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Home My WebLink About94-00268 . i 4l ~ ~ d I '. -+- ~ d .... ~ ~ -! .. ~ . . :;) ~ - ~ ....:t, c-v " , Attorneys for Plaintiff PHILADELPHIA NATIONAL BANK, incorporated as CORESTATES BANK, N.A., in its capacity as agent for Philadelphia National Bank and Hamilton Bank BLANK, ROME, COMISKY & McCAULEY BY: ALAN C. GERSHENSON, ESQUIRE IDENTIFICATION NO. 09925 BY: STEVEN M. MILLER, ESQUIRE IDENTIFICATION NO. 50862 1200 Four Penn Center Plaza Philadelphia, PA 19103 (215) 569-5500 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW PHILADELPHIA NATIONAL BANK, incorporated as CORESTATES BANK, N.A., in its capacity as agent for Philadelphia National Bank and Hamilton Bank Centre Square West 1500 Market street Philadelphia, PA 19102 v. GEMINI BROADCASTING CORPORATION 360 Poplar Church Road Wormleysburg, PA 17011 NOTICB NO. ~ ~ 8 Civ/' J t9'iY . . . . . . Please take notice that a JUDGMENT BY CONFESSION has been entered against you in the above proceeding and enclosed herewith are copies of documents filed in support of the judgment. IF YOU HAVE ANY QUESTIONS CONCERNING THIS NOTICE, PLEASE CALL ALAN c. GERSHENSON, ESQUIRE AT (215) 569-5603. BLANK, ROME, COMISKY & McCAULEY DATED: January If, 1994 By: ,n.A ~~~- LAN c.' RSHENSON STEVEN M. MILLER Attorneys for plaintiff PHILADELPHIA NATIONAL BANK, incorporated as CORESTATES BANK, N.A., in its capacity as agent for Philadelphia National Bank and Hamilton Bank ...- ~.~~" . .'i BLANK, ROKE, COMISKY & McCAULEY BY: ALAN C. GERSHENSON, ESQUIRE IDENTIFICATION NO. 09925 BY: STEVEN M. MILLER, ESQUIRE IDENTIFICATION NO. 50862 1200 Four Penn Center Plaza Philadelphia, PA 19103 (215) 569-5500 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW Attorneys for Defendant GEMINI BROADCASTING CORPORATION . . PHILADELPHIA NATIONAL BANK, . . incorporated as CORESTATES : BANK, M.A., in its capacity as . . agent for Philadelphia National : Bank and Hamilton Bank . . Centre Square West . . 1500 Market street : Philadelphia, PA 19102 . . : v. . NO. J,lo~ C. /99'/ . : GEMINI BROADCASTING CORPORATION . . 360 Poplar Church Road . . Wormleysburg, PA 17011 . . . . ENTRY 01' APPBARANCB TO THE PROTHONOTARY: Pursuant to the authority contained in the Warrants of Attorney set forth in the Term Note and Revolving Credit Note both dated October 13, 1989, true and correct copies of which are attached as EXhibits "B" and "E", respectively, to the Complaint filed in this action, please enter our appearance for Defendant Gemini Broadcasting Corporation on whose behalf we appear to confess judgment in the sum of $3,723,879.03. BLANK, ROME, COMISKY & McCAULEY DATED: January IY, 1994 By: () ~ ;j)~<> k-14t.el- ALAN C. GERSHENSON STEVEN M. MILLER Attorneys for Defendant GEMINI BROADCASTING CORPORATION . ~ Attorneys for Plaintiff PHILADELPHIA NATIONAL BANK, incorporated as CORESTATES BANK, N.A., in its capacity as agent for Philadelphia National Bank and Hamilton Bank BLANK, ROME, COMISKY & McCAULEY BY: ALAN C. GERSHENSON, ESQUIRE IDENTIFICATION NO. 09925 BY: STEVEN M. MILLER, ESQUIRE IDENTIFICATION NO. 50862 1200 Four Penn Center Plaza Philadelphia, PA 19103 (215) 569-5500 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW PHILADELPHIA NATIONAL BANK, incorporated as CORES TATES BANK, N.A., in its capacity as agent for Philadelphia National Bank and Hamilton Bank Centre Square West 1500 Market Street Philadelphia, PA 19102 v. GEMINI BROADCASTING CORPORATION 360 Poplar Church Road Wormleysburg, PA 17011 . . . . . . . . . . . . : . . . . : NO. ~(o 8 ( Iqq if : . . : . . . . . . ENTRY OF APPEARANCE TO THE PROTHONOTARY: Please enter our appearance on behalf of Plaintiff Philadel- phia National Bank, incorporated as CoreStates Bank, N.A., in its capacity as agent for Philadelphia National Bank and Hamilton Bank, and enter judgment for Plaintiff and against Defendant Gemini Broadcasting corporation for damages. BLANK, ROME, COMISKY & McCAULEY 1/ DATED: January ~, 1994 By: ~ J1A.r;/';~W-~ ALAN C. GERSHENSON STEVEN M. MILLER Attorneys for Plaintiff PHILADELPHIA NATIONAL BANK, incorporated as CORESTATES BANK, N.A., in its capacity as agent for Philadelphia National Bank and Hamilton Bank . II BLANK, ROME, COMISKY & McCAULEY BY: ALAN C. GERSHENSON, ESQUIRE IDENTIFICATION NO. 09925 BY: STEVEN M. MILLER, ESQUIRE IDENTIFICATION NO. 50862 1200 Four Penn Center Plaza Philadelphia, PA 19103 (215) 569-5500 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW Attorneys for Plaintiff PHILADELPHIA NATIONAL BANK, incorporated as CORESTATES BANK, N.A., in its capacity as agent for Philadelphia National Bank and Hamilton Bank PHILADELPHIA NATIONAL BANK, incorporated as CORESTATES BANK, N.A., in its capacity as agent for Philadelphia National Bank and Hamilton Bank Centre Square West 1500 Market Street Philadelphia, PA 19102 v. NO. GEMINI BROADCASTING CORPORATION 360 Poplar Church Road Wormleysburg, PA 17011 CERTIFICATION OF ADDRESSES DON D. MISHLER hereby certifies that he is a Vice President of Philadelphia National Bank, incorporated as CoreStates Bank, N.A.; that the present address of Plaintiff Philadelphia National Bank, incorporated as CoreStates Bank, N,A., in its capacity as agent for Philadelphia National Bank and Hamilton Bank, is Centre Square West, 1500 Market Street, Philadelphia, PA 19102; and, that the last known address of Defendant Gemini Broadcasting Corporation is 360 Poplar Church Road, Wormleysburg, PA 17011. DATED: January ~, 1994 /--J .~ -^. ----1 " '--:pt\ 1/ . .. UV\.. DON D. MISH ER BLANK, ROME, COMISKY & McCAULEY BY: ALAN C. GERSHENSON, ESQUIRE IDENTIFICATION NO. 09925 BY: STEVEN M. MILLER, ESQUIRE IDENTIFICATION NO. 50862 1200 Four Penn Center Plaza Philadelphia, PA 19103 (215) 569-5500 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW CONJ'BSSrON OJ' JUDGMBNT J'OR DAKAGBS Pursuant to the authority contained in the Warrants of Attorney set forth in the Term Note and Revolving Credit Note both dated October 13, 1989, true and correct copies of which are attached as Exhibits "B" and "E", respectively, to the Complaint filed in this action, we appear for Defendant Gemini Broadcasting Corporation and confess judgment in favor of Plaintiff Philadelphia National Bank, incorporated as CoreStates Bank, N .A. , in its capacity as agent for Philadelphia National Bank and Hamilton < ... PHILADELPHIA NATIONAL BANK, incorporated as CORESTATES BANK, N.A., in its capacity as agent for Philadelphia National Bank and Hamilton Bank Centre Square West 1500 Market Street Philadelphia, PA 19102 v. GEMINI BROADCASTING CORPORATION 360 Poplar Church Road Wormleysburg, PA 17011 Attorneys for Defendant GEMINI BROADCASTING CORPORATION . . . . . . : . . : . . . . . . . . . . . . . . c. /qqLj NO. ~ to g . . . . . . . .. Bank, and against Defendant Gemini Broadcasting Corporation as follows: Amounts Due Pursuant To The Term Note: Principal Due: $2,470,000.00 Interest Due and Unpaid through Jan. 6, 1994: $ 599,262.78 Reasonable Collection Fees pursuant to the Note: S 32.532.84 Subtotal: $3,101,795.62 Amounts Due Pursuant To The Revolvina Credit Note: Principal Due: Interest Due and Unpaid through Jan. 6, 1994: Subtotal: $ 500,000.00 $ 122,083.41 $ 622,083.41 ==-=====----- TOTAL: $3.723..879.03 BLANK, ROME, COMISKY & McCAULEY DATED: Januaryl2L, 1994 By: f26.~ :k/hlturv- ALAN C. GERSHENSON STEVEN M. MILLER Attorneys for Defendant GEMINI BROADCASTING CORPORATION -2- ,~~",'., ., BLANK, ROME, COMISKY & McCAULEY BY: ALAN C. GERSHENSON, ESQUIRE IDENTIFICATION NO. 09925 BY: STEVEN M. MILLER, ESQUIRE IDENTIFICATION NO. 50862 1200 Four Penn Center Plaza Philadelphia, PA 19103 (215) 569-5500 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW Attorneys for Plaintiff PHILADELPHIA NATIONAL BANK, incorporated as CORESTATES BANK, N.A., in its capacity as agent for Philadelphia National Bank and Hamilton Bank . . PHILADELPHIA NATIONAL BANK, . . incorporated as CORESTATES . . BANK, N.A., in its capacity as . . agent for Philadelphia National . . 8ank and Hamilton Bank . . Centre Square West . . 1500 Market Street . . Philadelphia, PA 19102 . . . . v. . NO. Jto8' c. /99'1 . . . GEMINI BROADCASTING CORPORATION : 360 Poplar Church Road . . Worm1eysburg, PA 17011 . . . . PRAECIPE POR ASSESSMENT OP DAMAGES TO THE PROTHONOTARY: Please assess damages now due on the judgment in this action against Defendant Gemini Broadcasting Corporation as follows: Amounts Due Pursuant To The Term Note: Principal Due: $2,470,000.00 Interest Due and Unpaid through Jan. 6, 1994: $ 599,262.78 Reasonable Collection Fees pursuant to the Note: S 32.532.84 Subtotal: $3,101,795.62 Amounts Due Pursuant To The Revolvina credit Note: Principal Due: Interest Due and Unpaid through Jan. 6, 1994: Subtotal: $ 500,000.00 $ 122,083.41 $ 622,083.41 _a=-aD__.".__ TOTAL: $3.723.879.03 BLANK, ROME, COMISKY & McCAULEY DATED: January ~ 1994 CU~Ji<4t~ ALAN C. "GERSHENSON STEVEN M. MILLER Attorneys for Plaintiff PHILADELPHIA NATIONAL BANK, incorporated as CORESTATES BANK, N.A., in its capacity as agent for Philadelphia National Bank and Hamilton Bank By: JUDGMENT AND ASSBSSMENT OP DAMAGBS I assess damages as above and judgment is entered for Plaintiff Philadelphia National Bank, incorporated as CoreStates Bank, N.A., in its capacity as agent for Philadelphia National Bank and Hamilton Bank, and against Defendant Gemini Broadcasting Corporation in the amount of $3,723,879.03. PROTHONOTARY OF CUMBERLAND COUNTY DATED: I J. I 'tl/ ~ /J/ .MlW!.LIU'c , t lU LP k...c lit) -4- . . BLANK, ROME, COMISKY , McCAULEY BY: ALAN C. GERSHENSON, ESQUIRE IDENTIFICATION NO. 09925 BY: STEVEN M. MILLER, ESQUIRE IDENTIFICATION NO. 50862 1200 Four Penn Center Plaza Philadelphia, PA 19103 (215) 569-5500 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW Attorneys for Plaintiff PHILADELPHIA NATIONAL BANK, incorporated as CORESTATES BANK, N.A., in its capacity as agent for Philadelphia National Bank and Hamilton Bank . . PHILADELPHIA NATIONAL BANK, . . incorporated as CORESTATES . . BANK, N.A., in its capacity as . . agent for Philadelphia National . . Bank and Hamilton Bank . . Centre Square West . . 1500 Market Street . . Philadelphia, PA 19102 . . . . /99'1 v. . NO. J&,<? c.. . . . GEMINI BROADCASTING CORPORATION . . 360 Poplar Church Road . . Wormleysburg, PA 17011 . . : COMPLAIIIT roa JUDGMBIIT BY CONPBSSION PURSUANT TO Pa. a.c.p. 2951. BT SBO. 1. Plaintiff Philadelphia National Bank, incorporated as CoreStates Bank, N.A. ("CoreStates"), in its capacity as agent for Philadelphia National Bank and Hamilton Bank, is a national banking association with a place of business at Centre Square West, 1500 Market street, Philadelphia, PA 19102. 2. Defendant Gemini Broadcasting Corporation ("Gemini") is a Pennsylvania corporation with a last known address at 360 Poplar Church Road, Wormleysburg, PA 17011. . '0 3. On october 13, 1989, Gemini executed a Loan and security Agreement (the "Agreement") in favor of eorestates (as successor to Philadelphia National Bank) and Hamilton Bank (collectivelY, the "Banks"). Pursuant to Article 9 of the Agreement, the Banks designated Core states as their agent, and authorized them to take such action on their behalf under the provisions of the Agreement and the loans referred to in Article 2 of the Agreement. A true and correct copy of the Agreement is attached hereto as Exhibit "A" and is made part hereof. COUNT I 4. paragraphs 1 through 3 are incorporated by reference as if fully set forth herein. 5. Gemini executed a Term Note dated October 13, 1989 (the "Term Note") in favor of the Banks in the original principal amount of $2,500,000.00. A true and correct copy of the Term Note, which contains the warrant of Attorney upon which judgment is confessed, is attached hereto as Exhibit "B" and is made part hereof. 6. The obligations of the Term Note are secured by a Mortgage dated october 13, 1989 (the "Mortgage") executed by the Banks in favor of eorestates which was recorded by the Cumberland county Recorder of Deed's Office in Mortgage Book 955, Page 518. A true and correct copy of the Mortgage is attached hereto as Exhibit "e" and is made part hereof. 7. The real property which is the subject of the Mortgage is located at 360 poplar Church Road, Wormleysburg, pennsylvania (the -2- principal Due: $2,470,000.00 . "Mortgaged property") and is more specificallY described in the legal description attached to the Mortgage. 8. corestates, in its capacity as agent for the Banks, sent a demand letter dated December 6, 1993 (the "Demand Letter") to Gemini by certified mail, return receipt requested wherein they demanded payment of all of the liabilities and the obligations of Gemini. A true and correct copy of the Demand Letter is attached hereto as Exhibit "D" and is made part hereof. 9. Gemini has defaulted in its obligations pursuant to the Term Note by failing to make payments of principal and interest due thereunder since July 26, 1993. 10. Pursuant to the Agreement and Term Note and by reason of Gemini's default, the following amounts are currently due and owing the Banks by Gemini: Interest Due and Unpaid through Jan. 6, 1994: $ 599,262.78 Reasonable Collection Fees pursuant to the Note: $ 32.532.84 TOTAL: $3,101,795.62 Interest accrues at the per diem rate of $609.04 for each day after January 6, 1994 that this indebtedness remains unpaid. In the event that a petition to open or strike this judgment is filed, the Banks reserve the right to have interest and attorneys' fees brought current. -3- . 11. There has Deen no assignment of the Term Note; however, by merqer, Corestates is the successor to Philadelphia National Bank's interests under the Term Note. 12. Judqment has not been entered on the Term Note in any jurisdiction. 13. Pursuant to the Term Note, $3,101,795.62 is currently due and owinq the Banks from Gemini, and Gemini has failed to pay the amount due. WHEREFORE, Philadelphia National Bank, incorporated as Corestates Bank, N.A., in its capacity as aqent for Philadelphia National Bank and Hamilton Bank, requests that judqment be entered in its favor and aqainst Gemini Broadcastinq Corporation in the sum of $3,101,795.62 and costs of suit. COUNT :n: 14. Paraqraphs 1 throuqh 13 are incorporated as if fully set forth herein. 15. Gemini executed a Revolvinq Credit Note dated October 13, 1989 (the "Credit Note") in favor of the Banks in the criqinal principal amount of $500,000.00. A true and correct copy of the Credit Note, which contains the Warrant of Attorney upon which judqment is confessed, is attached hereto as Exhibit "E" and is made part hereof. 16. The obliqations of the Credit Note are secured by a Mortgaqe dated October 13, 1989 (the "Mortqage") executed by the Banks in favor of Corestates which was recorded by the cumberland County Recorder of Deed's Office in Mortqaqe Book 955, Page 518. -4- .....~~:-~- A true and correct copy of the Mortgage is attached hereto as Exhibit "C" and is made part hereof. 17. The real property which is the subj ect of the Mortgage is located at 360 poplar Church Road, Wormleysburg, Pennsylvania (the "Mortgaged Property") and is more specifically described in the legal description attached to the Mortgage. 18. Corestates, in its capacity as agent for the Banks, sent a demand letter dated December 6, 1993 (the "Demand Letter") to Gemini by certified mail, return receipt requested wherein they demanded payment of all of the liabilities and the obligations of Gemini. A true and correct copy of the Demand Letter is attached hereto as Exhibit "D" and is made part hereof. 19. Gemini has defaulted in its obligations pursuant to the Credit Note by failing to make payments of principal and interest due thereunder since June 28, 1993. 20. Pursuant to the Agreement and Credit Note and by reason of Gemini's default, the following amounts are currently due and owing the Banks by Gemini: Principal Due: Interest Due and Unpaid through Jan. 6, 1994: Total: $ 500,000.00 S 122.083.41 $ 622,083.41 Interest accrues at the per diem rate of $125.00 for each day after January 1, 1994 that this indebtedness remains unpaid. In the event that a petition to open or strike this judgment is filed, the -5- . Banks reserve the right to have interest and attorneys' fees brought current. 21. There has been no assignment of the credit Note, however, by merger, Corestates is the successor to Philadelphia National Bank's interests under the Credit Note. 22. Judgment has not been entered on the Credit Note in any jurisdiction. 23. Pursuant to the Credit Note, $622,083.41 is currently due and owing the Banks from Gemini, and Gemini has failed to pay the amount due. WHEREFORE, Philadelphia National Bank, incorporated as Corestates Bank, N.A., in its capacity as agent for Philadelphia National Bank and Hamilton Bank, requests that judgment be entered in its favor and against Gemini Broadcasting corporation in the sum of $622,083.41 and costs of suit. BLANK, ROME, COMISKY & McCAULEY DATED: January ~ 1994 By: Q2~~k~~ ALAN C. GERSHENSON STEVEN M. MILLER Attorneys for Plaintiff PHILADELPHIA NATIONAL BANK, incorporated as CORESTATES BANK, N.A., in its capacity as agent for Philadelphia National Bank and Hamilton Bank -6- . i > LOAN AGREEMENT . GEMINI BROADCASTING CORPORATION Borrower THE PHILADELPHIA NATIONAL BANK HAMILTON BANK Lenders THE PHILADELPHIA NATIONAL BANK Agent Term Loan: $2,500,000 Revolving Credit: $500,000 October 13, 1989 . LOAN AND SECURITY AGREEMENT TABLE OF CONTENTS iIsm ARTICLE 1 DEFINITIONS, CERTAIN RULES OF CONSTRUCTION 1.1 Defined Terms . . . . . . . . . . . . . .. 2 1.2 Construction of Definitions . . . . . . . . 10 1.3 Accounting Reports and Principles. . . . . 10 1.4 Business Day. . . . . . . . . . . . . . . . 10 1.5 Charging Accounts. . . . . . . . .. . . . . 10 ARTICLE 2 THE LOANS 2.1 Term Loan . . . . . . . . . . . . . . . . . 11 2.1.1 In General. . . . . . . . . . . . . . . . . 11 2.1.2 Principal Payments. . . . . . . . . . . . . 12 2.1.3 Inte~est Payments . . . . . . . . . . . . . 13 2.1.4 Term Note . . . . . . . . . . . . . . . . . 13 2.1.5 Administration. . . . . . . . . . . . . . . 13 2.2 The Revolving Credit. . . . . . . . . . . . 13 2.2.1 In General. . . . . . . . . . . . . . . . . 13 2.2.2 Notice of Borrowing . . . . . . . . . . . . 13 2.2.3 Funding of Cash Advances. . . . . . . . . . 13 2.2.4 Maximum Available Credit. . . . . . . . . . 13 2.2.5 Principal and Interest Payments . . . . . . 13 2.2.6 Mandatory Payments. . . . . . . . . . . . . 14 2.2.7 Revolving Credit Note . . . . . . . . . . . 14 2.2.8 Administration. . . . . . . . . . . . . . . .14 2.3 Post-Maturity Interest. . . . . . . . . . . 14 2.4 Fees. . . . . . . . . . . . . . . . . . . . 14 2.5 General Provisions. . . . . . . . . .. . . . 15 2.5.1 Miscellaneous Fees and Charges. . . . . . . 15 2.5.2 Use of Proceeds . . . . . . . . . . . . . . 15 2.6 Prime Rate and Assessments-Reserves . . . . 15 2.7 Calculation of Interest and Other Annualized Payments . . . . . . . . . . . 17 ARTICLE 3 SECURITY 3.1 Security Interest in Borrower's Assets. . . 17 3.2 Guaranty. . . . . . . . . . . . . . . . . . 18 3.3 Financing Statements and Other Documents. . 18 (i) Borrower's Covenants. Indemnification. . . ARTICLE 4 CONDITIONS PRECEDENT 4.1 Loan Documents . . . . . . . . . . . . . . 19 4.2 Other Conditions Precedent . . . . . . . . 21 ARTICLE 5 REPRESENTATIONS AND WARRANTIES 5.1.1 Good Standing. . . . . . . . . . . . . . . 22 5.1.2 Power and Authority. . . . . . . . . . . . 22 5.1.3 Financial Condition. . . . . . . . . . . . 22 5.1.4 Compliance with Regulations '1', U and X . . 23 5.1.5 Priority of Liensl Location and Condition of Collateral. . . . . . . . . . . . . . . 23 5.1.6 No Litigation. . . . . . . . . . . . . . . 23 5.1.7 Compliance . . . . . . . . . . . . . . . . 23 5.1.8 Location of Borrower's Operations. . . . . 23 5.1.9 ERISA. . . . . . . . . . . . . . . . . . . 24 5.1.10 RICO . . . . . . . . . . . . . . . . . . . 24 5.1.11 Government Contracts . . . . . . . . . . . 24 5.1.12 Environmental Matters. . . . . . . . . . . 24 5.1.13 Solvency . . . . . . . . . . . . . . . . . 25 5.1.14 Indebtedness . . . . . . . . . . . . . . . 26 5.1.15 Guaranties . . . . . . . . . . . . . . . . 26 5.2 Accuracy of Representationsl No Default. . 26 ARTICLE 6 AFFIRMATIVE COVENANTS 6.1 6.2 . . . . . . . . . . 26 . . . . . . . . 31 . . . ARTICLE 7 NEGATIVE COVENANTS . . . . . . . . . . . . . . . . . 32 ARTICLE 8 DEFAULT 8.1 8.2 8.2.1 8.2.2 8.3 8.4 ARTICLE 9 AGENT 9.1 9.2 9.2.1 Events of Default. . . . . . . . . . . . . 35 Remedies on Default. . . . . . . . . . . . 36 In General . . . . . . . . . . . . . . . . 36 Communications Act of 1934 . . . . . . . . 36 Set-Off Rights Upon Default. . . . . . . . 37 Singular or Multiple Exercisel Non-Waiver. 37 Appointment. . . . . . . . Powersl General Immunity . Duties Specified . . . . . . . . . . . . 38 . . . . . . . . 38 . . . . . . . . 38 (ii) 9.2.2 9.2.3 9.2.4 9.2.5 9.2.6 9.2.7 No Responsibility for Certain Mattera. . . 39 Exculpatory provisions . . . . . . . . . . 39 Agent Entitled to Act as Lender. . . . . . 40 No Responaibility for Creditworthiness . . 40 Right to Indemnify . . . . . . . . . . . . 40 Further Information. ; ',' . . . . . . . . 41 AR~ICLE 10 MISCELLANEOUS 10.1 10.2 10.3 10.4 10.5 10.6 10.7 10.8 10.9 10.10 10.11 SCHEDULE A EXHIBI~S 2.2.2 4.1.12 4.1.13 4.1.20 5.1.3 5.1.5 5.1.6 5.1.7 5.1.8 5.1.11 5.1.12 6.1.1 7.l.1t Integration . . . . . . . . . . . . . . . . 41 Modification and Participation. . . . . . . 41 Notices . . . . . . . . . . . . . . . . . . 41 survival. . . . . . . . . . . . . . . . . . 42 closing . . . . . . . . . . . . . . . . . . 42 Successors and Assigns; Governing Law . . . 43 Jurisdiction; Waiver of Jury Trial. . . . . 43 Excess payments . . . . . . . . . . . . . . 43 Partial Invalidity. . . . . . . . . .. . 43 Compliance with Rules . . . . . . . . .. 43 Headings. . . . . .. .......... 43 Legal Description of the Real Estate Form of Notice of Borrowing Form of closing certificate Form of President's Certificate - Authorized Persons Form of Officer's Certificate - Solvency Exceptions to Financial Statements Additional Liens Litigation Governmental Approvals Location of Collateral Government contracts Environmental Matters Form of Compliance certificate Liens (Hi) LOAN AND SECURITY AGREEMENT AGREEMENT made as of the /'.~ day of October, 1989, by and among Gemini Broadcasting Corporat on, a Pennsylvania corporation ("Borrower"); The Philadelphia National Bank ("pNB") and Hamilton Bank ("Hamilton") (sometimes individually referred to as a "Lender" and collectively referred to as "Lenders"); and The Philadelphia National Bank as Agent (the "Agent"). BACKGROUND A. Borrower desires to establish with Lenders a Term Loan in an amount not to exceed $2,500,000 and a Revolving Credit in an amount not to exceed $500,000 and Lenders have agreed to extend such credit facilities to Borrower subject to the terms and conditions hereinafter set forth (collectively the "Credit Facilities") . B. Borrower shall use the proceeds of the Credit Facilities to enable Borrower: (i) to finance the acquisition of (a) the assets of Hudson Group Limited Partnership of Pennsylvania, including but not limited to, the Harrisburg, Pennsylvania, AM and FM radio stations of WCMB and WIMX (collectively, the "Radio stations") pursuant to an Asset Purchase Agreement dated as of July 10, 1989, together with all Machinery, Equipment, Inventory, Accounts, and General Intangibles in connection therewith, and (b) the real property of James A. McKenna, Jr., upon which the Radio stations are currently operated; and (ii) to provide Borrower with working capital. C. To induce Lenders to extend the Credit Facilities and to secure the repayment thereof: (i) Borrower has agreed to grant to Lenders a first lien and security interest in each and all of Borrower's assets, excluding, however the license granted by the Federal Communications Commission to operate the Radio stations; and (ii) Brian Danzis and Christine Hillard, the shareholders of Borrower, have agreed to grant their joint and several uncondi- tional limited surety and guaranty of the Borrower's obligations and as security for said guaranties have each agreed to grant a first lien and security interest in, and pledge to Lenders, all the issued and outstanding capital stock of Borrower. NOW, THEREFORE, in consideration of the foregoing and of the mutual covenants set forth herein, the parties hereto, intend- ing to be legally bound, agree as follows: '........ ARTICLE 1 DEFINITIONS, CERTAIN RULES OF CONSTRUCTION 1.1 Defined Terms. Each of the terms listed below shall have the meaning herein ascribed to it for the purposes hereof and for each of the other Loan Documents. "Affiliate" means a person controlled by, control- ling or under common control with another person. "Agent" means The Philadelphia National Bank, a national banking association, with its main office at the Northeast corner of Broad and Chestnut Streets, Philadelphia, Pennsylvania 19101, or its successor designated pursuant to Section 10.2.7 hereof. "Agreement" means this Loan Agreement as the same may be modified or amended, from time to time. "Assessment Rate" means for any day the assessment rate (rounded upwards, if necessary, to the nearest 1/100 of 1%) incurred by Lenders to the Federal Deposit Insurance Corporation (or any successor) (collectively "FDIC") for the FDIC's insuring time deposits made in U.S. dollars at the offices of any Lender in the United States. "Asset Purchase Agreement" means the Agreement dated as of July 10, 1989 by and among Hudson and Borrower with respect to the purChase and sale of the assets of Hudson and the Real Estate. "Authorized Person" means any of the Persons listed on the certificate in form and substance acceptable to Agent to be delivered to Agent at Closing in accordance with subsection 4.1.13 hereof or any replacement certificate with respect thereto subse- quently delivered to Agent. "Bankruptcy Code" means Title 11 of the United states Code entitled "Bankruptcy", as now or hereafter in effect, or any successor statute. "Borrower" means Gemini Broadcasting Corporation, a Pennsylvania corporation, having its registered office at P.O. Box 3433, HarriSburg, Pennsylvania 17105 and its principal place of business at 360 Poplar Church Road, Wormleysburg, Pennsylvania 17011. "Borrower's stock" means all of the issued and outstanding capital stock of Borrower. (2) "Broadcast Cash Flow" means Borrower's (including the business operated by Hudson between January 1, 1989 and the Closing Date exclusive of rent relating to the Real Estate and Advisory Fees paid to Edward McKenna) net income (as determined in accordance with GAAP) for the most recently completed Fiscal Quarter plus amortization, depreciation, and interest expense, excluding, however; (i) extraordinary items of income; and (ii) trade income and expense. "Business Day" means any day other than a Saturday, a Sunday, or any other day on which commercial banks in Philadel- phia, Pennsylvania are authorized to close. "Capital Expenditures" means any plant or equipment expenditure, leasehold improvement, or any other expenditure, which in accordance with GAAP, would be treated as a "capital expenditure". "Cash Advance" means the cash which Lenders advance to Borrower under the Revolving Credit subject to and in accordance with the provisions of Article 2 hereof. "Closing" and "Closing Date" means the date as of which this Agreement has been executed and delivered. "Collateral" means each and all of the security granted, conveyed or pledged by the Borrower or either of the Guarantors to secure payment of the Indebtedness all as more particularly identified in Article 3 hereof. "Commitment Fee" means one-half of one percent of the unused portion of the Revolving credit, determined on a daily basis and payable quarterly in arrears. "Compliance Certificate" means the certificate to be delivered by Borrower at Closing and in connection with the annual and quarterly Financial statements required pursuant to Paragraph 6.1.1 hereof, which Compliance Certificate shall be in such form and substance as Agent shall direct to the effect that: (i) the Chief Financial Officer of the Borrower certifies that he has no reason to believe that an Event of Default, or an Unmatured Event of Default, has occurred hereunder or under any other Loan Document; and (ii) Borrower, during the period covered by the financial statement and as of the date of the delivery of the Compliance certificate, is in full and complete compliance with the provisions hereof (including, but not limited to, the financial covenants) and of any of the other Loan Documents to which Borrower is a party. "Cumulative Excess Cash Flow" means cumulative Broadcast Cash Flow commencing as of January 1, 1990 ~: (3) (i) scheduled payments of principal and interest under the Term Loan; (ii) net repayments (including interest thereon) of the Revolving Credit; (iii) scheduled payments of principal and interest under tho McKenna Debt; (iv) cumulative Capital Expenditures (to the extent permitted hereunder); (v) cumulative net increase in working capital (as determined in accordance with GAAP) excluding cash and cash equivalents; (vi) all sums due and owing under the Revolving Credit; and (vii) the sum of $20,000. IIDanzisll means Brian E. Danzis, Guarantor and an officer, director and shareholder of Borrower. IIDesignated Officer" means Elizabeth Elmore, Vice President, or any other person designated in writing by Agent as its representative for the purpose of receiving notice hereunder. IIDollarsll means the lawful money of the United states of America. IIERISAII means the Employee Retirement Income Security Act of 1974, as amended from time to time. IIEvent of Defaultll means each of the events set forth in Section 8.1 hereof. IIFCCII means the Federal Communications Commission of the United States of America or any governmental authority succeeding to any of its functions. "Facility Feell means $30,000 payable on the Closing Date by Borrower to Agent on behalf of Lenders. "Financial Statements" means financial statements of a Person including a balance sheet, income statement and statement of source and application of funds, all prepared in accordance with GAAP, consistently applied. "Fiscal Quarterll means a fiscal quarter of a Person during its Fiscal Year or such other accounting quarter as such Person may adopt. IIFiscal Year" means the fiscal year of a Person, which ends December 31 of each calendar year, or such other fiscal year as such Person shall adopt. "Fixed Rate" means with respect to the Term Loan the fixed rate of interest provided in Subparagraph 2.1.3.2 hereof. "Fixed Rate Loansll means that portion of the Term Loan that bears interest at a Fixed Rate as more particularly provided in Subparagraph 2.1.3.2 hereof. (4) . "Floatinq Rate" means with respect to the Term Loan that interest rate based on prime Rate plus a marqin determined by the ratio of senior Debt to Broadcast Cash Flow as more particularly provided in Subparaqraph 2.1.3.1 hereof. "Floatinq Rate Loans" mean" that portion of the Term Loan that bears interest at the Floatinq Rate. "Fund" means CoreStates Enterprise Fund, a Pennsylvania corporation and the holder of the Junior Subordinated Note. "Fundinq Date" means the Business Day on which a Cash Advance is made. "GAAP" means qenerally accepted accountinq principles as set forth in the opinions and pronouncements of the Accountinq Principles Board of the American Institute of Certified Public Accountants and statements and pronouncements of the Financial Accountinq Standards Board. "Governmental Approvals" means all authorizations, consents, approvals, licenses and exemptions of, reqistrations and filinqs with, and reports to, all governmental bodies. "Guarantors" means Brian E. Danzis and Christine E. Hillard. "Guaranty" means the joint and several unconditional limited surety and guaranty of the Indebtedness by the Guarantors pursuant to a Guaranty of even date herewith, as the same, from time to time, may be modified or amended. "Hamilton" means Hamilton Bank, a Pennsylvania banking association and a Lender, maintaining a place of business at 222 Market Street, Harrisburq, Pennsylvania 17108. "Hillard" means Christine E. Hillard, a Guarantor and an officer, director, and shareholder of Borrower. "Hudson" means Hudson Group Limited Partnership of Pennsylvania, a Pennsylvania limited partnership and a seller under the Asset Purchase Aqreement. "Indebtedness" means all amounts due from Borrower to Lenders pursuant to Article 2 and otherwise arising out of or in connection with this Aqreement or any other Loan Document. "Inter Creditor Aqreement" means the aqreement of even date herewith in form and substance acceptable to Lenders and (5) i:'Xl..t.:::,~ their counsel by, between and among Lenders, Hudson and the Fund, which agreement sets forth the respective rights of the parties with respect to the Borrower, the Guarantors and the Collateral. "Interest Period" means with respect to any Fixed Rate Loan the period of time commencing with the Conversion of a Floating Rate Loan to a Fixed Rate Loan until the expiration of the Fixed Rate Loan. "Interest Rate" means Floating Rate or Fixed Rate applied to the Term Loan and the Revolving Credit. "Internal Revenue Code" means the Internal Revenue Code of 1986, as amended from time to time, and any successor code or statute. "Junior Subordinated Debt" means the principal sum of $1,400,000, together with interest thereon, payable by Borrower to the Fund as more particularly described in a Loan and Security Agreement of even date herewith by and between the Fund and Borrower, and as evidenced by the Junior Subordinated Note. "Junior Subordinated Note" means Borrower's promissory note of even date herewith in favor of the Fund in the principal sum of $1,400,000 to evidence Borrower's repayment obligations in connection with the Junior Subordinated Debt as the same, from time to time, may be modified or amended. "Lenders" means PNB and Hamilton. "License" means the exclusive and permanent license granted by the FCC to Borrower to operate the Radio Stations. "Life Insurance Policies" means the life insurance policies issued by a life insurance company acceptable to Agent insuring the respective lives of Danzis and Hillard each in the face amount of no less than $250,000. "Loan" or "Loans" means the aggregate outstanding amount of the loans described in this Agreement in the form of the Revolving Credit and the Term Loan. "Loan Documents" means this Agreement, the Notes, the Guaranty, the Pledge Agreement, the Mortgage, and any other document delivered in connection therewith or herewith. "Management Agreements" means the agreements by and between Borrower and each of Danzis and Hillard each in form and substance acceptable to Lenders. (6) "Materially Adverse Effect" means with respect to a Person (based upon a commercially reasonable standard), a materially adverse effect upon the Person's business, assets, liabilities, financial condition or results of operations, or the Person's ability to perform the Person's obligations under the Loan Documents, all in accordance with their respective terms. "Maximum Available Credit" means $500,000 under the Revolving Credit. "McKenna" means James A. McKenna, Jr., a seller under the Asset Purchase Agreement. "McKenna Debt" means the principal sum of $1,400,000, together with interest thereon, due and payable by Borrower to HUdson, which obligation is evidenced by the McKenna Note. "McKenna Note" means Borrower's promissory note of even date herewith in the principal sum of $1,400,000 payable with interest thereon to Hudson to evidence a portion of the purchase price under the Asset Purchase Agreement. "Mortgage" means the first lien and security interest in the Real Estate granted by Borrower to Lenders pursuant to a mortgage of even date herewith to be recorded in the Office of the Recorder of Deeds of Dauphin County, Pennsylvania. "Notes" means the Revolving Credit Note and the Term Note. "Notice of Borrowing" means a telephonic notice from Borrower to Hamilton substantially containing the relevant information set forth in Paragraph 2.2.2 hereof. "Permitted Liens" means: (i) liens for taxes, assessments or governmental charges or claims which are not overdue or which are being contested in good faith by appropriate proceedings promptly instituted and diligently conducted, if a reserve or other appropriate provision, if any, as shall be required by,GAAP shall have been made therefor: (ii) ~tatutory liens of landlords and liens of carriers, warehousemen, mechanics, materialmen, repairmen, suppliers and other like liens incurred in the ordinary course of business for sums not yet delinquent or being contested in good faith by appropriate proceedings promptly instituted and diligently conducted, if a reserve or other appropriate provision, if any, as shall be required by GAAP shall have been made therefor: and (iii) liens (other than any lien imposed by ERISA) incurred or deposits made in the ordinary course of business in connection with workers' compensation, unemployment insurance and other types of social security. (7) . "Person" means an individual, corporation,' partner- ship, joint venture, trust or unincorporated organization, or a government or any agency or political Subdivision thereof. "Pledge Agreement" means the collateral assignment of the Borrower's stock by the Guarantors as collateral security for the Guaranty pursuant to an agreement of even date herewith, as the same, from time-to-time, may be modified or amended. "PNB" means The Philadelphia National Bank, a national banking association, and a Lender, maintaining its principal place of business at The PNB Building, Broad and Chestnut streets, Philadelphia, Pennsylvania 19101. "Prime Interest Rate" means the Prime Rate per annum. "Prime Rate" means as to any day on which a Prime Rate Borrowing is outstanding, a fluctuating per annum rate of interest announced by PNB from time to time as its "Prime Rate", which may not necessarily represent the lowest rate charged by PNB to other borrowers, or to any class of borrowers at any time, or from time to time. "Prime Rate Borrowing" or "Prime Rate Loans" means Cash Advances or applicable portions of the Revolving Credit bearing interest at a rate with reference to the Prime Rate. "Pro-forma Total Debt Service" means the sum of Borrower's projected total interest expense and principal amortization scheduled to be paid in connection with the Total Debt for the four quarters following the Test Date, assuming the applicable Interest Rate in effect on the Test Date. "Radio Stations" means the AM and FM radio broadcast stations broadcasting in the Harrisburg, Pennsylvania area and operating respectively under the call letters of WCMB and WIMX and broadcasting respectively at 1460 KHz and 99.3 MHz. "Real Estate" means the real property situate in Wormleysburg (Cumberland County), Pennsylvania as more particularly described in Exhibit "A" to the Mortgage together with the buildings and improvements thereon erected. "Restricted Payments" means any and all payments to Danzis and Hillard (other than pursuant to the Management Agreements), and payments made with respect to the Junior Subordinated Note. (8) ''"'' .;c .~ ..---~_. ,. "Revolving Credit" means the loans under the Revolving credit which may be borrowed, repaid and reborrowed to the extent of the Maximum Available credit, all as more fully described in section 2.2 hereof and which is evidenced by the Revolving Credit Note. "Revolving Credit Note" means Borrower's promissory note of even date herewith in favor of Lenders in the principal sum of $500,000 to evidence Borrower's repayment obligations under this Agreement with respect to the Revolving credit as the same, from time to time, may be modified or amended. "Revolving Credit Termination Date" means December 31, 1992, or such other date as may be agreed to by Borrower, PNB, Hamilton and the Fund. "Rules" meAns any law, requlation, or rule of practice by which any Lender is bound or to which any Lender adheres. "Senior Debt" means with respect to Borrower all borrowed funds exclusive of the Subordinated Debt. "Subordinated Debt" means the total indebtedness of the Borrower evidenced by the McKenna Note and the Junior Subordinated Note. "Term Loan" means the $2,500,000 term loan as more particularly described in Section 2.1 hereof and which is evidenced by the Term Note. "Term Loan Termination Date" means December 31, 1995. "Term Note" means Borrower's promissory note of even date herewith in the principal sum of $2,500,000 payable to Lenders to evidence Borrower's repayment obligations under this Agreement with respect to the Term Loan as the same, from time to time, may be modified or amended. "Test Date" means with respect to the Financial Covenants set forth in Section 6.1(B) hereof and the application of the formulae set forth therein, the date upon which the formula is applied, commencing December 31, 1989 and at the end of each Fiscal Quarter thereafter. "Total Debt" means the sum of the Senior Debt and the McKenna Debt. (9) "Total Fixed Charges" means total cash interest expense and mandatory principal payments made in connection with the Total Debt for the four quarters ending on the Test Date plus capital Expenditures for the same period. "Unmatured Event of Default" means and refers to an event, act, or occurrence of which Borrower has notice or knowledge that with the giving of notice or the passage of time, or both, would become an Event of Default. 1.2 Construction of Definitions. All terms defined herein shall be construed to include the plural or the singular, and references to persons in the masculine or neuter gender shall refer to all persons or entities, as the context requires. 1.3 Accountina Reoorts and princioles. The character or amount of any asset, liability, account or reserve and of any item of income or expense to be determined, and any consolidation or other accounting computation to be made, and the construction of any definition containing a financial term, pursuant to this Agreement or any other Loan Document, shall be construed, deter- mined or made, as the case may be, in accordance with GAAP, consis- tently applied, unless such principles are inconsistent with any express provision of this Agreement. 1.4 Business Dav. Except as specifically provided herein to the contrary, whenever any payment or other obligation hereunder, under the Note, or under another Loan Document is due on a day other than a Business Day, such shall be paid or performed on the Business Day next following the prescribed due date, and such extension of time shall be included in the computation of interest and charges. Any reference made herein or in any other Loan Document to an hour of day shall refer to the then prevailing Philadelphia, Pennsylvania time, unless specifically provided herein to the contrary. 1.5 Charaina Accounts. Whenever Borrower is obligated, pursuant to Article 2 hereof, or pursuant to the Notes, or any other Loan Document, to make payments of any nature to Agent or Lenders, Lenders, upon the occurrence and continuation of an Event of Default, shall be entitled, and Borrower hereby authorizes Lenders to draw against any deposit account of Borrower with one or more of Lenders on account of such fees an~ expenses or payments due. Upon such drawing, such Lender shall deliver to Borrower a notice setting forth, in reasonable detail, the amount of the fees, expenses and/or payments to be satisfied by such draw, and the name or number of the account or accounts from which the draw was made. (10) Months Endina 6/30/90 - 5/31/91 6/30/91 - 5/31/92 6/30/92 - 5/31/93 6/30/93 - 5/31/94 6/30/94 - 5/31/95 6/30/95 - 11/30/95 12/31/95 Monthlv Amount $ 5,000 $ 7,500 $ 10,000 $ 15,000 $ 25,000 $ 35,000 $1,540,000 ARTICLE 2 THE LOANS 2.1 Term Loan 2.1.1 In General. Subject to the terms and conditions set forth herein, Lenders have agreed to lend to Borrower the principal amount of $2,500,000 representing the Term Loan. 2.1.2 PrinciDal Pavments. Principal payments with regard to the Term Loan shall be paid monthly according to the following schedule, beginning June 30, 1990: 2.1.3 Interest Pavments. 2.1.3.1 Floatina Rate Loans. Provided that no Event of Default has occurred and subject to the provisions set forth in sub-paragraph 2.1.3.2 hereof, the Term Loan shall bear interest through maturity at the Prime Rate plus a margin determined by the ratio of Senior Debt to Broadcast Cash Flow ("Ratio") at the last quarterly Test Date as follows: (i) one percent if the Ratio is 3.00 to 1 or greater; or (ii) three quarters of one percent if the Ratio is less than 3.00 to 1. The Interest Rate with respect to Floating Rate Loans shall be determined in accordance with the most current compliance Certificate and subject to the following qualifications be effective ten days after Agent's receipt thereof; provided however that if the compliance Certificate is not received by Agent when due, the higher Interest Rate shall apply to such Floating Rate Loans. Interest on the Floating Rate Loans shall be payable monthly in arrears on and to the last Business Day of each month, the first payment to be due on the last Business Day of the month in which Closing occurs hereunder and monthly thereafter until the entire Indebtedness associated with the Term Loan has been paid in full. 2.1.3.2 Fixed Rate Loans. Provided that no Event of Default has occurred, upon no less than five (5) Business Days prior written notice by Borrower to Agent, Borrower may request that all or any portion of the Floating Rate (11) Loans under the Term Loan be converted to a Fixed Rate Loan (the "Conversion"). Said Notice shall include: (i) the amount of the Floating Rate Loans to be converted to Fixed Rate Loans but in no event less than $500,000 or $100,000 integral multiples in excess thereof; and (ii) the term for which said Floating Rate Loans are to be converted to Fixed Rate Loans (the "Notice"). Upon receipt of the Notice, Agent shall advise Borrower of the anticipated Fixed Rate, which Agent will charge, upon the Conversion, and Borrower shall have two (2) Business Days thereafter to confirm in writing to Agent of the elected Conversion. The Fixed Rate shall be set by the Agent as of the date of the Conversion and absent Agent's bad faith, Agent shall not be responsible for changes in the Fixed Rate between that estimated by the Agent and that actually charged by the Agent upon Conversion. Notwithstanding any provision herein to the contrary, no Fixed Rate Loans shall have a term which extends beyond the Term Loan Termination Date. Interest on the Fixed Rate Loans shall be payable monthly in arrears on and to the last Business Day of each month, the first payment to be due on the last Business Day of the month in which Closing occurs hereunder and monthly thereafter until the entire Indebtedness associated with the Term Loan has been paid in full. 2.1.3.3 PrepaYment Premium for Fixed Rate Loans. All Fixed Rate Loans may be prepaid prior to the expiration date of the term of the Fixed Rate Loan applicable thereto only upon payment to the Agent, on behalf of the Lenders, of a prepayment premium determined as follows: (i) on the prepayment date, the remaining payments of principal and interest that would have otherwise been payable at the expiration of the term of the Fixed Rate Loan being prepaid, shall be discounted to a present value at a rate per annum equal to the "Prepayment Yield to Maturity", as hereinafter defined, plus any costs for reserves or assessments or for reinvesting the amount being prepaid, and if such discounted value shall exceed the unpaid principal amount being prepaid, then the prepayment premium shall be in an amount equal to such excess; otherwise, no prepayment premium shall be payable; (ii) the "Prepayment Yield and Maturity" shall be the yield to maturity of the debt obligation of the United states Treasury (excluding those commonly known as "Flower Bonds") having a term substantially equal to the term of the relevant Interest Period maturity date nearest in expiration of the relevant Interest Period. The maturity date and yield to maturity of such United States Treasury obligations shall be determined on the basis of quotations published in The Wall Street Journal on the prepayment date. If there shall be more than one such debt obligation of the United states Treasury maturing nearest in time to the expiration of the relevant Interest Period, the Prepayment Yield to Maturity shall be the arithmetic average of the yields and maturity of all such obligations. (12) --:A:,;;u;.~:'; 2.1.4 Term Note. The Term Loan shall be evidenced by a Term Note which Borrower shall execute and deliver to Agent on even date herewith. ' 2.1.5 Administration. Agent, on behalf of the Lenders, shall disburse and receive all payments in connection with the Term Loan and otherwise administer the Term Loan. 2.2 The Revolvina Credit. 2.2.1 In General. Provided that no Event of Default or Unmatured Event of Default has occurred and is continuing and subject to the terms and conditions set forth herein, commencing with the date of this Agreement and expiring on the Revolving Credit Termination Date, Lenders shall extend to Borrower the Revolving Credit pursuant to which Lenders shall make Cash Advances to Borrower in accordance with the provisions of this Section 2.2 which Borrower, from time to time, may borrow, repay, and reborrow. 2.2.2 Notice of Borrowina. Whenever Borrower desires Lenders to make Cash Advances under the ReVOlving Credit, Borrower shall deliver to Hamilton on behalf of the Lenders a Notice of Borrowing in the form of Exhibit 2.2.2 hereof no later than 1:00 P.M. at least one Business Day in advance of the proposed Funding Date. The Notice of Borrowing shall specify: (i) the proposed Funding Date (which shall be a Business Day); and (ii) the amount of the requested Cash Advance, Drovided that the minimum amount of Cash Advances under the Revolving Credit shall be no less than $25,000 or integral multiples of $5,000 in excess thereof. Neither of the Lenders shall incur any liability to Borrower in acting upon any telephonic notice referred to above which Hamilton believes in good faith to have been given by an Authorized Person or for otherwise acting in good faith under this Paragraph 2.2.2. 2.2.3 Fundina of Cash Advances. Hamilton, on behalf of the Lenders, shall Cduse such Cash Advances to be made available to Borrower on the Funding Date by depositing the proceeds thereof in the designated account of Borrower at Hamilton. 2.2.4 Maximum Available Credit. Subject to the terms of this Agreement, the maximum principal amount which Lenders shall make available to Borrower from time to time under the Revolving Credit shall not exceed at anyone time the sum of $500,000. 2.2.5 PrinciDal and Interest PaYments. 2.2.5.1 Principal on the Revolving Credit shall be due and payable in full on the Revolving credit Termination Date. (13) 2.2.5.2 Provided that no Event of Default has occurred, the Revolving credit shall bear interest through maturity at the Prime Rate plus a margin determined by the ratio of Senior Debt to Broadcast cash Flow ("Ratio") at the last quarterly Test Date as follows: (i) one percent if the Ratio is 3.00 to 1 or greater; or (ii) three-quarters of one percent if the Ratio is less than 3.00 to 1. The Interest Rate with respect to Floating Rate Loans shall be determined in accordance with the most current compliance certificate and subject to the following qualifications be effective ten days after Agent's receipt thereof; provided however that if the compliance certificate is not received by Agent when due, the higher Interest Rate shall apply to such Floating Rate Loans. Interest on the Revolving credit shall be payable monthly in arrears on the last Business Day of each month, commencing the month in which the first Cash Advance is made, and monthly thereafter until all of the Indebtedness in connection with the Revolving credit is paid. 2.2.6 Mandatorv paYments. In the event that the principal amounts outstanding under the Revolving credit shall at any time exceed the Maximum Available Credit, Borrower shall promptly pay such excess to Hamilton on behalf of the Lenders. 2.2.7 Credit shall be evidenced shall execute and deliver Revolvina credit Note. The Revolving by a Revolving Credit Note which Borrower to Hamilton on even date herewith. 2.2.8 Administration. Hamilton, on behalf of Lenders, shall disburse all Cash Advances and receive all payments in connection with the Revolving credit and otherwise administer the Revolving Credit. 2.3 post-Maturitv Interest. Any principal payments on the Loans not paid when due and, to the extent permitted by appli- cable law, any interest payment on the Loans not paid when due, and any other amount due to Lenders under this Agreement or any other Loan Document not paid when due, in any case whether at stated maturity, by notice of prepayment, by acceleration or otherwise, shall thereafter bear interest payable upon demand at a rate which is 2\ per annum in excess of the applicable Interest Rate. 2.4 ~. Borrower agrees to pay to: 2.4.1 Agent, on behalf of Lenders, a Facility Fee of $30,000 at the Closing; and 2.4.2 Hamilton, the Commitment Fee with the first payment to be due December 31, 1989, and quarterly thereafter (14) (15) on each March 31, June 30, September 30, and December 31 until the Revolving Credit Termination Date. 2.5 General provisions. 2.5.1 Miscellaneous Fees and Charaes. Borrower shall remit to Agent any and all reasonable out-of-pocket costs and expenses incurred by Agent in connection with the preparation, execution, delivery, filing, recording and administration of this Agreement, the Loan, the Notes, and all of the other Loan Documents whether or not the loan transaction occurs, including, without limitation, the reasonable fees and out-of-pocket expenses of counsel to Agent with respect thereto and with respect to advising Lenders, and all costs and expenses, if any, incurred by Lenders in connection with the enforcement of this Agreement, the Notes, or in connection with the collection of the Indebtedness or any part thereof or the perfection, protection, maintenance or termination of Lenders' interest in the Collateral or of the Collateral itself, which costs and expenses, shall constitute part of the Indebtedness, be secured by the Collateral and bear interest at the highest Interest Rate provided in either of the Notes. 