JACOR COMMUNICATIONS, INC.
(a Delaware corporation)
$383,573,000 Principal Amount At Maturity
Liquid Yield Option-TM- Notes Due 2018
(Zero Coupon - Senior)
PURCHASE AGREEMENT
February 3, 1998
▇▇▇▇▇▇▇ ▇▇▇▇▇ & CO.
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇
Incorporated
▇▇▇▇▇▇▇ ▇▇▇▇▇ World Headquarters
North Tower
World Financial Center
New York, New York 10281-1305
Dear Sirs:
Jacor Communications, Inc., a Delaware corporation (the "Company")
and Jacor Communications Company ("JCC"); Broadcast Finance, Inc.; Cine
Films, Inc.; Cine Guarantors, Inc.; Cine Guarantors II, Inc.; Cine Guarantors
II, Ltd.; Cine Mobile Systems Int'l. N.V.; Cine Movil S.A. de C.V.;
Citicasters Co.; GACC-N26LB, Inc.; Great American Merchandising Group, Inc.;
Great American Television Productions, Inc.; Inmobilaria Radial, S.A. de
C.V.; Jacor Broadcasting Corporation; Jacor Broadcasting of Atlanta, Inc.;
Jacor Broadcasting of Charleston, Inc.; Jacor Broadcasting of Colorado, Inc.;
Jacor Broadcasting of Denver, Inc.; Jacor Broadcasting of Florida, Inc.;
Jacor Broadcasting of Kansas City, Inc.; Jacor Broadcasting of Las Vegas,
Inc.; Jacor Broadcasting of Las Vegas II; Jacor Broadcasting of Louisville,
Inc.; Jacor Broadcasting of Louisville II, Inc.; Jacor Broadcasting of Salt
Lake City, Inc.; Jacor Broadcasting of Salt Lake City II, Inc.; Jacor
Broadcasting of St. Louis, Inc.; Jacor Broadcasting of San Diego, Inc.; Jacor
Broadcasting of Sarasota, Inc.; Jacor Broadcasting of Tampa Bay, Inc.; Jacor
Broadcasting of Toledo, Inc.; Jacor Broadcasting of Youngstown, Inc.; Jacor
Cable, Inc.; Jacor Licensee of Charleston, Inc.; Jacor Licensee
_____________________________
-TM- Trademark of ▇▇▇▇▇▇▇ ▇▇▇▇▇ & Co., Inc.
of Kansas City, Inc.; Jacor Licensee of Las Vegas, Inc.; Jacor Licensee of
Las Vegas II, Inc.; Jacor Licensee of Louisville, Inc.; Jacor Licensee of
Louisville II, Inc.; Jacor Licensee of Salt Lake City, Inc.; Jacor Licensee
of Salt Lake City II, Inc.; Jacor/Premiere Holding, Inc.; JBSL, Inc.;
Location Productions, Inc.; Location Productions II, Inc.; Multiverse
Acquisition Corp.; Noble Broadcast Center, Inc.; Noble Broadcast Group, Inc.;
Noble Broadcast Holdings, Inc.; Noble Broadcast Licenses, Inc.; Noble
Broadcast of San Diego, Inc.; Nobro, S.C.; Nova Marketing Group, Inc.; NSN
Network Services, Ltd.; Premiere Radio Networks, Inc.; Radio-Active Media,
Inc.; Sports Radio Broadcasting, Inc.; Sports Radio, Inc.; The ▇▇ ▇▇▇▇▇▇▇
Company Agency, Inc.;VTTV Productions; and WHOK, Inc. each a direct or
indirect subsidiary of the Company or any successor entity, whether by
merger, consolidation, change of name or otherwise (collectively, the
"Subsidiaries" and together with the Company, the "Registrants") confirm
their agreement with ▇▇▇▇▇▇▇ ▇▇▇▇▇ & Co., ▇▇▇▇▇▇▇ Lynch, ▇▇▇▇▇▇, ▇▇▇▇▇▇ &
▇▇▇▇▇ Incorporated (the "Underwriter"), with respect to the sale by the
Company and the purchase by the Underwriter of $383,573,000 aggregate
principal amount at maturity of its Liquid Yield Option-TM- Notes due 2018
(the "▇▇▇▇▇-TM-") and with respect to the grant by the Company to the
Underwriter of the option described in Section 2 hereof to purchase all or
any part of an additional $43,344,000 aggregate principal amount at maturity
of its ▇▇▇▇▇ solely to cover over-allotments. The aforesaid aggregate
principal amount at maturity of ▇▇▇▇▇ (the "Initial Securities") and all or
any part of the $43,344,000 aggregate principal amount at maturity of the
▇▇▇▇▇ subject to the over-allotment option described in Section 2 hereof (the
"Option Securities") are collectively referred to herein as the "Securities."
The Securities are to be issued pursuant to an indenture, to be dated as of
February 9, 1998, as it may be amended or supplemented from time to time
(the "Indenture"), between the Company and The Bank of New York, as trustee
(the "Trustee").
The Securities are convertible into shares of common stock, $.01
par value per share, of the Company (the "Common Stock"), at any time before
the close of business on the maturity date of the Securities. On February 9,
2003, February 9, 2008 and February 9, 2013 the holders of the Securities
each have the option to require the Company to purchase such Securities by
paying the issue price of the Securities plus the accrued original issue
discount to the date of purchase, such payment to be made, at the option of
the Company, in cash, in shares of Common Stock or any combination thereof.
Prior to the purchase and public offering of the Securities by the
Underwriter, the Company and the Underwriter shall enter into an agreement
substantially in the form of Exhibit A hereto (the "Pricing Agreement"). The
Pricing Agreement may take the form of an exchange of any standard form of
written
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telecommunication between the Company and the Underwriter and shall specify
such applicable information as is indicated in Exhibit A hereto. The
offering of the Securities will be governed by this Agreement, as
supplemented by the Pricing Agreement. From and after the date of the
execution and delivery of the Pricing Agreement, this Agreement shall be
deemed to incorporate the Pricing Agreement.
The Registrants have filed with the Securities and Exchange
Commission (the "Commission"), a "shelf" registration statement on Form S-3
(No. 333-40127), including a prospectus, relating to debt securities,
preferred stock, depository shares and common stock and a related preliminary
prospectus supplement for the registration of the offering of the Securities
including the Common Stock issuable upon conversion thereof under the
Securities Act of 1933, as amended (the "Act"), has filed such amendments
thereto, if any, and such amended preliminary prospectuses as may have been
required to the date hereof, and will file such additional amendments thereto
and such amended prospectuses as may hereafter be required. Such
registration statement (as amended, if applicable) and the prospectus
constituting a part thereof (including any prospectus supplement and
including in each case all documents, if any, incorporated by reference
therein and the information, if any, deemed to be part thereof pursuant to
Rule 430A(b) of the rules and regulations of the Commission under the Act
(the "Act Regulations")), as from time to time amended or supplemented
pursuant to the Act, are hereinafter referred to as the "Registration
Statement" and the "Prospectus", respectively, except that if any revised
prospectus shall be provided to the Underwriter by the Company for use in
connection with the offering of the Securities including the Common Stock
issuable upon conversion thereof which differs from the Prospectus on file at
the Commission at the time the Registration Statement becomes effective
(whether or not such revised prospectus is required to be filed by the
Company pursuant to Rule 424(b) of the Act Regulations), the term
"Prospectus" shall refer to such revised prospectus from and after the time
it is first provided to the Underwriter for such use.
The Company understands that the Underwriter proposes to make a
public offering of the Securities as soon as the Underwriter deems advisable
after the Registration Statement becomes effective, the Pricing Agreement has
been executed and delivered and the Indenture has been qualified under the
Trust Indenture Act of 1939, as amended (the "TIA").
The Securities are being issued and sold to fund, in part, the
consideration to be paid by the Company under the Nationwide Agreement (as
defined below). Alternatively and pending such uses, the Company intends to
use the net proceeds for general corporate purposes, including acquisitions
of other broadcast
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properties and broadcast related businesses and to repay in part outstanding
indebtedness under the revolving credit component of the Credit Facility
(defined below).
The Pending Transactions (as such term is defined in the
Prospectus) include, among other things, the acquisition (the "Nationwide
Acquisition") of 17 radio stations (the "Nationwide Stations") from
Nationwide (as defined below) pursuant to an Agreement of Sale (the
"Nationwide Agreement") dated as of December 19, 1997, by and among JCC,
Citicasters Co. and Nationwide Communications, Inc., Nationwide Mutual
Insurance Company, Employers Insurance of Wasau, San Diego Lotus Corp. and
The Beak and Wire Corporation (collectively, "Nationwide").
Prior to or concurrently with the issuance and sale of the
Securities, the Company and JCC, as applicable will (i) issue and sell
4,560,000 shares of Common Stock (excluding 513,000 shares of Common
Stock which is subject to an over-allotment option) and (ii) issue and sell
$120.0 million aggregate principal amount of 8% Senior Subordinated Notes
due 2010 (the "Sub Notes"). This Purchase Agreement and all agreements and
documents executed in connection with the Pending Transactions and all
documents and agreements related to each of the offering of the Sub Notes
(the "Sub Notes Offering") and the offering of the Shares (the "Shares
Offering") are collectively referred to herein as the "Transaction
Documents."
SECTION 1. REPRESENTATIONS AND WARRANTIES. The Registrants represent
and warrant to the Underwriter as of the date hereof and as of the date of
the Pricing Agreement (such latter date being hereinafter referred to as the
"Representation Date") as follows:
(a) When the Registration Statement becomes effective, including at
the date of any post-effective amendment, at the date of the Prospectus (if
different) and at the Closing Date, the Registration Statement will comply
in all material respects with the provisions of the Act, and will not
contain any untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary to make the
statements therein not misleading; the Prospectus and any supplements or
amendments thereto will not at the date of the Prospectus, at the date of
any such supplements or amendments and at the Closing Date contain any
untrue statement of a material fact or omit to state any material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading, except that the
representations and warranties contained in this paragraph (a) shall not
apply to statements in or omissions from the Registration Statement or the
Prospectus (or any supplement or amendment to them) made in reliance upon
and in conformity
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with information relating to the Underwriter furnished to
the Registrants in writing by or on behalf of the Underwriter expressly for
use therein. The Registrants acknowledge for all purposes under this
Agreement that the statements with respect to price and underwriting
discount and the last paragraph all as set forth on the cover page and the
second and third sentences of the first paragraph, paragraph four, the
first sentence of paragraph six, and paragraphs eight, nine, ten and twelve
under the caption "Underwriting" in the Prospectus (or any amendment or
supplement) constitute the only written information furnished to the
Registrants by the Underwriter expressly for use in the Registration
Statement or the Prospectus (or any amendment or supplement to them) and
that the Underwriter shall not be deemed to have provided any other
information (and therefore is not responsible for any such statement or
omission).
