JACOR COMMUNICATIONS COMPANY
%Senior Subordinated Notes Due 2006
Payment of Principal and Interest Unconditionally
Guaranteed by Jacor Communications, Inc.
and the other Guarantors named herein
UNDERWRITING AGREEMENT
December 12, 1996
DONALDSON, LUFKIN & JENRETTE
SECURITIES CORPORATION
MERRILL LYNCH, PIERCE, FENNER & SMITH
INCORPORATED
c/o Donaldson, Lufkin & Jenrette
Securities Corporation
277 Park Avenue
New York, New York 10172
Ladies and Gentlemen:
Subject to the terms and conditions herein contained, Jacor
Communications Company, a Florida corporation ("JCC") and a wholly owned
subsidiary of Jacor Communications, Inc. (the "Company"), proposes to issue and
sell to Donaldson, Lufkin & Jenrette Securities Corporation ("DLJ") and Merrill
Lynch, Pierce, Fenner & Smith Incorporated (collectively, the "Underwriters") an
aggregate of $150,000,000 principal amount of its % Senior Subordinated Notes
due 2006 (the "Securities"), which notes are irrevocably and unconditionally
guaranteed by the Company, Broadcast Finance, Inc.; Cine Films, Inc.; Cine
Guarantors, Inc.; Cine Guarantors II, Inc.; Cine Guarantors II, Ltd.; Cine
Mobile Systems Int'l. N.V.; Cine Movil S.A. de C.V.; Citicasters Co.; F.M.I.
Pennsylvania, Inc.; GACC-N26LB, Inc.; GACC-340, Inc.; Georgia Network Equipment,
Inc.; Great American Merchandising Group, Inc.; Great American Television
Productions, Inc.; Inmobilaria Radial, S.A. de C.V.; Jacor
Broadcasting Corporation; Jacor Broadcasting of Atlanta, Inc.; Jacor
Broadcasting of Colorado, Inc.; Jacor Broadcasting of Florida, Inc.; Jacor
Broadcasting of Idaho, Inc., A Delaware Corporation; Jacor Broadcasting of
Iowa, Inc.;. Jacor Broadcasting of Knoxville, Inc.; Jacor Broadcasting of
Lexington, Inc.; Jacor Broadcasting of St. Louis, Inc.; Jacor Broadcasting of
San Diego, Inc.; Jacor Broadcasting of Sarasota, Inc.; Jacor Broadcasting of
Tampa Bay, Inc.; Jacor Cable, Inc.; Location Productions, Inc.; Location
Productions II, Inc.; Noble Broadcast Center, Inc.; Noble Broadcast Group,
Inc.; Noble Broadcast Holdings, Inc.; Noble Broadcast Licenses, Inc.; Noble
Broadcast of Colorado, Inc.; Noble Broadcast of St. Louis, Inc.; Noble
Broadcast of San Diego, Inc.; Noble Broadcast of Toledo, Inc.; Nobro, S.C.;
Nova Marketing Group, Inc.; Sports Radio Broadcasting, Inc.; Sports Radio,
Inc.; Taft-TCI Satellite Services, Inc.; The Sy Fischer Company Agency, Inc.;
WHOK, Inc.; and VTTV Productions, each a direct or indirect subsidiary of the
Company or any successor entity, whether by merger, consolidation, change of
name or otherwise (collectively, the "Guarantors" and together with "JCC",
the "Registrants".) The Securities are to be issued pursuant to the
provisions of an indenture to be dated as of December __, 1996 (the
"Indenture") by and among the Guarantors, JCC and The Bank of New York as
trustee (the "Trustee").
For purposes of this Agreement, the term "Securities" means the
Securities together with the guarantee (the "Guarantee") thereof by the
Guarantors.
The Securities are being issued and sold (i) to finance the remaining
purchase price of the Pending Transactions (as that term is defined in the
Registration Statement (defined below)); (ii) to repay a portion of the
outstanding indebtedness under the Credit Facility; and (iii) for general
corporate purposes, including the acquisition of other broadcast properties and
repayment of other indebtedness.
The Pending Transactions include, among other things, the merger of
Regent Communications, Inc. ("Regent") with and into the Company (the "Regent
Merger").
This Underwriting Agreement, the Indenture and all related agreements
and documents executed in connec-
2
tion with the Pending Transactions are collectively referred to herein as the
"Transaction Documents."
1. REGISTRATION STATEMENT AND PROSPECTUS. The Registrants have
prepared and filed with the Securities and Exchange Commission (the
"Commission") in accordance with the provisions of the Securities Act of 1933,
as amended, and the rules and regulations of the Commission thereunder
(collectively, the "Act"), a registration statement on Form S-3 (No. 333-16469),
including a preliminary prospectus, subject to completion, relating to the
Securities. The registration statement, as amended at the time it becomes
effective or, if a post-effective amendment is filed with respect thereto, as
amended by such post-effective amendment at the time of its effectiveness,
including in each case, all documents incorporated or deemed incorporated by
reference therein, if any, all financial statements and exhibits, and the
information, if any, contained in a prospectus or term sheet subsequently filed
with the Commission pursuant to Rule 424(b) under the Act and deemed to be a
part of the registration statement at the time of its effectiveness pursuant to
Rule 430A or Rule 434 under the Act (as applicable), and any additional
registration statement relating to the issuance of additional Securities filed
pursuant to Rule 462(b) under the Act, is hereinafter referred to as the
"Registration Statement"; and the prospectus, constituting a part of the
Registration Statement at the time it became effective, or such revised
prospectus as shall be provided to the Underwriters for use in connection with
the offering of the Securities that differs from the prospectus on file with the
Commission at the time the Registration Statement became effective including, in
each case, all documents incorporated or deemed incorporated by reference
therein, if any, whether or not filed with the Commission pursuant to Rule
424(b) under the Act, and including any preliminary prospectus subject to
completion and any term sheet meeting the requirements of Rule 434(c), filed
pursuant to Rule 424(b), in the form used to confirm sales of the Securities, is
hereinafter referred to as the "Prospectus."
2. AGREEMENTS TO SELL AND PURCHASE. On the basis of the
representations and warranties contained in this Agreement, and subject to its
terms and conditions, the Registrants agree to issue and sell to each of the
3
Underwriters, and each of the Underwriters agrees, severally and not jointly, to
purchase from the Registrants, the Securities in the respective principal
amounts set forth opposite their names on Schedule I hereto, plus such amount as
they may individually become obligated to purchase pursuant to Section 8 hereof,
at a purchase price equal to ______% of the principal amount thereof (the
"Purchase Price").
3. DELIVERY AND PAYMENT. Delivery to you of and payment for the
Securities shall be made at 9:00 A.M., New York City time, on the fourth
business day, unless otherwise permitted by the Commission pursuant to Rule
15c6-1 under the Securities Exchange Act of 1934, as amended, and the rules and
regulations of the Commission thereunder (collectively, the "Exchange Act"),
(such time and date being referred to as the "Closing Date") following the date
of the initial public offering of the Securities as advised by DLJ to the
Company, at such place as DLJ shall reasonably designate. The Closing Date and
the location of delivery of the Securities may be varied by agreement between
DLJ and the Company.
The Securities in definitive form shall be registered in such names
and issued in such denominations as DLJ shall request in writing not later than
two full business days prior to the Closing Date, and shall be made available to
you at the offices of DLJ (or such other place as shall be acceptable to you)
for inspection not later than 9:30 A.M., New York City time, on the business day
next preceding the Closing Date. The Securities shall be delivered to you on
the Closing Date with any transfer taxes payable upon initial issuance thereof
duly paid by the Company, for the respective accounts of the Underwriters
against payment of the Purchase Price by wire transfer payable in same day
funds, to the order of the Company.
4. AGREEMENTS OF THE REGISTRANTS. The Registrants, as applicable,
agree with each of you that:
(a) The Registrants will, if the Registration Statement has not
heretofore become effective under the Act, file an amendment to the
Registration Statement or, if necessary pursuant to Rule 430A under the
Act, a post-effective amendment to the Registration Statement, in each
case as soon as
4
practicable after the execution and delivery of this Agreement, and
will use their best efforts to cause the Registration Statement or such
post-effective amendment to become effective at the earliest possible
time. The Registrants will comply fully and in a timely manner with
the applicable provisions of Rule 424 and Rule 430A and, if
applicable, Rule 462, under the Act.
(b) The Company will advise you promptly and, if requested by any of
you, confirm such advice in writing, (i) when the Registration
Statement has become effective, if and when the Prospectus is sent for
filing pursuant to Rule 424 under the Act and when any post-effective
amendment to the Registration Statement becomes effective, (ii) of the
receipt of any comments from the Commission or any state securities
commission or regulatory authority that relate to the Registration
Statement or requests by the Commission or any state securities
commission or regulatory authority for amendments to the Registration
Statement or amendments or supplements to the Prospectus or for
additional information, (iii) of the issuance by the Commission of any
stop order suspending the effectiveness of the Registration Statement,
or of the suspension of qualification of the Securities for offering
or sale in any jurisdiction, or the initiation of any proceeding for
such purpose by the Commission or any state securities commission or
any other regulatory authority, and (iv) of the happening of any event
during such period as in your reasonable judgment you are required to
deliver a prospectus in connection with sales of the Securities by you
which makes any statement of a material fact made in the Registration
Statement untrue or which requires the making of any additions to or
changes in the Registration Statement (as amended or supplemented from
time to time) in order to make the statements therein not misleading
or that makes any statement of a material fact made in the Prospectus
(as amended or supplemented from time to time) untrue or which requires
the making of any additions to or changes in the Prospectus (as
amended or supplemented from time to time) in order to make the
statements therein, in light of the circumstances under which they
were made, not misleading. The Company shall use
5
its best efforts to prevent the issuance of any stop order or order
suspending the qualification or exemption of the Securities under any state
securities or Blue Sky laws, and, if at any time the Commission shall issue
any stop order suspending the effectiveness of the Registration Statement,
or any state securities commission or other regulatory authority shall
issue an order suspending the qualification or exemption of the Securities
under any state securities or Blue Sky laws, the Company shall use every
reasonable effort to obtain the withdrawal or lifting of such order at the
earliest possible time.
(c) The Company will furnish to you without charge two (2) signed
copies (plus one (1) additional signed copy to your legal counsel) of the
Registration Statement as first filed with the Commission and of each
amendment to it, including all exhibits filed therewith, and will furnish
to you such number of conformed copies of the Registration Statement as so
filed and of each amendment to it, without exhibits, as you may reasonably
request.
(d) The Registrants will not file any amendment or supplement to the
Registration Statement, whether before or after the time when it becomes
effective, or make any amendment or supplement to the Prospectus, of which
you shall not previously have been advised and provided a copy within two
business days prior to the filing thereof (or such reasonable amount of
time as is necessitated by the exigency of such amendment or supplement) or
to which you shall reasonably object; and the Registrants will prepare and
file with the Commission, promptly upon your reasonable request, any
amendment to the Registration Statement or supplement to the Prospectus
which may be necessary or advisable in connection with the distribution of
the Securities by you, and will use their best efforts to cause any
amendment to the Registration Statement to become effective as promptly as
possible.
