EXHIBIT 1.1
JACOR COMMUNICATIONS COMPANY
8% Senior Subordinated Notes Due 2010
Payment of Principal and Interest Unconditionally
Guaranteed by Jacor Communications, Inc.
and the other Guarantors named herein
UNDERWRITING AGREEMENT
February 3, 1998
DONALDSON, LUFKIN & JENRETTE
SECURITIES CORPORATION
CHASE SECURITIES INC.
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 Chase
Securities Inc. (collectively, the "Underwriters") an aggregate of $120,000,000
principal amount of its 8% Senior Subordinated Notes due 2010 (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.; GACC-N26LB, Inc.; Great American
Merchandising Group, Inc.; Great American Television Productions, Inc.;
Inmobilaria Radial, S.A. de C.V.; Jacor Broadcasting Corporation; Jacor
Broadcasting of Atlanta, Inc.; Jacor Broadcasting of Charleston, Inc.; Jacor
Broadcasting of Colorado, Inc.; Jacor Broadcasting of Denver, Inc.; Jacor
Broadcasting of Florida, Inc.; Jacor Broadcasting of Kansas City, Inc.; Jacor
Broadcasting of Las Vegas, Inc.; Jacor Broadcasting of Las Vegas II; Jacor
Broadcasting of Louisville, Inc.; Jacor Broadcasting of Louisville II, Inc.;
Jacor Broadcasting of Salt Lake City, Inc.; Jacor Broadcasting of Salt Lake City
II, Inc.; Jacor Broadcasting of St. Louis, Inc.; Jacor Broadcasting of San
Diego, Inc.; Jacor Broadcasting of Sarasota, Inc.; Jacor Broadcasting of Tampa
Bay, Inc.; Jacor Broadcasting of Toledo, Inc.; Jacor Broadcasting of Youngstown,
Inc.; Jacor Cable, Inc.; Jacor Licensee of Charleston, Inc.; Jacor Licensee of
Kansas City, Inc., Jacor Licensee of Las Vegas, Inc.; Jacor Licensee of Las
Vegas II, Inc.; Jacor Licensee of Louisville, Inc.; Jacor Licensee of Louisville
II, Inc.; Jacor Licensee of Salt Lake City, Inc.; Jacor Licensee of Salt Lake
City II, Inc.; Jacor/Premiere Holding, Inc.; JBSL, Inc.; Location Productions,
Inc.; Location Productions II, Inc.; Multiverse Acquisition Corp.; Noble
Broadcast Center, Inc.; Noble Broadcast Group, Inc.; Noble Broadcast Holdings,
Inc.; Noble Broadcast Licenses, Inc.; Noble Broadcast of San Diego, Inc.;
Nobro, S.C.; Nova Marketing Group, Inc.; NSN Network Services, Ltd.; Premiere
Radio Networks, Inc.; Radio-Active Media, Inc.; Sports Radio Broadcasting, Inc.;
Sports Radio, Inc.; The Sy Fischer Company Agency, Inc.;VTTV Productions; and
WHOK, Inc., each a direct or indirect subsidiary of the Company or any successor
entity, whether by merger, consolidation, change of name or otherwise
(collectively, the "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 February 9, 1998 (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 to fund, in part, the
consideration to be paid by the Company under the Nationwide Agreement (as
defined below). Alternatively and pending such uses, the Company intends to use
the net proceeds for general corporate purposes, including acquisitions of other
broadcast properties and broadcast related businesses and to repay in part
outstanding indebtedness under the revolving credit component of the Credit
Facility (defined below).
The Pending Transactions (as such term is defined in the Prospectus)
include, among other things, the acquisition (the "Nationwide Acquisition") of
17 radio stations (the "Nationwide Stations") from Nationwide (as defined below)
pursuant to an Agreement of Sale (the "Nationwide Agreement") dated as of
December 19, 1997, by and among JCC, Citicasters Co. and Nationwide
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Communications, Inc., Nationwide Mutual Insurance Company, Employers Insurance
of Wasau, San Diego Lotus Corp. and The Beak and Wire Corporation (collectively,
"Nationwide").
