<PAGE>
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON MAY 30, 1996
REGISTRATION NO. 333-02475
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
---------------------
AMENDMENT NO. 2
TO
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
---------------------
<TABLE>
<S> <C>
JACOR COMMUNICATIONS, INC. JCAC, INC.
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER) (EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
</TABLE>
<TABLE>
<S> <C> <C> <C>
--------------------------
--------------------------
OHIO 31-0978313 FLORIDA 31-1461588
(STATE OR OTHER (I.R.S. (STATE OR OTHER (I.R.S.
JURISDICTION OF EMPLOYER JURISDICTION OF EMPLOYER
INCORPORATION OR IDENTIFICATION INCORPORATION OR IDENTIFICATION
ORGANIZATION) NO.) ORGANIZATION) NO.)
</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
REGISTRANT'S 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>
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RICHARD G. SCHMALZL, ESQ. GREGG A. NOEL,
GRAYDON, HEAD & RITCHEY ESQ.
1900 FIFTH THIRD CENTER SKADDEN, ARPS,
CINCINNATI, OHIO 45202 SLATE, MEAGHER &
(513) 621-6464 FLOM
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.
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. / /
If any of the securities being registered on this Form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or interest
reinvestment plans, check the following box. / /
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. / /
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. / /
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. / /
--------------------------
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT 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.
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
<PAGE>
SIGNATURES
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, AS AMENDED (THE
"SECURITIES ACT"), 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. 333-02475 TO BE
SIGNED ON ITS BEHALF BY THE UNDERSIGNED, THEREUNTO DULY AUTHORIZED IN THE CITY
OF CINCINNATI, STATE OF OHIO ON THIS 30TH DAY OF MAY 1996.
JACOR COMMUNICATIONS, INC.
BY: /s/ JON M. BERRY
-----------------------------------
Jon M. Berry
SENIOR VICE PRESIDENT AND
TREASURER
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, AS AMENDED, THIS
AMENDMENT NO. 2 TO REGISTRATION STATEMENT NO. 333-02475 HAS BEEN SIGNED ON MAY
30, 1996 BY THE FOLLOWING PERSONS IN THE CAPACITIES INDICATED.
Principal Executive Officer: Principal Financial and Accounting
Officer:
/s/ RANDY /s/ R. CHRISTOPHER WEBER*
MICHAELS*
- ----------------------------------- -----------------------------------
Randy Michaels R. Christopher Weber
PRESIDENT, CO-CHIEF OPERATING SENIOR VICE PRESIDENT, CHIEF
OFFICER AND DIRECTOR FINANCIAL OFFICER AND SECRETARY
/s/ ROBERT L. /s/ ROD F. DAMMEYER*
LAWRENCE*
- ----------------------------------- -----------------------------------
Robert L. Lawrence Rod F. Dammeyer
CO-CHIEF OPERATING OFFICER AND DIRECTOR
DIRECTOR
/s/ SHELI Z. /s/ F. PHILIP HANDY*
ROSENBERG*
- ----------------------------------- -----------------------------------
Sheli Z. Rosenberg F. Philip Handy
BOARD CHAIR AND DIRECTOR DIRECTOR
/s/ JOHN W. /s/ MARC LASRY*
ALEXANDER*
- ----------------------------------- -----------------------------------
John W. Alexander Marc Lasry
DIRECTOR DIRECTOR
*By: Jon M. Berry as attorney-in-fact,
pursuant to a power of attorney
previously filed.
II-3
<PAGE>
SIGNATURES
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, AS AMENDED (THE
"SECURITIES ACT"), 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 REGISTRATION STATEMENT FILE NO. 333-02475, AND AMENDMENT NO. 2
THERETO, TO BE SIGNED ON ITS BEHALF BY THE UNDERSIGNED, THEREUNTO DULY
AUTHORIZED IN THE CITY OF CINCINNATI, STATE OF OHIO ON THIS 30TH DAY OF MAY
1996.
JCAC, INC.
By: /s/ JON M. BERRY
-----------------------------------
Jon M. Berry
SENIOR VICE PRESIDENT, TREASURER
AND SECRETARY
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, THAT EACH PERSON WHOSE SIGNATURE APPEARS
BELOW HEREBY CONSTITUTES AND APPOINTS R. CHRISTOPHER WEBER AND JON M. BERRY, OR
EITHER OF THEM, AS SUCH SIGNATORY'S TRUE AND LAWFUL ATTORNEYS-IN-FACT AND
AGENTS, WITH FULL POWER OF SUBSTITUTION AND RESUBSTITUTION, FOR SUCH SIGNATORY
AND IN SUCH SIGNATORY'S NAME, PLACE AND STEAD, IN ANY AND ALL CAPACITIES, TO
SIGN ANY OR ALL AMENDMENTS (INCLUDING POST-EFFECTIVE AMENDMENTS) TO THIS
REGISTRATION STATEMENT (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 SUCH SIGNATORY 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
REGISTRATION STATEMENT, AND AMENDMENT NO. 2 THERETO, HAS BEEN SIGNED ON MAY 30,
1996 BY THE FOLLOWING PERSONS IN THE CAPACITIES INDICATED.
Principal Executive Officer: Principal Financial and Accounting
Officer:
/s/ RANDY /s/ R. CHRISTOPHER WEBER*
MICHAELS*
- ----------------------------------- -----------------------------------
Randy Michaels R. Christopher Weber
PRESIDENT SENIOR VICE PRESIDENT, ASSISTANT
SECRETARY AND DIRECTOR
/s/ JON M.
BERRY
- -----------------------------------
Jon M. Berry
DIRECTOR
*By: Jon M. Berry as attorney-in-fact,
pursuant to a power of attorney
previously filed.
II-4
<PAGE>
INDEX TO EXHIBITS
<TABLE>
<CAPTION>
SEQUENTIALLY
EXHIBIT NUMBERED
NUMBER DESCRIPTION OF EXHIBIT PAGE
- ---------- --------------------------------------------------------------------------- ---------
1.1 Form of Underwriting Agreement.
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2.1 Agreement and Plan of Merger dated February 12, 1996 (the "Merger *
Agreement") among Citicasters Inc., Jacor Communications, Inc. (the
"Registrant") and JCAC, Inc. ("JCAC") Incorporated by reference to
Exhibit 2.1 to the Registrant's Current Report on Form 8-K dated February
27, 1996.
2.2 Stockholders Agreement dated February 12, 1996 among the Registrant, 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 2.2 to the Registrant's Current Report on Form 8-K dated February
27, 1996.
2.3 Jacor Shareholders Agreement dated February 12, 1996 among Citicasters Inc. *
and Zell/ Chilmark Fund L.P. Incorporated by reference to Exhibit 2.3 to
the Registrant's Current Report on Form 8-K dated February 27, 1996.
2.4 Escrow Agreement among the Registrant, Citicasters Inc. and PNC Bank dated **
March 13, 1996.
2.5 Irrevocable Letter of Credit, Banque Paribas, Chicago Branch dated March **
13, 1996.
2.6 Letter of Credit and Reimbursement Agreement by and between the Registrant **
and Banque Paribas dated March 13, 1996.
2.7 Form of Employment Continuation Agreement (executive officer form) between *
Citicasters Inc. and [executive officer] (referred to as exhibit
6.6(c)(i) in Merger Agreement). Incorporated by reference to Exhibit 2.5
to the Registrant's Current Report on Form 8-K dated February 27, 1996.
2.8 Form of Employment Continuation Agreement (management form) between *
Citicasters Inc. and [manager] (referred to as exhibit 6.6(c)(ii) in
Merger Agreement). Incorporated by reference to Exhibit 2.6 to the
Registrant's Current Report on Form 8-K dated February 27, 1996.
2.9 Form of Warrant Agreement between the Registrant, and KeyCorp Shareholder *
Services, Inc., as warrant agent (referred to as exhibit 3.1 in Merger
Agreement). Incorporated by reference to Exhibit 2.7 to the Registrant's
Current Report on Form 8-K dated February 27, 1996.
2.10 Stock Purchase and Stock Warrant Redemption Agreement dated as of February *
20, 1996 among the Registrant, 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 the Registrant's Current
Report on Form 8-K dated March 6, 1996, as amended.
2.11 Investment Agreement dated as of February 20, 1996 among the Registrant, *
Noble and the Class B Shareholders (omitting exhibits not deemed
material). Incorporated by reference to Exhibit 2.2 to the Registrant's
Current Report on Form 8-K dated March 6, 1996, as amended.
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
SEQUENTIALLY
EXHIBIT NUMBERED
NUMBER DESCRIPTION OF EXHIBIT PAGE
- ---------- --------------------------------------------------------------------------- ---------
2.12 Warrant to Purchase Class A Common Stock of Noble issued to the Registrant. *
Incorporated by reference to Exhibit 2.3 to the Registrant's Current
Report on Form 8-K dated March 6, 1996, as amended.
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2.13 Indemnification and Escrow Agreement dated as of February 20, 1996 among *
the Registrant, Noble, the Class A Shareholders, the Class B
Shareholders, the Warrant Sellers, The Fifth Third Bank and Conseco, Inc.
Incorporated by reference to Exhibit 2.4 to the Registrant's Current
Report on Form 8-K dated March 6, 1996, as amended.
2.14 Stock Escrow and Security Agreement dated as of February 20, 1996 among the *
Registrant, Noble, the Class B Shareholders, Philip H. Banks, as trustee,
and The Fifth Third Bank, as escrow agent (omitting exhibits not deemed
material or filed separately in executed form). Incorporated by reference
to Exhibit 2.5 to the Registrant's Current Report on Form 8-K dated March
6, 1996, as amended.
2.15 Trust Agreement dated as of February 20, 1996 among the Class B *
Shareholders and their spouses, and Philip H. Banks, as trustee.
Incorporated by reference to Exhibit 2.6 to the Registrant's Current
Report on Form 8-K dated March 6, 1996, as amended.
2.16 Registration Rights Agreement dated as of February 20, 1996 between the *
Registrant and Noble. Incorporated by reference to Exhibit 2.7 to the
Registrant's Current Report on Form 8-K dated March 6, 1996, as amended.
2.17 Asset Purchase Agreement dated as of February 20, 1996 among Chesapeake *
Securities, Inc. (a Registrant subsidiary), Noble Broadcast of San Diego,
Inc., Sports Radio, Inc. and Noble Broadcast Center, Inc. Incorporated by
reference to Exhibit 2.7 to the Registrant's Current Report on Form 8-K
dated March 6, 1996, as amended.
2.18 Jacor--CMM Limited Partnership Agreement of Limited Partnership dated *
January 1, 1994, by and between Jacor Cable, Inc., Up Your Ratings, Inc.
and the Registrant. Incorporated by reference to Exhibit 2.2 of the
Registrant's Annual Report on Form 10-K dated March 30, 1995.
2.19 Amendment No. 1 to Jacor--CMM Limited Partnership Agreement of Limited *
Partnership dated July 22, 1994, by and between Jacor Cable, Inc., Up
Your Ratings, Inc. and the Registrant to amend the Jacor--CMM Limited
Partnership Agreement of Limited Partnership dated January 1, 1994.
Incorporated by reference to Exhibit 2.3 of the Registrant's Annual
Report on Form 10-K dated March 30, 1995.
2.20 Amendment No. 2 to Jacor--CMM Limited Partnership Agreement of Limited *
Partnership with an effective date as of January 1, 1994, by and between
Jacor Cable, Inc., Up Your Ratings, Inc. and the Registrant to amend the
Jacor--CMM Limited Partnership Agreement of Limited Partnership dated
January 1, 1994. Incorporated by reference to Exhibit 2.4 of the
Registrant's Annual Report on Form 10-K dated March 30, 1995.
3.1 Articles of Incorporation of JCAC, Inc. ***
3.2 By-Laws of JCAC, Inc. ***
4.1 Specimen Common Stock Certificate. Incorporated by reference to Exhibit 2.1 *
to the Registrant's Form 8-A, dated January 12, 1993.
4.2 Credit Agreement dated as of February 20, 1996, among the Registrant, the *
Banks named therein, Banque Paribas, as Agent, and The First National
Bank of Boston and Bank of America Illinois, as Co-Agents (omitting
exhibits not deemed material or filed separately in executed form).
Incorporated by reference to Exhibit 4.1 to the Registrant's Current
Report on Form 8-K dated March 6, 1996, as amended.
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
SEQUENTIALLY
EXHIBIT NUMBERED
NUMBER DESCRIPTION OF EXHIBIT PAGE
- ---------- --------------------------------------------------------------------------- ---------
4.3 Revolving A Note in favor of Banque Paribas by the Registrant dated as of *
February 20, 1996. (1) Incorporated by reference to Exhibit 4.2 to the
Registrant's Current Report on Form 8-K dated March 6, 1996, as amended.
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4.4 Revolving B Note in favor of Banque Paribas by the Registrant dated as of *
February 20, 1996. (1) Incorporated by reference to Exhibit 4.3 to the
Registrant's Current Report on Form 8-K dated March 6, 1996, as amended.
4.5 Security Agreement dated as of February 20, 1996 among the Registrant, *
Banque Paribas, as Agent, for itself, the Co-Agents and the Banks.
Incorporated by reference to Exhibit 4.4 to the Registrant's Current
Report on Form 8-K dated March 6, 1996, as amended.
4.6 Pledge Agreement dated as of February 20, 1996 among the Registrant, Banque *
Paribas, as Agent, for itself, the Co-Agents and the Banks. Incorporated
by reference to Exhibit 4.5 to the Registrant's Current Report on Form
8-K dated March 6, 1996, as amended.
4.7 Trademark Security Agreement dated as of February 20, 1996 among the *
Registrant, Banque Paribas, as Agent, for itself, the Co-Agents and the
Banks. Incorporated by reference to Exhibit 4.6 to the Registrant's
Current Report on Form 8-K dated March 6, 1996, as amended.
4.8 Subsidiary Guaranty dated as of February 20, 1996, by various subsidiaries *
of the Registrant in favor of Banque Paribas, as Agent, for itself, the
Co-Agents and the Banks. (2) Incorporated by reference to Exhibit 4.7 to
the Registrant's Current Report on Form 8-K dated March 6, 1996, as
amended.