(b) Any term sheet and prospectus subject to completion provided by
the Registrants to the Underwriter 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 has been duly organized,
is validly existing as a corporation in good standing under the laws of its
jurisdiction of organization and has the requisite corporate power and
authority to carry on its business as it is currently being conducted, to
own, lease and operate its properties and, as applicable, to authorize the
offering of the Securities, including the Common Stock issuable upon
conversion thereof, to execute, deliver and perform this Agreement, and to
issue, sell and deliver the Securities, including the Common Stock issuable
upon conversion thereof, 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
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each of the Company and the Subsidiaries taken as a whole (a
"Material Adverse Effect").
(e) All of the issued and outstanding shares of capital stock of,
or other ownership interests in, each Subsidiary have been duly and
validly authorized and issued, and all of the shares of capital stock
of, or other ownership interests in, each Subsidiary are owned, directly
or through Subsidiaries, by the Company and, upon completion of the
transactions contemplated by the Transaction Documents, substantially
all of the assets of the Nationwide Stations (other than as described in
the Prospectus) will be owned directly or through Subsidiaries, by the
Company. All such shares of capital stock are fully paid and
non-assessable, 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 Amended and Restated Credit Agreement, dated
as of September 16, 1997, by and among The Chase Manhattan Bank, as
Administrative Agent, Banque Paribas, as Documentation Agent, and Bank
of America, Illinois, as Syndication Agent (the "Credit Facility".)
There are no outstanding subscriptions, rights, warrants, options,
calls, convertible securities, commitments of sale or Liens related to
or entitling any person to purchase or otherwise to acquire any shares
of the capital stock of, or other ownership interest in, any Subsidiary.
(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, non-assessable and not subject to any
preemptive or similar rights; the Securities, including the Common Stock
issuable upon conversion thereof, have been duly authorized for issuance
and sale to the Underwriter pursuant to this Agreement and, when issued and
delivered by the Company pursuant to this Agreement against payment of the
consideration set forth herein, will be validly issued and fully paid and
non-assessable; 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 including the Common Stock issuable upon conversion thereof by
the Company will not be subject to preemptive or other similar rights.
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(g) None of the Company or any of the Subsidiaries is in violation of
their respective charters or bylaws or in default in the performance of any
bond, debenture, note or any other evidence of indebtedness or any
indenture, mortgage, deed of trust or other contract, lease or other
instrument to which the Company or any of the Subsidiaries 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 is subject.
(h) The Transaction Documents have been duly authorized and validly
executed and delivered by the Registrants, as applicable, and constitute
valid and legally binding agreements of the Registrants, as applicable,
enforceable against the Registrants, as applicable, in accordance with
their terms (assuming, in the case of each of the Transaction Documents,
the due execution and delivery thereof by each party thereto).
(i) The Indenture has been duly authorized by the Company and, when
duly executed and delivered in accordance with its terms, will be a valid
and legally binding agreement of the Company, enforceable against the
Company in accordance with its terms, subject to applicable bankruptcy,
insolvency, reorganization, moratorium, fraudulent transfer and other
similar laws affecting creditors' rights and remedies generally and to
general principles of equity (regardless of whether enforcement is sought
in a proceeding at law or in equity) and except to the extent that a waiver
of rights under any usury laws may be unenforceable.
(j) The execution and delivery of this Agreement, the Indenture and
the Securities by the Company, the issuance and sale of the Securities,
including the Common Stock issuable upon conversion thereof, the
performance of this Agreement and the Indenture and the consummation of the
transactions contemplated by this Agreement and the Indenture and the
execution and delivery of the Transaction Documents by each of the
Registrants, as applicable, and the consummation of the Pending
Transactions 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 or any of the terms or provisions of, or (2) constitute a
default or cause an acceleration of any obligation under or result in the
imposition or creation of (or the obligation to create or impose) a Lien
with respect to, any bond, note, debenture or other evidence of
indebtedness or any indenture, mortgage, deed of trust or other agreement
or instrument to which the Company or any of the Subsidiaries is
7
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 is or may be
subject, or (3) contravene 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, or violate or conflict with any statute,
rule or regulation or administrative or court decree applicable to the
Company or any of the Subsidiaries or any of their respective properties.
(k) There is no action, suit or proceeding before or by any court or
governmental agency or body, domestic or foreign, pending against or
affecting the Company or any of the Subsidiaries or Nationwide with respect
to the Nationwide Stations or any of their respective properties, which is
required to be disclosed in the Registration Statement or the Prospectus,
or which could reasonably be expected to result, singly or in the
aggregate, in a Material Adverse Effect or which could reasonably be
expected to materially and adversely affect the consummation of this
Agreement or the transactions contemplated hereby or the consummation of
the Transaction Documents or the Pending Transactions, and to the best of
the Company's knowledge, no such proceedings are contemplated or
threatened. No contract or document of a character required to be
described in the Registration Statement or the Prospectus or to be filed as
an exhibit to the Registration Statement is not so described or filed.
(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, including the Common
Stock issuable upon conversion thereof, suspends the effectiveness of the
Registration Statement, prevents or suspends the use of any preliminary
prospectus or suspends the sale of the Securities, including the Common
Stock issuable upon conversion thereof, 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, including the
Common Stock issuable upon conversion thereof, 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, including the Common Stock issuable upon conversion thereof, or
in any manner draw into question the
8
validity of the Transaction Documents; and every request of the Commission
or any securities authority or agency of any jurisdiction for additional
information (to be included in the Registration Statement or the
Prospectus or otherwise) has been complied with in all material respects.
(m) (i) None of the Company, any of the Subsidiaries and Nationwide
with respect to the Nationwide Stations is in violation of any Federal,
state or local laws and regulations relating to pollution or protection of
human health or the environment (including, without limitation, ambient
air, surface water, ground water, land surface or subsurface strata),
including, without limitation, laws and regulations relating to emissions,
discharges, releases or threatened releases of toxic or hazardous
substances, materials or wastes, or petroleum and petroleum products
("Materials of Environmental Concern"), or otherwise relating to the
protection of human health and safety, or the storage, disposal, transport
or handling of Materials of Environmental Concern (collectively,
"Environmental Laws"), which violation includes, but is not limited to,
noncompliance with any permits or other governmental authorizations, except
to the extent that any such violation could not have a Material Adverse
Effect or otherwise require disclosure in the Prospectus; and (ii) to the
best knowledge of the Company and any of the Subsidiaries, after due
inquiry, (A) none of the Company, any of the Subsidiaries, Nationwide with
respect to the Nationwide Stations and any of the other parties to the
Transaction Documents (the "Pending Transaction Parties") with respect to
the properties and radio stations to be purchased or sold pursuant to the
Transaction Documents (the "Pending Properties") has received any
communication (written or oral), whether from a governmental authority or
otherwise, alleging any such violation or noncompliance, and there are no
circumstances, either past, present or that are reasonably foreseeable,
that may lead to such violation in the future, (B) there is no pending or
threatened claim, action, investigation or notice (written or oral) by any
person or entity alleging potential liability for investigatory, cleanup,
or governmental responses costs, or natural resources or property damages,
or personal injuries, attorney's fees or penalties relating to (x) the
presence, or release into the environment, of any Material of Environmental
Concern at any location owned or operated by the Company, any of the
Subsidiaries, Nationwide with respect to the Nationwide Stations, and the
Pending Transaction Parties with respect to the Pending Properties, now or
in the past, or (y) circumstances forming the basis of any violation, or
alleged violation, of any Environmental Law (collectively, "Environmental
Claims") that could have a Material Adverse Effect or otherwise require
disclosure in the Prospectus, and (C) there are no past or present actions,
activities, circumstances, conditions,
9
events or incidents, that could form the basis of any Environmental
Claim against the Company, any of the Subsidiaries, Nationwide with
respect to the Nationwide Stations, and the Pending Transaction Parties
with respect to the Pending Properties, or against any person or entity
whose liability for any Environmental Claim the Company, any of the
Subsidiaries, Nationwide with respect to the Nationwide Stations, and
the Pending Transaction Parties with respect to the Pending Properties,
have retained or assumed either contractually or by operation of law.
In the ordinary course of its business, each of the Company and the
Subsidiaries and Nationwide with respect to the Nationwide Stations
conducts a periodic review of the effect of Environmental Laws on its
business, operations and properties in the course of which it
identifies and evaluates associated costs and liabilities (including,
without limitation, any capital or operating expenditures required for
clean-up, closure of properties or compliance with Environmental Laws or
any permit, license or approval, any related constraints on operating
activities and any potential liabilities to third parties); on the basis
of such review, the Company and the Subsidiaries, have reasonably
concluded that such associated costs and liabilities could not have a
Material Adverse Effect.