Prior to or concurrently with the issuance and sale of the
Securities, the Company will (i) issue and sell liquid yield option notes in
the aggregate principal amount at maturity of $383,573,000 (excluding
$43,344,000 aggregate principal amount at maturity subject to an
over-allotment option) due 2018 (the "LYONs"); and (ii) issue and sell
4,560,000 shares of its common stock, par value $.01 per share (the "Shares")
(excluding 513,000 Shares subject to an over-allotment option). This
Underwriting Agreement and all agreements and documents executed in
connection with the Pending Transactions and all documents and agreements
related to each of the offering of the LYONs (the "LYONs Offering") and the
offering of the Shares (the "Shares Offering") 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 "shelf" registration statement on Form S-3 (No.
333-40127), including a prospectus, relating to debt securities, preferred
stock, depository shares and common stock, and will promptly file with the
Commission a prospectus supplement specifically relating to the Securities
pursuant to Rule 424 under the Act. The registration statement, as amended
at the time it became 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 any prospectus supplement,
and 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 supplement subject to completion and any term sheet
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meeting the requirements of Rule 434(c), filed pursuant to Rule 424(b), in
the form used to confirm sales of the Securities, are hereinafter referred to
collectively 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 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 97.624% 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 February 9,
1998 (the "Closing Date"), 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 of Federal or other funds
immediately available in New York City, 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 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.
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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 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
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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 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, in the
opinion of counsel for the Underwriters, it becomes necessary to amend
or supplement the Prospectus in order to make the statements therein, in
the light of the circumstances existing as of the date the Prospectus is
delivered to a purchaser, not misleading, or if, in the opinion of
counsel for the Underwriters, 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
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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 continue such
qualification in effect so long as required by law for distribution of
the Securities.
(h) The Company will make generally available to its security
holders as soon as reasonably practicable a consolidated earning
statement covering a period of at least twelve months beginning after
the "effective date" (as defined in Rule 158 under the Act) of the
Registration Statement (but in no event commencing later than 90 days
after such date) which shall satisfy the provisions of Section 11(a) of
the Act and Rule 158 thereunder, and to advise you in writing when such
statement has been so made available.
(i) The Registrants will timely complete all required filings and
otherwise fully comply in a timely manner with all provisions of the
Exchange Act.
(j) During the period of three years hereafter, the Company will
furnish to you (i) as soon as available, a copy of each report of the
Company mailed to shareholders or filed with the Commission or any
national securities exchange on which any class of securities of the
Company is listed, and (ii) from time to time such other information
concerning the Company as you may request.
(k) 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
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describing state securities or Blue Sky laws and all other agreements,
memoranda, correspondence and other documents printed, distributed and
delivered in connection with the offering of the Securities, (iii) the
registration with the Commission and the issuance and delivery of the
Securities, (iv) the registration or qualification of the Securities for
offer and sale under the securities or Blue Sky laws of the
jurisdictions referred to in paragraph (g) above (including, in each
case, the fees and disbursements of counsel relating to such
registration or qualification and memoranda relating thereto and any
filing fees in connection therewith), (v) furnishing such copies of the
Registration Statement, Prospectus and preliminary prospectus, and all
amendments and supplements to any of them, as may be reasonably
requested by you, (vi) filing, registration and clearance with the NASD
in connection with the offering of the Securities (including any filing
fees in connection therewith and the fees and disbursements of counsel
relating thereto), (vii) 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 Section 13(a), 13(c), 14(a) or 15(d) of the
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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 under
"Transactions" in the Prospectus with respect to the Pending
Transactions and under "Prospectus Supplement Summary -- Recent
Developments" with respect to certain other potential transactions,
there will be no transactions entered into by the Company or any of its
subsidiaries (each a "Subsidiary" and, collectively, the
"Subsidiaries"), which are material with respect to the Company or any
of the Subsidiaries, respectively, taken individually or as a whole, as
determined in accordance with the provisions of Rule 3-05 of Regulation
S-X or other standards for materiality as may be agreed upon by the
Company and the Underwriters 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 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 three, in the third
sentence of the fifth paragraph, and in paragraphs seven and eight under
the caption "Underwriting" in the Prospectus (or any amendment or
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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 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 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, substantially
all of the
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assets of the Nationwide Stations (other than as described
in the Prospectus) will be owned directly or through Subsidiaries, by
the Company. All such shares of capital stock are fully paid and
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 Amended and Restated Credit Agreement, dated
as of September 16, 1997, 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.
(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.
(g) None of the Company or any of the Subsidiaries is in violation
of their respective charters or bylaws or in default in the performance
of any bond, debenture, note or any other evidence of indebtedness or
any indenture, mortgage, deed of trust or other contract, lease or other
instrument to which the Company or any of the Subsidiaries is a party or
by which any of them is bound, or to which any of the property or assets
of the Company or any of the Subsidiaries is subject.