4.9 Subsidiary Security Agreement dated as of February 20, 1996, by various *
Company subsidiaries in favor of Banque Paribas, as Agent, for itself,
the Co-Agents and the Banks (omitting exhibits not deemed material). (2)
Incorporated by reference to Exhibit 4.8 to the Registrant's Current
Report on Form 8-K dated March 6, 1996, as amended.
4.10 Primary Pledge Agreement dated as of February 20, 1996 among Chesapeake *
Securities, Inc. (a subsidiary of the Registrant), Banque Paribas as
Agent, for itself, the Co-Agents and the Banks. (3) Incorporated by
reference to Exhibit 4.9 to the Registrant's Current Report on Form 8-K
dated March 6, 1996, as amended.
4.11 Secondary Pledge Agreement dated as of February 20, 1996 between the *
Registrant and Chesapeake Securities, Inc. (a subsidiary of the
Registrant). (4) Incorporated by reference to Exhibit 4.10 to the
Registrant's Current Report on Form 8-K dated March 6, 1996, as amended.
4.12 Subsidiary Trademark Agreement dated as of February 20, 1996 among Jacor *
Broadcasting of Tampa Bay, Inc., Jacor Broadcasting of Atlanta, Inc.,
Jacor Broadcasting Corporation and Jacor Broadcasting of Florida, Inc. in
favor of Banque Paribas as Agent, for itself, the Co-Agents and the
Banks. Incorporated by reference to Exhibit 4.11 to the Registrant's
Current Report on Form 8-K dated March 6, 1996, as amended.
4.13 Deed to Secure Debt and Security Agreement, dated as of February 20, 1996, *
by and between Jacor Broadcasting of Atlanta, Inc. and Banque Paribas, as
Agent. Incorporated by reference to Exhibit 4.12 to the Registrant's
Current Report on Form 8-K dated March 6, 1996, as amended.
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
SEQUENTIALLY
EXHIBIT NUMBERED
NUMBER DESCRIPTION OF EXHIBIT PAGE
- ---------- --------------------------------------------------------------------------- ---------
4.14 Deed of Trust and Security Agreement, dated as of February 20, 1996, *
between Jacor Broadcasting of Colorado, Inc. and the Public Trustee in
the County of Weld and the State of Colorado. (6) Incorporated by
reference to Exhibit 4.13 to the Registrant's Current Report on Form 8-K
dated March 6, 1996, as amended.
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4.15 Open-End Mortgage, Assignment of Rents and Leases and Security Agreement, *
dated February 20, 1996, by and between Jacor Broadcasting Corporation
and Banque Paribas, as Agent. (7) Incorporated by reference to Exhibit
4.14 to the Registrant's Current Report on Form 8-K dated March 6, 1996,
as amended.
4.16 Open-End Mortgage, Assignment of Rents and Leases and Security Agreement *
dated as of February 20, 1996, by Jacor Broadcasting of Tampa Bay, Inc.
in favor of Banque Paribas, as Agent. (8) Incorporated by reference to
Exhibit 4.15 to the Registrant's Current Report on Form 8-K dated March
6, 1996, as amended.
4.17 Deed of Trust and Security Agreement, Assignment of Leases, Rents and *
Profits, Financing Statement and Fixture Filing made by Chesapeake
Securities, Inc. for the Benefit of Banque Paribas as Agent dated as of
February 20, 1996. Incorporated by reference to Exhibit 4.16 to the
Registrant's Current Report on Form 8-K dated March 6, 1996, as amended.
4.18 Second Consolidated Amended and Restated Intercompany Demand Note issued to *
the Company by various subsidiaries of the Registrant dated as of
February 20, 1996. (5) Incorporated by reference to Exhibit 4.17 to the
Registrant's Current Report on Form 8-K dated March 6, 1996, as amended.
4.19 Second Amended and Restated Intercompany Security Agreement and Financing *
Statement dated as of February 20, 1996 by various subsidiaries of the
Registrant in favor of the Company (omitting exhibits not deemed
material). (2) Incorporated by reference to Exhibit 4.18 to the
Registrant's Current Report on Form 8-K dated March 6, 1996, as amended.
4.20(+) Restricted Stock Agreement dated as of June 23, 1993 by and between the *
Registrant and Rod F. Dammeyer. (9) Incorporated by reference to Exhibit
4.2 to the Registrant's Quarterly Report on Form 10-Q dated August 13,
1993.
4.21(+) Stock Option Agreement dated as of June 23, 1993 between the Registrant and *
Rod F. Dammeyer covering 10,000 shares of the Registrant's common stock.
(10) Incorporated by reference to Exhibit 4.3 to the Registrant's
Quarterly Report on Form 10-Q dated August 13, 1993.
4.22(+) Stock Option Agreement dated as of December 15, 1994 between the Registrant *
and Rod F. Dammeyer covering 5,000 shares of the Registrant's common
stock. (11) Incorporated by reference to Exhibit 4.23 to the Registrant's
Quarterly Report on Form 10-Q dated August 13, 1993.
4.23 Form of Indenture for Notes.
5.1 Form of Opinion of Graydon, Head & Ritchey.
10.1 Credit Agreement dated as of February 20, 1996 among Broadcast Finance,
Inc. (a Regis-trant subsidiary), Noble Broadcast Group, Inc. and Noble
Broadcast Holdings, Inc. (omitting exhibits not deemed material or filed
separately in executed form). Incorporated by reference to Exhibit 10.1
to the Registrant's Current Report on Form 8-K dated March 6, 1996, as
amended.
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
SEQUENTIALLY
EXHIBIT NUMBERED
NUMBER DESCRIPTION OF EXHIBIT PAGE
- ---------- --------------------------------------------------------------------------- ---------
10.2 Subsidiary Guaranty dated as of February 20, 1996 in favor of Broadcast *
Finance, Inc. by Noble Broadcast Center, Inc., Noble Broadcast of
Colorado, Inc., Noble Broadcast of St. Louis, Inc., Noble Broadcast of
Toledo, Inc., Nova Marketing Group, Inc., Noble Broadcast Licenses, Inc.,
Noble Broadcast of San Diego, Inc., Sports Radio, Inc. and Sports Radio
Broadcasting, Inc. Incorporated by reference to Exhibit 10.2 to the
Registrant's Current Report on Form 8-K dated March 6, 1996, as amended.
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10.3 Term Note in the amount of $40,000,000 by Noble Broadcast Holdings, Inc. in *
favor of Broadcast Finance, Inc. dated as of February 20, 1996.
Incorporated by reference to Exhibit 10.3 to the Registrant's Current
Report on Form 8-K dated March 6, 1996, as amended.
10.4 Revolving Note in the amount of $1,000,000 by Noble Broadcast Holdings, *
Inc. in favor of Broadcast Finance, Inc. dated as of February 20, 1996.
Incorporated by reference to Exhibit 10.4 to the Registrant's Current
Report on Form 8-K dated March 6, 1996, as amended.
10.5(+) Jacor Communications, Inc. 1993 Stock Option Plan. Incorporated by *
reference to Exhibit 99 to the Quarterly Report on Form 10-Q dated August
13, 1993.
10.6(+) Jacor Communications, Inc. 1995 Employee Stock Purchase Plan. Incorporated *
by reference to Exhibit 4.01 to the Registration Statement on Form S-8,
filed on November 9, 1994.
(12) Computation of Ratios 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 the Registrant signing this ***
Registration Statement.
24.2 Powers of Attorney of directors and officers of JCAC signing this ***
Registration Statement, included on the signature pages hereto.
25 Statement of Eligiblity of First Trust of Illinois, National Association,
as Trustee
27.1 Financial Data Schedule of the Registrant. Incorporated by reference to the *
Registrants Annual Report on Form 10-K for the year ended December 31,
1995, as amended.
</TABLE>
- ------------------------
<TABLE>
<CAPTION>
(*) Incorporated by reference.
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(**) To be filed by Amendment.
(***) Previously filed.
(+) Management Contracts and Compensatory Arrangements.
(1) Identical Notes were issued by the Company in favor of the following Banks:
The First National Bank of Boston
Bank of America Illinois
Bank of Montreal
The Bank of New York
The Bank of Nova Scotia
CIBC, Inc.
First Bank
Society National Bank
Union Bank
The aggregate principal amount of Revolving A Notes is $190 million. The aggregate
principal amount of the Revolving B Notes is $110 million.
</TABLE>
<PAGE>
<TABLE>
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(2) Executed by the following subsidiaries of the Registrant:
Jacor Broadcasting of Florida, Inc.
Jacor Broadcasting of Atlanta, Inc.
Jacor Broadcasting of Knoxville, Inc.
Jacor Broadcasting of Colorado, Inc.
Jacor Broadcasting of Tampa Bay, Inc.
Jacor Broadcasting of St. Louis, Inc.
Jacor Cable, Inc.
Georgia Network Equipment, Inc.
Jacor Broadcasting Corporation
Broadcast Finance, Inc.
Chesapeake Securities, Inc.
OIA Broadcasting L.L.C.
(3) An identical Primary Pledge Agreement was executed by Jacor Broadcasting of Atlanta,
Inc.
(4) An identical Secondary Pledge Agreement was executed by Jacor Broadcasting of Atlanta,
Inc.
(5) Such notes were issued by the subsidiaries of the Registrant identified in (2) above.
(6) A substantially similar document was entered into by Jacor Broadcasting of Colorado,
Inc. relating to real property located in Douglas County, Colorado.
(7) A substantially similar document was entered into by Jacor Broadcasting Corporation
relating to real property located in Hamilton County, Ohio.
(8) Substantially similar documents were entered into by Jacor of Tampa Bay, Inc. relating
to real property located in Manatee County, Florida and by Jacor Broadcasting of
Florida relating to real property located in Duval County, Florida and St. Johns
County, Florida.
(9) Substantially identical documents were entered into with John W. Alexander, F. Philip
Handy and Marc Lasry covering 20,000, 30,000 and 10,000 shares of common stock,
respectively.
(10) Identical documents were entered into with John W. Alexander, F. Philip Handy and Marc
Lasry.
(11) Identical documents were entered into with John W. Alexander, F. Philip Handy, Marc
Lasry and Sheli Z. Rosenberg.
</TABLE>
<PAGE>
JCAC, INC.
__% Senior Subordinated Notes Due 2006
Payment of Principal and Interest Unconditionally
Guaranteed by Jacor Communications, Inc.
UNDERWRITING AGREEMENT
[ ], 1996
DONALDSON, LUFKIN & JENRETTE
SECURITIES CORPORATION
MERRILL LYNCH, PIERCE, FENNER & SMITH
INCORPORATED
BA SECURITIES, INC.
CHASE SECURITIES INC.
c/o Donaldson, Lufkin & Jenrette
Securities Corporation
140 Broadway
New York, New York 10005
Ladies and Gentlemen:
Subject to the terms and conditions herein contained, JCAC, Inc., a
Florida corporation ("JCAC") and a wholly owned subsidiary of Jacor
Communications, Inc. (the "Company"), proposes to issue and sell to Donaldson,
Lufkin & Jenrette Securities Corporation ("DLJ"), Merrill Lynch, Pierce, Fenner
& Smith Incorporated, BA Securities, Inc. and Chase Securities Inc.
(collectively, the "Underwriters") an aggregate of $100,000,000 principal amount
of its __% Senior Subordinated Notes due 2006 (the "Securities"), which notes
are irrevocably and unconditionally guaranteed by the Company. The Securities
are to be issued pursuant to the provisions of an indenture to be dated as of
______, 1996 (the "Indenture") by and among the Company, JCAC and First Trust of
Illinois, National Association, as trustee (the "Trustee").
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For purposes of this Agreement, the term "Securities" means the
Securities together with the guarantee (the "Guarantee") thereof by the Company.
The Securities are being issued and sold in connection with (i) the
merger (the "Merger") of Citicasters Inc., a Florida corporation
("Citicasters"), with and into a wholly owned subsidiary of the Company, and
(ii) the acquisition of all of the equity interests of Noble Broadcasting Group,
Inc., a Delaware corporation ("Noble"), by the Company (the "Noble Acquisition"
and collectively, with the Merger, the "Pending Acquisitions").
The Merger is being effected pursuant to an Agreement and Plan of
Merger, dated as of February 12, 1996 (the "Merger Agreement"), by and among the
Company, JCAC and Citicasters. Pursuant to the Merger Agreement, the Company
will acquire all of the issued and outstanding capital stock of Citicasters.
The Noble Acquisition is being effected pursuant to the Stock Purchase
and Stock Warrant Redemption Agreement dated as of February 20, 1996 by and
among the Company, 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 (the "Noble Acquisition
Agreement"). Pursuant to the Noble Acquisition Agreement, the Company will
acquire all of the issued and outstanding equity interests of Noble.
Prior to or concurrently with the issuance and sale of the Securities,
the Company will (i) enter into a new credit facility with availability of
$600,000,000 with Chemical Bank, as administrative agent, Banque Paribas, as
documentation agent, Bank of America, Illinois, as syndication agent and certain
lenders named therein (together with the documents and agreements contemplated
thereby, the "New Credit Facility"); (ii) issue and sell liquid yield option
notes in the aggregate principal amount of maturity of $225.0 million (excluding
$33.7 million aggregate principal amount subject to an over-allotment option)
due _________, 2011 (the "LYONs"); and (iii) issue and sell 11,250,000 shares of
common stock, no par value per share, of the Company (the "Common Stock")
(excluding 1,687,500 additional shares of
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Common Stock subject to an overallotment option). This Underwriting Agreement,
the Indenture, the Merger Agreement and all related agreements and documents,
the Noble Acquisition Agreement and all related agreements and documents, the
New Credit Facility and all related agreements and documents, and all documents
and agreements related to each of the LYONs offering and the Common Stock
offering are collectively referred to herein as the "Transaction Documents."