2.5.2 Use of Proceeds. Borrower shall use the proceeds of the Credit Facilities to enable Borrower: (i) to finance the acquisition of (a) the assets of HUdson, including but not limited to, the Radio Stations pursuant to the Asset Purchase Agreement together with all Machinery, Equipment, Inventory, Accounts, and General Intangibles in connection therewith, and (b) the Real Estate; and (ii) to provide Borrower with working capital. 2.6 Prime Rate and Assessments-Reserves. 2.6.1 Agent shall give Borrower prompt notice of each change in the Prime Rate, and absent manifest error, each determination of such rates by Agent shall be conclusive and binding for all purposes hereof. 2.6.2 If after the date of this Agreement, the adoption of any RUles, any change in any Rules, or the adoption or change in the interpretation or administration thereof or guide- lines pertaining thereto by a governmental authority, central bank or comparable agency charged with the interpretation and adminis- tration thereof, or compliance by either Lender (or any lending office or any holding company of the Lender) with any request, guideline or directive regarding special deposit, capital adequacy, capital or reserve maintenance, risk based capital, capital ratio, or similar requirements against loans or loan commitments or any commitments to extend credit, whether or not having the force of law (including the capital adequacy guidelines promulgated by the Board of Governors of the Federal Reserve system), has or would have the effect of reducing the rate of return on either Lender's (or any holding company of either Lender) pro rata share of any Loan as a consequence of its obligations pursuant thereto to a level below that which either Lender (or either Lender's holding company) could have achieved but for such adoption, change or compliance (taking into consideration such Lender's pOlicies and the policies of such Lender's holding company with respect to capital adequacy) by an amount deemed by such Lender to be material, then, from time to time, Borrower shall pay to such Lender on demand by Lender as set forth below, such additional amount or amounts as would be necessary to restore the rate of return to such Lender before giving effect to such reduction. Each Lender shall be entitled to compensation pursuant to this Paragraph 2.6.2. A certificate of Agent delivered to Borrower claiming compensation under this Paragraph 2.6.2 and setting forth the additional amount or amounts to be paid to either Lender (or either Lender's holding company) hereunder shall be conclusive and binding upon Borrower in the absence of manifest error. 2.6.3 If any change in law or regulation not provided for elsewhere in this section 2.6 shall either: (i) impose, modify or deem applicable or result in the application of, any reserve, special deposit, capital maintenance, capital ratio or similar requirement against loans or loan commitments made by Lenders or against any other extensions of credit or commitments to extend credit or other assets of or any deposits or other liabilities taken or entered into by Lenders; or (ii) impose on Lenders any other condition regarding this Agreement or any other Loan Document, and the result of any event referred to in clause (i) or (ii) above shall be to increase the cost to Lenders of making or maintaining, or to impose upon Lenders or increase any capital requirement applicable as a result of the making or maintenance of, the Loan or the obligation of Borrower hereunder or to reduce the amounts receivable by Lenders hereunder (which increase in cost or increase in (or imposition of) capital requirements or reduction in amounts receivable may be determined by Lenders' reasonable allocation of the aggregate of such cost increase, capital increases or impositions or reductions in amounts receivable resulting from such events) and the same is not provided for elsewhere herein, then, upon demand by Agent (a copy of which shall be delivered to Lenders), Borrower shall immediately pay to Agent on behalf of Lenders additional commitment fees which shall be sufficient to compensate Lenders for such increased cost or increase in (or imposition of) capital requirements or reduction in amounts receivable by Lenders from the date of such change, together with interest on each such amount from the date demanded until payment in full thereof at the rate provided in this Agreement. Upon the occurrence of any event referred to in clause (i) and (ii) above, a certificate setting forth in reasonable detail the increased cost, reduction in amounts receivable or (16) amounts necessary to compensate Lenders as a result of an increase in (or imposition of) capital requirements submitted by Lenders to the Borrower, shall be conclusive, absent manifest error or bad faith, as to the amount thereof. For purposes of this Paragraph 2.6.3, in calculating the amount necessary to compensate Lenders for any increase in or imposition of capital requirements, Lenders shall be deemed to be entitled to a rate of return on capital (after federal, state and local taxes) of fifteen percent per annum. In determining such amount, Lenders may use any reasonable averaging and attribution methods. If either Lender demands compensation under this subsection 2.6.3, subject to the rights of the holders of the McKenna Note and the Junior Subordinated Note, Borrower may, upon no less than three (3) Business Days' prior written notice to Agent, prepay in full, the then outstanding: (i) portion of the Revolving credit together with accrued interest thereon to the date of prepayment without penalty; (ii) portion of the Term Loan with a Floating Rate together with accrued interest thereon to the date of prepayment without penalty; and (iii) that portion of the Term Loan with a Fixed Rate together with accrued interest thereon to the date of prepayment along with the prepayment penalty provided in Subparagraph 2.1.3.3 hereof. 2.6.4 The Prime Interest Rate shall be adjusted automatically on and as of the effective day of any change in the Prime Rate. 2.7 Calculation of Interest and other Annualized Pav- ments. Interest will be calculated on a 360 day basis but charged for the number of days actually elapsed during any year or part thereof. ARTICLE 3 SECURITY 3.1 Securitv Interest in Borrower's Assets. As security for the payment of the Notes and for payment, performance and discharge of all the Indebtedness under this Agreement, and under any of the other Loan Documents, or any other indebtedness or obligation of Borrower to either of the Lenders whether now existing or hereafter created, Borrower does hereby grant to Lenders: (i) a security interest in, and first lien on, all of Borrower's tangible and intangible assets, including but not limited to the following: Accounts, Machinery, Equipment, Furniture, Fixtures (including but not limited to broadcast towers, radio transmitting towers, satellite dishes and other receiving equipment, and all related equipment), General Intangibles (exclusive of the License), goodwill, supplies, GOOds, Chattel Paper, Documents, Instruments, Securities, books and records (17) (including but not limited to, manual records, computer runs, print outs, tapes, disks, software, programs, source codes and other computer prepared information and equipment of any kind), and all other tangible personal property, whether now owned or hereafter acquired, including all policies of insurance thereon and all insurance proceeds in connection therewith, together with all cash and non-cash proceeds and products thereof; (ii) the Mortgage; and (iii) a first collateral assignment of the Life Insurance Policies. 'l'he terms "Accounts", "Machinery", "Equipment", "Furniture", "Fixtures", "General Intangibles", "Goods", "Chattel Paper", "Documents", "Instruments", and "securities" shall have the same meaning as defined in the Uniform Commercial Code of the Commonwealth of Pennsylvania. 3.2 Guarantv. To secure the performance of Borrower hereunder, Lenders have requested and made a condition of Closing, and Guarantors have agreed to grant their joint and several unconditional limited surety and quaranty of the Indebtedness. The Guaranty shall be secured by the Guarantors' pledge of, and the first lien and security interest in, all of the issued and outstanding capital stock of Borrower in the form of the Pledge Agreement. 3.3 Financina statements and other Documents. Borrower agrees to execute and deliver to Agent on behalf of Lenders any and all financing statements and other documents and instruments requested by Agent to perfect, or keep perfected, any security interests created under this Agreement or under any other Loan Document, under the Uniform Commercial Code as adopted in any state having jurisdiction over the Collateral, and any such additional security agreements, financing statements, continuation statements or termination statements and other security instruments creating a lien upon the fixtures, machinery, equipment and other property now or hereafter located upon the Borrower's Real Estate as Agent may reasonably require in connection with the security interests created by this Agreement. Borrower hereby appoints Agent as Borrower's attorney-in-fact to execute and file in Borrower's name all documents and instruments which Agent may deem necessary or appropriate to perfect and to continue perfected security interests in the collateral created by this Agreement. AR'l'ICLE 4 CONDITIONS PRECEDENT As conditions precedent to the performance by Lenders' of any of Lenders' obligations hereunder, Borrower shall deliver (or in the case of the Guarantors cause to be delivered) to Agent on behalf of the Lenders, in form and substance satisfactory to (18) Agent and its counsel, in addition to this Agreement, the fOllowing documents and instruments: 4.1 Loan Documents: 4.1.1 The Notes; 4.1.2 The Guaranty; 4.1.3 The Pledge Agreement together with the original stock certificates and associated executed blank stock powers, and any and all other documents and instruments required in connection therewith; 4.1.4 The Mortgage together with: (i) a title insurance policy issued by a title insurance company acceptable to Agent insuring the lien of the Mortgage as a first priority lien upon the Real Estate, subject only to such exceptions of title as are acceptable to Agents and its counsel; and (ii) such UCC-1 financing statements with respect to fixtures upon the Real Estate as Agent may direct; (iii) an original fire and casualty policy together with a certificate of insurance with respect thereto, each meeting the requirements of Paragraph 6.1.5 hereof; and (iv) such other documents and instruments as may be required thereunder; 4.1.5 A true and correct copy of an environmental audit prepared within 30 days prior to Closing by a Person acceptable to Agent reflecting that the Real Estate and the buildings and improvements thereon erected do not contain unlawful or unsafe levels of hazardous materials or substances as prescribed in all applicable laws, rules and regulations currently in effect with respect to the protection of the environment; 4.1.6 Original insurance policies together with certificates of insurance with respect there~o insuring the Collateral and otherwise insuring the business of the Borrower as meeting the requirements of Paragraph 6.1.5 hereof; 4.1.7 On behalf of Borrower, a copy of its Certificate of Incorporation, By-laws, and resolutions adopted by its Board of Directors authorizing the execution, delivery and performance of this Agreement and all other Loan Documents, and all other documents and instruments required by Lenders for the implementation of this Agreement to which Borrower is a party, all certified by the Secretary of Borrower to be true and correct copies of the originals and to be in full force and effect as of the date of Closing; and an incumbency and signature certificate with respect to the officers of Borrower authorized to execute and deliver this Agreement, the Notes, the other Loan Documents and any and all other documents and instruments required by Lenders for the implementation of this Agreement; (19) 4.1.11 The Facility Fee in the amount $30,000; . 4.1.8 The opinions of counsel to Borrower and Guarantors in form and substance acceptable to Lenders and Lenders' counsel; 4.1.9 10 days of Closing from Pennsylvania pertaining A Good Standing certificate dated within the Secretary of the commonwealth of to Borrower; 4.1.10 A Notice of Borrowing with respect to any Revolving Credit Loan for which Cash Advances are requested as of the Closing Date; 4.1.12 A certificate in the form of Exhibit 4.1.12 hereof executed by the President and Chief Financial Officer of Borrower confirming that: (i) each of the representations and warranties made herein by Borrower is true and correct as of the Closing Date and that no Unmatured Event of Default is occurring; (ii) Borrower has fully performed each and every covenant to be performed by Borrower hereunder and under the Asset Purchase Agreement as of the Closing Date; and (iii) Borrower has satisfied each of the conditions set forth in this Section 4.1; 4.1.13 A certificate executed by the president of Borrower designating Authorized Persons; 4.1.14 Management Agreements certified by the president of the Borrower and each of Danzis and Hillard to be true and correct copies of the originals as executed, to be in full force and effect, and to not have been modified, rescinded or amended; 4.1.15 The original Life Insurance policies together with a first collateral assignment of each thereof in favor of Lenders; 4.1.16 Such UCC-1 Financing statements as Lenders shall direct in order to perfect the security interests granted by Borrower to Lender in the Collateral; 4.1.17 A copy of the Asset Purchase Agreement shall have been delivered to Agent certified by all parties thereto that it is a true and correct copy of the original and that there have been no modifications, alterations, additions or terminations thereof and that the transactions contemplated by the Asset Purchase Agreement, save the closing of the Senior Debt, the McKenna Debt, and the Junior Subordinated Debt have all been consummated in full thereunder; and (20) 4.1.18 Borrower's compliance certificate dated as of Closinq, 4.1.19 Borrower's authorization, if any, to Lenders to pay the loan proceeds to third parties, 4.1.20 A certificate of the Chief Financial Officer of Borrower in the form of Exhibit 4.1.20 hereof relatinq to the impact of the Loans upon the business and financial condition of Borrower, 4.1.21 All fees, expenses, and reimbursements of Aqent, Lenders and their respective counsel in connection with the Loans I and Such additional documents or instruments 4.1.22 as Aqent may require. 4.2 other Conditions Precedent. As additional condi- tions precedent to the performance by Lenders of any of Lenders' present or future obliqations hereunder: 4.2.1 by Borrower hereunder or otherwise shall be true, All representations and warranties under any other Loan Document, or complete and correct I made 4.2.2 Borrower shall be in full compliance with all of the terms and conditions hereof, the Notes, and any other Loan Document, in each case on and as of the date of the performance of such obliqations by Lenders; 4.2.3 All representations and warranties of each of the Guarantors made to Lenders under the Guaranty or otherwise shall be true, complete and correct, 4.2.4 Each of Guarantors shall be in full compliance with all of the terms and conditions of the Guaranty, Pledqe Aqreement and any other Loan Document to which either may be a party, in each case on and as of the date of Closinq; 4.2.5 The Inter Creditor Aqreement shall have been duly executed, and delivered by all of the parties thereto, and 4.2.6 Borrower shall have received the License and shall have delivered a true and correct copy thereof to Aqent certified by the President of the Borrower as beinq a true and correct copy of the oriqinal and that the License has not been revoked or modified in any way, toqether with an opinion of counsel from Borrower's special FCC counsel to the effect that Borrower holds the License without lien or encumbrance and that all time (21) (22) periods with respect to objections or appeals to the granting of a permanent License to Borrower have expired without such objections or appeals having been made, filed or perfected. Such opinion shall be in form and substance acceptable to Agent and Agent's counsel. ARTICLE 5 REPRESENTATIONS AND WARRANTIES. 5.1 Borrower represents and warrants to each Lender as follows: 5.1.1 Good Standina. Borrower is a corporation duly organized, validly existing and in good standing under the laws of the Commonwealth of pennsylvania, has the corporate power and authority to own and operate its properties and to carry on its business where and as contemplated, is duly qualified as a foreign corporation to do business in, and is in good standing in, every jurisdiction where the failure to so qualify would have a Materially Adverse Effect on Borrower. 5.1.2 Power and Authoritv. The making, execu- tion, issuance and performance by Borrower of this Agreement, each of the Notes and each and all of the other Loan Documents to which Borrower is a party have been duly authorized by all necessary corporate action and will not violate any provision of the Articles of Incorporation or by-laws of Borrower, will not violate any agreement, trust or other indenture or instrument to which Borrower is a party or by which Borrower or any of Borrower's property is bound, so that this Agreement, the each of the Notes and each and all of the other Loan Documents when executed and delivered will be valid and binding obligations of Borrower, enforceable in accordance with their respective terms. In addition, Borrower owns or has the exclusive right to use, without lien or encumbrance, all trademarks, trade names and copyrights employed, or to be employed, by Borrower in the conduct of Borrower's business. 5.1.3 Financial Condition. The audited balance sheet of Hudson together with income and surplus statements as at and for the year ended December 31, 1988 and the unaudited balance sheets of Hudson together with income and surplus statements as at and for the six months ended June 30, 1989 heretofore furnished to Agent, are complete and correct in all respects, have been prepared in accordance with GAAP and fairly present the financial condition of Hudson as of said dates and the results of Hudson's operations for the periods then ended. Except as set forth on Schedule 5.1.3 hereto, neither Borrower nor Hudson has any fixed, accrued or contingent obligation or liability for taxes or otherwise that is not disclosed or reserved against on their respected balance sheets or as otherwise previously disclosed as written to Agent. Hudson has filed all federal, state and local tax returns required to be filed by it with any taxing authority. since June 30, 1989, there has been no material adverse changes in the condition of Hudson's financial position or otherwise from that set forth in the balance sheet as of said date. Borrower does not believe, and has no reason to believe, that there has been or will be a change relating to the Business of Hudson that would cause a Materially Adverse Effect on Borrower. 5.1.4 ComDliance with Reaulations T. U and X. Borrower is not engaged principally and will not engage principal- ly, or as one of Borrower's important activities, in the business of extending credit for the purpose of purchasing or carrying margin stock (within the meanings of Regulations T, U and X of the Board of Governors of the Federal Reserve System). 5.1.5 prioritv of Liens: Location and Condition of Collateral. Except as provided in Exhibit 5.1.5 hereof, the Collateral will be owned absolutely by Borrower or the Guarantors, as the case may be, be free and clear of all liens, encumbrances, security interests or other rights of third parties, excepting only: (i) the rights and interests granted to Lenders herein and in the other Loan Documents: (ii) the liens and security interests in connection with the Subordinated Debt: and (iii) Permitted Liens. Upon perfection of Lenders' security interests hereunder and under the other Loan Documents, Lenders will have and obtain a first priority security interest in the Collateral: 5.1.6 No Litiaation. Except as set forth on Exhibit 5.1.6 hereof, there are no material suits or proceedings pending, or, to the knowledge of Borrower, threatened against or affecting Hudson or the Borrower and neither Hudson nor Borrower is in default, nor has there occurred any event which with the giving of notice or the passage of time, or both, would constitute a default, in the performance of any agreement to which either Hudson or the Borrower may be a party or by which Hudson or the Borrower is bound or with respect to any order, writ, injunction, or any decree of any court, or any federal, state, municipal or other government agency or instrumentality, domestic or foreign: 5.1.7 ComDliance. Except as set forth on Exhibit 5.1.7 hereof, Borrower has all Governmental Approvals necessary for the conduct of Borrower's business, and the conduct of Borrower's business is not and has not been in violation of any such Governmental Approvals or any applicable federal or state law, rule or regulation. Borrower does not require any Governmental Approvals to enter into, or perform under, this Agreement, the Notes, or any of the other Loan Documents: 5.1.8 Location of Borrower's ODerations. Exhibit 5.1.8 hereof correctly reflects the specific address of each location where Borrower will operate any portion of its (23) . business as well as all trade names employed with respect to each such location and an accurate description of the nature of the operations being conducted at each such location: 5.1.9 ERISA. No reportable event, as defined in Title IV of ERISA, has occurred with respect to any plar, subject to Title IV of ERISA and maintained for the employees of Hudson or Borrower, or of any corporation, partnership, trade or business (whether or not incorporated) which is under common control with Hudson or Borrower and is treated as a single employer with or by Hudson or Borrower under section 414(b) or (c) of the Internal Revenue Code of 1986, as amended (a "Plan"). Each Plan has been maintained, in all material respects, in accordance with its terms and all provisions of ERISA applicable thereto. Neither Hudson nor Borrower has incurred any liability to the Pension Benefit Guaranty Corporation; 5.1.10 BIQQ. Neither Hudson nor Borrower has engaged in any conduct or taken or omitted to take any actions which will, or could, if the facts and circumstances relative thereto were discovered, give rise to a criminal indictment or civil action against either of them under RICO and Borrower shall not engage in any such conduct until the Indebtedness is paid in full. No item pledg~d by Borrower as Collateral on the date hereof or at any time during the term hereof has been or will be obtained or derived, directly or indirectly, from conduct violative of RICO: 5.1.11 Government Contracts. Except as set forth on Exhibit 5.1.11 hereof, Borrower is not a party to, or a beneficiary of, any contract with any federal, state or local government or governmental agency, the termination of which might cause a Materially Adverse Effect; 5.1.12 Environmental Matters. A. Except as set forth in Schedule 5.1.12 hereof or where failure to comply would not have or result in a Materially Adverse Effect on Borrower, the conduct of Borrower's business (and the conduct of the business by HUdson), has, to the best of Borrower's knowledge, in the conduct of its business (and the business of Hudson), and the ownership and use of Borrower's (and HUdson'S) properties, complied, in all material respects, with all federal, state and local laws, rules, regulations, jUdicial decisions and decrees pertaining to the use, storage or disposal of hazardous waste or toxic materials. Schedule 5.1.12 also contains a true and correct copy of the report issued to Borrower by Benatec Associates, camp Hill, Pennsylvania relating to environmental matters concerning the property located in Wormleysburg (Cumberland County), Pennsylvania, and other information relating to environmental audits of the Real Estate. (24) B. To the best of Borrower's knowledge: (i) no hazardous substance, pollutant or contaminant (as defined in Section 101 of the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA), 42 U.S.C. 59601, as amended by the Superfund Amendments and Re-authorization Act of 1986 (Pub. L. No. 99-499, 100 Stat. 1613 (1986) (SARA) or 40 CPR Part 261, whichever is applicable) is present on the Real Estate in any quantity in excess of those allowed by applicable law: (ii) no hazardous waste, residual waste or solid waste, as those terms are defined in Section 103 of the Pennsylvania Solid Waste Management Act, 35 P.S. 56018.103 and/or 25 Pa. Code 5575.260 and 75.261 and no hazardous waste or substance within the meaning of the Hazardous sites Cleanup Act, Act of October 18, 1988, 1988 Pennsylvania Laws (commonly known as the Pennsylvania Superfund Act) is present on the Real Estate in any quantity in excess of that allowed by applicable law; (iii) the primary operations of any business being conducted on the Real Estate does not involve any hazardous substance or waste within the meaning of any other applicable state or local environmental laws, rules, regulations or ordinances; (iv) neither Borrower nor Hudson has been identified in any litigation, administrative proceedings or investigation as a responsible party for any liability under the above referenced laws or otherwise: (v) all materials that are located on the Real Estate in lawful amounts are properly stored and maintained in containers appropriate for such purposes: and (vi) the Real Estate owned or used by Borrower (or Hudson) prior to the date hereof would have complied with the provisions of this subsection of Paragraph 5.1.12. 5.1.13 Solvency. After giving effect to the transactions contemplated hereby, the McKenna Debt, the Junior Subordinated Debt, the Asset Purchase Agreement, the Notes, and the other Loan Documents: (i) the value of the assets and properties of Borrower, at a fair valuation, is greater than the total amount of Borrower's liabilities and claims, including contingent Claims; (ii) the aggregate present fair saleable value of uorrower's assets is greater than the amount that will be required to pay Borrower's probable liability on Borrower's debts, including contingent liabilities, as they become absolute and matured; (iii) Borrower has sufficient capital for the conduct of its business and has no reason to believe that in the foreseeable future that it will not have sufficient capital for the conduct of its business: and (iv) Borrower intends not to incur, and does not believe that it is incurring, obligations beyond its ability to pay such obligations as they mature. The Loan made by Lenders to Borrower at the Closing constitutes fair and reasonable consideration for the incurrence by Borrower at Closing of the obligations with respect thereto and the granting by Borrower to Lenders of the security interests in respect to the Collateral; (25) 5.1.14 Indebtedness. Borrower has no indebtedness except for indebtedness permitted under Paragraph 7.1.1 hereof, and there are no liens against Borrower or on any property of Borrower except for liens permitted under Paragraph 7.1.2 hereof: and 5.1.15 Guaranties. Borrower has not guaranteed the payment, or performance, of the debts or obligations of any other Person, except for the guaranty of checks or other negotiable instruments for collection, or as permitted under Paragraph 7.1.2 hereof. 