(h) The Transaction Documents have been duly authorized and validly
executed and delivered by the Registrants, as applicable, and constitute
valid and legally binding agreements of the Registrants, as applicable,
enforceable against the Registrants, as applicable, in accordance with
their terms (assuming, in the case of each of the Transaction Documents,
the due execution and delivery thereof by each party thereto).
(i) The Indenture has been duly authorized by the 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
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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, as applicable, and the consummation of the
Pending Transactions will not (1) conflict with or result in a breach or
violation of any of the respective charters or bylaws of the Company or
any of the Subsidiaries or any of the terms or provisions of, or (2)
constitute a default or cause an acceleration of any obligation under or
result in the imposition or creation of (or the obligation to create or
impose) a Lien with respect to, any bond, note, debenture or other
evidence of indebtedness or any indenture, mortgage, deed of trust or
other agreement or instrument to which the Company or any of the
Subsidiaries is a party or by which it or any of them is bound, or to
which any properties of the Company or any of the Subsidiaries is or may
be subject, or (3) contravene any order of any court or governmental
agency or body having jurisdiction over the Company or any of the
Subsidiaries or any of their properties, or violate or conflict with any
statute, rule or regulation or administrative or court decree applicable
to the Company or any of the Subsidiaries or any of their respective
properties.
(k) There is no action, suit or proceeding before or by any court
or governmental agency or body, domestic or foreign, pending against or
affecting the Company or any of the Subsidiaries or Nationwide with
respect to the Nationwide Stations or any of their respective
properties, which is required to be disclosed in the Registration
Statement or the Prospectus, or which could reasonably be expected to
result, singly or in the aggregate, in a Material Adverse Effect or
which could reasonably be expected to materially and adversely affect
the consummation of this Agreement or the transactions contemplated
hereby or the consummation of the Transaction Documents or the Pending
Transactions, and to the best of the Company's knowledge, no such
proceedings are contemplated or threatened. No contract or document of
a character required to be described in the Registration Statement or
the Prospectus or to be filed as an exhibit to the Registration
Statement is not so described or filed.
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(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 Nationwide
with respect to the Nationwide Stations is in violation of any Federal,
state or local laws and regulations relating to pollution or protection
of human health or the environment (including, without limitation,
ambient air, surface water, ground water, land surface or subsurface
strata), including, without limitation, laws and regulations relating to
emissions, discharges, releases or threatened releases of toxic or
hazardous substances, materials or wastes, or petroleum and petroleum
products ("Materials of Environmental Concern"), or otherwise relating
to the protection of human health and safety, or the storage, disposal,
transport or handling of Materials of Environmental Concern
(collectively, "Environmental Laws"), which violation includes, but is
not limited to, noncompliance with any permits or other governmental
authorizations, except to the extent that any such violation could not
have a Material Adverse Effect or otherwise require disclosure in the
Prospectus; and (ii) to the best knowledge of the Company and any of the
Subsidiaries, after due inquiry, (A) none of the Company, any of the
Subsidiaries, Nationwide with respect to the Nationwide Stations and any
of the other parties to the Transaction Documents (the "Pending
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Transaction Parties") with respect to the properties and radio stations
to be purchased or sold pursuant to the Transaction Documents (the
"Pending Properties") has received any communication (written or oral),
whether from a governmental authority or otherwise, alleging any such
violation or noncompliance, and there are no circumstances, either past,
present or that are reasonably foreseeable, that may lead to such
violation in the future, (B) there is no pending or threatened claim,
action, investigation or notice (written or oral) by any person or
entity alleging potential liability for investigatory, cleanup, or
governmental responses costs, or natural resources or property damages,
or personal injuries, attorney's fees or penalties relating to (x) the
presence, or release into the environment, of any Material of
Environmental Concern at any location owned or operated by the Company,
any of the Subsidiaries, Nationwide with respect to the Nationwide
Stations, and the Pending Transaction Parties with respect to the
Pending Properties, now or in the past, or (y) circumstances forming the
basis of any violation, or alleged violation, of any Environmental Law
(collectively, "Environmental Claims") that could have a Material
Adverse Effect or otherwise require disclosure in the Prospectus, and
(C) there are no past or present actions, activities, circumstances,
conditions, events or incidents, that could form the basis of any
Environmental Claim against the Company, any of the Subsidiaries,
Nationwide with respect to the Nationwide Stations, and the Pending
Transaction Parties with respect to the Pending Properties, or against
any person or entity whose liability for any Environmental Claim the
Company, any of the Subsidiaries, Nationwide with respect to the
Nationwide Stations, and the Pending Transaction Parties with respect to
the Pending Properties, have retained or assumed either contractually or
by operation of law. In the ordinary course of its business, each of
the Company and the Subsidiaries and Nationwide with respect to the
Nationwide Stations conducts a periodic review of the effect of
Environmental Laws on its business, operations and properties in
the course of which it identifies and evaluates associated costs and
liabilities (including, without limitation, any capital or operating
expenditures required for clean-up, closure of properties or compliance
with Environmental Laws or any permit, license or approval, any related
constraints on operating activities and any potential liabilities to
third parties); on the basis of such review, the Company and the
Subsidiaries, have reasonably concluded that such associated costs and
liabilities could not have a Material Adverse Effect.
