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EXHIBIT 1.01
3,000,000 TIDES(SM)
ENTERCOM COMMUNICATIONS CAPITAL TRUST
___% CONVERTIBLE PREFERRED SECURITIES,
TERM INCOME DEFERRABLE EQUITY SECURITIES (TIDES)SM
(LIQUIDATION AMOUNT $50 PER
EACH OF THE TIDES)
GUARANTEED TO THE EXTENT SET FORTH
IN THE GUARANTEE AGREEMENT BY, AND
CONVERTIBLE INTO CLASS A COMMON STOCK OF,
ENTERCOM COMMUNICATIONS CORP.
UNDERWRITING AGREEMENT
Dated: September __, 1999
CREDIT SUISSE FIRST BOSTON CORPORATION
BANC OF AMERICA SECURITIES LLC
DEUTSCHE BANK SECURITIES INC.
As Representatives of the Several Underwriters,
c/o Credit Suisse First Boston Corporation,
Eleven Madison Avenue,
New York, N.Y. 10010-3629
Ladies and Gentlemen:
1. Introductory. Entercom Communications Capital Trust, a statutory
business trust formed under the laws of the State of Delaware (the "Trust"), and
Entercom Communications Corp., a Pennsylvania corporation, as sponsor of the
Trust and as guarantor (the "Company"), propose, subject to the terms and
conditions stated herein, that the Trust issue and sell an aggregate of
3,000,000 ___% Convertible Preferred Securities, Term Income Deferrable Equity
Securities, or TIDES (the "Firm Securities"). The Company and the Trust also
propose that the Trust sell to the several Underwriters named in Schedule A
hereto (the "Underwriters"), at the option of the Underwriters, an aggregate of
not more than 450,000 additional TIDES, as set forth below (such additional
shares being hereinafter referred to as the "Optional Securities"). The Firm
Securities and the Optional Securities are herein collectively called the
"Offered Securities."
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The TIDES represent undivided beneficial ownership interests in the
assets of the Trust, guaranteed by the Company as to the payment of
distributions, and as to payments on liquidation or redemption, to the extent
set forth in a guarantee agreement (the "Guarantee") between the Company and
Wilmington Trust Company, as trustee (the "Guarantee Trustee"). The proceeds of
the sale by the Trust of the Offered Securities and its common securities (the
"Common Securities") are to be used to purchase the Convertible Subordinated
Debentures due 2014 (the "Debentures") of the Company, which will be issued
pursuant to an Indenture (the "Indenture") between the Company and Wilmington
Trust Company, as trustee (the "Debenture Trustee"). The TIDES are convertible
into shares of Class A Common Stock, par value $.01 per share (the "Company
Common Stock"), of the Company.
Each of the Trust and the Company hereby agrees with the several
Underwriters as follows:
2. Representations and Warranties of the Trust and the Company. (a)
Each of the Trust and the Company jointly and severally represents and warrants
to, and agrees with, the several Underwriters that:
(i) A registration statement (No. 333-86843) relating to the
Offered Securities, including a form of prospectus, has been filed with
the Securities and Exchange Commission (the "Commission") and either
(A) has been declared effective under the Securities Act of 1933, as
amended (the "Act") and is not proposed to be amended or (B) is
proposed to be amended by amendment or post-effective amendment. If
such registration statement (an "initial registration statement") has
been declared effective, either (A) an additional registration
statement (an "additional registration statement") relating to the
Offered Securities may have been filed with the Commission pursuant to
Rule 462(b) ("Rule 462(b)") under the Act and, if so filed, has become
effective upon filing pursuant to such Rule and all the Offered
Securities have been duly registered under the Act pursuant to the
initial registration statement and, if applicable, the additional
registration statement or (B) such an additional registration statement
is proposed to be filed with the Commission pursuant to Rule 462(b) and
will become effective upon filing pursuant to such Rule and upon such
filing all the Offered Securities will have been duly registered under
the Act pursuant to the initial registration statement and such
additional registration statement. If the Company and the Trust do not
propose to amend the initial registration statement or if an additional
registration statement has been filed and the Company and the Trust do
not propose to amend it, and if any post-effective amendment to either
registration statement has been filed with the Commission prior to the
execution and delivery of this Agreement, the most recent amendment (if
any) to each registration statement has been declared effective by the
Commission or has become effective upon filing pursuant to Rule 462(c)
("Rule 462(c)") under the Act or, in the case of the additional
registration statement, Rule 462(b). For purposes of this Agreement,
"Effective Time" with respect to the initial registration statement or,
if filed prior to the execution and delivery of this Agreement, the
additional registration statement means (A) if the Company and the
Trust have advised the Representatives that they do not propose to
amend such registration statement, the date and time as of which such
registration statement, or the most recent post-effective amendment
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thereto (if any) filed prior to the execution and delivery of this
Agreement, was declared effective by the Commission or has become
effective upon filing pursuant to Rule 462(c), or (B) if the Company
and the Trust have advised the Representatives that they propose to
file an amendment or post-effective amendment to such registration
statement, the date and time as of which such registration statement,
as amended by such amendment or post-effective amendment, as the case
may be, is declared effective by the Commission. If an additional
registration statement has not been filed prior to the execution and
delivery of this Agreement but the Company and the Trust have advised
the Representatives that they propose to file one, "Effective Time"
with respect to such additional registration statement means the date
and time as of which such registration statement is filed and becomes
effective pursuant to Rule 462(b). "Effective Date" with respect to the
initial registration statement or the additional registration statement
(if any) means the date of the Effective Time thereof. The initial
registration statement, as amended at its Effective Time, including all
information contained in the additional registration statement (if any)
and deemed to be a part of the initial registration statement as of the
Effective Time of the additional registration statement pursuant to the
General Instructions of the Form on which it is filed and including all
information (if any) deemed to be a part of the initial registration
statement as of its Effective Time pursuant to Rule 430A(b) ("Rule
430A(b)") under the Act, is hereinafter referred to as the "Initial
Registration Statement." The additional registration statement, as
amended at its Effective Time, including the contents of the initial
registration statement incorporated by reference therein and including
all information (if any) deemed to be a part of the additional
registration statement as of its Effective Time pursuant to Rule
430A(b), is hereinafter referred to as the "Additional Registration
Statement." The Initial Registration Statement and the Additional
Registration Statement are hereinafter referred to collectively as the
"Registration Statements" and individually as a "Registration
Statement." The form of prospectus relating to the Offered Securities,
as first filed with the Commission pursuant to and in accordance with
Rule 424(b) ("Rule 424(b)") under the Act or (if no such filing is
required) as included in a Registration Statement, is hereinafter
referred to as the "Prospectus." No document has been or will be
prepared or distributed in reliance on Rule 434 under the Act.
(ii) If the Effective Time of the Initial Registration Statement
is prior to the execution and delivery of this Agreement: (A) on the
Effective Date of the Initial Registration Statement, the Initial
Registration Statement conformed in all material respects to the
requirements of the Act and the rules and regulations of the Commission
("Rules and Regulations") and did not include any untrue statement of a
material fact or omit to state any material fact required to be stated
therein or necessary to make the statements therein not misleading, (B)
on the Effective Date of the Additional Registration Statement (if
any), each Registration Statement conformed or will conform, in all
material respects to the requirements of the Act and the Rules and
Regulations and did not include, or will not include, any untrue
statement of a material fact and did not omit, or will not omit, to
state any material fact required to be stated therein or necessary to
make the statements therein not misleading and (C) on the date of this
Agreement, the Initial Registration Statement and, if the Effective
Time of the Additional Registration Statement is prior to the execution
and
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delivery of this Agreement, the Additional Registration Statement each
conforms, and at the time of filing of the Prospectus pursuant to Rule
424(b) or (if no such filing is required) at the Effective Date of the
Additional Registration Statement in which the Prospectus is included,
and on each Closing Date (as hereinafter defined) each Registration
Statement and the Prospectus will conform, in all material respects to
the requirements of the Act and the Rules and Regulations, and neither
of such documents includes, or will include, any untrue statement of a
material fact or omits, or will omit, to state any material fact
required to be stated therein or necessary to make the statements
therein (in the case of the Prospectus, in light of the circumstances
under which such statements were made) not misleading. If the Effective
Time of the Initial Registration Statement is subsequent to the
execution and delivery of this Agreement: on the Effective Date of the
Initial Registration Statement, the Initial Registration Statement and
the Prospectus will conform in all material respects to the
requirements of the Act and the Rules and Regulations, neither of such
documents will include any untrue statement of a material fact or will
omit to state any material fact required to be stated therein or
necessary to make the statements therein (in the case of the
Prospectus, in light of the circumstances under which such statements
were made) not misleading, and no Additional Registration Statement has
been or will be filed. The two preceding sentences do not apply to
statements in or omissions from a Registration Statement or the
Prospectus based upon written information furnished to the Company and
the Trust by any Underwriter through the Representatives specifically
for use therein, it being understood and agreed that the only such
information is that described as such in Section 7(b) hereof.
(iii) The Trust has been duly created and is validly existing as a
statutory business trust in good standing under the Delaware Business
Trust Act (the "Trust Act") with the power and authority to own
property and conduct its business as described in the Prospectus, and
has conducted and will conduct no business other than the transactions
contemplated by this Agreement and as described in the Prospectus; the
Trust is not a party to or bound by any agreement or instrument other
than this Agreement, the Amended and Restated Declaration of Trust (the
"Declaration") between the Company and the trustees named therein (the
"Issuer Trustees" and, collectively with the Guarantee Trustee and the
Debenture Trustee, the "Trustees") and the agreements and instruments
contemplated by the Declaration and the Prospectus; the Trust has no
liabilities or obligations other than those arising out of the
transactions contemplated by this Agreement and the Declaration and as
described in the Prospectus; and the Trust is not a party to or subject
to any action, suit or proceeding of any nature.
(iv) The Company has been duly incorporated and is a validly
existing corporation in good standing under the laws of the
Commonwealth of Pennsylvania, with power and authority (corporate and
other) to own, lease or operate its properties and conduct its business
as described in the Prospectus; and the Company is duly qualified to do
business as a foreign corporation and is in good standing in all other
jurisdictions in which its ownership or lease of property or the
conduct of its business requires such qualification, except where the
failure to be so qualified would not have a material adverse effect on
the
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condition (financial or other), business, properties, prospects or
results of operations ("Material Adverse Effect") of the Company and
its subsidiaries taken as a whole.