5.2 Accuracv of ReDresentations: No Default. The information set forth herein, in the Notes, and on each of the Schedules and Exhibits hereto, the other Loan Documents and each document previously delivered to Lenders or Agent in connection herewith is complete and accurate and contains full and true disclosure of pertinent financial and other information in connection with the Loans. None of the foregoing contains any untrue statement of a material fact or omits to state a materially adverse fact necessary in order to make the information contained herein or therein not misleading or incomplete. No Event of Default or Unmatured Event of Default hereunder, under the Notes, or any of the other Loan Documents has occurred. ARTICLE 6 AFFIRMATIVE COVENANTS 6.1 Borrower's Covenants. As long as any portion of the Indebtedness remains outstanding and unpaid or Lenders have obligations under Article 2 hereof, Borrower covenants and agrees that, in the absence of prior written consent of Agent, Borrower will: A. General Covenants 6.1.1 Furnish to Agent, not later than ninety (90) days after the close of each fiscal year, statements of income and expense, and source and application of funds for Borrower for such year, and a balance sheet of Borrower as of the last day of such fiscal year, audited by Hartman & Scheuchenzuber or by such other independent certified public accountants satisfactory to Agent. In addition, within forty-five (45) days of the close of each quarterly fiscal period, other than the last quarter of each fiscal year, Borrower shall furnish to Agent Borrower's statements of income and expense, and source and application of funds, for such fiscal quarter, and a balance sheet as of the end of such fiscal quarter, each reviewed by Hartman & Scheuchenzuber or such other independent certified public accountants satisfactory to Agent. In addition, within thirty (30) days after the close of each month, Borrower shall furnish to (26) Agent Borrower's statements of income and expense for such month prepared by Borrower's management. All financial statements required hereunder or pursuant to any of the other Loan Documents shall be prepared in accordance with GAAP. In connection with the financial statements required annually and on a quarterly basis hereunder, Borrower shall deliver a ~ompliance Certificate. 6.1.2 with reasonable promptness furnish to Agent such additional information and data concerning the business and financial condition of Borrower as may be reasonably requested by Agent and afford Agent or its agents reasonable access to the financial books and records, computer records and properties of Borrower at all reasonable times and permit Agent or its agents to make copies and abstracts of same and remove such copies from Borrower's premises: 6.1.3 Cause the prompt payment and discharge of all taxes, governmental charges and assessments levied and assessed or imposed upon Borrower's assets or properties or any portion thereof, the failure of which to payor discharge could have a Materially Adverse Effect on Borrower, or upon the purchase, ownership, delivery, leasing, possession, use, operation, return or other disposition thereof, or upon the rentals, receipts or earnings therefrom, or upon or with respect to this Agreement, the Notes or the other Loan Documents, and pay all other claims which, if unpaid, might become liens or charges upon Borrower's assets or properties, provided, however, that nothing in this Paragraph 6.1.3 shall require Borrower to pay any such taxes, claims or assessments which are not overdue or which are either being contested in good faith and by appropriate proceedings, with adequate reserves therefor being available or having been set aside or have been reserved for in full: 6.1.4 Maintain the corporate existence of Borrower and all necessary foreign qualifications in good standing: continue to comply with all applicable statutes, rules and regulations with respect to the condUct of Borrower's business and maintain such necessary licenses and permits required for the conduct of Borrower's business, and immediately notify Agent of any change in Borrower's names (including trade names), principal places of business, or locations of records, offices, registered agents and Collateral: 6.1.5 Maintain general public liability, casualty, and workers' compensation insurance with respect to Borrower's business and assets in such amounts, and against such hazards and liabilities (including but not limited to: fire and casualty with extended coverage, public liability, hazard, vandalism and malicious mischief), business interruption for a period of not less than ninety (90) days, and such other coverage as Agent in the Agent's exclusive and absolute discretion may deem (27) . -'. - '" .---~. appropriate, and with such insurers as may be satisfactory to Agent. with respect to all such policies of insurance cause a certificate of insurance to be issued to Agent on behalf of the Lenders evidencing: (i) the amount of coverage: (ii) the name of the carrier: (iii) the policy number: (iv) with respect to casualty insurance insuring the Collateral, listing Lenders as "Loss Payee"; and (v) requiring the respective carriers to give Agent no less than thirty (30) days prior written notice of any proposed amendments, modification or termination thereof: 6.1.6 Promptly defend all actions, proceedings or claims affecting Borrower or Borrower's property and promptly notify Agent of the institution of, or any change in, any such action, proceeding or claim if the same is in excess of $10,000, or would have a Materially Adverse Effect on the financial condition of Borrower or Borrower's property if adversely determined; 6.1.7 Maintain, preserve and protect all Collateral and all other property used or useful in the conduct of Borrower's business and, from time to time, make all necessary or appropriate repairs, replacements and improvements thereto; 6.1.8 Provide Agent, at any time, or from time- to-time, on request, with such UCC-1 Financing statements, Landlords' Waivers, and such additional instruments or documents as Agent may, in Agent's sole and exclusive discretion, deems necessary in order to perfect, protect and maintain the first lien security interests granted to Lenders pursuant to the terms hereof or any of the other Loan Documents: 6.1.9 Promptly give written notice to Agent of the occurrence or imminent occurrence of any event which causes or would imminently cause any representation or warranty made in Article 5 hereof to be untrue at any time or which would cause an occurrence of an Event of Default or an Unmatured Event of Default hereunder, under either of the Notes, the Asset Purchase Agreement or any other Loan Document, or of any material diminution in the value of any of the Collateral or other property of Borrower; 6.1.10 Comply in all material respects with ERISA. Borrower will furnish to Agent, as soon as possible and in any event within thirty (30) days after Borrower knows or has reason to know that any reportable event, as defined in Title IV of ERISA, has occurred with respect to any plan subject to Title IV of ERISA and maintained for the employees of Borrower or of any corporation, trade or business (whether or not incorporated) which is under common control with Borrower and is treated as a single employer with Borrower under section 414(b) or (c) of the Internal Revenue Code of 1986, as amended (a "Plan"), or that the Pension Benefit Guaranty corporation or Borrower has instituted or will institute proceedings under Title IV of ERISA to terminate any (28) Plan, a certificate of the Chief Financial Officer of Borrower setting forth details as to such reportable event and the action which Borrower proposes to take with respect thereto, together with a copy of any notice of such reportable event that may be required to be filed with the Pension Benefit Guaranty Corporation, or any notice delivered by the Pension Benefit Guaranty Corporation evidencing its intent to institute such proceedings or any notice to the Pension Benefit Guaranty Corporation that such Plan is to be terminated, as the case may be. For all purposes of this Paragraph, Borrower shall be deemed to have all knowledge or knowledge of all facts attributable to the administrator of such Plan: 6.1.11 Promptly give written notice to Agent of any investigation or allegation (whether formal or informal) by any Person of any RICO violation with respect to Borrower or any Guarantor, and in connection therewith to provide Agent with such information as Agent deems reasonably necessary to protect Lenders' rights hereunder or under any other Loan Document; 6.1.12 Promptly give written notice to Agent of any investigation or allegation (whether formal or informal) by any Person of a violation of any law, statute, ordinance, rule or regulation of any Governmental Authority concerning the protection of the environment with respect to Borrower and to provide Agent with such information as Agent deems reasonably necessary to protect Lenders' rights hereunder or under any other Loan Document: 6.1.13 Provide Agent at any time or from time to time on request with such additional instruments or documents as Agent may deem necessary in order to perfect, protect and maintain the security for the Notes and Lenders' rights under this Agreement, and the Pledge Agreement: 6.1.14 On a timely basis, perform all acts and file all documents required by the FCC or any other Governmental Approval to maintain the License in good standing and to provide Agent upon such filing, true and correct copies of any and all documents filed in connection therewith. Borrower shall promptly notify Agent upon receipt of any notice, whether written or oral, by the FCC or any other Governmental Approval, the effect of which notice would be to modify, amend, or terminate the License, and Borrower shall promptly deliver a true and correct copy of all such written notices; 6.1.15 On a timely basis, pay all premiums and otherwise perform all acts necessary to maintain the Life Insurance Policies in full force and effect and promptly notify Agent upon receipt of any notice, the effect of which would be to modify, amend, or terminate either or both of the Life Insurance POlicies, (29) i I I I I I I I I I I , I I and Borrower shall promptly deliver to Agent a true and correct copy of all such written notices: and 6.1.16 On a timely basis, take any action which Agent on behalf of the Lenders may reasonably request in order to obtain and enjoy the full rights and benefits granted to Lenders by this Agreement and each other Loan Document, including at Borrower's own cost and expense, the use of Borrower's best efforts to assist in obtaining the approval of the FCC or any other Governmental Approval for any action or transaction contemplated by this Agreement which is then required by law, specifically, without limitation, upon request, to prepare, assign and file with the FCC the assignor's or transferor's portion of any application or applications or consent to the assignment of the License or transfer or control necessary or appropriate under the FCC's Rules and Regulations for approval of: (i) any sale or sales of property constituting the Collateral by, or on behalf of, the Agent, Lenders or any other holder of the Notes, or any other obligations secured hereby or ther~by: or (ii) any assumption by Agent or Lenders of voting rights or management rights in property constituting the Collateral effected in accordance with the terms of this Agreement or any other Loan Document. B. Financial Covenants. 6.1.17 Total Debt to Broadcast Cash Flow. As of each Test Date will maintain a ratio of: (a) Senior Debt, and (b) Total Debt, divided by Broadcast Cash Flow for the immediately preceding four Fiscal Quarters ending on the Test Date in amounts not to exceed: Fiscal Ouarters Endina Senior Debt Ratio Total Debt Ratio 12/31/89 - 9/30/90 12/31/90 - 9/30/91 12/31/91 - Thereafter 5.00 4.50 4.00 7.50 6.75 6.00 6.1.18 Ratio of Broadcast Cash Flow to Total Fixed Charaes. Commencing December 31, 1989 and at all times thereafter maintain a ratio of Broadcast Cash Flow for the four Fiscal Quarters ending on the Test Date to Total Fixed Charges for the same period in excess of 1.05 to 1. 6.1.19 Ratio of Broadcast Cash Flow to Pro-forma Total Debt Service. Commencing December 31, 1989 and at all times thereafter maintain a ratio of Broadcast Cash Flow for the four Fiscal Quarters ending on the Test Date to Pro-Forma Total Debt Service in excess of 1.05 to 1. (30) _.........~.;..;;.,;c 6.1.20 Broadcast Cash Flow. Establish and maintain Broadcast Cash Flow in excess of the following amounts for the following periods: $175,000 for the two Fiscal Quarters ending June 30, 1989: $325,000 for the three Fiscal Quarters ending September 30, 1989: and $575,000 for the four Fiscal Quarters ending December 30, 1989. 6.2 Indemnification. Borrower hereby indemnifies and agrees to protect, defend, and hold harmless Agent and each of the Lenders and any Person that Agent or either Lender has a duty to indemnify with respect to this Agreement or the Loans, from and against any and all losses, damages, expenses or liabilities of any kind or nature and from any suits, claims, or demands, including all reasonable counsel fees incurred in investigating, evaluating or defending such claim, suffered by any of them and caused by, relating to, arising out of, resulting from, or in any way connected with this Agreement, the Notes, the Guaranty, the Pledge Agreement, the Mortgage or the other Loan Documents and any transaction contemplated herein or therein (other than actions arising out of the gross negligence of Agent or either of the Lenders or actions brought in good faith by Borrower against Agent or either of the Lenders), including, but not limited to, claims based upon any act or failure to act by Agent or either of the Lenders in connection with this Agreement, the Notes, the Guaranty, the Mortgage, the Pledge Agreement, or any of the other Loan Documents and any transaction contemplated herein or therein. If Borrower shall have knowledge of any claim or liability hereby indemnified against, it shall promptly give written notice thereof to Agent. THIS COVENANT SHALL SURVIVE PAYMENT OF THE INDEBTEDNESS. 6.2.1 Agent shall promptly give Borrower written notice of all suits or actions instituted against Agent or either of the Lenders with respect to which Borrower has indemnified Agent or Lenders, and Borrower shall have the right to participate in any such suit or action. Agent and each of the Lenders shall also have the right, at the expense of Borrower, to participate in or, at Agent's election, assume the defense or prosecution of such suit, action, or proceeding, but only with the consent of Borrower or in the event Borrower fails to provide defense to Agent and Lenders, and in the latter event Borrower may employ counsel and participate therein. Agent shall have the right to adjust, settle, or compromise any claim, suit, or judgment after notice to Borrower, unless Borrower desires to litigate such claim, defend such suit, or appeal such judgment and simUltaneously therewith deposits with Agent additional collateral security sufficient to pay ary judgment rendered, with interest, costs, legal fees and exper:ses: and the right of Lenders to indemnifica- tion under this Agreoement shall extend to any money paid by Lenders in settlement or compromise of any such claims, suits, and judg- ments in good faith, after notice to Borrower. (31) 6.2.2 If any suit, action, or other proceeding is brought by Agent or either of the Lenders against Borrower for breach of Borrower's covenant of indemnity herein contained, separate suits may be brought as causes of action accrue, without prejudice or bar to the bringing of subsequent suits on any other cause or causes of action, whether theretofore or thereafter accruing. ARTICLE 7 NEGATIVE COVENANTS 7.1 Covenants of BORROWER. So long as any portion of the Indebtedness shall remain outstanding and unpaid, Borrower covenants and agrees that, in the absence of prior written consent of the Agent, Borrower will not: 7.1.1 Except as set forth on Exhibit 7.1.1 hereof, create, incur, assume or permit to exist any mortgage, lien, pledge, charge, security interest or other encumbrance upon any of the Collateral except: (i) the security interests and liens in favor of Lenders created hereby or in any of the other Loan Documents: (ii) the security interests and liens in favor of McKenna securing the McKenna Debt and the security interests and liens in favor of the Fund securing the Junior Subordinated Debt provided that all such security interests and liens are subordinate to the security interests and liens in favor of Lenders as more particularly provided in the Inter creditor Agreement: (iii) purchase money security interests with respect to equipment (not integral to the operation of the Radio Stations) purchased by Borrower in the ordinary course of business, but in no event securing obligations which in the aggregate at anyone time exceed Fifty Thousand ($50,000) Dollars: and (iv) Permitted Liens. Borrower shall not allow any of the Collateral to be levied upon in any legal process; 7.1.2 Create, assume, incur, or otherwise become liable under any guaranty for, or any indebtedness for borrowed money to, any Person, other than: (i) loans from Lenders to Borrower; (ii) the McKenna Debt: (iii) the Junior Subordinated Debt: (iv) trade indebtedness in the ordinary course of business; and (v) purchase money debt with respect to equipment (not integral to the operation of the Radio stations) purchased by Borrower in the ordinary course of business, but in no event with anyone time to exceed the sum of Fifty Thousand ($50,000) Dollars. 7.1.3 Sell, enter into an agreement of sale, enter into an agreement to sell and lease-back, convey, lease, assign, transfer, pledge, grant a security business: mortgage or lien in, or otherwise dispose of, any of the Collateral except: (i) sale of Inventory in the ordinary course of business: or (32) (ii) Subject to the provisions of Paragraphs 7.1.1 and 7.1.2 hereof, purchase money security interests created in the ordinary course of business in connection with the purchase of personal property (excluding capital Expenditures) by Borrower: 7.1.4 Except as provided in connection with the Junior Subordinated Debt, issue any additional securities, or change the general character of its business from that in which it is currently engaged: enter into proceedings in total or partial dissolution: merge or consolidate with or into any other Person, or permit another Person to merge into it, or acquire all or substantially all of the assets or securities of any other Person or divide into two or more corporations, or exchange its shares for the shares or other securities or obligations of any Person; 7.1.5 Engage in any conduct or take or fail to take any actions which will, or could, if the facts and circum- stances relative thereto were discovered, give rise to any criminal indictment or civil action against Borrower under RICO: 7.1.6 Incorporation or By-laws, or fiscal year: Amend or change its Articles of methods of accounting and depreciation, 7.1.7 Invest in, transfer any assets to, or do business through, any subsidiary: 7.1.8 Wind-up, liquidate or dissolve Borrower or any subsidiary of Borrower; 7.1.9 Use any portion of the loan proceeds to, purchase or carry, or to reduce, refinance or retire any credit incurred to purchase or carry, "margin stock" (within the meaning of Regulations U and X of the Board of Governors of the Federal Reserve system) or to extend credit to others for the purpose of purchasing or carrying any margin stock. If requested by Agent on behalf of Lenders, Borrower will furnish statements in conformity with the requirements of Federal Reserve Form U-1 referred to in said Regulation; provisions of Documents, or 7.1.10 Violate or fail to perform any of the this Agreement, the Notes, or any of the other Loan the Asset Purchase Agreement: 7.1.11 means of self-insurance insurance company: Insure Borrower or Borrower's property by or by means of an affiliated or "captive" 7.1.12 Change or move the executive office of Borrower or locations of the Collateral: (i) outside the United state~: or (ii) to locations other than its current location (33) without first giving Agent at least thirty (30) days prior written notice of its intention to do so, which notice shall give the street address, telephone number and such other information as Agent may request in order to maintain Agent's perfected security interests in the Collateral hereunder; 7.1.13 Make loans to or invest in the securities of any individual, firm or corporation, except that Borrower may make: (i) investments in marketable direct obligations of the United states of America or any agency thereof; (ii) certificates of deposit, commercial paper and bankers' acceptance of either Lender (or an Affiliate of either Lender) or of other banks or institutions (inClUding corporations) provided that such securities of other banks or institutions (inClUding corporations) are rated in the highest rating category of A-1 and P-1 by both Standard and poors Corporation and Moody's Investor Services: and (iii) repurchase agreements which are at least fully collateralized by securities constituting direct obligations of the United States of America, provided that such obligations and certificates of deposit, commercial paper, bankers' acceptance or repurchase agreements have a maturity of one year or less from the date of purchase; 7.1.14 Enter into any transaction, including, without limitation, the purchase, sale or exchange of property or assets or the rendering of any service with or to any Affiliate of the Borrower, except in the ordinary course of business and pursu- ant to the reasonable requirements of Borrower's business and upon fair and reasonable terms not less favorable to Borrower than Borrower would obtain in a comparable arm's-length transaction with any third party other than such Affiliate: 7.1.15 Amend or modify in any fashion or prepay all, or any part of, the McKenna Debt (inClUding the redemption or re-issuance of all or any part of the McKenna Note or permit the assignment of any right, including, without limitation, any lien or security interest, under any document evidencing or securing the McKenna Debt) or the Junior Subordinated Debt; 7.1.16 Amend or modify in any fashion, or terminate the Management Agreements. Borrower expressly acknowledges that Lenders have agreed to enter into and perform hereunder expressly conditioned upon the direct day-to-day management of the business of the Borrower by Danzis and Hillard: accordingly, Borrower agrees that without the prior written consent of Agent, Borrower shall not operate its business, nor the Radio Stations thereunder, by any other Persons other than those individuals under the direct day-to-day supervision of Danzis or Hillard; (34) ~:,'?:i. 7.1.17 Make Restricted Payments prior to the Revolving Credit Termination Date; provided however that after the Revolving Credit Termination Date, Borrower may make Restricted Payments only out of Cumulative Excess Cash Flow: or 7.1.18 Make Capital Expenditures in any Fiscal Year in excess of sixty Thousand ($60,000) Dollars. ARTICLE 8 DEFAULT 8.1 Events of Default. The occurrence of anyone or more of the following events, conditions or states of affairs shall constitute an "Event of Default" hereunder, under the Notes, the Pledge Agreement, the Guaranty, the Mortgage and under each and all of the other Loan Documents: 8.1.1 Failure by Borrower to pay any principal or interest due on the Loans, or any portion thereof, when the same becomes due; 8.1.2 The failure by Borrower to observe or perform any agreement, condition, undertaking or covenant in: (i) this Agreement, the Notes, the Guaranty, the Pledge Agreement, the Mortgage or any other Loan Document to which the Borrower or either of the Guarantors is a party, or in any other agreement by, between, or among Borrower and either of the Lenders, or Borrower and Agent; or (ii) any agreement, lease, mortgage, note or other obligation to which Borrower is a party or by which Borrower is bound (including but not limited to the McKenna Debt and the Junior Subordinated Debt, the respective promissory notes and security interests thereunder), the failure of which would have a Materially Adverse Effect on Borrower; 8.1.3 A determination by Agent that any representation or warranty made in this Agreement, the Notes, the Pledge Agreement, the Guaranty, the Mortgage or in any other of the Loan Documents, furnished by Borrower or either of the Guarantors in connection with making of this Agreement, the making of the Loans hereunder, or in compliance with the provisions hereof or thereof, shall have been materially false or erroneous in any respect when mader 8.1.4 Borrower shall generally not be paying its debts as they mature, or files a voluntary petition or suffers any involuntary petition to be filed against Borrower under any provision of any state or Federal bankruptcy or insolvency statute (which involuntary petition is not dismissed within forty-five (45) days of filing), or either makes an assignment or any other transfer of assets for the benefit of Borrower's creditors, or Borrower applies for or consents to the appointment of a receiver (35) . for its assets, or suffers the filing against its property of any attachment or garnishment: 8.1.5 Borrower shall: (i) cease to conduct its business substantially as the business is now conducted: or (ii) there shall be a change in its business which will result in a Materially Adverse Effect: and in either event Agent determines that such event materially and adversely affects Lenders' security for the obligations of Borrower under this Agreement: 8.1.6 Entry of a final judgment or judgments against Borrower by a court of law in an amount exceeding an aggregate of $50,000, enforcement of which judgment or judgments has not been stayed or satisfied; 8.1.7 Except as provided in Paragraph 7.1.1 hereof, an imposition of any lien or series of liens against Borrower or Borrower's assets, whether arising by operation of law or by consent, which are not discharged or stayed pending appeal within sixty days of entry; 8.1.8 Loss or partial invalidity of Borrower's corporate existence not reinstated within thirty days after notice to or knowledge of Borrower: or 8.1.9 The death or substantial disability of either Danzis or Hillard at a time when either Danzis or Hillard is either deceased or substantially disabled. 8.2 Remedies on Default. 