(n) None of the Company, any of the Subsidiaries, Nationwide with
respect to the Nationwide Stations, and to the knowledge of the Company,
the Pending Transaction Parties with respect to the Pending Properties,
has violated any Federal, state or local law relating to discrimination
in the hiring, promotion or pay of employees nor any applicable wage or
14
hour laws, nor any provisions of the Employee Retirement Income Security
Act of 1974 ("ERISA") or the rules and regulations promulgated
thereunder, nor has the Company or any of the Subsidiaries or Nationwide
with respect to the Nationwide Stations or, to the knowledge of the
Company, the Pending Transaction Parties with respect to the Pending
Properties, engaged in any unfair labor practice, which in each case
described in this sentence could reasonably be expected to result,
singly or in the aggregate, in a Material Adverse Effect. There is (i)
no significant unfair labor practice complaint pending against the
Company or any of the Subsidiaries or Nationwide with respect to the
Nationwide Stations or, to the knowledge of the Company, the Pending
Transaction Parties with respect to the Pending Properties, or, to the
best knowledge of the Company, threatened against any of them, before
the National Labor Relations Board or any state or local labor relations
board, and no significant grievance or significant arbitration
proceeding arising out of or under any collective bargaining agreement
is so pending against the Company or any of the Subsidiaries or
Nationwide with respect to the Nationwide Stations or, to the knowledge
of the Company, the Pending Transaction Parties with respect to the
Pending Properties, or, to the best knowledge of the Company, threatened
against any of them, (ii) no significant strike, labor dispute, slowdown
or stoppage pending against the Company or any of its Subsidiaries or
Nationwide with respect to the Nationwide Stations or, to the knowledge
of the Company, the Pending Transaction Parties with respect to the
Pending Properties, or, to the best knowledge of the Company, threatened
against the Company or any of the Subsidiaries, Nationwide with respect
to the Nationwide Stations, or the Pending Transaction Parties with
respect to the Pending Properties and (iii) to the best knowledge of the
Company, no union representation question existing with respect to the
employees of the Company or any of the Subsidiaries, or the Pending
Transaction Parties with respect to the Pending Properties, and, to the
best knowledge of the Company, no union organizing activities are taking
place, except (with respect to any matter specified in clause (i), (ii)
or (iii) above, singly or in the aggregate) such as could not have a
Material Adverse Effect.
(o) The Company, each of its Subsidiaries and Nationwide with
respect to the Nationwide Stations each have good and marketable title,
free and clear of all Liens, to all property and assets described in the
Registration Statement as being owned by it, except for (i) Liens
pursuant to the Credit Facility, (ii) Liens on general office equipment
which are not material to the Company's operations and (iii) Liens on
the Nationwide Stations which will be released upon consummation of the
Nationwide Acquisition. All leases to which the Company, the
Subsidiaries or Nationwide with respect to the Nationwide Stations are a
party are valid and binding and no default has occurred or is continuing
15
thereunder and the Company, each of its Subsidiaries and Nationwide with
respect to the Nationwide Stations enjoy peaceful and undisturbed
possession under all such leases to which any of them is a party as
lessee with such exceptions as do not materially interfere with the use
made by the Company or any such Subsidiary or Nationwide with respect to
the Nationwide Stations.
(p) The respective firm of accountants that has certified or shall
certify the applicable consolidated financial statements and supporting
schedules of the Company, E.F.M. Media Management, Inc., E.F.M.