(e) Promptly after the Registration Statement becomes effective, and
from time to time thereafter for such period in your reasonable judgment as
a prospectus is required to be delivered in connection
6
with sales of the Securities by you, the Company will furnish to each
Underwriter and dealer without charge as many copies of the Prospectus (and
of any amendment or supplement to the Prospectus) as such Underwriters and
dealers may reasonably request. The Registrants consent to the use of the
Prospectus and any amendment or supplement thereto by any Underwriter or
any dealer, both in connection with the offering or sale of the Securities
and for such period of time thereafter as the Prospectus is required by the
Act or the Exchange Act to be delivered in connection therewith.
(f) If during such period as in your reasonable judgment you are
required to deliver a prospectus in connection with sales of the Securities
by you any event shall occur as a result of which it becomes necessary to
amend or supplement the Prospectus in order to make the statements therein,
in the light of the circumstances existing as of the date the Prospectus is
delivered to a purchaser, not misleading, or if it is necessary to amend or
supplement the Prospectus to comply with any law, the Registrants will
promptly prepare and file with the Commission an appropriate amendment or
supplement to the Prospectus so that the statements in the Prospectus, as
so amended or supplemented, will not, in the light of the circumstances
existing as of the date the Prospectus is so delivered, be misleading, and
will comply with applicable law, and will furnish to each Underwriter and
dealer without charge such number of copies thereof as such Underwriters
and dealers may reasonably request.
(g) Prior to any public offering of the Securities, the Registrants
will cooperate with you and your counsel in connection with the
registration or qualification of the Securities for offer and sale by you
under the state securities or Blue Sky laws of such jurisdictions as you
may request (provided, that the Registrants shall not be obligated to
qualify as a foreign corporation in any jurisdiction in which they are not
so qualified or to take any action that would subject them to general
consent to service of process in any jurisdiction in which they are not now
so subject). The Registrants will
7
continue such qualification in effect so long as required by law for
distribution of the Securities.
(h) The Company will make generally available to its security holders
as soon as reasonably practicable a consolidated earning statement covering
a period of at least twelve months beginning after the "effective date" (as
defined in Rule 158 under the Act) of the Registration Statement (but in no
event commencing later than 90 days after such date) which shall satisfy
the provisions of Section 11(a) of the Act and Rule 158 thereunder, and to
advise you in writing when such statement has been so made available.
(i) The Registrants will timely complete all required filings and
otherwise fully comply in a timely manner with all provisions of the
Exchange Act.
(j) During the period of five years hereafter, the Company will
furnish to you (i) as soon as available, a copy of each report of the
Company mailed to shareholders or filed with the Commission, and (ii) from
time to time such other information concerning the Company as you may
request.
(k) Whether or not the transactions contemplated hereby are
consummated or this Agreement is terminated, the Registrants will pay and
be responsible for all costs, expenses, fees and taxes in connection with
or incident to (i) the printing, processing, filing, distribution and
delivery under the Act or the Exchange Act of the Registration Statement,
each preliminary prospectus, the Prospectus and all amendments or
supplements thereto, (ii) the printing, processing, execution, distribution
and delivery of this Agreement, any memoranda describing state securities
or Blue Sky laws and all other agreements, memoranda, correspondence and
other documents printed, distributed and delivered in connection with the
offering of the Securities, (iii) the registration with the Commission and
the issuance and delivery of the Securities, (iv) the registration or
qualification of the Securities for offer and sale under the securities or
Blue Sky laws of the jurisdictions referred to in paragraph (g)
8
above (including, in each case, the fees and disbursements of counsel
relating to such registration or qualification and memoranda relating
thereto and any filing fees in connection therewith), (v) furnishing such
copies of the Registration Statement, Prospectus and preliminary
prospectus, and all amendments and supplements to any of them, as may be
reasonably requested by you, (vi) filing, registration and clearance with
the NASD in connection with the offering of the Securities (including any
filing fees in connection therewith and the fees and disbursements of
counsel relating thereto), (vii) any "qualified independent underwriter" as
required by Section 2720 of the Conduct Rules of the NASD (including fees
and disbursements of counsel for such qualified independent underwriter),
(viii) the printing, processing, execution, distribution and delivery of
the Transaction Documents and all other agreements, memoranda,
correspondence and other documents, printed, distributed and delivered in
connection with the Transaction Documents and (ix) the performance by the
Registrants of their other obligations under this Agreement, the cost of
their personnel and other internal costs, the cost of printing and
engraving the certificates representing the Securities, and all expenses
and taxes incident to the sale and delivery of the Securities to you.
(l) The Company and JCC will use the proceeds from the sale of the
Securities in the manner described in the Prospectus under the caption "Use
of Proceeds."
(m) The Registrants will use their best efforts to do and perform all
things required to be done and performed under this Agreement by them prior
to or after the Closing Date and to satisfy all conditions precedent on
their part to the delivery of the Securities.
(n) The Company will timely complete all required filings and
otherwise comply fully in a timely manner with all provisions of the
Exchange Act, and will file all reports and any definitive proxy or
information statements required to be filed by the Company with the
Commission pursuant to Sec-
9
tion 13(a), 13(c), 14(a) or 15(d) of the Exchange Act subsequent to the
date of the Prospectus and for so long as the delivery of the Prospectus is
required in connection with the offer or sale of the Securities.
(o) During the period beginning on the date of this Agreement and
continuing to and including the Closing Date, except as described in the
Prospectus with respect to the Pending Transactions, there will be no
transactions entered into by the Company or any of its subsidiaries (each a
"Subsidiary" and, collectively, the "Subsidiaries"), which are material
with respect to the Company or any of the Subsidiaries, respectively, taken
individually or as a whole, and there will be no dividend or distribution
of any kind declared, paid or made by the Company on any class of capital
stock or other equity interests.
5. REPRESENTATIONS AND WARRANTIES. The Registrants represent and
warrant to each of you that:
(a) When the Registration Statement becomes effective, including at
the date of any post-effective amendment, at the date of the Prospectus (if
different) and at the Closing Date, the Registration Statement will comply
in all material respects with the provisions of the Act, and will not
contain any untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary to make the
statements therein not misleading; the Prospectus and any supplements or
amendments thereto will not at the date of the Prospectus, at the date of
any such supplements or amendments and at the Closing Date contain any
untrue statement of a material fact or omit to state any material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading, except that the
representations and warranties contained in this paragraph (a) shall not
apply to statements in or omissions from the Registration Statement or the
Prospectus (or any supplement or amendment to them) made in reliance upon
and in conformity with information relating to any Underwriter furnished to
the Company in writing by or on
10
behalf of any Underwriter through DLJ expressly for use therein. The
Registrants acknowledge for all purposes under this Agreement that the
statements with respect to price and underwriting discount and the last
paragraph all as set forth on the cover page and in paragraph four and in
the second sentence of the fifth paragraph under the caption "Underwriting"
in the Prospectus (or any amendment or supplement) constitute the only
written information furnished to the Registrants by DLJ expressly for use
in the Registration Statement or the Prospectus (or any amendment or
supplement to them) and that the Underwriters shall not be deemed to have
provided any other information (and therefore are not responsible for any
such statement or omission).
(b) Any term sheet and prospectus subject to completion provided by
the Registrants to the Underwriters for use in connection with the offering
and sale of the Securities pursuant to Rule 434 under the Act together are
not materially different from the Prospectus included in the Registration
Statement.
(c) Each preliminary prospectus and the prospectus filed as part of
the Registration Statement as originally filed or as part of any amendment
thereto, or filed pursuant to Rule 424 under the Act, and each Registration
Statement filed pursuant to Rule 462(b) under the Act, if any, complied
when so filed in all material respects with the Act.
(d) The Company and each of its Subsidiaries and Regent has been duly
organized, is validly existing as a corporation in good standing under the
laws of its jurisdiction of organization and has the requisite corporate
power and authority to carry on its business as it is currently being
conducted, to own, lease and operate its properties and, as applicable, to
authorize the offering of the Securities, to execute, deliver and perform
this Agreement, and to issue, sell and deliver the Securities, and to
execute, deliver and perform the Transaction Documents, as applicable, and
each is duly qualified and is in good standing as a foreign corporation
authorized to do business in each jurisdiction where the operation,
ownership or leasing of property or the
11
conduct of its business requires such qualification, except where the
failure to be so qualified could not, singly or in the aggregate,
reasonably be expected to have a material adverse effect on the respective
properties, business, results of operations, condition (financial or
otherwise), affairs or prospects of each of the Company and the
Subsidiaries taken as a whole (a "Material Adverse Effect").
(e) All of the issued and outstanding shares of capital stock of, or
other ownership interests in, each Subsidiary have been duly and validly
authorized and issued, and all of the shares of capital stock of, or other
ownership interests in, each Subsidiary are owned, directly or through
Subsidiaries, by the Company and, upon completion of the transactions
contemplated by the Transaction Documents, all of the shares of capital
stock of, or other ownership interests in the assets of Regent will be
owned directly or through Subsidiaries, by the Company. All such shares of
capital stock are fully paid and nonassessable, and are owned free and
clear of any security interest, mortgage, pledge, claim, lien or
encumbrance (each, a "Lien"), except for Liens arising under the Credit
Agreement, dated as of June 12, 1996, as amended, by and among The Chase
Manhattan Bank (as successor by merger to Chemical Bank), as Administrative
Agent, Banque Paribas, as Documentation Agent, and Bank of America,
Illinois, as Syndication Agent (the "Credit Facility".) There are no
outstanding subscriptions, rights, warrants, options, calls, convertible
securities, commitments of sale or Liens related to or entitling any person
to purchase or otherwise to acquire any shares of the capital stock of, or
other ownership interest in, any Subsidiary and with respect to Regent
except for the Regent Merger and stock options issued by Regent which
options will be cancelled in connection with the Regent Merger.
(f) The authorized, issued and outstanding capital stock of the
Company is as set forth in the Prospectus under "Capitalization"; all the
shares of issued and outstanding Common Stock have been duly authorized and
validly issued and are fully paid, nonassessable and not subject to any
preemptive or similar rights.
12
(g) None of the Company, any of the Subsidiaries and Regent is in
violation of their respective charters or bylaws or in default in the
performance of any bond, debenture, note or any other evidence of
indebtedness or any indenture, mortgage, deed of trust or other contract,
lease or other instrument to which the Company or any of the Subsidiaries
or Regent is a party or by which any of them is bound, or to which any of
the property or assets of the Company or any of the Subsidiaries or Regent
is subject, except, in the case of Regent, as could not have a Material
Adverse Effect.
(h) The Transaction Documents have been duly authorized and validly
executed and delivered by the Registrants, as applicable, and constitute
valid and legally binding agreements of the Registrants, as applicable,
enforceable against the Registrants, as applicable, in accordance with
their terms (assuming, in the case of each of the Transaction Documents,
the due execution and delivery thereof by each party thereto).
(i) The Indenture has been duly authorized by the Registrants and,
when duly executed and delivered in accordance with its terms, will be a
valid and legally binding agreement of the Registrants, enforceable against
the Registrants in accordance with its terms, subject to applicable
bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer and
other similar laws affecting creditors' rights and remedies generally and
to general principles of equity (regardless of whether enforcement is
sought in a proceeding at law or in equity) and except to the extent that a
waiver of rights under any usury laws may be unenforceable.