(v) Each subsidiary of the Company has been duly incorporated or
organized, as the case may be, and is validly existing and in good
standing under the laws of the jurisdiction of its organization, with
power and authority (corporate and other) to own its properties and
conduct its business as described in the Prospectus; and each
subsidiary of the Company is duly qualified to do business as a foreign
corporation, limited liability company or business trust, as
applicable, and is in good standing in all other jurisdictions in which
its ownership or lease of property or the conduct of its business
requires such qualification, except where the failure to be so
qualified would not have a Material Adverse Effect on the Company and
its subsidiaries taken as a whole; all of the issued and outstanding
capital stock of each subsidiary of the Company has been duly
authorized and validly issued, is fully paid and nonassessable and is
owned of record and beneficially by the Company or by a subsidiary of
the Company; and the capital stock or other equity interest of each
subsidiary owned by the Company, directly or through subsidiaries, is
owned free from liens, encumbrances and defects, except as disclosed in
the Prospectus.
(vi) The Offered Securities have been duly authorized by the
Trust, and when the Offered Securities have been delivered and paid for
in accordance with this Agreement on each Closing Date (as defined
below), such Offered Securities will have been validly issued, fully
paid and nonassessable preferred undivided beneficial interests in the
assets of the Trust and will conform to the description thereof
contained in the Prospectus; the issuance of the Offered Securities is
not subject to preemptive or other similar rights; the Offered
Securities will have the rights set forth in the Declaration, and the
Offered Securities when issued and delivered against payment therefor
as provided herein will be, and the Declaration, when duly executed and
delivered, will be, valid and binding obligations of the Trust.
(vii) The Common Securities have been duly and validly authorized
by the Trust and upon delivery by the Trust to the Company against
payment therefor as described in the Prospectus, will be duly and
validly issued and fully paid undivided beneficial interests in the
assets of the Trust and will conform to the description thereof
contained in the Prospectus; the issuance of the Common Securities is
not subject to preemptive or other similar rights; and all of the
issued and outstanding Common Securities of the Trust will be directly
owned by the Company free and clear of any security interest, mortgage,
pledge, lien, encumbrance, claim or equity.
(viii) The Guarantee, the Debentures, the Declaration, the
Indenture, the Common Securities Purchase Agreement between the Trust
and the Company (the "Common Securities Purchase Agreement") and the
Common Securities Guarantee Agreement by the Company for the benefit of
the holders of the Common Securities (the Guarantee, the Debentures,
the Declaration, the Indenture, the Common Securities Purchase
Agreement and the Common Securities Guarantee Agreement being
collectively referred to as the
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"Company Agreements") have each been duly authorized and when validly
executed and delivered by the Company and, in the case of the
Guarantee, by the Guarantee Trustee, in the case of the Declaration, by
the Issuer Trustees, in the case of the Indenture, by the Debenture
Trustee, in the case of the Common Securities Purchase Agreement, by
the Trust and, in the case of the Debentures, when validly issued by
the Company and validly authenticated and delivered by the Debenture
Trustee and paid for by the Trust, will constitute valid and legally
binding obligations of the Company, enforceable in accordance with
their respective terms, subject to bankruptcy, insolvency, fraudulent
transfer, reorganization, moratorium and similar laws of general
applicability relating to or affecting creditors' rights and to general
equity principles; the Debentures are entitled to the benefits of the
Indenture; and the Company Agreements will conform in all material
respects to the descriptions thereof in the Prospectus.
(ix) When the Offered Securities are delivered and paid for
pursuant to this Agreement on each Closing Date (as defined below),
such Offered Securities will be exchangeable for Debentures which will
be convertible into shares of Company Common Stock ("Underlying
Shares") in accordance with the Declaration; the Underlying Shares
initially issuable upon conversion of such Offered Securities have been
duly authorized and reserved for issuance upon such conversion and,
when issued upon such conversion, will be validly issued, fully paid
and nonassessable; the outstanding shares of Company Common Stock
conform to the description thereof contained in the Prospectus; and the
stockholders of the Company have no preemptive rights with respect to
the Offered Securities, the Debentures or the Underlying Shares.
(x) Except as disclosed in the Prospectus, there are no contracts,
agreements or understandings between the Trust or the Company and any
person that would give rise to a valid claim against the Trust or the
Company or any Underwriter for a brokerage commission, finder's fee or
other like payment in connection with this offering.
(xi) Except as disclosed in the Prospectus, there are no
contracts, agreements or understandings between the Trust or the
Company and any person granting such person the right to require the
Company to file a registration statement under the Act with respect to
any securities of the Company owned or to be owned by such person or to
require the Company to include such securities in the securities
registered pursuant to a Registration Statement or in any securities
being registered pursuant to any other registration statement filed by
the Company under the Act.
(xii) The Underlying Shares will be approved for listing on The
New York Stock Exchange prior to the Closing Date subject to official
notice of issuance.
(xiii) Except as disclosed in the Prospectus, no consent,
approval, authorization, or order of, or filing with, any governmental
agency or body (including, without limitation, the Federal
Communications Commission (the "FCC")) or any court is required to be
obtained or made by the Trust or the Company for the consummation by
the Trust or the Company of
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the transactions contemplated by this Agreement and the Company
Agreements in connection with the issuance and sale of the Offered
Securities by the Trust, the distribution of the Debentures pursuant to
or upon liquidation of the Trust, the conversion of Debentures into
Company Common Stock, the issuance by the Company of the Guarantee or
the purchase of the Debentures by the Trust, except such as have been
obtained and made under the Act and such as may be required under state
securities laws and except that a copy of this Agreement is to be filed
with the FCC within 30 days of its execution.
(xiv) The execution, delivery and performance of this Agreement by
the Trust, the issue and sale of Offered Securities and compliance with
the terms thereof, the distribution of the Debentures pursuant to or
upon liquidation of the Trust, the purchase of the Debentures by the
Trust and the consummation by the Trust of the transactions
contemplated herein will not result in a breach or violation of any of
the terms and provisions of, or constitute a default under, any
statute, any rule, regulation or order of any governmental agency or
body or any court, domestic or foreign, having jurisdiction over the
Trust or any of its properties, or any agreement or instrument to which
the Trust is a party or by which the Trust is bound or to which any of
the properties of the Trust is subject, or the Declaration, and the
Trust has full power and authority to authorize, issue and sell the
Offered Securities as contemplated by this Agreement.
(xv) The execution, delivery and performance by the Company of
this Agreement and the Company Agreements, the consummation by the
Company of the transactions contemplated herein and therein, the
issuance by the Company of the Guarantee, the distribution of the
Debentures pursuant to or upon liquidation of the Trust, the conversion
of Debentures into Company Common Stock and the sale of the Debentures
to the Trust will not result in a breach or violation of any of the
terms and provisions of, or constitute a default under, any statute,
any rule, regulation or order of any governmental agency or body or any
court, domestic or foreign, having jurisdiction over the Company or any
subsidiary of the Company or any of their properties, or any agreement
or instrument to which the Company or any such subsidiary is a party or
by which the Company or any such subsidiary is bound or to which any of
the properties of the Company or any such subsidiary is subject,
assuming that in connection with the consummation of such transactions,
(i) Joseph M. Field continues to hold in his own name and exercise
voting control of the securities of the Company representing majority
voting control of the Company; (ii) each purchaser of the Offered
Securities is qualified under the Communications Laws to hold such
interest; and (iii) not more than 25% of the capital stock of the
Company in the aggregate is owned by foreign governments, alien
individuals or entities or representatives thereof, except where the
breach or violation would not have a Material Adverse Effect on the
Company and its subsidiaries taken as a whole; or the charter or
by-laws of the Company or any such subsidiary, and the Company has full
power and authority to authorize, issue and sell the Debentures and to
authorize and issue the Guarantee as contemplated by this Agreement.
(xvi) This Agreement has been duly authorized, executed and
delivered by the Trust and the Company.
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(xvii) Except as disclosed in the Prospectus, the Trust will on
the Closing Date have good and valid title to all the Debentures, free
from liens, encumbrances and defects that would materially affect the
value thereof or materially interfere with the use made or to be made
thereof by the Trust.
(xviii) Except as disclosed in the Prospectus, the Company and its
subsidiaries have good and marketable title to all real properties and
all other properties and assets owned by them, in each case free from
liens, encumbrances and defects that would materially affect the value
thereof or materially interfere with the use made or to be made thereof
by them; and except as disclosed in the Prospectus, the Company and its
subsidiaries hold any leased real or personal property under valid and
enforceable leases or subleases with no exceptions that, individually,
would materially interfere with the aggregate use of such properties in
any one radio market.
(xix) The Company and its subsidiaries possess adequate
certificates, authorities or permits and hold all necessary licenses
(including, without limitation, licenses issued by the FCC) issued by
appropriate governmental agencies or bodies necessary to conduct the
business now operated by them and have not received any notice of
proceedings relating to the revocation or modification of any such
certificate, license, authority or permit that, if determined adversely
to the Company or any of its subsidiaries, would individually or in the
aggregate have a Material Adverse Effect on the Company and its
subsidiaries taken as a whole.
(xx) Except as disclosed in the Prospectus, no labor dispute with
the employees of the Company or any subsidiary exists or, to the
knowledge of the Company, is imminent that might have a Material
Adverse Effect on the Company and its subsidiaries taken as a whole.
(xxi) The Company and its subsidiaries own, possess or can acquire
on reasonable terms, adequate trademarks, trade names and other rights
to inventions, know-how, patents, copyrights, confidential information
and other intellectual property (collectively, "Intellectual Property
Rights") necessary to conduct the business now operated by them, or
presently employed by them, and have not received any notice of
infringement of or conflict with asserted rights of others with respect
to any Intellectual Property Rights that, if determined adversely to
the Company or any of its subsidiaries, would individually or in the
aggregate have a Material Adverse Effect on the Company and its
subsidiaries taken as a whole.
