affected which
is silent as to assignability, and provided further that nothing in this
Section 4.4 shall constitute a representation or warranty with respect
to the transferability or assignability of any Trade Agreement, Station
Agreement or any other indenture, mortgage, lease, loan agreement or
other agreement or instrument to which Seller is bound or by which Seller
is affected, except that Seller has no knowledge of any such agreement
or instrument which, if assigned to Buyer in connection with the
transactions contemplated hereby or by the TBA, would constitute a breach
of such agreement or instrument that would be reasonably likely to have
a Material Adverse Effect.
4.5 Consents. Except as set forth on Schedule 4.4 and except for
any necessary clearances or approvals under the HSR Act or the Act, the
execution, delivery and performance by Seller of this Agreement and the
other Documents, and consummation by Seller of the transactions
contemplated hereby and thereby, do not and will not require the
authorization, consent, approval, exemption, clearance or other action
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by or notice or declaration to, or filing with, any court or
administrative or other governmental body.
4.6 Sale Assets; Title. The Sale Assets constitute all of the
assets, properties and rights of every type and description, real,
personal and mixed, tangible and intangible, that are currently used in
or material to the operation of the Station, with the exception of the
Excluded Assets. Seller has good and marketable title to, or a valid
lessee's interest in, all of the Sale Assets free and clear of all Liens
except Permitted Liens.
4.7 FCC Licenses. Except as set forth on Schedule 4.7:
(a) Seller is the valid and legal holder of the licenses,
permits and authorizations of the FCC listed on Schedule 4.7 for the
operation of the Station (the "FCC Licenses"), and any action of the FCC
with respect to such FCC Licenses is a Final Action with the exception
of the FCC Order. The expiration date of the term of each FCC License
is shown on Schedule 4.7.
(b) The FCC Licenses (i) are valid, subsisting and in full
force and effect, and constitute all of the licenses, permits and
authorizations used in or required for the current operation of the
Station under the Communications Act of 1934, as amended, and the rules,
regulations and policies under the FCC thereunder (collectively, the
"Act"), and (ii) constitute all the licenses and authorizations,
including amendments and modifications thereto, issued by the FCC to
Seller for or in connection with the operation of the Station.
(c) As of the date of this Agreement, none of the FCC
Licenses is subject to any restriction or condition which would limit in
any respect the full operation of the Station as now conducted, and as
of the Closing Date, none of the FCC Licenses shall be subject to any
restriction or condition which would limit in any respect the full
operation of the Station as then conducted.
(d) The Station is being operated by Seller in all material
respects in accordance with the terms and conditions of the FCC Licenses,
the Act and the rules and regulations of the FCC applicable to it,
including but not limited to those pertaining to RF emissions.
(e) No applications, complaints or proceedings are pending
or, to the knowledge of Seller, are threatened which may result in the
revocation, modification, non-renewal or suspension of any of the FCC
Licenses, the denial of any pending applications, the issuance of any
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cease and desist order or the imposition of any fines, forfeitures or
other administrative actions by the FCC with respect to the Station or
its operation, other than proceedings affecting the radio broadcasting
industry in general.
(f) Seller has complied in all material respects with all
requirements to file reports, applications and other documents with the
FCC with respect to the Station, and all such reports, applications and
documents are true, correct and complete in all material respects.
(g) Seller has no knowledge of matters (i) which might
reasonably be expected to result in the adverse modification, suspension
or revocation of or the refusal to renew any of the FCC Licenses or the
imposition of any fines or forfeitures by the FCC against Seller, or
(ii) which might reasonably be expected to result in the FCC's refusal
to grant or delay approval of the transfer to Buyer of any FCC License
or the imposition of any Material Adverse Condition in connection with
approval of the transfer to Buyer of any FCC License.
(h) There are not any unsatisfied or otherwise outstanding
citations issued by the FCC with respect to the Station or its operation.
(i) True, complete and accurate copies of all FCC Licenses
have been delivered by Seller to Buyer.
(j) Except for the FCC Licenses, there are no material
licenses, permits or authorizations from governmental or regulatory
authorities required for the lawful operation and conduct of the Station
in the manner in which it has been and is now conducted.
4.8 Station Agreements.
(a) Schedule 4.8(a) lists all agreements, contracts,
understandings and commitments as of the date indicated thereon for the
sale of time on the Station for other than monetary consideration ("Trade
Agreements"), and sets forth the parties thereto, the financial value of
the time required to be provided from and after the date of such Schedule
and the financial value of the goods or services to be received by Seller
from and after the date of such Schedule. True and complete copies of
all written Trade Agreements in effect as of such date, including all
amendments, modifications and supplements thereto, have been delivered
to Buyer, and each Trade Agreement hereafter entered into by Seller prior
to Closing shall be promptly delivered to Buyer.
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(b) Schedule 4.8(b) lists all the following types of Station
Agreements in effect on the date of this Agreement:
(i) Agreements for sale of broadcast time on the
Station for monetary consideration, other than such agreements
entered into in the ordinary course of business involving broadcast
time of less than Twenty-Five Thousand Dollars ($25,000);
(ii) All network affiliation agreements;
(iii) All sales agency or advertising representation
contracts;
(iv) Each lease of any Sale Asset (including a
description of the Sale Asset leased thereunder);
(v) All collective bargaining agreements, employment
agreements and agreements with independent contractors;
(vi) All agreements to which an Affiliate of Seller is
a party or which relate to a station owned or business operated by
an Affiliate of Seller;
(vii) Each of the other Station Agreements (other
than Trade Agreements and the Transmitter Antenna Lease and the
Studio Lease) involving a commitment by any party thereto with a
fair market value of, or requiring any party thereto to pay over the
life of the contract, more than Twenty-Five Thousand Dollars
($25,000); and
(viii) Any other Station Agreement that is material
to the business, operations or financial condition of the Station.
True and complete copies of all the foregoing Station Agreements that are
in writing, and true and accurate summaries of all the foregoing Station
Agreements that are oral, including all amendments, modifications and
supplements thereto, have been delivered to Buyer. The Station
Agreements (other than Trade Agreements) that are not listed on Schedule
4.8(b) do not involve commitments by parties thereto with an aggregate
fair market value of more than Fifty Thousand Dollars ($50,000).
(c) Schedule 4.8(c) lists all of the contracts and agreements
in effect on the date of this Agreement between Seller and any of its
Affiliates used in or relating to the operation of the Station. True and
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complete copies of those in writing have been delivered to Buyer, and
summaries of those that are oral are set forth on Schedule 4.8(c).
(d) With respect to the Station Agreements which are,
individually or in the aggregate, material to the business, operations
or financial condition of the Station, except as set forth in the
Schedules, (i) such Station Agreements are valid and in full force and
effect; and (ii) neither Seller nor, to the knowledge of Seller, any
other party is in material default under, and no event has occurred which
(after the giving of notice or the lapse of time or both) would
constitute a material default under, any such Station Agreements.
4.9 Tangible Personal Property. Except as set forth on
Schedule 4.9:
(a) Such Schedule lists, as of the date of this Agreement,
all Tangible Personal Property (other than Excluded Assets, office
supplies and other incidental items) material to the conduct of the
business and operations of the Station in the manner in which it is now
operated.
(b) The equipment constituting a part of the Tangible
Personal Property as of the date of this Agreement and used in or
necessary for the operation of the Station in the manner in which it is
now operated has been properly maintained prior to the date hereof in
accordance with the manufacturers' recommendations and industry practices
as of the date hereof, is in a good state of repair and operating
condition, and complies as of the date hereof in all material respects
with the Act and other applicable laws, rules, regulations and
ordinances.
4.10 Transmitter Antenna Lease. Schedule 4.10 is a true and
complete copy of the Transmitter Antenna Lease and any amendments
thereto. Except for the Transmitter Antenna Lease and the Studio Lease,
there is no interest in real estate which Seller holds or which is
principally used in the operation of the Station in the manner in which
it is now operated.
4.11 Intellectual Property. Schedule 4.11 lists all tradenames,
trademarks, service marks, copyrights and patents included in the
Intellectual Property, including all registrations, applications and
licenses for any of the Intellectual Property. Except as disclosed on
Schedule 4.11:
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(a) To the knowledge of Seller, Seller owns, free and clear
of Liens, all right and interest in, and right and authority to use in
connection with the conduct of the business of the Station as presently
conducted, all of the Intellectual Property listed on Schedule 4.11, and
all of the rights and properties constituting a part of the Intellectual
Property are in full force and effect as of the date of this Agreement;
(b) As of the date of this Agreement, there are no
outstanding or, to the knowledge of Seller, threatened judicial or
adversary proceedings with respect to any of the Intellectual Property;
(c) Except as may be granted pursuant to the TBA, Seller has
not granted to any other person or entity any license or other right or
interest in or to any of the Intellectual Property or to the use thereof;
(d) As of the date of this Agreement, Seller has no knowledge
of any infringement or unlawful use of any of the Intellectual Property;
(e) As of the date of this Agreement, Seller has not violated
any provisions of the Copyright Act of 1976, 17 U.S.C. SEC. 101, et. seq.,
in any material respect. Seller has filed all notices and statements of
account and has made all payments that are required in connection with
the transmission by Seller of any broadcast radio or other signals prior
to the date of this Agreement, except for failures to file or pay that
are not material in the aggregate; and
(f) Seller has delivered to Buyer copies of all state or
federal registrations and other material documents, if any, establishing
any of the rights and properties constituting a part of the Intellectual
Property.
4.12 Financial Statements. Seller has delivered to Buyer:
(a) The unaudited balance sheets of the Station as of
December 29, 1996 and 1995;
(b) The unaudited statements of operations of the Station for
the years ended December 29, 1996 and 1995;
(c) The unaudited balance sheet of the Station as of March
30, 1997 (the "Interim Balance Sheet"); and
(d) The unaudited statement of operations of the Station for
the interim period ended March 30, 1997.
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All such statements (i) are in accordance in all material respects with
the books and records of Seller and (ii) have been prepared in accordance
with generally accepted accounting principles applied on a consistent
basis and fairly present the assets and liabilities of the Station as of
the dates stated and accurately reflect the results of operations of the
Station for the periods covered by the statements, with the exceptions
that (A) statements of cash flows are not included, (B) federal income
tax, expense or benefit are not shown, (C) interest income and expense
are not shown, (D) such statements do not contain the disclosures
required by generally accepted accounting principles in notes
accompanying financial statements, and (E) the interim statements are
subject to normal year-end adjustments.
4.13 Absence of Certain Changes or Events. Since the date of the
Interim Balance Sheet, except as described on Schedule 4.13 or caused by
or arising from Buyer's action or failure to perform under the TBA,
Seller has not:
(a) amended or terminated any Station Agreement set forth on
Schedule 4.8(a), 4.8(b) or 4.8(c) except in the ordinary course of
business;
(b) mortgaged, pledged or subjected to any Lien, any of the
Sale Assets, except for Permitted Liens;
(c) disposed of any Sale Assets or entered into any agreement
or other arrangement for such disposition, except in the ordinary course
of business or as otherwise agreed to by Buyer;
(d) entered into any agreement, commitment or other
transaction other than in the ordinary course of business or other than
agreements, commitments or other transactions which are terminable by
Seller on not more than thirty (30) days notice without cost or liability
on the part of Seller or the Station;
(e) paid any bonus to any officer, director or employee or
granted to any officer, director or employee any other increase in
compensation in any form, except in the ordinary course of business
consistent with past practices;
(f) adopted or amended any collective bargaining, bonus,
profit-sharing, compensation, stock option, pension, retirement, deferred
compensation, severance or other plan, agreement, trust, fund or
arrangement for the benefit of employees (whether or not legally binding)
or made any material changes in its policies of employment;
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(g) entered into any agreement (other than agreements that
will be terminated prior to Closing) with any Affiliate of Seller; or
(h) through the date of this Agreement, operated the Station
other than in the ordinary course.
4.14 Litigation. Except as described in Schedule 4.14 or caused by
or arising from Buyer's action or failure to perform under the TBA,
(i) there are no actions, suits, claims, investigations or
administrative, arbitration or other proceedings pending or, to the
knowledge of Seller, threatened against Seller before or by any court,
arbitration tribunal or governmental department or agency, domestic or
foreign, that relates to the Station or the Sale Assets; (ii) neither
Seller nor, to the knowledge of Seller, any of the officers or employees
of Seller, has been charged with, or is under investigation with respect
to, any violation of any provision of any federal, state, foreign or
other applicable law or administrative regulation in respect of such
officer's or employee's employment at the Station or with Seller; and
(iii) neither Seller nor any properties or assets of Seller nor, to the
knowledge of Seller, any officer or employee of Seller is a party to or
bound by any order, arbitration award, judgment or decree of any court,
arbitration tribunal or governmental department or agency, domestic or
foreign, in respect of any business practices, the acquisition of any
property, or the conduct of any business, of Seller, which, individually
or in the aggregate, has or could reasonably be expected to have, a
Material Adverse Effect or materially impair the ability of Seller to
perform its obligations hereunder and consummate the transactions
contemplated hereby.
4.15 Labor Matters.
(a) Except as listed on Schedule 4.15(a):
(i) As of the date of this Agreement, to Seller's
knowledge, no present or former employee (or independent contractor
employed as an on-air talent or producer) of the Station has a
pending claim or charge which has been asserted or threatened
against Seller for (A) overtime pay; (B) wages, salaries or profit
sharing; (C) vacations, time off or pay in lieu of vacation or time
off; (D) any violation of any statute, ordinance, contract or
regulation relating to minimum wages, maximum hours of work or the
terms or conditions of employment; (E) discrimination against
employees on any basis; (F) unlawful or wrongful employment or
termination practices; (G) unlawful retirement, termination or labor
relations practices or breach of contract; or (H) any violation of
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occupational safety or health standards; excluding, however, any of
the foregoing matters with respect to any present or former employee
or independent contractor arising while employed by Buyer or an
Affiliate of Buyer.
(ii) As of the date hereof, (A) there is not pending or,
to the knowledge of Seller, threatened against Seller any labor
dispute, strike or work stoppage that affects or interferes with,
or is likely to affect or interfere with, the operation of the
Station, and (B) Seller has no knowledge of any organizational
effort currently being made or threatened by or on behalf of any
labor union with respect to employees of the Station. There are no
unresolved unfair labor charges against Seller which could
reasonably be expected to have a Material Adverse Effect on the Sale
Assets or the business, operations, financial condition or results
of operation of the Station after the Closing Date. Seller has not
experienced any strike, work stoppage or other similar significant
labor difficulties within the twelve (12) months preceding the date
hereof.
(b) Except as set forth on Schedule 4.8(b), Seller is not a
signatory or a party to, or otherwise bound by, a collective bargaining
agreement which covers employees or former employees of the Station,
(ii) Seller has not agreed to recognize any union or other collective
bargaining unit with respect to any employees of the Station, and (iii)
no union or other collective bargaining unit has been certified as
representing any employees of the Station.
(c) Schedule 4.15(c) sets forth a true and complete list, as
of the date of this Agreement, of all persons employed by Seller or at
the Station, and states for each such employee (i) the current level of
compensation payable to such employee and the termination pay or other
severance benefits, if any, that may be payable to such employee upon
termination of employment, (ii) whether such employee is employed under
a written contract and (iii) the policies applicable to the employee if
not employed under a written contract. A true and complete copy of any
handbook, policy manual or similar written guidelines furnished to
employees of the Station has been delivered to Buyer.