(j) The execution and delivery of this Agreement, the Indenture and
the Securities by the Registrants, the issuance and sale of the Securities,
the performance of this Agreement and the Indenture and the consummation of
the transactions contemplated by this Agreement and the Indenture and the
execution and delivery of the Transaction Documents by each of the
Registrants and Regent, as applicable, and the consummation of the Pending
Transactions will not (1) conflict with or result in a breach or violation
13
of any of the respective charters or bylaws of the Company or any of the
Subsidiaries or Regent or any of the terms or provisions of, except, in the
case of Regent, as could not have a Material Adverse Effect or (2)
constitute a default or cause an acceleration of any obligation under or
result in the imposition or creation of (or the obligation to create or
impose) a Lien with respect to, any bond, note, debenture or other evidence
of indebtedness or any indenture, mortgage, deed of trust or other
agreement or instrument to which the Company or any of the Subsidiaries or
Regent is a party or by which it or any of them is bound, or to which any
properties of the Company or any of the Subsidiaries or Regent is or may be
subject, except, in the case of Regent, as could not have a Material
Adverse Effect, or (3) contravene any order of any court or governmental
agency or body having jurisdiction over the Company or any of the
Subsidiaries or Regent or any of their properties, or violate or conflict
with any statute, rule or regulation or administrative or court decree
applicable to the Company or any of the Subsidiaries or Regent or any of
their respective properties, except, in the case of Regent, as could not
have a Material Adverse Effect.
(k) There is no action, suit or proceeding before or by any court or
governmental agency or body, domestic or foreign, pending against or
affecting the Company or any of the Subsidiaries or Regent or any of their
respective properties, which is required to be disclosed in the
Registration Statement or the Prospectus, or which could reasonably be
expected to result, singly or in the aggregate, in a Material Adverse
Effect or which could reasonably be expected to materially and adversely
affect the consummation of this Agreement or the transactions contemplated
hereby or the consummation of the Transaction Documents or the Pending
Transactions, and to the best of the Company's knowledge, no such
proceedings are contemplated or threatened. No contract or document of a
character required to be described in the Registration Statement or the
Prospectus or to be filed as an exhibit to the Registration Statement is
not so described or filed.
14
(l) No action has been taken and no statute, rule or regulation or
order has been enacted, adopted or issued by any governmental agency or
body which prevents the issuance of the Securities, suspends the
effectiveness of the Registration Statement, prevents or suspends the use
of any preliminary prospectus or suspends the sale of the Securities in any
jurisdiction referred to in Section 4(g) hereof; no injunction, restraining
order or order of any nature by a Federal or state court of competent
jurisdiction has been issued with respect to the Company or any of the
Subsidiaries which would prevent or suspend the issuance or sale of the
Securities, the effectiveness of the Registration Statement, or the use of
any preliminary prospectus in any jurisdiction referred to in Section 4(g)
hereof; no action, suit or proceeding is pending against or, to the best of
the Company's knowledge, threatened against or affecting the Company or any
of the Subsidiaries before any court or arbitrator or any governmental
body, agency or official, domestic or foreign, which, if adversely
determined, would materially interfere with or adversely affect the
issuance of the Securities or in any manner draw into question the validity
of the Transaction Documents; and every request of the Commission or any
securities authority or agency of any jurisdiction for additional
information (to be included in the Registration Statement or the Prospectus
or otherwise) has been complied with in all material respects.
(m) (i) None of the Company, any of the Subsidiaries and Regent is
in violation of any Federal, state or local laws and regulations relating
to pollution or protection of human health or the environment (including,
without limitation, ambient air, surface water, ground water, land surface
or subsurface strata), including, without limitation, laws and regulations
relating to emissions, discharges, releases or threatened releases of toxic
or hazardous substances, materials or wastes, or petroleum and petroleum
products ("Materials of Environmental Concern"), or otherwise relating to
the protection of human health and safety, or the storage, disposal,
transport or handling of Materials of Environmental Concern (collectively,
"Environmental
15
Laws"), which violation includes, but is not limited to, noncompliance with
any permits or other governmental authorizations, except to the extent that
any such violation could not have a Material Adverse Effect or otherwise
require disclosure in the Prospectus; and (ii) to the best knowledge of the
Company and any of the Subsidiaries, after due inquiry, (A) none of the
Company, any of the Subsidiaries, Regent and any of the other parties to the
Transaction Documents (the "Pending Transaction Parties") with respect to
the properties and radio stations to be purchased or sold pursuant to the
Transaction Documents (the "Pending Properties") has received any
communication (written or oral), whether from a governmental authority or
otherwise, alleging any such violation or noncompliance, and there are no
circumstances, either past, present or that are reasonably foreseeable,
that may lead to such violation in the future, (B) there is no pending or
threatened claim, action, investigation or notice (written or oral) by any
person or entity alleging potential liability for investigatory, cleanup,
or governmental responses costs, or natural resources or property damages,
or personal injuries, attorney's fees or penalties relating to (x) the
presence, or release into the environment, of any Material of Environmental
Concern at any location owned or operated by the Company, any of the
Subsidiaries, Regent, and the Pending Transaction Parties with respect to
the Pending Properties, now or in the past, or (y) circumstances forming
the basis of any violation, or alleged violation, of any Environmental Law
(collectively, "Environmental Claims") that could have a Material Adverse
Effect or otherwise require disclosure in the Prospectus, and (C) there are
no past or present actions, activities, circumstances, conditions, events
or incidents, that could form the basis of any Environmental Claim against
the Company, any of the Subsidiaries, Regent, and the Pending Transaction
Parties with respect to the Pending Properties, or against any person or
entity whose liability for any Environmental Claim the Company, any of the
Subsidiaries, Regent, and the Pending Transaction Parties with respect to
the Pending Properties, have retained or assumed either contractually or by
operation of law. In the ordinary course of its business, each of the
16
Company and the Subsidiaries and Regent conducts a periodic review of the
effect of Environmental Laws on the business, operations and properties of
the in the course of which it identifies and evaluates associated costs and
liabilities (including, without limitation, any capital or operating
expenditures required for clean-up, closure of properties or compliance
with Environmental Laws or any permit, license or approval, any related
constraints on operating activities and any potential liabilities to third
parties); on the basis of such review, the Company and the Subsidiaries,
have reasonably concluded that such associated costs and liabilities could
not have a Material Adverse Effect.
(n) None of the Company, any of the Subsidiaries, Regent, and to
the knowledge of the Company, the Pending Transaction Parties with respect
to the Pending Properties, has violated any Federal, state or local law
relating to discrimination in the hiring, promotion or pay of employees nor
any applicable wage or hour laws, nor any provisions of the Employee
Retirement Income Security Act of 1974 ("ERISA") or the rules and
regulations promulgated thereunder, nor has the Company or any of the
Subsidiaries or Regent or, to the knowledge of the Company, the Pending
Transaction Parties with respect to the Pending Properties, engaged in any
unfair labor practice, which in each case described in this sentence could
reasonably be expected to result, singly or in the aggregate, in a Material
Adverse Effect. There is (i) no significant unfair labor practice
complaint pending against the Company or any of the Subsidiaries or Regent
or, to the knowledge of the Company, the Pending Transaction Parties with
respect to the Pending Properties, or, to the best knowledge of the
Company, threatened against any of them, before the National Labor
Relations Board or any state or local labor relations board, and no
significant grievance or significant arbitration proceeding arising out of
or under any collective bargaining agreement is so pending against the
Company or any of the Subsidiaries or Regent or, to the knowledge of the
Company, the Pending Transaction Parties with respect to the Pending
Properties, or, to the best knowledge of the Company, threatened against
any of them, (ii) no
17
significant strike, labor dispute, slowdown or stoppage pending against the
Company or any of its Subsidiaries or Regent or, to the knowledge of the
Company, the Pending Transaction Parties with respect to the Pending
Properties, or, to the best knowledge of the Company, threatened against
the Company or any of the Subsidiaries, Regent, or the Pending Transaction
Parties with respect to the Pending Properties and (iii) to the best
knowledge of the Company, no union representation question existing with
respect to the employees of the Company or any of the Subsidiaries, or the
Pending Transaction Parties with respect to the Pending Properties, and, to
the best knowledge of the Company, no union organizing activities are
taking place, except (with respect to any matter specified in clause (i),
(ii) or (iii) above, singly or in the aggregate) such as could not have a
Material Adverse Effect.
(o) The Company, each of its Subsidiaries and Regent each have good
and marketable title, free and clear of all Liens, to all property and
assets described in the Registration Statement as being owned by it, except
for (i) Liens pursuant to the Credit Facility and (ii) Liens on general
office equipment which are not material to the Company's operations. All
leases to which the Company, the Subsidiaries or Regent are a party are
valid and binding and no default has occurred or is continuing thereunder
and the Company, each of its Subsidiaries and Regent enjoy peaceful and
undisturbed possession under all such leases to which any of them is a
party as lessee with such exceptions as do not materially interfere with
the use made by the Company or any such Subsidiary or Regent.
(p) The respective firm of accountants that has certified or shall
certify the applicable consolidated financial statements and supporting
schedules of the Company, Citicasters, Inc. ("Citicasters"), Noble
Broadcast Group, Inc. ("Noble") and the operations of six radio stations,
KIIS-FM and KIIS-AM in Los Angeles, KSDO-AM and KKBH-FM in San Diego and
WDAE-AM and WUSA-FM in Tampa-St. Petersberg (the "Selected Gannett Radio
Stations") owned and operated by Pacific and Southern Company, Inc., a
subsidiary of Gannett Co., Inc.
18
("Gannett") filed, to be filed or incorporated by reference with the
Commission as part of the Registration Statement and the Prospectus are
independent public accountants with respect to the Company, the
Subsidiaries and the Selected Gannett Radio Stations, Citicasters or Noble,
as required by the Act. The consolidated historical and PRO FORMA
financial statements, together with related schedules and notes, set forth
in the Prospectus and the Registration Statement comply as to form in all
material respects with the requirements of the Act. Such historical
financial statements fairly present the consolidated financial position of
the Company, the Subsidiaries and the Selected Gannett Radio Stations,
Citicasters and Noble at the respective dates indicated and the results of
their operations and their cash flows for the respective periods indicated,
in accordance with generally accepted accounting principles ("GAAP")
consistently applied throughout such periods. Such PRO FORMA financial
statements have been prepared on a basis consistent with such historical
statements, except for the PRO FORMA adjustments specified therein, and
give effect to assumptions made on a reasonable basis and present fairly
the historical and proposed transactions contemplated by the Prospectus and
the Transaction Documents. The other financial and statistical information
and data included in the Prospectus and in the Registration Statement,
historical and PRO FORMA, are, in all material respects, accurately
presented and prepared on a basis consistent with such financial statements
and the books and records of the Company and the Selected Gannett Radio
Stations, Citicasters and Noble.
(q) Subsequent to the respective dates as of which information is
given in the Registration Statement and the Prospectus and up to the
Closing Date, none of the Company, any of the Subsidiaries or Regent have
incurred any liabilities or obligations, direct or contingent, which are
material to the Company and the Subsidiaries taken as a whole, nor entered
into any transaction not in the ordinary course of business and there has
not been, singly or in the aggregate, any material adverse change, or any
development which could reasonably be expected to involve a material adverse
change, in the proper-
19
ties, business, results of operations, condition (financial or otherwise),
affairs or prospects of the Company and the Subsidiaries taken as a whole
(a "Material Adverse Change").
