<PAGE>
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON DECEMBER 12, 1996
REGISTRATION NO. 333-16469
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
----------------------------------------
AMENDMENT NO. 2 TO FORM S-3
REGISTRATION STATEMENT
UNDER THE SECURITIES ACT OF 1933
--------------------------
JACOR COMMUNICATIONS COMPANY
(Exact name of registrant as specified in its charter)
<TABLE>
<S> <C> <C>
FLORIDA 59-2054850
(STATE OR OTHER JURISDICTION (I.R.S. EMPLOYER
OF AND ITS IDENTIFICATION
INCORPORATION OR ORGANIZATION) GUARANTORS NUMBER)
JACOR COMMUNICATIONS, INC.
JACOR BROADCASTING CORPORATION
BROADCAST FINANCE, INC.
JACOR BROADCASTING OF FLORIDA, INC.
JACOR BROADCASTING OF ATLANTA, INC.
JACOR BROADCASTING OF COLORADO, INC.
JACOR BROADCASTING OF LEXINGTON, INC.
JACOR BROADCASTING OF KNOXVILLE, INC.
JACOR BROADCASTING OF TAMPA BAY, INC.
JACOR CABLE, INC.
GEORGIA NETWORK EQUIPMENT, INC.
JACOR BROADCASTING OF SAN DIEGO, INC.
JACOR BROADCASTING OF ST. LOUIS, INC.
JACOR BROADCASTING OF SARASOTA, INC.
JACOR BROADCASTING OF IDAHO, INC.
INMOBILIARIA RADIAL, S.A. DE C.V.
JACOR BROADCASTING OF IOWA, INC.
NOBLE BROADCAST GROUP, INC.
NOBLE BROADCAST OF COLORADO, INC.
NOBLE BROADCAST OF SAN DIEGO, INC.
NOBLE BROADCAST OF ST. LOUIS, INC.
NOBLE BROADCAST OF TOLEDO, INC.
NOVA MARKETING GROUP, INC.
NOBLE BROADCAST LICENSES, INC.
NOBLE BROADCAST HOLDINGS, INC.
SPORTS RADIO BROADCASTING, INC.
NOBRO, S.C.
SPORTS RADIO, INC.
NOBLE BROADCAST CENTER, INC.
CITICASTERS CO.
GACC-N26LB, INC.
GACC-340, INC.
CINE GUARANTORS, INC.
GREAT AMERICAN TELEVISION PRODUCTIONS, INC.
CINE GUARANTORS II, INC.
GREAT AMERICAN MERCHANDISING GROUP, INC.
TAFT-TCI SATELLITE SERVICES, INC.
CINE FILMS, INC.
THE SY FISCHER COMPANY AGENCY, INC.
LOCATION PRODUCTIONS, INC.
LOCATION PRODUCTIONS II, INC.
VTTV PRODUCTIONS
F.M.I. PENNSYLVANIA, INC.
WHOK, INC.
CINE MOBILE SYSTEMS INT'L. N.V.
CINE MOVIL S.A. DE C.V.
CINE GUARANTORS II, LTD.
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
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<CAPTION>
JACOR COMMUNICATIONS, INC. DELAWARE
JACOR BROADCASTING CORPORATION OHIO
BROADCAST FINANCE, INC. OHIO
JACOR BROADCASTING OF FLORIDA, INC. FLORIDA
JACOR BROADCASTING OF ATLANTA, INC. GEORGIA
JACOR BROADCASTING OF COLORADO, INC. COLORADO
JACOR BROADCASTING OF LEXINGTON, INC. KENTUCKY
JACOR BROADCASTING OF KNOXVILLE, INC. DELAWARE
JACOR BROADCASTING OF TAMPA BAY, INC. FLORIDA
JACOR CABLE, INC. KENTUCKY
GEORGIA NETWORK EQUIPMENT, INC. GEORGIA
JACOR BROADCASTING OF SAN DIEGO, INC. DELAWARE
JACOR BROADCASTING OF ST. LOUIS, INC. MISSOURI
JACOR BROADCASTING OF SARASOTA, INC. FLORIDA
JACOR BROADCASTING OF IDAHO, INC. DELAWARE
INMOBILIARIA RADIAL, S.A. DE C.V. MEXICO
JACOR BROADCASTING OF IOWA, INC. DELAWARE
NOBLE BROADCAST GROUP, INC. DELAWARE
NOBLE BROADCAST OF COLORADO, INC. CALIFORNIA
NOBLE BROADCAST OF SAN DIEGO, INC. CALIFORNIA
NOBLE BROADCAST OF ST. LOUIS, INC. DELAWARE
NOBLE BROADCAST OF TOLEDO, INC. CALIFORNIA
NOVA MARKETING GROUP, INC. CALIFORNIA
NOBLE BROADCAST LICENSES, INC. CALIFORNIA
NOBLE BROADCAST HOLDINGS, INC. DELAWARE
SPORTS RADIO BROADCASTING, INC. CALIFORNIA
NOBRO, S.C. MEXICO
SPORTS RADIO, INC. CALIFORNIA
NOBLE BROADCAST CENTER, INC. CALIFORNIA
CITICASTERS CO. OHIO
GACC-N26LB, INC. DELAWARE
GACC-340, INC. DELAWARE
CINE GUARANTORS, INC. CALIFORNIA
GREAT AMERICAN TELEVISION PRODUCTIONS, INC. CALIFORNIA
CINE GUARANTORS II, INC. CALIFORNIA
GREAT AMERICAN MERCHANDISING GROUP, INC. NEW YORK
TAFT-TCI SATELLITE SERVICES, INC. COLORADO
CINE FILMS, INC. CALIFORNIA
THE SY FISCHER COMPANY AGENCY, INC. CALIFORNIA
LOCATION PRODUCTIONS, INC. CALIFORNIA
LOCATION PRODUCTIONS II, INC. CALIFORNIA
VTTV PRODUCTIONS CALIFORNIA
F.M.I. PENNSYLVANIA, INC. PENNSYLVANIA
WHOK, INC. OHIO
CINE MOBILE SYSTEMS INT'L. N.V. ANTILLE
CINE MOVIL S.A. DE C.V. MEXICO
CINE GUARANTORS II, LTD. CANADA
(STATE OR OTHER JURISDICTION OF
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER) INCORPORATION OR ORGANIZATION)
- -------------------------------------------------------------------------------------------------- --------------------------------
- -
<CAPTION>
JACOR COMMUNICATIONS, INC. 31-0978313
JACOR BROADCASTING CORPORATION 31-1363232
BROADCAST FINANCE, INC. 31-1390698
JACOR BROADCASTING OF FLORIDA, INC. 31-1102108
JACOR BROADCASTING OF ATLANTA, INC. 31-1133504
JACOR BROADCASTING OF COLORADO, INC. 31-1212116
JACOR BROADCASTING OF LEXINGTON, INC. 31-1466604
JACOR BROADCASTING OF KNOXVILLE, INC. 31-1125479
JACOR BROADCASTING OF TAMPA BAY, INC. 31-1234979
JACOR CABLE, INC. 31-1273897
GEORGIA NETWORK EQUIPMENT, INC. 31-0317907
JACOR BROADCASTING OF SAN DIEGO, INC. 31-1440011
JACOR BROADCASTING OF ST. LOUIS, INC. 43-1735433
JACOR BROADCASTING OF SARASOTA, INC. 31-1468564
JACOR BROADCASTING OF IDAHO, INC. PENDING
INMOBILIARIA RADIAL, S.A. DE C.V. NOT APPLICABLE
JACOR BROADCASTING OF IOWA, INC. PENDING
NOBLE BROADCAST GROUP, INC. 33-0215206
NOBLE BROADCAST OF COLORADO, INC. 33-0250362
NOBLE BROADCAST OF SAN DIEGO, INC. 95-3230874
NOBLE BROADCAST OF ST. LOUIS, INC. 33-0294761
NOBLE BROADCAST OF TOLEDO, INC. 30-0200806
NOVA MARKETING GROUP, INC. 33-0578898
NOBLE BROADCAST LICENSES, INC. 34-1794221
NOBLE BROADCAST HOLDINGS, INC. 33-0492627
SPORTS RADIO BROADCASTING, INC. 33-0525378
NOBRO, S.C. NOT APPLICABLE
SPORTS RADIO, INC. 95-4350343
NOBLE BROADCAST CENTER, INC. 33-0189045
CITICASTERS CO. 31-1081002
GACC-N26LB, INC. 31-1231527
GACC-340, INC. 31-1251968
CINE GUARANTORS, INC. 95-2677644
GREAT AMERICAN TELEVISION PRODUCTIONS, INC. 31-1019819
CINE GUARANTORS II, INC. 95-2960196
GREAT AMERICAN MERCHANDISING GROUP, INC. 13-2658721
TAFT-TCI SATELLITE SERVICES, INC. 84-0863016
CINE FILMS, INC. 95-2945526
THE SY FISCHER COMPANY AGENCY, INC. 95-2792659
LOCATION PRODUCTIONS, INC. 95-2556702
LOCATION PRODUCTIONS II, INC. 95-2945537
VTTV PRODUCTIONS 31-0924795
F.M.I. PENNSYLVANIA, INC. 59-1648738
WHOK, INC. 34-1092716
CINE MOBILE SYSTEMS INT'L. N.V. NOT APPLICABLE
CINE MOVIL S.A. DE C.V. NOT APPLICABLE
CINE GUARANTORS II, LTD. NOT APPLICABLE
(I.R.S. EMPLOYER
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER) IDENTIFICATION NUMBER)
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</TABLE>
1300 PNC CENTER
201 EAST FIFTH STREET
CINCINNATI, OHIO 45202
(513) 621-1300
(ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA CODE, OF
REGISTRANTS' PRINCIPAL EXECUTIVE OFFICES)
----------------------------------------
R. CHRISTOPHER WEBER
JACOR COMMUNICATIONS, INC.
1300 PNC CENTER
201 EAST FIFTH STREET
CINCINNATI, OHIO 45202
(513) 621-1300
(NAME, ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA CODE,
OF AGENT FOR SERVICE)
----------------------------------------
COPIES OF COMMUNICATIONS TO:
<TABLE>
<S> <C>
RICHARD G. SCHMALZL, ESQ. GREGG A. NOEL,
DOUGLAS D. ROBERTS, ESQ. ESQ.
GRAYDON, HEAD & RITCHEY SKADDEN, ARPS,
1900 FIFTH THIRD CENTER SLATE, MEAGHER &
CINCINNATI, OHIO 45202 FLOM LLP
(513) 621-6464 300 SOUTH GRAND
AVENUE, SUITE
3400
LOS ANGELES,
CALIFORNIA 90071
(213) 687-5000
</TABLE>
----------------------------------------
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: AS SOON AS
PRACTICABLE AFTER THIS REGISTRATION STATEMENT BECOMES EFFECTIVE.
----------------------------------------
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
PROPOSED MAXIMUM
TITLE OF EACH CLASS OF AMOUNT TO OFFERING PRICE
SECURITIES TO BE REGISTERED BE REGISTERED PER SECURITY(1)
<S> <C> <C>
% SENIOR SUBORDINATED NOTES DUE 2006............................. $150,000,000 100%
GUARANTEES OF JACOR COMMUNICATIONS, INC. AND SUBSIDIARIES (4)....... * *
<CAPTION>
PROPOSED MAXIMUM
TITLE OF EACH CLASS OF AGGREGATE AMOUNT OF
SECURITIES TO BE REGISTERED OFFERING PRICE(1) REGISTRATION FEE(1)(2)
<S> <C> <C>
% SENIOR SUBORDINATED NOTES DUE 2006............................. $150,000,000 $45,454.55(3)
GUARANTEES OF JACOR COMMUNICATIONS, INC. AND SUBSIDIARIES (4)....... * *
</TABLE>
(1) Estimated solely for purposes of calculating the registration fee pursuant
to Rule 457 under the Securities Act.
(2) Amount calculated pursuant to Section 6(b) under the Securities Act.
(3) Of the total registration fee of $45,454.55, $7,575.80 is being paid with
this filing and $37,878.75 was previously paid.
(4) Registered herewith is Jacor Communications, Inc.'s and Subsidiaries'
Guarantees of the % Senior Subordinated Notes for which no additional
consideration will be received. Accordingly, pursuant to Rule 457 (o), under
the Securities Act, which permits the registration fee to be calculated on
the basis of the maximum offering price of all securities registered, no
additional fee is included for the registration of such Guarantees.
----------------------------------------
THE REGISTRANTS HEREBY AMEND THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANTS
SHALL FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(A) OF
THE SECURITIES ACT OF 1933, AS AMENDED, OR UNTIL THIS REGISTRATION STATEMENT
SHALL BECOME EFFECTIVE ON SUCH DATE AS THE SECURITIES AND EXCHANGE COMMISSION,
ACTING PURSUANT TO SAID SECTION 8(A), MAY DETERMINE.
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<PAGE>
INFORMATION CONTAINED HEREIN IS SUBJECT TO COMPLETION OR AMENDMENT. A
REGISTRATION STATEMENT RELATING TO THESE SECURITIES HAS BEEN FILED WITH THE
SECURITIES AND EXCHANGE COMMISSION. THESE SECURITIES MAY NOT BE SOLD NOR MAY
OFFERS TO BUY BE ACCEPTED PRIOR TO THE TIME THE REGISTRATION STATEMENT BECOMES
EFFECTIVE. THIS PROSPECTUS SHALL NOT CONSTITUTE AN OFFER TO SELL OR THE
SOLICITATION OF AN OFFER TO BUY NOR SHALL THERE BE ANY SALE OF THESE SECURITIES
IN ANY STATE IN WHICH SUCH OFFER, SOLICITATION OR SALE WOULD BE UNLAWFUL PRIOR
TO REGISTRATION OR QUALIFICATION UNDER THE SECURITIES LAWS OF ANY SUCH STATE.
<PAGE>
PROSPECTUS
, 1996
$150,000,000
JACOR COMMUNICATIONS COMPANY
GUARANTEED BY
[LOGO]
% SENIOR SUBORDINATED NOTES DUE 2006
The Senior Subordinated Notes (the "Notes") are being offered (the
"Offering") by Jacor Communications Company ("JCC"), a wholly owned subsidiary
of Jacor Communications, Inc. ("Jacor"). The Notes are being offered in
connection with the Pending Transactions (as defined herein) and to repay a
portion of the outstanding indebtedness under the Credit Facility (as defined
herein). Consummation of the Offering is not contingent upon consummation of any
of the Pending Transactions.
The Notes will mature on , 2006. Interest on the Notes is
payable semi-annually on and of each year,
commencing , 1997. JCC will not be required to make any mandatory
redemption or sinking fund payment with respect to the Notes prior to maturity.
The Notes will be redeemable at the option of JCC, in whole or in part, at any
time on or after , 2001 at the redemption prices set forth herein
plus accrued and unpaid interest, if any, to the date of redemption. In the
event of a Change of Control (as defined herein), JCC will be required to make
an offer to repurchase the Notes, at a price equal to 101% of the aggregate
principal amount thereof, plus accrued and unpaid interest, if any, to the date
of repurchase. See "Description of Notes--Certain Covenants--Repurchase of Notes
at the Option of the Holder Upon a Change of Control."
The Notes will be general unsecured obligations of JCC, subordinated in
right of payment to all Senior Debt (as defined herein) of JCC, including the
Credit Facility. As of September 30, 1996, JCC had outstanding an aggregate
principal amount of $400.0 million of Senior Debt. On a pro forma basis as of
September 30, 1996 after giving effect to this Offering and the application of
the net proceeds therefrom and the Citicasters Put (as defined herein), the
aggregate principal amount of Senior Debt of JCC would have been $400.0 million.
All subsidiaries of JCC (other than the Excluded Subsidiaries, as defined
herein), will become Subsidiary Guarantors (each as defined herein) if required
by the indenture governing the Notes. See "Description of Notes -- Certain
Covenants -- Subsidiary Guarantors" and "Description of Other Indebtedness
- --Credit Facility," "-- The 9 3/4% Notes" and "--The 10 1/8% Notes."
The Notes will be fully and unconditionally guaranteed on a senior
subordinated basis by Jacor and the Subsidiary Guarantors (the Subsidiary
Guarantors, together with Jacor, the "Guarantors") (limited only to the extent
necessary to avoid each such guarantee being considered a fraudulent conveyance
under applicable law) on a joint and several basis (the "Guarantees"). The
Guarantees will be general unsecured obligations of the Guarantors.
SEE "RISK FACTORS" BEGINNING ON PAGE 9 FOR A DISCUSSION OF THE RISKS THAT
SHOULD BE CONSIDERED BY PROSPECTIVE INVESTORS.
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE
SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES
COMMISSION PASSED UPON THE ACCURACY OR ADEQUACY OF THIS
PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS A
CRIMINAL OFFENSE.
<TABLE>
<CAPTION>
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UNDERWRITING
PRICE TO THE DISCOUNTS AND PROCEEDS
PUBLIC(1) COMMISSIONS(2) TO JCC(3)
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<S> <C> <C> <C>
Per Note................................. % % %
Total.................................... $ $ $
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</TABLE>
(1) PLUS ACCRUED INTEREST, IF ANY, FROM THE DATE OF ISSUANCE.
(2) JACOR AND JCC HAVE AGREED TO INDEMNIFY THE UNDERWRITERS AGAINST, AND TO
PROVIDE CONTRIBUTION WITH RESPECT TO, CERTAIN LIABILITIES, INCLUDING
LIABILITIES UNDER THE SECURITIES ACT OF 1933, AS AMENDED. SEE
"UNDERWRITING."
(3) BEFORE DEDUCTING EXPENSES PAYABLE BY JCC ESTIMATED AT $655,000.
The Notes are offered by the Underwriters when, as and if delivered to and
accepted by the Underwriters and subject to various prior conditions. The
Underwriters have reserved the right to withdraw, cancel or modify any such
offer and to reject orders in whole or in part. It is expected that delivery of
the Notes will be made in New York, New York on or about , 1996, to
investors in book-entry form through the facilities of The Depositary Trust
Company against payment therefor in immediately available funds.
DONALDSON, LUFKIN & JENRETTE MERRILL LYNCH & CO.
SECURITIES CORPORATION
<PAGE>
The inside front cover consists of a map of the United States indicating the
cities in which the Company (as defined herein) will own and/or operate radio
and television stations. The map also indicates the number of stations owned
and/or operated by the Company in each city and the 1995 radio revenue rank, all
as shown in the table contained in the Prospectus Summary.
IN CONNECTION WITH THIS OFFERING, THE UNDERWRITERS MAY OVER-ALLOT OR EFFECT
TRANSACTIONS WHICH STABILIZE OR MAINTAIN THE MARKET PRICE OF THE NOTES AND THE
10 1/8% NOTES (AS DEFINED HEREIN) AT A LEVEL ABOVE THAT WHICH MIGHT OTHERWISE
PREVAIL IN THE OPEN MARKET. SUCH STABILIZING, IF COMMENCED, MAY BE DISCONTINUED
AT ANY TIME.
2
<PAGE>
PROSPECTUS SUMMARY
THE FOLLOWING SUMMARY IS QUALIFIED IN ITS ENTIRETY BY THE MORE DETAILED
INFORMATION AND FINANCIAL STATEMENTS APPEARING ELSEWHERE IN THIS PROSPECTUS AND
IN THE DOCUMENTS INCORPORATED HEREIN BY REFERENCE. UNLESS THE CONTEXT OTHERWISE
REQUIRES, THE TERM (I) "JACOR" REFERS TO JACOR COMMUNICATIONS, INC. AND ITS
SUBSIDIARIES, INCLUDING JCC, AND THEIR COMBINED OPERATIONS ON A HISTORICAL
BASIS; AND (II) "COMPANY" REFERS TO JACOR AND THE ENTITIES AND RADIO STATIONS TO
BE OWNED BY JACOR ON A COMBINED BASIS ASSUMING THE PENDING TRANSACTIONS ARE
CONSUMMATED AS CURRENTLY SET FORTH IN THE RESPECTIVE TRANSACTION AGREEMENTS. JCC
WAS FORMERLY KNOWN AS CITICASTERS INC. ("CITICASTERS") PRIOR TO CHANGING ITS
CORPORATE NAME TO "JACOR COMMUNICATIONS COMPANY" IN DECEMBER 1996. THE TERM
"PENDING TRANSACTIONS" REFERS TO THE PENDING ACQUISITIONS, DISPOSITIONS AND
MERGER DESCRIBED UNDER "TRANSACTIONS -- PENDING TRANSACTIONS." NOT ALL OF THE
PENDING TRANSACTIONS WILL BE CONSUMMATED PRIOR TO THE CLOSING OF THE OFFERING.
THE COMPANY
Jacor, upon consummation of the Pending Transactions, will be the second
largest radio group in the nation as measured by gross revenue and will own
and/or operate 101 radio stations and one television station in 24 broadcast
areas across the United States. Jacor's strategic objective is to be a leading
radio broadcaster by operating multiple radio station platforms in each of its
broadcast areas. The Company's broadcast areas are among the most attractive in
the country, demonstrating, as a group, radio revenue growth in excess of the
radio industry average over the last five years. In 1995, the Company would have
been the top billing radio group in 15 of its 24 broadcast areas and would have
had net revenue and broadcast cash flow of $383.9 million and $121.9 million,
respectively.
The following table sets forth certain information regarding the Company and
its broadcast areas:
<TABLE>
<CAPTION>
COMPANY DATA BROADCAST AREA DATA
------------------------------------ ----------------------------------
1995 RADIO 1995 1990-1995
RADIO AUDIENCE NO. OF STATIONS 1995 RADIO REVENUE
REVENUE SHARE ---------------- ARBITRON REVENUE CAGR
BROADCAST AREA RANK % AM FM TV RANK RANK %
- -------------------- ------- ------- ---- ---- ---- ------------ ------- ---------
<S> <C> <C> <C> <C> <C> <C> <C> <C>
Los Angeles......... 5 3.4 1 1 -- 2 1 3.6
Atlanta............. 1 15.2 1 3 -- 12 10 9.2
San Diego(1)(2)..... 1 20.9 3 5 -- 15 16 5.5
St. Louis........... 5 9.4 1 2 -- 17 18 4.5
Tampa............... 1 33.3 2 5 -- 21 21 6.2
Denver(3)........... 1 33.1 4 4 -- 23 14 8.6
Portland............ 1 18.4 1 2 -- 24 23 8.4
Cincinnati(2)(3).... 1 32.4 2 3 1 25 20 7.4
Kansas City......... 1 21.5 1 3 -- 26 32 4.3
Columbus............ 1 24.7 2 5 -- 32 28 6.7
Salt Lake City(3)... 1 21.7 1 4 -- 35 33 9.3
Las Vegas........... 1 22.1 -- 4 -- 48 42 11.8
Louisville.......... 2 20.9 1 4 -- 49 45 5.8
Jacksonville........ 2 22.8 2 3 -- 53 46 7.9
Toledo.............. 1 35.8 2 3 -- 75 74 5.6
Sarasota/Bradenton... 1 10.4 1 2 -- 79 176 N/A
Charleston.......... 2 13.5 -- 2 -- 87 90 4.8
Des Moines.......... 1 19.9 1 1 -- 89 69 8.4
Lexington........... 1 39.2 2 4 -- 105 79 6.4
Boise............... 2 17.6 1 2 -- 130 104 9.5
Cedar Rapids........ 1 25.3 1 1 -- 197 127 4.9
Casper.............. 3 21.0 1 1 -- 263 249 N/A
Fort
Collins/Greeley(4)... N/A N/A 1 2 -- N/A N/A N/A
Venice/Englewood(4)... N/A N/A 1 2 -- N/A N/A N/A
</TABLE>
- ------------------------
(1) Excludes two radio stations located in Baja California, Mexico on which
Jacor provides programming to and sells air time for under an exclusive
sales agency agreement.
(2) Excludes KCBQ-AM in San Diego and WKRQ-FM in Cincinnati which the Company
will divest (see "Transactions").
(3) Excludes one station in Denver, three stations in Cincinnati and two
stations in Salt Lake City on which the Company sells or will sell
advertising time pursuant to joint sales agreements (see "Business -- Radio
Station Overview").
(4) The Fort Collins/Greeley and Venice/Englewood broadcast areas do not have
Arbitron ranks.
3
<PAGE>
BUSINESS STRATEGY
Jacor's strategic objective is to be a leading radio broadcaster in each of
its broadcast areas. Jacor intends to acquire individual radio stations or radio
groups that strengthen its strategic position and that maximize the operating
performance of its broadcast properties. Specifically, Jacor's business strategy
centers upon:
REVENUE LEADERSHIP. Jacor strives to maximize the audience ratings in each
of its broadcast areas in order to capture the largest share of the radio
advertising revenue and attract advertising away from other media in that
broadcast area. Jacor focuses on those locations where it believes it has the
potential to be a leading radio group. By operating multiple radio stations in
its broadcast areas, Jacor is able to operate its stations at lower costs,
supply more diverse programming and provide advertisers with the greatest access
to targeted demographic groups.
ACQUISITION AND DEVELOPMENT OF BROADCAST PROPERTIES. Jacor's acquisition
strategy focuses on acquiring both developed, cash flow producing stations and
underdeveloped "stick" properties (i.e., stations with insignificant ratings and
little or no positive broadcast cash flow) that complement its existing
portfolio and strengthen its overall strategic position. Jacor has been able to
improve the ratings of "stick" properties with increased marketing and focused
programming that complements its existing radio station formats. Additionally,
Jacor increases the revenues and cash flow of "stick" properties by encouraging
advertisers to buy advertising in a package with its more established stations.
The Company may enter new locations through acquisitions of radio groups that
have multiple station ownership in their respective broadcast areas. The Company
may also seek to acquire individual stations in new locations that it believes
are fragmented and where a revenue-leading position can be created through
additional acquisitions. The Company may exit locations it views as having
limited strategic appeal by selling or exchanging existing stations for stations
in other locations where the Company operates, or for stations in new locations.
Additionally, the Company may enter new locations situated near Jacor's core
broadcast areas. The Company believes that it will be able to leverage the costs
associated with the delivery of high quality, high cost programming of topical
interest throughout these geographical regions, which programming would not
otherwise be economically viable in such smaller broadcast areas. Utilizing this
strategy, Jacor has recently entered into agreements or closed transactions to
acquire radio stations in Venice/Englewood, Florida; Lexington, Kentucky;
Sarasota/Bradenton, Florida; Louisville, Kentucky; Casper, Wyoming; and Fort
Collins/Greeley, Colorado.
DIVERSE FORMAT EXPERTISE. Jacor management has developed programming
expertise over a broad range of radio formats. This management expertise enables
Jacor to specifically tailor the programming of each station in a broadcast area
in order to maximize Jacor's overall strategic position. Jacor utilizes
sophisticated research techniques to identify opportunities within each
broadcast area and programs its stations to provide complete coverage of a
demographic or format type. This strategy allows Jacor to deliver highly
effective access to a target demographic and to capture a higher percentage of
advertising revenues.
DISTINCT STATION PERSONALITIES. Jacor engages in a number of creative
programming and promotional efforts designed to create listener loyalty and
station brand awareness. Through these efforts, management seeks to cultivate a
distinct personality for each station based upon the unique characteristics of
each broadcast area. Jacor hires dynamic on-air personalities for key morning
and afternoon "drive times" and provides comprehensive news, traffic and weather
reports to create active listening by the audience. This commitment to
"foreground" or "high impact" programming has successfully generated significant
audience share.
One of the methods Jacor utilizes to develop the personality of its AM radio
stations is by broadcasting professional sporting events and related
programming. Currently, Jacor has the broadcast rights for the Cincinnati Reds,
Cincinnati Bengals, Colorado Rockies, Denver Broncos, Los Angeles Kings,
Portland Trail Blazers and San Diego Chargers. Sports broadcasting serves as a
key "magnet" for attracting audiences to a station and then introducing them to
other programming features, such as local and national news, entertaining talk,
and weather and traffic reports.
4
<PAGE>
STRONG AM STATIONS. Jacor is an industry leader in successfully operating
AM stations. While many radio groups primarily utilize network or simulcast
programming on their AM stations, Jacor also develops unique programming for its
AM stations to build strong listener loyalty and awareness. Utilizing this
operating focus and expertise, Jacor has developed its AM stations in Denver and
Cincinnati into the revenue and ratings leaders among both AM and FM stations in
their respective broadcast areas. Jacor's targeted AM programming adds to
Jacor's ability to increase its revenues and results in more complete coverage
of the listener base.
Although the cost structure of a large-scale AM station generally results in
lower operating margins than typical music-based FM stations, the majority of
Jacor's AM stations generate substantial levels of broadcast cash flow.
Historically, most other radio broadcast companies have not focused on their AM
operations to the same extent as Jacor. Accordingly, most of the AM stations to
be acquired meaningfully underperform Jacor's AM stations, and management
believes such stations have the potential to generate significant incremental
cash flow.
POWERFUL BROADCAST SIGNALS. A station's ability to maintain a leadership
position depends in part upon the strength of its broadcasting delivery system.
A powerful broadcast signal enhances delivery range and clarity, thereby
influencing listener preference and loyalty. Many of Jacor's stations'
broadcasting signals are among the strongest in their respective broadcast areas
reinforcing its leadership position. Jacor opportunistically upgrades the power
and quality of the signals of stations it acquires. Following the consummation
of the Pending Transactions, Jacor expects that relatively inexpensive technical
upgrades in certain broadcast areas will provide for significantly greater
signal presence.
RECENT DEVELOPMENTS
Since the enactment of the Telecommunications Act of 1996 (the "Telecom
Act") on February 8, 1996, Jacor has acquired 40 radio stations, two television
stations (one of which has subsequently been disposed of) and entered into an
exclusive sales agency agreement to provide programming to and sell air time for
two radio stations located in Baja California, Mexico. The aggregate
consideration provided by Jacor in these transactions was approximately $1.2
billion. Jacor has also disposed of three radio stations for approximately $7.0
million.
In addition, Jacor has entered into a number of binding agreements for
transactions that are currently pending. Jacor has contracted for the exchange
of its two radio stations in Phoenix for two radio stations in San Diego. Jacor
has also entered into binding agreements to purchase an additional 27 radio
stations for approximately $203.3 million (including $30.9 million already
advanced by Jacor to fund various escrow deposits, $16.1 million of which was
paid prior to September 30, 1996). Jacor has also entered into a merger
agreement pursuant to which it will acquire 18 radio stations and joint sales
agreements for two additional radio stations for consideration of 3.55 million
shares of Jacor's common stock, $.01 par value per share (the "Common Stock")
(subject to adjustment pursuant to the terms of the merger agreement), warrants
to acquire 500,000 shares of Common Stock at an exercise price of $40 per full
share, and up to $64.0 million in cash to be used to repay outstanding debt of
the company to be acquired. Jacor has also entered into a binding agreement to
sell two radio stations for approximately $45.0 million in cash. Finally, Jacor
has entered into letters of intent for the disposition of WKRQ-FM in Cincinnati
and KCBQ-AM in San Diego, but has not executed definitive agreements in
connection with such dispositions. For calendar 1995, the incremental net
revenues and broadcast cash flow from the Pending Transactions would have been
$73.2 million and $17.8 million, respectively.
Jacor is currently negotiating for additional acquisitions in its existing
locations and in new locations. Jacor is also engaged in preliminary discussions
with owners of numerous other radio stations, which may or may not result in
negotiations for additional acquisitions. Such transactions, if any, may involve
the payment of cash, shares of Common Stock and/or the exchange of the Company's
other broadcast properties. However, there can be no assurance that Jacor will
successfully complete all or any such transactions or what the consequences
thereof would be. For more information about Jacor's recent acquisitions and
dispositions, see "Transactions."
5
<PAGE>
THE OFFERING
<TABLE>
<S> <C>
Securities Offered........... $150.0 million in aggregate principal amount of % Senior
Subordinated Notes.
Maturity Date................ , 2006.
Interest Payment Dates....... and , commencing , 1997.
Mandatory Redemption......... None.
Optional Redemption.......... The Notes will be redeemable, in whole or in part, at the
option of JCC on or after , 2001, at the
redemption prices set forth herein, plus accrued and unpaid
interest, if any, to the date of redemption. See
"Description of the Notes -- Optional Redemption."
Ranking...................... The Notes will be general unsecured obligations of JCC and
will be subordinated in right of payment to all existing and
future Senior Debt of JCC including the Credit Facility. As
of September 30, 1996, JCC had outstanding an aggregate
principal amount of $400.0 million of Senior Debt. On a pro
forma basis as of September 30, 1996, after giving effect to
the Citicasters Put and this Offering and the application of
the net proceeds therefrom, the aggregate principal amount
of Senior Debt of JCC would have been $400.0 million. See
"Transactions," "Description of Other Indebtedness -- The
Credit Facility" and "Description of Notes --
Subordination."
Guarantees................... The Notes will be fully and unconditionally guaranteed on a
senior subordinated basis by Jacor and the Subsidiary
Guarantors on a joint and several basis (limited only to the
extent necessary for each such Guarantee to not constitute a
fraudulent conveyance under applicable law). The Guarantees
will be general unsecured obligations of the Guarantors. See
"Description of Notes -- Subordination; -- Guarantees."
Change of Control Offer...... If a Change of Control occurs (including a change of control
of Jacor, for so long as JCC is a wholly owned subsidiary of
Jacor), JCC will be required to offer to repurchase all
outstanding Notes at a price equal to 101% of their
principal amount, plus accrued and unpaid interest, if any,
to the date of repurchase. There can be no assurance that
JCC will have sufficient funds to purchase all of the Notes
in the event of a Change of Control or that JCC would be
able to obtain financing for such purposes on favorable
terms, if at all. In addition, the Credit Facility restricts
JCC's ability to repurchase the Notes pursuant to a Change
of Control Offer. Furthermore, a Change of Control under the
Indenture will result in a default under the Credit
Facility. See "Description of the Notes -- Certain Covenants
-- Repurchase of the Notes at the Option of the Holder Upon
a Change of Control."
Certain Covenants............ The Indenture will impose certain limitations on the ability
of JCC and its subsidiaries to, among other things (i) incur
additional indebtedness; (ii) incur liens; (iii) pay
dividends or make certain other restricted payments; (iv)
consummate certain asset sales; (v) enter into certain
transactions with affiliates; (vi) incur indebtedness that
is subordinate in right of payment to any Senior Debt and
senior in right of payment to the Notes; (vii) impose
restrictions on the ability of a subsidiary to pay dividends
or make certain payments to JCC;
</TABLE>
6
<PAGE>
<TABLE>
<S> <C>
(viii) conduct business other than the ownership and
operation of radio and television broadcast stations and
related businesses; (ix) merge or consolidate with any other
person or (x) sell, assign, transfer, lease, convey or
otherwise dispose of all or substantially all of the assets
of JCC. With respect to an Asset Sale Offer (as defined
herein), JCC will not be permitted to commence an Asset Sale
Offer for the Notes until such time as an Asset Sale Offer
for the 9 3/4% Notes (as defined herein), if required, has
been completed. See "Description of Notes -- Certain
Covenants."
Use of Proceeds.............. The net proceeds from the Offering will be used in
connection with the Pending Transactions; to repay a portion
of the outstanding indebtedness under the Credit Facility;
and for general corporate purposes, including acquisition of
other broadcast properties and the repayment of other
indebtedness. See "Use of Proceeds."
</TABLE>
MARKET DATA AND CERTAIN DEFINITIONS
All rankings by revenue or billings that are contained in this Prospectus
are based on 1995 information contained in Duncan's Radio Market Guide (1996
ed.), Duncan's American Radio (Small Market Edition 1996), Duncan's American
Radio (Spring 1996), Duncan's Radio Group Directory (1996-1997 ed.) and/or
Broadcast Investment Analyst: Radio '96 Market Report. Except where otherwise
specified, all information concerning ratings and audience listening information
is derived from the Spring 1996 Arbitron Metro Area Ratings Survey (the "Spring
1996 Arbitron") and the Summer 1996 Arbitron Metro Area Ratings Survey (the
"Summer 1996 Arbitron"). All Designated Market Area ("DMA") information is
derived from the Nielsen Station Index, May 1996 ("Nielsen"). The term "LMAS"
means local marketing agreements which would be considered time brokerage
agreements for FCC purposes. The term "JSAS" means joint sales agreements
pursuant to which a company sells advertising time on stations owned by third
parties. A Jacor affiliate owns a 40% interest in a limited liability company
that purchased the assets formerly owned by Duncan American Radio, Inc. See
"Transactions."
7
<PAGE>
SUMMARY HISTORICAL FINANCIAL DATA
(Dollars in thousands)
The following sets forth summary historical financial data for Jacor for the
three years ended December 31, 1995 and the nine month periods ended September
30, 1995 and 1996. The comparability of the historical consolidated financial
data has been significantly impacted by acquisitions and dispositions. The
information presented below is qualified in its entirety by, and should be read
in conjunction with, Management's Discussion and Analysis of Financial Condition
and Results of Operations and the Consolidated Financial Statements and the
Notes thereto incorporated by reference from the Company's Annual Report on Form
10-K for the year ended December 31, 1995 and the Company's Quarterly Reports on
Form 10-Q for the quarterly periods ended March 31, 1996, June 30, 1996 and
September 30, 1996.
<TABLE>
<CAPTION>
PRO FORMA
COMBINED(1)(2)
HISTORICAL ---------------------
---------------------------------------------------------- YEAR NINE
NINE MONTHS ENDED ENDED MONTHS
YEAR ENDED DECEMBER 31, SEPTEMBER 30, DECEMBER ENDED
---------------------------------- ---------------------- 31, SEPTEMBER
1993 1994 1995 1995 1996(3) 1995 30, 1996
---------- ---------- ---------- ---------- ---------- --------- ---------
<S> <C> <C> <C> <C> <C> <C> <C>
OPERATING STATEMENT DATA:
Net revenue......................... $ 89,932 $ 107,010 $ 118,891 $ 87,176 $ 127,520 $303,469 $240,041
Broadcast operating expenses........ 69,520 80,468 87,290 65,241 91,694 195,744 162,949
Depreciation and amortization....... 10,223 9,698 9,483 6,783 10,601 46,840 35,239
Corporate general and administrative
expenses.......................... 3,564 3,361 3,501 2,564 4,080 6,655 5,559
Operating income.................... 6,625 13,483 18,617 12,588 21,145 54,230 36,294
Net income (loss)................... 1,438 7,852 10,965 7,768 4,737 (8,895) (4,694)
OTHER FINANCIAL DATA:
Broadcast cash flow(4).............. $ 20,412 $ 26,542 $ 31,601 $ 21,935 $ 35,826 $107,725 $ 77,092
Broadcast cash flow margin(5)....... 22.7% 24.8% 26.6% 25.2% 28.1% 35.5% 32.1%
EBITDA(4)........................... $ 16,848 $ 23,181 $ 28,100 $ 19,371 $ 31,746 $101,070 $ 71,533
Capital expenditures................ 1,495 2,221 4,969 3,664 7,506 19,677 12,436
Ratio of earnings to fixed
charges(6)........................ 1.9x 6.0x 5.7x 7.1x 2.0x -- --
PRO FORMA CREDIT RATIOS:(7)
Cash interest expense............... $ 56,705
Ratio of EBITDA to cash interest
expense........................... 1.8x
Ratio of long term debt (net of
cash) to EBITDA................... 5.7x
</TABLE>
<TABLE>
<CAPTION>
AS OF DECEMBER 31, AS OF SEPTEMBER 30,
---------------------------------- ----------------------
1993 1994 1995 1995 1996
---------- ---------- ---------- ---------- ----------
<S> <C> <C> <C> <C> <C> <C> <C>
BALANCE SHEET DATA:
Working capital..................... $ 38,659 $ 44,637 $ 24,436 $ 20,343 $ 84,602
Intangible assets................... 84,991 89,543 127,158 114,738 1,341,430
Total assets........................ 159,909 173,579 208,839 203,356 1,717,221
Long-term debt...................... -- -- 45,500 33,500 626,250
LYONs............................... -- -- -- -- 117,090
Total shareholders' equity.......... 140,413 149,044 139,073 141,991 528,255
</TABLE>
- ------------------------------
(1) The unaudited pro forma combined statement of operations data for the year
ended December 31, 1995 and nine months ended September 30, 1996 give effect
to each of the following transactions as if such transactions had been
completed January 1, 1995: (i) the Citicasters Merger (as defined herein),
(ii) the Noble Acquisition (as defined herein), (iii) Jacor's, Citicasters'
and Noble Broadcast Group, Inc.'s completed 1995 and January 1996 radio
station acquisitions, (iv) Jacor's February 1996 radio station disposition,
and (v) the related financing transactions completed in June 1996. The
unaudited pro forma combined information does not purport to present the
actual results of operations of Jacor had the transactions and events
assumed therein in fact occurred on the dates specified, nor is it
necessarily indicative of the results of operations that may be achieved in
the future.
(2) The unaudited pro forma combined statement of operations data for the year
ended December 31, 1995 and nine months ended September 30, 1996 does not
give effect to the completed acquisitions of WCTQ-FM and WAMR-AM in Venice,
Florida and WLAP-AM, WMXL-FM and WWYC-FM servicing Lexington, Kentucky.
These completed acquisitions would increase net revenue and broadcast cash
flow by $3,934 and $560, respectively, for the year ended December 31, 1995
and by $2,507 and $643, respectively, for the nine months ended September
30, 1996.
(3) The Noble Acquisition and the Citicasters Merger significantly affect
comparison of net revenues, operating expenses and broadcast cash flow for
the nine months ended September 1996 as compared to the nine months ended
September 1995.
(4) "Broadcast cash flow" means operating income before depreciation and
amortization, and corporate general and administrative expenses. "EBITDA"
means operating income before depreciation and amortization. Broadcast cash
flow and EBITDA should not be considered in isolation from, or as a
substitute for, operating income, net income or cash flow and other
consolidated income or cash flow statement data computed in accordance with
generally accepted accounting principles or as a measure of a company's
profitability or liquidity. Although these measures of performance are not
calculated in accordance with generally accepted accounting principles, they
are widely used in the broadcasting industry as a measure of a company's
operating performance because they assist in comparing station performance
on a consistent basis across companies without regard to depreciation and
amortization, which can vary significantly depending on accounting methods
(particularly where acquisitions are involved) or non-operating factors such
as historical cost bases. Broadcast cash flow also excludes the effect of
corporate general and administrative expenses, which generally do not relate
directly to station performance.
(5) Broadcast cash flow margin equals broadcast cash flow as a percentage of net
revenue.
(6) The ratio of earnings to fixed charges for the year ended December 31, 1991
was 1.1x. In 1992, fixed charges exceeded earnings by approximately $23.7
million. For the purpose of computing the ratio of earnings to fixed charges
as prescribed by the rules and regulations of the Securities and Exchange
Commission, earnings represent pretax income from continuing operations plus
fixed charges, less interest capitalized. Fixed charges represent interest
(including amounts capitalized), the portion of rent expenses deemed to be
interest and amortization of deferred financing costs. On a pro forma basis
for the year ended December 31, 1995 and the nine months ended September 30,
1996, the ratio of earnings to fixed charges resulted in a coverage
deficiency of $5.9 million and $5.7 million, respectively.
(7) The pro forma credit ratios reflect the cash and long term debt of Jacor as
of September 30, 1996 as adjusted to give effect to the Citicasters Put, the
Offering and the application of the net proceeds therefrom to reduce
outstanding indebtedness under the revolving credit facility component of
the Credit Facility to the extent permitted thereunder. See
"Capitalization."
8
<PAGE>
RISK FACTORS
IN ADDITION TO THE OTHER INFORMATION CONTAINED IN THIS PROSPECTUS AND IN THE
DOCUMENTS INCORPORATED HEREIN BY REFERENCE, PROSPECTIVE INVESTORS SHOULD
CONSIDER CAREFULLY THE FOLLOWING FACTORS BEFORE PURCHASING THE NOTES OFFERED
HEREBY.
PENDING TRANSACTIONS. The consummation of each of the Pending Transactions
requires Federal Communications Commission ("FCC") approval with respect to the
transfer of the associated broadcast licenses. Jacor has filed or will file in
the ordinary course applications seeking FCC approval for the Pending
Transactions. In addition, the consummation of certain of the Pending
Transactions is subject to the expiration or termination of the applicable
waiting periods under the Hart-Scott-Rodino Antitrust Improvements Act of 1976,
as amended (the "HSR Act"). Jacor recently received second requests for
information from the Antitrust Division of the Department of Justice (the
"Antitrust Division") relating to each of the Par Transaction and the Nationwide
Exchange (each as defined herein) which focus on Jacor's acquisition of radio
stations in San Diego. The applicable waiting period under the HSR Act for each
of the Par Transaction and the Nationwide Exchange will expire 20 days after all
of the parties in the applicable transaction substantially comply with the
second request relevant to that transaction, unless the parties agree to extend
the waiting period or the Antitrust Division seeks to, and is successful in its
efforts to, enjoin the applicable transaction. The parties have not yet
completed compliance with the recently-received second requests. There can be no
assurance that (i) the FCC will approve the transfer of the broadcast licenses
in connection with the Pending Transactions; (ii) the FCC or a court would
affirm the FCC consent to the Pending Transactions if such review is undertaken;
(iii) the HSR Act waiting periods with respect to the various Pending
Transactions will expire without objections being raised by either the Federal
Trade Commission ("FTC") or the Antitrust Division that would not be eliminated
without substantial changes to the terms of the applicable Pending Transactions;
or (iv) Jacor will be successful in consummating the various Pending
Transactions in a timely manner or on the terms described herein.
RISKS OF ACQUISITION STRATEGY. Jacor intends to pursue growth through the
opportunistic acquisition of broadcasting companies, radio station groups,
individual radio stations and entities that provide services to radio station
groups or individual radio stations. In this regard, Jacor routinely reviews
such acquisition opportunities. Jacor believes that currently there are
available a number of acquisition opportunities that would be complementary to
its business. Other than with respect to the Pending Transactions, Jacor
currently has no binding commitments to acquire any specific business or other
material assets. Jacor cannot predict whether it will be successful in pursuing
such acquisition opportunities or what the consequences of any such acquisition
would be.
The Pending Transactions will increase Jacor's broadcast station portfolio
by 40 radio stations. Jacor's acquisition strategy involves numerous risks,
including difficulties in the integration of operations and systems, the
diversion of management's attention from other business concerns and the
potential loss of key employees of acquired stations. There can be no assurance
that Jacor's management will be able to manage effectively the resulting
business or that such acquisitions will benefit Jacor.
In addition to the expenditure of capital relating to the Pending
Transactions (see "Use of Proceeds"), future acquisitions also may involve the
expenditure of significant funds. Depending upon the nature, size and timing of
future acquisitions, Jacor may be required to raise additional financing. There
is no assurance that such additional financing will be available to Jacor on
acceptable terms.
INCREASED ANTITRUST SCRUTINY. Subsequent to the passage of the Telecom Act,
the radio broadcast industry has been subject to an increased amount of scrutiny
by the Antitrust Division. Such scrutiny caused Jacor to experience delays in
closing both the Citicasters Merger and the Noble Acquisition and to incur
increased transaction costs. The Company could experience similar delays and
increased costs in connection with future transactions, including one or more of
the Pending Transactions.
The Antitrust Division or the FTC could also compel changes in the proposed
terms of acquisitions. This is evidenced by Jacor's agreement with the Antitrust
Division in connection with the Citicasters Merger pursuant to which Jacor
agreed to divest WKRQ-FM in Cincinnati by February 1997 and to inform the
Antitrust Division of certain transactions in Cincinnati that would not
otherwise be reportable under the
9
<PAGE>
HSR Act. Antitrust Division scrutiny also resulted in Jacor terminating its
agreement to finance the acquisition of WGRR-FM in Cincinnati by Tsunami
Communications, Inc., the entity with whom Jacor has a JSA for a Denver radio
station. Subsequent to such termination, Jacor received from the Antitrust
Division a civil investigative demand relating to the proposed transaction. In
November 1996, the Antitrust Division suspended Jacor's obligation to respond to
this civil investigative demand.
In addition, Jacor has received an industry-wide civil investigative demand
relating to JSAs pursuant to which the Antitrust Division is examining the
antitrust implications of such arrangements. Jacor anticipates that the
Antitrust Division's determinations of the permissibility of JSAs will depend on
the specific characteristics of the markets, stations and relationships being
reviewed. Jacor believes that its existing JSAs are appropriate under applicable
antitrust laws and that its JSAs are not material to its business as such
arrangements only account for approximately 1.0% of Jacor's revenues. Jacor is
in the process of responding to the civil investigative demand relating to JSAs
received from the Antitrust Division.
Although Jacor does not believe that antitrust considerations will adversely
affect Jacor's ability to successfully implement its business strategy, the
effects of the Antitrust Division's heightened level of scrutiny on the radio
broadcast industry and on Jacor are uncertain. There can be no assurance that
these concerns will not negatively impact Jacor.
FCC REGULATION OF BROADCASTING INDUSTRY. The broadcasting industry is
subject to extensive regulation by the FCC which, among other things, requires
approval for the issuance, renewal, transfer and assignment of broadcasting
station operating licenses, limits the number of broadcasting properties Jacor
may acquire and regulates the operations of broadcasting stations. Additionally,
in certain circumstances, the Communications Act of 1934, as amended (the
"Communications Act"), and FCC rules will operate to impose limitations on alien
ownership and voting of the capital stock of Jacor. The FCC is considering
changes to its rules in response to the Telecom Act and other industry
developments. There can be no assurance that any such rule changes will not
negatively impact Jacor's operations in the future.
The Company's business will be dependent upon maintaining its broadcasting
licenses issued by the FCC, which are issued currently for a maximum term of
five years for television and seven years for radio. The majority of the
Company's operating licenses expire at various times in 1996 and 1997. Although
it is rare for the FCC to deny a renewal application, there can be no assurance
that the pending or future renewal applications will be approved, or that such
renewals will not include conditions or qualifications that could adversely
affect the Company's operations. Moreover, governmental regulations and policies
may change over time and there can be no assurance that such changes would not
have a material adverse impact upon the Company's business, financial condition
and results of operations.
COMPETITION; BUSINESS RISKS. Broadcasting is a highly competitive business.
Jacor's radio and television stations compete for audiences and advertising
revenues with other radio and television stations, as well as with other media,
such as newspapers, magazines, cable television, outdoor advertising and direct
mail, within their respective geographic areas. Audience ratings and revenue
shares are subject to change and any adverse change in a particular geographic
area could have a material and adverse effect on the revenue of stations located
in that geographic area. Future operations are further subject to many variables
which could have an adverse effect upon Jacor's financial performance. These
variables include economic conditions, both generally and relative to the
broadcasting industry; shifts in population and other demographics; the level of
competition for advertising dollars with other radio stations, television
stations and other entertainment and communications media; fluctuations in
operating costs; technological changes and innovations; changes in labor
conditions; and changes in governmental regulations and policies and actions of
federal regulatory bodies. Although the Company believes that each of its
stations will be able to compete effectively in its respective broadcast area,
there can be no assurance that any such station will be able to maintain or
increase its current audience ratings and advertising revenues.
SUBSTANTIAL LEVERAGE AND LIMITED FINANCIAL FLEXIBILITY. The Pending
Transactions and this Offering may result in a higher level of indebtedness for
the Company. The Company's outstanding indebtedness may have the following
important consequences: (i) significant interest expense and principal repayment
obligations resulting in substantial annual fixed charges; (ii) significant
limitations on the Company's ability to obtain additional debt financing; and
(iii) increased vulnerability to adverse general economic and industry
10
<PAGE>
conditions. In addition, the Credit Facility has a number of financial
covenants, including interest coverage, debt service coverage and a maximum
ratio of debt to earnings before other expenses (income), interest, expenses,
taxes, depreciation and amortization.
SHARE OWNERSHIP BY ZELL/CHILMARK. Zell/Chilmark Fund L.P. ("Zell/Chilmark")
currently holds approximately 42.7% of the outstanding Common Stock. The large
share ownership of Zell/Chilmark may have the effect of discouraging certain
types of transactions involving an actual or potential change of control of
Jacor, including transactions in which the holders of Common Stock might
otherwise receive a premium for their shares over then-current market prices.
By virtue of its current control of Jacor, Zell/Chilmark could sell large
amounts of Common Stock by causing Jacor to file a registration statement with
respect to such stock. In addition, Zell/Chilmark could sell its shares of
Common Stock without registration pursuant to Rule 144 under the Securities Act
of 1933, as amended (the "Securities Act"). Jacor can make no prediction as to
the effect, if any, that such sales of shares of Common Stock would have on the
prevailing market price. Sales of substantial amounts of Common Stock, or the
availability of such shares for sale, could adversely affect prevailing market
prices. Sales or transfers of Common Stock by Zell/Chilmark could result in
another person or entity becoming the controlling shareholder of Jacor.
KEY PERSONNEL. Jacor's business is dependent upon the performance of
certain key employees, including its Chief Executive Officer and its President.
Jacor employs several on-air personalities with significant loyal audiences in
their respective broadcast areas. Jacor generally enters into long-term
employment agreements with its key on-air talent to protect its interests in
those relationships, but there can be no assurance that all such on-air
personalities will remain with Jacor.
FORWARD-LOOKING STATEMENTS. This Prospectus sets forth or incorporates by
reference forward-looking statements within the meaning of Section 27A of the
Securities Act. Discussions containing such forward-looking statements may be
found in the material set forth under "Summary" and "Business," as well as
within the Prospectus generally. In addition, when used in this Prospectus, the
words "believes," "anticipates," "expects" and similar expressions are intended
to identify forward-looking statements. Such statements are subject to a number
of risks and uncertainties. Actual results in the future could differ materially
from those described in the forward-looking statements as a result of the risk
factors set forth above and the matters set forth or incorporated by reference
in this Prospectus generally. Jacor undertakes no obligation to publicly release
the result of any revisions to these forward-looking statements that may be made
to reflect any future events or circumstances. Jacor cautions the reader,
however, that this list of risk factors may not be exhaustive.
11
<PAGE>
TRANSACTIONS
RECENTLY COMPLETED ACQUISITIONS AND DISPOSITIONS
In February 1996, Jacor entered into an agreement to acquire Citicasters
through a merger of Citicasters with and into a wholly owned Jacor subsidiary
(the "Citicasters Merger"). Citicasters owned and/or operated 19 radio stations,
located in Atlanta, Phoenix, Tampa, Portland, Kansas City, Cincinnati,
Sacramento, Columbus and two television stations, one located in Tampa and one
in Cincinnati. The Citicasters Merger enhanced Jacor's existing station
portfolios in Atlanta, Tampa and Cincinnati and created new multiple radio
station platforms in Phoenix, Portland, Kansas City, Sacramento and Columbus.
Jacor consummated the Citicasters Merger in September 1996 for an approximate
aggregate value of $847.3 million, which included the purchase of all
outstanding shares of Citicasters common stock, the assumption of Citicasters
outstanding indebtedness and the issuance of warrants to purchase an aggregate
of 4,400,000 shares of Common Stock at an exercise price of $28.00 per full
share (the "Citicasters Warrants"). In order to complete the Citicasters Merger,
Jacor agreed with the Antitrust Division to divest WKRQ-FM in Cincinnati no
later than February 1997.
Also, in February 1996, Jacor entered into an agreement to acquire Noble
Broadcast Group, Inc. ("Noble"), which owned ten radio stations serving Denver,
St. Louis and Toledo, and the right to provide programming to and sell the air
time for one AM and one FM station serving the San Diego broadcast area (the
"Noble Acquisition"). The Noble Acquisition enhanced Jacor's existing portfolio
in Denver where it now owns eight stations, in addition to creating new multiple
station platforms in St. Louis and Toledo. Jacor consummated the Noble
Acquisition in July 1996 for an aggregate consideration of approximately $152.0
million in cash.
In February 1996, Jacor sold the business and certain operating assets of
radio stations WMYU-FM and WWST-FM in Knoxville. Jacor received approximately
$6.5 million in cash for this sale, generating a gain of approximately $2.5
million. In March 1996, Jacor entered into an agreement for the sale of the
assets of WBRD-AM in Tampa for approximately $0.5 million in cash. The sale of
WBRD-AM was completed in June 1996.
In March 1996, Jacor entered into an agreement to acquire the FCC licenses
of WCTQ-FM and WAMR-AM in Venice, Florida and to purchase certain real estate
and transmission facilities necessary to operate the stations. In June 1996,
Jacor consummated this acquisition for a purchase price of approximately $4.4
million.
In June 1996, Jacor entered into an agreement to acquire the FCC licenses of
WLAP-AM, WMXL-FM and WWYC-FM servicing Lexington, Kentucky and to purchase real
estate and transmission facilities necessary to operate the stations. In August
1996, Jacor consummated this acquisition for a purchase price of approximately
$14.0 million.
Also, in June 1996, Jacor agreed to finance the purchase by Critical Mass
Media, Inc. ("CMM") of a 40% interest in a newly formed limited liability
company that agreed to purchase for approximately $0.5 million the assets of
Duncan American Radio, Inc. CMM is a marketing research and radio consulting
business which is owned by a limited partnership of which Jacor is the 5%
general partner and a corporation wholly owned by Randy Michaels, the Chief
Executive Officer of Jacor, is the 95% limited partner. This transaction was
completed by Jacor in June 1996.
In September 1996, Jacor entered into a binding agreement with a subsidiary
of Gannett Co., Inc. ("Gannett") to effect an exchange of Jacor's Tampa
television station, WTSP-TV, acquired by Jacor in the Citicasters Merger, for
six of Gannett's radio stations (the "Gannett Exchange"). In December 1996,
Jacor and Gannett consummated the Gannett Exchange subject only to a possible
unwinding of the transaction in the event a final order from the FCC cannot be
obtained. The stations Jacor acquired are KIIS-FM and KIIS-AM in Los Angeles,
KSDO-AM and KKBH-FM in San Diego and WUSA-FM and WDAE-AM in Tampa-St. Petersburg
(the "Selected Gannett Radio Stations"). The Company will rename WUSA-FM to
WUKS-FM as Gannett retained the WUSA-FM call letters. The Gannett Exchange
enhanced Jacor's existing station portfolios in San Diego and Tampa and created
a new multiple radio station platform in the
12
<PAGE>
Los Angeles broadcast area. In connection with the closing of the Gannett
Exchange, Jacor and Gannett agreed that they will value the exchanged assets at
$170.0 million for tax purposes. Jacor believes that this transaction
constituted a tax-free like-kind exchange.
PENDING TRANSACTIONS
In May 1996, Jacor entered into an agreement with Enterprise Media of
Toledo, L.P. to acquire the FCC licenses of WIOT-FM and WCWA-AM in Toledo, Ohio
and to purchase real estate and transmission facilities necessary to operate the
stations. The purchase price for the assets is $13.0 million which amount has
been placed in escrow pending the closing of the transaction. Jacor has entered
into an LMA with respect to these stations. These stations will enhance Jacor's
existing radio station portfolio in the Toledo broadcast area.
In July 1996, Jacor entered into an agreement with New Wave Communications,
L.P. and New Wave Broadcasting, Inc. to acquire the FCC licenses of WSPB-AM,
WSRZ-FM and WYNF-FM in Sarasota, Florida and to purchase leasehold interests in
real estate and transmission facilities necessary to operate the stations. The
purchase price for the assets is $12.5 million, subject to a maximum purchase
price of $15.0 million based upon the timing of the closing.
In August 1996, Jacor entered into agreements with Sarasota-Charlotte
Broadcasting Corporation to acquire certain assets, a construction permit and
related real estate for radio station WEDD-FM in Englewood, Florida for an
aggregate of $0.8 million.
In October 1996, Jacor entered into a definitive merger agreement with
Regent Communications, Inc. ("Regent") whereby Regent will merge with and into
Jacor (the "Regent Merger"). Regent owns, operates or represents 20 radio
stations located in Kansas City, Salt Lake City, Las Vegas, Louisville and
Charleston, South Carolina. Of these 20 stations, Regent currently is operating
under an LMA with respect to two such stations subject to Regent's option to
purchase such stations and Regent is representing two such stations under JSAs
and has a definitive merger agreement to acquire another such station. Regent
entered into an LMA with Jacor such that Jacor commenced the activities
contemplated by the LMA with regard to the Regent stations on December 1, 1996
and Regent assigned to Jacor its existing LMAs and JSAs. In addition, the owner
of the station which Regent is to acquire pursuant to a definitive merger
agreement entered into an LMA with Jacor that became effective December 1, 1996.
The Regent Merger will enhance Jacor's existing station portfolio in Kansas City
and will create new multiple station platforms in the attractive high growth
Salt Lake City and Las Vegas broadcast areas. The merger consideration to be
paid by Jacor to the Regent stockholders consists of 3.55 million shares of
Common Stock (subject to adjustment pursuant to the terms of the merger
agreement), warrants to acquire an aggregate of 500,000 shares of Common Stock
at an exercise price of $40 per full share (the "Regent Warrants"), and up to
$64.0 million in cash to be used to repay outstanding Regent indebtedness. In
the event that the value of the Common Stock to be received by the Regent
stockholders is less than $116.0 million, at Jacor's option: (a) Jacor may make
up the difference by the delivery of additional shares of Common Stock; (b) pay
the difference in cash; or (c) pay all of the merger consideration in cash. The
HSR Act waiting period with respect to the Regent Merger expired on November 22,
1996.
In October 1996, Jacor also entered into binding agreements with Par
Broadcasting Company, Inc. and Par Broadcasting Company (collectively, "Par") to
purchase four radio stations in San Diego, KOGO-AM, KCBQ-AM, KIOZ-FM and
KKLQ-FM, for $72.0 million in cash (the "Par Transaction") and with
Entertainment Communications, Inc. ("Entercom") to sell two radio stations in
Sacramento, KSEG-FM and KRXQ-FM, for $45.0 million in cash (the "Entercom
Transaction"). Although these transactions are not directly contingent upon each
other, Jacor anticipates that these transactions will occur in a manner that
permits the transactions to be treated as a tax-free like-kind exchange. The HSR
Act waiting period with respect to the Entercom Transaction expired on December
1, 1996. Jacor has entered into an LMA with Entercom such that Entercom will
commence the activities contemplated by the LMA with regard to the Sacramento
stations on January 1, 1997. Par has entered into an LMA with Jacor such that
Jacor will commence the activities contemplated by the LMA with regard to the
San Diego stations upon the expiration or termination of the applicable waiting
period under the HSR Act. See "Risk Factors -- Pending Transactions."
13
<PAGE>
In October 1996, Jacor entered into a binding agreement with Nationwide
Communications, Inc. ("Nationwide") whereby Jacor will exchange the assets of
its two radio stations in Phoenix, KSLX-AM and KSLX-FM, for the assets of
Nationwide's two radio stations in San Diego, KGB-FM and KPOP-AM (the
"Nationwide Exchange"). The assets to be exchanged are valued by Jacor and
Nationwide at approximately $45.0 million. Jacor anticipates that this
transaction will constitute a tax-free like-kind exchange. This transaction is
contingent upon the successful closing of Nationwide's agreement to purchase
KGB-FM and KPOP-AM from KGB, Inc. Nationwide has assigned to Jacor its rights
under an LMA with KGB, Inc. such that Jacor will commence the activities
contemplated by the LMA with regard to the San Diego stations upon the
expiration or termination of the applicable waiting period under the HSR Act.
Jacor has entered into an LMA with Nationwide such that Nationwide will commence
the activities contemplated by the LMA with regard to the Phoenix stations upon
the expiration or termination of the applicable waiting period under the HSR
Act. In connection with entering into the agreements with Nationwide, Jacor also
announced that it intends to sell KCBQ-AM in San Diego, upon its acquisition
from Par, to EXCL Communications, Inc. ("EXCL"). No binding agreement has yet
been entered into with EXCL. Together, the Par Transaction, the Nationwide
Exchange and the contemplated sale of KCBQ-AM will enhance Jacor's existing
radio station portfolio in San Diego, where Jacor will then own eight stations.
See "Risk Factors -- Pending Transactions."
In October 1996, Jacor entered into three separate binding agreements with
three unaffiliated radio broadcast companies whereby Jacor will acquire the FCC
licenses and assets of a total of nine radio stations. These agreements are with
Palmer Broadcasting Limited Partnership to acquire WHO-AM and KLYF-FM in Des
Moines and WMT-AM and WMT-FM in Cedar Rapids for a purchase price of $52.5
million in cash (the "Palmer Transaction"); with Clear Channel Radio, Inc. to
purchase KTWO-AM, KMGW-FM and the Wyoming Radio Network, in Casper, Wyoming for
a purchase price of $1.9 million in cash; and with Colfax Communications to
acquire KIDO-AM and KLTB-FM in Boise, Idaho and KARO-FM in Caldwell, Idaho for a
purchase price of $11.0 million in cash. Jacor received early termination of the
HSR Act waiting period with respect to the Palmer Transaction on November 18,
1996.
In November 1996, Jacor entered into a binding agreement with Stanford
Capital Communications, Inc. ("Stanford") to acquire the FCC licenses and
operating assets of radio stations WKQQ-FM in Lexington, Kentucky and WXZZ-FM
and WTKT-AM in Georgetown, Kentucky (the "Stanford Transaction"). The purchase
price for the assets is $24.0 million in cash, of which $1.2 million has been
placed in escrow pending the closing of the transaction. In addition, Jacor was
assigned an option to purchase certain real estate for $0.1 million in cash. The
Stanford Transaction is contingent upon the successful closing of Stanford's
agreement to purchase WKQQ-FM, WXZZ-FM and WTKT-AM from Village Communications,
Inc. ("Village"). Stanford has assigned to Jacor its rights under an LMA with
Village such that Jacor will commence the activities contemplated by the LMA
upon the expiration or termination of the applicable waiting period under the
HSR Act.
In December 1996, Jacor entered into four separate binding agreements with
unaffiliated parties whereby Jacor will acquire the FCC licenses and assets of a
total of six radio stations. Jacor will acquire (i) WAHC-FM, licensed to
Circleville, Ohio, and WAKS-FM, licensed to Marysville, Ohio, from Tel Lease,
Inc.; (ii) KGLL-FM in Greeley, Colorado from Duchossois Communications Company
of Colorado, Inc. (the "Duchossois Transaction"); (iii) KCOL-AM and KPAW-FM in
Fort Collins, Colorado from University Broadcasting Company, L.P. (the
"University Transaction"); and (iv) WJCM-AM in Sebring, Florida from Rumbuat
Management, Inc. Jacor does not currently intend to continue operating the
Florida radio station. The aggregate purchase price for the six radio stations
is approximately $15.7 million, of which approximately $4.0 million has been
placed in escrow pending the closing of the transactions. The closing of each of
the Duchossois Transaction and the University Transaction is contingent upon the
closing of the other of such two transactions. Jacor has entered into an LMA
with Tel Lease, Inc. such that Jacor commenced the activities contemplated by
the LMA with regard to WAHC-FM and WAKS-FM on December 7, 1996.
All of the Pending Transactions are subject to various conditions, including
approval by the FCC. The Par Transaction, the Nationwide Exchange and the
Stanford Transaction are further subject to termination or expiration of the
applicable waiting periods under the HSR Act. See "Risk Factors -- Pending
Transactions" and "-- Increased Antitrust Scrutiny."
14
<PAGE>
USE OF PROCEEDS
The net proceeds (after deducting estimated expenses and underwriting
discounts and commissions) to JCC from the sale of the Notes offered hereby are
estimated to be $144.8 million. Jacor intends to use the net proceeds from the
Offering (i) to finance the remaining purchase price of the Pending
Transactions; (ii) to repay a portion of the outstanding indebtedness under the
Credit Facility; and (iii) for general corporate purposes, including acquisition
of other broadcast properties and repayment of other indebtedness.
In June 1996, Jacor entered into a credit facility (the "Credit Facility")
with certain banks and other financial institutions. The Credit Facility
provides availability of $600.0 million of loans in three components: (i) a
revolving credit facility of up to $200.0 million with mandatory semi-annual
commitment reductions beginning March 18, 1999 and a final maturity date of
September 18, 2003; (ii) a term loan of $300.0 million with scheduled
semi-annual reductions beginning March 18, 1998 and a final maturity date of
September 18, 2003; and (iii) a tranche B term loan of $100.0 million with
scheduled semi-annual reductions beginning March 18, 1999 and a final maturity
date of September 18, 2004.
The Credit Facility bears interest at a rate that fluctuates with a bank
base rate and/or the Eurodollar rate per annum, and at October 31, 1996 this
rate was 7.73%. Jacor borrowed monies under the Credit Facility to (i) finance a
portion of the cash consideration paid in the Citicasters Merger, and (ii) fund
$100 million of the repurchase price of the 9 3/4% Senior Subordinated Notes due
2004 issued by JCC (the "9 3/4% Notes"). The Citicasters Merger constituted a
change in control for the purposes of the indenture under which the 9 3/4% Notes
were issued and Jacor was required to make an offer to repurchase such notes at
101% of their aggregate principal amount. The holders of $106.9 million in
principal amount of the 9 3/4% Notes elected in October 1996 to sell their
9 3/4% Notes to Jacor pursuant to Jacor's repurchase offer.
In November 1996, Jacor entered into discussions to expand the availability
under the Credit Facility from up to $600.0 million to up to $750.0 million,
among other things. Jacor is discussing with the lenders that the components of
the increased Credit Facility consist of a revolving credit faciity with an
availability of up to $450.0 million, a $200.0 million seven-year amortizing
term loan and a $100.0 million up to eight-year amortizing term loan. There can
be no assurance that the availability under the Credit Facility will be
increased or that the components of the Credit Facility will be revised.
Consummation of the Offering is not subject to an expansion or revision of the
Credit Facility or consummation of any of the Pending Transactions.
15
<PAGE>
CAPITALIZATION
The following sets forth the capitalization of Jacor on an actual basis as
of September 30, 1996 and as adjusted to give effect to the Citicasters Put (as
defined below), the Offering and the application of the net proceeds therefrom.
<TABLE>
<CAPTION>
AS OF SEPTEMBER 30, 1996
--------------------------
PRO FORMA AS
ACTUAL ADJUSTED
------------ ------------
(DOLLARS IN THOUSANDS)
<S> <C> <C>
Cash(1)............................................................................... $ 52,821 $ 88,000
------------ ------------
------------ ------------
Long-term debt, including current portion:(2)
Credit Facility(1)(3)............................................................. $ 400,000 $ 400,000
% Senior Subordinated Notes due 2006............................................ -- 150,000
10 1/8% Senior Subordinated Notes due 2006........................................ 100,000 100,000
9 3/4% Senior Subordinated Notes due 2004(3)...................................... 125,000 18,125
Liquid Yield Option Notes due 2011(4)............................................. 117,090 117,090
------------ ------------
Total long-term debt.......................................................... 742,090 785,215
------------ ------------
Shareholders' equity:
Common Stock, $.01 par value(5)................................................... 312 312
Additional paid-in capital........................................................ 430,307 430,307
Citicasters Warrants.............................................................. 72,644 72,644
Retained earnings................................................................. 24,992 24,992
------------ ------------
Total shareholders' equity.................................................... 528,255 528,255
------------ ------------
Total capitalization.................................................................. $ 1,270,345 $ 1,313,470
------------ ------------
------------ ------------
</TABLE>
- ------------------------------
(1) Jacor has entered into discussions to revise its Credit Facility to
increase the revolving credit facility component to up to $450.0 million
and to decrease the term loan facility components to an aggregate of $300.0
million. Jacor believes such revision, if finalized, would permit the
Company to utilize excess cash to reduce outstanding indebtedness under the
Credit Facility by repaying indebtedness under the increased revolving
credit facility without creating a permanent reduction in availability. Pro
forma indebtedness reflecting the proposed revisions to the Credit Facility
would result in borrowings under the Credit Facility of $342.0 million and
total long-term debt of $702.2 million.
(2) See Notes 4 and 5 of Notes to Jacor's consolidated financial statements
which are incorporated herein by reference from Jacor's Quarterly Report on
Form 10-Q for the quarter ended September 30, 1996 for additional
information regarding the components and terms of Jacor's long-term debt.
(3) As a result of a change of control covenant in the 9 3/4% Notes, the
holders thereof, upon consummation of the Citicasters Merger, had the
option to require Jacor to repurchase the 9 3/4% Notes at 101% of the
principal amount thereof. Upon such repurchase offer, the holders of
approximately $106.9 million of 9 3/4% Notes exercised such option on
October 18, 1996 (the "Citicasters Put"). Jacor funded such purchase with
excess cash and $100.0 million of additional borrowings under the Credit
Facility.
(4) The LYONs are convertible at any time on or prior to maturity into Common
Stock at a conversion rate of 13.412 shares per LYON, and are not
redeemable by Jacor prior to June 12, 2001 and are subject to mandatory
redemption at the option of the holders on June 12, 2001 and June 12, 2006.
No cash interest or similar payment is required in connection with the
LYONs. The LYONs are obligations of Jacor Communications, Inc. but not of
JCC. See "Description of Other Indebtedness -- The LYONs".
(5) Excludes (i) options outstanding on the date hereof to purchase
approximately 2,030,000 shares of Common Stock at a weighted average
exercise price of $11.84, which options have been granted to (a) employees
under Jacor's 1993 Stock Option Plan and 1995 Employee Stock Purchase Plan,
and (b) Jacor's non-employee directors, (ii) the Citicasters Warrants,
(iii) the Regent Warrants, (iv) units granted to Jacor's non-employee
directors in July 1996 to acquire 14,960 shares of Common Stock and (v)
units granted to certain Jacor executive officers in November 1996 to
acquire 22,488 shares of Common Stock.
16
<PAGE>
BUSINESS
GENERAL
Jacor, upon consummation of the Pending Transactions, will be the second
largest radio group in the nation as measured by gross revenue and will own
and/or operate 101 radio stations and one television station in 24 broadcast
areas across the United States. Jacor's strategic objective is to be a leading
radio broadcaster by operating multiple radio station platforms in each of its
broadcast areas. The Company's broadcast areas are among the most attractive in
the country, demonstrating, as a group, radio revenue growth in excess of the
radio industry average over the last five years. In 1995, the Company would have
been the top billing radio group in 15 of its 24 broadcast areas and would have
had net revenue and broadcast cash flow of $383.9 million and $121.9 million,
respectively.
Jacor's principal executive offices are currently located at 1300 PNC
Center, 201 East Fifth Street, Cincinnati, Ohio 45202 and its telephone number
is (513) 621-1300. By December 31, 1996, Jacor will relocate its principal
executive offices to 50 East River Center Boulevard, 12th Floor, Covington,
Kentucky 41011 and its telephone number will be (606) 655-2267.
The following table sets forth certain information regarding the Company and
its broadcast areas:
<TABLE>
<CAPTION>
COMPANY DATA BROADCAST AREA DATA
------------------------------------ ----------------------------------
1995 RADIO 1995 1990-1995
RADIO AUDIENCE NO. OF STATIONS 1995 RADIO REVENUE
REVENUE SHARE ---------------- ARBITRON REVENUE CAGR
BROADCAST AREA RANK % AM FM TV RANK RANK %
- -------------------- ------- ------- ---- ---- ---- ------------ ------- ---------
<S> <C> <C> <C> <C> <C> <C> <C> <C>
Los Angeles......... 5 3.4 1 1 -- 2 1 3.6
Atlanta............. 1 15.2 1 3 -- 12 10 9.2
San Diego(1)(2)..... 1 20.9 3 5 -- 15 16 5.5
St. Louis........... 5 9.4 1 2 -- 17 18 4.5
Tampa............... 1 33.3 2 5 -- 21 21 6.2
Denver(3)........... 1 33.1 4 4 -- 23 14 8.6
Portland............ 1 18.4 1 2 -- 24 23 8.4
Cincinnati(2)(3).... 1 32.4 2 3 1 25 20 7.4
Kansas City......... 1 21.5 1 3 -- 26 32 4.3
Columbus............ 1 24.7 2 5 -- 32 28 6.7
Salt Lake City(3)... 1 21.7 1 4 -- 35 33 9.3
Las Vegas........... 1 22.1 -- 4 -- 48 42 11.8
Louisville.......... 2 20.9 1 4 -- 49 45 5.8
Jacksonville........ 2 22.8 2 3 -- 53 46 7.9
Toledo.............. 1 35.8 2 3 -- 75 74 5.6
Sarasota/Bradenton... 1 10.4 1 2 -- 79 176 N/A
Charleston.......... 2 13.5 -- 2 -- 87 90 4.8
Des Moines.......... 1 19.9 1 1 -- 89 69 8.4
Lexington........... 1 39.2 2 4 -- 105 79 6.4
Boise............... 2 17.6 1 2 -- 130 104 9.5
Cedar Rapids........ 1 25.3 1 1 -- 197 127 4.9
Casper.............. 3 21.0 1 1 -- 263 249 N/A
Fort
Collins/Greeley(4)... N/A N/A 1 2 -- N/A N/A N/A
Venice/Englewood(4)... N/A N/A 1 2 -- N/A N/A N/A
</TABLE>
- ------------------------
(1) Excludes two radio stations located in Baja California, Mexico on which
Jacor provides programming to and sells air time for under an exclusive
sales agency agreement.
(2) Excludes KCBQ-AM in San Diego and WKRQ-FM in Cincinnati which the Company
will divest (see "Transactions").
(3) Excludes one station in Denver, three stations in Cincinnati and two
stations in Salt Lake City on which the Company sells or will sell
advertising time pursuant to joint sales agreements (see "Business -- Radio
Station Overview").
(4) The Fort Collins/Greeley and Venice/Englewood broadcast areas do not have
Arbitron ranks.
17
<PAGE>
BUSINESS STRATEGY
Jacor's strategic objective is to be a leading radio broadcaster in each of
its broadcast areas. Jacor intends to acquire individual radio stations or radio
groups that strengthen its strategic position and that maximize the operating
performance of its broadcast properties. Specifically, Jacor's business strategy
centers upon:
REVENUE LEADERSHIP. Jacor strives to maximize the audience ratings in each
of its broadcast areas in order to capture the largest share of the radio
advertising revenue and attract advertising away from other media in that
broadcast area. Jacor focuses on those locations where it believes it has the
potential to be a leading radio group. By operating multiple radio stations in
its broadcast areas, Jacor is able to operate its stations at lower costs,
supply more diverse programming and provide advertisers with the greatest access
to targeted demographic groups.
ACQUISITION AND DEVELOPMENT OF BROADCAST PROPERTIES. Jacor's acquisition
strategy focuses on acquiring both developed, cash flow producing stations and
underdeveloped "stick" properties (i.e., stations with insignificant ratings and
little or no positive broadcast cash flow) that complement its existing
portfolio and strengthen its overall strategic position. Jacor has been able to
improve the ratings of "stick" properties with increased marketing and focused
programming that complements its existing radio station formats. Additionally,
Jacor increases the revenues and cash flow of "stick" properties by encouraging
advertisers to buy advertising in a package with its more established stations.
The Company may enter new locations through acquisitions of radio groups that
have multiple station ownership in their respective broadcast areas. The Company
may also seek to acquire individual stations in new locations that it believes
are fragmented and where a revenue-leading position can be created through
additional acquisitions. The Company may exit locations it views as having
limited strategic appeal by selling or exchanging existing stations for stations
in other locations where the Company operates, or for stations in new locations.
Additionally, the Company may enter new locations situated near Jacor's core
broadcast areas. The Company believes that it will be able to leverage the costs
associated with the delivery of high quality, high cast programming of topical
interest throughout these geographical regions, which programming would not
otherwise be economically viable in such smaller broadcast areas. Utilizing this
strategy, Jacor has recently entered into agreements or closed transactions to
acquire radio stations in Venice/Englewood, Florida; Lexington, Kentucky;
Sarasota/Bradenton, Florida; Casper, Wyoming; and Fort Collins/Greeley,
Colorado.
DIVERSE FORMAT EXPERTISE. Jacor management has developed programming
expertise over a broad range of radio formats. This management expertise enables
Jacor to specifically tailor the programming of each station in a broadcast area
in order to maximize Jacor's overall strategic position. Jacor utilizes
sophisticated research techniques to identify opportunities within each
broadcast area and programs its stations to provide complete coverage of a
demographic or format type. This strategy allows Jacor to deliver highly
effective access to a target demographic and to capture a higher percentage of
advertising revenues.
DISTINCT STATION PERSONALITIES. Jacor engages in a number of creative
programming and promotional efforts designed to create listener loyalty and
station brand awareness. Through these efforts, management seeks to cultivate a
distinct personality for each station based upon the unique characteristics of
each broadcast area. Jacor hires dynamic on-air personalities for key morning
and afternoon "drive times" and provides comprehensive news, traffic and weather
reports to create active listening by the audience. This commitment to
"foreground" or "high impact" programming has successfully generated significant
audience share.
One of the methods Jacor utilizes to develop the personality of its AM radio
stations is by broadcasting professional sporting events and related
programming. Currently, Jacor has the broadcast rights for the Cincinnati Reds,
Cincinnati Bengals, Colorado Rockies, Denver Broncos, Los Angeles Kings,
Portland Trail Blazers and San Diego Chargers. Sports broadcasting serves as a
key "magnet" for attracting audiences to a station and then introducing them to
other programming features, such as local and national news, entertaining talk,
and weather and traffic reports.
STRONG AM STATIONS. Jacor is an industry leader in successfully operating
AM stations. While many radio groups primarily utilize network or simulcast
programming on their AM stations, Jacor also develops
18
<PAGE>
unique programming for its AM stations to build strong listener loyalty and
awareness. Utilizing this operating focus and expertise, Jacor has developed its
AM stations in Denver and Cincinnati into the revenue and ratings leaders among
both AM and FM stations in their respective broadcast areas. Jacor's targeted AM
programming adds to Jacor's ability to increase its revenues and results in more
complete coverage of the listener base.
Although the cost structure of a large-scale AM station generally results in
lower operating margins than typical music-based FM stations, the majority of
Jacor's AM stations generate substantial levels of broadcast cash flow.
Historically, most other radio broadcast companies have not focused on their AM
operations to the same extent as Jacor. Accordingly, most of the AM stations to
be acquired meaningfully underperform Jacor's AM stations, and management
believes such stations have the potential to generate significant incremental
cash flow.
POWERFUL BROADCAST SIGNALS. A station's ability to maintain a leadership
position depends in part upon the strength of its broadcasting delivery system.
A powerful broadcast signal enhances delivery range and clarity, thereby
influencing listener preference and loyalty. Many of Jacor's stations'
broadcasting signals are among the strongest in their respective broadcast areas
reinforcing its leadership position. Jacor opportunistically upgrades the power
and quality of the signals of stations it acquires. Following the consummation
of the Pending Transactions, Jacor expects that relatively inexpensive technical
upgrades in certain broadcast areas will provide for significantly greater
signal presence.
RADIO STATION OVERVIEW
The following table sets forth certain information regarding the 101 radio
stations that will be owned and/or operated by the Company upon completion of
the Pending Transactions.
<TABLE>
<CAPTION>
TARGET
PENDING 1995 COMBINED DEMOGRAPHIC
BROADCAST AREA/ ACQUISITION RADIO REVENUE TARGET SHARE %/
STATION (P) RANK FORMAT DEMOGRAPHIC RANK
- ------------------- -------------- -------------- -------------------------- ------------- -------------
<S> <C> <C> <C> <C> <C>
LOS ANGELES 5
KIIS-FM Contemporary Hit Radio Adults 18-34 4.5/6
KIIS-AM Contemporary Hit Radio Adults 18-34 --
ATLANTA 1
WPCH-FM Adult Contemporary Women 25-54 9.2/3
WGST-AM/FM(1) News Talk Men 25-54 5.0/8
WKLS-FM Album Oriented Rock Men 18-34 13.0/1
DENVER(2) 1
KOA-AM News Talk Men 25-54 10.9/2
KRFX-FM Classic Rock Men 25-54 12.4/1
KBPI-FM Rock Alternative Men 18-34 13.4/2
KTLK-AM Talk Adults 35-64 2.4/13
KHIH-FM Jazz Adults 25-54 4.9/8
KHOW-AM Talk Adults 25-54 2.2/13
KBCO-AM Talk Adults 25-54 --
KBCO-FM Album Oriented Rock Adults 25-54 5.7/7
SAN DIEGO(3)(4) 1
KHTS-FM Rhythmic Hits Adults 18-34 2.5/11
KSDO-AM News Talk Men 25-54 4.5/8
KKBH-FM Adult Contemporary Women 25-54 2.8/9
KOGO-AM P Talk Adults 25-54 1.4/22
KKLQ-FM P Contemporary Hit Radio Adults 18-34 4.0/7
KIOZ-FM P Album Oriented Rock Men 18-34 7.9/3
KGB-FM P Classic Rock Men 25-54 5.9/1
KPOP-AM P Nostalgia Adults 35-64 1.5/20
ST. LOUIS 5
KMJM-FM Urban Adult Contemporary Adults 25-54 5.3/6
KATZ-FM Black Oldies Adults 25-54 2.1/16
KATZ-AM Urban Talk Adults 35-64 1.6/19
</TABLE>
19
<PAGE>
<TABLE>
<CAPTION>
TARGET
PENDING 1995 COMBINED DEMOGRAPHIC
BROADCAST AREA/ ACQUISITION RADIO REVENUE TARGET SHARE %/
STATION (P) RANK FORMAT DEMOGRAPHIC RANK
- ------------------- -------------- -------------- -------------------------- ------------- -------------
<S> <C> <C> <C> <C> <C>
CINCINNATI(2)(4) 1
WLW-AM News Talk Men 25-54 13.5/2
WEBN-FM Album Oriented Rock Men 18-34 28.2/1
WOFX-FM Classic Rock Men 25-54 5.7/5
WCKY-AM Talk Adults 35-64 6.8/4
WWNK-FM Adult Contemporary Women 25-54 5.8/5
TAMPA 1
WFLA-AM News Talk Adults 35-64 6.6/5
WFLZ-FM Contemporary Hit Radio Adults 18-34 15.2/1
WDUV-FM Beautiful/EZ Adults 35+ 9.4/1
WXTB-FM Album Oriented Rock Men 18-34 19.2/1
WTBT-FM Classic Rock Men 18-34 5.3/6
WUKS-FM(5) Hot Adult Contemporary Women 18-34 10.3/2
WDAE-AM Hot Adult Contemporary Women 18-34 --
PORTLAND 1
KEX-AM News Talk Adults 35-64 5.3/6
KKCW-FM Adult Contemporary Women 25-54 12.1/1
KKRZ-FM Contemporary Hit Radio Women 18-34 14.6/1
COLUMBUS 1
WTVN-AM Adult Contemporary/Talk Adults 35-64 8.3/3
WLVQ-FM Album Oriented Rock Men 18-34 13.0/2
WHOK-FM Country Adults 25-54 3.8/9
WLLD-FM Country Adults 25-54 2.2/12
WLOH-AM News Adults 35-64 --
WAKS-FM P Classic Rock Men 25-54 3.2/10
WAHC-FM P Oldies/70's Men 25-54 1.6/14
KANSAS CITY 1
WDAF-AM Country Adults 35-64 7.7/3
KYYS-FM Album Oriented Rock Men 18-34 11.4/3
KMXV-FM P Contemporary Hit Radio Adults 18-34 9.1/4
KUDL-FM P Adult Contemporary Women 25-54 8.9/1
SALT LAKE CITY(2) 1
KALL-AM P Talk Adults 35-64 5.5/5
KODJ-FM P Oldies Women 25-54 10.9/2
KKAT-FM P Country Adults 25-54 4.8/7
KURR-FM P New Rock Men 18-34 5.5/5
KZHT-FM P Contemporary Hit Radio Women 18-34 5.3/8
LAS VEGAS 1
KFMS-FM P Country Adults 25-54 6.2/4
KWNR-FM P Country Adults 25-54 7.5/1
KBGO-FM(1) P Oldies Women 25-54 4.6/8
KSNE-FM P Adult Contemporary Women 25-54 10.8/1
LOUISVILLE 2
WDJX-FM P Contemporary Hit Radio Adults 18-34 11.6/2
WFIA-AM P Religion Adults 25-54 --
WVEZ-FM P Adult Contemporary Women 25-54 7.7/2
WSFR-FM P Classic Rock Men 25-54 6.4/4
WSJW-FM(1) P Jazz Adults 25-54 5.2/8
JACKSONVILLE 2
WJBT-FM Urban Adults 18-34 10.5/3
WQIK-FM Country Adults 25-54 9.5/2
WSOL-FM Adult Urban Adults 25-54 5.6/8
WZAZ-AM Urban Talk Adults 35-64 2.9/12
WJGR-AM Talk Adults 25-54 0.9/18
DES MOINES 1
WHO-AM P News Talk Men 25-54 17.7/1
KLYF-FM P Adult Contemporary Women 25-54 11.5/2
</TABLE>
20
<PAGE>
<TABLE>
<CAPTION>
TARGET
PENDING 1995 COMBINED DEMOGRAPHIC
BROADCAST AREA/ ACQUISITION RADIO REVENUE TARGET SHARE %/
STATION (P) RANK FORMAT DEMOGRAPHIC RANK
- ------------------- -------------- -------------- -------------------------- ------------- -------------
<S> <C> <C> <C> <C> <C>
TOLEDO 1
WSPD-AM News Talk Adult 35-64 7.4/5
WVKS-FM Contemporary Hit Radio Adults 18-34 17.4/1
WRVF-FM Adult Contemporary Women 25-54 12.2/3
WIOT-FM P Album Oriented Rock Men 18-34 21.5/1
WCWA-AM P Nostalgia Adults 35-64 2.5/10
LEXINGTON(6) 1
WMXL-FM Hot Adult Contemporary Women 18-34 13.9/3
WWYC-FM Country Adults 25-54 7.9/4
WLAP-AM Sports Men 25-54 2.5/10
WKQQ-FM P Album Oriented Rock Men 18-34 24.5/1
WXZZ-FM P Rock Alternative Men 18-34 11.8/2T
WTKT-AM P Rythm and Blues Adults 35-64 2.6/11
CHARLESTON, S.C. 2
WEZL-FM P Country Adults 25-54 9.0/1
WXLY-FM P Oldies Women 25-54 8.7/1
BOISE(6) 2
KIDO-AM P News Talk Adults 25-54 8.1/2
KARO-FM P Classic Rock Men 25-54 4.8/7
KLTB-FM P Oldies Adults 25-54 5.8/6
CEDAR RAPIDS(6) 1
WMT-AM P Full Service Adults 35-64 11.3/4
WMT-FM P Adult Contemporary Women 25-54 17.7/3
SARASOTA/ 1
BRADENTON(6)
WSRZ-FM P Oldies Women 25-54 7.1/2
WYNF-FM P Classic Rock Men 25-54 11.1/1
WSPB-AM P Business News Men 35-64 --
CASPER(6) 3
KTWO-AM P Full Service/Country Adults 35-64 14.6/3
KMGW-FM P Adult Contemporary Women 25-54 12.0/2
FORT COLLINS/ N/A
GREELEY(7)
KCOL-AM P News Talk Adults 35-64 --
KPAW-FM P Oldies/Adult Contemporary Adults 25-54 --
KGLL-FM P Country Adults 25-54 --
VENICE/ENGLEWOOD(7) N/A
WAMR-AM Talk Adults 25-54 --
WCTQ-FM Country Adults 25-54 --
WEDD-FM P -- -- --
</TABLE>
- ------------------------------
(1) The Company provides programming and sells air time for the FM station
pursuant to a LMA.