4.16 Employee Benefit Plans.
(a) All compensation or benefit plans, policies, practices,
arrangements and agreements covering any employee or former employee of
Seller or the Station or the beneficiaries or dependents of such employee
or former employee (such employees, former employees, beneficiaries and
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dependents herein referred to collectively as the "Employees") which, as
of the date of this Agreement, are or have been established or maintained
or to which contributions have been made on or prior to the date of this
Agreement by Seller or by any other trade or business, whether or not
incorporated, which is or has been treated as a single employer together
with the Seller under Section 414 of the Code (such other trades and
businesses referred to collectively as the "Related Persons") or to which
Seller or any Related Person is or has been obligated to contribute,
including, but not limited to, "employee benefit plans" within the
meaning of Section 3(3) of the Employee Retirement Income Security Act
of 1974, as amended ("ERISA"), employment, retention, change of control,
severance, stock option or other equity based, bonus, incentive
compensation, deferred compensation, retirement, fringe benefit and
welfare plans, policies, practices, arrangements and agreements
(collectively, the "Benefit Plans") are disclosed in Schedule 4.16.
Except pursuant to a Benefit Plan disclosed in Schedule 4.16, Seller has
no fixed or contingent liability or obligation to any of the Employees
or to any person whose services are or were provided as an independent
contractor to Seller or the Station.
(b) All Benefit Plans (other than the AFTRA Plan, to which
this representation is limited by Seller's knowledge) have been
administered and are in compliance in all material respects with
applicable provisions, if any, of ERISA and the Code and all other
applicable law. Neither Seller nor a Related Person has engaged in a
transaction with respect to any Benefit Plan that could result in a
material tax, penalty or other liability under the Code or ERISA being
imposed against Buyer, the Station or the Sale Assets.
(c) Other than the AFTRA Plan, no Benefit Plan is a
multiemployer plan within the meaning of Section 3(37) or Section
4001(a)(3) of ERISA (a "Multiemployer Plan").
(d) Neither Seller nor any Related Person has, to Seller's
knowledge, incurred or expects to incur any material withdrawal liability
with respect to a Multiemployer Plan under Subtitle E of Title IV of
ERISA regardless of whether based on contributions by any entity which
is considered a predecessor of Seller or one employer with Seller under
Section 4001 of ERISA.
(e) All contributions required to have been made by Seller
under the terms of any Benefit Plan or applicable law have been timely
made.
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(f) Seller does not have any unfunded obligations (including
projected obligations) for retiree health and life benefits under any
Benefit Plan other than continuation coverage required by law; provided,
however, that this representation shall be limited to Seller's knowledge
to the extent it relates to the AFTRA Plan.
(g) Neither Seller nor any Related Person has incurred any
material liability under or pursuant to Title I or IV of ERISA or the
penalty, excise tax or joint and several liability provisions of the Code
relating to employee benefit plans and no event or condition has occurred
or exists which would result in any such material liability to Seller.
4.17 Compliance with Law. Seller has operated and is operating the
Station in all material respects in compliance with the Act and all other
federal, state and local laws, statutes, ordinances, regulations,
licenses, permits or exemptions therefrom and all applicable orders,
writs, injunctions and decrees of any court, commission, board, agency
or other instrumentality, and Seller has not received any notice of
noncompliance pertaining to Seller's operation of the Station that has
not been cured.
4.18 Tax Returns and Payments.
(a) Except as set forth in Schedule 4.18, Seller has
accurately prepared and is not delinquent in the filing of any Tax
Returns required to be filed by Seller, including filings regarding
employees, sales, operations or assets. All Taxes due and payable
pursuant thereto and all other Taxes or assessments due and payable by
Seller or chargeable as a Lien upon its assets have been paid.
(b) Except as set forth in Schedule 4.18, (i) no outstanding
unsatisfied deficiency, delinquency or default for any Tax has been
claimed, proposed or assessed against Seller, (ii) Seller has not
received notice of any such deficiency, delinquency or default, and
(iii) to Seller's knowledge, no taxing authority is now threatening to
assert any such deficiency, delinquency or default and, to Seller's
knowledge, there is no reasonable basis for any such assertion.
(c) No Tax is required to be withheld by Buyer pursuant to
Section 1445 of the Code as a result of the transactions contemplated by
this Agreement.
(d) Seller has withheld any Tax required to be withheld by
Seller under applicable law and regulations, and such withholdings have
either been paid to the proper governmental agency or set aside in
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accounts for such purpose, or accrued, reserved against and entered upon
the books of Seller.
4.19 Environmental Matters.
(a) To Seller's knowledge, as of the date of this Agreement,
there are no conditions or circumstances associated with the Sale Assets
which may give rise to any material liability or cost under applicable
environmental law.
(b) Except as listed on Schedule 4.19, Seller does not own
or use any electrical or other equipment containing polychlorinated
biphenyls.
4.20 Broker's or Finder's Fees. No agent, broker, investment banker
or other person or firm acting on behalf of or under the authority of
Seller or any Affiliate of Seller is or will be entitled to any broker's
or finder's fee or any other commission or similar fee, directly or
indirectly, in connection with the transactions contemplated by this
Agreement.
4.21 Insurance. There is now in full force and effect with
reputable insurance companies fire and extended coverage insurance with
respect to all tangible Sale Assets and public liability and
broadcaster's liability insurance, all in reasonably commercial amounts.
ARTICLE V
REPRESENTATIONS AND WARRANTIES OF BUYER
Buyer represents and warrants to Seller as follows:
5.1 Organization and Good Standing. Buyer is a corporation duly
organized, validly existing and in good standing under the laws of the
State of Indiana. Buyer has all requisite corporate power to own,
operate and lease its properties and carry on its business as it is now
being conducted and as the same will be conducted following the Closing.
5.2 Authorization and Binding Effect of Documents. Buyer has
all requisite corporate power and authority to enter into this Agreement
and the other Documents and to consummate the transactions contemplated
by this Agreement. The execution and delivery of this Agreement and each
of the other Documents by Buyer and the consummation by Buyer of the
transactions contemplated by this Agreement have been duly authorized by
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all necessary corporate action on the part of Buyer. This Agreement has
been, and each of the other Documents at or prior to Closing will be,
duly executed and delivered by Buyer. This Agreement constitutes (and
each of the other Documents, when executed and delivered, will
constitute) the valid and binding obligation of Seller enforceable
against Buyer in accordance with its terms.
5.3 Absence of Conflicts. Except as set forth on Schedule 5.3,
the execution, delivery and performance by Buyer of this Agreement and
the other Documents, and consummation by Buyer of the transactions
contemplated hereby and thereby, do not and will not (i) conflict with
or result in any breach of any of the terms, conditions or provisions of,
(ii) constitute a default under, (iii) result in a violation of,
(iv) give any third party the right to modify, terminate or accelerate
any obligation under, the provisions of the articles of incorporation or
by-laws of Buyer, any indenture, mortgage, lease, loan agreement or other
agreement or instrument to which Buyer is bound or affected, or any law,
statute, rule, judgment, order or decree to which Buyer is subject.
5.4 Consents. Except as set forth on Schedule 5.3, the
execution, delivery and performance by Buyer of this Agreement and the
other Documents, and consummation by Buyer of the transactions
contemplated hereby and thereby, do not and will not require the
authorization, consent, approval, exemption, clearance or other action
by or notice or declaration to, or filing with, any court or
administrative or other governmental body, or the consent, waiver or
approval of any other person or entity.
5.5 Broker's or Finder's Fees. No agent, broker, investment
banker, or other person or firm acting on behalf of Buyer or under its
authority is or will be entitled to any broker's or finder's fee or any
other commission or similar fee, directly or indirectly, from Buyer in
connection with the transactions contemplated by this Agreement.
5.6 Litigation. There are no legal, administrative, arbitration
or other proceedings or governmental investigations pending or, to the
knowledge of Buyer, threatened against Buyer that would give any third
party the right to enjoin the transactions contemplated by this
Agreement.
5.7 Buyer's Qualification. Buyer has no knowledge of matters
which might reasonably be expected to result in the FCC's refusal to
grant or delay approval of the transfer to Buyer of any FCC License or
the imposition of any Material Adverse Condition in connection with
approval of the transfer to Buyer of any FCC License.
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5.8 Disclosure. To Buyer's knowledge, no representation or
warranty by Buyer in this Agreement or any other Document furnished by
Buyer or on its behalf contains any untrue statement of a material fact,
or omits to state a material fact, necessary to make any statement
contained herein or therein not misleading.
5.9 Adequacy of Financing. As of the date of this Agreement,
Buyer has, and as of the Closing will have, adequate funds on hand or
otherwise available to it to pay the Purchase Price.
ARTICLE VI
OTHER COVENANTS
6.1 Conduct of the Station's Business Prior to the Closing Date.
Subject to the TBA and any action or failure to perform by Buyer under
the TBA, Seller covenants and agrees with Buyer that from the date hereof
through the Closing Date, unless Buyer otherwise agrees in writing,
Seller shall:
(a) Conduct the business of the Station in all material
respects in accordance with the terms or conditions of the FCC Licenses,
all applicable rules and regulations of the FCC, and all other rules,
regulations, laws and orders of all governmental authorities having
jurisdiction over any aspect of the operation of the Station; and timely
file all applications necessary for renewal of any of the FCC Licenses,
shall prosecute each such application with diligence, shall in each case
seek renewal for a full term, and shall diligently oppose any objections
to, appeals from or petitions to reconsider the grant of any such renewal
application;
(b) Maintain Seller's books and records in accordance with
generally accepted accounting principles on a basis consistent with prior
periods;
(c) Not take any action which would cause a default under
the Transmitter Antenna Lease;
(d) Not sell, lease, grant any rights in or to or otherwise
dispose of, or agree to sell, lease or otherwise dispose of, any of the
Sale Assets except for dispositions of assets that (A) are in the
ordinary course of business consistent with past practice and (B) if
material, are replaced by similar assets of substantially equal or
greater value and utility;
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(e) Not amend or fail to timely renew the Transmitter
Antenna Lease, and not enter into or amend any other Station Agreements
except on terms comparable to those of Station Agreements now in
existence and otherwise in the ordinary course of business consistent
with past practice;
(f) Not engage in any business other than the business and
legal activities directly related to the ownership, operation and control
of the Station;
(g) Not voluntarily enter into any collective bargaining
agreement applicable to any employees of the Station or otherwise
voluntarily recognize any union as the bargaining representative of any
such employees except pursuant to the collective bargaining agreements
listed on Schedule 4.8(b)); and not enter into or amend any collective
bargaining agreement applicable to any employees of the Station to
provide that it shall be binding upon any "successor" employer or such
employees; and
(h) Use commercially reasonable efforts to operate the
Station in the ordinary course of business prior to the TBA Effective
Date, and consult with Buyer prior to taking any action, or omitting to
take any action, if such action or omission would not be in the ordinary
course of business; and operate the Station in a commercially reasonable
manner during any period following termination of the TBA provided that
Buyer cooperates as reasonably requested by Seller in assisting Seller
to make an orderly transition in the operation of the Station in the
event the TBA is terminated.
6.2 Notification of Certain Matters. Seller shall give prompt
notice to Buyer, and Buyer shall give prompt notice to Seller, of (i) the
occurrence, or failure to occur, of any event that to its knowledge would
be likely to cause any of the representations or warranties of Seller
contained in Sections 4.1, 4.2, 4.3, 4.4, 4.5, 4.6, 4.7, 4.10, 4.13,
4.14, 4.15, 4.18 or 4.20 or any representations or warranties of Buyer
contained in Article V to be untrue or inaccurate in any material respect
at any time from the date hereof to the Closing Date, and (ii) any
failure on its part to comply with or satisfy, in any material respect,
any covenants or agreements under this Agreement.
6.3 HSR Filing. Within ten (10) days after the execution of
this Agreement, Seller and Buyer shall make, as prescribed in Section 6.8
of the TBA, the filings required to be made under the Hart-Scott-Rodino
Antitrust Improvements Act of 1976, as amended ("HSR Act"), in connection
with the TBA. As promptly as practicable and, in any event, within
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fifteen (15) days, following the due exercise of the Option, Seller and
Buyer shall make the additional filings, if any, required to be made
under the HSR Act, or other applicable laws, in connection with the
purchase and sale of the Sale Assets pursuant to the due exercise of the
Option and shall otherwise take all commercially reasonable actions
necessary and proper to comply with any requests for additional
information with respect to such HSR Act filings.
6.4 FCC Filing. As promptly as practicable and, in any event,
within fifteen (15) days, following the due exercise of the Option,
Seller and Buyer shall file all necessary applications with the FCC and
take all commercially reasonable actions as shall be necessary and proper
to obtain promptly the FCC Order without a Material Adverse Condition.
Seller and Buyer will equally share the fees for filing such
applications.
6.5 Title; Additional Documents. At the Closing pursuant to the
due exercise of the Option, Seller shall transfer and convey to Buyer
good and marketable title to all of the Sale Assets free and clear of any
Liens except Permitted Liens. Seller shall execute or cause to be
executed such documents, in addition to those delivered at the Closing,
as may be necessary to confirm in Buyer such title to the Sale Assets and
to carry out the purposes and intent of this Agreement. Buyer shall
execute or cause to be executed such documents, in addition to those
delivered at Closing as may be necessary to confirm Buyer's assumption
of the Assumed Obligations.
6.6 Other Consents. The consent, if any, required from the
lessor under the Transmitter Antenna Lease for assignment of Seller's
rights and interests in the Transmitter Antenna Lease to Buyer shall have
been obtained without any condition materially adverse to Buyer or the
Station. Seller and Buyer shall use their reasonable best efforts to
obtain such consent and such other consents or waivers to the
transactions contemplated by this Agreement required under the Station
Agreements. Buyer shall not, however, be required to pay or grant any
material consideration in order to obtain any such consent or waiver.
6.7 Inspection and Access. Prior to the Closing Date at
reasonable intervals during regular business hours, and upon two (2)
business days prior notice, Seller will make available the books,
accounting records, correspondence and files of Seller pertaining to the
Station for examination by Buyer, its officers, attorneys, accountants
and agents, with the right to make copies of such books, records and
files or extracts therefrom. Seller will furnish to Buyer monthly
unaudited financial statements of Seller prepared in a manner consistent
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with the unaudited statements identified in Section 4.12 for the period
up to the TBA Effective Date. If Closing occurs, the books, records and
files that are not part of but relate to the Sale Assets shall be
preserved and maintained by Seller for five (5) years after the Closing,
and the books, records and files that are part of the Sale Assets shall
be maintained and preserved by Buyer for a period of five (5) years after
the Closing. Each such party shall give to the other party and its
authorized representatives, during normal business hours, such access to,
and the opportunity at the other party's expense to copy, such books and
records retained by it as may be reasonably requested by the other party.
6.8 Confidentiality. All information delivered to Buyer or
otherwise disclosed in writing by Seller (or its representatives) before
or after the date hereof, in connection with the transactions
contemplated by this Agreement, shall be kept confidential by Buyer and
its representatives and shall not be used other than as contemplated by
this Agreement, except to the extent that such information (i) was
otherwise publicly available when received, (ii) is or hereafter becomes
lawfully obtainable from third parties not related to Buyer or its
Affiliates, (iii) is required to be disclosed to a governmental
authority, (iv) is required by law or the rules of any stock exchange to
be disclosed or (v) to the extent such duty as to confidentiality is
waived in writing by Seller.