1. REGISTRATION STATEMENT AND PROSPECTUS. The Company and JCAC 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. 333-02475),
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, 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, whether or not
filed
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with the Commission pursuant to Rule 424(b) under the Act, 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, JCAC agrees to issue and sell to each of the Underwriters,
and each of the Underwriters agrees, severally and not jointly, to purchase from
JCAC, 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 third or
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 COMPANY AND JCAC. The Company and JCAC, as
applicable, agree with each of you that:
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(a) The Company and JCAC 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 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 Company and JCAC 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 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
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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 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 Company and JCAC 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 Company and
JCAC 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
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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 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 Company consents 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 Company and JCAC 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 Company and
JCAC 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 (pro-
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vided, that the Company and JCAC 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
Company and JCAC will 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 Company and JCAC 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 Company and JCAC 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
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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) 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) the listing of the Securities on the Nasdaq Stock Market's
National Market (the "NASDAQ National Market"), (viii) the rating of the
LYONs and the Securities by investment rating agencies, (ix) any "qualified
independent underwriter" as required by Schedule E of the Bylaws of the
NASD (including fees and disbursements of counsel for such qualified
independent underwriter), (x) 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
(xi) the performance by the Company and JCAC 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 JCAC 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 Company and JCAC will use their best efforts to do and
perform all things required to be done and performed under this Agreement
by them
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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 Section 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 a 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 Merger or the Noble Acquisition, there will
be no transactions entered into by the Company or any of its subsidiaries
(each a "Subsidiary" and, collectively, the "Subsidiaries"), Citicasters or
Noble which are material with respect to the Company or any of the
Subsidiaries, Citicasters or Noble, 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 Company and JCAC 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
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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 behalf of any Underwriter through DLJ
expressly for use therein. The Company and JCAC 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 Company and JCAC 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 Company and JCAC 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, Citicasters and Noble
have been duly organized, is validly existing as a corporation in good
standing
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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 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 (i) the Company and the Subsidiaries taken as a whole;
(ii) Citicasters and its subsidiaries (collectively referred to herein as
"Citicasters") taken as a whole; and (iii) Noble and its subsidiaries
(collectively referred to herein as "Noble") taken as a whole; individually
(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, each of Citicasters and Noble,
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 New 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
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acquire any shares of the capital stock of, or other ownership interest in,
any Subsidiary.
(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; the capital stock of the Company, including
the Common Stock, conforms in all material respects to all statements
relating thereto in the Prospectus and the Registration Statement; and the
issuance of the Securities by the Company will not be subject to preemptive
or other similar rights.
(g) None of the Company and any of the Subsidiaries, Citicasters or
Noble, are 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, Citicasters or Noble 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, Citicasters or Noble is subject, except, in the case of
Citicasters or Noble, as could not have a Material Adverse Effect.
(h) This Agreement and the New Credit Facility have been duly
authorized and validly executed and delivered by the Company and constitute
a valid and legally binding agreement of the Company, enforceable against
the Company in accordance with its terms (assuming, in the case of this
Agreement, the due execution and delivery hereof by you).
(i) The Indenture has been duly authorized by the Company and JCAC
and, when duly executed and delivered in accordance with its terms, will be
a valid and legally binding agreement of the Company and JCAC, enforceable
against the Company and JCAC 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
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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 Company and JCAC, 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 Company, JCAC, Citicasters and Noble, as applicable, and the
consummation of the transactions contemplated by the Transaction Documents
will not (1) conflict with or result in a breach or violation of any of the
respective charters or bylaws of the Company or any of the Subsidiaries,
Citicasters or Noble, or any of the terms or provisions of, except, in the
case of Citicasters or Noble, 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 (except for Liens pursuant to the New Credit
Facility) 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, Citicasters
or Noble, 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, Citicasters or
Noble, is or may be subject, except, in the case of Citicasters or Noble,
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, Citicasters or Noble, 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, Citicasters or Noble, or any of their respective properties,
except, in the case of Citicasters or Noble, as could not have a Material
Adverse Effect.
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(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, Citicasters or Noble, 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 transactions
contemplated thereby, 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.
(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 Com-
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mission 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 nor any of the Subsidiaries, Citicasters
or Noble are 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 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, Citicasters or Noble, after due inquiry, (A) none of the
Company and any of the Subsidiaries, Citicasters or Noble, have 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 and any of the
Subsidiaries, Citicasters or Noble, now or in the
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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 and any of the
Subsidiaries, Citicasters or Noble or against any person or entity whose
liability for any Environmental Claim the Company and any of the
Subsidiaries, Citicasters or Noble has retained or assumed either
contractually or by operation of law. In the ordinary course of its
business, each of the Company and the Subsidiaries, Citicasters and Noble
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, Citicasters and Noble have
reasonably concluded that such associated costs and liabilities could not
have a Material Adverse Effect.
(n) None of the Company nor any of the Subsidiaries, Citicasters or
Noble 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,
Citicasters or Noble 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, Citicasters or Noble or, to the best knowledge of
the Company, threatened
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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,
Citicasters or Noble or, to the best knowledge of the Company, threatened
against any of them, (ii) no significant strike, labor dispute, slowdown or
stoppage pending against the Company or any of its Subsidiaries,
Citicasters or Noble or, to the best knowledge of the Company, threatened
against the Company or any of the Subsidiaries, Citicasters or Noble 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, Citicasters or Noble 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 and each of its Subsidiaries, Citicasters and Noble
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 New Credit Facility, (ii) Liens
on general office equipment which are not material to the Company's
operations and (iii) Liens pursuant to the bank credit agreement entered
into by Citicasters in October 1994. All leases to which the Company or
the Subsidiaries, Citicasters or Noble are a party are valid and binding
and no default has occurred or is continuing thereunder and the Company and
each of its Subsidiaries, Citicasters and Noble 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, Citicasters and Noble.
(p) The respective firm of accountants that has certified or shall
certify the applicable consolidated financial statements and supporting
schedules of the Company, Citicasters and Noble filed or
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to be filed with the Commission as part of the Registration Statement and
the Prospectus are independent public accountants with respect to the
Company and the Subsidiaries, 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 and the
Subsidiaries 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, 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 and any of the Subsidiaries, Citicasters
or Noble have incurred any liabilities or obligations, direct or
contingent, which are material to the Company and the Subsidiaries taken as
a whole, Citicasters or Noble, respectively, 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 properties, business, results of operations, condition (financial or
otherwise), affairs or prospects of the Company and the Subsidiaries taken
as a whole,
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Citicasters or Noble, respectively each individually (a "Material Adverse
Change").
(r) All tax returns required to be filed by the Company and any of
the Subsidiaries, Citicasters and Noble 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 Transaction Documents, 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 and the Subsidiaries, Citicasters and
Noble have 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 Adverse Effect, (ii) all such Authorizations
are valid and in full force and effect, (iii) each of the Company and the
Subsidiaries, Citicasters and Noble are in compliance in all material
respects
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<PAGE>
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, Citicasters or Noble, as applicable, are
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 and the Subsidiaries, Citicasters and Noble
possess 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 and the
Subsidiaries, Citicasters or Noble have received any notice of
infringement of or 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 and the Subsidiaries, Citicasters and Noble 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.
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(x) Each certificate signed by any officer of the Company and
delivered to the Underwriters or counsel for the Underwriters shall be
deemed to be a representation and warranty by the Company to each
Underwriter as to the matters covered thereby.
(y) Each of the Company and the Subsidiaries, Citicasters and Noble
maintain 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 another to purchase any other
securities of the Company.
(aa) Each of the Company and the Subsidiaries, Citicasters and Noble
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 and
any Subsidiary, Citicasters or Noble have 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
22
<PAGE>
outstanding and duly in force on the date hereof and will be outstanding
and duly in force on the Closing Date.
(bb) None of the Company, Citicasters or Noble have, 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,
Citicasters or Noble, 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 none of the
Company, Citicasters or Noble have participated, directly or indirectly, in
any boycotts or other similar practices in contravention of law affecting
any of its actual or potential customers.
(cc) Except as disclosed in the Prospectus, none of the Company,
Citicasters or Noble own 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"), and none of the proceeds of the sale of the
Securities will be used, directly or indirectly, for the purpose of
purchasing or carrying any margin security, for the purpose of reducing or
retiring any indebtedness which was originally incurred to purchase or
carry any margin security or for any other purpose which might cause any of
the Securities to be considered a "purpose credit" within the meanings of
Regulation G, T, U or X of the Federal Reserve Board.
(dd) Each person described in the Prospectus as a person to whom the
Company or any of the Subsidiaries 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.
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<PAGE>
(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 and its Subsidiaries, Citicasters and Noble
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, or
Noble or its subsidiaries or Citicasters or its subsidiaries, 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 Company's, Subsidiaries or Noble or its
subsidiaries or Citicasters or its subsidiaries 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.
(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
Subsidiary's, Noble's or its subsidiaries', Citicasters' or its
subsidiaries' or, to the knowledge of the Company, any Licensees' FCC
licenses or which could reasonably be expected to
24
<PAGE>
result in any material adverse effect upon any of the Company's,
Subsidiaries', Noble or its subsidiaries, Citicasters or its subsidiaries
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 parties to the Merger Agreement and the Noble Acquisition
Agreement 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 Citicasters and Noble pursuant to the Merger
Agreement and the Noble Acquisition Agreement 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) For purposes of considering the application of the local
ownership rules contained in the Telecommunications Act of 1996, the Denver
market contains more than 45 commercial stations.
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<PAGE>
(kk) The Company, JCAC, Citicasters and Noble (each, a "Merger Party"
and, collectively, the "Merger 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 Merger Parties, to the
extent each is a party thereto, and each constitutes a valid and legally
binding agreement of the Merger Party enforceable against each Merger Party
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 Merger Parties, to the extent each is a party
thereto, or the consummation by each of the Merger Parties of any of the
transactions contemplated thereby, except such as may be required and have
been obtained, or upon effectiveness of the Registration Statement, will
have been obtained, under the Act, the Exchange Acts, 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 Merger 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 (ii) 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.
(ll) The execution, delivery and performance by the Merger Parties,
to the extent each is a party thereto, of each of the Transaction
Documents, and the consummation by the respective Merger Parties of
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<PAGE>
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 Merger 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 Merger 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 Merger Party, or any of their
respective properties or assets, which violation, conflict, breach or
default would have a Material Adverse Effect.
(mm) The Merger and the Noble Acquisition have been duly authorized
by the relevant Merger 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; the Transaction Documents conform and the Merger and the Noble
Acquisition will conform in all material respects to the descriptions
thereof in the Prospectus.
(nn) 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 Docu-
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ments) no event or condition which would constitute a default or an event
of default (in each case as defined in the New Credit Facility, the LYONs
or the Sub Notes, respectively) under the New Credit Facility, the LYONs or
the Sub Notes, respectively, 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 New Credit Facility, the LYONs or the Sub Notes,
respectively, which would result in a Material Adverse Effect or materially
adversely effect the ability of each of the Company, Citicasters or Noble
to consummate the transactions contemplated by the Transaction Documents.
(oo) 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 Citicasters or Noble.
(pp) The shares of Common Stock to be issued pursuant to the Merger
Agreement, will not 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.
(qq) The LYONs have received a rating of B3 from Moody's Investors
Service ("Moody's"); and the Securities have received a rating of B2 from
Moody's.
(rr) 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 Company agrees 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
28
<PAGE>
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
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
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<PAGE>
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 Company,
such Underwriter (or the Underwriter controlled by such controlling person)
shall promptly notify the Company in writing (provided, that the failure to
give such notice shall not relieve the Company of its 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 Company (regardless of whether
it is ultimately determined that an Indemnified Party is not entitled to
indemnification hereunder). The Company 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 Company 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 Company
agrees 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
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<PAGE>
at any time an Indemnified Person shall have requested the Company to
reimburse the Indemnified Person for fees and expenses of counsel as
contemplated by the second sentence of this paragraph, the Company agrees
that it shall be liable for any settlement of any proceeding effected
without its 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 Company shall not have reimbursed the Indemnified
Person in accordance with such request prior to the date of such
settlement. The Company 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 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 Company, its directors, its 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 Company,
and the officers, directors, partners, employees, representatives and
agents of each such person, to the same extent as the foregoing indemnity
from the Company 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 expens-
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<PAGE>
es (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 Company, 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 Company 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 Prospectus. The relative fault
of the Company 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 Company 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 Company set forth herein shall be in
addition to any liability or obligation the Company may otherwise have to
any Indemnified Person.
The Company 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,
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<PAGE>
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 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 Company 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
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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 5(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 have been issued
as of the Closing Date which would prevent the issuance of the Securities,
the LYONs, or the Common Stock or the consummation of the transactions
contemplated by the Transaction Documents.
(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 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, Citicasters or Noble
and (iii) the Company and the Subsidiaries taken as a whole, Citicasters or
Noble shall have no liability or obligation, direct or contingent, that is
material to the Company and the Subsidiaries taken as a whole, Citicasters
or Noble, 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
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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 8.