(2) Excludes stations WAQZ-FM, WAZU-AM and WSAI-AM in Cincinnati and KTCL-FM in
Denver on which Jacor sells advertising time for pursuant to JSAs and
KBKK-FM and KRKR-FM in Salt Lake City on which Regent sells advertising time
for pursuant to JSAs.
(3) Excludes XTRA-FM and XTRA-AM, stations Jacor provides programming to and
sells air time for under an exclusive sales agency agreement.
(4) Excludes KCBQ-AM in San Diego and WKRQ-FM in Cincinnati which the Company
will divest (see "Transactions").
(5) Formerly known as WUSA-FM. Jacor acquired the licenses and operating assets
of WUSA-FM in the Gannett Exchange while Gannett retained the call letters.
(6) Share and rank information is derived from the Spring 1996 Arbitron.
(7) The Fort Collins/Greeley and Venice/Englewood broadcast areas do not have
Arbitron ranks.
TELEVISION
Jacor owns a television station in the Cincinnati broadcast area where it
currently owns and operates multiple radio stations. By operating a television
station in the broadcast area where Jacor has a significant radio presence,
Jacor expects to realize significant operating efficiencies including shared
news departments
21
<PAGE>
and reduction of administrative overhead. Jacor currently operates this
television station under a temporary waiver of an FCC rule that restricts
ownership of television and radio stations in the same market. This waiver will
continue until at least six months after the FCC completes a pending rulemaking
proceeding in which it is considering whether to substantially liberalize this
rule.
The following table sets forth certain information regarding the Cincinnati
television station and the broadcast area in which it operates:
<TABLE>
<CAPTION>
STATION RANK(1)
NATIONAL TV ---------------------
BROADCAST HOUSEHOLDS ADULTS
AREA IN DMA(1) TV AGED
BROADCAST AREA/STATION RANK(1) (000S) HOUSEHOLDS 25-54
- ------------------------------ ----------- ----------- ----------- -------
<S> <C> <C> <C> <C>
Cincinnati/WKRC 29 793 3 1T
<CAPTION>
COMMERCIAL
STATIONS IN
BROADCAST
AREA CABLE
----------------- SUBSCRIBER NETWORK
BROADCAST AREA/STATION VHF UHF % AFFILIATION
- ------------------------------ ------- ------- ----------- -----------
<S> <C> <C> <C> <C>
Cincinnati/WKRC 3 2 61 CBS
</TABLE>
- ------------------------------
(1) Rankings for Designated Market Area ("DMA"), 6:00 a.m. to 2:00 a.m.,
Sunday-Saturday for "TV Households" and "Adults aged 25-54." "T" designates
tied. This market information is from Nielsen.
ENERGY AND ENVIRONMENTAL MATTERS
Jacor's source of energy used in its broadcasting operations is electricity.
No limitations have been placed on the availability of electrical power, and
management believes its energy sources are adequate. Management believes that
Jacor is currently in material compliance with all statutory and administrative
requirements as related to environmental quality and pollution control.
22
<PAGE>
DESCRIPTION OF NOTES
Set forth below is a summary of certain provisions of the Notes. The Notes
will be issued pursuant to an indenture (the "Indenture") to be dated as of
, 1996, by and among JCC, the Guarantors and The Bank of New York, as
trustee (the "Trustee"). The terms of the Indenture are also governed by certain
provisions contained in the Trust Indenture Act of 1939, as amended. The
following summaries of certain provisions of the Indenture are summaries only,
do not purport to be complete and are qualified in their entirety by reference
to all of the provisions of the Indenture. Capitalized terms used herein and not
otherwise defined shall have the meanings assigned to them in the Indenture.
Wherever particular provisions of the Indenture are referred to in this summary,
such provisions are incorporated by reference as a part of the statements made
and such statements are qualified in their entirety by such reference. The form
of the Indenture has been filed as an exhibit to the Registration Statement of
which this Prospectus is a part. A copy of the form of Indenture is available
upon request.
GENERAL
The Notes will be senior subordinated, unsecured, general obligations of
JCC, limited in aggregate principal amount to $150.0 million. The Notes will be
subordinate in right of payment to certain other debt obligations of JCC. The
Notes will be jointly and severally irrevocably and unconditionally guaranteed
on a senior subordinated basis by the Guarantors. The obligations of each
Guarantor under its guarantee, however, will be limited in a manner intended to
avoid such guarantee being deemed a fraudulent conveyance under applicable law.
See "Fraudulent Transfer Considerations" below. The Notes will be issued only in
fully registered form, without coupons, in denominations of $1,000 and integral
multiples thereof.
The Notes will mature on , 2006. The Notes will bear interest at
the rate per annum stated on the cover page hereof from the date of issuance or
from the most recent Interest Payment Date to which interest has been paid or
provided for, payable semi-annually on and of each year,
commencing , 1997 , to the persons in whose names such Notes are
registered at the close of business on the or immediately
preceding such Interest Payment Date. Interest will be calculated on the basis
of a 360-day year consisting of twelve 30-day months.
Principal of, premium, if any, and interest on the Notes will be payable,
and the Notes may be presented for registration of transfer or exchange, at the
office or agency of JCC maintained for such purpose, which office or agency
shall be maintained in the Borough of Manhattan, The City of New York. At the
option of JCC, payment of interest may be made by check mailed to the Holders of
the Notes at the addresses set forth upon the registry books of the Registrar.
No service charge will be made for any registration of transfer or exchange of
Notes, but JCC may require payment of a sum sufficient to cover any tax or other
governmental charge payable in connection therewith. Until otherwise designated
by JCC, JCC's office or agency will be the corporate trust office of the Trustee
presently located at the office of the Trustee in the Borough of Manhattan, The
City of New York.
SUBORDINATION
The Notes and the Guarantees will be general, unsecured obligations of JCC
and the Guarantors, respectively, subordinated in right of payment to all Senior
Debt of JCC and the Guarantors, as applicable, including the Credit Facility. As
of September 30, 1996, JCC had outstanding an aggregate principal amount of
$400.0 million of secured Senior Debt and $225.0 million of senior subordinated
indebtedness ($100.0 million of 10 1/8% Notes and $125.0 million of 9 3/4%
Notes). On a pro forma basis, as of September 30, 1996, after giving effect to
the Citicasters Put and this Offering and the application of the proceeds from
this Offering, JCC would have had outstanding an aggregate of $400.0 million of
secured Senior Debt and $268.1 million of senior subordinated indebtedness
($150.0 million of Notes, $100.0 million of 10 1/8% Notes and $18.1 million of
9 3/4% Notes) and Jacor would have had outstanding an aggregate of approximately
$117.1 million of LYONS (as defined herein) which would be effectively
subordinate to the Notes in right of payment.
The Indenture provides that no payment (including any payment which may be
payable to any Holder by reason of the subordination of any other indebtedness
or other obligations to, or guarantee of, the Notes) or distribution (by set-off
or otherwise) may be made by or on behalf of JCC or a Guarantor, as applicable,
on account of the principal of, premium, if any, or interest on the Notes
(including any repurchases of Notes)
23
<PAGE>
or any other amounts with respect thereto, or on account of the redemption
provisions of the Notes, for cash or property (other than Junior Securities, as
defined herein), (i) upon the maturity of any Senior Debt of JCC or such
Guarantor by lapse of time, acceleration (unless waived) or otherwise, unless
and until all principal of, premium, if any, and the interest on, and all other
amounts with respect to, such Senior Debt are first paid in full in cash or
otherwise to the extent each of the holders of Senior Debt accept satisfaction
of amounts due to such holder by settlement in other than cash, or (ii) in the
event of default in the payment of any principal of, premium, if any, or
interest on, or any other amounts with respect to, Senior Debt of JCC or such
Guarantor when it becomes due and payable, whether at maturity or at a date
fixed for prepayment or by declaration or otherwise (each of the foregoing, a
"Payment Default"), unless and until such Payment Default has been cured or
waived or otherwise has ceased to exist.
Upon (i) the happening of a default (other than a Payment Default) that
permits the holders of Senior Debt (or a percentage thereof) to declare such
Senior Debt to be due and payable and (ii) written notice of such default given
to JCC and the Trustee by the Representative under the Credit Facility or the
holders of an aggregate of at least $25.0 million principal amount outstanding
of any other Senior Debt or their representative at such holders' direction (a
"Payment Notice"), then, unless and until such default has been cured or waived
or otherwise has ceased to exist, no payment (including any payment which may be
payable to any Holder by reason of the subordination of any other indebtedness
or other obligations to, or guarantee of, the Notes) or distribution (by set-off
or otherwise) may be made by or on behalf of JCC or any Guarantor which is an
obligor under such Senior Debt on account of the principal of, premium, if any,
or interest on the Notes (including any repurchases of any of the Notes), or any
other amount with respect thereto, or on account of the redemption provisions of
the Notes, in any such case, other than payments made with Junior Securities.
Notwithstanding the foregoing, unless the Senior Debt in respect of which such
default exists has been declared due and payable in its entirety within 179 days
after the Payment Notice is delivered as set forth above (the "Payment Blockage
Period") (and such declaration has not been rescinded or waived), at the end of
the Payment Blockage Period (and assuming that no Payment Default exists), JCC
and the Guarantors shall not be prohibited by the subordination provisions from
paying all sums then due and not paid to the Holders of the Notes during the
Payment Blockage Period due to the foregoing prohibitions and to resume all
other payments as and when due on the Notes. Any number of Payment Notices may
be given; PROVIDED, HOWEVER, that (i) not more than one Payment Notice shall be
given within a period of any 360 consecutive days, and (ii) no default that
existed upon the date of delivery of such Payment Notice (whether or not such
default is on the same issue of Senior Debt) shall be made the basis for the
commencement of any other Payment Blockage Period.
Upon any distribution of assets of JCC or any Guarantor upon any
dissolution, winding up, total or partial liquidation or reorganization of JCC
or a Guarantor, whether voluntary or involuntary, in bankruptcy, insolvency,
receivership or a similar proceeding or upon assignment for the benefit of
creditors or any marshalling of assets or liabilities, (i) the holders of all
Senior Debt of JCC or such Guarantor, as applicable, will first be entitled to
receive payment in full of all amounts of Senior Debt in cash or otherwise to
the extent each of such holders accepts satisfaction of amounts due by
settlement in other than cash before the Holders are entitled to receive any
payment (including any payment which may be payable to any Holder by reason of
the subordination of any other indebtedness or other obligations to, or
guarantee of, the Notes) or distribution on account of principal of, premium, if
any, and interest on, or any other amounts with respect to, the Notes (other
than Junior Securities) and (ii) any payment or distribution of assets of JCC or
such Guarantor of any kind or character from any source, whether in cash,
property or securities (other than Junior Securities) to which the Holders or
the Trustee on behalf of the Holders would be entitled (by set-off or otherwise)
except for the subordination provisions contained in the Indenture, will be paid
by the liquidating trustee or agent or other person making such a payment or
distribution directly to the holders of such Senior Debt or their representative
to the extent necessary to make payment in full on all such Senior Debt
remaining unpaid, after giving effect to any concurrent payment or distribution
to the holders of such Senior Debt.
In the event that, notwithstanding the foregoing, any payment or
distribution of assets of JCC or any Guarantor (other than Junior Securities)
shall be received by the Trustee or the Holders at a time when such payment or
distribution is prohibited by the foregoing provisions, such payment or
distribution shall be held
24
<PAGE>
in trust for the benefit of the holders of such Senior Debt, and shall be paid
or delivered by the Trustee or such Holders, as the case may be, to the holders
of such Senior Debt remaining unpaid or to their representative or
representatives, or to the trustee or trustees under any indenture pursuant to
which any instruments evidencing any of such Senior Debt may have been issued,
ratably according to the aggregate principal amounts remaining unpaid on account
of such Senior Debt held or represented by each, for application to the payment
of all such Senior Debt remaining unpaid, to the extent necessary to pay all
such Senior Debt in full in cash or otherwise to the extent each of the holders
of such Senior Debt accept satisfaction of amounts due by settlement in other
than cash after giving effect to any concurrent payment or distribution to the
holders of such Senior Debt. The Indenture will contain other customary
subordination provisions, including rights of subrogation and rights to file
claims in bankruptcy.
As among JCC, the Guarantors and the Holders, no provision contained in the
Indenture or the Notes will affect the obligations of JCC and the Guarantors,
which are absolute and unconditional, to pay, when due, principal of, premium,
if any, and interest on the Notes. The subordination provisions of the Indenture
and the Notes will not prevent the occurrence of any Default or Event of Default
under the Indenture or limit the rights of the Trustee or any Holder to pursue
any other rights or remedies with respect to the Notes.
As a result of these subordination provisions, in the event of the
liquidation, bankruptcy, reorganization, insolvency, receivership or similar
proceeding or an assignment for the benefit of the creditors of JCC or any of
the Guarantors or a marshalling of assets or liabilities of JCC or any of the
Guarantors, holders of the Notes may receive ratably less than other creditors.
JCC conducts operations through its subsidiaries. Accordingly, JCC's ability
to meet its cash obligations will be dependent upon the ability of its
subsidiaries to make cash distributions to JCC. Furthermore, any right of JCC to
receive the assets of any such subsidiary upon such subsidiary's liquidation or
reorganization effectively will be subordinated by operation of law to the
claims of such subsidiary's creditors (including trade creditors) and holders of
such subsidiary's preferred stock, except to the extent that JCC is itself
recognized as a creditor or preferred stockholder of such subsidiary, in which
case the claims of JCC would still be subordinate to any indebtedness or
preferred stock of such subsidiary senior in right of payment to that held by
JCC.
FRAUDULENT TRANSFER CONSIDERATIONS
Generally, under various state and federal fraudulent transfer or fraudulent
conveyance laws (collectively, the "Fraudulent Transfer Laws"), a Guarantor's
obligations under the Guarantee of the Notes could be avoided if a court in a
lawsuit by an unpaid creditor of a Guarantor or a representative of such
creditors (such as a trustee in bankruptcy or JCC as debtor-in-possession) were
to find that (i) the Guarantor did not receive reasonably equivalent value or
fair consideration in exchange for the obligation created by the Notes and (ii)
at the time of the issuance of the Notes, the Guarantor (A) was insolvent or
became insolvent as a result of the incurrence of the obligations represented by
the Notes, (B) was engaged, or was about to be engaged, in a business or
transaction for which the property remaining with it was an unreasonably small
capital or for which its unencumbered assets constituted unreasonably small
capital, or (C) intended to incur, or believed that it would incur, debts beyond
its ability to pay as such debts matured.
A court could conclude that a Guarantor did not receive reasonably
equivalent value or fair consideration to the extent that such Guarantor's
liability on its guarantee exceeds the economic benefits that it receives in the
Offering. Were a court to so find, the court could avoid the Guarantor's
obligation under its guarantee and direct the return of amounts paid thereunder
if one or more of the conditions set forth in subparagraphs (ii)(A), (B), or (C)
above were also met as to such Guarantor. Management believes, however, that the
Guarantees have been structured so as to minimize the likelihood that a court
would find that the Guarantor did not receive reasonably equivalent value or
fair consideration for its Guarantee (the "Savings Clause"). No assurance,
however, can be given that a court would uphold such a fraudulent transfer
Savings Clause. Moreover, there can be no assurance that a court would not limit
a Guarantee to an amount equal to the Notes proceeds actually received by any
given Guarantor.
The determination of insolvency for purposes of the Fraudulent Transfer Laws
may vary depending upon the law of the jurisdiction being applied. Generally,
however, an entity is insolvent if (i) the sum of its
25
<PAGE>
debts (including unliquidated or contingent debts) is greater than all of its
property, at a fair valuation or (ii) the present fair saleable value of its
assets is less than the amount that will be required to pay its probable
liability on its existing debts as they become absolute and matured.
Additionally, under certain state Fraudulent Transfer Laws, an entity is
presumed to be insolvent if it is generally not paying its debts as they become
due.
Furthermore, a court could avoid JCC's obligations under the Notes and the
Guarantors' obligations under their respective Guarantees without regard to the
solvency, capitalization and other conditions described in clauses (ii)(A), (B),
and (C) above if it finds that the obligations created by the Notes or the
Guarantees were incurred with actual intent to hinder, delay, or defraud now
existing or future creditors. If the obligations under the Notes were to be
avoided, there can be no assurance that the recoveries under the Guarantees
would be sufficient to pay the outstanding amounts due and owing under the
Notes. Moreover, if the obligations of one or more Guarantors were to be
avoided, there can be no assurance that the remaining Guarantees would be
sufficient to ensure payment in full on the Notes.
OPTIONAL REDEMPTION
Except as set forth below, JCC will not have the right to redeem any Notes
prior to , 2001. The Notes will be redeemable at the option of JCC, in
whole or in part, at any time on or after , 2001, upon not less than 30
days nor more than 60 days notice to each holder of Notes, at the following
redemption prices (expressed as percentages of the principal amount) if redeemed
during the 12-month period commencing of the years indicated below, in
each case (subject to the right of Holders of record on a Record Date to receive
interest due on an Interest Payment Date that is on or prior to such Redemption
Date) together with accrued and unpaid interest thereon to the Redemption Date:
<TABLE>
<CAPTION>
YEAR PERCENTAGE
- --------------------------------------------------------------------------------- -----------
<S> <C>
2001............................................................................. %
2002............................................................................. %
2003............................................................................. %
2004 and thereafter.............................................................. 100.000%
</TABLE>
In the case of a partial redemption, the Trustee shall select the Notes or
portions thereof for redemption on a PRO RATA basis, by lot or in such other
manner it deems appropriate and fair. The Notes may be redeemed in part in
multiples of $1,000 only.
The Notes will not have the benefit of any sinking fund.
Notice of any redemption will be sent, by first class mail, at least 30 days
and not more than 60 days prior to the date fixed for redemption to the Holder
of each Note to be redeemed to such Holder's last address as then shown upon the
registry books of the Registrar. Any notice which relates to a Note to be
redeemed in part only must state the portion of the principal amount equal to
the unredeemed portion thereof and must state that on and after the date of
redemption, upon surrender of such Note, a new Note or Notes in a principal
amount equal to the unredeemed portion thereof will be issued. On and after the
date of redemption, interest will cease to accrue on the Notes or portions
thereof called for redemption, unless JCC defaults in the payment thereof.
CERTAIN COVENANTS
REPURCHASE OF NOTES AT THE OPTION OF THE HOLDER UPON A CHANGE OF CONTROL
The Indenture will provide that in the event that a Change of Control has
occurred, each Holder of Notes will have the right, at such Holder's option,
pursuant to an irrevocable and unconditional offer by JCC (the "Change of
Control Offer"), to require JCC to repurchase all or any part of such Holder's
Notes (PROVIDED, that the principal amount of such Notes must be $1,000 or an
integral multiple thereof) on a date (the "Change of Control Purchase Date")
that is no later than 35 Business Days after the occurrence of such Change of
Control, at a cash price (the "Change of Control Purchase Price") equal to 101%
of the principal amount thereof, together with accrued and unpaid interest, if
any, to the Change of Control Purchase Date. The Change of Control Offer shall
be made within 10 Business Days following a Change of Control and shall
26
<PAGE>
remain open for 20 Business Days following its commencement (the "Change of
Control Offer Period"). Upon expiration of the Change of Control Offer Period,
JCC promptly shall purchase all Notes properly tendered in response to the
Change of Control Offer.
As used herein, (a) prior to the earlier of (x) the maturity of the 9 3/4%
Notes, (y) the date upon which defeasance of the 9 3/4% Notes becomes effective,
and (z) the date on which there are no longer any 9 3/4% Notes outstanding under
the terms of the governing indenture (each a "9 3/4% Note Event"), a "Change of
Control" means any transaction or series of transactions in which any of the
following occurs: (i) any person or group (within the meaning of Rule 13d-3
under the Securities Exchange Act of 1934, as amended (the "Exchange Act") and
Sections 13(d) and 14(d) of the Exchange Act), other than Zell/Chilmark or any
of its Affiliates, becomes the direct or indirect "beneficial owner" (as defined
in Rule 13d-3 under the Exchange Act) of (A) greater than 50% of the total
voting power (on a fully diluted basis as if all convertible securities had been
converted) entitled to vote in the election of directors of JCC or CitiCo, or
the surviving person (if other than the Company), or (B) greater than 20% of the
total voting power (on a fully diluted basis as if all convertible securities
had been converted) entitled to vote in the election of directors of JCC or
CitiCo, or the surviving person (if other than JCC), and such person or group
has the ability to elect, directly or indirectly, a majority of the members of
the Board of Directors of JCC; or (ii) JCC or CitiCo consolidates with or merges
into another person, another person consolidates with or merges into JCC or
CitiCo, JCC or CitiCo issues shares of its Capital Stock or all or substantially
all of the assets of JCC or CitiCo are sold, assigned, conveyed, transferred,
leased or otherwise disposed of to any person as an entirety or substantially as
an entirety in one transaction or a series of related transactions and the
effect of such consolidation, merger, issuance or sale is as described in clause
(i) above. Notwithstanding the foregoing, no Change of Control shall be deemed
to have occurred by virtue of (I) JCC or any of its employee benefit or stock
plans filing (or being required to file after the lapse of time) a Schedule 13D
or 14D-1 (or any successor or similar schedule, form or report under the
Exchange Act) or (II) the purchase by one or more underwriters of Capital Stock
of JCC in connection with a Public Offering; and (b) upon and following a 9 3/4%
Note Event, a "Change of Control" will mean (i) any merger or consolidation of
JCC with or into any person or any sale, transfer or other conveyance, whether
direct or indirect, of all or substantially all of any of the assets of JCC, on
a consolidated basis, in one transaction or a series of related transactions,
if, immediately after giving effect to such transaction(s), any "person" or
"group" (as such terms are used for purposes of Sections 13(d) and 14(d) of the
Exchange Act, whether or not applicable) (other than an Excluded Person) is or
becomes the "beneficial owner," directly or indirectly, of more than 50% of the
total voting power in the aggregate normally entitled to vote in the election of
directors, managers, or trustees, as applicable, of the transferee(s) or
surviving entity or entities, (ii) any "person" or "group" (as such terms are
used for purposes of Sections 13(d) and 14(d) of the Exchange Act, whether or
not applicable) (other than an Excluded Person) is or becomes the "beneficial
owner," directly or indirectly, of more than 50% of the total voting power in
the aggregate of all classes of Capital Stock of JCC then outstanding normally
entitled to vote in elections of directors, or (iii) during any period of 12
consecutive months after the Issue Date, individuals who at the beginning of any
such 12-month period constituted the Board of Directors of JCC (together with
any new directors whose election by such Board or whose nomination for election
by the shareholders of JCC was approved by a vote of a majority of the directors
then still in office who were either directors at the beginning of such period
or whose election or nomination for election was previously so approved) cease
for any reason to constitute a majority of the Board of Directors of JCC then in
office.
On or before the Change of Control Purchase Date, JCC will (i) accept for
payment Notes or portions thereof properly tendered pursuant to the Change of
Control Offer, (ii) deposit with the Paying Agent cash sufficient to pay the
Change of Control Purchase Price (together with accrued and unpaid interest) of
all Notes so tendered and (iii) deliver to the Trustee Notes so accepted
together with an Officers' Certificate listing the Notes or portions thereof
being purchased by JCC. The Paying Agent promptly will pay the Holders of Notes
so accepted an amount equal to the Change of Control Purchase Price (together
with accrued and unpaid interest), and the Trustee promptly will authenticate
and deliver to such Holders a new Note equal in principal amount to any
unpurchased portion of the Note surrendered. Any Notes not so accepted will be
delivered promptly by JCC to the Holder thereof. JCC publicly will announce the
results of the Change of Control Offer on or as soon as practicable after the
Change of Control Purchase Date.
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A change of control under the indenture which governs each of the Notes, the
9 3/4% Notes, the 10 1/8% Notes and the LYONs will result in a default under the
Credit Facility. Additionally, unless JCC is successful in seeking consents from
its lenders under the Credit Facility to permit change of control repurchase
offers for each of the Notes, the 9 3/4% Notes, the 10 1/8% Notes or the LYONs
or JCC is successful in refinancing such borrowings, such event of default under
the Credit Facility would constitute an event of default under each of the
Notes, the 9 3/4% Notes, the 10 1/8% Notes and the LYONs. Such events of default
could result in the immediate acceleration of all then outstanding indebtedness
under each of the Notes, the 9 3/4% Notes, the 10 1/8% Notes and the LYONs. As a
result, differences in the definitions of change of control under the indentures
for the Notes, the 9 3/4% Notes, the 10 1/8% Notes and the LYONs will not have a
difference in the effect on JCC or the respective holders other than where the
lenders under the Credit Facility have waived such event of default. In the
event of such waiver there could be a change of control under the Notes, the
9 3/4% Notes and the 10 1/8% Notes which would not result in a change of control
under the LYONs or VICE VERSA. See "Description of Other Indebtedness."
The Change of Control purchase feature of the Notes may make more difficult
or discourage a takeover of JCC, and, thus, the removal of incumbent management.
The phrase "all or substantially all" of the assets of JCC will likely be
interpreted under applicable state law and will be dependent upon particular
facts and circumstances. As a result, there may be a degree of uncertainty in
ascertaining whether a sale or transfer of "all or substantially all" of the
assets of any of JCC has occurred. In addition, no assurances can be given that
JCC will be able to acquire Notes tendered upon the occurrence of a Change of
Control.
Any Change of Control Offer will be made in compliance with all applicable
laws, rules and regulations, including, if applicable, Regulation 14E under the
Exchange Act and the rules thereunder and all other applicable Federal and state
securities laws.
LIMITATION ON INCURRENCE OF ADDITIONAL INDEBTEDNESS AND DISQUALIFIED CAPITAL
STOCK
The Indenture will provide that, except as set forth below in this covenant,
JCC and the Subsidiary Guarantors will not, and will not permit any of their
Subsidiaries to, directly or indirectly, issue, assume, guaranty, incur, become
directly or indirectly liable with respect to (including as a result of an
Acquisition), or otherwise become responsible for, contingently or otherwise
(individually and collectively, to "incur" or, as appropriate, an "incurrence"),
any Indebtedness or any Disqualified Capital Stock (including Acquired
Indebtedness) other than Permitted Indebtedness. Notwithstanding the foregoing
limitations, JCC may incur Indebtedness and Disqualified Capital Stock in
addition to Permitted Indebtedness: if (i) no Default or Event of Default shall
have occurred and be continuing at the time of, or would occur after giving
effect on a PRO FORMA basis to, such incurrence of Indebtedness or Disqualified
Capital Stock and (ii) on the date of such incurrence (the "Incurrence Date"),
the Leverage Ratio of JCC for the Reference Period immediately preceding the
Incurrence Date, after giving effect on a PRO FORMA basis to such incurrence of
such Indebtedness or Disqualified Capital Stock and, to the extent set forth in
the definition of Leverage Ratio, the use of proceeds thereof, would be less
than 7.0 to 1.
Indebtedness or Disqualified Capital Stock of any person which is
outstanding at the time such person becomes a Subsidiary of JCC (including upon
designation of any subsidiary or other person as a Subsidiary) or is merged with
or into or consolidated with JCC or a Subsidiary of JCC shall be deemed to have
been Incurred at the time such Person becomes such a Subsidiary of JCC or is
merged with or into or consolidated with JCC or a Subsidiary of JCC, as
applicable.
LIMITATION ON RESTRICTED PAYMENTS
The Indenture will provide that JCC and its Subsidiaries will not, and will
not permit any of their Subsidiaries to, directly or indirectly, make any
Restricted Payment if, after giving effect to such Restricted Payment on a PRO
FORMA basis, (1) a Default or an Event of Default shall have occurred and be
continuing, (2) JCC is not permitted to incur at least $1.00 of additional
Indebtedness pursuant to the Leverage Ratio in the covenant "Limitation on
Incurrence of Additional Indebtedness and Disqualified Capital Stock," or (3)
the aggregate amount of all Restricted Payments made by JCC and its
Subsidiaries, including after giving effect to such proposed Restricted Payment,
from and after the Issue Date, would exceed the sum of (a)(x)
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100% of the aggregate Consolidated EBITDA of JCC and its Consolidated
Subsidiaries for the period (taken as one accounting period), commencing on the
first day of the first full fiscal quarter commencing after the Issue Date, to
and including the last day of the fiscal quarter ended immediately prior to the
date of each such calculation (or, in the event Consolidated EBITDA for such
period is a deficit, then minus 100% of such deficit) less (y) 1.4 times
Consolidated Fixed Charges for the same period plus (b) the aggregate Net Cash
Proceeds received by JCC from the sale of its Qualified Capital Stock (other
than (i) to a Subsidiary of JCC and (ii) to the extent applied in connection
with a Qualified Exchange), after the Issue Date.
The foregoing clauses (2) and (3) of the immediately preceding paragraph,
however, will not prohibit (w) payments to Jacor to reimburse Jacor for
reasonable and necessary corporate and administrative expenses, (x) Restricted
Investments, PROVIDED, that, after giving PRO FORMA effect to such Restricted
Investment, the aggregate amount of all such Restricted Investments made on or
after the Issue Date that are outstanding (after giving effect to any such
Restricted Investments that are returned to JCC or the Subsidiary Guarantor that
made such prior Restricted Investment, without restriction, in cash on or prior
to the date of any such calculation) at any time does not exceed $5.0 million,
(y) a Qualified Exchange, and (z) the payment of any dividend on Qualified
Capital Stock within 60 days after the date of its declaration if such dividend
could have been made on the date of such declaration in compliance with the
foregoing provisions. The full amount of any Restricted Payment made pursuant to
the foregoing clauses (x) and (z) of the immediately preceding sentence,
however, will be deducted in the calculation of the aggregate amount of
Restricted Payments available to be made referred to in clause (3) of the
immediately preceding paragraph.
LIMITATION ON DIVIDENDS AND OTHER PAYMENT RESTRICTIONS AFFECTING
SUBSIDIARIES
The Indenture will provide that JCC and its Subsidiaries will not, and will
not permit any of their Subsidiaries to, create, assume or suffer to exist any
consensual restriction on the ability of any Subsidiary of JCC to pay dividends
or make other distributions to or on behalf of, or to pay any obligation to or
on behalf of, or otherwise to transfer assets or property to or on behalf of, or
make or pay loans or advances to or on behalf of, JCC or any Subsidiary of JCC,
except (a) restrictions imposed by the Notes or the Indenture, (b) restrictions
imposed by applicable law, (c) existing restrictions under specified
Indebtedness outstanding on the Issue Date, (d) restrictions under any Acquired
Indebtedness not incurred in violation of the Indenture or any agreement
relating to any property, asset, or business acquired by JCC or any of its
Subsidiaries, which restrictions in each case existed at the time of
acquisition, were not put in place in connection with or in anticipation of such
acquisition and are not applicable to any person, other than the person
acquired, or to any property, asset or business, other than the property, assets
and business so acquired, (e) any such restriction or requirement imposed by
Indebtedness incurred under paragraph (f) under the definition of Permitted
Indebtedness, provided such restriction or requirement is no more restrictive
than that imposed by the Credit Facility as of the Issue Date, (f) restrictions
with respect solely to a Subsidiary of JCC imposed pursuant to a binding
agreement which has been entered into for the sale or disposition of all or
substantially all of the Equity Interests or assets of such Subsidiary, provided
such restrictions apply solely to the Equity Interests or assets of such
Subsidiary which are being sold, and (g) in connection with and pursuant to
permitted Refinancings, replacements of restrictions imposed pursuant to clauses
(a), (c) or (d) of this paragraph that are not more restrictive than those being
replaced and do not apply to any other person or assets than those that would
have been covered by the restrictions in the Indebtedness so refinanced.
Notwithstanding the foregoing, neither (a) customary provisions restricting
subletting or assignment of any lease entered into in the ordinary course of
business, consistent with industry practice, or other standard non-assignment
clauses in contracts entered into in the ordinary course of business, (b)
Capital Leases or agreements governing purchase money Indebtedness which contain
restrictions of the type referred to above with respect to the property covered
thereby, nor (c) Liens permitted under the terms of the Indenture on assets
securing Senior Debt incurred pursuant to the Leverage Ratio in accordance with
the covenant described under "Limitation on Incurrence of Additional
Indebtedness and Disqualified Capital Stock" or permitted pursuant to the
definition of Permitted Indebtedness shall in and of themselves be considered a
restriction on the ability of the applicable Subsidiary to transfer such
agreement or assets, as the case may be.
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LIMITATIONS ON LAYERING INDEBTEDNESS; LIENS
The Indenture will provide that JCC and its Subsidiaries will not, and will
not permit any of their Subsidiaries to, directly or indirectly, incur, or,
other than with respect to the 10 1/8% Notes, suffer to exist (a) any
Indebtedness that is subordinate in right of payment to any other Indebtedness
of JCC or a Guarantor unless, by its terms, such Indebtedness (i) has a maturity
date subsequent to the Stated Maturity of the Notes and an Average Life longer
than that of the Notes and (ii) is subordinate in right of payment to, or ranks
PARI PASSU with, the Notes or the Guarantees, as applicable, or (b) other than
Permitted Liens, any Lien upon any of its property or assets, whether now owned
or hereafter acquired, or upon any income or profits therefrom securing
Indebtedness other than (1) Liens securing Senior Debt incurred pursuant to the
Leverage Ratio in accordance with the covenant described under "Limitation on
Incurrence of Additional Indebtedness and Disqualified Capital Stock" and (2)
Liens securing Senior Debt incurred as permitted pursuant to the definition of
Permitted Indebtedness.
LIMITATION ON SALE OF ASSETS AND SUBSIDIARY STOCK
The Indenture will provide that JCC and its Subsidiaries will not, and will
not permit any of their Subsidiaries to, in one or a series of related
transactions, sell, transfer, or otherwise dispose of, any of its property,
business or assets, including by merger or consolidation (in the case of a
Guarantor or a Subsidiary of JCC), and including any sale or other transfer or
issuance of any Equity Interests of any direct or indirect Subsidiary of JCC,
whether by JCC or a direct or indirect Subsidiary thereof (an "Asset Sale"),
unless (1) within 450 days after the date of such Asset Sale, the Net Cash
Proceeds therefrom (the "Asset Sale Offer Amount") are (a) applied to the
optional redemption of the Notes in accordance with the terms of the Indenture
or to the repurchase of the Notes pursuant to an irrevocable, unconditional cash
offer (the "Asset Sale Offer") to repurchase Notes at a purchase price (the
"Asset Sale Offer Price") of 100% of principal amount, plus accrued interest to
the date of payment, (b) invested in assets and property (other than notes,
bonds, obligations and securities) which in the good faith reasonable judgment
of the Board of JCC will immediately constitute or be a part of a Related
Business of JCC or a Subsidiary (if it continues to be a Subsidiary) immediately
following such transaction or (c) used to permanently retire or reduce Senior
Debt or Indebtedness permitted pursuant to paragraphs (d), (e) or (f) under the
definition of Permitted Indebtedness (including that in the case of a revolver
or similar arrangement that makes credit available, such commitment is so
permanently reduced by such amount), (2) with respect to any Asset Sale or
related series of Asset Sales involving securities, property or assets with an
aggregate fair market value in excess of $2.5 million, at least 75% of the
consideration for such Asset Sale or series of related Asset Sales (excluding
the amount of (A) any Indebtedness (other than the Notes) that is required to be
repaid or assumed (and is either repaid or assumed by the transferee of the
related assets) by virtue of such Asset Sale and which is secured by a Lien on
the property or asset sold and (B) property received by JCC or any such
Subsidiary from the transferee that within 90 days of such Asset Sale is
converted into cash or Cash Equivalents) consists of cash or Cash Equivalents
(other than in the case of an Asset Swap or where JCC is exchanging all or
substantially all the assets of one or more Related Businesses operated by JCC
or its Subsidiaries (including by way of the transfer of capital stock) for all
or substantially all the assets (including by way of the transfer of capital
stock) constituting one or more Related Businesses operated by another person,
in which event the foregoing requirement with respect to the receipt of cash or
Cash Equivalents shall not apply), (3) no Default or Event of Default shall have
occurred and be continuing at the time of, or would occur after giving effect,
on a PRO FORMA basis, to, such Asset Sale, and (4) the Board of JCC determines
in good faith that JCC or such Subsidiary, as applicable, receives fair market
value for such Asset Sale.
The Indenture will provide that an Asset Sale Offer may be deferred until
the accumulated Net Cash Proceeds from Asset Sales not applied to the uses set
forth in (1)(b) or (1)(c) above (the "Excess Proceeds") exceeds $5.0 million and
that each Asset Sale Offer shall remain open for 20 Business Days following its
commencement and no longer (the "Asset Sale Offer Period"). Upon expiration of
the Asset Sale Offer Period, JCC shall apply the Asset Sale Offer Amount plus an
amount equal to accrued interest to the purchase of all Notes properly tendered
(on a PRO RATA basis if the Asset Sale Offer Amount is insufficient to purchase
all Notes so tendered) at the Asset Sale Offer Price (together with accrued
interest). To the extent that the aggregate amount of Notes tendered pursuant to
an Asset Sale Offer is less than the Asset Sale Offer Amount, JCC may use any
remaining Net Cash Proceeds for general corporate purposes as otherwise
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permitted by the Indenture and following each Asset Sale Offer the Excess
Proceeds amount shall be reset to zero. If required by applicable law, the Asset
Sale Offer Period may be extended as so required, however, if so extended it
shall nevertheless constitute an Event of Default if within 60 Business Days of
its commencement the Asset Sale Offer is not consummated or the properly
tendered Notes are not purchased pursuant thereto.
Notwithstanding the foregoing provisions of the first paragraph of this
covenant the Indenture will provide that with respect to an Asset Sale Offer,
JCC will not be permitted to commence an Asset Sale Offer for the Notes until
such time as an Asset Sale Offer for the 9 3/4% Notes and the 10 1/8% Notes in
each case if required, has been completed. To the extent that any Excess
Proceeds remain after expiration of an Asset Sale Offer Period for the 9 3/4%
Notes and the 10 1/8% Notes, JCC may use the remaining Net Cash Proceeds to
commence an Asset Sale Offer for the Notes; PROVIDED, that the amount of Net
Cash Proceeds used for such Asset Sale Offer for the Notes shall not exceed the
amount permitted under the Redemption from the Proceeds on Asset Sales and
Limitation on Restricted Payments covenants set forth in the indenture governing
the 9 3/4% Notes and with respect to the 10 1/8% Notes the amount required under
the covenant Limitation on Sale of Assets and Subsidiary Stock set forth in the
indenture governing the 10 1/8% Notes; PROVIDED, HOWEVER, that with respect to
the 9 3/4% Notes this paragraph shall be of no further force and effect upon the
earlier of a 9 3/4% Note Event and with respect to the 10 1/8% Notes this
paragraph shall be of no further force and effect upon the earlier of (w) the
maturity of the 10 1/8% Notes, (x) the date upon which defeasance of the 10 1/8%
Notes become effective, (y) the date on which there are no longer any 10 1/8%
Notes outstanding in accordance with the terms of the indenture governing the
10 1/8% Notes and (z) the date on which the Limitation on Sale of Assets and
Subsidiary Stock covenant no longer applies in accordance with the terms of the
indenture governing the 10 1/8% Notes.
Notwithstanding the foregoing provisions of the first paragraph of this
covenant and without complying with the foregoing provisions:
(i) JCC and its Subsidiaries may convey, sell, transfer, assign or
otherwise dispose of assets pursuant to and in accordance with the
limitation on mergers, sales or consolidations provisions in the Indenture;
(ii) JCC and its Subsidiaries may sell or dispose of inventory or
damaged, worn out or other obsolete property in the ordinary course of
business so long as such property is no longer necessary for the proper
conduct of the business of JCC or such Subsidiary, as applicable; and
(iii) any of JCC's Subsidiaries may convey, sell, transfer, assign or
otherwise dispose of assets to, or merge with or into, JCC or any of its
wholly owned Subsidiary Guarantors.
All Net Cash Proceeds from an Event of Loss shall be applied to the
restoration, repair or replacement of the asset so affected or invested, used
for prepayment of Senior Debt, or used to repurchase Notes, all within the
period and as otherwise provided above in clauses 1(a) or 1(b)(i) of the first
paragraph of this covenant.
In addition to the foregoing, JCC will not, and will not permit any of its
Subsidiaries to, directly or indirectly make any Asset Sale of any of the Equity
Interests of any Subsidiary except pursuant to an Asset Sale of all the Equity
Interests of such Subsidiary.
Any Asset Sale Offer shall be made in compliance with all applicable laws,
rules, and regulations, including, if applicable, Regulation 14E of the Exchange
Act and the rules and regulations thereunder and all other applicable Federal
and state securities laws.
LIMITATION ON ASSET SWAPS
The Indenture will provide that JCC and its Subsidiaries will not, and will
not permit any of their Subsidiaries to, in one or a series of related
transactions, directly or indirectly, engage in any Asset Swaps, unless: (i) at
the time of entering into the agreement to swap assets and immediately after
giving effect to the proposed Asset Swap, no Default or Event of Default shall
have occurred and be continuing or would occur as a consequence thereof; (ii)
JCC would, after giving PRO FORMA effect to the proposed Asset Swap, have been
permitted to incur at least $1.00 of additional Indebtedness pursuant to the
Leverage Ratio in the
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covenant "Limitation on Incurrence of Additional Indebtedness and Disqualified
Capital Stock"; (iii) the respective fair market values of the assets being
purchased and sold by JCC or any of its Subsidiaries (as determined in good
faith by the management of JCC or, if such Asset Swap includes consideration in
excess of $2.5 million by the Board of Directors of JCC, as evidenced by a Board
Resolution) are substantially the same at the time of entering into the
agreement to swap assets; and (iv) at the time of the consummation of the
proposed Asset Swap, the percentage of any decline in the fair market value
(determined as aforesaid) of the asset or assets being acquired by JCC and its
Subsidiaries shall not be significantly greater than the percentage of any
decline in the fair market value (determined as aforesaid) of the assets being
disposed of by JCC or its Subsidiaries, calculated from the time the agreement
to swap assets was entered into.
LIMITATION ON TRANSACTIONS WITH AFFILIATES
The Indenture will provide that neither JCC nor any of its Subsidiaries will
be permitted after the Issue Date to enter into any contract, agreement,
arrangement or transaction with any Affiliate (an "Affiliate Transaction"), or
any series of related Affiliate Transactions, (other than Exempted Affiliate
Transactions) (i) unless it is determined that the terms of such Affiliate
Transaction are fair and reasonable to JCC, and no less favorable to JCC than
could have been obtained in an arm's length transaction with a non-Affiliate
and, (ii) if involving consideration to either party in excess of $5.0 million,
unless such Affiliate Transaction(s) is evidenced by (A) an Officers'
Certificate addressed and delivered to the Trustee certifying that such
Affiliate Transaction (or Transactions) has been approved by a majority of the
members of the Board of Directors of JCC that are disinterested in such
transaction or, (B) in the event there are no members of the Board of Directors
of JCC who are disinterested in such transaction, then so long as JCC is a
wholly owned subsidiary of Jacor, an Officers' Certificate addressed and
delivered to the Trustee certifying that such Affiliate Transaction (or
Transactions) have been approved by a majority of the members of the Board of
Directors of Jacor that are disinterested in such transaction and (iii) if
involving consideration to either party in excess of $10.0 million, unless in
addition JCC, prior to the consummation thereof, obtains a written favorable
opinion as to the fairness of such transaction to JCC from a financial point of
view from an independent investment banking firm of national reputation.
LIMITATION ON MERGER, SALE OR CONSOLIDATION
The Indenture will provide that JCC will not, directly or indirectly,
consolidate with or merge with or into another person or sell, lease, convey or
transfer all or substantially all of its assets (computed on a consolidated
basis), whether in a single transaction or a series of related transactions, to
another person or group of affiliated persons or adopt a Plan of Liquidation,
unless (i) either (a) JCC is the continuing entity or (b) the resulting,
surviving or transferee entity or, in the case of a Plan of Liquidation, the
entity which receives the greatest value from such Plan of Liquidation is a
corporation organized under the laws of the United States, any state thereof or
the District of Columbia and expressly assumes by supplemental indenture all of
the obligations of JCC in connection with the Notes and the Indenture; (ii) no
Default or Event of Default shall exist or shall occur immediately after giving
effect on a PRO FORMA basis to such transaction; and (iii) immediately after
giving effect to such transaction on a PRO FORMA basis, the consolidated
resulting, surviving or transferee entity or, in the case of a Plan of
Liquidation, the entity which receives the greatest value from such Plan of
Liquidation would immediately thereafter be permitted to incur at least $1.00 of
additional Indebtedness pursuant to the Leverage Ratio set forth in the covenant
described under "Limitation on Incurrence of Additional Indebtedness and
Disqualified Capital Stock."
Upon any consolidation or merger or any transfer of all or substantially all
of the assets of JCC or consummation of a Plan of Liquidation in accordance with
the foregoing, the successor corporation formed by such consolidation or into
which JCC is merged or to which such transfer is made or, in the case of a Plan
of Liquidation, the entity which receives the greatest value from such Plan of
Liquidation shall succeed to, and be substituted for, and may exercise every
right and power of, JCC under the Indenture with the same effect as if such
successor corporation had been named therein as JCC, and JCC shall be released
from the obligations under the Notes and the Indenture except with respect to
any obligations that arise from, or are related to, such transaction.
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For purposes of the foregoing, the transfer (by lease, assignment, sale or
otherwise) of all or substantially all of the properties and assets of one or
more Subsidiaries, JCC's interest in which constitutes all or substantially all
of the properties and assets of JCC shall be deemed to be the transfer of all or
substantially all of the properties and assets of JCC.
LIMITATION ON LINES OF BUSINESS
The Indenture will provide that neither JCC nor any of its Subsidiaries
shall directly or indirectly engage to any substantial extent in any line or
lines of business activity other than that which is a Related Business.
RESTRICTION ON SALE AND ISSUANCE OF SUBSIDIARY STOCK
The Indenture will provide that JCC and the Guarantors will not sell, and
will not permit any of their Subsidiaries to issue or sell, any Equity Interests
of any Subsidiary of JCC to any person other than JCC or a wholly owned
Subsidiary of JCC, except for Equity Interests with no preferences or special
rights or privileges and with no redemption or prepayment provisions.
SUBSIDIARY GUARANTORS
The Indenture will provide that (i) all present Subsidiaries of JCC and
their Subsidiaries (other than the Excluded Subsidiaries), and (ii) all future
Subsidiaries of JCC and their Subsidiaries (other than the Excluded
Subsidiaries), which are not prohibited from becoming guarantors by law or by
the terms of any Acquired Indebtedness or any agreement (other than an agreement
entered into in connection with the transaction resulting in such person
becoming a Subsidiary of JCC or its Subsidiaries) to which such Subsidiary is a
party, jointly and severally, will guaranty irrevocably and unconditionally all
principal, premium, if any, and interest on the Notes on a senior subordinated
basis; PROVIDED, HOWEVER, that upon any change in the law, Acquired Indebtedness
or any agreement (whether by expiration, termination or otherwise) which no
longer prohibits a Subsidiary of JCC from becoming a Subsidiary Guarantor, such
Subsidiary shall immediately thereafter become a Subsidiary Guarantor; PROVIDED,
FURTHER, in the event that any Subsidiary of JCC or their Subsidiaries becomes a
guarantor of any other Indebtedness of JCC or any of its Subsidiaries or any of
their Subsidiaries, such Subsidiary shall immediately thereafter become a
Subsidiary Guarantor.
All subsidiaries of JCC (other than the Excluded Subsidiaries) will be
subsidiary Guarantors if required by the covenant "Future Subsidiary
Guarantors."
RELEASE OF GUARANTORS
The Indenture will provide that no Guarantor shall consolidate or merge with
or into (whether or not such Guarantor is the surviving Person) another Person
unless (i) subject to the provisions of the following paragraph and certain
other provisions of the Indenture, the Person formed by or surviving any such
consolidation or merger (if other than such Guarantor) assumes all the
obligations of such Guarantor pursuant to a supplemental indenture in form
reasonably satisfactory to the Trustee, pursuant to which such Person shall
unconditionally guarantee, on a senior subordinated basis, all of such
Guarantor's obligations under such Guarantor's guarantee, the Indenture on the
terms set forth in the Indenture; (ii) immediately before and immediately after
giving effect to such transaction on a PRO FORMA basis, no Default or Event of
Default shall have occurred or be continuing; and (iii) immediately after such
transaction, the surviving person holds all permits required for operation of
the business of, and such entity is controlled by a person or entity (or has
retained a person or entity which is) experienced in, operating broadcast
properties, or otherwise holds all Permits to operate its business.
Upon the sale or disposition (whether by merger, stock purchase, asset sale
or otherwise) of a Subsidiary Guarantor or all of its assets to an entity which
is not a Subsidiary Guarantor, which transaction is otherwise in compliance with
the Indenture (including, without limitation, the provisions of the covenant
Limitations on Sale of Assets, and Subsidiary Stock), such Subsidiary Guarantor
will be deemed released from its obligations under its Guarantee of the Notes;
PROVIDED, HOWEVER, that any such termination shall occur only to the extent that
all obligations of such Subsidiary Guarantor under all of its guarantees of, and
under all of its pledges of assets or other security interests which secure, any
Indebtedness of JCC or any other Subsidiary shall also terminate upon such
release, sale or transfer.
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LIMITATION ON STATUS AS INVESTMENT COMPANY
The Indenture will prohibit JCC and its Subsidiaries from being required to
register as an "investment company" (as that term is defined in the Investment
Company Act of 1940, as amended), or from otherwise becoming subject to
regulation under the Investment Company Act.
REPORTS
The Indenture will provide that for so long as Jacor or any successor
thereto is subject to the reporting requirements of Section 13 or 15(d) of the
Exchange Act and JCC is a wholly owned subsidiary of Jacor, JCC shall deliver to
the Trustee and, to each Holder, Jacor's annual and quarterly reports pursuant
to Section 13
or 15(d) of the Exchange Act, within 15 days after such reports have been filed
with the Commission; PROVIDED, HOWEVER, in the event either (i) Jacor or a
successor as set forth above is no longer subject to the reporting requirements
of Section 13 or 15(d) of the Exchange Act or (ii) JCC is no longer a wholly
owned subsidiary of Jacor or a successor as set forth above, the Indenture will
provide that whether or not JCC is subject to the reporting requirements of
Section 13 or 15(d) of the Exchange Act, JCC shall deliver to the Trustee and,
to each Holder, within 15 days after it is or would have been (if it were
subject to such reporting obligations) required to file such with the
Commission, annual and quarterly financial statements substantially equivalent
to financial statements that would have been included in reports filed with the
Commission, if JCC were subject to the requirements of Section 13 or 15(d) of
the Exchange Act, including, with respect to annual information only, a report
thereon by JCC's certified independent public accountants as such would be
required in such reports to the Commission, and, in each case, together with a
management's discussion and analysis of financial condition and results of
operations which would be so required and, to the extent permitted by the
Exchange Act or the Commission (if it were subject to such reporting
obligations), file with the Commission the annual, quarterly and other reports
which it is or would have been required to file with the Commission.
EVENTS OF DEFAULT AND REMEDIES
The Indenture will define an Event of Default as (i) the failure by JCC to
pay any installment of interest on the Notes as and when the same becomes due
and payable and the continuance of any such failure for 30 days, (ii) the
failure by JCC to pay all or any part of the principal, or premium, if any, on
the Notes when and as the same becomes due and payable at maturity, redemption,
by acceleration or otherwise, including, without limitation, payment of the
Change of Control Purchase Price or the Asset Sale Offer Price, or otherwise,
(iii) the failure by JCC or any Guarantor to observe or perform any other
covenant or agreement contained in the Notes or the Indenture and, subject to
certain exceptions, the continuance of such failure for a period of 60 days
after written notice is given to JCC by the Trustee or to JCC and the Trustee by
the Holders of at least 25% in aggregate principal amount of the Notes
outstanding, (iv) certain events of bankruptcy, insolvency or reorganization in
respect of JCC or any of its Significant Subsidiaries, (v) a default in any
issue of Indebtedness of JCC or any of their Subsidiaries with an aggregate
principal amount in excess of $5.0 million (a) resulting from the failure to pay
principal at final maturity or (b) as a result of which the maturity of such
Indebtedness has been accelerated prior to its stated maturity, and (vi) final
unsatisfied judgments not covered by insurance aggregating in excess of $5.0
million, at any one time rendered against JCC or any of its Subsidiaries and not
stayed, bonded or discharged within 60 days. The Indenture provides that if a
Default occurs and is continuing, the Trustee must, within 90 days after the
occurrence of such Default, give to the Holders notice of such Default.
If an Event of Default occurs and is continuing (other than an Event of
Default specified in clause (iv), above, relating to JCC or any Significant
Subsidiary,) then in every such case, unless the principal of all of the Notes
shall have already become due and payable, either the Trustee or the Holders of
25% in aggregate principal amount of the Notes at the time outstanding, by
notice in writing to JCC (and to the Trustee if given by Holders) (an
"Acceleration Notice"), may declare all principal, determined as set forth
below, and accrued interest thereon to be due and payable immediately; provided,
however, that if any Senior Debt is outstanding pursuant to the Credit Facility
upon a declaration of such acceleration, such principal and interest shall be
due and payable upon the earlier of (x) the third Business Day after the sending
to JCC and the Representative of such written notice, unless such Event of
Default is cured or waived prior to such date and (y) the date of acceleration
of any Senior Debt under the Credit Facility. In the event a declaration of
acceleration resulting from an Event of Default described in clause (v) above
has occurred and is continuing,
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such declaration of acceleration shall be automatically annulled if such default
is cured or waived or the holders of the Indebtedness which is the subject of
such default have rescinded their declaration of acceleration in respect of such
Indebtedness within five days thereof and the Trustee has received written
notice of such cure, waiver or rescission and no other Event of Default
described in clause (v) above has occurred that has not been cured or waived
within five days of the declaration of such acceleration in respect of such
Indebtedness. If an Event of Default specified in clause (iv), above, relating
to JCC or any Significant Subsidiary occurs, all principal and accrued interest
thereon will be immediately due and payable on all outstanding Notes without any
declaration or other act on the part of Trustee or the Holders. The Holders of a
majority in aggregate principal amount of Notes at the time outstanding,
generally are authorized to rescind such acceleration if all existing Events of
Default, other than the non-payment of the principal of, premium, if any, and
interest on the Notes which have become due solely by such acceleration and
except on default with respect to any provision requiring a supermajority
approval to amend, which default may only be waived by such a supermajority, and
have been cured or waived.
Prior to the declaration of acceleration of the maturity of the Notes, the
Holders of a majority in aggregate principal amount of the Notes at the time
outstanding may waive on behalf of all the Holders any default, except on
default with respect to any provision requiring a supermajority approval to
amend, which default may only be waived by such a supermajority, and except a
default in the payment of principal of or interest on any Note not yet cured or
a default with respect to any covenant or provision which cannot be modified or
amended without the consent of the Holder of each outstanding Note affected.
Subject to the provisions of the Indenture relating to the duties of the
Trustee, the Trustee will be under no obligation to exercise any of its rights
or powers under the Indenture at the request, order or direction of any of the
Holders, unless such Holders have offered to the Trustee reasonable security or
indemnity. Subject to all provisions of the Indenture and applicable law, the
Holders of a majority in aggregate principal amount of the Notes at the time
outstanding will have the right to direct the time, method and place of
conducting any proceeding for any remedy available to the Trustee, or exercising
any trust or power conferred on the Trustee.
LEGAL DEFEASANCE AND COVENANT DEFEASANCE
The Indenture will provide that JCC may, at its option, elect to have their
obligations and the obligations of the Guarantors discharged with respect to the
outstanding Notes ("Legal Defeasance"). Such Legal Defeasance means that JCC
shall be deemed to have paid and discharged the entire indebtedness represented,
and the Indenture shall cease to be of further effect as to all outstanding
Notes and Guarantees, except as to (i) rights of Holders to receive payments in
respect of the principal of, premium, if any, and interest on such Notes when
such payments are due from the trust funds; (ii) JCC's obligations with respect
to such Notes concerning issuing temporary Notes, registration of Notes,
mutilated, destroyed, lost or stolen Notes, and the maintenance of an office or
agency for payment and money for security payments held in trust; (iii) the
rights, powers, trust, duties, and immunities of the Trustee, and JCC's
obligations in connection therewith; and (iv) the Legal Defeasance provisions of
the Indenture. In addition, JCC may, at its option and at any time, elect to
have the obligations of JCC and the Guarantors released with respect to certain
covenants that are described in the Indenture ("Covenant Defeasance") and
thereafter any omission to comply with such obligations shall not constitute a
Default or Event of Default with respect to the Notes. In the event Covenant
Defeasance occurs, certain events (not including non-payment, bankruptcy,
receivership, rehabilitation and insolvency events) described under "Events of
Default" will no longer constitute an Event of Default with respect to the
Notes.
In order to exercise either Legal Defeasance or Covenant Defeasance, (i) JCC
must irrevocably deposit with the Trustee, in trust, for the benefit of the
Holders of the Notes, U.S. legal tender, U.S. Government Obligations or a
combination thereof, in such amounts as will be sufficient, in the opinion of a
nationally recognized firm of independent public accountants, to pay the
principal of, premium, if any, and interest on such Notes on the stated date for
payment thereof or on the redemption date of such principal or installment of
principal of, premium, if any, or interest on such Notes, and the Holders of
Notes must have a valid, perfected, exclusive security interest in such trust;
(ii) in the case of the Legal Defeasance, JCC shall have delivered to the
Trustee an opinion of counsel in the United States reasonably acceptable to
Trustee confirming that (A) JCC has received from, or there has been published
by the Internal Revenue Service, a
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ruling or (B) since the date of the Indenture, there has been a change in the
applicable federal income tax law, in either case to the effect that, and based
thereon such opinion of counsel shall confirm that, the Holders of such Notes
will not recognize income, gain or loss for federal income tax purposes as a
result of such Legal Defeasance and will be subject to federal income tax on the
same amounts, in the same manner and at the same times as would have been the
case if such Legal Defeasance had not occurred; (iii) in the case of Covenant
Defeasance, JCC shall have delivered to the Trustee an opinion of counsel in the
United States reasonably acceptable to such Trustee confirming that the Holders
of such Notes will not recognize income, gain or loss for federal income tax
purposes as a result of such Covenant Defeasance and will be subject to federal
income tax on the same amounts, in the same manner and at the same times as
would have been the case if such Covenant Defeasance had not occurred; (iv) no
Default or Event of Default shall have occurred and be continuing on the date of
such deposit or insofar as Events of Default from bankruptcy or insolvency
events are concerned, at any time in the period ending on the 91st day after the
date of deposit; (v) such Legal Defeasance or Covenant Defeasance shall not
result in a breach or violation of, or constitute a default under the Indenture
or any other material agreement or instrument to which JCC or any of its
Subsidiaries is a party or by which JCC or any of its Subsidiaries is bound;
(vi) JCC shall have delivered to the Trustee an Officers' Certificate stating
that the deposit was not made by JCC with the intent of preferring the holders
of such Notes over any other creditors of JCC or with the intent of defeating,
hindering, delaying or defrauding any other creditors of JCC or others; and
(vii) JCC shall have delivered to the Trustee an Officers' Certificate and an
opinion of counsel, each stating that the conditions precedent provided for in,
in the case of the officers' certificate, (i) through (vi) and, in the case of
the opinion of counsel, clauses (i), (with respect to the validity and
perfection of the security interest) (ii), (iii) and (v) of this paragraph have
been complied with.
JCC shall deliver to the Trustee any required consent of the lenders under
the Credit Facility to such defeasance or covenant defeasance, as the case may
be.
AMENDMENTS AND SUPPLEMENTS
The Indenture will contain provisions permitting JCC, the Guarantors and the
Trustee to enter into a supplemental indenture for certain limited purposes
without the consent of the Holders. With the consent of the Holders of not less
than a majority in aggregate principal amount of the Notes at the time
outstanding, JCC, the Guarantors and the Trustee are permitted to amend or
supplement the Indenture or any supplemental indenture or modify the rights of
the Holders; provided that no such modification may without the consent of
holders of at least 75% in aggregate principal amount of Notes at the time
outstanding, modify the provisions (including the defined terms used therein) of
the covenant "Repurchase of Notes at the Option of the Holder upon a Change of
Control" in a manner adverse to the Holders and provided, that no such
modification may, without the consent of each Holder affected thereby: (i)
change the Stated Maturity on any Note, or reduce the principal amount thereof
or the rate (or extend the time for payment) of interest thereon or any premium
payable upon the redemption thereof, or change the place of payment where, or
the coin or currency in which, any Note or any premium or the interest thereon
is payable, or impair the right to institute suit for the enforcement of any
such payment on or after the Stated Maturity thereof (or, in the case of
redemption, on or after the Redemption Date), or reduce the Change of Control
Purchase Price, the JCC Purchase Price or the Asset Sale Offer Price or alter
the provisions (including the defined terms used therein) regarding the right of
JCC to redeem the Notes in a manner adverse to the Holders, or (ii) reduce the
percentage in principal amount of the outstanding Notes, the consent of whose
Holders is required for any such amendment, supplemental indenture or waiver
provided for in the Indenture, or (iii) modify any of the waiver provisions,
except to increase any required percentage or to provide that certain other
provisions of the Indenture cannot be modified or waived without the consent of
the Holder of each outstanding Note affected thereby. The Indenture will contain
a provision that the subordination provisions may not be amended, modified or
waived in a manner adverse to the holders of the Senior Debt without the consent
of the Representative on behalf of the Required Lenders (as defined in the
Credit Facility) under the Credit Facility.
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NO PERSONAL LIABILITY OF STOCKHOLDERS, OFFICERS, DIRECTORS
The Indenture will provide that no direct or indirect stockholder, employee,
officer or director, as such, past, present or future of JCC, the Guarantors or
any successor entity shall have any personal liability in respect of the
obligations of JCC or the Guarantors under the Indenture or the Notes by reason
of his or its status as such stockholder, employee, officer or director.
CERTAIN DEFINITIONS
"ACQUIRED INDEBTEDNESS" means Indebtedness or Disqualified Capital Stock of
any person existing at the time such person becomes a Subsidiary of JCC,
including by designation, or is merged or consolidated into or with either of
JCC or one of its Subsidiaries; PROVIDED, that such Indebtedness was not
incurred in anticipation of, or in connection with, and was outstanding prior to
such person becoming a Subsidiary of JCC.
"ACQUISITION" means the purchase or other acquisition of any person or
substantially all the assets of any person by any other person, whether by
purchase, merger, consolidation, or other transfer, and whether or not for
consideration.
"AFFILIATE" means any person directly or indirectly controlling or
controlled by or under direct or indirect common control with JCC. For purposes
of this definition, the term "control" means the power to direct the management
and policies of a person, directly or through one or more intermediaries,
whether through the ownership of voting securities, by contract, or otherwise,
PROVIDED, THAT, a Beneficial Owner of 10% or more of the total voting power
normally entitled to vote in the election of directors, managers or trustees, as
applicable, shall for such purposes be deemed to constitute control.
"ASSET SWAP" means the execution of a definitive agreement, subject only to
regulatory approval and other customary closing conditions, that JCC in good
faith believes will be satisfied, for a substantially concurrent purchase and
sale, or exchange, of Productive Assets between JCC or any of its Subsidiaries
and another person or group of affiliated persons; provided that any amendment
to or waiver of any closing condition which individually or in the aggregate is
material to the Asset Swap shall be deemed to be a new Asset Swap.
"AVERAGE LIFE" means, as of the date of determination, with respect to any
security or instrument, the quotient obtained by dividing (i) the sum of (a) the
product of the number of years from the date of determination to the date or
dates of each successive scheduled principal (or redemption) payment of such
security or instrument and (b) the amount of each such respective principal (or
redemption) payment by (ii) the sum of all such principal (or redemption)
payments.
"BENEFICIAL OWNER" or "BENEFICIAL OWNER" for purposes of the definition of
Change of Control has the meaning attributed to it in Rules 13d-3 and 13d-5
under the Exchange Act (as in effect on the Issue Date), whether or not
applicable, except that a "person" shall be deemed to have "beneficial
ownership" of all shares that any such person has the right to acquire, whether
such right is exercisable immediately or only after the passage of time.
"BOARD RESOLUTION" means, with respect to any person, a duly adopted
resolution of the Board of Directors of such or the executive committee of such
Board of Directors of such person.
"BUSINESS DAY" means each Monday, Tuesday, Wednesday, Thursday and Friday
which is not a day on which banking institutions in New York, New York are
authorized or obligated by law or executive order to close.
"CAPITAL STOCK" means, with respect to any corporation, any and all shares,
interests, rights to purchase (other than convertible or exchangeable
Indebtedness), warrants, options, participations or other equivalents of or
interests (however designated) in stock issued by that corporation.
"CASH EQUIVALENT" means (i) securities issued directly or fully guaranteed
or insured by the United States of America or any agency or instrumentality
thereof (provided that the full faith and credit of the United States of America
is pledged in support thereof) or (ii) time deposits and certificates of deposit
with, and commercial paper issued by the parent corporation of, any domestic
commercial bank of recognized standing having capital and surplus in excess of
$500.0 million and commercial paper issued by others rated
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at least A-2 or the equivalent thereof by Standard & Poor's Corporation or at
least P-2 or the equivalent thereof by Moody's Investors Service, Inc. and in
each case maturing within one year after the date of acquisition.
"CITICO" means Citicasters Co., an Ohio corporation and a wholly owned
subsidiary of JCC.
"CONSOLIDATED EBITDA" means, with respect to any person, for any period, the
Consolidated Net Income of such person for such period adjusted to add thereto
(to the extent deducted from net revenues in determining Consolidated Net
Income), without duplication, the sum of (i) Consolidated income tax expense,
(ii) Consolidated depreciation and amortization expense, provided that
consolidated depreciation and amortization of a Subsidiary that is a less than
wholly owned Subsidiary shall only be added to the extent of the equity interest
of JCC in such Subsidiary, (iii) other noncash charges (including amortization
of goodwill and other intangibles), (iv) Consolidated Fixed Charges, and less
the amount of all cash payments made by such person or any of its Subsidiaries
during such period to the extent such payments relate to non-cash charges that
were added back in determining Consolidated EBITDA for such period or any prior
period.
"CONSOLIDATED FIXED CHARGES" of any person means, for any period, the
aggregate amount (without duplication and determined in each case in accordance
with GAAP) of (a) interest expensed or capitalized, paid, accrued, or scheduled
to be paid or accrued (including, in accordance with the following sentence,
interest attributable to Capitalized Lease Obligations) of such person and its
Consolidated Subsidiaries during such period, including (i) original issue
discount and non-cash interest payments or accruals on any Indebtedness, (ii)
the interest portion of all deferred payment obligations, and (iii) all
commissions, discounts and other fees and charges owed with respect to bankers'
acceptances and letters of credit financings and currency and Interest Swap and
Hedging Obligations, in each case to the extent attributable to such period, and
(b) the amount of dividends accrued or payable (or guaranteed) by such person or
any of its Consolidated Subsidiaries in respect of Preferred Stock (other than
by Subsidiaries of such person to such person or such person's wholly owned
Subsidiaries). For purposes of this definition, (x) interest on a Capitalized
Lease Obligation shall be deemed to accrue at an interest rate reasonably
determined by JCC to be the rate of interest implicit in such Capitalized Lease
Obligation in accordance with GAAP and (y) interest expense attributable to any
Indebtedness represented by the guaranty by such person or a Subsidiary of such
person of an obligation of another person shall be deemed to be the interest
expense attributable to the Indebtedness guaranteed.
"CONSOLIDATED NET INCOME" means, with respect to any person for any period,
the net income (or loss) of such person and its Consolidated Subsidiaries
(determined on a consolidated basis in accordance with GAAP) for such period,
adjusted to exclude (only to the extent included in computing such net income
(or loss) and without duplication): (a) all gains or losses which are either
noncash or extraordinary (as determined in accordance with GAAP) or are either
unusual or nonrecurring (including any gain from the sale or other disposition
of assets outside the ordinary course of business or from the issuance or sale
of any capital stock), (b) the net income, if positive, of any person, other
than a wholly owned Consolidated Subsidiary, in which such person or any of its
Consolidated Subsidiaries has an interest, except to the extent of the amount of
any dividends or distributions actually paid in cash to such person or a wholly
owned Consolidated Subsidiary of such person during such period, but in any case
not in excess of such person's PRO RATA share of such person's net income for
such period, (c) the net income or loss of any person acquired in a pooling of
interests transaction for any period prior to the date of such acquisition, (d)
the net income, if positive, of any of such person's Consolidated Subsidiaries
to the extent that the declaration or payment of dividends or similar
distributions is not at the time permitted by operation of the terms of its
charter or bylaws or any other agreement, instrument, judgment, decree, order,
statute, rule or governmental regulation applicable to such Consolidated
Subsidiary.
"CONSOLIDATED SUBSIDIARY" means, for any person, each Subsidiary of such
person (whether now existing or hereafter created or acquired) the financial
statements of which are consolidated for financial statement reporting purposes
with the financial statements of such person in accordance with GAAP.
"CREDIT FACILITY" means the Credit Agreement dated as of June 12, 1996, as
amended, by and among The Chase Manhattan Bank (as successor by merger to
Chemical Bank), as Administrative Agent, Banque
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Paribas, as Documentation Agent, and Bank of America, Illinois, as Syndication
Agent, certain financial institutions from time to time thereto, including any
related notes, guarantees, collateral documents, instruments, letters of credit,
reimbursement obligations and other agreements executed by JCC, any of its
Subsidiaries and/or Jacor in connection therewith (collectively, the "Related
Documents"), as such Credit Agreement and/or Related Documents may be amended,
restated, supplemented, renewed, replaced or otherwise modified from time to
time whether or not with the same agent, trustee, representative lenders or
holders, and, subject to the proviso to the next succeeding sentence,
irrespective of any changes in the terms and conditions thereof. Without
limiting the generality of the foregoing, the term "Credit Facility" shall
include agreements in respect of Interest Swap and Hedging Obligations with
lenders party to the Credit Facility and shall also include any amendment,
amendment and restatement, renewal, extension, restructuring, supplement or
modification in whole or in part to any Credit Facility and all refundings,
refinancings and replacements in whole or in part of any Credit Facility,
including, without limitation, any agreement or agreements (i) extending the
maturity of any Indebtedness incurred thereunder or contemplated thereby, (ii)
adding or deleting borrowers or guarantors thereunder, (iii) increasing the
amount of Indebtedness incurred thereunder or available to be borrowed
thereunder, PROVIDED that on the date such Indebtedness is incurred it would be
permitted by paragraph (f) under the definition of Permitted Indebtedness, or
(iv) otherwise altering the terms and conditions thereof.
"DISQUALIFIED CAPITAL STOCK" means (a) except as set forth in (b), with
respect to any person, Equity Interests of such person that, by its terms or by
the terms of any security into which it is convertible, exercisable or
exchangeable, is, or upon the happening of an event or the passage of time would
be, required to be redeemed or repurchased (including at the option of the
holder thereof) by such person or any of its Subsidiaries, in whole or in part,
on or prior to the Stated Maturity of the Notes, and (b) with respect to any
Subsidiary of such person (including with respect to any Subsidiary of JCC), any
Equity Interests other than any common equity with no preference, privileges, or
redemption or repayment provisions.
"EQUITY INTEREST" of any person means any shares, interests, participations
or other equivalents (however designated) in such person's equity, and shall in
any event include any Capital Stock issued by, or partnership interests in, such
person.
"EVENT OF LOSS" means, with respect to any property or asset, any (i) loss,
destruction or damage of such property or asset or (ii) any condemnation,
seizure or taking, by exercise of the power of eminent domain or otherwise, of
such property or asset, or confiscation or requisition of the use of such
property or asset.
"EXCLUDED PERSON" means Zell/Chilmark Fund L.P. and all Related Persons of
such person.
"EXCLUDED SUBSIDIARY" means each of Jacor National Corp., WIBX Incorporated,
Marathon Communications, Inc. and Jacor Broadcasting of Idaho, Inc., an Idaho
corporation.
"EXEMPTED AFFILIATE TRANSACTION" means (a) customary employee compensation
arrangements approved by a majority of independent (as to such transactions)
members of the Board of Directors of JCC, (b) dividends permitted under the
terms of the covenant discussed above under "Limitation on Restricted Payments"
above and payable, in form and amount, on a pro rata basis to all holders of
Common Stock of Jacor, (c) transactions solely between JCC and any of its wholly
owned Subsidiaries or solely among wholly owned Subsidiaries of JCC, and (d)
payments to Zell/Chilmark Fund L.P. or its Affiliates for reasonable and
customary fees and expenses for financial advisory and investment banking
services provided to Jacor and JCC, and (e) payments to Jacor made in accordance
with the Tax Sharing Agreement.
"FUTURE SUBSIDIARY GUARANTOR" means future Subsidiaries of JCC and their
Subsidiaries (other than the Excluded Subsidiaries), which are not prohibited
from becoming guarantors by law or by the terms of any Acquired Indebtedness or
any agreement (other than an agreement entered into in connection with the
transaction resulting in such person becoming a Subsidiary of JCC or its
Subsidiaries) to which such Subsidiary is a party.
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"GAAP" means United States generally accepted accounting principles set
forth in the opinions and pronouncements of the Accounting Principles Board of
the American Institute of Certified Public Accountants and statements and
pronouncements of the Financial Accounting Standards Board or in such other
statements by such other entity as approved by a significant segment of the
accounting profession as in effect on the Issue Date unless otherwise specified.
"INDEBTEDNESS" of any person means, without duplication, (a) all liabilities
and obligations, contingent or otherwise, of such any person, (i) in respect of
borrowed money (whether or not the recourse of the lender is to the whole of the
assets of such person or only to a portion thereof), (ii) evidenced by bonds,
notes, debentures or similar instruments, (iii) representing the balance
deferred and unpaid of the purchase price of any property or services, except
those incurred in the ordinary course of its business that would constitute
ordinarily a trade payable to trade creditors, (iv) evidenced by bankers'
acceptances or similar instruments issued or accepted by banks, (v) relating to
any Capitalized Lease Obligation, or (vi) evidenced by a letter of credit or a
reimbursement obligation of such person with respect to any letter of credit;
(b) all net obligations of such person under Interest Swap and Hedging
Obligations; (c) all liabilities and obligations of others of the kind described
in the preceding clause (a) or (b) that such person has guaranteed or that is
otherwise its legal liability or which are secured by any assets or property of
such person and all obligations to purchase, redeem or acquire any Equity
Interests; and (d) all Disqualified Capital Stock of such person (valued at the
greater of its voluntary or involuntary maximum fixed repurchase price plus
accrued and unpaid dividends). For purposes hereof, the "maximum fixed
repurchase price" of any Disqualified Capital Stock which does not have a fixed
repurchase price shall be calculated in accordance with the terms of such
Disqualified Capital Stock as if such Disqualified Capital Stock were purchased
on any date on which Indebtedness shall be required to be determined pursuant to
the Indenture, and if such price is based upon, or measured by, the Fair Market
Value of such Disqualified Capital Stock, such Fair Market Value to be
determined in good faith by the board of directors of the issuer (or managing
general partner of the issuer) of such Disqualified Capital Stock.
"INTEREST SWAP AND HEDGING OBLIGATION" means any obligation of any person
pursuant to any interest rate swap agreement, interest rate cap agreement,
interest rate collar agreement, interest rate exchange agreement, currency
exchange agreement or any other agreement or arrangement designed to protect
against fluctuations in interest rates or currency values, including, without
limitation, any arrangement whereby, directly or indirectly, such person is
entitled to receive from time to time periodic payments calculated by applying
either a fixed or floating rate of interest on a stated notional amount in
exchange for periodic payments made by such person calculated by applying a
fixed or floating rate of interest on the same notional amount.
"INVESTMENT" by any person in any other person means (without duplication)
(a) the acquisition (whether by purchase, merger, consolidation or otherwise) by
such person (whether for cash, property, services, securities or otherwise) of
capital stock, bonds, notes, debentures, partnership or other ownership
interests or other securities, including any options or warrants, of such other
person or any agreement to make any such acquisition; (b) the making by such
person of any deposit with, or advance, loan or other extension of credit to,
such other person (including the purchase of property from another person
subject to an understanding or agreement, contingent or otherwise, to resell
such property to such other person) or any commitment to make any such advance,
loan or extension (but excluding accounts receivable or deposits arising in the
ordinary course of business); (c) other than guarantees of Indebtedness of JCC
or any Guarantor to the extent permitted by the covenant "Limitation on
Incurrence of Additional Indebtedness and Disqualified Capital Stock" or the
definition of Permitted Indebtedness, the entering into by such person of any
guarantee of, or other credit support or contingent obligation with respect to,
Indebtedness or other liability of such other person (other than the endorsement
of instruments for deposit or collection in the ordinary course of business);
and (d) the making of any capital contribution by such person to such other
person.
"ISSUE DATE" means the date of first issuance of the Notes under the
Indenture.
"JUNIOR SECURITY" means any Qualified Capital Stock and any Indebtedness of
JCC or a Guarantor, as applicable, that is subordinated in right of payment to
Senior Debt at least to the same extent as the Notes or
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the Guarantees, as applicable, and has no scheduled installment of principal
due, by redemption, sinking fund payment or otherwise, on or prior to the Stated
Maturity of the Notes; PROVIDED, that in the case of subordination in respect of
Senior Debt under the Credit Facility, "Junior Security" shall mean any
Qualified Capital Stock and any Indebtedness of JCC or the Guarantors, as
applicable, that (i) has a final maturity date occurring after the final
maturity date of, all Senior Debt outstanding under the Credit Facility on the
date of issuance of such Qualified Capital Stock or Indebtedness, (ii) is
unsecured, (iii) has an Average Life longer than the security for which such
Qualified Capital Stock or Indebtedness is being exchanged, and (iv) by their
terms or by law are subordinated to Senior Debt outstanding under the Credit
Facility on the date of issuance of such Qualified Capital Stock or Indebtedness
at least to the same extent as the Notes.
"LEVERAGE RATIO" of any person on any date of determination (the
"Transaction Date") means the ratio, on a PRO FORMA basis, of (a) the sum of the
aggregate outstanding amount of Indebtedness and Disqualified Capital Stock of
such person and its Subsidiaries as of the date of calculation on a consolidated
basis in accordance with GAAP to (b) the aggregate amount of Consolidated EBITDA
of such person attributable to continuing operations and businesses (exclusive
of amounts attributable to operations and businesses permanently discontinued or
disposed of) for the Reference Period; PROVIDED, that for purposes of such
calculation, (i) Acquisitions which occurred during the Reference Period or
subsequent to the Reference Period and on or prior to the Transaction Date shall
be assumed to have occurred on the first day of the Reference Period, (ii)
transactions giving rise to the need to calculate the Leverage Ratio shall be
assumed to have occurred on the first day of the Reference Period, (iii) the
incurrence of any Indebtedness or issuance of any Disqualified Capital Stock
during the Reference Period or subsequent to the Reference Period and on or
prior to the Transaction Date (and the application of the proceeds therefrom to
the extent used to refinance or retire other Indebtedness) shall be assumed to
have occurred on the first day of such Reference Period, and (iv) the
Consolidated Fixed Charges of such person attributable to interest on any
Indebtedness or dividends on any Disqualified Capital Stock bearing a floating
interest (or dividend) rate shall be computed on a PRO FORMA basis as if the
average rate in effect from the beginning of the Reference Period to the
Transaction Date had been the applicable rate for the entire period, unless such
person or any of its Subsidiaries is a party to an Interest Swap or Hedging
Obligation (which shall remain in effect for the 12-month period immediately
following the Transaction Date) that has the effect of fixing the interest rate
on the date of computation, in which case such rate (whether higher or lower)
shall be used.
"LIEN" means any mortgage, charge, pledge, lien (statutory or otherwise),
privilege, security interest, or other encumbrance upon or with respect to any
property of any kind, real or personal, movable or immovable, now owned or
hereafter acquired.
"NET CASH PROCEEDS" means the aggregate amount of cash or Cash Equivalents
received by JCC in the case of a sale of Qualified Capital Stock and by JCC and
its Subsidiaries in respect of an Asset Sale or an Event of Loss plus, in the
case of an issuance of Qualified Capital Stock of JCC upon any exercise,
exchange or conversion of securities (including options, warrants, rights and
convertible or exchangeable debt) of JCC that were issued for cash on or after
the Issue Date, the amount of cash originally received by JCC upon the issuance
of such securities (including options, warrants, rights and convertible or
exchangeable debt) less, in each case, the sum of all payments, fees,
commissions and (in the case of Asset Sales, reasonable and customary), expenses
(including, without limitation, the fees and expenses of legal counsel and
investment banking fees and expenses) incurred in connection with such Asset
Sale, Event of Loss or sale of Qualified Capital Stock, and, in the case of an
Asset Sale only, less an amount (estimated reasonably and in good faith by JCC
or the amount actually incurred, if greater) of income, franchise, sales and
other applicable taxes required to be paid by JCC or any of its Subsidiaries in
connection with such Asset Sale.
"OBLIGATION" means any principal, premium or interest payment, or monetary
penalty, or damages, due by JCC or any Guarantor under the terms of the Notes or
the Indenture.
"PERMITTED INDEBTEDNESS" means any of the following:
(a) JCC and its Subsidiaries may incur Indebtedness solely in respect of
bankers acceptances, letters of credit and performance bonds (to the extent that
such incurrence does not result in the incurrence of any obligation to repay any
obligation relating to borrowed money of others), all in the ordinary course of
business in accordance with customary industry practices, in amounts and for the
purposes customary in
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JCC's industry; PROVIDED, that the aggregate principal amount outstanding of
such Indebtedness (including any Indebtedness issued to refinance, refund or
replace such Indebtedness) shall at no time exceed $5.0 million;
(b) JCC may incur Indebtedness to any wholly owned Subsidiary Guarantor, and
any wholly owned Subsidiary Guarantor may incur Indebtedness to any other wholly
owned Subsidiary Guarantor or to JCC; PROVIDED, that in the case of Indebtedness
of JCC, such obligations shall be unsecured and subordinated in all respects to
JCC's obligations pursuant to the Notes and the date of any event that causes
such Subsidiary Guarantor to no longer be a wholly owned Subsidiary shall be an
Incurrence Date;
(c) JCC and the Guarantors may incur Indebtedness evidenced by the Notes and
the Guarantees and represented by the Indenture up to the amounts specified
therein as of the date thereof;
(d) JCC and the Guarantors, as applicable, may incur Refinancing
Indebtedness with respect to any Indebtedness or Disqualified Capital Stock, as
applicable, which Indebtedness was incurred pursuant to the Leverage Ratio in
the covenant described under "Limitation on Incurrence of Additional
Indebtedness and Disqualified Capital Stock" or clause (c) of this definition;
(e) JCC and its Subsidiaries may incur Indebtedness in an aggregate amount
outstanding at any time (including any Indebtedness issued to refinance,
replace, or refund such Indebtedness) of up to $5.0 million;
(f) JCC and the Guarantors may incur Indebtedness incurred pursuant to the
Credit Facility up to an aggregate principal amount outstanding (including any
Indebtedness issued to refinance, refund or replace such Indebtedness in whole
or in part) at any time of $600.0 million, plus accrued interest and additional
expense and reimbursement obligations with respect thereto and such additional
amounts as may be deemed to be outstanding in the form of Interest Swap and
Hedging Obligations with lenders party to the Credit Facility, minus the amount
of any such Indebtedness retired with Net Cash Proceeds from any Asset Sale;
(g) JCC and the Subsidiary Guarantors may incur Indebtedness under Interest
Swap and Hedging Obligations that do not increase the Indebtedness of the
Company other than as a result of fluctuations in interest or foreign currency
exchange rates provided that such Interest Swap and Hedging Obligations are
incurred for the purpose of providing interest rate protection with respect to
Indebtedness permitted under the Indenture or to provide currency exchange
protection in connection with revenues generated in currencies other than U.S.
dollars;
(h) Subsidiaries may incur Acquired Indebtedness if JCC at the time of such
incurrence could incur such Indebtedness pursuant to the Leverage Ratio in the
covenant "Limitation on Incurrence of Additional Indebtedness and Disqualified
Capital Stock"; and
(i) JCC and its Subsidiaries may incur Indebtedness existing on the Issue
Date.
"PERMITTED INVESTMENT" means:
(a) Investments in any of the Notes;
(b) Cash Equivalents;
(c) intercompany loans to the extent permitted under clause (b) of the
definition of "Permitted Indebtedness" and intercompany security agreements
relating thereto;
(d) loans, advances or investments in existence on the Issue Date;
(e) Investments in a person substantially all of whose assets are of a type
generally used in a Related Business (an "Acquired Person") if, as a result of
such Investments, (i) the Acquired Person immediately thereupon is or becomes a
Subsidiary of the Company, or (ii) the Acquired Person immediately thereupon
either (1) is merged or consolidated with or into the Company or any of its
Subsidiaries and the surviving person is the Company or a Subsidiary of the
Company or (2) transfers or conveys all or substantially all of its assets, or
is liquidated into, JCC or any of its Subsidiaries.
(f) Investments in a person with whom JCC or any of its Subsidiaries have
entered into, (i) local market agreements or time brokerage agreements pursuant
to which JCC or any one of its Subsidiaries
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programs substantial portions of the broadcast day on such person's radio
broadcast station(s) and sells advertising time during such program segments for
its own account or (ii) joint sales agreements pursuant to which JCC or any of
its Subsidiaries sells substantially all of the advertising time for such
person's radio broadcast station(s);
(g) Investments that are in persons which will have the purpose of
furthering the operations of JCC and its Subsidiaries not to exceed $10.0
million; and
(h) demand deposit accounts maintained in the ordinary course of business.
"PERMITTED LIEN" means (a) Liens existing on the Issue Date; (b) Liens
imposed by governmental authorities for taxes, assessments or other charges or
levies not yet subject to penalty or which are being contested in good faith and
by appropriate proceedings, if adequate reserves with respect thereto are
maintained on the books of JCC in accordance with GAAP as of the date of
determination; (c) statutory liens of carriers, warehousemen, mechanics,
materialmen, landlords, repairmen or other like Liens arising by operation of
law in the ordinary course of business provided that (i) the underlying
obligations are not overdue for a period of more than 60 days, or (ii) such
Liens are being contested in good faith and by appropriate proceedings and
adequate reserves with respect thereto are maintained on the books of JCC in
accordance with GAAP as of the date of determination; (d) Liens securing the
performance of bids, trade contracts (other than borrowed money), leases,
statutory obligations, surety and appeal bonds, performance bonds and other
obligations of a like nature incurred in the ordinary course of business and
deposits made in the ordinary course of business to secure obligations of public
utilities; (e) easements, rights-of-way, zoning, building restrictions,
reservations, encroachments, exceptions, covenants, similar restrictions and
other similar encumbrances or title defects which, singly or in the aggregate,
do not in any case materially detract from the value of the property, subject
thereto (as such property is used by JCC or any of its Subsidiaries) or
interfere with the ordinary conduct of the business of JCC or any of its
Subsidiaries; (f) Liens arising by operation of law in connection with
judgments, provided, that the execution or other enforcement of such Liens is
effectively stayed and that the claims secured thereby are being contested in
good faith by appropriate proceedings; (g) pledges or deposits made in the
ordinary course of business in connection with workers' compensation,
unemployment insurance and other types of social security legislation; (h) Liens
securing Indebtedness of a person existing at the time such person becomes a
Subsidiary or is merged with or into JCC or a Subsidiary or Liens securing
Indebtedness incurred in connection with an Acquisition, PROVIDED that such
Liens were in existence prior to the date of such acquisition, merger or
consolidation, were not incurred in anticipation thereof, and do not extend to
any other assets; (i) leases or subleases granted to other persons in the
ordinary course of business not materially interfering with the conduct of the
business of JCC or any of its Subsidiaries or materially detracting from the
value of the relative assets of JCC or any of its Subsidiaries; (j) Liens
arising from precautionary Uniform Commercial Code financing statement filings
regarding operating leases entered into by JCC or any of its Subsidiaries in the
ordinary course of business; and (k) Liens securing Refinancing Indebtedness
incurred to refinance any Indebtedness that was previously so secured in a
manner no more adverse to the Holders of the Notes than the terms of the Liens
securing such refinanced Indebtedness provided that the Indebtedness secured is
not increased and the lien is not extended to any additional assets or property,
(l) Liens in favor of the Adminstrative Agent pursuant to the Credit Facility
and (m) Liens on property of a Subsdiary of JCC provided that such Liens secure
only obligations owing by such Subsidiary to JCC or another Subsidiary of JCC.
"PRODUCTIVE ASSETS" means assets of a kind used or usable by JCC and its
Subsidiaries in a Related Business.
"PUBLIC OFFERING" means a firm commitment underwritten primary offering of
Capital Stock of Jacor or JCC.
"QUALIFIED CAPITAL STOCK" means any Capital Stock of JCC that is not
Disqualified Capital Stock.
"QUALIFIED EXCHANGE" means any legal defeasance, redemption, retirement,
repurchase or other acquisition of Capital Stock or Indebtedness of JCC issued
on or after the Issue Date with the Net Cash Proceeds received by JCC from the
substantially concurrent sale of Qualified Capital Stock or any exchange of
Qualified Capital Stock for any Capital Stock or Indebtedness issued on or after
the Issue Date.
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"REFERENCE PERIOD" with regard to any person means the four full fiscal
quarters (or such lesser period during which such person has been in existence)
ended immediately preceding any date upon which any determination is to be made
pursuant to the terms of the Notes or the Indenture.
"REFINANCING INDEBTEDNESS" means Indebtedness or Disqualified Capital Stock
(a) issued in exchange for, or the proceeds from the issuance and sale of which
are used substantially concurrently to repay, redeem, defease, refund,
refinance, discharge or otherwise retire for value, in whole or in part, or (b)
constituting an amendment, modification or supplement to, or a deferral or
renewal of ((a) and (b) above are, collectively, a "Refinancing"), any
Indebtedness or Disqualified Capital Stock in a principal amount or, in the case
of Disqualified Capital Stock, liquidation preference, not to exceed (after
deduction of reasonable and customary fees and expenses incurred in connection
with the Refinancing) the lesser of (i) the principal amount or, in the case of
Disqualified Capital Stock, liquidation preference, of the Indebtedness or
Disqualified Capital Stock so Refinanced and (ii) if such Indebtedness being
Refinanced was issued with an original issue discount, the accreted value
thereof (as determined in accordance with GAAP) at the time of such Refinancing;
PROVIDED, that (A) such Refinancing Indebtedness of any Subsidiary of JCC shall
only be used to Refinance outstanding Indebtedness or Disqualified Capital Stock
of such Subsidiary, (B) such Refinancing Indebtedness shall (x) not have an
Average Life shorter than the Indebtedness or Disqualified Capital Stock to be
so refinanced at the time of such Refinancing and (y) in all respects, be no
less subordinated or junior, if applicable, to the rights of Holders of the
Notes than was the Indebtedness or Disqualified Capital Stock to be refinanced
and (C) such Refinancing Indebtedness shall have no installment of principal (or
redemption payment) scheduled to come due earlier than the scheduled maturity of
any installment of principal of the Indebtedness or Disqualified Capital Stock
to be so refinanced which was scheduled to come due prior to the Stated
Maturity.
"RELATED BUSINESS" means the business conducted (or proposed to be
conducted) by JCC and its Subsidiaries as of the Issue Date and any and all
businesses that in the good faith judgment of the Board of Directors of JCC are
materially related businesses.