(xxii) The Company and its subsidiaries have filed all necessary
federal, state, local and foreign income and franchise tax returns,
except where the failure to file such returns would not have a Material
Adverse Effect on the Company and its subsidiaries taken as a whole and
the Company and its subsidiaries have paid all taxes shown as due
thereon; and other than tax deficiencies that the Company or its
subsidiaries are contesting in good faith and for which adequate
reserves have been provided, there is no tax deficiency that has been
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asserted against the Company or its subsidiaries that would,
individually or in the aggregate, have a Material Adverse Effect on the
Company and its subsidiaries taken as a whole.
(xxiii) Neither the Company nor any of its subsidiaries is in
violation of any statute, any rule, regulation, decision or order of
any governmental agency or body or any court, domestic or foreign,
relating to the use, disposal or release of hazardous or toxic
substances or relating to the protection or restoration of the
environment or human exposure to hazardous or toxic substances
(collectively, "Environmental Laws"), owns or operates any real
property contaminated with any substance that is subject to any
Environmental Laws, is liable for any off-site disposal or
contamination pursuant to any Environmental Laws, or is subject to any
claim relating to any Environmental Laws, which violation,
contamination, liability or claim would individually or in the
aggregate reasonably be expected to have a Material Adverse Effect on
the Company and its subsidiaries taken as a whole; and the Company is
not aware of any pending investigation which might reasonably be
expected to lead to such a claim.
(xxiv) Except as disclosed in the Prospectus, there are no pending
actions, suits, proceedings, inquiries or investigations before or
brought by any court or governmental agency or body (including, without
limitation, the FCC) against or, to the knowledge of the Company,
affecting the Company, any of its subsidiaries or any of their
respective properties that, if determined adversely to the Company or
any of its subsidiaries, would individually or in the aggregate have a
Material Adverse Effect on the Company and its subsidiaries taken as a
whole, or would materially and adversely affect the ability of the
Company to perform its obligations under this Agreement, or which are
otherwise material in the context of the offer and sale of the Offered
Securities by the Company; and no such actions, suits or proceedings
are threatened or, to the Company's knowledge, contemplated.
(xxv) The financial statements included in each Registration
Statement and the Prospectus (other than the Sinclair Financials, 1998
Heritage Financials, the 1997 Heritage Financials and the CBS
Financials defined in paragraph (xxvi) below) present fairly the
financial position of the Company, its consolidated subsidiaries as of
the dates shown and their results of operations and cash flows for the
periods shown, and except as otherwise disclosed in the Prospectus,
such financial statements have been prepared in conformity with the
generally accepted accounting principles in the United States applied
on a consistent basis; and the schedules included in each Registration
Statement present fairly the information required to be stated therein;
and the assumptions used in preparing the pro forma financial
statements included in each Registration Statement and the Prospectus
provide a reasonable basis for presenting the significant effects
directly attributable to the transactions or events described therein,
the related pro forma adjustments give appropriate effect to those
assumptions, and the pro forma columns therein reflect the proper
application of those adjustments to the corresponding historical
financial statement amounts.
(xxvi) After due inquiry, the Company has no reason to believe
that (a) the financial statements and related schedules and notes of
Sinclair Broadcast Group and Subsidiaries -
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Radio Division (the "Sinclair Financials") included in the Registration
Statement and Prospectus do not present fairly the consolidated
financial position, results of operations and cash flows for the
periods shown and changes in financial position of Sinclair Broadcast
Group and Subsidiaries - Radio Division on the basis stated in the
Registration Statement at the respective dates or for the respective
periods to which they apply; (b) the financial statements and related
schedules and notes of the Portland, Oregon and Rochester, New York
Radio Groups of Heritage Media Services, Inc. - Broadcasting Segment
(the "1998 Heritage Financials") included in the Registration Statement
and Prospectus do not present fairly the consolidated financial
position, results of operations and cash flows for the periods shown
and changes in financial position of Portland, Oregon and Rochester,
New York Radio Groups of Heritage Media Services, Inc. - Broadcasting
Segment on the basis stated in the Registration Statement at the
respective dates or for the respective periods to which they apply; (c)
the financial statements and related schedules and notes of Heritage
Media Services, Inc. - Broadcasting Segment - a Division of Heritage
Media Corporation (the "1997 Heritage Financials") included in the
Registration Statement and Prospectus do not present fairly the
consolidated financial position, results of operations and cash flows
for the periods shown and changes in financial position of Heritage
Media Services, Inc. - Broadcasting Segment - a Division of Heritage
Media Corporation on the basis stated in the Registration Statement at
the respective dates or for the respective periods to which they apply;
(d) the financial statements and related schedules and notes of the
Boston Radio Market of CBS Radio, Inc. (the "CBS Financials") included
in the Registration Statement and Prospectus do not present fairly the
consolidated financial position, results of operations and cash flows
for the periods shown and changes in financial position of the Boston
Radio Market of CBS Radio, Inc. on the basis stated in the Registration
Statement at the respective dates or for the respective periods to
which they apply; or (e) the Sinclair Financials, 1998 Heritage
Financials, the 1997 Heritage Financials and the CBS Financials have
not been prepared in accordance with generally accepted accounting
principles consistently applied except as disclosed therein.
(xxvii) Since the date of the latest audited financial statements
included in the Prospectus there has been no material adverse change,
nor any development or event involving a prospective material adverse
change, in the condition (financial or other), business, properties,
prospects or results of operations of the Company and its subsidiaries
taken as a whole, and, except as disclosed in or contemplated by the
Prospectus, there has been no dividend or distribution of any kind
declared, paid or made by the Company on any class of its capital
stock.
(xxviii) The statistical and market-related data included in the
Prospectus are based on or derived from sources that the Company
believes to be accurate and reliable.
(xxix) Each of the Company and its subsidiaries (i) make and keep
accurate books and records and (ii) maintain internal accounting
controls that provide reasonable assurance that (A) transactions are
executed in accordance with management's authorization, (B)
transactions are recorded as necessary to permit preparation of its
financial statements and
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to maintain profitability for its assets, (C) access to its assets is
permitted only in accordance with management's authorization and (D)
the reported accountability for its assets is compared with existing
assets at reasonable intervals.
(xxx) Neither the Trust nor the Company is and, after giving
effect to the offering and sale of the Offered Securities and the
application of the proceeds thereof as described in the Prospectus,
will not be an "investment company" as defined in the Investment
Company Act of 1940, as amended.
(xxxi) To the knowledge of the Trust and the Company, each of
Deloitte & Touche LLP and Arthur Andersen LLP, which firms have
examined the consolidated financial statements as set forth in their
reports included in the Prospectus, is an independent public accounting
firm within the meaning of the Act and the rules and regulations
thereunder.
(xxxii) The Amended and Restated Asset Purchase Agreement, dated
August 20, 1999, by and among various subsidiaries of Sinclair and the
Company and the Asset Purchase Agreement dated August 20, 1999, by and
among various subsidiaries of Sinclair and the Company, have each been
duly authorized, executed and delivered by the Company and each
constitutes a validly and legally binding obligation of the Company,
each enforceable against the Company in accordance with its terms,
subject to bankruptcy, insolvency, fraudulent transfer, reorganization,
moratorium and similar laws of general applicability relating to or
affecting creditors' rights and to general equity principles, and each
remains in full force and effect.
3. Purchase, Sale and Delivery of Offered Securities. On the basis of
the representations, warranties and agreements herein contained, but subject to
the terms and conditions herein set forth, the Trust and the Company agree that
the Trust shall sell to each Underwriter, and each Underwriter agrees, severally
and not jointly, to purchase from the Trust, at a purchase price of $50.00 per
TIDES, plus accrued and unpaid distributions from the First Closing Date (as
hereinafter defined) the number of Firm Securities set forth opposite the name
of such Underwriter in Schedule A hereto.
The Trust will deliver against payment of the purchase price the Firm
Securities in the form of one or more permanent global Securities in definitive
form (the "Form Global Securities") deposited with the Trustee as custodian for
The Depository Trust Company ("DTC") and registered in the name of Cede & Co.,
as nominee for DTC. Interests in any permanent global Securities will be held
only in book-entry form through DTC, except in the limited circumstances
described in the Prospectus. Payment for the Firm Securities shall be made by
the Underwriters in Federal (same day) funds by official bank check or checks or
wire transfer to an account at a bank acceptable to Credit Suisse First Boston
Corporation ("CSFBC") drawn to the order of Entercom Communications Corp. at the
office of CSFBC, Eleven Madison Avenue, New York, New York, at 10:00 A.M., New
York time, on _______ __, 1999, or at such other time not later than seven full
business days thereafter as CSFBC, the Company and the Trust determine, such
time being herein referred to as the "First Closing Date," against delivery to
the Trustee as custodian for DTC of the
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Firm Global Securities representing all the Firm Securities. The Firm Global
Securities will be made available for checking at the above office of CSFBC at
least 24 hours prior to the First Closing.
In addition, upon written notice from CSFBC given to the Trust and
the Company from time to time not more than 30 days subsequent to the date of
the Prospectus, the Underwriters may purchase all or less than all of the
Optional Securities at the purchase price per Offered Security (plus accrued and
unpaid distributions thereon at the rate borne by the Offered Securities to the
related Option Closing Date (as defined below)) to be paid for the Firm
Securities. The Trust and the Company agree that the Trust shall sell to the
Underwriters the number of Optional Securities specified in such notice and the
Underwriters agree, severally and not jointly, to purchase such Optional
Securities. Such Optional Securities shall be purchased for the account of each
Underwriter in the same proportion as the number of Firm Securities set forth
opposite such Underwriter's name bears to the total number of Firm Securities
(subject to adjustment by CSFBC to eliminate fractions) and may be purchased by
the Underwriters only for the purpose of covering over-allotments made in
connection with the sale of the Firm Securities. No Optional Securities shall be
sold or delivered unless the Firm Securities previously have been, or
simultaneously are, sold and delivered. The right to purchase the Optional
Securities or any portion thereof may be exercised from time to time, and to the
extent not previously exercised may be surrendered and terminated at any time
upon notice by CSFBC to the Trust and the Company.