6.9 Publicity. The parties agree that no public release or
announcement concerning the transactions contemplated hereby shall be
issued by any party without the prior written consent of the other party,
except as required by law or applicable regulations.
6.10 Material Adverse Change. Buyer and Seller will promptly
notify the other party of any event of which Buyer or Seller, as the case
may be, obtains knowledge which has had or could reasonably be expected
to have a Material Adverse Effect.
6.11 Reasonable Best Efforts. Subject to the terms and
conditions of this Agreement, if the Option is duly exercised, each party
will use its reasonable best efforts to take all action and to do all
things necessary, proper or advisable to satisfy any condition hereunder
in its power to satisfy and to consummate and make effective as soon as
practicable the transactions contemplated by this Agreement.
6.12 FCC Reports. Seller shall file, on a current and timely
basis and in all material respects in a truthful and complete fashion
until the Closing Date, all reports and documents required to be filed
with the FCC with respect to the Station.
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6.13 Tax Returns and Payments. Seller will timely file with the
appropriate governmental agencies all Tax Returns required to be filed
by Seller with respect to the Station prior to Closing and timely pay all
Taxes reflected on such Tax Returns as owing by Seller.
6.14 No Solicitation. From the date hereof until the earlier of
Closing or termination of this Agreement, neither Seller nor any
Affiliate of Seller shall directly or indirectly (i) knowingly solicit
or encourage submission of any proposal or offer from any person relating
specifically to the acquisition or purchase of any interest in Seller or
any material assets of Seller or any merger, consolidation or other
business combination with Seller (each an "Acquisition Proposal"), or
(ii) otherwise knowingly assist or negotiate with any person with respect
to an Acquisition Proposal. Seller shall promptly notify Buyer in
writing if an Acquisition Proposal is made in writing after the date of
this Agreement.
6.15 Certified Resolutions.
(a) Within five (5) business days after the date hereof,
Seller shall furnish Buyer with certified resolutions of the board of
directors of Seller evidencing the authorization and approval of the
execution and delivery of this Agreement and each of the other Documents
and the consummation of the transactions contemplated hereby and thereby.
(b) Within five (5) business days after the date hereof,
Buyer shall furnish Seller with certified resolutions of the board of
directors of Buyer evidencing the authorization and approval of the
execution and delivery of this Agreement and each of the other Documents
and the consummation of the transactions contemplated hereby and thereby.
6.16 Audited Financial Statements. Seller recognizes that Buyer
is a publicly reporting company and agrees that notwithstanding the
restrictions in Section 6.8, if the Option is duly exercised, Buyer shall
be entitled at its expense to cause audited and unaudited financial
statements of the Station to be prepared for such periods and filed with
the Securities and Exchange Commission, and included in a prospectus
distributed to prospective investors, as required by laws and regulations
applicable to Buyer as a publicly reporting company or registrant.
Seller agrees to cooperate with Buyer and the auditing accountants as
reasonably requested by Buyer in connection with the preparation and
filing of such financial statements, including providing a customary
management representation letter in the form prescribed by generally
accepted auditing standards.
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6.17 Rescission Agreement. In the event Closing occurs before
the FCC Order becomes a Final Action, Seller and Buyer on the Closing
Date shall enter into the Rescission Agreement attached hereto as Exhibit
B (the "Rescission Agreement").
6.18 Vacation of Premises. Within ninety (90) days from the TBA
Effective Date, Buyer agrees to take such action as is necessary to
relocate the advertising sales and other administrative operations of the
Station from the premises which are the subject of the Studio Lease, and
within six (6) months from the TBA Effective Date, Buyer agrees to take
such action as is necessary to relocate the studio operations of the
Station from the premises which are the subject of the Studio Lease.
6.19 Tribune Company Guaranty. Seller acknowledges that
simultaneously herewith, the Seller's ultimate parent entity, Tribune
Company, a Delaware corporation ("Tribune"), has delivered to Buyer that
certain Guaranty of even date herewith whereby Tribune guarantees the
payment and performance of certain of Seller's obligations pursuant to
Section 2.4 and Article XIV. Furthermore, Seller agrees and acknowledges
that Buyer has, as a condition precedent to Buyer entering into this
Agreement, required the execution and delivery of the Guaranty by
Tribune.
ARTICLE VII
CONDITIONS PRECEDENT TO THE
OBLIGATION OF BUYER TO CLOSE
Buyer's obligation to close the acquisition of the Sale Assets and
assume the Assumed Obligations pursuant to the due exercise of the Option
is subject to the satisfaction, on or prior to the Closing Date, of each
of the following conditions, unless waived by Buyer in writing:
7.1 Accuracy of Representations and Warranties; Closing
Certificate.
(a) The representations and warranties of Seller contained
in Sections 4.1, 4.2, 4.3, 4.4, 4.5, 4.6, 4.7, 4.10, 4.12, 4.13, 4.14,
4.15, 4.17, 4.19 or 4.20 of this Agreement shall be true and correct in
all material respects on the date hereof, and at the Closing Date with
same effect as though made at such time except for changes permitted
hereunder or caused by Buyer's action or failure to perform under the
TBA.
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(b) Seller shall have delivered to Buyer on the Closing
Date a certificate that the conditions specified in Sections 7.1(a), 7.2
and 8.6 are satisfied as of the Closing Date.
7.2 Performance of Agreement. Seller shall have performed in
all material respects all of its covenants, agreements and obligations
required by this Agreement to be performed or complied with by it prior
to or upon the Closing Date.
7.3 FCC Order.
(a) The FCC Order shall have been issued without any
Material Adverse Condition (other than one attributable to or arising out
of any action or inaction on the part of Buyer or its Affiliates or the
ownership status or composition of properties of Buyer or its
Affiliates).
(b) Conditions which the FCC Order or any order, ruling or
decree of any judicial or administrative body specifies and requires to
be satisfied prior to transfer of the FCC Licenses to Buyer shall have
been satisfied.
7.4 HSR Act. The waiting period (including any extension) under
the HSR Act applicable to the sale and purchase of the Sale Assets
pursuant to this Agreement shall have expired or been terminated.
7.5 Opinions of Seller's Counsel. Buyer shall have received
(a) the written opinion of Seller's corporate counsel, dated as of the
Closing Date, that (i) Seller is a corporation duly formed and in good
standing under the laws of the state in which Seller is incorporated,
(ii) the execution, delivery and performance of the Agreement and each
of the other Documents have been duly authorized by all requisite
corporate action (including any necessary shareholder approval) on the
part of Seller, (iii) the Agreement and other Documents have been duly
and validly executed and delivered by Seller and constitute valid and
legally binding obligations enforceable against Seller in accordance with
their terms, subject to bankruptcy, insolvency and other laws affecting
the enforcement of creditors' rights generally and general principles of
equity, and (iv) the execution, delivery and performance by Seller of
this Agreement and the other Documents do not violate or contravene, to
counsel's knowledge, any judgment, order or agreement to which Seller is
subject or a party or to which the Sale Assets are bound; and (b) the
written opinion of the Seller's FCC counsel, dated as of the Closing
Date, that (i) Seller is licensed of public record with respect to the
FCC Licenses, each of which is in full force and effect, (ii) the FCC
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Licenses are not subject to any conditions other than those shown upon
their face, (iii) the FCC has granted the FCC Order and the FCC Order is
not being challenged, and (iv) there are no proceedings pending or, to
the counsel's knowledge, threatened by or before the FCC affecting or
relating to the Station or the FCC Licenses.
7.6 Other Consents. Buyer shall have been able to obtain
through commercially reasonable efforts, but without incurring
substantial cost or expense, the written consents or waivers to the
transactions contemplated by this Agreement, in form reasonably
satisfactory to Buyer's counsel and without any condition materially
adverse to Buyer or the Station, required under each Station Agreement
which is material to the business, operations or financial condition of
the Station.
7.7 Delivery of Closing Documents. Seller shall have delivered
or caused to be delivered to Buyer on the Closing Date each of the
documents required to be delivered pursuant to Section 9.2.
7.8 No Adverse Proceedings. No judgment or order shall have
been rendered and remain in effect, and no action or proceeding by any
governmental entity shall be pending, against Buyer that would restrain
or make unlawful the purchase and sale of the Sale Assets as contemplated
by this Agreement.
ARTICLE VIII
CONDITIONS PRECEDENT TO THE
OBLIGATION OF SELLER TO CLOSE
The obligation of Seller to close the sale of the Sale Assets
pursuant to the due exercise of the Option is subject to the
satisfaction, on or prior to the Closing Date, of each of the following
conditions, unless waived by Seller in writing:
8.1 Accuracy of Representations and Warranties.
(a) The representations and warranties of Buyer contained
in this Agreement shall be true and correct in all material respects on
the date hereof and at the Closing Date with the same effect as though
made at such time, except for changes that are not materially adverse to
Seller.
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(b) Buyer shall have delivered to Seller on the Closing
Date a certificate that the conditions specified in Sections 8.1(a), 8.2
and 7.8 are satisfied as of the Closing Date.
8.2 Performance of Agreements. Buyer shall have performed in
all material respects all of its covenants, agreements and obligations
required by this Agreement and each of the other Documents to be
performed or complied with by it prior to or upon the Closing Date.
8.3 FCC Order.
(a) The FCC Order shall have been issued and shall have
become effective under the rules of the FCC and applicable law.
(b) Conditions which the FCC Order or any order, ruling or
decree of any judicial or administrative body specifies and requires to
be satisfied prior to transfer of the FCC Licenses to Buyer shall have
been satisfied.
8.4 HSR Act. The waiting period (including any extension) under
the HSR Act applicable to the sale and purchase of the Sale Assets
pursuant to this Agreement shall have expired or been terminated.
8.5 Opinion of Buyer's Counsel. Seller shall have received the
written opinion of Buyer's counsel, dated as of the Closing Date, that
(i) Buyer is a corporation duly formed and in good standing under the
laws of the state in which Buyer is incorporated, (ii) the execution,
delivery and performance of the Agreement and other Documents have been
duly authorized by all requisite corporate action on the part of Buyer,
(iii) the Agreement and each of the other Documents have been duly and
validly executed and delivered by Buyer and constitute valid and legally
binding obligations enforceable against Buyer in accordance with their
terms, subject to bankruptcy, insolvency and other laws affecting the
enforcement of creditors' rights generally and general principles of
equity, and (iv) the execution, delivery and performance by Buyer of this
Agreement and the other Documents do not violate or contravene, to
counsel's knowledge, any judgment, order or agreement to which Buyer is
subject or a party or to which Buyer's assets are bound.
8.6 No Adverse Proceedings. No judgment or order shall have
been rendered and remain in effect, and no action or proceeding by any
governmental entity shall be pending, against Seller that would restrain
or make unlawful the purchase and sale of the Sale Assets as contemplated
by this Agreement.
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8.7 Delivery of Closing Documents. Buyer shall have delivered
or cause to be delivered to Seller on the Closing Date each of the
Documents required to be delivered pursuant to Section 9.3.
ARTICLE IX
CLOSING
9.1 Time and Place. Closing of the purchase and sale of the
Sale Assets, and the assumption by Buyer of the Assumed Obligations,
pursuant to the due exercise of the Option (the "Closing") shall take
place at the offices of Bose McKinney & Evans, 135 North Pennsylvania
Street, Suite 2700, Indianapolis, Indiana, at 10:00 o'clock A.M. on the
date (the "Closing Date") that is the fifth business day following
satisfaction or waiver of the conditions precedent hereunder to Closing.
9.2 Documents to be Delivered to Buyer by Seller. At the
Closing, Seller shall deliver or cause to be delivered to Buyer the
following, in each case in form and substance reasonably satisfactory to
Buyer:
(a) The opinions of Seller's counsel and FCC counsel, dated
the Closing Date, to the effect set forth in Section 7.5;
(b) Governmental certificates, dated as of a date as near
as practicable to the Closing Date, showing that Seller is duly
incorporated and in good standing in the state of its incorporation and
is qualified to do business and in good standing under the laws of New
York;
(c) A certificate of the Secretary of Seller attesting as
to the incumbency of each officer of Seller who executes this Agreement
and any of the other Documents and to similar customary matters;
(d) A bill of sale and other instruments of transfer and
conveyance transferring the Sale Assets to Buyer;
(e) A certificate of nonforeign status under Section 1445
of the Code, complying with the requirements of the Income Tax
Regulations promulgated pursuant to such section;
(f) The certificate described in Section 7.1(b); and
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(g) The Rescission Agreement, if Closing occurs before the
FCC Order becomes a Final Action.
9.3 Deliveries to Seller by Buyer. At the Closing, Buyer shall
deliver or cause to be delivered to Seller the following, in each case
in form and substance reasonably satisfactory to Seller:
(a) The Initial Adjusted Purchase Price in accordance with
Section 3.3.2, as adjusted under Section 3.3.4(d);
(b) The certificate described in Section 8.1(b);
(c) The opinion of Buyer's counsel, dated the Closing Date,
to the effect set forth in Section 8.5;
(d) An agreement by Buyer assuming the Assumed Obligations;
and
(e) The Rescission Agreement, if Closing occurs before the
FCC Order becomes a Final Action.
ARTICLE X
INDEMNIFICATION
10.1 Survival. All representations, warranties, covenants and
agreements in this Agreement or any other Document shall survive the
Closing and not be deemed waived regardless of any investigation, inquiry
or knowledge on the part of either party prior to or at Closing;
provided, that the period of survival shall, (i) with respect to any Loss
arising from or related to a breach of the covenants and agreements in
Section 6.7 and Articles XIII and XV, end five (5) years after the
Closing Date, (ii) with respect to any Loss arising or related to a
breach of the representations, warranties, covenants or agreements in
Article III or Section 4.1, 4.3, 5.1, 5.2, 10.2(a)(ii) or 10.3(a)(ii),
continue indefinitely, and (iii) in any other case, end twelve (12)
months after the Closing Date (in each case, the "Survival Period"). No
claim may be brought under this Agreement or any other Document unless
written notice describing in reasonable detail the nature and basis of
such claim is given on or prior to the last day of the applicable
Survival Period. In the event such notice of a claim is so given, the
right to indemnification with respect to such claim shall survive the
applicable Survival Period until the claim is finally resolved and any
obligations with respect to the claim are fully satisfied. The rights
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to indemnification set forth in this Article X shall be exclusive of all
other rights to monetary damages that any party (or the party's
successors or assigns) would otherwise have by statute or common law in
connection with the transactions contemplated by this Agreement or any
other Document.
10.2 Indemnification by Seller.
(a) Subject to Section 10.2(b), Seller shall indemnify,
defend, and hold harmless Buyer and any each of its officers, directors,
employees, Affiliates, successors and assigns from and against, and pay
or reimburse each of them for and with respect to, any Loss relating to,
arising out of or resulting from:
(i) Any breach by Seller of any of its
representations, warranties, covenants or agreements in this
Agreement, the TBA or any other Document; or
(ii) Any obligation, indebtedness or liability of
Seller (other than the Assumed Obligations and any Loss
indemnifiable by Buyer under Section 10.3(a)) regardless of
whether disclosed by Buyer and regardless of whether constituting
a breach by Seller of any representation, warranty, covenant or
agreement hereunder or under any other Document; or
(iii) Noncompliance by Seller with the provisions
of the Bulk Sales Act, if applicable, in connection with the
transactions contemplated by this Agreement.