(r) All tax returns required to be filed by the Company, any of the
Subsidiaries and Regent in any jurisdiction have been filed, other than
those filings being contested in good faith, and all material taxes,
including withholding taxes, penalties and interest, assessments, fees and
other charges due or claimed to be due from such entities have been paid,
other than those being contested in good faith and for which adequate
reserves have been provided or those currently payable without penalty or
interest.
(s) No authorization, approval or consent or order of, or filing
with, any court or governmental body or agency is necessary in connection
with the transactions contemplated by the Pending Transactions, except such
as may be required by the NASD or have been obtained and made under the
Act, the Exchange Act, the Trust Indenture Act of 1939, as amended (the
"TIA") or state securities or "Blue Sky" laws or regulations. Neither the
Company nor any of its affiliates is presently doing business with the
government of Cuba or with any person or affiliate located in Cuba.
(t) (i) Each of the Company, the Subsidiaries and Regent and, to
the knowledge of the Company, any of the Pending Transaction Parties with
respect to the Pending Properties, has all certificates, consents,
exemptions, orders, permits, licenses, authorizations, or other approvals
(each, an "Authorization") of and from, and has made all declarations and
filings with, all Federal, state, local and other governmental authorities
(including the Federal Communications Commission ("FCC")), all
self-regulatory organizations and all courts and other tribunals, necessary
or required to own, lease, license and use its properties and assets and to
conduct its business in the manner described in the Prospectus, except to
the extent that the failure to obtain or file could not, singly or in the
aggregate, reasonably be expected to have a Material
20
Adverse Effect, (ii) all such Authorizations are valid and in full force
and effect, (iii) each of the Company, the Subsidiaries and Regent and,
to the knowledge of the Company, the Pending Transaction Parties with
respect to the Pending Properties, is in compliance in all material
respects with the terms and conditions of all such Authorizations and with
the rules and regulations of the regulatory authorities and governing
bodies having jurisdiction with respect thereto and (iv) each commercial
radio broadcast station identified in the Prospectus as owned and operated
by any of the Company, the Subsidiaries or Regent, or, to the knowledge of
the Company, the Pending Transaction Parties with respect to the Pending
Properties, as applicable, is operating with the maximum facilities
specified by the Authorization pertaining thereto.
(u) Neither the Company nor any of the Subsidiaries is (a) an
"investment company" or a company "controlled" by an investment company
within the meaning of the Investment Company Act of 1940, as amended, or
(b) a "holding company" or a "subsidiary company" of a holding company, or
an "affiliate" thereof within the meaning of the Public Utility Holding
Company Act of 1935, as amended.
(v) No holder of any security of the Company has or will have any
right to require the registration of such security by virtue of any
transaction contemplated by this Agreement.
(w) Each of the Company, the Subsidiaries and Regent and, to the
knowledge of the Company, the Pending Transaction Parties with respect to
the Pending Properties, possesses the patents, patent rights, licenses,
inventions, copyrights, know-how (including trade secrets and other
unpatented and/or unpatentable proprietary or confidential information,
systems or procedures), trademarks, service marks and trade names
(collectively, "Intellectual Property") presently employed by them in
connection with the businesses now operated by them, and none of the
Company, the Subsidiaries and Regent, and, to the knowledge of the
Company, the Pending Transaction Parties with respect to the Pending
Properties, has received any notice of infringement of or
21
conflict with asserted rights of others with respect to the foregoing
which, singly or in the aggregate, could reasonably be expected to result
in any Material Adverse Change. The use of such Intellectual Property in
connection with the business and operations of each of the Company, the
Subsidiaries and Regent, and, to the knowledge of the Company, the Pending
Transaction Parties with respect to the Pending Properties does not, to the
Company's knowledge, infringe on the rights of any person except where any
such infringement has not resulted in, or could not reasonably be expected
to result in any Material Adverse Change.
(x) Each certificate signed by any officer of any Registrant and
delivered to the Underwriters or counsel for the Underwriters shall be
deemed to be a representation and warranty by the applicable Registrant to
each Underwriter as to the matters covered thereby.
(y) Each of the Company, the Subsidiaries and Regent maintains a
system of internal accounting controls sufficient to provide reasonable
assurance that (1) transactions are executed in accordance with
management's general or specific authorizations; (2) transactions are
recorded as necessary to permit preparation of financial statements in
conformity with GAAP and to maintain asset accountability; (3) access to
assets is permitted only in accordance with management's general or
specific authorization; and (4) the recorded accountability for assets is
compared with the existing assets at reasonable intervals and appropriate
action is taken with respect to any differences.
(z) The Company has not (i) taken, directly or indirectly, any action
designed to cause or to result in, or that has constituted or which could
reasonably be expected to constitute, the stabilization or manipulation of
the price of any security of the Company to facilitate the sale or resale
of the Securities or (ii) since the initial filing of the Registration
Statement (A) sold, bid for, purchased, or paid anyone any compensation for
soliciting purchases of, the Securities or (B) paid or agreed to pay to any
person any compensation for soliciting
22
another to purchase any other securities of the Company.
(aa) Each of the Company, the Subsidiaries and Regent and, to the
knowledge of the Company, the Pending Transaction Parties with respect to
the Pending Properties, maintains insurance covering their properties,
operations, personnel and businesses. Such insurance insures against such
losses and risks as are adequate in accordance with customary industry
practice to protect the Company and its Subsidiaries and their businesses.
None of the Company, any Subsidiary and Regent, and, to the knowledge of
the Company, the Pending Transaction Parties with respect to the Pending
Properties, has received notice from any insurer or agent of such insurer
that substantial capital improvements or other expenditures will have to be
made in order to continue such insurance. All such insurance is
outstanding and duly in force on the date hereof and will be outstanding
and duly in force on the Closing Date.
(bb) Neither the Company nor Regent has, directly or indirectly, paid
or delivered any fee, commission or other sum of money or item or property,
however characterized, to any finder, agent, government official or other
party, in the United States or any other country, which is in any manner
related to the business or operations of the Company or Regent,
respectively, which the Company knows or has reason to believe to have been
illegal under any Federal, state or local laws of the United States or any
other country having jurisdiction; and neither the Company nor Regent has
participated, directly or indirectly, in any boycotts or other similar
practices in contravention of law affecting any of its actual or potential
customers.
(cc) Neither the Company nor Regent owns any "margin securities" as
that term is defined in Regulations G and U of the Board of Governors of
the Federal Reserve System (the "Federal Reserve Board").
(dd) Each person described in the Prospectus as a person to whom the
Company or any of the Sub-
23
sidiaries provides programming pursuant to a local marketing agreement or a
joint sales agreement (a "Licensee") has been issued by the FCC an FCC
license (which is in full force and effect) for the operation of the
commercial radio broadcast station identified in the Prospectus as
programmed by the Company or any of its Subsidiaries, which licenses expire
on the dates set forth in the Prospectus.
(ee) Each person described in the Prospectus as a person to whom the
Company or any of the Subsidiaries provides programming pursuant to an
exclusive sales agency agreement (a "Mexican Licensee"), has been issued by
the Mexican government all necessary Mexican licenses (which are in full
force and effect) for the operation of the commercial radio broadcast
station identified in the Prospectus as programmed by the Company or any of
its Subsidiaries. Each of the Company and its Subsidiaries have all
Authorizations necessary to deliver programming to the Mexican Licensees.
(ff) Each of the Company, its Subsidiaries and Regent and, to the
knowledge of the Company, the Pending Transaction Parties with respect to
the Pending Properties, has filed with the FCC all material reports,
documents, instruments, information and applications required to be filed
pursuant to the FCC's rules, regulations and requests. No notice has been
issued by the FCC which could permit, or after notice or lapse of time or
both could permit, revocation or termination of any FCC license of any of
the Subsidiaries, Regent or, to the knowledge of the Company, the Pending
Transaction Parties with respect to the Pending Properties, or to the
knowledge of the Company, of any of the Licensees prior to the expiration
dates thereof or which could reasonably be expected to result in any other
material impairment of any of the Subsidiaries', or Regent or its
subsidiaries, or, to the knowledge of the Company, the Pending Transaction
Parties or their subsidiaries with respect to the Pending Properties, or,
to the knowledge of the Company, of any of the Licensees' rights thereunder
and which could reasonably be expected to, singly or in the aggregate, have
a Material Adverse Effect.
24
(gg) Each of the Stations is now operating, and has operated, in
compliance in all material respects with the Communications Act of 1934, as
amended (the "Communications Act"), and the published rules and regulations
of the FCC. There is not issued, outstanding or pending any Notice of
Violation, Notice of Apparent Liability, Order to Show Cause, material
complaint or investigation by or before the FCC which could materially
threaten or materially adversely affect any of the Company's or any of its
Subsidiaries', Regent or its subsidiaries', or, to the knowledge of the
Company, the Pending Transaction Parties or their subsidiaries' with
respect to the Pending Properties, or, to the knowledge of the Company, any
Licensees' FCC licenses or which could reasonably be expected to result in
any material adverse effect upon any of the Company's Subsidiaries, Regent
or its subsidiaries, or, to the knowledge of the Company, the Pending
Transaction Parties or their subsidiaries with respect to the Pending
Properties, or, to the knowledge of the Company, any Licensees' operation
of its respective stations and which could reasonably be expected to,
singly or in the aggregate, have a Material Adverse Effect, nor does the
Company have reason to believe that the FCC licenses with respect to the
Stations will not be renewed for a full eight year term when such FCC
licenses are due for renewal.
(hh) The execution, delivery and performance of the obligations by
the Company under this Agreement are not and will not be contrary to the
Communications Act, as amended, will not result in any violation of the
FCC's published rules and regulations, will not cause any forfeiture or
impairment of any FCC license of any of the Stations by or before the FCC,
and will not require any consent, approval or authorization of the FCC.
(ii) The execution, delivery and performance of the obligations by
each of the Registrants, as applicable, and Regent (each, a "Transaction
Party" and, collectively, the "Transaction Parties") and, to the knowledge
of the Company, by the Pending Transaction Parties with respect to the
Pending Properties to the extent each is a party to the
25
Transaction Documents are not and will not be contrary to the
Communications Act, will not result in any violation of the FCC's published
rules and regulations, will not cause any forfeiture or impairment of any
FCC license of any of the Stations by or before the FCC, and will not
require any consent, approval or authorization of the FCC (other than
approval for a transfer of control over the relevant Stations). All
necessary applications, exhibits or other filings required by the FCC for
transfer of control of the Stations now controlled by Regent, and, to the
knowledge of the Company, by the Pending Transaction Parties with respect
to the Pending Properties pursuant to the applicable Transaction Documents
have been filed with the FCC (the "Transfer Applications"). To the best of
the Company's knowledge, there are no circumstances that would cause the
FCC to reject the Transfer Applications.