Each time for the delivery of and payment for the Optional
Securities, being herein referred to as an "Optional Closing Date," which may be
the First Closing Date (the First Closing Date and each Optional Closing Date,
if any, being sometimes referred to as a "Closing Date"), shall be determined by
CSFBC but shall be not later than five full business days after written notice
of election to purchase Optional Securities is given.
On the applicable Closing Date, the Trust will deliver against
payment of the purchase price the optional Securities being purchased on each
Optional Closing Date in the form of one or more permanent global securities in
definitive form (each, an "Optional Global Security") deposited with the Trustee
as custodian for DTC and registered in the name of Cede & Co., as nominee for
DTC. Payment for such Optional Securities shall be made by the Underwriters in
Federal (same day) funds by official bank check or checks or wire transfer to an
account at a bank acceptable to CSFBC drawn to the order of Entercom
Communications Corp. at the office of CSFBC, Eleven Madison Avenue, New York,
New York, against delivery to the Trustee as custodian for DTC of the Optional
Global Securities representing all of the Optional Securities being purchased on
such Optional Closing Date.
As compensation for the Underwriters' commitments, the Company will pay
to CSFBC the sum of $1.50 per TIDES times the total number of Offered Securities
purchased by the Underwriters on each Closing Date as commissions for the sale
of the Offered Securities under this Agreement. Such payment will be made on
each Closing Date with respect to the Offered Securities purchased on such
Closing Date.
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4. Offering by Underwriters. It is understood that the several
Underwriters propose to offer the Offered Securities for sale to the public as
set forth in the Prospectus.
5. Certain Agreements of the Trust and the Company. Each of the Trust
and the Company, jointly and severally, agrees with the several Underwriters
that:
(a) If the Effective Time of the Initial Registration Statement is
prior to the execution and delivery of this Agreement, the Trust and
the Company will file the Prospectus with the Commission pursuant to
and in accordance with subparagraph (1) (or, if applicable and if
consented to by CSFBC, subparagraph (4)) of Rule 424(b) not later than
the earlier of (A) the second business day following the execution and
delivery of this Agreement or (B) the fifteenth business day after the
Effective Date of the Initial Registration Statement.
The Trust and the Company will advise CSFBC promptly of any such filing
pursuant to Rule 424(b). If the Effective Time of the Initial
Registration Statement is prior to the execution and delivery of this
Agreement and an additional registration statement is necessary to
register a portion of the Offered Securities under the Act but the
Effective Time thereof has not occurred as of such execution and
delivery, the Trust and the Company will file the additional
registration statement or, if filed, will file a post-effective
amendment thereto with the Commission pursuant to and in accordance
with Rule 462(b) on or prior to 10:00 P.M., New York time, on the date
of this Agreement or, if earlier, on or prior to the time the
Prospectus is printed and distributed to any Underwriter, or will make
such filing at such later date as shall have been consented to by
CSFBC.
(b) The Trust and the Company will advise CSFBC promptly of any
proposal to amend or supplement the initial or any additional
registration statement as filed or the related prospectus or the
Initial Registration Statement, the Additional Registration Statement
(if any) or the Prospectus and will not effect such amendment or
supplementation without CSFBC's consent; and the Trust and the Company
will also advise CSFBC promptly of the effectiveness of each
Registration Statement (if its Effective Time is subsequent to the
execution and delivery of this Agreement) and of any amendment or
supplementation of a Registration Statement or the Prospectus and of
the institution by the Commission of any stop order proceedings in
respect of a Registration Statement and will use its best efforts to
prevent the issuance of any such stop order and to obtain as soon as
possible its lifting, if issued.
(c) If, at any time when a prospectus relating to the Offered
Securities is required to be delivered under the Act in connection with
sales by any Underwriter or dealer, any event occurs as a result of
which the Prospectus as then amended or supplemented would include an
untrue statement of a material fact or omit to state any material fact
necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading, or if it is
necessary at any time to amend the Prospectus to comply with the Act,
the Trust and the Company will promptly notify CSFBC of such event and
will promptly prepare and file with the Commission, at their own
expense, an amendment or supplement
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which will correct such statement or omission or an amendment which
will effect such compliance. Neither CSFBC's consent to, nor the
Underwriters' delivery of, any such amendment or supplement shall
constitute a waiver of any of the conditions set forth in Section 6
hereof.
(d) As soon as practicable, but not later than the Availability
Date (as defined below), the Company will make generally available to
its securityholders an earnings statement covering a period of at least
12 months beginning after the Effective Date of the Initial
Registration Statement (or, if later, the Effective Date of the
Additional Registration Statement) which will satisfy the provisions of
Section 11(a) of the Act. For the purpose of the preceding sentence,
"Availability Date" means the 45th day after the end of the fourth
fiscal quarter following the fiscal quarter that includes such
Effective Date, except that, if such fourth fiscal quarter is the last
quarter of the Company's fiscal year, "Availability Date" means the
90th day after the end of such fourth fiscal quarter.
(e) The Trust and the Company will furnish to the Representatives
copies of each Registration Statement (five of which will be signed and
will include all exhibits), each related preliminary prospectus, and,
so long as a prospectus relating to the Offered Securities is required
to be delivered under the Act in connection with sales by any
Underwriter or dealer, the Prospectus and all amendments and
supplements to such documents, in each case in such quantities as CSFBC
requests. The Prospectus shall be so furnished on or prior to 3:00
P.M., New York time, on the business day following the later of the
execution and delivery of this Agreement or the Effective Time of the
Initial Registration Statement. All other such documents shall be so
furnished as soon as available. The Trust and the Company will pay the
expenses of printing and distributing to the Underwriters all such
documents.
(f) The Trust and the Company will arrange for the qualification
of the Offered Securities for sale under the laws of such jurisdictions
as CSFBC designates and will continue such qualifications in effect so
long as required for the distribution of the Offered Securities.
(g) During the period of five years hereafter, the Company will
furnish to the Representatives and, upon request, to each of the other
Underwriters, as soon as practicable after the end of each fiscal year,
a copy of its annual report to shareholders for such year; and the
Company will furnish to the Representatives (i) as soon as available, a
copy of each report and any definitive proxy statement of the Company
filed with the Commission under the Securities Exchange Act of 1934, as
amended, or mailed to shareholders, and (ii) from time to time, such
other information concerning the Company as CSFBC may reasonably
request, subject to the limitations under the Act and the Securities
Exchange Act of 1934, as amended.
(h) For a period of 90 days after the date of the public offering
of the Offered Securities, the Trust and the Company will not offer,
sell, contract to sell, pledge or
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otherwise dispose of, directly or indirectly, or file with the
Commission a registration statement under the Act relating to, any
additional Offered Securities or securities convertible into or
exchangeable or exercisable for any Offered Securities, or publicly
disclose the intention to make any such offer, sale, pledge,
disposition or filing, without the prior written consent of CSFBC.
(i) The Company agrees with the several Underwriters that the
Company will pay all expenses incident to the performance of the
obligations of the Company and the Trust under this Agreement and the
Company Agreements, including, without limitation, (i) the fees and
expenses of the Trustees and the Issuer Trustees and their professional
advisers; (ii) all expenses in connection with the execution, issue,
authentication, packaging and delivery of the Offered Securities, the
preparation and printing of this Agreement, the Company Agreements, the
Offered Securities and the Prospectus and amendments and supplements
thereto, and any other document relating to the issuance, offer, sale
and delivery of the Offered Securities; (iii) any filing fees and other
expenses (including reasonable fees and disbursements of counsel)
incurred in connection with qualification of the Offered Securities for
sale under the laws of such jurisdictions as CSFBC designates and the
printing of memoranda relating thereto; (iv) the filing fee incident
to, and the reasonable fees and disbursements of counsel to the
Underwriters in connection with, the review by the National Association
of Securities Dealers, Inc. of the terms of the offering; (v) any
travel expenses of the Company's officers and employees and any other
expenses of the Company in connection with attending or hosting
meetings with prospective purchasers of the Offered Securities, and for
expenses incurred in distributing preliminary prospectuses and the
Prospectus (including any amendments and supplements thereto) to the
Underwriters.
6. Conditions of the Obligations of the Underwriters. The obligations
of the several Underwriters to purchase and pay for the Firm Securities on the
First Closing Date and the Optional Securities to be purchased on each Optional
Closing Date will be subject to the accuracy of the representations and
warranties on the part of the Trust and the Company herein, to the accuracy of
the statements of officers of the Trust and the Company made pursuant to the
provisions hereof, to the performance by the Trust and the Company of their
respective obligations hereunder and to the following additional conditions
precedent:
(a) The Representatives shall have received a letter, dated the
date of delivery thereof (which, if the Effective Time of the Initial
Registration Statement is prior to the execution and delivery of this
Agreement, shall be on or prior to the date of this Agreement or, if
the Effective Time of the Initial Registration Statement is subsequent
to the execution and delivery of this Agreement, shall be prior to the
filing of the amendment or post-effective amendment to the registration
statement to be filed shortly prior to such Effective Time), of
Deloitte & Touche LLP and Arthur Andersen LLP confirming that they are
independent public accountants within the meaning of the Act and the
applicable published Rules and Regulations thereunder and stating to
the effect that:
(i) in their opinion the financial statements and
schedules examined by them
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and included in the Registration Statements comply as to form
in all material respects with the applicable accounting
requirements of the Act and the related published Rules and
Regulations;
(ii) they have performed the procedures specified by
the American Institute of Certified Public Accountants for a
review of interim financial information as described in the
Statement of Auditing Standards No. 71, Interim Financial
Information, on the unaudited financial statements included in
the Registration Statements;
(iii) with respect to Deloitte & Touche LLP only, on
the basis of a reading of the latest available interim
financial statements of the Company, inquiries of officials of
the Company who have responsibility for financial and
accounting matters and other specified procedures, nothing
came to their attention that caused them to believe that:
(A) the unaudited financial statements
included in the Registration Statements do not comply
as to form in all material respects with the
applicable accounting requirements of the Act and the
related published Rules and Regulations or any
material modifications should be made to such
unaudited financial statements for them to be in
conformity with generally accepted accounting
principles;
(B) at the date of the latest available
balance sheet read by such accountants, or at a
subsequent specified date not more than three
business days prior to the date of this Agreement,
there was any change in the capital stock or any
increase in short-term indebtedness or long-term debt
of the Company and its consolidated subsidiaries or,
at the date of the latest available balance sheet
read by such accountants, there was any decrease in
consolidated net assets, as compared with amounts
shown on the latest balance sheet included in the
Prospectus; or
(C) for the period from the closing date of
the latest income statement included in the
Prospectus to the closing date of the latest
available income statement read by such accountants
there were any decreases, as compared with the
corresponding period of the previous year, in
consolidated net broadcast revenue, net income (loss)
or in the total or per share amounts of consolidated
income (loss) before extraordinary items;
except in all cases set forth in clauses (A) and (B) above for
changes, increases or decreases which the Prospectus discloses
have occurred or may occur or which are described in such
letter; and
(iii) they have compared specified dollar amounts (or
percentages derived
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from such dollar amounts) and other financial information
contained in the Registration Statements (in each case to the
extent that such dollar amounts, percentages and other
financial information are derived from the general accounting
records of the Company and its subsidiaries subject to the
internal controls of the Company's accounting system or are
derived directly from such records by analysis or computation)
with the results obtained from inquiries, a reading of such
general accounting records and other procedures specified in
such letter and have found such dollar amounts, percentages
and other financial information to be in agreement with such
results, except as otherwise specified in such letter.