(n) None of the Company, any of the Subsidiaries, Nationwide with
respect to the Nationwide Stations, and to the knowledge of the Company,
the Pending Transaction Parties with respect to the Pending Properties, has
violated any Federal, state or local law relating to discrimination in the
hiring, promotion or pay of employees nor any applicable wage or hour laws,
nor any provisions of the Employee Retirement Income Security Act of 1974
("ERISA") or the rules and regulations promulgated thereunder, nor has the
Company or any of the Subsidiaries or Nationwide with respect to the
Nationwide Stations or, to the knowledge of the Company, the Pending
Transaction Parties with respect to the Pending Properties, engaged in any
unfair labor practice, which in each case described in this sentence could
reasonably be expected to result, singly or in the aggregate, in a Material
Adverse Effect. There is (i) no significant unfair labor practice
complaint pending against the Company or any of the Subsidiaries or
Nationwide with respect to the Nationwide Stations or, to the knowledge of
the Company, the Pending Transaction Parties with respect to the Pending
Properties, or, to the best knowledge of the Company, threatened against
any of them, before the National Labor Relations Board or any state or
local labor relations board, and no significant grievance or significant
arbitration proceeding arising out of or under any collective bargaining
agreement is so pending against the Company or any of the Subsidiaries or
Nationwide with respect to the Nationwide Stations or, to the knowledge of
the Company, the Pending Transaction Parties with respect to the Pending
Properties, or, to the best knowledge of the Company, threatened against
any of them, (ii) no significant strike, labor dispute, slowdown or
stoppage pending against the Company or any of its Subsidiaries or
Nationwide with respect to the Nationwide Stations or, to the knowledge of
the Company, the Pending
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Transaction Parties with respect to the Pending Properties, or, to
the best knowledge of the Company, threatened against the Company or any
of the Subsidiaries, Nationwide with respect to the Nationwide Stations,
or the Pending Transaction Parties with respect to the Pending
Properties and (iii) to the best knowledge of the Company, no union
representation question existing with respect to the employees of the
Company or any of the Subsidiaries, or the Pending Transaction Parties
with respect to the Pending Properties, and, to the best knowledge of
the Company, no union organizing activities are taking place, except
(with respect to any matter specified in clause (i), (ii) or (iii)
above, singly or in the aggregate) such as could not have a Material
Adverse Effect.
(o) The Company, each of its Subsidiaries and Nationwide with respect
to the Nationwide Stations each have good and marketable title, free and
clear of all Liens, to all property and assets described in the
Registration Statement as being owned by it, except for (i) Liens pursuant
to the Credit Facility, (ii) Liens on general office equipment which are
not material to the Company's operations and (iii) Liens on the Nationwide
Stations which will be released upon consummation of the Nationwide
Acquisition. All leases to which the Company, the Subsidiaries or
Nationwide with respect to the Nationwide Stations are a party are valid
and binding and no default has occurred or is continuing thereunder and the
Company, each of its Subsidiaries and Nationwide with respect to the
Nationwide Stations enjoy peaceful and undisturbed possession under all
such leases to which any of them is a party as lessee with such exceptions
as do not materially interfere with the use made by the Company or any such
Subsidiary or Nationwide with respect to the Nationwide Stations.
(p) The respective firm of accountants that has certified or shall
certify the applicable consolidated financial statements and supporting
schedules of the Company, E.F.M. Media Management, Inc., E.F.M. Publishing,
Inc., ▇▇▇ Media, Inc., Archon Communications, Inc., Synergy Broadcast
Investment Enterprises, L.L.C., Worldstar, Inc., Multiverse Networks
L.L.C., ▇▇▇▇▇▇▇▇ Broadcasting, Inc., (collectively, the "C&L Audited
Companies"), Nationwide, Premiere and Jacor Broadcasting of Youngstown,
Inc. filed, to be filed or incorporated by reference with the Commission as
part of the Registration
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Statement and the Prospectus are independent public accountants with
respect to the Company, the Subsidiaries, the C&L Audited Companies,
Premiere, Nationwide and Jacor Broadcasting of Youngstown, Inc. as
required by the Act. The consolidated historical and PRO FORMA
financial statements, together with related schedules and notes, set
forth in the Prospectus and the Registration Statement comply as to form
in all material respects with the requirements of the Act. Such
historical financial statements fairly present the consolidated
financial position of the Company, the Subsidiaries, the C&L Audited
Companies, Premiere, Nationwide and Jacor Broadcasting of Youngstown,
Inc. 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, the C&L
Audited Companies, Premiere, Nationwide and Jacor Broadcasting of
Youngstown, Inc.
(q) Subsequent to the respective dates as of which information is
given in the Registration Statement and the Prospectus and up to the
Closing Date, none of the Company, any of the Subsidiaries or Nationwide
with respect to the Nationwide Stations have incurred any liabilities or
obligations, direct or contingent, which are material to the Company and
the Subsidiaries taken as a whole, nor entered into any transaction not in
the ordinary course of business and there has not been, singly or in the
aggregate, any material adverse change, or any development which could
reasonably be expected to involve a material adverse change, in the
properties, business, results of operations, condition (financial or
otherwise), affairs or prospects of the Company and the Subsidiaries taken
as a whole (a "Material Adverse Change").
(r) All tax returns required to be filed by the Company, any of the
Subsidiaries 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
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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 (i) may be required by the NASD, (ii) are
disclosed in the Prospectus or (iii) have been obtained and made under
the Act, the Exchange Act, the TIA or state securities or "Blue Sky"
laws or regulations. Neither the Company nor any of its affiliates is
presently doing business with the government of Cuba or with any person
or affiliate located in Cuba.
(t) (i) Each of the Company, the Subsidiaries and Nationwide with
respect to the Nationwide Stations and, to the knowledge of the Company,
any of the Pending Transaction Parties with respect to the Pending
Properties, has all certificates, consents, exemptions, orders, permits,
licenses, authorizations, or other approvals (each, an "Authorization") of
and from, and has made all declarations and filings with, all Federal,
state, local and other governmental authorities (including the Federal
Communications Commission ("FCC")), all self-regulatory organizations and
all courts and other tribunals, necessary or required to own, lease,
license and use its properties and assets and to conduct its business in
the manner described in the Prospectus, except to the extent that the
failure to obtain or file could not, singly or in the aggregate, reasonably
be expected to have a Material Adverse Effect, (ii) all such Authorizations
are valid and in full force and effect, (iii) each of the Company, the
Subsidiaries and Nationwide with respect to the Nationwide Stations and, to
the knowledge of the Company, the Pending Transaction Parties with respect
to the Pending Properties, is in compliance in all material respects with
the terms and conditions of all such Authorizations and with the rules and
regulations of the regulatory authorities and governing bodies having
jurisdiction with respect thereto and (iv) each commercial radio broadcast
station identified in the Prospectus as owned and operated by any of the
Company, the Subsidiaries or Nationwide with respect to the Nationwide
Stations, or, to the knowledge of the Company, the Pending Transaction
Parties with respect to the Pending Properties, as applicable, is operating
with the maximum facilities specified by the Authorization pertaining
thereto.
(u) Neither the Company nor any of the Subsidiaries is (a) an
"investment company" or a company "controlled" by an investment company
within the meaning of the Investment Company Act of 1940, as amended, or
(b) a "holding
13
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) The Securities have been approved for quotation on the Nasdaq
SmallCap Market, subject to notice of issuance.
(x) Each of the Company, the Subsidiaries and Nationwide with respect
to the Nationwide Stations and, to the knowledge of the Company, the
Pending Transaction Parties with respect to the Pending Properties,
possesses the patents, patent rights, licenses, inventions, copyrights,
know-how (including trade secrets and other unpatented and/or unpatentable
proprietary or confidential information, systems or procedures),
trademarks, service marks and trade names (collectively, "Intellectual
Property") presently employed by them in connection with the businesses now
operated by them, and none of the Company, the Subsidiaries and Nationwide
with respect to the Nationwide Stations, and, to the knowledge of the
Company, the Pending Transaction Parties with respect to the Pending
Properties, has received any notice of infringement of or conflict with
asserted rights of others with respect to the foregoing which, singly or in
the aggregate, could reasonably be expected to result in any Material
Adverse Change. The use of such Intellectual Property in connection with
the business and operations of each of the Company, the Subsidiaries and
Nationwide with respect to the Nationwide Stations, and, to the knowledge
of the Company, the Pending Transaction Parties with respect to the Pending
Properties does not, to the Company's knowledge, infringe on the rights of
any person except where any such infringement has not resulted in, or could
not reasonably be expected to result in any Material Adverse Change.
(y) Each certificate signed by any officer of any Registrant and
delivered to the Underwriter or counsel for the Underwriter shall be deemed
to be a representation and warranty by the applicable Registrant to the
Underwriter as to the matters covered thereby.
(z) Each of the Company, the Subsidiaries and Nationwide with respect
to the Nationwide Stations maintains a system of internal accounting
controls sufficient to provide reasonable assurance that (1) transactions
are executed in
14
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.
(aa) 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.
(bb) Each of the Company, the Subsidiaries and Nationwide with respect
to the Nationwide Stations and, to the knowledge of the Company, the
Pending Transaction Parties with respect to the Pending Properties,
maintains insurance covering their properties, operations, personnel and
businesses. Such insurance insures against such losses and risks as are
adequate in accordance with customary industry practice to protect the
Company and its Subsidiaries and their businesses. None of the Company,
any Subsidiary and Nationwide with respect to the Nationwide Stations, and,
to the knowledge of the Company, the Pending Transaction Parties with
respect to the Pending Properties, has received notice from any insurer or
agent of such insurer that substantial capital improvements or other
expenditures will have to be made in order to continue such insurance. All
such insurance is outstanding and duly in force on the date hereof and will
be outstanding and duly in force on the Closing Date.
(cc) Neither the Company nor Nationwide with respect to the Nationwide
Stations has, directly or indirectly, paid or delivered any fee, commission
or other sum of money or item or property, however characterized, to any
finder, agent, government official or other party, in the United States or
any other country, which is in any manner related to the business or
operations of the Company or Nationwide with respect to the Nationwide
Stations, respectively, which the Company knows or has reason to believe to
have been illegal under any Federal, state or local laws of the United
States or any other country having jurisdiction; and neither the Company
nor Nationwide with
15
respect to the Nationwide Stations has participated, directly or
indirectly, in any boycotts or other similar practices in
contravention of law affecting any of its actual or potential customers.
(dd) The Company does not 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, except as disclosed in
the Prospectus, 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.
(ee) 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.
(ff) 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.