(b) If Closing occurs, Seller shall not be obligated to
indemnify Buyer unless and until the aggregate amount of Buyer's Losses
exceeds Two Hundred Fifty Thousand Dollars ($250,000), in which case
Buyer shall then be entitled to indemnification of the entire amount of
Buyer's Losses, provided that any amount owed by Seller to Buyer under
Section 3.3.4 or 14.2 shall not be counted in determining whether such
Two Hundred Fifty Thousand Dollar ($250,000) limitation is satisfied, and
Buyer shall have the right to recover any such payment without regard to
such limitation.
10.3 Indemnification by Buyer.
(a) Subject to Section 10.3(b), Buyer shall indemnify and
hold harmless Seller and its officers, directors, employees, agents,
representatives, Affiliates, successors and assigns from and against, and
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pay or reimburse each of them for and with respect to, any Loss relating
to, arising out of or resulting from:
(i) Any breach by Buyer of any of its
representations, warranties, covenants or agreements in this
Agreement; or
(ii) Any failure of Buyer to pay, perform and
discharge, when due, the Assumed Obligations; or
(iii) Any action or failure to perform by Buyer under
the TBA; or
(iv) Any breach by Buyer of any of its
representations, warranties, covenants or agreements in any other
Document.
(b) If Closing occurs, Buyer shall not be obligated to
indemnify Seller unless and until the aggregate amount of Seller's Losses
exceeds Two Hundred Fifty Thousand Dollars ($250,000), in which case
Seller shall then be entitled to indemnification of the entire amount of
Seller's Losses, provided that the Assumed Obligations and any payment
owed by Buyer to Seller under Section 3.3.4 or Section 3.3.5 shall not
be counted in determining whether such Two Hundred Fifty Thousand Dollar
($250,000) limitation is satisfied, and Seller shall have the right to
recover any such payment without regard to such limitation.
10.4 Administration of Indemnification. For purposes of
administering the indemnification provisions set forth in Sections 10.2
and 10.3, the following procedure shall apply:
(a) Whenever a claim shall arise for indemnification under
this Article, the party entitled to indemnification (the "Indemnified
Party") shall reasonably promptly give written notice to the party from
whom indemnification is sought (the "Indemnifying Party") setting forth
in reasonable detail, to the extent then available, the facts concerning
the nature of such claim and the basis upon which the Indemnified Party
believes that it is entitled to indemnification hereunder.
(b) In the event of any claim for indemnification resulting
from or in connection with any claim by a third party, the Indemnifying
Party shall be entitled, at its sole expense, either (i) to participate
in defending against such claim or (ii) to assume the entire defense with
counsel which is selected by it and which is reasonably satisfactory to
the Indemnified Party provided that (A) the Indemnifying Party agrees in
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writing that it does not and will not contest its responsibility for
indemnifying the Indemnified Party in respect of such claim or proceeding
and (B) no settlement shall be made and no judgment consented to without
the prior written consent of the Indemnified Party which shall not be
unreasonably withheld (except that no such consent shall be required if
the claimant is entitled under the settlement to only monetary damages
actually paid by the Indemnifying Party). If, however, (i) the claim,
action, suit or proceeding would, if successful, result in the imposition
of damages for which the Indemnifying Party would not be solely
responsible, or (ii) representation of both parties by the same counsel
would otherwise be inappropriate due to actual or potential differing
interests between them, then the Indemnifying Party shall not be entitled
to assume the entire defense and each party shall be entitled to retain
counsel who shall cooperate with one another in defending against such
claim. In the case of Clause (i) of the preceding sentence, the
Indemnifying Party shall be obligated to bear only that portion of the
expense of the Indemnified Party's counsel that is in proportion to the
damages indemnifiable by the Indemnifying Party compared to the total
amount of the third-party claim against the Indemnified Party.
(c) If the Indemnifying Party does not choose to defend
against a claim by a third party, the Indemnified Party may defend in
such manner as it deems appropriate or settle the claim (after giving
notice thereof to the Indemnifying Party) on such terms as the
Indemnified Party may deem appropriate, provided that the Indemnified
Party may not settle or compromise any such claim without the prior
written consent of the Indemnifying Party, which shall not be
unreasonably withheld, and provided further that the Indemnifying Party
at its expense may at any time resume the defense of such claim. The
Indemnified Party shall be entitled to periodic reimbursement of defense
expenses incurred and prompt indemnification from the Indemnifying Party
in accordance with this Article.
(d) Failure or delay by an Indemnified Party to give a
reasonably prompt notice of any claim (if given prior to expiration of
the applicable Survival Period) shall not release, waive or otherwise
affect an Indemnifying Party's obligations with respect to the claim,
except to the extent that the Indemnifying Party can demonstrate actual
loss or prejudice as a result of such failure or delay. Buyer shall not
be deemed to have notice of any claim by reason of any knowledge acquired
on or prior to the Closing Date by an employee of the Station.
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ARTICLE XI
TERMINATION
11.1 Right of Termination. This Agreement may be terminated
prior to Closing:
(a) By written agreement of Seller and Buyer; or
(b) By written notice from a party that is not then in
material breach of this Agreement if:
(i) The other party has continued in material
breach of this Agreement for twenty (20) days after written notice
of such breach from the terminating party; or
(ii) The waiting period (including any extension)
under the HSR Act applicable to the TBA shall not have expired or
been terminated within ninety (90) days after the date hereof; or
(iii) Closing does not occur within one year after
the Option is duly exercised; or
(c) Provided Buyer is not then in material breach of this
Agreement, by written notice from Buyer if the TBA is terminated for any
reason other than Buyer's material breach thereunder; or
(d) Provided Seller is not then in material breach of this
Agreement, by written notice from Seller if the TBA is terminated by
reason of Buyer's material breach thereunder.
11.2 Automatic Termination. If neither the Put Option nor the
Call Option is duly exercised during the 38-month period commencing on
the date hereof, this Agreement shall automatically terminate without
further action on the part of either party.
11.3 Obligations Upon Termination. Upon termination of this
Agreement, (i) each party shall thereafter remain liable for breach of
this Agreement prior to such termination and remain liable to pay and
perform its indemnity obligations under Article X and its obligations
under Section 14.2, and (ii) Buyer shall remain obligated under Section
6.8.
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ARTICLE XII
CONTROL OF STATION
Between the date of this Agreement and the Closing Date, Buyer
shall not control, manage or supervise the operation of the Station or
the conduct of its business, all of which shall remain the sole
responsibility and under the control of Seller, subject to Seller's
compliance with this Agreement and the TBA.
ARTICLE XIII
EMPLOYMENT MATTERS
13.1 Termination of Employees. Seller shall pay, discharge and
be solely responsible for all liabilities, obligations, costs and
expenses which arise or become payable as a result of or in connection
with Seller's termination of any of its employees before, upon or after
Closing, including, without limitation, all severance or termination pay
and all accrued vacation, salary, wages and other compensation payments
or benefits, if any, which arise or become payable as a result of or in
connection with such terminations, except to the extent included as a
credit to Buyer in determining the Adjustment Amount or as otherwise
agreed by Buyer and Seller in the TBA. Seller acknowledges and agrees
that Buyer shall not acquire any rights or interest in, or assume or have
any obligations or liabilities under, any employment agreements or
Benefit Plans (other than the AFTRA Plan) between Seller and its
employees, except to the extent included as part of the Assumed
Obligations.
13.2 Employee Benefit Plans. Buyer shall not acquire any
rights or interest in, or assume or have any obligations or liabilities
under, any of the Benefit Plans, and Seller or the Benefit Plans, as
applicable, will retain all assets and liabilities in respect of Seller's
employees under the Benefit Plans. Seller shall comply with the
provisions of the Continuation Coverage Under Group Health Plan of ERISA,
Title I, Part 6, to the extent applicable in connection with the
transactions contemplated by this Agreement.
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ARTICLE XIV
LIKE-KIND EXCHANGE
14.1 Working Capital. Attached as Schedule 14.1 is Seller's
reasonable and good faith estimate of the Closing Working Capital of the
Station. Within ninety (90) days after the TBA Effective Date, Buyer
will cause its auditors to make a determination of the Closing Working
Capital and will prepare and deliver to Seller their detailed computation
of the amount of the Closing Working Capital. Seller will cooperate with
Buyer and its auditors in connection with such determination, including
making available to them all records and workpapers used in determining
Seller's estimate of the Closing Working Capital. If Seller disagrees
with Buyer's computation of the Closing Working Capital, Seller shall,
within thirty (30) days after receipt of Buyer's determination of the
Closing Working Capital, deliver notice of its objection to Buyer setting
forth Seller's detailed calculation of the Closing Working Capital. If
Seller and Buyer do not agree on the amount of the Closing Working
Capital within thirty (30) days after Buyer receives such notice, Seller
and Buyer will jointly retain an independent accounting firm of
recognized national standing to resolve any remaining disagreements
regarding the Closing Working Capital. If Seller and Buyer do not agree
on the choice of such firm, the firm will be a "big-six" accounting firm
selected by lot (after excluding one firm designated by Seller and one
firm designated by Buyer). Seller and Buyer will direct such firm to
render a determination within fifteen (15) days of its retention, and
Seller and Buyer and their respective agents will cooperate with such
firm during its engagement. Such firm's determination of the Closing
Working Capital will be based on the definition of Closing Working
Capital in Section 1.1 and will be conclusive and binding upon Seller and
Buyer. The costs and expenses of such firm for making such determination
shall be paid (i) by Seller if Buyer's calculation of the Closing Working
Capital is closer to such firm's determination, (ii) by Buyer if Seller's
calculation of the Closing Working is closer to such firm's determination
and (iii) otherwise, fifty percent (50%) by Seller and fifty percent
(50%) by Buyer.
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14.2 Restructuring of Transaction as a Like-Kind Exchange.
(a) Notwithstanding anything contained in other Articles
of this Agreement to the contrary, Buyer agrees to cooperate as
reasonably requested by Seller in effecting, upon and subject to the
terms and provisions of this Article XIV, a tax-deferred like-kind
exchange through which Buyer will acquire the Sale Assets under Section
1031 of the Code, involving, at Seller's election, either (i) the
assignment of Seller's rights (but not its obligations) under this
Agreement to a "qualified intermediary" (as defined in Treasury
Regulation 1.1031(k)-(g)(4)) (the "Qualified Intermediary Swap") or
(ii) the negotiation in good faith, on terms acceptable to Seller and
Buyer, of an agreement (the "Stock Acquisition Agreement") to acquire the
stock of a corporation identified by Seller (the "Swap Corporation")
whose principal assets and business consist of either a radio station or
television station, Buyer's acquisition of such stock, and the concurrent
effectuation of a like-kind exchange of the assets of the Swap
Corporation for the Sale Assets (the "Stock Acquisition Swap"). A
request by Seller for Buyer to participate in either a Qualified
Intermediary Swap or Stock Acquisition Swap must be set forth in a
written notice delivered to Buyer not later than five (5) days after
exercise of the Option.
(b) Buyer's obligation to close either a Qualified
Intermediary Swap or a Stock Acquisition Swap shall be subject to
satisfaction of the closing conditions under Article VII and such
additional conditions as reasonably requested by Buyer.
(c) Buyer's obligation to cooperate in effecting a Stock
Acquisition Swap and to close a Stock Acquisition Swap shall be subject
to the following further terms and conditions:
(i) No ruling (including a private letter ruling or
technical advice memorandum), regulation or decision shall have
been issued by the Internal Revenue Service or any judicial
authority having jurisdiction that specifically states FCC radio
broadcast licenses and FCC television broadcast licenses are not
like-kind property qualifying for tax-deferred like-kind exchange
treatment under Section 1031 of the Code.
(ii) In the event Buyer is required to make a filing
under the HSR Act in connection with its acquisition of the stock
of the Swap Corporation, Seller shall reimburse Buyer for the
related filing fee.
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(iii) The Purchase Price for the Sale Assets shall be
reduced to One Hundred Forty-Five Million Dollars ($145,000,000),
and Buyer shall be entitled to a credit against payment of the
reduced Purchase Price equal to the greater of (A) the Closing
Working Capital or (B) Four Million Dollars ($4,000,000) (the
reduced Purchase Price after adjustment for such credit herein
referred to as the "Adjusted Purchase Price").
(iv) In the event the purchase price for the stock of
the Swap Corporation exceeds the Adjusted Purchase Price, Seller
shall pay such excess (the "First Supplemental Payment") to the
Swap Corporation at Closing in immediately available funds.
(v) In the event the Adjusted Purchase Price exceeds
the purchase price for the stock of the Swap Corporation, Buyer
shall cause the Swap Corporation to pay such excess to Seller at
Closing in immediately available funds (the "Buyer Make-Up
Payment").
(vi) Prior to the Closing date, Seller shall deliver
to Buyer a schedule (the "Allocation Schedule") setting forth one
or more "exchange groups" and a "residual group," if any, of
assets of the Swap Corporation and Seller being exchanged and
allocating assets and assumed liabilities, if any, among such
groups. The Allocation Schedule shall be reasonable and shall be
prepared in accordance with Treasury Regulation 1.1031(j)-1 (or
any successor provision covering the same or similar subject
matter). Promptly after receiving the Allocation Schedule, Buyer
shall return an executed copy thereof to Seller or negotiate with
Seller to agree on revisions to the Allocation Schedule. Buyer
and Seller each agree to file (or cause to be filed) form 8824 and
all federal, state and local Tax Returns in a manner consistent
with the Allocation Schedule as agreed upon by Seller and Buyer.
(vii) Prior to Closing, the preliminary proforma
after-tax cost to Buyer and the Swap Corporation of acquiring the
Sale Assets in the Stock Acquisition Swap will be determined (the
"Preliminary Proforma After-Tax Acquisition Cost"). The
Preliminary Proforma After-Tax Acquisition Cost will equal (A) the
purchase price under the Stock Acquisition Agreement (including
the reasonable out-of-pocket costs and expenses incurred by Buyer
in negotiating, entering into and performing under the Stock
Acquisition Agreement), minus (B) the First Supplemental Payment,
plus (C) the Tax incurred on the gain (the "Cash Boot Gain")
required to be recognized by the Swap Corporation as a result of
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the First Supplemental Payment, plus (D) the Tax incurred by the
Swap Corporation on any gain (other than the Cash Boot Gain)
required to be recognized by the Swap Corporation as a result of
the exchange with Seller (the "Other Initially Recognized Gain"),
assuming that the FCC licenses and equipment held or owned by the
Swap Corporation and the FCC Licenses and equipment held or owned
by Seller are like-kind property for purposes of Section 1031 of
the Code, minus (E) the present value as of the Closing Date of
the tax benefit from amortizing the tax basis resulting from
recognition of the Other Initially Recognized Gain to the extent
permitted by, and over the shortest period allowed under, the Code
and Treasury Regulations for the assets to which such gain is
attributable (as set forth in the Allocation Schedule), minus
(F) the present value as of the Closing Date of the tax benefit
from amortizing any other tax basis of the Swap Corporation
existing immediately prior to Closing to the extent and over the
shortest period available to the Swap Corporation in accordance
with the Code and Treasury Regulations, plus (G) the Buyer Make-Up
Payment, minus (H) the present value as of the Closing Date of the
tax benefit from amortizing the tax basis resulting from the Buyer
Make-Up Payment to the extent permitted by, and over the shortest
period allowed under, the Code and Treasury Regulations for the
assets to which such basis is attributable (as set forth in the
Allocation Schedule). In the event the Preliminary Proforma
After-Tax Acquisition Cost exceeds One Hundred Forty-Five Million
Six Hundred Thousand Dollars ($145,600,000), then in addition to
the First Supplemental Payment, Seller shall pay Buyer at Closing
in immediately available funds an additional payment (the "Second
Supplemental Payment") equal to 166.67% of such excess.