(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, to the
effect that:
(i) (A) the Company and each of the Subsidiaries
is a duly organized and validly existing corporation in good standing
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 Company has full power and authority to
execute, deliver and perform its obligations under the Transaction
Documents;
(iii) the Transaction Documents have been duly
authorized, executed and delivered by the Company;
(iv) the authorized, issued and outstanding
capital stock of the Company is as set forth in the Prospectus under
"Capitalization" and conforms in all material respects
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to the descriptions thereof contained in the Registration Statement
and the Prospectus;
(v) 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 New Credit Facility;
(vi) 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;
(vii) 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;
(viii) neither the consummation of the transactions
contemplated by this Agreement nor the sale, issuance, execution or
delivery of the Securities, the LYONs or the Common Stock will violate
Regulation G, T, U or X of the Board of Governors of the Federal
Reserve System;
(ix) 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 Securities
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will constitute valid and legally binding obligations of the Company
and JCAC, enforceable against the Company and JCAC 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;
(x) the Indenture, assuming due authorization,
execution and delivery thereof by the Trustee, constitutes a valid and
legally binding agreement of the Company and JCAC, enforceable against
the Company and JCAC 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 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;
(xi) the Securities and the Indenture conform in
all material respects to the descriptions thereof contained in the
Prospectus;
(xii) when authenticated in accordance with the
terms of the Indenture and delivered to and paid for in accordance
with the terms of the agreement, the LYONs will constitute valid and
legally binding obligations of the Company, enforceable against the
Company 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
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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;
(xiii) 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;
(xiv) 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;
(xv) 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 effectiveness 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;
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(xvi) 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 Transaction Documents, 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 Company, Citicasters or Noble of the
transactions contemplated by the applicable Transaction Documents; 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 clauses (B), (C) and (D) could reasonably be
expected to have a Material Adverse Effect;
(xvii) at the time it became effective and on the
Closing Date, the Regis-
39
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tration Statement complied as to form in all material respects with
the Act;
(xviii) to the knowledge of such counsel, none of the
Company and the Subsidiaries, Citicasters or Noble have 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,
Citicasters and Noble does not, to the knowledge of such counsel,
infringe on the rights of any person;
(xix) 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
and any of the Subsidiaries, Citicasters and Noble 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;
(xx) the Company and the Subsidiaries, Citicasters
and Noble to the extent each is a party thereto, have full power and
authority to execute, deliver and perform the Transaction Documents;
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(xxi) the Transaction Documents; conform in all
material respects to the descriptions thereof contained in the
Prospectus;
(xxii) the Transaction Documents, assuming the
authorization, execution and delivery thereof by the parties other
than the Company, JCAC, Citicasters or Noble, 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
(xxiii) 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
41
<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 under the
caption "Business -- Federal Regulation of Radio Broadcasting" that
describe provisions of the Communications Act, and regulations, rules
and policies of the FCC, are accurate descriptions in all material
respects;
(ii) the execution, delivery and performance of
the obligations as of the date hereof of the Company and each of its
Subsidiaries, Citicasters and Noble under the Transaction Documents
will not violate any law, rule, regulation or order of the FCC or the
terms of any license;
(iii) no application, filing or registration with,
or approval, authorization, consent, adjudication or order of the FCC
which has not been made or obtained is required to be made or obtained
by the Company or any Subsidiary, Citicasters and Noble in connection
with the execution, delivery and performance of the obligations as of
the date hereof of the Company and each of its Subsidiaries,
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Citicasters and Noble under the Transaction Documents;
(iv) schedule A to the opinion shall set forth a
complete list of the authorizations issued by the FCC to the Company
and its Subsidiaries (for purposes of the 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 of the radio stations listed on Schedule B (for
purposes of the opinion only, the "Jacor Stations"). Except for the
pending applications noted on Schedule A thereto, the Licenses are in
full force and effect (and the time within which any administrative or
judicial appeal, reconsideration, rehearing or other review 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 duly and validly
held by the relevant Subsidiary, and are valid until the dates set
forth in Schedule A thereto. Except as indicated on Schedule C to
such opinion, the Licenses are not subject to any conditions other
than those that appear on the Licenses or are customarily imposed by
the FCC on radio stations of the same class and type. To such
counsel's knowledge, each of the Jacor Stations is licensed to operate
with the maximum facilities specified by the License pertaining
thereto;
(v) 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 adversely affect
the business or condition of the Company or any Subsidiary. To such
counsel's knowledge, except as listed on Schedules D and E to such
opinion, the Company and the Subsidiaries are in compliance with the
Licenses and with the provisions of the Communications Act and the
43
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rules and regulations promulgated thereunder, except as would not have
a material adverse effect on the Company. To such counsel's
knowledge, except as listed on Schedule E to such opinion, the Company
and the Subsidiaries have filed with the FCC all material reports,
forms and statements required to be filed by the Company and the
Subsidiaries with the FCC with respect to the Jacor Stations, such
filings are complete and accurate and such filings have been timely;
and
(vi) except that prior FCC approval is required
for a transfer of control, the execution, delivery and performance of
the obligations by the each of the parties under the 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 (other than the one-to-a-market rule), 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 Citicasters and Noble pursuant to
the Transaction Documents (for purposes of the opinion only, the
"Transfer Applications") have been filed with the FCC. To such
counsel's knowledge, there are no circumstances that would cause the
FCC to reject the Transfer Applications.
(4) An opinion (satisfactory to you and your counsel), dated the
Closing Date of Haley Bader & Potts, counsel for Noble with respect to FCC and
related matters to the effect that:
(i) Schedule A to the opinion sets forth a
complete list of the authorizations issued by the FCC to Noble (for
purposes of the opinion only, the "Licenses"). To our knowledge, the
Licenses are the only licenses, permits or authorizations required
44
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under the Communications Act for the operation of the radio stations
listed on Schedule B to such opinion (for purposes of the opinion
only, the "Noble Stations"). Except for the pending applications
noted on Schedule A to the opinion, the Licenses are in full force and
effect (and the time within which any administrative or judicial
appeal, reconsideration, rehearing or other review 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 duly and validly held by the
relevant subsidiary, and are valid until the dates set forth in
Schedule A thereto. Except as indicated on Schedule C to the opinion,
the Licenses are not subject to any conditions other than those that
appear on the Licenses or are customarily imposed by the FCC on radio
stations of the same class and type. To our knowledge, each of the
Noble Stations is licensed to operate with the maximum facilities
specified by the License pertaining thereto;
(ii) except as listed in Schedule D to the
opinion, there is no proceeding or other administrative action pending
or, to such counsel's knowledge, threatened, before the FCC against
Noble, which, if adversely determined, would adversely affect the
business or condition of Noble. To such counsel's knowledge, except
as listed on Schedules D and E to the opinion, Noble is in compliance
with the Licenses and with the provisions of the Communications Act
and the Rules, except as would not have a material adverse effect on
Noble. To such counsel's knowledge, except as listed on Schedule E to
the opinion, Noble has filed with the FCC all material reports, forms
and statements required to be filed by Noble with the FCC with respect
to the Noble Stations, such filings are complete and accurate and such
filings have been timely; and
(iii) except that prior FCC approval is required
for a transfer of control, the execution, delivery and performance of
the
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<PAGE>
obligations by the each of the parties under the Noble Acquisition
Agreement 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 Noble Stations pursuant to the Noble
Acquisition Agreement (for purposes of the opinion only, the "Transfer
Applications") have been filed with the FCC. To such counsel's
knowledge, there are no circumstances that would cause the FCC to
reject the Transfer Applications.
(5) An opinion (satisfactory to you and your counsel), dated the
Closing Date of ________________, counsel for Citicasters with respect to
FCC and related matters to the effect that:
(i) Schedule A to the opinion sets forth a
complete list of the authorizations issued by the FCC to Citicasters
(for purposes of the opinion only, the "Licenses"). To our knowledge,
the Licenses are the only licenses, permits or authorizations required
under the Communications Act for the operation of the radio stations
listed on Schedule B to the opinion (for purposes of the opinion only,
the "Citicasters Stations"). Except for the pending applications
noted on Schedule A thereto, the Licenses are in full force and effect
(and the time within which any administrative or judicial appeal,
reconsideration, rehearing or other review 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 duly and validly held by the relevant
Subsidiary, and are valid until the dates set forth in Schedule A
there-
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to. Except as indicated on Schedule C to the opinion, the Licenses
are not subject to any conditions other than those that appear on the
Licenses or are customarily imposed by the FCC on radio stations of
the same class and type. To our knowledge, each of the Citicasters
Stations is licensed to operate with the maximum facilities specified
by the License pertaining thereto.
(ii) except as listed in Schedule D to the
opinion, there is no proceeding or other administrative action pending
or, to our knowledge, threatened, before the FCC against Citicasters,
which, if adversely determined, would adversely affect the business or
condition of Citicasters. To such counsel's knowledge, except as
listed on Schedules D and E to the opinion, Citicasters is in
compliance with the Licenses and with the provisions of the
Communications Act and the Rules, except as would not have a material
adverse effect on Citicasters. To such counsel's knowledge, except as
listed on Schedule E to the opinion, Citicasters has filed with the
FCC all material reports, forms and statements required to be filed by
Citicasters with the FCC with respect to the Citicasters Stations,
such filings are complete and accurate and such filings have been
timely; and
(iii) except that prior FCC approval is required
for a transfer of control, the execution, delivery and performance of
the obligations by the each of the parties under the Merger Agreement
is 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 Citicasters Stations pur-
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<PAGE>
suant to the Merger Agreement (for purposes of the opinion only, the
"Transfer Applications") have been filed with the FCC. To such
counsel's knowledge, there are no circumstances that would cause the
FCC to reject the Transfer Applications.
(g) You shall have received an opinion, dated the Closing Date, of
Skadden, Arps, Slate, Meagher & Flom ("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, 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,
Citicasters and Noble, respectively.
(i) 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 8 and in order to evidence the accuracy,
completeness or satisfaction in all material respects of any of the
representations, warranties or conditions herein contained.
(j) Prior to the Closing Date, the Company shall have furnished to
you such further information, certificates and documents as you may
reasonably request.
(k) At the Closing Date, the LYONs shall have been approved for
quotation on the Nasdaq SmallCap Market, subject to notice of issuance.
(l) You shall have received each of the opinions required to be
delivered under any of the other
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Transaction Documents, together with appropriate reliance letters addressed
to the Underwriters.
(m) 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.
(n) Each of the Company, Citicasters and Noble 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 Effective Time of the Merger.
(o) Prior to or concurrently with the purchase and sale of the
Securities hereunder, the Company shall have entered into the New Credit
Facility and satisfied all conditions to borrowing thereunder and you shall
received counterparts, conformed as executed, thereof. The Lenders under
the New Credit Facility shall have indicated to you that all such
conditions have been satisfied and that they are prepared to fund them term
loans in the amount of $_________ and revolving loans in the amount of
$__________ upon consummation of the Merger.
(p) Prior to or concurrently with the purchase and sale of the
Securities hereunder, the Company shall have completed the issuance and
sale of the LYONs and the Common Stock.
(q) Except as is disclosed to the Underwriters in writing, the
representations and warranties of the Company, Citicasters and Noble 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
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<PAGE>
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 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 with respect to which such default exceeds 10% of the total amount of
Securities to be purchased on such date by all Underwriter(s) and arrangements
satisfactory to the other Underwriter(s) and the Company 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 Company, 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 Company 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.
50
<PAGE>
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 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.
51
<PAGE>
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
clause (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 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 5(k) hereof.
10. NOTICES. Notices given pursuant to any provision of this
Agreement shall be addressed as follows: (a) if to the Company, to it at Jacor
Communications, Inc. 1300 PNC Center, 201 East Fifth Street, Cincinnati, OH
45202, Attention: Randy Michaels, President, 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, 140 Broadway, New York, New
York 10005, Attention: Syndicate Department, and, in each case, with a copy to
Skadden, Arps, Slate, Meagher & Flom 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.
52
<PAGE>
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 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.
53
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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.
54
<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:
JCAC, INC.
By:
-----------------------------------
Name:
Title:
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
BA SECURITIES, INC.
CHASE SECURITIES INC.