(gg) Each of the Company, its Subsidiaries and Nationwide with
respect to the Nationwide Stations and, to the knowledge of the Company,
the Pending Transaction Parties with respect to the Pending Properties, has
filed with the FCC all material reports, documents, instruments,
information and applications required to be filed pursuant to the FCC's
rules, regulations and requests. No notice has been issued by the FCC
which could permit, or after notice or lapse of time or both could permit,
revocation or termination of any FCC license of any of the Subsidiaries,
Nationwide with respect to the Nationwide Stations or,
16
to the knowledge of the Company, the Pending Transaction Parties with
respect to the Pending Properties, or to the knowledge of the Company,
of any of the Licensees prior to the expiration dates thereof or which
could reasonably be expected to result in any other material impairment
of any of the Subsidiaries', or Nationwide with respect to the
Nationwide Stations or its subsidiaries, or, to the knowledge of the
Company, the Pending Transaction Parties or their subsidiaries with
respect to the Pending Properties, or, to the knowledge of the Company,
of any of the Licensees' rights thereunder and which could reasonably be
expected to, singly or in the aggregate, have a Material Adverse Effect.
(hh) Each of the Company's radio and television stations (the
"Stations") is now operating, and has operated, in compliance in all
material respects with the Communications Act of 1934, as amended (the
"Communications Act"), and the published rules and regulations of the FCC.
There is not issued, outstanding or pending any Notice of Violation, Notice
of Apparent Liability, Order to Show Cause, material complaint or
investigation by or before the FCC which could materially threaten or
materially adversely affect any of the Company's or any of its
Subsidiaries', Nationwide with respect to the Nationwide Stations, or, to
the knowledge of the Company, the Pending Transaction Parties or their
subsidiaries' with respect to the Pending Properties, or, to the knowledge
of the Company, any Licensees' FCC licenses or which could reasonably be
expected to result in any material adverse effect upon any of the Company's
Subsidiaries, Nationwide with respect to the Nationwide Stations, or, to
the knowledge of the Company, the Pending Transaction Parties or their
subsidiaries with respect to the Pending Properties, or, to the knowledge
of the Company, any Licensees' operation of its respective stations and
which could reasonably be expected to, singly or in the aggregate, have a
Material Adverse Effect, nor does the Company have reason to believe that
the FCC licenses with respect to the Stations will not be renewed for a
full eight year term when such FCC licenses are due for renewal.
(ii) 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.
(jj) Other than for the divestiture of two radio stations in San
Diego, California, as described in the Prospectus, the execution, delivery
and perfor-
17
▇▇▇▇▇ of the obligations by JCC, Citicasters Co. and Nationwide (each, a
"Nationwide Transaction Party" and, collectively, the "Nationwide
Transaction Parties") and, to the knowledge of the Company, by the
Pending Transaction Parties with respect to the Pending Properties to
the extent each is a party to the Transaction Documents are not and will
not be contrary to the Communications Act, will not result in any
violation of the FCC's published rules and regulations, will not cause
any forfeiture or impairment of any FCC license of any of the Stations
by or before the FCC, and will not require any consent, approval or
authorization of the FCC. Other than applications relating to the
divestiture of two radio stations in San Diego, California, all
necessary applications, exhibits or other filings required by the FCC
for transfer of control of the Stations now controlled by the Pending
Transaction Parties with respect to the Pending Properties pursuant to
the applicable Transaction Documents have been filed with the FCC (the
"Transfer Applications"). To the best of the Company's knowledge, there
are no circumstances that would cause the FCC to reject the Transfer
Applications.
(kk) The Nationwide Transaction Parties and, to the knowledge of the
Company, the Pending Transaction Parties, have, to the extent each is or
will be a party thereto, all requisite corporate power and authority to
execute, deliver and perform their respective obligations under each of the
Transaction Documents; each of the Transaction Documents has been duly and
validly authorized, executed and delivered by the Nationwide Transaction
Parties and, to the knowledge of the Company, the Pending Transaction
Parties, to the extent each is a party thereto, and each constitutes a
valid and legally binding agreement of the Nationwide Transaction Parties
and, to the knowledge of the Company, the Pending Transaction Parties,
enforceable against each Nationwide Transaction Party or Pending
Transaction Party, as applicable, in accordance with its terms; except as
set forth in the Prospectus, no consent, approval, authorization or order
of any court or governmental agency or body is required for the performance
of any of the Transaction Documents by each of the Nationwide Transaction
Parties or, to the knowledge of the Company, each Pending Transaction
Party, to the extent each is a party thereto, or the consummation by each
of the Nationwide Transaction Parties, or to the knowledge of the Company,
each of the Pending Transaction Parties, of any of the transactions
contemplated thereby, except such as may be required and have been
obtained, or upon effectiveness of the Registration Statement, will have
been obtained, under the Act, the Exchange Act, 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 Underwriter; and none of the
18
Nationwide Transaction Parties, is (i) in violation of its charter or
bylaws, (ii) in violation of any statute, judgment, decree, order, rule
or regulation applicable to any of them or any of their respective
properties or assets, which violation would have a Material Adverse
Effect, or (iii) in default in the performance or observance of any
obligation, agreement, covenant or condition contained in any of the
Transaction Documents or any other contract, indenture, mortgage, deed
of trust, loan agreement, note, lease, license, franchise agreement,
permit, Authorizations, certificate or agreement or instrument to which
any of them is a party or to which any of them is subject, which default
would have a Material Adverse Effect.
(ll) The execution, delivery and performance by the Nationwide
Transaction Parties, to the extent each is a party thereto, of each of the
Transaction Documents, and the consummation by the respective Nationwide
Transaction Parties of the transactions contemplated thereby, will not
violate, conflict with or constitute or result in a breach of or a default
under (or an event which, with notice or lapse of time, or both, would
constitute a breach of or a default under) any of (i) the terms or
provisions of any of the Transaction Documents or any other indenture,
mortgage, deed of trust, loan agreement, note, lease, license, franchise
agreement, or agreement or instrument to which a Nationwide Transaction
Party, is a party or to which any of their respective properties or assets
are subject, which violation, conflict, breach or default would have a
Material Adverse Effect, (ii) the charter or bylaws of the Nationwide
Transaction Party, or (iii) any statute, judgment, decree, order, rule or
regulation of any court, governmental agency or other body or self
regulatory organization applicable to each Nationwide Transaction Party, or
any of their respective properties or assets, which violation, conflict,
breach or default would have a Material Adverse Effect.
(mm) The Nationwide Acquisition has been duly authorized by the
Nationwide Transaction Parties and the transactions contemplated by the
Transaction Documents have been approved, to the extent required, by all
appropriate corporate action; approval of the transactions contemplated by
the Transaction Documents by the shareholders of the Company is not
required.
(nn) The Company has delivered to the Underwriter 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
19
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
Underwriter; there exists as of the date hereof (after giving effect to
the transactions contemplated by the Transaction Documents) no event or
condition which would constitute a default or an event of default (in
each case as defined in the Credit Facility, the ▇▇▇▇▇ due 2011, the
10-1/8% Notes, the 9-3/4% Notes, the 8-3/4% Notes or the Sub Notes,
respectively) under the Credit Facility, the ▇▇▇▇▇ due 2011, the 10-1/8%
Notes, the 9-3/4% Notes, the 8-3/4% Notes 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 Credit Facility, the ▇▇▇▇▇ due 2011, the 10-1/8% Notes, the 9-3/4%
Notes, the 8-3/4% Notes or the Sub Notes, which would result in a
Material Adverse Effect or materially adversely effect the ability of
each of the Company or Nationwide to consummate the transactions
contemplated by the Transaction Documents. For purposes of this
Agreement, "▇▇▇▇▇ DUE 2011" means the liquid yield option notes due 2011
issued by the Company pursuant to an Indenture, dated as of June 12,
1996, by and between the Company and the Bank of New York; "10-1/8%
NOTES" means the 10-1/8% Senior Subordinated Notes due 2006 issued by
JCAC, Inc. (predecessor to JCC), pursuant to an Indenture, dated as of
June 12, 1996, by and among JCAC, Inc., the Company and First Trust of
Illinois, National Association; "9-3/4% NOTES" means the 9-3/4% Senior
Subordinated Notes due 2006 issued by JCC pursuant to an Indenture,
dated as of December 17, 1996, by and among JCC, the Company, the
Subsidiary Guarantors named therein and the Bank of New York; and
"8-3/4% NOTES" means the 8-3/4% Senior Subordinated Notes due 2007
issued by JCC pursuant to an Indenture, dated as of June 11, 1997, by
and among JCC, the Company, the Subsidiary Guarantors named therein and
the Bank of New York.
(oo) The Company has filed with the Commission all filings that are
required to be filed as of the date hereof with respect to the financial
statements of each of the Nationwide Transaction Parties and each of the
Pending Transaction Parties in filings made under the Act and under the
Exchange Act, specifically as required by Rule 3-05 of Regulation S-X and
General Instructions and Item 7 of Form 8-K.
(pp) 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.
20
(qq) The Company meets the requirements for registering an offering
of securities with the Commission on registration statement Form S-3
pursuant to the standards for those Forms prior to October 21, 1992.
(rr) The Securities have received a rating of B3 from ▇▇▇▇▇'▇
Investors Service ("Moody's"); and the Sub Notes have received a rating of
B2 from Moody's.
(ss) Immediately after any sale of the Securities, the Sub Notes
and the Shares by the Company or JCC, as applicable, the aggregate
amount of securities that have been issued and sold by the Company or
JCC, as applicable, (including the Securities, the Sub Notes and the
Shares) will not exceed the amount of securities registered under the
Registration Statement.
SECTION 2. SALE AND DELIVERY TO UNDERWRITER; CLOSING. On the basis of the
representations and warranties herein contained and subject to the terms and
conditions herein set forth, the Company agrees to sell to the Underwriter and
the Underwriter agrees to purchase from the Company, at the price per $1,000
principal amount at maturity set forth in the Pricing Agreement, the Initial
Securities.
(a) If the Company has elected not to rely upon Rule 430A
under the Act Regulations, the initial public offering price, the initial
conversion rate and the purchase price (per $1,000 principal amount at
maturity) to be paid by the Underwriter for the Securities have each been
determined and set forth in the Pricing Agreement, dated the date hereof,
and an amendment to the Registration Statement and the Prospectus will be
filed before the Registration Statement becomes effective.