(viii) Seller shall assume and agree to timely pay and
discharge all obligations and liabilities (whether accrued,
absolute, contingent, liquidated or unliquidated, known or
unknown, and regardless of when asserted) of the Swap Corporation
existing immediately prior to consummation of the exchange with
Seller.
(ix) In the event that, notwithstanding the filing of
Tax Returns by Seller and Buyer reporting, to the extent
consistent with the Allocation Schedule, the exchange of assets
between Seller and the Swap Corporation as a like-kind exchange
under Section 1031 of the Code, the Swap Corporation is assessed
additional tax (the "Additional Tax") as a result of being
required to recognize gain in connection with the exchange in
excess of the Cash Boot Gain and Other Initially Recognized Gain
(such excess, the "Additional Gain"), the final proforma after-tax
cost to Buyer and the Swap Corporation of acquiring the Sale
Assets will be determined (the "Final Proforma After-Tax
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Acquisition Cost"). The Final Proforma After-Tax Acquisition Cost
will equal (A) the Preliminary Proforma After-Tax Acquisition
Cost, minus (B) the amount, if any, by which the Preliminary
Proforma After-Tax Acquisition Cost exceeds One Hundred Forty-Five
Million Six Hundred Thousand Dollars ($145,600,000), plus (C) the
Tax incurred by the Swap Corporation on the Additional Gain, minus
(D) the present value, as of the Closing Date, of the tax benefit
from amortizing the tax basis resulting from recognition of the
Additional Gain to the extent permitted by, and over the shortest
period allowed under, the Code and Treasury Regulations for the
assets to which such gain is attributed. In the event the Final
Proforma After-Tax Acquisition Cost exceeds One Hundred Forty-Five
Million Six Hundred Thousand Dollars ($145,600,000), then in
addition to the First Supplemental Payment and Second Supplemental
Payment, Seller shall pay to the Swap Corporation the lesser of
(x) 166.67% of such excess or (y) Thirty Million Dollars
($30,000,000) concurrently with the payment by Buyer or the Swap
Corporation of the Additional Tax. Seller shall be entitled to
defend against the assessment of any Additional Tax in accordance
with Section 10.4.
(x) For purposes of determining the Preliminary
Proforma After-Tax Acquisition Cost and the Final Proforma After-Tax
Acquisition Cost, (A) an assumed combined federal, state and
local income tax rate of forty percent (40%) shall be used in
calculating tax on gain and the tax benefit from amortization, and
Buyer and the Swap Corporation shall each be assumed to have
marginal taxable income before any such gain and marginal taxable
income after any such tax benefit, (B) a discount rate of six and
one-half percent (6.5%) per annum will be used to calculate
present value, and (C) Taxes shall include interest and penalties
as set forth in the definition of Taxes in Section 1.1.
(xi) Any survival period specified in any other
section of this Agreement shall not apply to the covenants and
agreements under this Section 14.2 which shall survive the Closing
indefinitely.
ARTICLE XV
MISCELLANEOUS
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15.1 Further Actions. If the Option is duly exercised, each
party, at its expense and without further consideration, will execute and
deliver such documents as reasonably requested from time to time by the
other party in order more effectively to consummate the transactions
contemplated hereby.
15.2 Payment of Expenses.
(a) All sales, use, stamp, transfer, grant, gains and other
similar taxes payable in connection with consummation of the transactions
contemplated hereby shall be paid by the party primarily liable under
applicable law to pay such tax.
(b) Except as otherwise expressly provided in this
Agreement, each of the parties shall bear its own expenses, including the
fees of any attorneys and accountants engaged by such party, in
connection with this Agreement and the consummation of the transactions
contemplated herein.
15.3 Specific Performance.
(a) Seller acknowledges that the Station is of a special,
unique and extraordinary character, and that damages alone are an
inadequate remedy for a breach of this Agreement by Seller. Accordingly,
as an alternative to termination of this Agreement under Section 11.1,
Buyer shall be entitled in the event of Seller's breach to enforcement
of this Agreement (subject to obtaining any required approval of the FCC)
by a decree of specific performance or injunctive relief requiring Seller
to fulfill its obligations under this Agreement. Such right of specific
performance or injunctive relief shall be in addition to, and not in lieu
of, Buyer's right to recover damages and to pursue any other remedies
available to Buyer for Seller's breach. In any action to specifically
enforce Seller's obligation to close the transactions contemplated by
this Agreement, Seller shall waive the defense that there is an adequate
remedy at law or in equity and agrees that Buyer shall be entitled to
obtain specific performance of Seller's obligation
to close without being required to prove actual damages. As a condition
to seeking specific performance, Buyer shall not be required to tender
the Purchase Price as contemplated by Section 3.3.2 but shall be required
to demonstrate that Buyer is ready, willing and able to tender the
Purchase Price as contemplated by such Section.
(b) As an alternative to termination of this Agreement
under Section 11.1, Seller shall be entitled, in the event of Buyer's
failure to perform its obligations under Section 14.2, to enforcement of
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such obligations (subject to obtaining any required approval of the FCC)
by a decree of specific performance or injunctive relief requiring Buyer
to fullfil its obligations under Section 14.2. Such right of specific
performance or injunctive relief shall be in addition to, and not in lieu
of, Seller's right to recover damages and to pursue any other remedies
available to Seller for Buyer's breach of its obligations under
Section 14.2. In any action to specifically enforce Buyer's performance
of its obligations under Section 14.2, Buyer shall waive the defense that
there is an adequate remedy at law or in equity and agrees that Seller
shall be entitled to obtain specific performance of such obligations
without being required to prove actual damages. As a condition to
seeking specific performance, Seller shall not be required to tender any
amounts to Buyer as contemplated by Section 14.2 but shall be required
to demonstrate that Seller is ready, willing and able to tender such
amounts as contemplated by such Section.
15.4 Notices. All notices, demands or other communications given
hereunder shall be in writing and shall be sufficiently given if
delivered by courier (including overnight delivery service) or sent by
registered or certified mail, first class, postage prepaid, to the
following address:
(a) if to Buyer, to:
Emmis Broadcasting Corporation
950 North Meridian Street, Suite 1200
Indianapolis, Indiana 46204
Attention: Jeffrey H. Smulyan, Chairman
Copy to:
Bose McKinney & Evans
2700 First Indiana Plaza
Indianapolis, Indiana 46204
Attention: David L. Wills
(b) if to Seller, to:
Tribune Broadcasting Company
435 North Michigan Avenue, Suite 2300
Chicago, Illinois 60611
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Attention: Dennis FitzSimons, Executive Vice-President
Copy to:
Tribune Company
435 North Michigan Avenue, Suite 600
Chicago, Illinois 60611
Attention: Vice President and General Counsel
and
Sidley & Austin
One First National Plaza
Chicago, Illinois 6063
Attention: Larry A. Barden
or to such other address as a party may from time to time notify the
other party in writing (as provided above). Any such notice, demand or
communication shall be deemed to have been given (i) if so mailed, as of
the close of the third business day following the date so mailed, and
(ii) if delivered by courier, on the date received.
15.5 Entire Agreement. This Agreement, the Schedules, Exhibits,
the TBA and the other Documents constitute the entire agreement and
understanding between the parties with respect to the subject matter
hereof and supersede any prior negotiations, agreements, understandings
or arrangements between the parties hereto with respect to the subject
matter hereof.
15.6 Binding Effect; Benefits. Except as otherwise provided
herein, this Agreement shall inure to the benefit of and be binding upon
the parties and their respective successors or permitted assigns. Except
to the extent specified herein, nothing in this Agreement, express or
implied, shall confer on any person other than the parties hereto and
their respective successors or permitted assigns any rights, remedies,
obligations or liabilities under or by reason of this Agreement.
15.7 Assignment. Neither this Agreement nor any of the rights,
interests or obligations hereunder may be assigned by either party
without the prior written consent of the other party, provided that:
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(a) Either party may assign its rights under this Agreement
as collateral security to any lender providing financing to the party or
any of its Affiliates; and
(b) Either party may assign all of its rights under this
Agreement to an Affiliate, provided that (i) the representations and
warranties of the party hereunder shall be true and correct in all
material respects as applied to the assignee, (ii) both the assignor and
the assignee shall execute and deliver to the other party a written
instrument in form and substance satisfactory to the other party within
its reasonable judgment in which both the assignor and the assignee agree
to be jointly and severally liable for performance of all of Buyer's
obligations under this Agreement, and (iii) the assignor and the assignee
shall deliver such other documents and instruments as reasonably
requested by the other party, including appropriate certified resolutions
of the boards of directors of the assignor and the assignee.
15.8 Governing Law. This Agreement shall in all respects be
governed by and construed in accordance with the laws of the State of New
York without regard to its principles of conflicts of laws.
15.9 Amendments and Waivers. No term or provision of this
Agreement may be amended, waived, discharged or terminated orally but
only by an instrument in writing signed by the party against whom the
enforcement of such amendment, waiver, discharge or termination is
sought. Any waiver shall be effective only in accordance with its
express terms and conditions.
15.10 Severability. Any provision of this Agreement which is
unenforceable in any jurisdiction shall, as to such jurisdiction, be
ineffective to the extent of such unenforceability without invalidating
the remaining provisions hereof, and any such unenforceability in any
jurisdiction shall not invalidate or render unenforceable such provision
in any other jurisdiction. To the extent permitted by applicable law,
the parties hereto hereby waive any provision of law now or hereafter in
effect which renders any provision hereof unenforceable in any respect.
15.11 Headings. The captions in this Agreement are for
convenience of reference only and shall not define or limit any of the
terms or provisions hereof.
15.12 Counterparts. This Agreement may be executed in any number
of counterparts, and by either party on separate counterparts, each of
which shall be deemed an original, but all of which together shall
constitute one and the same instrument.
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15.13 References. All references in this Agreement to Articles
and Sections are to Articles and Sections contained in this Agreement
unless a different document is expressly specified.
15.14 Schedules and Exhibits. Unless otherwise specified herein,
each Schedule and Exhibit referred to in this Agreement is attached
hereto, and each such Schedule and Exhibit is hereby incorporated by
reference and made a part hereof as if fully set forth herein.
15.15 Attorneys' Fees. If either Seller or Buyer brings suit
against the other in connection with this Agreement, the TBA or any other
Document and the party against whom suit is brought (the "Defendant") is
successful in denying substantially all the relief sought by the
claimant, then the Defendant shall be entitled to recover from the
claimant the reasonable attorneys' fees and other costs and expenses
incurred by the Defendant in connection with such suit regardless of
whether such suit is prosecuted to judgment.
15.16 Seller Not Responsible for Buyer's Actions Under TBA.
Notwithstanding anything contained herein to the contrary, Seller shall
not be deemed to have breached any representation, warranty, covenant or
agreement of Seller contained herein or to have failed to satisfy any
condition precedent to Buyer's obligations to purchase the Sale Assets
hereunder (nor shall Seller have any liability or responsibility to Buyer
in respect of any such representation, warranty, covenant, agreement or
condition precedent), in each case to the extent that the inaccuracy of
any such representation, the breach of any such warranty, covenant or
agreement or the inability to satisfy any such condition precedent arises
out of or otherwise relates to (i) any actions taken by or under the
authorization of Buyer (or any of its officers, directors, employees,
affiliates, agents or representatives) in connection with Buyer's
performance of its obligations under the TBA or otherwise or (ii) the
failure of Buyer to perform any of its obligations under the TBA. Buyer
acknowledges and agrees that Seller shall not be deemed to be responsible
for or have authorized or consented to any action or failure to act on
the part of Buyer (or any of its officers, directors, employees,
affiliates, agents or representatives) in connection with the TBA by
reason of the fact that prior to Closing Seller shall have the legal
right to control, manage or supervise the operation of the Station or the
conduct of its business.
15.17 Disclaimer of Warranties. Seller makes no representations
or warranties with respect to any projections, forecasts or forward-looking
information provided to Buyer in connection with the transactions
contemplated hereby and by the TBA. There is no assurance that any
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projected or forecasted results will be achieved. EXCEPT AS TO THOSE
MATTERS EXPRESSLY COVERED BY THE REPRESENTATIONS AND WARRANTIES OF THIS
AGREEMENT, SELLER IS TRANSFERRING THE TANGIBLE ASSETS INCLUDED IN THE
SALE ASSETS PURSUANT TO AN EXERCISE OF THE CALL OPTION OR PUT OPTION ON
AN "AS IS, WHERE IS" BASIS AND DISCLAIMS ALL OTHER WARRANTIES,
REPRESENTATIONS AND GUARANTEES WHETHER EXPRESS OR IMPLIED WITH RESPECT
TO SUCH TANGIBLE ASSETS. SELLER MAKES NO REPRESENTATION OR WARRANTY AS
TO MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE AND NO IMPLIED
WARRANTIES WHATSOEVER WITH RESPECT TO SUCH TANGIBLE ASSETS.
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Executed as of the date first written above.
TRIBUNE NEW YORK RADIO, INC.
By: /s/ Wayne A. Vriesman
______________________________
Wayne A. Vriesman
President
"Seller"
EMMIS BROADCASTING CORPORATION
By: /s/ Jeffrey H. Smulyan
______________________________
Jeffrey H. Smulyan
Chairman
"Buyer"
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OPTION AGREEMENT
(WQCD-FM, NEW YORK, NEW YORK)
BY AND BETWEEN
TRIBUNE NEW YORK RADIO, INC.