(jj) The Transaction Parties and, to the knowledge of the Company,
the Pending Transaction Parties, have, to the extent each is or will be a
party thereto, all requisite corporate power and authority to execute,
deliver and perform their respective obligations under each of the
Transaction Documents; each of the Transaction Documents has been duly and
validly authorized, executed and delivered by the Transaction Parties and,
to the knowledge of the Company, the Pending Transaction Parties, to the
extent each is a party thereto, and each constitutes a valid and legally
binding agreement of the Transaction Party and, to the knowledge of the
Company, the Pending Transaction Parties, enforceable against each
Transaction Party or Pending Transaction Party, as applicable, in
accordance with its terms; except as set forth in the Prospectus, no
consent, approval, authorization or order of any court or governmental
agency or body is required for the performance of any of the Transaction
Documents by each of the Transaction Parties or, to the knowledge of the
Company, each Pending Transaction Party, to the extent each is a party
thereto, or the consummation by each of the Transaction Parties, or to the
knowledge of the Company, each of the Pending Transaction Parties, of any
of the transactions contemplated thereby, except such as may be required
26
and have been obtained, or upon effectiveness of the Registration
Statement, will have been obtained, under the Act, the Exchange Act, the
Trust Indenture Act of 1939, as amended (the "TIA"), or state securities or
"Blue Sky" laws or regulations or such as may be required by the NASD in
connection with the purchase and distribution of the Securities by the
Underwriters; and none of the Transaction Parties, is (i) in violation of
its charter or bylaws, (ii) in violation of any statute, judgment, decree,
order, rule or regulation applicable to any of them or any of their
respective properties or assets, which violation would have a Material
Adverse Effect, or (iii) in default in the performance or observance of any
obligation, agreement, covenant or condition contained in any of the
Transaction Documents or any other contract, indenture, mortgage, deed of
trust, loan agreement, note, lease, license, franchise agreement, permit,
Authorizations, certificate or agreement or instrument to which any of them
is a party or to which any of them is subject, which default would have a
Material Adverse Effect.
(kk) The execution, delivery and performance by the Transaction
Parties, to the extent each is a party thereto, of each of the Transaction
Documents, and the consummation by the respective Transaction Parties of
the transactions contemplated thereby, will not violate, conflict with or
constitute or result in a breach of or a default under (or an event which,
with notice or lapse of time, or both, would constitute a breach of or a
default under) any of (i) the terms or provisions of any of the Transaction
Documents or any other indenture, mortgage, deed of trust, loan agreement,
note, lease, license, franchise agreement, or agreement or instrument to
which a Transaction Party, is a party or to which any of their respective
properties or assets are subject, which violation, conflict, breach or
default would have a Material Adverse Effect, (ii) the charter or bylaws of
the Transaction Party, or (iii) any statute, judgment, decree, order, rule
or regulation of any court, governmental agency or other body or self
regulatory organization applicable to each Transaction Party, or any of
their respective properties or assets, which violation, conflict,
27
breach or default would have a Material Adverse Effect.
(ll) The Regent Merger has been duly authorized by the relevant
Transaction Parties and the transactions contemplated by the Transaction
Documents have been approved, to the extent required, by all appropriate
corporate action; approval of the transactions contemplated by the
Transaction Documents by the shareholders of the Company is not required.
(mm) The Company has delivered to the Underwriters a true and correct
copy of each of the Transaction Documents that have been executed and
delivered prior to the date of this Agreement and each other Transaction
Document in the form substantially as it will be executed and delivered,
together with all related agreements and all schedules and exhibits
thereto, and there have been no amendments, alterations, modifications or
waivers of any of the provisions of any of the Transaction Documents since
their date of execution or from the form in which it has been delivered to
the Underwriters; there exists as of the date hereof (after giving effect
to the transactions contemplated by the Transaction Documents) no event or
condition which would constitute a default or an event of default (in each
case as defined in the Credit Facility) under the Credit Facility, and no
event or condition which would constitute a default or an event of default
(in each case as defined in each of the Transaction Documents) under any of
the Transaction Documents other than the Credit Facility, which would
result in a Material Adverse Effect or materially adversely effect the
ability of each of the Company or Regent to consummate the transactions
contemplated by the Transaction Documents.
(nn) No director, officer or substantial shareholder of the Company
has a 5% or greater interest (or no such persons collectively have a 10% or
greater interest), directly or indirectly, in Regent.
(oo) The shares of Common Stock to be issued pursuant to the Regent
Merger Agreement, will not
28
have upon issuance, voting power equal to or in excess of 20% of the voting
power outstanding before the issuance of the Common Stock or securities
convertible into or exercisable for Common Stock.
(pp) The Company has filed with the Commission all filings that are
required to be filed as of the date hereof with respect to the financial
statements of each of the Transaction Parties (as defined herein) in
filings made under the Act and under the Exchange Act, specifically as
required by Rule 3-05 of Regulation S-X and General Instructions and Item 7
of Form 8-K.
(ss) Each of the representations and warranties contained in each of
the Transaction Documents are true and correct on and as of the date
hereof, except as could not have a Material Adverse Effect.
6. INDEMNIFICATION.
(a) The Registrants, jointly and severally, agree to indemnify and
hold harmless (i) each of the Underwriters and (ii) each person, if any,
who controls (within the meaning of Section 15 of the Act or Section 20 of
the Exchange Act) any of the Underwriters (any of the persons referred to
in this clause (ii) being hereinafter referred to as a "controlling
person"), and (iii) the respective officers, directors, partners, employees,
representatives and agents of any of the Underwriters or any controlling
person (any person referred to in clause (i), (ii) or (iii) may hereinafter
be referred to as an "Indemnified Person") to the fullest extent lawful,
from and against any and all losses, claims, damages, liabilities,
judgments, actions and expenses (including without limitation and as
incurred, reimbursement of all reasonable costs of investigating, preparing,
pursuing or defending any claim or action, or any investigation or
proceeding by any governmental agency or body, commenced or threatened,
including the reasonable fees and expenses of counsel to any Indemnified
Person) directly or indirectly caused by, related to, based upon, arising
out of or in connection with any untrue statement or alleged untrue
statement of a material fact contained in the Registration Statement (or
any amendment thereto), including the
29
information deemed to be a part of the Registration Statement or the
Prospectus (including any amendment or supplement thereto) or any
preliminary prospectus, or any omission or alleged omission to state
therein a material fact required to be stated therein or necessary to make
the statements therein (in the case of the Prospectus, in light of the
circumstances under which they were made) not misleading, PROVIDED,
HOWEVER, that (i) except insofar as such losses, claims, damages,
liabilities, judgments, actions or expenses are caused by an untrue
statement or omission or alleged untrue statement or omission that is made
in reliance upon and in conformity with information relating to any of the
Underwriters furnished in writing to the Company by DLJ expressly for
use in the Registration Statement (or any amendment thereto) or the
Prospectus (or any amendment or supplement thereto) or any preliminary
prospectus, (ii) the foregoing indemnity agreement with respect to any
untrue statement contained in or omission from a preliminary prospectus
shall not inure to the benefit of the Underwriter from whom the person
asserting any such losses, liabilities, claims, damages or expenses
purchased Securities, or any person controlling such Underwriter, if a copy
of the Prospectus (as then amended or supplemented, if the Company shall
have furnished any amendments or supplements thereto) was not sent or given
by or on behalf of the Underwriters to such person, if such is required by
law, at or prior to the written confirmation of the sale of such Securities
to such person and the untrue statement contained in or omission from such
preliminary prospectus was corrected in the Prospectus (or the Prospectus as
amended or supplemented). The Company shall notify you promptly of the
institution, threat or assertion of any claim, proceeding (including any
governmental investigation) or litigation in connection with the matters
addressed by this Agreement which involves the Company or an Indemnified
Person.
(b) In case any action or proceeding (including any governmental
investigation) shall be brought or asserted against any of the Indemnified
Persons with respect to which indemnity may be sought against the
Registrants, such Underwriter (or the Underwriter controlled by such
controlling person) shall
30
promptly notify the Company in writing (provided, that the failure to
give such notice shall not relieve the Registrants of their obligations
pursuant to this Agreement). Such Indemnified Person shall have the right
to employ its own counsel in any such action and the fees and expenses of
such counsel shall be paid, as incurred, by the Registrants (regardless of
whether it is ultimately determined that an Indemnified Party is not
entitled to indemnification hereunder). The Registrants shall not, in
connection with any one such action or proceeding or separate but
substantially similar or related actions or proceedings in the same
jurisdiction arising out of the same general allegations or circumstances,
be liable for the reasonable fees and expenses of more than one separate
firm of attorneys (in addition to any local counsel) at any time for such
Indemnified Persons, which firm shall be designated by DLJ. The Registrants
shall be liable for any settlement of any such action or proceeding effected
with the Company's prior written consent, which consent will not be
unreasonably withheld, and the Registrants, jointly and severally, agree to
indemnify and hold harmless any Indemnified Person from and against any
loss, claim, damage, liability or expense by reason of any settlement of any
action effected with the written consent of the Company. Notwithstanding
the foregoing sentence, if at any time an Indemnified Person shall have
requested the Registrants to reimburse the Indemnified Person for fees and
expenses of counsel as contemplated by the second sentence of this
paragraph, the Registrants, jointly and severally, agree that they shall be
liable for any settlement of any proceeding effected without the Company's
written consent if (i) such settlement is entered into more than 10 business
days after receipt by the Company of the aforesaid request, and (ii) the
Registrants shall not have reimbursed the Indemnified Person in accordance
with such request prior to the date of such settlement. The Registrants
shall not, without the prior written consent of each Indemnified Person,
settle or compromise or consent to the entry of judgment in or otherwise
seek to terminate any pending or threatened action, claim, litigation or
proceeding in respect of which indemnification or contribution may be
sought hereunder (whether or not any Indemnified Person is a party thereto),
unless such settlement, compromise, consent or termination
31
includes an unconditional release of each Indemnified Person from all
liability arising out of such action, claim, litigation or proceeding.
(c) Each of the Underwriters agrees, severally and not jointly, to
indemnify and hold harmless the Registrants, their directors, their officers
who sign the Registration Statement, any person controlling (within the
meaning of Section 15 of the Act or Section 20 of the Exchange Act) the
Registrants, and the officers, directors, partners, employees,
representatives and agents of each such person, to the same extent as the
foregoing indemnity from the Registrants to each of the Indemnified Persons,
but only with respect to claims and actions based on information relating to
such Underwriter furnished in writing by DLJ expressly for use in the
Prospectus.
(d) If the indemnification provided for in this Section 6 is
unavailable to an indemnified party in respect of any losses, claims,
damages, liabilities, judgments, actions or expenses referred to herein,
then each indemnifying party, in lieu of indemnifying such indemnified
party, shall contribute to the amount paid or payable by such indemnified
party as a result of such losses, claims, damages, liabilities, judgments,
actions and expenses (i) in such proportion as is appropriate to reflect
the relative benefits received by the indemnifying party on the one hand
and the indemnified party on the other hand from the offering of the
Securities or (ii) if the allocation provided by clause (i) above is not
permitted by applicable law, in such proportion as is appropriate to
reflect not only the relative benefits referred to in clause (i) above but
also the relative fault of the indemnifying parties and the indemnified
party, as well as any other relevant equitable considerations. The
relative benefits received by the Registrants, on the one hand, and any of
the Underwriters, on the other hand, shall be deemed to be in the same
proportion as the total proceeds from the offering (net of underwriting
discounts and commissions but before deducting expenses) received by the
Registrants bear to the total underwriting discounts and commissions
received by such Underwriter, in each case as set forth in the table on the
cover page of the Prospec-
32
tus. The relative fault of the Registrants and the Underwriters shall be
determined by reference to, among other things, whether the untrue or
alleged untrue statement of a material fact or the omission or alleged
omission to state a material fact related to information supplied by the
Registrants or the Underwriters and the parties' relative intent, knowledge,
access to information and opportunity to correct or prevent such statement
or omission. The indemnity and contribution obligations of the
Registrants set forth herein shall be in addition to any liability or
obligation the Registrants may otherwise have to any Indemnified Person.