(b) If the Company has elected to rely upon Rule 430A under
the Act Regulations, the purchase price (per $1,000 principal amount at
maturity) to be paid by the Underwriter for the Securities shall be an
amount equal to the initial public offering price, less an amount per
Security to be determined by agreement between the Underwriter and the
Company. The initial public offering price (per $1,000 principal amount at
maturity) of the Securities and the initial conversion rate applicable to
the Securities likewise shall be determined by agreement between the
Underwriter and the Company. The initial public offering price, the
initial conversion rate and the purchase price, when so determined, shall
be set forth in the Pricing Agreement. In the event that such prices have
not been agreed upon and the Pricing Agreement has
21
not been executed and delivered by the parties thereto by the close of
business on the fourth business day following the date of this
Agreement, this Agreement shall terminate forthwith, without liability
of any party to any other party, unless otherwise agreed to by the
Company and the Underwriter.
(i) In addition, on the basis of the representations
and warranties herein contained and subject to the terms and
conditions herein set forth, the Company hereby grants an option to
the Underwriter, to purchase from it any or all of the Option
Securities (in multiples of $1,000 principal amount at maturity) at
the same price (per $1,000 principal amount at maturity) as is to be
paid by the Underwriter for the Initial Securities, plus accrued
amortization of original issue discount, if any, on the terms set
forth in the Pricing Agreement. The option hereby granted will expire
30 days after (i) the date the Registration Statement becomes
effective, if the Company has elected not to rely on Rule 430A under
the Act Regulations, or (ii) the Representation Date, if the Company
has elected to rely on Rule 430A under the Act Regulations, and may be
exercised in whole or in part from time to time only for the purpose
of covering over-allotments which may be made in connection with the
offering and distribution of the Initial Securities upon notice by the
Underwriter to the Company setting forth the number of Option
Securities as to which the Underwriter is then exercising the option
and the time and date of payment and delivery for such Option
Securities. Any such time and date of delivery (a "Date of Delivery")
shall be determined by the Underwriter, but shall not be later than
seven full business days after the exercise of said option, nor in any
event prior to the Closing Time, as hereinafter defined, unless
otherwise agreed by the Underwriter and the Company.
(ii) Delivery of the Initial Securities shall be made
at the offices of the Underwriter in New York City, and payment of the
purchase price for the Initial Securities shall be made at the offices
of counsel for the Company in New York City, or, in each case, at such
other place as shall be agreed upon by the Underwriter and the
Company, at 10:00 A.M., New York City time, on February 9, 1998 (such
time and date of payment and delivery being herein called the "Closing
Time"). In addition, in the event that any or all of the Option
Securities are purchased by the Underwriter, payment of the purchase
price for, and delivery of certificates for, such Option Securities
shall be made at the offices set forth above, or at such other place
as shall be agreed upon by
22
the Underwriter and the Company, on the Date of Delivery as
specified in the notice from the Underwriter to the Company.
Payment shall be made by wire transfer payable in same day funds,
to the order of the Company against delivery to the Underwriter of
certificates for the Securities to be purchased by it. Certificates
for the Securities and the Option Securities, if any, shall be in
such denominations and registered in such names as the Underwriter
may request in writing at least two business days before Closing
Time or the Date of Delivery, as the case may be. The certificates
for the Initial Securities and the Option Securities, if any, will
be made available for examination and packaging by the Underwriter
not later than 10:00 A.M., New York City time, on the last business
day prior to the Closing Time or the Date of Delivery, as the case
may be, in New York City.
SECTION 3. COVENANTS OF THE COMPANY. The Registrants, as applicable,
covenants with the Underwriter as follows:
(a) The Registrants will, if the Registration Statement has not
heretofore become effective under the Act, file an amendment to the
Registration Statement or, if necessary pursuant to Rule 430A under the
Act, a post-effective amendment to the Registration Statement, in each
case as soon as practicable after the execution and delivery of this
Agreement, and will use their best efforts to cause the Registration
Statement or such post-effective amendment to become effective at the
earliest possible time. The Registrants will comply fully and in a
timely manner with the applicable provisions of Rule 424 and Rule 430A
and, if applicable, Rule 462, under the Act.
(b) The Company will advise you promptly and, if requested by any of
you, confirm such advice in writing, (i) when the Registration Statement
has become effective, if and when the Prospectus is sent for filing
pursuant to Rule 424 under the Act and when any post-effective amendment to
the Registration Statement becomes effective, (ii) of the receipt of any
comments from the Commission or any state securities commission or
regulatory authority that relate to the Registration Statement or requests
by the Commission or any state securities commission or regulatory
authority for amendments to the Registration Statement or amendments or
supplements to the Prospectus or for additional information, (iii) of the
issuance by the Commission of any stop order suspending the effectiveness
of the Registration Statement, or of the suspension of qualification of the
Securities, including the Common Stock issuable upon conversion thereof,
for offering or sale in any jurisdiction, or the initiation of
23
any proceeding for such purpose by the Commission or any state
securities commission or any other regulatory authority, and (iv) of the
happening of any event during such period as in your reasonable judgment
you are required to deliver a prospectus in connection with sales of the
Securities by you which makes any statement of a material fact made in
the Registration Statement untrue or which requires the making of any
additions to or changes in the Registration Statement (as amended or
supplemented from time to time) in order to make the statements therein
not misleading or that makes any statement of a material fact made in
the Prospectus (as amended or supplemented from time to time) untrue or
which requires the making of any additions to or changes in the
Prospectus (as amended or supplemented from time to time) in order to
make the statements therein, in light of the circumstances under which
they were made, not misleading. The Company shall use its best efforts
to prevent the issuance of any stop order or order suspending the
qualification or exemption of the Securities under any state securities
or Blue Sky laws, and, if at any time the Commission shall issue any
stop order suspending the effectiveness of the Registration Statement,
or any state securities commission or other regulatory authority shall
issue an order suspending the qualification or exemption of the
Securities under any state securities or Blue Sky laws, the Company
shall use every reasonable effort to obtain the withdrawal or lifting of
such order at the earliest possible time.
(c) The Company will furnish to you without charge two (2) signed
copies (plus one (1) additional signed copy to your legal counsel) of the
Registration Statement as first filed with the Commission and of each
amendment to it, including all exhibits filed therewith, and will furnish
to you such number of conformed copies of the Registration Statement as so
filed and of each amendment to it, without exhibits, as you may reasonably
request.
(d) The Registrants will not file any amendment or supplement to the
Registration Statement, whether before or after the time when it becomes
effective, or make any amendment or supplement to the Prospectus, of which
you shall not previously have been advised and provided a copy within two
business days prior to the filing thereof (or such reasonable amount of
time as is necessitated by the exigency of such amendment or supplement) or
to which you shall reasonably object; and the Registrants will prepare and
file with the Commission, promptly upon your reasonable request, any
amendment to the Registration Statement or supplement to the Prospectus
which may be necessary or advisable in connection with the distribution of
the Securities by you, and will
24
use their best efforts to cause any amendment to the Registration
Statement to become effective as promptly as possible.
(e) Promptly after the Registration Statement becomes effective, and
from time to time thereafter for such period in your reasonable judgment as
a prospectus is required to be delivered in connection 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 the Underwriter and dealers may reasonably
request. The Registrants consent to the use of the Prospectus and any
amendment or supplement thereto by any Underwriter or any dealer, both in
connection with the offering or sale of the Securities and for such period
of time thereafter as the Prospectus is required by the Act or the Exchange
Act to be delivered in connection therewith.
(f) If during such period as in your reasonable judgment you are
required to deliver a prospectus in connection with sales of the Securities
by you any event shall occur as a result of which, in the opinion of
counsel for the Underwriter, 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, in the opinion of counsel for the
Underwriter, it is necessary to amend or supplement the Prospectus to
comply with any law, the Registrants will promptly prepare and file with
the Commission an appropriate amendment or supplement to the Prospectus so
that the statements in the Prospectus, as so amended or supplemented, will
not, in the light of the circumstances existing as of the date the
Prospectus is so delivered, be misleading, and will comply with applicable
law, and will furnish to each Underwriter and dealer without charge such
number of copies thereof as the Underwriter and dealers may reasonably
request.
(g) Prior to any public offering of the Securities, the Registrants
will cooperate with you and your counsel in connection with the
registration or qualification of the Securities, including the Common Stock
issuable upon conversion thereof, for offer and sale by you under the state
securities or Blue Sky laws of such jurisdictions as you may request
(provided, that the Registrants shall not be obligated to qualify as a
foreign corporation in any jurisdiction in which they are not so qualified
or to take any action that would subject them to general consent to service
of process in any jurisdiction in which they are not
25
now so subject). The Registrants 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 Registrants will timely complete all required filings and
otherwise fully comply in a timely manner with all provisions of the
Exchange Act.
(j) During the period of three 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 or any national
securities exchange on which any class of securities of the Company is
listed, and (ii) from time to time such other information concerning the
Company as you may request.
(k) The Company will use the proceeds from the sale of the Securities
in the manner described in the Prospectus under the caption "Use of
Proceeds."
(l) The Company will cause the Securities to be quoted on the Nasdaq
Stock Market's SmallCap Market (the "Nasdaq SmallCap Market") and will use
its reasonable best efforts to maintain such quotation while any of the
Securities are outstanding.
(m) The Registrants will use their best efforts to do and perform all
things required to be done and performed under this Agreement by them prior
to or after the Closing Date and to satisfy all conditions precedent on
their part to the delivery of the Securities.
(n) The Company will timely complete all required filings and
otherwise comply fully in a timely manner with all provisions of the
Exchange Act, and will file all reports and any definitive proxy or
information statements required to be filed by the Company with the
Commission pursuant to 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 the Prospectus is required in
26
connection with the offer or sale of the Securities, including the Common
Stock issuable upon conversion thereof.