AND
EMMIS BROADCASTING CORPORATION
DATED
MAY 15, 1997
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TABLE OF CONTENTS
Page
ARTICLE I TERMINOLOGY . . . . . . . . . . . . . . . . . . . . .1
1.1 Defined Terms . . . . . . . . . . . . . . . . . . . .1
1.2 Additional Defined Terms. . . . . . . . . . . . . . .3
ARTICLE II OPTIONS . . . . . . . . . . . . . . . . . . . . . . .4
2.1 Put Option. . . . . . . . . . . . . . . . . . . . . .4
2.2 Call Option . . . . . . . . . . . . . . . . . . . . .5
2.3 Extension . . . . . . . . . . . . . . . . . . . . . .5
2.4 Letter of Credit. . . . . . . . . . . . . . . . . . .5
ARTICLE III PURCHASE AND SALE. . . . . . . . . . . . . . . .7
3.1 Sale Assets . . . . . . . . . . . . . . . . . . . . .7
3.2 Excluded Assets . . . . . . . . . . . . . . . . . . .8
3.3 Certain Terms of Sale . . . . . . . . . . . . . . . .9
3.3.1 Assumption of Liabilities. . . . . . . . .9
3.3.2 Purchase Price . . . . . . . . . . . . . 10
3.3.3 Allocation of the Purchase Price . . . . 10
3.3.4 Adjustment of Purchase Price . . . . . . 10
3.3.5 Accounts Receivable. . . . . . . . . . . 13
ARTICLE IV REPRESENTATIONS AND WARRANTIES OF SELLER. . . . . . 14
4.1 Organization, Good Standing and Corporate Power . . 14
4.2 Ownership . . . . . . . . . . . . . . . . . . . . . 14
4.3 Authorization and Binding Effect of Documents . . . 14
4.4 Absence of Conflicts. . . . . . . . . . . . . . . . 14
4.5 Consents. . . . . . . . . . . . . . . . . . . . . . 15
4.6 Sale Assets; Title. . . . . . . . . . . . . . . . . 15
4.7 FCC Licenses. . . . . . . . . . . . . . . . . . . . 15
4.8 Station Agreements. . . . . . . . . . . . . . . . . 16
4.9 Tangible Personal Property. . . . . . . . . . . . . 18
4.10 Transmitter Antenna Lease . . . . . . . . . . . . . 18
4.11 Intellectual Property . . . . . . . . . . . . . . . 18
4.12 Financial Statements. . . . . . . . . . . . . . . . 19
4.13 Absence of Certain Changes or Events. . . . . . . . 19
4.14 Litigation. . . . . . . . . . . . . . . . . . . . . 20
4.15 Labor Matters . . . . . . . . . . . . . . . . . . . 21
4.16 Employee Benefit Plans. . . . . . . . . . . . . . . 22
4.17 Compliance with Law . . . . . . . . . . . . . . . . 23
4.18 Tax Returns and Payments. . . . . . . . . . . . . . 23
4.19 Environmental Matters . . . . . . . . . . . . . . . 24
4.20 Broker's or Finder's Fees . . . . . . . . . . . . . 24
4.21 Insurance . . . . . . . . . . . . . . . . . . . . . 24
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ARTICLE V REPRESENTATIONS AND WARRANTIES OF BUYER . . . . . . 24
5.1 Organization and Good Standing. . . . . . . . . . . 24
5.2 Authorization and Binding Effect of Documents . . . 24
5.3 Absence of Conflicts. . . . . . . . . . . . . . . . 25
5.4 Consents. . . . . . . . . . . . . . . . . . . . . . 25
5.5 Broker's or Finder's Fees . . . . . . . . . . . . . 25
5.6 Litigation. . . . . . . . . . . . . . . . . . . . . 25
5.7 Buyer's Qualification . . . . . . . . . . . . . . . 25
5.8 Disclosure. . . . . . . . . . . . . . . . . . . . . 25
5.9 Adequacy of Financing . . . . . . . . . . . . . . . 25
ARTICLE VI OTHER COVENANTS . . . . . . . . . . . . . . . . . . 26
6.1 Conduct of the Station's Business Prior to the
Closing Date 26
6.2 Notification of Certain Matters . . . . . . . . . . 27
6.3 HSR Filing. . . . . . . . . . . . . . . . . . . . . 27
6.4 FCC Filing. . . . . . . . . . . . . . . . . . . . . 27
6.5 Title; Additional Documents . . . . . . . . . . . . 27
6.6 Other Consents. . . . . . . . . . . . . . . . . . . 28
6.7 Inspection and Access . . . . . . . . . . . . . . . 28
6.8 Confidentiality . . . . . . . . . . . . . . . . . . 28
6.9 Publicity . . . . . . . . . . . . . . . . . . . . . 28
6.10 Material Adverse Change . . . . . . . . . . . . . . 28
6.11 Reasonable Best Efforts . . . . . . . . . . . . . . 29
6.12 FCC Reports . . . . . . . . . . . . . . . . . . . . 29
6.13 Tax Returns and Payments. . . . . . . . . . . . . . 29
6.14 No Solicitation . . . . . . . . . . . . . . . . . . 29
6.15 Certified Resolutions . . . . . . . . . . . . . . . 29
6.16 Audited Financial Statements. . . . . . . . . . . . 29
6.17 Rescission Agreement. . . . . . . . . . . . . . . . 30
6.18 Vacation of Premises. . . . . . . . . . . . . . . . 30
ARTICLE VII CONDITIONS PRECEDENT TO THE OBLIGATION OF
BUYER TO CLOSE. . . . . . . . . . . . . . . . . . . 30
7.1 Accuracy of Representations and Warranties; Closing
Certificate. . . . .. . . . . . . . . . . . . . . . 30
7.2 Performance of Agreement. . . . . . . . . . . . . . 31
7.3 FCC Order . . . . . . . . . . . . . . . . . . . . . 31
7.4 HSR Act . . . . . . . . . . . . . . . . . . . . . . 31
7.5 Opinions of Seller's Counsel. . . . . . . . . . . . 31
7.6 Other Consents. . . . . . . . . . . . . . . . . . . 31
7.7 Delivery of Closing Documents . . . . . . . . . . . 32
7.8 No Adverse Proceedings. . . . . . . . . . . . . . . 32
ARTICLE VIII CONDITIONS PRECEDENT TO THE OBLIGATION OF
SELLER TO CLOSE . . . . . . . . . . . . . . . . . . 32
8.1 Accuracy of Representations and Warranties. . . . . 32
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8.2 Performance of Agreements . . . . . . . . . . . . . 32
8.3 FCC Order . . . . . . . . . . . . . . . . . . . . . 32
8.4 HSR Act . . . . . . . . . . . . . . . . . . . . . . 33
8.5 Opinion of Buyer's Counsel. . . . . . . . . . . . . 33
8.6 No Adverse Proceedings. . . . . . . . . . . . . . . 33
8.7 Delivery of Closing Documents . . . . . . . . . . . 33
ARTICLE IX CLOSING . . . . . . . . . . . . . . . . . . . . . . 33
9.1 Time and Place. . . . . . . . . . . . . . . . . . . 33
9.2 Documents to be Delivered to Buyer by Seller. . . . 34
9.3 Deliveries to Seller by Buyer . . . . . . . . . . . 34
ARTICLE X INDEMNIFICATION . . . . . . . . . . . . . . . . . . 35
10.1 Survival. . . . . . . . . . . . . . . . . . . . . . 35
10.2 Indemnification by Seller . . . . . . . . . . . . . 35
10.3 Indemnification by Buyer. . . . . . . . . . . . . . 36
10.4 Administration of Indemnification . . . . . . . . . 36
ARTICLE XI TERMINATION . . . . . . . . . . . . . . . . . . . . 38
11.1 Right of Termination. . . . . . . . . . . . . . . . 38
11.2 Automatic Termination . . . . . . . . . . . . . . . 38
11.3 Obligations Upon Termination. . . . . . . . . . . . 38
ARTICLE XII CONTROL OF STATION . . . . . . . . . . . . . . 39
ARTICLE XIII EMPLOYMENT MATTERS . . . . . . . . . . . . . . 39
13.1 Termination of Employees. . . . . . . . . . . . . . 39
13.2 Employee Benefit Plans. . . . . . . . . . . . . . . 39
ARTICLE XIV LIKE-KIND EXCHANGE . . . . . . . . . . . . . . 39
14.1 Working Capital . . . . . . . . . . . . . . . . . . 39
14.2 Restructuring of Transaction as a Like-Kind Exchange41
ARTICLE XV MISCELLANEOUS . . . . . . . . . . . . . . . . . . . 44
15.1 Further Actions . . . . . . . . . . . . . . . . . . 44
15.2 Payment of Expenses . . . . . . . . . . . . . . . . 44
15.3 Specific Performance. . . . . . . . . . . . . . . . 44
15.4 Notices . . . . . . . . . . . . . . . . . . . . . . 45
15.5 Entire Agreement. . . . . . . . . . . . . . . . . . 46
15.6 Binding Effect; Benefits. . . . . . . . . . . . . . 46
15.7 Assignment. . . . . . . . . . . . . . . . . . . . . 47
15.8 Governing Law . . . . . . . . . . . . . . . . . . . 47
15.9 Amendments and Waivers. . . . . . . . . . . . . . . 47
15.10 Severability. . . . . . . . . . . . . . . . . . . . 47
15.11 Headings. . . . . . . . . . . . . . . . . . . . . . 47
15.12 Counterparts. . . . . . . . . . . . . . . . . . . . 47
15.13 References. . . . . . . . . . . . . . . . . . . . . 47
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15.14 Schedules and Exhibits. . . . . . . . . . . . . . . 48
15.15 Attorneys' Fees . . . . . . . . . . . . . . . . . . 48
15.16 Seller Not Responsible for Buyer's Actions Under TBA48
15.17 Disclaimer of Warranties. . . . . . . . . . . . . . 48
TIME BROKERAGE AGREEMENT
(WQCD-FM, New York, New York)
This TIME BROKERAGE AGREEMENT is made as of May 15, 1997, by and
between TRIBUNE NEW YORK RADIO, INC., a Delaware corporation
("Licensee"), and EMMIS BROADCASTING CORPORATION, an Indiana corporation
("Broker").
RECITALS
A. Licensee is the owner of Radio Station WQCD-FM, New York, New
York (the "Station"), pursuant to licenses, permits, and authorizations
issued by the Federal Communications Commission ("FCC").
B. Licensee and Broker have entered into an Option Agreement,
dated as of the date hereof (the "Option Agreement"), pursuant to which
Licensee has an option to sell to Broker, and Broker has an option to
purchase from Licensee (each of such option to sell and option to
purchase is hereinafter referred to as an "Option"), substantially all
of the assets used in the operations of the Station.
C. In connection with entering into the Option Agreement,
Licensee and Broker have agreed to enter into an agreement relating to
the programming of the Station.
D. Licensee agrees to provide air time to Broker on terms and
conditions that conform to Station policies and the FCC rules,
regulations and policies for time brokerage arrangements.
E. Broker agrees to provide such programming to and for the
Station and to undertake its other obligations hereunder in conformity
with all rules, regulations, and policies of the FCC.
AGREEMENTS
In consideration of the above recitals and of the mutual agreements
and covenants contained herein, Licensee and Broker, intending to be
bound legally, agree as follows:
SECTION 1
DEFINITIONS
The following terms, as used in this Agreement, shall have the
meanings set forth in this Section:
"Communications Act" means the Communications Act of 1934, as
amended, together with the rules, regulations, and policies promulgated
thereunder by the FCC, as in effect from time to time.
"FCC" is defined in the first recital to this Agreement.
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"HSR Act" means the Hart-Scott-Rodino Antitrust Improvements Act of
1976, as amended.
"Person" includes natural persons, corporations, business trusts,
associations, companies, joint ventures, and partnerships.
"Policy Statement" means the Broadcast Station Programming Policy
Statement in the form of Exhibit A to this Agreement, as it may be
amended from time to time in accordance with this Agreement.
SECTION 2
TERM
2.1 Term. The term of this Agreement (the "Term") will begin at
12:01 A.M. on the Effective Date, as such term is defined in Section 2.2
below, and will continue until the closing of the sale transaction
contemplated in the Option Agreement unless earlier terminated in
accordance with Section 2.3 below.
2.2 Effective Date. The effective date of this Agreement (the
"Effective Date") shall be the third business day following the
completion of all required filings under the HSR Act and all applicable
time limitations under the HSR Act shall have expired or have been
terminated early without a request for further information by the
relevant federal authorities under the HSR Act.
2.3 Termination.
(a) Illegality. This Agreement and the Term may be
terminated, subject to Section 6.6 below, by either Licensee or Broker,
by written notice to the other, if:
(i) this Agreement has been declared invalid or illegal
in whole or substantial part by an order or decree of an administrative
agency or court of competent jurisdiction and the applicability of such
order or decree has not been stayed pending further administrative or
judicial review; or
(ii) there has been a change in the Communications Act
that causes this Agreement to be in violation thereof and the
applicability of such change has not been stayed pending appeal or
further administrative review.
(b) Other Situations. This Agreement and the Term may be
terminated as follows:
(i) by written notice of one party to the other, if the
terminating party is not then in material default under this Agreement
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and the other party is in material default under this Agreement and has
failed to cure such default within fifteen (15) days after receiving
notice of breach from the terminating party;
(ii) by mutual written agreement of the parties;
(iii) by written notice from either party to the
other following termination or expiration of the Option Agreement;
(iv) by written notice from either party to the other in
the event that relevant federal authorities have made a formal second
request for further information under the HSR Act; or
(v) by written notice from Broker to Licensee if during
any consecutive seven-day period, more than 4.0% of the broadcast time
between the hours of 6:00 a.m. to 6:00 p.m., or more than 7.5% of the
total broadcast hours during such period, is preempted by Licensee
pursuant to Section 4.2.
Notwithstanding the foregoing, no party shall be entitled to terminate
this Agreement while such party is in material default hereunder or under
the Option Agreement.
2.4 Effect of Termination. Upon termination of this Agreement,
the payments provided for under Section 3.1 shall be prorated to the
effective termination date of this Agreement. The provisions of
Sections 6.2(a) and 10 shall survive the termination of this Agreement.
Furthermore, if the Term is terminated, Broker shall assign and Licensee
shall assume the AFTRA Agreement (as defined in, and the assumption by
Broker on the Effective Date being described in, Section 6.2(c)) and
Licensee shall offer employment to Broker's employees subject to the
AFTRA Agreement at such time (the "AFTRA Employees"), provided that (i)
the AFTRA Agreement has not been amended, modified, or replaced in any
materially adverse respect during the Term and (ii) Licensee shall not
be required to hire more than seven full-time AFTRA Employees and eight
part-time AFTRA Employees.
SECTION 3
CONSIDERATION
3.1 General. As consideration for the air time made available
under this Agreement, Broker shall pay Licensee (i) a monthly fee equal
to $708,333.00 (or a prorated portion of such amount for any partial
calendar month) and (ii) the operating expenses (consisting of all
operating expenses resulting directly from broadcasting programing
provided by Broker and all reasonable operating expenses otherwise
incurred by Licensee in connection with the operation of the Station and
the performance of its obligations hereunder) for each calendar month (or
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a prorated portion of such expenses for any partial calendar month)
incurred by Licensee during the Term in connection with providing air
time to Broker; provided, however, that the fixed monthly amount
provided for in (i) shall not be payable to the extent provided in
Section 2.3 of the Option Agreement if the Option is extended as provided
in that section. Broker will pay such amounts for each calendar month
or portion thereof within the Term not later than five (5) days after
receipt from Licensee of a statement setting forth the actual operating
expenses incurred by Licensee for such month (or portion thereof),
together with a copy of each invoice for each expense exceeding
$1,000.00; provided, however, in the event such invoice shall be lost or
destroyed, Licensee may submit a certification from its Chief Financial
Officer that such expense was duly and validly incurred. The fixed
monthly amount payable in accordance with (i) above shall be reduced by
a percentage equal to the percentage of the Station's total broadcast
time during the month (or the portion thereof for which the fee is paid)
that is preempted by Licensee pursuant to Section 4.2(b) or (c); and
further provided that any such reduction shall not preclude Broker from
exercising its rights under Section 2.3(b)(v).