Acting on behalf of themselves
By: DONALDSON, LUFKIN & JENRETTE
SECURITIES CORPORATION
By:
-----------------------------------
Name:
Title:
55
<PAGE>
SCHEDULE 1
56
<PAGE>
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
JCAC, INC.,
ISSUER,
AND
JACOR COMMUNICATIONS, INC.,
INITIAL GUARANTOR
AND
FIRST TRUST OF ILLINOIS, NATIONAL ASSOCIATION
TRUSTEE
------------------------------
INDENTURE
Dated as of ___________, 1996
------------------------------
$100,000,000
__% Senior Subordinated Notes due 2006
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
<PAGE>
TABLE OF CONTENTS
Page
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ARTICLE I
DEFINITIONS AND INCORPORATION BY REFERENCE . . . . . . . . . . . . . . 1
SECTION 1.1. DEFINITIONS . . . . . . . . . . . . . . . . . . . . . . 1
SECTION 1.2. INCORPORATION BY REFERENCE OF TIA . . . . . . . . . . . 29
SECTION 1.3. RULES OF CONSTRUCTION . . . . . . . . . . . . . . . . . 29
ARTICLE II
THE SECURITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
SECTION 2.1. FORM AND DATING . . . . . . . . . . . . . . . . . . . . 30
SECTION 2.2. EXECUTION AND AUTHENTICATION. . . . . . . . . . . . . . 30
SECTION 2.3. REGISTRAR AND PAYING AGENT. . . . . . . . . . . . . . . 32
SECTION 2.4. PAYING AGENT TO HOLD ASSETS IN TRUST. . . . . . . . . . 33
SECTION 2.5. SECURITYHOLDER LISTS. . . . . . . . . . . . . . . . . . 33
SECTION 2.6. TRANSFER AND EXCHANGE . . . . . . . . . . . . . . . . . 33
SECTION 2.7. REPLACEMENT SECURITIES. . . . . . . . . . . . . . . . . 41
SECTION 2.8. OUTSTANDING SECURITIES. . . . . . . . . . . . . . . . . 42
SECTION 2.9. TREASURY SECURITIES . . . . . . . . . . . . . . . . . . 42
SECTION 2.10. TEMPORARY SECURITIES. . . . . . . . . . . . . . . . . . 43
SECTION 2.11. CANCELLATION. . . . . . . . . . . . . . . . . . . . . . 43
SECTION 2.12. DEFAULTED INTEREST. . . . . . . . . . . . . . . . . . . 43
ARTICLE III
REDEMPTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45
SECTION 3.1. RIGHT OF REDEMPTION . . . . . . . . . . . . . . . . . . 45
SECTION 3.2. NOTICES TO TRUSTEE AND PAYING AGENT . . . . . . . . . . 46
SECTION 3.3. SELECTION OF SECURITIES TO BE REDEEMED. . . . . . . . . 46
SECTION 3.4. NOTICE OF REDEMPTION. . . . . . . . . . . . . . . . . . 47
SECTION 3.5. EFFECT OF NOTICE OF REDEMPTION. . . . . . . . . . . . . 48
SECTION 3.6. DEPOSIT OF REDEMPTION PRICE . . . . . . . . . . . . . . 48
SECTION 3.7. SECURITIES REDEEMED IN PART . . . . . . . . . . . . . . 49
i
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ARTICLE IV
COVENANTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
SECTION 4.1. PAYMENT OF SECURITIES . . . . . . . . . . . . . . . . . 49
SECTION 4.2. MAINTENANCE OF OFFICE OR AGENCY . . . . . . . . . . . . 50
SECTION 4.3. LIMITATION ON RESTRICTED PAYMENTS . . . . . . . . . . . 50
SECTION 4.4. CORPORATE EXISTENCE . . . . . . . . . . . . . . . . . . 52
SECTION 4.5. PAYMENT OF TAXES AND OTHER CLAIMS . . . . . . . . . . . 52
SECTION 4.6 MAINTENANCE OF PROPERTIES AND INSURANCE . . . . . . . . 52
SECTION 4.7. COMPLIANCE CERTIFICATE; NOTICE OF DEFAULT . . . . . . . 53
SECTION 4.8. REPORTS . . . . . . . . . . . . . . . . . . . . . . . . 54
SECTION 4.9. LIMITATION ON STATUS AS INVESTMENT COMPANY. . . . . . . 55
SECTION 4.10. LIMITATION ON TRANSACTIONS WITH AFFILIATES. . . . . . . 55
SECTION 4.11. LIMITATION ON INCURRENCE OF ADDITIONAL INDEBTEDNESS
AND DISQUALIFIED CAPITAL STOCK. . . . . . . . . . . . . 55
SECTION 4.12. LIMITATIONS ON DIVIDENDS AND OTHER PAYMENT
RESTRICTIONS AFFECTING SUBSIDIARIES . . . . . . . . . . 56
SECTION 4.13. LIMITATIONS ON LAYERING INDEBTEDNESS; LIENS . . . . . . 57
SECTION 4.14. LIMITATION ON SALE OF ASSETS AND SUBSIDIARY STOCK . . . 58
SECTION 4.15 LIMITATION ON ASSET SWAPS . . . . . . . . . . . . . . . 63
SECTION 4.16 LIMITATION OF LINES OF BUSINESS . . . . . . . . . . . . 64
SECTION 4.17 RESTRICTION ON SALE AND ISSUANCE OF SUBSIDIARY STOCK. . 64
SECTIOn 4.18 LIMITATION ON TRANSACTIONS PRIOR TO CONSUMMATION OF
THE MERGER. . . . . . . . . . . . . . . . . . . . . . . 64
SECTION 4.19 JACOR ACTION CONCURRENT WITH CONSUMMATION OF THE
MERGER. . . . . . . . . . . . . . . . . . . . . . . . . 64
SECTION 4.20 WAIVER OF STAY, EXTENSION OR USURY LAWS . . . . . . . . 65
ii
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ARTICLE V
SUCCESSOR CORPORATION. . . . . . . . . . . . . . . . . . . . . . . . . 65
SECTION 5.1. LIMITATION ON MERGER, SALE OR CONSOLIDATION . . . . . . 65
SECTION 5.2. SUCCESSOR CORPORATION SUBSTITUTED . . . . . . . . . . . 66
ARTICLE VI
EVENTS OF DEFAULT AND REMEDIES . . . . . . . . . . . . . . . . . . . . 66
SECTION 6.1. EVENTS OF DEFAULT . . . . . . . . . . . . . . . . . . . 66
SECTION 6.2. ACCELERATION OF MATURITY DATE; RESCISSION AND
ANNULMENT . . . . . . . . . . . . . . . . . . . . . . . 68
SECTION 6.3. COLLECTION OF INDEBTEDNESS AND SUITS FOR ENFORCEMENT
BY TRUSTEE. . . . . . . . . . . . . . . . . . . . . . . 70
SECTION 6.4. TRUSTEE MAY FILE PROOFS OF CLAIM. . . . . . . . . . . . 71
SECTION 6.5. TRUSTEE MAY ENFORCE CLAIMS WITHOUT POSSESSION OF
SECURITIES. . . . . . . . . . . . . . . . . . . . . . . 72
SECTION 6.6. PRIORITIES. . . . . . . . . . . . . . . . . . . . . . . 72
SECTION 6.7. LIMITATION ON SUITS . . . . . . . . . . . . . . . . . . 73
SECTION 6.8. UNCONDITIONAL RIGHT OF HOLDERS TO RECEIVE PRINCIPAL,
PREMIUM AND INTEREST. . . . . . . . . . . . . . . . . . 74
SECTION 6.9. RIGHTS AND REMEDIES CUMULATIVE. . . . . . . . . . . . . 74
SECTION 6.10. DELAY OR OMISSION NOT WAIVER. . . . . . . . . . . . . . 74
SECTION 6.11. CONTROL BY HOLDERS. . . . . . . . . . . . . . . . . . . 75
SECTION 6.12. WAIVER OF PAST DEFAULT. . . . . . . . . . . . . . . . . 75
SECTION 6.13. UNDERTAKING FOR COSTS . . . . . . . . . . . . . . . . . 76
SECTION 6.14. RESTORATION OF RIGHTS AND REMEDIES. . . . . . . . . . . 76
ARTICLE VII
TRUSTEE . . . . . . . . . . . . . . . . . . . . . . . . . . . . 77
SECTION 7.1. DUTIES OF TRUSTEE . . . . . . . . . . . . . . . . . . . 78
SECTION 7.2. RIGHTS OF TRUSTEE . . . . . . . . . . . . . . . . . . . 79
iii
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SECTION 7.3. INDIVIDUAL RIGHTS OF TRUSTEE. . . . . . . . . . . . . . 79
SECTION 7.4. TRUSTEE'S DISCLAIMER. . . . . . . . . . . . . . . . . . 80
SECTION 7.5. NOTICE OF DEFAULT . . . . . . . . . . . . . . . . . . . 80
SECTION 7.6. REPORTS BY TRUSTEE TO HOLDERS . . . . . . . . . . . . . 80
SECTION 7.7. COMPENSATION AND INDEMNITY. . . . . . . . . . . . . . . 80
SECTION 7.8. REPLACEMENT OF TRUSTEE. . . . . . . . . . . . . . . . . 82
SECTION 7.9. SUCCESSOR TRUSTEE BY MERGER, ETC. . . . . . . . . . . . 83
SECTION 7.10. ELIGIBILITY; DISQUALIFICATION . . . . . . . . . . . . . 83
SECTION 7.11. PREFERENTIAL COLLECTION OF CLAIMS AGAINST THE
COMPANY . . . . . . . . . . . . . . . . . . . . . . . . 83
ARTICLE VIII
DISCHARGE; LEGAL DEFEASANCE AND COVENANT DEFEASANCE. . . . . . . . . . 83
SECTION 8.1. DISCHARGE; OPTION TO EFFECT LEGAL DEFEASANCE OR
COVENANT DEFEASANCE . . . . . . . . . . . . . . . . . . 83
SECTION 8.2. LEGAL DEFEASANCE AND DISCHARGE. . . . . . . . . . . . . 84
SECTION 8.3. COVENANT DEFEASANCE . . . . . . . . . . . . . . . . . . 84
SECTION 8.4. CONDITIONS TO LEGAL OR COVENANT DEFEASANCE. . . . . . . 85
SECTION 8.5. DEPOSITED CASH AND U.S. GOVERNMENT OBLIGATIONS TO BE
HELD IN TRUST; OTHER MISCELLANEOUS PROVISIONS . . . . . 87
SECTION 8.6. REPAYMENT TO THE COMPANY. . . . . . . . . . . . . . . . 87
SECTION 8.7. REINSTATEMENT . . . . . . . . . . . . . . . . . . . . . 88
ARTICLE IX
AMENDMENTS, SUPPLEMENTS AND WAIVERS. . . . . . . . . . . . . . . . . . 89
SECTION 9.1. SUPPLEMENTAL INDENTURES WITHOUT CONSENT OF HOLDERS. . . 89
SECTION 9.2. AMENDMENTS, SUPPLEMENTAL INDENTURES AND WAIVERS WITH
CONSENT OF HOLDERS. . . . . . . . . . . . . . . . . . . 90
SECTION 9.3. COMPLIANCE WITH TIA . . . . . . . . . . . . . . . . . . 92
SECTION 9.4. REVOCATION AND EFFECT OF CONSENTS . . . . . . . . . . . 92
iv
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SECTION 9.5. NOTATION ON OR EXCHANGE OF SECURITIES . . . . . . . . . 93
SECTION 9.6. TRUSTEE TO SIGN AMENDMENTS, ETC.. . . . . . . . . . . . 93
ARTICLE X
SUBORDINATION . . . . . . . . . . . . . . . . . . . . . . . . . . . . 93
SECTION 10.1. SECURITIES SUBORDINATED TO SENIOR DEBT. . . . . . . . . 93
SECTION 10.2. NO PAYMENT ON SECURITIES IN CERTAIN CIRCUMSTANCES . . . 94
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 XII 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
v
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SECTION 11.1. REPURCHASE OF SECURITIES AT OPTION OF THE HOLDER UPON
A CHANGE OF CONTROL . . . . . . . . . . . . . . . . . . 101
SECTION 11.2 REPURCHASE OF SECURITIES AT OPTION OF THE HOLDER UPON
NON-OCCURRENCE OF MERGER. . . . . . . . . . . . . . . . 104
ARTICLE XII
GUARANTY . . . . . . . . . . . . . . . . . . . . . . . . . . . . 105
SECTION 12.1. GUARANTY. . . . . . . . . . . . . . . . . . . . . . . . 105
SECTION 12.2. EXECUTION AND DELIVERY OF GUARANTY. . . . . . . . . . . 108
SECTION 12.3. FUTURE SUBSIDIARY GUARANTORS. . . . . . . . . . . . . . 109
SECTION 12.4. GUARANTOR MAY CONSOLIDATE, ETC., ON CERTAIN TERMS . . . 109
SECTION 12.5 RELEASE OF GUARANTORS AND COLLATERAL. . . . . . . . . . 110
SECTION 12.6. CERTAIN BANKRUPTCY EVENTS . . . . . . . . . . . . . . . 112
ARTICLE XIII
MISCELLANEOUS . . . . . . . . . . . . . . . . . . . . . . . . . . . . 112
SECTION 13.1. TIA CONTROLS. . . . . . . . . . . . . . . . . . . . . . 112
SECTION 13.2. NOTICES . . . . . . . . . . . . . . . . . . . . . . . . 112
SECTION 13.3. COMMUNICATIONS BY HOLDERS WITH OTHER HOLDERS. . . . . . 114
SECTION 13.4. CERTIFICATE AND OPINION AS TO CONDITIONS PRECEDENT. . . 114
SECTION 13.5. STATEMENTS REQUIRED IN CERTIFICATE OR OPINION . . . . . 114
SECTION 13.6. RULES BY TRUSTEE, PAYING AGENT, REGISTRAR . . . . . . . 115
SECTION 13.7. NON-BUSINESS DAYS . . . . . . . . . . . . . . . . . . . 115
SECTION 13.8. GOVERNING LAW . . . . . . . . . . . . . . . . . . . . . 115
SECTION 13.9. NO ADVERSE INTERPRETATION OF OTHER AGREEMENTS . . . . . 116
SECTION 13.10. NO RECOURSE AGAINST OTHERS. . . . . . . . . . . . . . . 116
SECTION 13.11. SUCCESSORS. . . . . . . . . . . . . . . . . . . . . . . 116
SECTION 13.12. DUPLICATE ORIGINALS . . . . . . . . . . . . . . . . . . 116
SECTION 13.13. SEVERABILITY. . . . . . . . . . . . . . . . . . . . . . 117
vi
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SECTION 13.14. TABLE OF CONTENTS, HEADINGS, ETC. . . . . . . . . . . . 117
SECTION 13.15. QUALIFICATION OF INDENTURE. . . . . . . . . . . . . . . 117
SIGNATURES . . . . . . . . . . . . . . . . . . . . . . . . . . . . 118
Exhibit A - FORM OF SECURITY. . . . . . . . . . . . . . . . . . . . A-1
Annex A - SELECTED DEFINITIONS AND SECTIONS FROM THE
CITICASTERS INDENTURE . . . . . . . . . . . . . . . . . Annex-1
vii
<PAGE>
INDENTURE, dated as of __________, 1996, by and among JCAC, Inc., a
Florida corporation (the "Company"), Jacor Communications, Inc., an Ohio
corporation (the "Initial Guarantor") and First Trust of Illinois, National
Association, as 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.
<PAGE>
"AFFILIATE TRANSACTION" shall have the meaning specified in Section
4.10.
"AGENT" means any authenticating agent, Registrar, Paying Agent or
transfer agent.
"AGREEMENT WITH COLLATERAL AGENT" shall have the meaning specified in
Section 12.14.
"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.
"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
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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.
"CHANGE OF CONTROL" means (a) prior to the consummation of the Merger
(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 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 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 Directors of the Company (together with any new directors whose
election by such Board or whose nomination for election by the shareholders of
the Company 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; and
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(b) subsequent to the consummation of the Merger, 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 the Company or CC, 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 CC, or the surviving person (if
other 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 Citicasters consolidates with or merges into
another person, another person consolidates with or merges into the Company or
Citicasters, the Company or Citicasters issues shares of its Capital Stock or
all or substantially all of the assets of the Company or Citicasters 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; provided however, upon the earlier of (x) the maturity of the
Citicasters Securities, (y) the date upon which defeasance of the Citicasters
Securities becomes effective, and (z) the date on which there are no longer any
Citicasters Securities outstanding under the terms of the governing indenture,
then Change of Control shall have the meaning set forth in clause (a) above.
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"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.
"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 OFFER" shall have the meaning specified in Section 11.2.
"CITICASTERS OFFER PERIOD" shall have the meaning specified in Section
11.2.
"CITICASTERS PURCHASE DATE" shall have the meaning specified in
Section 11.2.
"CITICASTERS PURCHASE PRICE" shall have the meaning specified in
Section 11.2.
"CITICASTERS PUT DATE" shall have the meaning specified in Section
11.2.