For purposes of this subsection, (i) if the Effective Time of the
Initial Registration Statements is subsequent to the execution and
delivery of this Agreement, "Registration Statements" shall mean the
initial registration statement as proposed to be amended by the
amendment or post-effective amendment to be filed shortly prior to its
Effective Time, (ii) if the Effective Time of the Initial Registration
Statement is prior to the execution and delivery of this Agreement but
the Effective Time of the Additional Registration Statement is
subsequent to such execution and delivery, "Registration Statements"
shall mean the Initial Registration Statement and the additional
registration statement as proposed to be filed or as proposed to be
amended by the post-effective amendment to be filed shortly prior to
its Effective Time, and (iii) "Prospectus" shall mean the prospectus
included in the Registration Statements.
(b) If the Effective Time of the Initial Registration
Statement is not prior to the execution and delivery of this Agreement,
such Effective Time shall have occurred not later than 10:00 P.M., New
York time, on the date of this Agreement or such later date as shall
have been consented to by CSFBC. If the Effective Time of the
Additional Registration Statement (if any) is not prior to the
execution and delivery of this Agreement, such Effective Time shall
have occurred not later than 10:00 P.M., New York time, on the date of
this Agreement or, if earlier, the time the Prospectus is printed and
distributed to any Underwriter, or shall have occurred at such later
date as shall have been consented to by CSFBC. If the Effective Time of
the Initial Registration Statement is prior to the execution and
delivery of this Agreement, the Prospectus shall have been filed with
the Commission in accordance with the Rules and Regulations and Section
5(a) of this Agreement. Prior to such Closing Date, no stop order
suspending the effectiveness of a Registration Statement shall have
been issued and no proceedings for that purpose shall have been
instituted or, to the knowledge of the Trust, the Company or the
Representatives, shall be contemplated by the Commission.
(c) Subsequent to the execution and delivery of this
Agreement, there shall not have occurred (i) any change, or any
development or event involving a prospective change, in the condition
(financial or other), business, properties or results of operations of
the Trust, the Company or its subsidiaries which, in the judgment of a
majority in interest of the Underwriters including the Representatives,
is material and adverse and makes it impractical or inadvisable to
proceed with completion of the public offering or the sale of
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and payment for the Offered Securities; (ii) any downgrading in the
rating of any debt securities or preferred stock of the Trust or the
Company by any "nationally recognized statistical rating organization"
(as defined for purposes of Rule 436(g) under the Act), or any public
announcement that any such organization has under surveillance or
review its rating of any debt securities or preferred stock of the
Trust or the Company (other than an announcement with positive
implications of a possible upgrading, and no implication of a possible
downgrading, of such rating); (iii) any suspension or limitation of
trading in securities generally on The New York Stock Exchange, or any
setting of minimum prices for trading on such exchange, or any
suspension of trading of any securities of the Company on any exchange
or in the over-the-counter market; (iv) any banking moratorium declared
by U.S. Federal, New York or Pennsylvania authorities; or (v) any
outbreak or escalation of major hostilities in which the United States
is involved, any declaration of war by Congress or any other
substantial national or international calamity or emergency if, in the
judgment of a majority in interest of the Underwriters including the
Representatives, the effect of any such outbreak, escalation,
declaration, calamity or emergency makes it impractical or inadvisable
to proceed with completion of the public offering or the sale of and
payment for the Offered Securities.
(d) The Representatives shall have received an opinion, dated
such Closing Date, of Latham & Watkins, counsel for the Company, to the
effect that:
(i) Based solely on certificates from public
officials, such counsel confirms that the Company is qualified
to do business in those jurisdictions set forth on Schedule A
hereto.
(ii) Except as described in the Prospectus, to such
counsel's knowledge, there are no outstanding options,
warrants or other rights calling for the issuance of, or any
commitment, plan or arrangement to issue, any shares of
capital stock of the Company or any security convertible into
or exchangeable or exercisable for any capital stock of the
Company.
(iii) Except as described in the Prospectus, to such
counsel's knowledge, there are no contracts, agreements or
understandings between the Company and any person granting
such person the right to require the Company to file a
registration statement under the Act with respect to any
securities of the Company owned or to be owned by such person
or to require the Company to include such securities in the
securities registered pursuant to the Registration Statement
or in any securities being registered pursuant to any other
registration statement filed by the Company under the Act.
(iv) No consent, approval, authorization or order of,
or filing with, any governmental agency or body or any court
is required to be obtained or made by the Company for the
consummation of the transactions contemplated by this
Agreement or the Company Agreements in connection with the
sale of the Offered Securities by
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the Company, except such as have been obtained and made under
the Act and such as may be required under state securities
laws; provided, however, that such counsel need not express an
opinion as to any consents, approvals, authorizations or
filings that may be required by the FCC or under the
Communications Act of 1934.
(v) The issuance and sale of the Offered Securities,
the Common Securities and the Debentures and the conversion of
the Debentures into Common Stock of the Company pursuant to
this Agreement and the Company Agreements have been duly
authorized and will not result in any violation by the Company
of any federal or New York statute, rule or regulation
applicable to the Company (other than federal or state
securities laws, which are specifically addressed elsewhere
therein), or in the breach of or a default under any of the
agreements filed as an exhibit to the Registration Statement
to which the Company or any of its subsidiaries is a party;
provided, however, that such counsel need not express an
opinion with respect to any requirements of the FCC or under
the Communications Act of 1934;
(vi) Upon due authorization, execution and delivery
by the Company, and the Trustee, the Indenture will be a
legally valid and binding agreement of the Company,
enforceable against the Company in accordance with its terms;
(vii) The Debentures, when executed and authenticated
in accordance with the terms of the Indenture and delivered
to, and paid for by, the Trust will be the legally valid and
binding obligations of the Company, enforceable against the
Company in accordance with its terms and will be entitled to
the benefits provided by the Indenture;
(viii) Upon due authorization, execution and delivery
in accordance with its terms by the Company and the Guarantee
Trustee, and upon due execution, authentication and delivery
of the Debentures and upon payment therefor, the Guarantee
will be a legally valid and binding obligation of the Company,
enforceable against the Company in accordance with its terms;
(ix) The Initial Registration Statement and the
Additional Registration Statement, if any, have become
effective under the Act, and, to the best of the knowledge of
such counsel, no stop order suspending the effectiveness of
the Registration Statement has been issued under the Act and
no proceedings for that purpose have been initiated or, to the
best of such counsel's knowledge, pending, contemplated or
threatened by the Commission; and any required filing of the
Prospectus pursuant to Rule 424(b) under the Act has been made
in accordance with Rule 430A under the Act;
(x) The Registration Statement and the Prospectus
comply as to form in all material respects with the
requirements for registration statements on Form S-1
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under the Act and the rules and regulations thereunder, it
being understood that such counsel need express no opinion as
to (A) the financial statements or other financial data
contained in the Registration Statements or the Prospectus or
(B) any requirements of the FCC or the Communications Act of
1934; and
(xi) The descriptions in the Registration Statements
and Prospectus of statutes, legal and governmental proceedings
and contracts and other documents are accurate and fairly
present the information required to be shown, other than the
description of the Pennsylvania Business Corporation Code, as
to which such counsel need not express an opinion, and, to the
best of such counsel's knowledge, there are no legal or
governmental proceedings required to be described in the
Registration Statement or the Prospectus which are not
described as required or of any contracts or documents of a
character required to be described in a Registration Statement
or the Prospectus or to be filed as exhibits to a Registration
Statement which are not described and filed as required.
(xii) Neither the Trust nor the Company is and, after
giving effect to the offering and sale of the Offered
Securities and the Debentures delivered on such Closing Date
and the application of the proceeds thereof as described in
the Registration Statement, will not be subject to
registration as an investment company under the Investment
Company Act.
Such counsel shall also indicate that no facts came to its
attention that caused it to believe that the Registration
Statement, at the time it became effective or on the Closing
Date, contained an untrue statement of fact or omitted to
state a material fact required to be stated therein or
necessary to make the statements therein (in the case of the
Prospectus, in light of the circumstances under which they
were made) not misleading, or that the Prospectus, as of its
date and the Closing Date contained an untrue statement of
fact or omitted to state a material fact required to be stated
therein or necessary to make the statements therein, in light
of the circumstances under which they were made, not
misleading.
The foregoing opinion may be limited to the federal securities
laws of the United States of America, the laws of the State of New
York, and counsel rendering the foregoing opinion may rely as to
questions of fact upon the representations of the Company set forth in
this Agreement and upon certificates of officers of the Company and of
government officials. In addition, counsel may state that it has made
no special inquiry or investigation in respect of opinions that are
rendered to the knowledge of such counsel.
(e) The Representatives shall have received an opinion, dated
such Closing Date, of Morris, Nichols, Arsht & Tunnell, special
Delaware counsel to the Trust and the Company, to the effect that:
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(i) The Trust has been duly created and is validly
existing as a business trust in good standing under the laws
of the State of Delaware. All filings required under the
Business Trust Act with respect to the creation and valid
existence of the Trust as a Delaware business trust have been
made. Under the Business Trust Act and the Declaration, the
Trust has all requisite business trust power and authority to
own its property and conduct its business as described in the
Prospectus.