3.2 Accrued Vacation Payments. With respect to each vacation or
portion thereof earned but not taken before the Effective Date by each
person previously employed by Licensee who is employed by Broker,
Licensee agrees that it shall promptly pay, on or after the Effective
Date, to each such person a cash amount equal to the compensation
equivalent of the vacation or the portion thereof earned but unused
before the Effective Date, and Licensee agrees and acknowledges that
Broker shall have no liability or obligation for payment of the
compensation equivalent related to any such accrued vacation.
SECTION 4
PROVISION OF STATION AIR TIME
4.1 Scope. During the Term, Licensee shall make available to
Broker all air time on the Station as may be requested by Broker, other
than time reserved to or permitted to be used by Licensee in accordance
with Section 4.2. Broker shall provide entertainment programming of its
selection, complete with commercial matter, news, public service
announcements, and other suitable programming, subject at all times to
Licensee's rights specified in Section 4.2 and Section 5.1. Broker shall
deliver such programming to the Station's transmitter facilities or other
authorized remote control points as reasonably designated by Licensee.
4.2 Air Time Reserved to Licensee. The parties recognize that
Licensee has certain obligations to broadcast programming to meet the
needs and interests of the Station's community of license, and nothing
in this Agreement shall abrogate the unrestricted authority of Licensee
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to discharge its obligations to the public and to comply with the
Communications Act. Accordingly, notwithstanding Section 4.1:
(a) Licensee may use such time as it may require for the
broadcast of its own regularly scheduled news, public affairs,
entertainment and non-entertainment programming which may be up to four
(4) hours per week.
(b) Upon 48 hours notice to Broker, Licensee may elect to set
aside additional hours of air time per broadcast week, to be scheduled
at a mutually agreeable time, for the broadcast of specified
non-entertainment programming on issues of importance to the local
community.
(c) Although both parties shall cooperate in the broadcast
of emergency information over the Station, Licensee shall have the right
to interrupt Broker's programming in case of an emergency or for
programming that, in the reasonable good faith judgment of Licensee, is
of overriding public importance.
4.3 Exclusivity. Air time not used by Broker in accordance with
Section 4.1 nor by Licensee in accordance with Section 4.2 shall not be
made available for use by any other Person. During the Term, Licensee
will not enter into any other time brokerage, program provision, local
marketing, or similar agreement relating to the Station with any Person.
4.4 Control. Notwithstanding anything to the contrary in this
Agreement, Licensee and Broker acknowledge and agree that during the
Term, Licensee will maintain ultimate control and authority over the
Station, including control and authority over the Station's finances,
personnel and programming. Broker shall not represent, warrant or hold
itself out as Station's licensee and shall sell all its advertising time
and enter into all agreements in its own name.
SECTION 5
PROGRAMMING POLICIES
5.1 Policy Statement. Licensee has adopted and will enforce the
Policy Statement which may be amended from time to time by Licensee in
its reasonable discretion upon notice to Broker. In providing
programming for broadcast on the Station, including advertising spots and
promotional material or announcements, Broker agrees to comply in all
material respects with the Policy Statement and Communications Act.
Licensee shall have the right, upon prior written notice to Broker, to
reject or refuse any portions of Broker's programming that Licensee
reasonably believes to be unsatisfactory, unsuitable, or contrary to the
public interest, and to suspend or cancel any program supplied by Broker
that it reasonably determines does not comply with the Policy Statement.
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Licensee and Broker will cooperate in an effort to avoid and/or resolve
conflicts regarding programming on the Station.
5.2 Compliance with Copyright Law. Broker shall not broadcast any
material on the Station in violation of applicable copyright law or the
rights of any Person. All music supplied by Broker shall be (a) licensed
by a music licensing society such as ASCAP, BMI, or SESAC; (b) in the
public domain; or (c) cleared at the source by Broker. Broker shall
retain the exclusive right to use and to authorize the use in any manner
of any programming licensed to it.
5.3 Political Advertising. Broker shall cooperate with Licensee
to assist Licensee in complying with the provisions of the Communications
Act regarding political advertising. Broker shall supply such
information promptly to Licensee as may be necessary to comply with the
public inspection file, lowest unit rate, equal opportunities, and
reasonable access requirements of the Communications Act and FCC rules
and regulations. If the Station fails to meet its political time
obligation under the Communications Act based on the advertising sold by
Broker in the programming material provided by Broker, then to the extent
reasonably necessary to enable Licensee to cause the Station to comply
with its political time obligations, Broker shall release advertising
availabilities to Licensee; provided, however, that all revenues realized
by Licensee from the sale of such advertising time shall be promptly paid
to Broker.
5.4 Payola. Broker agrees that it will not accept any
consideration whatsoever, regardless of its value or form, including a
commission, discount, bonus, material, supplies or other merchandise,
services, or labor, whether or not pursuant to written contracts or
agreements between Broker and merchants or advertisers, unless the payer
is identified in the program for which consideration was provided as
having paid for or furnished such consideration, in accordance with the
Communications Act. Broker agrees to cause the execution and delivery
to Licensee, from time to time at the request of Licensee, of an
appropriate Payola Affidavit substantially in the form attached hereto
as Exhibit B.
5.5 Cooperation on Programming. Licensee and Broker will
cooperate reasonably in an effort to avoid conflicts regarding the
programming on the Station and to ensure that the Station's programming
conforms with the Policy Statement and the Communications Act.
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SECTION 6
OTHER OBLIGATIONS OF THE PARTIES
6.1 Operation of the Station. Licensee will have the authority,
power and control over the operations of the Station during the Term, in
accordance with and subject to the following:
(a) Licensee will bear all responsibility for the Station's
compliance with all applicable provisions of the Communications Act and
all other applicable laws. Licensee will file in a timely and complete
manner all reports and applications required to be filed with the FCC or
any other governmental body including, but not limited to, filing all
license or authorization renewal applications with the FCC. Broker shall
cooperate with Licensee in connection with these matters to the extent
reasonably requested by Licensee.
(b) Licensee shall continue to maintain a main studio, as
that term is defined by the FCC, within the Station's principal community
contour, shall maintain its local public inspection file within the
community of license, and shall prepare and place in such inspection file
or files its quarterly issues and program lists on a timely basis in
compliance with the Communications Act. Broker shall cooperate with
Licensee in connection with these matters to the extent reasonably
requested by Licensee.
(c) Licensee shall maintain the station logs, receive and
respond to telephone inquiries, and control and oversee any remote
control point for the Station. Broker shall cooperate with Licensee in
connection with these matters to the extent reasonably requested by
Licensee.
(d) Licensee shall employ at its expense such personnel to
direct the day-to-day operations of the Station as may be necessary to
comply with the provisions of the Communications Act regarding main
studio staffing and such additional personnel as shall be necessary to
enable Licensee to perform its obligations under this Agreement. All
such employees will report to and be accountable solely to Licensee.
Licensee shall notify Broker prior to making any changes in management
personnel.
(e) Licensee shall maintain in effect policies of insurance
insuring the assets and the business of the Station.
(f) Licensee shall cause the Station's transmitting facility
to be maintained at all times in good working order and substantially in
accordance with the engineering requirements set forth in the Station's
FCC authorizations, including operating at substantially maximum
<PAGE>
<PAGE>
authorized power and ERP (except at such time where reduction of power
is required for routine or emergency maintenance).
(g) Licensee shall be responsible for and shall pay in a
timely manner all operating costs of the Station (other than the costs
to be borne by Broker in accordance with Section 6.2), including costs
of maintaining the transmitting facility, the cost of electricity and
other utilities, rental payments, taxes, and the salaries, taxes,
insurance, and related costs for all personnel employed by Licensee.
6.2 Rights and Responsibilities of Broker. Broker shall have the
sole right to sell all commercial time occurring within the programming
provided by Broker to the Station in accordance with the following
provisions:
(a) Broker shall retain all revenues from the sale of
advertising time on the Station during programming provided to the
Station by Broker. Broker may sell advertising on the Station in
combination with any other broadcast stations of its choosing. Broker
shall be responsible for payment of the commissions due to any national
sales representative engaged by it for the purpose of selling national
advertising to be carried during its programming.
(b) Broker shall be solely responsible for any expenses
incurred in the origination and delivery of programming from any remote
location, any publicity or promotional expenses incurred by Broker, and
all music licensing fees with respect to the broadcast of Broker's
programming on the Station.
(c) Broker shall employ and be solely responsible for the
salaries, taxes, and related costs for all personnel used in the
production of its programming provided to the Station and the sale of
advertising time within that programming (including announcers,
salespeople, traffic personnel, board operators, and programming staff).
On the Effective Date, Licensee shall assign and Broker shall assume all
rights and obligations arising on and after the Effective Date under the
AFTRA Agreement (as defined in the Option Agreement), and Broker shall
notify the union of the foregoing assignment and assumption.
Furthermore, (i) Broker agrees to offer employment, effective as of the
Effective Date, to the fifteen individuals identified by Licensee to
Broker as being subject to the AFTRA Agreement in Schedule 4.15 to the
Option Agreement, (ii) Licensee agrees to reimburse Broker for up to an
aggregate $100,000 of severance costs incurred by Broker in connection
with the termination of employment of any of those individuals within one
year of the Effective Date, and (iii) Licensee agrees to reimburse Broker
for up to an aggregate $100,000 of severance or other costs incurred by
Broker in connection with the termination of employment of Jim Kerr (for
whatever reason) if such termination occurs within one year of the
<PAGE>
<PAGE>
Effective Date (including, but not limited to, any costs incurred by
Broker in negotiating a settlement to terminate Mr. Kerr's employment
agreement).
(d) Broker shall maintain broadcaster's errors and omissions
insurance with respect to the programming to be broadcast by Broker over
the Station, and shall name Licensee as an additional insured on all such
insurance policies. Broker shall provide evidence of such insurance
coverage with such insurance carriers and such policy limits as are
reasonably acceptable to Licensee, upon Licensee's request.
(e) Broker covenants and agrees that it will comply in all
material respects with all applicable federal, state, and local laws,
rules, and regulations (including, without limitation, all FCC rules,
policies, and regulations) in the provision of programming to the Station
as contemplated herein and in the performance of its obligations
hereunder.
(f) As soon as practicable after the Effective Date, Licensee
shall deliver to Broker a complete and detailed list of all the Station's
accounts receivable arising from the broadcast of advertising time on the
Station prior to the Effective Date. For a period of ninety (90) days
following the Effective Date (the "Collection Period"), Broker will use
its reasonable efforts, as Licensee's agent, to collect such accounts
receivable in the usual and ordinary course of business. Broker shall
not be required to institute any legal proceedings to enforce the
collection of such accounts receivable or to refer any of such accounts
receivable to a collection agency. Broker shall not adjust any such
accounts receivable or grant credit without Licensee's written consent,
and any such accounts receivable amounts collected on behalf of Licensee
shall be paid to Licensee on the thirtieth (30th), sixtieth (60th) and
ninetieth (90th) days after the Effective Date. On the ninetieth (90th)
day after the Effective Date, Broker shall return to Licensee any such
uncollected accounts receivable, together with all files concerning the
collection or attempts to collect such accounts receivable, and Broker's
responsibility shall cease. Broker shall incur no liability to Licensee
for any uncollected account. All sums collected by Broker during the
Collection Period from any person obligated with respect to any such
account receivable shall be applied first to such account receivable.
After full satisfaction of Licensee's account, the balance, if any, shall
be applied to Broker's accounts.
6.3 Access to Information. Solely for the purpose of ensuring
compliance with the Communications Act and Station policies, including
the preparation by Licensee of its quarterly issues and program lists and
the satisfaction of its community service obligations, Licensee shall be
entitled to review at its reasonable discretion any programming material
of Broker that it may request. Broker shall promptly provide Licensee
<PAGE>
<PAGE>
with copies of all correspondence and complaints received from the public
(including any telephone logs of complaints called in) and copies of all
program logs and promotional materials. Broker shall also maintain and
deliver to the Station such records and information required by the FCC
to be placed in the public inspection file of the Station pertaining to
the broadcast of political programming and advertisements, in accordance
with the provisions of Sections 73.1940 and 73.3526 of the FCC's rules,
and to the broadcast of sponsored programming addressing political issues
or controversial issues of public importance, in accordance with the
provisions of Section 73.1212 of the FCC's rules. Broker shall furnish
to Licensee upon request any other information that is reasonably
necessary to enable Licensee to prepare any records or reports required
by the FCC or other governmental entities. Nothing in this Section shall
entitle Licensee to review the internal corporate or financial records
of Broker. If this Agreement is terminated, Licensee will return to
Broker all information obtained by Licensee from Broker in connection
with this Agreement.
6.4 Call Letters. Licensee will not change the call letters of
the Station without Broker's consent.
6.5 Trade Obligations. Broker shall, on and after the Effective
Date, perform all obligations of Licensee, to the extent such obligations
are required to be fulfilled pursuant to the terms of the following,
under (i) each of the Trade Agreements identified in Schedule 4.8(a) to
the Option Agreement which remain unsatisfied as of the Effective Date
and (ii) the Station Agreements for the sale of advertising time listed
on Schedule 4.8(b)(viii) to the Option Agreement (but only as to those
obligations which arise on or after the Effective Date). Broker shall,
after the Effective Date and to the extent such obligations were
performed after such date, be entitled to receive and to retain all of
the benefits and amounts paid under or pursuant to the foregoing
agreements.
6.6 Regulatory Changes. In the event of any order or decree of an
administrative agency or court of competent jurisdiction, including
without limitation any material change or clarification in FCC rules,
policies, or precedent, which would cause this Agreement to be in
violation of any applicable law, the parties will use their respective
best efforts and negotiate in good faith to modify this Agreement to the
extent necessary to comply fully with such order or decree. If despite
such best efforts the parties are unable to negotiate a mutually
agreeable modification, either party may terminate this Agreement and
both parties shall thereupon be relieved of all liability hereunder
accruing after the termination date.
6.7 Trademarks, Etc. Licensee hereby grants to Broker a royalty
free, paid-in-full unlimited license to use any and all trademarks,
<PAGE>
<PAGE>
service marks, patents, trade names, jingles, slogans, logotypes,
logograms, and other intangible assets and rights owned and used or held
for use by Licensee in conjunction with the Station, including, but not
limited to, the call letters "WQCD-FM".
6.8 HSR Act Filing. Within ten (10) days after the execution of
this Agreement, Licensee and Broker shall, in cooperation with each
other, file the reports and notifications under the HSR Act required in
connection with the transactions contemplated hereby. Licensee and
Broker will equally share the fees for such filings.
6.9 Certifications. Licensee certifies that it will remain in
control of the facilities of the Station, including control over the
Station's finances, personnel and programming. Broker certifies that
this Agreement complies with the provisions of
47 C.F.R. Section 73.3555(a).
SECTION 7
REPRESENTATIONS AND WARRANTIES OF LICENSEE
Licensee represents and warrants to Broker as follows:
7.1 Authorization and Binding Obligation. This Agreement has been
duly executed and delivered by Licensee and constitutes the valid and
binding obligation of Licensee, enforceable against Licensee in
accordance with its terms except as the enforceability hereof may be
affected by bankruptcy, insolvency, or similar laws affecting creditors'
rights generally and by judicial discretion in the enforcement of
equitable remedies.