(o) During the period beginning on the date of this Agreement and
continuing to and including the Closing Date, except as described under
"Transactions" in the Prospectus with respect to the Pending Transactions
and under "Prospectus Supplement Summary -- Recent Developments" in the
Prospectus with respect to certain other potential transactions, there will
be no transactions entered into by the Company or any of its subsidiaries
(each a "Subsidiary" and, collectively, the "Subsidiaries"), which are
material with respect to the Company or any of the Subsidiaries,
respectively, taken individually or as a whole, as determined in accordance
with the provisions of Rule 3-05 of Regulation S-X or other standards for
materiality as may be agreed upon by the Company and the Underwriter 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.
SECTION 4. PAYMENT OF EXPENSES. Whether or not the transactions
contemplated hereby are consummated or this Agreement is terminated, the
Registrants will pay and be responsible for all costs, expenses, fees and taxes
in connection with or incident to (i) the printing, processing, filing,
distribution and delivery under the Act or the Exchange Act of the Registration
Statement, each preliminary prospectus, the Prospectus and all amendments or
supplements thereto, (ii) the printing, processing, execution, distribution and
delivery of this Agreement, any memoranda describing state securities or Blue
Sky laws and all other agreements, memoranda, correspondence and other documents
printed, distributed and delivered in connection with the offering of the
Securities, (iii) the registration with the Commission and the issuance and
delivery of the Securities, (iv) the registration or qualification of the
Securities for offer and sale under the securities or Blue Sky laws of the
jurisdictions referred to in paragraph (g) 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 SmallCap Market,
(viii) the rating of the Securities and the Sub Notes 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 under-
27
writer), (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
Registrants of their other obligations under this Agreement, the cost of its
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.
SECTION 5. CONDITIONS OF UNDERWRITER'S OBLIGATIONS. The obligations of
the Underwriter hereunder are subject to the accuracy of the representations and
warranties of the Registrants herein contained, to the performance by the
Registrants of their obligations hereunder, and to the following further
conditions:
(a) All the representations and warranties of the Registrants
contained in this Agreement shall be true and correct on the Closing Date
with the same force and effect as if made on and as of the Closing Date.
The Company shall have performed or complied with all of its obligations
and agreements herein contained and required to be performed or complied
with by it at or prior to the Closing Date.
(b) (i) The Registration Statement shall have become effective (or,
if a post-effective amendment is required to be filed pursuant to Rule 430A
promulgated under the Act, such post-effective amendment shall have become
effective) not later than 10:00 A.M. (and in the case of a Registration
Statement filed under Rule 462(b) of the Act, not later than 10:00 P.M.),
New York City time, on the date of this Agreement or at such later date and
time as you may approve in writing, (ii) at the Closing Date, no stop order
suspending the effectiveness of the Registration Statement shall have been
issued and no proceedings for that purpose shall have been commenced or
shall be pending before or contemplated by the Commission and every request
for additional information on the part of the Commission shall have been
complied with in all material respects, and (iii) no stop order suspending
the sale of the Securities in any jurisdiction referred to in Section 4(g)
shall have been issued and no proceeding for that purpose shall have been
commenced or shall be pending or threatened.
(c) No action shall have been taken and no statute, rule, regulation
or order shall have been enacted, adopted or issued by any governmental
agency which would, as of the Closing Date, prevent the issuance of the
Securities, including the Common Stock issuable upon conversion thereof,
the Shares, or
28
the Sub Notes; 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, including the Common Stock issuable upon conversion
thereof, the Shares or the Sub Notes, 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, or incorporated by reference, in the
Registration Statement and the Prospectus, there shall not have been any
material change in the capital stock or long-term debt, or material
increase in short-term debt, of the Company or any of the Subsidiaries
taken as a whole and (iii) the Company and the Subsidiaries taken as a
whole, shall have no liability or obligation, direct or contingent, that is
material to the Company and the Subsidiaries taken as a whole,
respectively, and is required to be disclosed on a balance sheet in
accordance with GAAP and is not disclosed on the latest applicable balance
sheet included in the Registration Statement and the Prospectus.
(e) You shall have received a certificate of the Company, dated the
Closing Date, executed on behalf of the Company, by the President or any
Vice President and a principal financial or accounting officer of the
Company confirming, as of the Closing Date, the matters set forth in
paragraphs (a), (b), (c) and (d) of this Section 5.
(f) On the Closing Date, you shall have received:
(1) an opinion (satisfactory to you and your counsel), dated
the Closing Date, of ▇▇▇▇▇▇▇, Head & ▇▇▇▇▇▇▇, counsel for
the Company (which opinion shall, in regards to any
matters covered by the law of the State of Florida, rely
on the opinion of Florida counsel reasonably acceptable to
the Underwriter), to the effect that:
(i) (A) the Company and each of Jacor Cable, Inc., a
Kentucky corporation; Broadcast Finance, Inc., an Ohio corporation;
Citicasters Co., an Ohio corporation; Jacor Broadcasting Corporation,
an Ohio corporation; Jacor Broadcasting of Youngstown, an Ohio
corporation; WHOK, Inc., an Ohio corporation; Jacor Broadcasting of
29
Florida, Inc., a Florida corporation; Jacor Broadcasting of Sarasota,
Inc., a Florida corporation; Jacor Broadcasting of Tampa Bay, Inc., a
Florida corporation; JCC, a Florida corporation; GACC-N26LB, Inc., a
Delaware corporation; Jacor Broadcasting of Charleston, Inc., a
Delaware corporation; Jacor Broadcasting of Kansas City, inc., a
Delaware corporation; Jacor Broadcasting of Las Vegas, Inc., a
Delaware corporation; Jacor Broadcasting of Las Vegas II, Inc., a
Delaware corporation; Jacor Broadcasting of Louisville, Inc., a
Delaware corporation; Jacor Broadcasting of Louisville II, Inc., a
Delaware corporation; Jacor Broadcasting of Salt Lake City, Inc., a
Delaware corporation; Jacor Broadcasting of Salt Lake City II, Inc., a
Delaware corporation; Jacor Broadcasting of San Diego, Inc., a
Delaware corporation; Jacor Broadcasting of St. Louis, Inc., a
Delaware corporation; Jacor Licensee of Charleston, Inc., a Delaware
corporation; Jacor Licensee of Kansas City, Inc., a Delaware
corporation; Jacor Licensee of Las Vegas, Inc., a Delaware
corporation; Jacor Licensee of Las Vegas II, Inc., a Delaware
corporation; Jacor Licensee of Louisville, Inc, a Delaware
corporation; Jacor Licensee of Louisville II, Inc., a Delaware
corporation; Jacor Licensee of Salt Lake City, Inc., a Delaware
corporation; Jacor Licensee of Salt Lake City II, Inc., a Delaware
corporation; Jacor/Premiere Holding, Inc., a Delaware corporation;
Multiverse Acquisition Corp., a Delaware corporation; Noble
Broadcasting Group, Inc., a Delaware corporation; Noble Broadcasting
Holdings, Inc., a Delaware corporation; NSN Network Services, Ltd., a
Delaware corporation; Premiere Radio Networks, Inc., a Delaware
corporation, and Radio-Active Media, Inc., a Delaware corporation, 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 Transaction Documents have been duly
authorized, executed and delivered by the Registrants, as applicable;
30
(iii) 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 to the
descriptions thereof contained in the Registration Statement and the
Prospectus;
(iv) all of the issued and outstanding shares of
capital stock of, or other ownership interests in, each Subsidiary
listed in subparagraph (i) above have been duly and validly authorized
and issued and are fully paid and non-assessable, and the shares of
capital stock of, or other ownership interests in, each Subsidiary are
owned, directly or through Subsidiaries, by the Company, and are owned
free and clear of any Lien, except for Liens pursuant to the Credit
Facility;
(v) to the knowledge of such counsel (after due
inquiry) there are no outstanding subscriptions, rights, warrants,
options, calls, convertible securities, commitments of sale or Liens
related to or entitling any person to purchase or otherwise to acquire
any shares of the capital stock of, or other ownership interest in,
any Subsidiary except as disclosed in the Prospectus;
(vi) neither the Company nor any of the Subsidiaries
is (A) an "investment company" or a company "controlled" by an
investment company within the meaning of the Investment Company Act of
1940, as amended, or (B) a "holding company" or a "subsidiary company"
of a holding company, or an "affiliate" thereof within the meaning of
the Public Utility Holding Company Act of 1935, as amended;
(vii) neither the consummation of the transactions
contemplated by this Agreement nor the sale, issuance, execution or
delivery of the Securities, the Sub Notes or the Shares will violate
Regulation G, T, U or X of the Board of Governors of the Federal
Reserve System;
(viii) the shares of the Common Stock initially
issuable upon conversion of the Securities have been duly authorized
and reserved for issuance upon conversion of the Securities, are free
of preemptive rights and, when issued upon conversion of the
Securities in accordance with the terms of the Indenture, will be
validly issued, fully paid and non-assessable;
31
(ix) when authenticated in accordance with the terms
of the respective indenture and delivered to and paid for in
accordance with the terms of the respective underwriting agreement,
the Securities and the Sub Notes will constitute valid and legally
binding obligations of the Company and the Registrants, respectively,
enforceable against the Company and the Registrants, respectively, in
accordance with their respective terms and entitled to the benefits of
the respective 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, enforceable against the
Company, 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) 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;
(xiii) the descriptions in the Registration Statement
and the Prospectus of statutes, legal and governmental proceedings and
contracts and other documents are accurate in all
32
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;
(xiv) 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;
(xv) no authorization, approval, consent or order of,
or filing with, any court or governmental body or agency is required
for the consummation by the Company of the transactions contemplated
by the Agreement, except such as have been obtained and made under the
Act, the Exchange Act, the TIA, state securities or "Blue Sky" laws or
regulations or such as may be required by the NASD; no authorization,
approval, consent or order of, or filing with, any court or
governmental body or agency is required for the consummation by the
Registrants, as applicable, or Nationwide with respect to the
Nationwide Stations, of the transactions contemplated by the
applicable Transaction Documents, except as disclosed in the
Prospectus; the execution and delivery of this Agreement and the
Indenture, the issuance and sale of the Securities, the performance of
this Agreement and the consummation of the transactions contemplated
by this Agreement will not result in a breach or violation of any of
(A) any of the respective charters or bylaws of the Company or any of
the Subsidiaries or (B) to the knowledge of such counsel (after due
inquiry), the terms or provisions of any agreement or instrument which
is filed as an exhibit to the Registration Statement and to which the
Company or any of the Subsidiaries is a party or by which any of them
is bound, or to which any of the proper-
33
ties 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;
(xvi) at the time it became effective and on the
Closing Date, the Registration Statement complied as to form in all
material respects with the Act;
(xvii) to the knowledge of such counsel, neither the
Company nor the Subsidiaries has received any notice of infringement
of or conflict with asserted rights of others with respect to the
Intellectual Property which, singly or in the aggregate, if the
subject of an unfavorable decision, ruling or finding, could
reasonably be expected to result in a Material Adverse Change. The
use of such Intellectual Property in connection with the business and
operations of the Company and the Subsidiaries does not, to the
knowledge of such counsel, infringe on the rights of any person;
(xviii) to the best knowledge of such counsel, (A)
there are no franchises, contracts, indentures, mortgages, loan
agreements, notes, leases or other instruments to which the Company,
any of the Subsidiaries or Nationwide with respect to the Nationwide
Stations 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; and (C) the statements in the Prospectus
under the captions "Description of Capital Stock"
34
insofar as they relate to statements of law or legal conclusions
are accurate in all material respects;
(xix) the Company, the Subsidiaries and to the
knowledge of such counsel, Nationwide, to the extent each is a party
thereto, have full corporate power and authority to execute, deliver
and perform its respective obligations under the applicable
Transaction Documents;
(xx) the Transaction Documents, assuming the
authorization, execution and delivery thereof by the parties other
than the Registrants, as applicable, and Nationwide, 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;
(xxi) the approval of the transactions contemplated by
the Transaction Documents by the stockholders of the Company is not
required; and
(xxii) although the discussion in the Prospectus under
the heading "Certain Federal Income Tax Considerations" does not
purport to discuss all possible United States Federal income tax
consequences of the purchase, ownership, and disposition of the ▇▇▇▇▇,
such discussion constitutes, in all material respects, an accurate
summary of the material United States Federal income tax consequences
of the purchase, ownership and disposition of the ▇▇▇▇▇ under existing
law.