"RELATED PERSON" means any person who controls, is controlled by or is under
common control with an Excluded Person; PROVIDED that for purposes of this
definition "control" means the beneficial ownership of more than 50% of the
total voting power of a person normally entitled to vote in the election of
directors, managers or trustees, as applicable of a person.
"RESTRICTED INVESTMENT" means, in one or a series of related transactions,
any Investment, other than investments in Permitted Investments; PROVIDED,
HOWEVER, that a merger of another person with or into JCC or a Subsidiary
Guarantor shall not be deemed to be a Restricted Investment so long as the
surviving entity is JCC or a direct wholly owned Subsidiary Guarantor.
"RESTRICTED PAYMENT" means, with respect to any person, (a) the declaration
or payment of any dividend or other distribution in respect of Equity Interests
of such person or any parent or Subsidiary of such person, (b) any payment on
account of the purchase, redemption or other acquisition or retirement for value
of Equity Interests of such person or any Subsidiary or parent of such person,
(c) other than with the proceeds from the substantially concurrent sale of, or
in exchange for, Refinancing Indebtedness any purchase, redemption, or other
acquisition or retirement for value of, any payment in respect of any amendment
of the terms of or any defeasance of, any Subordinated Indebtedness, directly or
indirectly, by such person or a parent or Subsidiary of such person prior to the
scheduled maturity, any scheduled repayment of principal, or scheduled sinking
fund payment, as the case may be, of such Indebtedness and (d) any Restricted
Investment by such person; PROVIDED, HOWEVER, that the term "Restricted Payment"
does not include (i) any dividend, distribution or other payment on or with
respect to Capital Stock of an issuer to the extent payable solely in shares of
Qualified Capital Stock of such issuer; (ii) any dividend, distribution or other
payment to JCC, or to any of its wholly owned Subsidiary Guarantors, by any of
the Subsidiaries of JCC; or (iii) loans or advances to any Subsidiary Guarantor
the proceeds of which are used by such Subsidiary Guarantor in a Related
Business activity of such Subsidiary Guarantor.
"SENIOR DEBT" of JCC or any Guarantor means Indebtedness (including any
monetary obligation in respect of the Credit Facility, and interest, whether or
not such interest is allowed or allowable, accruing on Indebtedness incurred
pursuant to the Credit Facility at the contracted-for rate after the
commencement of any proceeding under any bankruptcy, insolvency or similar law)
of JCC or such Guarantor arising under the Credit Facility or that, by the terms
of the instrument creating or evidencing such Indebtedness, is expressly
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designated Senior Debt and made senior in right of payment to the Notes or the
applicable Guarantee; provided, that in no event shall Senior Debt include (a)
Indebtedness to any Subsidiary of JCC or any officer, director or employee of
JCC or any Subsidiary of JCC, (b) Indebtedness incurred in violation of the
terms of the Indenture, (c) Indebtedness to trade creditors, (d) Disqualified
Capital Stock and (e) any liability for taxes owed or owing by JCC or such
Guarantor.
"SIGNIFICANT SUBSIDIARY" shall have the meaning provided under Regulation
S-X of the Securities Act, as in effect on the Issue Date.
"STATED MATURITY," when used with respect to any Note, means ,
2006.
"SUBORDINATED INDEBTEDNESS" means Indebtedness of JCC or a Guarantor that is
subordinated in right of payment to the Notes or such Guarantee, as applicable,
in any respect or has a stated maturity on or after the Stated Maturity.
"SUBSIDIARY," with respect to any person, means (i) a corporation a majority
of whose Capital Stock with voting power, under ordinary circumstances, to elect
directors is at the time, directly or indirectly, owned by such person, by such
person and one or more Subsidiaries of such person or by one or more
Subsidiaries of such person, (ii) any other person (other than a corporation) in
which such person, one or more Subsidiaries of such person, or such person and
one or more Subsidiaries of such person, directly or indirectly, at the date of
determination thereof has at least majority ownership interest, or (iii) a
partnership in which such person or a Subsidiary of such person is, at the time,
a general partner and in which such person, directly or indirectly, at the date
of determination thereof has at least a majority ownership interest.
"SUBSIDIARY GUARANTORS" means (i) the Present Subsidiary Guarantors
identified in the following sentence and (ii) Future Subsidiary Guarantors that
become Subsidiary Guarantors pursuant to the terms of the Indenture, but
excluding any Persons whose guarantees have been released pursuant to the terms
of the Indenture. The "PRESENT SUBSIDIARY GUARANTORS" means Jacor Broadcasting
Corporation; Broadcast Finance, Inc.; Jacor Broadcasting of Florida, Inc.; Jacor
Broadcasting of Atlanta, Inc.; Jacor Broadcasting of Colorado, Inc.; Jacor
Broadcasting of Lexington, Inc.; Jacor Broadcasting of Knoxville, Inc.; Jacor
Broadcasting of Tampa Bay, Inc.; Jacor Cable, Inc.; Georgia Network Equipment,
Inc.; Jacor Broadcasting of San Diego, Inc.; Jacor Broadcasting of St. Louis,
Inc.; Jacor Broadcasting of Sarasota, Inc.; Jacor Broadcasting of Idaho, Inc., a
Delaware corporation; Jacor Broadcasting of Iowa, Inc.; Noble Broadcast Group,
Inc.; Noble Broadcast of Colorado, Inc.; Noble Broadcast of San Diego, Inc.;
Noble Broadcast of St. Louis, Inc.; Noble Broadcast of Toledo, Inc.; Nova
Marketing Group, Inc.; Noble Broadcast Licenses, Inc.; Noble Broadcast Holdings,
Inc.; Sports Radio Broadcasting, Inc.; Nobro, S.C.; Sports Radio, Inc.; Noble
Broadcast Center, Inc.; Citicasters Co.; GAAC-N26LB, Inc.; GACC-340, Inc.; Cine
Guarantors, Inc.; Great American Television Productions, Inc.; Cine Guarantors
II, Inc.; Great American Merchandising Group, Inc.; Taft-TCI Satellite Services,
Inc.; Cine Films, Inc.; The Sy Fischer Company Agency, Inc.; Location
Productions, Inc.; Location Productions II, Inc.; VTTV Productions; F.M.I.
Pennsylvania, Inc.; Inmobiliaria Radial, S.A. de C.V.; WHOK, Inc.; Cine Mobile
Systems Int'l. N.V.; Cine Movil S.A. de C.V.; and Cine Guarantors II, Ltd., each
a direct or indirect subsidiary of the Company or any successor entity, whether
by merger, consolidation, change of name or otherwise.
"TAX SHARING AGREEMENT" means any agreements between JCC and Jacor pursuant
to which JCC may make payments to Jacor with respect to JCC's Federal, state, or
local income or franchise tax liabilities where JCC is included in a
consolidated, unitary or combined return filed by Jacor; PROVIDED, HOWEVER, that
the payment by JCC under such agreement may not exceed the liability of Jacor
for such taxes if it had filed its income tax returns as a separate company.
BOOK-ENTRY, DELIVERY AND FORM
Except as set forth below, the Notes will initially be issued in the form of
one or more registered Notes in global form (the "Global Notes"). Each Global
Note will be deposited on the date of the closing of the sale of the Notes (the
"Closing Date") with, or on behalf of, The Depository Trust Company (the
"Depositary") and registered in the name of Cede & Co., as nominee of the
Depositary.
DTC is a limited-purpose trust company organized under the New York Banking
Law, a "banking organization" within the meaning of the New York Banking Law, a
member of the Federal Reserve System, a "clearing corporation" within the
meaning of the New York Uniform Commercial Code, and a "clearing agency"
registered pursuant to the provisions of Section 17A of the Exchange Act. DTC
holds securities that
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its participants ("Participants") deposit with DTC. DTC also facilitates the
settlement among Participants of securities transactions, such as transfers and
pledges, in deposited securities through electronic computerized book-entry
changes in Participants' accounts, thereby eliminating the need for physical
movement of securities certificates. Direct Participants include securities
brokers and dealers, banks, trust companies, clearing corporations, and certain
other organizations ("Direct Participants"). DTC is owned by a number of its
Direct Participants and by the NYSE, the American Stock Exchange, Inc. and the
National Association of Securities Dealers, Inc. Access to the DTC system is
also available to others such as securities brokers and dealers, banks and trust
companies that clear through or maintain a custodial relationship with a Direct
Participant, either directly or indirectly ("Indirect Participants"). The rules
applicable to DTC and its Participants are on file with the SEC.
The Company expects that pursuant to procedures established by the
Depositary (i) upon deposit of the Global Notes, the Depositary will credit the
accounts of Participants designated by the Underwriters with an interest in the
Global Note and (ii) ownership of the Notes evidenced by the Global Note will be
shown on, and the transfer of ownership thereof will be effected only through,
records maintained by the Depositary (with respect to the interests of
Participants), the Participants and the Indirect Participants. The laws of some
states require that certain persons take physical delivery in definitive form of
securities that they own and that security interests in negotiable instruments
can only be perfected by delivery of certificates representing the instruments.
Consequently, the ability to transfer Notes evidenced by the Global Note will be
limited to such extent.
So long as the Depositary or its nominee is the registered owner of a Note,
the Depositary or such nominee, as the case may be, will be considered the sole
owner or holder of the Notes represented by the Global Note for all purposes
under the Indenture. Except as provided below, owners of beneficial interests in
a Global Note will not be entitled to have Notes represented by such Global Note
registered in their names, will not receive or be entitled to receive physical
delivery of Certificated Notes, and will not be considered the owners or holders
thereof under the Indenture for any purpose, including with respect to the
giving of any directions, instructions or approvals to the Trustee thereunder.
As a result, the ability of a person having a beneficial interest in Notes
represented by a Global Note to pledge such interest to persons or entities that
do not participate in the Depositary's system, or to otherwise take actions with
respect to such interest, may be affected by the lack of a physical certificate
evidencing such interest.
Neither the Company nor the Trustee will have any responsibility or
liability for any aspect of the records relating to or payments made on account
of Notes by the Depositary, or for maintaining, supervising or reviewing any
records of the Depositary relating to such Notes.
Payments with respect to the principal of, premium, if any, interest on, any
Note represented by a Global Note registered in the name of the Depositary or
its nominee on the applicable record date will be payable by the Trustee to or
at the direction of the Depositary or its nominee in its capacity as the
registered Holder of the Global Note representing such Notes under the
Indenture. Under the terms of the Indenture, the Company and the Trustee may
treat the persons in whose names the Notes, including the Global Notes, are
registered as the owners thereof for the purpose of receiving such payments and
for any and all other purposes whatsoever. Consequently, neither the Company nor
the Trustee has or will have any responsibility or liability for the payment of
such amounts to beneficial owners of Notes (including principal, premium, if any
or interest), or to immediately credit the accounts of the relevant Participants
with such payment, in amounts proportionate to their respective holdings in
principal amount of beneficial interests in the Global Note as shown on the
records of the Depositary. Payments by the Participants and the Indirect
Participants to the beneficial owners of Notes will be governed by standing
instructions and customary practice and will be the responsibility of the
Participants or the Indirect Participants.
CERTIFICATED NOTES
If (i) the Company notifies the Trustee in writing that the Depositary is no
longer willing or able to act as a depositary and the Company is unable to
locate a qualified successor within 90 days or (ii) the Company, at its option,
notifies the Trustee in writing that it elects to cause the issuance of Notes in
definitive form under the Indenture, then, upon surrender by the Depositary of
the Global Notes, Certificated Notes will be issued to each person that the
Depositary identifies as the beneficial owner of the Notes represented by Global
Notes. In addition, subject to certain conditions, any person having a
beneficial interest in a Global Note
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may, upon request to the Trustee, exchange such beneficial interest for Notes in
the form of Certificated Notes. Upon any such issuance, the Trustee is required
to register such Certificated Notes in the name of such person or persons (or
the nominee of any thereof), and cause the same to be delivered thereto.
Neither the Company nor the Trustee shall be liable for any delay by the
Depositary or any Participant or Indirect Participant in identifying the
beneficial owners of the Notes, and the Company and the Trustee may conclusively
rely on, and shall be protected in relying on, instructions from the Depositary
for all purposes (including with respect to the registration and delivery, and
the respective principal amounts, of the Notes to be issued).
The information in this section concerning the Depositary and the
Depositary's book-entry system has been obtained from sources that the Company
believes to be reliable. The Company will have no responsibility for the
performance by the Depositary or its Participants of their respective
obligations as described hereunder or under the rules and procedures governing
their respective operations.
SAME-DAY FUNDS SETTLEMENT AND PAYMENT
The Indenture will require that payments in respect of the Notes represented
by the Global Notes (including principal, premium, if any, and interest) be made
by wire transfer of immediately available funds to the accounts specified by the
Depositary. With respect to Notes represented by Certificated Notes, the Company
will make all payments of principal, premium, if any, and interest, by mailing a
check to each such Holder's registered address. The Notes will trade in the
Depositary's Same-Day Funds Settlement System until maturity, or until the Notes
are issued in certificated form, and secondary market trading activity in the
Notes will therefore be required by the Depositary to settle in immediately
available funds. No assurance can be given as to the effect, if any, of
settlement in immediately available funds on trading activity in the Notes.
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DESCRIPTION OF OTHER INDEBTEDNESS
The summaries contained herein of certain of the indebtedness of the Company
do not purport to be complete and are qualified in their entirety by reference
to the provisions of the various agreements and indentures related thereto,
which are filed as exhibits to the Registration Statement of which this
Prospectus is a part and to which reference is hereby made.
CREDIT FACILITY
The Credit Facility provides availability of $600.0 million of loans to JCC
in three components: (i) a revolving credit facility of up to $200.0 million
with mandatory semi-annual commitment reductions beginning March 18, 1999 and a
final maturity date of September 18, 2003; (ii) a term loan of $300.0 million
with scheduled semi-annual reductions beginning March 18, 1998 and a final
maturity date of September 18, 2003; and (iii) a tranche B term loan of $100.0
million with scheduled semi-annual reductions beginning March 18, 1999 and a
final maturity date of September 18, 2004.
The Credit Facility bears interest at a rate that fluctuates with a bank
base rate and/or the Eurodollar rate per annum, and at October 31, 1996 this
rate was 7.73%. Jacor borrowed monies under the Credit Facility to (i) finance a
portion of the cash consideration paid in the Citicasters Merger, and (ii) fund
$100 million of the repurchase price of the 9 3/4% Notes. The Citicasters Merger
constituted a change in control for the purposes of the indenture under which
the 9 3/4% Notes were issued and Jacor was required to make an offer to
repurchase such notes at 101% of their aggregate principal amount. Under the
Citicasters Put, the holders of $106.9 million in principal amount of the 9 3/4%
Notes elected in October 1996 to sell their 9 3/4% Notes to Jacor pursuant to
Jacor's repurchase offer.
In November 1996, Jacor entered into discussions to expand the availability
under the Credit Facility from up to $600.0 million to up to $750.0 million,
among other things. Jacor is discussing with the lenders that the components of
the increased Credit Facility consist of a revolving credit facility with an
availability of up to $450.0 million, a $200.0 million seven-year amortizing
term loan and a $100.0 million up to eight-year amortizing term loan. There can
be no assurance that the availability under the Credit Facility will be
increased or that the components of the Credit Facility will be revised.
The loans under the Credit Facility are guaranteed by each of the Company's
direct and indirect subsidiaries other than certain immaterial subsidiaries. The
Company's obligations with respect to the Credit Facility and each guarantor's
obligations with respect to the related guaranty are secured by substantially
all of their respective assets, including, without limitation, inventory,
equipment, accounts receivable, intercompany debt and, in the case of the
Company's subsidiaries, capital stock. JCC's obligations under the Credit
Facility are secured by a first priority lien on the capital stock of the
Company's subsidiaries and by the guarantee of JCC's parent, Jacor.
The Credit Facility contains covenants and provisions that restrict, among
other things, the Company's ability to: (i) incur additional indebtedness; (ii)
incur liens on its property; (iii) make investments and advances; (iv) enter
into guarantees and other contingent obligations; (v) merge or consolidate with
or acquire another person or engage in other fundamental changes; (vi) engage in
certain sales of assets; (vii) make capital expenditures; (viii) enter into
leases; (ix) engage in certain transactions with affiliates; and (x) make
restricted junior payments. The Credit Facility also requires the satisfaction
of certain financial performance criteria (including a consolidated interest
coverage ratio, a leverage-to-operating cash flow ratio and a consolidated
operating cash flow available for fixed charges ratio) and the repayment of
loans under the Credit Facility with proceeds of certain sales of assets and
debt issuances, and with 50% of the Company's Consolidated Excess Cash Flow (as
defined in the Credit Facility).
Events of default under the Credit Facility include various events of
default customary for such type of agreement, such as failure to pay scheduled
payments when due, cross defaults on other indebtedness, change of control
events under other indebtedness (including the LYONs, the Notes, the 9 3/4%
Notes and the 10 1/8% Notes) and certain events of bankruptcy, insolvency and
reorganization. In addition, the Credit Facility includes events of default for
JCC and the cessation of any lien on any of the collateral under the Credit
Facility as a perfected first priority lien and the failure of Zell/Chilmark
appointees to represent at least 30% of the Jacor Board of Directors.
48
<PAGE>
For purposes of the Credit Facility, a change of control includes the
occurrence of any event that triggers a change of control under the LYONs, the
Notes , the 9 3/4% Notes or the 10 1/8% Notes. Such change of control under the
Credit Facility would constitute an event of default which would give the
syndicate the right to accelerate the unpaid principal amounts due under the
Credit Facility. Upon such acceleration, there is no assurance that JCC will
have funds available to fund such repayment or that such funds will be available
or terms acceptable to JCC.
THE 9 3/4% NOTES
The 9 3/4% Notes are general unsecured obligations of JCC and are
subordinated in rights of payment to all Senior Indebtedness (as defined in the
9 3/4% Note Indenture). The 9 3/4% Notes were issued pursuant to an indenture
between Citicasters and Shawmut Bank Connecticut, National Association, as
Trustee (the "9 3/4% Note Indenture").
Following the Citicasters Put, the November 15, 1996 aggregate outstanding
principal amount of the 9 3/4% Notes is $18.1 million and the 9 3/4% Notes
mature on February 15, 2004. Interest on the 9 3/4% Notes accrues at the rate of
9 3/4% per annum.
The 9 3/4% Notes are not redeemable at JCC's option before February 15, 1999
(other than in connection with certain public offerings of common stock by JCC,
as described below). Thereafter, the 9 3/4% Notes are subject to redemption at
the option of JCC, at redemption prices declining from 104.875% of the principal
amount for the twelve months commencing February 15, 1999 to 100.00% on and
after February 15, 2002, plus, in each case, accrued and unpaid interest thereon
to the applicable redemption date.
Within 60 days after any Change of Control (as defined in the 9 3/4% Note
Indenture), JCC or its successors must make an offer to purchase the 9 3/4%
Notes at a purchase price equal to 101% of the aggregate principal amount
thereof, plus accrued and unpaid interest to the date of purchase. As discussed
under "-- Credit Facility," the Citicasters Merger constituted a Change of
Control. Any 9 3/4% Notes which are not acquired in connection with such Change
of Control offer, subject to the successor's right to redeem the 9 3/4% Notes as
described above, will remain outstanding. Jacor will comply with the
requirements of Rule 14e-1 in connection with the repurchase of the 9 3/4%
Notes, as such rule might apply to any such repurchase at the time thereof. In
addition, prior to December 31, 1996, JCC can redeem the 9 3/4% Notes from the
proceeds of Asset Sales (as defined in the 9 3/4% Note Indenture) subject to
certain restrictions.
The 9 3/4% Note Indenture contains certain covenants which impose certain
limitations and restrictions on the ability of JCC to incur additional
indebtedness, pay dividends or make other distributions, make certain loans and
investments, apply the proceeds of Asset Sales (and use the proceeds thereof),
create liens, enter into certain transactions with affiliates, merge,
consolidate or transfer substantially all its assets and make investments in
unrestricted subsidiaries. In addition, the 9 3/4% Note Indenture limits JCC's
Subsidiaries from incurring additional indebtedness.
The Indenture for the 9 3/4% Notes includes various events of default
customary for such type of agreements, such as failure to pay principal and
interest when due on the 9 3/4% Notes, cross defaults on other indebtedness and
certain events of bankruptcy, insolvency and reorganization.
THE 10 1/8% NOTES
In June 1996, JCAC, Inc. (a predecessor to JCC) conducted an offering (the
"10 1/8% Notes Offering") whereby JCAC, Inc. issued and sold 10 1/8% Senior
Subordinated Notes due 2006 (the "10 1/8% Notes") in an aggregate principal
amount of $100.0 million. JCAC, Inc. then lent the net proceeds of the 10 1/8%
Notes Offering to Jacor. The 10 1/8% Notes have interest payment dates of June
15 and December 15, commencing on December 15, 1996, and mature on June 15,
2006.
The 10 1/8% Note Indenture contains certain covenants which impose certain
limitations and restrictions on the ability of Jacor to incur additional
indebtedness, pay dividends or make other distributions, make certain loans and
investments, apply the proceeds of asset sales (and use the proceeds thereof),
create liens, enter into certain transactions with affiliates, merge,
consolidate or transfer substantially all its assets and make investments in
unrestricted subsidiaries.
49
<PAGE>
If a change of control occurs, JCC will be required to offer to repurchase
all outstanding 10 1/8% Notes at a price equal to 101% of their principal
amount, plus accrued and unpaid interest, if any, to the date of repurchase.
There can be no assurance that JCC will have sufficient funds to purchase all of
the 10 1/8% Notes in the event of a change of control offer or that JCC would be
able to obtain financing for such purpose on favorable terms, if at all. In
addition, the Credit Facility restricts JCC's ability to repurchase the 10 1/8%
Notes, including pursuant to a change of control offer. Furthermore, a change of
control under the 10 1/8% Note Indenture will result in a default under the
Credit Facility.
As used herein, (a) prior to the earlier of a 9 3/4% Note Event, a "Change
of Control" means any transaction or series of transactions in which any of the
following occurs: (i) any person or group (within the meaning of Rule 13d-3
under the Exchange Act and Sections 13(d) and 14(d) of the Exchange Act), other
than Zell/Chilmark or any of its Affiliates, becomes the direct or indirect
"beneficial owner" (as defined in Rule 13d-3 under the Exchange Act) of (A)
greater than 50% of the total voting power (on a fully diluted basis as if all
convertible securities had been converted) entitled to vote in the election of
directors of JCC or CitiCo, or the surviving person (if other than the Company),
or (B) greater than 20% of the total voting power (on a fully diluted basis as
if all convertible securities had been converted) entitled to vote in the
election of directors of JCC or CitiCo, or the surviving person (if other than
JCC), and such person or group has the ability to elect, directly or indirectly,
a majority of the members of the Board of Directors of JCC; or (ii) JCC or
CitiCo consolidates with or merges into another person, another person
consolidates with or merges into JCC or CitiCo, JCC or CitiCo issues shares of
its Capital Stock or all or substantially all of the assets of JCC or CitiCo are
sold, assigned, conveyed, transferred, leased or otherwise disposed of to any
person as an entirety or substantially as an entirety in one transaction or a
series of related transactions and the effect of such consolidation, merger,
issuance or sale is as described in clause (i) above. Notwithstanding the
foregoing, no Change of Control shall be deemed to have occurred by virtue of
(I) JCC or any of its employee benefit or stock plans filing (or being required
to file after the lapse of time) a Schedule 13D or 14D-1 (or any successor or
similar schedule, form or report under the Exchange Act) or (II) the purchase by
one or more underwriters of Capital Stock of JCC in connection with a Public
Offering; and (b) upon and following a 9 3/4% Note Event, a "Change of Control"
will mean (i) any merger or consolidation of JCC with or into any person or any
sale, transfer or other conveyance, whether direct or indirect, of all or
substantially all of any of the assets of JCC, on a consolidated basis, in one
transaction or a series of related transactions, if, immediately after giving
effect to such transaction(s), any "person" or "group" (as such terms are used
for purposes of Sections 13(d) and 14(d) of the Exchange Act, whether or not
applicable) (other than an Excluded Person) is or becomes the "beneficial
owner," directly or indirectly, of more than 50% of the total voting power in
the aggregate normally entitled to vote in the election of directors, managers,
or trustees, as applicable, of the transferee(s) or surviving entity or
entities, (ii) any "person" or "group" (as such terms are used for purposes of
Sections 13(d) and 14(d) of the Exchange Act, whether or not applicable) (other
than an Excluded Person) is or becomes the "beneficial owner," directly or
indirectly, of more than 50% of the total voting power in the aggregate of all
classes of Capital Stock of JCC then outstanding normally entitled to vote in
elections of directors, or (iii) during any period of 12 consecutive months
after the Issue Date, individuals who at the beginning of any such 12-month
period constituted the Board of Directors of JCC (together with any new
directors whose election by such Board or whose nomination for election by the
shareholders of JCC was approved by a vote of a majority of the directors then
still in office who were either directors at the beginning of such period or
whose election or nomination for election was previously so approved) cease for
any reason to constitute a majority of the Board of Directors of JCC then in
office.
The events of default under the 10 1/8% Note Indenture include various
events of default customary for such type of agreement, including the failure to
pay principal and interest when due on the 10 1/8% Notes, cross defaults on
other indebtedness for borrowed monies in excess of $5.0 million (which
indebtedness would therefore include the Credit Facility, the LYONs, the Notes
and the 9 3/4% Notes) and certain events of bankruptcy, insolvency and
reorganization.
THE LYONS
Also in June 1996, Jacor conducted an offering (the "LYONs Offering")
whereby Jacor issued and sold Senior Liquid Yield Option Notes-TM- due June 12,
2011 (the "LYONs") in the aggregate principal amount at maturity of $259.9
million. Each LYON had an Issue Price of $443.14 and a principal amount at
maturity of $1,000.
50
<PAGE>
Each LYON is convertible, at the option of the Holder, at any time on or
prior to maturity, unless previously redeemed or otherwise purchased, into
Common Stock at a conversion rate of 13.412 shares per LYON. The conversion rate
will not be adjusted for accrued original issue discount, but will be subject to
adjustment upon the occurrence of certain events affecting the Common Stock.
Upon conversion, the Holder will not receive any cash payment representing
accrued original issue discount; such accrued original issue discount will be
deemed paid by the Common Stock received by the Holder on conversion.
The LYONs are not redeemable by Jacor prior to June 12, 2001. Thereafter,
the LYONs are redeemable for cash at any time at the option of Jacor, in whole
or in part, at redemption prices equal to the issue price plus accrued original
issue discount to the date of redemption.
The LYONs will be purchased by Jacor, at the option of the Holder, on June
12, 2001 and June 12, 2006, for a Purchase Price of $581.25 and $762.39
(representing issue price plus accrued original issue discount to each date),
respectively, representing a 5.50% yield per annum to the Holder on such date,
computed on a semiannual bond equivalent basis. Jacor, at its option, may elect
to pay the purchase price on any such purchase date in cash or Common Stock, or
any combination thereof. In addition, as of 35 business days after the
occurrence of a change in control of Jacor occurring on or prior to June 12,
2001, each LYON will be purchased for cash, by Jacor, at the option of the
Holder, for a change in control purchase price equal to the issue price plus
accrued original issue discount to the change in control purchase date set for
such purchase. The change in control purchase feature of the LYONs may in
certain circumstances have an antitakeover effect.
Under the Indenture for the LYONs, a "Change in Control" of Jacor is deemed
to have occurred at such time as (i) any person (as the term "person" is used in
Section 13(d)(3) or Section 14(d)(2) of the Exchange Act) other than
Zell/Chilmark, Jacor, any subsidiary of Jacor, or any employee benefit plan of
either Jacor or any Subsidiary of Jacor, files a Schedule 13D or 14D-1 under the
Exchange Act (or any successor schedule, form or report) disclosing that such
person has become the beneficial owner of 50% or more of the Common Stock or
other capital stock of Jacor into which such Common Stock is reclassified or
changed, with certain exceptions, or (ii) there shall be consummated any
consolidation or merger of Jacor (a) in which Jacor is not the continuing or
surviving corporation or (b) pursuant to which the Common Stock would be
converted into cash, securities or other property, in each case, other than a
concolidation or merger of Jacor in which the holders of Common Stock
immediately prior to the consolidation or merger own, directly or indirectly, at
least a majority of Common Stock of the continuing or surviving corporation
immediately after the consolidation or merger. A Change of Control under the
LYONs indenture constitutes an event of default under the Credit Facility. See
"-- Credit Facility."
The Indenture for the LYONs includes various events of default customary for
such type of agreement, such as cross defaults on other indebtedness for
borrowed monies in excess of $10.0 million (which indebtedness would therefore
include the Credit Facility, the Notes, the 9 3/4% Notes and the 10 1/8% Notes)
and certain events of bankruptcy, insolvency and reorganization.
51
<PAGE>
UNDERWRITING
Subject to certain conditions contained in the Underwriting Agreement,
Donaldson, Lufkin & Jenrette Securities Corporation and Merrill Lynch, Pierce,
Fenner & Smith Incorporated (the "Underwriters"), severally have agreed to
purchase from JCC and the Guarantors , and JCC and the Guarantors have agreed to
sell to the Underwriters at the public offering price set forth on the cover
page of this Prospectus, less the underwriting discount, the respective
principal amount of Notes (together with the Guarantees) set forth opposite
their names below:
<TABLE>
<CAPTION>
UNDERWRITER
<S> <C>
Donaldson, Lufkin & Jenrette Securities Corporation........... $90,000,000
Merrill Lynch, Pierce, Fenner & Smith Incorporated............ $60,000,000
-----------
$150,000,000
-----------
-----------
</TABLE>
The Underwriting Agreement provides that the obligations of the Underwriters
to purchase and accept delivery of the Notes offered hereby are subject to the
approval of certain legal matters by counsel and to certain other conditions.
The nature of the Underwriters' obligations is such that the Underwriters are
committed to purchase all of the Notes if any of the Notes are purchased by
them.
JCC and the Guarantors have agreed to indemnify the Underwriters against
certain liabilities, including liabilities under the Securities Act of 1933, or
to contribute to payments that the Underwriter may be required to make in
respect thereof.
The Underwriters propose to offer the Notes to the public initially at the
price to the public set forth on the cover page of this Prospectus. After the
initial public offering of the Notes, the offering price and other selling terms
may be changed by the Underwriters.
The Notes are new issues of securities, have no established trading market
and may not be widely distributed. JCC has been advised by the Underwriters
that, following the completion of this Offering, the Underwriters presently
intend to make a market in the Notes as permitted by applicable laws and
regulations. However, the Underwriters are under no obligation to do so and may
discontinue any market making activities at any time at the sole discretion of
the individual Underwriters. No assurance can be given as to the liquidity of
any trading market for the Notes.
52
<PAGE>
EXPERTS
The consolidated balance sheets of Jacor Communications, Inc. and
Subsidiaries as of December 31, 1995 and 1994 and the consolidated statements of
operations, shareholders' equity and cash flows for each of the three years in
the period ended December 31, 1995, incorporated by reference in this
registration statement, have been included herein in reliance on the report of
Coopers & Lybrand L.L.P., independent accountants, given on the authority of
that firm as experts in accounting and auditing.
The consolidated balance sheets of Citicasters as of December 31, 1995 and
1994 and the consolidated statements of operations, changes in shareholders'
equity, and cash flows for each of the three years in the period ended December
31, 1995 incorporated by reference in this registration statement, have been
audited by Ernst & Young LLP, independent auditors, as set forth in their report
thereon (which contains an explanatory paragraph with respect to Citicasters'
emergence from bankruptcy and subsequent adoption of "fresh-start reporting" as
of December 31, 1993, as more fully described in Note B to the consolidated
financial statements), included therein and incorporated by reference herein.
Such consolidated financial statements are incorporated by reference in reliance
upon such report given upon the authority of such firm as experts in accounting
and auditing.
The consolidated financial statements of Noble Broadcast Group, Inc. as of
December 31, 1995 and December 25, 1994 and for each of the three years in the
period ended December 31, 1995, incorporated in this Prospectus by reference to
Jacor Communications, Inc.'s Current Report on Form 8-K dated March 6, 1996, as
amended on May 23, 1996, have been so incorporated in reliance on the report
(which includes an explanatory paragraph relating to Jacor's agreement to
purchase Noble Broadcast Group, Inc. as described in Note 2 to the consolidated
financial statements) of Price Waterhouse LLP, independent accountants, given on
the authority of said firm as experts in auditing and accounting.
LEGAL MATTERS
The authorization and issuance of the Notes offered hereby will be passed
upon for Jacor by Graydon, Head & Ritchey, Cincinnati, Ohio. Certain legal
matters in connection with this Offering will be passed upon for the
Underwriters by Skadden, Arps, Slate, Meagher & Flom LLP, Los Angeles,
California.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents previously filed by Jacor and Citicasters (now known
as JCC) with the Securities and Exchange Commission (the "Commission") are
incorporated herein by reference and are made a part hereof:
(a) Jacor's Annual Report on Form 10-K for the fiscal year ended December
31, 1995, as amended;
(b) Jacor's Quarterly Reports on Form 10-Q for the quarters ended March 31,
1996, June 30, 1996, as amended, and September 30, 1996, as amended;
(c) Jacor's Current Reports on Form 8-K dated February 14, 1996, February
27, 1996, March 6, 1996, as amended, March 27, 1996, as amended, July 30,
1996, October 3, 1996, October 11, 1996, October 23, 1996 and November 6,
1996;
(d) Jacor's Form 8-B Registration Statement dated September 23, 1996;
(e) Citicasters' Annual Report on Form 10-K for the year ended December 31,
1995, as amended;
(f) Citicasters' Quarterly Reports on Form 10-Q for the quarters ended March
31, 1996, as amended, June 30, 1996 and September 30, 1996;
(g) Citicasters' Current Report on Form 8-K dated February 14, 1996; and
(h) Citicasters' Form 8-B Registration Statement dated September 23, 1996.
All documents filed by Jacor and JCC with the Commission pursuant to Section
13(a), 13(c), 14 or 15(d) of the Exchange Act, after the date of this Prospectus
and prior to the termination of the offering of the securities made hereby shall
be deemed to be incorporated by reference into this Prospectus and to be a part
53
<PAGE>
hereof from the date of filing of such documents. Any statement contained in a
document incorporated or deemed to be incorporated by reference herein shall be
deemed to be modified or superseded for purposes of this Prospectus to the
extent that a statement contained herein (or in any other subsequently filed
document that is or is deemed to be incorporated by reference herein) modifies
or supersedes such previous statement. Any statement so modified or superseded
shall not be deemed to constitute a part of this Prospectus except as so
modified or superseded.
This Prospectus incorporates by reference certain documents relating to
Jacor and Citicasters which are not delivered herewith. These documents (other
than exhibits to such documents unless such exhibits are specifically
incorporated by reference herein) are available, without charge, upon oral or
written request by any person to whom this Prospectus is delivered. Such
requests should be directed to Jacor Communications, Inc., 1300 PNC Center, 201
East Fifth Street, Cincinnati, Ohio 45202, Attention: Kirk Brewer, Director of
Corporate Communications and Investor Relations, Telephone Number (847)
256-9282, Fax Number (847) 256-2980.
AVAILABLE INFORMATION
Jacor is subject to the informational requirements of the Exchange Act, and
accordingly files reports, proxy statements and other information with the
Commission. Jacor has filed a Registration Statement on Form S-3 together with
all amendments and exhibits thereto with the Commission under the Securities Act
with respect to the Offering. This Prospectus does not contain all of the
information set forth in the Registration Statement, certain parts of which are
omitted in accordance with the rules and regulations of the Commission. The
Registration Statement, including any amendments, schedules and exhibits
thereto, is available for inspection and copying as set forth above. Statements
contained in this Prospectus as to the contents of any contract or other
document referred to herein include all material terms of such contracts or
other documents but are not necessarily complete, and in each instance reference
is made to the copy of such contract or other document filed as an exhibit to
the Registration Statement, each such statement being qualified in all respects
by such reference. Such reports, proxy statements and other information filed
with the Commission are available for inspection and copying at the public
reference facilities maintained by the Commission at Room 1024, Judiciary Plaza,
450 Fifth Street, N.W., Washington, D.C. 20549, and at the Commission's Regional
Offices located at Citicorp Center, 500 West Madison Street, Suite 1400,
Chicago, Illinois 60661-2511, and at 7 World Trade Center, 13th Floor, New York,
New York 10048. Copies of such documents may also be obtained from the Public
Reference Room of the Commission at Judiciary Plaza, 450 Fifth Street, N.W.,
Washington, D.C. 20549, at prescribed rates. Jacor files its reports, proxy
statements and other information with the Commission electronically, and the
Commission maintains a Web site located at http://www.sec.gov containing such
information. In addition, reports and other information concerning Jacor are
available for inspection and copying at the offices of The Nasdaq Stock Market
at 1735 K Street, N.W., Washington, D.C. 20006-1506.
54
<PAGE>
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NO DEALER, SALES REPRESENTATIVE OR OTHER PERSON HAS BEEN AUTHORIZED TO GIVE
ANY INFORMATION OR TO MAKE ANY REPRESENTATIONS IN CONNECTION WITH THIS OFFERING
OTHER THAN THOSE CONTAINED IN THIS PROSPECTUS, AND IF GIVEN OR MADE, SUCH
INFORMATION OR REPRESENTATION MUST NOT BE RELIED UPON AS HAVING BEEN AUTHORIZED
BY THE COMPANY OR ANY UNDERWRITER. THIS PROSPECTUS DOES NOT CONSTITUTE AN OFFER
TO SELL OR A SOLICITATION OF AN OFFER TO BUY ANY OF THE SECURITIES OFFERED
HEREBY BY ANYONE IN ANY JURISDICTION IN WHICH SUCH OFFER OR SOLICITATION IS NOT
AUTHORIZED OR IN WHICH THE PERSON MAKING SUCH OFFER OR SOLICITATION IS NOT
QUALIFIED TO DO SO OR TO ANY PERSON TO WHOM IT IS UNLAWFUL TO MAKE SUCH OFFER OR
SOLICITATION. NEITHER THE DELIVERY OF THIS PROSPECTUS NOR ANY SALE MADE
HEREUNDER SHALL, UNDER ANY CIRCUMSTANCES, CREATE ANY IMPLICATION THAT THERE HAS
BEEN NO CHANGE IN THE AFFAIRS OF THE COMPANY SINCE THE DATE HEREOF OR THAT THE
INFORMATION CONTAINED HEREIN IS CORRECT AS OF ANY TIME SUBSEQUENT TO THE DATE
HEREOF.
-------------------
TABLE OF CONTENTS
<TABLE>
<CAPTION>
PAGE
<S> <C>
Prospectus Summary.................................. 3
Risk Factors........................................ 9
Transactions........................................ 12
Use of Proceeds..................................... 15
Capitalization...................................... 16
Business............................................ 17
Description of Notes................................ 23
Description of Other Indebtedness................... 48
Underwriting........................................ 52
Experts............................................. 53
Legal Matters....................................... 53
Incorporation of Certain Documents By Reference..... 53
Available Information............................... 54
</TABLE>
$150,000,000
JACOR COMMUNICATIONS
COMPANY
GUARANTEED BY
[LOGO]
% SENIOR SUBORDINATED
NOTES DUE 2006
-----------------
PROSPECTUS
-----------------
DONALDSON, LUFKIN & JENRETTE
SECURITIES CORPORATION
MERRILL LYNCH & CO.
, 1996
- ----------------------------------------------
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- ----------------------------------------------
----------------------------------------------
<PAGE>
PART II
INFORMATION NOT REQUIRED IN THE PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
The following is an itemized statement of the fees and expenses (all but the
SEC and NASD fees are estimates) in connection with the issuance and
distribution of the shares of Common Stock being registered hereunder. All such
fees and expenses shall be borne by the Company.
<TABLE>
<S> <C>
SEC Registration fees............................................. $ 45,455
NASD fee.......................................................... $ 15,500
Blue Sky fees and expenses........................................ $ 15,000
Printing and engraving expenses................................... $ 200,000
Transfer agent and registrar fee and expenses..................... $ 5,000
Attorneys' fees and expenses...................................... $ 245,000
Accounting fees and expenses...................................... $ 125,000
Miscellaneous..................................................... $ 4,045
---------
Total..................................................... $ 655,000
---------
---------
</TABLE>
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Jacor, being incorporated under the General Corporation Law of the State of
Delaware, is empowered by Section 145 of such law ("Statute"), subject to the
procedures and limitations stated in the Statute, to indemnify any person
("Indemnitee") against expenses (including attorneys' fees), judgments, fines
and amounts paid in settlement actually and reasonably incurred by the
Indemnitee in connection with any threatened, pending or completed action, suit
or proceeding to which an Indemnitee is made a party or threatened to be made a
party by reason of the Indemnitee's being or having been a director, officer,
employee or agent of Jacor or a director, officer, employee or agent of another
corporation, partnership, joint venture, trust or other enterprise at the
request of Jacor. The Statute provides that indemnification pursuant to its
provisions is not exclusive of other rights of indemnification to which a person
may be entitled under any bylaw, agreement, vote of stockholders or
disinterested directors or otherwise. The Statute also provides that Jacor may
purchase insurance on behalf of any director, officer, employee or agent.
Article Sixth of Jacor's Certificate of Incorporation contains provisions
permitted by Section 102 of the General Corporation Law of the State of Delaware
which eliminate personal liability of members of its board of directors for
violations of their fiduciary duty of care. Neither the Delaware General
Corporation Law nor the Certificate of Incorporation, however, limits the
liability of a director for breaching such director's duty of loyalty, failing
to act in good faith, engaging in intentional misconduct or knowingly violating
a law, paying a dividend or approving a stock repurchase under circumstances
where such payment or repurchase is not permitted under the Statute, or
obtaining an improper personal benefit.
Article 8 of Jacor's Bylaws provides that Jacor is obligated to indemnify an
Indemnitee in each and every situation where Jacor is obligated to make such
indemnification pursuant to the Statute. Jacor must also indemnify an Indemnitee
in each and every situation where, under the Statute, Jacor is not obligated but
is nevertheless permitted or empowered to make such indemnification. However,
before making such indemnification with respect to any situation covered by the
preceding sentence, (i) Jacor shall promptly make or cause to be made, by any of
the methods referred to in subsection (d) of the Statute, a determination as to
whether the Indemnitee acted in good faith and in a manner such indemnitee
reasonably believed to be in or not opposed to the best interests of Jacor, and,
in the case of any criminal action or proceeding, had no reasonable cause to
believe that such Indemnitee's conduct was unlawful and (ii) no such
indemnification shall be made unless it is determined that such Indemnitee acted
in good faith and in a manner such Indemnitee reasonably believed to be in or
not opposed to the best interests of Jacor, and, in the case of any criminal
action or proceeding, had no reasonable cause to believe that such Indemnitee's
conduct was unlawful.
II-1
<PAGE>
Pursuant to authority contained in its Bylaws, Jacor maintains in force a
standard directors' and officers' liability insurance policy providing a
coverage of $10,000,000 against liability incurred by any director or officer in
his or her capacity as such.
The preceding discussion of the Statute and Jacor's Certificate of
Incorporation and Bylaws is not intended to be exhaustive and is qualified in
its entirety by reference to the complete texts of Jacor's Certificate of
Incorporation and Bylaws and to the Statute.
ITEM 16. EXHIBITS.
See Index to Exhibits.
ITEM 17. UNDERTAKINGS.
Insofar as indemnification for liabilities arising under the Securities Act
may be permitted to directors, officers and controlling persons of the
Registrant pursuant to the foregoing provisions described under Item 15 above,
or otherwise, the Registrant has been advised that in the opinion of the
Securities and Exchange Commission such indemnification is against public policy
as expressed in the Securities Act and is, therefore, unenforceable. In the
event that a claim for indemnification against such liabilities (other than the
payment by the Registrant of expenses incurred or paid by a director, officer or
controlling person of the Registrant in the successful defense of any action,
suit or proceeding) is asserted by such director, officer or controlling person
in connection with the securities being registered, the Registrant will, unless
in the opinion of its counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the question whether
such indemnification by it is against public policy as expressed in the
Securities Act and will be governed by the final adjudication of such issue.
The undersigned registrant hereby undertakes:
(1) That, for purposes of determining any liability under the Securities
Act, the information omitted from the form of Prospectus filed as part of this
Registration Statement in reliance upon Rule 430A and contained in a form of
Prospectus filed by the Registrant pursuant to Rule 424(b)(1) or (4) or 497(h)
under the Securities Act shall be deemed to be part of this Registration
Statement as of the time it was declared effective; and
(2) That, for the purpose of determining any liability under the Securities
Act, each post-effective amendment that contains a form of prospectus shall be
deemed to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed to be
the initial bona fide offering thereof.
(3) That, for purposes of determining any liability under the Securities
Act, each filing of the Registrant's annual report pursuant to Section 13(a) or
15(d) of the Exchange Act (and, where applicable, each filing of an employee
benefit plan's annual report pursuant to Section 15(d) of the Exchange Act) that
is incorporated by reference in this Registration Statement shall be deemed to
be a new registration statement relating to the securities offered therein, and
the offering of such securities at that time shall be deemed to be the initial
bona fide offering thereof.
II-2
<PAGE>
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, THE REGISTRANT
CERTIFIES THAT IT HAS REASONABLE GROUNDS TO BELIEVE THAT IT MEETS ALL OF THE
REQUIREMENTS FOR FILING ON FORM S-3 AND HAS DULY CAUSED THIS AMENDMENT NO. 2 TO
REGISTRATION STATEMENT NO. 333-16469 TO BE SIGNED ON ITS BEHALF BY THE
UNDERSIGNED, THEREUNTO DULY AUTHORIZED, IN THE CITY OF CINCINNATI, STATE OF
OHIO, ON THIS 12TH DAY OF DECEMBER, 1996.
JACOR COMMUNICATIONS, INC.
By /s/ R. Christopher Weber
------------------------------------------
R. Christopher Weber
SENIOR VICE PRESIDENT,
CHIEF FINANCIAL OFFICER AND SECRETARY
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, AS AMENDED, THIS
AMENDMENT NO. 2 TO REGISTRATION STATEMENT NO. 333-16469 HAS BEEN SIGNED ON
DECEMBER 12, 1996 BY THE FOLLOWING PERSONS IN THE CAPACITIES INDICATED.
Principal Executive Officer: Principal Financial and Accounting
Officer:
/s/ Randy Michaels* /s/ R. Christopher Weber
- -------------------------------------- --------------------------------------
Randy Michaels R. Christopher Weber
CHIEF EXECUTIVE OFFICER AND DIRECTOR SENIOR VICE PRESIDENT, CHIEF FINANCIAL
OFFICER AND SECRETARY
/s/ Robert L. Lawrence* /s/ Rod F. Dammeyer*
- -------------------------------------- --------------------------------------
Robert L. Lawrence Rod F. Dammeyer
PRESIDENT, CHIEF OPERATING OFFICER AND DIRECTOR
DIRECTOR
/s/ Sheli Z. Rosenberg* /s/ F. Philip Handy*
- -------------------------------------- --------------------------------------
Sheli Z. Rosenberg F. Philip Handy
BOARD CHAIR AND DIRECTOR DIRECTOR
/s/ John W. Alexander /s/ Marc Lasry
- -------------------------------------- --------------------------------------
John W. Alexander Marc Lasry
DIRECTOR DIRECTOR
*By: /s/ Jon M. Berry
-------------------------
Jon M. Berry
AS ATTORNEY-IN-FACT,
PURSUANT TO A POWER OF
ATTORNEY PREVIOUSLY
FILED.
II-3
<PAGE>
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, THE REGISTRANT
CERTIFIES THAT IT HAS REASONABLE GROUNDS TO BELIEVE THAT IT MEETS ALL OF THE
REQUIREMENTS FOR FILING ON FORM S-3 AND HAS DULY CAUSED THIS AMENDMENT NO. 2 TO
REGISTRATION STATEMENT NO. 333-16469 TO BE SIGNED ON ITS BEHALF BY THE
UNDERSIGNED, THEREUNTO DULY AUTHORIZED, IN THE CITY OF CINCINNATI, STATE OF
OHIO, ON THIS 12TH DAY OF DECEMBER, 1996.
JACOR COMMUNICATIONS COMPANY
By /s/ R. Christopher Weber
------------------------------------------
R. Christopher Weber
SENIOR VICE PRESIDENT
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, AS AMENDED, THIS
AMENDMENT NO. 2 TO REGISTRATION STATEMENT NO. 333-16469 HAS BEEN SIGNED ON
DECEMBER 12, 1996 BY THE FOLLOWING PERSONS IN THE CAPACITIES INDICATED.
Principal Executive Officer: Principal Financial and Accounting
Officer:
/s/ Randy Michaels* /s/ R. Christopher Weber
- -------------------------------------- --------------------------------------
Randy Michaels R. Christopher Weber
PRESIDENT SENIOR VICE PRESIDENT, CHIEF FINANCIAL
OFFICER AND DIRECTOR
*By: /s/ Jon M. Berry /s/ Jon M. Berry
------------------------------ -------------------------------------------
Jon M. Berry Jon M. Berry
AS ATTORNEY-IN-FACT, PURSUANT DIRECTOR
TO A POWER OF ATTORNEY
PREVIOUSLY FILED.
II-4
<PAGE>
Pursuant to the requirements of the Securities Act of 1933, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-3 and has duly caused this Amendment No. 2 to
Registration Statement No. 333-16469 to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of Cincinnati, State of
Ohio, on this 12th day of December, 1996.
GREAT AMERICAN MERCHANDISING GROUP, INC.
By: /s/ R. Christopher Weber
------------------------------------------
R. Christopher Weber
SENIOR VICE PRESIDENT AND ASSISTANT
SECRETARY
Pursuant to the requirements of the Securities Act of 1933, as amended, this
Amendment No. 2 to Registration Statement No. 333-16469 has been signed on
December 12, 1996 by the following persons in the capacities indicated.
Principal Executive Officer: Principal Financial and Accounting
Officer:
/s/ Randy Michaels* /s/ Jon M. Berry
- -------------------------------------- --------------------------------------
Randy Michaels Jon M. Berry
PRESIDENT TREASURER AND DIRECTOR
*By: /s/ Jon M. Berry
-------------------------
Jon M. Berry
AS ATTORNEY-IN-FACT,
PURSUANT TO A POWER OF
ATTORNEY FILED HEREWITH.
II-5
<PAGE>
Pursuant to the requirements of the Securities Act of 1933, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-3 and has duly caused this Amendment No. 2 to
Registration Statement No. 333-16469 to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of Cincinnati, State of
Ohio, on this 12th day of December, 1996.
CINE GUARANTORS II, INC.
By: /s/ R. Christopher Weber
------------------------------------------
R. Christopher Weber
SENIOR VICE PRESIDENT AND ASSISTANT
SECRETARY
Pursuant to the requirements of the Securities Act of 1933, as amended, this
Amendment No. 2 to Registration Statement No. 333-16469 has been signed on
December 12, 1996 by the following persons in the capacities indicated.
Principal Executive Officer: Principal Financial and Accounting
Officer:
/s/ Randy Michaels* /s/ Jon M. Berry
- -------------------------------------- --------------------------------------
Randy Michaels Jon M. Berry
PRESIDENT TREASURER AND DIRECTOR
*By: /s/ Jon M. Berry
-------------------------
Jon M. Berry
AS ATTORNEY-IN-FACT,
PURSUANT TO A POWER OF
ATTORNEY FILED HEREWITH.
II-6
<PAGE>
Pursuant to the requirements of the Securities Act of 1933, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-3 and has duly caused this Amendment No. 2 to
Registration Statement No. 333-16469 to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of Cincinnati, State of
Ohio, on this 12th day of December, 1996.
GREAT AMERICAN TELEVISION PRODUCTIONS, INC.
By: /s/ R. Christopher Weber
------------------------------------------
R. Christopher Weber
SENIOR VICE PRESIDENT AND ASSISTANT
SECRETARY
Pursuant to the requirements of the Securities Act of 1933, as amended, this
Amendment No. 2 to Registration Statement No. 333-16469 has been signed on
December 12, 1996 by the following persons in the capacities indicated.
Principal Executive Officer: Principal Financial and Accounting
Officer:
/s/ Randy Michaels* /s/ Jon M. Berry
- -------------------------------------- --------------------------------------
Randy Michaels Jon M. Berry
PRESIDENT TREASURER AND DIRECTOR
*By: /s/ Jon M. Berry
-------------------------
Jon M. Berry
AS ATTORNEY-IN-FACT,
PURSUANT TO A POWER OF
ATTORNEY FILED HEREWITH.
II-7
<PAGE>
Pursuant to the requirements of the Securities Act of 1933, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-3 and has duly caused this Amendment No. 2 to
Registration Statement No. 333-16469 to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of Cincinnati, State of
Ohio, on this 12th day of December, 1996.
CINE GUARANTORS, INC.
By: /s/ R. Christopher Weber
------------------------------------------
R. Christopher Weber
SENIOR VICE PRESIDENT AND ASSISTANT
SECRETARY
Pursuant to the requirements of the Securities Act of 1933, as amended, this
Amendment No. 2 to Registration Statement No. 333-16469 has been signed on
December 12, 1996 by the following persons in the capacities indicated.
Principal Executive Officer: Principal Financial and Accounting
Officer:
/s/ Randy Michaels* /s/ Jon M. Berry
- -------------------------------------- --------------------------------------
Randy Michaels Jon M. Berry
PRESIDENT TREASURER AND DIRECTOR
*By: /s/ Jon M. Berry
-------------------------
Jon M. Berry
AS ATTORNEY-IN-FACT,
PURSUANT TO A POWER OF
ATTORNEY FILED HEREWITH.
II-8
<PAGE>
Pursuant to the requirements of the Securities Act of 1933, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-3 and has duly caused this Amendment No. 2 to
Registration Statement No. 333-16469 to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of Cincinnati, State of
Ohio, on this 12th day of December, 1996.
GACC-340, INC.
By: /s/ R. Christopher Weber
------------------------------------------
R. Christopher Weber
SENIOR VICE PRESIDENT AND ASSISTANT
SECRETARY
Pursuant to the requirements of the Securities Act of 1933, as amended, this
Amendment No. 2 to Registration Statement No. 333-16469 has been signed on
December 12, 1996 by the following persons in the capacities indicated.
Principal Executive Officer: Principal Financial and Accounting
Officer:
/s/ Randy Michaels* /s/ Jon M. Berry
- -------------------------------------- --------------------------------------
Randy Michaels Jon M. Berry
PRESIDENT TREASURER AND DIRECTOR
*By: /s/ Jon M. Berry
-------------------------
Jon M. Berry
AS ATTORNEY-IN-FACT,
PURSUANT TO A POWER OF
ATTORNEY FILED HEREWITH.
II-9
<PAGE>
Pursuant to the requirements of the Securities Act of 1933, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-3 and has duly caused this Amendment No. 2 to
Registration Statement No. 333-16469 to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of Cincinnati, State of
Ohio, on this 12th day of December, 1996.
GACC-N26LB, INC.
By: /s/ R. Christopher Weber
------------------------------------------
R. Christopher Weber
SENIOR VICE PRESIDENT AND ASSISTANT
SECRETARY
Pursuant to the requirements of the Securities Act of 1933, as amended, this
Amendment No. 2 to Registration Statement No. 333-16469 has been signed on
December 12, 1996 by the following persons in the capacities indicated.
Principal Executive Officer: Principal Financial and Accounting
Officer:
/s/ Randy Michaels* /s/ Jon M. Berry
- -------------------------------------- --------------------------------------
Randy Michaels Jon M. Berry
PRESIDENT TREASURER AND DIRECTOR
*By: /s/ Jon M. Berry
-------------------------
Jon M. Berry
AS ATTORNEY-IN-FACT,
PURSUANT TO A POWER OF
ATTORNEY FILED HEREWITH.
II-10
<PAGE>
Pursuant to the requirements of the Securities Act of 1933, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-3 and has duly caused this Amendment No. 2 to
Registration Statement No. 333-16469 to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of Cincinnati, State of
Ohio, on this 12th day of December, 1996.
CITICASTERS CO.
By: /s/ R. Christopher Weber
------------------------------------------
R. Christopher Weber
SENIOR VICE PRESIDENT AND ASSISTANT
SECRETARY
Pursuant to the requirements of the Securities Act of 1933, as amended, this
Amendment No. 2 to Registration Statement No. 333-16469 has been signed on
December 12, 1996 by the following persons in the capacities indicated.
Principal Executive Officer: Principal Financial and Accounting
Officer:
/s/ Randy Michaels* /s/ Jon M. Berry
- -------------------------------------- --------------------------------------
Randy Michaels Jon M. Berry
PRESIDENT TREASURER AND DIRECTOR
/s/ R. Christopher Weber
--------------------------------------
R. Christopher Weber
DIRECTOR
*By: /s/ Jon M. Berry
-------------------------
Jon M. Berry
AS ATTORNEY-IN-FACT,
PURSUANT TO A POWER OF
ATTORNEY FILED HEREWITH.
II-11
<PAGE>
Pursuant to the requirements of the Securities Act of 1933, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-3 and has duly caused this Amendment No. 2 to
Registration Statement No. 333-16469 to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of Cincinnati, State of
Ohio, on this 12th day of December, 1996.
SPORTS RADIO BROADCASTING, INC.
By: /s/ R. Christopher Weber
------------------------------------------
R. Christopher Weber
SENIOR VICE PRESIDENT AND ASSISTANT
SECRETARY
Pursuant to the requirements of the Securities Act of 1933, as amended, this
Amendment No. 2 to Registration Statement No. 333-16469 has been signed on
December 12, 1996 by the following persons in the capacities indicated.
Principal Executive Officer: Principal Financial and Accounting
Officer:
/s/ Randy Michaels* /s/ Jon M. Berry
- -------------------------------------- --------------------------------------
Randy Michaels Jon M. Berry
PRESIDENT TREASURER AND DIRECTOR
*By: /s/ Jon M. Berry
-------------------------
Jon M. Berry
AS ATTORNEY-IN-FACT,
PURSUANT TO A POWER OF
ATTORNEY FILED HEREWITH.
II-12
<PAGE>
Pursuant to the requirements of the Securities Act of 1933, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-3 and has duly caused this Amendment No. 2 to
Registration Statement No. 333-16469 to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of Cincinnati, State of
Ohio, on this 12th day of December, 1996.
NOBRO, S.C.
By: /s/ R. Christopher Weber
------------------------------------------
R. Christopher Weber
TREASURER
Pursuant to the requirements of the Securities Act of 1933, as amended, this
Amendment No. 2 to Registration Statement No. 333-16469 has been signed on
December 12, 1996 by the following persons in the capacities indicated.
Principal Executive Officer: Principal Financial and Accounting
Officer:
/s/ Randy Michaels* /s/ R. Christopher Weber
- -------------------------------------- --------------------------------------
Randy Michaels R. Christopher Weber
PRESIDENT AND DIRECTOR TREASURER AND DIRECTOR
/s/ Jon M. Berry
--------------------------------------
Jon M. Berry
DIRECTOR
*By: /s/ Jon M. Berry
-------------------------
Jon M. Berry
AS ATTORNEY-IN-FACT,
PURSUANT TO A POWER OF
ATTORNEY FILED HEREWITH.
II-13
<PAGE>
Pursuant to the requirements of the Securities Act of 1933, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-3 and has duly caused this Amendment No. 2 to
Registration Statement No. 333-16469 to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of Cincinnati, State of
Ohio, on this 12th day of December, 1996.
SPORTS RADIO, INC.
By: /s/ R. Christopher Weber
------------------------------------------
R. Christopher Weber
SENIOR VICE PRESIDENT AND ASSISTANT
SECRETARY
Pursuant to the requirements of the Securities Act of 1933, as amended, this
Amendment No. 2 to Registration Statement No. 333-16469 has been signed on
December 12, 1996 by the following persons in the capacities indicated.
Principal Executive Officer: Principal Financial and Accounting
Officer:
/s/ Randy Michaels* /s/ Jon M. Berry
- -------------------------------------- --------------------------------------
Randy Michaels Jon M. Berry
PRESIDENT TREASURER AND DIRECTOR
*By: /s/ Jon M. Berry
-------------------------
Jon M. Berry
AS ATTORNEY-IN-FACT,
PURSUANT TO A POWER OF
ATTORNEY FILED HEREWITH.
II-14
<PAGE>
Pursuant to the requirements of the Securities Act of 1933, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-3 and has duly caused this Amendment No. 2 to
Registration Statement No. 333-16469 to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of Cincinnati, State of
Ohio, on this 12th day of December, 1996.
NOBLE BROADCAST CENTER, INC.
By: /s/ R. Christopher Weber
------------------------------------------
R. Christopher Weber
SENIOR VICE PRESIDENT AND ASSISTANT
SECRETARY
Pursuant to the requirements of the Securities Act of 1933, as amended, this
Amendment No. 2 to Registration Statement No. 333-16469 has been signed on
December 12, 1996 by the following persons in the capacities indicated.
Principal Executive Officer: Principal Financial and Accounting
Officer:
/s/ Randy Michaels* /s/ Jon M. Berry
- -------------------------------------- --------------------------------------
Randy Michaels Jon M. Berry
PRESIDENT TREASURER AND DIRECTOR
*By: /s/ Jon M. Berry
-------------------------
Jon M. Berry
AS ATTORNEY-IN-FACT,
PURSUANT TO A POWER OF
ATTORNEY FILED HEREWITH.
II-15
<PAGE>
Pursuant to the requirements of the Securities Act of 1933, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-3 and has duly caused this Amendment No. 2 to
Registration Statement No. 333-16469 to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of Cincinnati, State of
Ohio, on this 12th day of December, 1996.
JACOR BROADASTING CORPORATION
By: /s/ R. Christopher Weber
------------------------------------------
R. Christopher Weber
SENIOR VICE PRESIDENT AND ASSISTANT
SECRETARY
Pursuant to the requirements of the Securities Act of 1933, as amended, this
Amendment No. 2 to Registration Statement No. 333-16469 has been signed on
December 12, 1996 by the following persons in the capacities indicated.
Principal Executive Officer: Principal Financial and Accounting
Officer:
/s/ Randy Michaels* /s/ Jon M. Berry
- -------------------------------------- --------------------------------------
Randy Michaels Jon M. Berry
PRESIDENT TREASURER AND DIRECTOR
/s/ R. Christopher Weber
--------------------------------------
R. Christopher Weber
DIRECTOR
*By: /s/ Jon M. Berry
-------------------------
Jon M. Berry
AS ATTORNEY-IN-FACT,
PURSUANT TO A POWER OF
ATTORNEY FILED HEREWITH.
II-16
<PAGE>
Pursuant to the requirements of the Securities Act of 1933, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-3 and has duly caused this Amendment No. 2 to
Registration Statement No. 333-16469 to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of Cincinnati, State of
Ohio, on this 12th day of December, 1996.
BROADCAST FINANCE, INC.
By: /s/ R. Christopher Weber
------------------------------------------
R. Christopher Weber
SENIOR VICE PRESIDENT AND ASSISTANT
SECRETARY
Pursuant to the requirements of the Securities Act of 1933, as amended, this
Amendment No. 2 to Registration Statement No. 333-16469 has been signed on
December 12, 1996 by the following persons in the capacities indicated.
Principal Executive Officer: Principal Financial and Accounting
Officer:
/s/ Randy Michaels* /s/ Jon M. Berry
- -------------------------------------- --------------------------------------
Randy Michaels Jon M. Berry
PRESIDENT TREASURER AND DIRECTOR
/s/ R. Christopher Weber
--------------------------------------
R. Christopher Weber
DIRECTOR
*By: /s/ Jon M. Berry
-------------------------
Jon M. Berry
AS ATTORNEY-IN-FACT,
PURSUANT TO A POWER OF
ATTORNEY FILED HEREWITH.
II-17
<PAGE>
Pursuant to the requirements of the Securities Act of 1933, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-3 and has duly caused this Amendment No. 2 to
Registration Statement No. 333-16469 to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of Cincinnati, State of
Ohio, on this 12th day of December, 1996.
JACOR BROADCASTING OF FLORIDA, INC.
By: /s/ R. Christopher Weber
------------------------------------------
R. Christopher Weber
SENIOR VICE PRESIDENT AND ASSISTANT
SECRETARY
Pursuant to the requirements of the Securities Act of 1933, as amended, this
Amendment No. 2 to Registration Statement No. 333-16469 has been signed on
December 12, 1996 by the following persons in the capacities indicated.
Principal Executive Officer: Principal Financial and Accounting
Officer:
/s/ Randy Michaels* /s/ Jon M. Berry
- -------------------------------------- --------------------------------------
Randy Michaels Jon M. Berry
PRESIDENT AND DIRECTOR TREASURER AND DIRECTOR
*By: /s/ Jon M. Berry
-------------------------
Jon M. Berry
AS ATTORNEY-IN-FACT,
PURSUANT TO A POWER OF
ATTORNEY FILED HEREWITH.
II-18
<PAGE>
Pursuant to the requirements of the Securities Act of 1933, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-3 and has duly caused this Amendment No. 2 to
Registration Statement No. 333-16469 to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of Cincinnati, State of
Ohio, on this 12th day of December, 1996.
JACOR BROADCASTING OF ATLANTA, INC.
By: /s/ R. Christopher Weber
------------------------------------------
R. Christopher Weber
SENIOR VICE PRESIDENT AND ASSISTANT
SECRETARY
Pursuant to the requirements of the Securities Act of 1933, as amended, this
Amendment No. 2 to Registration Statement No. 333-16469 has been signed on
December 12, 1996 by the following persons in the capacities indicated.
Principal Executive Officer: Principal Financial and Accounting
Officer:
/s/ Randy Michaels* /s/ Jon M. Berry
- -------------------------------------- --------------------------------------
Randy Michaels Jon M. Berry
PRESIDENT TREASURER AND DIRECTOR
*By: /s/ Jon M. Berry
-------------------------
Jon M. Berry
AS ATTORNEY-IN-FACT,
PURSUANT TO A POWER OF
ATTORNEY FILED HEREWITH.
II-19
<PAGE>
Pursuant to the requirements of the Securities Act of 1933, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-3 and has duly caused this Amendment No. 2 to
Registration Statement No. 333-16469 to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of Cincinnati, State of
Ohio, on this 12th day of December, 1996.
JACOR BROADCASTING OF COLORADO, INC.
By: /s/ R. Christopher Weber
------------------------------------------
R. Christopher Weber
SENIOR VICE PRESIDENT AND ASSISTANT
SECRETARY
Pursuant to the requirements of the Securities Act of 1933, as amended, this
Amendment No. 2 to Registration Statement No. 333-16469 has been signed on
December 12, 1996 by the following persons in the capacities indicated.
Principal Executive Officer: Principal Financial and Accounting
Officer:
/s/ Randy Michaels* /s/ Jon M. Berry
- -------------------------------------- --------------------------------------
Randy Michaels Jon M. Berry
PRESIDENT TREASURER AND DIRECTOR
*By: /s/ Jon M. Berry
-------------------------
Jon M. Berry
AS ATTORNEY-IN-FACT,
PURSUANT TO A POWER OF
ATTORNEY FILED HEREWITH.
II-20
<PAGE>
Pursuant to the requirements of the Securities Act of 1933, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-3 and has duly caused this Amendment No. 2 to
Registration Statement No. 333-16469 to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of Cincinnati, State of
Ohio, on this 12th day of December, 1996.
JACOR BROADCASTING OF LEXINGTON, INC.
By: /s/ R. Christopher Weber
------------------------------------------
R. Christopher Weber
SENIOR VICE PRESIDENT AND ASSISTANT
SECRETARY
Pursuant to the requirements of the Securities Act of 1933, as amended, this
Amendment No. 2 to Registration Statement No. 333-16469 has been signed on
December 12, 1996 by the following persons in the capacities indicated.
Principal Executive Officer: Principal Financial and Accounting
Officer:
/s/ Randy Michaels* /s/ Jon M. Berry
- -------------------------------------- --------------------------------------
Randy Michaels Jon M. Berry
PRESIDENT TREASURER AND DIRECTOR
*By: /s/ Jon M. Berry
-------------------------
Jon M. Berry
AS ATTORNEY-IN-FACT,
PURSUANT TO A POWER OF
ATTORNEY FILED HEREWITH.
II-21
<PAGE>
Pursuant to the requirements of the Securities Act of 1933, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-3 and has duly caused this Amendment No. 2 to
Registration Statement No. 333-16469 to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of Cincinnati, State of
Ohio, on this 12th day of December, 1996.
JACOR BROADCASTING OF KNOXVILLE, INC.
By: /s/ R. Christopher Weber
------------------------------------------
R. Christopher Weber
SENIOR VICE PRESIDENT AND ASSISTANT
SECRETARY
Pursuant to the requirements of the Securities Act of 1933, as amended, this
Amendment No. 2 to Registration Statement No. 333-16469 has been signed on
December 12, 1996 by the following persons in the capacities indicated.
Principal Executive Officer: Principal Financial and Accounting
Officer:
/s/ Randy Michaels* /s/ Jon M. Berry
- -------------------------------------- --------------------------------------
Randy Michaels Jon M. Berry
PRESIDENT TREASURER AND DIRECTOR
*By: /s/ Jon M. Berry
-------------------------
Jon M. Berry
AS ATTORNEY-IN-FACT,
PURSUANT TO A POWER OF
ATTORNEY FILED HEREWITH.
II-22
<PAGE>
Pursuant to the requirements of the Securities Act of 1933, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-3 and has duly caused this Amendment No. 2 to
Registration Statement No. 333-16469 to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of Cincinnati, State of
Ohio, on this 12th day of December, 1996.
GEORGIA NETWORK EQUIPMENT, INC.
By: /s/ R. Christopher Weber
------------------------------------------
R. Christopher Weber
SENIOR VICE PRESIDENT AND ASSISTANT
SECRETARY
Pursuant to the requirements of the Securities Act of 1933, as amended, this
Amendment No. 2 to Registration Statement No. 333-16469 has been signed on
December 12, 1996 by the following persons in the capacities indicated.
Principal Executive Officer: Principal Financial and Accounting
Officer:
/s/ Randy Michaels* /s/ Jon M. Berry
- -------------------------------------- --------------------------------------
Randy Michaels Jon M. Berry
PRESIDENT TREASURER AND DIRECTOR
*By: /s/ Jon M. Berry
-------------------------
Jon M. Berry
AS ATTORNEY-IN-FACT,
PURSUANT TO A POWER OF
ATTORNEY FILED HEREWITH.
II-23
<PAGE>
Pursuant to the requirements of the Securities Act of 1933, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-3 and has duly caused this Amendment No. 2 to
Registration Statement No. 333-16469 to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of Cincinnati, State of
Ohio, on this 12th day of December, 1996.
JACOR BROADCASTING OF TAMPA BAY, INC.
By: /s/ R. Christopher Weber
------------------------------------------
R. Christopher Weber
SENIOR VICE PRESIDENT AND ASSISTANT
SECRETARY
Pursuant to the requirements of the Securities Act of 1933, as amended, this
Amendment No. 2 to Registration Statement No. 333-16469 has been signed on
December 12, 1996 by the following persons in the capacities indicated.
Principal Executive Officer: Principal Financial and Accounting
Officer:
/s/ Randy Michaels* /s/ Jon M. Berry
- -------------------------------------- --------------------------------------
Randy Michaels Jon M. Berry
PRESIDENT TREASURER AND DIRECTOR
*By: /s/ Jon M. Berry
-------------------------
Jon M. Berry
AS ATTORNEY-IN-FACT,
PURSUANT TO A POWER OF
ATTORNEY FILED HEREWITH.
II-24
<PAGE>
Pursuant to the requirements of the Securities Act of 1933, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-3 and has duly caused this Amendment No. 2 to
Registration Statement No. 333-16469 to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of Cincinnati, State of
Ohio, on this 12th day of December, 1996.
JACOR CABLE, INC.
By: /s/ R. Christopher Weber
------------------------------------------
R. Christopher Weber
SENIOR VICE PRESIDENT AND ASSISTANT
SECRETARY
Pursuant to the requirements of the Securities Act of 1933, as amended, this
Amendment No. 2 to Registration Statement No. 333-16469 has been signed on
December 12, 1996 by the following persons in the capacities indicated.
Principal Executive Officer: Principal Financial and Accounting
Officer:
/s/ Randy Michaels* /s/ Jon M. Berry
- -------------------------------------- --------------------------------------
Randy Michaels Jon M. Berry
PRESIDENT TREASURER AND DIRECTOR
*By: /s/ Jon M. Berry
-------------------------
Jon M. Berry
AS ATTORNEY-IN-FACT,
PURSUANT TO A POWER OF
ATTORNEY FILED HEREWITH.
II-25
<PAGE>
Pursuant to the requirements of the Securities Act of 1933, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-3 and has duly caused this Amendment No. 2 to
Registration Statement No. 333-16469 to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of Cincinnati, State of
Ohio, on this 12th day of December, 1996.
JACOR BROADCASTING OF SAN DIEGO, INC.
By: /s/ R. Christopher Weber
------------------------------------------
R. Christopher Weber
SENIOR VICE PRESIDENT AND ASSISTANT
SECRETARY
Pursuant to the requirements of the Securities Act of 1933, as amended, this
Amendment No. 2 to Registration Statement No. 333-16469 has been signed on
December 12, 1996 by the following persons in the capacities indicated.
Principal Executive Officer: Principal Financial and Accounting
Officer:
/s/ Randy Michaels* /s/ Jon M. Berry
- -------------------------------------- --------------------------------------
Randy Michaels Jon M. Berry
PRESIDENT TREASURER AND DIRECTOR
/s/ R. Christopher Weber
--------------------------------------
R. Christopher Weber
DIRECTOR
*By: /s/ Jon M. Berry
-------------------------
Jon M. Berry
AS ATTORNEY-IN-FACT,
PURSUANT TO A POWER OF
ATTORNEY FILED HEREWITH.
II-26
<PAGE>
Pursuant to the requirements of the Securities Act of 1933, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-3 and has duly caused this Amendment No. 2 to
Registration Statement No. 333-16469 to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of Cincinnati, State of
Ohio, on this 12th day of December, 1996.
JACOR BROADCASTING OF ST. LOUIS, INC.
By: /s/ R. Christopher Weber
------------------------------------------
R. Christopher Weber
SENIOR VICE PRESIDENT AND ASSISTANT
SECRETARY
Pursuant to the requirements of the Securities Act of 1933, as amended, this
Amendment No. 2 to Registration Statement No. 333-16469 has been signed on
December 12, 1996 by the following persons in the capacities indicated.
Principal Executive Officer: Principal Financial and Accounting
Officer:
/s/ Randy Michaels* /s/ Jon M. Berry
- -------------------------------------- --------------------------------------
Randy Michaels Jon M. Berry
PRESIDENT TREASURER AND DIRECTOR
/s/ R. Christopher Weber
--------------------------------------
R. Christopher Weber
DIRECTOR
*By: /s/ Jon M. Berry
-------------------------
Jon M. Berry
AS ATTORNEY-IN-FACT,
PURSUANT TO A POWER OF
ATTORNEY FILED HEREWITH.
II-27
<PAGE>
Pursuant to the requirements of the Securities Act of 1933, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-3 and has duly caused this Amendment No. 2 to
Registration Statement No. 333-16469 to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of Cincinnati, State of
Ohio, on this 12th day of December, 1996.
JACOR BROADCASTING OF SARASOTA, INC.
By: /s/ R. Christopher Weber
------------------------------------------
R. Christopher Weber
SENIOR VICE PRESIDENT AND ASSISTANT
SECRETARY
Pursuant to the requirements of the Securities Act of 1933, as amended, this
Amendment No. 2 to Registration Statement No. 333-16469 has been signed on
December 12, 1996 by the following persons in the capacities indicated.
Principal Executive Officer: Principal Financial and Accounting
Officer:
/s/ Randy Michaels* /s/ Jon M. Berry
- -------------------------------------- --------------------------------------
Randy Michaels Jon M. Berry
PRESIDENT TREASURER AND DIRECTOR
/s/ R. Christopher Weber
--------------------------------------
R. Christopher Weber
DIRECTOR
*By: /s/ Jon M. Berry
-------------------------
Jon M. Berry
AS ATTORNEY-IN-FACT,
PURSUANT TO A POWER OF
ATTORNEY FILED HEREWITH.
II-28
<PAGE>
Pursuant to the requirements of the Securities Act of 1933, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-3 and has duly caused this Amendment No. 2 to
Registration Statement No. 333-16469 to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of Cincinnati, State of
Ohio, on this 12th day of December, 1996.
JACOR BROADCASTING OF IDAHO, INC.
By: /s/ R. Christopher Weber
------------------------------------------
R. Christopher Weber
SENIOR VICE PRESIDENT AND ASSISTANT
SECRETARY
Pursuant to the requirements of the Securities Act of 1933, as amended, this
Amendment No. 2 to Registration Statement No. 333-16469 has been signed on
December 12, 1996 by the following persons in the capacities indicated.
Principal Executive Officer: Principal Financial and Accounting
Officer:
/s/ Randy Michaels* /s/ Jon M. Berry
- -------------------------------------- --------------------------------------
Randy Michaels Jon M. Berry
PRESIDENT TREASURER AND DIRECTOR
*By: /s/ Jon M. Berry
-------------------------
Jon M. Berry
AS ATTORNEY-IN-FACT,
PURSUANT TO A POWER OF
ATTORNEY FILED HEREWITH.
II-29
<PAGE>
Pursuant to the requirements of the Securities Act of 1933, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-3 and has duly caused this Amendment No. 2 to
Registration Statement No. 333-16469 to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of Cincinnati, State of
Ohio, on this 12th day of December, 1996.
F.M.I. PENNSYLVANIA, INC.
By: /s/ R. Christopher Weber
------------------------------------------
R. Christopher Weber
SENIOR VICE PRESIDENT AND ASSISTANT
SECRETARY
Pursuant to the requirements of the Securities Act of 1933, as amended, this
Amendment No. 2 to Registration Statement No. 333-16469 has been signed on
December 12, 1996 by the following persons in the capacities indicated.
Principal Executive Officer: Principal Financial and Accounting
Officer:
/s/ Randy Michaels* /s/ Jon M. Berry
- -------------------------------------- --------------------------------------
Randy Michaels Jon M. Berry
PRESIDENT TREASURER AND DIRECTOR
*By: /s/ Jon M. Berry
-------------------------
Jon M. Berry
AS ATTORNEY-IN-FACT,
PURSUANT TO A POWER OF
ATTORNEY FILED HEREWITH.
II-30
<PAGE>
Pursuant to the requirements of the Securities Act of 1933, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-3 and has duly caused this Amendment No. 2 to
Registration Statement No. 333-16469 to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of Cincinnati, State of
Ohio, on this 12th day of December, 1996.
INMOBILIARIA RADIAL, S.A. DE C.V.
By: /s/ R. Christopher Weber
------------------------------------------
R. Christopher Weber
TREASURER
Pursuant to the requirements of the Securities Act of 1933, as amended, this
Amendment No. 2 to Registration Statement No. 333-16469 has been signed on
December 12, 1996 by the following persons in the capacities indicated.
Principal Executive Officer: Principal Financial and Accounting
Officer:
/s/ Randy Michaels* /s/ R. Christopher Weber
- -------------------------------------- --------------------------------------
Randy Michaels R. Christopher Weber
PRESIDENT AND DIRECTOR TREASURER AND DIRECTOR
/s/ Jon M. Berry
--------------------------------------
Jon M. Berry
DIRECTOR
*By: /s/ Jon M. Berry
-------------------------
Jon M. Berry
AS ATTORNEY-IN-FACT,
PURSUANT TO A POWER OF
ATTORNEY FILED HEREWITH.
II-31
<PAGE>
Pursuant to the requirements of the Securities Act of 1933, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-3 and has duly caused this Amendment No. 2 to
Registration Statement No. 333-16469 to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of Cincinnati, State of
Ohio, on this 12th day of December, 1996.
JACOR BROADCASTING OF IOWA, INC.
By: /s/ R. Christopher Weber
------------------------------------------
R. Christopher Weber
SENIOR VICE PRESIDENT AND ASSISTANT
SECRETARY
Pursuant to the requirements of the Securities Act of 1933, as amended, this
Amendment No. 2 to Registration Statement No. 333-16469 has been signed on
December 12, 1996 by the following persons in the capacities indicated.
Principal Executive Officer: Principal Financial and Accounting
Officer:
/s/ Randy Michaels* /s/ Jon M. Berry
- -------------------------------------- --------------------------------------
Randy Michaels Jon M. Berry
PRESIDENT TREASURER
/s/ R. Christopher Weber
--------------------------------------
R. Christopher Weber
DIRECTOR
*By: /s/ Jon M. Berry
-------------------------
Jon M. Berry
AS ATTORNEY-IN-FACT,
PURSUANT TO A POWER OF
ATTORNEY FILED HEREWITH.
II-32
<PAGE>
Pursuant to the requirements of the Securities Act of 1933, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-3 and has duly caused this Amendment No. 2 to
Registration Statement No. 333-16469 to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of Cincinnati, State of
Ohio, on this 12th day of December, 1996.
NOBLE BROADCAST GROUP, INC.
By: /s/ R. Christopher Weber
------------------------------------------
R. Christopher Weber
SENIOR VICE PRESIDENT AND ASSISTANT
SECRETARY
Pursuant to the requirements of the Securities Act of 1933, as amended, this
Amendment No. 2 to Registration Statement No. 333-16469 has been signed on
December 12, 1996 by the following persons in the capacities indicated.
Principal Executive Officer: Principal Financial and Accounting
Officer:
/s/ Randy Michaels* /s/ Jon M. Berry
- -------------------------------------- --------------------------------------
Randy Michaels Jon M. Berry
PRESIDENT TREASURER AND DIRECTOR
*By: /s/ Jon M. Berry
-------------------------
Jon M. Berry
AS ATTORNEY-IN-FACT,
PURSUANT TO A POWER OF
ATTORNEY FILED HEREWITH.
II-33
<PAGE>
Pursuant to the requirements of the Securities Act of 1933, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-3 and has duly caused this Amendment No. 2 to
Registration Statement No. 333-16469 to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of Cincinnati, State of
Ohio, on this 12th day of December, 1996.
NOBLE BROADCAST OF COLORADO, INC.
By: /s/ R. Christopher Weber
------------------------------------------
R. Christopher Weber
SENIOR VICE PRESIDENT AND ASSISTANT
SECRETARY
Pursuant to the requirements of the Securities Act of 1933, as amended, this
Amendment No. 2 to Registration Statement No. 333-16469 has been signed on
December 12, 1996 by the following persons in the capacities indicated.
Principal Executive Officer: Principal Financial and Accounting
Officer:
/s/ Randy Michaels* /s/ Jon M. Berry
- -------------------------------------- --------------------------------------
Randy Michaels Jon M. Berry
PRESIDENT TREASURER AND DIRECTOR
*By: /s/ Jon M. Berry
-------------------------
Jon M. Berry
AS ATTORNEY-IN-FACT,
PURSUANT TO A POWER OF
ATTORNEY FILED HEREWITH.
II-34
<PAGE>
Pursuant to the requirements of the Securities Act of 1933, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-3 and has duly caused this Amendment No. 2 to
Registration Statement No. 333-16469 to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of Cincinnati, State of
Ohio, on this 12th day of December, 1996.
NOBLE BROADCAST OF SAN DIEGO, INC.
By: /s/ R. Christopher Weber
------------------------------------------
R. Christopher Weber
SENIOR VICE PRESIDENT AND ASSISTANT
SECRETARY
Pursuant to the requirements of the Securities Act of 1933, as amended, this
Amendment No. 2 to Registration Statement No. 333-16469 has been signed on
December 12, 1996 by the following persons in the capacities indicated.
Principal Executive Officer: Principal Financial and Accounting
Officer:
/s/ Randy Michaels* /s/ Jon M. Berry
- -------------------------------------- --------------------------------------
Randy Michaels Jon M. Berry
PRESIDENT TREASURER AND DIRECTOR
*By: /s/ Jon M. Berry
-------------------------
Jon M. Berry
AS ATTORNEY-IN-FACT,
PURSUANT TO A POWER OF
ATTORNEY FILED HEREWITH.
II-35
<PAGE>
Pursuant to the requirements of the Securities Act of 1933, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-3 and has duly caused this Amendment No. 2 to
Registration Statement No. 333-16469 to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of Cincinnati, State of
Ohio, on this 12th day of December, 1996.
NOBLE BROADCAST OF ST. LOUIS, INC.
By: /s/ R. Christopher Weber
------------------------------------------
R. Christopher Weber
SENIOR VICE PRESIDENT AND ASSISTANT
SECRETARY
Pursuant to the requirements of the Securities Act of 1933, as amended, this
Amendment No. 2 to Registration Statement No. 333-16469 has been signed on
December 12, 1996 by the following persons in the capacities indicated.
Principal Executive Officer: Principal Financial and Accounting
Officer:
/s/ Randy Michaels* /s/ Jon M. Berry
- -------------------------------------- --------------------------------------
Randy Michaels Jon M. Berry
PRESIDENT TREASURER AND DIRECTOR
*By: /s/ Jon M. Berry
-------------------------
Jon M. Berry
AS ATTORNEY-IN-FACT,
PURSUANT TO A POWER OF
ATTORNEY FILED HEREWITH.
II-36
<PAGE>
Pursuant to the requirements of the Securities Act of 1933, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-3 and has duly caused this Amendment No. 2 to
Registration Statement No. 333-16469 to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of Cincinnati, State of
Ohio, on this 12th day of December, 1996.
NOBLE BROADCAST OF TOLEDO, INC.
By: /s/ R. Christopher Weber
------------------------------------------
R. Christopher Weber
SENIOR VICE PRESIDENT AND ASSISTANT
SECRETARY
Pursuant to the requirements of the Securities Act of 1933, as amended, this
Amendment No. 2 to Registration Statement No. 333-16469 has been signed on
December 12, 1996 by the following persons in the capacities indicated.
Principal Executive Officer: Principal Financial and Accounting
Officer:
/s/ Randy Michaels* /s/ Jon M. Berry
- -------------------------------------- --------------------------------------
Randy Michaels Jon M. Berry
PRESIDENT TREASURER AND DIRECTOR
*By: /s/ Jon M. Berry
-------------------------
Jon M. Berry
AS ATTORNEY-IN-FACT,
PURSUANT TO A POWER OF
ATTORNEY FILED HEREWITH.
II-37
<PAGE>
Pursuant to the requirements of the Securities Act of 1933, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-3 and has duly caused this Amendment No. 2 to
Registration Statement No. 333-16469 to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of Cincinnati, State of
Ohio, on this 12th day of December, 1996.
NOVA MARKETING GROUP, INC.
By: /s/ R. Christopher Weber
------------------------------------------
R. Christopher Weber
SENIOR VICE PRESIDENT AND ASSISTANT
SECRETARY
Pursuant to the requirements of the Securities Act of 1933, as amended, this
Amendment No. 2 to Registration Statement No. 333-16469 has been signed on
December 12, 1996 by the following persons in the capacities indicated.
Principal Executive Officer: Principal Financial and Accounting
Officer:
/s/ Randy Michaels* /s/ Jon M. Berry
- -------------------------------------- --------------------------------------
Randy Michaels Jon M. Berry
PRESIDENT TREASURER AND DIRECTOR
*By: /s/ Jon M. Berry
-------------------------
Jon M. Berry
AS ATTORNEY-IN-FACT,
PURSUANT TO A POWER OF
ATTORNEY FILED HEREWITH.
II-38
<PAGE>
Pursuant to the requirements of the Securities Act of 1933, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-3 and has duly caused this Amendment No. 2 to
Registration Statement No. 333-16469 to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of Cincinnati, State of
Ohio, on this 12th day of December, 1996.
NOBLE BROADCAST LICENSES, INC.
By: /s/ R. Christopher Weber
------------------------------------------
R. Christopher Weber
SENIOR VICE PRESIDENT AND ASSISTANT
SECRETARY
Pursuant to the requirements of the Securities Act of 1933, as amended, this
Amendment No. 2 to Registration Statement No. 333-16469 has been signed on
December 12, 1996 by the following persons in the capacities indicated.
Principal Executive Officer: Principal Financial and Accounting
Officer:
/s/ Randy Michaels* /s/ Jon M. Berry
- -------------------------------------- --------------------------------------
Randy Michaels Jon M. Berry
PRESIDENT TREASURER AND DIRECTOR
*By: /s/ Jon M. Berry
-------------------------
Jon M. Berry
AS ATTORNEY-IN-FACT,
PURSUANT TO A POWER OF
ATTORNEY FILED HEREWITH.
II-39
<PAGE>
Pursuant to the requirements of the Securities Act of 1933, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-3 and has duly caused this Amendment No. 2 to
Registration Statement No. 333-16469 to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of Cincinnati, State of
Ohio, on this 12th day of December, 1996.
NOBLE BROADCAST HOLDINGS, INC.
By: /s/ R. Christopher Weber
------------------------------------------
R. Christopher Weber
SENIOR VICE PRESIDENT AND ASSISTANT
SECRETARY
Pursuant to the requirements of the Securities Act of 1933, as amended, this
Amendment No. 2 to Registration Statement No. 333-16469 has been signed on
December 12, 1996 by the following persons in the capacities indicated.
Principal Executive Officer: Principal Financial and Accounting
Officer:
/s/ Randy Michaels* /s/ Jon M. Berry
- -------------------------------------- --------------------------------------
Randy Michaels Jon M. Berry
PRESIDENT TREASURER AND DIRECTOR
*By: /s/ Jon M. Berry
-------------------------
Jon M. Berry
AS ATTORNEY-IN-FACT,
PURSUANT TO A POWER OF
ATTORNEY FILED HEREWITH.
II-40
<PAGE>
Pursuant to the requirements of the Securities Act of 1933, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-3 and has duly caused this Amendment No. 2 to
Registration Statement No. 333-16469 to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of Cincinnati, State of
Ohio, on this 12th day of December, 1996.
CINE GUARANTORS II, LTD.
By: /s/ R. Christopher Weber
------------------------------------------
R. Christopher Weber
SENIOR VICE PRESIDENT AND ASSISTANT
SECRETARY
Pursuant to the requirements of the Securities Act of 1933, as amended, this
Amendment No. 2 to Registration Statement No. 333-16469 has been signed on
December 12, 1996 by the following persons in the capacities indicated.
Principal Executive Officer: Principal Financial and Accounting
Officer:
/s/ Randy Michaels* /s/ Jon M. Berry
- -------------------------------------- --------------------------------------
Randy Michaels Jon M. Berry
PRESIDENT TREASURER AND DIRECTOR
*By: /s/ Jon M. Berry
-------------------------
Jon M. Berry
AS ATTORNEY-IN-FACT,
PURSUANT TO A POWER OF
ATTORNEY FILED HEREWITH.
II-41
<PAGE>
Pursuant to the requirements of the Securities Act of 1933, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-3 and has duly caused this Amendment No. 2 to
Registration Statement No. 333-16469 to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of Cincinnati, State of
Ohio, on this 12th day of December, 1996.
THE SY FISCHER COMPANY AGENCY, INC.
By: /s/ R. Christopher Weber
------------------------------------------
R. Christopher Weber
SENIOR VICE PRESIDENT AND ASSISTANT
SECRETARY
Pursuant to the requirements of the Securities Act of 1933, as amended, this
Amendment No. 2 to Registration Statement No. 333-16469 has been signed on
December 12, 1996 by the following persons in the capacities indicated.