7.2 Absence of Conflicting Agreements or Consents. The execution,
delivery and performance of this Agreement and the documents contemplated
hereby by Licensee (with or without the giving of notice, the lapse of
time, or both): (a) do not require the consent of any governmental or
regulatory authority or any other Person; (b) will not conflict with the
Certificate of Incorporation or By-Laws of Licensee; (c) will not
conflict with, result in a breach of, or constitute a default under any
judgment, order, ordinance, injunction, decree, rule, regulation or
ruling of any court or governmental instrumentality; (d) will not
conflict with, constitute grounds from termination of, result in a breach
of, constitute a default under, or accelerate or permit the acceleration
of any performance required by the terms of any material agreement,
instrument, license, or permit to which Licensee is a party or by which
it may be bound; and (e) will not create any claim, lien, charge, or
encumbrance upon any of the assets of the Station.
<PAGE>
<PAGE>
7.3 Authorizations. Licensee is the authorized legal holder of
all licenses, permits, and other authorizations required from
governmental and regulatory authorities for the lawful conduct of the
business of the Station in the manner it has been conducted.
SECTION 8
REPRESENTATIONS AND WARRANTIES OF BROKER
Broker represents and warrants to Licensee as follows:
8.1 Authorization and Binding Obligation. The execution,
delivery, and performance of this Agreement by Broker have been duly
authorized by all necessary corporate action on the part of Broker. This
Agreement has been duly executed and delivered by Broker and constitutes
a valid and binding obligation of Broker, enforceable against Broker in
accordance with its terms except as the enforceability hereof may be
affected by bankruptcy, insolvency, or similar laws affecting creditors'
rights generally and by judicial discretion in the enforcement of
equitable remedies.
8.2 Absence of Conflicting Agreements and Required Consents. The
execution, delivery, and performance of this Agreement and the documents
contemplated hereby Broker (with or without the giving of notice, the
lapse, of time, or both); (a) do not require the consent of any
governmental or regulatory authority or any other Person; (b) will not
conflict with the Articles of Incorporation or By-Laws of Broker; (c)
will not conflict with, result in a breach of, or constitute a default
under, any judgment, order, ordinance, injunction, decree, rule,
regulation, or ruling of any court or governmental instrumentality; and
(d) will no conflict with, constitute grounds for termination of, result
in a breach of, constitute a default under or accelerate or permit the
acceleration of any performance required by the terms of, any agreement,
instrument, license or permit to which Broker is a party or by which
Broker may be bound.
SECTION 9
[INTENTIONALLY OMITTED]
SECTION 10
MISCELLANEOUS
<PAGE>
<PAGE>
10.1 Notices. All notices, demands or other communications given
hereunder shall be in writing and shall be sufficiently given if
delivered by courier (including overnight delivery service) or sent by
registered or certified mail, first class, postage prepaid, to the
following address:
if to Broker, to:
EMMIS BROADCASTING CORPORATION
950 North Meridian Street, Suite 1200
Indianapolis, Indiana 46204
Attention: Jeffrey H. Smulyan, President
Copy to:
Bose McKinney & Evans
2700 First Indiana Plaza
Indianapolis, Indiana 46204
Attention: David L. Wills, Esq.
and
if to Licensee, to:
TRIBUNE NEW YORK RADIO, INC.
435 North Michigan Avenue, Suite 2300
Chicago, Illinois 60611
Attention: President
Copy to:
TRIBUNE COMPANY
435 North Michigan Avenue, Suite 600
Chicago, Illinois 60611
Attention: General Counsel
and
Sidley & Austin
One First National Plaza
Chicago, Illinois 60603
Attention: Larry A. Barden
or to such other address as a party may from time to time notify the
other party in writing (as provided above). Any such notice, demand or
communication shall be deemed to have been given (i) if so mailed, as of
<PAGE>
<PAGE>
the close of the third business day following the date so mailed, and
(ii) if delivered by courier, on the date received.
10.2 Binding Effect; Benefits. Except as otherwise provided
herein, this Agreement shall inure to the benefit of and be binding upon
the parties and their respective successors or permitted assigns. Except
to the extent specified herein, nothing in this Agreement, express or
implied, shall confer on any person other than the parties hereto and
their respective successors or permitted assigns any rights, remedies,
obligations or liabilities under or by reason of this Agreement.
10.3 Assignment. Neither this Agreement nor any of the rights,
interests or obligations hereunder may be assigned by either party
without the prior written consent of the other party, provided that:
(a) Either party may assign its rights under this Agreement
as collateral security to any lender providing financing to the party or
any of its Affiliates (as defined in the Option Agreement); and
(b) Broker may assign all of its rights under this Agreement
to an Affiliate, provided that (i) the representations and warranties of
Broker hereunder shall be true and correct in all material respects as
applied to the assignee, (ii) both Broker and the assignee shall execute
and deliver to Licensee a written instrument in form and substance
satisfactory to Licensee within its reasonable judgment in which both
Broker and the assignee agree to be jointly and severally liable for
performance of all of Broker's obligations under this Agreement, and
(iii) Broker and the assignee shall deliver such other documents and
instruments as reasonably requested by Licensee, including appropriate
certified resolutions of the boards of directors of Broker and the
assignee.
10.4 Further Assurances. The parties shall take any actions and
execute any other documents that may be necessary or desirable to the
implementation and consummation of this Agreement.
10.5 Governing Law. This Agreement shall in all respects be
governed by and construed in accordance with the laws of the State of New
York without regard to its principles of conflicts of laws.
10.6 Headings. The headings herein are included for ease of
reference only and shall not control or affect the meaning or
construction of the provisions of this Agreement.
10.7 Gender and Number. Words used herein, regardless of the
gender and number specifically used, shall be deemed and construed to
include any other gender, masculine, feminine, or neuter, and any other
number, singular or plural, as the context requires.
<PAGE>
<PAGE>
10.8 Entire Agreement. This Agreement represents the entire
understanding and agreement between Broker and Licensee with respect to
the subject matter hereof. This Agreement cannot be amended,
supplemented, or changed except by an agreement in writing that makes
specific reference to this Agreement and that is signed by the party
against which enforcement of any such amendment, supplement, or
modification is sought.
10.9 Counterparts. This Agreement may be signed in counterparts
with the same effect as if the signature on each counterpart were upon
the same instrument.
10.10 Severability. If any provision of this Agreement or the
application thereof to any person or circumstance shall be invalid or
unenforceable to any extend, the remainder of this Agreement and the
application of such provision to other persons or circumstance shall not
be affected thereby and shall be enforced to the greatest extent
permitted by law.
10.11 References. All references in this Agreement to Sections
are to Sections contained in this Agreement unless a different document
is expressly specified.
10.12 Exhibits. Each Exhibit referred to in this Agreement is
attached hereto, and each such Exhibit is hereby incorporated by
reference and made a part hereof as if fully set forth herein.
<PAGE>
<PAGE>
IN WITNESS WHEREOF, this Agreement has been executed by Licensee and
Broker as of the date first written above.
TRIBUNE NEW YORK RADIO, INC.
By: /s/ Wayne R. Vriesman
______________________________
Wayne R. Vriesman
President
"Licensee"
EMMIS BROADCASTING CORPORATION
By: /s/ Jeffrey H. Smulyan
______________________________
Jeffrey H. Smulyan
Chairman
"Broker"
<PAGE>
<PAGE>
Exhibit A
BROADCAST STATION
PROGRAMMING POLICY STATEMENT
1. Religion
(a) Respectful of Faiths. The subject of religion and
references to particular faiths, tenets, and customs shall be treated
with respect at all time.
(b) No Denominational Attacks. Programs shall not be used
as a medium for attack on any faith, denomination, or sect or upon any
individual or organization.
(c) Treatment of Parapsychology. The advertising or
promotion of fortunetelling, occultism, astrology, phrenology, palm
reading, numerology, mind-reading, character readings, or subjects of
like nature is not permitted.
(d) Sale of Religious Artifacts. The offering for sale of
religious artifacts or other items for which listeners would send money
is prohibited unless such items are readily available in ordinary
commerce or are clearly being sold for legitimate fund-raising purposes.
(e) No Claims of Miracles. Any claims of miracles or curses
not depicted in biblical scripture and quoted in context are prohibited;
this policy prohibits a minister or other individual appearing on a
program from personally claiming any cures or miracles and also prohibits
the presentation of any testimonials regarding such claims either in
person or in writing.
2. Controversial Issues. Any discussion of controversial issues
of public importance shall be reasonably balanced with the presentation
of contrasting viewpoints in the course of overall programming; no
attacks on the honesty, integrity, or like personal qualities of any
person or group of persons shall be made during the discussion of
controversial issues of public importance; and during the course of
political campaigns, programs are not to be used as a forum for
editorializing about individual candidates. If such events occur,
Station management may require that responsive programming be aired.
3. No Plugola. The mention of any business activity or "plug"
for any commercial, professional, or other related endeavor, except where
contained in an actual commercial message of a sponsor, is prohibited.
4. Lotteries and Contests.
<PAGE>
<PAGE>
(a) Illegal Lotteries. Announcements giving any information
about lotteries or games prohibited by federal or state law or
regulations are prohibited.
(b) "Dream Books". References to "dream books," the
"straight line," or other direct or indirect descriptions or
solicitations relative to the "numbers game," or the "policy game," or
any other form of gambling are prohibited.
(c) Numbers. References to chapter and verse numbers,
paragraph numbers, or song numbers that involve three digits should be
avoided and, when used, must be related to the overall theme of the
program.
(d) Contests. Any game, contest, or promotion relating to
or to be presented over the Station must be fully stated and explained
in advance to Station management, which reserves the right in its sole
discretion to reject any game, contest, or promotion.
5. Required Announcements. Broker shall broadcast (i) an
announcement in a form satisfactory to Station management at the
beginning of each hour to identify the Station, (ii) an announcement at
the beginning and end of each program to indicate that program time has
been purchased by the Broker, and (iii) any other announcements that may
be required by law, regulation, or Station policy.
6. Programming Prohibitions. Broker shall not knowingly and
willfully broadcast any of the following programs or announcements:
(a) False Claims. False or unwarranted claims for any
product or service.
(b) Unfair Imitation. Infringements of another advertiser's
rights through plagiarism or unfair imitation of either program idea or
copy, or any other unfair competition.
(c) Indecent. Any programs or announcements that are
indecent, obscene, profane, vulgar, repulsive, or offensive, either in
theme or in treatment.
(d) Descriptions of Bodily Functions. Any continuity which
described repellently any internal bodily functions or symptomatic
results of internal disturbances, and no reference to matters which are
not considered acceptable topics in social groups.
(e) Injurious Advertising. Any advertising matter or
announcement that may, in the option of the Station, be injurious or
<PAGE>
<PAGE>
prejudicial to the interests of the public, or to honest advertising and
reputable business in general.
EMMIS BROADCASTING CORPORATION AND SUBSIDIARIES
-----------------------------------------------
SCHEDULE OF CALCULATION OF PER SHARE NET INCOME
-----------------------------------------------
<TABLE>
<CAPTION>
For the Three Months Ended
May 31, 1997
------------
Weighted Calculated
Net Average Per
Income Shares Share
-------- -------- --------
<S> <C> <C> <C>
Shares outstanding and net income used in the $ 3,368,000 11,004,147 $ .31
determination of basic net income per share
Options 484,316
----------- ---------- -----
Used in the determination of primary net $ 3,368,000 11,488,463 $ .29
income per share
Options 15,849
----------- ---------- -----
Used in the determination of fully diluted $ 3,368,000 11,504,849 $ .29
net income per share
========== ========== =====
</TABLE>
<PAGE>
<PAGE>
EMMIS BROADCASTING CORPORATION AND SUBSIDIARIES
-----------------------------------------------
SCHEDULE OF CALCULATION OF PER SHARE NET INCOME
-----------------------------------------------
<TABLE>
<CAPTION>
For the Three Months Ended
May 31, 1996
------------
Weighted Calculated
Net Average Per
Income Shares Share
-------- -------- ---------
<S> <C> <C> <C>
Shares outstanding and net income used in the
determination of basic net income per share $ 3,505,000 10,924,740 $ .32
Options 572,365
----------- ---------- -----
Used in the determination of primary net
income per share $ 3,505,000 11,497,105 $ .30
Options 19,789
----------- ---------- -----
Used in the determination of fully diluted
net income per share $ 3,505,000 11,516,894 $ .30
=========== ========== =====
</TABLE>
<PAGE>
<PAGE>
EMMIS BROADCASTING CORPORATION AND SUBSIDIARIES
-----------------------------------------------
SCHEDULE OF CALCULATION OF PRO FORMA PER SHARE NET INCOME
---------------------------------------------------------
<TABLE>
<CAPTION>
For the Three Months Ended
May 31, 1996
------------
Weighted Calculated
Net Average Per
Income Shares Share
-------- -------- ---------
<S> <C> <C> <C>
Shares outstanding and net income used in the
determination of basic net income per share $ 2,866,000 10,924,740 $ .26
Options 572,365
----------- ---------- -----
Used in the determination of primary net
income per share $ 2,866,000 11,497,105 $ .25
Options 19,789
----------- ---------- -----
Used in the determination of fully diluted
net income per share $ 2,866,000 11,516,894 $ .25
=========== ========== =====
</TABLE>
July 15, 1997
Mr. Howard Schrott
Chief Financial Officer
Emmis Broadcasting Corporation
950 N. Meridian Street, Suite 1200
Gateway Plaza
Indianapolis, Indiana 46204
Dear Mr. Schrott:
We are aware that Emmis Broadcasting Corporation has incorporated by
reference in its Registration Statement Nos. 333-83890 and 333-14657 its
Form 10-Q for the quarter ended May 31, 1997, which includes our report
dated July 14, 1997, covering the unaudited interim financial information
contained therein. Pursuant to Regulation C of the Securities Act of 1933,
that report is not considered a part of the registration statement prepared
or certified by our firm within the meaning of Sections 7 and 11 of the Act.
Very truly yours,
Arthur Andersen LLP
<TABLE> <S> <C>
<ARTICLE> 5
<CIK> 0000783005
<NAME> EMMIS BROADCASTING CORPORATION
<S> <C>
<PERIOD-TYPE> 3-MOS
<FISCAL-YEAR-END> FEB-28-1998
<PERIOD-START> MAR-01-1997
<PERIOD-END> MAY-31-1997
<CASH> 1,354
<SECURITIES> 0
<RECEIVABLES> 27,206
<ALLOWANCES> 966
<INVENTORY> 0
<CURRENT-ASSETS> 32,823
<PP&E> 35,000
<DEPRECIATION> 16,982
<TOTAL-ASSETS> 231,148
<CURRENT-LIABILITIES> 11,259
<BONDS> 151,089
0
0
<COMMON> 110
<OTHER-SE> 39,120
<TOTAL-LIABILITY-AND-EQUITY> 231,148
<SALES> 33,820
<TOTAL-REVENUES> 33,820
<CGS> 5,258
<TOTAL-COSTS> 5,258
<OTHER-EXPENSES> 20,024
<LOSS-PROVISION> 275
<INTEREST-EXPENSE> 2,649
<INCOME-PRETAX> 5,614
<INCOME-TAX> 2,246
<INCOME-CONTINUING> 3,368
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> 3,368
<EPS-PRIMARY> .29
<EPS-DILUTED> .29
</TABLE>