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,
35
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 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.
(2) An opinion (satisfactory to you and your counsel), dated
the Closing Date of ▇▇▇▇▇ & ▇▇▇▇▇▇▇, L.L.P., counsel for the Company with
respect to FCC and related matters to the effect that:
(ii) those statements in the Prospectus (including
the statements incorporated by reference in the
Prospectus, under the caption "Business -- Federal
Regulation of Radio Broadcasting" in the Company's Form
10-K filed for the year ended December 31, 1996) that
describe provisions of the Communications Act of 1934,
as amended (the "Communications Act"), and the FCC's
published rules or regulations (for purposes of this
opinion only, the "Rules") are accurate descriptions in
all material respects.
(iii) Schedule 1 to this opinion sets forth a
complete list of the main station authorizations issued
by the FCC to the Company and its Subsidiaries (for
purposes of this opinion only, the "Licenses"). To such
counsel's knowledge, the Licenses are the only licenses,
permits or authorizations required under the
Communications Act for the broadcast of signals on the
main station frequency of each of the radio stations
listed on Schedule 2 (for purposes of this opinion only,
the "Jacor Stations"). Except for the pending
applications noted on
36
Schedule 1 hereto, the Licenses are in full force and
effect (and the time within which any administrative or
judicial appeal, reconsideration, rehearing or other
review might be sought has lapsed with respect to the
grant of the authorizations for the currently effective
terms, and no such appeal, reconsideration, rehearing,
or other review has been taken or instituted), and are
held by the relevant Subsidiary, and the expiration date
of each License is set forth in Schedule 1 hereto.
Except as indicated on Schedule 3 to this opinion, the
Licenses are not subject to any conditions imposed by
the FCC other than those that appear on the Licenses or
are customarily imposed by the FCC on radio stations of
the same class and type.
(iv) Except as listed in Schedule 4 hereto, there
is no proceeding or other administrative action pending
or, to such counsel's knowledge, threatened, before the
FCC against the Company or any Subsidiary, which, if
adversely determined, would materially and adversely
affect the business or financial condition of the
Company and its Subsidiaries, taken as a whole. To such
counsel's knowledge, except as listed on Schedule 5 to
this opinion, the Company and the Subsidiaries have
filed with the FCC during the current license term of
each License all material reports and forms required to
be filed by the Company and the Subsidiaries with the
FCC with respect to the Jacor Stations.
(v) The execution and delivery by the Company
and any Subsidiary of the Transaction Documents, and the
performance of the obligations as of the date hereof by
the Company under the Underwriting Agreement and the
Indenture, (i) do not violate the Communications Act,
(ii) do not violate any of the Rules, (iii) do not
violate the terms of any of the Licenses, (iv) do not
cause any forfeiture or impairment of any License and
(v) do not require any consent, approval or
authorization of the FCC that has not been obtained.
Except as indicated on Schedule 6, all necessary
applications required by the FCC as of the date hereof
for the transfer of control or assignment of the
licenses of the stations described in the Prospectus
under "Pending Radio Station Transactions" have been
filed with the FCC.
(3) An opinion (satisfactory to you and your counsel), dated
the Closing Date of Paul, Hastings, ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP, counsel for the
Company, to the effect that:
37
(i) when authenticated in accordance with the terms of
the Indenture and delivered to and paid for in accordance with the
terms of this Agreement, the Securities 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 sought in a
proceeding at law or in equity) and except to the extent that a waiver
of rights under any usury laws may be unenforceable; and
(ii) the Indenture, assuming due authorization,
execution and delivery thereof by the Trustee, constitutes a valid and
legally binding agreement of the Company, enforceable against the
Company, 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.
(g) You shall have received an opinion, dated the Closing Date, of
▇▇▇▇▇▇▇, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP ("▇▇▇▇▇▇▇ ▇▇▇▇"), counsel for the
Underwriter, 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 & ▇▇▇▇▇▇▇ L.L.P., Ernst & Young
LLP and KPMG Peat Marwick, independent public accountants, containing the
information and statements of the type ordinarily included in accountants'
"comfort letters" to Underwriters, with respect to the financial statements
and certain financial information contained in the Registration Statement
and the Prospectus for each of (i) the Company and the C&L Audited
Companies, (ii) Premiere and (iii) Nationwide, respectively.
(i) ▇▇▇▇▇▇▇ ▇▇▇▇ 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
38
this Section 5 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 Securities and the Shares shall have
been approved for quotation on the Nasdaq Stock Market's SmallCap Market
and Nasdaq National Market, respectively, subject to notice of issuance.
(l) There shall have been no amendments, alterations, modifications,
or waivers of any provisions of the Transaction Documents since the date of
the execution and delivery thereof by the parties thereto other than those
which under the Act are not required to be disclosed in the Prospectus or
any supplement thereto and which have been disclosed to the Underwriter
prior to the date hereof.
(m) Each of the Registrants, as applicable, and Nationwide shall, to
the extent each is a party thereto, have complied in all respects with all
agreements and covenants in the Transaction Documents and performed all
conditions specified therein that the terms thereof require to be complied
with or performed at or prior to the date hereof.
(n) Prior to or concurrently with the purchase and sale of the
Securities hereunder, the Company shall have completed the Sub Notes
Offering and the Shares Offering.
(o) Except as is disclosed to the Underwriter in writing, the
representations and warranties of the Registrants, as applicable, and
Nationwide set forth in the Transaction Documents shall be true, accurate
and complete in all respects.
(p) Prior to the Closing Date, the Company shall have obtained the
determination of the Administrative Agent (as that term is defined in the
Credit Facility) pursuant to Section 6.11(g) of the Credit Facility that
the Securities are substantially similar to the 10-1/8% Notes, the 9-3/4%
Notes and the 8-3/4% Notes.
39
(q) The Registrants shall not have failed on or prior to the Closing
Date to perform or comply with any of the agreements contained herein.
SECTION 6. INDEMNIFICATION. (a) The Company agrees to indemnify and hold
harmless (i) the Underwriter and (ii) each person, if any, who controls
(within the meaning of Section 15 of the Act or Section 20 of the Exchange
Act) the Underwriter (any of the persons referred to in this clause (ii)
being hereinafter referred to as a "controlling person"), and (iii) the
respective officers, directors, partners, employees, representatives and
agents of any of the Underwriter 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 the
Underwriter furnished in writing to the Company by the Underwriter
expressly for use in the Registration Statement (or any amendment thereto)
or the Prospectus (or any amendment or supplement thereto) or any
preliminary prospectus, (ii) the foregoing indemnity agreement with respect
to any untrue statement contained in or omission from a preliminary
prospectus shall not inure to the benefit of the Underwriter from whom the
person asserting any such losses, liabilities, claims, damages or expenses
purchased Securities, or any person controlling such Underwriter, if a copy
of the Prospectus (as then amended or supplemented, if the Company shall
have furnished any amendments or supplements thereto) was not sent or given
by or on behalf of the Underwriter to such person, if such is required by
law, at or prior to the written confirmation of the sale of such
40
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, the Underwriter 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 the
Underwriter. 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 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
41
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) The Underwriter agrees 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 the Underwriter furnished in
writing by the Underwriter expressly for use in the Prospectus.