Principal Executive Officer: Principal Financial and Accounting
Officer:
/s/ Randy Michaels* /s/ Jon M. Berry
- -------------------------------------- --------------------------------------
Randy Michaels Jon M. Berry
PRESIDENT TREASURER AND DIRECTOR
*By: /s/ Jon M. Berry
-------------------------
Jon M. Berry
AS ATTORNEY-IN-FACT,
PURSUANT TO A POWER OF
ATTORNEY FILED HEREWITH.
II-42
<PAGE>
Pursuant to the requirements of the Securities Act of 1933, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-3 and has duly caused this Amendment No. 2 to
Registration Statement No. 333-16469 to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of Cincinnati, State of
Ohio, on this 12th day of December, 1996.
CINE MOVIL S.A. DE C.V.
By: /s/ R. Christopher Weber
------------------------------------------
R. Christopher Weber
SENIOR VICE PRESIDENT AND ASSISTANT
SECRETARY
Pursuant to the requirements of the Securities Act of 1933, as amended, this
Amendment No. 2 to Registration Statement No. 333-16469 has been signed on
December 12, 1996 by the following persons in the capacities indicated.
Principal Executive Officer: Principal Financial and Accounting
Officer:
/s/ Randy Michaels* /s/ Jon M. Berry
- -------------------------------------- --------------------------------------
Randy Michaels Jon M. Berry
PRESIDENT TREASURER AND DIRECTOR
*By: /s/ Jon M. Berry
-------------------------
Jon M. Berry
AS ATTORNEY-IN-FACT,
PURSUANT TO A POWER OF
ATTORNEY FILED HEREWITH.
II-43
<PAGE>
Pursuant to the requirements of the Securities Act of 1933, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-3 and has duly caused this Amendment No. 2 to
Registration Statement No. 333-16469 to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of Cincinnati, State of
Ohio, on this 12th day of December, 1996.
CINE MOBILE SYSTEMS INT'L. N.V.
By: /s/ R. Christopher Weber
------------------------------------------
R. Christopher Weber
SENIOR VICE PRESIDENT AND ASSISTANT
SECRETARY
Pursuant to the requirements of the Securities Act of 1933, as amended, this
Amendment No. 2 to Registration Statement No. 333-16469 has been signed on
December 12, 1996 by the following persons in the capacities indicated.
Principal Executive Officer: Principal Financial and Accounting
Officer:
/s/ Randy Michaels* /s/ Jon M. Berry
- -------------------------------------- --------------------------------------
Randy Michaels Jon M. Berry
PRESIDENT TREASURER AND DIRECTOR
*By: /s/ Jon M. Berry
-------------------------
Jon M. Berry
AS ATTORNEY-IN-FACT,
PURSUANT TO A POWER OF
ATTORNEY FILED HEREWITH.
II-44
<PAGE>
Pursuant to the requirements of the Securities Act of 1933, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-3 and has duly caused this Amendment No. 2 to
Registration Statement No. 333-16469 to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of Cincinnati, State of
Ohio, on this 12th day of December, 1996.
WHOK, INC.
By: /s/ R. Christopher Weber
------------------------------------------
R. Christopher Weber
SENIOR VICE PRESIDENT AND ASSISTANT
SECRETARY
Pursuant to the requirements of the Securities Act of 1933, as amended, this
Amendment No. 2 to Registration Statement No. 333-16469 has been signed on
December 12, 1996 by the following persons in the capacities indicated.
Principal Executive Officer: Principal Financial and Accounting
Officer:
/s/ Randy Michaels* /s/ Jon M. Berry
- -------------------------------------- --------------------------------------
Randy Michaels Jon M. Berry
PRESIDENT TREASURER AND DIRECTOR
/s/ R. Christopher Weber
--------------------------------------
R. Christopher Weber
DIRECTOR
*By: /s/ Jon M. Berry
-------------------------
Jon M. Berry
AS ATTORNEY-IN-FACT,
PURSUANT TO A POWER OF
ATTORNEY FILED HEREWITH.
II-45
<PAGE>
Pursuant to the requirements of the Securities Act of 1933, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-3 and has duly caused this Amendment No. 2 to
Registration Statement No. 333-16469 to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of Cincinnati, State of
Ohio, on this 12th day of December, 1996.
VTTV PRODUCTIONS
By: /s/ R. Christopher Weber
------------------------------------------
R. Christopher Weber
SENIOR VICE PRESIDENT AND ASSISTANT
SECRETARY
Pursuant to the requirements of the Securities Act of 1933, as amended, this
Amendment No. 2 to Registration Statement No. 333-16469 has been signed on
December 12, 1996 by the following persons in the capacities indicated.
Principal Executive Officer: Principal Financial and Accounting
Officer:
/s/ Randy Michaels* /s/ Jon M. Berry
- -------------------------------------- --------------------------------------
Randy Michaels Jon M. Berry
PRESIDENT TREASURER AND DIRECTOR
*By: /s/ Jon M. Berry
-------------------------
Jon M. Berry
AS ATTORNEY-IN-FACT,
PURSUANT TO A POWER OF
ATTORNEY FILED HEREWITH.
II-46
<PAGE>
Pursuant to the requirements of the Securities Act of 1933, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-3 and has duly caused this Amendment No. 2 to
Registration Statement No. 333-16469 to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of Cincinnati, State of
Ohio, on this 12th day of December, 1996.
LOCATION PRODUCTIONS II, INC.
By: /s/ R. Christopher Weber
------------------------------------------
R. Christopher Weber
SENIOR VICE PRESIDENT AND ASSISTANT
SECRETARY
Pursuant to the requirements of the Securities Act of 1933, as amended, this
Amendment No. 2 to Registration Statement No. 333-16469 has been signed on
December 12, 1996 by the following persons in the capacities indicated.
Principal Executive Officer: Principal Financial and Accounting
Officer:
/s/ Randy Michaels* /s/ Jon M. Berry
- -------------------------------------- --------------------------------------
Randy Michaels Jon M. Berry
PRESIDENT TREASURER AND DIRECTOR
*By: /s/ Jon M. Berry
-------------------------
Jon M. Berry
AS ATTORNEY-IN-FACT,
PURSUANT TO A POWER OF
ATTORNEY FILED HEREWITH.
II-47
<PAGE>
Pursuant to the requirements of the Securities Act of 1933, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-3 and has duly caused this Amendment No. 2 to
Registration Statement No. 333-16469 to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of Cincinnati, State of
Ohio, on this 12th day of December, 1996.
LOCATION PRODUCTIONS, INC.
By: /s/ R. Christopher Weber
------------------------------------------
R. Christopher Weber
SENIOR VICE PRESIDENT AND ASSISTANT
SECRETARY
Pursuant to the requirements of the Securities Act of 1933, as amended, this
Amendment No. 2 to Registration Statement No. 333-16469 has been signed on
December 12, 1996 by the following persons in the capacities indicated.
Principal Executive Officer: Principal Financial and Accounting
Officer:
/s/ Randy Michaels* /s/ Jon M. Berry
- -------------------------------------- --------------------------------------
Randy Michaels Jon M. Berry
PRESIDENT TREASURER AND DIRECTOR
*By: /s/ Jon M. Berry
-------------------------
Jon M. Berry
AS ATTORNEY-IN-FACT,
PURSUANT TO A POWER OF
ATTORNEY FILED HEREWITH.
II-48
<PAGE>
Pursuant to the requirements of the Securities Act of 1933, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-3 and has duly caused this Amendment No. 2 to
Registration Statement No. 333-16469 to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of Cincinnati, State of
Ohio, on this 12th day of December, 1996.
CINE FILMS, INC.
By: /s/ R. Christopher Weber
------------------------------------------
R. Christopher Weber
SENIOR VICE PRESIDENT AND ASSISTANT
SECRETARY
Pursuant to the requirements of the Securities Act of 1933, as amended, this
Amendment No. 2 to Registration Statement No. 333-16469 has been signed on
December 12, 1996 by the following persons in the capacities indicated.
Principal Executive Officer: Principal Financial and Accounting
Officer:
/s/ Randy Michaels* /s/ Jon M. Berry
- -------------------------------------- --------------------------------------
Randy Michaels Jon M. Berry
PRESIDENT TREASURER AND DIRECTOR
*By: /s/ Jon M. Berry
-------------------------
Jon M. Berry
AS ATTORNEY-IN-FACT,
PURSUANT TO A POWER OF
ATTORNEY FILED HEREWITH.
II-49
<PAGE>
Pursuant to the requirements of the Securities Act of 1933, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-3 and has duly caused this Amendment No. 2 to
Registration Statement No. 333-16469 to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of Cincinnati, State of
Ohio, on this 12th day of December, 1996.
TAFT-TCI SATELLITE SERVICES, INC.
By: /s/ R. Christopher Weber
------------------------------------------
R. Christopher Weber
SENIOR VICE PRESIDENT AND ASSISTANT
SECRETARY
Pursuant to the requirements of the Securities Act of 1933, as amended, this
Amendment No. 2 to Registration Statement No. 333-16469 has been signed on
December 12, 1996 by the following persons in the capacities indicated.
Principal Executive Officer: Principal Financial and Accounting
Officer:
/s/ Randy Michaels* /s/ Jon M. Berry
- -------------------------------------- --------------------------------------
Randy Michaels Jon M. Berry
PRESIDENT TREASURER AND DIRECTOR
*By: /s/ Jon M. Berry
-------------------------
Jon M. Berry
AS ATTORNEY-IN-FACT,
PURSUANT TO A POWER OF
ATTORNEY FILED HEREWITH.
II-50
<PAGE>
INDEX TO EXHIBITS
<TABLE>
<CAPTION>
SEQUENTIALLY
EXHIBIT NUMBERED
NUMBER DESCRIPTION OF EXHIBIT PAGE
- ---------- ---------------------------------------------------------------------------------------------- -----------
<C> <S> <C>
1.1 Form of Underwriting Agreement.
2.1 Agreement and Plan of Merger dated February 12, 1996 among Citicasters Inc. ("Citicasters"), *
Jacor Communications, Inc. ("Jacor") and JCAC, Inc. Incorporated by reference to Exhibit 2.1
to Jacor's Current Report on Form 8-K dated February 27, 1996.
2.2 Warrant Agreement dated as of September 18, 1996 between Jacor and KeyCorp Shareholder *
Services, Inc., as warrant agent. Incorporated by reference to Exhibit 4.1 to Jacor's
Current Report on Form 8-K dated October 3, 1996.
2.3 Supplemental Agreement dated as of September 18, 1996 between Jacor and KeyCorp Shareholder *
Services, Inc., as warrant agent. Incorporated by reference to Exhibit 4.2 to Jacor's
Current Report on Form 8-K dated October 3, 1996.
2.4 Registration Rights Agreement dated as of August 5, 1996 among Jacor, JCAC, Inc., Great *
American Insurance Company, American Financial Corporation, American Financial Enterprises,
Inc., Carl H. Lindner, The Carl H. Lindner Foundation, and S. Craig Lindner. Incorporated by
reference to Exhibit 2.22 to Jacor's Post-Effective Amendment No. 1 on Form S-3 to Form S-4
(File No. 333-6639).
2.5 Stock Purchase and Stock Warrant Redemption Agreement dated as of February 20, 1996 among *
Jacor, Prudential Venture Partners II, L.P., Northeast Ventures, II, John T. Lynch, Frank A.
DeFrancesco, Thomas R. Jiminez, William R. Arbenz, CIHC, Incorporated, Bankers Life Holding
Corporation and Noble Broadcast Group, Inc. ("Noble") (omitting exhibits not deemed material
or filed separately in executed form). [Prudential and Northeast are sometimes referred to
hereafter as the "Class A Shareholders"; Lynch, DeFrancesco, Jiminez and Arbenz as the
"Class B Shareholders"; and CIHC and Bankers Life as the Warrant Sellers.] Incorporated by
reference to Exhibit 2.1 to Jacor's Current Report on Form 8-K dated March 6, 1996, as
amended.
2.6 Investment Agreement dated as of February 20, 1996 among Jacor, Noble and the Class B *
Shareholders (omitting exhibits not deemed material). Incorporated by reference to Exhibit
2.2 to Jacor's Current Report on Form 8-K dated March 6, 1996, as amended.
2.7 Asset Exchange Agreement dated as of September 26, 1996 between Citicasters Co. and Pacific *
and Southern Company, Inc. (omitting schedules and exhibits not deemed material).
Incorporated by reference to Exhibit 2.1 to Jacor's Current Report on Form 8-K dated October
11, 1996.
2.8 Agreement and Plan of Merger dated as of October 8, 1996 ("Regent Merger Agreement") between *
Jacor and Regent Communications, Inc. (omitting schedules and exhibits not deemed material).
Incorporated by reference to Exhibit 2.1 to Jacor's Current Report on Form 8-K dated October
23, 1996.
2.9 Form of Warrant Agreement between Jacor and KeyCorp Shareholder Services, Inc., as warrant *
agent (included as Exhibit B to Regent Merger Agreement). Incorporated by reference to
Exhibit 2.2 to Jacor's Current Report on Form 8-K dated October 23, 1996.
2.10 Escrow Agreement dated as of October 8, 1996 among Jacor, Regent Communications, Inc. and PNC *
Bank, as excrow agent (included as Exhibit H to Regent Merger Agreement). Incorporated by
reference to Exhibit 2.3 to Jacor's Current Report on Form 8-K dated October 23, 1996.
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
SEQUENTIALLY
EXHIBIT NUMBERED
NUMBER DESCRIPTION OF EXHIBIT PAGE
- ---------- ---------------------------------------------------------------------------------------------- -----------
<C> <S> <C>
2.11 Registration Rights Agreement dated as of October 8, 1996 among Jacor and the parties listed *
in Schedule I thereto (included as Exhibit I to Regent Merger Agreement). Incorporated by
reference to Exhibit 2.4 to Jacor's Current Report on Form 8-K dated October 23, 1996.
2.12 Form of Plan and Agreement of Merger between Jacor and New Jacor, Inc. Incorporated by *
reference to Annex VII to the Proxy Statement/Information Statement/Prospectus to Jacor's
Form S-4 Registration Statement (File No. 333-6639).
4.1 Form of Indenture for Notes.
4.2 Indenture dated as of June 12, 1996 between Jacor and The Bank of New York for Jacor's Liquid *
Yield Option Notes Due 2011. Incorporated by reference to Exhibit 4.23 to Jacor's Form S-4
Registration Statement (File No. 333-6639).
4.3 Indenture dated as of June 12, 1996 among Jacor, JCAC, Inc. and First Trust of Illinois, *
National Association for JCAC, Inc.'s 10 1/8% Senior Subordinated Notes due 2006 and Jacor's
Guaranty thereof. Incorporated by reference to Exhibit 4.24 to Jacor's Form S-4 Registration
Statement (File No. 333-6639).
4.4 Credit Agreement dated as of June 12, 1996 ("Credit Agreement") by and among JCAC, Inc., the *
Lenders named therein (the "Lenders"), Chemical Bank, as Administrative Agent, Banque
Paribas, as Documentation Agent, and Bank of America Illinois, as Syndication Agent.
Incorporated by reference to Exhibit 4.27 to Jacor's Form S-4 Registration Statement (File
No. 333-6639).
4.5 Security Agreement dated as of June 12, 1996 by and between JCAC, Inc. and Chemical Bank, as *
Administrative Agent. Incorporated by reference to Exhibit 4.28 to Jacor's Form S-4
Registration Statement (File No. 333-6639).
4.6 Parent Guaranty dated as of June 12, 1996 by Jacor in favor of Chemical Bank, as *
Administrative Agent, for the Lenders and any Interest Rate Hedge Providers (as defined in
the Credit Agreement). Incorporated by reference to Exhibit 4.29 to Jacor's Form S-4
Registration Statement (File No. 333-6639).
4.7 Pledge Agreement dated as of June 12, 1996 by and between Jacor and Chemical Bank, as *
Administrative Agent for the Agents (as defined in the Credit Agreement), the Lenders and
any Interest Rate Hedge Providers. Incorporated by reference to Exhibit 4.30 to Jacor's Form
S-4 Registration Statement (File No. 333-6639).
4.8 First Amendment dated as of June 18, 1996 to Credit Agreement dated as of June 12, 1996 by and *
among JCAC, Inc., the Lenders named therein, Chemical Bank, as Administrative Agent, Banque
Paribas, as Documentation Agent, and Bank of America Illinois, as Syndication Agent.
Incorporated by reference to Exhibit 4 to Jacor's Quarterly Report on Form 10-Q for the
quarter ended June 30, 1996.
4.9 Second Amendment dated as of September 18, 1996 to Credit Agreement dated as of June 12, 1996 *
by and among Citicasters (as successor by merger to JCAC, Inc.), the Lenders named therein,
The Chase Manhattan Bank (as successor by merger to Chemical Bank), as Administrative Agent,
Banque Paribas, as Documentation Agent, and Bank of America Illinois, as Syndication Agent
(omitting exhibits not deemed material). Incorporated by reference to Exhibit 4.1 to Jacor's
Quarterly Report on Form 10-Q for the quarter ended September 30, 1996.
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
SEQUENTIALLY
EXHIBIT NUMBERED
NUMBER DESCRIPTION OF EXHIBIT PAGE
- ---------- ---------------------------------------------------------------------------------------------- -----------
<C> <S> <C>
4.10 Third Amendment dated as of October 8, 1996 to Credit Agreement dated as of June 12, 1996 by *
and among Citicasters (as successor by merger to JCAC, Inc.), the Lenders named therein, The
Chase Manhattan Bank (as successor by merger to Chemical Bank), as Administrative Agent,
Banque Paribas, as Documentation Agent, and Bank of America Illinois, as Syndication Agent
(omitting exhibits not deemed material). Incorporated by reference to Exhibit 4.2 to Jacor's
Quarterly Report on Form 10-Q for the quarter ended September 30, 1996.
5.1 Opinion of Graydon, Head & Ritchey.
12 Computation of Earnings to Fixed Charges. **
23.1 Consent of Coopers & Lybrand L.L.P.
23.2 Consent of Ernst & Young LLP.
23.3 Consent of Price Waterhouse LLP.
23.4 Consent of Graydon, Head & Ritchey (included in opinion of counsel filed as Exhibit 5.1).
24.1 Powers of Attorney of directors and officers of Jacor signing this Registration Statement. **
24.2 Power of Attorney of John W. Alexander.
24.3 Power of Attorney of Marc Lasry.
24.4 Powers of Attorney of directors and officers of Citicasters signing this Registration **
Statement.
24.5 Power of Attorney of Randy Michaels.
24.6 Power of Attorney of Jon M. Berry.
24.7 Power of Attorney of R. Christopher Weber.
25 Statement of Eligibility of The Bank of New York, as trustee.
27.1 Financial Data Schedule of Jacor. Incorporated by reference to Jacor's Annual Report on Form *
10-K for the year ended December 31, 1995, as amended.
27.2 Financial Data Schedule of Citicasters. Incorporated by reference to Citicasters' Annual *
Report on Form 10-K for the year ended December 31, 1995, as amended.
</TABLE>
- ------------------------
(*) Incorporated by reference.
(**) Previously filed.
<PAGE>
JACOR COMMUNICATIONS COMPANY
%Senior Subordinated Notes Due 2006
Payment of Principal and Interest Unconditionally
Guaranteed by Jacor Communications, Inc.
and the other Guarantors named herein
UNDERWRITING AGREEMENT
December 12, 1996
DONALDSON, LUFKIN & JENRETTE
SECURITIES CORPORATION
MERRILL LYNCH, PIERCE, FENNER & SMITH
INCORPORATED
c/o Donaldson, Lufkin & Jenrette
Securities Corporation
277 Park Avenue
New York, New York 10172
Ladies and Gentlemen:
Subject to the terms and conditions herein contained, Jacor
Communications Company, a Florida corporation ("JCC") and a wholly owned
subsidiary of Jacor Communications, Inc. (the "Company"), proposes to issue and
sell to Donaldson, Lufkin & Jenrette Securities Corporation ("DLJ") and Merrill
Lynch, Pierce, Fenner & Smith Incorporated (collectively, the "Underwriters") an
aggregate of $150,000,000 principal amount of its % Senior Subordinated Notes
due 2006 (the "Securities"), which notes are irrevocably and unconditionally
guaranteed by the Company, Broadcast Finance, Inc.; Cine Films, Inc.; Cine
Guarantors, Inc.; Cine Guarantors II, Inc.; Cine Guarantors II, Ltd.; Cine
Mobile Systems Int'l. N.V.; Cine Movil S.A. de C.V.; Citicasters Co.; F.M.I.
Pennsylvania, Inc.; GACC-N26LB, Inc.; GACC-340, Inc.; Georgia Network Equipment,
Inc.; Great American Merchandising Group, Inc.; Great American Television
Productions, Inc.; Inmobilaria Radial, S.A. de C.V.; Jacor
<PAGE>
Broadcasting Corporation; Jacor Broadcasting of Atlanta, Inc.; Jacor
Broadcasting of Colorado, Inc.; Jacor Broadcasting of Florida, Inc.; Jacor
Broadcasting of Idaho, Inc., A Delaware Corporation; Jacor Broadcasting of
Iowa, Inc.;. Jacor Broadcasting of Knoxville, Inc.; Jacor Broadcasting of
Lexington, Inc.; Jacor Broadcasting of St. Louis, Inc.; Jacor Broadcasting of
San Diego, Inc.; Jacor Broadcasting of Sarasota, Inc.; Jacor Broadcasting of
Tampa Bay, Inc.; Jacor Cable, Inc.; Location Productions, Inc.; Location
Productions II, Inc.; Noble Broadcast Center, Inc.; Noble Broadcast Group,
Inc.; Noble Broadcast Holdings, Inc.; Noble Broadcast Licenses, Inc.; Noble
Broadcast of Colorado, Inc.; Noble Broadcast of St. Louis, Inc.; Noble
Broadcast of San Diego, Inc.; Noble Broadcast of Toledo, Inc.; Nobro, S.C.;
Nova Marketing Group, Inc.; Sports Radio Broadcasting, Inc.; Sports Radio,
Inc.; Taft-TCI Satellite Services, Inc.; The Sy Fischer Company Agency, Inc.;
WHOK, Inc.; and VTTV Productions, each a direct or indirect subsidiary of the
Company or any successor entity, whether by merger, consolidation, change of
name or otherwise (collectively, the "Guarantors" and together with "JCC",
the "Registrants".) The Securities are to be issued pursuant to the
provisions of an indenture to be dated as of December __, 1996 (the
"Indenture") by and among the Guarantors, JCC and The Bank of New York as
trustee (the "Trustee").
For purposes of this Agreement, the term "Securities" means the
Securities together with the guarantee (the "Guarantee") thereof by the
Guarantors.
The Securities are being issued and sold (i) to finance the remaining
purchase price of the Pending Transactions (as that term is defined in the
Registration Statement (defined below)); (ii) to repay a portion of the
outstanding indebtedness under the Credit Facility; and (iii) for general
corporate purposes, including the acquisition of other broadcast properties and
repayment of other indebtedness.
The Pending Transactions include, among other things, the merger of
Regent Communications, Inc. ("Regent") with and into the Company (the "Regent
Merger").
This Underwriting Agreement, the Indenture and all related agreements
and documents executed in connec-
2
<PAGE>
tion with the Pending Transactions are collectively referred to herein as the
"Transaction Documents."
1. REGISTRATION STATEMENT AND PROSPECTUS. The Registrants have
prepared and filed with the Securities and Exchange Commission (the
"Commission") in accordance with the provisions of the Securities Act of 1933,
as amended, and the rules and regulations of the Commission thereunder
(collectively, the "Act"), a registration statement on Form S-3 (No. 333-16469),
including a preliminary prospectus, subject to completion, relating to the
Securities. The registration statement, as amended at the time it becomes
effective or, if a post-effective amendment is filed with respect thereto, as
amended by such post-effective amendment at the time of its effectiveness,
including in each case, all documents incorporated or deemed incorporated by
reference therein, if any, all financial statements and exhibits, and the
information, if any, contained in a prospectus or term sheet subsequently filed
with the Commission pursuant to Rule 424(b) under the Act and deemed to be a
part of the registration statement at the time of its effectiveness pursuant to
Rule 430A or Rule 434 under the Act (as applicable), and any additional
registration statement relating to the issuance of additional Securities filed
pursuant to Rule 462(b) under the Act, is hereinafter referred to as the
"Registration Statement"; and the prospectus, constituting a part of the
Registration Statement at the time it became effective, or such revised
prospectus as shall be provided to the Underwriters for use in connection with
the offering of the Securities that differs from the prospectus on file with the
Commission at the time the Registration Statement became effective including, in
each case, all documents incorporated or deemed incorporated by reference
therein, if any, whether or not filed with the Commission pursuant to Rule
424(b) under the Act, and including any preliminary prospectus subject to
completion and any term sheet meeting the requirements of Rule 434(c), filed
pursuant to Rule 424(b), in the form used to confirm sales of the Securities, is
hereinafter referred to as the "Prospectus."
2. AGREEMENTS TO SELL AND PURCHASE. On the basis of the
representations and warranties contained in this Agreement, and subject to its
terms and conditions, the Registrants agree to issue and sell to each of the
3
<PAGE>
Underwriters, and each of the Underwriters agrees, severally and not jointly, to
purchase from the Registrants, the Securities in the respective principal
amounts set forth opposite their names on Schedule I hereto, plus such amount as
they may individually become obligated to purchase pursuant to Section 8 hereof,
at a purchase price equal to ______% of the principal amount thereof (the
"Purchase Price").
3. DELIVERY AND PAYMENT. Delivery to you of and payment for the
Securities shall be made at 9:00 A.M., New York City time, on the fourth
business day, unless otherwise permitted by the Commission pursuant to Rule
15c6-1 under the Securities Exchange Act of 1934, as amended, and the rules and
regulations of the Commission thereunder (collectively, the "Exchange Act"),
(such time and date being referred to as the "Closing Date") following the date
of the initial public offering of the Securities as advised by DLJ to the
Company, at such place as DLJ shall reasonably designate. The Closing Date and
the location of delivery of the Securities may be varied by agreement between
DLJ and the Company.
The Securities in definitive form shall be registered in such names
and issued in such denominations as DLJ shall request in writing not later than
two full business days prior to the Closing Date, and shall be made available to
you at the offices of DLJ (or such other place as shall be acceptable to you)
for inspection not later than 9:30 A.M., New York City time, on the business day
next preceding the Closing Date. The Securities shall be delivered to you on
the Closing Date with any transfer taxes payable upon initial issuance thereof
duly paid by the Company, for the respective accounts of the Underwriters
against payment of the Purchase Price by wire transfer payable in same day
funds, to the order of the Company.
4. AGREEMENTS OF THE REGISTRANTS. The Registrants, as applicable,
agree with each of you that:
(a) The Registrants will, if the Registration Statement has not
heretofore become effective under the Act, file an amendment to the
Registration Statement or, if necessary pursuant to Rule 430A under the
Act, a post-effective amendment to the Registration Statement, in each
case as soon as
4
<PAGE>
practicable after the execution and delivery of this Agreement, and
will use their best efforts to cause the Registration Statement or such
post-effective amendment to become effective at the earliest possible
time. The Registrants will comply fully and in a timely manner with
the applicable provisions of Rule 424 and Rule 430A and, if
applicable, Rule 462, under the Act.
(b) The Company will advise you promptly and, if requested by any of
you, confirm such advice in writing, (i) when the Registration
Statement has become effective, if and when the Prospectus is sent for
filing pursuant to Rule 424 under the Act and when any post-effective
amendment to the Registration Statement becomes effective, (ii) of the
receipt of any comments from the Commission or any state securities
commission or regulatory authority that relate to the Registration
Statement or requests by the Commission or any state securities
commission or regulatory authority for amendments to the Registration
Statement or amendments or supplements to the Prospectus or for
additional information, (iii) of the issuance by the Commission of any
stop order suspending the effectiveness of the Registration Statement,
or of the suspension of qualification of the Securities for offering
or sale in any jurisdiction, or the initiation of any proceeding for
such purpose by the Commission or any state securities commission or
any other regulatory authority, and (iv) of the happening of any event
during such period as in your reasonable judgment you are required to
deliver a prospectus in connection with sales of the Securities by you
which makes any statement of a material fact made in the Registration
Statement untrue or which requires the making of any additions to or
changes in the Registration Statement (as amended or supplemented from
time to time) in order to make the statements therein not misleading
or that makes any statement of a material fact made in the Prospectus
(as amended or supplemented from time to time) untrue or which requires
the making of any additions to or changes in the Prospectus (as
amended or supplemented from time to time) in order to make the
statements therein, in light of the circumstances under which they
were made, not misleading. The Company shall use
5
<PAGE>
its best efforts to prevent the issuance of any stop order or order
suspending the qualification or exemption of the Securities under any state
securities or Blue Sky laws, and, if at any time the Commission shall issue
any stop order suspending the effectiveness of the Registration Statement,
or any state securities commission or other regulatory authority shall
issue an order suspending the qualification or exemption of the Securities
under any state securities or Blue Sky laws, the Company shall use every
reasonable effort to obtain the withdrawal or lifting of such order at the
earliest possible time.
(c) The Company will furnish to you without charge two (2) signed
copies (plus one (1) additional signed copy to your legal counsel) of the
Registration Statement as first filed with the Commission and of each
amendment to it, including all exhibits filed therewith, and will furnish
to you such number of conformed copies of the Registration Statement as so
filed and of each amendment to it, without exhibits, as you may reasonably
request.
(d) The Registrants will not file any amendment or supplement to the
Registration Statement, whether before or after the time when it becomes
effective, or make any amendment or supplement to the Prospectus, of which
you shall not previously have been advised and provided a copy within two
business days prior to the filing thereof (or such reasonable amount of
time as is necessitated by the exigency of such amendment or supplement) or
to which you shall reasonably object; and the Registrants will prepare and
file with the Commission, promptly upon your reasonable request, any
amendment to the Registration Statement or supplement to the Prospectus
which may be necessary or advisable in connection with the distribution of
the Securities by you, and will use their best efforts to cause any
amendment to the Registration Statement to become effective as promptly as
possible.
(e) Promptly after the Registration Statement becomes effective, and
from time to time thereafter for such period in your reasonable judgment as
a prospectus is required to be delivered in connection
6
<PAGE>
with sales of the Securities by you, the Company will furnish to each
Underwriter and dealer without charge as many copies of the Prospectus (and
of any amendment or supplement to the Prospectus) as such Underwriters and
dealers may reasonably request. The Registrants consent to the use of the
Prospectus and any amendment or supplement thereto by any Underwriter or
any dealer, both in connection with the offering or sale of the Securities
and for such period of time thereafter as the Prospectus is required by the
Act or the Exchange Act to be delivered in connection therewith.
(f) If during such period as in your reasonable judgment you are
required to deliver a prospectus in connection with sales of the Securities
by you any event shall occur as a result of which it becomes necessary to
amend or supplement the Prospectus in order to make the statements therein,
in the light of the circumstances existing as of the date the Prospectus is
delivered to a purchaser, not misleading, or if it is necessary to amend or
supplement the Prospectus to comply with any law, the Registrants will
promptly prepare and file with the Commission an appropriate amendment or
supplement to the Prospectus so that the statements in the Prospectus, as
so amended or supplemented, will not, in the light of the circumstances
existing as of the date the Prospectus is so delivered, be misleading, and
will comply with applicable law, and will furnish to each Underwriter and
dealer without charge such number of copies thereof as such Underwriters
and dealers may reasonably request.
(g) Prior to any public offering of the Securities, the Registrants
will cooperate with you and your counsel in connection with the
registration or qualification of the Securities for offer and sale by you
under the state securities or Blue Sky laws of such jurisdictions as you
may request (provided, that the Registrants shall not be obligated to
qualify as a foreign corporation in any jurisdiction in which they are not
so qualified or to take any action that would subject them to general
consent to service of process in any jurisdiction in which they are not now
so subject). The Registrants will
7
<PAGE>
continue such qualification in effect so long as required by law for
distribution of the Securities.
(h) The Company will make generally available to its security holders
as soon as reasonably practicable a consolidated earning statement covering
a period of at least twelve months beginning after the "effective date" (as
defined in Rule 158 under the Act) of the Registration Statement (but in no
event commencing later than 90 days after such date) which shall satisfy
the provisions of Section 11(a) of the Act and Rule 158 thereunder, and to
advise you in writing when such statement has been so made available.
(i) The Registrants will timely complete all required filings and
otherwise fully comply in a timely manner with all provisions of the
Exchange Act.
(j) During the period of five years hereafter, the Company will
furnish to you (i) as soon as available, a copy of each report of the
Company mailed to shareholders or filed with the Commission, and (ii) from
time to time such other information concerning the Company as you may
request.
(k) Whether or not the transactions contemplated hereby are
consummated or this Agreement is terminated, the Registrants will pay and
be responsible for all costs, expenses, fees and taxes in connection with
or incident to (i) the printing, processing, filing, distribution and
delivery under the Act or the Exchange Act of the Registration Statement,
each preliminary prospectus, the Prospectus and all amendments or
supplements thereto, (ii) the printing, processing, execution, distribution
and delivery of this Agreement, any memoranda describing state securities
or Blue Sky laws and all other agreements, memoranda, correspondence and
other documents printed, distributed and delivered in connection with the
offering of the Securities, (iii) the registration with the Commission and
the issuance and delivery of the Securities, (iv) the registration or
qualification of the Securities for offer and sale under the securities or
Blue Sky laws of the jurisdictions referred to in paragraph (g)
8
<PAGE>
above (including, in each case, the fees and disbursements of counsel
relating to such registration or qualification and memoranda relating
thereto and any filing fees in connection therewith), (v) furnishing such
copies of the Registration Statement, Prospectus and preliminary
prospectus, and all amendments and supplements to any of them, as may be
reasonably requested by you, (vi) filing, registration and clearance with
the NASD in connection with the offering of the Securities (including any
filing fees in connection therewith and the fees and disbursements of
counsel relating thereto), (vii) any "qualified independent underwriter" as
required by Section 2720 of the Conduct Rules of the NASD (including fees
and disbursements of counsel for such qualified independent underwriter),
(viii) the printing, processing, execution, distribution and delivery of
the Transaction Documents and all other agreements, memoranda,
correspondence and other documents, printed, distributed and delivered in
connection with the Transaction Documents and (ix) the performance by the
Registrants of their other obligations under this Agreement, the cost of
their personnel and other internal costs, the cost of printing and
engraving the certificates representing the Securities, and all expenses
and taxes incident to the sale and delivery of the Securities to you.
(l) The Company and JCC will use the proceeds from the sale of the
Securities in the manner described in the Prospectus under the caption "Use
of Proceeds."
(m) The Registrants will use their best efforts to do and perform all
things required to be done and performed under this Agreement by them prior
to or after the Closing Date and to satisfy all conditions precedent on
their part to the delivery of the Securities.
(n) The Company will timely complete all required filings and
otherwise comply fully in a timely manner with all provisions of the
Exchange Act, and will file all reports and any definitive proxy or
information statements required to be filed by the Company with the
Commission pursuant to Sec-
9
<PAGE>
tion 13(a), 13(c), 14(a) or 15(d) of the Exchange Act subsequent to the
date of the Prospectus and for so long as the delivery of the Prospectus is
required in connection with the offer or sale of the Securities.
(o) During the period beginning on the date of this Agreement and
continuing to and including the Closing Date, except as described in the
Prospectus with respect to the Pending Transactions, there will be no
transactions entered into by the Company or any of its subsidiaries (each a
"Subsidiary" and, collectively, the "Subsidiaries"), which are material
with respect to the Company or any of the Subsidiaries, respectively, taken
individually or as a whole, and there will be no dividend or distribution
of any kind declared, paid or made by the Company on any class of capital
stock or other equity interests.
5. REPRESENTATIONS AND WARRANTIES. The Registrants represent and
warrant to each of you that:
(a) When the Registration Statement becomes effective, including at
the date of any post-effective amendment, at the date of the Prospectus (if
different) and at the Closing Date, the Registration Statement will comply
in all material respects with the provisions of the Act, and will not
contain any untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary to make the
statements therein not misleading; the Prospectus and any supplements or
amendments thereto will not at the date of the Prospectus, at the date of
any such supplements or amendments and at the Closing Date contain any
untrue statement of a material fact or omit to state any material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading, except that the
representations and warranties contained in this paragraph (a) shall not
apply to statements in or omissions from the Registration Statement or the
Prospectus (or any supplement or amendment to them) made in reliance upon
and in conformity with information relating to any Underwriter furnished to
the Company in writing by or on
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behalf of any Underwriter through DLJ expressly for use therein. The
Registrants acknowledge for all purposes under this Agreement that the
statements with respect to price and underwriting discount and the last
paragraph all as set forth on the cover page and in paragraph four and in
the second sentence of the fifth paragraph under the caption "Underwriting"
in the Prospectus (or any amendment or supplement) constitute the only
written information furnished to the Registrants by DLJ expressly for use
in the Registration Statement or the Prospectus (or any amendment or
supplement to them) and that the Underwriters shall not be deemed to have
provided any other information (and therefore are not responsible for any
such statement or omission).
(b) Any term sheet and prospectus subject to completion provided by
the Registrants to the Underwriters for use in connection with the offering
and sale of the Securities pursuant to Rule 434 under the Act together are
not materially different from the Prospectus included in the Registration
Statement.
(c) Each preliminary prospectus and the prospectus filed as part of
the Registration Statement as originally filed or as part of any amendment
thereto, or filed pursuant to Rule 424 under the Act, and each Registration
Statement filed pursuant to Rule 462(b) under the Act, if any, complied
when so filed in all material respects with the Act.
(d) The Company and each of its Subsidiaries and Regent has been duly
organized, is validly existing as a corporation in good standing under the
laws of its jurisdiction of organization and has the requisite corporate
power and authority to carry on its business as it is currently being
conducted, to own, lease and operate its properties and, as applicable, to
authorize the offering of the Securities, to execute, deliver and perform
this Agreement, and to issue, sell and deliver the Securities, and to
execute, deliver and perform the Transaction Documents, as applicable, and
each is duly qualified and is in good standing as a foreign corporation
authorized to do business in each jurisdiction where the operation,
ownership or leasing of property or the
11
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conduct of its business requires such qualification, except where the
failure to be so qualified could not, singly or in the aggregate,
reasonably be expected to have a material adverse effect on the respective
properties, business, results of operations, condition (financial or
otherwise), affairs or prospects of each of the Company and the
Subsidiaries taken as a whole (a "Material Adverse Effect").
(e) All of the issued and outstanding shares of capital stock of, or
other ownership interests in, each Subsidiary have been duly and validly
authorized and issued, and all of the shares of capital stock of, or other
ownership interests in, each Subsidiary are owned, directly or through
Subsidiaries, by the Company and, upon completion of the transactions
contemplated by the Transaction Documents, all of the shares of capital
stock of, or other ownership interests in the assets of Regent will be
owned directly or through Subsidiaries, by the Company. All such shares of
capital stock are fully paid and nonassessable, and are owned free and
clear of any security interest, mortgage, pledge, claim, lien or
encumbrance (each, a "Lien"), except for Liens arising under the Credit
Agreement, dated as of June 12, 1996, as amended, by and among The Chase
Manhattan Bank (as successor by merger to Chemical Bank), as Administrative
Agent, Banque Paribas, as Documentation Agent, and Bank of America,
Illinois, as Syndication Agent (the "Credit Facility".) There are no
outstanding subscriptions, rights, warrants, options, calls, convertible
securities, commitments of sale or Liens related to or entitling any person
to purchase or otherwise to acquire any shares of the capital stock of, or
other ownership interest in, any Subsidiary and with respect to Regent
except for the Regent Merger and stock options issued by Regent which
options will be cancelled in connection with the Regent Merger.
(f) The authorized, issued and outstanding capital stock of the
Company is as set forth in the Prospectus under "Capitalization"; all the
shares of issued and outstanding Common Stock have been duly authorized and
validly issued and are fully paid, nonassessable and not subject to any
preemptive or similar rights.
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(g) None of the Company, any of the Subsidiaries and Regent is in
violation of their respective charters or bylaws or in default in the
performance of any bond, debenture, note or any other evidence of
indebtedness or any indenture, mortgage, deed of trust or other contract,
lease or other instrument to which the Company or any of the Subsidiaries
or Regent is a party or by which any of them is bound, or to which any of
the property or assets of the Company or any of the Subsidiaries or Regent
is subject, except, in the case of Regent, as could not have a Material
Adverse Effect.
(h) The Transaction Documents have been duly authorized and validly
executed and delivered by the Registrants, as applicable, and constitute
valid and legally binding agreements of the Registrants, as applicable,
enforceable against the Registrants, as applicable, in accordance with
their terms (assuming, in the case of each of the Transaction Documents,
the due execution and delivery thereof by each party thereto).
(i) The Indenture has been duly authorized by the Registrants and,
when duly executed and delivered in accordance with its terms, will be a
valid and legally binding agreement of the Registrants, enforceable against
the Registrants in accordance with its terms, subject to applicable
bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer and
other similar laws affecting creditors' rights and remedies generally and
to general principles of equity (regardless of whether enforcement is
sought in a proceeding at law or in equity) and except to the extent that a
waiver of rights under any usury laws may be unenforceable.
(j) The execution and delivery of this Agreement, the Indenture and
the Securities by the Registrants, the issuance and sale of the Securities,
the performance of this Agreement and the Indenture and the consummation of
the transactions contemplated by this Agreement and the Indenture and the
execution and delivery of the Transaction Documents by each of the
Registrants and Regent, as applicable, and the consummation of the Pending
Transactions will not (1) conflict with or result in a breach or violation
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<PAGE>
of any of the respective charters or bylaws of the Company or any of the
Subsidiaries or Regent or any of the terms or provisions of, except, in the
case of Regent, as could not have a Material Adverse Effect or (2)
constitute a default or cause an acceleration of any obligation under or
result in the imposition or creation of (or the obligation to create or
impose) a Lien with respect to, any bond, note, debenture or other evidence
of indebtedness or any indenture, mortgage, deed of trust or other
agreement or instrument to which the Company or any of the Subsidiaries or
Regent is a party or by which it or any of them is bound, or to which any
properties of the Company or any of the Subsidiaries or Regent is or may be
subject, except, in the case of Regent, as could not have a Material
Adverse Effect, or (3) contravene any order of any court or governmental
agency or body having jurisdiction over the Company or any of the
Subsidiaries or Regent or any of their properties, or violate or conflict
with any statute, rule or regulation or administrative or court decree
applicable to the Company or any of the Subsidiaries or Regent or any of
their respective properties, except, in the case of Regent, as could not
have a Material Adverse Effect.
(k) There is no action, suit or proceeding before or by any court or
governmental agency or body, domestic or foreign, pending against or
affecting the Company or any of the Subsidiaries or Regent or any of their
respective properties, which is required to be disclosed in the
Registration Statement or the Prospectus, or which could reasonably be
expected to result, singly or in the aggregate, in a Material Adverse
Effect or which could reasonably be expected to materially and adversely
affect the consummation of this Agreement or the transactions contemplated
hereby or the consummation of the Transaction Documents or the Pending
Transactions, and to the best of the Company's knowledge, no such
proceedings are contemplated or threatened. No contract or document of a
character required to be described in the Registration Statement or the
Prospectus or to be filed as an exhibit to the Registration Statement is
not so described or filed.
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<PAGE>
(l) No action has been taken and no statute, rule or regulation or
order has been enacted, adopted or issued by any governmental agency or
body which prevents the issuance of the Securities, suspends the
effectiveness of the Registration Statement, prevents or suspends the use
of any preliminary prospectus or suspends the sale of the Securities in any
jurisdiction referred to in Section 4(g) hereof; no injunction, restraining
order or order of any nature by a Federal or state court of competent
jurisdiction has been issued with respect to the Company or any of the
Subsidiaries which would prevent or suspend the issuance or sale of the
Securities, the effectiveness of the Registration Statement, or the use of
any preliminary prospectus in any jurisdiction referred to in Section 4(g)
hereof; no action, suit or proceeding is pending against or, to the best of
the Company's knowledge, threatened against or affecting the Company or any
of the Subsidiaries before any court or arbitrator or any governmental
body, agency or official, domestic or foreign, which, if adversely
determined, would materially interfere with or adversely affect the
issuance of the Securities or in any manner draw into question the validity
of the Transaction Documents; and every request of the Commission or any
securities authority or agency of any jurisdiction for additional
information (to be included in the Registration Statement or the Prospectus
or otherwise) has been complied with in all material respects.
(m) (i) None of the Company, any of the Subsidiaries and Regent is
in violation of any Federal, state or local laws and regulations relating
to pollution or protection of human health or the environment (including,
without limitation, ambient air, surface water, ground water, land surface
or subsurface strata), including, without limitation, laws and regulations
relating to emissions, discharges, releases or threatened releases of toxic
or hazardous substances, materials or wastes, or petroleum and petroleum
products ("Materials of Environmental Concern"), or otherwise relating to
the protection of human health and safety, or the storage, disposal,
transport or handling of Materials of Environmental Concern (collectively,
"Environmental
15
<PAGE>
Laws"), which violation includes, but is not limited to, noncompliance with
any permits or other governmental authorizations, except to the extent that
any such violation could not have a Material Adverse Effect or otherwise
require disclosure in the Prospectus; and (ii) to the best knowledge of the
Company and any of the Subsidiaries, after due inquiry, (A) none of the
Company, any of the Subsidiaries, Regent and any of the other parties to the
Transaction Documents (the "Pending Transaction Parties") with respect to
the properties and radio stations to be purchased or sold pursuant to the
Transaction Documents (the "Pending Properties") has received any
communication (written or oral), whether from a governmental authority or
otherwise, alleging any such violation or noncompliance, and there are no
circumstances, either past, present or that are reasonably foreseeable,
that may lead to such violation in the future, (B) there is no pending or
threatened claim, action, investigation or notice (written or oral) by any
person or entity alleging potential liability for investigatory, cleanup,
or governmental responses costs, or natural resources or property damages,
or personal injuries, attorney's fees or penalties relating to (x) the
presence, or release into the environment, of any Material of Environmental
Concern at any location owned or operated by the Company, any of the
Subsidiaries, Regent, and the Pending Transaction Parties with respect to
the Pending Properties, now or in the past, or (y) circumstances forming
the basis of any violation, or alleged violation, of any Environmental Law
(collectively, "Environmental Claims") that could have a Material Adverse
Effect or otherwise require disclosure in the Prospectus, and (C) there are
no past or present actions, activities, circumstances, conditions, events
or incidents, that could form the basis of any Environmental Claim against
the Company, any of the Subsidiaries, Regent, and the Pending Transaction
Parties with respect to the Pending Properties, or against any person or
entity whose liability for any Environmental Claim the Company, any of the
Subsidiaries, Regent, and the Pending Transaction Parties with respect to
the Pending Properties, have retained or assumed either contractually or by
operation of law. In the ordinary course of its business, each of the
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<PAGE>
Company and the Subsidiaries and Regent conducts a periodic review of the
effect of Environmental Laws on the business, operations and properties of
the in the course of which it identifies and evaluates associated costs and
liabilities (including, without limitation, any capital or operating
expenditures required for clean-up, closure of properties or compliance
with Environmental Laws or any permit, license or approval, any related
constraints on operating activities and any potential liabilities to third
parties); on the basis of such review, the Company and the Subsidiaries,
have reasonably concluded that such associated costs and liabilities could
not have a Material Adverse Effect.
(n) None of the Company, any of the Subsidiaries, Regent, and to
the knowledge of the Company, the Pending Transaction Parties with respect
to the Pending Properties, has violated any Federal, state or local law
relating to discrimination in the hiring, promotion or pay of employees nor
any applicable wage or hour laws, nor any provisions of the Employee
Retirement Income Security Act of 1974 ("ERISA") or the rules and
regulations promulgated thereunder, nor has the Company or any of the
Subsidiaries or Regent or, to the knowledge of the Company, the Pending
Transaction Parties with respect to the Pending Properties, engaged in any
unfair labor practice, which in each case described in this sentence could
reasonably be expected to result, singly or in the aggregate, in a Material
Adverse Effect. There is (i) no significant unfair labor practice
complaint pending against the Company or any of the Subsidiaries or Regent
or, to the knowledge of the Company, the Pending Transaction Parties with
respect to the Pending Properties, or, to the best knowledge of the
Company, threatened against any of them, before the National Labor
Relations Board or any state or local labor relations board, and no
significant grievance or significant arbitration proceeding arising out of
or under any collective bargaining agreement is so pending against the
Company or any of the Subsidiaries or Regent or, to the knowledge of the
Company, the Pending Transaction Parties with respect to the Pending
Properties, or, to the best knowledge of the Company, threatened against
any of them, (ii) no
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<PAGE>
significant strike, labor dispute, slowdown or stoppage pending against the
Company or any of its Subsidiaries or Regent or, to the knowledge of the
Company, the Pending Transaction Parties with respect to the Pending
Properties, or, to the best knowledge of the Company, threatened against
the Company or any of the Subsidiaries, Regent, or the Pending Transaction
Parties with respect to the Pending Properties and (iii) to the best
knowledge of the Company, no union representation question existing with
respect to the employees of the Company or any of the Subsidiaries, or the
Pending Transaction Parties with respect to the Pending Properties, and, to
the best knowledge of the Company, no union organizing activities are
taking place, except (with respect to any matter specified in clause (i),
(ii) or (iii) above, singly or in the aggregate) such as could not have a
Material Adverse Effect.
(o) The Company, each of its Subsidiaries and Regent each have good
and marketable title, free and clear of all Liens, to all property and
assets described in the Registration Statement as being owned by it, except
for (i) Liens pursuant to the Credit Facility and (ii) Liens on general
office equipment which are not material to the Company's operations. All
leases to which the Company, the Subsidiaries or Regent are a party are
valid and binding and no default has occurred or is continuing thereunder
and the Company, each of its Subsidiaries and Regent enjoy peaceful and
undisturbed possession under all such leases to which any of them is a
party as lessee with such exceptions as do not materially interfere with
the use made by the Company or any such Subsidiary or Regent.
(p) The respective firm of accountants that has certified or shall
certify the applicable consolidated financial statements and supporting
schedules of the Company, Citicasters, Inc. ("Citicasters"), Noble
Broadcast Group, Inc. ("Noble") and the operations of six radio stations,
KIIS-FM and KIIS-AM in Los Angeles, KSDO-AM and KKBH-FM in San Diego and
WDAE-AM and WUSA-FM in Tampa-St. Petersberg (the "Selected Gannett Radio
Stations") owned and operated by Pacific and Southern Company, Inc., a
subsidiary of Gannett Co., Inc.
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<PAGE>
("Gannett") filed, to be filed or incorporated by reference with the
Commission as part of the Registration Statement and the Prospectus are
independent public accountants with respect to the Company, the
Subsidiaries and the Selected Gannett Radio Stations, Citicasters or Noble,
as required by the Act. The consolidated historical and PRO FORMA
financial statements, together with related schedules and notes, set forth
in the Prospectus and the Registration Statement comply as to form in all
material respects with the requirements of the Act. Such historical
financial statements fairly present the consolidated financial position of
the Company, the Subsidiaries and the Selected Gannett Radio Stations,
Citicasters and Noble at the respective dates indicated and the results of
their operations and their cash flows for the respective periods indicated,
in accordance with generally accepted accounting principles ("GAAP")
consistently applied throughout such periods. Such PRO FORMA financial
statements have been prepared on a basis consistent with such historical
statements, except for the PRO FORMA adjustments specified therein, and
give effect to assumptions made on a reasonable basis and present fairly
the historical and proposed transactions contemplated by the Prospectus and
the Transaction Documents. The other financial and statistical information
and data included in the Prospectus and in the Registration Statement,
historical and PRO FORMA, are, in all material respects, accurately
presented and prepared on a basis consistent with such financial statements
and the books and records of the Company and the Selected Gannett Radio
Stations, Citicasters and Noble.
(q) Subsequent to the respective dates as of which information is
given in the Registration Statement and the Prospectus and up to the
Closing Date, none of the Company, any of the Subsidiaries or Regent have
incurred any liabilities or obligations, direct or contingent, which are
material to the Company and the Subsidiaries taken as a whole, nor entered
into any transaction not in the ordinary course of business and there has
not been, singly or in the aggregate, any material adverse change, or any
development which could reasonably be expected to involve a material adverse
change, in the proper-
19
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ties, business, results of operations, condition (financial or otherwise),
affairs or prospects of the Company and the Subsidiaries taken as a whole
(a "Material Adverse Change").
(r) All tax returns required to be filed by the Company, any of the
Subsidiaries and Regent in any jurisdiction have been filed, other than
those filings being contested in good faith, and all material taxes,
including withholding taxes, penalties and interest, assessments, fees and
other charges due or claimed to be due from such entities have been paid,
other than those being contested in good faith and for which adequate
reserves have been provided or those currently payable without penalty or
interest.
(s) No authorization, approval or consent or order of, or filing
with, any court or governmental body or agency is necessary in connection
with the transactions contemplated by the Pending Transactions, except such
as may be required by the NASD or have been obtained and made under the
Act, the Exchange Act, the Trust Indenture Act of 1939, as amended (the
"TIA") or state securities or "Blue Sky" laws or regulations. Neither the
Company nor any of its affiliates is presently doing business with the
government of Cuba or with any person or affiliate located in Cuba.
(t) (i) Each of the Company, the Subsidiaries and Regent and, to
the knowledge of the Company, any of the Pending Transaction Parties with
respect to the Pending Properties, has all certificates, consents,
exemptions, orders, permits, licenses, authorizations, or other approvals
(each, an "Authorization") of and from, and has made all declarations and
filings with, all Federal, state, local and other governmental authorities
(including the Federal Communications Commission ("FCC")), all
self-regulatory organizations and all courts and other tribunals, necessary
or required to own, lease, license and use its properties and assets and to
conduct its business in the manner described in the Prospectus, except to
the extent that the failure to obtain or file could not, singly or in the
aggregate, reasonably be expected to have a Material
20
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Adverse Effect, (ii) all such Authorizations are valid and in full force
and effect, (iii) each of the Company, the Subsidiaries and Regent and,
to the knowledge of the Company, the Pending Transaction Parties with
respect to the Pending Properties, is in compliance in all material
respects with the terms and conditions of all such Authorizations and with
the rules and regulations of the regulatory authorities and governing
bodies having jurisdiction with respect thereto and (iv) each commercial
radio broadcast station identified in the Prospectus as owned and operated
by any of the Company, the Subsidiaries or Regent, or, to the knowledge of
the Company, the Pending Transaction Parties with respect to the Pending
Properties, as applicable, is operating with the maximum facilities
specified by the Authorization pertaining thereto.
(u) Neither the Company nor any of the Subsidiaries is (a) an
"investment company" or a company "controlled" by an investment company
within the meaning of the Investment Company Act of 1940, as amended, or
(b) a "holding company" or a "subsidiary company" of a holding company, or
an "affiliate" thereof within the meaning of the Public Utility Holding
Company Act of 1935, as amended.
(v) No holder of any security of the Company has or will have any
right to require the registration of such security by virtue of any
transaction contemplated by this Agreement.
(w) Each of the Company, the Subsidiaries and Regent and, to the
knowledge of the Company, the Pending Transaction Parties with respect to
the Pending Properties, possesses the patents, patent rights, licenses,
inventions, copyrights, know-how (including trade secrets and other
unpatented and/or unpatentable proprietary or confidential information,
systems or procedures), trademarks, service marks and trade names
(collectively, "Intellectual Property") presently employed by them in
connection with the businesses now operated by them, and none of the
Company, the Subsidiaries and Regent, and, to the knowledge of the
Company, the Pending Transaction Parties with respect to the Pending
Properties, has received any notice of infringement of or
21
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conflict with asserted rights of others with respect to the foregoing
which, singly or in the aggregate, could reasonably be expected to result
in any Material Adverse Change. The use of such Intellectual Property in
connection with the business and operations of each of the Company, the
Subsidiaries and Regent, and, to the knowledge of the Company, the Pending
Transaction Parties with respect to the Pending Properties does not, to the
Company's knowledge, infringe on the rights of any person except where any
such infringement has not resulted in, or could not reasonably be expected
to result in any Material Adverse Change.
(x) Each certificate signed by any officer of any Registrant and
delivered to the Underwriters or counsel for the Underwriters shall be
deemed to be a representation and warranty by the applicable Registrant to
each Underwriter as to the matters covered thereby.
(y) Each of the Company, the Subsidiaries and Regent maintains a
system of internal accounting controls sufficient to provide reasonable
assurance that (1) transactions are executed in accordance with
management's general or specific authorizations; (2) transactions are
recorded as necessary to permit preparation of financial statements in
conformity with GAAP and to maintain asset accountability; (3) access to
assets is permitted only in accordance with management's general or
specific authorization; and (4) the recorded accountability for assets is
compared with the existing assets at reasonable intervals and appropriate
action is taken with respect to any differences.
(z) The Company has not (i) taken, directly or indirectly, any action
designed to cause or to result in, or that has constituted or which could
reasonably be expected to constitute, the stabilization or manipulation of
the price of any security of the Company to facilitate the sale or resale
of the Securities or (ii) since the initial filing of the Registration
Statement (A) sold, bid for, purchased, or paid anyone any compensation for
soliciting purchases of, the Securities or (B) paid or agreed to pay to any
person any compensation for soliciting
22
<PAGE>
another to purchase any other securities of the Company.
(aa) Each of the Company, the Subsidiaries and Regent and, to the
knowledge of the Company, the Pending Transaction Parties with respect to
the Pending Properties, maintains insurance covering their properties,
operations, personnel and businesses. Such insurance insures against such
losses and risks as are adequate in accordance with customary industry
practice to protect the Company and its Subsidiaries and their businesses.
None of the Company, any Subsidiary and Regent, and, to the knowledge of
the Company, the Pending Transaction Parties with respect to the Pending
Properties, has received notice from any insurer or agent of such insurer
that substantial capital improvements or other expenditures will have to be
made in order to continue such insurance. All such insurance is
outstanding and duly in force on the date hereof and will be outstanding
and duly in force on the Closing Date.
(bb) Neither the Company nor Regent has, directly or indirectly, paid
or delivered any fee, commission or other sum of money or item or property,
however characterized, to any finder, agent, government official or other
party, in the United States or any other country, which is in any manner
related to the business or operations of the Company or Regent,
respectively, which the Company knows or has reason to believe to have been
illegal under any Federal, state or local laws of the United States or any
other country having jurisdiction; and neither the Company nor Regent has
participated, directly or indirectly, in any boycotts or other similar
practices in contravention of law affecting any of its actual or potential
customers.
(cc) Neither the Company nor Regent owns any "margin securities" as
that term is defined in Regulations G and U of the Board of Governors of
the Federal Reserve System (the "Federal Reserve Board").
(dd) Each person described in the Prospectus as a person to whom the
Company or any of the Sub-
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sidiaries provides programming pursuant to a local marketing agreement or a
joint sales agreement (a "Licensee") has been issued by the FCC an FCC
license (which is in full force and effect) for the operation of the
commercial radio broadcast station identified in the Prospectus as
programmed by the Company or any of its Subsidiaries, which licenses expire
on the dates set forth in the Prospectus.
(ee) Each person described in the Prospectus as a person to whom the
Company or any of the Subsidiaries provides programming pursuant to an
exclusive sales agency agreement (a "Mexican Licensee"), has been issued by
the Mexican government all necessary Mexican licenses (which are in full
force and effect) for the operation of the commercial radio broadcast
station identified in the Prospectus as programmed by the Company or any of
its Subsidiaries. Each of the Company and its Subsidiaries have all
Authorizations necessary to deliver programming to the Mexican Licensees.
(ff) Each of the Company, its Subsidiaries and Regent and, to the
knowledge of the Company, the Pending Transaction Parties with respect to
the Pending Properties, has filed with the FCC all material reports,
documents, instruments, information and applications required to be filed
pursuant to the FCC's rules, regulations and requests. No notice has been
issued by the FCC which could permit, or after notice or lapse of time or
both could permit, revocation or termination of any FCC license of any of
the Subsidiaries, Regent or, to the knowledge of the Company, the Pending
Transaction Parties with respect to the Pending Properties, or to the
knowledge of the Company, of any of the Licensees prior to the expiration
dates thereof or which could reasonably be expected to result in any other
material impairment of any of the Subsidiaries', or Regent or its
subsidiaries, or, to the knowledge of the Company, the Pending Transaction
Parties or their subsidiaries with respect to the Pending Properties, or,
to the knowledge of the Company, of any of the Licensees' rights thereunder
and which could reasonably be expected to, singly or in the aggregate, have
a Material Adverse Effect.
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(gg) Each of the Stations is now operating, and has operated, in
compliance in all material respects with the Communications Act of 1934, as
amended (the "Communications Act"), and the published rules and regulations
of the FCC. There is not issued, outstanding or pending any Notice of
Violation, Notice of Apparent Liability, Order to Show Cause, material
complaint or investigation by or before the FCC which could materially
threaten or materially adversely affect any of the Company's or any of its
Subsidiaries', Regent or its subsidiaries', or, to the knowledge of the
Company, the Pending Transaction Parties or their subsidiaries' with
respect to the Pending Properties, or, to the knowledge of the Company, any
Licensees' FCC licenses or which could reasonably be expected to result in
any material adverse effect upon any of the Company's Subsidiaries, Regent
or its subsidiaries, or, to the knowledge of the Company, the Pending
Transaction Parties or their subsidiaries with respect to the Pending
Properties, or, to the knowledge of the Company, any Licensees' operation
of its respective stations and which could reasonably be expected to,
singly or in the aggregate, have a Material Adverse Effect, nor does the
Company have reason to believe that the FCC licenses with respect to the
Stations will not be renewed for a full eight year term when such FCC
licenses are due for renewal.
(hh) The execution, delivery and performance of the obligations by
the Company under this Agreement are not and will not be contrary to the
Communications Act, as amended, will not result in any violation of the
FCC's published rules and regulations, will not cause any forfeiture or
impairment of any FCC license of any of the Stations by or before the FCC,
and will not require any consent, approval or authorization of the FCC.
(ii) The execution, delivery and performance of the obligations by
each of the Registrants, as applicable, and Regent (each, a "Transaction
Party" and, collectively, the "Transaction Parties") and, to the knowledge
of the Company, by the Pending Transaction Parties with respect to the
Pending Properties to the extent each is a party to the
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Transaction Documents are not and will not be contrary to the
Communications Act, will not result in any violation of the FCC's published
rules and regulations, will not cause any forfeiture or impairment of any
FCC license of any of the Stations by or before the FCC, and will not
require any consent, approval or authorization of the FCC (other than
approval for a transfer of control over the relevant Stations). All
necessary applications, exhibits or other filings required by the FCC for
transfer of control of the Stations now controlled by Regent, and, to the
knowledge of the Company, by the Pending Transaction Parties with respect
to the Pending Properties pursuant to the applicable Transaction Documents
have been filed with the FCC (the "Transfer Applications"). To the best of
the Company's knowledge, there are no circumstances that would cause the
FCC to reject the Transfer Applications.
(jj) The Transaction Parties and, to the knowledge of the Company,
the Pending Transaction Parties, have, to the extent each is or will be a
party thereto, all requisite corporate power and authority to execute,
deliver and perform their respective obligations under each of the
Transaction Documents; each of the Transaction Documents has been duly and
validly authorized, executed and delivered by the Transaction Parties and,
to the knowledge of the Company, the Pending Transaction Parties, to the
extent each is a party thereto, and each constitutes a valid and legally
binding agreement of the Transaction Party and, to the knowledge of the
Company, the Pending Transaction Parties, enforceable against each
Transaction Party or Pending Transaction Party, as applicable, in
accordance with its terms; except as set forth in the Prospectus, no
consent, approval, authorization or order of any court or governmental
agency or body is required for the performance of any of the Transaction
Documents by each of the Transaction Parties or, to the knowledge of the
Company, each Pending Transaction Party, to the extent each is a party
thereto, or the consummation by each of the Transaction Parties, or to the
knowledge of the Company, each of the Pending Transaction Parties, of any
of the transactions contemplated thereby, except such as may be required
26
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and have been obtained, or upon effectiveness of the Registration
Statement, will have been obtained, under the Act, the Exchange Act, the
Trust Indenture Act of 1939, as amended (the "TIA"), or state securities or
"Blue Sky" laws or regulations or such as may be required by the NASD in
connection with the purchase and distribution of the Securities by the
Underwriters; and none of the Transaction Parties, is (i) in violation of
its charter or bylaws, (ii) in violation of any statute, judgment, decree,
order, rule or regulation applicable to any of them or any of their
respective properties or assets, which violation would have a Material
Adverse Effect, or (iii) in default in the performance or observance of any
obligation, agreement, covenant or condition contained in any of the
Transaction Documents or any other contract, indenture, mortgage, deed of
trust, loan agreement, note, lease, license, franchise agreement, permit,
Authorizations, certificate or agreement or instrument to which any of them
is a party or to which any of them is subject, which default would have a
Material Adverse Effect.
(kk) The execution, delivery and performance by the Transaction
Parties, to the extent each is a party thereto, of each of the Transaction
Documents, and the consummation by the respective Transaction Parties of
the transactions contemplated thereby, will not violate, conflict with or
constitute or result in a breach of or a default under (or an event which,
with notice or lapse of time, or both, would constitute a breach of or a
default under) any of (i) the terms or provisions of any of the Transaction
Documents or any other indenture, mortgage, deed of trust, loan agreement,
note, lease, license, franchise agreement, or agreement or instrument to
which a Transaction Party, is a party or to which any of their respective
properties or assets are subject, which violation, conflict, breach or
default would have a Material Adverse Effect, (ii) the charter or bylaws of
the Transaction Party, or (iii) any statute, judgment, decree, order, rule
or regulation of any court, governmental agency or other body or self
regulatory organization applicable to each Transaction Party, or any of
their respective properties or assets, which violation, conflict,
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breach or default would have a Material Adverse Effect.
(ll) The Regent Merger has been duly authorized by the relevant
Transaction Parties and the transactions contemplated by the Transaction
Documents have been approved, to the extent required, by all appropriate
corporate action; approval of the transactions contemplated by the
Transaction Documents by the shareholders of the Company is not required.
(mm) The Company has delivered to the Underwriters a true and correct
copy of each of the Transaction Documents that have been executed and
delivered prior to the date of this Agreement and each other Transaction
Document in the form substantially as it will be executed and delivered,
together with all related agreements and all schedules and exhibits
thereto, and there have been no amendments, alterations, modifications or
waivers of any of the provisions of any of the Transaction Documents since
their date of execution or from the form in which it has been delivered to
the Underwriters; there exists as of the date hereof (after giving effect
to the transactions contemplated by the Transaction Documents) no event or
condition which would constitute a default or an event of default (in each
case as defined in the Credit Facility) under the Credit Facility, and no
event or condition which would constitute a default or an event of default
(in each case as defined in each of the Transaction Documents) under any of
the Transaction Documents other than the Credit Facility, which would
result in a Material Adverse Effect or materially adversely effect the
ability of each of the Company or Regent to consummate the transactions
contemplated by the Transaction Documents.
(nn) No director, officer or substantial shareholder of the Company
has a 5% or greater interest (or no such persons collectively have a 10% or
greater interest), directly or indirectly, in Regent.
(oo) The shares of Common Stock to be issued pursuant to the Regent
Merger Agreement, will not
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have upon issuance, voting power equal to or in excess of 20% of the voting
power outstanding before the issuance of the Common Stock or securities
convertible into or exercisable for Common Stock.
(pp) The Company has filed with the Commission all filings that are
required to be filed as of the date hereof with respect to the financial
statements of each of the Transaction Parties (as defined herein) in
filings made under the Act and under the Exchange Act, specifically as
required by Rule 3-05 of Regulation S-X and General Instructions and Item 7
of Form 8-K.
(ss) Each of the representations and warranties contained in each of
the Transaction Documents are true and correct on and as of the date
hereof, except as could not have a Material Adverse Effect.
6. INDEMNIFICATION.
(a) The Registrants, jointly and severally, agree to indemnify and
hold harmless (i) each of the Underwriters and (ii) each person, if any,
who controls (within the meaning of Section 15 of the Act or Section 20 of
the Exchange Act) any of the Underwriters (any of the persons referred to
in this clause (ii) being hereinafter referred to as a "controlling
person"), and (iii) the respective officers, directors, partners, employees,
representatives and agents of any of the Underwriters or any controlling
person (any person referred to in clause (i), (ii) or (iii) may hereinafter
be referred to as an "Indemnified Person") to the fullest extent lawful,
from and against any and all losses, claims, damages, liabilities,
judgments, actions and expenses (including without limitation and as
incurred, reimbursement of all reasonable costs of investigating, preparing,
pursuing or defending any claim or action, or any investigation or
proceeding by any governmental agency or body, commenced or threatened,
including the reasonable fees and expenses of counsel to any Indemnified
Person) directly or indirectly caused by, related to, based upon, arising
out of or in connection with any untrue statement or alleged untrue
statement of a material fact contained in the Registration Statement (or
any amendment thereto), including the
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information deemed to be a part of the Registration Statement or the
Prospectus (including any amendment or supplement thereto) or any
preliminary prospectus, or any omission or alleged omission to state
therein a material fact required to be stated therein or necessary to make
the statements therein (in the case of the Prospectus, in light of the
circumstances under which they were made) not misleading, PROVIDED,
HOWEVER, that (i) except insofar as such losses, claims, damages,
liabilities, judgments, actions or expenses are caused by an untrue
statement or omission or alleged untrue statement or omission that is made
in reliance upon and in conformity with information relating to any of the
Underwriters furnished in writing to the Company by DLJ expressly for
use in the Registration Statement (or any amendment thereto) or the
Prospectus (or any amendment or supplement thereto) or any preliminary
prospectus, (ii) the foregoing indemnity agreement with respect to any
untrue statement contained in or omission from a preliminary prospectus
shall not inure to the benefit of the Underwriter from whom the person
asserting any such losses, liabilities, claims, damages or expenses
purchased Securities, or any person controlling such Underwriter, if a copy
of the Prospectus (as then amended or supplemented, if the Company shall
have furnished any amendments or supplements thereto) was not sent or given
by or on behalf of the Underwriters to such person, if such is required by
law, at or prior to the written confirmation of the sale of such Securities
to such person and the untrue statement contained in or omission from such
preliminary prospectus was corrected in the Prospectus (or the Prospectus as
amended or supplemented). The Company shall notify you promptly of the
institution, threat or assertion of any claim, proceeding (including any
governmental investigation) or litigation in connection with the matters
addressed by this Agreement which involves the Company or an Indemnified
Person.
(b) In case any action or proceeding (including any governmental
investigation) shall be brought or asserted against any of the Indemnified
Persons with respect to which indemnity may be sought against the
Registrants, such Underwriter (or the Underwriter controlled by such
controlling person) shall
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<PAGE>
promptly notify the Company in writing (provided, that the failure to
give such notice shall not relieve the Registrants of their obligations
pursuant to this Agreement). Such Indemnified Person shall have the right
to employ its own counsel in any such action and the fees and expenses of
such counsel shall be paid, as incurred, by the Registrants (regardless of
whether it is ultimately determined that an Indemnified Party is not
entitled to indemnification hereunder). The Registrants shall not, in
connection with any one such action or proceeding or separate but
substantially similar or related actions or proceedings in the same
jurisdiction arising out of the same general allegations or circumstances,
be liable for the reasonable fees and expenses of more than one separate
firm of attorneys (in addition to any local counsel) at any time for such
Indemnified Persons, which firm shall be designated by DLJ. The Registrants
shall be liable for any settlement of any such action or proceeding effected
with the Company's prior written consent, which consent will not be
unreasonably withheld, and the Registrants, jointly and severally, agree to
indemnify and hold harmless any Indemnified Person from and against any
loss, claim, damage, liability or expense by reason of any settlement of any
action effected with the written consent of the Company. Notwithstanding
the foregoing sentence, if at any time an Indemnified Person shall have
requested the Registrants to reimburse the Indemnified Person for fees and
expenses of counsel as contemplated by the second sentence of this
paragraph, the Registrants, jointly and severally, agree that they shall be
liable for any settlement of any proceeding effected without the Company's
written consent if (i) such settlement is entered into more than 10 business
days after receipt by the Company of the aforesaid request, and (ii) the
Registrants shall not have reimbursed the Indemnified Person in accordance
with such request prior to the date of such settlement. The Registrants
shall not, without the prior written consent of each Indemnified Person,
settle or compromise or consent to the entry of judgment in or otherwise
seek to terminate any pending or threatened action, claim, litigation or
proceeding in respect of which indemnification or contribution may be
sought hereunder (whether or not any Indemnified Person is a party thereto),
unless such settlement, compromise, consent or termination
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<PAGE>
includes an unconditional release of each Indemnified Person from all
liability arising out of such action, claim, litigation or proceeding.
(c) Each of the Underwriters agrees, severally and not jointly, to
indemnify and hold harmless the Registrants, their directors, their officers
who sign the Registration Statement, any person controlling (within the
meaning of Section 15 of the Act or Section 20 of the Exchange Act) the
Registrants, and the officers, directors, partners, employees,
representatives and agents of each such person, to the same extent as the
foregoing indemnity from the Registrants to each of the Indemnified Persons,
but only with respect to claims and actions based on information relating to
such Underwriter furnished in writing by DLJ expressly for use in the
Prospectus.
(d) If the indemnification provided for in this Section 6 is
unavailable to an indemnified party in respect of any losses, claims,
damages, liabilities, judgments, actions or expenses referred to herein,
then each indemnifying party, in lieu of indemnifying such indemnified
party, shall contribute to the amount paid or payable by such indemnified
party as a result of such losses, claims, damages, liabilities, judgments,
actions and expenses (i) in such proportion as is appropriate to reflect
the relative benefits received by the indemnifying party on the one hand
and the indemnified party on the other hand from the offering of the
Securities or (ii) if the allocation provided by clause (i) above is not
permitted by applicable law, in such proportion as is appropriate to
reflect not only the relative benefits referred to in clause (i) above but
also the relative fault of the indemnifying parties and the indemnified
party, as well as any other relevant equitable considerations. The
relative benefits received by the Registrants, on the one hand, and any of
the Underwriters, on the other hand, shall be deemed to be in the same
proportion as the total proceeds from the offering (net of underwriting
discounts and commissions but before deducting expenses) received by the
Registrants bear to the total underwriting discounts and commissions
received by such Underwriter, in each case as set forth in the table on the
cover page of the Prospec-
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<PAGE>
tus. The relative fault of the Registrants and the Underwriters shall be
determined by reference to, among other things, whether the untrue or
alleged untrue statement of a material fact or the omission or alleged
omission to state a material fact related to information supplied by the
Registrants or the Underwriters and the parties' relative intent, knowledge,
access to information and opportunity to correct or prevent such statement
or omission. The indemnity and contribution obligations of the
Registrants set forth herein shall be in addition to any liability or
obligation the Registrants may otherwise have to any Indemnified Person.
The Registrants and the Underwriters agree that it would not be just and
equitable if contribution pursuant to this Section 6(d) were determined by
PRO RATA allocation (even if the Underwriters were treated as one entity
for such purpose) or by any other method of allocation which does not take
account of the equitable considerations referred to in the immediately
preceding paragraph. The amount paid or payable by an indemnified party as
a result of the losses, claims, damages, liabilities, judgments, actions or
expenses referred to in the immediately preceding paragraph shall be deemed
to include, subject to the limitations set forth above, any legal or other
expenses reasonably incurred by such indemnified party in connection with
investigating or defending any such action or claim. Notwithstanding the
provisions of this Section 6, none of the Underwriters (and its related
Indemnified Persons) shall be required to contribute, in the aggregate, any
amount in excess of the amount by which the total underwriting discount
applicable to the Securities purchased by such Underwriter exceeds the
amount of any damages which such Underwriter has otherwise been required to
pay by reason of such untrue or alleged untrue statement or omission or
alleged omission. No person guilty of fraudulent misrepresentation (within
the meaning of Section 11(f) of the Act) shall be entitled to contribution
from any person who was not guilty of such fraudulent misrepresentation.
The Underwriters' obligations to contribute pursuant to this Section 6(d)
are several in proportion to the respective number
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<PAGE>
of Securities purchased by each of the Underwriters hereunder and not
joint.
7. CONDITIONS OF UNDERWRITERS' OBLIGATIONS. The several obligations
of the Underwriters to purchase the Securities under this Agreement are subject
to the satisfaction of each of the following conditions:
(a) All the representations and warranties of the Registrants
contained in this Agreement shall be true and correct on the Closing Date
with the same force and effect as if made on and as of the Closing Date.
The Company shall have performed or complied with all of its obligations
and agreements herein contained and required to be performed or complied
with by it at or prior to the Closing Date.
(b) (i) The Registration Statement shall have become effective (or,
if a post-effective amendment is required to be filed pursuant to Rule 430A
promulgated under the Act, such post-effective amendment shall have become
effective) not later than 10:00 A.M. (and in the case of a Registration
Statement filed under Rule 462(b) of the Act, not later than 10:00 P.M.),
New York City time, on the date of this Agreement or at such later date and
time as you may approve in writing, (ii) at the Closing Date, no stop order
suspending the effectiveness of the Registration Statement shall have been
issued and no proceedings for that purpose shall have been commenced or
shall be pending before or contemplated by the Commission and every request
for additional information on the part of the Commission shall have been
complied with in all material respects, and (iii) no stop order suspending
the sale of the Securities in any jurisdiction referred to in Section 4(g)
shall have been issued and no proceeding for that purpose shall have been
commenced or shall be pending or threatened.
(c) No action shall have been taken and no statute, rule, regulation
or order shall have been enacted, adopted or issued by any governmental
agency which would, as of the Closing Date, prevent the issuance of the
Securities; and no injunction, restraining order or order of any nature by
a Federal or state court of competent jurisdiction shall
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<PAGE>
have been issued as of the Closing Date which would prevent the issuance of
the Securities or the consummation of the Pending Transactions.
(d) (i) Since the date hereof or since the dates as of which
information is given in the Registration Statement and the Prospectus,
there shall not have been any Material Adverse Change, (ii) since the date
of the latest balance sheet included, or incorporated by reference, in the
Registration Statement and the Prospectus, there shall not have been any
material change in the capital stock or long-term debt, or material
increase in short-term debt, of the Company or any of the Subsidiaries
taken as a whole and (iii) the Company and the Subsidiaries taken as a
whole, shall have no liability or obligation, direct or contingent, that is
material to the Company and the Subsidiaries taken as a whole,
respectively, and is required to be disclosed on a balance sheet in
accordance with GAAP and is not disclosed on the latest applicable balance
sheet included in the Registration Statement and the Prospectus.
(e) You shall have received a certificate of the Company, dated the
Closing Date, executed on behalf of the Company, by the President or any
Vice President and a principal financial or accounting officer of the
Company confirming, as of the Closing Date, the matters set forth in
paragraphs (a), (b), (c) and (d) of this Section 7.
(f) On the Closing Date, you shall have received:
(1) an opinion (satisfactory to you and your counsel), dated the
Closing Date, of Graydon, Head & Ritchey, counsel for the Company, (which
opinion shall, in regards to any matters covered by the law of the States
of Colorado, Florida or Georgia, rely on the opinion of Colorado, Florida
or Georgia counsel, respectively, reasonably acceptable to the
Underwriters) to the effect that:
(i) (A) the Company and each of the Subsidiaries is a duly
organized and validly existing corporation in good stand-
35
<PAGE>
ing under the laws of its jurisdiction of incorporation, has the
requisite corporate power and authority to own, lease and operate its
properties and to conduct its business as described in the
Registration Statement and the Prospectus, and is duly qualified as a
foreign corporation and in good standing in each jurisdiction where
the ownership, leasing or operation of property or the conduct of its
business requires such qualification, except where the failure to be
so qualified could not be reasonably expected to have, singly or in
the aggregate, a Material Adverse Effect; and (B) the Company has the
requisite corporate power and authority to execute, deliver and
perform this Agreement;
(ii) the Transaction Documents have been duly authorized,
executed and delivered by the Registrants, as applicable;
(iii) the authorized, issued and outstanding capital stock
of the Company is as set forth in the Prospectus under
"Capitalization";
(iv) all of the issued and outstanding shares of capital
stock of, or other ownership interests in, each Subsidiary have been
duly and validly authorized and issued, and the shares of capital
stock of, or other ownership interests in, each Subsidiary are owned,
directly or through Subsidiaries, by the Company, are fully paid and
nonassessable, and are owned free and clear of any Lien, except for
Liens pursuant to the Credit Facility;
(v) to the knowledge of such counsel (after due inquiry)
there are no outstanding subscriptions, rights, warrants, options,
calls, convertible securities, commitments of sale or Liens related to
or entitling any person to purchase or otherwise to acquire any shares
of the capital stock of, or other ownership interest in, any
Subsidiary except as disclosed in the Prospectus;
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<PAGE>
(vi) neither the Company nor any of the Subsidiaries is (A)
an "investment company" or a company "controlled" by an investment
company within the meaning of the Investment Company Act of 1940, as
amended, or (B) a "holding company" or a "subsidiary company" of a
holding company, or an "affiliate" thereof within the meaning of the
Public Utility Holding Company Act of 1935, as amended;
(vii) neither the consummation of the transactions
contemplated by this Agreement nor the sale, issuance, execution or
delivery of the Securities, will violate Regulation G, T, U or X of
the Board of Governors of the Federal Reserve System;
(viii) when authenticated in accordance with the terms of
the Indenture and delivered to and paid for in accordance with the
terms of this Agreement, the Guarantee and the Securities will
constitute valid and legally binding obligations of the Guarantors and
JCC, respectively, enforceable against the Guarantors and JCC,
respectively, in accordance with their respective terms and entitled
to the benefits of the Indenture, subject to applicable bankruptcy,
insolvency, fraudulent conveyance, reorganization, moratorium and
similar laws affecting creditors' rights and remedies generally and to
general principles of equity (regardless of whether enforcement is
sought in a proceeding at law or in equity) and except to the extent
that a waiver of rights under any usury laws may be unenforceable;
(ix) the Indenture, assuming due authorization, execution
and delivery thereof by the Trustee, constitutes a valid and legally
binding agreement of the Registrants, respectively, enforceable
against the Registrants, in accordance with its terms, subject to
applicable bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium and similar laws affecting creditors'
rights and remedies generally and to general principles of equity
(regardless of whether enforcement is
37
<PAGE>
sought in a proceeding at law or in equity) and except to the extent
that a waiver of rights under any usury laws may be unenforceable;
(x) the Securities and the Indenture conform in all
material respects to the descriptions thereof contained in the
Prospectus;
(xi) to the best knowledge of such counsel, there is no
current, pending or threatened action, suit or proceeding before any
court or governmental agency, authority or body or any arbitrator
involving the Company or any Subsidiary or to which any of their
respective properties is subject of a character required to be
disclosed in the Registration Statement which is not adequately
disclosed in the Prospectus;
(xii) the descriptions in the Registration Statement and the
Prospectus of statutes, legal and governmental proceedings and
contracts and other documents are accurate in all material respects
and fairly present the information required to be shown; and such
counsel does not know of any legal or governmental proceedings
required to be described in the Registration Statement or Prospectus
which are not described as required or of any contracts or documents
of a character required to be described in the Registration Statement
or Prospectus or to be filed as exhibits to the Registration Statement
which are not described and filed as required; it being understood
that such counsel need express no opinion as to the financial
statements, notes or schedules or other financial data included
therein;
(xiii) the Registration Statement has become effective under
the Act; any required filing of the Prospectus, and any supplements
and term sheets thereto, pursuant to Rule 424(b) has been made in the
manner and within the time period required by Rule 424(b); and to the
knowledge of such counsel (after due inquiry) no stop order suspending
the effec-
38
<PAGE>
tiveness of the Registration Statement or any part thereof has been
issued and no proceedings therefor have been instituted or are pending
or contemplated under the Act; and the Indenture has been duly
qualified under the TIA;
(xiv) no authorization, approval, consent or order of, or
filing with, any court or governmental body or agency is required for
the consummation by the Company of the transactions contemplated by
the Agreement, except such as have been obtained and made under the
Act, the Exchange Act, the TIA, state securities or "Blue Sky" laws or
regulations or such as may be required by the NASD; no authorization,
approval, consent or order of, or filing with, any court or
governmental body or agency is required for the consummation by the
Registrants, as applicable, or Regent, of the transactions
contemplated by the applicable Transaction Documents, except as
disclosed in the Prospectus; the execution and delivery of this
Agreement and the Indenture, the issuance and sale of the Securities,
the performance of this Agreement and the consummation of the
transactions contemplated by this Agreement will not result in a
breach or violation of any of (A) any of the respective charters or
bylaws of the Company or any of the Subsidiaries or (B) to the
knowledge of such counsel (after due inquiry), the terms or provisions
of any agreement or instrument which is filed as an exhibit to the
Registration Statement and to which the Company or any of the
Subsidiaries is a party or by which any of them is bound, or to which
any of the properties of the Company or any of the Subsidiaries is
subject, or (C) to the knowledge of such counsel (after due inquiry)
constitute a default under, any statute, rule or regulation to which
the Company or any Subsidiary is bound or to which any of the
properties of the Company or any Subsidiary is subject or (D) any
order of any court or governmental agency or body having jurisdiction
over the Company or any of the Subsidiaries or any of their properties
which conflict, breach or default in each of the cases described in
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<PAGE>
clauses (B), (C) and (D) could reasonably be expected to have a
Material Adverse Effect;
(xv) at the time it became effective and on the Closing
Date, the Registration Statement complied as to form in all material
respects with the Act;
(xvi) to the knowledge of such counsel, neither the Company
nor the Subsidiaries has received any notice of infringement of or
conflict with asserted rights of others with respect to the
Intellectual Property which, singly or in the aggregate, if the
subject of an unfavorable decision, ruling or finding, could
reasonably be expected to result in a Material Adverse Change. The
use of such Intellectual Property in connection with the business and
operations of the Company and the Subsidiaries does not, to the
knowledge of such counsel, infringe on the rights of any person;
(xvii) to the best knowledge of such counsel, (A) there are
no franchises, contracts, indentures, mortgages, loan agreements,
notes, leases or other instruments to which the Company, any of the
Subsidiaries or Regent are a party or by which any of them may be
bound that are required to be described in the Registration Statement
or the Prospectus or to be filed as exhibits to the Registration
Statement other than those described therein or filed as exhibits
thereto and (B) no default exists in the due performance or observance
of any obligation, agreement, covenant or condition contained in any
contract, indenture, mortgage, loan agreement, note, lease or other
instrument so described or filed in the Registration Statement or the
Prospectus or to be filed as exhibits to the Registration Statement,
or any agreement identified on a schedule attached to the opinion,
except for defaults which could not reasonably be expected to have a
Material Adverse Effect;
(xviii) the Company, the Subsidiaries and Regent, to the
extent each is a
40
<PAGE>
party thereto, have full corporate power and authority to execute,
deliver and perform its respective obligations under the applicable
Transaction Documents;
(xix) the Transaction Documents, assuming the authorization,
execution and delivery thereof by the parties other than the
Registrants, as applicable, and Regent, constitute valid and legally
binding agreements of the respective parties thereto enforceable
against each of the parties, to the extent each is a party thereto, in
accordance with their respective terms subject to applicable
bankruptcy, insolvency, reorganization, moratorium and similar laws
affecting creditors' rights generally and to principles of equity
(regardless of whether enforcement is sought in a proceeding at law or
equity) and except to the extent that a waiver of rights under usury
laws may be unenforceable; and
(xx) the approval of the transactions contemplated by the
Transaction Documents by the shareholders of the Company is not
required.
(2) Such counsel shall additionally state that such counsel has
participated in conferences with officers and other representatives of the
Company, representatives of the independent public accountants for the
Company, your representatives and your counsel in connection with the
preparation of the Registration Statement and Prospectus and has considered
the matters required to be stated therein and the statements contained
therein, although such counsel has not independently verified the accuracy,
completeness or fairness of such statements (except as indicated above);
and such counsel advises you that, on the basis of the foregoing, no facts
came to such counsel's attention that caused such counsel to believe that
the Registration Statement (as amended or supplemented, if applicable), at
the time such Registration Statement or any post-effective amendment became
effective, contained an untrue statement of a material fact or omitted to
state a material fact required to be stated therein or
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<PAGE>
necessary to make the statements therein not misleading (other than
information omitted therefrom in reliance on Rule 430A under the Act), or
the Prospectus (as amended or supplemented), as of its date and the Closing
Date, contained an untrue statement of a material fact or omitted to state
a material fact necessary in order to make the statements therein, in light
of the circumstances under which they were made, not misleading. Without
limiting the foregoing, such counsel may further state that the firm
assumes no responsibility for, and the firm has not independently verified,
the accuracy, completeness or fairness of the financial statements, notes
and schedules and other financial data included in the Registration
Statement.
(3) An opinion (satisfactory to you and your counsel), dated the
Closing Date of Hogan & Hartson, counsel for the Company with respect to
FCC and related matters to the effect that:
(i) those statements in the Prospectus, including the
statements incorporated by reference in the Prospectus, under the
caption "Business -- Federal Regulation of Radio Broadcasting" in the
Company's Form 10-Q filed for the quarter ended September 30, 1996
that describe provisions of the Communications Act of 1934, as amended
(the "Communications Act"), and the FCC's published rules or
regulations (for purposes of this opinion only, the "Rules") are
accurate descriptions in all material respects.
(ii) Schedule A to this opinion sets forth a complete list
of the authorizations issued by the FCC to the Company and its
Subsidiaries (for purposes of this opinion only, the "Licenses"). To
such counsel's knowledge, the Licenses are the only licenses, permits
or authorizations required under the Communications Act for the
operation (as presently conducted) of the radio stations listed on
Schedule B (for purposes of this opinion only, the "Jacor Stations").
Except for the pending applications noted on Schedule A hereto, the
Licenses are in full force and
42
<PAGE>
effect (and the time within which any administrative or judicial
appeal, reconsideration, rehearing or other review might be sought has
lapsed with respect to the grant of the authorizations for the
currently effective terms, and no such appeal, reconsideration,
rehearing, or other review has been taken or instituted), and are held
by the relevant Subsidiary, and the expiration date of each License is
set forth in Schedule A hereto. Except as indicated on Schedule C to
this opinion, the Licenses are not subject to any conditions imposed
by the FCC other than those that appear on the Licenses or are
customarily imposed by the FCC on radio stations of the same class and
type.
(iii) Except as listed in Schedule D hereto, there is no
proceeding or other administrative action pending or, to such
counsel's knowledge, threatened, before the FCC against the Company or
any Subsidiary, which, if adversely determined, would materially and
adversely affect the business or financial condition of the Company
and its Subsidiaries, taken as a whole. To such counsel's knowledge,
except as listed on Schedule E to this opinion, the Company and the
Subsidiaries have filed with the FCC during the current license term
of each License all material reports and forms required to be filed by
the Company and the Subsidiaries with the FCC with respect to the
Jacor Stations.