"CITICASTERS SECURITIES" means the 93/4% Senior Subordinated Notes due
February 15, 2004 issued by Citicasters Inc. 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,
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as amended by the First Supplemental Indenture dated as of August 22, 1994
between Citicasters Inc. and Shawmut Bank Connecticut, National Association as
trustee.
"CITICASTERS SECURITIES ASSET SALE OFFER" means an offer to purchase
the Citicasters Securities in accordance with the procedures set forth in Annex
I hereto.
"CODE" means the Internal Revenue Code of 1986, as amended.
"COMMISSION" means the SEC.
"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) 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
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<PAGE>
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 rota 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
8
<PAGE>
purposes with the financial statements of such person in accordance with GAAP.
"COVENANT DEFEASANCE" shall have the meaning specified in Section 8.3.
"CUSTODIAN" means any receiver, trustee, assignee, liquidator,
sequestrator or similar official under any Bankruptcy Law.
"DEBT INCURRENCE RATIO" shall have the meaning specified in Section
4.11.
"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 do not include the information called
for by footnotes 1 and 3 thereof.
"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.
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<PAGE>
"DTC" shall have the meaning specified in Section 2.3.
"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.
"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 GUARANTY SUBSIDIARY" shall have the meaning specified in
Section 12.3.
"EXCLUDED PERSON" means Zell/Chilmark Fund L.P. and all Related
Persons of such person.
"EXCLUDED SUBSIDIARY" means each of Jacor National Corp., a Delaware
corporation; WIBX Incorporated, a New York corporation; Marathon Communications,
Inc., a New York corporation; Michigan Radio Inc., a Delaware corporation; and
the Jacor Cable, Inc., a Kentucky 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 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 the Initial 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
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<PAGE>
advisory and investment banking services provided to the Initial Guarantor and
the Company.
"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
referred to in footnote 1 and the additional schedule referred to in footnote 3
to the form of Security attached hereto as Exhibit A.
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"GUARANTOR" means (i) the Initial Guarantor identified in the
following sentence and (ii) any Future Subsidiary Guarantors that 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 Initial Guarantor is Jacor Communications, Inc., an Ohio 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.
"INITIAL DISTRIBUTIONS" means (i) the distribution to the Company of
all the net proceeds of the sale of the Initial Securities and (ii) the
consummation of the Transfers, whether occurring prior to, on or after the Issue
Date.
"INITIAL GUARANTOR" means Jacor Communications, Inc., an Ohio
corporation.
"INITIAL SECURITIES" means the % Senior Subordinated Securities due
2006 issued under this Indenture.
"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
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<PAGE>
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 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., an Ohio corporation.
"JCAC" means JCAC, Inc., a Florida corporation and Wholly owned
Subsidiary of Jacor.
"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 New 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 outstand-
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<PAGE>
ing under the New 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 New 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.
"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.
"LYONS-TM-" means those securities ultimately issued pursuant to
Jacor's Registration Statement on Form S-3, Reg. No. 333-02495 which was filed
with the Commission on April 11, 1996 regarding Jacor's proposed offer of
$258,750,000 of Liquid Yield Option NotesTM.
"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 Offer to
Purchase).
"MERGER" means that certain Merger Agreement by and among the Initial
Guarantor, the Company and Citicasters, Inc. dated as of February 12, 1996.
"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
15
<PAGE>
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.
"NEW CREDIT FACILITY" means the Credit Agreement dated _________, 1996
by and among Chemical Bank, as Administrative Agent, Banque Paribas, ad
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 the Company, any of
its Subsidiaries and/or the Initial Guarantor 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 "New Credit
Facility" shall include agreements in respect of Interest Swap and Hedging
Obligations with lenders party to the New Credit Facility and shall also include
any amendment, amendment and restatement, renewal, extension, restructuring,
supplement or modification in whole or in part to any New Credit Facility and
all refundings, refinancings and replacements in whole or in part of any New
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.
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<PAGE>
"NOBLE ACQUISITION" means that certain Stock Purchase and Stock
Warrant Redemption Agreement dated as of February 20, 1996 by and among the
Initial Guarantor, 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.
"NON-GUARANTOR SUBSIDIARY" means any Subsidiary that is not a
Guarantor.
"NOTES" means the __% Series A Senior Subordinated Notes due 2006
issued under this Indenture.
"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.
"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.
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"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.
"PAYING AGENT" has the meaning specified in Section 2.3.
"PAYMENT DEFAULT" means an event of default in the payment of any
principal of, premium, if any, or interest on Senior Debt of the Company or the
Guarantors when it becomes due and payable, whether at maturity or at a date
fixed for prepayment or by declaration or otherwise.
"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 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 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
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and represented by the Indenture up to the amounts specified therein as of the
date thereof;
(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 the covenant described under "Limitation on Incurrence of
Additional Indebtedness and Disqualified Capital Stock" 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 New 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
New 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 exchange
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 the covenant "Limitation on Incurrence of Additional
Indebtedness and Disqualified Capital Stock";
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(i) the Company may incur Indebtedness of Citicasters in
connection with the consummation of the Merger provided such Indebtedness was in
existence on the date the merger agreement among the Initial Guarantor, the
Company and Citicasters was executed or was subsequently incurred pursuant to
such merger agreement, in any case not to exceed $165.0 million; and
(j) 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 arise out of the consummation of the Merger
and the Noble Acquisition;
(h) 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
(i) 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 encum-
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brances 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 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;
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(l) Liens in favor of the Administrative Agent pursuant to the
New Credit Facility; and
(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.
"PERMITTED LIEN INDEBTEDNESS" shall have the meaning specified in
Section 12.1.
"PERMITTED LIEN INDEBTEDNESS OBLIGATIONS" shall have the meaning
specified in Section 12.1.
"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.
"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 Initial 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.
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"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.
"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
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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 Disqualified 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 [DEFINITION]
"REQUIRED LENDERS" means [DEFINITION]
"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
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,
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(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 the Company, or to any of its wholly owned subsidiary Guarantors, by
any of the Subsidiaries of the Company; or (iii) loans or advances to any
Guarantor the proceeds of which are used by such Guarantor in a Related Business
activity of such Subsidiary.
"SEC" means the Securities and Exchange Commission.
"SECURITIES" means, collectively, the Initial Securities and, when and
if issued as provided in the Registration Rights Agreement, the Exchange
Securities.
"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 New Credit Facility, and
interest, whether or not such interest is allowed or allowable, accruing on
Indebtedness incurred pursuant to the New Credit Facility at the contracted-for
rate after the commencement of any proceeding under any bankruptcy, insolvency
or similar law) of
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the Company or such Guarantor arising under the New Credit Facility or that, by
the terms of 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.
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"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.
"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 division
(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.
"UCC" means the New York Uniform Commercial Code as in effect from
time to time.
"U.S. GOVERNMENT OBLIGATIONS" means direct non-callable obligations
of, or noncallable obligations guaranteed 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.
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"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;
(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.
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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.
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.
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The Trustee shall authenticate or cause to be authenticated Initial
Securities for original issue in the aggregate principal amount of up to
$100,000,000 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 $100,000,000, 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.
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
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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 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
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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).
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
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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 Depositary, in accordance with this Indenture (including
applicable restrictions on transfer set forth herein, if any) and the procedures
of the Depositary therefor which shall include restrictions on transfer
comparable to those set forth herein to the extent required by the Securities
Act.
(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
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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, upon receipt of an authentication order in the
form of an Officers' Certificate, the Trustee or 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 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,
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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
DEFINITIVE SECURITIES.
(i) To permit registrations of transfers and exchanges, the
Company shall execute and the Trustee or any authenticating agent of the
Trustee 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 2.2 (fourth paragraph), 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
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Business Days before the mailing of a notice of an offer to repurchase
pursuant to Article XI or Section 4.14 hereof or redeem 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. The Company may charge such
Holder for its reasonable, out-of-pocket expenses in replacing a Security.
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 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.
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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 knows are
so owned shall be disregarded.
SECTION 2.10. TEMPORARY SECURITIES.
Until Definitive Securities are ready for delivery, the Company may
prepare, the Initial Guarantor shall endorse 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, the Initial Guarantor shall
endorse and the Trustee shall 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
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and, at the written direction of the Company, shall dispose of 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 (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 Company, at
their 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 (or its respective
predecessor 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
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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, 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.
ARTICLE III
REDEMPTION
SECTION 3.1. RIGHT OF REDEMPTION.
Redemption of Securities, as permitted by any provision of this
Indenture, shall be made in accordance with such provision 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 at the Redemption Prices specified in the form of
Security attached as Exhibit A set forth therein under the caption "Redemption,"
in each case (subject to the right of Holders of record on a Record Date to
receive interest due on an Inter-
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est 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.
Notwithstanding the foregoing, in the event that the Merger has not
become effective prior to March 15, 1997, the Company may redeem the Securities
at a redemption price equal to 102% of the principal amount thereof, in each
case plus accrued and unpaid interest, if any, to the redemption date; PROVIDED
that such redemption, if made, must occur within 35 days of March 15, 1997.
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 have not previously delivered to the Trustee and
the Paying Agent for cancellation, it shall so notify the Trustee 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 on a
PRO RATA basis or
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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 Securities 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
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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;
(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
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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, including
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 Guarantors shall endorse 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.
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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 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 and the Guarantors
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
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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 corporate
trust office of the Paying Agent as such office.
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 Initial Guarantor to
reimburse the Initial 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
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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.
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
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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.
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 complying with Section
314(a)(4) of the TIA and stating that a review of its activities and the
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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 conditions 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, Event of Default, an Officers' Certificate specifying such Default,
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 Initial 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 Initial Guarantor, the
Company shall deliver to the Trustee, and to each Holder, the Initial
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 Initial 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 Initial 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
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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 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 Initial Guarantor, an Officers'
Certificate addressed and delivered to the Trustee certifying that such of
Affiliate Transaction (or Transactions) have been approved by a majority of the
members of the Board of Directors of the Initial Guarantor that are
disinterested in such transaction and (iii) if involving consideration to either
party in excess of
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$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 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 distributions to or on behalf of, or to pay any obligation to
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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 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 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 New 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
of the Indenture 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 ability of the applicable Subsidiary to transfer such agreement or assets,
as the case may be.
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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 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
serving 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 of the Indenture 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, 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 Indebt-
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edness (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.
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) above (the
"Excess Proceeds") exceeds $5.0 million and 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, the
Company shall apply the Asset Sale Offer Amount plus an amount equal to accrued
interest to the purchase of all Securities properly tendered (on a PRO RATA
basis if the Asset Sale Offer Amount is insufficient to purchase all Securities
so tendered) at the Asset Sale Offer Price (together with accrued interest). To
the extent that the aggregate amount of the Securities tendered pursuant to an
Asset Sale Offer is less than the Asset Sale Offer Amount, the Company may use
any remaining Net Cash Proceeds for general corporate purposes as otherwise
permitted by this 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 extend-
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ed 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 Securities are not purchased
pursuant thereto.
Notwithstanding the foregoing provisions of the first paragraph of
this covenant, subsequent to the consummation of the Merger, 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, if required, has been completed. To the extent that any
Excess Proceeds remain after expiration of an Asset Sale Offer Period for the
Citicasters Securities, the Company may use the remaining Net Cash Proceeds 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; PROVIDED, HOWEVER, that
this covenant shall be of no further force and effect upon the earlier of (x)
the maturity of such Citicasters Securities, (y) the date upon which defeasance
of the Citicasters Securities becomes effective, and (z) the date on which there
are no longer any Citicasters Securities outstanding under the terms of the
governing indenture.
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 Article V;
(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.
Notice of an Asset Sale Offer will be sent 20 Business Days prior to
the close of business on the earlier of (a) the third Business Day prior to the
Asset Sale Date and (b) the third Business Day following the expiration of the
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Asset Sale Offer (such earlier date being the "Final Put Date"), by first-class
mail, by the Company (or by the Registrar at the request and expense of the
Company) to each Holder at its registered address, with a copy to the Trustee
and the Paying Agent. 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 Offer to Purchase.
The notice, which (to the extent consistent with this Indenture) shall govern
the terms of the Offer to Purchase, 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,
and the Asset Sale Date, which Asset Sale 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 penultimate paragraph 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 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
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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 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;
(7) that if Securities and other senior Indebtedness in a
principal amount in excess of the principal amount of Securities and other
senior Indebtedness 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);
(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 Asset Sale Date, the Company shall, to the extent
lawful, (i) accept for payment Securities or portions thereof properly tendered
pursuant to the Offer to Purchase on or before the Final Put Date (on a PRO RATA
basis if required pursuant to paragraph (7) hereof), (ii) deposit with the
Paying Agent Cash sufficient to pay the 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 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
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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) or 1(b)(i) 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.
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.
In addition to the foregoing, the Company will not, and will not
permit any Subsidiary 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 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.
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 and
its Subsidiary Guarantors would, after giving PRO FORMA effect to the proposed
Asset Swap, have been permitted to
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incur at least $1.00 of additional Indebtedness pursuant to the Leverage Ratio
in Section 4.11; (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 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 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. LIMITATION ON TRANSACTIONS PRIOR TO CONSUMMATION OF THE
MERGER.
Prior to the consummation of the Merger, the Company shall not,
directly or indirectly, make any loan, advance or guaranty, or sell, lease,
transfer or otherwise dispose of any of its properties, or enter into any
transaction, or enter into or amend any contract, agreement or understanding,
except as may be necessary in contemplation of or in connection with the
consummation of the Merger; PROVIDED, HOWEVER, this covenant shall be of no
further force and effect upon consummation of the Merger.
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SECTION 4.19. LIMITATION ON JACOR ACTION CONCURRENT WITH CONSUMMATION
OF THE MERGER.
Concurrently with consummation of the Merger, the Guarantor will,
directly or indirectly, contribute, convey or transfer all of the Equity
Interests of its wholly owned subsidiaries to the Company, at which time such
subsidiaries shall become Subsidiary Guarantors if required by Section 12.3.
SECTION 4.20. 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) the Company and the Guarantors hereby expressly waives all
benefit 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.
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
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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 additional Indebtedness pursuant to the Leverage Ratio
set forth in Section 4.11; PROVIDED, HOWEVER, nothing in this clause (iii) shall
prevent the consummation of the Merger.