The Registrants and the Underwriters agree that it would not be just and
equitable if contribution pursuant to this Section 6(d) were determined by
PRO RATA allocation (even if the Underwriters were treated as one entity
for such purpose) or by any other method of allocation which does not take
account of the equitable considerations referred to in the immediately
preceding paragraph. The amount paid or payable by an indemnified party as
a result of the losses, claims, damages, liabilities, judgments, actions or
expenses referred to in the immediately preceding paragraph shall be deemed
to include, subject to the limitations set forth above, any legal or other
expenses reasonably incurred by such indemnified party in connection with
investigating or defending any such action or claim. Notwithstanding the
provisions of this Section 6, none of the Underwriters (and its related
Indemnified Persons) shall be required to contribute, in the aggregate, any
amount in excess of the amount by which the total underwriting discount
applicable to the Securities purchased by such Underwriter exceeds the
amount of any damages which such Underwriter has otherwise been required to
pay by reason of such untrue or alleged untrue statement or omission or
alleged omission. No person guilty of fraudulent misrepresentation (within
the meaning of Section 11(f) of the Act) shall be entitled to contribution
from any person who was not guilty of such fraudulent misrepresentation.
The Underwriters' obligations to contribute pursuant to this Section 6(d)
are several in proportion to the respective number
33
of Securities purchased by each of the Underwriters hereunder and not
joint.
7. CONDITIONS OF UNDERWRITERS' OBLIGATIONS. The several obligations
of the Underwriters to purchase the Securities under this Agreement are subject
to the satisfaction of each of the following conditions:
(a) All the representations and warranties of the Registrants
contained in this Agreement shall be true and correct on the Closing Date
with the same force and effect as if made on and as of the Closing Date.
The Company shall have performed or complied with all of its obligations
and agreements herein contained and required to be performed or complied
with by it at or prior to the Closing Date.
(b) (i) The Registration Statement shall have become effective (or,
if a post-effective amendment is required to be filed pursuant to Rule 430A
promulgated under the Act, such post-effective amendment shall have become
effective) not later than 10:00 A.M. (and in the case of a Registration
Statement filed under Rule 462(b) of the Act, not later than 10:00 P.M.),
New York City time, on the date of this Agreement or at such later date and
time as you may approve in writing, (ii) at the Closing Date, no stop order
suspending the effectiveness of the Registration Statement shall have been
issued and no proceedings for that purpose shall have been commenced or
shall be pending before or contemplated by the Commission and every request
for additional information on the part of the Commission shall have been
complied with in all material respects, and (iii) no stop order suspending
the sale of the Securities in any jurisdiction referred to in Section 4(g)
shall have been issued and no proceeding for that purpose shall have been
commenced or shall be pending or threatened.
(c) No action shall have been taken and no statute, rule, regulation
or order shall have been enacted, adopted or issued by any governmental
agency which would, as of the Closing Date, prevent the issuance of the
Securities; and no injunction, restraining order or order of any nature by
a Federal or state court of competent jurisdiction shall
34
have been issued as of the Closing Date which would prevent the issuance of
the Securities or the consummation of the Pending Transactions.
(d) (i) Since the date hereof or since the dates as of which
information is given in the Registration Statement and the Prospectus,
there shall not have been any Material Adverse Change, (ii) since the date
of the latest balance sheet included, or incorporated by reference, in the
Registration Statement and the Prospectus, there shall not have been any
material change in the capital stock or long-term debt, or material
increase in short-term debt, of the Company or any of the Subsidiaries
taken as a whole and (iii) the Company and the Subsidiaries taken as a
whole, shall have no liability or obligation, direct or contingent, that is
material to the Company and the Subsidiaries taken as a whole,
respectively, and is required to be disclosed on a balance sheet in
accordance with GAAP and is not disclosed on the latest applicable balance
sheet included in the Registration Statement and the Prospectus.
(e) You shall have received a certificate of the Company, dated the
Closing Date, executed on behalf of the Company, by the President or any
Vice President and a principal financial or accounting officer of the
Company confirming, as of the Closing Date, the matters set forth in
paragraphs (a), (b), (c) and (d) of this Section 7.
(f) On the Closing Date, you shall have received:
(1) an opinion (satisfactory to you and your counsel), dated the
Closing Date, of Graydon, Head & Ritchey, counsel for the Company, (which
opinion shall, in regards to any matters covered by the law of the States
of Colorado, Florida or Georgia, rely on the opinion of Colorado, Florida
or Georgia counsel, respectively, reasonably acceptable to the
Underwriters) to the effect that:
(i) (A) the Company and each of the Subsidiaries is a duly
organized and validly existing corporation in good stand-
35
ing under the laws of its jurisdiction of incorporation, has the
requisite corporate power and authority to own, lease and operate its
properties and to conduct its business as described in the
Registration Statement and the Prospectus, and is duly qualified as a
foreign corporation and in good standing in each jurisdiction where
the ownership, leasing or operation of property or the conduct of its
business requires such qualification, except where the failure to be
so qualified could not be reasonably expected to have, singly or in
the aggregate, a Material Adverse Effect; and (B) the Company has the
requisite corporate power and authority to execute, deliver and
perform this Agreement;
(ii) the Transaction Documents have been duly authorized,
executed and delivered by the Registrants, as applicable;
(iii) the authorized, issued and outstanding capital stock
of the Company is as set forth in the Prospectus under
"Capitalization";
(iv) all of the issued and outstanding shares of capital
stock of, or other ownership interests in, each Subsidiary have been
duly and validly authorized and issued, and the shares of capital
stock of, or other ownership interests in, each Subsidiary are owned,
directly or through Subsidiaries, by the Company, are fully paid and
nonassessable, and are owned free and clear of any Lien, except for
Liens pursuant to the Credit Facility;
(v) to the knowledge of such counsel (after due inquiry)
there are no outstanding subscriptions, rights, warrants, options,
calls, convertible securities, commitments of sale or Liens related to
or entitling any person to purchase or otherwise to acquire any shares
of the capital stock of, or other ownership interest in, any
Subsidiary except as disclosed in the Prospectus;
36
(vi) neither the Company nor any of the Subsidiaries is (A)
an "investment company" or a company "controlled" by an investment
company within the meaning of the Investment Company Act of 1940, as
amended, or (B) a "holding company" or a "subsidiary company" of a
holding company, or an "affiliate" thereof within the meaning of the
Public Utility Holding Company Act of 1935, as amended;
(vii) neither the consummation of the transactions
contemplated by this Agreement nor the sale, issuance, execution or
delivery of the Securities, will violate Regulation G, T, U or X of
the Board of Governors of the Federal Reserve System;
(viii) when authenticated in accordance with the terms of
the Indenture and delivered to and paid for in accordance with the
terms of this Agreement, the Guarantee and the Securities will
constitute valid and legally binding obligations of the Guarantors and
JCC, respectively, enforceable against the Guarantors and JCC,
respectively, in accordance with their respective terms and entitled
to the benefits of the Indenture, subject to applicable bankruptcy,
insolvency, fraudulent conveyance, reorganization, moratorium and
similar laws affecting creditors' rights and remedies generally and to
general principles of equity (regardless of whether enforcement is
sought in a proceeding at law or in equity) and except to the extent
that a waiver of rights under any usury laws may be unenforceable;
(ix) the Indenture, assuming due authorization, execution
and delivery thereof by the Trustee, constitutes a valid and legally
binding agreement of the Registrants, respectively, enforceable
against the Registrants, in accordance with its terms, subject to
applicable bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium and similar laws affecting creditors'
rights and remedies generally and to general principles of equity
(regardless of whether enforcement is
37
sought in a proceeding at law or in equity) and except to the extent
that a waiver of rights under any usury laws may be unenforceable;
(x) the Securities and the Indenture conform in all
material respects to the descriptions thereof contained in the
Prospectus;
(xi) to the best knowledge of such counsel, there is no
current, pending or threatened action, suit or proceeding before any
court or governmental agency, authority or body or any arbitrator
involving the Company or any Subsidiary or to which any of their
respective properties is subject of a character required to be
disclosed in the Registration Statement which is not adequately
disclosed in the Prospectus;
(xii) the descriptions in the Registration Statement and the
Prospectus of statutes, legal and governmental proceedings and
contracts and other documents are accurate in all material respects
and fairly present the information required to be shown; and such
counsel does not know of any legal or governmental proceedings
required to be described in the Registration Statement or Prospectus
which are not described as required or of any contracts or documents
of a character required to be described in the Registration Statement
or Prospectus or to be filed as exhibits to the Registration Statement
which are not described and filed as required; it being understood
that such counsel need express no opinion as to the financial
statements, notes or schedules or other financial data included
therein;
(xiii) the Registration Statement has become effective under
the Act; any required filing of the Prospectus, and any supplements
and term sheets thereto, pursuant to Rule 424(b) has been made in the
manner and within the time period required by Rule 424(b); and to the
knowledge of such counsel (after due inquiry) no stop order suspending
the effec-
38
tiveness of the Registration Statement or any part thereof has been
issued and no proceedings therefor have been instituted or are pending
or contemplated under the Act; and the Indenture has been duly
qualified under the TIA;
(xiv) no authorization, approval, consent or order of, or
filing with, any court or governmental body or agency is required for
the consummation by the Company of the transactions contemplated by
the Agreement, except such as have been obtained and made under the
Act, the Exchange Act, the TIA, state securities or "Blue Sky" laws or
regulations or such as may be required by the NASD; no authorization,
approval, consent or order of, or filing with, any court or
governmental body or agency is required for the consummation by the
Registrants, as applicable, or Regent, of the transactions
contemplated by the applicable Transaction Documents, except as
disclosed in the Prospectus; the execution and delivery of this
Agreement and the Indenture, the issuance and sale of the Securities,
the performance of this Agreement and the consummation of the
transactions contemplated by this Agreement will not result in a
breach or violation of any of (A) any of the respective charters or
bylaws of the Company or any of the Subsidiaries or (B) to the
knowledge of such counsel (after due inquiry), the terms or provisions
of any agreement or instrument which is filed as an exhibit to the
Registration Statement and to which the Company or any of the
Subsidiaries is a party or by which any of them is bound, or to which
any of the properties of the Company or any of the Subsidiaries is
subject, or (C) to the knowledge of such counsel (after due inquiry)
constitute a default under, any statute, rule or regulation to which
the Company or any Subsidiary is bound or to which any of the
properties of the Company or any Subsidiary is subject or (D) any
order of any court or governmental agency or body having jurisdiction
over the Company or any of the Subsidiaries or any of their properties
which conflict, breach or default in each of the cases described in
39
clauses (B), (C) and (D) could reasonably be expected to have a
Material Adverse Effect;
(xv) at the time it became effective and on the Closing
Date, the Registration Statement complied as to form in all material
respects with the Act;
(xvi) to the knowledge of such counsel, neither the Company
nor the Subsidiaries has received any notice of infringement of or
conflict with asserted rights of others with respect to the
Intellectual Property which, singly or in the aggregate, if the
subject of an unfavorable decision, ruling or finding, could
reasonably be expected to result in a Material Adverse Change. The
use of such Intellectual Property in connection with the business and
operations of the Company and the Subsidiaries does not, to the
knowledge of such counsel, infringe on the rights of any person;
(xvii) to the best knowledge of such counsel, (A) there are
no franchises, contracts, indentures, mortgages, loan agreements,
notes, leases or other instruments to which the Company, any of the
Subsidiaries or Regent are a party or by which any of them may be
bound that are required to be described in the Registration Statement
or the Prospectus or to be filed as exhibits to the Registration
Statement other than those described therein or filed as exhibits
thereto and (B) no default exists in the due performance or observance
of any obligation, agreement, covenant or condition contained in any
contract, indenture, mortgage, loan agreement, note, lease or other
instrument so described or filed in the Registration Statement or the
Prospectus or to be filed as exhibits to the Registration Statement,
or any agreement identified on a schedule attached to the opinion,
except for defaults which could not reasonably be expected to have a
Material Adverse Effect;
(xviii) the Company, the Subsidiaries and Regent, to the
extent each is a
40
party thereto, have full corporate power and authority to execute,
deliver and perform its respective obligations under the applicable
Transaction Documents;
(xix) the Transaction Documents, assuming the authorization,
execution and delivery thereof by the parties other than the
Registrants, as applicable, and Regent, constitute valid and legally
binding agreements of the respective parties thereto enforceable
against each of the parties, to the extent each is a party thereto, in
accordance with their respective terms subject to applicable
bankruptcy, insolvency, reorganization, moratorium and similar laws
affecting creditors' rights generally and to principles of equity
(regardless of whether enforcement is sought in a proceeding at law or
equity) and except to the extent that a waiver of rights under usury
laws may be unenforceable; and
(xx) the approval of the transactions contemplated by the
Transaction Documents by the shareholders of the Company is not
required.