Publishing, Inc., PAM Media, Inc., Archon Communications, Inc., Synergy
Broadcast Investment Enterprises, L.L.C., Worldstar, Inc., Multiverse
Networks L.L.C., Shanahan Broadcasting, Inc., (collectively, the "C&L
Audited Companies"), Nationwide, Premiere and Jacor Broadcasting of
Youngstown, Inc. filed, to be filed or incorporated by reference with
the Commission as part of the Registration Statement and the Prospectus
are independent public accountants with respect to the Company, the
Subsidiaries, the C&L Audited Companies, Premiere, Nationwide and Jacor
Broadcasting of Youngstown, Inc. as required by the Act. The
consolidated historical and PRO FORMA financial statements, together
with related schedules and notes, set forth in the Prospectus and the
Registration Statement comply as to form in all material respects with
the requirements of the Act. Such historical financial statements
fairly present the consolidated financial position of the Company, the
Subsidiaries, the C&L Audited Companies, Premiere, Nationwide and Jacor
Broadcasting of Youngstown, Inc. at the respective dates indicated and
the results of their operations and their cash flows for the respective
periods indicated, in accordance with generally accepted accounting
principles ("GAAP") consistently applied throughout such periods. Such
PRO FORMA financial statements have been prepared on a basis consistent
with such historical statements, except for the PRO FORMA adjustments
specified therein, and give effect to assumptions made on a reasonable
basis and present fairly the historical and proposed transactions
contemplated by the Prospectus and the Transaction Documents. The other
financial and statistical information and data included in the
Prospectus and in the Registration Statement, historical and PRO FORMA,
are, in all material respects, accurately presented and prepared on a
basis consistent with such financial statements and the books and
records of the Company, the C&L Audited Companies, Premiere, Nationwide
and Jacor Broadcasting of Youngstown, Inc.
(q) Subsequent to the respective dates as of which information is
given in the Registration Statement and the Prospectus and up to the
Closing Date, none of the Company, any of the Subsidiaries or Nationwide
with respect to the Nationwide Stations have incurred any liabilities or
16
obligations, direct or contingent, which are material to the Company and
the Subsidiaries taken as a whole, nor entered into any transaction not
in the ordinary course of business and there has not been, singly or in
the aggregate, any material adverse change, or any development which
could reasonably be expected to involve a material adverse change, in
the properties, business, results of operations, condition (financial or
otherwise), affairs or prospects of the Company and the Subsidiaries
taken as a whole (a "Material Adverse Change").
(r) All tax returns required to be filed by the Company, any of the
Subsidiaries in any jurisdiction have been filed, other than those
filings being contested in good faith, and all material taxes, including
withholding taxes, penalties and interest, assessments, fees and other
charges due or claimed to be due from such entities have been paid,
other than those being contested in good faith and for which adequate
reserves have been provided or those currently payable without penalty
or interest.
(s) No authorization, approval or consent or order of, or filing
with, any court or governmental body or agency is necessary in
connection with the transactions contemplated by the Transaction
Documents, except such as (i) may be required by the NASD, (ii) are
disclosed in the Prospectus or (iii) have been obtained and made under
the Act, the Exchange Act, the 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 Nationwide with
respect to the Nationwide Stations and, to the knowledge of the Company,
any of the Pending Transaction Parties with respect to the Pending
Properties, has all certificates, consents, exemptions, orders, permits,
licenses, authorizations, or other approvals (each, an "Authorization")
of and from, and has made all declarations and filings with, all
Federal, state, local and other governmental authorities (including the
Federal Communications Commission ("FCC")), all self-regulatory
organizations and all courts and other tribunals, necessary or required
to own, lease, license and use its properties and assets and to conduct
its business in the manner described in the Prospectus, except to the
extent that the failure to obtain or file could not, singly or in the
aggregate, reasonably be expected to have a Material Adverse Effect,
(ii) all such Authorizations are valid and in full force and effect,
(iii) each of the Company, the Subsidiaries and Nationwide with respect
to the Nationwide Stations and, to the knowledge of the Company, the
17
Pending Transaction Parties with respect to the Pending Properties, is
in compliance in all material respects with the terms and conditions of
all such Authorizations and with the rules and regulations of the
regulatory authorities and governing bodies having jurisdiction with
respect thereto and (iv) each commercial radio broadcast station
identified in the Prospectus as owned and operated by any of the
Company, the Subsidiaries or Nationwide with respect to the Nationwide
Stations, or, to the knowledge of the Company, the Pending Transaction
Parties with respect to the Pending Properties, as applicable, is
operating with the maximum facilities specified by the Authorization
pertaining thereto.