(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 any 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 such 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 applicable
Company under this Indenture with the same effect as if such successor
corporation had been named herein as an Company, and when a successor
corporation duly assumes all of the obligations of an Company pursuant hereto
and pursuant to the Securities, the applicable 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.
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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 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 30 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
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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;
(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
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, or shall,
within the meaning of any Bankruptcy Law, become insolvent, fail generally
to pay its debts as they become due, or take any corporate action in
furtherance of or to facilitate, conditionally or otherwise, 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).
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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 Holders) (an "Acceleration Notice"), may declare all of the 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 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:
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(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 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.
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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 principal, 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
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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
(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
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expenses, disbursements and advances of the Trustee, its agents and counsel and
all other amounts due the Trustee 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 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.
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
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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.
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
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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, 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
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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.
(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
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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 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
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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.
(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
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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 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.
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SECTION 7.6. REPORTS BY TRUSTEE TO HOLDERS.
Within 60 days after each _________ beginning with the ___________
following the date of this Indenture, the Trustee shall, if required by law,
mail to each Securityholder a brief report dated as of such ___________ 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
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
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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.
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 Compa-
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ny 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.
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
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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.]
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 at any time within the final year of the Stated Maturity of the
Securities, 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,
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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, 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 and the pledge of the Pledged Collateral 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 their 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 XIII 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)
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through 6.1(7) shall not constitute Events of Default. Upon Covenant
Defeasance, as provided herein, the Guaranty of each Guarantor and the pledge of
the Pledged Collateral 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.
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
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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 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.
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 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 their 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 be pub-
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lished once, in the NEW YORK TIMES and THE WALL STREET JOURNAL (national
edition), 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 make 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.
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 surren-
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der 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 provide for the issuance and authorization of the
Exchange Securities;
(7) 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;
(8) to evidence the release of any Guarantor in accordance with
Article XIII;
(9) in any other case where a supplemental indenture is required
or permitted to be entered into pursuant to the provisions of Article XII or
Article XIII, respectively, without the consent of any Holder;
(10) to evidence and provide for the acceptance of appointment
hereunder by a successor Trustee with respect to the Securities; or
(11) to enter into any agreements consistent with Article XII
hereof, to further implement the provisions of Article XII in connection with
the incurrence of any Permitted Lien Indebtedness.
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
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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 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 (alter the terms or provisions of Article X in
a manner adverse to the Holders.
It shall not be necessary for the consent of the Holders under this
Section 9.2 to approve the particular form
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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.
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
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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 (9) 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.
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 stat-
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ing 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 and
the Guarantors (including, without limitation, pursuant to Section 4.14, 11.1 or
11.2) is subordinated, to the extent and in the manner provided in this Article
X, to the prior payment in full in Cash or Cash Equivalents of all Senior Debt
of the Company 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
(as defined herein)) 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 such payment is duly
provided for) or otherwise
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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 an event of 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 event of default given to the Company and the Trustee by the
Representative under the New Credit Facility or by 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 event of 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 of 179 or fewer days 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, 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
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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 on account of any Obligation 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 (including
Junior Subordinated Payments, but excluding payments made with Junior
Securities), or on account of the redemption provisions of the Securities shall
be made by the Company and the Guarantors and received by the Trustee, by any
Holder or by any 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 Cash
Equivalents (or have such payments duly provided for) 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:
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(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 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 and 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 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 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.
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SECTION 10.4 SECURITYHOLDERS TO BE SUBROGATED TO RIGHTS OF HOLDERS OF
SENIOR DEBT.
Subject to the payment in full in Cash or Cash Equivalents of all
Senior Debt of the Company or any Guarantor as provided herein, the Holders of
Securities shall be subrogated to the 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 XII 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 Cash Equivalents.
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
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Senior Debt in respect of cash, property 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 XII 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 a Trust Officer of 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 Credit Agreement 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
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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; provided, that, if prior to one Business Day preceding the date on
which by the terms of this Indenture any such assets may become distributable
for any purpose (including without limitation, the payment of either principal
of or interest on any Security) the Trustee or such Paying Agent shall not have
received with respect to such assets the written notice provided for in Section
10.6, then the Trustee or such Paying Agent shall have full power and authority
to receive such assets and to apply the same to the purpose for which they were
received, and shall not be affected by any notice to the contrary which may be
received by it on or after such date.
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
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, all without affecting the liabilities and
obligations of the parties to this Indenture or the Holders.
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 immediate
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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 XII 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
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
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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 an offer to purchase Securities (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 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
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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;
(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
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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'
Certificate 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
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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.
SECTION 11.2. REPURCHASE OF SECURITIES AT THE OPTION OF THE HOLDER
UPON FAILURE TO CONSUMMATE THE MERGER.
(a) In the event that the Merger has not become effective prior
to January 1, 1997, each Holder of Securities will have the right, at such
Holder's option, pursuant to an irrevocable and unconditional offer by the
Company (the "Citicasters Offer"), to require the Company to repurchase all or
any part of such Holder's Securities (PROVIDED, that the principal amount of
such Securities must be $1,000 or an integral multiple thereof) on a date (the
"Citicasters Purchase Date") that is no later than 35 Business Days after
January 1, 1997, at a cash price (the "Citicasters Purchase Price") equal to
101% of the principal amount thereof, together with accrued and unpaid interest,
if any, to the Citicasters Purchase Date.
(b) In the event that the Merger has not become effective prior
to January 1, 1997, the Company shall be required to commence an offer to
purchase Securities (a "Citicasters Offer") as follows:
(1) the Citicasters Offer shall commence within 10 Business Days
following the occurrence of the failure to effect the Merger on January 1,
1997;
(2) the Citicasters 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 "Citicasters Offer Period");
(3) upon the expiration of a Citicasters Offer, the Company
shall promptly purchase all of the properly tendered Securities at the
Citicasters Purchase Price;
(4) if the Citicasters 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
Citicasters Offer;
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(5) the Company shall provide the Trustee and the Paying Agent
with notice of the Citicasters Offer at least three Business Days before
the commencement of any Citicasters Offer; and
(6) on or before the commencement of any Citicasters 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 Citicasters Offer and shall state:
(i) that the Citicasters Offer is being made pursuant to
such notice and this Section 11.2 and that all Securities, or portions
thereof, tendered will be accepted for payment;
(ii) the Citicasters Purchase Price (including the amount
of accrued and unpaid interest, subject to clause (b)(4) above), the
Citicasters Purchase Date and the Citicasters 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
11.2 or such payment is prevented, any Security, or portion thereof,
accepted for payment pursuant to the Citicasters Offer shall cease to
accrue interest after the Citicasters Purchase Date;
(v) that Holders electing to have a Security, or portion
thereof, purchased pursuant to a Change of Citicasters 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 11.2, 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
Citicasters Payment Date and (b) the third Business Day following the
expiration of the Citicasters Offer (such earlier date being the
"Citicasters Put Date");
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(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 11.2, 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 Citicasters 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
failure to effect the Merger.
Any such Citicasters 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 Citicasters Purchase Date, the Company shall (i)
accept for payment Securities or portions thereof properly tendered pursuant to
the Citicasters Offer on or before the Citicasters Put Date, (ii) deposit with
the Paying Agent Cash sufficient to pay the Citicasters Purchase Price for all
Securities or portions thereof so tendered and (iii) deliver to the Registrar
Securities so accepted together with an Officers' Certificate listing the
aggregate principal amount of the Securities or portions thereof being purchased
by the Company. The Paying Agent shall on the Citicasters Purchase Date or
promptly thereafter mail to Holders of Securities so accepted payment in an
amount equal to the Citicasters 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
Citicasters Offer on or as soon as practicable after the consummation thereof.
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Any such Citicasters 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 law.
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, 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, 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, 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.
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(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. 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 Bank-
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ruptcy 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 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.
105
<PAGE>
SECTION 12.2. EXECUTION AND DELIVERY OF GUARANTY.
Each Guarantor shall, by virtue of such Guarantor's execution and
delivery of this Indenture or such Guarantor's execution and delivery of an
indenture supplement pursuant to Section 12.3 hereof, 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. FUTURE SUBSIDIARY GUARANTORS.
(i) All present Subsidiaries of the Company, if any, and their
Subsidiaries (other than the Excluded Subsidiaries), and (ii) all future
Subsidiaries of the Company and their 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 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 Future 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 Future
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
guar-
106
<PAGE>
antees (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 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 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
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 the 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.
107
<PAGE>
SECTION 13.5. 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 releases 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
XIII, (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 Gua-
108
<PAGE>
rantor 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.
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:
JCAC, Inc.
1300 PNC Center
201 East Fifth Street
Cincinnati, Ohio 45202
Attention: [Jon M. Berry]
Telephone: (513) 621-1300
Telecopy: (513) [621-6087]
109
<PAGE>
if to the Trustee:
First Trust of Illinois, National Association
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 delivered; 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:
110
<PAGE>
(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 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.
111
<PAGE>
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.
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.
112
<PAGE>
Any such indenture, loan or debt agreement may not be used to interpret this
Indenture.
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
113
<PAGE>
no way modify or restrict any of the terms or provisions hereof.
SECTION 13.15. QUALIFICATION OF INDENTURE.
The Company shall qualify this Indenture under the TIA in accordance
with the terms and conditions of the Registration Rights Agreement and shall pay
all costs and expenses (including attorneys' fees for the Company and the
Trustee) incurred in connection therewith, including, but not limited to, costs
and expenses of qualification of the Indenture and the Securities and printing
this Indenture and the Securities. The Trustee shall be entitled to receive
from the Company any such Officers' Certificates, Opinions of Counsel or other
documentation as it may reasonably request in connection with any such
qualification of this Indenture under the TIA.
114
<PAGE>
SIGNATURES
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to
be duly executed as of the date first written above.
JCAC, INC.
[Seal]
By:
--------------------------------------
Name:
Title:
Attest:
-----------------
Secretary
JACOR COMMUNICATIONS, INC.
[Seal]
By:
--------------------------------------
Name:
Title:
Attest:
-----------------
Secretary
FIRST TRUST OF ILLINOIS, NATIONAL
ASSOCIATION, as Trustee
By:
--------------------------------------
Name:
Title:
-----------------------------------------
By:
--------------------------------------
Name:
Title:
115
<PAGE>
EXHIBIT 5.1
[GRAYDON, HEAD & RITCHEY LETTERHEAD]
June __, 1996
Jacor Communications, Inc.
1300 PNC Center
201 East Fifth Street
Cincinnati, Ohio 45202
Re: Offering of $100,000,000 Aggregate Principal Amount of
Senior Subordinated Notes due 2006 by JCAC, Inc. Pursuant
to Registration Statement on Form S-3, File No. 333-02475,
Filed with the Securities and Exchange Commission
----------------------------------------------------------
Ladies and Gentlemen:
We have acted as counsel to Jacor Communications, Inc. ("Company"), an
Ohio corporation, and to JCAC, Inc., a Florida corporation and wholly-owned
subsidiary of the Company ("JCAC") in connection with the offering by JCAC of
its $100,000,000 Aggregate Principal Amount Senior Subordinated Notes due
2006 (the "Notes"), as fully and unconditionally guaranteed by the Company on
a senior subordinated basis (the "Guarantee"), all of which Notes are being
sold by JCAC as set forth on the Form S-3 Registration Statement, File No.
333-02475, as amended, as filed by JCAC and the Company with the Securities
and Exchange Commission.
As counsel for the Company and JCAC 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 Amended and Restated Articles of Incorporation, as
amended, the Company's Amended and Restated Code of Regulations, as amended,
JCAC's Articles of Incorporation, JCAC's Bylaws, and other corporate records
of the Company and JCAC, 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 JCAC, the Company and
First Trust of Illinois, National Association, as trustee, a copy of which is
filed as an exhibit to
<PAGE>
Jacor Communications, Inc.
June __, 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
JCAC, enforceable against JCAC 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 Guarantee, when issued by the Company upon the authentication
and delivery of the Notes, will constitute a valid and binding obligation of
the Company, enforceable against the Company in accordance with its terms,
subject to applicable bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium and similar laws affecting creditors's 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: ____________________________________
Richard G. Schmalzl
<PAGE>
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
----------------
FORM T-1
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)
----------------
FIRST TRUST OF ILLINOIS,
NATIONAL ASSOCIATION
(EXACT NAME OF TRUSTEE AS SPECIFIED IN ITS CHARTER)
36-4046888
(I.R.S. EMPLOYER
IDENTIFICATION NO.)
400 NORTH MICHIGAN AVENUE, 60611
CHICAGO, ILLINOIS (ZIP CODE)
(ADDRESS OF PRINCIPAL EXECUTIVE
OFFICES)
----------------
JOHN W. PORTER
FIRST TRUST OF ILLINOIS, NATIONAL ASSOCIATION
400 N. MICHIGAN AVENUE, FLOOR 25
CHICAGO, ILLINOIS 60611
TELEPHONE (312) 836-6736
(NAME, ADDRESS, AND TELEPHONE NUMBER OF AGENT FOR SERVICE)
----------------
JCAC, INC.
(EXACT NAME OF OBLIGOR AS SPECIFIED IN ITS CHARTER)
FLORIDA 31-1461588
(STATE OR OTHER JURISDICTION (I.R.S. EMPLOYER
OF INCORPORATION OR ORGANIZATION) IDENTIFICATION NO.)
1300 PNC CENTER 45202
201 EAST FIFTH STREET (ZIP CODE)
CINCINNATI, OHIO
(ADDRESS OF PRINCIPAL EXECUTIVE
OFFICES)
___% SENIOR SUBORDINATED NOTES DUE 2006
(TITLE OF INDENTURE SECURITIES)
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
<PAGE>
ITEM 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.
Comptroller of the Currency, Washington, D.C.
(B) WHETHER IT IS AUTHORIZED TO EXERCISE CORPORATE TRUST POWERS.
Yes.
ITEM 2. AFFILIATIONS WITH THE OBLIGOR.
IF THE OBLIGOR IS AN AFFILIATE OF THE TRUSTEE, DESCRIBE EACH SUCH
AFFILIATION.