(2) Such counsel shall additionally state that such counsel has
participated in conferences with officers and other representatives of the
Company, representatives of the independent public accountants for the
Company, your representatives and your counsel in connection with the
preparation of the Registration Statement and Prospectus and has considered
the matters required to be stated therein and the statements contained
therein, although such counsel has not independently verified the accuracy,
completeness or fairness of such statements (except as indicated above);
and such counsel advises you that, on the basis of the foregoing, no facts
came to such counsel's attention that caused such counsel to believe that
the Registration Statement (as amended or supplemented, if applicable), at
the time such Registration Statement or any post-effective amendment became
effective, contained an untrue statement of a material fact or omitted to
state a material fact required to be stated therein or
41
necessary to make the statements therein not misleading (other than
information omitted therefrom in reliance on Rule 430A under the Act), or
the Prospectus (as amended or supplemented), as of its date and the Closing
Date, contained an untrue statement of a material fact or omitted to state
a material fact necessary in order to make the statements therein, in light
of the circumstances under which they were made, not misleading. Without
limiting the foregoing, such counsel may further state that the firm
assumes no responsibility for, and the firm has not independently verified,
the accuracy, completeness or fairness of the financial statements, notes
and schedules and other financial data included in the Registration
Statement.
(3) An opinion (satisfactory to you and your counsel), dated the
Closing Date of Hogan & Hartson, counsel for the Company with respect to
FCC and related matters to the effect that:
(i) those statements in the Prospectus, including the
statements incorporated by reference in the Prospectus, under the
caption "Business -- Federal Regulation of Radio Broadcasting" in the
Company's Form 10-Q filed for the quarter ended September 30, 1996
that describe provisions of the Communications Act of 1934, as amended
(the "Communications Act"), and the FCC's published rules or
regulations (for purposes of this opinion only, the "Rules") are
accurate descriptions in all material respects.
(ii) Schedule A to this opinion sets forth a complete list
of the authorizations issued by the FCC to the Company and its
Subsidiaries (for purposes of this opinion only, the "Licenses"). To
such counsel's knowledge, the Licenses are the only licenses, permits
or authorizations required under the Communications Act for the
operation (as presently conducted) of the radio stations listed on
Schedule B (for purposes of this opinion only, the "Jacor Stations").
Except for the pending applications noted on Schedule A hereto, the
Licenses are in full force and
42
effect (and the time within which any administrative or judicial
appeal, reconsideration, rehearing or other review might be sought has
lapsed with respect to the grant of the authorizations for the
currently effective terms, and no such appeal, reconsideration,
rehearing, or other review has been taken or instituted), and are held
by the relevant Subsidiary, and the expiration date of each License is
set forth in Schedule A hereto. Except as indicated on Schedule C to
this opinion, the Licenses are not subject to any conditions imposed
by the FCC other than those that appear on the Licenses or are
customarily imposed by the FCC on radio stations of the same class and
type.
(iii) Except as listed in Schedule D hereto, there is no
proceeding or other administrative action pending or, to such
counsel's knowledge, threatened, before the FCC against the Company or
any Subsidiary, which, if adversely determined, would materially and
adversely affect the business or financial condition of the Company
and its Subsidiaries, taken as a whole. To such counsel's knowledge,
except as listed on Schedule E to this opinion, the Company and the
Subsidiaries have filed with the FCC during the current license term
of each License all material reports and forms required to be filed by
the Company and the Subsidiaries with the FCC with respect to the
Jacor Stations.
(iv) The execution, delivery and performance of the
obligations as of the date hereof by the Company under the transaction
documents described on Schedule F to this opinion (for purposes of the
opinion only, collectively, the "Transaction Documents"), (i) do not
violate the Communications Act, (ii) do not violate any of the Rules,
(iii) do not violate the terms of any of the Licenses, (iv) do not
cause any forfeiture or impairment of any license and (v) do not
require any consent, approval or authorization of the FCC that has not
been obtained; except that (A) prior FCC
43
approval is required for a transfer of control of the relevant
Stations; (B) since we lack actual knowledge regarding the citizenship
and other media interests of the purchasers of the Shares, we do not
express any opinion with respect to compliance with multiple ownership
and foreign ownership requirements under the Communications Act and
the Rules with respect to the FCC's cross-interest policy (which such
policy is summarized at 4 FCC Rcd. 2035). All necessary applications
required by the FCC as of the date hereof for the transfer of control
of the stations described in Pending Transactions have been filed with
the FCC.
(4) An opinion (satisfactory to you and your counsel), dated the
Closing Date of Paul, Hastings, Janofsky & Walker, counsel for the Company,
to the effect that:
(i) when authenticated in accordance with the terms of the
Indenture and delivered to and paid for in accordance with the terms
of this Agreement, the Guarantee and the Securities will constitute
valid and legally binding obligations of the Guarantors and JCC,
respectively, enforceable against the Guarantors and JCC, in
accordance with their respective terms and entitled to the benefits of
the Indenture, subject to applicable bankruptcy, insolvency,
fraudulent conveyance, reorganization, moratorium and similar laws
affecting creditors' rights and remedies generally and to general
principles of equity (regardless of whether enforcement is sought in a
proceeding at law or in equity) and except to the extent that a waiver
of rights under any usury laws may be unenforceable; and
(ii) the Indenture, assuming due authorization, execution
and delivery thereof by the Trustee, constitutes a valid and legally
binding agreement of the Registrants, enforceable against each of the
Registrants, in accordance with its terms, subject to applicable
bankruptcy, insolvency, fraudulent conveyance, reorganization,
moratorium and similar
44
laws affecting creditors' rights and remedies generally and to general
principles of equity (regardless of whether enforcement is sought in a
proceeding at law or in equity) and except to the extent that a waiver
of rights. under any usury laws may be unenforceable
(g) You shall have received an opinion, dated the Closing Date, of
Skadden, Arps, Slate, Meagher & Flom LLP ("Skadden Arps"), counsel for the
Underwriters, in form and substance reasonably satisfactory to you.
(h) You shall have received letters on and as of the date hereof as
well as on and as of the Closing Date (in the latter case constituting an
affirmation of the statements set forth in the former, in form and
substance satisfactory to you, from Coopers & Lybrand L.L.P., Ernst & Young
LLP and Price Waterhouse LLP, independent public accountants, with respect
to the financial statements and certain financial information contained in
the Registration Statement and the Prospectus for each of the Company and
Gannett, Citicasters and Noble, respectively.
(i) Prior to or concurrently with the purchase and sale of the
Securities hereunder, the Company shall have obtained the consents of the
lenders under the Credit Facility approving JCC's issuance of the Notes and
the Guarantors' guarantee thereof.
(j) Skadden Arps shall have been furnished with such documents and
opinions, in addition to those set forth above, as they may reasonably
require for the purpose of enabling them to review or pass upon the matters
referred to in this Section 7 and in order to evidence the accuracy,
completeness or satisfaction in all material respects of any of the
representations, warranties or conditions herein contained.
(k) Prior to the Closing Date, the Company shall have furnished to
you such further information, certificates and documents as you may
reasonably request.
45
(l) There shall have been no amendments, alterations, modifications,
or waivers of any provisions of the Transaction Documents since the date of
the execution and delivery thereof by the parties thereto other than those
which under the Act are not required to be disclosed in the Prospectus or
any supplement thereto and which have been disclosed to the Underwriters
prior to the date hereof.
(m) Each of the Registrants, as applicable, and Regent, shall, to the
extent each is a party thereto, have complied in all respects with all
agreements and covenants in the Transaction Documents and performed all
conditions specified therein that the terms thereof require to be complied
with or performed at or prior to the date hereof.
(n) Except as is disclosed to the Underwriters in writing, the
representations and warranties of the Registrants, as applicable, and
Regent set forth in the Transaction Documents shall be true, accurate and
complete in all respects.
8. DEFAULTS. If on the Closing Date any of the Underwriters shall
fail or refuse to purchase Securities, which it has agreed to purchase hereunder
on such date, and the aggregate amount of Securities that such defaulting
Underwriter(s) agreed but failed or refused to purchase does not exceed 10% of
the total aggregate principal amount of Securities to be purchased on such date
by all of the Underwriters, each non-defaulting Underwriter shall be obligated
severally, in the proportion which the amount of such Securities set forth
opposite its name in Schedule I hereto bears to the aggregate principal amount
of Securities which all the non-defaulting Underwriters, as the case may be,
have agreed to purchase, or in such other proportion as you may specify, to
purchase the Securities that such defaulting Underwriter or Underwriters, as the
case may be, agreed but failed or refused to purchase on such date; PROVIDED
that in no event shall the aggregate principal amount of Securities that any
Underwriter has agreed to purchase pursuant to Section 2 hereof be increased
pursuant to this Section 8 by an amount in excess of one-ninth of such principal
amount of Securities without the written consent of such Underwriter. If, on
the Closing Date, any of the Underwriters shall fail or refuse to purchase the
Securities
46
with respect to which such default exceeds 10% of the total aggregate principal
amount of Securities to be purchased on such date by all Underwriter(s) and
arrangements satisfactory to the other Underwriter(s) and the Registrants for
the purchase of such Securities are not made within 48 hours after such default,
this Agreement shall terminate without liability on the part of the
non-defaulting Underwriter(s) or the Registrants, except as otherwise provided
in this Section 8. In any such case that does not result in termination of this
Agreement, the Underwriters or the Registrants may postpone the Closing Date for
not longer than seven (7) days, in order that the required changes, if any, in
the Registration Statement and the Prospectus or any other documents or
arrangements may be effected. Any action taken under this paragraph shall not
relieve a defaulting Underwriter from liability in respect of any default by any
such Underwriter under this Agreement.