(ii) Under the Business Trust Act and the
Declaration, the Trust has requisite business trust power and
authority to authorize, issue and sell the Offered Securities
and the Common Securities as contemplated by this Agreement,
the Common Securities Purchase Agreement, the Prospectus and
the Declaration and to execute, deliver and perform its
obligations under this Agreement and the Common Securities
Purchase Agreement.
(iii) The Offered Securities have been duly
authorized for issuance by the Declaration and, when issued,
executed, authenticated, delivered and paid for in accordance
with the terms of the Declaration and the terms of this
Agreement, will be fully paid and, subject to the limitation
set forth in paragraph (v) below, non-assessable undivided
beneficial interests in the assets of the Trust and will
entitle the holders thereof to the benefits of the Declaration
except to the extent that enforcement of the Declaration may
be limited by (a) bankruptcy, insolvency, receivership,
liquidation, fraudulent conveyance, reorganization, moratorium
and similar laws of general applicability relating to or
affecting creditors' rights and remedies, (b) general
principles of equity (regardless of whether considered and
applied in a proceeding in equity or at law), and (c)
considerations of public policy and the effect of applicable
law relating to fiduciary duties. Under the Declaration and
the Business Trust Act, the issuance of the Offered Securities
and the Common Securities is not subject to preemptive rights.
(iv) The Declaration is a legal, valid and binding
obligation of the Company, and is enforceable against the
Company in accordance with its terms, subject to the effect
upon the Declaration of (a) bankruptcy, insolvency,
receivership, liquidation, fraudulent conveyance,
reorganization, moratorium and similar laws of general
applicability relating to or affecting creditors' rights and
remedies, (b) general principles of equity (regardless of
whether considered and applied in a proceeding in equity or at
law), and (c) considerations of public policy and the effect
of applicable law relating to fiduciary duties.
(v) Each holder of Offered Securities, in such
capacity, will be entitled to the same limitation of personal
liability as that extended to stockholders of private
corporations for profit organized under the General
Corporation Law of the State of Delaware, provided, however,
we express no opinion with respect to the liability of any
holder of Offered Securities who is, was or may become a named
Trustee of the Trust. We note, however, that the holders of
the Offered Securities
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may be required to make payment or provide indemnity or
security as set forth in the Declaration.
(vi) Under the Declaration and the Business Trust
Act, the execution and delivery by the Trust of this Agreement
and the Common Securities Purchase Agreement, and the
performance of its obligations thereunder, have been duly
authorized by all necessary trust action on the part of the
Trust.
(vii) No consent, approval, authorization or order
of, or filing with, any governmental agency or body, or any
court, of the State of Delaware is required for the
performance of this Agreement, the Guarantee, the Declaration,
the Indenture, the Common Securities Purchase Agreement and
the Common Securities Guarantee Agreement, the issuance and
sale of the Offered Securities, the Common Securities and the
Debentures, the distribution of the Debentures pursuant to or
upon dissolution of the Trust in accordance with the
Declaration (other than dissolution pursuant to judicial order
or supervision) and the conversion of Debentures into Common
Stock of the Company.
(viii) The execution, delivery and performance of
this Agreement, the Guarantee, the Declaration, the Indenture,
the Common Securities Purchase Agreement and the Common
Securities Guarantee Agreement, the issuance and sale of the
Offered Securities, the Common Securities and the Debentures,
the distribution of the Debentures pursuant to or upon
dissolution of the Trust in accordance with the Declaration
(other than dissolution pursuant to judicial order or
supervision) and the conversion of Debentures into Common
Stock of the Company will not violate any statute or any rule,
regulation or, after due inquiry on the day immediately
preceding closing, limited to, and solely to the extent
disclosed thereupon, the court dockets for active cases in the
Court of Chancery of the State of Delaware in and for New
Castle County, Delaware, the Superior Court of the State of
Delaware in and for New Castle County, Delaware, and the
United States District Court sitting in the State of Delaware
(a "Court"), order of any governmental agency or body, or any
Court, of the State of Delaware having jurisdiction over the
Trust or any of its properties.
(ix) No Governmental Approval of the State of
Delaware that has not been obtained is required for the
execution, delivery and performance by the Trust of this
Agreement or the Common Securities Purchase Agreement, the
issuance and sale of the Offered Securities or the Common
Securities by the Trust, the exchange of the Debentures for
Offered Securities in accordance with the Declaration or the
purchase of the Debentures by the Trust.
(x) Neither the execution, delivery and performance
by the Trust of this Agreement and the Common Securities
Purchase Agreement, the issuance and sale of the Offered
Securities or the Common Securities by the Trust, the exchange
of the Debentures for Offered Securities in accordance with
the
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Declaration nor the purchase of the Debentures by the Trust
will (a) violate any of the provisions of the Declaration or
(b) result in a violation of the Business Trust Act or any
applicable law of the State of Delaware.
(f) The Representatives shall have received an opinion, dated
such Closing Date, of Morris, Nichols, Arsht & Tunnell, special
Delaware counsel to the Guarantee Trustee and Indenture Trustee and
Property Trustee, to the effect that:
(i) The Trustee is a banking corporation duly
incorporated and validly existing under the laws of the State
of Delaware.
(ii) The execution, delivery and performance by the
Property Trustee of the Amended and Restated Declaration of
Trust, the execution, delivery of performance by the Guarantee
Trustee of the Guarantee Agreement and the execution, delivery
and performance by the Indenture Trustee of the Indenture have
been duly authorized by all necessary corporate action on the
part of the Property Trustee, the Guarantee Trustee and the
Indenture Trustee, respectively. The Amended and Restated
Declaration of Trust, the Guarantee Agreement and the
Indenture have been duly executed and delivered by the
Property Trustee, the Guarantee Trustee and the Indenture
Trustee, respectively, and the Declaration constitutes the
legal, valid and binding obligation of the Property Trustee,
enforceable against the Property Trustee in accordance with
its terms, except as enforcement thereof may be limited by (a)
bankruptcy, insolvency, receivership, liquidation, fraudulent
conveyance, reorganization, moratorium and similar laws of
general applicability relating to or affecting creditors'
rights and remedies, (b) general principles of equity
(regardless of whether considered and applied in a proceeding
in equity or at law), and (c) considerations of public policy
and the effect of applicable law relating to fiduciary duties.
(iii) The execution, delivery and performance of the
Amended and Restated Declaration of Trust, the Guarantee
Agreement and the Indenture by the Property Trustee, the
Guarantee Trustee and the Indenture Trustee, respectively, do
not violate or constitute a breach of the Articles of
Organization or Bylaws of the Property Trustee, the Guarantee
Trustee or the Indenture Trustee, respectively, or the terms
of any indenture or other agreement or instrument actually
known to such counsel and to which the Property Trustee, the
Guarantee Trustee or the Indenture Trustee, respectively, is a
party or is bound or any judgment, order or decree actually
known to such counsel to be applicable to the Property
Trustee, the Guarantee Trustee or the Indenture Trustee,
respectively, of any court, regulatory body, administrative
agency, governmental body or arbitrator having jurisdiction
over the Property Trustee, the Guarantee Trustee or the
Indenture Trustee, respectively.
(iv) No consent, approval or authorization of, or
registration with or notice to any federal or Delaware state
banking authority is required for the
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execution, delivery or performance by the Property Trustee,
the Guarantee Trustee or the Indenture Trustee of the Amended
and Restated Declaration of Trust, the Guarantee Agreement and
the Indenture, respectively.
(g) The Representatives shall have received an opinion, dated
such Closing Date, of John C. Donlevie, General Counsel to the Company,
or such other counsel reasonably acceptable to the Underwriters, to the
effect that:
(i) The Company has been duly incorporated and is an
existing corporation in good standing under the laws of the
Commonwealth of Pennsylvania, with corporate power and
authority to own its properties and conduct its business as
described in the Prospectus.
(ii) The Company Common Stock to be issued upon
conversion of the Debentures have been duly authorized and
reserved for issuance upon such conversion, and when issued
upon such conversion in accordance with the terms and
conditions of the Indenture, will be validly issued, fully
paid and nonassessable and will conform to the description
thereof contained in the Prospectus; and the shareholders of
the Company have no preemptive rights with respect to the
Securities the Common Securities, the Debentures or the
Company Common Stock.
(iii) This Agreement, the Guarantee, the Declaration,
the Indenture, the Common Securities Purchase Agreement and
the Common Securities Guarantee Agreement have been duly
authorized, executed and delivered by the Company and are
enforceable against the Company in accordance with their
terms; the issuance and sale of the Offered Securities
pursuant to this Agreement will not result in the violation by
the Company of its Certificate of Incorporation or Bylaws, or
in a breach of or a default under any of the agreements filed
as an exhibit to the Registration Statement to which the
Company or any subsidiary is a party or by which the Company
or any such subsidiary is bound or to which any of the
properties of the Company or any such subsidiary is subject.
(iv) Each of the Company's subsidiaries has been duly
organized and is an entity validly existing and in good
standing under the laws of the state of its organization, with
full power and authority (corporate and other) to own its
properties and conduct its business as described in the
Prospectus; and each subsidiary is duly qualified to do
business as a foreign corporation, limited liability company
or business trust, as applicable, and in good standing in all
other jurisdictions in which its ownership or lease of
property or the conduct of its business requires such
qualification, except where the failure to be so qualified
would not have a Material Adverse Effect on the Company and
its subsidiaries taken as a whole.
(v) Except as set forth in the Prospectus, all of the
outstanding shares of capital stock of, or other ownership
interests in, each of the subsidiaries of the
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Company have been duly authorized and validly issued, are
fully paid and nonassessable and are owned of record and
beneficially by the Company or by a subsidiary of the Company,
and were not issued in violation of any preemptive rights,
rights of first refusal or other similar rights (in each case
created by statute or under any subsidiary's certificate of
incorporation or bylaws or any agreement to which any
subsidiary is a party of which we have knowledge); to such
counsel's knowledge, all such shares are owned by the Company,
free and clear of any security interest, claim, lien,
encumbrance or adverse interest of any nature, except liens
set forth in the Prospectus.