(d) If the indemnification provided for in this Section 6
is unavailable to an indemnified party in respect of any losses, claims,
damages, liabilities, judgments, actions or expenses referred to herein,
then each indemnifying party, in lieu of indemnifying such indemnified
party, shall contribute to the amount paid or payable by such indemnified
party as a result of such losses, claims, damages, liabilities, judgments,
actions and expenses (i) in such proportion as is appropriate to reflect
the relative benefits received by the indemnifying party on the one hand
and the indemnified party on the other hand from the offering of the
Securities or (ii) if the allocation provided by clause (i) above is not
permitted by applicable law, in such proportion as is appropriate to
reflect not only the relative benefits referred to in clause (i) above but
also the relative fault of the indemnifying parties and the indemnified
party, as well as any other relevant equitable considerations. The
relative benefits received by the Company, on the one hand, and of the
Underwriter, 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 the 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
Underwriter 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 Underwriter and the parties'
relative intent, knowledge, access to information and opportunity to
correct or prevent such
42
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 Underwriter agree that it would not be just and
equitable if contribution pursuant to this Section 6(d) were determined by PRO
RATA allocation or by any other method of allocation which does not take account
of the equitable considerations referred to in the immediately preceding
paragraph. The amount paid or payable by an indemnified party as a result of
the losses, claims, damages, liabilities, judgments, actions or expenses
referred to in the immediately preceding paragraph shall be deemed to include,
subject to the limitations set forth above, any legal or other expenses
reasonably incurred by such indemnified party in connection with investigating
or defending any such action or claim. Notwithstanding the provisions of this
Section 6, the Underwriter (and its related Indemnified Persons) shall not be
required to contribute any amount in excess of the amount by which the total
underwriting discount applicable to the Securities underwritten by the
Underwriter and distributed to the public exceeds the amount of any damages
which the 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 remedies provided for in this Section 6 are not exclusive and
shall not limit any rights or remedies which may otherwise be available to any
Indemnified Person at law or in equity.
SECTION 7. CONTRIBUTION. In order to provide for just and equitable
contribution in circumstances in which the indemnity agreement provided for in
Section 6 is for any reason held to be unenforceable by the Indemnified Parties
although applicable in accordance with its terms, the Company and the
Underwriter shall contribute to the aggregate losses, liabilities, claims,
damages and expenses of the nature contemplated by said indemnity agreement
incurred by the Company and the Underwriter, as incurred, in such proportions
that the Underwriter is responsible for that portion represented by the
percentage that the underwriting discount appearing on the cover page of the
Prospectus bears to the initial public offering price appearing thereon, and the
Company is responsible for the balance; PROVIDED, HOWEVER, that 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. For purposes of this Section, each person, if
any, who controls an Underwriter within the meaning of Section 15 of the Act
shall have the same rights to
43
contribution as the Underwriter, and each director of the Company, each
officer of the Company who signed the Registration Statement, and each
person, if any, who controls the Company within the meaning of Section 15 of
the Act shall have the same rights to contribution as the Company.
SECTION 8. REPRESENTATIONS, WARRANTIES AND AGREEMENTS TO SURVIVE
DELIVERY. All representations, warranties and agreements contained in this
Agreement and the Pricing Agreement, or contained in certificates of officers
of the Company submitted pursuant to Section 5 of this Agreement, shall
remain operative and in full force and effect, regardless of any
investigation made by or on behalf of the Underwriter or controlling person,
or by or on behalf of the Company, and shall survive delivery of the
Securities to the Underwriter and any termination of this Agreement.
SECTION 9. TERMINATION OF AGREEMENT. This Agreement shall become
effective upon the later of (i) the execution and delivery of this Agreement
by the parties hereto, (ii) the effectiveness of the Registration Statement,
and (iii) if a post-effective amendment is required to be filed pursuant to
Rule 430A under the Act, the effectiveness of such post-effective amendment.
This Agreement may be terminated at any time on or prior to the
Closing Date by you by notice to the Company if any of the following has
occurred: (i) subsequent to the date the Registration Statement is declared
effective or the date of this Agreement, any Material Adverse Change occurs
which, in the judgment of the 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 change in economic conditions or 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, change or emergency would, in the judgment of the
Underwriter, make it impracticable or inadvisable to market the Securities on
the terms and in the manner contemplated by the Prospectus, (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 Kentucky 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
44
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 the Underwriter, make it impracticable or inadvisable to market the
Securities or to enforce contracts for the sale of the Securities or
materially impair the investment quality of the Securities.
The indemnities and contribution provisions and the other agreements,
representations and warranties of the Company, its officers and directors and of
the 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.
If this Agreement shall be terminated by the Underwriter pursuant to
clauses (i) or (vii) of the second paragraph of this Section 9 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 4 hereof.
SECTION 10. NOTICES. All notices and other communications hereunder shall
be in writing and shall be deemed to have been duly given if mailed or
transmitted by any standard form of telecommunication. Notices to the
Underwriter shall be directed to the Underwriter at World Finance Center, North
Tower, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: Syndication
Department, with a copy to Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇ ▇. ▇▇▇▇,
Esq.; notices to the Registrants or the Company shall be directed to the Company
at ▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇,
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇, Chief Executive Officer, with a copy to ▇▇▇▇▇▇▇,
Head & ▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇ Third Center, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, P.O. Box 6464,
Cincinnati, Ohio 45201, Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Esq.
45
SECTION 11. PARTIES. This Agreement and the Pricing Agreement shall each
inure to the benefit of and be binding upon the Underwriter and the Company and
their respective successors, heirs and legal representatives. Nothing expressed
or mentioned in this Agreement or in the Pricing Agreement is intended or shall
be construed to give any person, firm or corporation, other than the Underwriter
and the Company and their respective successors, heirs and legal
representatives, and the controlling persons and officers and directors referred
to in Sections 6 and 7 and their heirs and legal representatives, any legal or
equitable right, remedy or claim under or in respect of this Agreement or the
Pricing Agreement or any provision herein or therein contained. This Agreement
and the Pricing Agreement and all conditions and provisions hereof and thereof
are intended to be for the sole and exclusive benefit of the Underwriter and the
Company and their respective successors, heirs and legal representatives and
said controlling persons and officers and directors and their heirs and legal
representatives, and for the benefit of no other person, firm or corporation.
No purchaser of Securities from the Underwriter shall be deemed to be a
successor by reason merely of such purchase.
SECTION 12. GOVERNING LAW AND TIME. THIS AGREEMENT AND THE PRICING
AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE
STATE OF NEW YORK APPLICABLE TO AGREEMENTS MADE AND TO BE PERFORMED IN SAID
STATE. SPECIFIED TIMES OF DAY REFER TO NEW YORK CITY TIME.
46
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to the Registrants a counterpart hereof,
whereupon this instrument, along with all counterparts, will become a binding
agreement between the Underwriter and the Registrants in accordance with its
terms.
Very truly yours,
JACOR COMMUNICATIONS, INC.
By: /s/ ▇. ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
---------------------------------
Name: ▇. ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Title: Senior Vice President and
Chief Financial Officer
47
JACOR COMMUNICATIONS COMPANY**; BROADCAST
FINANCE, INC.; CINE FILMS, INC.; CINE
GUARANTORS, INC.; CINE GUARANTORS II,
INC.; CINE GUARANTORS II, LTD.; CINE
MOBILE SYSTEMS INT'L. N.V.; CINE MOVIL
S.A. DE C.V.; CITICASTERS CO.; GACC-N26LB,
INC.; GREAT AMERICAN MERCHANDISING GROUP,
INC.; GREAT AMERICAN TELEVISION
PRODUCTIONS, INC.; INMOBILIARIA RADIAL,
S.A. DE C.V.*; JACOR BROADCASTING
CORPORATION; JACOR BROADCASTING OF
ATLANTA, INC.; JACOR BROADCASTING OF
CHARLESTON, INC.; JACOR BROADCASTING OF
COLORADO, INC.; JACOR BROADCASTING OF
DENVER, INC.; JACOR BROADCASTING OF
FLORIDA, INC.; JACOR BROADCASTING OF
KANSAS CITY, INC.; JACOR BROADCASTING OF
LAS VEGAS, INC.; JACOR BROADCASTING OF LAS
VEGAS II, INC.; JACOR BROADCASTING OF
LOUISVILLE, INC.; JACOR BROADCASTING OF
LOUISVILLE II, INC.; JACOR BROADCASTING OF
SALT LAKE CITY, INC.; JACOR BROADCASTING
OF SALT LAKE CITY II, INC.; JACOR
BROADCASTING OF ST. LOUIS, INC.; JACOR
BROADCASTING OF SAN DIEGO, INC.; JACOR
BROADCASTING OF SARASOTA, INC.; JACOR
BROADCASTING OF TAMPA BAY, INC.; JACOR
BROADCASTING OF TOLEDO, INC.; JACOR
BROADCASTING OF YOUNGSTOWN, INC.; JACOR
CABLE, INC.; JACOR LICENSEE OF
48
CHARLESTON, INC.; JACOR LICENSEE OF KANSAS
CITY, INC., JACOR LICENSEE OF LAS VEGAS,
INC.; JACOR LICENSEE OF LAS VEGAS II,
INC.; JACOR LICENSEE OF LOUISVILLE, INC.;
JACOR LICENSEE OF LOUISVILLE II, INC.;
JACOR LICENSEE OF SALT LAKE CITY, INC.;
JACOR LICENSEE OF SALT LAKE CITY II, INC.;
JACOR/PREMIERE HOLDING, INC.; JBSL, INC.;
LOCATION PRODUCTIONS, INC.; LOCATION
PRODUCTIONS II, INC.; MULTIVERSE
ACQUISITION CORP.***; NOBLE BROADCAST
CENTER, INC.; NOBLE BROADCAST GROUP, INC.;
NOBLE BROADCAST HOLDINGS, INC.; NOBLE
BROADCAST LICENSES, INC.; NOBLE BROADCAST
OF SAN DIEGO, INC.; NOBRO, S.C*.; NOVA
MARKETING GROUP, INC.; NSN NETWORK
SERVICES, LTD.; PREMIERE RADIO NETWORKS,
INC.***; RADIO-ACTIVE MEDIA, INC.; SPORTS
RADIO BROADCASTING, INC.; SPORTS RADIO,
INC.; THE ▇▇ ▇▇▇▇▇▇▇ COMPANY AGENCY,
INC.;VTTV PRODUCTIONS; AND WHOK, INC.
By: /s/ ▇. ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
---------------------------------
Name: ▇. ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Title: Senior Vice
President and Assistant
Secretary for all above
companies except those marked
with an *, of which he is
Treasurer of those marked with
an **, of which he is Senior
Vice President, Chief
Financial Officer and
Secretary, and those marked
49
with an ***, of which he is
Senior Vice President
50
CONFIRMED AND ACCEPTED, as of
the date first above written:
▇▇▇▇▇▇▇ LYNCH, ▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇
INCORPORATED
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Managing Director
51