8.2.1 In General. Upon the occurrence and continuation of any Event of Default, Agent shall, upon written notice to Borrower, forthwith declare all Indebtedness to be immediately due and payable, without protest, demand or other notice (which are hereby expressly waived by Borrower) and, in addition to the rights specifically granted hereunder or now or hereafter existing in equity, at law, by virtue of statute or otherwise (each of which rights may be exercised at any time and from time to time), Agent on behalf of Lenders may exercise the rights and remedies available to Lenders at law or in equity or under this Agreement, the Notes, the Guaranty, the Pledge Agreement, the Mortgage or any of the other Loan Documents or any other agreement between Borrower and either of the Lenders, or Borrower and Agent, in accordance with the respective provisions thereof. 8.2.2 Notwithstanding any provision in this Agreement to the contrary, the remedies of the Lenders hereunder are subject to the provisions of the Communications Act of 1934, as amended, and the Rules and Regulations promulgated thereunder (36) (collectively the "Communications Act"), which among other matters currently prohibits: (i) without the prior approval of the FCC, the assignment or transfer of control of the License (either directly or indirectly): and (ii) the creation of a security interest in the License. Lenders shall not exercise any of Lenders' remedies hereunder inconsistent with the provisions of the Communications Act then in effect. 8.3 Set-Off Riahts UDon Default. Upon and during the continuance of any Event of Default, Lenders in addition to any remedies set forth above, shall have the right at any time and from time to time without notice to Borrower (any such notice being expressly waived by Borrower), and to the fullest extent permitted by applicable Rules, to set off, to exercise any banker's lien or any right of attachment or garnishment and apply any and all balances, credits, deposits (general or special, time or demand, provisional or final), accounts or monies at any time held by either Lender and other indebtedness at any time owing by either Lender to or for the account of Borrower, against any and all of the obligations of Borrower now or hereafter existing under this Agreement, the Notes, the Guaranty, the Pledge Agreement, the Mortgage or any other Loan Document, whether or not Agent or either Lender shall have made any demand hereunder or thereunder. All net funds recovered under the rights provided in this Section 8.3 shall be distributed among Lenders according to their proportionate interest of the entire Indebtedness then outstanding. Each Lender agrees to hold such funds as an agent for the other Lender to be distributed among Lenders as provided herein. It is understood and agreed that the lien and security interest accorded hereunder does not extend to certificates of deposit, savings accounts, payroll accounts and other special purpose accounts, repurchase agreements, escrow accounts, bankers' acceptances, investment instruments issued by the U.S. Government or U.S. Governmental Agencies, commercial paper, assets in safe deposit boxes or accounts in the Borrower's name as a trustee or co-trustee and that the right granted hereunder to Lenders, may not be exercised by such Lenders unless Agent determines to exercise its rights of set-off prior to or concurrently with the exercise of such rights by the other Lender. 8.4 Sinaular or MultiDle Exercise: Non-Waiver. The remedies provided herein, in the Notes, the Guaranty, the Pledge Agreement, the Mortgage and in the other Loan Documents or otherwise available to Agent or either of the other Lenders at law or in equity and any warrants of attorney therein contained, shall be cumulative and concurrent, and may be pursued singly, successively or together at the sole discretion of Agent, and may be exercised as often as occasion therefor shall occur: and the failure to exercise any such right or remedy shall in no event be construed as a waiver or release of the same. (37) ARTICLE 9 AGENT 9.1 Aooointment. The Philadelphia National Bank is hereby appointed Agent hereunder by each Lender, and each Lender hereby authorizes Agent to act hereunder and under the other instruments and agreements referred to herein (including, without limitation, the Notes, the Pledge Agreement, the Guaranty, the Mortgage and the other Loan Documents) as its agent hereunder and thereunder. Agent agrees to act as such upon the express conditions contained in this Article 9 and in the other Loan Documents and agrees to take such action as required by the provisions hereof. The provisions of this Article 9 are solely for the benefit of Lenders; Borrower shall not have any rights as a third party beneficiary of any of the provisions hereof except with respect to the provisions requiring Borrower's consent or that certain matters be satisfactory to Borrower. In performing its functions and duties under this Agreement, Agent shall act solely as agent of Lenders and does not assume and shall not be deemed to have assumed any obligation towards or relationShip of agency or trust with or for Borrower. 9.2 Powers: General Immunitv. 9.2.1 Duties Soecified. Each Lender irrevocably authorizes Agent to take such action on such Lender's behalf and to exercise such powers hereunder and under the other instruments and agreements referred to herein (including, without limitation, the Loan Documents) as are specifically delegated to Agent by the terms hereof and thereof, together with such powers as are reasonably incidental thereto. Agent shall have only those duties and responsibilities which are expressly specified in this Agreement and the other Loan Documents and Agent may perform such duties by or through its agents or employees. Agent shall" not have by reason of this Agreement a fiduciary relationship in respect of any Lender; and nothing in this Agreement, expressed or implied, is intended to or shall be so construed as to impose upon Agent any obligations in respect of this Agreement or the other instruments and agreements referred to herein except as expressly set forth herein or therein. Agent agrees to transmit to the Lenders any documents which have been transmitted by Borrower to Agent for transmittal to Lenders, inClUding, but not limited to, documents received by Agent under Section 10.7 hereof. Notwithstanding anything ~erein to the contrary: (i) Agent shall not, without the prior consent of both of the Lenders waive any obligation of or performance by Borrower or any right of Lenders hereunder or under the other Loan Documents except for waivers pertaining to events or situations arising in the ordinary course and which do not include a Materially Adverse Effect on Borrower's financial condition or ability to operate its business: (ii) Agent shall not accelerate the due date of any Loan, and upon receiving such vote shall take (38) such action in accordance with the provisions hereof: and (iii) Agent shall not take any action which requires the vote or consent of Lenders unless and until such vote or consent shall have been obtained. 9.2.2 No Resnonsibilitv for Certain Matters. Agent shall not be responsible to either Lender for the execution, effectiveness, genuineness, validity, enforceability, collectibility or sUfficiency of this Agreement, the Notes, the Guaranty, the Pledge Agreement, the Mortgagor or the other Loan Documents, or for any representations, warranties, recitals or statements made herein or therein or made in any written or oral statement or in any financial or other statements, instruments, reports, certificates or any other documents in connection herewith or therewith furnished by or on behalf of Borrower to Agent or either Lender, or be required to ascertain or inquire as to the performance or observance of any of the terms, conditions, provisions, covenants or agreements contained herein or therein or as to the use of the proceeds of the Loans or of the existence or possible existence of any Event of Default or Unmatured Event of Default. 9.2.3 Exculnatorv Provisions. Agent, or any of its officers, directors, employees or agents shall not be liable to Lenders for any action taken or omitted hereunder or in connection herewith (including, without limitation, any act or omission under the Notes, the Guaranty, the Pledge Agreement, the Mortgage, or the other Loan Documents) unless caused by its or their gross negli- gence or willful misconduct. If Agent shall request instructions from Lenders with respect to any act or action (inClUding the failure to take an action) in connection with this Agreement, the Notes, the Guaranty, the Pledge Agreement, the Mortgage, or the other Loan Documents, Agent shall be entitled to refrain from such act or taking such action unless and until Agent shall have received instructions from the Lenders. Without prejudice to the generality of the foregoing: (i) Agent shall be entitled to rely, and shall be fully protected in relying, upon any communication, instrument or document believed by it to be genuine and correct and to have been signed or sent by the proper person or persons, and shall be entitled to rely and shall be protected in relying on opinions and judgments of attorneys (who may be attorneys for Borrower), accountants, experts and other professional advisors selected by it; and (ii) neither Lender shall have any right of action whatsoever against Agent as a result of Agent's acting or (where so instructed) refraining from acting under this Agreement or the Notes, the Guaranty, the Pledge Agreement, the Mortgage, or other Loan Documents in accordance with the instructions of the Lenders. Agent shall be entitled to refrain from exercising any power, discretion or authority vested in it under this Agreement, the Notes, the Guaranty, the Pledge Agreement, the Mortgage, or (39) other Loan Documents which requires the consent of Lenders unless and until it has obtained the instructions of the Lenders. 9.2.4 Aoent Entitled to Act as Lender. The agency hereby created shall in no way impair or affect any of the rights and powers of, or impose any duties or obligations upon, Agent in its individual capacity as a Lender hereunder. With respect to its granting of Loans, Agent shall have the same rights and powers hereunder as any other Lender and may exercise the same as though it were not performing the duties and functions delegated to it hereunder, and the terms "Lender" or "Lenders" or any similar term shall, unless the context clearly otherwise indicates, include Agent in its individual capacity. Subject to the provisions hereof, Agent and its Affiliates may accept deposits from, lend money to and generally engage in any kind of banking, trust, financial advisory or other business with Borrower or any Affiliate of Borrower as if it were not performing the duties specified herein, and may accept fees and other consideration from Borrower or an Affiliate of Borrower for services in connection with this Agreement and otherwise without having to account for the same to the other Lender. 9.2.5 No ResDonsibilitv for Creditworthiness. Each Lender represents and warrants that it has made its own independent investigation of the financial condition and affairs of Borrower in connection with the making of the Loans hereunder and has made and shall continue to make its own appraisal of the creditworthiness of Borrower. Agent shall not have any duty or responsibility either initially or on a continuing basis to make any such investigation or any such appraisal on behalf of Lenders or to provide any Lender with any credit or other information with respect thereto whether coming into its possession before the making of the Loans or any time or times thereafter, and Agent shall further have no responsibility with respect to the accuracy of or the completeness of the information provided to Lenders. 9.2.6 Rioht to Indemnifv. Each Lender severally agrees to indemnify Agent, proportionately to its proportionate share of the entire Indebtedness then outstanding, to the extent Agent shall not have been reimbursed by Borrower, for and against any and all liabilities, Obligations, losses, damages, penalties, actions, jUdgments, suits, costs, expenses (inClUding, without limitation, counsel fees and disbursements) or disburse- ments of any kind or nature whatsoever which may be imposed on, incurred by or asserted against Agent in performing its duties hereunder or in any way relating to or arising out of this Agree- ment; Drovided that no Lender shall be liable for any portion of such liabilities, obligations, losses, damages, penalties, actions, jUdgments, suits, costs, expenses or disbursements resulting from Agent's gross negliqence or willful misconduct. If any indemnity furnished to Agent for any purpose shall, in the opinion of Agent, (40) be insufficient or become impaired, Agent may call additional indemnity and cease, or not commence, to do the acts indemnified against until such additional indemnity is furnished. 9.2.7 Further Information. Agent shall use its best efforts to obtain from Borrower such information concerning Borrower as any Lender may reasonably request. In addition, Agent shall distribute to Lenders such information, reports and Financial statements as Agent receives from Borrower pursuant to the provisions hereof, promptly after the receipt of the same. ARTICLE 10 MISCELLANEOUS 10.1 Inteoration. This Agreement, the Notes, the Guaranty, the Pledge Agreement, the Mortgage and all of the other Loan Documents shall be construed as one agreement, and in the event of any inconsistency, the provisions of the Notes shall control over the provisions of this Agreement or any other Loan Document, and the provisions of this Agreement shall control the provisions of any other Loan Document. This Agreement, the Notes, the Guaranty, the Pledge Agreement, the Mortgage and the other Loan Documents contain all the agreements of the parties hereto with respect to the subject matter of each thereof and supersede all prior or contemporaneous agreements with respect to such subject matter. 10.2 Modification and particination. 10.2.1 Modifications or amendments of or to the provisions of this Agreement, the Notes, or any other Loan Document shall be effective only if set forth in a written instrument signed by Agent, each of the Lenders and Borrower. 10.2.2 Either of the Lenders may in their sole discretion enter into a participation arrangement with respect to any Loan or commitment made under this Agreement and may provide all information in its possession relating to Borrower to any current or prospective participating lender. A participation or assignment by Lender to an Affiliate of Lender shall not be prohibited or restricted in any manner. 10.3 Notices. Unless and until any party hereto shall have given notice to the other parties hereto in accordance with the provision of this Section 10.3, any notice or other communication by one party hereto to the other shall be in writing and shall be deemed to have been validly given upon receipt if hand delivered, or by overnight delivery service or by facsimile telecopier, or two days after mailing if mailed, first class mail, postage prepaid, return receipt requested, addressed as follows: (41) . If to Borrower: with a copy to: If to PNB (as Agent or Lender): With a copy to: If to Hamilton: Gemini Broadcasting Corporation P.O. Box 3433 Harrisburg, PA 17105 Attn: Brian E. Danzis Telecopier (717) 763-1978 McNees, Wallace & Nurick 100 Pine street P.O. Box 1166 Harrisburg, PA 17108-1166 Attn: Eric Brossman, Esquire Telecopier (717) 236-2665 The Philadelphia National Bank Broad and Chestnut streets P.O. Box 7618 Philadelphia, PA 19101-7618 Attn: Designated Officer Telecopier (215) 973-6054 Walter B. Ferst, Esquire Mesirov, Gelman, Jaffe, Cramer & Jamieson 1500 The Fidelity Building Philadelphia, PA 19109 Telecopier (215) 893-5083 Hamilton Bank 222 Market street Harrisburg, PA 17108 Attn: Thomas J. Fowlston, Vice President Telecopier (717) 234-2797 10.4 Survival. The terms of this Agreement and all agreements, representations, warranties and covenants made by Borrower in this Agreement, the Notes, the Pledge Agreement, the Guaranty, the Mortgage or in any other Loan Document shall survive the issuance and payment of the Notes and shall continue as long as any portion of the Indebtedness shall remain outstanding and unpaid: provided, however, that the provisions set forth in Paragraph 2.5.1 and sections 6.2 and 10.7 hereof shall survive,the payment of the Indebtedness. Borrower hereby acknowledges that Lenders have each relied upon the foregoing in making the Loans. 10.5 Closina. Closing hereunder shall be held on October 12, 1989 at the offices of Mesirov, Gelman, Jaffe, Cramer & Jamieson, 1500 The Fidelity Building, Philadelphia, Pennsylvania 19109, or at such other time and place as the parties hereto may determine. (42) ............~_ti^;f. 10.6 Successors and Assianst Governina Law. This Agree- ment shall be binding upon and inure to the benefit of the respec- tive parties hereto, and, except as provided in Paragraph 10.2.2 hereof, no party may assign this Agreement, or any rights or duties arising hereunder, without the express prior written consent of each of the other parties hereto. THIS AGREEMENT SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH THE INTERNAL LAWS OF THE COMMONWEALTH OF PENNSYLVANIA FOR CONTRACTS MADE AND TO BE PERFORMED IN PENNSYLVANIA. 10.7 Jurisdiction: Waiver of Jurv Trial. Other than with respect to actions in mortgage foreclosure upon the Mortgage which shall be brought and maintained in Cumberland County, Pennsylvania, any and all actions at law or in equity relating to this Agreement and the Indebtedness shall be brought, and jurisdiction and venue shall be had exclusively, in the courts of Philadelphia County, Pennsylvania or the United States District Court for the Eastern District of Pennsylvania and each Lender hereby further appoints Agent as its agent to receive and accept service of process on behalf of each Lender in any such proceeding. BORROWER, AGENT AND EACH OF THE LENDERS EXPRESSLY WAIVES ANY RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING HEREUNDER OR WITH RESPECT HERETO. 10.8 Excess PaYments. If determined by a court of competent Jurisdiction that Borrower has paid any interest under the terms of the Notes at a rate higher than the maximum rate allowed by applicable law, then such excess payment shall be credited as a payment of principal unless Borrower notifies Agent in writing to return the excess payment to Borrower. 10.9 Partial Invaliditv. If any provision of this Agreement shall for any reason be held to be invalid or unenforce- able, such invalidity or unenforceability shall not affect any other provision hereof, but this Agreement shall be construed as if such invalid or unenforceable provision had never been contained herein. 10.10 Comoliance with Rules. Lenders shall not be re- quired by operation or effect of any provision of this Agreement to violate any statute or regulation under state or federal law, including all Rules. 10.11 Headinas. The heading of any Article or Section in this Agreement is for convenience of reference only not be deemed to amplify, limit, modify or give full the provisions thereof. contained and shall notice of (43) IN WITNESS WHEREOF, Borrower, Agent and each of the Lenders have executed this Agreement under seal, intending to be legally bound hereby, as of the day and year first above written. The Philadelphia National Bank, as lan. La"'" ~?. 4""// By: ...,~~ El z~bet lmore, vice President Hamilton Bank, as Lender By: Att dent [Corporate Seal] (44) SCHEDULE A IE9:R1P1'ICN (E ~ ~'IE ALL 'ntAT CDtA!J tract or puce! ot land I1Wate ID UI. Voral.~.bur. Boroulh. Couot)' ot Cuaberlan4. COalOovealtJI ot 'ellDl)'lnDSa. 1>oII04.d ""d dllcr1b.d II tollow : ~INlI/lC at a .pb 111 Poplar Cburch 110&4 (L.Il. 21021). ..Sd poSnt bdna on the proJ.c\100 of \b. .ouUlero rlpt-of-va)' ot VaU' 110&4 (uno~ned). prevloul1)' ret.rred \0 at lren\wood 110&4 (\IIIopellld) on a plan of lot. of ArUnetoo H.lehU; THDCI: 10 ucI about tlw c.oter ot Poplar Church 110&4. .ouUl ~ d'lr.lI, 32 .Snut... 1&0 IIcond. tal\. a dS.t&nc. ot 601.00 teet to a .plke; 'l'HDlCE l.avllll Poplu Churclllloacl Ileal land. ot Hu.co CorporaUon, .outh 511 delree.. 119 81nute.. 00 IIcODd. Vllt. a dS.t&Dc. ot 515.89 teet to an Sron pin; TKEIICI: alone Lone MeaclOYI Tovnhou.... a coo4081oSUII. prlYSoul1)' a portion ot thSt tract, and Jortllvood 1111., a .ub41vl.Soo, oorth 1&0 d'lr..., III 81nute.. 00 .econdl velt. . dS .t&nc. ot 599.98 teet to a .pn. So th. 10terl.cUon ot lrentwood lloa4 and Arnold Street; THDlCI: &lona UI. atoreNnUooed VatU lIad rleht-ot-vay. north 511 deare", 28 81oute.. 00 IIcood. eut. a dStt&Dce ot 61&9.1&0 teet to a .pllle, the polDt ot IlXiIJIJIIIlG. CONTAININC 8.020 Acte. ot land and l~rovement. .r.cted tll.r.oo. EXCEPTING AHI> JUSEllVIIIC th.reout ""d tberetro. all UI.t certaSn tract ot land lI'""ted ancl COOYl~e4 \&0\0 tb. Iorouab ot Voral.)'.burA tr~ 1I01l1llO)'ll" Ioc.. '0)' deed dated ,.bTllU'J 10. 1959 and r.corded So Deed look ..". Vol\lN 19. Pale 218. Said tract coot&ln1lll 0.01& acr.., 801" or 1.... 80re parUcularl)' bounded and d..crlbed .. tollGVI: ImIIQfIJICl at a polot 011 tJI. vllterD Une of Arnold Stre.t. ..Id point bdnl .outll tort1 (110) d'Vee. \Veot1-oa. (21) 81nut.. 'alt, three hundred t\llnty and teo oo.-lIunc1re4th. (320.10) tilt trea \h. c.oterlln. of Poplar Church lload; TIIDCI: nor\!l tst\7-tC4U' (SII) d'&I'.1I .ev.otllO (n) 810utea 'alt. tlfty and .SxtllO one-bundredth. (SC).16) teet to a point; 'nCEIlCI. .outh torty (liO) d'lre.. tV'Dt)'-OIll (21) 81ftut" 'alt. thlr\7-three aod thlrt)'-OII' OD.-J\undredth. <33.31) teet. to a poSnt; 'l'HEIICI: .outll torty-tlve (liS) d.&I"" oSn. (09) II1nut.. "..t. -... tltt)' and tltteen one-IIundr.dUl. (SO.lS) f..t.to a polDt OD UI. ".at.rn lln. ot Arnold Street; 'l'llEllCI \lJ tJI. ""tern Un. ot Arnold Strllt north tort)' (110) d.ereea tventrone (21) 81nut.. "..t. tortl-one and \!Ilrt)' one-hundr.dtha (1&1.30) teet. to a poIDt., tJI. plac. ot IIXlIJIJIlllO. . . I Borrower desires to borrow $ , 19_ (the "Funding Date"). The undersigned hereby certifies that no Unmatured Event of Default or Event of Default under the Loan Agreement has oc- curred and is continuing. * to be funded on Exhibit 2.2.2 Notice of Borrowing By Gemini Broadcast corporation To: Hamilton Bank , 19_ This Notice of Borrowing is provided to you to evidence the desire of Gemini Broadcast corporation to borrow funds in the form of Revolving Credit pursuant to section 2.2 of the Loan and Security Agreement, dated as of October 13, 1989, by, between, and among Borrower, Agent, and Lenders (the "Loan Agreement"). All capitalized terms not defined herein shall have the same meaning as provided in the Loan Agreement unless the context clearly requires to the contrary. GEMINI BROADCAST CORPORATION BY: Brian E. Danzis, President * Enter an amount of no less than $25,000 or integral multiples of $5,000 in excess thereof. Exhibit 4.1.12 Closing certificate I, Brian E. Danzis, President and Chief Financial Officer of Gemini Broadcasting corporation, a Pennsylvania corporation ("Borrower"), in my respective capacity as President and Chief Financial Officer, in connection with the Loan and Security Agreement by, between and among Gemini Broadcasting corporation, as Borrower, The Philadelphia National Bank and Hamilton Bank as Lenders, and The Philadelphia National Bank, as Agent, dated as of October 13, 1989 (the "Loan Agreement"), do hereby deliver this certificate pursuant to section 4.1.12 of the Loan Agreement, and do hereby certify that as of the date hereof: (i) Borrower in the Unmatured Event occurring as of Each of the representations and warranties made by Loan Agreement are true and correct and, that no of Default (as defined in the Loan Agreement) is the date hereof; (ii) Borrower has fully performed each and every covenant to be performed by Borrower under the Loan Agreement and under the Asset Purchase Agreement (as defined in the Loan Agreement) as of the date hereof: and (iii) Borrower has satisfied each and all of the conditions set forth in Article IV of the Loan Agreement. IN WITNESS WHEREOF, I have hereunto set my hand this ____ day of October, 1989. GEMINI BROADCASTING CORPORATION By: Brian E. Danzis President and Chief Financial Officer . Exhibit 4.1.13 GEMINI BROADCASTING CORPORATION President's certificate - Authorized'Persons In connection with the Loan and Security Agreement by, between and among Gemini Broadcasting Corporation, as Borrower, The Philadelphia National Bank and Hamilton Bank, as Lenders, and The Philadelphia National Bank, as Agent, dated as of October 13, 1989 (the "Loan Agreement"), the undersigned hereby designates the following individuals as Authorized Persons as that term is defined in the Loan Agreement: GEMINI BROADCASTING CORPORATION By: Brian E. Danzis, President Exhibit 4.1.20 OFFICER'S CERTIFICATE The undersigned Chief Financial Officer of GEMINI BROADCASTING CORPORATION, a Pennsylvania corporation, ("Borrower") hereby certify, as to the best of his knowledge after due inquiry, on behalf of Borrower, as follows in connection with that certain Loan and Security Agreement by, between and among Borrower, The Philadelphia National Bank ("PNB") and Hamilton Bank ("Hamilton") (as "Lenders") and The Philadelphia National Bank (as "Agent") (the "Loan Agreement"): (a) This Certificate is made and delivered to Agent on behalf of Lenders in compliance with Paragraph 4.1.20 of the Loan and Agreement. All capitalized terms used herein will have the same meaning as ascribed to such terms in the Loan Agreement. The undersigned Borrower acknowledges and understands that Lenders are relying on this Officer's Certificate as a condition precedent to extending said credit and other financial accommodations to Borrower; (b) The undersigned is the qualified and acting Chief Financial Officer of Borrower and has been authorized on behalf of Borrower to execute and deliver this Certificate on behalf of Borrower. This certificate is being rendered by such individual not in his individual capacity but solely as a representative of Borrower: (c) The undersigned fully familiar with the current and historical business and financial affairs of Borrower and Hudson Group Limited Partnership ("Hudson"), its precessor-in-interest, including, without limitation, the matters set forth herein: (d) The undersigned has reviewed the following and is familiar with the process pursuant to which each of the items listed below were prepared: (i) The Valuation Statement of Borrower, dated the date hereof, a copy of which is attached hereto and made a part hereof, giving effect to the Loans made by Lenders to Borrower pursuant to the Loan Documents, which statement has been prepared in good faith by the management of Borrower based on its knowledge and experience and the best information available to it and was derived from the Balance Sheet of Hudson, dated as of June 30, 1989, prepared by Hudson, it being the belief of the undersigned that no material change has occurred in the valuations set forth on said financial statement since such date: . (ii) The financial information and forecasts previ- ously delivered by the Borrower to Agent: and (iii) Such other information as the undersigned has deemed necessary in order to make the statements herein. (e) The term "present fair saleable value" as used herein is defined as the value which could be obtained if the assets of Borrower were sold, or disposed of, with reasonable promptness in an arms-length transaction in an existing and not theoretical market. Present fair saleable value is based upon a sale of the assets of Borrower on the assumption that the buyer at any such sale would use such assets for a purpose similar to that used by Borrower: (f) The undersigned has reached the conclusion that immediately fOllowing the execution of the Loan Documents and the consummation of the transactions contemplated in connection there- with: (i) the assets of Borrower at their present fair saleable value would be in excess of the total amount of the Borrower's liabilities (inClUding but not limited to the Senior Debt, the McKenna Debt, the Junior Subordinated Debt, contingent and unmatured liabilities): (ii) Borrower would be able to pay its debts as they become due; and (iii) Borrower would not have unreasonably small capital in order to conduct its businesses: (g) by Borrower in value and fair The Loan Documents have been executed and delivered good faith in exchange for reasonably equivalent consideration: and (h) Borrower is not incurring obligations under the Loan Documents, the McKenna Debt, the Junior Subordinated Debt, or making any transfer to any of the respective lenders with the intent to hinder, delay or defraud any entity to which Borrower is, or may become, indebted. INTENDING to be legally bound hereby, the undersigned executes this Officer's Certificate, on behalf of Borrower, as an instrument under seal as of this day of , 1989. GEMINI BROADCASTING CORPORATION By: Chief Financial Officer (2) t4A&1-tig" ;~ . EXHIBIT 5.1.3 Exceptions to Financial statements None . EXHIBIT 5.1.5 . Additional Liens None EXHIBIT 5.1.6 Litigation None . EXHIBIT 5.1.7 Governmental Approvals None . EXHIBIT 5.1.8 Location of Collateral 360 Poplar Church Road Wormleysburg, Pennsylvania 17011 P.O. Box 3433 HarriSburg, Pennsylvania 17105 EXHIBIT 5.1.11 Government Contracts None EXHIBIT 5.1.12 Environmental Matters None Exhibit 6.1.1 COMPLIANCE CERTIFICATE The undersigned President of GEMINI BROADCASTING CORPORATION, a Pennsylvania corporation, ("Borrower") hereby certifies, as to the best of his knowledge after due inquiry, on behalf of Borrower, in connection with that certain Loan and Security Agreement by, between and among Borrower, The Philadelphia National Bank, as Lender and Agent, and Hamilton Bank, as Lender (as "Lender") dated as of October 13, 1989 (the "Loan Agreement"), as follows: (a) This certificate is made and delivered to Lender in compliance with Paragraph 6.1.1 of the Loan Agreement. All capitalized terms used herein will have the same meaning as ascribed to such terms in the Loan Agreement. The undersiqned Borrower acknowledges and understands that Lender is relying on this Compliance Certificate as provided in the Loan Agreement: (b) The undersigned is the qualified and acting President of Borrower and has been authorized on behalf of Borrower to execute and deliver this certificate on behalf of Borrower. This Certificate is being rendered by such individual not in his individual capacity but solely as a representative of Borrower; (c) The undersigned has no reason to believe that an Event of Default or an unmatured Event of Default, has occurred under the Loan Agreement or any other Loan Document. (d) The undersigned certifies that, as demonstrated in Section II below, during the period covered by the accompanying financial statement and as of the date hereof, Borrower is not in default of any, and is in full and complete compliance with all, of the provisions of the Loan Agreement, including, without limitation, the financial covenants, with the following exceptions: (2) (e) The items contained in Section III below represent Borrower's calculation of Primary and Secondary Interest pursuant to Paragraph 2.1.3 of the Loan Agreement; and (f) The undersigned has reviewed this Quarterly or Annual Financial Report for the Quarter ending or the year ending and is familiar with the process pursuant to which each of the items listed below were prepared: I. Schedule of Financial Data CUrrent Ocr. 1st Prior ~ 2nd Prior ~ 3N Prior ~ Total ! Otrs. A. Broadcast Cash Flow B. Cash interest expense C. Mandatory Principal Payments D. Capital Expenditures E. Fixed Charges (B+C+D) F. Senior Debt as of . . $ $ G. Total Debt as of . . H. Proforma Total Debt Service as of (see below) 1. Interest on floating rate Senior Debt of (adjusted to exclude average scheduled principal repayments for upcoming year) at % for next 12 months: . . $ (3) .. ,.~.~"""".A.O."."..''''''._ 2. Interest on fixed rate Senior Debt of $ at , for next 12 months: $ $ 3. Scheduled principal payments due re Senior Debt tor next 12 months 4. Scheduled interest and principal payments due on McKenna debt for 12 months: $ $ Sum of items (1-4) above (4) II. Schedule of Covenant ComDliance Senior Debt to Broadcast Cash Flow: Required by Covenant 6.1.17(a): Total Debt to Broadcast Cash Flow: Required by Covenant 6.1.17(b): Broadcast Cash Flow to Total Fixed Charges: Required by Covenant 6.1.18: Broadcast Cash Flow to Proforma Total Debt Service: Required by Covenant 6.1.19: 5. Minimum Broadcast Cash Flow: 1. 2. 3. 1.05 4. 1.05 Two quarters ending June 30, 1989: Required by Covenant 6.1.20: Three quarters ending september 30, 1989: Required by Covenant 6.1.20: Three quarters ending December 31, 1989: Required by Covenant 6.1.20: $175,000 $325,000 $575,000 (5) (F/A) (G/A) (A/E) (A/H) ~ ~d."..., III. Calculation of primarv and Secondarv Interest (effective for the fiscal quarter ending 3/31/90) A. Prior Cumulative Excess Cash Flow ( ) if negative B. Calculation of current Quarter's excess Broadcast Cash Flow: (sum of items 1-8 below) 1. Broadcast Cash Flow This Quarter 2. Scheduled Payments of Principal and Interest Under the Term Loan 3. Net Repayments of the Revolving Credit 4. Scheduled Payments of Principal and Interest Under McKenna Debt 5. Capital Expenditures 6. Net Increase in Working Capital a. Current assets - Cash b. Current Liabilities c. a-b 7. Revolving Credit Debt Outstanding 8. Plus $20.000 C. Current Cumulative Excess Cash Flow (A+B) D. Prior Quarter's Deferred Unpaid Primary Interest E. This Quarter's Unpaid Primary Interest F. Total Primary Interest to be Paid (D+E) (6) G. Primary Interest Paid, if any (C-F, if C is a positive number) H. New Deferred unpaid Primary Interest (D+E-G) I. Calculation of Secondary Interest Payable 1. Current Quarters Addition to Cumulative Excess Cash Flow (A-C) (stop if A-C is a negative number) 2. Primary Interest Paid this Quarter 3. Subtotal (Item 1-Item 2) 4. Secondary Interest Payable is Item 3 X .60 INTENDING to be legally bound hereby, executes this Compliance Certificate, on behalf instrument under seal of this day of 1989. the undcrstgned of Borrower, as an GEMINI BROADCA~TING CORPORATION By: Brian E. Danzis, President (7) , None BXHIBIT 7.1.1 Liens '. ! ~ ~ lJl ~ ~ a 5 : i i ~ i $2,500,000 Philadelphia, Pennsylvania october~, 1989 TERM NOTE FOR VALUE RECEIVED, GEMINI BROADCASTING CORPORATION ("Borrower"), promises to pay to the order of The Philadelphia National Bank and Hamilton Bank ("PNB" and "Hamilton" respectively and collectively "Lenders") the principal sum of Two Million Five Hundred Thousand ($2,500,000) Dollars together with interest thereon at the Interest Rate as hereinafter provided. This Term Note is deliVered pursuant and subject to the Loan and Security Agreement, dated of eVen date herewith by and between Borrower and Lenders and PNB as Agent (the "Loan Agreement"). Reference is hereby made for a ~ore complete statement of the terms and conditions pertaining to the Term Loan which is evidenced by this Term Note. All capitalized terms used herein shall have the same meaning as ascribed to them in the Loan Agreement unless the context clearly requires to the contrary. principal pa~ents hereunder shall be paid beginning June 30, 1990 and on the last Business Day of each month thereafter in accordance with the following SChedule: Months Endina 6/30/90 - 5/31/91 6/30/91 - 5/31/92 6/30/92 - 5/31/93 6/30/93 - 5/31/94 6/30/94 - 5/31/95 6/30/95 - 11/30/95 12/31/95 Month1v Amount $ 5,000 $ 7,500 $ 10,000 $ 15,000 $ 25,000 $ 35,000 $1,540,000 Provided that no Event of Default shall have occurred and subject to provisions with respect to Conversion to Fixed Rate Loans as hereinafter provided, the Interest Rate shall be equal to the Prime Rate (as hereinafter defined) plus a margin determined by the ratio of Senior Debt to Broadcast Cash Flow ("Ratio") at the last quarterly Test Date as follows: (i) one percent if the Ratio is 3.00 to 1 or greater: or (ii) three quarters of one percent if the Ratio is less than 3.00 to 1. The Interest Rate with respect to Floating Rate Loans shall be determined in accordance with the most current Compliance Certificate and SUbject to the fn\lowing qualifications be effective ten days after Agent's receipt thereof; provided however that if the Compliance Certificate is not received by Agent when due, the higher Interest Rate shall apply to such Floating Rate Loans. Interest due hereunder will be calculated on a 360 day basis, but charged for the number ot days actually elapsed during any year or part thereof. "Prime Rate" means a fluctuating per annum rate of interest announced by PNB from time to time as its "Prime Rate", which may not necessarily represent the lowest rate charged by PNB to other borrowers, or to any class of borrowers at any time, or from time to time. Provided that no Event ot Default shall have occurred, upon no less than five (5) Business Days prior written notice by Borrower to Agent, Borrower may request that all or any portion of the Floating Rate Loans hereunder be converted to a Fixed Rate Loan (the "conversion"). Said Notice shall include: (i) the amount of the Floating Rate Loans to be converted to Fixed Rate Loans, and (ii) the ter= for which said Floating Rate Loans are to be converted to Fixed Rate Loans (the "Notice"). upon receipt of the Notice, Agent shall advise Borrower of the anticipated Fixed Rate, which Agent will charge, upon the Conversion, and Borrower shall have two (2) Business Days thereafter to confi~ in writing to Agent of the elected Conversion. The~ixed Rate shall be set by the Agent as of the date of the Conversion and that absent Agent's bad taith, Agent shall not be responsible for changes in the Fixed Rate between that estimated by the Agent and that actually charged by the Agent upon Conversion. Notwithstanding any provision herein to the contrary, no Fixed Rate Loans shall have a term which extends beyond tue Term Loan Termination Date. Interest shall be payable monthly in arrears on and to the last Business Day of each month together with the principal payments as provided herein until the entire principal balance hereunder has been paid in tull. upon no less than thirty days prior written notice to Agent, all Floating Rate Loans may be pre-paid at any time without premium or penalty. All Fixed Rate Loans m~y be prepaid prior to the expiration date of the term of the Fixed Rate Loan applicable thereto only upon payment to the Agent, on behalf of the Lenders, of a prepayment premium determined as follows: (i) on the prepayment date, the remaining payments of principal and interest that would have otherwise been payable at the expiration of the term of the Fixed Rate Loan being prepaid, shall be discounted to a present value at a rate per annum equal to the "Prepayment Yield to Maturity", as hereinafter defined, plus any costs for reserves or assessments or for reinvesting the amount being prepaid, and if such discounted value shall exceed the unpaid principal amount being prepaid, then the prepayment premium shall be in an amount equal to such excess; otherwise, no prepayment premium shall be payable: (ii) the "Prepayment Yield and Maturity" shall be the yield to maturity of the debt obligation of the United States Treasury (exclUding those commonly known as "Flower Bonds") having (2) a term substantially equal to the term of the relevant Interest Period ~aturity date nearest in expiration of the relevant Interest Period. 'rho maturity date and yield to pturity of such united States Treasury obligations shall be determined on tho basis of quotations published in The Wall street Journal on the prepayment date. I~ there shall be more than one such debt obligation of the united states Treasury maturing ncarest in time to the expiration of the relevant Interest period, the prepayment Yield to Maturity shall be the arithmetic average of the yields and maturity of all such Obligations. Any principal pa~ents hereunder not paid when due and, to the extent permitted by applicable law, any interest payment hereunder not paid when due, in any case whether at stated maturity, by notice of prepayment, by acceleration or otherwise, shall thereafter bear interest payable upon demand at a rate which is two percent per annum in excess of the applicable Interest Rate. All payments of principal and interest in respect of this Term Note shall be made by Borrower without defense, setoff or counterclaim in same day funds and deLivered to PNB on behalf of Lenders not later than 12:00 noon (Philadelphia, pennsylvania tiDe) on the date due at PNB'S offices located at Broad & Chestnut Street, philadelphia, Pennsylvania 19107 or at such other place as shall be designated in writing for such purpose in accordance with the terms of the Loan Agreement. FUnds received by PNB after that time shall be deemed to have been paid by Borrower on the next succeeding Business Day. Until notified in writing of the transfer of this Term Note, the Borrower shall be entitled to deem Lenders, or such person who has been so identified by the transferor in writing to the Borrower, as the holder of this Term Note, as the owner and holder of this Term Note. In the event the due date of any payment hereunder is not a Business Day such payment shall be due on the next succeeding Business Day provided that any such payment bearing interest shall continue to accrue interest until paid. Borrower authorizes each of the Lenders to charge Borrower's accoun~ with either Lender in order to cause timely payment to be made to Lenders of all principal, interest and fees hereunder. It shall be an EVent of Default hereunder if: (i) pa~ents hereunder are not paid in full when due; or (ii) an Event of Default shall have occurred under the I~an A9~eement. In addition to other remedies of the Lenders as set forth in this Term Note, the Loan Agreement, or any of the other Loan Documents, upon the occurrence of an EVent of Default, Lenders (3) Borrower irrevocably authoriz~s and empowers any attorney of any court of record to appear for Borrower in any and all actions, and upon the occurrence of an Event of Default to: (i) enter judgment against the Borrower for the principal sum hereof: or (ii) sign for the Borrower an agreement tor entering in any competent court an amicable action or actions to confess judgment against the Borrower for all or any part of the Indebt- edness relating to the Term Loan: and in either case for interest and costs together with a reasonable collection fee. Borrower further irrevocably authorizes and empowers any attorney of any court of record to appear for and enter judgment against the Borrower and in favor of Lenders or any other holder hereof with respect to an amicable action of replevin or any other action to recover possession of any Collateral pursuant to the Loan Agreement. Borrower waives all relief from any and all appraise- ment or exemption laws now in force or hereafter enacted. If a copy of this Term Note, verified by affidavit of an officer of the Agent or any other holder hereof, shall be filed in any proceeding or action wherein judgment is to be confessed, it shall not be necessary to file the original hereof and such verified copy shall be sufficient warrant for any attorney of any court of record to appear for and confess jUdgment against the Borrower as provided herein. Judgment may be confessed from time to time under the aforesaid powers which shall not be exhausted by one exercise thereof. may, without demand cause this Term Note to become immediatoly due and payable in full. Notwithstanding any provision in this Term Note to the contrary, the remedies of the Lenders hereunder are subject to the provisions of the Communications Act of 1934, as amended, and the Rules and Regulations promulgated thereunder (collectively the "CollllDunications Act"), which among other matters currently prOhibits: (i) without the prior approval of the FCC, the assignment or transfer of control of the License (either directly or indirect1y)r and (ii) the creation of a security interest in the License. Lenders shall not exercise any of Lenders' remedies hereunder inconsistent with the provisions of the Communications Aot then in effect. Borrower hereby waives presentment, demand for payment, notice of dishonor or acceleration, protest or notice of protest and any and all notices or demands in connection with the delivery, acceptance, performance, default or enforcement of this Term Note. The liabilities and Obligations of the Borrower hereunder shall be unconditional without regard to the liability or obligations of any other party and shall not be in any manner affected by any indulgence whatsoover granted or consented to by the Agent, including, but without being limited to, any release of (4) any party of any collateral, extension of time, rene~al, waiver or other mOdification. Any failure of Agent to exercise any right hereunder shall not be construed as a waiver of the right to exercise the same or any other right at any time and from time to time thereafter. This Term Note shnll be governed as to its validity, interpretation and effect by the internal laws of the commonwealth of pennsylvania for contracts made and to be performed in pennsyl- vania. Borrower consents to the jurisdiction of the courts of Philadelphia county, Pennsylvania, or at the election of the holder hereof, the united States District Court for the Eastern District of Pennsylvania, in any and all actions and proceedings by Agent or Landers and the Borrower, hereby irrevocably agrees to service of process by registered mail, return receipt requested, postage prepaid at the Borrower's address appearing on Agent'S or any Lender's records. BORROWER, AGENT AND EACH OF LENDERS EXPRESSLY WAIVE ANY RIGHT TO TRIAL BY JURY. The terms of this Terlll Note may not be changed or amended orally but only by an agreement in writing and signed by the party against whom enforcement of any waiver, change, modification, or discharge is sought. If any provision of this Term Note shall for any reason be held to be invalid or unenforceable, such invalidity or un- enforceability shall not affect any other provision hereof, but this Term Note shall be construed as if such invalid or unenforce- able provision had never been contained herein. The Borrower promises to pay all costs and expenses, including reasonable attorneys' fees incurred in the collection and enforcement of this Term Note. The Borrower and endorsers of this Term Note hereby consent to renewals and extensions of time at or after the maturity hereof, without notice, and hereby waive diligence, presentment, protest, demand and notice of every kind and, to the full extent permitted by law, the right to plead any statute of limitations as a defense to any demand hereunde~. IN WITNESS WHEREOF, and intending to be legallY bound hereby, the' Borrower has executed this Term Note as an instrument under seal the day and year first above written. GEMI dent 'l'\NG CORPORATION . , By: \ B [Corporate Seal] (5) ! ~ a ;; ~ g o ~ i i ~ 5 ~ . MORTG~Qg .v... THIS MORTGAGE made the \~.... day of October, 1989, among GEMINI BROADCASTING CORPORATION, a Pennsylvania corporation with an office at P.O. Box 3433. Harrisburg, Pennsylvania 17105 ("Mortgagor") THE PHILADELPHIA NATIONAL BANK ("PNB"), and HAMILTON BANK ("HAMILTON") (collectively referred to as "Lenders" or "Mort- gagee"): and THE PHILADELPHIA NATIONAL BANK as Agent for Lenders. WIT N E ssg ! ~ THAT Mortgagor has executed and delivered to Mortgagee its Note (the "Term Note") bearing even date herewith, wherein Mortgagor promises to pay to Mortgagee the principal sum of up to $2,500,000 lawful money of the United ~tates of America, advanced or to be advanced by Mortgagee to Mortgagor, with interest thereon at the rate and times, in the manner and according to the terms and conditions specified in the Term Note, all of which are incorporat- ed herein by reference. THAT Mortgagor has executed and delivered to Mortgagee its Revolving Credit Note (the "Revolving Credit Note") bearing even date herewith, wherein Mortgagor promises to pay to Mortgagee the principal sum of $500,000 or so much thereof as may at any time have been advanced or re-advanced by Mortgagee to Mortgagor with interest thereon at the rate and times, in the manner and according to the terms and conditions specified in the Revolving of Credit Note. THAT the Term Note and the Revolving Credit Note are collectively referred to as the "Notes". NOW, THEREFORE, in consideration of the indebtedness, and as security for payment to Mortgagee of the principal with inter- est, and all other sums provided for in the Notes and in this Mortgage, according to thei r respective terms and condi tions and for performance of the agreements, conditions, covenants, provi- sions and stipulations contained herein. in the Notes and in an unrecorded Loan and Security Agreement by, between and among Mortgagor, Mortgagee and Agent bearing even date herewi th ( the "Loan Agreement"), Mortgagor does hereby grant, convey and mortgage unto the Mortgagee all that certain real estate described in Exhibit "A" attached hereto and made a part hereof. Unless other- wise defined herein, all capitalized terms used herein shall have the same meaning is ascribed to such terms in the Loan Agreement. TOGETHER WITH: (1) any and all buildings and improvements erected or hereafter erected thereon; (2) any and all fixtures, appliances, machinery and equipment of any nature whatsoever, and other articles of personal property at any time now or hereafter installed in, attached to or situated in or upon the above described real estate or the build- ings and improvements erected thereon, or used or intended to be used in connection with the real estate, or in the operation of the bUildings and improvements, plant, business or dwelling situate thereon, whether or not the personal property is or shall be affixed thereto including, without limitation, all radio towers affixed to or forming a part of the real estate; (3) all building materials, fixtures, bUilding machinery and bUilding equipment delivered on site to the real estate during the course of, or in connection with, construction of the bUildings and improvements; (4) any and all tenements, heredi,taments and appurte- nances belonging to the real estate or any part thereof hereby mortgaged or intended so to be, or in any way appertaining thereto, and all streets, alleys, passages, ways, water courses and all easements and covenants now existing or hereafter created for the benefit of the Mortgagor or any subsequent owner or tenant of the mortgaged real estate over ground adjoining the mortgaged real estate and all rights to enforce the maintenance thereof, and all other rights, liberties and privileges of whatsoever kind or character, and the reversions and remainders, income, rents, issues and profits arising therefrom, and all the estate, right, title, interest, property, possession, claim and demand whatsoever, at law or in equity, of the Mortgagor in and to the real estate or any part thereof; (5) the proceeds or foregoing; replacements of any of the (6) all bUilding permits and other municipal permits and approvals issued by any governmental authority with respect to all or any portion of the Mortgaged Property; and (7) all plans, drawings, renderings and specifications wi th respect to the Mortgaged Property and any improvements con- structed or to be constructed thereon. (2) (All of the above-mentioned real estate, improve- ments, personal property and other property and interests are sometimes collectively referred to herein as the "Mortgaged Property". ) ALSO TOGETHER WITH any and all awards heretofore and hereafter made to the present and all subsequent owners of the Mortgaged Property by any governmental or other lawful authorities for taking or damaging by eminent domain the whole or any part of the Mortgaged Property or any easement therein, including any awards for any changes of grade of streets, all of which awards are hereby assigned to the Mortgagee, who is hereby authorized to collect and receive the proceeds of any such awards from such authorities and to give proper receipts and acquittances therefor, and to apply the same (after deducting any attorney I s fees and other costs of collecting the funds) toward the payment of the amount owing on account of this Mortgage and the accompanying Notes, notwithstanding the amount owing thereon may not then be due and payable; and the Mortgagor hereby agrees, upon request, to make, execute and deliver any and all assignments and other instru- ments sufficient for the purpose of assigning the aforesaid awards to Mortgagee, free, clear and discharged of any and all encumbranc- es of any kind or nature whatsoever. Mortgagor further agrees to give Mortgagee immediate notice of the act.ual or threatened com- mencement of any proceedings in the nature of eminent domain affecting all or any part of the Mortgaged Property, and promptly to deliver to Mortgagee copies of any papers served upon Mortgagor in connection wi th any such proceedings. No settlement for the damages sustained shall be made by Mortgagor without Mortgagee's prior written approval, which approval shall not be unreasonably withheld. TO HAVE AND TO HOLD the Mortgaged Property hereby con- veyed or mentioned and intended so to be, unto Mortgagee, to its own use forever. PROVIDED ALWAYS, and this instrument is upon the express condi tion that, if Mortgagor pays to Mortgagee the principal sum mentioned in the Notes, the interest thereon and all other sums payable by Mortgagor to Mortgagee as are secured hereby, in accor- dance with the provisions of the Notes and this Mortgage, at the times and in the manner specified, without deduction, fraud or delay, and if Mortgagor performs and complies with all the agree- ments, conditions, covenants, provisions and stipulations contained herein and in the Notes and in the Loan Agreement, then this Mortgage and the estate hereby granted shall cease and become void. (3) MORTGAGOR COVENANTS with the Mortgagee that until the indebtedness secured hereby is fully repaid: 1. Payment and Performance. Mortgagor shall pay to Mortgagee, in accordance with the terms of the Notes and this Mortgage, the principal and inter- est and other sums therein set forth; and shall perform and comply with all the agreements, conditions, covenants, provisions and stipulations of the Notes and this Mortgage, and the Loan Agreement. 