The obligor is not an affiliate of the trustee.
ITEM 3. VOTING SECURITIES OF THE TRUSTEE.
FURNISH THE FOLLOWING INFORMATION AS TO EACH CLASS OF VOTING SECURITIES OF
THE TRUSTEE:
AS OF MAY 17, 1996
<TABLE>
<CAPTION>
COL. B
COL. A AMOUNT
TITLE OF CLASS OUTSTANDING
-------------- -----------
<S> <C>
</TABLE>
Not applicable by virtue of response to Item 13.
ITEM 4. TRUSTEESHIPS UNDER OTHER INDENTURES.
IF THE TRUSTEE IS A TRUSTEE UNDER ANOTHER INDENTURE UNDER WHICH ANY OTHER
SECURITIES, OR CERTIFICATES OF INTEREST OR PARTICIPATION IN ANY OTHER
SECURITIES, OF THE OBLIGOR ARE OUTSTANDING, FURNISH THE FOLLOWING INFORMATION:
(A) TITLE OF THE SECURITIES OUTSTANDING UNDER EACH SUCH OTHER INDENTURE.
Not applicable by virtue of response to Item 13.
(B) A BRIEF STATEMENT OF THE FACTS RELIED UPON AS A BASIS FOR THE CLAIM
THAT NO CONFLICTING INTEREST WITHIN THE MEANING OF SECTION 310(B)(1) OF
THE ACT ARISES AS A RESULT OF THE TRUSTEESHIP UNDER ANY SUCH OTHER
INDENTURE, INCLUDING A STATEMENT AS TO HOW THE INDENTURE SECURITIES
WILL RANK AS COMPARED WITH THE SECURITIES ISSUED UNDER SUCH OTHER
INDENTURE.
Not applicable by virtue of response to Item 13.
ITEM 5. INTERLOCKING DIRECTORATES AND SIMILAR RELATIONSHIPS WITH THE OBLIGOR OR
UNDERWRITERS.
IF THE TRUSTEE OR ANY OF THE DIRECTORS OR EXECUTIVE OFFICERS OF THE TRUSTEE IS
A DIRECTOR, OFFICER, PARTNER, EMPLOYEE, APPOINTEE, OR REPRESENTATIVE OF THE
OBLIGOR OR OF ANY UNDERWRITER FOR THE OBLIGOR, IDENTIFY EACH SUCH PERSON
HAVING ANY SUCH CONNECTION AND STATE THE NATURE OF EACH SUCH CONNECTION.
Not applicable by virtue of response to Item 13.
1
<PAGE>
ITEM 6. VOTING SECURITIES OF THE TRUSTEE OWNED BY THE OBLIGOR OR ITS OFFICIALS.
FURNISH THE FOLLOWING INFORMATION AS TO THE VOTING SECURITIES OF THE TRUSTEE
OWNED BENEFICIALLY BY THE OBLIGOR AND EACH DIRECTOR, PARTNER AND EXECUTIVE
OFFICER OF THE OBLIGOR.
AS OF MAY 17, 1996
<TABLE>
<CAPTION>
COL. A COL. B COL. C COL. D
PERCENTAGE
OF VOTING
SECURITIES
REPRESENTED
BY AMOUNT
NAME OF TITLE OF AMOUNT OWNED GIVEN
OWNER CLASS BENEFICIALLY IN COL. C
------- -------- ------------ -----------
<S> <C> <C> <C>
</TABLE>
Not applicable by virtue of response to Item 13.
ITEM 7. VOTING SECURITIES OF THE TRUSTEE OWNED BY UNDERWRITERS OR THEIR
OFFICIALS.
FURNISH THE FOLLOWING INFORMATION AS TO THE VOTING SECURITIES OF THE TRUSTEE
OWNED BENEFICIALLY BY EACH UNDERWRITER FOR THE OBLIGOR AND EACH DIRECTOR,
PARTNER, AND EXECUTIVE OFFICER OF EACH SUCH UNDERWRITER.
AS OF MAY 17, 1996
<TABLE>
<CAPTION>
COL. A COL. B COL. C COL. D
PERCENTAGE
OF VOTING
SECURITIES
REPRESENTED
BY AMOUNT
NAME OF TITLE OF AMOUNT OWNED GIVEN
OWNER CLASS BENEFICIALLY IN COL. C
------- -------- ------------ -----------
<S> <C> <C> <C>
</TABLE>
Not applicable by virtue of response to Item 13.
ITEM 8. SECURITIES OF THE OBLIGOR OWNED OR HELD BY THE TRUSTEE.
FURNISH THE FOLLOWING INFORMATION AS TO SECURITIES OF THE OBLIGOR OWNED
BENEFICIALLY OR HELD AS COLLATERAL SECURITY FOR OBLIGATIONS ON DEFAULT BY THE
TRUSTEE:
AS OF MAY 17, 1996
<TABLE>
<CAPTION>
COL. A COL. B COL. C COL. D
WHETHER
THE
SECURITIES
ARE VOTING
OR AMOUNT OWNED BENEFICIALLY OR PERCENT OF CLASS
TITLE OF NONVOTING HELD AS COLLATERAL SECURITY REPRESENTED BY AMOUNT
CLASS SECURITIES FOR OBLIGATIONS IN DEFAULT GIVEN IN COL. C
-------- ---------- ---------------------------- ---------------------
<S> <C> <C> <C>
</TABLE>
Not applicable by virtue of response to Item 13.
2
<PAGE>
ITEM 9. SECURITIES OF UNDERWRITERS OWNED OR HELD BY THE TRUSTEE.
IF THE TRUSTEE OWNS BENEFICIALLY OR HOLDS AS COLLATERAL SECURITY FOR
OBLIGATIONS IN DEFAULT ANY SECURITIES OF AN UNDERWRITER FOR THE OBLIGOR,
FURNISH THE FOLLOWING INFORMATION AS TO EACH CLASS OF SECURITIES OF SUCH
UNDERWRITER ANY OF WHICH ARE SO OWNED OR HELD BY THE TRUSTEE.
AS OF MAY 17, 1996
<TABLE>
<CAPTION>
COL. A COL. B COL. C COL. D
AMOUNT OWNED
BENEFICIALLY OR HELD PERCENT OF CLASS
NAME OF ISSUER AS COLLATERAL SECURITY REPRESENTED BY
AND TITLE OF AMOUNT FOR OBLIGATIONS IN AMOUNT GIVEN IN
CLASS OUTSTANDING DEFAULT BY TRUSTEE COL. C
-------------- ----------- ---------------------- ----------------
<S> <C> <C> <C>
</TABLE>
Not applicable by virtue of response to Item 13.
ITEM 10. OWNERSHIP OR HOLDINGS BY THE TRUSTEE OF VOTING SECURITIES OF CERTAIN
AFFILIATES OR SECURITY HOLDERS OF THE OBLIGOR.
IF THE TRUSTEE OWNS BENEFICIALLY OR HOLDS AS COLLATERAL SECURITY FOR
OBLIGATIONS IN DEFAULT VOTING SECURITIES OF A PERSON WHO, TO THE KNOWLEDGE OF
THE TRUSTEE (1) OWNS 10 PERCENT OR MORE OF THE VOTING SECURITIES OF THE OBLIGOR
OR (2) IS AN AFFILIATE, OTHER THAN A SUBSIDIARY, OF THE OBLIGOR, FURNISH THE
FOLLOWING INFORMATION AS TO THE VOTING SECURITIES OF SUCH PERSON.
AS OF MAY 17, 1996
<TABLE>
<CAPTION>
COL. A COL. B COL. C COL. D
AMOUNT OWNED
BENEFICIALLY OR HELD PERCENT OF CLASS
NAME OF ISSUER AS COLLATERAL SECURITY REPRESENTED BY
AND TITLE OF AMOUNT FOR OBLIGATIONS IN AMOUNT GIVEN IN
CLASS OUTSTANDING DEFAULT BY TRUSTEE COL. C
-------------- ----------- ---------------------- ----------------
<S> <C> <C> <C>
</TABLE>
Not applicable by virtue of response to Item 13.
ITEM 11. OWNERSHIP OF HOLDINGS BY THE TRUSTEE OF ANY SECURITIES OF A PERSON
OWNING 50 PERCENT OR MORE OF THE VOTING SECURITIES OF THE OBLIGOR.
IF THE TRUSTEE OWNS BENEFICIALLY OR HOLDS AS COLLATERAL SECURITY FOR
OBLIGATIONS IN DEFAULT ANY SECURITIES OF A PERSON WHO, TO THE KNOWLEDGE OF THE
TRUSTEE, OWNS 50 PERCENT OR MORE OF THE VOTING SECURITIES OF THE OBLIGOR,
FURNISH THE FOLLOWING INFORMATION AS TO EACH CLASS OF SECURITIES OF SUCH PERSON
ANY OF WHICH ARE SO OWNED OR HELD BY THE TRUSTEE.
AS OF MAY 17, 1996
<TABLE>
<CAPTION>
COL. A COL. B COL. C COL. D
AMOUNT OWNED
BENEFICIALLY OR HELD PERCENT OF CLASS
NAME OF ISSUER AS COLLATERAL SECURITY REPRESENTED BY
AND TITLE OF AMOUNT FOR OBLIGATIONS IN AMOUNT GIVEN IN
CLASS OUTSTANDING DEFAULT BY TRUSTEE COL. C
-------------- ----------- ---------------------- ----------------
<S> <C> <C> <C>
</TABLE>
Not applicable by virtue of response to Item 13.
3
<PAGE>
ITEM 12. INDEBTEDNESS OF THE OBLIGOR TO THE TRUSTEE.
EXCEPT AS NOTED IN THE INSTRUCTIONS, IF THE OBLIGOR IS INDEBTED TO THE
TRUSTEE, FURNISH THE FOLLOWING INFORMATION:
AS OF MAY 17, 1996
<TABLE>
<CAPTION>
COL. A COL. B COL. C
NATURE OF INDEBTEDNESS AMOUNT OUTSTANDING DATE DUE
- ---------------------- ------------------ --------
<S> <C> <C>
</TABLE>
Not applicable by virtue of response to Item 13.
ITEM 13. DEFAULTS BY THE OBLIGOR.
(A) STATE WHETHER THERE IS OR HAS BEEN A DEFAULT WITH RESPECT TO THE
SECURITIES UNDER THIS INDENTURE. EXPLAIN THE NATURE OF ANY SUCH DEFAULT.
There is not nor has there been a default with respect to the
securities under this indenture.
(B) IF THE TRUSTEE IS A TRUSTEE UNDER ANOTHER INDENTURE UNDER WHICH ANY OTHER
SECURITIES, OR CERTIFICATES OF INTEREST OR PARTICIPATION IN ANY OTHER
SECURITIES, OF THE OBLIGOR ARE OUTSTANDING, OR IS TRUSTEE FOR MORE THAN ONE
OUTSTANDING SERIES OF SECURITIES UNDER THE INDENTURE, STATE WHETHER THERE HAS
BEEN A DEFAULT UNDER ANY SUCH INDENTURE OR SERIES, IDENTIFY THE INDENTURE OR
SERIES AFFECTED, AND EXPLAIN THE NATURE OF ANY SUCH DEFAULT.
There is not nor has there been a default with respect to the
securities under this indenture. The trustee is not a trustee under
other indentures under which securities issued by the obligor are
outstanding.
ITEM 14. AFFILIATIONS WITH THE UNDERWRITERS.
IF ANY UNDERWRITER IS AN AFFILIATE OF THE TRUSTEES, DESCRIBE EACH SUCH
AFFILIATION.
Not applicable by virtue of response to Item 13.
ITEM 15. FOREIGN TRUSTEE.
IDENTIFY THE ORDER OR RULE PURSUANT TO WHICH THE FOREIGN TRUSTEE IS AUTHORIZED
TO ACT AS SOLE TRUSTEE UNDER INDENTURES QUALIFIED OR TO BE QUALIFIED UNDER THE
ACT.
Not applicable.
ITEM 16. LIST OF EXHIBITS.
LIST BELOW ALL EXHIBITS FILED AS A PART OF THIS STATEMENT OF ELIGIBILITY.
1. A copy of the Articles of Association of First Trust of Illinois,
National Association as now in effect, incorporated herein by reference to
Exhibit 1 to T-1; Registration No. 33-64175.
2. A copy of the certificate of authority to commence business,
incorporated herein by reference to Exhibit 2 to T-1 Registration No. 33-
64175.
3. A copy of the certificate of authority to exercise corporate trust
powers, incorporated herein by reference to Exhibit 3 to T-1; Registration
No. 33-64175.
4. A copy of the existing By-Laws of First Trust of Illinois, National
Association as now in effect, incorporated herein by reference to Exhibit 4
to T-1; Registration No. 33-64175.
4
<PAGE>
5. Not applicable by virtue of response to Item 13.
6. The consent of the trustee required by Section 321(b) of the Trust
Indenture Act of 1939, incorporated herein by reference to Exhibit 6 to T-
1; Registration No. 33-64175.
7. A copy of the balance sheet section of the latest report of condition of
the trustee published pursuant to law or the requirements of its supervising
or examining authority, filed herewith.
8. Not applicable.
9. Not applicable.
SIGNATURE
PURSUANT TO THE REQUIREMENTS OF THE TRUST INDENTURE ACT OF 1939, THE
TRUSTEE, FIRST TRUST OF ILLINOIS, NATIONAL ASSOCIATION, A NATIONAL BANKING
ASSOCIATION ORGANIZED AND EXISTING UNDER THE LAWS OF THE UNITED STATES OF
AMERICA, HAS DULY CAUSED THIS STATEMENT OF ELIGIBILITY TO BE SIGNED ON ITS
BEHALF BY THE UNDERSIGNED, THEREUNTO DULY AUTHORIZED, ALL IN THE CITY OF
CHICAGO, AND STATE OF ILLINOIS, AS OF THE 17TH DAY OF MAY, 1996.
First Trust of Illinois, National
Association
By /s/John W. Porter
----------------------------------
John W. Porter
Vice President and Secretary
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