9. EFFECTIVE DATE OF AGREEMENT AND TERMINATION. This Agreement
shall become effective upon the later of (i) the execution and delivery of this
Agreement by the parties hereto, (ii) the effectiveness of the Registration
Statement, and (iii) if a post-effective amendment is required to be filed
pursuant to Rule 430A under the Act, the effectiveness of such post-effective
amendment.
This Agreement may be terminated at any time on or prior to the
Closing Date by you by notice to the Company if any of the following has
occurred: (i) subsequent to the date the Registration Statement is declared
effective or the date of this Agreement, any Material Adverse Change occurs
which, in the judgment of any Underwriter, make it impracticable or inadvisable
to market the Securities or to enforce contracts for the sale of the Securities,
(ii) any outbreak or escalation of hostilities or other national or
international calamity or crisis or material adverse change in the financial
markets of the United States or elsewhere, or any other substantial national or
international calamity or emergency if the effect of such outbreak, escalation,
calamity, crisis or emergency would, in the judgment of any Underwriter, make it
impracticable or inadvisable to market the Securities or to enforce contracts
for the sale of the Securities, (iii) any suspension or limitation of trading
generally in securities on the New York
47
Stock Exchange, the American Stock Exchange, the Nasdaq Stock Market or in the
over-the-counter markets or any setting of minimum prices for trading on such
exchanges or markets, (iv) any declaration of a general banking moratorium by
Federal, New York or Ohio authorities, (v) the taking of any action by any
Federal, state or local government or agency in respect of its monetary or
fiscal affairs that in your judgment has a material adverse effect on the
financial markets in the United States, and would, in your judgment, make it
impracticable or inadvisable to market the Securities or to enforce contracts
for the sale of the Securities, (vi) the enactment, publication, decree, or
other promulgation of any Federal or state statute, regulation, rule or order of
any court or other governmental authority which, in your judgment, materially
and adversely affects or will materially and adversely affect the business or
operations of the Company or any Subsidiary, or (vii) any securities of the
Company or any of the Subsidiaries shall have been downgraded or placed on any
"watch list" for possible downgrading by any nationally recognized statistical
rating organization, PROVIDED, that in the case of such "watch list" placement,
termination shall be permitted only if such placement would, in the judgment of
any Underwriter, make it impracticable or inadvisable to market the Securities
or to enforce contracts for the sale of the Securities or materially impair the
investment quality of the Securities.
The indemnities and contribution provisions and the other agreements,
representations and warranties of the Company, its officers and directors and of
the Underwriters set forth in or made pursuant to this Agreement shall remain
operative and in full force and effect, and will survive delivery of and payment
for the Securities, regardless of (i) any investigation, or statement as to the
results thereof, made by or on behalf of any of the Underwriters or by or on
behalf of the Company, the officers or directors of the Company or any
controlling person of the Company, (ii) acceptance of the Securities and payment
for them hereunder and (iii) termination of this Agreement.
If this Agreement shall be terminated by the Underwriters pursuant to
clauses (i) or (vii) of the second paragraph of this Section 10 or because of
the failure or refusal on the part of the Company to comply
48
with the terms or to fulfill any of the conditions of this Agreement, the
Company agrees to reimburse you for all out-of-pocket expenses (including the
fees and disbursements of counsel) incurred by you. Notwithstanding any
termination of this Agreement, the Company shall be liable for all expenses
which it has agreed to pay pursuant to Section 4(k) hereof.
10. NOTICES. Notices given pursuant to any provision of this
Agreement shall be addressed as follows: (a) if to the Company, prior to
December 14, 1996 to it at Jacor Communications, Inc. 1300 PNC Center, 201 East
Fifth Street, Cincinnati, Ohio 45202, Attention: Randy Michaels, President, fax
(513) 621-0090, and on or after December 14, 1996 to Jacor Communications, Inc.,
50 East River Boulevard, 12th Floor, Covington, Kentucky 41011, Attention:
Randy Michaels, President, fax ______________, with a copy to Graydon, Head &
Ritchey, 1900 Fifth Third Center, 511 Walnut Street, Cincinnati, Ohio 45202,
Attention: Richard G. Schmalzl, Esq., and (b) if to any Underwriter, to
Donaldson, Lufkin & Jenrette Securities Corporation, 277 Park Avenue, New York,
New York 10172 Attention: Syndicate Department, and, in each case, with a copy
to Skadden, Arps, Slate, Meagher & Flom LLP at 300 South Grand Avenue, Suite
3400, Los Angeles, California 90071, Attention: Gregg A. Noel, Esq., or in any
case to such other address as the person to be notified may have requested in
writing.
11. SEVERABILITY. Any determination that any provision of this
Agreement may be, or is, unenforceable shall not affect the enforceability of
the remainder of this Agreement.
12. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF NEW YORK AS APPLIED TO
CONTRACTS MADE AND PERFORMED ENTIRELY WITHIN THE STATE OF NEW YORK, WITHOUT
REGARD TO PRINCIPLES OF CONFLICTS OF LAW. THE COMPANY, ON BEHALF OF ITSELF AND
ITS SUBSIDIARIES, HEREBY IRREVOCABLY SUBMITS TO THE EXCLUSIVE JURISDICTION OF
THE FEDERAL AND NEW YORK STATE COURTS LOCATED IN THE CITY OF NEW YORK IN
CONNECTION WITH ANY SUIT, ACTION OR PROCEEDING RELATED TO THIS AGREEMENT OR ANY
OF THE MATTERS CONTEMPLATED HEREBY, IRREVOCABLY WAIVES ANY DEFENSE OF LACK OF
PERSONAL JURISDICTION AND IRREVOCABLY AGREES THAT ALL CLAIMS IN RESPECT OF ANY
SUIT, ACTION OR PROCEEDING
49
MAY BE HEARD AND DETERMINED IN ANY SUCH COURT. THE COMPANY, ON BEHALF OF ITSELF
AND THE SUBSIDIARIES, IRREVOCABLY WAIVES, TO THE FULLEST EXTENT IT MAY
EFFECTIVELY DO SO UNDER APPLICABLE LAW, ANY OBJECTION WHICH IT MAY NOW OR
HEREAFTER HAVE TO THE LAYING OF VENUE OF ANY SUCH SUIT, ACTION OR PROCEEDING
BROUGHT IN ANY SUCH COURT AND ANY CLAIM THAT ANY SUCH SUIT, ACTION OR PROCEEDING
BROUGHT IN ANY SUCH COURT HAS BEEN BROUGHT IN AN INCONVENIENT FORUM.
13. SUCCESSORS. Except as otherwise provided, this Agreement has
been and is made solely for the benefit of and shall be binding upon the
Company, the Underwriters, any Indemnified Person referred to herein and their
respective successors and assigns, all as and to the extent provided in this
Agreement, and no other person shall acquire or have any right under or by
virtue of this Agreement. The terms "successors and assigns" shall not include
a purchaser of any of the Securities from any of the Underwriters merely because
of such purchase.
14. COUNTERPARTS. This Agreement may be executed in one or more
counterparts and, if executed in one or more counterpart, the executed
counterparts shall each be deemed to be an original, not all such counterparts
shall together constitute one and the same instrument.
15. HEADINGS. The headings herein are inserted for convenience of
reference only and are not intended to be part of, or to effect the meaning or
interpretation of, this Agreement.
16. SURVIVAL. The indemnities and contribution provisions and the
other agreements, representations and warranties of the Company, its officers
and directors and of the Underwriter set forth in or made pursuant to this
Agreement shall remain operative and in full force and effect, and will survive
delivery of and payment for the Securities, regardless of (i) any investigation,
or statement as to the results thereof, made by or on behalf of the Underwriter
or by or on behalf of the Company, the officers or directors of the Company or
any controlling person of the Company, (ii) acceptance of the Securities and
payment for them hereunder and (iii) termination of this Agreement.
50
This Agreement may be signed in various counterparts which together
shall constitute one and the same instrument. Please confirm that the foregoing
correctly sets forth the agreement among the Company and you.
Very truly yours,
JACOR COMMUNICATIONS, INC.
By:
------------------------------------
Name:
Title:
JACOR COMMUNICATIONS
COMPANY
By:
------------------------------------
Name:
Title:
BROADCAST FINANCE, INC.; CINE FILMS,
INC.; CINE GUARANTORS, INC.; CINE
GUARANTORS II, INC.; CINE GUARANTORS II,
LTD.; CINE MOBILE SYSTEMS INT'L N.V.;
CINE MOVIL S.A. DE C.V.; CITICASTERS
CO.; F.M.I. PENNSYLVANIA, INC.; GACC-
N26LB, INC.; GACC-340, INC.; GEORGIA
NETWORK EQUIPMENT, INC.; GREAT AMERICAN
MERCHANDISING GROUP, INC.; GREAT
AMERICAN TELEVISION PRODUCTIONS, INC.;
INMOBILARIA RADIAL, S.A. DE C.V.; JACOR
BROADCASTING CORPORATION; JACOR
BROADCASTING OF ATLANTA, INC.; JACOR
BROADCASTING OF COLORADO, INC.; JACOR
51
BROADCASTING OF FLORIDA, INC.; JACOR
BROADCASTING OF IDAHO, INC., A DELAWARE CORPORATION;
JACOR BROADCASTING OF IOWA, INC.; JACOR
BROADCASTING OF KNOXVILLE, INC.; JACOR
BROADCASTING OF LEXINGTON, INC.; JACOR
BROADCASTING OF ST. LOUIS, INC.; JACOR
BROADCASTING OF SAN DIEGO, INC.; JACOR
BROADCASTING OF SARASOTA, INC.; JACOR
BROADCASTING OF TAMPA BAY, INC.; JACOR
CABLE, INC.; LOCATION PRODUCTIONS, INC.;
LOCATION PRODUCTIONS II, INC.; NOBLE
BROADCAST CENTER, INC.; NOBLE BROADCAST
GROUP, INC.; NOBLE BROADCAST HOLDINGS,
INC.; NOBLE BROADCAST LICENSES, INC.;
NOBLE BROADCAST OF COLORADO, INC.; NOBLE
BROADCAST OF ST. LOUIS, INC.; NOBLE
BROADCAST OF SAN DIEGO, INC.; NOBLE
BROADCAST OF TOLEDO, INC.; NOBRO, S.C.;
NOVA MARKETING GROUP, INC.; SPORTS RADIO
BROADCASTING, INC.; SPORTS RADIO, INC.;
TAFT-TCI SATELLITE SERVICES, INC.; THE
SY FISCHER COMPANY AGENCY, INC.; WHOK,
INC.; AND VTTV PRODUCTIONS
By:
------------------------------------
Name:
Title:
52
The foregoing Underwriting Agreement
is hereby confirmed and accepted
as of the date first above written.
DONALDSON, LUFKIN & JENRETTE
SECURITIES CORPORATION
MERRILL, LYNCH, PIERCE, FENNER
& SMITH INCORPORATED
Acting on behalf of themselves
By: DONALDSON, LUFKIN & JENRETTE
SECURITIES CORPORATION
By:
--------------------------
Name:
Title:
53
SCHEDULE 1
Amount of
Securities to
Underwriters be Purchased
- ------------ ------------
Donaldson, Lufkin & Jenrette
Securities Corporation . . . . . . . . . . . . . $ 90,000,000
Merrill, Lynch, Pierce, Fenner
& Smith Incorporated . . . . . . . . . . . . . . $ 60,000,000
---------------
Total $ 150,000,000
---------------
---------------
54