(iv) The execution, delivery and performance of the
obligations as of the date hereof by the Company under the transaction
documents described on Schedule F to this opinion (for purposes of the
opinion only, collectively, the "Transaction Documents"), (i) do not
violate the Communications Act, (ii) do not violate any of the Rules,
(iii) do not violate the terms of any of the Licenses, (iv) do not
cause any forfeiture or impairment of any license and (v) do not
require any consent, approval or authorization of the FCC that has not
been obtained; except that (A) prior FCC
43
<PAGE>
approval is required for a transfer of control of the relevant
Stations; (B) since we lack actual knowledge regarding the citizenship
and other media interests of the purchasers of the Shares, we do not
express any opinion with respect to compliance with multiple ownership
and foreign ownership requirements under the Communications Act and
the Rules with respect to the FCC's cross-interest policy (which such
policy is summarized at 4 FCC Rcd. 2035). All necessary applications
required by the FCC as of the date hereof for the transfer of control
of the stations described in Pending Transactions have been filed with
the FCC.
(4) An opinion (satisfactory to you and your counsel), dated the
Closing Date of Paul, Hastings, Janofsky & Walker, counsel for the Company,
to the effect that:
(i) when authenticated in accordance with the terms of the
Indenture and delivered to and paid for in accordance with the terms
of this Agreement, the Guarantee and the Securities will constitute
valid and legally binding obligations of the Guarantors and JCC,
respectively, enforceable against the Guarantors and JCC, in
accordance with their respective terms and entitled to the benefits of
the Indenture, subject to applicable bankruptcy, insolvency,
fraudulent conveyance, reorganization, moratorium and similar laws
affecting creditors' rights and remedies generally and to general
principles of equity (regardless of whether enforcement is sought in a
proceeding at law or in equity) and except to the extent that a waiver
of rights under any usury laws may be unenforceable; and
(ii) the Indenture, assuming due authorization, execution
and delivery thereof by the Trustee, constitutes a valid and legally
binding agreement of the Registrants, enforceable against each of the
Registrants, in accordance with its terms, subject to applicable
bankruptcy, insolvency, fraudulent conveyance, reorganization,
moratorium and similar
44
<PAGE>
laws affecting creditors' rights and remedies generally and to general
principles of equity (regardless of whether enforcement is sought in a
proceeding at law or in equity) and except to the extent that a waiver
of rights. under any usury laws may be unenforceable
(g) You shall have received an opinion, dated the Closing Date, of
Skadden, Arps, Slate, Meagher & Flom LLP ("Skadden Arps"), counsel for the
Underwriters, in form and substance reasonably satisfactory to you.
(h) You shall have received letters on and as of the date hereof as
well as on and as of the Closing Date (in the latter case constituting an
affirmation of the statements set forth in the former, in form and
substance satisfactory to you, from Coopers & Lybrand L.L.P., Ernst & Young
LLP and Price Waterhouse LLP, independent public accountants, with respect
to the financial statements and certain financial information contained in
the Registration Statement and the Prospectus for each of the Company and
Gannett, Citicasters and Noble, respectively.
(i) Prior to or concurrently with the purchase and sale of the
Securities hereunder, the Company shall have obtained the consents of the
lenders under the Credit Facility approving JCC's issuance of the Notes and
the Guarantors' guarantee thereof.
(j) Skadden Arps shall have been furnished with such documents and
opinions, in addition to those set forth above, as they may reasonably
require for the purpose of enabling them to review or pass upon the matters
referred to in this Section 7 and in order to evidence the accuracy,
completeness or satisfaction in all material respects of any of the
representations, warranties or conditions herein contained.
(k) Prior to the Closing Date, the Company shall have furnished to
you such further information, certificates and documents as you may
reasonably request.
45
<PAGE>
(l) There shall have been no amendments, alterations, modifications,
or waivers of any provisions of the Transaction Documents since the date of
the execution and delivery thereof by the parties thereto other than those
which under the Act are not required to be disclosed in the Prospectus or
any supplement thereto and which have been disclosed to the Underwriters
prior to the date hereof.
(m) Each of the Registrants, as applicable, and Regent, shall, to the
extent each is a party thereto, have complied in all respects with all
agreements and covenants in the Transaction Documents and performed all
conditions specified therein that the terms thereof require to be complied
with or performed at or prior to the date hereof.
(n) Except as is disclosed to the Underwriters in writing, the
representations and warranties of the Registrants, as applicable, and
Regent set forth in the Transaction Documents shall be true, accurate and
complete in all respects.
8. DEFAULTS. If on the Closing Date any of the Underwriters shall
fail or refuse to purchase Securities, which it has agreed to purchase hereunder
on such date, and the aggregate amount of Securities that such defaulting
Underwriter(s) agreed but failed or refused to purchase does not exceed 10% of
the total aggregate principal amount of Securities to be purchased on such date
by all of the Underwriters, each non-defaulting Underwriter shall be obligated
severally, in the proportion which the amount of such Securities set forth
opposite its name in Schedule I hereto bears to the aggregate principal amount
of Securities which all the non-defaulting Underwriters, as the case may be,
have agreed to purchase, or in such other proportion as you may specify, to
purchase the Securities that such defaulting Underwriter or Underwriters, as the
case may be, agreed but failed or refused to purchase on such date; PROVIDED
that in no event shall the aggregate principal amount of Securities that any
Underwriter has agreed to purchase pursuant to Section 2 hereof be increased
pursuant to this Section 8 by an amount in excess of one-ninth of such principal
amount of Securities without the written consent of such Underwriter. If, on
the Closing Date, any of the Underwriters shall fail or refuse to purchase the
Securities
46
<PAGE>
with respect to which such default exceeds 10% of the total aggregate principal
amount of Securities to be purchased on such date by all Underwriter(s) and
arrangements satisfactory to the other Underwriter(s) and the Registrants for
the purchase of such Securities are not made within 48 hours after such default,
this Agreement shall terminate without liability on the part of the
non-defaulting Underwriter(s) or the Registrants, except as otherwise provided
in this Section 8. In any such case that does not result in termination of this
Agreement, the Underwriters or the Registrants may postpone the Closing Date for
not longer than seven (7) days, in order that the required changes, if any, in
the Registration Statement and the Prospectus or any other documents or
arrangements may be effected. Any action taken under this paragraph shall not
relieve a defaulting Underwriter from liability in respect of any default by any
such Underwriter under this Agreement.
9. EFFECTIVE DATE OF AGREEMENT AND TERMINATION. This Agreement
shall become effective upon the later of (i) the execution and delivery of this
Agreement by the parties hereto, (ii) the effectiveness of the Registration
Statement, and (iii) if a post-effective amendment is required to be filed
pursuant to Rule 430A under the Act, the effectiveness of such post-effective
amendment.
This Agreement may be terminated at any time on or prior to the
Closing Date by you by notice to the Company if any of the following has
occurred: (i) subsequent to the date the Registration Statement is declared
effective or the date of this Agreement, any Material Adverse Change occurs
which, in the judgment of any Underwriter, make it impracticable or inadvisable
to market the Securities or to enforce contracts for the sale of the Securities,
(ii) any outbreak or escalation of hostilities or other national or
international calamity or crisis or material adverse change in the financial
markets of the United States or elsewhere, or any other substantial national or
international calamity or emergency if the effect of such outbreak, escalation,
calamity, crisis or emergency would, in the judgment of any Underwriter, make it
impracticable or inadvisable to market the Securities or to enforce contracts
for the sale of the Securities, (iii) any suspension or limitation of trading
generally in securities on the New York
47
<PAGE>
Stock Exchange, the American Stock Exchange, the Nasdaq Stock Market or in the
over-the-counter markets or any setting of minimum prices for trading on such
exchanges or markets, (iv) any declaration of a general banking moratorium by
Federal, New York or Ohio authorities, (v) the taking of any action by any
Federal, state or local government or agency in respect of its monetary or
fiscal affairs that in your judgment has a material adverse effect on the
financial markets in the United States, and would, in your judgment, make it
impracticable or inadvisable to market the Securities or to enforce contracts
for the sale of the Securities, (vi) the enactment, publication, decree, or
other promulgation of any Federal or state statute, regulation, rule or order of
any court or other governmental authority which, in your judgment, materially
and adversely affects or will materially and adversely affect the business or
operations of the Company or any Subsidiary, or (vii) any securities of the
Company or any of the Subsidiaries shall have been downgraded or placed on any
"watch list" for possible downgrading by any nationally recognized statistical
rating organization, PROVIDED, that in the case of such "watch list" placement,
termination shall be permitted only if such placement would, in the judgment of
any Underwriter, make it impracticable or inadvisable to market the Securities
or to enforce contracts for the sale of the Securities or materially impair the
investment quality of the Securities.
The indemnities and contribution provisions and the other agreements,
representations and warranties of the Company, its officers and directors and of
the Underwriters set forth in or made pursuant to this Agreement shall remain
operative and in full force and effect, and will survive delivery of and payment
for the Securities, regardless of (i) any investigation, or statement as to the
results thereof, made by or on behalf of any of the Underwriters or by or on
behalf of the Company, the officers or directors of the Company or any
controlling person of the Company, (ii) acceptance of the Securities and payment
for them hereunder and (iii) termination of this Agreement.
If this Agreement shall be terminated by the Underwriters pursuant to
clauses (i) or (vii) of the second paragraph of this Section 10 or because of
the failure or refusal on the part of the Company to comply
48
<PAGE>
with the terms or to fulfill any of the conditions of this Agreement, the
Company agrees to reimburse you for all out-of-pocket expenses (including the
fees and disbursements of counsel) incurred by you. Notwithstanding any
termination of this Agreement, the Company shall be liable for all expenses
which it has agreed to pay pursuant to Section 4(k) hereof.
10. NOTICES. Notices given pursuant to any provision of this
Agreement shall be addressed as follows: (a) if to the Company, prior to
December 14, 1996 to it at Jacor Communications, Inc. 1300 PNC Center, 201 East
Fifth Street, Cincinnati, Ohio 45202, Attention: Randy Michaels, President, fax
(513) 621-0090, and on or after December 14, 1996 to Jacor Communications, Inc.,
50 East River Boulevard, 12th Floor, Covington, Kentucky 41011, Attention:
Randy Michaels, President, fax ______________, with a copy to Graydon, Head &
Ritchey, 1900 Fifth Third Center, 511 Walnut Street, Cincinnati, Ohio 45202,
Attention: Richard G. Schmalzl, Esq., and (b) if to any Underwriter, to
Donaldson, Lufkin & Jenrette Securities Corporation, 277 Park Avenue, New York,
New York 10172 Attention: Syndicate Department, and, in each case, with a copy
to Skadden, Arps, Slate, Meagher & Flom LLP at 300 South Grand Avenue, Suite
3400, Los Angeles, California 90071, Attention: Gregg A. Noel, Esq., or in any
case to such other address as the person to be notified may have requested in
writing.
11. SEVERABILITY. Any determination that any provision of this
Agreement may be, or is, unenforceable shall not affect the enforceability of
the remainder of this Agreement.
12. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF NEW YORK AS APPLIED TO
CONTRACTS MADE AND PERFORMED ENTIRELY WITHIN THE STATE OF NEW YORK, WITHOUT
REGARD TO PRINCIPLES OF CONFLICTS OF LAW. THE COMPANY, ON BEHALF OF ITSELF AND
ITS SUBSIDIARIES, HEREBY IRREVOCABLY SUBMITS TO THE EXCLUSIVE JURISDICTION OF
THE FEDERAL AND NEW YORK STATE COURTS LOCATED IN THE CITY OF NEW YORK IN
CONNECTION WITH ANY SUIT, ACTION OR PROCEEDING RELATED TO THIS AGREEMENT OR ANY
OF THE MATTERS CONTEMPLATED HEREBY, IRREVOCABLY WAIVES ANY DEFENSE OF LACK OF
PERSONAL JURISDICTION AND IRREVOCABLY AGREES THAT ALL CLAIMS IN RESPECT OF ANY
SUIT, ACTION OR PROCEEDING
49
<PAGE>
MAY BE HEARD AND DETERMINED IN ANY SUCH COURT. THE COMPANY, ON BEHALF OF ITSELF
AND THE SUBSIDIARIES, IRREVOCABLY WAIVES, TO THE FULLEST EXTENT IT MAY
EFFECTIVELY DO SO UNDER APPLICABLE LAW, ANY OBJECTION WHICH IT MAY NOW OR
HEREAFTER HAVE TO THE LAYING OF VENUE OF ANY SUCH SUIT, ACTION OR PROCEEDING
BROUGHT IN ANY SUCH COURT AND ANY CLAIM THAT ANY SUCH SUIT, ACTION OR PROCEEDING
BROUGHT IN ANY SUCH COURT HAS BEEN BROUGHT IN AN INCONVENIENT FORUM.
13. SUCCESSORS. Except as otherwise provided, this Agreement has
been and is made solely for the benefit of and shall be binding upon the
Company, the Underwriters, any Indemnified Person referred to herein and their
respective successors and assigns, all as and to the extent provided in this
Agreement, and no other person shall acquire or have any right under or by
virtue of this Agreement. The terms "successors and assigns" shall not include
a purchaser of any of the Securities from any of the Underwriters merely because
of such purchase.
14. COUNTERPARTS. This Agreement may be executed in one or more
counterparts and, if executed in one or more counterpart, the executed
counterparts shall each be deemed to be an original, not all such counterparts
shall together constitute one and the same instrument.
15. HEADINGS. The headings herein are inserted for convenience of
reference only and are not intended to be part of, or to effect the meaning or
interpretation of, this Agreement.
16. SURVIVAL. The indemnities and contribution provisions and the
other agreements, representations and warranties of the Company, its officers
and directors and of the Underwriter set forth in or made pursuant to this
Agreement shall remain operative and in full force and effect, and will survive
delivery of and payment for the Securities, regardless of (i) any investigation,
or statement as to the results thereof, made by or on behalf of the Underwriter
or by or on behalf of the Company, the officers or directors of the Company or
any controlling person of the Company, (ii) acceptance of the Securities and
payment for them hereunder and (iii) termination of this Agreement.
50
<PAGE>
This Agreement may be signed in various counterparts which together
shall constitute one and the same instrument. Please confirm that the foregoing
correctly sets forth the agreement among the Company and you.
Very truly yours,
JACOR COMMUNICATIONS, INC.
By:
------------------------------------
Name:
Title:
JACOR COMMUNICATIONS
COMPANY
By:
------------------------------------
Name:
Title:
BROADCAST FINANCE, INC.; CINE FILMS,
INC.; CINE GUARANTORS, INC.; CINE
GUARANTORS II, INC.; CINE GUARANTORS II,
LTD.; CINE MOBILE SYSTEMS INT'L N.V.;
CINE MOVIL S.A. DE C.V.; CITICASTERS
CO.; F.M.I. PENNSYLVANIA, INC.; GACC-
N26LB, INC.; GACC-340, INC.; GEORGIA
NETWORK EQUIPMENT, INC.; GREAT AMERICAN
MERCHANDISING GROUP, INC.; GREAT
AMERICAN TELEVISION PRODUCTIONS, INC.;
INMOBILARIA RADIAL, S.A. DE C.V.; JACOR
BROADCASTING CORPORATION; JACOR
BROADCASTING OF ATLANTA, INC.; JACOR
BROADCASTING OF COLORADO, INC.; JACOR
51
<PAGE>
BROADCASTING OF FLORIDA, INC.; JACOR
BROADCASTING OF IDAHO, INC., A DELAWARE CORPORATION;
JACOR BROADCASTING OF IOWA, INC.; JACOR
BROADCASTING OF KNOXVILLE, INC.; JACOR
BROADCASTING OF LEXINGTON, INC.; JACOR
BROADCASTING OF ST. LOUIS, INC.; JACOR
BROADCASTING OF SAN DIEGO, INC.; JACOR
BROADCASTING OF SARASOTA, INC.; JACOR
BROADCASTING OF TAMPA BAY, INC.; JACOR
CABLE, INC.; LOCATION PRODUCTIONS, INC.;
LOCATION PRODUCTIONS II, INC.; NOBLE
BROADCAST CENTER, INC.; NOBLE BROADCAST
GROUP, INC.; NOBLE BROADCAST HOLDINGS,
INC.; NOBLE BROADCAST LICENSES, INC.;
NOBLE BROADCAST OF COLORADO, INC.; NOBLE
BROADCAST OF ST. LOUIS, INC.; NOBLE
BROADCAST OF SAN DIEGO, INC.; NOBLE
BROADCAST OF TOLEDO, INC.; NOBRO, S.C.;
NOVA MARKETING GROUP, INC.; SPORTS RADIO
BROADCASTING, INC.; SPORTS RADIO, INC.;
TAFT-TCI SATELLITE SERVICES, INC.; THE
SY FISCHER COMPANY AGENCY, INC.; WHOK,
INC.; AND VTTV PRODUCTIONS
By:
------------------------------------
Name:
Title:
52
<PAGE>
The foregoing Underwriting Agreement
is hereby confirmed and accepted
as of the date first above written.
DONALDSON, LUFKIN & JENRETTE
SECURITIES CORPORATION
MERRILL, LYNCH, PIERCE, FENNER
& SMITH INCORPORATED
Acting on behalf of themselves
By: DONALDSON, LUFKIN & JENRETTE
SECURITIES CORPORATION
By:
--------------------------
Name:
Title:
53
<PAGE>
SCHEDULE 1
Amount of
Securities to
Underwriters be Purchased
- ------------ ------------
Donaldson, Lufkin & Jenrette
Securities Corporation . . . . . . . . . . . . . $ 90,000,000
Merrill, Lynch, Pierce, Fenner
& Smith Incorporated . . . . . . . . . . . . . . $ 60,000,000
---------------
Total $ 150,000,000
---------------
---------------
54
<PAGE>
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
JACOR COMMUNICATIONS COMPANY
ISSUER,
AND
JACOR COMMUNICATIONS, INC.,
PARENT GUARANTOR
AND
UNCONDITIONALLY GUARANTEED BY THE SUBSIDIARY
GUARANTORS NAMED HEREIN
AND
THE BANK OF NEW YORK
TRUSTEE
______________________________
INDENTURE
Dated as of December ___, 1996
______________________________
$150,000,000
___% Senior Subordinated Notes due 2006
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
<PAGE>
TABLE OF CONTENTS
PAGE
----
ARTICLE I
DEFINITIONS AND INCORPORATION BY REFERENCE. . . . . . . . 1
SECTION 1.1. Definitions . . . . . . . . . . . . . . . . . . . . 1
SECTION 1.2. Incorporation by Reference of TIA . . . . . . . . . 30
SECTION 1.3. Rules of Construction . . . . . . . . . . . . . . . 30
ARTICLE II
THE SECURITIES. . . . . . . . . . . . . . . 31
SECTION 2.1. Form and Dating . . . . . . . . . . . . . . . . . . 31
SECTION 2.2. Execution and Authentication. . . . . . . . . . . . 31
SECTION 2.3. Registrar and Paying Agent. . . . . . . . . . . . . 32
SECTION 2.4. Paying Agent to Hold Assets
in Trust . . . . . . . . . . . . . . . . . . . . 33
SECTION 2.5. Securityholder Lists. . . . . . . . . . . . . . . . 34
SECTION 2.6. Transfer and Exchange . . . . . . . . . . . . . . . 34
SECTION 2.7. Replacement Securities. . . . . . . . . . . . . . . 38
SECTION 2.8. Outstanding Securities. . . . . . . . . . . . . . . 38
SECTION 2.9. Treasury Securities . . . . . . . . . . . . . . . . 39
SECTION 2.10. Temporary Securities. . . . . . . . . . . . . . . . 39
SECTION 2.11. Cancellation. . . . . . . . . . . . . . . . . . . . 40
SECTION 2.12. Defaulted Interest. . . . . . . . . . . . . . . . . 40
SECTION 2.13. CUSIP Numbers . . . . . . . . . . . . . . . . . . . 40
ARTICLE III
REDEMPTION. . . . . . . . . . . . . . . . .42
SECTION 3.1. Right of Redemption . . . . . . . . . . . . . . . . 42
SECTION 3.2. Notices to Trustee and
Paying Agent . . . . . . . . . . . . . . . . . . 42
SECTION 3.3. Selection of Securities to
Be Redeemed. . . . . . . . . . . . . . . . . . . 43
SECTION 3.4. Notice of Redemption. . . . . . . . . . . . . . . . 43
SECTION 3.5. Effect of Notice of Redemption. . . . . . . . . . . 44
SECTION 3.6. Deposit of Redemption Price . . . . . . . . . . . . 45
SECTION 3.7. Securities Redeemed in Part . . . . . . . . . . . . 46
i
<PAGE>
PAGE
----
ARTICLE IV
COVENANTS. . . . . . . . . . . . . . . . 46
SECTION 4.1. Payment of Securities . . . . . . . . . . . . . . . 46
SECTION 4.2. Maintenance of Office or Agency . . . . . . . . . . 46
SECTION 4.3. Limitation on Restricted Payments.. . . . . . . . . 47
SECTION 4.4. Corporate Existence . . . . . . . . . . . . . . . . 48
SECTION 4.5. Payment of Taxes and Other Claims . . . . . . . . . 49
SECTION 4.6. Maintenance of Properties
and Insurance. . . . . . . . . . . . . . . . . . 49
SECTION 4.7. Compliance Certificate; Notice
of Default . . . . . . . . . . . . . . . . . . . 50
SECTION 4.8. Reports . . . . . . . . . . . . . . . . . . . . . . 50
SECTION 4.9. Limitation on Status as
Investment Company . . . . . . . . . . . . . . . 51
SECTION 4.10. Limitation on Transactions
with Affiliates. . . . . . . . . . . . . . . . . 51
SECTION 4.11. Limitation on Incurrence of
Additional Indebtedness and
Disqualified Capital Stock . . . . . . . . . . . 52
SECTION 4.12 Limitations on Dividends
and Other Payment Restrictions
Affecting Subsidiaries . . . . . . . . . . . . . 53
SECTION 4.13. Limitations on Layering
Indebtedness; Liens. . . . . . . . . . . . . . . 54
SECTION 4.14. Limitation on Sale of Assets
and Subsidiary Stock . . . . . . . . . . . . . . 55
SECTION 4.15. Limitation on Asset Swaps . . . . . . . . . . . . . 60
SECTION 4.16. Limitation on Lines of Business . . . . . . . . . . 61
SECTION 4.17. Restriction on Sale and Issuance
of Subsidiary Stock. . . . . . . . . . . . . . . 61
SECTION 4.18. Waiver of Stay, Extension or
Usury Laws . . . . . . . . . . . . . . . . . . . 62
SECTION 4.19. Dissolution of Excluded
Subsidiaries; Restriction on
Transfers to Excluded Subsidiaries . . . . . . . 62
ARTICLE V
SUCCESSOR CORPORATION. . . . . . . . . . . . . 62
SECTION 5.1. Limitation on Merger, Sale or
Consolidation. . . . . . . . . . . . . . . . . . 62
ii
<PAGE>
PAGE
----
SECTION 5.2. Successor Corporation Substituted . . . . . . . . . 63
ARTICLE VI
EVENTS OF DEFAULT AND REMEDIES. . . . . . . . . . . 64
SECTION 6.1. Events of Default . . . . . . . . . . . . . . . . . 64
SECTION 6.2. Acceleration of Maturity Date;
Rescission and Annulment. . . . . . . . . . . . . 66
SECTION 6.3. Collection of Indebtedness
and Suits for Enforcement
by Trustee. . . . . . . . . . . . . . . . . . . . 68
SECTION 6.4. Trustee May File Proofs of
Claim . . . . . . . . . . . . . . . . . . . . . . 68
SECTION 6.5. Trustee May Enforce Claims
Without Possession of
Securities. . . . . . . . . . . . . . . . . . . . 70
SECTION 6.6. Priorities. . . . . . . . . . . . . . . . . . . . . 70
SECTION 6.7. Limitation on Suits . . . . . . . . . . . . . . . . 71
SECTION 6.8. Unconditional Right of Holders
to Receive Principal, Premium
and Interest. . . . . . . . . . . . . . . . . . . 72
SECTION 6.9. Rights and Remedies Cumulative. . . . . . . . . . . 72
SECTION 6.10. Delay or Omission Not Waiver. . . . . . . . . . . . 72
SECTION 6.11. Control by Holders. . . . . . . . . . . . . . . . . 73
SECTION 6.12. Waiver of Past Default. . . . . . . . . . . . . . . 73
SECTION 6.13. Undertaking for Costs . . . . . . . . . . . . . . . 74
SECTION 6.14. Restoration of Rights and
Remedies. . . . . . . . . . . . . . . . . . . . . 74
ARTICLE VII
TRUSTEE . . . . . . . . . . . . . . . . 75
SECTION 7.1. Duties of Trustee . . . . . . . . . . . . . . . . . 75
SECTION 7.2. Rights of Trustee . . . . . . . . . . . . . . . . . 76
SECTION 7.3. Individual Rights of Trustee. . . . . . . . . . . . 78
SECTION 7.4. Trustee's Disclaimer. . . . . . . . . . . . . . . . 78
SECTION 7.5. Notice of Default . . . . . . . . . . . . . . . . . 78
SECTION 7.6. Reports by Trustee to Holders . . . . . . . . . . . 79
SECTION 7.7. Compensation and Indemnity. . . . . . . . . . . . . 79
SECTION 7.8. Replacement of Trustee. . . . . . . . . . . . . . . 80
SECTION 7.9. Successor Trustee by Merger, Etc. . . . . . . . . . 81
SECTION 7.10. Eligibility; Disqualification . . . . . . . . . . . 82
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PAGE
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SECTION 7.11. Preferential Collection of
Claims Against the Company. . . . . . . . . . . . 82
ARTICLE VIII
DISCHARGE; LEGAL DEFEASANCE AND COVENANT DEFEASANCE . . . . . 82
SECTION 8.1. Discharge; Option to Effect
Legal Defeasance or Covenant
Defeasance. . . . . . . . . . . . . . . . . . . . 82
SECTION 8.2. Legal Defeasance and Discharge. . . . . . . . . . . 83
SECTION 8.3. Covenant Defeasance . . . . . . . . . . . . . . . . 83
SECTION 8.4. Conditions to Legal or Covenant
Defeasance. . . . . . . . . . . . . . . . . . . . 84
SECTION 8.5. Deposited Cash and U.S.
Government Obligations to
be Held in Trust; Other
Miscellaneous Provisions. . . . . . . . . . . . . 86
SECTION 8.6. Repayment to the Company. . . . . . . . . . . . . . 87
SECTION 8.7. Reinstatement . . . . . . . . . . . . . . . . . . . 88
ARTICLE IX
AMENDMENTS, SUPPLEMENTS AND WAIVERS . . . . . . . . . 88
SECTION 9.1. Supplemental Indentures
Without Consent of Holders. . . . . . . . . . . . 88
SECTION 9.2. Amendments, Supplemental
Indentures and Waivers
with Consent of Holders . . . . . . . . . . . . . 89
SECTION 9.3. Compliance with TIA.. . . . . . . . . . . . . . . . 91
SECTION 9.4. Revocation and Effect of Consents . . . . . . . . . .91
SECTION 9.5. Notation on or Exchange of
Securities. . . . . . . . . . . . . . . . . . . . 92
SECTION 9.6. Trustee to Sign Amendments, Etc.. . . . . . . . . . 92
ARTICLE X
SUBORDINATION. . . . . . . . . . . . . . . 93
SECTION 10.1. Securities Subordinated to
Senior Debt . . . . . . . . . . . . . . . . . . . 93
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SECTION 10.2. No Payment on Securities in
Certain Circumstances . . . . . . . . . . . . . . 93
SECTION 10.3. Securities Subordinated to Prior
Payment of All Senior Debt on
Dissolution, Liquidation or
Reorganization. . . . . . . . . . . . . . . . . . 96
SECTION 10.4. Securityholders to Be Subrogated
to Rights of Holders of
Senior Debt . . . . . . . . . . . . . . . . . . . 97
SECTION 10.5. Obligations of the Company and
the Guarantors Unconditional. . . . . . . . . . . 98
SECTION 10.6. Trustee Entitled to Assume
Payments Not Prohibited in
Absence of Notice . . . . . . . . . . . . . . . . 99
SECTION 10.7. Application by Trustee of
Assets Deposited with It. . . . . . . . . . . . . 99
SECTION 10.8. Subordination Rights Not
Impaired by Acts or Omissions
of the Company, the Guarantors
or Holders of Senior Debt . . . . . . . . . . . . 99
SECTION 10.9. Securityholders Authorize
Trustee to Effectuate
Subordination of Securities . . . . . . . . . . . 100
SECTION 10.10. Right of Trustee to Hold
Senior Debt . . . . . . . . . . . . . . . . . . . 100
SECTION 10.11. Article X Not to Prevent Events
of Default. . . . . . . . . . . . . . . . . . . . 101
SECTION 10.12. No Fiduciary Duty of Trustee to
Holders of Senior Debt. . . . . . . . . . . . . . 101
ARTICLE XI
RIGHT TO REQUIRE REPURCHASE . . . . . . . . . . . 101
SECTION 11.1. Repurchase of Securities at
Option of the Holder Upon
a Change of Control . . . . . . . . . . . . . . . 101
ARTICLE XII
GUARANTY . . . . . . . . . . . . . . . . 105
SECTION 12.1. Guaranty. . . . . . . . . . . . . . . . . . . . . . 105
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SECTION 12.2. Execution and Delivery of
Guaranty. . . . . . . . . . . . . . . . . . . . . 108
SECTION 12.3. Subsidiary Guarantors . . . . . . . . . . . . . . . 108
SECTION 12.4. Guarantor May Consolidate, Etc.,
on Certain Terms. . . . . . . . . . . . . . . . . 109
SECTION 12.5. Release of Guarantors.. . . . . . . . . . . . . . . 110
SECTION 12.6. Certain Bankruptcy Events . . . . . . . . . . . . . 111
ARTICLE XIII
MISCELLANEOUS. . . . . . . . . . . . . . . 111
SECTION 13.1. TIA Controls. . . . . . . . . . . . . . . . . . . . 111
SECTION 13.2. Notices . . . . . . . . . . . . . . . . . . . . . . 111
SECTION 13.3. Communications by Holders with
Other Holders . . . . . . . . . . . . . . . . . . 113
SECTION 13.4. Certificate and Opinion as to
Conditions Precedent. . . . . . . . . . . . . . . 113
SECTION 13.5. Statements Required in
Certificate or Opinion. . . . . . . . . . . . . . 113
SECTION 13.6. Rules by Trustee, Paying Agent,
Registrar . . . . . . . . . . . . . . . . . . . . 114
SECTION 13.7. Non-Business Days . . . . . . . . . . . . . . . . . 114
SECTION 13.8. Governing Law . . . . . . . . . . . . . . . . . . . 114
SECTION 13.9. No Adverse Interpretation of
Other Agreements. . . . . . . . . . . . . . . . . 115
SECTION 13.10. No Recourse against Others. . . . . . . . . . . . . 115
SECTION 13.11. Successors. . . . . . . . . . . . . . . . . . . . . 116
SECTION 13.12. Duplicate Originals . . . . . . . . . . . . . . . . 116
SECTION 13.13. Severability. . . . . . . . . . . . . . . . . . . . 116
SECTION 13.14. Table of Contents, Headings, Etc. . . . . . . . . . 116
SIGNATURES . . . . . . . . . . . . . . . . . . . . . . . . . . . . 117
Exhibit A - Form of Security . . . . . . . . . . . . . . . . . . . . . . . . A-1
Annex I - SELECTED DEFINITIONS AND SECTIONS
FROM THE CITICASTERS INDENTURE . . . . . . . . . . . . . . . Annex - 1
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INDENTURE, dated as of December __, 1996, by and among Jacor Communications
Company, a Florida corporation (the "Company"), Jacor Communications, Inc., a
Delaware corporation (the "Parent Guarantor"), the Subsidiary Guarantors
referred to below and The Bank of New York, a New York banking corporation, as
trustee (the "Trustee").
ARTICLE I
DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.1. DEFINITIONS.
"ACCELERATION NOTICE" shall have the meaning specified in Section
6.2.
"ACCEPTANCE AMOUNT" shall have the meaning specified in Section
4.14.
"ACQUIRED INDEBTEDNESS" means Indebtedness or Disqualified Capital
Stock of any person existing at the time such person becomes a Subsidiary of
the Company, including by designation, or is merged or consolidated into or
with either of the Company or one of its Subsidiaries; provided, that such
Indebtedness was not incurred in anticipation of, or in connection with, and
was outstanding prior to such person becoming a Subsidiary of the Company.
"ACQUISITION" means the purchase or other acquisition of any person
or substantially all the assets of any person by any other person, whether by
purchase, merger, consolidation, or other transfer, and whether or not for
consideration.
"AFFILIATE" means any person directly or indirectly controlling or
controlled by or under direct or indirect common control with the Company.
For purposes of this definition, the term "control" means the power to direct
the management and policies of a person, directly or through one or more
intermediaries, whether through the ownership of voting securities, by
contract, or otherwise, PROVIDED, that, a Beneficial Owner of 10% or more of
the total voting power normally entitled to vote in the election of
directors, managers or trustees, as applicable, shall for such purposes be
deemed to constitute control.
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"AFFILIATE TRANSACTION" shall have the meaning specified in Section
4.10.
"AGENT" means any authenticating agent, Registrar, Paying Agent or
transfer agent.
"ASSET SALE" shall have the meaning specified in Section 4.14.
"ASSET SALE DATE" shall have the meaning specified in Section 4.14.
"ASSET SALE OFFER" shall have the meaning specified in Section 4.14.
"ASSET SALE OFFER AMOUNT" shall have the meaning specified in
Section 4.14.
"ASSET SALE OFFER PERIOD" shall have the meaning specified in
Section 4.14.
"ASSET SALE OFFER PRICE" shall have the meaning specified in
Section 4.14.
"ASSET SWAP" means the execution of a definitive agreement, subject
only to regulatory approval and other customary closing conditions, that the
Company in good faith believes will be satisfied, for a substantially
concurrent purchase and sale, or exchange, of Productive Assets between the
Company or any of its Subsidiaries and another person or group of affiliated
persons; provided that any amendment to or waiver of any closing condition
which individually or in the aggregate is material to the Asset Swap shall be
deemed to be a new Asset Swap.
"AVERAGE LIFE" means, as of the date of determination, with respect
to any security or instrument, the quotient obtained by dividing (i) the sum
of (a) the product of the number of years from the date of determination to
the date or dates of each successive scheduled principal (or redemption)
payment of such security or instrument and (b) the amount of each such
respective principal (or redemption) payment by (ii) the sum of all such
principal (or redemption) payments.
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"BANKRUPTCY LAW" means Title 11, U.S. Code, or any similar Federal,
state or foreign law for the relief of debtors.
"BENEFICIAL OWNER" or "BENEFICIAL OWNER" for purposes of the
definition of Change of Control has the meaning attributed to it in Rules
13d-3 and 13d-5 under the Exchange Act (as in effect on the Issue Date)
whether or not applicable, except that a "person" shall be deemed to have
"beneficial ownership" of all shares that any such person has the right to
acquire, whether such right is exercisable immediately or only after the
passage of time.
"BOARD OF DIRECTORS" means, with respect to any person, the Board
of Directors of such person or any committee of the Board of Directors of
such person authorized, with respect to any particular matter, to exercise
the power of the Board of Directors of such person.
"BOARD RESOLUTION" means, with respect to any person, a duly
adopted resolution of the Board of Directors of such or the executive
committee of such Board of Directors of such person.
"BUSINESS DAY" means each Monday, Tuesday, Wednesday, Thursday and
Friday which is not a day on which banking institutions in New York, New York
are authorized or obligated by law or executive order to close.
"CAPITAL STOCK" means, with respect to any corporation, any and all
shares, interests, rights to purchase (other than convertible or exchangeable
Indebtedness), warrants, options, participations or other equivalents of or
interests (however designated) in stock issued by that corporation.
"CAPITAL LEASE" means a lease, the payments on which would be
capitalized for financial reporting purposes in accordance with GAAP.
"CAPITALIZED LEASE OBLIGATIONS" means rental obligations under a
lease that are required to be capitalized for financial reporting purposes in
accordance with GAAP, and the amount of Indebtedness represented by such
obligations shall be the capitalized amount of such obligations, as
determined in accordance with GAAP.
3
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"CASH" or "CASH" means such coin or currency of the United States
of America as at the time of payment shall be legal tender for the payment of
public and private debts.
"CASH EQUIVALENT" means (i) securities issued directly or fully
guaranteed or insured by the United States of America or any agency or
instrumentality thereof (provided that the full faith and credit of the
United States of America is pledged in support thereof) or (ii) time deposits
and certificates of deposit with, and commercial paper issued by the parent
corporation of, any domestic commercial bank of recognized standing having
capital and surplus in excess of $500.0 million and commercial paper issued
by others rated at least A-2 or the equivalent thereof by Standard & Poor's
Corporation or at least P-2 or the equivalent thereof by Moody's Investors
Service, Inc. and in each case maturing within one year after the date of
acquisition.
"CITICO" means Citicasters Co., an Ohio corporation and a wholly
owned subsidiary of the Company.
"CHANGE OF CONTROL" means any transaction or series of transactions
in which any of the following occurs:
(a) prior to a Citicasters Securities Event,
(i) any person or group (within the meaning of Rule 13d-3
under the Securities Exchange Act of 1934, as amended (the "Exchange Act")
and Sections 13(d) and 14(d) of the Exchange Act), other than Zell/Chilmark
Fund L.P. or any of its Affiliates, becomes the direct or indirect
"beneficial owner" (as defined in Rule 13d-3 under the Exchange Act) of (A)
greater than 50% of the total voting power (on a fully diluted basis as if
all convertible securities had been converted) entitled to vote in the
election of directors of the Company or CitiCo, or the surviving person (if
other than the Company), or (B) greater than 20% of the total voting power
(on a fully diluted basis as if all convertible securities had been
converted) entitled to vote in the election of directors of the Company or
CitiCo, or the surviving person (if other than the Company), and such person
or group has the ability to elect, directly or indirectly, a majority of the
members of the Board of Directors of the Company; or
(ii) the Company or CitiCo consolidates with or merges into
another person, another person consolidates
4
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with or merges into the Company or CitiCo, the Company or CitiCo issues
shares of its Capital Stock or all or substantially all of the assets of the
Company or CitiCo are sold, assigned, conveyed, transferred, leased or
otherwise disposed of to any person as an entirety or substantially as an
entirety in one transaction or a series of related transactions and the
effect of such consolidation, merger, issuance or sale is as described in
clause (i) above. Notwithstanding the foregoing, no Change of Control shall
be deemed to have occurred by virtue of (I) the Company or any of its
employee benefit or stock plans filing (or being required to file after the
lapse of time) a Schedule 13D or 14D-1 (or any successor or similar schedule,
form or report under the Exchange Act) or (II) the purchase by one or more
underwriters of Capital Stock of the Company in connection with a Public
Offering; and,
(b) upon or following a Citicasters Securities Event,
(i) any merger or consolidation of the Company with or into
any person or any sale, transfer or other conveyance, whether direct or
indirect, of all or substantially all of any of the assets of the Company, on
a consolidated basis, in one transaction or a series of related transactions,
if, immediately after giving effect to such transaction(s), any "person" or
"group" (as such terms are used for purposes of Sections 13(d) and 14(d) of
the Exchange Act, whether or not applicable) (other than an Excluded Person)
is or becomes the "beneficial owner," directly or indirectly, of more than
50% of the total voting power in the aggregate normally entitled to vote in
election of directors, managers, or trustees, as applicable, of the
transferee(s) or surviving entity or entities,
(ii) any "person" or "group" (as such terms are used for
purposes of Sections 13(d) and 14(d) of the Exchange Act, whether or not
applicable) (other than an Excluded Person) is or becomes the "beneficial
owner," directly or indirectly, of more than 50% of the total voting power in
the aggregate of all classes of Capital Stock of the Company then outstanding
normally entitled to vote in elections of directors, or
(iii) during any period of 12 consecutive months after the
Issue Date, individuals who at the beginning of any such 12-month period
constituted the Board of
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Directors of the Company (together with any new directors whose election by
such Board or whose nomination for election by the shareholders of JCC was
approved by a vote of a majority of the directors then still in office who
were either directors at the beginning of such period or whose election or
nomination for election was previously so approved) cease for any reason to
constitute a majority of the Board of Directors of the Company then in office.
"CHANGE OF CONTROL OFFER" shall have the meaning specified in
Section 11.1.
"CHANGE OF CONTROL OFFER PERIOD" shall have the meaning specified
in Section 11.1.
"CHANGE OF CONTROL PURCHASE DATE" shall have the meaning specified
in Section 11.1.
"CHANGE OF CONTROL PURCHASE PRICE" shall have the meaning specified
in Section 11.1.
"CHANGE OF CONTROL PUT DATE" shall have the meaning specified in
Section 11.1.
"CITICASTERS" means Citicasters Inc., a Florida corporation and
predecessor to the Company.
"CITICASTERS ASSET SALE REPURCHASE AMOUNT" shall have the meaning
set forth in Annex I hereto.
"CITICASTERS INDENTURE" means the indenture which governs the terms
and provisions of the Citicasters Securities, as amended or supplemented from
time to time in accordance with the terms thereof.
"CITICASTERS SECURITIES" means the 9 3/4% Senior Subordinated Notes
due February 15, 2004 issued by Citicasters pursuant to an indenture dated as
of February 18, 1994 between Great American Communications Company, a Florida
corporation (and predecessor to Citicasters), and Shawmut Bank Connecticut,
National Association as trustee; as amended by the First Supplemental
Indenture dated as of August 22, 1994 between Citicasters and Shawmut Bank
Connecticut, National Association as trustee; as amended by the Second
Supplemental Indenture dated as of June 6, 1996 between Citicasters and Fleet
National Bank (formerly Shawmut Bank Connecticut, National Association) as
Trustee.
6
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"CITICASTERS SECURITIES ASSET SALE OFFER" means an offer to
purchase the Citicasters Securities in accordance with the procedures set
forth in Annex I hereto.
"CITICASTERS SECURITIES EVENT" means (x) the maturity of the
Citicasters Securities, (y) the date upon which defeasance of the Citicasters
Securities becomes effective or (z) the date on which there are no longer any
Citicasters Securities outstanding under the terms of the governing indenture.
"CODE" means the Internal Revenue Code of 1986, as amended.
"COMMISSION" means the SEC.
"COMPANY" means the party named as the "Company" in the first
paragraph of this Indenture until a successor replaces it pursuant to the
applicable provisions of this Indenture and, thereafter, shall mean such
successor. The foregoing sentence shall likewise apply to any subsequent
such successor or successors.
"CONSOLIDATED" or "CONSOLIDATED" means determined on a consolidated
basis in accordance with GAAP.
"CONSOLIDATED EBITDA" means, with respect to any person, for any
period, the Consolidated Net Income of such person for such period adjusted
to add thereto (to the extent deducted from net revenues in determining
Consolidated Net Income), without duplication, the sum of (i) Consolidated
income tax expense, (ii) Consolidated depreciation and amortization expense,
provided that consolidated depreciation and amortization of a Subsidiary that
is a less than wholly owned Subsidiary shall only be added to the extent of
the equity interest of the Company in such Subsidiary, (iii) other noncash
charges (including amortization of goodwill and other intangibles), (iv)
Consolidated Fixed Charges, and less the amount of all cash payments made by
such person or any of its Subsidiaries during such period to the extent such
payments relate to non-cash charges that were added back in determining
Consolidated EBITDA for such period or any prior period.
"CONSOLIDATED FIXED CHARGES" of any person means, for any period,
the aggregate amount (without duplication and determined in each case in
accordance with GAAP) of (a)
7
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interest expensed or capitalized, paid, accrued, or scheduled to be paid or
accrued (including, in accordance with the following sentence, interest
attributable to Capitalized Lease Obligations) of such person and its
Consolidated Subsidiaries during such period, including (i) original issue
discount and non-cash interest payments or accruals on any Indebtedness, (ii)
the interest portion of all deferred payment obligations, and (iii) all
commissions, discounts and other fees and charges owed with respect to
bankers' acceptances and letters of credit financings and currency and
Interest Swap and Hedging Obligations, in each case to the extent
attributable to such period, and (b) the amount of dividends accrued or
payable (or guaranteed) by such person or any of its Consolidated
Subsidiaries in respect of Preferred Stock (other than by Subsidiaries of
such person to such person or such person's wholly owned Subsidiaries). For
purposes of this definition, (x) interest on a Capitalized Lease Obligation
shall be deemed to accrue at an interest rate reasonably determined by the
Company to be the rate of interest implicit in such Capitalized Lease
Obligation in accordance with GAAP and (y) interest expense attributable to
any Indebtedness represented by the guaranty by such person or a Subsidiary
of such person of an obligation of another person shall be deemed to be the
interest expense attributable to the Indebtedness guaranteed.
"CONSOLIDATED NET INCOME" means, with respect to any person for any
period, the net income (or loss) of such person and its Consolidated
Subsidiaries (determined on a consolidated basis in accordance with GAAP) for
such period, adjusted to exclude (only to the extent included in computing
such net income (or loss) and without duplication): (a) all gains or losses
which are either noncash or extraordinary (as determined in accordance with
GAAP) or are either unusual or nonrecurring (including any gain from the sale
or other disposition of assets outside the ordinary course of business or
from the issuance or sale of any capital stock), (b) the net income, if
positive, of any person, other than a wholly owned Consolidated Subsidiary,
in which such person or any of its Consolidated Subsidiaries has an interest,
except to the extent of the amount of any dividends or distributions actually
paid in cash to such person or a wholly owned Consolidated Subsidiary of such
person during such period, but in any case not in excess of such person's PRO
RATA share of such person's net income for such period, (c) the net income or
loss of any person acquired in a pooling of interests transaction for any
period prior to the
8
<PAGE>
date of such acquisition, (d) the net income, if positive, of any of such
person's Consolidated Subsidiaries to the extent that the declaration or
payment of dividends or similar distributions is not at the time permitted by
operation of the terms of its charter or bylaws or any other agreement,
instrument, judgment, decree, order, statute, rule or governmental regulation
applicable to such Consolidated Subsidiary.
"CONSOLIDATED SUBSIDIARY" means, for any person, each Subsidiary of
such person (whether now existing or hereafter created or acquired) the
financial statements of which are consolidated for financial statement
reporting purposes with the financial statements of such person in accordance
with GAAP.
"COVENANT DEFEASANCE" shall have the meaning specified in Section
8.3.
"CREDIT FACILITY" means the Credit Agreement dated as of June 12,
1996 by and among Chemical Bank, as Administrative Agent, Banque Paribas, as
Documentation Agent, and Bank of America, Illinois, as Syndication Agent,
certain financial institutions from time to time party thereto, including any
related notes, guarantees, collateral documents, instruments, letters of
credit, reimbursement obligations and other agreements executed by or binding
on the Company, any of its Subsidiaries and/or the Parent Guarantor (or any
successors or assigns) in connection therewith (collectively, the "Related
Documents"), as such Credit Agreement and/or Related Documents may be
amended, restated, supplemented, renewed, replaced or otherwise modified from
time to time whether or not with the same agent, trustee, representative
lenders or holders, and, subject to the proviso to the next succeeding
sentence, irrespective of any changes in the terms and conditions thereof.
Without limiting the generality of the foregoing, the term "Credit Facility"
shall include agreements in respect of Interest Swap and Hedging Obligations
with lenders (or affiliates thereof) party to the Credit Facility and shall
also include any amendment, amendment and restatement, renewal, extension,
restructuring, supplement or modification in whole or in part to any Credit
Facility and all refundings, refinancings and replacements in whole or in
part of any Credit Facility, including, without limitation, any agreement or
agreements (i) extending the maturity of any Indebtedness incurred thereunder
or contemplated thereby, (ii) adding or deleting
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borrowers or guarantors thereunder, (iii) increasing the amount of
Indebtedness incurred thereunder or available to be borrowed thereunder,
provided that on the date such Indebtedness is incurred it would be permitted
by paragraph (f) under the definition of Permitted Indebtedness, or (iv)
otherwise altering the terms and conditions thereof.
"CUSTODIAN" means any receiver, trustee, assignee, liquidator,
sequestrator or similar official under any Bankruptcy Law.
"DEFAULT" means any event or condition that is, or after notice or
passage of time or both would be, an Event of Default.
"DEFAULTED INTEREST" shall have the meaning specified in Section
2.12.
"DEFINITIVE SECURITIES" means Securities that are in the form of
Security attached hereto as Exhibit A that does not include the paragraph and
schedule referred to in footnotes 1 and 2, respectively.
"DEPOSITARY" means, with respect to the Securities issuable or
issued in whole or in part in global form, the person specified in Section
2.3 as the Depositary with respect to the Securities, until a successor shall
have been appointed and become such pursuant to the applicable provision of
this Indenture, and, thereafter, "Depositary" shall mean or include such
successor.
"DISQUALIFIED CAPITAL STOCK" means (a) except as set forth in (b),
with respect to any person, Equity Interests of such person that, by its
terms or by the terms of any security into which it is convertible,
exercisable or exchangeable, is, or upon the happening of an event or the
passage of time would be, required to be redeemed or repurchased (including
at the option of the holder thereof) by such person or any of its
Subsidiaries, in whole or in part, on or prior to the Stated Maturity of the
Securities, and (b) with respect to any Subsidiary of such person (including
with respect to any Subsidiary of the Company), any Equity Interests other
than any common equity with no preference, privileges, or redemption or
repayment provisions.
"DTC" shall have the meaning specified in Section 2.3.
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"EQUITY INTEREST" of any person means any shares, interests,
participations or other equivalents (however designated) in such person's
equity, and shall in any event include any Capital Stock issued by, or
partnership interests in, such person.
"ERISA" means the Employee Retirement Income Security Act of 1974,
as amended from time to time, and any successor statute.
"EVENT OF DEFAULT" shall have the meaning specified in Section 6.1.
"EVENT OF LOSS" means, with respect to any property or asset, any
(i) loss, destruction or damage of such property or asset or (ii) any
condemnation, seizure or taking, by exercise of the power of eminent domain
or otherwise, of such property or asset, or confiscation or requisition of
the use of such property or asset.
"EXCESS PROCEEDS" shall have the meaning specified in Section 4.14.
"EXCHANGE ACT" means the Securities Exchange Act of 1934, as
amended, and the rules and regulations promulgated by the SEC thereunder.
"EXCLUDED PERSON" means Zell/Chilmark Fund L.P. and all Related
Persons of such person.
"EXCLUDED SUBSIDIARY" means each of Jacor National Corp., WIBX
Incorporated, Marathon Communications, Inc. and Jacor Broadcasting of Idaho,
Inc., an Idaho corporation.
"EXEMPTED AFFILIATE TRANSACTION" means (a) customary employee
compensation arrangements approved by a majority of independent (as to such
transactions) members of the Board of Directors of the Company, (b) dividends
permitted under Section 4.3 of this Indenture payable, in form and amount, on
a PRO RATA basis to all holders of Common Stock of the Parent Guarantor, (c)
transactions solely between the Company and any of its Wholly owned
Subsidiaries or solely among Wholly owned Subsidiaries of the Company, and
(d) payments to Zell/Chilmark Fund L.P or its Affiliates for reasonable and
customary fees and expenses for financial advisory and investment banking
services provided to the Parent Guarantor and the Company, and (e) payments
to the
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Parent Guarantor made in accordance with the Tax Sharing Agreement.
"EXISTING ASSETS" means assets of the Company existing at the Issue
Date (other than cash, Cash Equivalents or inventory held for resale in the
ordinary course of business) and including proceeds of any sale of such
assets and assets acquired in whole or in part with proceeds from the sale
from any such assets.
"EXISTING INDEBTEDNESS" means, with respect to the Company,
Indebtedness existing or outstanding at the Issue Date.
"FAIR MARKET VALUE" or "FAIR MARKET VALUE" means, with respect to
any assets or properties, the amount at which such assets or properties would
change hands between a willing buyer and a willing seller, within a
commercially reasonable time, each having reasonable knowledge of the
relevant facts, neither being under a compulsion to sell or buy, as such
amount is determined by (i) the Board of Directors of either of the Company
acting in good faith or (ii) an appraisal or valuation firm of national or
regional standing selected by the Company, with experience in the appraisal
or valuation of properties or assets of the type for which Fair Market Value
is being determined.
"FINAL PUT DATE" shall have the meaning specified in Section 4.14.
"FUTURE SUBSIDIARY GUARANTOR" shall have the meaning specified in
Section 12.3.
"GAAP" means United States generally accepted accounting principles
set forth in the opinions and pronouncements of the Accounting Principles
Board of the American Institute of Certified Public Accountants and
statements and pronouncements of the Financial Accounting Standards Board or
in such other statements by such other entity as approved by a significant
segment of the accounting profession as in effect on the Issue Date unless
otherwise specified.
"GLOBAL SECURITY" means a Security that contains the paragraph and
schedule referred to in footnotes 1 and 2, respectively, in the form of
Security attached hereto as Exhibit A.
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"GUARANTOR" means (i) the Parent Guarantor identified in the
following sentence and (ii) any Subsidiary Guarantors that are or become
Guarantors pursuant to the terms of this Indenture, but excluding any Persons
whose guarantees have been released pursuant to the terms of this Indenture.
The Parent Guarantor is Jacor Communications, Inc., a Delaware corporation.
"GUARANTY" shall have the meaning provided in Section 12.1.
"HOLDER" or "SECURITYHOLDER" means the person in whose name a
Security is registered on the Registrar's books.
"INCUR" or "INCUR" shall have the meaning specified in Section 4.11.
"INCURRENCE DATE" shall have the meaning specified in Section 4.11.
"INDEBTEDNESS" of any person means, without duplication, (a) all
liabilities and obligations, contingent or otherwise, of such any person, (i)
in respect of borrowed money (whether or not the recourse of the lender is to
the whole of the assets of such person or only to a portion thereof), (ii)
evidenced by bonds, notes, debentures or similar instruments, (iii)
representing the balance deferred and unpaid of the purchase price of any
property or services, except those incurred in the ordinary course of its
business that would constitute ordinarily a trade payable to trade creditors,
(iv) evidenced by bankers' acceptances or similar instruments issued or
accepted by banks, (v) relating to any Capitalized Lease Obligation, or (vi)
evidenced by a letter of credit or a reimbursement obligation of such person
with respect to any letter of credit; (b) all net obligations of such person
under Interest Swap and Hedging Obligations; (c) all liabilities and
obligations of others of the kind described in the preceding clause (a) or
(b) that such person has guaranteed or that is otherwise its legal liability
or which are secured by any assets or property of such person and all
obligations to purchase, redeem or acquire any Equity Interests; and (d) all
Disqualified Capital Stock of such person (valued at the greater of its
voluntary or involuntary maximum fixed repurchase price plus accrued and
unpaid dividends). For purposes hereof, the "maximum fixed repurchase price"
of any Disqualified Capital
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Stock which does not have a fixed repurchase price shall be calculated in
accordance with the terms of such Disqualified Capital Stock as if such
Disqualified Capital Stock were purchased on any date on which Indebtedness
shall be required to be determined pursuant to the Indenture, and if such
price is based upon, or measured by, the Fair Market Value of such
Disqualified Capital Stock, such Fair Market Value to be determined in good
faith by the board of directors of the issuer (or managing general partner of
the issuer) of such Disqualified Capital Stock.
"INDENTURE" means this Indenture, as amended or supplemented from
time to time in accordance with the terms hereof.
"INTEREST PAYMENT DATE" means the stated due date of an installment
of interest on the Securities.
"INTEREST SWAP AND HEDGING OBLIGATION" means any obligation of any
person pursuant to any interest rate swap agreement, interest rate cap
agreement, interest rate collar agreement, interest rate exchange agreement,
currency exchange agreement or any other agreement or arrangement designed to
protect against fluctuations in interest rates or currency values, including,
without limitation, any arrangement whereby, directly or indirectly, such
person is entitled to receive from time to time periodic payments calculated
by applying either a fixed or floating rate of interest on a stated notional
amount in exchange for periodic payments made by such person calculated by
applying a fixed or floating rate of interest on the same notional amount.
"INVESTMENT" by any person in any other person means (without
duplication) (a) the acquisition (whether by purchase, merger, consolidation
or otherwise) by such person (whether for cash, property, services,
securities or otherwise) of capital stock, bonds, notes, debentures,
partnership or other ownership interests or other securities, including any
options or warrants, of such other person or any agreement to make any such
acquisition; (b) the making by such person of any deposit with, or advance,
loan or other extension of credit to, such other person (including the
purchase of property from another person subject to an understanding or
agreement, contingent or otherwise, to resell such property to such other
person) or any commitment to make any such advance, loan or extension (but
excluding
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accounts receivable or deposits arising in the ordinary course of business);
(c) other than guarantees of Indebtedness of the Company or any Guarantors to
the extent permitted by the covenant "Limitation on Incurrence of Additional
Indebtedness and Disqualified Capital Stock" or the definition of Permitted
Indebtedness, the entering into by such person of any guarantee of, or other
credit support or contingent obligation with respect to, Indebtedness or
other liability of such other person (other than the endorsement of
instruments for deposit or collection in the ordinary course of business);
and (d) the making of any capital contribution by such person to such other
person.
"ISSUE DATE" means the date of first issuance of the Securities
under this Indenture.
"JACOR" means Jacor Communications, Inc., a Delaware corporation.
"JUNIOR SECURITY" means any Qualified Capital Stock and any
Indebtedness of the Company or a Guarantor, as applicable, that is
subordinated in right of payment to Senior Debt at least to the same extent
as the Securities or the Guarantees, as applicable, and has no scheduled
installment of principal due, by redemption, sinking fund payment or
otherwise, on or prior to the Stated Maturity of the Securities; provided,
that in the case of subordination in respect of Senior Debt under the Credit
Facility, "Junior Security" shall mean any Qualified Capital Stock and any
Indebtedness of the Company or the Guarantors, as applicable, that (i) has a
final maturity date occurring after the final maturity date of, all Senior
Debt outstanding under the Credit Facility on the date of issuance of such
Qualified Capital Stock or Indebtedness, (ii) is unsecured, (iii) has an
Average Life longer than the security for which such Qualified Capital Stock
or Indebtedness is being exchanged, and (iv) by their terms or by law are
subordinated to Senior Debt outstanding under the Credit Facility on the date
of issuance of such Qualified Capital Stock or Indebtedness at least to the
same extent as the Securities.
"LEGAL DEFEASANCE" shall have the meaning specified in Section 8.2.
"LEVERAGE RATIO" of any person on any date of determination (the
"Transaction Date") means the ratio, on a PRO FORMA basis, of (a) the sum of
the aggregate outstanding
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amount of Indebtedness and Disqualified Capital Stock of such person and its
Subsidiaries as of the date of calculation on a consolidated basis in
accordance with GAAP to (b) the aggregate amount of Consolidated EBITDA of
such person attributable to continuing operations and business (exclusive of
amounts attributable to operations and businesses permanently discontinued or
disposed of) for the Reference Period; PROVIDED, that for purposes of such
calculation, (i) Acquisitions which occurred during the Reference Period or
subsequent to the Reference Period and on or prior to the Transaction Date
shall be assumed to have occurred on the first day of the Reference Period,
(ii) transactions giving rise to the need to calculate the Leverage Ratio
shall be assumed to have occurred on the first day of the Reference Period,
(iii) the incurrence of any Indebtedness or issuance of any Disqualified
Capital Stock during the Reference Period or subsequent to the Reference
Period and on or prior to the Transaction Date (and the application of the
proceeds therefrom to the extent used to refinance or retire other
Indebtedness) shall be assumed to have occurred on the first day of such
Reference Period, and (iv) the Consolidated Fixed Charges of such person
attributable to interest on any Indebtedness or dividends on any Disqualified
Capital Stock bearing a floating interest (or dividend) rate shall be
computed on a PRO FORMA basis as if the average rate in effect from the
beginning of the Reference Period to the Transaction Date had been the
applicable rate for the entire period, unless such person or any of its
Subsidiaries is a party to an Interest Swap or Hedging Obligation (which
shall remain in effect for the 12-month period immediately following the
Transaction Date) that has the effect of fixing the interest rate on the date
of computation, in which case such rate (whether higher or lower) shall be
used.
"LIEN" means any mortgage, charge, pledge, lien (statutory or
otherwise), privilege, security interest, or other encumbrance upon or with
respect to any property of any kind, real or personal, movable or immovable,
now owned or hereafter acquired.
"MATURITY DATE" means, when used with respect to the Securities,
the date specified on such Security as the fixed date on which the final
installment of principal of such Security is due and payable (in the absence
of any acceleration thereof pursuant to the provisions of the Indenture
regarding acceleration of Indebtedness or any Change of Control Offer or
Asset Sale Offer).
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"NET CASH PROCEEDS" means the aggregate amount of cash or Cash
Equivalents received by the Company in the case of a sale of Qualified
Capital Stock and by the Company and its Subsidiaries in respect of an Asset
Sale or an Event of Loss plus, in the case of an issuance of Qualified
Capital Stock of the Company upon any exercise, exchange or conversion of
securities (including options, warrants, rights and convertible or
exchangeable debt) of the Company that were issued for cash on or after the
Issue Date, the amount of cash originally received by the Company upon the
issuance of such securities (including options, warrants, rights and
convertible or exchangeable debt) less, in each case, the sum of all
payments, fees, commissions and (in the case of Asset Sales, reasonable and
customary), expenses (including, without limitation, the fees and expenses of
legal counsel and investment banking fees and expenses) incurred in
connection with such Asset Sale, Event of Loss or sale of Qualified Capital
Stock, and, in the case of an Asset Sale only, less an amount (estimated
reasonably and in good faith by the Company or the amount actually incurred,
if greater) of income, franchise, sales and other applicable taxes required
to be paid by the Company or any of its Subsidiaries in connection with such
Asset Sale.
"NON-GUARANTOR SUBSIDIARY" means any Subsidiary that is not a
Guarantor.
"NOTICE OF DEFAULT" shall have the meaning specified in Section
6.1(3).
"OBLIGATION" means any principal, premium or interest payment, or
monetary penalty, or damages, due by the Company or any Guarantor under the
terms of the Securities or the Indenture.
"OFFICER" means, with respect to the Company or the Guarantors, the
Chief Executive Officer, the President, any Senior Vice President, the Chief
Financial Officer, the Treasurer, the Controller, or the Secretary of the
Company or Guarantor (as applicable).
"OFFICERS' CERTIFICATE" means, with respect to the Company or the
Guarantors, a certificate signed by two Officers or by an Officer and an
Assistant Secretary of the Company or the Guarantors (as applicable) and
otherwise complying with the requirements of Sections 13.4 and 13.5, and
delivered to the Trustee or an Agent, as applicable.
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"OPINION OF COUNSEL" means a written opinion from legal counsel who
is reasonably acceptable to the Trustee (which may include counsel to the
Trustee or the Company including an employee of the Company) or an Agent, as
applicable, complying with the requirements of Sections 13.4 and 13.5, and
delivered to the Trustee or an Agent, as applicable.
"OUTSTANDING" as used with reference to the Securities shall have
the meaning specified in Section 2.8 hereof.
"PARENT" or "PARENT" of any person means a corporation which at the
date of determination owns, directly or indirectly, a majority of the Voting
Stock of such person or of a Parent of such person.
"PARENT GUARANTOR" means Jacor Communications, Inc., a Delaware
corporation.
"PAYING AGENT" has the meaning specified in Section 2.3.
"PAYMENT DEFAULT" has the meaning specified in Section 10.2.
"PAYMENT NOTICE" shall have the meaning set out in Section 10.2.
"PERMITTED INDEBTEDNESS" means any of the following:
(a) the Company and its Subsidiaries may incur Indebtedness
solely in respect of bankers acceptances, letters of credit and performance
bonds (to the extent that such incurrence does not result in the incurrence
of any obligation to repay any obligation relating to borrowed money of
others), all in the ordinary course of business in accordance with customary
industry practices, in amounts and for the purposes customary in the
Company's industry; provided, that the aggregate principal amount outstanding
of such Indebtedness (including any Indebtedness issued to refinance, refund
or replace such Indebtedness) shall at no time exceed $5.0 million;
(b) the Company may incur Indebtedness to any Wholly owned
Subsidiary Guarantor, and any Wholly owned
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Subsidiary Guarantor may incur Indebtedness to any other Wholly owned
Subsidiary Guarantor or to the Company; provided, that in the case of
Indebtedness of the Company, such obligations shall be unsecured and
subordinated in all respects to the Company's obligations pursuant to the
Securities and the date of any event that causes such Subsidiary Guarantor to
no longer be a Wholly owned Subsidiary shall be an Incurrence Date;
(c) the Company and the Guarantors may incur Indebtedness
evidenced by the Securities and the Guarantees and represented by the
Indenture up to the amounts specified therein as of the date hereof;
(d) the Company and the Guarantors, as applicable, may incur
Refinancing Indebtedness with respect to any Indebtedness or Disqualified
Capital Stock, as applicable, which Indebtedness was incurred pursuant to the
Leverage Ratio in Section 4.11 hereof or clause (c) of this definition;
(e) the Company and its Subsidiaries may incur Indebtedness
in an aggregate amount outstanding at any time (including any Indebtedness
issued to refinance, replace, or refund such Indebtedness) of up to $5.0
million;
(f) the Company and the Guarantors may incur Indebtedness
incurred pursuant to the Credit Facility up to an aggregate principal amount
outstanding (including any Indebtedness issued to refinance, refund or
replace such Indebtedness in whole or in part) at any time of $600.0 million,
plus accrued interest and additional expense and reimbursement obligations
with respect thereto and such additional amounts as may be deemed to be
outstanding in the form of Interest Swap and Hedging Obligations with lenders
(or affiliates thereof) party to the Credit Facility, minus the amount of any
such Indebtedness retired with Net Cash Proceeds from any Asset Sale;
(g) the Company and the Guarantors may incur Indebtedness
under Interest Swap and Hedging Obligations that do not increase the
Indebtedness of the Company other than as a result of fluctuations in
interest or foreign currency exchange rates provided that such Interest Swap
and Hedging Obligations are incurred for the purpose of providing interest
rate protection with respect to Indebtedness permitted under the Indenture or
to provide currency ex-
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change protection in connection with revenues generated in currencies other
than U.S. dollars;
(h) Subsidiaries may incur Acquired Indebtedness if the
Company at the time of such incurrence could incur such Indebtedness pursuant
to the Leverage Ratio in Section 4.11; and
(i) the Company and its Subsidiaries may incur Indebtedness
existing on the Issue Date.
"PERMITTED INVESTMENT" means:
(a) Investments in any of the Securities;
(b) Cash Equivalents;
(c) intercompany loans to the extent permitted under clause
(b) of the definition of "Permitted Indebtedness" and intercompany security
agreements relating thereto;
(d) loans, advances or investments in existence on the Issue
Date;
(e) Investments in a person substantially all of whose assets
are of a type generally used in a Related Business (an "Acquired Person") if,
as a result of such Investments, (i) the Acquired Person immediately
thereupon is or becomes a Subsidiary of the Company, or (ii) the Acquired
Person immediately thereupon either (1) is merged or consolidated with or
into the Company or any of its Subsidiaries and the surviving person is the
Company or a Subsidiary of the Company or (2) transfers or conveys all or
substantially all of its assets, or is liquidated into, the Company or any of
its Subsidiaries;
(f) Investments in a person with whom the Company or any of
its Subsidiaries have entered into, (i) local market agreements or time
brokerage agreements pursuant to which the Company or any one of its
Subsidiaries programs substantial portions of the broadcast day on such
person's radio broadcast station(s) and sells advertising time during such
program segments for its own account or (ii) joint sales agreements pursuant
to which the Company or any of its Subsidiaries sells substantially all of
the
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advertising time for such person's radio broadcast station(s);
(g) Investments that are in persons which will have the
purpose of furthering the operations of the Company and its Subsidiaries not
to exceed $10.0 million; and
(h) demand deposit accounts maintained in the ordinary course
of business.
"PERMITTED LIEN" means:
(a) Liens existing on the Issue Date;
(b) Liens imposed by governmental authorities for taxes,
assessments or other charges or levies not yet subject to penalty or which
are being contested in good faith and by appropriate proceedings, if adequate
reserves with respect thereto are maintained on the books of the Company in
accordance with GAAP as of the date of determination;
(c) statutory liens of carriers, warehousemen, mechanics,
materialmen, landlords, repairmen or other like Liens arising by operation of
law in the ordinary course of business provided that (i) the underlying
obligations are not overdue for a period of more than 60 days, or (ii) such
Liens are being contested in good faith and by appropriate proceedings and
adequate reserves with respect thereto are maintained on the books of the
Company in accordance with GAAP as of the date of determination;
(d) Liens securing the performance of bids, trade contracts
(other than borrowed money), leases, statutory obligations, surety and appeal
bonds, performance bonds and other obligations of a like nature incurred in
the ordinary course of business and deposits made in the ordinary course of
business to secure obligations of public utilities;
(e) easements, rights-of-way, zoning, building restrictions,
reservations, encroachments, exceptions, covenants, similar restrictions and
other similar encumbrances or title defects which, singly or in the
aggregate, do not in any case materially detract from the value of the
property, subject thereto (as such property is used by the
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Company or any of its Subsidiaries) or interfere with the ordinary conduct of
the business of the Company or any of its Subsidiaries;
(f) Liens arising by operation of law in connection with
judgments, provided, that the execution or other enforcement of such Liens is
effectively stayed and that the claims secured thereby are being contested in
good faith by appropriate proceedings;
(g) pledges or deposits made in the ordinary course of
business in connection with workers' compensation, unemployment insurance and
other types of social security legislation;
(h) Liens securing Indebtedness of a person existing at the
time such person becomes a Subsidiary or is merged with or into the Company
or a Subsidiary or Liens securing Indebtedness incurred in connection with an
Acquisition, provided that such Liens were in existence prior to the date of
such acquisition, merger or consolidation, were not incurred in anticipation
thereof, and do not extend to any other assets;
(i) leases or subleases granted to other persons in the
ordinary course of business not materially interfering with the conduct of
the business of the Company or any of its Subsidiaries or materially
detracting from the value of the relative assets of the Company or any of its
Subsidiaries;
(j) Liens arising from precautionary Uniform Commercial Code
financing statement filings regarding operating leases entered into by the
Company or any of its Subsidiaries in the ordinary course of business;
(k) Liens securing Refinancing Indebtedness incurred to
refinance any Indebtedness that was previously so secured in a manner no more
adverse to the Holders of the Securities than the terms of the Liens securing
such refinanced Indebtedness provided that the Indebtedness secured is not
increased and the lien is not extended to any additional assets or property;
(l) Liens in favor of the Administrative Agent pursuant to
the Credit Facility; and
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(m) Liens on property of a Subsidiary of the Company provided
that such Liens secure only obligations owing by such Subsidiary to the
Company or another Subsidiary of the Company.
"PERSON" or "PERSON" means any corporation, individual, limited
liability company, joint stock company, joint venture, partnership,
unincorporated association, governmental regulatory entity, country, state or
political subdivision thereof, trust, municipality or other entity.
"PLAN OF LIQUIDATION" means a plan that provides for, contemplates
or the effectuation of which is preceded or accompanied by (whether or not
substantially contemporaneously) (i) the sale, lease, conveyance or other
disposition of all or substantially all of the assets of the Company
otherwise than as an entirety or substantially as an entirety and (ii) the
distribution of all or substantially all of the proceeds of such sale, lease,
conveyance or other disposition and all or substantially all of the remaining
assets of the Company to holders of Capital Stock of the Company.
"PREFERRED STOCK" as applied to the Capital Stock of any
corporation, means Capital Stock ranking prior to the shares of any other
class of Capital Stock of said corporation as to the payment of dividends or
the distribution of assets on any voluntary or involuntary liquidation.
"PRESENT SUBSIDIARY GUARANTORS" means Broadcast Finance, Inc.; Cine
Films, Inc.; Cine Guarantors, Inc.; Cine Guarantors II, Inc.; Cine Guarantors
II, Ltd.; Cine Mobile Systems Int'l. N.V.; Cine Movil S.A. de C.V.;
Citicasters Co.; F.M.I. Pennsylvania, Inc.; GACC-N26LB, Inc.; GACC-340, Inc.;
Georgia Network Equipment, Inc.; Great American Merchandising Group, Inc.;
Great American Television Productions, Inc.; Inmobilaria Radial, S.A. de
C.V.; Jacor Broadcasting Corporation; Jacor Broadcasting of Atlanta, Inc.;
Jacor Broadcasting of Colorado, Inc.; Jacor Broadcasting of Florida, Inc.;
Jacor Broadcasting of Idaho, Inc.; Jacor Broadcasting of Iowa, Inc.;. Jacor
Broadcasting of Knoxville, Inc.; Jacor Broadcasting of Lexington, Inc.; Jacor
Broadcasting of St. Louis, Inc.; Jacor Broadcasting of San Diego, Inc.; Jacor
Broadcasting of Sarasota, Inc.; Jacor Broadcasting of Tampa Bay, Inc.; Jacor
Cable, Inc.; Location Productions, Inc.; Location Productions II, Inc.; Noble
Broadcast Center, Inc.; Noble Broadcast Group, Inc.; Noble
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Broadcast Holdings, Inc.; Noble Broadcast Licenses, Inc.; Noble Broadcast of
Colorado, Inc.; Noble Broadcast of St. Louis, Inc.; Noble Broadcast of San
Diego, Inc.; Noble Broadcast of Toledo, Inc.; Nobro, S.C.; Nova Marketing
Group, Inc.; Sports Radio Broadcasting, Inc.; Sports Radio, Inc.; Taft-TCI
Satellite Services, Inc.; The River Niger Pictures, Inc.; The Sy Fischer
Company Agency, Inc.; WHOK, Inc.; and VTTV Productions, each a direct or
indirect subsidiary of the Company or any successor entity, whether by
merger, consolidation, change of name or otherwise.
"PRO RATA PORTION" shall have the meaning specified in Section 12.1.
"PRODUCTIVE ASSETS" means assets of a kind used or usable by the
Company and its Subsidiaries in a Related Business.
"PROPERTY" means any right or interest in or to property or assets
of any kind whatsoever, whether real, personal or mixed and whether tangible
or intangible.
"PUBLIC OFFERING" means a firm commitment underwritten primary
offering of Capital Stock of the Parent Guarantor or the Company.
"QUALIFIED CAPITAL STOCK" means any Capital Stock of the Company
that is not Disqualified Capital Stock.
"QUALIFIED EXCHANGE" means any legal defeasance, redemption,
retirement, repurchase or other acquisition of Capital Stock or Indebtedness
of the Company issued on or after the Issue Date with the Net Cash Proceeds
received by the Company from the substantially concurrent sale of Qualified
Capital Stock or any exchange of Qualified Capital Stock for any Capital
Stock or Indebtedness issued on or after the Issue Date.
"RECORD DATE" means a Record Date specified in the Securities
whether or not such Record Date is a Business Day.
"REDEMPTION DATE," when used with respect to any Security to be
redeemed, means the date fixed for such redemption pursuant to Article III of
this Indenture and Paragraph 5 in the form of Security.
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<PAGE>
"REDEMPTION PRICE," when used with respect to any Security to be
redeemed, means the redemption price for such redemption pursuant to
Paragraph 5 in the form of Security, which shall include, without
duplication, in each case, accrued and unpaid interest to the Redemption Date
(subject to the provisions of Section 3.5).
"REFERENCE PERIOD" with regard to any Person means the four full
fiscal quarters (or such lesser period during which such person has been in
existence) ended immediately preceding any date upon which any determination
is to be made pursuant to the terms of the Securities or the Indenture.
"REFINANCING INDEBTEDNESS" means Indebtedness or Disqualified
Capital Stock (a) issued in exchange for, or the proceeds from the issuance
and sale of which are used substantially concurrently to repay, redeem,
defease, refund, refinance, discharge or otherwise retire for value, in whole
or in part, or (b) constituting an amendment, modification or supplement to,
or a deferral or renewal of ((a) and (b) above are, collectively, a
"Refinancing"), any Indebtedness or Disqualified Capital Stock in a principal
amount or, in the case of Disqualified Capital Stock, liquidation preference,
not to exceed (after deduction of reasonable and customary fees and expenses
incurred in connection with the Refinancing) the lesser of (i) the principal
amount or, in the case of Disqualified Capital Stock, liquidation preference,
of the Indebtedness or Disqualified Capital Stock so Refinanced and (ii) if
such Indebtedness being Refinanced was issued with an original issue
discount, the accredited value thereof (as determined in accordance with
GAAP) at the time of such Refinancing; provided, that (A) such Refinancing
Indebtedness of any Subsidiary of the Company shall only be used to Refinance
outstanding Indebtedness or Disqualified Capital Stock of such Subsidiary,
(B) such Refinancing Indebtedness shall (x) not have an Average Life shorter
than the Indebtedness or Disqualified Capital Stock to be so refinanced at
the time of such Refinancing and (y) in all respects, be no less subordinated
or junior, if applicable, to the rights of Holders of the Securities than was
the Indebtedness or Disqualified Capital Stock to be refinanced and (C) such
Refinancing Indebtedness shall have no installment of principal (or
redemption payment) scheduled to come due earlier than the scheduled maturity
of any installment of principal of the Indebtedness or Disqual-
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<PAGE>
ified Capital Stock to be so refinanced which was scheduled to come due prior
to the Stated Maturity.
"REGISTRAR" shall have the meaning specified in Section 2.3.
"RELATED BUSINESS" means the business conducted (or proposed to be
conducted) by the Company and its Subsidiaries as of the Issue Date and any
and all businesses that in the good faith judgment of the Board of Directors
of the Company are materially related businesses.
"RELATED PERSON" means any person who controls, is controlled by or
is under common control with an Excluded Person; PROVIDED that for purposes
of this definition "control" means the beneficial ownership of more than 50%
of the total voting power of a person normally entitled to vote in the
election of directors, managers or trustees, as applicable of a person.
"REPRESENTATIVE" means Chemical Bank in its capacity as
Administrative Agent for lenders pursuant to the New Credit Facility, and not
in its individual capacity as a lender, and any successor Administrative
Agent appointed pursuant to the Credit Facility.
"REQUIRED LENDERS" means lenders under the Credit Facility whose
PRO RATA shares (as defined therein), pursuant to the Credit Facility, are in
the aggregate at least 66 2/3%.
"RESTRICTED INVESTMENT" means, in one or a series of related
transactions any Investment other than investments in Permitted Investments;
provided, however, that a merger of another person with or into the Company
or a Subsidiary Guarantor shall not be deemed to be a Restricted Investment
so long as the surviving entity is the Company or a direct Wholly owned
Subsidiary Guarantor.
"RESTRICTED PAYMENT" means with respect to any person, (a) the
declaration or payment of any dividend or other distribution in respect of
Equity Interests of such person or any parent or Subsidiary of such person,
(b) any payment on account of the purchase, redemption or other acquisition
or retirement for value of Equity Interests of such person or any Subsidiary
or parent of such person, (c) other than with the proceeds from the
substantially
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<PAGE>
concurrent sale of, or in exchange for, Refinancing Indebtedness any
purchase, redemption, or other acquisition or retirement for value of, any
payment in respect of any amendment of the terms of or any defeasance of, any
Subordinated Indebtedness, directly or indirectly, by such person or a parent
or Subsidiary of such person prior to the scheduled maturity, any scheduled
repayment of principal, or scheduled sinking fund payment, as the case may
be, of such Indebtedness and (d) any Restricted Investment by such person;
provided, however, that the term "Restricted Payment" does not include (i)
any dividend, distribution or other payment on or with respect to Capital
Stock of an issuer to the extent payable solely in shares of Qualified
Capital Stock of such issuer; (ii) any dividend, distribution or other
payment to the Company, or to any Wholly owned Subsidiary Guarantor, by any
of the Subsidiaries of the Company; or (iii) loans or advances to any
Guarantor the proceeds of which are used by such Subsidiary Guarantor in a
Related Business activity of such Subsidiary Guarantor.
"SEC" means the Securities and Exchange Commission.
"SECURITIES" means the ___% Senior Subordinated Notes due 2006
issued under this Indenture.
"SECURITIES ACT" means the Securities Act of 1933, as amended, and
the rules and regulations of the SEC promulgated thereunder.
"SECURITIES CUSTODIAN" means the Registrar, as custodian with
respect to the Securities in global form, or any successor entity thereto.
"SECURITYHOLDER" or "HOLDER" means any person in whose name a
Security is registered on the Registrar's books.
"SENIOR DEBT" of the Company or any Guarantor means Indebtedness
(including any monetary obligation in respect of the Credit Facility, and
interest, whether or not such interest is allowed or allowable, accruing on
Indebtedness incurred pursuant to the Credit Facility at the contracted-for
rate whether accruing on, before or after the commencement of any proceeding
under any bankruptcy, insolvency or similar law) of the Company or such
Guarantor arising under the Credit Facility or that, by the terms of
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the instrument creating or evidencing such Indebtedness, is expressly
designated Senior Debt and made senior in right of payment to the Securities
or the applicable Guaranty; provided, that in no event shall Senior Debt
include (a) Indebtedness to any Subsidiary of the Company or any officer,
director or employee of the Company or any Subsidiary of the Company, (b)
Indebtedness incurred in violation of the terms of the Indenture, (c)
Indebtedness to trade creditors, (d) Disqualified Capital Stock and (e) any
liability for taxes owed or owing by the Company or such Guarantor.
"SIGNIFICANT SUBSIDIARY" shall have the meaning provided under
Regulation S-X of the Securities Act, in effect on the Issue Date.
"SPECIAL RECORD DATE" for payment of any Defaulted Interest means a
date fixed by the Paying Agent pursuant to Section 2.12.
"STATED MATURITY," when used with respect to any Security, means
_____, 2006.
"SUBORDINATED INDEBTEDNESS" means Indebtedness of the Company or a
Guarantor that is subordinated in right of payment to the Securities or such
Guaranty, as applicable, in any respect or has a stated maturity on or after
the Stated Maturity.
"SUBSIDIARY" with respect to any person, means (i) a corporation a
majority of whose Capital Stock with voting power, under ordinary
circumstances, to elect directors is at the time, directly or indirectly,
owned by such person, by such person and one or more Subsidiaries of such
person or by one or more Subsidiaries of such person, (ii) any other person
(other than a corporation) in which such person, one or more Subsidiaries of
such person, or such person and one or more Subsidiaries of such person,
directly or indirectly, at the date of determination thereof has at least
majority ownership interest, or (iii) a partnership in which such person or a
Subsidiary of such person is, at the time, a general partner and in which
such person, directly or indirectly, at the date of determination thereof has
at least a majority ownership interest.
"SUBSIDIARY GUARANTORS" means (i) the Present Subsidiary Guarantors
and (ii) Future Subsidiary Guarantors (other than Excluded Subsidiaries)
that become Subsidiary
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Guarantors pursuant to the terms of this Indenture, but excluding any Persons
whose guarantees have been released pursuant to the terms of this Indenture.
"TAX SHARING AGREEMENT" means any agreements between the Company
and the Parent Guarantor pursuant to which the Company may make payments to
the Parent Guarantor with respect to the Company's Federal, state, or local
income or franchise tax liabilities where the Company is included in a
consolidated, unitary or combined return filed by the Parent Guarantor;
PROVIDED, HOWEVER, that the payment by the Company under such agreement may
not exceed the liability of the Company for such taxes if it had filed its
income tax returns as a separate company.
"10 1/8% NOTES" means the 10 1/8% Senior Subordinated Notes due
June 15, 2006 issued by JCAC, Inc. (predecessor to the Company) pursuant to
an Indenture dated as of June 12, 1996 between JCAC, Inc., Jacor
Communication Inc., as Initial Guarantor and First Trust of Illinois,
National Association.
"TIA" means the Trust Indenture Act of 1939, as amended, (15 U.S.
Code Sections 77aaa-77bbbb) as in effect on the date of the execution of this
Indenture, except as provided in Section 9.3.
"TRANSFER INSTRUMENTS" shall have the meaning specified in Section
12.2.
"TRUSTEE" means the party named as such in this Indenture until a
successor replaces it in accordance with the provisions of this Indenture and
thereafter means such successor.
"TRUST OFFICER" means any officer within the corporate trust
department (or any successor group) of the Trustee or any other officer of
the Trustee customarily performing functions similar to those performed by
the Persons who at that time shall be such officers, and also means, with
respect to a particular corporate trust matter, any other officer of the
Trustee to whom such trust matter is referred because of his knowledge of and
familiarity with the particular subject.
"U.S. GOVERNMENT OBLIGATIONS" means direct non-callable obligations
of, or noncallable obligations guaran-
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teed by, the United States of America for the payment of which obligation or
guarantee the full faith and credit of the United States of America is
pledged.
"VOTING STOCK" means, with respect to any specified person, capital
stock with voting power, under ordinary circumstances, to elect directors of
such Person.
"WHOLLY OWNED SUBSIDIARY" means a Subsidiary all the Equity
Interests of which are owned by the Company or one or more Wholly owned
Subsidiaries of the Company.
SECTION 1.2. INCORPORATION BY REFERENCE OF TIA.
Whenever this Indenture refers to a provision of the TIA, such
provision is incorporated by reference in and made a part of this Indenture.
The following TIA terms used in this Indenture have the following meanings:
"COMMISSION" means the SEC.
"INDENTURE SECURITIES" means the Securities.
"INDENTURE SECURITYHOLDER" means a Holder or a Securityholder.
"INDENTURE TO BE QUALIFIED" means this Indenture.
"INDENTURE TRUSTEE" or "INSTITUTIONAL TRUSTEE" means the Trustee.
"OBLIGOR" on the indenture securities means the Company, each
Guarantor and any other obligor on the Securities.
All other TIA terms used in this Indenture that are defined by the
TIA, defined by TIA reference to another statute or defined by SEC rule and
not otherwise defined herein have the meanings assigned to them thereby.
SECTION 1.3. RULES OF CONSTRUCTION.
Unless the context otherwise requires:
(1) a term has the meaning assigned to it;
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(2) an accounting term not otherwise defined has the meaning
assigned to it in accordance with GAAP;
(3) "or" is not exclusive;
(4) words in the singular include the plural, and words in the
plural include the singular;
(5) provisions apply to successive events and transactions;
(6) "herein," "hereof" and other words of similar import refer to
this Indenture as a whole and not to any particular Article, Section or other
subdivision; and
(7) references to Sections or Articles means reference to such
Section or Article in this Indenture, unless stated otherwise.
ARTICLE II
THE SECURITIES
SECTION 2.1. FORM AND DATING.
The Securities and the Trustee's certificate of authentication, in
respect thereof, shall be substantially in the form of Exhibit A hereto,
which Exhibit is part of this Indenture. The Securities may have notations,
legends or endorsements required by law, stock exchange rule or usage. The
Company shall approve the form of the Securities and any notation, legend or
endorsement on them. Any such notations, legends or endorsements not
contained in the form of Security attached as Exhibit A hereto shall be
delivered in writing to the Trustee. Each Security shall be dated the date
of its authentication.
The terms and provisions contained in the forms of Securities shall
constitute, and are hereby expressly made, a part of this Indenture and, to
the extent applicable, the Company and the Trustee, by their execution and
delivery of this Indenture, expressly agree to such terms and provisions and
to be bound thereby.
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SECTION 2.2. EXECUTION AND AUTHENTICATION.
Two Officers shall sign, or one Officer shall sign and one Officer
shall attest to, the Security for the Company by manual or facsimile
signature. The Company's seal, if any, shall be impressed, affixed, imprinted
or reproduced on the Securities and may be in facsimile form.
If an Officer whose signature is on a Security was an Officer at
the time of such execution but no longer holds that office at the time the
Trustee authenticates the Security, the Security shall be valid nevertheless
and the Company shall nevertheless be bound by the terms of the Securities
and this Indenture.
A Security shall not be valid until an authorized signatory of the
Trustee manually signs the certificate of authentication on the Security but
such signature shall be conclusive evidence that the Security has been
authenticated pursuant to the terms of this Indenture.
The Trustee shall authenticate or cause to be authenticated
Securities for original issue in the aggregate principal amount of up to
$125,000,000 upon a written order of the Company in the form of an Officers'
Certificate. The Officers' Certificate shall specify the amount of
Securities to be authenticated and the date on which the Securities are to be
authenticated. The aggregate principal amount of Securities outstanding at
any time may not exceed $125,000,000, except as provided in Section 2.7.
Upon the written order of the Company in the form of an Officers'
Certificate, the Trustee shall authenticate Securities in substitution of
Securities originally issued to reflect any name changes of the Company.
The Trustee may appoint an authenticating agent acceptable to the
Company to authenticate Securities. Unless otherwise provided in the
appointment, an authenticating agent may authenticate Securities whenever the
Trustee may do so. Each reference in this Indenture to authentication by the
Trustee includes authentication by such agent. An authenticating agent has
the same rights as an Agent to deal with the Company, any Affiliate of the
Company, or any of its Subsidiaries.
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Securities shall be issuable only in fully registered form, without
coupons, in denominations of $1,000 and integral multiples thereof.
SECTION 2.3. REGISTRAR AND PAYING AGENT.
The Company shall maintain an office or agency in the Borough of
Manhattan, The City of New York, where Securities may be presented for
registration of transfer or exchange ("Registrar") and an office or agency of
the Company where Securities may be presented for payment ("Paying Agent")
and where notices and demands to or upon the Company in respect of the
Securities may be served. The Company may act as Registrar or Paying Agent,
except that, for the purposes of Articles III, VIII, XI, and Section 4.14 and
as otherwise specified in this Indenture, neither the Company nor any
Affiliate of the Company shall act as Paying Agent. The Registrar shall keep
a register of the Securities and of their transfer and exchange. The Company
may have one or more co-Registrars and one or more additional Paying Agents.
The term "Registrar" includes any co-registrar and the term "Paying Agent"
includes any additional Paying Agent. The Company hereby initially appoints
the Trustee as Registrar and Paying Agent, and by its acknowledgement and
acceptance on the signature page hereto, the Trustee hereby agrees so to act.
The Company shall enter into an appropriate written agency
agreement with any Agent (including the Paying Agent) not a party to this
Indenture, which agreement shall implement the provisions of this Indenture
that relate to such Agent, and shall furnish a copy of each such agreement to
the Trustee. The Company shall promptly notify the Trustee in writing of the
name and address of any such Agent. If the Company fails to maintain a
Registrar or Paying Agent, the Trustee shall act as such.
The Company initially appoints The Depository Trust Company ("DTC")
to act as Depositary with respect to the Global Securities.
The Company initially appoints the Registrar to act as Securities
Custodian with respect to the Global Securities.
Upon the occurrence of an Event of Default described in Section
6.1(4) or (6), the Trustee shall, or upon
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the occurrence of any other Event of Default by notice to the Company, the
Registrar and the Paying Agent, the Trustee may, assume the duties and
obligations of the Registrar and the Paying Agent hereunder.
SECTION 2.4. PAYING AGENT TO HOLD ASSETS IN TRUST.
The Company shall require each Paying Agent other than the Trustee
to agree in writing that such Paying Agent shall hold in trust for the
benefit of Holders or the Trustee all assets held by the Paying Agent for the
payment of principal of, premium, if any, or interest on, the Securities
(whether such assets have been distributed to it by the Company or any other
obligor on the Securities), and shall notify the Trustee in writing of any
Default in making any such payment. If a Subsidiary of the Company acts as
Paying Agent, it shall segregate such assets and hold them as a separate
trust fund for the benefit of the Holders or the Trustee. The Company at any
time may require a Paying Agent to distribute all assets held by it to the
Trustee and account for any assets disbursed and the Trustee may at any time
during the continuance of any payment Default or any Event of Default, upon
written request to a Paying Agent, require such Paying Agent to distribute
all assets held by it to the Trustee and to account for any assets
distributed. Upon distribution to the Trustee of all assets that shall have
been delivered by the Company to the Paying Agent, the Paying Agent (if other
than the Company) shall have no further liability for such assets.