2. Maintenance of Mortgaged Property. Mortgagor shall abstain from and shall not permit the commission of waste in or about the Mortgaged Property; shall not remove, demolish, or alter the structural character of any building erected at any time on the Mortgaged Property, without the prior written consent of Mortgagee; shall not permit the Mortgaged Property to become vacant, deserted or unguarded, and shall main- tain the Mortgaged Property in good condition and repair, reason- able wear and tear excepted, making, as and when necessary, all repairs of every nature. 3 . Insurance. (a) Mortgagor shall keep the Mortgaged Property continuously insured against loss or damage by casualty and against such other hazards as Mortgagee may reasonably requi re. Wi thout limiting the foregoing, Mortgagor shall, if requested by Mortgagee, maintain insurance as follows: (i) Insurance against loss or damage to the Mortgaged Property by fire and any of the risks covered by insur- ance of the type now known as "all risk" coverage in an amount not less than the greater of the original amount of the Notes or that percentage of the full replacement cost of all buildings and improvements now or hereafter erected thereon (exclusive of the cost of excavations, foundations, and footings below the lowest basement floor), required to satisfy any applicable coinsurance requirement in such policy and with not more than $1,000 deductible from the 1055 payable for any casualty. The policies of insurance carried in accordance with this subparagraph (i) shall contain the "Replacement Cost Endorsement"; (ii) (including coverage for Mortgaged Property and, Comprehensive public liability insurance elevators and escalators, if any, on the if any construction of new improvements (4) occurs after execution of this Mortgage, completed operations coverage for one year after construction of the improvements has been completed) on an "occurrence basis" against claims for "per- sonal injury", including without limitation bodily injury, death or property damage occurring on, in or about the Mortgaged Property and the adjoining streets, sidewalks and passageways, such insur- ance to afford immediate minimum protection to a limit of not less than that required by Mortgagee with respect to personal injury or death to anyone or more persons or damage to property; (iii) Worker's compensation insurance (including employer's liability insurance, if requested by Mortgagee) for all employees of Mortgagor engaged on or with respect to the Mortgaged Property in such amount as is reasonably satisfactory to Mortgagee, or, if minimum amounts are established by law, in such amounts; ( i v) During the course of any construction or repair of improvements on the Mortgaged Property, builder's com- pleted value risk insurance against "all risks of physical loss", including collapse and transit coverage, during such construction of or repair, with deductibles not to exceed $1,000, in non-reporting form, covering the total value of work performed and equipment, supplies and materials furnished. (v) Boiler and machinery insurance covering pressure vessels, air tanks, boilers, machinery, pressure piping, heating, air conditioning and elevator equipment and escalator equipment, provided the Mortgaged Property contains equipment of such nature, and insurance against loss of occupancy or use arising from any breakdown of such equipment, in such amounts as are reasonably satisfactory to Mortgagee; (vi) If Mortgaged Property is located in a Flood Hazard Area, flood insurance; and (vii) Such other insurance, and in such amounts, as may from time to time be required reasonably by Mortgagee against the same or other hazards. Nothing herein shall be deemed to limit or alter the insurance requirements set forth in the Loan Agreement. (b) Each policy of insurance required by the terms of Paragraph (a) shall contain an endorsement or agreement by the insurer that any loss shall be payable in accordance with the terms of such policy notwithstanding any act or negligence of Mortgagor which might otherwise result in forfeiture of such insurance, and also an agreement by the insurer waiving all rights of setoff, counterclaim or deductions against Mortgagor. ( 5 ) , . (c) Each policy of insurance required by the terms of Paragraph (a) shall be issued by a company satisfactory to Mortgagee, shall be in an amount satisfactory to Mortgagee, and if insuring against damage to the Mortgaged Property shall have attached to it, in forms satisfactory to Mortgagee, both a mortga- gee clause in favor of Mortgagee, not subject to contribution, and a lender's loss payable endorsement for the benefit of Mortgagee. Mortgagor shall furnish Mortgagee with a signed duplicate original policy with respect to all required insurance coverage. All such policies, including policies for any amounts carried in excess of the required minimum and policies not specifically required by Mortgagee, shall be in form satisfactory to Mortgagee, shall be maintained in full force and effect, shall be delivered to Mortga- gee, with premiums prepaid, shall contain a provision that such policies will not be cancelled or materially amended, which term shall include any reduction in the scope or limits of coverage, without at least thirty (30) days prior written notice to Mortga- gee, and are hereby assigned to Mortgagee as collateral security for payment of the indebtedness secured hereby. If the insurance, or any part thereof, shall expire, or be withdrawn, or become void or unsafe by reason of Mortgagor's breach of any condition thereof, or become void or unsafe by reason of the value or impairment of the capital of any company in which the insurance may then be carried, or if for any reason whatever the insurance shall be unsatisfactory to Mortgagee, Mortgagor shall place new insurance on the premises, satisfactory to Mortgagee. (d) In the event Mortgagor fails to provide, maintain, keep in force or deliver and furnish to Mortgagee the policies of insurance required by this Mortgage, Mortgagee may procure such insurance or single-interest insurance for such risks covering Mortgagee's interest, and Mortgagor will pay all premiums thereon promptly upon demand by Mortgagee, and until such payment is made by Mortgagor the amount of all such premiums, together with interest thereon at a rate which shall be two percent (2%) per annum higher than the highest interest rate specified in the Notes, shall be secured by this Mortgage. (e) In the event of loss, Mortgagor will give immediate notice thereof to Mortgagee, and Mortgagee may make proof of loss if not made promptly by Mortgagor. Each insurance company concerned is hereby authorized and directed to make payment under its respective policy or policies, including return of unearned premiums, directly to Mortgagee instead of to Mortgagor and Mortga- gee jointly, and Mortgagor appoints Mortgagee, irrevocably, as Mortgagor's attorney-in-fact to endorse any draft therefor. Mortgagee shall have the right to retain and apply the proceeds of any such insurance, at its election, to reduction of the (6) indebtedness secured hereby, or to restoration or repair of the property damaged. If Mortgagee becomes the owner of the Mortgaged Property or any part thereof by foreclosure or otherwise, such policies, including all right, title and interest of the Mortgagor thereunder, shall become the absolute property of Mortgagee. 4. Taxes and Other Charges. Mortgagor shall pay when due and payable and before interest or penalties are due thereon, all taxes, assessments, water and sewer rents and all other charges or claims which may be assessed, levied, or filed at any time against Mortgagor, the Mortgaged Property or any part thereof or against the interest of Mortgagee therein, or which by any present or future law may have priority over the indebtedness secured hereby either in lien or in distribution out of the proceeds of any judicial sale: and Mortga- gor shall produce to Mortgagee not later than such dates receipts for the payment thereof; provided that if the Mortgagor in good faith and by appropriate legal action shall contest the validity of any such item, or the amount thereof, and shall have established on its books or by deposit of cash with Mortgagee, as Mortgagee may elect, a reserve for the payment thereof in such amount as Mortga- gee may require, then Mortgagor shall not be required to pay the item or to produce the required receipts while the reserve is maintained and so long as the contest operates to prevent collec- tion, is maintained and prosecuted with diligence, and shall not have been terminated or discontinued adversely to Mortgagor. 5. Installments for Insurance, Taxes and Other Charges. Without limitation of anything else herein con- tained, upon an Event of Default and upon written request by Mortgagee, Mortgagor shall pay to Mortgagee monthly at the time when the monthly installment of principal and interest is payable, an amount equal to one-twelfth (1/12) of the annual insurance premium requi red pursuant to subparagraph 3 ( a) (i) above and the annual real estate taxes, water and sewer rents, any special assessments, charges or claims and any other item which at any time may be or become a lien upon the Mortgaged Property prior to the lien of this Mortgage; and on demand from time to time Mortgagor shall pay to Mortgagee any additional sums necessary to pay such taxes and other items, all as estimated by Mortgagee. The amounts so paid shall be security for payment of such taxes and other items and shall be used in payment thereof if Mortgagor is not otherwise in default hereunder. No amount so paid shall be deemed to be trust funds but may be commingled with general funds of Mortgagee, and no interest shall be payable thereon. If, pursuant to any provision of this Mortgage, the whole amount of the unpaid (7) principal debt becomes due and payal:.lc, Mortgagee shall have the right, at its election, to apply any amount so held against the entire indebtedness secured hereby. At Mortgagee I s option, Mortgagee from time to time may waive and after any such waiver may reinstate the provisions of this paragraph requiring the monthly payments. 6. Security Agreement. This Mortgage constitutes a security agreement under the Uniform Commercial Code and creates a security interest in the personal property included in the Mortgaged Property. Mortgagor shall execute, deliver, file and refile any financing statements or other security agreements Mortgagee may require from time to time to confirm the lien of this Mortgage with respect to such property and shall pay all costs of filing. Without limiting the foregoing, Mortgagor hereby irrevocably appoints Mortgagee attorney-in-fact for Mortgagor to execute, deliver and file such instruments for and on behalf of Mortgagor. 7. Compliance with Law and Regulations. Mortgagor shall comply with all laws, ordinances, regulations and orders of all Federal, State, municipal and other governmental authorities relating to the Mortgaged Property. Mortgagor warrants and represents that to the best of its knowledge, information and belief: (i) no hazardous sub- stance, pollutant or contaminant (as defined in Section 101 of the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA), 42 U.S.C. 99601, as amended by the Superfund Amend- ments and Re-authorization Act of 1986 (Pub. L. No. 99-499, 100 Stat. 1613 (1986) (SARA) or 40 CFR Part 261, whichever is applica- ble) is present on the Mortgaged Property; (ii) no hazardous waste, residual waste or solid waste, as those terms are defined in Section 103 of the Pennsylvania Solid Waste Management Act, 35 P.S. 96018.103 and/or 25 Pa. Code 9975.260 and 75.261 and no hazardous waste or substance within the meaning of the Hazardous Sites Cleanup Act, Act of October 18, 1988, 1988 Pennsylvania Laws 108 (commonly known as the Pennsylvania Superfund Act) is present on the Mortgaged Property in any quantity in excess of that allowed by applicable law; and (iii) Mortgagor has not been identified in any litigation, administrative proceedings or investigation as a responsible party for any liability under the above referenced laws. Mortgagor: (i) hereby covenants that it will not use, generate, treat, store, dispose of, or otherwise introduce any hazardous substances, pollutants, contaminants, hazardous waste, residual waste or solid waste (as defined above) into or on the Mortgaged Property and will not cause, suffer, allow, or permit (8) anyone else to do so, in violation of any applicable statute, law, ordinance rule or regulation; and (ii) hereby agrees to indemnify and hold Mortgagee harmless from and against all loss, liability, damage, expense and costs arising out of Mortgagor's breach of the representations and covenants of this paragraph, including any such loss, liability, damage, expense or cost suffered by Mortgagee and arising following the occurrence of any Event of Default hereunder and Mortgagee's exercise of any remedy provided herein. The foregoing indemnification shall survive foreclosure or satisfaction of this Mortgage and the acceptance by Mortgagee of a deed in lieu of foreclosure. B. Inspection. Mortgagee and any persons authorized by Mortgagee shall have the right at any time, upon reasonable notice to Mortga- gor, to enter the Mortgaged Property at a reasonable hour to inspect and photograph its condition and state of repair. 9. Declaration of No Set-Off. Within one (1) week after being requested to do so by Mortgagee, Mortgagor shall certify to Mortga~ee or to any proposed assignee of this Mortgage, in a writing duly acknowledged, the amount of principal, interest and other charges then owing on the obligation secured by this Mortgage and whether there are any set-offs or defenses against it. 10. Riqht to Remedy Defaults. In the event that Mortgagor should: (i) fail to pay taxes, assessments, water and sewer charges or other lienable claims (except in case of contest as aforesaid) or insurance premiums; (ii) fail to make necessary repairs; (Hi) permit waste; or (iv) otherwise fail to comply with its obligations hereunder or under the Notes or any other document executed in connection herewith or therewith, then Mortgagee, at its election and without notice to Mortgagor, shall have the right to make any payment or expendi ture which Mortgagor should have made, or which Mortgagee deems advisable to protect the security of this Mortgage or the Mortgaged Property, without prejudice to any of Mortgagee's rights or remedies available hereunder or otherwise, at law or in equity. All such sums, as well as costs, advanced by Mortgagee pursuant to this Mortgage shall be due immediately from Mortgagor to Mortgagee, shall be secured hereby, and shall bear interest at two percent (2%) per annum in excess of the highest interest rate otherwise provided in the Notes from the date of payment by Mortgagee until the date of repayment. (9) 11. Events of Default. Anyone or more of the following shall constitute an "Event of Default" hereunder: principal or under the grace period (a) Failure of Mortgagor to pay any interest, or any other sum, on the date Notes or this Mortgage subject to provided in the Notes or herein; installment of when it is due any applicable (b) The occurence of any "Event of Default" under the terms of the Notes, the Loan Agreement or any other document executed by Mortgagor in connection with this Mortgage; (c) Mortgagor's nonperformance of or noncompliance with any of the other agreements, conditions, covenants, provisions or stipulations contained in this Mortgage. (d) The entry of a decree or order for relief by a court having jurisdiction in the Mortgaged Property in respect of Mortgagor in an involuntary case under the federal bankruptcy laws, as now or hereafter constituted, or under any other applicable federal or state bankruptcy, insolvency or other similar law, or appointing a receiver, liquidator, assignee, custodian, trustee, .sequestrator (or similar official) of Mortgagor or for any substan- tial 9art of its property, or ordering the winding-up or liquida- tion of its affairs and the continuance of any such decree or order unstayed and in effect for a period of forty-five (45) consecutive days; (e) The commencement by Mortgagor of a voluntary case under the federal bankruptcy laws, as now constituted or hereafter amended, or under any other applicable federal or state bankruptcy , insolvency or other simi lar law, or the consent by Mortgagor to the appointment of or taking possession by a receiver, liquidator, assignee, trustee, custodian, sequestrator (or other similar official) of Mortgagor or for any substantial part of its property, or the making by Mortgagor of any assignment for the benefit of creditors, or the failure of Mortgagor generally to pay its debts as such debts become due; ( f) I f a final j ud'JlTlent for the payment of money shall be rendered against Mortgagor and, wi thin sixty (60) days after the entry thereof, such judgment shall not have been dis- charged or execution thereof stayed pending appeal, or if, within sixty (60) days after the expiration of any such stay, such judg- ment shall not have been discharged; (10) , , Whenever a state of facts exists that, upon delivery of notice and/or expiration of an applicable cure period, consti- tutes an Event of Default hereunder or an Event of Default under the Note, the Loan Agreement or any other document executed in connection wi th the debt secured hereby, notice to Mortgagor of such state of facts under any of said documents shall constitute notice under all such documents, and the cure periods afforded to Mortgagor under all such documents with respect to such state of facts shall run concurrently, not consecutively. For purposes of paragraphs (d). (e) and (f) of this Section, the word "Mortgagor" shall mean the party named as Mortga- gor on Page 1 hereof and all its guarantors, or some or any of them. 12. Remedies. (a) Upon the happening of any Event of Default, the entire unpaid balance of principal, accrued interest and all other sums secured by this Mortgage shall become immediately d'le and payable, at the option of Mortgagee, without further notice or demand. (b) When the entire indebtedness shall become due and payable, either because of maturity or because of the occur- rence of any Event of Default, or otherwise, then forthwith: (i) Forec losure: Mortgagee may insti tute an action of mortgage foreclosure, or take such other action at law or in equity for the enforcement of this Mortgage and realization on the mortgage security or any other security herein or elsewhere provided for, as the law may allow, and may proceed therein to final judgment and execution for the entire unpaid balance of the principal debt, with interest at the rate(s) stipulated in the Notes, together with all other sums due from Mortgagor in accor- dance with the provisions of the Notes and this Mortgage, including all sums which may have been loaned by Mortgagee to Mortgagor after the date of this Mortgage, and all sums which may have been ad- vanced by Mortgagee for taxes, water or sewer rents, other lienable charges or claims, insurance or repairs or maintenance, and all costs of suit. Mortgagor authorizes Mortgagee at its option to foreclose this Mortgage subject to the rights of any tenants of the Mortgaged Property, and the failure to make any such tenants parties defendant to any such foreclosure proceedings and to foreclose their rights will not be asserted by Mortgagor as a defense to any proceedings instituted by Mortgagee to recover the indebtedness secured hereby or any deficiency remaining unpaid after the foreclosure sale of the Mortgaged Property; however, (11) '.0"0 nothing herein contained shall prevent Mortgagor from asserting in any proceedings disputing the amount of the deficiency or the sufficiency of any bid at such foreclosure sale that any such tenants adversely affect the value of the Mortgaged Property. (ii) Possession: Mortgagee may enter into possession of the Mortgaged Property, with or without legal action, and by force if necessary or, in the alternative, Mortgagee shall be entitled as of right to appointment of a receiver without regard to the solvency of Mortgagor or any other person liable for the debt secured hereby, and regardless of whether Mortgagee has an adequate remedy at law; either Mortgagee or said receiver, as the case may be, may rent the Mortgaged Property, or any part thereof, for such term or terms and on such other terms and conditions as Mortgagee or such receiver may see fit, collect all rentals (which term shall also include sums payable for use and occupation) and, after deducting all costs of collection and administration expense, apply the net rentals to the payment of taxes, water and sewer rents, other lienable charges and claims, insurance premiums and all other carrying charges, and to the maintenance, repair or restoration of the Mortgaged Property, or in reduction of the principal or interest, or both, hereby secured, in such order and amounts as Mortgagee or said receiver may elect; and for that purpose Mortgagor hereby assigns to Mortgagee all rentals due and to become due under any eXisting or future lease or leases or rights to use and occupation of the Mortgaged Property, as well as all rights and remedies provided in such lease or leases or at law or in equity for the collection of the rentals. Any lease or leases entered into by Mortgagee or said receiver pursuant to this paragraph shall survive foreclosure of the Mortgage and/or repay- ment of the debt, except to the extent any applicable lease may provide otherwise. For the purpose of obtaining possession of the Mortgaged Property in the event of any default hereunder or under the Notes, Mortgagor hereby authorizes and empowers any attorney of any court of record in the Commonwealth of Pennsylvania or elsewhere, as attorney for Mortgagor and all persons claiming under or through Mortgagor, to sign an agreement for entering in any competent court an amicable action in ejectment for possession of the Mortgaged Property and to appear for and confess judgment against Mortgagor, and against all persons claiming under or through Mortgagor, in favor of Mortgagee, for recovery by Mortgagee of possession there- of, for which this Mortgage, or a copy thereof verified by affida- vit, shall be a sufficient warrant; and thereupon a writ of possession may immediately issue for possession of the Mortgaged Property, without any prior writ or proceeding whatsoever and without any stay of execution. If for any reason after such action (12) . ~ -~~" has been commenced it shall be discontinued, or possession of the Mortgaged Property shall remain in or be restored to Mortgagor, Mortgagee shall have the right for the same default or any subse- quent default to bring one or more further amicable actions as above provided to recover possession of the Mortgaged Property. Mortgagee may bring an amicable action in ejectment and confess judgment therein before or after the institution of proceedings to foreclose this Mortgage or to enforce the Notes, or after entry of judgment therein or on the Notes, or after a Sheriff's sale of the Mortgaged Property in which Mortgagee is the successful bidder: the authorization to pursue such proceedings for obtaining possession and confess judgment therein is an essential part of the remedies for enforcement of the Mortgage and the Notes, and shall survive any execution sale to Mortgagee. (c) Mortgagee shall have the right, from time to time, to bring an appropriate action to recover any sums required to be paid by Mortgagor under the terms of this Mortgage, as they become due, without regard to whether or not the principal indebt- edness or any other sums evidenced by the Notes and secured by this Mortgage shall be due, and without prejudice to the right of Mortgagee thereafter to bring an action to foreclose this Mortgage or any other action, for any default by Mortgagor existing at the time the earlier action was commenced. (d) debt may be sold in and in such manner may elect. Any real estate sold to satisfy the mortgage one parcel, as an entirety, or in such parcels or order as Mortgagee, in its sole discretion, (e) Neither the Mortgagor nor any other person now or hereafter obligated for payment of all or any part of the sums now or hereafter secured by this Mortgage shall be relieved of such obligation by reason of the failure of Mortgagee to comply with any request of Mortgagor or of any other person so obligated to take action to foreclose on this Mortgage or otherwise enforce any provisions of the Mortgage or the Notes, or by reason of the release, regardless of consideration, of all or any part of the security held for the indebtedness secured by this Mortgage, or by reason of any agreement or stipulation between any subsequent owner of the Mortgaged Property and Mortgagee extending the time of payment or modifying the terms of the Mortgage or Note without first having obtained the consent of Mortgagor or such other person; and in the latter event the Mortgagor and all such other persons shall continue to be liable to make payments according to the terms of any such extension or modification agreement, unless expressly released and discharged in writing by Mortgagee. No release of all or any part of the security as aforesaid shall in (13) any way impair or affect tho 11en of this Mortgage or its priority over any subordinate lien, (f) Wi th respect to the pOl'sonal property in which a security interest is herein granted, Mortgagee may exercise any or all of the rights accruing to a secured party under this Mort- gage, the Uniform Commercial Code as applicable in the jurisdiction in which the Mortgaged Property is located and any other applicable law. Mortgagor shall, if MOl'tgagee requests, assemble all such personal property and mako it available to Mortgagee at a place or places to be designated by Mortgagee, which shall be reasonably convenient to Mortgagol" and MOl.tgagee, Any notice required to be given by Mortgagee of a public or private sale, lease or other disposi tion of the peraonal property or any other intended action by Mortgagee may be personally delivered to Mortgagor or may be deposi ted in the Uni ted States mail wi th postage prepaid, duly addressed to Mortgagor at the address of Mortgagor last known to Mortgagee, at least fivo (5) bus1ness days prior to such proposed action, and shall constitute l'easonable and fair notice to Mortga- gor of any such action, 13. Counsel Fees. I f Mortgagee (a) becomes a party to any suitor proceeding affecting the Mortgaged Property, title to the Mortgaged Property, the lien created by this Mortgage or Mortgagee's interest therein (including any proceeding in the nature of eminent domain) or (b) engages counsel to collect any of the indebtedness or to enforce performance of the agreements, conditions, covenants, provisions or stipulations of this Mortgage or the Notes, then all of Mortgagee's costs, expenses and reasonable counsel fees, whether or not suit is instituted, shall be paid to Mortgagee by Mortgagor, on demand, wi th interest at the rate provided in the Notes, and unti 1 paid such amounts shall be deemed to be part of the indebtedness evidonced by the Notes and secured by this Mortgage. 