(vi) Except as described in the Prospectus, to such
counsel's knowledge, there are no outstanding options,
warrants or other rights calling for the issuance of, or any
commitment, plan or arrangement to issue, any shares of
capital stock of any subsidiary of the Company or any security
convertible into or exchangeable or exercisable for any
capital stock of any subsidiary of the Company.
(vii) The description in the Registration Statements
and Prospectus of the Pennsylvania Business Corporation Code
is accurate and fairly presents the information required to be
shown.
(viii) The Amended and Restated Asset Purchase
Agreement, dated August 20, 1999, by and among various
subsidiaries of Sinclair and the Company and the Asset
Purchase Agreement, dated August 20, 1999, by and among
various subsidiaries of Sinclair and the Company, have each
been duly authorized, executed and delivered by the Company
and each constitutes a validly and legally binding obligation
of the Company, each enforceable in accordance with its terms,
subject to bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium and similar laws of general
applicability relating to or affecting creditors' rights and
to general equity principles.
With respect to the information contained in opinions (iv), (v) and
(vi), such counsel may state that he has relied upon legal opinions
rendered to him in connection with the Offering by counsel familiar
with the capital structure of the Company's subsidiaries or with the
agreements in question, as the case may be. The foregoing opinion may
be limited to the laws of the Commonwealth of Pennsylvania and the
Pennsylvania Business Corporation Law of 1988, as amended, and, in the
case of opinion (viii), counsel may assume that the laws of Maryland,
which purports to be the governing law of the agreements discussed in
opinion (viii), are consistent with the laws of the Commonwealth of
Pennsylvania, and counsel rendering the foregoing opinion may rely as
to questions of fact upon the representations of the Company set forth
in this Agreement and upon certificates of officers of the Company and
of government officials. In addition, counsel may state that he has
made no special inquiry or investigation in respect of opinions that
are rendered to the knowledge of such counsel.
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(h) The Representatives shall have received an opinion, dated such
Closing Date, of Leventhal, Senter & Lerman PLLC, FCC counsel for the Company,
to the effect that:
(i) The issuance and sale of the Offered Securities
by the Company in accordance with this Agreement does not
require FCC approval assuming that, in connection therewith,
(i) Joseph M. Field continues to hold in his own name and
exercise voting control of the voting securities of the
Company representing majority voting control of the Company;
(ii) each purchaser of the Offered Securities is qualified
under the Communications Laws to hold such interest; and (iii)
not more than 25% of the capital stock of the Company in the
aggregate will be owned by foreign governments, alien
individuals or entities, or representatives thereof.
(ii) The execution and delivery by the Company of
this Agreement and the issuance and sale of the Offered
Securities by the Company in accordance with this Agreement
does not constitute a violation by the Company of the
Communications Act of 1934, as amended, and the regulations
promulgated thereunder (the "Communications Laws") assuming
that, in connection therewith: (i) Joseph M. Field continues
to hold in his own name and exercise voting control of the
voting securities of the Company representing majority voting
control of the Company; (ii) each purchaser of the Offered
Securities is qualified under the Communications Laws to hold
such interest; and (iii) not more than 25% of the capital
stock of the Company in the aggregate will be owned by foreign
governments, alien individuals or entities, or representatives
thereof.
(iii) The entities listed on Exhibit A attached to
such opinion (the "Licensees") hold the respective FCC
Licenses listed thereon. Such FCC Licenses are in full force
and effect, except as noted on Exhibit A. As used herein,
"full force and effect" means that, to the knowledge of such
counsel, the orders issuing the FCC Licenses have become
effective, no stay of the effectiveness of such orders has
been issued by the FCC, and the FCC Licenses have not been
invalidated by any subsequent published FCC action.
(iv) To the knowledge of such counsel, except for
those disclosed in this Agreement, the Registration Statement
or on Exhibit B attached to such opinion, and except for
proceedings affecting the radio broadcasting industry
generally, there are no proceedings pending or threatened in
writing under the Communications Laws against the Company, the
Licensees or the stations by or before the FCC or before any
court having jurisdiction of matters under the Communications
Laws which seek the revocation, non-renewal, or material
adverse modification of any of the FCC Licenses.
(v) The FCC Statements (which include the statements
of the Company in the Registration Statements under the
captions "Risk Factors -- We must respond to
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rapid changes in technology, services and standards that
characterize our industry in order to remain competitive,"
"Risk Factors -- We are dependent on federally-issued licenses
to operate our radio stations and are subject to extensive
federal regulation," Business -- Federal Regulation of Radio
Broadcasting," "Business -- Competition; Changes in
Broadcasting Industry" and "Description of Capital Stock -
Foreign Ownership"), insofar as they constitute summaries of
the Communications Laws and material proceedings thereunder
are accurate, and fairly present the information set forth
therein in all material respects.
(vi) Such counsel has no reason to believe that the
Registration Statement and the Prospectus or any amendment or
supplement thereto, as of its issue date or as of the date
hereof, solely with respect to statements relating to federal
broadcast communications law or legal conclusions with respect
to federal broadcast communications law, contains any untrue
statement of a material fact or omits to state any material
fact necessary in order to make such statements or
conclusions, in light of the circumstances under which they
were made, not misleading.
(i) The Representatives shall have received from Weil, Gotshal
& Manges LLP, counsel for the Underwriters, such opinion or opinions,
dated such Closing Date, with respect to the Registration Statements,
the Prospectus and other related matters as the Representatives may
reasonably require, and the Company shall have furnished to such
counsel such documents as they request for the purpose of enabling them
to pass upon such matters.
(j) The Representatives shall have received a certificate,
dated such Closing Date, of the President or any Vice President and a
principal financial or accounting officer of the Company and an
Administrative Trustee of the Trust in which such officers and trustee,
to the best of their knowledge after reasonable investigation, shall
state that: the representations and warranties of the Company and the
Trust in this Agreement are true and correct as though made on such
Closing Date; the Company and the Trust have complied with all
agreements and satisfied all conditions on its part to be performed or
satisfied hereunder at or prior to such Closing Date; no stop order
suspending the effectiveness of any Registration Statement has been
issued and no proceedings for that purpose have been instituted or are
contemplated by the Commission; the Additional Registration Statement
(if any) satisfying the requirements of subparagraphs (1) and (3) of
Rule 462(b) was filed pursuant to Rule 462(b), including payment of the
applicable filing fee in accordance with Rule 111(a) or (b) under the
Act, prior to the time the Prospectus was printed and distributed to
any Underwriter; and, subsequent to the date of the most recent
financial statements in the Prospectus, there has been no material
adverse change, nor any development or event involving a prospective
material adverse change, in the condition (financial or other),
business, properties or results of operations of the Company and its
subsidiaries taken as a whole or of the Trust except as set forth in or
contemplated by the Prospectus or as described in such certificate.
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(k) The Representatives shall have received letters, dated
such Closing Date, of Deloitte & Touche LLP and Arthur Andersen LLP
which meet the requirements of subsection (a) of this Section, except
that the specified date referred to in such subsection will be a date
not more than three business days prior to such Closing Date for the
purposes of this subsection.
The Company will furnish the Representatives with such conformed copies of such
opinions, certificates, letters and documents as the Representatives reasonably
request. CSFBC may in its sole discretion waive on behalf of the Underwriters
compliance with any conditions to the obligations of the Underwriters hereunder.
7. Indemnification and Contribution. (a) The Trust and the
Company will indemnify and hold harmless each Underwriter, its partners,
directors and officers and each person, if any, who controls such Underwriter
within the meaning of Section 15 of the Act against any losses, claims, damages
or liabilities, joint or several, to which such Underwriter may become subject,
under the Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon any
untrue statement or alleged untrue statement of any material fact contained in
any Registration Statement, the Prospectus, or any amendment or supplement
thereto, or any related preliminary prospectus, or arise out of or are based
upon the omission or alleged omission to state therein a material fact required
to be stated therein or necessary to make the statements therein (in the case of
the Prospectus, in light of the circumstances under which they were made) not
misleading, and will reimburse each Underwriter for any legal or other expenses
reasonably incurred by such Underwriter in connection with investigating or
defending any such loss, claim, damage, liability or action as such expenses are
incurred; provided, however, that the Trust and the Company will not be liable
in any such case to the extent that any such loss, claim, damage or liability
arises out of or is based upon an untrue statement or alleged untrue statement
in or omission or alleged omission from any of such documents in reliance upon
and in conformity with written information furnished to the Trust and the
Company by any Underwriter through the Representatives specifically for use
therein, it being understood and agreed that the only such information furnished
by any Underwriter consists of the information described as such in subsection
(b) below, and provided, further, that with respect to any untrue statement or
alleged untrue statement in or omission or alleged omission from any preliminary
prospectus, the indemnity agreement contained in this subsection (a) shall not
inure to the benefit of any Underwriter from whom the person asserting any such
losses, claims, damages or liabilities purchased the Offered Securities
concerned, to the extent that a prospectus relating to such Offered Securities
was required to be delivered by such Underwriter under the Act in connection
with such purchase and any such loss, claim, damage or liability of such
Underwriter results from the fact that there was not sent or given to such
person, at or prior to the written confirmation of the sale of such Offered
Securities to such person, a copy of the Prospectus if the Company has
previously furnished such quantity of copies thereof to such Underwriter.
(b) Each Underwriter will severally and not jointly indemnify and hold
harmless the Trust and the Company, its directors and officers and each person,
if any, who controls the Company within the meaning of Section 15 of the Act
against any losses, claims, damages or liabilities to
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29
which the Company may become subject, under the Act or otherwise, insofar as
such losses, claims, damages or liabilities (or actions in respect thereof)
arise out of or are based upon any untrue statement or alleged untrue statement
of any material fact contained in any Registration Statement, the Prospectus, or
any amendment or supplement thereto, or any related preliminary prospectus, or
arise out of or are based upon the omission or the alleged omission to state
therein a material fact required to be stated therein or necessary to make the
statements therein not misleading, in each case to the extent, but only to the
extent, that such untrue statement or alleged untrue statement or omission or
alleged omission was made in reliance upon and in conformity with written
information furnished to the Trust and the Company by such Underwriter through
the Representatives specifically for use therein, and will reimburse any legal
or other expenses reasonably incurred by the Trust and the Company in connection
with investigating or defending any such loss, claim, damage, liability or
action as such expenses are incurred, it being understood and agreed that the
only such information furnished by any Underwriter consists of the following
information in the Prospectus furnished on behalf of each Underwriter: the
over-allotment and stabilization information contained in the last paragraph
under the caption "Underwriting" and the concession and reallowance figures
appearing in the fourth paragraph under the caption "Underwriting."