SECTION 2.5. SECURITYHOLDER LISTS.
The Registrar shall preserve in as current a form as is reasonably
practicable the most recent list available to it of the names and addresses
of Holders and shall otherwise comply with TIA Section 312(a). If the
Trustee or any Paying Agent is not the Registrar, the Company shall furnish
to the Trustee on or before the third Business Day preceding each Interest
Payment Date and at such other times as the Trustee or any such Paying Agent
may request in writing a list in such form and as of such date as the Trustee
or any such Paying Agent reasonably may require of the names and addresses of
Holders and the Company shall otherwise comply with TIA Section 312(a).
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SECTION 2.6. TRANSFER AND EXCHANGE.
(a) TRANSFER AND EXCHANGE OF DEFINITIVE SECURITIES. When
Definitive Securities are presented to the Registrar with a request:
(x) to register the transfer of such Definitive
Securities; or
(y) to exchange such Definitive Securities for
an equal principal amount of Definitive Securities of other authorized
denominations; the Registrar shall register the transfer or make the exchange
as requested if its reasonable requirements for such transaction are met;
PROVIDED, HOWEVER, that the Definitive Securities surrendered for
registration of transfer or exchange shall be duly endorsed or accompanied by
a written instrument of transfer in form reasonably satisfactory to the
Company and the Registrar duly executed by the Holder thereof or his attorney
duly authorized in writing.
(b) RESTRICTIONS ON TRANSFER OF A DEFINITIVE SECURITY FOR A
BENEFICIAL INTEREST IN A GLOBAL SECURITY. A Definitive Security may not be
exchanged for a beneficial interest in a Global Security except upon
satisfaction of the requirements set forth below. Upon receipt by the
Registrar of a Definitive Security, duly endorsed or accompanied by
appropriate instruments of transfer, in form satisfactory to the Registrar,
together with written instructions of the Holder directing the Registrar to
make, or to direct the Securities Custodian to make, an endorsement on the
Global Security to reflect an increase in the aggregate principal amount of
the Securities represented by the Global Security, then the Registrar shall
cancel such Definitive Security and cause, or direct the Securities Custodian
to cause, in accordance with the standing instructions and procedures
existing between the Depositary and the Securities Custodian, the aggregate
principal amount of Securities represented by the Global Security to be
increased accordingly. If no Global Securities are then outstanding, the
Company shall issue and the Trustee shall authenticate a new Global Security
in the appropriate principal amount.
(c) TRANSFER AND EXCHANGE OF GLOBAL SECURITIES. The transfer
and exchange of Global Securities or beneficial interests therein shall be
effected through the
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Depositary, in accordance with this Indenture and the procedures of the
Depositary therefor.
(d) TRANSFER OF A BENEFICIAL INTEREST IN A GLOBAL SECURITY FOR A
DEFINITIVE SECURITY.
(i) Any Person having a beneficial interest in a Global
Security may upon request exchange such beneficial interest for a
Definitive Security. Upon receipt by the Registrar of written instructions
or such other form of instructions as is customary for the Depositary from
the Depositary or its nominee on behalf of any Person having a beneficial
interest in a Global Security, and, if such beneficial interest is being
transferred to the Person designated by the Depositary as being the
beneficial owner, a certification from such person to that effect (in
substantially the form set forth on the reverse of the Security)(all of
which may be submitted by facsimile), then the Registrar or the Securities
Custodian, at the direction of the Trustee, will cause, in accordance with
the standing instructions and procedures existing between the Depositary
and the Securities Custodian, the aggregate principal amount of the Global
Security to be reduced and, following such reduction, the Company will
execute and the Trustee's authenticating agent will authenticate and
deliver to the transferee a Definitive Security.
(ii) Definitive Securities issued in exchange for a
beneficial interest in a Global Security pursuant to this Section 2.6(d)
shall be registered in such names and in such authorized denominations as
the Depositary, pursuant to instructions from its direct or indirect
participants or otherwise, shall instruct the Registrar. The Registrar
shall deliver such Definitive Securities to the persons in whose names such
Securities are so registered.
(e) RESTRICTIONS ON TRANSFER AND EXCHANGE OF GLOBAL
SECURITIES. Notwithstanding any other provisions of this Indenture (other
than the provisions set forth in subsection (f) of this Section 2.6), a
Global Security may not be transferred as a whole except by the Depositary to
a nominee of the Depositary or by a nominee of the Depositary to the
Depositary or another nominee of the Depositary or by
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the Depositary or any such nominee to a successor Depositary or a nominee of
such successor Depositary.
(f) AUTHENTICATION OF DEFINITIVE SECURITIES IN ABSENCE OF
DEPOSITARY. If at any time:
(i) the Depositary for the Securities notifies the Company
that the Depositary is unwilling or unable to continue as Depositary for
the Global Securities and a successor Depositary for the Global Securities
is not appointed by the Company within 90 days after delivery of such
notice; or
(ii) the Company, in its sole discretion, notifies the
Trustee and the Registrar in writing that it elects to cause the issuance
of Definitive Securities under this Indenture,
then the Company will execute, and the Trustee, upon receipt of an Officers'
Certificate requesting the authentication and delivery of Definitive
Securities, will, or its authenticating agent will, authenticate and deliver
Definitive Securities, in an aggregate principal amount equal to the
principal amount of the Global Securities, in exchange for such Global
Securities.
(g) CANCELLATION AND/OR ADJUSTMENT OF GLOBAL SECURITY. At
such time as all beneficial interests in a Global Security have either been
exchanged for Definitive Securities, redeemed, repurchased or cancelled, such
Global Security shall be returned to or retained and cancelled by the
Registrar. At any time prior to such cancellation, if any beneficial
interest in a Global Security is exchanged for Definitive Securities,
redeemed, repurchased or cancelled, the principal amount of Securities
represented by such Global Security shall be reduced and an endorsement shall
be made on such Global Security, by the Registrar or the Securities
Custodian, at the direction of the Registrar, to reflect such reduction.
(h) OBLIGATIONS WITH RESPECT TO TRANSFERS AND EXCHANGES OF
SECURITIES.
(i) To permit registrations of transfers and exchanges, the
Company shall execute and the Trustee or any authenticating agent of the
Trustee
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shall authenticate Definitive Securities and Global Securities at
the Registrar's request.
(ii) No service charge shall be made to a Holder for any
registration of transfer or exchange, but the Company may require payment
of a sum sufficient to cover any transfer tax, assessments, or similar
governmental charge payable in connection therewith (other than any such
transfer taxes, assessments, or similar governmental charge payable upon
exchanges or transfers pursuant to Section 2.10, 3.7, 4.14(8), 9.5, or 11.1
(final paragraph)).
(iii) The Registrar shall not be required to register the
transfer of or exchange (a) any Definitive Security selected for redemption
in whole or in part pursuant to Article III, except the unredeemed portion
of any Definitive Security being redeemed in part, or (b) any Security for
a period beginning 15 Business Days before the mailing of a notice of an
offer to repurchase pursuant to Article XI or Section 4.14 hereof or
redemption of Securities pursuant to Article III hereof and ending at the
close of business on the day of such mailing.
SECTION 2.7. REPLACEMENT SECURITIES.
If a mutilated Security is surrendered to the Registrar or if the
Holder of a Security claims and submits an affidavit or other evidence,
satisfactory to the Registrar, to the Registrar to the effect that the
Security has been lost, destroyed or wrongfully taken, the Company shall
issue and the Trustee or any authenticating agent of the Trustee shall
authenticate a replacement Security if the Registrar's requirements are met.
If required by the Trustee, the Registrar or the Company, such Holder must
provide an indemnity bond or other indemnity, sufficient in the judgment of
both the Company and the Registrar, to protect the Company, the Trustee or
any Agent from any loss which any of them may suffer if a Security is
replaced. In the case of any lost Security that will become due and payable
within 30 days, the Company can choose to pay such Security rather than
replacing such Security. The Company may charge such Holder for its
reasonable, out-of-pocket expenses in replacing a Security.
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Every replacement Security is an additional obligation of the
Company.
SECTION 2.8. OUTSTANDING SECURITIES.
Securities outstanding at any time are all the Securities that have
been authenticated by the Trustee (including any Security represented by a
Global Security) except those cancelled by the Registrar, those delivered to
the Registrar for cancellation, those reductions in the interest in a Global
Security effected by the Registrar hereunder, those paid pursuant to Section
2.7 and those described in this Section 2.8 as not outstanding. A Security
does not cease to be outstanding because the Company or an Affiliate of the
Company holds the Security, except as provided in Section 2.9.
If a Security is replaced pursuant to Section 2.7 (other than a
mutilated Security surrendered for replacement), it ceases to be outstanding
unless the Registrar receives proof satisfactory to it that the replaced
Security is held by a BONA FIDE purchaser. A mutilated Security ceases to be
outstanding upon surrender of such Security and replacement thereof pursuant
to Section 2.7.
If on a Redemption Date or the Maturity Date the Paying Agent
(other than the Company or an Affiliate of the Company) holds Cash or U.S.
Government Obligations sufficient to pay all of the principal and interest
and premium, if any, due on the Securities payable on that date and payment
of the Securities called for redemption is not otherwise prohibited, then on
and after that date such Securities cease to be outstanding and interest on
them ceases to accrue.
SECTION 2.9. TREASURY SECURITIES.
In determining whether the Holders of the required principal amount
of Securities have concurred in any direction, amendment, supplement, waiver
or consent, Securities owned by the Company or Affiliates of the Company
shall be disregarded, except that, for the purposes of determining whether
the Trustee shall be protected in relying on any such direction, amendment,
supplement, waiver or consent, only Securities that a Trust Officer of the
Trustee actually knows are so owned shall be disregarded.
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SECTION 2.10. TEMPORARY SECURITIES.
Until Definitive Securities are ready for delivery, the Company may
prepare and the Trustee shall authenticate temporary Securities. Temporary
Securities shall be substantially in the form of Definitive Securities but
may have variations that the Company reasonably and in good faith consider
appropriate for temporary Securities. Without unreasonable delay, the
Company shall prepare and the Trustee shall, upon receipt of a written order
of the Company in the form of an Officer's Certificate, authenticate
Definitive Securities in exchange for temporary Securities. Until so
exchanged, the temporary Securities shall in all respects be entitled to the
same benefits under this Indenture as permanent Securities authenticated and
delivered hereunder.
SECTION 2.11. CANCELLATION.
The Company at any time may deliver Securities to the Registrar for
cancellation. The Trustee and the Paying Agent shall forward to the
Registrar any Securities surrendered to them for registration of transfer,
exchange or payment. The Registrar, or at the direction of the Registrar,
the Trustee or the Paying Agent (other than the Company or an Affiliate of
the Company), and no one else, shall cancel and, return to the Company all
Securities surrendered for registration of transfer, exchange, payment or
cancellation. Subject to Section 2.7, the Company may not issue new
Securities to replace Securities that have been paid or delivered to the
Registrar for cancellation. No Securities shall be authenticated in lieu of
or in exchange for any Securities cancelled as provided in this Section 2.11,
except as expressly permitted in the form of Securities and as permitted by
this Indenture.
SECTION 2.12. DEFAULTED INTEREST.
Any interest on any Security which is payable, but is not
punctually paid or duly provided for, on any Interest Payment Date plus, to
the extent lawful, any interest payable on the defaulted interest at the rate
and in the manner provided in Section 4.1 hereof and the Security (herein
called "Defaulted Interest") shall forthwith cease to be payable to the
registered holder on the relevant Record Date, and such Defaulted Interest
may be paid by the Compa-
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ny, at its election in each case, as provided in clause (1) or (2) below:
(1) The Company may elect to make payment of any Defaulted
Interest to the persons in whose names the Securities are registered at the
close of business on a Special Record Date for the payment of such
Defaulted Interest, which shall be fixed in the following manner. The
Company shall notify the Trustee and the Paying Agent in writing of the
amount of Defaulted Interest proposed to be paid on each Security and the
date of the proposed payment, and at the same time the Company shall
deposit with the Paying Agent an amount of Cash equal to the aggregate
amount proposed to be paid in respect of such Defaulted Interest or shall
make arrangements satisfactory to the Paying Agent for such deposit prior
to the date of the proposed payment, such Cash when deposited to be held in
trust for the benefit of the persons entitled to such Defaulted Interest as
provided in this clause (1). Thereupon the Paying Agent shall fix a
Special Record Date for the payment of such Defaulted Interest which shall
be not more than 15 days and not less than 10 days prior to the date of the
proposed payment and not less than 10 days after the receipt by the Paying
Agent of the notice of the proposed payment. The Paying Agent shall
promptly notify the Company and the Trustee of such Special Record Date
and, in the name and at the expense of the Company, shall cause notice of
the proposed payment of such Defaulted Interest and the Special Record Date
therefor to be mailed, first-class postage prepaid, to each Holder at his
address as it appears in the Security register not less than 10 days prior
to such Special Record Date. Notice of the proposed payment of such
Defaulted Interest and the Special Record Date therefor having been mailed
as aforesaid, such Defaulted Interest shall be paid to the persons in whose
names the Securities (or their respective predecessor Securities) are
registered on such Special Record Date and shall no longer be payable
pursuant to the following clause (2).
(2) The Company may make payment of any Defaulted Interest
in any other lawful manner not inconsistent with the requirements of any
securities exchange on which the Securities may be listed, and upon such
notice as may be required by such exchange, if,
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after notice given by the Company to the Trustee and the Paying Agent of
the proposed payment pursuant to this clause, such manner shall be deemed
practicable by the Trustee and the Paying Agent.
Subject to the foregoing provisions of this Section, each Security
delivered under this Indenture upon registration of transfer of or in
exchange for or in lieu of any other Security shall carry the rights to
interest accrued and unpaid, and to accrue, which were carried by such other
Security.
SECTION 2.13. CUSIP NUMBERS.
The Company in issuing the Securities may use "CUSIP" numbers (if
then generally in use), and, if so, the Trustee shall use "CUSIP" numbers in
notices of sredemption as a convenience to Holders; PROVIDED that any such
notice may state that no representation is made as to the correctness of such
numbers either as printed on the Securities or as contained in any notice of
a redemption and that reliance may be placed only on the other identification
numbers printed on the Securities, and any such redemption shall not be
affected by any defect in or omission of such numbers. The Company will
promptly notify the Trustee of any change in the CUSIP numbers.
ARTICLE III
REDEMPTION
SECTION 3.1. RIGHT OF REDEMPTION.
Redemption of Securities, as permitted by the provisions of this
Indenture, shall be made in accordance with such provisions and this Article
III. The Company will not have the right to redeem any Securities prior to
_____, 2001. On or after _____, 2001, the Company will have the right to
redeem all or any part of the Securities pursuant to Paragraph 5 thereof, in
each case (subject to the right of Holders of record on a Record Date to
receive interest due on an Interest Payment Date that is on or prior to such
Redemption Date, and subject to the provisions set forth in Section 3.5),
including accrued and unpaid interest to the Redemption Date.
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SECTION 3.2. NOTICES TO TRUSTEE AND PAYING AGENT.
If the Company elects to redeem Securities pursuant to Paragraph 5
of the Securities, it shall notify the Trustee and the Paying Agent in
writing of the Redemption Date and the principal amount of Securities to be
redeemed and whether it wants the Paying Agent to give notice of redemption
to the Holders.
If the Company elects to reduce the principal amount of Securities
to be redeemed pursuant to Paragraph 5 of the Securities by crediting against
any such redemption Securities it has not previously delivered to the Trustee
and the Paying Agent for cancellation, it shall so notify the Trustee, in the
form of an Officer's Certificate, and the Paying Agent of the amount of the
reduction and deliver such Securities with such notice.
The Company shall give each notice to the Trustee and the Paying
Agent provided for in this Section 3.2 at least 45 days before the Redemption
Date (unless a shorter notice shall be satisfactory to the Trustee and the
Paying Agent). Any such notice may be cancelled at any time prior to notice
of such redemption being mailed to any Holder and shall thereby be void and
of no effect.
SECTION 3.3. SELECTION OF SECURITIES TO BE REDEEMED.
If less than all of the Securities are to be redeemed pursuant to
Paragraph 5 thereof, the Trustee shall select the Securities to be redeemed
by lot or by such other method as the Trustee shall determine to be
appropriate and fair.
The Trustee shall make the selection from the Securities
outstanding and not previously called for redemption and shall promptly
notify the Company and the Paying Agent in writing of the Securities selected
for redemption and, in the case of any Security selected for partial
redemption, the principal amount thereof to be redeemed. Securities in
denominations of $1,000 may be redeemed only in whole. The Trustee may
select for redemption portions (equal to $1,000 or any integral multiple
thereof) of the principal of Securities that have denominations larger than
$1,000. Provisions of this Indenture that apply to Securi-
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ties called for redemption also apply to portions of Securities called for
redemption.
SECTION 3.4. NOTICE OF REDEMPTION.
At least 30 days but not more than 60 days before a Redemption Date,
the Company shall mail a notice of redemption by first class mail, postage
prepaid, to the Trustee, the Paying Agent and each Holder whose Securities are
to be redeemed. At the Company's request, the Paying Agent shall give the
notice of redemption in the Company's name and at the Company's expense. Each
notice for redemption shall identify the Securities to be redeemed and shall
state:
(1) the Redemption Date;
(2) the Redemption Price, including the amount of accrued
and unpaid interest to be paid upon such redemption;
(3) the name, address and telephone number of the Paying
Agent;
(4) that Securities called for redemption must be
surrendered to the Paying Agent at the address specified in such notice to
collect the Redemption Price;
(5) that, unless the Company defaults in its obligation to
deposit with the Paying Agent Cash, or U.S. Government Obligations which
through the scheduled payment of principal and interest in respect thereof
in accordance with their terms will provide, not later than one day before
the due date of any payment, Cash in an amount to fund the Redemption
Price, in accordance with Section 3.6 hereof or such redemption payment is
otherwise prohibited, interest on Securities called for redemption ceases
to accrue on and after the Redemption Date and the only remaining right of
the Holders of such Securities is to receive payment of the Redemption
Price, including accrued and unpaid interest to the Redemption Date, upon
surrender to the Paying Agent of the Securities called for redemption and
to be redeemed;
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(6) if any Security is being redeemed in part, the portion
of the principal amount, equal to $1,000 or any integral multiple thereof,
of such Security to be redeemed and that, after the Redemption Date, and
upon surrender of such Security, a new Security or Securities in aggregate
principal amount equal to the unredeemed portion thereof will be issued;
(7) if less than all the Securities are to be redeemed, the
identification of the particular Securities (or portion thereof) to be
redeemed, as well as the aggregate principal amount of such Securities to
be redeemed and the aggregate principal amount of Securities to be
outstanding after such partial redemption;
(8) the CUSIP number of the Securities to be redeemed; and
(9) that the notice is being sent pursuant to this Section
3.4 and pursuant to the optional redemption provisions of Paragraph 5 of
the Securities.
SECTION 3.5. EFFECT OF NOTICE OF REDEMPTION.
Once notice of redemption is mailed in accordance with Section 3.4,
Securities called for redemption become due and payable on the Redemption
Date and at the Redemption Price, including accrued and unpaid interest to
the Redemption Date. Upon surrender to the Paying Agent, such Securities
called for redemption shall be paid at the Redemption Price, including
interest, if any, accrued and unpaid to the Redemption Date; PROVIDED that if
the Redemption Date is after a regular Record Date and on or prior to the
Interest Payment Date to which such Record Date relates, the accrued interest
shall be payable to the Holder of the redeemed Securities registered on the
relevant Record Date; and PROVIDED, FURTHER, that if a Redemption Date is a
non-Business Day, payment shall be made on the next succeeding Business Day
and no interest shall accrue for the period from such Redemption Date to such
succeeding Business Day.
SECTION 3.6. DEPOSIT OF REDEMPTION PRICE.
On or prior to the Redemption Date, the Company shall deposit with
the Paying Agent (other than the Company or an Affiliate of the Company) Cash
or U.S. Government Obligations sufficient to pay the Redemption Price of, in-
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cluding accrued and unpaid interest on, all Securities to be redeemed on
such Redemption Date (other than Securities or portions thereof called for
redemption on that date that have been delivered by the Company to the
Registrar for cancellation). The Paying Agent shall promptly return to the
Company any Cash or U.S. Government Obligations so deposited which is not
required for that purpose upon the written request of the Company.
If the Company complies with the preceding paragraph and the other
provisions of this Article III and payment of the Securities called for
redemption is not otherwise prohibited, interest on the Securities to be
redeemed will cease to accrue on the applicable Redemption Date, whether or
not such Securities are presented for payment. Notwithstanding anything
herein to the contrary, if any Security surrendered for redemption in the
manner provided in the Securities shall not be so paid upon surrender for
redemption because of the failure of the Company to comply with the preceding
paragraph, interest shall continue to accrue and be paid from the Redemption
Date until such payment is made on the unpaid principal, and, to the extent
lawful, on any interest not paid on such unpaid principal, in each case at
the rate and in the manner provided in Section 4.1 hereof and the Security.
SECTION 3.7. SECURITIES REDEEMED IN PART.
Upon surrender of a Security that is to be redeemed in part, the
Company shall execute and the Trustee shall authenticate and deliver to the
Holder, without service charge to the Holder, a new Security or Securities
equal in principal amount to the unredeemed portion of the Security
surrendered.
ARTICLE IV
COVENANTS
SECTION 4.1. PAYMENT OF SECURITIES.
The Company shall pay the principal of and interest and premium, if
applicable, on the Securities on the dates and in the manner provided herein
and in the Securities. An installment of principal of or interest and
premium, if applicable, on the Securities shall be considered
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paid on the date it is due if the Trustee or Paying Agent (other than the
Company, a Subsidiary of the Company or an Affiliate of the Company) holds
for the benefit of the Holders, on or before 10:00 a.m. New York City time on
that date, Cash deposited and designated for and sufficient to pay the
installment.
The Company shall pay interest on overdue principal and on overdue
installments of interest at the rate specified in the Securities compounded
semi-annually, to the extent lawful.
SECTION 4.2. MAINTENANCE OF OFFICE OR AGENCY.
The Company shall maintain in the Borough of Manhattan, The City of
New York, an office or agency where Securities may be presented or
surrendered for payment, where Securities may be surrendered for registration
of transfer or exchange and where notices and demands to or upon the Company
in respect of the Securities and this Indenture may be served. The Company
shall give prompt written notice to the Trustee and the Paying Agent of the
location, and any change in the location, of such office or agency. If at
any time the Company shall fail to maintain any such required office or
agency or shall fail to furnish the Trustee and the Paying Agent with the
address thereof, such presentations, surrenders, notices and demands may be
made or served at the address of the Trustee set forth in Section 13.2.
The Company may also from time to time designate one or more other
offices or agencies where the Securities may be presented or surrendered for
any or all such purposes and may from time to time rescind such designations;
PROVIDED, HOWEVER, that no such designation or rescission shall in any manner
relieve the Company of its obligation to maintain an office or agency in the
Borough of Manhattan, The City of New York, for such purposes. The Company
shall give prompt written notice to the Trustee and the Paying Agent of any
such designation or rescission and of any change in the location of any such
other office or agency. The Company hereby initially designates the
principal corporate trust office of the Paying Agent as such office.
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SECTION 4.3. LIMITATION ON RESTRICTED PAYMENTS.
On and after the Issue Date the Company shall not, and shall not
permit any of its Subsidiaries to, directly or indirectly, make any
Restricted Payment, if, after giving effect to such Restricted Payment on a
PRO FORMA basis, (1) a Default or an Event of Default shall have occurred and
be continuing, (2) the Company is not permitted to incur at least $1.00 of
additional Indebtedness pursuant to the Leverage Ratio in Section 4.11, or
(3) the aggregate amount of all Restricted Payments made by the Company and
its Subsidiaries, including after giving effect to such proposed Restricted
Payment, from and after the Issue Date, would exceed the sum of (a)(x) 100%
of the aggregate Consolidated EBITDA of the Company and its Consolidated
Subsidiaries for the period (taken as one accounting period), commencing on
the first day of the first full fiscal quarter commencing after the Issue
Date, to and including the last day of the fiscal quarter ended immediately
prior to the date of each such calculation (or, in the event Consolidated
EBITDA for such period is a deficit, then minus 100% of such deficit) less
(y) 1.4 times Consolidated Fixed Charges for the same period plus (b) the
aggregate Net Cash Proceeds received by the Company from the sale of its
Qualified Capital Stock (other than (i) to a Subsidiary of the Company and
(ii) to the extent applied in connection with a Qualified Exchange), after
the Issue Date.
The foregoing clauses (2) and (3) of the immediately preceding
paragraph, however, will not prohibit (w) payments to the Parent Guarantor to
reimburse the Parent Guarantor for reasonable and necessary corporate and
administrative expenses, (x) Restricted Investments, PROVIDED, that, after
giving PRO FORMA effect to such Restricted Investment, the aggregate amount
of all such Restricted Investments made on or after the Issue Date that are
outstanding (after giving effect to any such Restricted Investments that are
returned to the Company or the Subsidiary Guarantor that made such prior
Restricted Investment, without restriction, in cash on or prior to the date
of any such calculation) at any time does not exceed $5.0 million, (y) a
Qualified Exchange and (z) the payment of any dividend on Qualified Capital
Stock within 60 days after the date of its declaration if such dividend could
have been made on the date of such declaration in compliance with the
foregoing provisions. The full amount of any Restricted Payment made pursuant
to the foregoing clauses (x) and (z) of the immedi-
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ately preceding sentence, however, will be deducted in the calculation of the
aggregate amount of Restricted Payments available to be made pursuant to
clause (3) of the immediately preceding paragraph.
SECTION 4.4. CORPORATE EXISTENCE.
Subject to Article V, the Company and the Guarantors shall do or
cause to be done all things necessary to preserve and keep in full force and
effect their respective corporate existence in accordance with the respective
organizational documents of each of them (as the same may be amended from
time to time) and the rights (charter and statutory) and corporate franchises
of the Company and the Guarantors; PROVIDED, HOWEVER, nothing in this Section
will prohibit the Company or any Guarantor from engaging in any transaction
permitted under Section 12.4 or Section 12.5 hereof and PROVIDED FURTHER that
neither the Company nor any Guarantor shall be required to preserve any right
or franchise if (a) the Board of Directors of the Company shall determine
that the preservation thereof is no longer desirable in the conduct of the
business of such entity and (b) the loss thereof is not disadvantageous in
any material respect to the Holders.
SECTION 4.5. PAYMENT OF TAXES AND OTHER CLAIMS.
Except with respect to immaterial items, the Company and the
Guarantors shall, and shall cause each of their Subsidiaries to, pay or
discharge or cause to be paid or discharged, before the same shall become
delinquent, (i) all taxes, assessments and governmental charges (including
withholding taxes and any penalties, interest and additions to taxes) levied
or imposed upon the Company and the Guarantors or any of their Subsidiaries
or any of their respective properties and assets; and (ii) all lawful claims,
whether for labor, materials, supplies, services or anything else, which have
become due and payable and which by law have or may become a Lien upon the
property and assets of the Company and the Guarantors or any of their
Subsidiaries; PROVIDED, HOWEVER, that neither the Company nor any of the
Guarantors shall be required to pay or discharge or cause to be paid or
discharged any such tax, assessment, charge or claim whose amount,
applicability or validity is being contested in good faith by appropriate
proceedings and for which disputed amounts adequate reserves have been
established in accordance with GAAP.
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SECTION 4.6. MAINTENANCE OF PROPERTIES AND INSURANCE.
The Company and the Guarantors shall cause all material properties
used or useful to the conduct of their business and the business of each of
their Subsidiaries to be maintained and kept in good condition, repair and
working order (reasonable wear and tear excepted) and supplied with all
necessary equipment and shall cause to be made all necessary repairs,
renewals, replacements, betterments and improvements thereof, all as in their
reasonable judgment may be necessary, so that the business carried on in
connection therewith may be properly conducted at all times; PROVIDED,
HOWEVER, that nothing in this Section 4.6 shall prevent the Company or any
Guarantor from discontinuing any operation or maintenance of any of such
properties, or disposing of any of them, if such discontinuance or disposal
is (a), in the judgment of the Board of Directors of the Company, desirable
in the conduct of the business of such entity and (b) not disadvantageous in
any material respect to the Holders.
The Company and the Guarantors shall provide, or cause to be
provided, for themselves and each of their Subsidiaries, insurance (including
appropriate self-insurance) against loss or damage of the kinds that, in the
reasonable, good faith opinion of the Company is adequate and appropriate for
the conduct of the business of the Company, the Guarantors and such
Subsidiaries.
SECTION 4.7. COMPLIANCE CERTIFICATE; NOTICE OF DEFAULT.
(a) The Company shall deliver to the Trustee within 120 days
after the end of its fiscal year an Officers' Certificate, one of the signers
of which shall be the principal executive officer, principal financial or
principal accounting officer of the Company complying with Section 314(a)(4)
of the TIA and stating that a review of its activities and the activities of
its Subsidiaries, if any, during the preceding fiscal year has been made
under the supervision of the signing Officers with a view to determining
whether the Company has kept, observed, performed and fulfilled its
obligations under this Indenture and further stating, as to each such Officer
signing such certificate, whether or not the signer knows of any failure by
the Company or any Guarantor to comply with any condi-
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tions or covenants in this Indenture and, if such signer does know of such a
failure to comply, the certificate shall describe such failure with
particularity. The Officers' Certificate shall also notify the Trustee
should the relevant fiscal year end on any date other than the current fiscal
year end date.
(b) The Company shall, so long as any of the Securities are
outstanding, deliver to the Trustee, promptly upon becoming aware of any
Default or Event of Default, an Officers' Certificate specifying such Default
or Event of Default and what action the Company is taking or proposes to take
with respect thereto. The Trustee shall not be deemed to have knowledge of
any Default or any Event of Default unless one of its Trust Officers receives
written notice thereof from the Company or any of the Holders.
SECTION 4.8. REPORTS.
For so long as the Parent Guarantor or any successor thereto is
subject to the reporting requirements of Section 13 or 15(d) of the Exchange
Act and the Company is a wholly owned Subsidiary of the Parent Guarantor, the
Company shall deliver to the Trustee, and to each Holder, the Parent
Guarantor's annual and quarterly reports pursuant to Section 13 or 15(d) of
the Exchange Act, within 15 days after such reports have been filed with the
Commission; PROVIDED, HOWEVER; in the event either (i) the Parent Guarantor
or a successor as set forth above is no longer subject to the reporting
requirements of Section 13 or 15(d) of the Exchange Act or (ii) the Company
is no longer a wholly owned Subsidiary of the Parent Guarantor or a successor
as set forth above, then whether or not the Company is subject to the
reporting requirements of Section 13 or 15(d) of the Exchange Act, the
Company shall deliver to the Trustee and, to each Holder, within 15 days
after it is or would have been (if it were subject to such reporting
obligations) required to file such with the Commission, annual and quarterly
financial statements substantially equivalent to financial statements that
would have been included in reports filed with the Commission, if the Company
were subject to the requirements of Section 13 or 15(d) of the Exchange Act,
including, with respect to annual information only, a report thereon by the
Company's certified independent accountants as such would be required in such
reports to the Commission, and, in each case, together with a management's
discussion and analysis of financial condition and results
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of operations which would be so required and, to the extent permitted by the
Exchange Act or the Commission (if it were subject to such reporting
obligations), file with the Commission the annual, quarterly and other
reports which it is or would have been required to file with the Commission.
SECTION 4.9. LIMITATION ON STATUS AS INVESTMENT COMPANY.
Neither the Company nor any Subsidiary shall become an "investment
company" (as that term is defined in the Investment Company Act of 1940, as
amended), or otherwise become subject to regulation under the Investment
Company Act.
SECTION 4.10. LIMITATION ON TRANSACTIONS WITH AFFILIATES.
After the Issue Date, the Company shall not, and shall not permit
any of its Subsidiaries to, enter into any contract, agreement, arrangement
or transaction with any Affiliate (an "Affiliate Transaction") or any series
of related Affiliate Transactions (other than Exempted Affiliate
Transactions) (i) unless it is determined that the terms of such Affiliate
Transaction are fair and reasonable to the Company, and no less favorable to
the Company than could have been obtained in an arm's length transaction with
a non-Affiliate and, (ii) if involving consideration to either party in
excess of $5.0 million, unless such Affiliate Transaction(s) is evidenced by
(A) an Officers' Certificate addressed and delivered to the Trustee
certifying that such Affiliate Transaction (or Transactions) has been
approved by a majority of the members of the Board of Directors of the
Company that are disinterested in such transaction or, (B) in the event there
are no members of the Board of Directors of the Company who are disinterested
in such transaction, then so long as the Company is a wholly owned Subsidiary
of the Parent Guarantor, an Officers' Certificate addressed and delivered to
the Trustee certifying that such Affiliate Transaction (or Transactions) have
been approved by a majority of the members of the Board of Directors of the
Parent Guarantor that are disinterested in such transaction and (iii) if
involving consideration to either party in excess of $10.0 million, unless in
addition the Company, prior to the consummation thereof, obtains a written
favorable opinion as to the fairness of such transaction to the Company
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from a financial point of view from an independent investment banking firm of
national reputation.
SECTION 4.11. LIMITATION ON INCURRENCE OF ADDITIONAL INDEBTEDNESS
AND DISQUALIFIED CAPITAL STOCK.
Except as set forth below, neither the Company nor any of the
Company's Subsidiaries shall, directly or indirectly, issue, assume,
guaranty, incur, become directly or indirectly liable with respect to
(including as a result of an Acquisition), or otherwise become responsible
for, contingently or otherwise (individually and collectively, to "incur" or,
as appropriate, an "incurrence"), any Indebtedness or any Disqualified
Capital Stock (including Acquired Indebtedness) other than Permitted
Indebtedness. Notwithstanding the foregoing limitations, the Company may
incur Indebtedness and Disqualified Capital Stock in addition to Permitted
Indebtedness: if (i) no Default or Event of Default shall have occurred and
be continuing at the time of, or would occur after giving effect on a PRO
FORMA basis to, such incurrence of Indebtedness or Disqualified Capital Stock
and (ii) on the date of such incurrence (the "Incurrence Date"), the Leverage
Ratio of the Company for the Reference Period immediately preceding the
Incurrence Date, after giving effect on a PRO FORMA basis to such incurrence
of such Indebtedness or Disqualified Capital Stock and, to the extent set
forth in the definition of Leverage Ratio, the use of proceeds thereof, would
be less than 7.0 to 1.
Indebtedness or Disqualified Capital Stock of any person which is
outstanding at the time such person becomes a Subsidiary of the Company
(including upon designation of any subsidiary or other person as a
Subsidiary) or is merged with or into or consolidated with the Company or a
Subsidiary of the Company shall be deemed to have been Incurred at the time
such Person becomes such a Subsidiary of the Company or is merged with or
into or consolidated with the Company or a Subsidiary of the Company, as
applicable.
SECTION 4.12. LIMITATIONS ON DIVIDENDS AND OTHER PAYMENT
RESTRICTIONS AFFECTING SUBSIDIARIES.
Neither the Company nor any of its Subsidiaries shall permit any of
their Subsidiaries to, create, assume or suffer to exist any consensual
restriction on the ability of any Subsidiary of the Company to pay dividends
or make other
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distributions to or on behalf of, or to pay any obligation to or on behalf
of, or otherwise to transfer assets or property to or on behalf of, or make
or pay loans or advances to or on behalf of, the Company or any Subsidiary of
the Company, except (a) restrictions imposed by the Securities or the
Indenture, (b) restrictions imposed by applicable law, (c) existing
restrictions under Indebtedness outstanding on the Issue Date, (d)
restrictions under any Acquired Indebtedness not incurred in violation of the
Indenture or any agreement relating to any property, asset, or business
acquired by the Company or any of its Subsidiaries, which restrictions in
each case existed at the time of acquisition, were not put in place in
connection with or in anticipation of such acquisition and are not applicable
to any person, other than the person acquired, or to any property, asset or
business, other than the property, assets and business so acquired, (e) any
such restriction or requirement imposed by Indebtedness incurred under
paragraph (f) under the definition of Permitted Indebtedness, provided such
restriction or requirement is no more restrictive than that imposed by the
Credit Facility as of the Issue Date, (f) restrictions with respect solely to
a Subsidiary of the Company imposed pursuant to a binding agreement which has
been entered into for the sale or disposition of all or substantially all of
the Equity Interests or assets of such Subsidiary, provided such restrictions
apply solely to the Equity Interests or assets of such Subsidiary which are
being sold, and (g) in connection with and pursuant to permitted
Refinancings, replacements of restrictions imposed pursuant to clauses (a),
(c) or (d) of this paragraph that are not more restrictive than those being
replaced and do not apply to any other person or assets than those that would
have been covered by the restrictions in the Indebtedness so refinanced.
Notwithstanding the foregoing, neither (a) customary provisions restricting
subletting or assignment of any lease entered into in the ordinary course of
business, consistent with industry practice, or other standard non-assignment
clauses in contracts entered into in the ordinary course of business, (b)
Capital Leases or agreements governing purchase money Indebtedness which
contain restrictions of the type referred to above with respect to the
property covered thereby, nor (c) Liens permitted under the terms hereof on
assets securing Senior Debt incurred pursuant to the Leverage Ratio in
Section 4.11 or permitted pursuant to the definition of Permitted
Indebtedness, shall in and of themselves be considered a restriction on the
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ability of the applicable Subsidiary to transfer such agreement or assets, as
the case may be.
SECTION 4.13. LIMITATIONS ON LAYERING INDEBTEDNESS; LIENS.
The Company and its Subsidiaries shall not, and shall not permit
any of their Subsidiaries to, directly or indirectly, incur, or, other than
with respect to the 10 1/8% Notes, suffer to exist (a) any Indebtedness that is
subordinate in right of payment to any other Indebtedness of the Company or a
Guarantor unless, by its terms, such Indebtedness (i) has a maturity date
subsequent to the Stated Maturity of the Securities and an Average Life
longer than that of the Securities and (ii) is subordinate in right of
payment to, or ranks PARI PASSU with, the Securities or the Guarantees, as
applicable, or (b) other than Permitted Liens, any Lien upon any of
properties or assets, whether now owned or hereafter acquired, or upon any
income or profits therefrom securing Indebtedness other than (1) Liens
securing Senior Debt incurred pursuant to the Leverage Ratio in accordance
with Section 4.11 and (2) Liens securing Senior Debt incurred as permitted
pursuant to the definition of Permitted Indebtedness.
SECTION 4.14. LIMITATION ON SALE OF ASSETS AND SUBSIDIARY STOCK.
The Company and its Subsidiaries shall not, and shall not permit
any of their Subsidiaries to, in one or a series of related transactions,
sell, transfer, or otherwise dispose of, any of its property, business or
assets, including by merger or consolidation (in the case of a Guarantor or a
Subsidiary of the Company), and including any sale or other transfer or
issuance of any Equity Interests of any direct or indirect Subsidiary of the
Company, whether by the Company or a direct or indirect Subsidiary thereof
(an "Asset Sale"), unless (1) within 450 days after the date of such Asset
Sale, the Net Cash Proceeds therefrom (the "Asset Sale Offer Amount") are (a)
applied to the optional redemption of the Securities in accordance with the
terms hereof and the Securities or to the repurchase of the Securities
pursuant to an irrevocable, unconditional cash offer (the "Asset Sale Offer")
to repurchase Securities at a purchase price (the "Asset Sale Offer Price")
of 100% of principal amount, plus accrued interest to the date of payment,
(b) invested in assets and property (other than notes, bonds,
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obligations and securities) which in the good faith reasonable judgment of
the Board of the Company will immediately constitute or be a part of a
Related Business of the Company or a Subsidiary (if it continues to be a
Subsidiary) immediately following such transaction or (c) used to permanently
retire or reduce Senior Debt or Indebtedness permitted pursuant to paragraphs
(d), (e) or (f) under the definition of Permitted Indebtedness (including
that in the case of a revolver or similar arrangement that makes credit
available, such commitment is so permanently reduced by such amount), (2)
with respect to any Asset Sale or related series of Asset Sales involving
securities, property or assets with an aggregate fair market value in excess
of $2.5 million, at least 75% of the consideration for such Asset Sale or
series of related Asset Sales (excluding the amount of (A) any Indebtedness
(other than the Securities) that is required to be repaid or assumed (and is
either repaid or assumed by the transferee of the related assets) by virtue
of such Asset Sale and which is secured by a Lien on the property or asset
sold and (B) property received by the Company or any such Subsidiary from the
transferee that within 90 days of such Asset Sale is converted into cash or
Cash Equivalents) consists of cash or Cash Equivalents (other than in the
case of an Asset Swap or where the Company is exchanging all or substantially
all the assets of one or more Related Businesses operated by the Company or
its Subsidiaries (including by way of the transfer of capital stock) for all
or substantially all the assets (including by way of the transfer of capital
stock) constituting one or more Related Businesses operated by another
person, in which event the foregoing requirement with respect to the receipt
of cash or Cash Equivalents shall not apply), (3) no Default or Event of
Default shall have occurred and be continuing at the time of, or would occur
after giving effect, on a PRO FORMA basis, to, such Asset Sale, and (4) the
Board of the Company determines in good faith that the Company or such
Subsidiary, as applicable, receives fair market value for such Asset Sale.
Notwithstanding the foregoing provisions of the first paragraph of
this covenant, with respect to an Asset Sale Offer, the Company shall not
commence an Asset Sale Offer for the Securities until such time as a
Citicasters Securities Asset Sale Offer for the Citicasters Securities and
the 10 1/8% Notes in each case if required, has been completed. To the extent
that any Excess Proceeds remain after expiration of an Asset Sale Offer
Period for the Citicasters
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Securities and the 10 1/8% Notes, the Company shall use the remaining Net
Cash Proceeds, to the extent "Excess Proceeds" (as defined herein) exceeds
$5,000,000, to commence an Asset Sale Offer for the Securities; PROVIDED,
that the amount of Net Cash Proceeds used for such Asset Sale Offer for the
Securities shall not exceed the Citicasters Asset Sale Repurchase Amount and
with respect to the 10 1/8% Notes, the amount required under the covenant
Limitation on Sale of Assets and Subsidiary Stock as set forth in the
indenture governing the 10 1/8% Notes PROVIDED, HOWEVER, that with respect to
the Citicasters Securities this paragraph shall be of no further force and
effect upon a Citicasters Securities Event and with respect to the 10 1/8%
Notes this paragraph shall be of no further force and effect upon the earlier
of (w) the maturity of the 10 1/8% Notes, (x) the date upon which defeasance
of the 10 1/8% Notes becomes effective, (y) the date on which there are no
longer any 10 1/8% Notes outstanding in accordance with the terms of the
indenture governing the 10 1/8% Notes and (z) the date on which the
Limitation on Sale of Assets and Subsidiary Stock covenant no longer applies
in accordance with the terms of the Indenture governing the 10 1/8% Notes.
In addition, notwithstanding the foregoing provisions of the first
paragraph of this covenant:
(i) the Company and its Subsidiaries may convey, sell,
lease, transfer, assign or otherwise dispose of assets pursuant to an in
accordance with the provisions of Section 5.1;
(ii) the Company and its Subsidiaries may sell or dispose
of inventory or damaged, worn out or other obsolete property in the
ordinary course of business so long as such property is no longer necessary
for the proper conduct of the business of the Company or such Subsidiary,
as applicable; and
(iii) any of the Company's Subsidiaries may convey, sell,
transfer, assign or otherwise dispose of assets to, or merge with or into,
the Company or any of its Wholly owned Subsidiary Guarantors.
The Company shall accumulate all Net Cash Proceeds (including any
cash as and when received from the proceeds of any property which itself was
acquired in consideration of an Asset Sale), and the aggregate amount of such
accumu-
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lated Net Cash Proceeds not used for the purposes permitted and within the
time provided by this Section 4.14 is referred to as the "Excess Proceeds."
For purposes of this Section 4.14, "Excess Proceeds Date" means
each date on which the Excess Proceeds exceeds $5,000,000. Not later than
ten Business Days after each Excess Proceeds Date, the Company will commence
an Asset Sale Offer, to the Holders to purchase, on a PRO RATA basis, for
Cash, Securities having a principal amount equal to the Excess Proceeds
Amount at the Asset Sale Offer Price, equal to 100% of principal amount, plus
accrued but unpaid interest to, and including, the date (the "Purchase
Date"), the Securities tendered are purchased and paid for in accordance with
this Section 4.14. The Asset Sale Offer shall remain open for twenty
Business Days, except to the extent that a longer period is required by
applicable law, but in any case not more than sixty Business Days after such
Excess Proceeds Date. Notice of an Asset Sale Offer will be sent on or
before the commencement of any Asset Sale Offer, by first-class mail, by the
Company to each Holder at its registered address, with a copy to the Trustee.
The notice to the Holders will contain all information, instructions and
materials required by applicable law or otherwise material to such Holders'
decision to tender Securities pursuant to the Asset Sale Offer. The notice,
which (to the extent consistent with this Indenture) shall govern the terms
of the Asset Sale Offer, shall state:
(1) that the Asset Sale Offer is being made pursuant
to such notice and this Section 4.14;
(2) the Asset Sale Offer Amount, the Asset Sale Offer
Price (including the amount of accrued and unpaid interest), the Final
Put Date (as defined below), and the Purchase Date, which Purchase
Date shall be on or prior to 60 Business Days following the Excess
Proceeds Date;
(3) that any Security or portion thereof not tendered
or accepted for payment will continue to accrue interest;
(4) that, unless the Company defaults in depositing
Cash with the Paying Agent in accordance with the immediately
following para-
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graph of this Section 4.14 or such payment is otherwise
prevented, any Security, or portion thereof, accepted for payment
pursuant to the Asset Sale Offer shall cease to accrue interest after
the Purchase Date;
(5) that Holders electing to have a Security, or
portion thereof, purchased pursuant to an Asset Sale Offer will be
required to surrender the Security, with the form entitled "Option of
Holder to Elect Purchase" on the reverse of the Security completed, to
the Paying Agent (which may not for purposes of this Section 4.14,
notwithstanding anything in this Indenture to the contrary, be the
Company or any Affiliate of the Company) at the address specified in
the notice prior to the close of business on the earlier of (a) the
third Business Day prior to the Purchase Date and (b) the third
Business Day following the expiration of the Asset Sale Offer (such
earlier date being the "Final Put Date");
(6) that Holders will be entitled to withdraw their
elections, in whole or in part, if the Paying Agent (which may not for
purposes of this Section 4.14, notwithstanding any other provision of
this Indenture, be the Company or any Affiliate of the Company)
receives, up to the close of business on the Final Put Date, a
facsimile transmission or letter setting forth the name of the Holder,
the principal amount of the Securities the Holder is withdrawing and a
statement that such Holder is withdrawing his election to have such
principal amount of Securities purchased;
(7) that if Securities in a principal amount in excess
of the principal amount of Securities to be acquired pursuant to the
Asset Sale Offer are tendered and not withdrawn, the Trustee shall
select the Securities to be purchased on a PRO RATA basis (with such
adjustments as may be deemed appropriate by the Company so that only
Securities in denominations of $1,000 or integral multiples of $1,000
shall be acquired);
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(8) that Holders whose Securities were purchased only
in part will be issued new Securities equal in principal amount to the
unpurchased portion of the Securities surrendered; and
(9) a brief description of the circumstances and
relevant facts regarding such Asset Sales.
On or before a Purchase Date, the Company shall, to the extent
lawful, (i) accept for payment Securities or portions thereof properly
tendered pursuant to the Asset Sale Offer on or before the Final Put Date (on
a PRO RATA basis if required pursuant to paragraph (7) of this Section 4.14),
(ii) deposit with the Paying Agent Cash sufficient to pay the Asset Sale
Offer Price for all Securities or portions thereof so tendered and accepted
and (iii) deliver to the Paying Agent Securities so accepted together with an
Officers' Certificate stating the Securities or portions thereof being
purchased by the Company. The Paying Agent shall on each Purchase Date mail
or deliver to Holders of Securities so accepted payment in an amount equal to
the Asset Sale Offer Price for such Securities, and the Trustee shall
promptly authenticate and mail or deliver to such Holders a new Security
equal in principal amount to any unpurchased portion of the Security
surrendered; PROVIDED that if the Purchase Date is after a regular Record
Date and on or prior to the Interest Payment Date to which such Record Date
relates, the accrued interest shall be payable to the Holder of the purchased
Securities registered on the relevant Record Date. Any Security not so
accepted shall be promptly mailed or delivered by the Company to the Holder
thereof.
All Net Cash Proceeds from an Event of Loss shall be applied to the
restoration, repair or replacement of the asset so affected or invested, used
for prepayment of Senior Debt, or used to repurchase Securities, all within
the period and as otherwise provided above in clauses 1(a), 1(b) or 1(c) of
the first paragraph of this covenant.
In addition to the foregoing, the Company will not, and will not
permit any of its Subsidiaries to, directly or indirectly make any Asset Sale
of any of the Equity Interests of any Subsidiary except pursuant to an Asset
Sale of all the Equity Interests of such Subsidiary.
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Any such Asset Sale Offer shall comply with all applicable laws,
rules and regulations, including Regulation 14E of the Exchange Act and the
rules and regulations thereunder and all other applicable Federal and State
securities laws, if applicable, and any provisions of this Indenture that
conflict with such laws shall be deemed to be superseded by the provisions of
such laws.
If the amount required to be paid by the Company in order to
acquire all Securities duly tendered by Holders (and not withdrawn) pursuant
to an Asset Sale Offer (the "Acceptance Amount"), made pursuant to the second
paragraph of this Section 4.14 is less than the Asset Sale Offer Amount, the
excess of the Asset Sale Offer Amount over the Acceptance Amount may be used
by the Company for general corporate purposes without restriction, unless
otherwise restricted by the other provisions of this Indenture. Upon
consummation of any Asset Sale Offer made in accordance with the terms of
this Indenture, the Accumulated Amount will be reduced to zero irrespective
of the amount of Securities tendered pursuant to the Asset Sale Offer.
Notwithstanding the foregoing provisions of clause (1)(b) in the
first paragraph of this Section 4.14, the Company may invest in a controlling
interest in the Capital Stock of an entity engaged in a Related Business;
PROVIDED, that concurrently with such an Investment, such entity becomes a
Subsidiary Guarantor.
SECTION 4.15. LIMITATION ON ASSET SWAPS.
Neither the Company nor any of its Subsidiaries shall, and shall
not permit any of their Subsidiaries to, in one or a series of related
transactions, directly or indirectly, engage in any Asset Swaps, unless: (i)
at the time of entering into the agreement to swap assets and immediately
after giving effect to the proposed Asset Swap, no Default or Event of
Default shall have occurred and be continuing or would occur as a consequence
thereof; (ii) the Company would, after giving PRO FORMA effect to the
proposed Asset Swap, have been permitted to incur at least $1.00 of
additional Indebtedness pursuant to the Leverage Ratio; (iii) the respective
fair market values of the assets being purchased and sold by the Company or
any of its Subsidiaries (as determined in good faith by the management of the
Company or, if such Asset Swap includes consideration in excess of $2.5
million by the Board of Directors of the Company, as
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evidenced by a Board Resolution) are substantially the same at the time of
entering into the agreement to swap assets; and (iv) at the time of the
consummation of the proposed Asset Swap, the percentage of any decline in the
fair market value (determined as aforesaid) of the asset or assets being
acquired by the Company and its Subsidiaries shall not be significantly
greater than the percentage of any decline in the fair market value
(determined as aforesaid) of the assets being disposed of by the Company or
its Subsidiaries, calculated from the time the agreement to swap assets was
entered into.
SECTION 4.16. LIMITATION ON LINES OF BUSINESS.
The Company and its Subsidiaries shall not, and shall not permit
any of their Subsidiaries to, directly or indirectly, engage to any
substantial extent in any line or lines of business activity other than that
which, in the reasonable good faith judgment of the Board of Directors of the
Company is a Related Business.
SECTION 4.17. RESTRICTION ON SALE AND ISSUANCE OF SUBSIDIARY STOCK.
Neither the Company nor the Guarantors shall sell, or permit any of
their Subsidiaries to issue or sell, any Equity Interests of any Subsidiary
of the Company to any person other than the Company or a Wholly owned
Subsidiary of the Company, except for Equity Interests with no preferences or
special rights or privileges and with no redemption or prepayment provisions.
SECTION 4.18. WAIVER OF STAY, EXTENSION OR USURY LAWS.
Each of the Company and the Guarantors covenants (to the extent
that it may lawfully do so) that it will not at any time insist upon, plead,
or in any manner whatsoever claim or take the benefit or advantage of, any
stay or extension law or any usury law or other law which would prohibit or
forgive the Company or any Guarantor from paying all or any portion of the
principal of, premium of, or interest on the Securities as contemplated
herein, wherever enacted, now or at any time hereafter in force, or which may
affect the covenants or the performance of this Indenture; and (to the extent
that it may lawfully do so) each of the Company and the Guarantors hereby
expressly waives all bene-
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fit or advantage of any such law, and covenants that it will not hinder,
delay or impede the execution of any power herein granted to the Trustee or
any Paying Agent, but will suffer and permit the execution of every such
power as though no such law had been enacted.
SECTION 4.19. DISSOLUTION OF EXCLUDED SUBSIDIARIES; RESTRICTION ON
TRANSFER TO EXCLUDED SUBSIDIARIES.
The Company and the Guarantors shall cause all Excluded
Subsidiaries to be dissolved or merged with and into a Subsidiary Guarantor
on or prior to the date three months from the date of this Indenture. The
Company and its Subsidiaries shall not, and shall not permit any of their
subsidiaries to, transfer any assets or make any payments outside of the
ordinary course to an Excluded Subsidiary.
ARTICLE V
SUCCESSOR CORPORATION
SECTION 5.1. LIMITATION ON MERGER, SALE OR CONSOLIDATION.
(a) The Company will not, directly or indirectly, consolidate
with or merge with or into another person or sell, lease, convey or transfer
all or substantially all of its assets (computed on a consolidated basis),
whether in a single transaction or a series of related transactions, to
another person or group of affiliated persons or adopt a Plan of Liquidation,
unless (i) either (a) the Company is the continuing entity or (b) the
resulting, surviving or transferee entity or in the case of a Plan of
Liquidation, the entity which receives the greatest value from such Plan of
Liquidation is a corporation organized under the laws of the United States,
any state thereof or the District of Columbia and expressly assumes by
supplemental indenture all of the obligations of the Company in connection
with the Securities and this Indenture; (ii) no Default or Event of Default
shall exist or shall occur immediately after giving effect on a PRO FORMA
basis to such transaction; and (iii) immediately after giving effect to such
transaction on a PRO FORMA basis, the consolidated resulting, surviving or
transferee entity or, in the case of a Plan of Liquidation, the entity which
receives the greatest value from such Plan of Liquidation would immediately
thereafter be permitted to incur at least $1.00 of addition-
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al Indebtedness pursuant to the Leverage Ratio set forth in Section 4.11.
(b) For purposes of clause (a), the sale, lease, conveyance,
assignment, transfer, or other disposition of all or substantially all of the
properties and assets of one or more Subsidiaries of the Company, which
properties and assets, if held by the Company instead of such Subsidiaries,
would constitute all or substantially all of the properties and assets of the
Company on a consolidated basis, shall be deemed to be the transfer of all or
substantially all of the properties and assets of the Company.
SECTION 5.2. SUCCESSOR CORPORATION SUBSTITUTED.
Upon any consolidation or merger or any transfer of all or
substantially all of the assets of the Company or consummation of a Plan of
Liquidation in accordance with Section 5.1 hereof, the successor corporation
formed by such consolidation or into which the Company is merged or to which
such transfer is made or, in the case of a Plan of Liquidation, the entity
which receives the greatest value from such Plan of Liquidation shall succeed
to, and be substituted for, and may exercise every right and power of, the
Company under this Indenture with the same effect as if such successor
corporation had been named herein as the Company, and when a successor
corporation duly assumes all of the obligations of the Company pursuant
hereto and pursuant to the Securities, the Company shall be released from
such obligations under the Securities and this Indenture except with respect
to any obligations that arise from or are related to, such transaction.
ARTICLE VI
EVENTS OF DEFAULT AND REMEDIES
SECTION 6.1. EVENTS OF DEFAULT.
"Event of Default," wherever used herein, means any one of the
following events (whatever the reason for such Event of Default and whether
it shall be caused voluntarily or involuntarily or effected, without
limitation, by operation of law or pursuant to any judgment, decree or
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order of any court or any order, rule or regulation of any administrative or
governmental body):
(1) failure by the Company to pay any installment of interest
upon the Securities as and when the same becomes due and payable, and the
continuance of any such failure for a period of 30 days;
(2) failure by the Company to pay all or any part of the
principal of or premium, if any, on the Securities when and as the same
becomes due and payable at maturity, upon redemption, by acceleration, or
otherwise, including, without limitation, default in the payment of the
Change of Control Purchase Price in accordance with Article XI or the Asset
Sale Offer Price in accordance with Section 4.14, or otherwise;
(3) failure by the Company or any Guarantor to observe or
perform any other covenant or agreement contained in the Securities or this
Indenture and, subject to certain exceptions, the continuance of such
failure for a period of 60 days after written notice is given to the
Company by the Trustee or to the Company and the Trustee by the Holders of
at least 25% in aggregate principal amount of the Securities outstanding,
specifying such default or breach, requiring it to be remedied and stating
that such notice is a "Notice of Default" hereunder;
(4) a decree, judgment, or order by a court of competent
jurisdiction shall have been entered adjudicating the Company or any of its
Significant Subsidiaries as bankrupt or insolvent, or approving as properly
filed a petition seeking reorganization of the Company or any of its
Significant Subsidiaries under any bankruptcy or similar law, and such
decree or order shall have continued undischarged and unstayed for a period
of 60 consecutive days; or a decree, judgment or order of a court of
competent jurisdiction appointing a receiver, liquidator, trustee, or
assignee in bankruptcy or insolvency for the Company, any of its
Significant Subsidiaries, or any substantial part of the property of any
such Person, or for the winding up or liquidation of the affairs of any
such Person, shall have been entered, and such decree, judgment, or order
shall have remained in force undischarged and unstayed for a period of 60
days;
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(5) a default in any issue of Indebtedness of the Company or
any of its Subsidiaries with an aggregate principal amount in excess of
$5.0 million, in either case (a) resulting from the failure to pay
principal at final maturity, or (b) as a result of which the maturity of
such Indebtedness has been accelerated prior to its stated maturity;
(6) the Company or any of its Significant Subsidiaries shall
institute proceedings to be adjudicated a voluntary bankrupt, or shall
consent to the filing of a bankruptcy proceeding against it, or shall file
a petition or answer or consent seeking reorganization under any
bankruptcy or similar law or similar statute, or shall consent to the
filing of any such petition, or shall consent to the appointment of a
Custodian, receiver, liquidator, trustee, or assignee in bankruptcy or
insolvency of it or any substantial part of its assets or property, or
shall make a general assignment for the benefit of creditors, or shall
admit in writing its inability to pay its debts generally as they become
due, fail generally to pay its debts as they become due, or take any
corporate action in furtherance of any of the foregoing; or
(7) final unsatisfied judgments not covered by insurance
aggregating in excess of $5.0 million at any one time shall be rendered
against the Company or any of its Subsidiaries and not stayed, bonded or
discharged for a period (during which execution shall not be effectively
stayed) of 60 days (or, in the case of any such final judgment which
provides for payment over time, which shall so remain unstayed, unbonded
or undischarged beyond any applicable payment date provided therein).
SECTION 6.2. ACCELERATION OF MATURITY DATE; RESCISSION AND
ANNULMENT.
If an Event of Default occurs and is continuing (other than an
Event of Default specified in Section 6.1(4) or (6) relating to the Company
or its Significant Subsidiaries) then in every such case, unless the
principal of all of the Securities shall have already become due and payable,
either the Trustee or the Holders of 25% in aggregate principal amount of the
Securities outstanding, by a notice in writing to the Company (and to the
Trustee if given by Hold-
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ers) (an "Acceleration Notice"), may declare all of the principal and accrued
interest thereon to be due and payable immediately; provided, however, that
if any Senior Debt is outstanding pursuant to the New Credit Facility upon a
declaration of such acceleration, such principal and interest shall be due
and payable upon the earlier of (x) the third Business Day after the sending
to the Company and the Representative of such written notice, unless such
Event of Default is cured or waived prior to such date and (y) the date of
acceleration of any Senior Debt under the New Credit Facility. In the event
a declaration of acceleration resulting from an Event of Default described in
Section 6.1(5) above has occurred and is continuing, such declaration of
acceleration shall be automatically annulled if such default is cured or
waived or the holders of the Indebtedness which is the subject of such
default have rescinded their declaration of acceleration in respect of such
Indebtedness within five days thereof and the Trustee has received written
notice or such cure, wavier or rescission and no other Event of Default
described in Section 6.1(5) above has occurred that has not been cured or
waived within five days of the declaration of such acceleration in respect of
such Indebtedness. If an Event of Default specified in Section 6.1(4) or (6)
above, relating to the Company or any Significant Subsidiary occurs, all
principal and accrued interest thereon will be immediately due and payable on
all outstanding Securities without any declaration or other act on the part
of Trustee or the Holders.
At any time after such a declaration of acceleration being made and
before a judgment or decree for payment of the money due has been obtained by
the Trustee as hereinafter provided in this Article VI, the Holders of not
less than a majority in aggregate principal amount of then outstanding
Securities, by written notice to the Company and the Trustee, may rescind, on
behalf of all Holders, any such declaration of acceleration if:
(1) the Company has paid or deposited with the Trustee Cash
sufficient to pay
(A) all overdue interest on all
Securities,
(B) the principal of (and premium, if
any, applicable to) any Securities which would become due
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other than by reason of such declaration of acceleration,
and interest thereon at the rate borne by the Securities,
(C) to the extent that payment of such
interest is lawful, interest upon overdue interest at the
rate borne by the Securities,
(D) all sums paid or advanced by the
Trustee hereunder and the compensation, expenses,
disbursements and advances of the Trustee and its agents and
counsel, and any other amounts due the Trustee under Section
7.7, and
(2) all Events of Default, other than the non-payment of the
principal of, premium, if any, and interest on Securities which have
become due solely by such declaration of acceleration, have been cured or
waived as provided in Section 6.12, including, if applicable, any Event
of Default relating to the covenants contained in Section 11.1.
Notwithstanding the previous sentence of this Section 6.2, no waiver shall be
effective against any Holder for any Event of Default or event which with
notice or lapse of time or both would be an Event of Default with respect to
(i) any covenant or provision which cannot be modified or amended without the
consent of the Holder of each outstanding Security affected thereby, unless
all such affected Holders agree, in writing, to waive such Event of Default
or other event and (ii) any provision requiring supermajority approval to
amend, unless such default has been waived by such a supermajority. No such
waiver shall cure or waive any subsequent default or impair any right
consequent thereon.
SECTION 6.3. COLLECTION OF INDEBTEDNESS AND SUITS FOR ENFORCEMENT BY
TRUSTEE.
The Company covenants that if an Event of Default in payment of
principal, premium, or interest specified in clause (1) or (2) of Section 6.1
occurs and is continuing, the Company shall, upon demand of the Trustee, pay
to it, for the benefit of the Holders of such Securities, the whole amount
then due and payable on such Securities for princi-
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pal, premium (if any) and interest, and, to the extent that payment of such
interest shall be legally enforceable, interest on any overdue principal (and
premium, if any) and on any overdue interest, at the rate borne by the
Securities, and, in addition thereto, such further amount as shall be
sufficient to cover the costs and expenses of collection, including
compensation to, and expenses, disbursements and advances of the Trustee and
its agents and counsel and all other amounts due the Trustee under Section
7.7.
If the Company fails to pay such amounts forthwith upon such
demand, the Trustee, in its own name and as trustee of an express trust in
favor of the Holders, may institute a judicial proceeding for the collection
of the sums so due and unpaid, may prosecute such proceeding to judgment or
final decree and may enforce the same against the Company or any other
obligor upon the Securities and collect the moneys adjudged or decreed to be
payable in the manner provided by law out of the property of the Company or
any other obligor upon the Securities, wherever situated.
If an Event of Default occurs and is continuing, the Trustee may in
its discretion proceed to protect and enforce its rights and the rights of
the Holders by such appropriate judicial proceedings as the Trustee shall
deem most effective to protect and enforce any such rights, whether for the
specific enforcement of any covenant or agreement in this Indenture or in aid
of the exercise of any power granted herein, or to enforce any other proper
remedy.
SECTION 6.4. TRUSTEE MAY FILE PROOFS OF CLAIM.
In case of the pendency of any receivership, insolvency,
liquidation, bankruptcy, reorganization, arrangement, adjustment, composition
or other judicial proceeding relative to the Company or any other obligor
upon the Securities or the property of the Company or of such other obligor
or their creditors, the Trustee (irrespective of whether the principal of the
Securities shall then be due and payable as therein expressed or by
declaration or otherwise and irrespective of whether the Trustee shall have
made any demand on the Company for the payment of overdue principal and
premium, if any, or interest) shall be entitled and empowered, by
intervention in such proceeding or otherwise to take any and all actions
under the TIA, including
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(1) to file and prove a claim for the whole amount of
principal (and premium, if any) and interest owing and unpaid in
respect of the Securities and to file such other papers or documents
as may be necessary or advisable in order to have the claims of the
Trustee (including any claim for the reasonable compensation,
expenses, disbursements and advances of the Trustee and its agent and
counsel and all other amounts due the Trustee under Section 7.7) and
of the Holders allowed in such judicial proceeding, and
(2) to collect and receive any moneys or other
property payable or deliverable on any such claims and to distribute
the same;
and any custodian, receiver, assignee, trustee, liquidator, sequestrator or
other similar official in any such judicial proceeding is hereby authorized
by each Holder to make such payments to the Trustee and, in the event that
the Trustee shall consent to the making of such payments directly to the
Holders, to pay to the Trustee any amount due it for the reasonable
compensation, expenses, disbursements and advances of the Trustee and its
agents and counsel, and any other amounts due the Trustee under Section 7.7.
Nothing herein contained shall be deemed to authorize the Trustee
to authorize or consent to or accept or adopt on behalf of any Holder any
plan of reorganization, arrangement, adjustment, or composition affecting the
Securities or the rights of any Holder thereof or to authorize the Trustee to
vote in respect of the claim of any Holder in any such proceeding.
SECTION 6.5. TRUSTEE MAY ENFORCE CLAIMS WITHOUT POSSESSION OF
SECURITIES.
All rights of action and claims under this Indenture or the
Securities may be prosecuted and enforced by the Trustee without the
possession of any of the Securities or the production thereof in any
proceeding relating thereto, and any such proceeding instituted by the
Trustee shall be brought in its own name as trustee of an express trust in
favor of the Holders, and any recovery of judgment shall, after provision for
the payment of compensation to, and expenses, disbursements and advances of
the Trustee, its agents and counsel and all other amounts due the Trustee
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under Section 7.7, be for the ratable benefit of the Holders of the
Securities in respect of which such judgment has been recovered.
SECTION 6.6. PRIORITIES.
Any money collected by the Trustee pursuant to this Article VI
shall be applied in the following order, at the date or dates fixed by the
Trustee and, in case of the distribution of such money on account of
principal, premium (if any) or interest, upon presentation of the Securities
and the notation thereon of the payment if only partially paid and upon
surrender thereof if fully paid:
FIRST: To the Trustee in payment of all amounts due pursuant to
Section 7.7;
SECOND: To the Holders in payment of the amounts then due and
unpaid for principal of, premium (if any) and interest on, the Securities in
respect of which or for the benefit of which such money has been collected,
ratably, without preference or priority of any kind, according to the amounts
due and payable on such Securities for principal, premium (if any) and
interest, respectively; and
THIRD: To the Company or such other Person as may be lawfully
entitled thereto, the remainder, if any.
The Trustee may, but shall not be obligated to, fix a record date
and payment date for any payment to the Holders under this Section 6.6.
SECTION 6.7. LIMITATION ON SUITS.
No Holder of any Security shall have any right to order or direct
the Trustee to institute any proceeding, judicial or otherwise, with respect
to this Indenture, or for the appointment of a receiver or trustee, or for
any other remedy hereunder, unless
(A) such Holder has previously given written notice to the
Trustee of a continuing Event of Default;
(B) the Holders of not less than 25% in aggregate
principal amount of then outstanding Securities shall have made written
request to the Trustee to
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institute proceedings in respect of such Event of Default in
its own name as Trustee hereunder;
(C) such Holder or Holders have offered to the Trustee
reasonable security or indemnity against the costs, expenses and
liabilities to be incurred or reasonably probable to be incurred in
compliance with such request;
(D) the Trustee for 60 days after its receipt of such
notice, request and offer of indemnity has failed to institute any such
proceeding; and
(E) no direction inconsistent with such written request
has been given to the Trustee during such 60-day period by the Holders
of a majority in aggregate principal amount of the outstanding
Securities;
it being understood and intended that no one or more Holders shall have any
right in any manner whatsoever by virtue of, or by availing of, any provision
of this Indenture to affect, disturb or prejudice the rights of any other
Holders, or to obtain or to seek to obtain priority or preference over any
other Holders or to enforce any right under this Indenture, except in the
manner herein provided and for the equal and ratable benefit of all the
Holders.
SECTION 6.8. UNCONDITIONAL RIGHT OF HOLDERS TO RECEIVE PRINCIPAL,
PREMIUM AND INTEREST.
Notwithstanding any other provision of this Indenture, the Holder
of any Security shall have the right, which is absolute and unconditional, to
receive payment of the principal of, and premium (if any) and interest on,
such Security on the Maturity Dates of such payments as expressed in such
Security (in the case of redemption, the Redemption Price on the applicable
Redemption Date, in the case of the Change of Control Payment, on the
applicable Change of Control Payment Date, and in the case of the Asset Sale
Offer Price, on the Purchase Date) and to institute suit for the enforcement
of any such payment after such respective dates, and such rights shall not be
impaired without the consent of such Holder.
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SECTION 6.9. RIGHTS AND REMEDIES CUMULATIVE.
Except as otherwise provided with respect to the replacement or
payment of mutilated, destroyed, lost or stolen Securities in Section 2.7, no
right or remedy herein conferred upon or reserved to the Trustee or to the
Holders is intended to be exclusive of any other right or remedy, and every
right and remedy shall, to the extent permitted by law, be cumulative and in
addition to every other right and remedy given hereunder or now or hereafter
existing at law or in equity or otherwise. The assertion or employment of
any right or remedy hereunder, or otherwise, shall not prevent the concurrent
assertion or employment of any other appropriate right or remedy.
SECTION 6.10. DELAY OR OMISSION NOT WAIVER.
No delay or omission by the Trustee or by any Holder of any
Security to exercise any right or remedy arising upon any Event of Default
shall impair the exercise of any such right or remedy or constitute a waiver
of any such Event of Default. Every right and remedy given by this Article
VI or by law to the Trustee or to the Holders may be exercised from time to
time, and as often as may be deemed expedient, by the Trustee or by the
Holders, as the case may be.
SECTION 6.11. CONTROL BY HOLDERS.
The Holder or Holders of a majority in aggregate principal amount
of then outstanding Securities shall have the right to direct the time,
method and place of conducting any proceeding for any remedy available to the
Trustee or exercising any trust or power conferred upon the Trustee,
PROVIDED, that
(1) such direction shall not be in conflict with any rule of
law or with this Indenture or involve the Trustee in personal liability,
(2) the Trustee shall not determine that the action so directed
would be unjustly prejudicial to the Holders not taking part in such
direction, and
(3) the Trustee may take any other action deemed proper by the
Trustee which is not inconsistent with such direction.
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SECTION 6.12. WAIVER OF PAST DEFAULT.
Subject to Section 6.8, and prior to the declaration of
acceleration of the maturity of the Securities, the Holder or Holders of not
less than a majority in aggregate principal amount of the outstanding
Securities may, on behalf of all Holders, waive any past default hereunder
and its consequences, except a default
(A) in the payment of the principal of, premium, if any,
or interest on, any Security as specified in clauses (1) and (2) of
Section 6.1 and not yet cured,
(B) in respect of a covenant or provision hereof which,
under Article IX, cannot be modified or amended without the consent of the
Holder of each outstanding Security affected, or
(C) in respect of any provision hereof which, under
Article IX, cannot be modified, amended or waived without the consent of
the Holders of a supermajority of the aggregate principal amount of the
Securities at the time outstanding; PROVIDED, that any such waiver may be
effected with the consent of the Holders of a supermajority of the
aggregate principal amount of the Securities then outstanding.
Upon any such waiver, such default shall cease to exist, and any
Event of Default arising therefrom shall be deemed to have been cured, for
every purpose of this Indenture; but no such waiver shall extend to any
subsequent or other default or impair the exercise of any right arising
therefrom.
SECTION 6.13. UNDERTAKING FOR COSTS.
All parties to this Indenture agree, and each Holder of any
Security by his acceptance thereof shall be deemed to have agreed, that in
any suit for the enforcement of any right or remedy under this Indenture, or
in any suit against the Trustee for any action taken, suffered or omitted to
be taken by it as Trustee, any court may in its discretion require the filing
by any party litigant in such suit of an undertaking to pay the costs of such
suit, and that such court may in its discretion assess reasonable costs,
including reasonable attorneys' fees and expenses,
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against any party litigant in such suit, having due regard to the merits and
good faith of the claims or defenses made by such party litigant; but the
provisions of this Section 6.13 shall not apply to any suit instituted by the
Company, to any suit instituted by the Trustee, to any suit instituted by any
Holder, or group of Holders, holding in the aggregate more than 10% in
aggregate principal amount of the outstanding Securities, or to any suit
instituted by any Holder for enforcement of the payment of principal of, or
premium (if any) or interest on, any Security on or after the respective
Maturity Date expressed in such Security (including, in the case of
redemption, on or after the Redemption Date).
SECTION 6.14. RESTORATION OF RIGHTS AND REMEDIES.
If the Trustee or any Holder has instituted any proceeding to
enforce any right or remedy under this Indenture and such proceeding has been
discontinued or abandoned for any reason, or has been determined adversely to
the Trustee or to such Holder, then and in every case, subject to any
determination in such proceeding, the Company, the Guarantors, the Trustee
and the Holders shall be restored severally and respectively to their former
positions hereunder and thereafter all rights and remedies of the Trustee and
the Holders shall continue as though no such proceeding had been instituted.
ARTICLE VII
TRUSTEE
The Trustee hereby accepts the trust imposed upon it by this
Indenture and covenants and agrees to perform the same, as herein expressed,
subject to the terms hereof.
SECTION 7.1. DUTIES OF TRUSTEE.
(a) If an Event of Default has occurred and is continuing,
the Trustee shall exercise such of the rights and powers vested in it by this
Indenture and use the same degree of care and skill in their exercise as a
prudent Person would exercise or use under the circumstances in the conduct
of his own affairs.
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(b) Except during the continuance of an Event of Default:
(1) The Trustee need perform only those duties as are
specifically set forth in this Indenture and no others, and no covenants
or obligations shall be implied in or read into this Indenture which are
adverse to the Trustee, and
(2) In the absence of bad faith on its part, the Trustee may
conclusively rely, as to the truth of the statements and the correctness
of the opinions expressed therein, upon certificates or opinions furnished
to the Trustee and conforming to the requirements of this Indenture.
However, in the case of any such certificates or opinions which by any
provision hereof are specifically required to be furnished to the Trustee,
the Trustee shall examine the certificates and opinions to determine
whether or not they conform to the requirements of this Indenture.
(c) The Trustee may not be relieved from liability for its
own negligent action, its own negligent failure to act, or its own willful
misconduct, except that:
(1) This paragraph does not limit the effect of paragraph (b)
of this Section 7.1,
(2) The Trustee shall not be liable for any error of judgment
made in good faith by a Trust Officer, unless it is proved that the
Trustee was negligent in ascertaining the pertinent facts, and
(3) The Trustee shall not be liable with respect to any action
it takes or omits to take in good faith in accordance with a direction
received by it pursuant to Section 6.11.
(d) No provision of this Indenture shall require the Trustee
to expend or risk its own funds or otherwise incur any financial liability in
the performance of any of its duties hereunder or to take or omit to take any
action under this Indenture or at the request, order or direction of the
Holders or in the exercise of any of its rights or powers if it shall have
reasonable grounds for believing that repayment of such funds or adequate
indemnity
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against such risk or liability is not reasonably assured to it.
(e) Every provision of this Indenture that in any way relates
to the Trustee is subject to paragraphs (a), (b), (c), (d) and (f) of this
Section 7.1.
(f) The Trustee shall not be liable for interest on any
assets received by it except as the Trustee may agree in writing with the
Company. Assets held in trust by the Trustee need not be segregated from
other assets except to the extent required by law.
SECTION 7.2. RIGHTS OF TRUSTEE.
Subject to Section 7.1:
(a) The Trustee may rely on any document believed by it to be
genuine and to have been signed or presented by the proper Person. The
Trustee need not investigate any fact or matter stated in the document.
(b) Before the Trustee acts or refrains from acting, it may
consult with counsel and may require an Officers' Certificate or an Opinion
of Counsel, which shall conform to Sections 13.4 and 13.5. The Trustee shall
not be liable for any action it takes or omits to take in good faith in
reliance on such certificate or advice of counsel.
(c) The Trustee may act through its attorneys and agents and
shall not be responsible for the misconduct or negligence of any agent
appointed with due care.
(d) The Trustee shall not be liable for any action it takes
or omits to take in good faith which it believes to be authorized or within
its rights or powers conferred upon it by this Indenture, nor for any action
permitted to be taken or omitted hereunder by any Agent.
(e) The Trustee shall not be bound to make any investigation
into the facts or matters stated in any resolution, certificate, statement,
instrument, opinion, notice, request, direction, consent, order, bond,
debenture, or other paper or document, but the Trustee, in its discretion,
may make such further inquiry or investigation into such facts or matters as
it may see fit.
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(f) The Trustee shall be under no obligation to exercise any
of the rights or powers vested in it by this Indenture at the request, order
or direction of any of the Holders, pursuant to the provisions of this
Indenture, unless such Holders shall have offered to the Trustee reasonable
security or indemnity against the costs, expenses and liabilities which may
be incurred therein or thereby.
(g) Unless otherwise specifically provided for in this
Indenture, any demand, request, direction or notice from the Company or any
Guarantor shall be sufficient if signed by an Officer of the Company or such
Guarantor, as applicable.
(h) The Trustee shall have no duty to inquire as to the
performance of the Company's or any Guarantor's covenants in Article IV
hereof or as to the performance by any Agent of its duties hereunder. In
addition, the Trustee shall not be deemed to have knowledge of any Default or
Event of Default except any Default or Event of Default of which the Trustee
shall have received written notification or with respect to which a Trustee
Officer shall have actual knowledge.
(i) Whenever in the administration of this Indenture the
Trustee shall deem it desirable that a matter be proved or established prior
to taking, suffering or omitting any action hereunder, the Trustee (unless
other evidence be herein specifically prescribed) may, in the absence of bad
faith on its part, rely upon an Officers' Certificate.
SECTION 7.3. INDIVIDUAL RIGHTS OF TRUSTEE.
The Trustee in its individual or any other capacity may become the
owner or pledgee of Securities and may otherwise deal with the Company, any
Guarantor, any of their Subsidiaries, or their respective Affiliates with the
same rights it would have if it were not Trustee. Any Agent may do the same
with like rights. However, the Trustee must comply with Sections 7.10 and
7.11.
SECTION 7.4. TRUSTEE'S DISCLAIMER.
The Trustee makes no representation as to the validity or adequacy
of this Indenture or the Securities and it shall not be accountable for the
Company's use of the
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proceeds from the Securities, and it shall not be responsible for any
statement in the Securities, other than the Trustee's certificate of
authentication (if executed by the Trustee), or the use or application of any
funds received by a Paying Agent other than the Trustee.
SECTION 7.5. NOTICE OF DEFAULT.
If a Default or an Event of Default occurs and is continuing and if
it is known to the Trustee, the Trustee shall mail to each Securityholder
notice of the uncured Default or Event of Default within 90 days after such
Default or Event of Default occurs. Except in the case of a Default or an
Event of Default in payment of principal (or premium, if any) of, or interest
on, any Security (including the payment of the Change of Control Purchase
Price on the Change of Control Payment Date, the payment of the Redemption
Price on the Redemption Date and the payment of the Offer Price on the
Purchase Date), the Trustee may withhold the notice if and so long as a Trust
Officer in good faith determines that withholding the notice is in the
interest of the Securityholders.
SECTION 7.6. REPORTS BY TRUSTEE TO HOLDERS.
Within 60 days after each May 15 beginning with the May 15, 1997
following the date of this Indenture, the Trustee shall, if required by law,
mail to each Securityholder a brief report dated as of such May 15 that
complies with TIA Section 313(a). The Trustee also shall comply with TIA
Sections 313(b) and 313(c).
The Company shall promptly notify the Trustee in writing if the
Securities become listed on any stock exchange or automatic quotation system.
A copy of each report at the time of its mailing to Securityholders
shall be mailed to the Company and filed with the SEC and each stock
exchange, if any, on which the Securities are listed.
SECTION 7.7. COMPENSATION AND INDEMNITY.
The Company and the Guarantors jointly and severally agree to pay
to the Trustee from time to time reasonable compensation for its services.
The Trustee's compensation shall not be limited by any law on compensation of
a
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trustee of an express trust. The Company and the Guarantors shall reimburse
the Trustee upon request for all reasonable disbursements, expenses and
advances incurred or made by it in accordance with this Indenture. Such
expenses shall include the reasonable compensation, disbursements and
expenses of the Trustee's agents, accountants, experts and counsel.
The Company and the Guarantors jointly and severally agree to
indemnify the Trustee (in its capacity as Trustee) and each of its officers
and each of them, directors, attorneys-in-fact and agents for, and hold it
harmless against, any claim, demand, expense (including but not limited to
reasonable compensation, disbursements and expenses of the Trustee's agents
and counsel), loss or liability incurred by it without negligence or bad
faith on the part of the Trustee, arising out of or in connection with the
administration of this trust and its rights or duties hereunder including the
reasonable costs and expenses of defending itself against any claim or
liability in connection with the exercise or performance of any of its powers
or duties hereunder. The Trustee shall notify the Company promptly of any
claim asserted against the Trustee for which it may seek indemnity. The
Company and the Guarantors shall defend the claim and the Trustee shall
provide reasonable cooperation at the Company's and the Guarantors' expense
in the defense. The Trustee may have separate counsel and the Company and
the Guarantors shall pay the reasonable fees and expenses of such counsel.
The Company and the Guarantors need not pay for any settlement made without
their written consent. The Company and the Guarantors need not reimburse any
expense or indemnify against any loss or liability to the extent incurred by
the Trustee through its negligence, bad faith or willful misconduct.
To secure the Company's and the Guarantors' payment obligations in
this Section 7.7, the Trustee shall have a lien prior to the Securities on
all assets held or collected by the Trustee, in its capacity as Trustee,
except assets held in trust to pay principal and premium, if any, of or
interest on particular Securities.
When the Trustee incurs expenses or renders services after an Event
of Default specified in Section 6.1(4) or (6) occurs, the expenses and the
compensation for the services are intended to constitute expenses of
administration under any Bankruptcy Law.
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The Company's and the Guarantors' obligations under this Section
7.7 and any lien arising hereunder shall survive the resignation or removal
of the Trustee, the discharge of the Company's and the Guarantors'
obligations pursuant to Article VIII of this Indenture and any rejection or
termination of this Indenture under any Bankruptcy Law.
SECTION 7.8. REPLACEMENT OF TRUSTEE.
The Trustee may resign by so notifying the Company in writing. The
Holder or Holders of a majority in aggregate principal amount of the
outstanding Securities may remove the Trustee by so notifying the Company and
the Trustee in writing and may appoint a successor trustee with the Company's
consent. The Company may remove the Trustee if:
(a) the Trustee fails to comply with Section 7.10;
(b) the Trustee is adjudged bankrupt or insolvent;
(c) a receiver, Custodian, or other public officer takes charge
of the Trustee or its property; or
(d) the Trustee becomes incapable of acting.
If the Trustee resigns or is removed or if a vacancy exists in the
office of Trustee for any reason, the Company shall promptly appoint a
successor Trustee. Within one year after the successor Trustee takes office,
the Holder or Holders of a majority in aggregate principal amount of the
Securities may appoint a successor Trustee to replace the successor Trustee
appointed by the Company.
A successor Trustee shall deliver a written acceptance of its
appointment to the retiring Trustee and to the Company. Immediately after
that and provided that all sums owing to the retiring Trustee provided for in
Section 7.7 have been paid, the retiring Trustee shall transfer all property
held by it as trustee to the successor Trustee, subject to the lien provided
in Section 7.7, the resignation or removal of the retiring Trustee shall
become effective, and the successor Trustee shall have all the rights, powers
and duties of the Trustee under this Indenture. A successor Trustee shall
mail notice of its succession to each Holder.
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If a successor Trustee does not take office within 60 days after
the retiring Trustee resigns or is removed, the retiring Trustee, the Company
or the Holder or Holders of at least 10% in aggregate principal amount of the
outstanding Securities may petition any court of competent jurisdiction for
the appointment of a successor Trustee.
If the Trustee fails to comply with Section 7.10, any
Securityholder may petition any court of competent jurisdiction for the
removal of the Trustee and the appointment of a successor Trustee.
Notwithstanding replacement of the Trustee pursuant to this Section
7.8, the Company and the Guarantors' obligations under Section 7.7 shall
continue for the benefit of the retiring Trustee.
SECTION 7.9. SUCCESSOR TRUSTEE BY MERGER, ETC.
If the Trustee consolidates with, merges or converts into, or
transfers all or substantially all of its corporate trust business to,
another corporation, the resulting, surviving or transferee corporation
without any further act shall, if such resulting, surviving or transferee
corporation is otherwise eligible hereunder, be the successor Trustee.
SECTION 7.10. ELIGIBILITY; DISQUALIFICATION.
The Trustee shall at all times satisfy the requirements of TIA
Section 310(a)(1), (2) and (5). The Trustee shall have a combined capital
and surplus of at least $25,000,000 as set forth in its most recent published
annual report of condition. The Trustee shall comply with TIA Section 310(b).
SECTION 7.11. PREFERENTIAL COLLECTION OF CLAIMS AGAINST THE COMPANY.
The Trustee shall comply with TIA Section 311(a), excluding any
creditor relationship listed in TIA Section 311(b). A Trustee who has
resigned or been removed shall be subject to TIA Section 311(a) to the extent
indicated.
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ARTICLE VIII
DISCHARGE; LEGAL DEFEASANCE AND COVENANT DEFEASANCE
SECTION 8.1. DISCHARGE; OPTION TO EFFECT LEGAL DEFEASANCE OR
COVENANT DEFEASANCE.
This Indenture shall cease to be of further effect (except that the
Company's and the Guarantors' obligations under Section 7.7 and the Trustee's
and the Paying Agent's obligations under Sections 8.6 and 8.7 shall survive)
when all outstanding Securities theretofore authenticated and issued have
been delivered (other than destroyed, lost or stolen Securities that have
been replaced or paid) to the Trustee for cancellation and the Company or the
Guarantors have paid all sums payable hereunder. In addition, the Company
may, at its option and at any time, elect to have Section 8.2 or may, at any
time, elect to have Section 8.3 applied to all outstanding Securities upon
compliance with the conditions set forth below in this Article VIII.
SECTION 8.2. LEGAL DEFEASANCE AND DISCHARGE.
Upon the Company's exercise under Section 8.1 of the option
applicable to this Section 8.2, the Company and the Guarantors shall be
deemed to have been discharged from their respective obligations with respect
to all outstanding Securities on the date the conditions set forth below are
satisfied (hereinafter, "Legal Defeasance"). For this purpose, such Legal
Defeasance means that the Company shall be deemed to have paid and discharged
the entire Indebtedness represented by the outstanding Securities, which
shall thereafter be deemed to be "outstanding" only for the purposes of
Section 8.5 and the other Sections of this Indenture referred to in (a) and
(b) below, and to have satisfied all its other obligations under such
Securities and this Indenture (and the Trustee, on demand of and at the
expense of the Company, shall execute proper instruments acknowledging the
same), except for the following which shall survive until otherwise
terminated or discharged hereunder: (a) the rights of Holders of outstanding
Securities to receive solely from the trust fund described in Section 8.4,
and as more fully set forth in such section, payments in respect of the
principal of, premium, if any, and interest on such Securities when such
payments are due, (b) the Company's obligations with respect to such
Securities under Sections 2.4, 2.6, 2.7, 2.10 and 4.2, (c) the rights,
powers, trusts,
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duties and immunities of the Trustee hereunder and the Company's and the
Guarantors' obligation in connection therewith and (d) this Article VIII.
Upon Legal Defeasance as provided herein, the Guaranty of each Guarantor
shall be fully released and discharged and the Trustee shall promptly execute
and deliver to the Company any documents reasonably requested by the Company
to evidence or effect the foregoing. Subject to compliance with this Article
VIII, the Company may exercise its option under this Section 8.2
notwithstanding the prior exercise of its option under Section 8.3 with
respect to the Securities.
SECTION 8.3. COVENANT DEFEASANCE.
Upon the Company's exercise under Section 8.1 of the option
applicable to this Section 8.3, the Company and the Guarantors shall be
released from their respective obligations under the covenants contained in
Sections 4.3, 4.5, 4.6, 4.7, 4.8, 4.9, 4.10, 4.11, 4.12, 4.13, 4.14, 4.15,
4.16 and 4.17, Article V, Article XI and Article XII with respect to the
outstanding Securities on and after the date the conditions set forth below
are satisfied (hereinafter, "Covenant Defeasance"), and the Securities shall
thereafter be deemed not "outstanding" for the purposes of any direction,
waiver, consent or declaration or act of Holders (and the consequences of any
thereof) in connection with such covenants, but shall continue to be deemed
"outstanding" for all other purposes hereunder. For this purpose, such
Covenant Defeasance means that, with respect to the outstanding Securities,
the Company need not comply with and shall have no liability in respect of
any term, condition or limitation set forth in any such covenant, whether
directly or indirectly, by reason of any reference elsewhere herein to any
such covenant or by reason of any reference in any such covenant to any other
provision herein or in any other document (and Section 6.1(3) shall not apply
to any such covenant), but, except as specified above, the remainder of this
Indenture and such Securities shall be unaffected thereby. In addition, upon
the Company's exercise under Section 8.1 of the option applicable to this
Section 8.3, Sections 6.1(3) through 6.1(7) shall not constitute Events of
Default. Upon Covenant Defeasance, as provided herein, the Guaranty of each
Guarantor shall be fully released and discharged and the Trustee shall
promptly execute and deliver to the Company any documents reasonably
requested by the Company to evidence or effect the foregoing.
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SECTION 8.4. CONDITIONS TO LEGAL OR COVENANT DEFEASANCE.