14. Notices. All notices permitted or required under this Mort- gage or the Notes shall be in writing, and shall be sent by regis- tered or certified mail, postage prepaid, addressed to the addl"eSSee at the address set forth in this Mortgage or in the Loan Agreement, 01' at such other addl'ess as the addressee may designate by written notice as aforesaid. (14) 17. Interest Rate. 15. Amendment. This Mortgage cannot be changed or amended except by an agreement in writing signed by the party against whom enforce- ment of the change is sought. 16. Parties Bound. This Mortgage shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns. For purposes of thi s Mortgage, the neuter shall include the masculine and the feminine and the singular shall include the plural and the plural the singular, as the context may require. Notwithstanding any provision contained in this Mortgage or in the Notes secured hereby, Mortgagor's liability for interest shall not exceed the limits now imposed by the applicable usury law. If any clause in the Notes or this Mortgage requires interest payments in excess of the highest rate permitted by the applicable usury law, the clause in question shall be deemed to require such payment at the highest interest rate allowed by the applicable usury law. 18. Captions. The captions preceding the text of the paragraphs or subparagraphs of this Mortgage are inserted only for convenience of reference and shall not consti tute a part of thi s Mortgage, nor shall thel in any way affect its meaning, construction. or effect. 19. Other Financing. Mortgagor will not create or permit to exist any other lien on, or security interest in, any portion of the Mort- gaged Property (including any furniture, fixtures, machinery and equipment used in connection therewith) will not lease any such furniture, fixtures, machinery and equipment; and will not incur any indebtedness to purchase any such furniture, fixtures, machin- ery and equipment, except as contemplated hereby, the McKenna Debt or the Junior Subordinated Debt, without the prior written consent of Mortgagee. Mortgagor shall have no right to permit the holder of any subordinate mortgage or other subordinate lien, whether or not consented to by Mortgagee, to terminate any lease of all or a portion of the Mortgaged Property whether or not such lease is subordinate (whether by law or the terms of such lease or a (15) separate agreement) to the lien of this Mortgage without first obtaining the prior w1'itten consent of Mortgagee. The holder of any subordinate mortgage or other subordinate lien shall have no such right, whether by foreclosure of its mortgage or lien or otherwise, to terminate any such lease, whether or not permitted to do so by Mortgagor or as a matter of law, and any such attempt to terminate any such lease shall be ineffective and void. 20. Conveyance. Without the prior written consent of Mortgagee, Mortgagor will abstain from and will not cause or permit any sale, exchange, transfe1', lease (other than in the ordinary course of business) 01' conveyance (herein all called "transfer") of the Mortgaged Property or any part thereof, or any interest therein, voluntarily or by operation of law. Any change in the ownership of the corporate stock of Mortgagor or the issuance of additional stock which would result in the t1"ansfer of control or management of Mortgagor shall be deemed to be a transfer of the Mortgaged Property within the meaning of this Article. 21. I intentionally deleted] 22. Purchase Money Mortgage. This is a purchase money mortgage and shall be entitled to all benefits as such under the Lien Priority Law, Act of July 9, 1976, P.L. 586, as amended. 23. Advance Money Mortgage. This Mortgage secures all future advances. 24. lndustrial Plant Mortgage. This Mortgage is intended to be an mortgage wi thin the broadest interpretation of plant mortgage doctrine" under the laws of the Pennsylvania. industrial plant the "industrial Commonweal th of 25. Business Purpose Mortgagor warrants that this Mortgage is delivered in connection with a business or commercial loan transaction. ( 16) 26. Construction. This Mortgage shall be construed in accordance with the laws of the state in which the Mortgaged Property is located. 27. Communicaticns Act of 1934. Notwi thstanding any provision in this Mortgage to the contrary, the remedies of the Lenders hereunder are subject to the provisions of the Communications Act of 1934, as amended, and the Rules and Regulations promulgated thereunder (collectively the "Communications Act"), which among other matters currently pro- hibits: (i) without the prior approval of the FCC, the assignment or transfer of control of the License (either directly or in- directly); and (ii) the creation of a security interest in the License. Lenders shall not exercise any of Lenders' remedies hereunder inconsistent with the provisions of the Communications Act then in effect. IN WITNESS WHEREOF, this Mortgage has been duly executed as of the day and year first above written. Witnesses: At The address of the Mortgagee is: Broad and Chestnut Streets Philadelphia, Pennsylvania .j \t"j~"\G For Mortgagee [corporate seal] (17) PENNSYLVANIA CORPORATE ACKNOWLEDGMENT COMMONWEALTH OF PENNSYLVANIA COUNTY OF PHILADELPHIA On this, the /'$;tJv day of ,october, 1989, before me, the undersigned officer, personally appeared Brian E. Danzis who acknowledged himself to be the President of GEMINI BROADCASTING CORPORATION, a corporation, and that he as such President being authorized to do so, executed the foregoing instrument for the purposes therein contained by signing the name of the corporation by himself as President and that he received a true and correct copy of such instrument and of all other documents referred to therein. seal. IN WITNESS WHEREOF, I hereunder set my hand and official 0.uh--7n. tJalli-.v Notary Public My Commission Expires: NOTARIAL SEAL EllE:/! M. WAtTON, Nol.1ry puehc City of Phlladetpnl3. Ph,la. County Mv Commission E.cltes June 13. 1002 EXHIBIT A ,- , tES:RIPTICN CE R&\L ~'lE ALL ntA'J' CDltAJJ tract or pucel ot land IStute 10 the Voraley.bur, Jorou,h. Couoty ot Cuawr1ancS, COIllDODvealt.h ot PeM8)'1Y&IISa, boIloded IIId ducrSbed II tollovs : BroIJlllIIlG at a Iplle In Poplar Cburch 1l0a4 (L... 21(21). ..115 poSnt be1n, 01\ the proJect1oo ot tile 1000thero rl&bt-ot-va)' ot Wattl 1l0a4 lunopeMd). prevSOIIIly referred to u Jrentvood 1l0a4 (Wlopeoed) on I pllll of loti ot ArU~too Hdthtl; THDCE lD &lid IbOllt tbe ceoter ot Poplar Churcllll0a4, IOIIUI 27 delree.. 32 . .Snute., .0 .econ4. ealt, I dSltanc:e of 601.00 t~t to I .pllle; 'nlEIICE leavlll& Poplar Church lload 11001 land. ot RUlco CorporaUon, 1000th 5. detren, .9 alnutel. 00 ttcoodl veat, I dllt.aDce ot 515.89 t~t to III Sron pin; 'J'KEIICI: Ilont Lont MeldOVl Tovnhou.el, I coadoalD1UM. prevSouIl)' I portion ot thl1 trlct, and Jortbvood Bill., a lubdlvl,SOD, DOrth ~ deareea. 1. aln~te.. 00 lecondl velt, . dhtann ot 599.98 feet to I Iplke So the lDtenect10n or Jrenhood llcad and Arnold Street; nlDICE dona the IforelllenUooed Vitti lied rle.ht-ot-vIY, north 5~ de,re... 28 alDute., 00 ucood. ellt, I dht.aDce ot 6.9..0 tut to a .pSh, the polDt of BlXiIIOIIIlCi. CONTAINING 8.020 Acte. of land and l~roYement. erected tbereOD. EllCEPI'ING AJ(fJ /\&SERVIIIG thereout and tllerttroa all that certain tract ot land p-1IIt.e4 11I15 cooyt)'ed Wlto tbe BorollCh ot Vorale)'lbu.r1l tr~ 1l01l1lOyne. I oc.. by deed dated 'ebf'lU')' 10, 1959 and recorded 10 DHd Book -.". Vol\lllt 19. Pale 218. Slid tract cODtalnlJl& 0.011 Icr.., I80re or leu. lIOn partS culul)' bounded Ind cJeacrlbed u toUovt: JEOUQIIJICi It I polDt OIl tile vnterD line ot Arnold St.reet, ..115 point. bdn, louth tortl (~) deveel beDtY-OIIe (21) aSnutea ellt.. three hundred t.'oftot)' and \.eD ODe-hundredth. 1)20.10) teet. trea the UDterllne of Popw Church Iloed; TIIEJICE norUl tlt'-1-twr UII) deven .eveD\.eeD Ill) alDute. ellt, titt~ 1114 ltat.eeo one-hundredthl (~.16) teet to I point. 'nlDCl louth tort)' (1.0) clelreu tveDtY-ODe (21) alDutel el.t., thirty-three IDd thirty-one OIIe-h~ndredthl (33.31) t~t. to I point. nlEIlCE lout.b torty-tlve (115) dell'e.. Dine (09) alnutn vest, -., tstty and tltteen one-b\llldre4t.h1 (~.15) teet. to I polDt. OD the vU\.ern Hne ot Arnold Sueet; nlEIlCl by the veat.un Une ot Arnold Sueet north torty (110) cSetu" \veot1"'ODt (21) aSnut.eI veat.. tort;r-one IIlcS UlSrty one-hundredthl ('1.30) tee\ \0 I polDt., the pllc. ot BWJIQIJJIO. . . I ~ g o ~ Ii " 6 . . i ! . ~ ; . . . Oedlt Supoort DIVIsion FC 1.3.15./0 1500 Markol Street PO Bo. 7558 PhiladelphIa PA 19101.7558 215 786 4132 FAX 215 786 8553 Don D Mlahl., V,ce Pre!.ldenl December 6, 1993 . CoreStates Philadelphia National Bank Firat Pennavlvanla Bank VIA CERTIFIED HAIL RETURN RBCEIPT REQUESTED Gemini Broadcasting corporation 360 poplar Church Road Wormleysburg, PA 17011 Attn: Mr. Brian Danzis Rei Tbat certain Loan and security Aqreement, dated October 13, 1989 ("Loan Aqreement") by and amonq Gemini Broadcasting corporation ("Borrower"), Pbiladelpbia National Bank ("PNB") and HlUIIilton Bank ("Hamilton") (PNB and Hamilton are referred to colleotively as "Lenders") and PNB as Aqent (IlAaent") Dear Brian: The Borrower is in default of its obligations to the Lenders under the Loan Agreement. Demand is hereby made that Borrower repay in full all liabilities and obligations of the Borrower to Lenders. As of December 2, 1993, these amounts are as follows: Principal: $ 2,970,000.00 Accrued and Unpaid Interest through December 2, 1993: Legal, Consulting and other Fees TOTAL 718,260.46 32.532.84 $'3,720,793.30 Interest continues to accrue at the rate of 742.50 per day (based upon PNB's present prime rate). The Borrower is also obligated for all existing and additional expenses which the Lenders have or may hereafter incur including, without limitation, attorneys' fees. PhIladelphIa NatIonal Bank and Co,eStates Fllst Pennsylvania Bank are incorporated as Co,eStates Bank. NA . . . Gemini Broadcasting corporation December 6, 1993 Page 2 ---------------- Unless such sums are paid in full by December 14, 1993, the Lenders shall feel free to exercise, at anytime thereafter without further notice to you, any of their rights and remedies whether under the Loan Agreement, at law or equity or both. Failure by the Lenders to exercise any such rights or remedies now or hereafter shall not constitute a waiver thereof and all such rights and remedies are hereby reserved. Very truly yours, Philadelphia National Bank as Agent for the Lenders BY:o:.~/~ cc: Via First Class Mail Mr. Brian Danzis Ms. Christine Hillard Mr. James McKenna Mr. Edward McKenna steven M. Miller, Esquire DDMljb CERTI" M ~ =r 6' ;::;: m $500,000 REVOLYrNG CREDIT NOTE Philadelphia, Pennsylvania October /J , 19B9 . FOR VALUE RECEIVED, the undersigned, (herein "Borrower"), promises to pay to tho ordor of Tho Philadelphia Uational Bank and Hamilton Bank (respectively "PHB" and "Hamilton" and collectively the "Lenders") the principal sum of Five Hundred Thousand ($500,000) Dollars or so much thereof as shall have been advanced for Borrower's account and then be outstanding ("Cash Advances") AS provided in the Loan and Security Agreement of even date herewith by and between Borrower, Lenders and The Philadelphia National Bank, as Agent ("Loan Agreement"), togethor with interest thereon at the Interest Rate (as hereinafter defined) as tallows: (a) Interest shall be paid on the outstanding principal olosing daily balances of all Cash Advances made to .Borrower at the Interest Rate on and to the last Business Day of each month, commencing the month in which the first cash Advance is made and monthly thereafter1 and (b) All principal and accrued and unpaid interest not previously paid to Lenders shall be due and payable in full on December 31, 1992. This Revolving Credit Note is issued pursuant to and entitled to the benefits of the Loan Agreement to which reference is hereby made for a more complete statement of the terms and conditions pertaining to Revolving credit which is evidenced by this Revolving Credit Note. All capitalized terms used herein shall have t!'le same meaning as ascribed in such terms in the Loan Agreement. Provided that no Event of Default shall have occurred, the Interest Rate shall be equal to the Prime Rate (as hereinafter defined) plus a margin determined by the ratio of Senior Debt to Broadcast Cash Flow ("Ratio") at the last quarterly Test Date as follows: (i) one percent if the Ratio is 3.00 to 1 or greater1 or (ii) three-quarters of one percent if the Ratio is less than 3.00 to 1. The Interest Rate with respect to Floating Rate Loans shall be determined in accordance with the most current Compliance Certificate and subject to the followinq qualifications be effective ten days after Agent's receipt thereof1 provided however that if the Compliance Certificate is not received by Agent when due, the higher Interest Rate shall apply to such Floating Rate Loans. Interest on the Revolving Credit shall be payable monthly in arrears on the last Business Day of each month, commencing the , month in which the first Cash Advance is made, and monthly thereafter until the entire principal balance hereunder is paid in full. "Prime Rate" means a fluctuating per annUlll rate of interest announced by PNB frolll time to time as its "Prime Rate", which may not necessarily represent the lowest rate charged by PNB to other borrowers, or to any class of borrowers at any time, or from time to timo. Any principal payments hereunder not paid when due and, to the extent permitted by applicable law, any interest payment hereunder not paid when due, in any case whether at stated maturity, by notice of prepayment, by accoloration or otherwise, shall thereafter bear interest payable upon demand at a rate which is two percent per annUlll in excess of the applicable Interest Rate. All payments of principal and interest in respect of this ReVOlving Credit Note shall be made by Borrower without defense, setoff or counterclaim in same day funds and delivered to Hamilton on behalf of Lenders not latar than 12:00 noon (Harrisburg, Pennsylvania time) on the date due at Hamilton's offices located at 222 Market Street, Harrisburg, Pennsylvania 17108 or at such other place as shall be designated in writing for such purpose in accordance with the terms of the Loan Agreement. Funds received by Hamilton after that time shall be deemed to have been paid by Borrower on the next succeeding Business Day. Until notified in writing of the transfer of this Revolving Credit Note, the Borrower shall be entitled to deem Lenders, or such person who has been so identified by the transferor in writing to the Borrower, as the holder of this ReVOlving Credit Note, as the owner and holder of this ~evolving Credit Note. Whenever any payment on this Revolving Credit Note shall be stated to be due on a day which is not a Business Day, such payment shall be made on the next succeeding Business Day and such extension of time shall be included in the computation of the payment of interest on this ReVOlving Credit Note. The Borrower a~thorizQs each of the L8nders to charge Borrower's account with either Lender in order to cause timely payment to be made to the Lenders of all principal, interest and fees hereunder. The liabilities and obligations of the Borrower hereunder shall be unconditional without regard to the liability or obligations of any other party and shall not be in any manner affected by any indulgence whatsoever granted or consented to by Lenders, inClUding, but ~ithout being limited to, any release by any party of any Collateral, extension of time, renewal, waiver or other modification. Any failure of Lenders to exercise any right (2) (3) . hereunder shall not be construe~ as a waivor of the right to exercise the same or any other right at any ti.e and fro. ti.o to time thereafter. It shall be ~n Event of Default hereunder if: (i) payments hereunder are not paid in full when due: or (ii) en Event of Default shall have occurred under the Loan Agreement. In addition to the other remedies of Lenders as Det forth in this Revolving credit Note, the Loan Agreement, or any of the other Loan Documents, upon the occurrence of an Event of Default, Lenders may, without demand, cause this Revolving Credit Note to become immediately due and payable in full. Notwithstanding any provision in this Revolving Credit Note contrary, tho remedies of the Lenders hereunder are subject to the provisions of the Communications Act of 1934, as amen~ed, and the Rules and Regulations promulgated thereunder (collectively the "communications Act"), which among other matters currently prohibits: (1) without the prior approval of the FCC, the assignment or transfer of control of the License (either directly or indirectly), and (ii) the creation of a security interest in the License. Lenders shall not exercise any of Lenders' remedies hereunder inconsistent with the. provisions of the Communications Act then in effect. Borrower irreVOCably authorizes and empowers any attorney of any court of record to appear for Borrower in any and all actions, and upon the occurrence of an Event of Default to: (i) enter jUdgment against the Borrower for the principal sum hereOf: or (ii) sign for the Borrower an agreement for entering in any COMpetent court an amicable action or actions to confess jUdgment against the Borrower for all or any part of the Indebt- edness relating to the Revolving Credit: and in either case for interest and costs together with a reasonable collection fee. Borrower further irrevocably authorizes and empowers any attorney of any court of record to appear for and enter judgment against the Borrower and in favor of Landers or any other holder hereof with respect to an amicable action of replevin or any other action to recover possession of any Collateral pursuant to the Loan Agreement. Borrower w~ives all relief from any and all appraise- ment or exemption laws now in force or hereafter enacted. If a copy of this Revolving Credit Note, verified by affidavit of an officer of Hamilton or any other holder hereof, shall be filed in any proceeding or action wherein judgment is to be confessed, it shall not be necessary to file tho original hereof and such verified copy shall be sufficient warrant for any attorney of any court of record to appear for and confess judgment against the Borrower as provided heroin. Judgment may be confessed from time to time under the aforesaid powers which shall not be eKhauste~ by one exercise thereOf. If any provision of this Revolving Credit Note shall for any reason be held to be invalid or unenforceable, such invalidity or unenforceability shall not affect any other provision hereof, but this Revolving Credit Note shall be construed as if such invalid or unenforceable provision had never been contained horein. J The terms of this ReVOlving Credit Note may not be changed or amended orally but only by an agreement in writing and signed by the party against whom enforcement of any waiver, change, modification, or discharge is sought. The Borrower promises to pay all costs and expenses, inclUding reasonable attorneys' fees incurred in connection with the collection and enforcement of this Revolving Credit Note. The Borrower and endorsers of this Revolving Credit Note hereby consent to renewals and extensions of time at or after the maturity hereOf, without notice, and hereby waive diligence, presentment, protest, clemancl and notice of every kind and, to the tull extent permitted by law, the right to plead any statute of limitations as a defense to any demand hereunder. This ReVOlving Credit Note shall be governed as to its validity, interpretation and effect by the internal laws of the Commonwealth of Pennsylvania for contracts made and to be performed in Pennsylvania. Borrower consents to the jurisdiction of the courts of Philadelphia county, Pennsylvania, or at the election of the holder hereof, the United states District Court for the Eastern District of PennsYlvania, in any and all actions and proceedings by Lenders, and the Borrower hereby irrevocably agrees to service ot process by registered nail, return receipt requested, postage prepaid at the Borrower's address appearing on Lender's records. BORROWER, AND EACH OF LENDERS EXPRESSLY WAIVE ANY RIGHT TO TRIAL BY JURY. Borrower hereby waives presentment, demand for payment, notice of dishonor or acceleration, protest or notice of protest and any and all notices or demands in connection with the delivery, acceptance, performance, default or enforcement of this Revolving Credit Note. The liabilities and obligations of the Borrower hereunder shall be unconditional without regard to the liability or obligations of any other party and shall not be in any canner affected by any indulgence whatsoever granted or consented to by the Agent, inclUding, but without being limited to, any release of any party of any Collateral, extension of time, renewal, waiver or other modification. Any failure of Agent to exercise any right hereunder shall not be construed as a waiver of the right to exercise the same or any other right at any time and from ti=e to time thereafter. (4) i . -'~-"'c".~.:7'.,~/'i""I-~ J IN WITNESS WIIEREOF, the Borrower hilS caused this Revolving credit Note to be executed and delivered by its dUly authorized orticer, as ot the day and year and at the place first above written. GEMINI CORPORATION [Corporate Seal] (5) I AFFIDAVIT COMMONWEALTH OF PENNSYLVANIA . . . . ss. COUNTY OF PHILADELPHIA : DON D. MISHLER, being duly sworn according to law, deposes and says that he is a Vice President of Philadelphia National Bank, incorporated as CoreStates Bank, N.A., Plaintiff herein; that he is authorized to take this affidavit for and on behalf of Plaintiff; and, that the facts set forth in the foregoing Complaint are true and correct to the best of his information, knowledge and belief. 0;(';)C)~ DON D. MISHLER . Sworn to and Subscribed Before me this ~; day Off(t4u.~ ' 1994. /tr<~ ;Jt..~~0c ~tI OTARY PUBLIC Po i-~'."""" . '. . ..~ , , . . .~' ~ ." '. . i.:_... ..l.._ ..".. "'__"_'~,"'~oI....._1.J.. t Attorneys for Plaintiff PHILADELPHIA NATIONAL BANK, incorporated as CORESTATES BANK, N.A., in its capacity as agent for Philadelphia National Bank and Hamilton Bank BLANK, ROME, COMISKY & McCAULEY BY: ALAN C. GERSHENSON, ESQUIRE IDENTIFICATION NO. 09925 BY: STEVEN M. MILLER, ESQUIRE IDENTIFICATION NO. 50862 1200 Four Penn Center Plaza Philadelphia, PA 19103 (215) 569-5500 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW PHILADELPHIA NATIONAL BANK, incorporateu as CORESTATES BANK, N.A., in its capacity as agent for Philadelphia National Bank and Hamilton Bank Centre Square West 1500 Market Street Philadelphia, PA 19102 . . . . . . . . v. NO. GEMINI BROADCASTING CORPORATION 360 Poplar Church Road Wormleysburg, PA 17011 AFFIDAVIT THAT ACTION DOES NOT ARISE OUT OF RETAIL INSTALLMENT CONTRACT COMMONWEALTH OF PENNSYLVANIA ss. COUNTY OF PHILADELPHIA DON D. MISHLER, being duly sworn according to law, deposes and says that he is a Vice President of Philadelphia National Bank, incorporated as CoreStates Bank, N.A., Plaintiff herein: that he is authorized to take this affidavit for and on behalf of Plaintiff: and, that this is not an action by a seller, holder or assignee arising out of retail installment sale, contract or account. ~~ ON D. MISHLER Sworn to and Subscribed Before me this ~ day 't{~~ ' 1994. ?"~ 4'-t!l- /I( ~2..t':-Ct"?<-.-:t-. .. ,NOTARY PUBLIC (/ t-~~~.--' .~1 :.:.~.l Vr.;:-:l.'.'.' ':' ~."'IPu.':~ ~.,' ;-', . .' .~.~..-:,~.:., ..~:;iri:.:.;~i'..~~..;;. ._~..~..:..::,;;~,'C;i'~~l&oG~ -2- ; Attorneys for plaintiff PHILADELPHIA NATIONAL BANK, incorporated as CORESTATES BANK, N.A., in its capacity as agent for Philadelphia National Bank and Hamilton Bank BLANK, ROME, COMISKY & McCAULEY BY: ALAN C. GERSHENSON, ESQUIRE IDENTIFICATION NO. 09925 BY: STEVEN M. MILLER, ESQUIRE IDENTIFICATION NO. 50862 1200 Four Penn Center Plaza Philadelphia, PA 19103 (215) 569-5500 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW PHILADELPHIA NATIONAL BANK, incorporated as CORESTATES BANK, N.A., in its capacity as agent for Philadelphia National Bank and Hamilton Bank Centre square West 1500 Market Street Philadelphia, PA 19102 v. GEMINI BROADCASTING CORPORATION 360 Poplar Church Road Wormleysburg, PA 17011 . . NO. . . . . AFFIDAVIT OF COMMERCIAL TRANSACTION COMMONWEALTH OF PENNSYLVANIA COUNTY OF PHILADELPHIA ss. DON D. MISHLER, being duly sworn according to law, deposes and says that he is a Vice President of Philadelphia National Bank, incorporated as Corestates Bank, N.A., Plaintiff herein: that he is authorized to take this affidavit for and on behalf of Plaintiff; and that (1) Defendant Gemini Broadcasting Corporation is a Pennsylvania corporation with a last known address at 360 Poplar ~AJ DON D. MISHLER ,. Church Road, Wormleysburg, PA 17011: and (2) the Term Note and Revolving Credit Note, containing the Warrants of Attorney upon which judgment is confessed in this litigation, arise out of a commercial transaction. Sworn to and Subscribed Before me this (""1..- day o f ~ ':\N\.u.-''''-t ' 1994. ,4i;://';n'rJ //1,,://, NOTARf~&~IC . NOT.'.RIAL SE.'<L PATRICIA n.. t\?ICEltA rJoury PubliC Clrl cl PI~II:!~~:j:r,I.:!. i=t~;lJ,. c.:untl Mv ('".c!r.ml<;~lon E,::ir~~. '.1~rch 7 199.1 -2- ; BLANK, ROME, COMISKY & McCAULEY BY: ALAN C. GERSHENSON, ESQUIRE IDENTIFICATION NO. 09925 BY: STEVEN M. MILLER, ESQUIRE IDENTIFICATION NO. 50862 1200 Four Penn Center Plaza Philadelphia, PA 19103 (215) 569-5500 Attorneys for Plaintiff PHILADELPHIA NATIONAL BANK, incorporated as CORESTATES BANK, N.A., in its capacity as agent for Philadelphia National Bank and Hamilton Bank IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW PHILADELPHIA NATIONAL BANK, incorporated as CORES TATES BANK, N.A., in its capacity as agent for Philadelphia National Bank and Hamilton Bank Centre Square West 1500 Market Street Philadelphia, PA 19102 v. GEMINI BROADCASTING CORPORATION 360 poplar Church Road Wormleysburg, PA 17011 : . . . . . . NO. : AFFIDAVIT OF NON-MILITARY SERVICE COMMONWEALTH OF PENNSYLVANIA COUNTY OF PHILADELPHIA ss. . . DON D. MISHLER, being duly sworn according to law, deposes and says that he is a Vice President of Philadelphia National Bank, incorporated as Corestates Bank, N.A., plaintiff herein: that he is authorized to take this affidavit for and on behalf of Plaintiff; and that Defendant Gemini Broadcasting Corporation is a Pennsylva- nia corporation and is not in the armed forces of the United states of America or its allies or otherwise within the purview of the Soldier's and Sailor's civil Relief Action of 1940, as amended. ~ Sworn to and Subscribed Before me this I t.... day of , 1994. 14 ,:'// ..., . I <' /;J.-- NOT.' RIAL SEAL PATRICIA R APICELLA. flolOry pubnc ClIy cf Phll;:~c!I=t'I~~. Pt:Il.1. CouMI "~'I Ccmmt.~~fon E\::'r.~~ t.1"rch :. 1994 ,., ,",.l -2- ~ ~ ~ .~ fJ. ~ ~ ~~ ~, ~ ,~- "'"$ ~.~-~~.;:;; 19. 0 ,..,_ 'i: : " v J 0 7": '. ~ u..; <:::i& ,;-~ :z: .~. ~ ,,:.;..~ ~- :- ~ ~ ()-.. ~ ~ ~ ~ ........ 1l ~ '" " ~ ~ ~ Iv ~ ~ 0 V1 7::1-' - I \~