(c) Promptly after receipt by an indemnified party under this Section
of notice of the commencement of any action, such indemnified party will, if a
claim in respect thereof is to be made against an indemnifying party under
subsection (a) or (b) above, notify the indemnifying party of the commencement
thereof; but the omission so to notify the indemnifying party will not relieve
it from any liability which it may have to any indemnified party otherwise than
under subsection (a) or (b) above. In case any such action is brought against
any indemnified party and it notifies an indemnifying party of the commencement
thereof, the indemnifying party will be entitled to participate therein and, to
the extent that it may wish, jointly with any other indemnifying party similarly
notified, to assume the defense thereof, with counsel satisfactory to such
indemnified party (who shall not, except with the consent of the indemnified
party, be counsel to the indemnifying party), and after notice from the
indemnifying party to such indemnified party of its election so to assume the
defense thereof, the indemnifying party will not be liable to such indemnified
party under this Section for any legal or other expenses subsequently incurred
by such indemnified party in connection with the defense thereof other than
reasonable costs of investigation. No indemnifying party shall, without the
prior written consent of the indemnified party, effect any settlement of any
pending or threatened action in respect of which any indemnified party is or
could have been a party and indemnity could have been sought hereunder by such
indemnified party unless such settlement (i) includes an unconditional release
of such indemnified party from all liability on any claims that are the subject
matter of such action and (ii) does not include a statement as to, or an
admission of, fault, culpability or a failure to act by or on behalf of an
indemnified party.
(d) If the indemnification provided for in this Section is unavailable
or insufficient to hold harmless an indemnified party under subsection (a) or
(b) above, then each indemnifying party shall contribute to the amount paid or
payable by such indemnified party as a result of the losses, claims, damages or
liabilities referred to in subsection (a) or (b) above (i) in such proportion as
is
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appropriate to reflect the relative benefits received by the Company on the one
hand and the Underwriters on the other from the offering of the Offered
Securities or (ii) if the allocation provided by clause (i) above is not
permitted by applicable law, in such proportion as is appropriate to reflect not
only the relative benefits referred to in clause (i) above but also the relative
fault of the Trust and the Company on the one hand and the Underwriters on the
other in connection with the statements or omissions which resulted in such
losses, claims, damages or liabilities as well as any other relevant equitable
considerations. The relative benefits received by the Trust and the Company on
the one hand and the Underwriters on the other shall be deemed to be in the same
proportion as the total net proceeds from the offering (before deducting
expenses) received by the Trust and the Company bear to the total underwriting
discounts and commissions received by the Underwriters. The relative fault shall
be determined by reference to, among other things, whether the untrue or alleged
untrue statement of a material fact or the omission or alleged omission to state
a material fact relates to information supplied by the Trust and the Company or
the Underwriters and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such untrue statement or
omission. The amount paid by an indemnified party as a result of the losses,
claims, damages or liabilities referred to in the first sentence of this
subsection (d) shall be deemed to include any legal or other expenses reasonably
incurred by such indemnified party in connection with investigating or defending
any action or claim which is the subject of this subsection (d). Notwithstanding
the provisions of this subsection (d), no Underwriter shall be required to
contribute any amount in excess of the amount by which the total price at which
the Offered Securities underwritten by it and distributed to the public were
offered to the public exceeds the amount of any damages which such Underwriter
has otherwise been required to pay by reason of such untrue or alleged untrue
statement or omission or alleged omission. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Act) shall be
entitled to contribution from any person who was not guilty of such fraudulent
misrepresentation. The Underwriters' obligations in this subsection (d) to
contribute are several in proportion to their respective underwriting
obligations and not joint.
(e) The obligations of the Trust and the Company under this Section
shall be in addition to any liability which the Trust and the Company may
otherwise have and shall extend, upon the same terms and conditions, to each
person, if any, who controls any Underwriter within the meaning of the Act; and
the obligations of the Underwriters under this Section shall be in addition to
any liability which the respective Underwriters may otherwise have and shall
extend, upon the same terms and conditions, to each director of the Company, to
each officer of the Company who has signed a Registration Statement and to each
person, if any, who controls the Trust and the Company within the meaning of the
Act.
8. Default of Underwriters. If any Underwriter or Underwriters default
in their obligations to purchase Offered Securities hereunder on either the
First or any Optional Closing Date and the aggregate principal amount of Offered
Securities that such defaulting Underwriter or Underwriters agreed but failed to
purchase does not exceed 10% of the total principal amount of Offered Securities
that the Underwriters are obligated to purchase on such Closing Date, CSFBC may
make arrangements satisfactory to the Trust and the Company for the purchase of
such Offered Securities by other persons, including any of the Underwriters, but
if no such arrangements are made by such
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Closing Date, the non-defaulting Underwriters shall be obligated severally, in
proportion to their respective commitments hereunder, to purchase the Offered
Securities that such defaulting Underwriters agreed but failed to purchase on
such Closing Date. If any Underwriter or Underwriters so default and the
aggregate principal amount of Offered Securities with respect to which such
default or defaults occur exceeds 10% of the total principal amount of Offered
Securities that the Underwriters are obligated to purchase on such Closing Date
and arrangements satisfactory to CSFBC, the Trust and the Company for the
purchase of such Offered Securities by other persons are not made within 36
hours after such default, this Agreement will terminate without liability on the
part of any non-defaulting Underwriter and the Company, except as provided in
Section 9. As used in this Agreement, the term "Underwriter" includes any person
substituted for an Underwriter under this Section. Nothing herein will relieve a
defaulting Underwriter from liability for its default.
9. Survival of Certain Representations and Obligations. The respective
indemnities, agreements, representations, warranties and other statements of the
Trust and the Company or their officers and of the several Underwriters set
forth in or made pursuant to this Agreement will remain in full force and
effect, regardless of any investigation, or statement as to the results thereof,
made by or on behalf of any Underwriter, the Trust, the Company or any of their
respective representatives, officers or directors or any controlling person, and
will survive delivery of and payment for the Offered Securities. If this
Agreement is terminated pursuant to Section 8 or if for any reason the purchase
of the Offered Securities by the Underwriters is not consummated, the Company
shall remain responsible for the expenses to be paid or reimbursed by it
pursuant to Section 5(j) and the respective obligations of the Trust and the
Company and the Underwriters pursuant to Section 7 shall remain in effect, and
if any Offered Securities have been purchased hereunder the representations and
warranties in Section 2 and all obligations under Section 5 shall also remain in
effect. If the purchase of the Offered Securities by the Underwriters is not
consummated for any reason other than solely because of the termination of this
Agreement pursuant to Section 8 or the occurrence of any event specified in
clause (iii), (iv) or (v) of Section 6(c), the Trust and the Company will
reimburse the Underwriters for all out-of-pocket expenses (including fees and
disbursements of counsel) reasonably incurred by them in connection with the
offering of the Offered Securities.
10. Notices. All communications hereunder will be in writing and, if
sent to the Underwriters, will be mailed, delivered or telegraphed and confirmed
to the Representatives, c/o Credit Suisse First Boston Corporation, Eleven
Madison Avenue, New York, N.Y. 10010-3629, Attention: Investment Banking
Department - Transactions Advisory Group, or, if sent to the Trust or the
Company, will be mailed, delivered or telegraphed and confirmed to it at 401
City Avenue, Suite 409, Bala Cynwyd, Pennsylvania 19004, Attention: John C.
Donlevie, Esq.; provided, however, that any notice to an Underwriter pursuant to
Section 7 will be mailed, delivered or telegraphed and confirmed to such
Underwriter.
11. Successors. This Agreement will inure to the benefit of and be
binding upon the parties hereto and their respective successors and the officers
and directors and controlling persons referred to in Section 7, and no other
person will have any right or obligation hereunder.
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12. Representation. The Representatives will act for the several
Underwriters in connection with the transactions contemplated by this Agreement,
and any action under this Agreement taken by the Representatives jointly or by
CSFBC will be binding upon all the Underwriters.
13. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original, but all such
counterparts shall together constitute one and the same Agreement.
14. APPLICABLE LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED
IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO
PRINCIPLES OF CONFLICTS OF LAWS.
Each of the Trust and the Company hereby submits to the non-exclusive
jurisdiction of the Federal and state courts in the Borough of Manhattan in The
City of New York in any suit or proceeding arising out of or relating to this
Agreement or the transactions contemplated hereby.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
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If the foregoing is in accordance with the Representatives'
understanding of our agreement, kindly sign and return to the Company one of the
counterparts hereof, whereupon it will become a binding agreement between the
Trust, the Company and the several Underwriters in accordance with its terms.
Very truly yours,
ENTERCOM COMMUNICATIONS CAPITAL TRUST
By: ______________________________________
Name: ____________________________________
solely in his capacity as trustee and
not in his individual capacity
ENTERCOM COMMUNICATIONS CORP.
By: ______________________________________
Name: ____________________________________
Title: ___________________________________
The foregoing Underwriting Agreement is
hereby confirmed and accepted as of the
date and effective time first above written.
CREDIT SUISSE FIRST BOSTON CORPORATION
BANC OF AMERICA SECURITIES LLC
DEUTSCHE BANK SECURITIES INC.
Acting on behalf of themselves and as
the Representatives of the several
Underwriters.
By: CREDIT SUISSE FIRST BOSTON CORPORATION
By: _________________________________
Name: _______________________________
Title: ______________________________
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SCHEDULE A
UNDERWRITER TOTAL NUMBER OF
FIRM SECURITIES TO
BE
PURCHASED
---------
Credit Suisse First Boston Corporation.....................
Banc of America Securities LLC.............................
Deutsche Bank Securities Inc...............................
---------
Total....................................................................... 3,000,000
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