The following shall be the conditions to the application of either
Section 8.2 or Section 8.3 to the outstanding Securities:
(a) The Company shall irrevocably have deposited or caused to
be deposited with the Trustee (or another trustee satisfactory to the Trustee
satisfying the requirements of Section 7.10 who shall agree to comply with
the provisions of this Article VIII applicable to it) as trust funds in trust
for the purpose of making the following payments, specifically pledged as
security for, and dedicated solely to, the benefit of the Holders of such
Securities, (a) Cash in an amount, or (b) U.S. Government Obligations which
through the scheduled payment of principal and interest in respect thereof in
accordance with their terms will provide, not later than one day before the
due date of any payment, Cash in an amount, or (c) a combination thereof, in
such amounts, as in each case will be sufficient, in the opinion of a
nationally recognized firm of independent public accountants expressed in a
written certification thereof delivered to the Trustee, to pay and discharge
and which shall be applied by the Paying Agent (or other qualifying trustee)
to pay and discharge the principal of, premium, if any, and interest on the
outstanding Securities on the Stated Maturity or on the applicable Redemption
Date, as the case may be, of such principal or installment of principal,
premium, if any, or interest; PROVIDED that the Paying Agent shall have been
irrevocably instructed to apply such Cash and the proceeds of such U.S.
Government Obligations to said payments with respect to the Securities. The
Paying Agent shall promptly advise the Trustee in writing of any Cash or
Securities deposited pursuant to this Section 8.4;
(b) In the case of an election under Section 8.2, the Company
shall have delivered to the Trustee an Opinion of Counsel in the United
States reasonably acceptable to the Trustee confirming that (i) the Company
have received from, or there has been published by, the Internal Revenue
Service a ruling or (ii) since the date of this Indenture there has been a
change in the applicable Federal income tax law, in either case to the effect
that, and based thereon such opinion shall confirm that, the Holders of the
outstanding Securities will not recognize income, gain or loss for Federal
income tax purposes as a result of such
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Legal Defeasance and will be subject to Federal income tax on the same
amounts, in the same manner and at the same times as would have been the case
if such Legal Defeasance had not occurred;
(c) In the case of an election under Section 8.3, the Company
shall have delivered to the Trustee an Opinion of Counsel in the United
States to the effect that the Holders of the outstanding Securities will not
recognize income, gain or loss for Federal income tax purposes as a result of
such Covenant Defeasance and will be subject to Federal income tax in the
same amount, in the same manner and at the same times as would have been the
case if such Covenant Defeasance had not occurred;
(d) No Default or Event of Default with respect to the
Securities shall have occurred and be continuing on the date of such deposit
or, in so far as Section 6.1(4) or Section 6.1(6) is concerned, at any time
in the period ending on the 91st day after the date of such deposit (it being
understood that this condition is a condition subsequent which shall not be
deemed satisfied until the expiration of such period, but in the case of
Covenant Defeasance, the covenants which are defeased under Section 8.3 will
cease to be in effect unless an Event of Default under Section 6.1(4) or
Section 6.1(6) occurs during such period);
(e) Such Legal Defeasance or Covenant Defeasance shall not
result in a breach or violation of, or constitute a default under, this
Indenture or any other material agreement or instrument to which the Company,
the Guarantors, or any of their Subsidiaries is a party or by which any of
them is bound;
(f) In the case of an election under either Section 8.2 or
8.3, the Company shall have delivered to the Trustee an Officers' Certificate
stating that the deposit made by the Company pursuant to its election under
Section 8.2 or 8.3 was not made by the Company with the intent of preferring
the Holders over other creditors of the Company or with the intent of
defeating, hindering, delaying or defrauding creditors of the Company or
others;
(g) The Company shall have delivered to the Trustee an
Officers' Certificate stating that the conditions precedent provided for have
been complied with; and
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(h) The Company shall have delivered to the Trustee an
Opinion of Counsel stating that the conditions set out in Section 8.4(a)
(with respect to the validity and perfection of the security interest), (b),
(c) and (e) above.
(i) The Company or the Parent Guarantor shall have delivered
to the Trustee any required consent of the lenders under the Credit Facility
to such defeasance or covenant defeasance, as the case may be.
SECTION 8.5. DEPOSITED CASH AND U.S. GOVERNMENT OBLIGATIONS TO BE
HELD IN TRUST; OTHER MISCELLANEOUS PROVISIONS.
Subject to Section 8.6, all Cash and U.S. Government Obligations
(including the proceeds thereof) deposited with the Paying Agent (or other
qualifying trustee, collectively for purposes of this Section 8.5, the
"Paying Agent") pursuant to Section 8.4 in respect of the outstanding
Securities shall be held in trust and applied by the Paying Agent, in
accordance with the provisions of such Securities and this Indenture, to the
payment, either directly or through any other Paying Agent as the Trustee may
determine, to the Holders of such Securities of all sums due and to become
due thereon in respect of principal, premium, if any, and interest, but such
money need not be segregated from other funds except to the extent required
by law.
SECTION 8.6. REPAYMENT TO THE COMPANY.
Anything in this Article VIII to the contrary notwithstanding, the
Trustee or the Paying Agent shall deliver or pay to the Company from time to
time upon the request of the Company any Cash or U.S. Government Obligations
held by it as provided in Section 8.4 hereof which in the opinion of a
nationally recognized firm of independent public accountants expressed in a
written certification thereof delivered to the Trustee (which may be the
opinion delivered under Section 8.4(a) hereof), are in excess of the amount
thereof that would then be required to be deposited to effect an equivalent
Legal Defeasance or Covenant Defeasance.
Any Cash and U.S. Government Obligations (including the proceeds
thereof) deposited with the Trustee or any Paying Agent, or then held by the
Company, in trust for the
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payment of the principal of, premium, if any, or interest on any Security and
remaining unclaimed for two years after such principal, and premium, if any,
or interest has become due and payable shall be paid to the Company on its
request; and the Holder of such Security shall thereafter look only to the
Company for payment thereof, and all liability of the Trustee or such Paying
Agent with respect to such trust money shall thereupon cease; PROVIDED,
HOWEVER, that the Trustee or such Paying Agent, before being required to make
any such repayment, may at the expense of the Company cause to (i) be
published once, in the NEW YORK TIMES and THE WALL STREET JOURNAL (national
edition), or (ii) mail to each such Holder, notice that such money remains
unclaimed and that, after a date specified therein, which shall not be less
than 30 days from the date of such notification or publication, any unclaimed
balance of such money then remaining will be repaid to the Company.
SECTION 8.7. REINSTATEMENT.
If the Trustee or Paying Agent is unable to apply any Cash or U.S.
Government Obligations in accordance with Section 8.2 or 8.3, as the case may
be, by reason of any order or judgment of any court or governmental authority
enjoining, restraining or otherwise prohibiting such application, then the
Company's and the Guarantors' obligations under this Indenture and the
Securities shall be revived and reinstated as though no deposit had occurred
pursuant to Section 8.2 or 8.3 until such time as the Trustee or Paying Agent
is permitted to apply such money in accordance with Section 8.2 and 8.3, as
the case may be; PROVIDED, HOWEVER, that, if the Company makes any payment of
principal of, premium, if any, or interest on any Security following the
reinstatement of its obligations, the Company shall be subrogated to the
rights of the Holders of such Securities to receive such payment from the
Cash and U.S. Government Obligations held by the Trustee or Paying Agent.
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ARTICLE IX
AMENDMENTS, SUPPLEMENTS AND WAIVERS
SECTION 9.1. SUPPLEMENTAL INDENTURES WITHOUT CONSENT OF HOLDERS.
Without the consent of any Holder, the Company or any Guarantor,
when authorized by Board Resolutions, and the Trustee, at any time and from
time to time, may enter into one or more indentures supplemental hereto, in
form satisfactory to the Trustee, for any of the following purposes:
(1) to cure any ambiguity, defect, or inconsistency, or make
any other provisions with respect to matters or questions arising under this
Indenture which shall not be inconsistent with the provisions of this
Indenture, provided such action pursuant to this clause shall not adversely
affect the interests of any Holder in any respect;
(2) to add to the covenants of the Company or the Guarantors
for the benefit of the Holders, or to surrender any right or power herein
conferred upon the Company or the Guarantors;
(3) to provide for additional collateral for or additional
Guarantors of the Securities;
(4) to evidence the succession of another Person to the
Company, and the assumption by any such successor of the obligations of the
Company, herein and in the Securities in accordance with Article V;
(5) to comply with the TIA;
(6) to evidence the succession of another corporation to any
Guarantor and assumption by any such successor of the Guaranty of such
Guarantor (as set forth in Section 12.4) in accordance with Article XIII;
(7) to evidence the release of any Guarantor in accordance
with Article XII;
(8) to evidence and provide for the acceptance of appointment
hereunder by a successor Trustee with respect to the Securities; or
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SECTION 9.2. AMENDMENTS, SUPPLEMENTAL INDENTURES AND WAIVERS WITH
CONSENT OF HOLDERS.
Subject to Section 6.8, with the consent of the Holders of not less
than a majority in aggregate principal amount of then outstanding Securities,
by written act of said Holders delivered to the Company and the Trustee, the
Company or any Guarantor, when authorized by Board Resolutions, and the
Trustee may amend or supplement this Indenture or the Securities or enter
into an indenture or indentures supplemental hereto for the purpose of adding
any provisions to or changing in any manner or eliminating any of the
provisions of this Indenture or the Securities or of modifying in any manner
the rights of the Holders under this Indenture or the Securities. Subject to
Section 6.8, the Holder or Holders of not less than a majority in aggregate
principal amount of then outstanding Securities may waive compliance by the
Company or any Guarantor with any provision of this Indenture or the
Securities. Notwithstanding any of the above, however, no such amendment,
supplemental indenture or waiver shall without the consent of the Holders of
not less than 75% of the aggregate principal amounts of Securities at the
time outstanding alter the terms or provisions of Section 11.1 or Section
11.2 in a manner adverse to the Holders; and no such amendment, supplemental
indenture or waiver shall, without the consent of the Holder of each
outstanding Security affected thereby:
(1) change the Stated Maturity on any Security, or reduce the
principal amount thereof or the rate (or extend the time for payment) of
interest thereon or any premium payable upon the redemption thereof, or
change the place of payment where, or the coin or currency in which, any
Security or any premium or the interest thereon is payable, or impair the
right to institute suit for the enforcement of any such payment on or after
the Stated Maturity thereof (or in the case of redemption, on or after the
Redemption Date), or reduce the Change of Control Purchase Price, the
Citicasters Purchase Price or the Asset Sale Offer Price or alter the
provisions (including the defined terms used herein) regarding the right of
the Company to redeem the Securities in a manner adverse the Holders; or
(2) reduce the percentage in principal amount of the outstanding
Securities, the consent of whose Holders is
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required for any such amendment, supplemental indenture or wavier provided
for in this Indenture; or
(3) modify any of the waiver provisions, except to increase any
required percentage or to provide that certain other provision of this
Indenture cannot be modified or waived without the consent of the Holder of
each outstanding Note affected thereby.
Notwithstanding any of the above, however, no such amendment,
supplemental indenture or waiver shall without the consent of the
Representative on behalf of the Required Lenders amend, waive or otherwise
modify the terms or provisions of Article X in a manner adverse to the
Lenders (as defined in the New Credit Facility).
It shall not be necessary for the consent of the Holders under this
Section 9.2 to approve the particular form of any proposed amendment,
supplement or waiver, but it shall be sufficient if such consent approves the
substance thereof.
After an amendment, supplement or waiver under this Section becomes
effective, the Company shall mail to the Holders affected thereby a notice
briefly describing the amendment, supplement or waiver. Any failure of the
Company to mail such notice, or any defect therein, shall not, however, in
any way impair or affect the validity of any such supplemental indenture or
waiver.
After an amendment, supplement or waiver under this Section 9.2 or
Section 9.4 becomes effective, it shall bind each Holder.
In connection with any amendment, supplement or waiver under this
Article IX, the Company may, but shall not be obligated to, offer to any
Holder who consents to such amendment, supplement or waiver, or to all
Holders, consideration for such Holder's consent to such amendment,
supplement or waiver.
SECTION 9.3. COMPLIANCE WITH TIA.
Every amendment, waiver or supplement of this Indenture or the
Securities shall comply with the TIA as then in effect.
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SECTION 9.4. REVOCATION AND EFFECT OF CONSENTS.
Until an amendment, waiver or supplement becomes effective, a
consent to it by a Holder is a continuing consent by the Holder and every
subsequent Holder of a Security or portion of a Security that evidences the
same debt as the consenting Holder's Security, even if notation of the
consent is not made on any Security. However, any such Holder or subsequent
Holder may revoke the consent as to his Security or portion of his Security
by written notice to the Company or the Person designated by the Company as
the Person to whom consents should be sent if such revocation is received by
the Company or such Person before the date on which the Trustee receives an
Officers' Certificate certifying that the Holders of the requisite principal
amount of Securities have consented (and not theretofore revoked such
consent) to the amendment, supplement or waiver.
The Company may, but shall not be obligated to, fix a record date
for the purpose of determining the Holders entitled to consent to any
amendment, supplement or waiver, which record date shall be the date so fixed
by the Company notwithstanding the provisions of the TIA. If a record date
is fixed, then notwithstanding the last sentence of the immediately preceding
paragraph, those Persons who were Holders at such record date, and only those
Persons (or their duly designated proxies), shall be entitled to revoke any
consent previously given, whether or not such Persons continue to be Holders
after such record date. No such consent shall be valid or effective for more
than 90 days after such record date.
After an amendment, supplement or waiver becomes effective, it
shall bind every Securityholder, unless it makes a change described in any of
clauses (1) through (3) of Section 9.2, in which case, the amendment,
supplement or waiver shall bind only each Holder of a Security who has
consented to it and every subsequent Holder of a Security or portion of a
Security that evidences the same debt as the consenting Holder's Security;
PROVIDED, that any such waiver shall not impair or affect the right of any
Holder to receive payment of principal and premium of and interest on a
Security, on or after the respective dates set for such amounts to become due
and payable expressed in such Security, or to bring suit for the enforcement
of any such payment on or after such respective dates.
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SECTION 9.5. NOTATION ON OR EXCHANGE OF SECURITIES.
If an amendment, supplement or waiver changes the terms of a
Security, the Trustee may require the Holder of the Security to deliver it to
the Registrar or require the Holder to put an appropriate notation on the
Security. The Trustee may place an appropriate notation on the Security about
the changed terms and return it to the Holder. Alternatively, if the Company
or the Trustee so determines, the Company in exchange for the Security shall
issue and the Trustee shall authenticate a new Security that reflects the
changed terms. Any failure to make the appropriate notation or to issue a
new Security shall not affect the validity of such amendment, supplement or
waiver.
SECTION 9.6. TRUSTEE TO SIGN AMENDMENTS, ETC.
The Trustee shall execute any amendment, supplement or waiver
authorized pursuant to this Article IX; PROVIDED, that the Trustee may, but
shall not be obligated to, execute any such amendment, supplement or waiver
which affects the Trustee's own rights, duties or immunities under this
Indenture. The Trustee shall be entitled to receive, and shall be fully
protected in relying upon, an Opinion of Counsel stating that the execution
of any amendment, supplement or waiver authorized pursuant to this Article IX
is authorized or permitted by this Indenture.
ARTICLE X
SUBORDINATION
SECTION 10.1. SECURITIES SUBORDINATED TO SENIOR DEBT.
The Company and the Guarantors and each Holder, by its acceptance
of Securities, agree that (a) the payment of the principal of and interest on
the Securities and (b) any other payment in respect of the Securities,
including on account of the acquisition or redemption of the Securities by
the Company or the Guarantors (including, without limitation, pursuant to
Article III or Section 4.1, 4.14, 11.1, 11.2 or Article XII is expressly made
and shall be subordinated in right of payment, to the extent and in the
manner provided in this Article X, to the prior payment in full in Cash of
all existing and future Senior Debt of the Company
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and the Guarantors and that these subordination provisions are for the
benefit of the holders of Senior Debt.
This Article X shall constitute a continuing offer to all Persons
who, in reliance upon such provisions, become holders of, or continue to
hold, Senior Debt, and such provisions are made for the benefit of the
holders of Senior Debt, and such holders are made obligees hereunder and any
one or more of them may enforce such provisions.
SECTION 10.2. NO PAYMENT ON SECURITIES IN CERTAIN CIRCUMSTANCES.
(a) No payment (including any payment which may be payable to
any Holder by reason of the subordination of any other indebtedness or other
obligations to, or guarantee of, the Securities) or distribution (by set-off
or otherwise) shall be made by or on behalf of the Company or a Guarantor, as
applicable, on account of the Securities, including the principal of,
premium, if any, or interest on the Securities (including any repurchases of
Securities) or any other amounts with respect thereto or on account of the
redemption provisions of the Securities for cash or property (other than
Junior Securities), (i) upon the maturity of any Senior Debt of the Company
or such Guarantor by lapse of time, acceleration (unless waived) or
otherwise, unless and until all principal of, premium, if any, and the
interest on, and all other amounts with respect to, such Senior Debt shall
first be paid in full in Cash or otherwise to the extent each of the holders
of Senior Debt accept satisfaction of amounts due to such holder by
settlement in other than Cash, or (ii) in the event of default in payment of
any principal of, or premium, if any, or interest on, or any other amounts
with respect to, Senior Debt of the Company or such Guarantor when the same
becomes due and payable, whether at maturity or at a date fixed for
prepayment or by declaration or otherwise (each of the foregoing, a "Payment
Default") unless and until such Payment Default has been cured or waived or
otherwise has ceased to exist.
(b) Upon (i) the happening of a default (other than a Payment
Default) that permits the holders of Senior Debt (or a percentage thereof) to
declare such Senior Debt to be due and payable and (ii) written notice of
such default given to the Company and the Trustee by the Representative under
the Credit Facility or by the holders of an aggregate of at least $25.0
million principal amount out-
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standing of any other Senior Debt or their representative at such holders'
direction (a "Payment Notice"), then, unless and until such default has been
cured or waived or otherwise has ceased to exist, no payment (including any
payment which may be payable to any Holder by reason of the subordination of
any other indebtedness or other obligations to, or guarantee of, the
Securities) or distribution (by set-off or otherwise) may be made by or on
behalf of the Company or any Guarantor which is an obligor under such Senior
Debt on account of the principal of, premium, if any, or interest on the
Securities (including any repurchases of any of the Securities), or any other
amount with respect thereto, or on account of the redemption provision of the
Securities, in any such case, other than payments made with Junior
Securities. Notwithstanding the foregoing, unless the Senior Debt in respect
of which such default exists has been declared due and payable in its
entirety within 179 days after the Payment Notice is delivered as set forth
above (such period being hereinafter referred to as the "Payment Blockage
Period") (and such declaration has not been rescinded or waived), at the end
of the Payment Blockage Period (and assuming that no Payment Default Exists),
unless Section 10.3 shall be applicable the Company and the Guarantors shall
not be prohibited by the subordination provisions from paying all sums then
due and not paid to the Holders of the Securities during the Payment Blockage
Period due to the foregoing prohibitions and to resume all other payments as
and when due on the Securities. Any number of Payment Notices may be given;
PROVIDED, HOWEVER; that (i) not more than one Payment Notice shall be given
within a period of any 360 consecutive days, and (ii) no default that existed
upon the date of delivery of such Payment Notice (whether or not such event
of default is on the same issue of Senior Debt) shall be made the basis for
the commencement of any other Payment Blockage Period.
(c) In furtherance of the provisions of Section 10.1, in the
event that, notwithstanding the foregoing provisions of this Section 10.2,
any payment or distribution of assets in respect of the Securities, including
principal of or interest on the Securities or to defease or acquire any of
the Securities (including repurchases of Securities pursuant to Section 4.14,
11.1 or 11.2) for Cash, property or securities (excluding payments made with
Junior Securities), or on account of the redemption provisions of the
Securities, shall be made by the Company or any of the Guarantors and
received by the Trustee, by any Holder or by any
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Paying Agent (or, if the Company is acting as the Paying Agent, money for any
such payment shall be segregated and held in trust), at a time when such
payment or distribution was prohibited by the provisions of this Section
10.2, then, unless such payment or distribution is no longer prohibited by
this Section 10.2, such payment or distribution (subject to the provisions of
Section 10.7) shall be received and held in trust by the Trustee or such
Holder or Paying Agent for the benefit of the holders of Senior Debt of the
Company or such Guarantor, and shall be paid or delivered by the Trustee or
such Holders or such Paying Agent, as the case may be, to the holders of
Senior Debt of the Company or such Guarantor remaining unpaid or their
representative or representatives, or to the trustee or trustees under any
indenture pursuant to which any instruments evidencing such Senior Debt of
the Company or such Guarantor may have been issued, ratably according to the
aggregate amounts unpaid on account of such Senior Debt held or represented
by each, for application to the payment of all Senior Debt in full in Cash or
otherwise to the extent each of the holders of such Senior Debt accept
satisfaction of amounts due by settlement in other than Cash after giving
effect to all concurrent payments and distributions to or for the holders of
such Senior Debt.
SECTION 10.3. SECURITIES SUBORDINATED TO PRIOR PAYMENT OF ALL SENIOR
DEBT ON DISSOLUTION, LIQUIDATION OR REORGANIZATION.
Upon any distribution of assets of the Company or any Guarantor or
upon any dissolution, winding up, total or partial liquidation or
reorganization of the Company or any Guarantor, whether voluntary or
involuntary, in bankruptcy, insolvency, receivership or a similar proceeding
or upon assignment for the benefit of creditors or any marshalling of assets
or liabilities:
(a) the holders of all Senior Debt of the Company or such
Guarantor, as applicable, shall first be entitled to receive payments in full
of all amounts of Senior Debt in Cash or otherwise to the extent each of such
holders accepts satisfaction of amounts due by settlement in other than Cash
or before the Holders are entitled to receive any payment (including any
payment which may be payable to any Holder by reason of the subordination of
any other indebtedness or other obligations to, or guarantee of, the
Securities) or distribution on account of the principal
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of, premium, if any, and any interest on, or other amounts with respect to,
the Securities (other than Junior Securities);
(b) any payment or distribution of assets of the Company or
such Guarantor of any kind or character from any source, whether in cash,
property or securities (other than Junior Securities), to which the Holders
or the Trustee on behalf of the Holders would be entitled (by set-off or
otherwise) except for the provisions of this Article X, shall be paid by the
liquidating Trustee or agent or other person making such a payment or
distribution, directly to the holders of such Senior Debt or their
representative to the extent necessary to make payment in full on all such
Senior Debt remaining unpaid, after giving effect to all concurrent payments
or distributions to the holders of such Senior Debt; and
(c) in the event that, notwithstanding the foregoing, any
payment or distribution of assets of the Company or any Guarantor (other than
the Junior Securities), shall be received by the Trustee or the Holders at a
time when such payment or distribution shall be prohibited by the foregoing
provisions, such payment or distribution shall be held in trust for the
benefit of the holders of such Senior Debt, and shall be paid or delivered by
the Trustee or such Holders, as the case may be, to the holders of such
Senior Debt remaining unpaid or to their representative or representatives,
or to the trustee or trustees under any indenture pursuant to which any
instruments evidencing any of such Senior Debt held or represented by each,
for application to the payment of all such Senior Debt may have been issued,
ratably according to the aggregate principal amounts remaining unpaid on
account of such Senior Debt remaining unpaid, to the extent necessary to pay
all such Senior Debt in full in Cash or otherwise to the extent each of the
holders of such Senior Debt accept satisfaction of amounts due by settlement
in other than Cash after giving effect to any concurrent payment or
distribution to the holders of such Senior Debt.
SECTION 10.4. SECURITYHOLDERS TO BE SUBROGATED TO RIGHTS OF
HOLDERS OF SENIOR DEBT.
Subject to the payment in full in Cash of all Senior Debt of the
Company or any Guarantor as provided herein, the Holders of Securities shall
be subrogated to the
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rights of the holders of such Senior Debt to receive payments or
distributions of assets of the Company applicable to the Senior Debt until
all amounts owing on the Securities shall be paid in full, and for the
purpose of such subrogation no such payments or distributions to the holders
of such Senior Debt by or on behalf of the Company or any Guarantor, or by or
on behalf of the Holders by virtue of this Article X, which otherwise would
have been made to the Holders shall, as between the Company or any Guarantor
and the Holders, be deemed to be payment by the Company or any Guarantor or
on account of such Senior Debt, it being understood that the provisions of
this Article X are and are intended solely for the purpose of defining the
relative rights of the Holders, on the one hand, and the holders of such
Senior Debt, on the other hand.
If any payment or distribution to which the Holders would otherwise
have been entitled but for the provisions of this Article X shall have been
applied, pursuant to the provisions of this Article X, to the payment of
amounts payable under Senior Debt of the Company or any Guarantor, then the
Holders shall be entitled to receive from the holders of such Senior Debt any
payments or distributions received by such holders of Senior Debt in excess
of the amount sufficient to pay all amounts payable under or in respect of
such Senior Debt in full in Cash or otherwise to the extent each of such
holders accepts satisfaction of amounts due by settlement in other than Cash.
SECTION 10.5. OBLIGATIONS OF THE COMPANY AND THE GUARANTORS
UNCONDITIONAL.
Nothing contained in this Article X or elsewhere in this Indenture
or in the Securities is intended to or shall impair, as between the Company
and any Guarantors and the Holders, the obligation of each such Person, which
is absolute and unconditional, to pay to the Holders the principal of,
premium, if any, and interest on the Securities as and when the same shall
become due and payable in accordance with their terms, or is intended to or
shall affect the relative rights of the Holders and creditors of the Company
and the Guarantors other than the holders of the Senior Debt, nor shall
anything herein or therein prevent the Trustee or any Holder from exercising
all remedies otherwise permitted by applicable law upon default under this
Indenture, subject to the rights, if any, under this Article X, of the
holders of Senior Debt in respect of Cash, property
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or securities of the Company and the Guarantors received upon the exercise of
any such remedy. Notwithstanding anything to the contrary in this Article X
or elsewhere in this Indenture or in the Securities, upon any distribution of
assets of the Company and the Guarantors referred to in this Article X, the
Trustee, subject to the provisions of Sections 7.1 and 7.2, and the Holders
shall be entitled to rely upon any order or decree made by any court of
competent jurisdiction in which such dissolution, winding up, liquidation or
reorganization proceedings are pending, or a certificate of the liquidating
Trustee or agent or other Person making any distribution to the Trustee or to
the Holders for the purpose of ascertaining the Persons entitled to
participate in such distribution, the holders of the Senior Debt and other
Indebtedness of the Company or any Guarantor, the amount thereof or payable
thereon, the amount or amounts paid or distributed thereon and all other
facts pertinent thereto or to this Article X so long as such court has been
apprised of the provisions of, or the order, decree or certificate makes
reference to, the provisions of this Article X. Nothing in this Section 10.5
shall apply to the claims of, or payments to, the Trustee under or pursuant
to Section 7.7.
SECTION 10.6. TRUSTEE ENTITLED TO ASSUME PAYMENTS NOT PROHIBITED
IN ABSENCE OF NOTICE.
The Trustee shall not at any time be charged with knowledge of the
existence of any facts which would prohibit the making of any payment to or
by the Trustee unless and until the Trustee or any Paying Agent shall have
received, no later than one Business Day prior to such payment, written
notice thereof from the Company or from one or more holders of Senior Debt or
from any representative therefor and, prior to the receipt of any such
written notice, the Trustee, subject to the provisions of Sections 7.1 and
7.2, shall be entitled in all respects conclusively to assume that no such
fact exists.
SECTION 10.7. APPLICATION BY TRUSTEE OF ASSETS DEPOSITED WITH IT.
Amounts deposited in trust with the Trustee pursuant to and in
accordance with Article VIII shall be for the sole benefit of Securityholders
and, to the extent (i) the making of such deposit by the Company shall not be
in contravention of any term or provision of the New Credit Facil-
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ity and (ii) allocated for the payment of Securities, shall not be subject to
the subordination provisions of this Article X. Otherwise, any deposit of
assets with the Trustee or the Agent (whether or not in trust) for the
payment of principal of or interest on any Securities shall be subject to the
provisions of Sections 10.1, 10.2, 10.3 and 10.4.
SECTION 10.8. SUBORDINATION RIGHTS NOT IMPAIRED BY ACTS OR
OMISSIONS OF THE COMPANY, THE GUARANTORS OR HOLDERS OF SENIOR DEBT.
No right of any present or future holders of any Senior Debt to
enforce subordination provisions contained in this Article X shall at any
time in any way be prejudiced or impaired by any act or failure to act on the
part of the Company or any Guarantor or by any act or failure to act, in good
faith, by any such holder, or by any noncompliance by the Company or any
Guarantor with the terms of this Indenture, regardless of any knowledge
thereof which any such holder may have or be otherwise charged with. The
holders of Senior Debt may at any time and from time to time without the
consent of or notice to the Trustee or the Holders of the Securities without
incurring any responsibility to the Holders extend, renew, modify or amend
the terms of the Senior Debt or any security therefor and release, sell or
exchange such security and otherwise deal freely with the Company and the
Guarantors and any person liable in any manner for the collection of Senior
Debt, all without affecting the subordination provisions or liabilities or
obligations of the parties to this Indenture or the Holders or to the holders
of the Senior Debt.
SECTION 10.9. SECURITYHOLDERS AUTHORIZE TRUSTEE TO EFFECTUATE
SUBORDINATION OF SECURITIES.
Each Holder of the Securities by his acceptance thereof authorizes
and expressly directs the Trustee on his behalf to take such action as may be
necessary or appropriate to effectuate the subordination provisions contained
in this Article X and to protect the rights of the Holders pursuant to this
Indenture, and appoints the Trustee his attorney-in-fact for such purpose,
including, in the event of any dissolution, winding up, liquidation or
reorganization of the Company or any Guarantor (whether in bankruptcy,
insolvency or receivership proceedings or upon an assignment for the benefit
of creditors or any other marshalling of assets and liabilities of the
Company or any Guarantor), the
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immediate filing of a claim for the unpaid balance of his Securities in the
form required in said proceedings and cause said claim to be approved. If
the Trustee does not file a proper claim or proof of debt in the form
required in such proceeding prior to 30 days before the expiration of the
time to file such claim or claims, then the holders of the Senior Debt or
their representative are or is hereby authorized to have the right to file
and are or is hereby authorized to file an appropriate claim for and on
behalf of the Holders of said Securities. Nothing herein contained shall be
deemed to authorize the Trustee or the holders of Senior Debt or their
representative to authorize or consent to or accept or adopt on behalf of any
Securityholder any plan of reorganization, arrangement, adjustment or
composition affecting the Securities or the rights of any Holder thereof, or
to authorize the Trustee or the holders of Senior Debt or their
representative to vote in respect of the claim of any Securityholder in any
such proceeding.
SECTION 10.10. RIGHT OF TRUSTEE TO HOLD SENIOR DEBT.
The Trustee shall be entitled to all of the rights set forth in
this Article X in respect of any Senior Debt at any time held by it to the
same extent as any other holder of Senior Debt, and nothing in this Indenture
shall be construed to deprive the Trustee of any of its rights as such holder.
SECTION 10.11. ARTICLE X NOT TO PREVENT EVENTS OF DEFAULT.
The failure to make a payment on account of principal of, premium,
if any, or interest on the Securities by reason of any provision of this
Article X shall not be construed as preventing the occurrence of a Default or
an Event of Default under Section 6.1 or in any way prevent the Holders from
exercising any right hereunder other than the right to receive payment on the
Securities.
SECTION 10.12. NO FIDUCIARY DUTY OF TRUSTEE TO HOLDERS OF SENIOR
DEBT.
The Trustee shall not be deemed to owe any fiduciary duty to the
holders of Senior Debt, and shall not be liable to any such holders (other
than for its willful misconduct or negligence) if it shall in good faith
mistakenly
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pay over or distribute to the Holders of Securities or the Company, any
Guarantor or any other Person, cash, property or securities to which any
holders of Senior Debt shall be entitled by virtue of this Article X or
otherwise. Nothing in this Section 10.12 shall affect the obligation of any
other such Person to hold such payment for the benefit of, and to pay such
payment over to, the holders of Senior Debt or their representative.
ARTICLE XI
RIGHT TO REQUIRE REPURCHASE
SECTION 11.1. REPURCHASE OF SECURITIES AT OPTION OF THE HOLDER
UPON A CHANGE OF CONTROL.
(a) In the event that a Change of Control has occurred, each
Holder shall have the right, at such Holder's option, pursuant to an
irrevocable and unconditional offer by the Company (the "Change of Control
Offer"), to require the Company to repurchase all or any part of such
Holder's Securities (PROVIDED, that the principal amount of such Securities
at maturity must be $1,000 or an integral multiple thereof) on a date (the
"Change of Control Purchase Date") that is no later than 35 Business Days
after the Occurrence of such Change of Control, at a cash price (the "Change
of Control Purchase Price") equal to 101% of the principal amount thereof,
together with accrued and unpaid interest, if any, to the Change of Control
Purchase Date.
(b) In the event of a Change of Control, the Company shall be
required to commence a Change of Control Offer as follows:
(1) the Change of Control Offer shall commence within 10
Business Days following the occurrence of the Change of Control;
(2) the Change of Control Offer shall remain open for 20
Business Days, except to the extent that a longer period is required by
applicable law, but in any case not more than 35 Business Days following
commencement (the "Change of Control Offer Period");
(3) upon the expiration of a Change of Control Offer, the
Company shall promptly purchase all of
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the properly tendered Securities at the Change of Control Purchase Price;
(4) if the Change of Control Payment Date is on or after a
Record Date and on or before the related interest payment date, any
accrued interest will be paid to the Person in whose name a Security is
registered at the close of business on such Record Date, and no additional
interest will be payable to Securityholders who tender Securities pursuant
to the Change of Control Offer;
(5) the Company shall provide the Trustee and the Paying Agent
with notice of the Change of Control Offer at least three Business Days
before the commencement of any Change of Control Offer; and
(6) on or before the commencement of any Change of Control
Offer, the Company or the Registrar (upon the request and at the expense
of the Company) shall send, by first-class mail, a notice to each of the
Securityholders, which (to the extent consistent with this Indenture)
shall govern the terms of the Change of Control Offer and shall state:
(i) that the Change of Control Offer is being made
pursuant to such notice and this Section 11.1 and that all Securities, or
portions thereof, tendered will be accepted for payment;
(ii) the Change of Control Purchase Price (including the
amount of accrued and unpaid interest, subject to clause (b)(4) above),
the Change of Control Purchase Date and the Change of Control Put Date (as
defined below);
(iii) that any Security, or portion thereof, not tendered
or accepted for payment will continue to accrue interest;
(iv) that, unless the Company defaults in depositing Cash
with the Paying Agent in accordance with the last paragraph of this
Section 11.1 or such payment is prevented, any Security, or portion
thereof, accepted for payment pursuant to the Change of Control Offer
shall cease to accrue interest after the Change of Control Purchase Date;
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(v) that Holders electing to have a Security, or portion
thereof, purchased pursuant to a Change of Control Offer will be required
to surrender the Security, with the form entitled "Option of Holder to
Elect Purchase" on the reverse of the Security completed, to the Paying
Agent (which may not for purposes of this Section 11.1, notwithstanding
anything in this Indenture to the contrary, be the Company or any Affiliate
of the Company) at the address specified in the notice prior to the close
of business on the earlier of (a) the third Business Day prior to the
Change of Control Payment Date and (b) the third Business Day following the
expiration of the Change of Control Offer (such earlier date being the
"Change of Control Put Date");
(vi) that Holders will be entitled to withdraw their
election, in whole or in part, if the Paying Agent (which may not for
purposes of this Section 11.1, notwithstanding anything in this Indenture
to the contrary, be the Company or any Affiliate of the Company) receives,
up to the close of business on the Change of Control Put Date, a telegram,
telex, facsimile transmission or letter setting forth the name of the
Holder, the principal amount of the Securities the Holder is withdrawing
and a statement that such Holder is withdrawing his election to have such
principal amount of Securities purchased; and
(vii) a brief description of the events resulting in such
Change of Control.
Any such Change of Control Offer shall comply with all applicable
provisions of Federal and state laws, including those regulating tender
offers, if applicable, and any provisions of this Indenture which conflict
with such laws shall be deemed to be superseded by the provisions of such
laws.
On or before the Change of Control Purchase Date, the Company shall
(i) accept for payment Securities or portions thereof properly tendered
pursuant to the Change of Control Offer on or before the Change of Control
Put Date, (ii) deposit with the Paying Agent Cash sufficient to pay the
Change of Control Purchase Price for all Securities or portions thereof so
tendered and (iii) deliver to the Registrar Securities so accepted together
with an Officers' Cer-
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tificate listing the aggregate principal amount of the Securities or portions
thereof being purchased by the Company. The Paying Agent shall on the Change
of Control Purchase Date or promptly thereafter mail to Holders of Securities
so accepted payment in an amount equal to the Change of Control Purchase
Price for such Securities, and the Trustee or its authenticating agent shall
promptly authenticate and the Registrar shall mail or deliver (or cause to be
transferred by book entry) to such Holders a new Security equal in principal
amount to any unpurchased portion of the Security surrendered; provided,
however, that each such new Security will be in a principal amount of $1,000
or an integral multiple thereof. Any Securities not so accepted shall be
promptly mailed or delivered by the Company to the Holder thereof. The
Company will publicly announce the results of the Change of Control Offer on
or as soon as practicable after the consummation thereof.
ARTICLE XII
GUARANTY
SECTION 12.1. GUARANTY.
(a) In consideration of good and valuable consideration, the
receipt and sufficiency of which is hereby acknowledged, each of the
Guarantors hereby irrevocably and unconditionally guarantees (the
"Guaranty"), jointly and severally, to each Holder of a Security
authenticated and delivered by the Trustee and to the Trustee and its
successors and assigns, irrespective of the validity and enforceability of
this Indenture, the Securities or the obligations of the Company under this
Indenture or the Securities, that: (w) the principal and premium (if any) of
and interest on the Securities will be paid in full when due, whether at the
Maturity Date or Interest Payment Date, by acceleration, call for redemption,
upon a Change of Control Offer, upon an Asset Sale Offer or otherwise; (x)
all other obligations of the Company to the Holders or the Trustee under this
Indenture or the Securities will be promptly paid in full or performed, all
in accordance with the terms of this Indenture and the Securities; and (y) in
case of any extension of time of payment or renewal of any Securities or any
of such other obligations, they will be paid in full when due or performed in
accordance with the terms of the extension or renewal, whether at maturity,
by acceleration,
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call for redemption, upon a Change of Control Offer, upon an Asset Sale Offer
or otherwise. Failing payment when due of any amount so guaranteed for
whatever reason, each Guarantor shall be jointly and severally obligated to
pay the same before failure so to pay becomes an Event of Default. If the
Company or a Guarantor defaults in the payment of the principal of, premium,
if any, or interest on, the Securities when and as the same shall become due,
whether upon maturity, acceleration, call for redemption, upon a Change of
Control Offer, upon an Asset Sale Offer or otherwise, without the necessity
of action by the Trustee or any Holder, each Guarantor shall be required,
jointly and severally, to promptly make such payment in full.
(b) Each Guarantor hereby agrees that its obligations with
regard to this Guaranty shall be unconditional, irrespective of the validity,
regularity or enforceability of the Securities or this Indenture, the absence
of any action to enforce the same, any delays in obtaining or realizing upon
or failures to obtain or realize upon collateral, the recovery of any
judgment against the Company, any action to enforce the same or any other
circumstances that might otherwise constitute a legal or equitable discharge
or defense of a guarantor (except as provided in Sections 12.4 and 12.5).
Each Guarantor hereby waives diligence, presentment, demand of payment,
filing of claims with a court in the event of insolvency or bankruptcy of the
Company, any right to require a proceeding first against the Company or right
to require the prior disposition of the assets of the Company to meet its
obligations, protest, notice and all demands whatsoever and covenants that
this Guaranty will not be discharged (except to the extent released pursuant
to Section 12.4 or 12.5) except by complete performance of the obligations
contained in the Securities and this Indenture.
(c) If any Holder or the Trustee is required by any court or
otherwise to return to either the Company or any Guarantor, or any Custodian,
trustee, or similar official acting in relation to the Company or such
Guarantor, any amount paid by either the Company or such Guarantor to the
Trustee or such Holder, this Guaranty, to the extent theretofore discharged,
shall be reinstated in full force and effect (except to the extent released
pursuant to Section 12.4 or 12.5). Each Guarantor agrees that it will not be
entitled to any right of subrogation in relation to the Holders in respect of
any obligations guaranteed hereby until payment in full of all obligations
guaranteed hereby.
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Each Guarantor further agrees that, as between such Guarantor, on the one
hand, and the Holders and the Trustee, on the other hand, (i) the maturity of
the obligations guaranteed hereby may be accelerated as provided in Section
6.2 for the purposes of this Guaranty, notwithstanding any stay, injunction
or other prohibition preventing such acceleration as to the Company of the
obligations guaranteed hereby, and (ii) in the event of any declaration of
acceleration of those obligations as provided in Section 6.2, those
obligations (whether or not due and payable) will forthwith become due and
payable by each of the Guarantors for the purpose of this Guaranty.
(d) Each Guarantor and by its acceptance of a Security issued
hereunder each Holder hereby confirms that it is the intention of all such
parties that the guarantee by such Guarantor set forth in Section 12.1(a) not
constitute a fraudulent transfer or conveyance for purpose of any Bankruptcy
Law, the Uniform Fraudulent Conveyance Act, the Uniform Fraudulent Transfer
Act or any similar Federal or state law. To effectuate the foregoing
intention, the Holders and such Guarantor hereby irrevocably agree that the
obligations of such Guarantor under its guarantee set forth in Section
12.1(a) shall be limited to the maximum amount as will, after giving effect
to all other contingent and fixed liabilities of such Guarantor and after
giving effect to any collections from or payments made by or on behalf of any
other Guarantor in respect of the obligations of such other Guarantor under
its guarantee or pursuant to the following paragraph of this Section 12.1(d),
result in the obligations of such Guarantor under such guarantee not
constituting such a fraudulent transfer or conveyance.
Each Guarantor that makes any payment or distribution under Section
12.1(a) shall be entitled to a contribution from each other Guarantor equal
to its Pro Rata Portion of such payment or distribution. For purposes of the
foregoing, the "Pro Rata Portion" of any Guarantor means the percentage of
the net assets of all Guarantors held by such Guarantor, determined in
accordance with GAAP.
(e) It is the intention of each Guarantor and the Company
that the obligations of each Guarantor hereunder shall be joint and several
and in, but not in excess of, the maximum amount permitted by applicable law.
Accordingly, if the obligations in respect of the Guaranty would be annulled,
avoided or subordinated to the creditors
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of any Guarantor by a court of competent jurisdiction in a proceeding
actually pending before such court as a result of a determination both that
such Guaranty was made without fair consideration and, immediately after
giving effect thereto, such Guarantor was insolvent or unable to pay its
debts as they mature or left with an unreasonably small capital, then the
obligations of such Guarantor under such Guaranty shall be reduced by such
court if and to the extent such reduction would result in the avoidance of
such annulment, avoidance or subordination; PROVIDED, HOWEVER, that any
reduction pursuant to this paragraph shall be made in the smallest amount as
is strictly necessary to reach such result. For purposes of this paragraph,
"fair consideration", "insolvency", "unable to pay its debts as they mature",
"unreasonably small capital" and the effective times of reductions, if any,
required by this paragraph shall be determined in accordance with applicable
law.
SECTION 12.2. EXECUTION AND DELIVERY OF GUARANTY.
Each Guarantor shall, by virtue of such Guarantor's execution and
delivery of a Guarantee substantially in the form annexed hereto as Exhibit
B, be deemed to have signed on each Security issued hereunder the notation of
guarantee set forth on the form of the Securities attached hereto as Exhibit
A to the same extent as if the signature of such Guarantor appeared on such
Security. The delivery of any Security by the Trustee, after the
authentication thereof hereunder, shall constitute due delivery of the
guaranty set forth in Section 12.1 on behalf of each Guarantor. The notation
of a guaranty set forth on any Security shall be null and void and of no
further effect with respect to the guaranty of any Guarantor which, pursuant
to Section 12.4 or Section 12.5, is released from such guaranty.
SECTION 12.3. SUBSIDIARY GUARANTORS.
(i) All present Subsidiaries of the Company and their Subsidiaries
(other than the Excluded Subsidiaries), and (ii) all future Subsidiaries of
the Company and their Subsidiaries (other than Excluded Subsidiaries), which
are not prohibited from becoming guarantors by law or by the terms of any
Acquired Indebtedness or any agreement (other than an agreement entered into
in connection with the transaction resulting in such person becoming a
Subsidiary of the Company or its Subsidiaries) to which such Subsidiary is a
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party ("Future Subsidiary Guarantors"), jointly and severally, will guaranty
irrevocably and unconditionally all principal, premium, if any, and interest
on the Securities on a senior subordinated basis; PROVIDED, HOWEVER, that
upon any change in the law, Acquired Indebtedness or any agreement (whether
by expiration, termination or otherwise) which no longer prohibits a
Subsidiary of the Company from becoming a Subsidiary Guarantor, such
Subsidiary shall immediately thereafter become a Subsidiary Guarantor;
PROVIDED, FURTHER, in the event that any Subsidiary of the Company or their
Subsidiaries becomes a guarantor of any other Indebtedness of the Company or
any of its Subsidiaries or any of their Subsidiaries, such Subsidiary shall
immediately thereafter become a Subsidiary Guarantor.
SECTION 12.4. GUARANTOR MAY CONSOLIDATE, ETC., ON CERTAIN TERMS.
(a) Nothing contained in this Indenture or in any of the
Securities shall prevent any consolidation or merger of a Guarantor with or
into the Company or any other Guarantor. Upon any such consolidation or
merger, the guarantees (as set forth in Section 12.1) of the Guarantor which
is not the survivor of the merger or consolidation, and of any Subsidiary of
such Guarantor that is also a Guarantor, shall be released and shall no
longer have any force or effect.
(b) Nothing contained in this Indenture shall prevent any
sale or conveyance of assets of any Guarantor (whether or not constituting
all or substantially all of the assets of such Guarantor) to any Person,
provided that the Company shall comply with the provisions of Section 4.14
and 4.17, and provided further that, in the event that all or substantially
all of the assets of a Guarantor are sold or conveyed, the guarantees of such
Guarantor (as set forth in Section 12.1) shall be released and shall no
longer have any force or effect.
(c) Except as provided in Section 12.4(a) or Section 12.5,
each Guarantor shall not, directly or indirectly, consolidate with or merge
with or into another Person, unless (i) either (a) the Guarantor is the
continuing entity or (b) the resulting or surviving entity is a corporation
organized under the laws of the United States, any state thereof or the
District of Columbia and expressly assumes by supplemental indenture all of
the obligations of
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the Guarantor in connection with the Securities and this Indenture; (ii) no
Default or Event of Default would occur as a consequence of (after giving
effect, on a PRO FORMA basis, to) such transaction; and (iii) the Guarantor
has delivered to the Trustee an Officers' Certificate and an Opinion of
Counsel, each stating that such consolidation or merger and if a supplemental
indenture is required, such supplemental indenture comply with this Indenture
and that all conditions precedent herein relating to such transaction have
been satisfied.
(d) Upon any consolidation or merger of a Guarantor in
accordance with Section 12.4 hereof, the successor corporation formed by such
consolidation or into which the Guarantor is merged shall succeed to, and be
substituted for, and may exercise every right and power of, the Guarantor
under this Indenture with the same effect as if such successor corporation
had been named herein as the Guarantor, and when a successor corporation duly
assumes all of the obligations of the Guarantor pursuant hereto and pursuant
to the Securities, the Guarantor shall be released from such obligations.
SECTION 12.5. RELEASE OF GUARANTORS.
(a) Without any further notice or action being required by
any Person, any Guarantor, and each Subsidiary of such Guarantor that is also
a Guarantor, shall be fully and conditionally released and discharged from
all obligations under its guarantee and this Indenture, upon (i) the sale or
other disposition of all or substantially all of the assets or properties of
such Guarantor, or 50% or more of the Equity Interests of any such Guarantor
to Persons other than the Company and their Subsidiaries or (ii) the
consolidation or merger of any such Guarantor with any Person other than the
Company or a Subsidiary of the Company, if, as a result of such consolidation
or merger, Persons other than the Company and their Subsidiaries beneficially
own more than 50% of the capital stock of such Guarantor, PROVIDED that, in
either such case, the Net Cash Proceeds of such sale, disposition, merger or
consolidation are applied in accordance with Section 4.14 of this Indenture;
or (iii) a Legal Defeasance or Covenant Defeasance, as set forth in Article
VIII.
(b) The releases and discharges set forth in Section 12.5(a)
shall be effective (i) in the case of re-
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leases and discharges effected pursuant to clause (i) or (ii) of Section
12.5(a) by virtue of a sale, disposition, consolidation or merger, on the
date of consummation thereof and (ii) in the case of releases and discharges
effected pursuant to clause (iii) of Section 12.5(a), upon the date of
Covenant Defeasance or Legal Defeasance, as applicable. At the written
request of the Company, the Trustee shall promptly execute and deliver
appropriate instruments in forms reasonably acceptable to the Company
evidencing and further implementing any releases and discharges pursuant to
the foregoing provisions. If the Company desires the instruments evidencing
or implementing any releases or discharges to be executed prior to the
effectiveness of such releases and discharges as set forth above, such
instruments may be made conditional upon the occurrence of the events
necessary to cause the effectiveness of such releases and discharges, as
specified in the first sentence of this Section 12.5.
(c) Notwithstanding the foregoing provisions of this Article
XII, (i) any Guarantor whose guarantee would otherwise be released pursuant
to the provisions of this Section 12.5 may elect, by written notice to the
Trustee, to maintain such guarantee in effect notwithstanding the event or
events that otherwise would cause the release of such guarantee (which
election to maintain such guarantee in effect may be conditional or for a
limited period of time), and (ii) any Subsidiary of the Company which is not
a Guarantor may elect, by written notice to the Trustee, to become a
Guarantor (which election may be conditional or for a limited period of time).
SECTION 12.6. CERTAIN BANKRUPTCY EVENTS.
Each Guarantor hereby covenants and agrees, to the fullest extent
that it may do so under applicable law, that in the event of the insolvency,
bankruptcy, dissolution, liquidation or reorganization of the Company, such
Guarantor shall not file (or join in any filing of), or otherwise seek to
participate in the filing of, any motion or request seeking to stay or to
prohibit (even temporarily) execution on the Guaranty and hereby waives and
agrees not to take the benefit of any such stay of execution, whether under
Section 362 or 105 of the Bankruptcy Law or otherwise.
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ARTICLE XIII
MISCELLANEOUS
SECTION 13.1. TIA CONTROLS.
If any provision of this Indenture limits, qualifies, or conflicts
with the duties imposed by operation of the TIA, the imposed duties, upon
qualification of this Indenture under the TIA, shall control.
SECTION 13.2. NOTICES.
Any notices or other communications to the Company or any
Guarantor, Paying Agent, Registrar, Securities Custodian, transfer agent or
the Trustee required or permitted hereunder shall be in writing, and shall be
sufficiently given if made by hand delivery, by telex, by telecopier or
registered or certified mail, postage prepaid, return receipt requested,
addressed as follows:
if to the Company or any Guarantor:
Jacor Communications Company
1300 PNC Center
201 East Fifth Street
Cincinnati, Ohio 45202
Attention: Treasurer
Telephone: (513) 621-1300
Telecopy: (513) 621-6087
if to the Trustee:
The Bank of New York
Attention:
Telephone:
Telecopy:
Any party by notice to each other party may designate additional or
different addresses as shall be furnished in writing by such party. Any
notice or communication to any party shall be deemed to have been given or
made as of the date so delivered, if personally deliv-
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ered; when answered back, if telexed; when receipt is acknowledged, if
telecopied; and five Business Days after mailing if sent by registered or
certified mail, postage prepaid (except that a notice of change of address
shall not be deemed to have been given until actually received by the
addressee).
Any notice or communication mailed to a Securityholder shall be
mailed to him by first class mail or other equivalent means at his address as
it appears on the registration books of the Registrar and shall be
sufficiently given to him if so mailed within the time prescribed.
Failure to mail a notice or communication to a Securityholder or
any defect in it shall not affect its sufficiency with respect to other
Securityholders. If a notice or communication is mailed in the manner
provided above, it is duly given, whether or not the addressee receives it.
SECTION 13.3. COMMUNICATIONS BY HOLDERS WITH OTHER HOLDERS.
Securityholders may communicate pursuant to TIA Section 312(b) with
other Securityholders with respect to their rights under this Indenture or
the Securities. The Company, the Trustee, the Registrar and any other Person
shall have the protection of TIA Section 312(c).
SECTION 13.4. CERTIFICATE AND OPINION AS TO CONDITIONS PRECEDENT.
Upon any request or application by the Company or any Guarantor to
the Trustee to take any action under this Indenture, such Person shall
furnish to the Trustee:
(1) an Officers' Certificate (in form and substance
reasonably satisfactory to the Trustee) stating that, in the opinion
of the signers, all conditions precedent, if any, provided for in this
Indenture relating to the proposed action have been met; and
(2) an Opinion of Counsel (in form and substance
reasonably satisfactory to the Trustee), stating that, in the opinion
of
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such counsel, all such conditions precedent have been met;
PROVIDED, HOWEVER, that in the case of any such request or application
as to which the furnishing of particular documents is specifically
required by any provision of this Indenture, no additional certificate
or opinion need be furnished under this Section 13.4.
SECTION 13.5. STATEMENTS REQUIRED IN CERTIFICATE OR OPINION.
Each certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture shall include:
(1) a statement that the Person making such
certificate or opinion has read such covenant or condition;
(2) a brief statement as to the nature and scope of
the examination or investigation upon which the statements or opinions
contained in such certificate or opinion are based;
(3) a statement that, in the opinion of such Person,
he has made such examination or investigation as is necessary to
enable him to express an informed opinion as to whether or not such
covenant or condition has been met; and
(4) a statement as to whether or not, in the opinion
of each such Person, such condition or covenant has been met;
PROVIDED, HOWEVER, that with respect to matters of fact an Opinion of
Counsel may rely on an Officers' Certificate or certificates of public
officials.
SECTION 13.6. RULES BY TRUSTEE, PAYING AGENT, REGISTRAR.
The Trustee may make reasonable rules for action by or at a meeting of
Securityholders. The Paying Agent or Registrar may make reasonable rules for
its functions.
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SECTION 13.7. NON-BUSINESS DAYS.
If a payment date is not a Business Day at such place, payment may
be made at such place on the next succeeding day that is a Business Day, and
no interest shall accrue for the intervening period.
SECTION 13.8. GOVERNING LAW.
THIS INDENTURE AND THE SECURITIES SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, AS APPLIED TO
CONTRACTS MADE AND PERFORMED WITHIN THE STATE OF NEW YORK. EACH OF THE
COMPANY AND THE GUARANTORS HEREBY IRREVOCABLY SUBMITS TO THE JURISDICTION OF
ANY NEW YORK STATE COURT SITTING IN THE BOROUGH OF MANHATTAN IN THE CITY OF
NEW YORK OR ANY FEDERAL COURT SITTING IN THE BOROUGH OF MANHATTAN IN THE CITY
OF NEW YORK IN RESPECT OF ANY SUIT, ACTION OR PROCEEDING ARISING OUT OF OR
RELATING TO THIS INDENTURE AND THE SECURITIES, AND IRREVOCABLY ACCEPTS FOR
ITSELF AND IN RESPECT OF ITS PROPERTY, GENERALLY AND UNCONDITIONALLY,
JURISDICTION OF THE AFORESAID COURTS. EACH OF THE COMPANY AND THE GUARANTORS
IRREVOCABLY WAIVES, TO THE FULLEST EXTENT IT MAY EFFECTIVELY DO SO UNDER
APPLICABLE LAW, ANY OBJECTION WHICH THEY MAY NOW OR HEREAFTER HAVE TO THE
LAYING OF THE VENUE OF ANY SUCH SUIT, ACTION OR PROCEEDING BROUGHT IN ANY
SUCH COURT AND ANY CLAIM THAT ANY SUCH SUIT, ACTION OR PROCEEDING BROUGHT IN
ANY SUCH COURT HAS BEEN BROUGHT IN AN INCONVENIENT FORUM. NOTHING HEREIN
SHALL AFFECT THE RIGHT OF THE TRUSTEE OR ANY SECURITYHOLDER TO SERVE PROCESS
IN ANY OTHER MANNER PERMITTED BY LAW OR TO COMMENCE LEGAL PROCEEDINGS OR
OTHERWISE PROCEED AGAINST THE COMPANY AND THE GUARANTORS IN ANY OTHER
JURISDICTION.
SECTION 13.9. NO ADVERSE INTERPRETATION OF OTHER AGREEMENTS.
This Indenture may not be used to interpret another indenture, loan
or debt agreement of the Company or any Guarantor or any of their respective
Subsidiaries. Any such indenture, loan or debt agreement may not be used to
interpret this Indenture.
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SECTION 13.10. NO RECOURSE AGAINST OTHERS.
No direct or indirect stockholder, partner, employee, officer or
director, as such, past, present or future of the Company, the Guarantors or
any successor entity, shall have any personal liability in respect of the
obligations of the Company or the Guarantors under the Securities or this
Indenture by reason of his or its status as such stockholder, partner,
employee, officer or director. Each Securityholder by accepting a Security
waives and releases all such liability. Such waiver and release are part of
the consideration for the issuance of the Securities.
SECTION 13.11. SUCCESSORS.
All agreements of the Company and the Guarantors in this Indenture
and the Securities shall bind its successor. All agreements of the Trustee
in this Indenture shall bind its successor.
SECTION 13.12. DUPLICATE ORIGINALS.
All parties may sign any number of copies or counterparts of this
Indenture. Each signed copy or counterpart shall be an original, but all of
them together shall represent the same agreement.
SECTION 13.13. SEVERABILITY.
In case any one or more of the provisions in this Indenture or in
the Securities shall be held invalid, illegal or unenforceable, in any
respect for any reason, the validity, legality and enforceability of any such
provision in every other respect and of the remaining provisions shall not in
any way be affected or impaired thereby, it being intended that all of the
provisions hereof shall be enforceable to the full extent permitted by law.
SECTION 13.14. TABLE OF CONTENTS, HEADINGS, ETC.
The Table of Contents, Cross-Reference Table and headings of the
Articles and the Sections of this Indenture have been inserted for
convenience of reference only, are not to be considered a part hereof and
shall in
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no way modify or restrict any of the terms or provisions hereof.
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SIGNATURES
IN WITNESS WHEREOF, the parties hereto have caused this Indenture
to be duly executed as of the date first written above.
JACOR COMMUNICATIONS COMPANY
By: ---------------------------------------------
Name:
Title:
Attest:
---------------
Secretary
PARENT GUARANTOR
JACOR COMMUNICATIONS, INC.
By: ---------------------------------------------
Name:
Title:
Attest: ---------------
Secretary
SUBSIDIARY GUARANTORS:
ACES HIGH PICTURES, INC.
By: ---------------------------------------------
Name:
Title:
Attest: ---------------
Secretary
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BROADCAST FINANCE, INC.
By: ---------------------------------------------
Name:
Title:
Attest: ---------------
Secretary
CINE ARTISTS PICTURES CORP.
By: ---------------------------------------------
Name:
Title:
Attest:
----------------
Secretary
CINE FILMS, INC.
By: ---------------------------------------------
Name:
Title:
Attest:
---------------
Secretary
CINE GUARANTORS, INC.
By: ---------------------------------------------
Name:
Title:
Attest:
---------------
Secretary
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CINE GUARANTORS II, INC.
By: ---------------------------------------------
Name:
Title:
Attest:
---------------
Secretary
CINE GUARANTORS II, LTD.
By: ---------------------------------------------
Name:
Title:
Attest:
---------------
Secretary
CINE MOBILE SYSTEMS INT'L N.V.
By: ---------------------------------------------
Name:
Title:
Attest:
---------------
Secretary
CINE MOVIL S.A. DE C.V.
By: ---------------------------------------------
Name:
Title:
Attest:
---------------
Secretary
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CITICASTERS CO.
By: ---------------------------------------------
Name:
Title:
Attest:
---------------
Secretary
ECHOES OF SUMMER CO., INC.
By: ---------------------------------------------
Name:
Title:
Attest:
---------------
Secretary
FMI PENNSYLVANIA, INC.
By: ---------------------------------------------
Name:
Title:
Attest:
---------------
Secretary
GACC-N26LB, INC.
By: ---------------------------------------------
Name:
Title:
Attest:
---------------
Secretary
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GACC-340, INC.
By: ---------------------------------------------
Name:
Title:
Attest:
---------------
Secretary
GEORGIA NETWORK EQUIPMENT, INC.
By: ---------------------------------------------
Name:
Title:
Attest:
---------------
Secretary
GREAT AMERICAN MERCHANDISING GROUP, INC.
By: ---------------------------------------------
Name:
Title:
Attest:
---------------
Secretary
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GREAT AMERICAN TELEVISION PRODUCTIONS, INC.
By: ---------------------------------------------
Name:
Title:
Attest:
---------------
Secretary
IMMOBILARIA RADIAL, S.A. DE C.V.
By: ---------------------------------------------
Name:
Title:
Attest:
---------------
Secretary
JACOR BROADCASTING CORP.
By: ---------------------------------------------
Name:
Title:
Attest:
---------------
Secretary
JACOR BROADCASTING OF ATLANTA, INC.
By: ---------------------------------------------
Name:
Title:
Attest:
---------------
Secretary
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JACOR BROADCASTING OF COLORADO, INC.
By: ---------------------------------------------
Name:
Title:
Attest:
---------------
Secretary
JACOR BROADCASTING OF FLORIDA, INC.
By: ---------------------------------------------
Name:
Title:
Attest:
---------------
Secretary
JACOR BROADCASTING OF IDAHO, INC.
By: ---------------------------------------------
Name:
Title:
Attest:
---------------
Secretary
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JACOR BROADCASTING OF IOWA, INC.
By: ---------------------------------------------
Name:
Title:
Attest:
---------------
Secretary
JACOR BROADCASTING OF KNOXVILLE, INC.
By: ---------------------------------------------
Name:
Title:
Attest:
---------------
Secretary
JACOR BROADCASTING OF LEXINGTON, INC.
By: ---------------------------------------------
Name:
Title:
Attest:
---------------
Secretary
125
<PAGE>
JACOR BROADCASTING OF ST. LOUIS, INC.
By: ---------------------------------------------
Name:
Title:
Attest:
---------------
Secretary
JACOR BROADCASTING OF SAN DIEGO, INC.
By: ---------------------------------------------
Name:
Title:
Attest:
---------------
Secretary
JACOR BROADCASTING OF SARASOTA, INC.
By: ---------------------------------------------
Name:
Title:
Attest:
---------------
Secretary
126
<PAGE>
JACOR BROADCASTING OF TAMPA BAY, INC.
By: ---------------------------------------------
Name:
Title:
Attest:
---------------
Secretary
JACOR CABLE, INC.
By: ---------------------------------------------
Name:
Title:
Attest:
---------------
Secretary
LOCATION PRODUCTIONS, INC.
By: ---------------------------------------------
Name:
Title:
Attest:
---------------
Secretary
LOCATION PRODUCTIONS II, INC.
By: ---------------------------------------------
Name:
Title:
Attest:
---------------
Secretary
127
<PAGE>
NOBLE BROADCAST CENTER, INC.
By: ---------------------------------------------
Name:
Title:
Attest:
---------------
Secretary
NOBLE BROADCAST GROUP, INC.
By: ---------------------------------------------
Name:
Title:
Attest:
---------------
Secretary
NOBLE BROADCAST HOLDINGS, INC.
By: ---------------------------------------------
Name:
Title:
Attest:
---------------
Secretary
NOBLE BROADCAST LICENSES, INC.
By: ---------------------------------------------
Name:
Title:
Attest:
---------------
Secretary
128
<PAGE>
NOBLE BROADCAST OF COLORADO, INC.
By: ---------------------------------------------
Name:
Title:
Attest:
---------------
Secretary
NOBLE BROADCAST OF ST. LOUIS, INC.
By: ---------------------------------------------
Name:
Title:
Attest:
---------------
Secretary
NOBLE BROADCAST OF SAN DIEGO, INC.
By: ---------------------------------------------
Name:
Title:
Attest:
---------------
Secretary
NOBLE BROADCAST OF TOLEDO, INC.
By: ---------------------------------------------
Name:
Title:
Attest:
---------------
Secretary
129
<PAGE>
NOBRO, S.C.
By: ---------------------------------------------
Name:
Title:
Attest:
---------------
Secretary
NOVA MARKETING GROUP, INC.
By: ---------------------------------------------
Name:
Title:
Attest:
---------------
Secretary
SETTLEMENT DEVELOPMENT, INC.
By: ---------------------------------------------
Name:
Title:
Attest:
---------------
Secretary
SPORTS RADIO BROADCASTING, INC.
By: ---------------------------------------------
Name:
Title:
Attest:
---------------
Secretary
130
<PAGE>
SPORTS RADIO, INC.
By: ---------------------------------------------
Name:
Title:
Attest:
---------------
Secretary
TAFT-TCI SATELLITE SERVICES, INC.
By: ---------------------------------------------
Name:
Title:
Attest:
---------------
Secretary
THE RIVER NIGER PICTURES, INC.
By: ---------------------------------------------
Name:
Title:
Attest:
---------------
Secretary
THE SY FISCHER COMPANY AGENCY, INC.
By: ---------------------------------------------
Name:
Title:
Attest:
---------------
Secretary
131
<PAGE>
TURP CO.
By: ---------------------------------------------
Name:
Title:
Attest:
---------------
Secretary
TO THE DEVIL A DAUGHTER PICTURE CORP.
By: ---------------------------------------------
Name:
Title:
Attest:
---------------
Secretary
VTTV PRODUCTIONS
By: ---------------------------------------------
Name:
Title:
Attest:
-----------------
Secretary
THE BANK OF NEW YORK, as Trustee
By: ---------------------------------------------
Name:
Title:
132
<PAGE>
Exhibit A
[FORM OF SECURITY]
JACOR COMMUNICATIONS COMPANY
___% SENIOR SUBORDINATED NOTE
DUE 2006
CUSIP:
No. $ _________
Jacor Communications Company, a Florida corporation (hereinafter
called the "Company" which term includes any successors under the Indenture
hereinafter referred to), for value received, hereby promises to pay to _______,
or registered assigns, the principal sum of _____ Dollars, on _____, 2006.
Interest Payment Dates: _____ and December 15; commencing ______,
1996.
Record Dates: _____ and ______
Reference is made to the further provisions of this Security on the
reverse side, which will, for all purposes, have the same effect as if set forth
at this place.
IN WITNESS WHEREOF, the Company has caused this Instrument to be duly
executed under its corporate seal.
Dated:
Jacor Communications Company
a Florida corporation
By:________________________________________
Name:
Title:
Attest: __________________________
Secretary
A-1
<PAGE>
FORM OF TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Securities described in the within-mentioned
Indenture.
THE BANK OF NEW YORK
as Trustee and
Authenticating Agent
By:______________________________
Authorized Signatory
A-2
<PAGE>
JACOR COMMUNICATIONS COMPANY
___% SENIOR SUBORDINATED NOTE
DUE 2006
Unless and until it is exchanged in whole or in part for Securities in
definitive form, this Security may not be transferred except as a whole by the
Depositary to a nominee of the Depositary or by a nominee of the Depositary to
the Depositary or another nominee of the Depositary or by the Depositary or any
such nominee to a successor Depositary or a nominee of such successor
Depositary. Unless this certificate is presented by an authorized
representative of The Depository Trust Company (55 Water Street, New York, New
York) ("DTC"), to the Company or their agent for registration of transfer,
exchange or payment, and any certificate issued is registered in the name of
Cede & Co. or such other name as requested by an authorized representative of
DTC (and any payment is made to Cede & Co. or such other entity as is requested
by an authorized representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE
HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the
registered owner hereof, Cede & Co. , has an interest herein.(1)
1. INTEREST.
Jacor Communications Company, a Florida corporation (hereinafter
called the "Company," which term includes any successors under the Indenture
hereinafter referred to), promises to pay interest on the principal amount of
this Security at the rate of ___% per annum from the date of issuance until
maturity. To the extent it is lawful, the Company promises to pay interest on
any interest payment due but unpaid on such principal amount at a rate of ___%
per annum compounded semi-annually.
The Company will pay interest semi-annually on ____ 15 and _____ 15 of
each year or, if any such day is not a Business Day, on the next succeeding
Business Day (each, an "Interest Payment Date"), commencing ________, 1997.
Interest on the Securities will accrue from the most recent date to which
interest has been paid or, if no
- --------------------------
1. This paragraph should only be added if the Security is issued in global
form.
A-3
<PAGE>
interest has been paid on the Securities, from the date of issuance.
Interest will be computed on the basis of a 360-day year consisting of twelve
30-day months.
2. METHOD OF PAYMENT.
The Company shall pay interest on the Securities (except defaulted
interest) to the Persons who are the registered Holders at the close of business
on June 1 and December 1 immediately preceding the Interest Payment Date.
Holders must surrender Securities to a Paying Agent to collect principal
payments. Except as provided below, the Company shall pay principal and
interest in such coin or currency of the United States of America as at the time
of payment shall be legal tender for payment of public and private debts
("Cash"). The Securities will be payable as to principal, premium and interest
at the office or agency of the Company maintained for such purpose within or
without the City and State of New York or, at the option of the Company, payment
of principal, premium and interest may be made by check mailed to the Holders at
their addresses set forth in the register of Holders, and provided that payment
by wire transfer of immediately available funds will be required with respect to
principal of and interest and premium on all Global Securities and all other
Securities the Holders of which shall have provided written wire transfer
instructions to the Company or the Paying Agent at least five days prior to the
date for payment.
3. PAYING AGENT AND REGISTRAR.
Initially, The Bank of New York will act as Paying Agent and
Registrar. The Company may change any Paying Agent, Registrar or co-Registrar
without notice to the Holders. The Company or any of its Subsidiaries may,
subject to certain exceptions, act as Paying Agent, Registrar or co-Registrar.
4. INDENTURE.
The Company issued the Securities under an Indenture, dated as of
December __, 1996 (the "Indenture"), among the Company, Jacor Communications,
Inc., a Delaware corporation (the "Parent Guarantor") and The Bank of New York
(the "Trustee" which term includes any successor Trustee under the Indenture).
Capitalized terms herein are used as defined in the Indenture unless otherwise
defined herein. The
A-4
<PAGE>
terms of the Securities include those stated in the Indenture and those made
part of the Indenture by reference to the Trust Indenture Act, as in effect
on the date of the Indenture. The Securities are subject to all such terms,
and Holders of Securities are referred to the Indenture and said Act for a
statement of them. The Securities are senior subordinated obligations of the
Company limited in aggregate principal amount to $125,000,000. The
Securities are, to the extent and in the manner provided in the Indenture,
subordinate and subject in right of payment to the prior payment in full of
all Senior Debt of the Company, whether outstanding on the date of the
Indenture or thereafter created, incurred, assumed or guaranteed. Each
Holder of this Security, by accepting the same, (a) agrees to and shall be
bound by such provisions, (b) authorizes and directs the Trustee on his
behalf to take such action as may be provided in the Indenture and (c)
appoints the Trustee his attorney-in-fact for such purpose. The Securities
are guaranteed on a senior subordinated basis by the Parent Guarantor and
each of the Company's future Subsidiaries (the "Guarantors").
5. REDEMPTION.
The Securities may be redeemed, in whole or in part, at any time on or
after ____ 15, 2001, at the option of the Company, at the Redemption Price
(expressed as a percentage of principal amount) set forth below with respect to
the indicated Redemption Date, in each case (subject to the right of Holders of
record on a Record Date that is on or prior to such Redemption Date to receive
interest due on the Interest Payment Date to which such Record Date relates),
plus any accrued but unpaid interest to the Redemption Date. The Securities may
not be so redeemed prior to _____ 15, 2001.
If redeemed during
the 12-month period
commencing Redemption Price
-------------------- ----------------
2001 . . . . . . . . . . . . . .
2002 . . . . . . . . . . . . . .
2003 . . . . . . . . . . . . . .
2004 and thereafter. . . . . . .
Any such redemption will comply with Article III of the Indenture.
A-5
<PAGE>
6. NOTICE OF REDEMPTION.
Notice of redemption will be sent by first class mail, at least 30
days and not more than 60 days prior to the Redemption Date to the Holder of
each Security to be redeemed at such Holder's last address as then shown upon
the registry books of the Registrar. Securities may be redeemed in part in
multiples of $1,000 only.
Except as set forth in the Indenture, from and after any Redemption
Date, if monies for the redemption of the Securities called for redemption shall
have been deposited with the Paying Agent on such Redemption Date and payment of
the Securities called for redemption is not otherwise prohibited, the Securities
called for redemption will cease to bear interest and the only right of the
Holders of such Securities will be to receive payment of the Redemption Price.
7. DENOMINATIONS; TRANSFER; EXCHANGE.
The Securities are in registered form, without coupons, in
denominations of $1,000 and integral multiples of $1,000. A Holder may register
the transfer of, or exchange Securities in accordance with, the Indenture. The
Registrar may require a Holder, among other things, to furnish appropriate
endorsements and transfer documents and to pay any taxes and fees required by
law or permitted by the Indenture. The Registrar need not register the transfer
of or exchange any Securities selected for redemption.
8. PERSONS DEEMED OWNERS.
The registered Holder of a Security may be treated as the owner of it
for all purposes.
9. UNCLAIMED MONEY.
If money for the payment of principal or interest remains unclaimed
for two years, the Trustee and the Paying Agent(s) will pay the money back to
the Company at their written request. After that, all liability of the Trustee
and such Paying Agent(s) with respect to such money shall cease.
A-6
<PAGE>
10. DISCHARGE PRIOR TO REDEMPTION OR MATURITY.
Except as set forth in the Indenture, if the Company irrevocably
deposits with the Trustee, in trust, for the benefit of the Holders, Cash, U.S.
Government Obligations or a combination thereof, in such amounts as will be
sufficient in the opinion of a nationally recognized firm of independent public
accountants, to pay the principal of, premium, if any, and interest on the
Securities to redemption or maturity and comply with the other provisions of the
Indenture relating thereto, the Company will be discharged from certain
provisions of the Indenture and the Securities (including the restrictive
covenants described in paragraph 12 below, but excluding their obligation to pay
the principal of and interest on the Securities). Upon satisfaction of certain
additional conditions set forth in the Indenture, the Company may elect to have
its obligations discharged with respect to outstanding Securities.
11. AMENDMENT; SUPPLEMENT; WAIVER.
Subject to certain exceptions, the Indenture or the Securities may be
amended or supplemented with the written consent of the Holders of at least a
majority in aggregate principal amount of the Securities then outstanding, and
any existing Default or Event of Default or compliance with any provision may be
waived with the consent of the Holders of a majority in aggregate principal
amount of the Securities then outstanding. An amendment, supplement or waiver
with respect to Section 11.1 (Change of Control Offer) in a manner adverse to
the Holders, requires not less than 75% of the aggregate principal amount of the
Securities then outstanding. Without notice to or consent of any Holder, the
parties thereto may under certain circumstances amend or supplement the
Indenture or the Securities to, among other things, cure any ambiguity, defect
or inconsistency, or make any other change that does not adversely affect the
rights of any Holder of a Security.
12. RESTRICTIVE COVENANTS.
The Indenture imposes certain limitations on the ability of the
Company and the Guarantors to, among other things, incur additional
Indebtedness and Disqualified Equity Interests, pay dividends or make certain
other restricted payments, enter into certain transactions with Affiliates,
incur Liens, sell assets, merge or consolidate
A-7
<PAGE>
with any other Person or transfer (by lease, assignment or otherwise)
substantially all of the properties and assets of the Company. The
limitations are subject to a number of important qualifications and
exceptions. The Company must periodically report to the Trustee on
compliance with such limitations.
13. REPURCHASE AT OPTION OF HOLDER.
(a) If there is a Change of Control, the Company shall be required
to offer to purchase on the Change of Control Purchase Date all outstanding
Securities at a purchase price equal to 101% of the principal amount thereof,
together with accrued interest to the Change of Control Purchase Date.
Holders of Securities will receive a Change of Control Offer from the Company
prior to any related Change of Control Purchase Date and may elect to have
such Securities purchased by completing the form entitled "Option of Holder
to Elect Purchase" appearing below.
(b) The Indenture imposes certain limitations on the ability of
the Company, the Guarantors or any of their respective Subsidiaries to sell
assets. In the event the proceeds from a permitted Asset Sale exceed certain
amounts, as specified in the Indenture, the Company will be required to use
the proceeds of such Asset Sale in the manner required by the Indenture,
including (i) to reinvest such proceeds in its business, (ii) to repay Senior
Debt, (iii) to make an offer to purchase the Citicasters Securities, or (iv)
to make an offer to purchase a certain amount of each Holder's Securities at
100% of the principal amount thereof, plus accrued interest, if any, to the
purchase date.
14. NOTATION OF GUARANTY.
As set forth more fully in the Indenture, the Persons constituting
Guarantors from time to time, in accordance with the provisions of the
Indenture, unconditionally and jointly and severally guarantee, in accordance
with Section 12.1 of the Indenture, to the Holder and to the Trustee and its
successors and assigns, that (i) the principal of and interest on the
Security will be paid, whether at the Maturity Date or Interest Payment
Dates, by acceleration, call for redemption upon a Change of Control Offer,
upon an Asset Sale Offer or otherwise, and all other obligations of the
Company to the Holder or the Trustee under the Indenture or this Security
will be promptly paid in full or
A-8
<PAGE>
performed, all in accordance with the terms of the Indenture and this
Security, and (ii) in the case of any extension of payment or renewal of this
Security or any of such other obligations, they will be paid in full when due or
performed in accordance with the terms of such extension or renewal, whether at
the Maturity Date, as so extended, by acceleration, call for redemption, upon a
Change of Control Offer, upon an Asset Sale Offer or otherwise. Such guarantees
shall cease to apply, and shall be null and void, with respect to any Guarantor
who, pursuant to Article XII of the Indenture, is released from its guarantees,
or whose guarantees otherwise cease to be applicable pursuant to the terms of
the Indenture.
15. SUCCESSORS.
When a successor assumes all the obligations of its predecessor under
the Securities and the Indenture, the predecessor will be released from those
obligations.
16. DEFAULTS AND REMEDIES.
If an Event of Default occurs and is continuing (other than an Event
of Default relating to certain events of bankruptcy, insolvency or
reorganization), then in every such case, unless the principal of all of the
Securities shall have already become due and payable, either the Trustee or the
Holders of 25% in aggregate principal amount of Securities then outstanding may
declare all the Securities to be due and payable immediately in the manner and
with the effect provided in the Indenture. Holders of Securities may not
enforce the Indenture or the Securities except as provided in the Indenture.
The Trustee may require indemnity satisfactory to it before it enforces the
Indenture or the Securities. Subject to certain limitations, Holders of a
majority in aggregate principal amount of the Securities then outstanding may
direct the Trustee in its exercise of any trust or power. The Trustee may
withhold from Holders of Securities notice of any continuing Default or Event of
Default (except a Default in payment of principal or interest), if it determines
that withholding notice is in their interest.
17. TRUSTEE OR AGENT DEALINGS WITH THE COMPANY.
The Trustee and each Agent under the Indenture, in its individual or
any other capacity, may make loans to,
A-9
<PAGE>
accept deposits from, and perform services for the Company or its Affiliates,
and may otherwise deal with the Company or its Affiliates as if it were not
the Trustee and such Agent.
18. NO RECOURSE AGAINST OTHERS.
No direct or indirect stockholder, partner, employee, officer or
director, as such, past, present or future, of the Company, the Guarantors or
any successor entity shall have any personal liability in respect of the
obligations of the Company or the Guarantors under the Securities or the
Indenture by reason of his or its status as such stockholder, partner, employee,
officer or director. Each Holder of a Security by accepting a Security waives
and releases all such liability. The waiver and release are part of the
consideration for the issuance of the Securities.
19. AUTHENTICATION.
This Security shall not be valid until the Trustee or authenticating
agent signs the certificate of authentication on the other side of this
Security.
20. ABBREVIATIONS AND DEFINED TERMS.
Customary abbreviations may be used in the name of a Holder of a
Security or an assignee, such as: TEN COM (= tenants in common), TEN ENT (=
tenants by the entireties), JT TEN (= joint tenants with right of survivorship
and not as tenants in common), CUST (= Custodian), and U/G/M/A (= Uniform Gifts
to Minors Act).
21. CUSIP NUMBERS.
Pursuant to a recommendation promulgated by the Committee on Uniform
Security Identification Procedures, the Company will cause CUSIP numbers to be
printed on the Securities as a convenience to the Holders of the Securities. No
representation is made as to the accuracy of such numbers as printed on the
Securities and reliance may be placed only on the other identification numbers
printed hereon.
A-10
<PAGE>
22. ADDITIONAL RIGHTS OF HOLDERS OF SECURITIES.
The Company will furnish to any Holder upon written request and
without charge a copy of the Indenture. Requests may be made to:
Jacor Communications Company
1300 PNC Center
201 East Fifth Street
Cincinnati, Ohio 45202
Attn: Corporate Secretary
A-11
<PAGE>
FORM OF ASSIGNMENT
I or we assign this Security to
__________________________________________________________
__________________________________________________________
__________________________________________________________
(Print or type name, address and zip code of assignee)
Please insert Social Security or other identifying
number of assignee
_________________________
and irrevocably appoint __________ agent to transfer this
Security on the books of the Company. The agent may substitute
another to act for him.
Dated: __________ Signed: ______________________________
__________________________________________________________
(Sign exactly as name appears on
the other side of this Security)
Signature Guaranty*
- ---------------------
* NOTICE: The Signature must be guaranteed by an Institution which is a
member of one of the following recognized signature Guarantee Programs: (I)
The Securities Transfer Agent Medallion Program (STAMP); (ii) The New York
Stock Exchange Medallion Program (MNSP); (iii) The Stock Exchange Medallion
Program (SEMP) or (iv) in such other guarantee program acceptable to be
Trustee.
A-12
<PAGE>
OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Security purchased by the Company
pursuant to Section 4.14 or Article XI of the Indenture, check the appropriate
box: / / Section 4.14 / /Section 11.1
If you want to elect to have only part of this Security purchased by
the Company pursuant to Section 4.14 or Article XI of the Indenture, as the case
may be, state the amount you want to be purchased: $________
Date: ________________ Signature: ________________________
(Sign exactly as your name appears on the other side of this Security)
Signature Guaranty**
- ---------------------
** NOTICE: The Signature must be guaranteed by an Institution which is a member
of one of the following recognized signature Guarantee Programs: (I) The
Securities Transfer Agent Medallion Program (STAMP); (ii) The New York Stock
Exchange Medallion Program (MNSP); (iii) The Stock Exchange Medallion Program
(SEMP) or (iv) in such other guarantee program acceptable to be Trustee.
A-13
<PAGE>
SCHEDULE OF EXCHANGES OF DEFINITIVE SECURITIES***
The following exchanges of a part of this Global Security for
Definitive Securities have been made:
<TABLE>
<CAPTION>
Amount of Amount of Principal Amount Signature of
decrease in increase in of this Global authorized officer
Principal Amount Principal Amount Security following of Trustee or
Date of of this Global of this Global such decrease (or Securities
Exchange Security Security increase) Custodian
- ---------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
</TABLE>
- ---------------------
*** This schedule should only be added if the Security is issued in global
form.
A-14
<PAGE>
CERTIFICATE TO BE DELIVERED UPON EXCHANGE OR REGISTRATION OF TRANSFER OF
SECURITIES
Re: % SENIOR SUBORDINATED NOTES DUE 2006 OF JACOR COMMUNICATIONS COMPANY
This Certificate relates to $______ principal amount of Securities held in
(check applicable box) _____ book-entry or ______ definitive form by _____ (the
"Transferor").
The Transferor (check applicable box):
/ / has requested the Registrar by written order to deliver in exchange
for its beneficial interest in the Global Security held by the Depositary a
Security or Securities in definitive, registered form of authorized
denominations and an aggregate principal amount equal to its beneficial interest
in such Global Security (or the portion thereof indicated above); or
/ / has requested the Registrar by written order to exchange or register
the transfer of a Security or Securities.
____________________________________
[INSERT NAME OF TRANSFEROR]
By: ________________________________
Date: _________________________________
A-15
<PAGE>
Annex I
SELECTED DEFINITIONS AND SECTIONS
FROM THE CITICASTERS INDENTURE
"AFFILIATE" means, with respect to any specified Person, and other
Person directly or indirectly controlling or controlled by or under direct or
indirect common control with such specified Person. For purposes of this
definition, "control" (including, with correlative meanings, the terms
"controlling", "controlled by" and "under common control with") of any Person
means the possession, directly or indirectly, of the power to direct or cause
the direction of the management or policies of such Person, whether through the
ownership of voting securities, by agreement or otherwise.
"APPLICABLE DOCUMENTS" means collectively the Purchase Agreement, the
Registration Rights Agreement, this Indenture and the Citicasters Securities.
"APPLICABLE PREMIUM" means, with respect to any Note called for
redemption by Citicasters after a Change of Control, the greater of (i) 1.0% of
the then outstanding principal amount of such Note, and (ii) the total, if
greater than zero, of (A) the present value of all required interest and
principal payments due on such Note, computed using a discount rate equal to the
Treasury Rate plus 75 basis points, minus (B) the then outstanding principal
amount of such Note, minus (C) any accrued and unpaid interest paid on such Note
on the Redemption Date.
"ASSET SALE" by any Person means any transfer, conveyance, sale, lease
or other disposition by such Person or any of its Subsidiaries (including a
consolidation or merger or other sale of any such Subsidiaries with, into or to
another Person in a transaction in which such Subsidiary ceases to be a
Subsidiary, but excluding a disposition by a Subsidiary of such Person to such
Person or a Wholly-Owned Subsidiary of such Person) of (i) shares of Capital
Stock (other than directors' qualifying shares) or other ownership interests of
a Subsidiary of such Person, (ii) substantially all of the assets of such Person
or any of its Subsidiaries or (iii) other assets or rights of such Person or any
of its Subsidiaries, whether owned on the date of this Indenture or thereafter
acquired, in one or more related transactions. The term "Asset Sale" shall not
include (i) any Permitted
Annex - 1
<PAGE>
Disposition or (ii) any sale or issuance by Citicasters of Qualified Capital
Stock of Citicasters.
"BANK AGENT CONSENT" means, with respect to any Asset Sale Payment (as
defined in the Citicasters Securities Asset Sale Offer), the written consent of
the Representative or Representatives of holders of at least a majority in
outstanding principal amount of Indebtedness under the Bank Credit Agreements
(including unused commitments which, if funded, would constitute Senior Bank
Debt) delivered by such Representative or Representatives to Citicasters, with a
copy to the Trustee, prior to such Asset Sale Payment, pursuant to which such
Representative or Representatives consent to such Asset Sale Payment and,
consequently, the related permanent reduction (in the amount of such Asset Sale
Payment) of the amount of Designated Senior Debt available to be Incurred
pursuant to Section 4.7(c)(i). As of the Issue Date, The First National Bank of
Boston would be the Representative entitled to give the Bank Agent Consent.
"BANK CREDIT AGREEMENTS" means (i) the Loan Agreement, dated as of
August 20, 1993, and amended and restated as of November 30, 1993, among the
Company, Citicasters Co. (formerly known as Great American Broadcasting
Company), Continental Bank, N.A., and The First National Bank of Boston, as
managing agents, and the lenders party thereto (such Loan Agreement shall be
referred to herein as the "1993 Credit Agreement"), (ii) the loan documents
relating to a $25,000,000 Senior Secured Seven-Year Revolving Credit and a
$125,000,000 Senior Secured Seven-Year Reducing Revolver under which Citicasters
Co. is the borrower, Citicasters Corp. and the Company are Guarantors, The First
National Bank of Boston is the Administrative Agent and Continental Bank, N.A.
is the Collateral Agent (such facilities shall be referred to herein as the "New
Bank Credit Facility"), (iii) each instrument pursuant to which Obligations
under the Bank Credit Agreements described in (i) and (ii) above, or any
subsequent Bank Credit Agreements, are amended, deferred, extended, renewed,
replaced, refunded or refinanced, in whole or in part, and (iv) each instrument
now or hereafter evidencing, governing, guarantying or securing any Indebtedness
under any Bank Credit Agreements, in each case, as modified, amended, restated
or supplemented from time to time.
Annex - 2
<PAGE>
"BANKRUPTCY LAW" means Title 11, United States Code or any similar
Federal or State law for the relief of debtors.
"BOARD OF DIRECTORS" means, with respect to any Person, the Board of
Directors of such Person or any committee of the Board of Directors of such
Person duly authorized, with respect to any particular matter, to exercise the
power of the Board of Directors of such Person.
"BOARD RESOLUTION" means, with respect to any Person, a duly adopted
resolution of the Board of Directors of such Person.
"BROADCASTING STATION" means all related licenses, franchises and
permits issued under federal, state or local laws from time to time which
authorize a Person to receive or distribute, or both, over the airwaves, audio,
visual, or microwave signals within a geographic area for the purpose of
providing commercial broadcasting television or radio, together with all
Property owned or used in connection with the programming PROVIDED pursuant to,
and all interest of such Person to receive revenues from any other Person which
derives revenues from or pursuant to, said licenses, franchises and permits.
"CAPITAL EXPENDITURE" means any amount paid in connection with the
purchase or construction of any assets acquired (other than from an
Affiliate) or constructed after the date hereof (a) to the extent the purchase
or construction prices for such assets are or should be included in "addition to
property, plant or equipment" in accordance with GAAP and (b) if the acquisition
or construction of such assets is not part of any acquisition of a Person.
"CAPITAL LEASE OBLIGATION" of any Person means the obligation to pay
rent or other payment amounts under a lease of (or other Indebtedness
arrangements conveying the right to use) real or personal property of such
Person which is required to be classified and accounted for as a capital lease
or a liability on the face of a balance sheet of such Person in accordance with
GAAP. The stated maturity of such obligation shall be the date of the last
payment of rent or any other amount due under such lease prior to the first date
upon which such lease may be terminated by the lessee without payment of a
penalty. Capital Lease Obligations shall not include payments due under any
Film Contracts.
Annex - 3
<PAGE>
"CAPITAL STOCK" of any Person means any and all shares, interests,
rights, participations, each class of common stock and preferred stock of such
Person and/or other equivalents (however designated) of corporate stock or
equity participations, including each class of common stock and preferred stock
of such Person and partnership interests, whether general or limited, of such
Person.
.
"CASH EQUIVALENTS" means:
(1) marketable obligations issued or unconditionally
guaranteed by the United States government, in each case maturing
within 360 days after the date of acquisition thereof;
(2) marketable direct obligations issued by any state
of the United States or any political subdivision of any such state or
any public instrumentality thereof maturing within 360 days after the
date of acquisition thereof and, at the time of acquisition, having
the highest rating obtainable from either Standard & Poor's
Corporation or Moody's Investors Service, Inc.;
(3) commercial paper maturing no more than 360 days
after the date of acquisition thereof, issued by a corporation
organized under the laws of any state of the United States or of the
District of Columbia and, at the time of acquisition, having a rating
in one of the two highest rating categories obtainable from either
Standard & Poor's Corporation or Moody's Investors Service, Inc.;
(4) money market funds whose investments are made
solely in securities described in clause (1) maturing within one
(1) year after the date of acquisition thereof;
(5) certificates of deposit maturing within 360 days
after the date of acquisition thereof, issued by any commercial bank
that is a member of the Federal Reserve System that has capital,
surplus and undivided profits (as shown on its most recent statement
of condition) aggregating not less than $100,000,000 and
Annex - 4
<PAGE>
is rated A or better by Moody's Investors Service, Inc. or Standard
& Poor's Corporation; and
(6) repurchase agreements entered into with any
commercial bank of the nature referred to in clause (5), secured by a
fully perfected Lien in any obligation of the type described in any of
clauses (1) through (5), having a fair market value at the time such
repurchase agreement is entered into of not less than 100% of the
repurchase obligation thereunder of such commercial bank.
"CITICASTERS ASSET SALE REPURCHASE AMOUNT" means the sum of
(A) Cumulative Operating Cash Flow (as defined herein) of Citicasters and its
Subsidiaries less 1.4 times Cumulative Total Interest Expense of Citicasters and
its Subsidiaries, plus (B) an amount equal to 100% of the aggregate Qualified
Capital Stock Proceeds received by Citicasters from the issuance and sale (other
than to a Subsidiary of Citicasters) of Qualified Capital Stock to the extent
that such proceeds are not used to redeem, repurchase, return or otherwise
acquire Capital Stock or any Indebtedness of Citicasters or any Subsidiary
pursuant to clause (ii) of the immediately following paragraph and
(C) $5,000,000, less the aggregate amount of all Restricted Payments (excluding
all payments, investments, redemptions, repurchase, retirements and other
acquisitions described in clause (ii) of the immediately following
paragraph) declared or made after February 18, 1994.
Notwithstanding the foregoing definition, the following Restricted
Payments may be made: (i) the payment of any dividend within 60 days after the
date of declaration thereof, if at said date of declaration such payment would
have complied with the provisions of this Indenture; (ii) the redemption,
repurchase, retirement or other acquisition for value of any Capital Stock or
any Indebtedness of Citicasters or any Subsidiary in exchange for, or out of the
Qualified Capital Stock Proceeds of, the substantially concurrent sale (other
than to Citicasters or a Subsidiary of Citicasters) of Qualified Capital Stock
of Citicasters; and (iii) the redemption of Citicasters Securities under the
circumstances PROVIDED in Article 3 and in Sections 11.2 and 4.14 of this
Indenture.
Annex - 5
<PAGE>
"CITICASTERS SECURITIES ASSET SALE OFFER" means an offer to purchase
the Citicasters Securities in accordance with the following procedures:
(a) Citicasters will not, and will not permit any of its
Subsidiaries to make any Asset Sale, whether in a single transaction or a series
of related transactions, unless: (i) Citicasters or the applicable Subsidiary
receives consideration at the time of such Asset Sale at least equal to the fair
market value of the Property or securities sold or otherwise disposed of (as
determined in good faith by the Board of Directors of Citicasters evidenced by a
Board Resolution); (ii) at least 75% of such consideration is in the form of
cash; PROVIDED, HOWEVER, that the following shall be deemed to be cash for
purposes of this definition: (A) the amount of any liabilities (as shown on
Citicasters' or such Subsidiary's most recent balance sheet or in the notes
thereto) of Citicasters or such Subsidiary (other than liabilities that are by
their terms subordinated to the Citicasters Securities) that are assumed by the
transferee of any such assets, and (B) any notes or other obligations received
by Citicasters or any such Subsidiary from a transferee that are converted by
Citicasters or such Subsidiary into cash within six months of such Asset Sale;
PROVIDED FURTHER, that the 75% limitation referred to in clause (ii) above shall
not apply (AA) to any sale, transfer or other disposition of assets constituting
one or more Broadcasting Stations in which the cash portion of such
consideration received therefor, determined in accordance with the foregoing
proviso, is equal to or greater than what the after-tax net proceeds would have
been had such transaction complied with the aforementioned 75% limitation or
(BB) to a so-called "like-kind" exchange of assets, so long as (1) the assets so
received consist principally of cash or Cash Equivalents, the assumption of
liabilities and the acquisition of assets to be used for or in connection with
the business of owning and operating Broadcasting Stations, and (2) at the time
of and after giving effect to such exchange, and treating any Indebtedness
Incurred as a result of such exchange as having been Incurred at the time of
such exchange, no Default or Event of Default shall have occurred and be
continuing and Citicasters could Incur at least $1.00 of additional Indebtedness
pursuant to Section 4.7(b); PROVIDED YET FURTHER that the 75% limitation
referred to in clause (ii) above shall be deemed to have been satisfied if
(AAA) at the date of the Asset Sale and after giving effect thereto,
Sec-
Annex - 6
<PAGE>
tion 4.5(a) would permit Citicasters to make a Restricted Payment in an
amount equal to the difference between the actual cash consideration received by
Citicasters or the applicable Subsidiary with respect to such Asset Sale and 75%
of the fair market value of the Property or securities sold or otherwise
disposed of in such Asset Sale (determined as provided above) and
(BBB) Citicasters treats the receipt of non-cash consideration in an amount
equal to the amount set forth in the foregoing clause (AAA) as a Restricted
Payment under Section 4.5(a), whether or not such receipt would otherwise be
classified as an Investment or a Permitted Investment; and (iii) the Excess
Proceeds received by Citicasters or such Subsidiary, as the case may be, from
such Asset Sale are applied in accordance with this definition.
(b) The Company shall use the Excess Proceeds from New World
Station Sales (i) first to repay amounts outstanding under the 1993 Credit
Agreement that is a part of the Bank Credit Agreements and the WGHP Notes and
(ii) then to redeem $75,000,000 principal amount of Notes at a redemption price
of $976.75 per $1,000 principal amount, plus accrued and unpaid interest through
the date of redemption. The mandatory redemption of Notes described in the
foregoing clause (ii) shall be made in accordance with the applicable provisions
of Article 3 hereof and the Redemption Date with respect to the full $75,000,000
principal amount of Notes to be redeemed shall be no later than the 15th day
after the date on which an aggregate of $230,000,000 of Excess Proceeds
(calculated for purposes of this Section 4.13(b) without regard to the deduction
described in clause (iv) of the definition of "Excess Proceeds") from the New
World Station Sales have been received by the Company, it being understood that
the Company may Incur Indebtedness under the New Bank Credit Facility in an
amount up to $75,000,000 to fund such redemption so long as the total amount of
Designated Senior Debt outstanding after giving effect to such redemption and
any related transactions does not exceed $150,000,000. Following the
application of the New World Station Sale Excess Proceeds as set forth above,
any additional Excess Proceeds from any New World Station Sale may be used to
further reduce Senior Indebtedness, to make Related Business Investment or
Capital Expenditures on one or more of the Company's or its Subsidiaries'
Broadcasting Stations, to acquire one or more Broadcasting Stations or to make a
Television Station Sale Payment as permitted by Section 4.13(d). The Company
shall use the Excess Proceeds
Annex - 7
<PAGE>
from the Other Television Station Sales to reduce Designated Senior Debt,
either permanently or temporarily to make Related Business Investments or
Capital Expenditures on one or more of the Company's or its Subsidiaries'
Broadcasting Stations, to acquire one or more Broadcasting Stations or, to
make a Television Station Sale Payment as permitted by paragraph (d) hereof.
(c) Immediately following receipt by the Company of Excess
Proceeds from an Asset Sale, other than a Permitted Television Station Sale, the
Company may use such Excess Proceeds to temporarily reduce Designated Senior
Debt. Within 360 days following the Company's receipt of such Excess Proceeds,
such Excess Proceeds may (i) be applied to permanently reduce Designated Senior
Debt, (ii) be used to enter into a contract to make Related Business Investments
or Capital Expenditures on one or more of the Company's or its Subsidiaries'
Broadcasting Stations or to enter into a contract to acquire one or more
Broadcasting Stations, or (iii) be used to make a payment permitted by Section
4.13(e), which payment shall be counted as a permanent reduction of the amount
of Designated Senior Debt available to be Incurred pursuant to Section
4.7(c)(i). Any Excess Proceeds from an Asset Sale not applied or invested
within 360 days as provided in clauses (i), (ii) or (iii) hereof will be deemed
to constitute "Available Proceeds" and shall be applied as provided in paragraph
(f) hereof unless the Company gives notice to the Trustee within 10 days
following such 360 day period that Excess Proceeds previously used to
temporarily reduce Designated Senior Debt will be applied to permanently reduce
Designated Senior Debt in which case such Excess Proceeds shall not constitute
Available Proceeds.
(d) The Company may use up to $40,000,000 of the Excess Proceeds
from the New World Station Sales, following application of such Excess Proceeds
as set forth in paragraph (b) hereof, and up to the lesser of 25% of Excess
Proceeds or $40,000,000 from any Other Television Station Sale to pay dividends
on the Company's Capital Stock or redeem, repurchase or retire shares of the
Company's Capital Stock or warrants, rights or options to purchase or acquire
shares of the Company's Capital Stock (any such dividend, redemption, repurchase
or retirement out of Excess Proceeds from any Permitted Television Station Sales
is herein referred to as a "Television Station Sale Payment"), subject to the
conditions and limitations set forth in this para-
Annex - 8
<PAGE>
graph (d). A Television Station Sale Payment may be made by the Company only
if, and to the extent that, each of the following conditions is satisfied as
of the time of the proposed Television Station Sale Payment: (i) the Company
shall have obtained a Bank Agent Consent if required; and (ii) no Default or
Event of Default shall have occurred and be continuing at the time of such
sale or as a consequence of such Television Station Sale Payment.
(e) Citicasters may use a portion of the Excess Proceeds from an
Asset Sale which is not a Permitted Television Sale to pay dividends on its
Capital Stock or redeem, repurchase or retire shares of its Capital Stock or
warrants, rights or options to purchase or acquire shares of its Capital Stock
(any such dividend, redemption, repurchase or retirement out of Excess Proceeds
from a single Asset Sale an "Asset Sale Payment"), subject to the conditions and
limitations set forth in this paragraph (c). An Asset Sale Payment may be made
by Citicasters only if, and to the extent that, each of the following conditions
is satisfied as of the time of the proposed Asset Sale Payment (the
"Determination Time"): (i) Citicasters shall have obtained a Bank Agent Consent;
(ii) such Asset Sale Payment (as well as all prior Asset Sale Payments, if
any) shall be counted as a permanent reduction of the amount of Designated
Senior Debt available to be Incurred pursuant to Section 4.7(c)(i); (iii) the
Determination Time occurs on or prior to December 31, 1996; (iv) only two Asset
Sale Payments will be permitted under this definition; (v) no Default or Event
of Default shall have occurred and be continuing at the Determination Time or as
a consequence of such Asset Sale Payment; and (vi) after giving effect to
(A) the application of any Excess Proceeds from the applicable Asset Sale in
accordance with clauses (i) and (ii) of paragraph (c) above prior to the
Determination Time, (B) any Asset Sale Redemption of Citicasters Securities
pursuant to Section 3.7(c) out of any Excess Proceeds from the applicable Asset
Sale, (C) any Asset Sale Payment out of any Excess Proceeds from the applicable
Asset Sale and (D) the payment of the maximum amount of Television Station Sale
payments which Citicasters may make pursuant to paragraph (d) hereof regardless
of whether any Permitted Television Station Sales have in fact been made as of
the Determination Time, the ratio set forth below is equal to (but not more or
less than) 4.5:1.
Annex - 9
<PAGE>
D-X
______________
OCF + [(.065)(REP-X-Y)]
where:
D = the aggregate amount of all outstanding Indebtedness of Citicasters
and its Subsidiaries on a consolidated basis as of the Determination
Time, without giving effect to the Asset Sale Redemption (if
any) represented by "X" in the formula.
X = the principal amount of Citicasters Securities (if any) to be redeemed
in an Asset Sale Redemption pursuant to Section 3.7(c) out of Excess
Proceeds from the applicable Asset Sale in order to satisfy the
conditions set forth in this paragraph (c).
OCF = the Operating Cash Flow of Citicasters and its Subsidiaries on a
consolidated basis for the four most recent full fiscal quarters
ending immediately prior to the Determination Time, determined on a
pro forma basis after giving effect to (i) the applicable Asset Sale
and any other Asset Sales consummated during such four-quarter period
as if they had occurred at the beginning of such four-quarter period
and (ii) all acquisitions or other dispositions (whether by merger,
consolidation, purchase or sale of securities or assets or
otherwise) of any business or assets, made by Citicasters and its
Subsidiaries from the beginning of such four-quarter period through
the Determination Time as if such acquisition or disposition had
occurred at the beginning of such four-quarter period.
REP = the total amount of Excess Proceeds from the applicable Asset Sale
remaining after deducting therefrom all portions thereof applied prior
to the Determination Time pursuant to this definition, but without
giving effect to the Asset Sale Redemption (if any) represented by "X"
in the formula or to the Asset Sale Payment represented by "Y" in the
formula.
Y = the amount of the proposed Asset Sale Payment to be made at the
Determination Time pursuant to this paragraph (d).
Annex - 10
<PAGE>
(f) As soon as practicable, but in no event later than 10
Business Days after any date (an "Asset Sale Trigger Date") that the aggregate
amount of Available Proceeds exceeds $15,000,000, Citicasters shall, if and to
the extent permitted by the agreements governing any Senior Indebtedness of
Citicasters, subject to the provisions of Article 10, commence an offer to
purchase the maximum principal amount of Citicasters Securities that may be
purchased out of such Available Proceeds, at an offer price in cash equal to
100% of the principal amount thereof, plus accrued and unpaid interest to the
date of purchase. The Asset Sale Offer shall be effected in accordance with
Section 3.8 and Article 3 (to the extent applicable) and the provisions of this
definition. To the extent that any Available Proceeds remain after completion
of an Asset Sale Offer, Citicasters may use the remaining amount for any purpose
permitted by this Indenture, but not, unless otherwise permitted by Section 4.5,
to offer to repurchase or otherwise redeem, repurchase, retire or acquire for
value any Pari Passu Indebtedness or Subordinated Indebtedness. In the event
that Citicasters is prohibited under the terms of any agreement governing
outstanding Senior Indebtedness of Citicasters from repurchasing Citicasters
Securities with Available Proceeds pursuant to an Asset Sale Offer as required
by the first sentence of this paragraph (d), Citicasters shall promptly use all
Available Proceeds to permanently reduce outstanding Senior Indebtedness of
Citicasters.
(g) If, at any time, any funds are received by or for the
account of Citicasters or any of its Subsidiaries upon the sale, conversion,
collection or other liquidation of any non-cash consideration received in
respect of an Asset Sale, other than the Permitted Television Station Sales such
funds shall, when received, constitute Excess Proceeds and shall, within 360
days after the receipt of such funds be applied as provided in this definition.
"CUMULATIVE OPERATING CASH FLOW" means the Operating Cash Flow of
Citicasters and its Subsidiaries for the period beginning January 1, 1994,
through and including the end of the most recently ended fiscal quarter (taken
as one accounting period) preceding the date of any proposed Restricted Payment.
"CUMULATIVE TOTAL INTEREST EXPENSE" means the Total Interest Expense
of Citicasters and its Subsidiaries
Annex - 11
<PAGE>
for the period beginning January 1, 1994, through and including the end of
the most recently ended fiscal quarter (taken as one accounting period)
preceding the date of any proposed Restricted Payment.
"CUSTODIAN" means any receiver, trustee, assignee, liquidator,
sequestrator or similar official under any Bankruptcy Law.
"DESIGNATED SENIOR DEBT" means: (a) up to an aggregate maximum of
$150,000,000 principal amount of any combination of (i) Indebtedness outstanding
under the Bank Credit Agreements and (ii) Senior Indebtedness (without
duplication with clause (i) above), outstanding at any one time; provided,
however, that such maximum amount shall be decreased by (A) the aggregate amount
of Asset Sale Payments made by the Company, PROVIDED that a reduction described
in this clause (A) that would otherwise be caused by a particular Asset Sale
Payment will not be effective without a Bank Agent Consent with respect to such
Asset Sale Payment if the effect of such reduction would be to reduce the amount
of Designated Senior Debt available to be Incurred pursuant to Section 4.7(c)(i)
to an amount lower than the amount of Indebtedness outstanding under the Bank
Credit Agreements as of the applicable Determination Time (including unused
commitments which the Bank Lenders are unconditionally obligated to fund at the
Determination Time and which, if funded, would constitute Designated Senior
Debt) and (B) the aggregate amount of Excess Proceeds from Asset Sales applied
to permanently reduce Designated Senior Debt pursuant to paragraphs (b) and (c)
under the Citicasters Securities Asset Sale Offer; and (b) any interest,
penalties, fees, indemnifications, reimbursements, damages and other similar
charges (including, but not limited to, all fees and expenses of counsel and all
other charges, fees and expenses) payable under the Bank Credit Agreements.
"EXCESS PROCEEDS" means with respect to any Asset Sale by any Person,
the proceeds thereof in the form of cash (including any cash received by way of
deferred payment pursuant to, or amortization of, a note or installment
receivable or otherwise, but only if, as and when received, and cash received
upon sale of securities or other Property or assets received as consideration
with respect to such Asset Sale, except to the extent that any of the foregoing
are financed or sold with recourse to Citicasters or any Subsidiary) net of
(i) brokerage commissions and other
Annex - 12
<PAGE>
reasonable fees and expenses (including fees and expenses of counsel and
investment bankers) related to such Asset Sale, (ii) provisions for all taxes
payable as a result of such Asset Sale, (iii) payments made to retire Senior
Indebtedness where such payments are required by the instrument governing
such Indebtedness, (iv) amounts required to be paid to any Person (other than
Citicasters or any Subsidiary) owning a beneficial interest in the Property
or assets the subject of such Asset Sale and (v) appropriate amounts to be
provided by Citicasters or any Subsidiary, as the case may be, as a reserve,
in accordance with GAAP, against any liabilities associated with such Asset
Sale and retained by Citicasters or any Subsidiary, as the case may be, after
such Asset Sale, including, without limitation, pension and other
post-employment benefit liabilities, liabilities related to environmental
matters and liabilities under any indemnification obligations associated with
such Asset Sale, all as reflected in an Officers' Certificate delivered to
the Trustee.
"INVESTMENT" by any Person in any other Person means any investment by
such Person in such other Person, whether by a purchase of assets, in any
transaction or series of related transactions, individually or in the aggregate,
purchase of Capital Stock, capital contribution, loan, advance (other than
reasonable loans and advances to employees for moving and travel expenses, as
salary advances, and other similar customary expenses incurred, in each case in
the ordinary course of business consistent with past practice) or similar credit
extension constituting Indebtedness of such other Person, and any Guarantee of
Indebtedness of such other Person.
"NEW WORLD STATION SALE" means Asset Sales involving the sale of four
television stations currently owned by Citicasters or its Subsidiaries located
in Phoenix, Arizona, Birmingham, Alabama, Kansas City, Missouri and
Greensboro/High Point, North Carolina pursuant to the terms of that certain
Asset Purchase Agreement dated as of May 4, 1994 between Citicasters Co.
(formerly known as Great American Television and Radio Company, Inc.) and New
World Communications Group Incorporated as the same is in effect on August 22,
1994 or as the same may be amended or modified; provided that such amendment or
modification does not decrease the consideration payable to the Company or have
materially adverse effect on the Holders.
Annex - 13
<PAGE>
"OTHER TELEVISION STATION SALES" means Asset Sales Involving the sale
at any time and from time to time of two television stations owned by the
Company or its Subsidiaries in Tampa, Florida and Cincinnati, Ohio.
"PARI PASSU INDEBTEDNESS" means any Indebtedness of Citicasters
whether outstanding at the Issue Date or Incurred thereafter, which (a) ranks
pari passu with the Citicasters Securities and (b) by its terms, or by the terms
of any agreement or instrument pursuant to which such Indebtedness is Incurred,
(i) does not provide for payments of principal of such Indebtedness at the final
stated maturity thereof or by way of a sinking fund applicable thereto or by way
of any mandatory redemption, retirement or repurchase thereof by Citicasters
(including any redemption, retirement or repurchase which is contingent upon
events or circumstances, but excluding any retirement required by virtue of
acceleration of such Indebtedness upon an event of default thereunder), in each
case prior to the final stated maturity of the Citicasters Securities and
(ii) does not permit redemption or other retirement (including pursuant to an
offer to purchase made by the issuer) of such other Indebtedness at the option
of the holder thereof prior to the final stated maturity of the Citicasters
Securities, other than a redemption or other retirement at the option of the
holder of such Indebtedness (including pursuant to an offer to purchase made by
the Issuer) which is conditioned upon the change of control of Citicasters
pursuant to provisions substantially similar to those contained in Section 11.1
of this Indenture.
"PERMITTED INVESTMENT" by any Person means (i) any Related Business
Investment, (ii) Investments in securities or other Property not constituting
cash or Cash Equivalents and received in connection with an Asset Sale, to the
extent permitted by the definition of Citicasters Securities Asset Sale Offer,
or any other disposition of assets not constituting an Asset Sale, (iii) cash
and Cash Equivalents, (iv) Investments existing on the Issue Date,
(v) Investments by any Subsidiary in other Subsidiaries, (vi) Investments by
Citicasters in any of its Subsidiaries required by any instrument or agreement
governing Senior Indebtedness to the extent that such Investments consist of
(A) performance under Guarantees Incurred by Citicasters in compliance with this
Indenture with respect to Indebtedness of its Subsidiaries not Incurred in
violation of this Indenture or (B) Liens securing Citicasters's Obligations with
respect to
Annex - 14
<PAGE>
any Guarantee described in the foregoing clause (A), (vii) Investments in the
form of accounts receivable arising from sales of goods or services in the
ordinary course of business, PROVIDED that for any accounts receivable that
are more than 120 days overdue, appropriate reserves or allowances have been
established in accordance with GAAP and (viii) Investments in the form of
advances or prepayments to suppliers or employees in the ordinary course of
business.
"PERMITTED TELEVISION STATION SALES" means the New World Station Sales
and the Other Television Station Sale.
"PROPERTY" means all types of real, personal, tangible, intangible or
mixed property.
"RELATED BUSINESS INVESTMENTS" means (i) any Investment by a Person in
any other Person substantially all of whose revenues are derived from the
operation of one or more Broadcasting Stations or from the sale of advertising
time or the delivery, transmission or dissemination of entertainment or
information to public viewers or subscribers, so long that, as a result of such
Investment, (A) such Person becomes a Wholly-Owned Subsidiary, or (B) such
Person either (1) is merged, consolidated or amalgamated with or into
Citicasters or one of its Wholly-Owned Subsidiaries and Citicasters or such
Wholly-Owned Subsidiary is the surviving Person, or (2) transfers or conveys
substantially all of its assets to, or is liquidated into, Citicasters or one of
its Wholly-Owned Subsidiaries; (ii) the acquisition of all or substantially all
the assets of any Broadcasting Station; and (iii) any Capital Expenditure or
Investment, in each case reasonably related to the business of selling
advertising time or delivering, transmitting or disseminating entertainment or
information to public viewers or subscribers.
"RESTRICTED PAYMENT" means, with respect to any Person, without
duplication: (i) any dividend or other distribution, whether in cash or in
Property or securities, declared or paid on any shares of such Person's Capital
Stock (other than (A) in the case of Citicasters, dividends or distributions
payable solely in shares of Qualified Capital Stock of Citicasters or options,
warrants or other rights to acquire Qualified Capital Stock of Citicasters and
(B) any dividends, distributions or other payments made to Citicasters or a
Wholly-Owned Subsidiary by a Subsidiary), or the making by such Person or any of
its subsidiaries of
Annex - 15
<PAGE>
any other distribution in respect of, such Person's Capital Stock or any
warrants, rights or options to purchase or acquire shares of any class of
such Capital Stock (other than exchangeable or convertible Indebtedness of
such person); (ii) the redemption, repurchase, retirement or other
acquisition for value by such Person or any of its subsidiaries, directly or
indirectly, of such person's Capital Stock (and, in the case of a Subsidiary,
Capital Stock of Citicasters) other than Capital Stock owned by Citicasters
or a Wholly-Owned Subsidiary or any warrants, rights or options to purchase
or acquire shares of any class of such Capital Stock (other than exchangeable
or convertible Indebtedness of such Person), and other than, in the case of
Citicasters, through the issuance in exchange therefor solely of Qualified
Capital Stock of Citicasters; (iii) any payment to purchase, redeem, defease
or otherwise acquire or retire for value any Pari Passu Indebtedness or
Subordinated Indebtedness (other than with the proceeds of Refinancing
Indebtedness permitted under this Indenture), except in accordance with the
mandatory redemption or repayment provisions set forth in the original
documentation governing such Indebtedness, and (iv) any Investment other than
Permitted Investments.
"SENIOR INDEBTEDNESS" means and includes all principal of, premium and
interest (including Post-Petition Interest) on and other Obligations with
respect to (i) Indebtedness outstanding under the Bank Credit Agreements and
(ii) any other Indebtedness of Citicasters (other than as otherwise provided in
this definition), whether outstanding on the Issue Date or thereafter Incurred,
other than the Citicasters Securities; PROVIDED, HOWEVER, that the following
shall not constitute Senior Indebtedness: (A) any Indebtedness which by the
terms of the instrument creating or evidencing the same is PARI PASSU,
subordinated or junior in right of payment to the Citicasters Securities in any
respect, (B) that portion of any Indebtedness Incurred in violation of this
Indenture, (C) any Preferred Stock, or (D) any Indebtedness of Citicasters
(other than Indebtedness outstanding under the Bank Credit Agreements which
qualifies as Designated Senior Debt) which is subordinated to or junior in right
of payment in any respect to any other Indebtedness of Citicasters. Without
limiting the generality of the foregoing, "Senior Indebtedness" shall include
the principal of, premium, if any, and interest (including Post-Petition
Interest) and all other Obligations of every nature of Citicasters and its
Subsidiaries from time to time in re-
Annex - 16
<PAGE>
spect of Indebtedness outstanding under the Bank Credit Agreements which
qualifies as Designated Senior Debt; PROVIDED, HOWEVER, that any Indebtedness
under any refinancing, refunding or replacement of the Indebtedness
outstanding under the Bank Credit Agreements shall not constitute Senior
Indebtedness to the extent that the Indebtedness thereunder is by it express
terms subordinate to any other Indebtedness of Citicasters (other than
Indebtedness outstanding under the Bank Credit Agreements). Notwithstanding
the foregoing, "Senior Indebtedness" shall not include (1) Indebtedness
evidenced by Citicasters Securities, (2) Indebtedness which when incurred and
without respect to any election under Section 1111(b) of Title 11, United
States Code, is without recourse to Citicasters, (3) any liability for
foreign, federal, state, local or other taxes owed or owing by Citicasters,
(4) Indebtedness of Citicasters to the extent such liability constitutes
Indebtedness to a Subsidiary or any other Affiliate of Citicasters or any of
such Affiliate's subsidiaries, (5) Indebtedness for the purchase of goods or
materials in the ordinary course of business or (6) Indebtedness owed by
Citicasters for compensation to employees or for services.
"SIGNIFICANT SUBSIDIARY" means, with respect to any Person, any
Subsidiary of such Person that would be (i) a "significant subsidiary" as
defined in (a) or (b) of the definition of that term in Article 1, Rule 1-02 of
Regulation S-X, promulgated pursuant to the Securities Act, as such Regulation
is in effect on the Issue Date or (ii) material to the business, condition
(financial or other), business, operations or prospects of Citicasters and its
Subsidiaries taken as a whole.
"SUBORDINATED INDEBTEDNESS" means Indebtedness of Citicasters which is
subordinated or junior in right of payment to the Citicasters Securities.
"SUBSIDIARY" means any corporation, association, partnership, joint
venture or other business entity of which Citicasters and/or any Subsidiary of
Citicasters, directly or indirectly, either (a) in respect of a corporation,
owns or controls more than 50% of the outstanding Capital Stock having ordinary
voting power to elect a majority of the board of directors or similar managing
body, irrespective of whether or not a class or classes shall or might have
voting power by reason of the happening of any contingency, or (b) in respect of
an association, partnership, joint venture
Annex - 17
<PAGE>
or other business entity, exercises sufficient control over and/or has a
sufficiently large interest in, such association, partnership, joint venture
or other business entity that the operations thereof are, in accordance with
GAAP, consolidated with those of Citicasters or any Subsidiary.
"TOTAL INTEREST EXPENSE" of a Person means (i) the total amount of
interest expense (including amortization of original issue discount and noncash
interest payments or accruals and the interest component of any Capital Lease
Obligations but, excluding any intercompany interest owed by any Subsidiary to
any other Subsidiary of such Person), (ii) all fees, commissions, discounts and
other charges of Citicasters and its Subsidiaries with respect to letters of
credit and bankers' acceptances, determined on a consolidated basis in
accordance with GAAP and (iii) the product of (a) the total amount of dividends
declared on Disqualified Capital Stock other than common stock (whether accrued
or paid) of such Person and its consolidated Subsidiaries, times (b) a fraction,
the numerator of which is one and the denominator of which is one minus the then
current combined federal, state and local statutory tax rate of such Person,
expressed as a decimal, in each case, on a consolidated basis and in accordance
with GAAP.
"WHOLLY-OWNED SUBSIDIARY" means a Subsidiary 100% of the equity
interests in which (however measured) are owned by Citicasters or a Wholly-Owned
Subsidiary of Citicasters or Citicasters and one or more Wholly-Owned
Subsidiaries of Citicasters taken together, except in any case for the minimum
equity interest required to be held by directors, if any, to satisfy the
requirements of any applicable statute requiring that directors own qualifying
shares.
Annex - 18
<PAGE>
ARTICLE III
REDEMPTIONS AND OFFERS TO PURCHASE
SECTION 3.1. NOTICES TO TRUSTEE.
If Citicasters elects to redeem Citicasters Securities pursuant to
Section 3.7 it shall furnish to the Trustee, at least 10 but not more than 15
days before notice of any redemption is to be mailed to Holders (or such shorter
time as may be satisfactory to the Trustee), an Officers' Certificate stating
that Citicasters has elected to redeem Citicasters Securities pursuant to
Section 3.7, the date notice of redemption is to be mailed to Holders, the
Redemption Date, the aggregate principal amount of Citicasters Securities to be
redeemed, the Redemption Price for such Citicasters Securities, the amount of
accrued and unpaid interest on such Citicasters Securities as of the Redemption
Date and the manner in which Citicasters Securities are to be selected for
redemption if less than all outstanding Citicasters Securities are to be
redeemed. If the Trustee is not the Registrar, Citicasters shall, concurrently
with delivery of its notice to the Trustee of a redemption, cause the Registrar
to deliver to the Trustee a certificate (upon which the Trustee may rely)
setting forth the name of, and the aggregate principal amount of Citicasters
Securities held by each Holder.
If Citicasters is required to offer to purchase Citicasters Securities
pursuant to Section 4.12 or 4.13, it shall furnish to the Trustee, at least 5
Business Days before notice of the Offer is to be mailed to Holders, an
Officers' Certificate setting forth that the Offer is being made pursuant to
Section 4.12 or 4.13, as the case may be, the Purchase Date, the maximum
principal amount of Citicasters Securities Citicasters is offering to purchase
pursuant to the Offer, the purchase price for such Citicasters Securities, and
the amount of accrued and unpaid interest on such Citicasters Securities as of
the Purchase Date.
Citicasters will also provide the Trustee with any additional
information that the Trustee reasonably requests in connection with any
redemption or Offer.
Annex - 19
<PAGE>
SECTION 3.2. SELECTION OF CITICASTERS SECURITIES TO BE REDEEMED OR
PURCHASED.
If less than all outstanding Citicasters Securities are to be redeemed
or if less than all Citicasters Securities tendered pursuant to an Offer are to
be accepted for payment, Citicasters shall select the outstanding Citicasters
Securities to be redeemed or accepted for payment in compliance with the
requirements of the principal national securities exchange, if any, on which the
Citicasters Securities are listed or, if the Citicasters Securities are not
listed on a securities exchange, on a pro rata basis, by lot or by any other
method that the Trustee deems fair and appropriate; PROVIDED, HOWEVER, that if
any Additional Citicasters Securities are outstanding, such selection shall be
effected in such a manner as to ensure that the ratio of the outstanding
principal amount of the Initial Citicasters Securities and the ratio of the
outstanding principal amount of Additional Citicasters Securities, respectively,
to the sum of the outstanding principal amount of the Initial Citicasters
Securities and Additional Citicasters Securities prior to such selection is
equal to such ratios after such selection. If Citicasters elects to mail notice
of a redemption to Holders, the Trustee shall, at least 5 days prior to the date
notice of redemption is to be mailed, (i) select the Citicasters Securities to
be redeemed from Citicasters Securities outstanding not previously called for
redemption, and (ii) promptly notify Citicasters of the names of each Holder of
Citicasters Securities selected for redemption, the principal amount of
Citicasters Securities held by each such Holder and the principal amount of such
Holder's Citicasters Securities that are to be redeemed. If less than all
Citicasters Securities tendered pursuant to an Offer are to be accepted for
payment, the Trustee shall select on or prior to the Purchase Date for such
Offer the Citicasters Securities to be accepted for payment; PROVIDED, HOWEVER,
that if any Additional Citicasters Securities are outstanding, such selection
shall be effected in such a manner as to ensure that the ratio of the
outstanding principal amount of the Initial Citicasters Securities and the ratio
of the outstanding principal amount of Additional Citicasters Securities,
respectively, to the sum of the outstanding principal amount of the Initial
Citicasters Securities and Additional Citicasters Securities prior to such
selection is equal to such ratios after such selection. The Trustee shall
select for redemption or purchase Citicasters Securities or por-
Annex - 20
<PAGE>
tions of Citicasters Securities in principal amounts of $1,000 or integral
multiples of $1,000; except that if all of the Citicasters Securities of a
Holder are selected for redemption or purchase, the aggregate principal
amount of the Citicasters Securities held by such Holder, even if not a
multiple of $1,000, may be redeemed or purchased. Except as provided in the
preceding sentence, provisions of this Indenture that apply to Citicasters
Securities called for redemption or tendered pursuant to an Offer also apply
to portions of Citicasters Securities called for redemption or tendered
pursuant to an Offer.
SECTION 3.3. NOTICE OF REDEMPTION.
(a) At least 30 days but not more than 60 days before any
Redemption Date, Citicasters shall mail by first class mail to each such
Holder's registered address a notice of redemption to each Holder of Citicasters
Securities or portions thereof that are to be redeemed. With respect to any
redemption of Citicasters Securities, the notice shall identify the Citicasters
Securities or portions thereof to be redeemed and shall state: (1) the
Redemption Date; (2) the Redemption Price for the Citicasters Securities and the
amount of unpaid and accrued interest on such Citicasters Securities as of the
date of redemption; (3) if any Note is being redeemed in part, the portion of
the principal amount of such Note to be redeemed and that, after the Redemption
Date, upon surrender of such Note, a new Note or Citicasters Securities in
principal amount equal to the unredeemed portion will be issued; (4) the name
and address of the Paying Agent; (5) that Citicasters Securities called for
redemption must be surrendered to the Paying Agent to collect the Redemption
Price for, and any accrued and unpaid interest on, such Citicasters Securities;
(6) that, unless Citicasters defaults in making such redemption payment,
interest on Citicasters Securities called for redemption ceases to accrue on and
after the Redemption Date and the only remaining right of the Holders of such
Citicasters Securities is to receive payment of the Redemption Price upon
surrender to the Paying Agent of the Citicasters Securities redeemed; and (7) if
fewer than all the Citicasters Securities are to be redeemed, the identification
of the particular Citicasters Securities (or portion thereof) to be redeemed, as
well as the aggregate principal amount of Citicasters Securities to be redeemed
and the aggregate principal amount of Citicasters Securities to be outstanding
after such partial redemption.
Annex - 21
<PAGE>
(b) At Citicasters's request, the Trustee shall (at
Citicasters's expense) give the notice of any redemption to Holders; PROVIDED,
HOWEVER, that Citicasters shall deliver to the Trustee, at least 10 days prior
to the date that notice of the redemption is to be mailed to Holders, an
Officers' Certificate that (i) requests the Trustee to give notice of the
redemption to Holders, (ii) sets forth the information to be provided to Holders
in the notice of redemption, as set forth in the preceding paragraph, and (iii)
sets forth the aggregate principal amount of Citicasters Securities to be
redeemed and the amount of accrued and unpaid interest thereon as of the
redemption date. If the Trustee is not the Registrar, Citicasters shall,
concurrently with any such request, cause the Registrar to deliver to the
Trustee a certificate (upon which the Trustee may rely) setting forth the name
of, the address of, and the aggregate principal amount of Citicasters Securities
held by, each Holder; PROVIDED FURTHER that any such Officers' Certificate may
be delivered to the Trustee on a date later than permitted under this Section
3.3(b) if such later date is acceptable to the Trustee.
SECTION 3.4. EFFECT OF NOTICE OF REDEMPTION.
Once notice of redemption is mailed to the Holders, Citicasters
Securities called for redemption become due and payable on the Redemption Date
at the Redemption Price. Upon surrender to the Trustee or the Paying Agent, the
Citicasters Securities called for redemption shall be paid at the Redemption
Price.
SECTION 3.5. DEPOSIT OF REDEMPTION PRICE.
(a) On or prior to any Redemption Date, Citicasters shall
deposit with the Paying Agent money sufficient to pay the Redemption Price of,
and accrued interest on, all Citicasters Securities to be redeemed on that date.
After any Redemption Date, the Trustee or the Paying Agent shall promptly return
to Citicasters any money that Citicasters deposited with the Trustee or the
Paying Agent in excess of the amounts necessary to pay the Redemption Price of,
and accrued interest on, all Citicasters Securities to be redeemed.
(b) If Citicasters complies with the preceding paragraph, unless
Citicasters defaults in the payment of such Redemption Price interest on the
Citicasters Securities
Annex - 22
<PAGE>
to be redeemed will cease to accrue on such Citicasters Securities on the
applicable Redemption Date, whether or not such Citicasters Securities are
presented for payment. If a Note is redeemed on or after an interest record
date but on or prior to the related interest payment date, then any accrued
and unpaid interest shall be paid to the Person in whose name such Note was
registered at the close of business on such record date. If any Note called
for redemption shall not be so paid upon surrender for redemption because of
the failure of Citicasters to comply with the preceding paragraph, interest
will be paid on the unpaid principal, premium, if any, and interest from the
redemption date until such principal, premium and interest is paid, at the
rate of interest provided in the Citicasters Securities and Section 4.1.
SECTION 3.6. CITICASTERS SECURITIES REDEEMED IN PART.
Upon surrender of a Note that is redeemed in part, Citicasters shall issue
and the Trustee shall authenticate for the Holder at Citicasters's expense a new
Note equal in principal amount to the unredeemed portion of the Note
surrendered.
SECTION 3.7. OPTIONAL REDEMPTION.
(a) Except as otherwise provided in this Section 3.7 or in
paragraph (b) of the Citicasters Securities Asset Sale Offer with respect to the
New World Station Sale, the Citicasters Securities may not be redeemed at the
option of Citicasters prior to February 15, 1999. Thereafter, the Citicasters
Securities will be subject to redemption at the option of Citicasters, in whole
or in part, at the Redemption Prices (expressed as percentages of the principal
amount of the Citicasters Securities) set forth below, plus any accrued and
unpaid interest to the Redemption Date, if redeemed during the twelve-month
period beginning on February 15 of the years indicated below:
Year Percentage
---- ----------
1999 . . . . . . . . . . . . . . . . . . . 104.875%
2000 . . . . . . . . . . . . . . . . . . . 103.250%
2001 . . . . . . . . . . . . . . . . . . . 101.625%
2002 and thereafter. . . . . . . . . . . . 100.000%
Annex - 23
<PAGE>
Notwithstanding the foregoing, up to 25% in aggregate principal amount
of Citicasters Securities originally issued under this Indenture will be
redeemable from time to time prior to December 31, 1996, at the option of
Citicasters, from the Net Proceeds of one or more Public Offerings of
Citicasters at a Redemption Price equal to 108.75% of the principal amount
thereof, together with accrued and unpaid interest to the date of redemption;
provided, however, that any such redemption shall be permitted only if and to
the extent that, after giving effect thereto and to any simultaneous redemptions
pursuant to Section 3.7(b) or Section 3.7(c), at least $75,000,000 in principal
amount of Initial Citicasters Securities will remain outstanding.
(b) Prior to February 15, 1999, the Citicasters Securities will
be subject to redemption (a "Change of Control Redemption") at the option of
Citicasters, in whole or in part, at any tune within 180 days after the later of
(i) a Change of Control Trigger Date, and (ii) the completion of an Offer made
as a result of a Change of Control, at a redemption price equal to the sum of
(A) the principal amount thereof, plus (B) accrued and unpaid interest to the
redemption date, plus (C) the Applicable Premium; PROVIDED, HOWEVER, that a
Change of Control Redemption shall be permitted only if and to the extent that,
after giving effect thereto and to any simultaneous redemptions pursuant to the
last sentence of Section 3.7(a) or Section 3.7(c), at least $75,000,000 in
principal amount of Citicasters Securities will remain outstanding, unless such
Change of Control Redemption is for all outstanding Citicasters Securities.
(c) Prior to December 31, 1996 the Citicasters Securities will
be subject to redemption (an "Asset Sale Redemption") at the option of
Citicasters, in whole or in part, following an Asset Sale, other than a
Permitted Television Station Sale, in connection with an Asset Sale Payment;
provided that an Asset Sale Redemption may be made by Citicasters only if, and
to the extent that, each of the following conditions is satisfied; (i) only two
Asset Sale Redemptions will be permitted under this Indenture; (ii) the maximum
aggregate principal amount of Citicasters Securities to be redeemed pursuant to
an Asset Sale Redemption will be limited to that amount which is necessary to
make the ratio set forth in paragraph (c) under the definition of Citicasters
Securities Asset Sale Offer,
Annex - 24
<PAGE>
given the amount of the proposed Asset Sale Payment, equal to (but not more
or less than) 4.5:1; and (iii) after giving effect to the proposed Asset Sale
Redemption and to any simultaneous redemptions pursuant to the last sentence
of Section 3.7(a) or Section 3.7(b), at least $75,000,000 in principal amount
of Initial Citicasters Securities will remain outstanding. In the event of an
Asset Sale Redemption, the Citicasters Securities will be redeemable at the
Redemption Prices (expressed as percentages of the principal amount of the
Citicasters Securities) set forth below, plus any accrued and unpaid interest
to the date of redemption, if redeemed during the periods indicated below.
Period Percentage
------ ----------
February 15, 1994 to July 31, 1994 . . . . . 102.00%
August 1, 1994 to February 14, 1995 . . . . 103.00%
February 15, 1995 to December 31, 1996 . . . 108.75%
SECTION 3.8. MANDATORY OFFERS.
(a) Within 60 days after any Change of Control Trigger Date, or
within 10 Business Days after any Asset Sale Trigger Date, Citicasters shall
mail a notice to each Holder (with a copy to the Trustee) containing all
instructions and materials necessary to enable such Holders to tender
Citicasters Securities pursuant to the Offer and stating: (1) that an Offer is
being made pursuant to a Change of Control Offer or pursuant to the definition
of Citicasters Securities Asset Sale Offer, as the case may be, the length of
time the Offer shall remain open, and the maximum aggregate principal amount of
Citicasters Securities that Citicasters is required to purchase pursuant to such
Offer (2) the purchase price for the Citicasters Securities, the amount of
accrued and unpaid interest on such Citicasters Securities as of the purchase
date, and the purchase date (which shall be no earlier than 30 days nor later
than 40 days from the date such notice is mailed (the "Purchase Date"); (3) that
any Note not tendered will continue to accrue interest if interest is then
accruing; (4) that, unless Citicasters fails to deposit with the Paying Agent on
the Purchase Date an amount sufficient to purchase all Citicasters Securities
accepted for payment, interest shall cease to accrue on such Citicasters
Securities after the Purchase Date; (5) that Holders electing to tender any Note
or portion thereof will be required to surrender their Note, with a form
entitled "Option of Holder to Elect Pur-
Annex - 25
<PAGE>
chase" completed, to the Paying Agent at the address specified in the notice
prior to the close of business on the Business Day preceding the Purchase
Date, PROVIDED that Holders electing to tender only a portion of any Note
must tender a principal amount of $1,000 or integral multiples thereof; (6)
that Holders will be entitled to withdraw their election to tender
Citicasters Securities if the Paying Agent receives, not later than the close
of business on the second Business Day preceding the Purchase Date, a
telegram, telex, facsimile transmission or letter setting forth the name of
the Holder, the principal amount of Citicasters Securities delivered for
purchase, and a statement that such Holder is withdrawing his election to
have such Note purchased; (7) that Holders whose Citicasters Securities are
accepted for payment in part will be issued new Citicasters Securities equal
in principal amount to the unpurchased portion of Citicasters Securities
surrendered, PROVIDED that only Citicasters Securities in a principal amount
of $1,000 or integral multiples thereof will be accepted for payment in part
and (8) if the Offer is made with respect to a Change of Control, the
circumstances and relevant facts regarding such Change of Control.
(b) Notwithstanding anything in this Section 3.8 to the
contrary, Citicasters shall not be required to commence an Offer as a result of
a Change of Control if, within thirty (30) days of the Change of Control Trigger
Date, Citicasters notifies the Holders that all outstanding Citicasters
Securities will be redeemed pursuant to a Change of Control Redemption.
(c) Subject to the provisions of Article 10, on the Purchase
Date for any Offer, Citicasters will (i) in the case of an Offer resulting from
a Change of Control, accept for payment all Citicasters Securities or portions
thereof tendered pursuant to such Offer and, in the case of an Offer resulting
from one or more Asset Sales, accept for payment the maximum principal amount of
Citicasters Securities or portions thereof tendered pursuant to such Offer that
can be purchased out of Excess Proceeds from such Asset Sales, (ii) deposit with
the Paying Agent the aggregate purchase price of all Citicasters Securities or
portions thereof accepted for payment and any accrued and unpaid interest on
such Citicasters Securities as of the Purchase Date, and (iii) deliver, or cause
to be delivered, to the Trustee all Citicasters Securities tendered pursuant to
the Offer, together with an Officers' Certificate setting forth
Annex - 26
<PAGE>
the name of each Holder of the tendered Citicasters Securities and the
principal amount of the Citicasters Securities or portions thereof tendered
by each such Holder. For purposes of this Section 3.8, the Trustee shall act
as the Paying Agent.
(d) With respect to any Offer, (i) if less than all of the
Citicasters Securities tendered pursuant to an Offer are to be accepted for
payment by Citicasters for any reason, Citicasters and the Trustee shall select
on or prior to the Purchase Date the Citicasters Securities or portions thereof
to be accepted for payment pursuant to Section 3.2; PROVIDED, HOWEVER, that if
any Additional Citicasters Securities are outstanding, such selection shall be
effected in such a manner as to ensure that the ratio of the outstanding
principal amount of the Initial Citicasters Securities and the ratio of the
outstanding principal amount of Additional Citicasters Securities, respectively,
to the sum of the outstanding principal amount of the Initial Citicasters
Securities and Additional Citicasters Securities prior to such selection is
equal to such ratios after such selection, and (ii) if Citicasters deposits with
the Paying Agent on or prior to the Purchase Date an amount sufficient to
purchase all Citicasters Securities accepted for payment, interest shall cease
to accrue on such Citicasters Securities on the Purchase Date; PROVIDED,
HOWEVER, that if Citicasters fails to deposit an amount sufficient to purchase
all Citicasters Securities -accepted for payment, the deposited funds shall be
used to purchase on a pro rata basis all Citicasters Securities accepted for
payment and interest shall continue to accrue on all Citicasters Securities not
purchased.
(e) Subject to the provisions of Article 10, promptly after the
Purchase Date with respect to an Offer, (i) the Paying Agent shall mail to each
Holder of Citicasters Securities or portions thereof accepted for payment an
amount equal to the purchase price for, plus any accrued and unpaid interest on,
such Citicasters Securities, (ii) with respect to any tendered Note not accepted
for payment in whole or in part, the Trustee shall return such Note to the
Holder thereof, and (iii) with respect to any Note accepted for payment in part,
the Trustee shall authenticate and mail to each such Holder a new Note equal in
principal amount to the unpurchased portion of the tendered Note.
Annex - 27
<PAGE>
(f) Citicasters will (i) publicly announce the results of the
Offer on or as soon as practicable after the Purchase Date, and (ii) comply with
Rule 14e-1 under the Exchange Act and any other securities laws and regulations
to the extent such laws and regulations are applicable to any Offer.
ARTICLE IV
SELECTED COVENANTS
* * *
SECTION 4.5. LIMITATION ON RESTRICTED PAYMENTS.
(a) Citicasters shall not, and shall not permit any Subsidiary
to, directly or indirectly, make any Restricted Payment, except (1) dividends,
payments or other distributions with respect of any Capital Stock by any
Subsidiary to Citicasters or any Wholly owned Subsidiary of Citicasters, (2)
repurchases, redemptions, retirements or acquisitions of Capital Stock by a
Wholly owned Subsidiary of Citicasters from Citicasters or another Wholly owned
Subsidiary of Citicasters, (3) payments, prepayments, repurchases, redemptions
and acquisitions permitted under Section 4.7 with respect to Indebtedness not
incurred in violation of Section, 4.7, and (4) Restricted Payments by
Citicasters if (i) at the time of and after giving effect to the proposed
Restricted Payment no Default or Event of Default shall have occurred and be
continuing or would occur as a consequence thereof, (ii) at the time of and
immediately after giving effect to the proposed Restricted Payment, Citicasters
could Incur at least $1.00 of additional Indebtedness pursuant to Section 4.7(b)
and (iii) at the time of and immediately after giving effect to the proposed
Restricted Payment (the value of any such payment if other than cash, as
determined by the Board of Directors, whose determination shall be conclusive
and evidenced by a Board Resolution, PROVIDED that in the event such value
exceeds $3 million such determination shall be supported by a fairness opinion
of an Independent Financial Advisor) the aggregate amount of all Restricted
Payments (excluding all payments, investments, redemptions, repurchases,
retirements and other acquisitions described in clause (ii) of Section 4.5(b))
declared or made after the Issue Date does not exceed an amount equal to the sum
of (A) Cumulative Operating Cash Flow of Citicasters and its Subsidiaries less
1.4 times
Annex - 28
<PAGE>
Cumulative Total Interest Expense of Citicasters and its Subsidiaries,
plus (B) an amount equal to 100% of the aggregate Qualified Capital Stock
Proceeds received by Citicasters from the issuance and sale (other than to a
Subsidiary of Citicasters) of Qualified Capital Stock to the extent that such
proceeds are not used to redeem, repurchase, return or otherwise acquire Capital
Stock or any Indebtedness of Citicasters or any Subsidiary pursuant to clause
(ii) of Section 4.5(b) and (C) $5,000,000.
(b) Notwithstanding Section 4.5(a), the following Restricted
Payments may be made: (i) the payment of any dividend within 60 days after the
date of declaration thereof, if at said date of declaration such payment would
have complied with the provisions of this Indenture; (ii) the redemption,
repurchase, retirement or other acquisition for value of any Capital Stock or
any Indebtedness of Citicasters or any Subsidiary in exchange for, or out of the
Qualified Capital Stock Proceeds of, the substantially concurrent sale (other
than to Citicasters or a Subsidiary of Citicasters) of Qualified Capital Stock
of Citicasters; and (iii) the redemption of Citicasters Securities under the
circumstances provided in Article 3 and pursuant to a Change of Control Offer
and a Citicaster Securities Asset Sale Offer.
* * *
SECTION 4.7. LIMITATION ON INDEBTEDNESS.
(a) Except as set forth in this Section 4.7, Citicasters shall
not, and shall not permit any Subsidiary, after the Issue Date, directly or
indirectly, to Incur any Indebtedness (including Acquired Indebtedness and under
any Additional Note). For purposes of this Indenture, Indebtedness of any
Acquired Person that is not a Subsidiary, which Indebtedness is outstanding at
the time such Person is acquired by Citicasters or a Subsidiary or becomes, or
is merged into or consolidated with, a Subsidiary, shall be deemed to have been
Incurred by Citicasters at the time such Acquired Person becomes, or is merged
into or consolidated with, a Subsidiary.
(b) Notwithstanding Section 4.7(a) and in addition to
Indebtedness permitted to be Incurred under Section 4.7(c), Citicasters (subject
to the limitations set forth in Section 4.15) or any Subsidiary may Incur
Indebted-
Annex - 29
<PAGE>
ness if (i) no Default or Event of Default shall have occurred and be
continuing at the time or as a consequence of the Incurrence of such
Indebtedness and (ii) on the date of the Incurrence of such Indebtedness, the
Debt to Operating Cash Flow Ratio of Citicasters and its Subsidiaries at the
time of such Incurrence, after giving pro forma effect thereto, is 7.0:1 or
less.
(c) Notwithstanding Section 4.7(a) and in addition to
Indebtedness permitted to be Incurred under Section 4.7(b), Citicasters and its
Subsidiaries may Incur any of the following Indebtedness:
(i) Designated Senior Debt;
(ii) Indebtedness evidenced by the Initial Citicasters
Securities;
(iii) Indebtedness to any Wholly owned Subsidiary of
Citicasters or Indebtedness of any Subsidiary to Citicasters (provided that
such Indebtedness is at all times held by Citicasters or a Wholly owned
Subsidiary of Citicasters); PROVIDED, HOWEVER, that for purposes of this
Section 4.7, upon either (A) the transfer or other disposition by any such
Wholly owned Subsidiary of any Indebtedness so permitted to a Person other
than Citicasters or another Wholly owned Subsidiary of Citicasters or (B)
the issuance, sale, lease, transfer or other disposition of shares of
Capital Stock (including by consolidation or merger) of such Wholly owned
Subsidiary to a Person other than Citicasters or another such Wholly owned
Subsidiary, the provisions of this clause (iii) shall no longer be
applicable to such Indebtedness and such Indebtedness shall be deemed to
have been Incurred by Citicasters at the time of such transfer or other
disposition;
(iv) Refinancing Indebtedness with respect to Indebtedness
that was Incurred prior to the Issue Date or, if incurred after the Issue
Date, was Incurred in compliance with the provisions of this Indenture;
PROVIDED, HOWEVER, that (A) the principal amount of such Refinancing
Indebtedness shall not exceed the principal amount (or accreted value, in
the case of Indebtedness issued at a discount) of the Indebtedness so
extended, refinanced, renewed, replaced, substituted, defeased or refunded
(plus the amount of
Annex - 30
<PAGE>
fees, costs and expenses incurred and the amount of any premium,
penalties, breakage costs and other similar amounts required to be
paid in connection with such refinancing pursuant to the terms of the
instrument governing the Indebtedness so extended, refinanced, renewed,
replaced, substituted, defeased or refunded or the amount of any premium
reasonably determined by Citicasters as necessary to accomplish a
refinancing by means of a tender offer or privately negotiated repurchase,
which determination shall be supported by a fairness opinion from an
Independent Financial Advisor, plus the fees, costs and expenses of such
tender offer or repurchase); and (B) the Refinancing Indebtedness shall (1)
have a Weighted Average Life to Maturity equal to or greater than the
Weighted Average Life to Maturity of the Indebtedness being extended,
refinanced, renewed, replaced, substituted, defeased or refunded; (2) not
have a final scheduled maturity earlier than the final scheduled maturity
of the Indebtedness being extended, refinanced, replaced, renewed,
substituted, defeased or refunded; (3) not permit redemption at the option
of the holder earlier than the earliest date of redemption at the option of
the holder of the Indebtedness being extended, refinanced, replaced,
renewed, substituted, defeased or refunded; and (4) rank no more senior or
be at least as subordinated, as the case may be, in right of payment to the
Citicasters Securities as the Indebtedness being extended, refinanced,
replaced, renewed, substituted, defeased or refunded; PROVIDED, FURTHER,
that the limitations contained in this clause (iv) shall not preclude
Citicasters or any of its Subsidiaries from Incurring additional
Indebtedness permitted to be Incurred at the time under Section 4.7(b) or
any other clause of this Section 4.7(c), notwithstanding that such
additional Indebtedness would fall within the definition of "Refinancing
Indebtedness";
(v) With respect to Citicasters, Guarantees of obligations
under existing Investments in The Theme Park Partnership, an Australian
partnership, up to an aggregate amount not exceeding 4,033,125 Dollars
(Australian);
(vi) Indebtedness with respect to Interest Rate or Currency
Protection Agreements; and
Annex - 31
<PAGE>
(vii) Indebtedness not otherwise permitted to be Incurred
pursuant to clauses (i) through (vi) above which, together with any other
outstanding Indebtedness Incurred pursuant to this clause (vii), has an
aggregate principal amount not in excess of $25,000,000 at any one time
outstanding (plus Obligations for related payments for early termination,
interest, fees, expenses and indemnities and other similar amounts payable
thereunder or in connection therewith).
* * *
ARTICLE VI
DEFAULTS AND REMEDIES
SECTION 6.1. EVENTS OF DEFAULT
(a) Each of the following constitutes an "Event of Default":
(i) default for 30 days in the payment when due of interest on any Citicasters
Securities (whether or not prohibited by the subordination provisions of this
Indenture); (ii) default in the payment when due, whether at maturity,upon
acceleration, redemption or otherwise, of principal on any Citicasters
Securities (whether or not prohibited by the subordination provisions of this
Indenture); (iii) failure by Citicasters for 30 days after receipt of notice
from the Trustee or Holders of at least 25% of the principal amount of the
outstanding Citicasters Securities to comply with any other provisions of this
Indenture or any Citicasters Securities; (iv) default under any mortgage,
indenture or instrument under which there may be Incurred or by which there may
be secured or evidenced any Indebtedness for money borrowed by Citicasters or
any of its Subsidiaries (or the payment of which is guaranteed by Citicasters or
any of its Subsidiaries) whether such Indebtedness now exists, or is created
after the Issue Date if (A) such default results in the acceleration of such
Indebtedness prior to its express maturity or shall constitute a default in the
payment of such Indebtedness at final maturity of such Indebtedness, and (B) the
principal amount of any such Indebtedness that has been accelerated or not paid
at maturity, when added to the aggregate principal amount of all other such
Indebtedness that has been accelerated or not paid at maturity, exceeds
$10,000,000; (v) failure by Citicasters or any of its Significant Subsidiaries
to pay final judgments, the uninsured portion of which exceeds
Annex - 32
<PAGE>
$10,000,000, which judgments are not paid, discharged, bonded or stayed for a
period of 60 days after the date of entry thereof, (vi) if under any
Bankruptcy Law, (A) Citicasters or any Significant Subsidiary commences a
voluntary case, consents to the entry of an order for relief against it in an
involuntary case, consents to the appointment of a Custodian of it or for all
or substantially all of its property, or makes a general assignment for the
benefit of its creditors, or (B) a court of competent jurisdiction enters an
order or decree, and such order or decree remains unstated and in effect for
60 days, that is for relief against Citicasters or any Significant Subsidiary
in an involuntary case, appoints a Custodian of Citicasters or any
Significant Subsidiary, or orders the liquidation of Citicasters or any
Significant Subsidiary; and (vii) any of the Applicable Documents shall
cease, for any reason, to be in full force and effect in any material
respect, except as a result of an amendment, waiver or termination thereof as
contemplated or permitted hereby or Citicasters shall so assert in writing.
Annex - 33
<PAGE>
EXHIBIT 5.1
[GRAYDON, HEAD & RITCHEY LETTERHEAD]
December 12, 1996
Jacor Communications, Inc.
1300 PNC Center
201 East Fifth Street
Cincinnati, Ohio 45202
Re: Offering of $150,000,000 Aggregate Principal Amount of
Senior Subordinated Notes due 2006 by Jacor Communications
Company Pursuant to Registration Statement on Form S-3,
File No. 333-16469, Filed with the Securities and
Exchange Commission
----------------------------------------------------------
Ladies and Gentlemen:
We have acted as counsel to Jacor Communications, Inc. ("Company"), a
Delaware corporation, Jacor Communications Company, a Florida corporation and
wholly-owned subsidiary of the Company ("JCC") and the Subsidiary Guarantors
(as defined in the Registration Statement) in connection with the offering by
JCC of its $150,000,000 Aggregate Principal Amount Senior Subordinated Notes
due 2006 (the "Notes"), as fully and unconditionally guaranteed by the
Company and the Subsidiary Guarantors on a senior subordinated basis (the
"Guarantees"), all of which Notes are being sold by JCC as set forth on the
Form S-3 Registration Statement, File No. 333-16469, as amended, as filed by
JCC, the Company and the Subsidiary Guarantors with the Securities and
Exchange Commission.
As counsel for the Company, JCC and the Subsidiary Guarantors we have
made such legal and factual examinations and inquiries as we deem advisable
for the purpose of rendering this opinion. In addition, we have examined such
documents and materials, including the Company's Certificate of
Incorporation, as amended, the Company's Bylaws, as amended, JCC's Articles
of Incorporation, JCC's Bylaws, the Subsidiary Guarantors' Articles or
Certificates of Incorporation, the Subsidiary Guarantors' Bylaws or Codes of
Regulations, and other corporate records of the Company, JCC and the
Subsidiary Guarantors, as we have deemed necessary for the purpose of this
opinion.
On the basis of the foregoing, we express the following opinions:
(i) the Notes, when authenticated in accordance with the terms of the
indenture (the "Indenture") to be entered into among JCC, the Company,
the Subsidiary Guarantors and The Bank of New York, as trustee, a copy of which
is filed as an exhibit to
<PAGE>
Jacor Communications, Inc.
December 12, 1996
Page 2
the Registration Statement, and delivered and paid for as contemplated by the
Registration Statement, will constitute a valid and binding obligation of
JCC, enforceable against JCC in accordance with its terms and entitled to the
benefits of the Indenture, subject to applicable bankruptcy, insolvency,
fraudulent conveyance, reorganization, moratorium and similar laws affecting
creditors' rights and remedies generally and to general principles of equity
(regardless of whether enforcement is sought in a proceeding at law or in
equity) and except to the extent that a waiver of rights under any usury laws
may be unenforceable; and
(ii) the Guarantees, when issued by the Company and the Subsidiary
Guarantors upon the authentication and delivery of the Notes, will constitute
a valid and binding obligation of the Company and the Subsidiary Guarantors,
enforceable against the Company and the Subsidiary Guarantors in accordance
with their terms, subject to applicable bankruptcy, insolvency, fraudulent
conveyance, reorganization, moratorium and similar laws affecting creditors'
rights and remedies generally and to general principles of equity (regardless
of whether enforcement is sought in a proceeding at law or in equity) and
except to the extent that a waiver of rights under any usury laws may be
unenforceable.
We hereby consent to the filing of this opinion as part of the
above-referenced Registration Statement and amendments thereto and to the
reference to our firm in both the preliminary and final Prospectus under the
caption "Legal Matters."
Very truly yours,
GRAYDON, HEAD & RITCHEY
By: /s/ Richard G. Schmalzl
___________________________________
Richard G. Schmalzl
<PAGE>
EXHIBIT 23.1
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the incorporation by reference in this registration statement
of Jacor Communications, Inc. on Form S-3 (File No. 333-16469) of our report
dated February 12, 1996, except for Note 14, as to which the date is March 13,
1996, on our audits of the consolidated financial statements of Jacor
Communications, Inc. as of December 31, 1995 and 1994 and for each of the three
years in the period ended December 31, 1995. We also consent to the reference to
our firm under the caption "Experts."
COOPERS & LYBRAND L.L.P.
Cincinnati, Ohio
December 11, 1996
<PAGE>
EXHIBIT 23.2
CONSENT OF INDEPENDENT AUDITORS
We consent to the reference to our firm under the caption "Experts" in
Amendment No. 2 to the Registration Statement (Form S-3, Registration No.
333-16469) and related Prospectus of Jacor Communications, Inc. for the
registration of $150.0 million of its % Senior Subordinated Notes due 2006
and to the incorporation by reference of our report dated February 23, 1996,
with respect to the consolidated financial statements of Citicasters Inc.
included in its Annual Report (Form 10-K) for the year ended December 31, 1995,
filed with the Securities and Exchange Commission.
ERNST & YOUNG LLP
Cincinnati, Ohio
December 11, 1996
<PAGE>
EXHIBIT 23.3
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in the Prospectus
constituting part of this Registration Statement on Form S-3 of Jacor
Communications, Inc. of our report dated March 21, 1996 relating to the
consolidated financial statements of Noble Broadcast Group, Inc. (which report
includes an explanatory paragraph regarding Jacor Communications, Inc.'s
agreement to purchase Noble Broadcast Group, Inc.) which appears on page 3 of
Jacor Communications, Inc.'s Current Report on Form 8-K dated March 6, 1996, as
amended on May 23, 1996. We also consent to the reference to us under the
heading "Experts" in such Prospectus.
PRICE WATERHOUSE LLP
San Diego, California
December 11, 1996
<PAGE>
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that John W. Alexander hereby
constitutes and appoints R. Christopher Weber and Jon M. Berry, or either of
them, as his true and lawful attorneys-in-fact and agents, with full power of
substitution and resubstitution, for him and in his name, place and stead, in
any and all capacities, to sign any or all amendments (including post-effective
amendments) to Registration Statement No. 333-16469 (and to any Registration
Statement filed pursuant to Rule 462 under the Securities Act), and to file the
same, with all exhibits thereto, and all documents in connection therewith, with
the Securities and Exchange Commission, granting unto said attorneys-in-fact and
agents, full power and authority to do and perform each and every act and thing
requisite and necessary to be done in and about the foregoing, as fully as to
all intents and purposes as he might or could do in person, hereby ratifying and
confirming all that said attorneys-in-fact and agents, or any of them, or their
or his substitute or substitutes, may lawfully do or cause to be done by virtue
hereof.
Pursuant to the requirements of the Securities Act of 1933, as amended,
this Power of Attorney has been signed on December 12, 1996 by John W.
Alexander in the capacity and for the entity indicated.
/s/ John W. Alexander
--------------------------------
John W. Alexander
DIRECTOR
of Jacor Communications, Inc.
<PAGE>
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that Marc Lasry hereby constitutes and
appoints R. Christopher Weber and Jon M. Berry, or either of them, as his true
and lawful attorneys-in-fact and agents, with full power of substitution and
resubstitution, for him and in his name, place and stead, in any and all
capacities, to sign any or all amendments (including post-effective amendments)
to Registration Statement No. 333-16469 (and to any Registration Statement filed
pursuant to Rule 462 under the Securities Act), and to file the same, with all
exhibits thereto, and all documents in connection therewith, with the Securities
and Exchange Commission, granting unto said attorneys-in-fact and agents, full
power and authority to do and perform each and every act and thing requisite and
necessary to be done in and about the foregoing, as fully as to all intents and
purposes as he might or could do in person, hereby ratifying and confirming all
that said attorneys-in-fact and agents, or any of them, or their or his
substitute or substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, as amended,
this Power of Attorney has been signed on December 10, 1996 by Marc Lasry in
the capacity and for the entity indicated.
/s/ Marc Lasry
------------------------------------
Marc Lasry
DIRECTOR
of Jacor Communications, Inc.
<PAGE>
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that Randy Michaels hereby constitutes
and appoints R. Christopher Weber and Jon M. Berry, or either of them, as his
true and lawful attorneys-in-fact and agents, with full power of substitution
and resubstitution, for him and in his name, place and stead, in any and all
capacities, to sign any or all amendments (including post-effective amendments)
to Registration Statement No. 333-16469 (and to any Registration Statement filed
pursuant to Rule 462 under the Securities Act), and to file the same, with all
exhibits thereto, and all documents in connection therewith, with the Securities
and Exchange Commission, granting unto said attorneys-in-fact and agents, full
power and authority to do and perform each and every act and thing requisite and
necessary to be done in and about the foregoing, as fully as to all intents and
purposes as he might or could do in person, hereby ratifying and confirming all
that said attorneys-in-fact and agents, or any of them, or their or his
substitute or substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, as amended,
this Power of Attorney has been signed on December 12, 1996 by Randy Michaels
in the capacities and for the entities indicated.
/s/ Randy Michaels
-------------------------------------------
Randy Michaels
PRESIDENT
of the entities set forth on the attached
Schedule 1
and
DIRECTOR
of the entities set forth on the attached
Schedule 2
<PAGE>
SCHEDULE 1
Jacor Broadcasting Corporation
Broadcast Finance, Inc.
Jacor Broadcasting of Florida, Inc.
Jacor Broadcasting of Atlanta, Inc.
Jacor Broadcasting of Colorado, Inc.
Jacor Broadcasting of Lexington, Inc.
Jacor Broadcasting of Knoxville, Inc.
Jacor Broadcasting of Tampa Bay, Inc.
Jacor Cable, Inc.
Georgia Network Equipment, Inc.
Jacor Broadcasting of San Diego, Inc.
Jacor Broadcasting of St. Louis, Inc.
Jacor Broadcasting of Sarasota, Inc.
Jacor Broadcasting of Idaho, Inc.
Inmobiliaria Radial, S.A. de C.V.
Jacor Broadcasting of Iowa, Inc.
Noble Broadcast Group, Inc.
Noble Broadcast of Colorado, Inc.
Noble Broadcast of San Diego, Inc.
Noble Broadcast of St. Louis, Inc.
Noble Broadcast of Toledo, Inc.
Nova Marketing Group, Inc.
Noble Broadcast Licenses, Inc.
Noble Broadcast Holdings, Inc.
Sports Radio Broadcasting, Inc.
Nobro, S.C.
Sports Radio, Inc.
Noble Broadcast Center, Inc.
Citicasters Co.
GACC-N26LB, Inc.
GACC-340, Inc.
Cine Guarantors, Inc.
Great American Television Productions, Inc.
Cine Guarantors II, Inc.
Great American Merchandising Group, Inc.
Taft-TCI Satellite Services, Inc.
Cine Films, Inc.
The Sy Fischer Company Agency, Inc.
Location Productions, Inc.
Location Productions II, Inc.
VTTV Productions
WHOK, Inc.
Cine Mobile Systems Int'l. N.V.
Cine Movil S.A. de C.V.
F.M.I. Pennsylvania, Inc.
Cine Guarantors II, Ltd.
<PAGE>
SCHEDULE 2
Jacor Broadcasting of Florida, Inc.
Inmobiliaria Radial, S.A. de C.V.
Nobro, S.C.
<PAGE>
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that Jon M. Berry hereby constitutes
and appoints R. Christopher Weber as his true and lawful attorney-in-fact and
agent, with full power of substitution and resubstitution, for him and in his
name, place and stead, in any and all capacities, to sign any or all amendments
(including post-effective amendments) to Registration Statement No. 333-16469
(and to any Registration Statement filed pursuant to Rule 462 under the
Securities Act), and to file the same, with all exhibits thereto, and all
documents in connection therewith, with the Securities and Exchange Commission,
granting unto said attorney-in-fact and agent, full power and authority to do
and perform each and every act and thing requisite and necessary to be done in
and about the foregoing, as fully as to all intents and purposes as he might or
could do in person, hereby ratifying and confirming all that said
attorney-in-fact and agent, or his substitute, may lawfully do or cause to be
done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, as amended,
this Power of Attorney has been signed on December 12, 1996 by Jon M. Berry
in the capacities and for the entities indicated.
/s/ Jon M. Berry
------------------------------------------
Jon M. Berry
SENIOR VICE PRESIDENT AND TREASURER
of the entities set forth on the attached
Schedule 1,
SECRETARY
of the entities set forth on the attached
Schedule 2
and
DIRECTOR
of the entities set forth on the attached
Schedule 3
<PAGE>
SCHEDULE 1
Jacor Broadcasting Corporation
Broadcast Finance, Inc.
Jacor Broadcasting of Florida, Inc.
Jacor Broadcasting of Atlanta, Inc.
Jacor Broadcasting of Colorado, Inc.
Jacor Broadcasting of Lexington, Inc.
Jacor Broadcasting of Knoxville, Inc.
Jacor Broadcasting of Tampa Bay, Inc.
Jacor Cable, Inc.
Georgia Network Equipment, Inc.
Jacor Broadcasting of San Diego, Inc.
Jacor Broadcasting of St. Louis, Inc.
Jacor Broadcasting of Sarasota, Inc.
Jacor Broadcasting of Idaho, Inc.
Jacor Broadcasting of Iowa, Inc.
Noble Broadcast Group, Inc.
Noble Broadcast of Colorado, Inc.
Noble Broadcast of San Diego, Inc.
Noble Broadcast of St. Louis, Inc.
Noble Broadcast of Toledo, Inc.
Nova Marketing Group, Inc.
Noble Broadcast Licenses, Inc.
Noble Broadcast Holdings, Inc.
Sports Radio Broadcasting, Inc.
Sports Radio, Inc.
Noble Broadcast Center, Inc.
Citicasters Co.
GACC-N26LB, Inc.
GACC-340, Inc.
Cine Guarantors, Inc.
Great American Television Productions, Inc.
Cine Guarantors II, Inc.
Great American Merchandising Group, Inc.
Taft-TCI Satellite Services, Inc.
Cine Films, Inc.
The Sy Fischer Company Agency, Inc.
Location Productions, Inc.
Location Productions II, Inc.
VTTV Productions
WHOK, Inc.
Cine Mobile Systems Int'l. N.V.
Cine Movil S.A. de C.V.
F.M.I. Pennsylvania, Inc.
Cine Guarantors II, Ltd.
<PAGE>
SCHEDULE 2
Jacor Broadcasting Corporation
Broadcast Finance, Inc.
Jacor Broadcasting of Florida, Inc.
Jacor Broadcasting of Atlanta, Inc.
Jacor Broadcasting of Colorado, Inc.
Jacor Broadcasting of Lexington, Inc.
Jacor Broadcasting of Knoxville, Inc.
Jacor Broadcasting of Tampa Bay, Inc.
Jacor Cable, Inc.
Georgia Network Equipment, Inc.
Jacor Broadcasting of San Diego, Inc.
Jacor Broadcasting of St. Louis, Inc.
Jacor Broadcasting of Sarasota, Inc.
Jacor Broadcasting of Idaho, Inc.
Inmobiliaria Radial, S.A. de C.V.
Jacor Broadcasting of Iowa, Inc.
Noble Broadcast Group, Inc.
Noble Broadcast of Colorado, Inc.
Noble Broadcast of San Diego, Inc.
Noble Broadcast of St. Louis, Inc.
Noble Broadcast of Toledo, Inc.
Nova Marketing Group, Inc.
Noble Broadcast Licenses, Inc.
Noble Broadcast Holdings, Inc.
Sports Radio Broadcasting, Inc.
Nobro, S.C.
Sports Radio, Inc.
Noble Broadcast Center, Inc.
Citicasters Co.
GACC-N26LB, Inc.
GACC-340, Inc.
Cine Guarantors, Inc.
Great American Television Productions, Inc.
Cine Guarantors II, Inc.
Great American Merchandising Group, Inc.
Taft-TCI Satellite Services, Inc.
Cine Films, Inc.
The Sy Fischer Company Agency, Inc.
Location Productions, Inc.
Location Productions II, Inc.
VTTV Productions
WHOK, Inc.
Cine Mobile Systems Int'l. N.V.
Cine Movil S.A. de C.V.
F.M.I. Pennsylvania, Inc.
Cine Guarantors II, Ltd.
<PAGE>
SCHEDULE 3
Jacor Broadcasting Corporation
Broadcast Finance, Inc.
Jacor Broadcasting of Florida, Inc.
Jacor Broadcasting of Atlanta, Inc.
Jacor Broadcasting of Colorado, Inc.
Jacor Broadcasting of Lexington, Inc.
Jacor Broadcasting of Knoxville, Inc.
Jacor Broadcasting of Tampa Bay, Inc.
Jacor Cable, Inc.
Georgia Network Equipment, Inc.
Jacor Broadcasting of San Diego, Inc.
Jacor Broadcasting of St. Louis, Inc.
Jacor Broadcasting of Idaho, Inc.
Inmobiliaria Radial, S.A. de C.V.
Noble Broadcast Group, Inc.
Noble Broadcast of Colorado, Inc.
Noble Broadcast of San Diego, Inc.
Noble Broadcast of St. Louis, Inc.
Noble Broadcast of Toledo, Inc.
Nova Marketing Group, Inc.
Noble Broadcast Licenses, Inc.
Noble Broadcast Holdings, Inc.
Sports Radio Broadcasting, Inc.
Nobro, S.C.
Sports Radio, Inc.
Noble Broadcast Center, Inc.
Citicasters Co.
GACC-N26LB, Inc.
GACC-340, Inc.
Cine Guarantors, Inc.
Great American Television Productions, Inc.
Cine Guarantors II, Inc.
Great American Merchandising Group, Inc.
Taft-TCI Satellite Services, Inc.
Cine Films, Inc.
The Sy Fischer Company Agency, Inc.
Location Productions, Inc.
Location Productions II, Inc.
VTTV Productions
WHOK, Inc.
Cine Mobile Systems Int'l. N.V.
Cine Movil S.A. de C.V.
F.M.I. Pennsylvania, Inc.
Cine Guarantors II, Ltd.
<PAGE>
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that R. Christopher Weber hereby
constitutes and appoints Jon M. Berry as his true and lawful attorney-in-fact
and agent, with full power of substitution and resubstitution, for him and in
his name, place and stead, in any and all capacities, to sign any or all
amendments (including post-effective amendments) to Registration Statement
No. 333-16469 (and to any Registration Statement filed pursuant to Rule 462
under the Securities Act), and to file the same, with all exhibits thereto,
and all documents in connection therewith, with the Securities and Exchange
Commission, granting unto said attorney-in-fact and agent, full power and
authority to do and perform each and every act and thing requisite and
necessary to be done in and about the foregoing, as fully as to all intents
and purposes as he might or could do in person, hereby ratifying and
confirming all that said attorney-in-fact and agent, or his substitute, may
lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, as amended,
this Power of Attorney has been signed on December 12, 1996 by R. Christopher
Weber in the capacities and for the entities indicated.
/s/ R. Christopher Weber
---------------------------------------------
R. Christopher Weber
SENIOR VICE PRESIDENT AND ASSISTANT
SECRETARY
of the entities set forth on the attached
Schedule 1,
TREASURER
of the entities set forth on the attached
Schedule 2
and
DIRECTOR
of the entities set forth on the attached
Schedule 3
<PAGE>
SCHEDULE 1
Jacor Broadcasting Corporation
Broadcast Finance, Inc.
Jacor Broadcasting of Florida, Inc.
Jacor Broadcasting of Atlanta, Inc.
Jacor Broadcasting of Colorado, Inc.
Jacor Broadcasting of Lexington, Inc.
Jacor Broadcasting of Knoxville, Inc.
Jacor Broadcasting of Tampa Bay, Inc.
Jacor Cable, Inc.
Georgia Network Equipment, Inc.
Jacor Broadcasting of San Diego, Inc.
Jacor Broadcasting of St. Louis, Inc.
Jacor Broadcasting of Sarasota, Inc.
Jacor Broadcasting of Idaho, Inc.
Jacor Broadcasting of Iowa, Inc.
Noble Broadcast Group, Inc.
Noble Broadcast of Colorado, Inc.
Noble Broadcast of San Diego, Inc.
Noble Broadcast of St. Louis, Inc.
Noble Broadcast of Toledo, Inc.
Nova Marketing Group, Inc.
Noble Broadcast Licenses, Inc.
Noble Broadcast Holdings, Inc.
Sports Radio Broadcasting, Inc.
Sports Radio, Inc.
Noble Broadcast Center, Inc.
Citicasters Co.
GACC-N26LB, Inc.
GACC-340, Inc.
Cine Guarantors, Inc.
Great American Television Productions, Inc.
Cine Guarantors II, Inc.
Great American Merchandising Group, Inc.
Taft-TCI Satellite Services, Inc.
Cine Films, Inc.
The Sy Fischer Company Agency, Inc.
Location Productions, Inc.
Location Productions II, Inc.
VTTV Productions
WHOK, Inc.
Cine Mobile Systems Int'l. N.V.
Cine Movil S.A. de C.V.
F.M.I. Pennsylvania, Inc.
Cine Guarantors II, Ltd.
<PAGE>
SCHEDULE 2
Inmobiliaria Radial, S.A. de C.V.
Nobro, S.C.
<PAGE>
SCHEDULE 3
Jacor Broadcasting Corporation
Broadcast Finance, Inc.
Jacor Broadcasting of San Diego, Inc.
Jacor Broadcasting of St. Louis, Inc.
Jacor Broadcasting of Sarasota, Inc.
Inmobiliaria Radial, S.A. de C.V.
Jacor Broadcasting of Iowa, Inc.
Nobro, S.C.
Citicasters Co.
WHOK, Inc.
<PAGE>
THIS CONFORMING PAPER FORMAT DOCUMENT IS BEING SUBMITTED PURSUANT
TO RULE 901(D) OF REGULATION S-T
================================================================================
FORM T-1
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939 OF A
CORPORATION DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE
ELIGIBILITY OF A TRUSTEE PURSUANT TO
SECTION 305(b)(2) |__|
----------------------
THE BANK OF NEW YORK
(Exact name of trustee as specified in its charter)
New York 13-5160382
(State of incorporation (I.R.S. employer
if not a U.S. national bank) identification no.)
48 Wall Street, New York, N.Y. 10286
(Address of principal executive offices) (Zip code)
----------------------
JACOR COMMUNICATIONS COMPANY
(Exact name of obligor as specified in its charter)
Florida 59-2054850
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification no.)
1300 PNC Center
201 East Fifth Street
Cincinnati, Ohio 45202
(Address of principal executive offices) (Zip code)
----------------------
JACOR COMMUNICATIONS, INC.
(Exact name of obligor as specified in its charter)
Delaware 31-0978313
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification no.)
1300 PNC Center
201 East Fifth Street
Cincinnati, Ohio 45202
(Address of principal executive offices) (Zip code)
----------------------
<PAGE>
TABLE OF ADDITIONAL REGISTRANTS
State or Other I.R.S.
Jurisdiction of Employer
Incorporation Identification
Name or Organization Number
---- --------------- ------
JACOR BROADCASTING CORPORATION Ohio 31-1363232
BROADCAST FINANCE, INC. Ohio 31-1390698
JACOR BROADCASTING OF FLORIDA, Florida 31-1102108
INC.
JACOR BROADCASTING OF ATLANTA, Georgia 31-1133504
INC.
JACOR BROADCASTING OF COLORADO, Colorado 31-1212116
INC.
JACOR BROADCASTING OF LEXINGTON, Kentucky 31-1466604
INC.
JACOR BROADCASTING OF KNOXVILLE, Delaware 31-1125479
INC.
JACOR BROADCASTING OF TAMPA Florida 31-1234979
BAY, INC.
JACOR CABLE, INC. Kentucky 31-1273897
GEORGIA NETWORK EQUIPMENT, INC. Georgia 31-0317907
JACOR BROADCASTING OF SAN DIEGO, Delaware 31-1440011
INC.
JACOR BROADCASTING OF ST. LOUIS, Missouri 43-1735433
INC.
JACOR BROADCASTING OF SARASOTA, Florida 31-1468564
INC.
JACOR BROADCASTING OF IDAHO, Delaware Pending
INC.
INMOBILIARIA RADIAL, S.A. de Mexico Not Applicable
C.V.
JACOR BROADCASTING OF IOWA, Delaware Pending
INC.
NOBLE BROADCAST GROUP, INC. Delaware 33-0215206
NOBLE BROADCAST OF COLORADO, California 33-0250362
INC.
NOBLE BROADCAST OF SAN DIEGO, California 95-3230874
INC.
NOBLE BROADCAST OF ST. LOUIS, Delaware 33-0294761
INC.
NOBLE BROADCAST OF TOLEDO, INC. California 30-0200806
NOVA MARKETING GROUP, INC. California 33-0578898
NOBLE BROADCAST LICENSES, INC. California 34-1794221
NOBLE BROADCAST HOLDINGS, INC. Delaware 33-0492627
SPORTS RADIO BROADCASTING, INC. California 33-0525378
NOBRO, S.C. Mexico Not Applicable
SPORTS RADIO, INC. California 95-4350343
NOBLE BROADCAST CENTER, INC. California 33-0189045
CITICASTERS CO. Ohio 31-1081002
GACC-N26LB, INC. Delaware 31-1231527
GACC-340, INC. Delaware 31-1251968
CINE GUARANTORS, INC. California 95-2677644
GREAT AMERICAN TELEVISION California 31-1019819
PRODUCTIONS, INC.
CINE GUARANTORS II, INC. California 95-2960196
-2-
<PAGE>
GREAT AMERICAN MERCHANDISING New York 13-2658721
GROUP, INC.
TAFT-TCI SATELLITE SERVICES, Colorado 84-0863016
INC.
CINE FILMS, INC. California 95-2945526
THE SY FISCHER COMPANY AGENCY, California 95-2792659
INC.
LOCATION PRODUCTIONS, INC. California 95-2556702
LOCATION PRODUCTIONS II, INC. California 95-2945537
VTTV PRODUCTIONS California 31-0924795
F.M.I PENNSYLVANIA, INC. Pennsylvania 59-1648738
WHOK, INC. Ohio 34-1092716
CINE MOBILE SYSTEMS INT'L. N.V. Antille Not Applicable
CINE MOVIL S.A. de C.V. Mexico Not Applicable
CINE GUARANTORS II, LTD. Canada Not Applicable
The principal executive office of each of the above registrants is 1300 PNC
Center, 201 East Fifth Street, Cincinnati, Ohio, 45202.
______________________
% Senior Subordinated Notes due 2006
(Title of the indenture securities)
===============================================================================
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<PAGE>
1. General information. Furnish the following information as to the Trustee:
(a) Name and address of each examining or supervising authority to which
it is subject.
- --------------------------------------------------------------------------------
Name Address
- --------------------------------------------------------------------------------
Superintendent of Banks of the State of 2 Rector Street, New York,
New York N.Y. 10006, and Albany, N.Y.
12203
Federal Reserve Bank of New York 33 Liberty Plaza, New York,
N.Y. 10045
Federal Deposit Insurance Corporation Washington, D.C. 20429
New York Clearing House Association New York, New York 10004
(b) Whether it is authorized to exercise corporate trust powers.
Yes.
2. Affiliations with Obligor.
If the obligor is an affiliate of the trustee, describe each such
affiliation.
None. (See Note on page 5.)
16. List of Exhibits.
Exhibits identified in parentheses below, on file with the Commission, are
incorporated herein by reference as an exhibit hereto, pursuant to Rule
7a-29 under the Trust Indenture Act of 1939 (the "Act") and Rule 24 of the
Commission's Rules of Practice.
1. A copy of the Organization Certificate of The Bank of New York
(formerly Irving Trust Company) as now in effect, which contains the
authority to commence business and a grant of powers to exercise
corporate trust powers. (Exhibit 1 to Amendment No. 1 to Form T-1
filed with Registration Statement No. 33-6215, Exhibits 1a and 1b to
Form T-1 filed with Registration Statement No. 33-21672 and Exhibit 1
to Form T-1 filed with Registration Statement No. 33-29637.)
4. A copy of the existing By-laws of the Trustee. (Exhibit 4 to Form T-1
filed with Registration Statement No. 33-31019.)
6. The consent of the Trustee required by Section 321(b) of the Act.
(Exhibit 6 to Form T-1 filed with Registration Statement
No. 33-44051.)
7. A copy of the latest report of condition of the Trustee published
pursuant to law or to the requirements of its supervising or examining
authority.
-4-
<PAGE>
NOTE
Inasmuch as this Form T-1 is filed prior to the ascertainment by the
Trustee of all facts on which to base a responsive answer to Item 2, the
answer to said Item is based on incomplete information.
Item 2 may, however, be considered as correct unless amended by an
amendment to this Form T-1.
-5-
<PAGE>
SIGNATURE
Pursuant to the requirements of the Act, the Trustee, The Bank of New
York, a corporation organized and existing under the laws of the State of New
York, has duly caused this statement of eligibility to be signed on its
behalf by the undersigned, thereunto duly authorized, all in The City of New
York, and State of New York, on the 11th day of December, 1996.
THE BANK OF NEW YORK
By: /s/ Walter N. Gitlin
----------------------------
Name: Walter N. Gitlin
Title: Vice President
-6-
<PAGE>
Consolidated Report of Condition of
THE BANK OF NEW YORK
of 48 Wall Street, New York, N.Y. 10286
And Foreign and Domestic Subsidiaries,
a member of the Federal Reserve System, at the close of business
June 30, 1996, published in accordance with a call made by the
Federal Reserve Bank of this District pursuant to the provisions
of the Federal Reserve Act.
Dollar Amounts
ASSETS in Thousands
Cash and balances due from depos-
itory institutions:
Noninterest-bearing balances and
currency and coin .................. $ 3,650,068
Interest-bearing balances .......... 738,260
Securities:
Held-to-maturity securities ........ 784,969
Available-for-sale securities ...... 2,033,407
Federal funds sold and securities
purchased under agreements to
resell in domestic offices of the bank:
Federal funds sold ................... 3,699,232
Securities purchased under
agreements to resell ................. 20,000
Loans and lease financing
receivables:
Loans and leases, net of unearned
income .................28,109,045
LESS: Allowance for loan and
lease losses ..............586,658
LESS: Allocated transfer risk
reserve........................429
Loans and leases, net of unearned
income, allowance, and reserve 27,521,958
Assets held in trading accounts ...... 678,844
Premises and fixed assets (including
capitalized leases) ................ 608,217
Other real estate owned .............. 50,599
Investments in unconsolidated
subsidiaries and associated
companies .......................... 235,670
Customers' liability to this bank on
acceptances outstanding ............ 904,948
Intangible assets .................... 450,230
Other assets ......................... 1,299,464
-----------
Total assets ......................... $42,675,866
-----------
-----------
LIABILITIES
Deposits:
In domestic offices ................ $19,223,050
Noninterest-bearing .......7,675,758
Interest-bearing .........11,547,292
In foreign offices, Edge and
Agreement subsidiaries, and IBFs ... 11,527,685
Noninterest-bearing ..........48,502
Interest-bearing .........11,479,183
Federal funds purchased and secu-
rities sold under agreements to re-
purchase in domestic offices of
the bank and of its Edge and
Agreement subsidiaries, and in
IBFs:
Federal funds purchased ............ 1,498,351
Securities sold under agreements
to repurchase .................... 126,974
Demand notes issued to the U.S.
Treasury ........................... 231,865
Trading liabilities .................. 479,390
Other borrowed money:
With original maturity of one year
or less .......................... 2,521,578
With original maturity of more than
one year ......................... 20,780
Bank's liability on acceptances exe-
cuted and outstanding .............. 905,850
Subordinated notes and debentures .... 1,020,400
Other liabilities .................... 1,543,657
Total liabilities .................... 39,099,580
EQUITY CAPITAL
Common stock ........................ 942,284
Surplus ............................. 525,666
Undivided profits and capital
reserves .......................... 2,124,231
Net unrealized holding gains
(losses) on available-for-sale
securities ........................ ( 8,063)
Cumulative foreign currency transla-
tion adjustments .................. ( 7,832)
-----------
Total equity capital ................ 3,576,286
-----------
-----------
Total liabilities and equity
capital ........................... $42,675,866
-----------
-----------
I, Robert E. Keilman, Senior Vice President and Comptroller of
the above-named bank do hereby declare that this Report of
Condition has been prepared in conformance with the instructions
issued by the Board of Governors of the Federal Reserve System and
is true to the best of my knowledge and belief.
Robert E. Keilman
We, the undersigned directors, attest to the correctness of
this Report of Condition and declare that it has been examined by
us and to the best of our knowledge and belief has been prepared
in conformance with the instructions issued by the Board of
Governors of the Federal Reserve System and is true and correct.
}
J. Carter Bacot }
Alan R. Griffith } Directors
Thomas A. Renyi }
}
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