(u) Neither the Company nor any of the Subsidiaries is (a) an
"investment company" or a company "controlled" by an investment company
within the meaning of the Investment Company Act of 1940, as amended, or
(b) a "holding 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 Nationwide with
respect to the Nationwide Stations and, to the knowledge of the Company,
the Pending Transaction Parties with respect to the Pending Properties,
possesses the patents, patent rights, licenses, inventions, copyrights,
know-how (including trade secrets and other unpatented and/or
unpatentable proprietary or confidential information, systems or
procedures), trademarks, service marks and trade names (collectively,
"Intellectual Property") presently employed by them in connection with
the businesses now operated by them, and none of the Company, the
Subsidiaries and Nationwide with respect to the Nationwide Stations,
and, to the knowledge of the Company, the Pending Transaction Parties
with respect to the Pending Properties, has received any notice of
infringement of or conflict with asserted rights of others with respect
to the foregoing which, singly or in the aggregate, could reasonably be
expected to result in any Material Adverse Change. The use of such
Intellectual Property in connection with the business and operations of
each of the Company, the Subsidiaries and Nationwide with respect to the
Nationwide Stations, and, to the knowledge of the Company, the Pending
Transaction Parties with respect to the Pending Properties does not, to
18
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 Nationwide with
respect to the Nationwide Stations maintains a system of internal
accounting controls sufficient to provide reasonable assurance that (1)
transactions are executed in accordance with management's general or
specific authorizations; (2) transactions are recorded as necessary to
permit preparation of financial statements in conformity with GAAP and
to maintain asset accountability; (3) access to assets is permitted only
in accordance with management's general or specific authorization; and
(4) the recorded accountability for assets is compared with the existing
assets at reasonable intervals and appropriate action is taken with
respect to any differences.
(z) The Company has not (i) taken, directly or indirectly, any
action designed to cause or to result in, or that has constituted or
which could reasonably be expected to constitute, the stabilization or
manipulation of the price of any security of the Company to facilitate
the sale or resale of the Securities or (ii) since the initial filing of
the Registration Statement (A) sold, bid for, purchased, or paid anyone
any compensation for soliciting purchases of, the Securities or (B) paid
or agreed to pay to any person any compensation for soliciting another
to purchase any other securities of the Company.
(aa) Each of the Company, the Subsidiaries and Nationwide with
respect to the Nationwide Stations and, to the knowledge of the Company,
the Pending Transaction Parties with respect to the Pending Properties,
maintains insurance covering their properties, operations, personnel and
businesses. Such insurance insures against such losses and risks as are
adequate in accordance with customary industry practice to protect the
Company and its Subsidiaries and their businesses. None of the Company,
any Subsidiary and Nationwide with respect to the Nationwide Stations,
and, to the knowledge of the Company, the Pending Transaction Parties
with respect to the Pending Properties, has received notice from any
insurer or agent of such insurer that substantial capital improvements
or other expenditures will have to be made in order to continue such
19
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 Nationwide with respect to the Nationwide
Stations has, directly or indirectly, paid or delivered any fee, commission
or other sum of money or item or property, however characterized, to any
finder, agent, government official or other party, in the United States or
any other country, which is in any manner related to the business or
operations of the Company or Nationwide with respect to the Nationwide
Stations, respectively, which the Company knows or has reason to believe to
have been illegal under any Federal, state or local laws of the United
States or any other country having jurisdiction; and neither the Company
nor Nationwide with respect to the Nationwide Stations has participated,
directly or indirectly, in any boycotts or other similar practices in
contravention of law affecting any of its actual or potential customers.
(cc) The Company does not own any "margin securities" as that term is
defined in Regulations G and U of the Board of Governors of the Federal
Reserve System (the "Federal Reserve Board"), and, except as disclosed in
the Prospectus, none of the proceeds of the sale of the Securities will be
used, directly or indirectly, for the purpose of purchasing or carrying any
margin security, for the purpose of reducing or retiring any indebtedness
which was originally incurred to purchase or carry any margin security or
for any other purpose which might cause any of the Securities to be
considered a "purpose credit" within the meanings of Regulation G, T, U or
X of the Federal Reserve Board.
(dd) Each person described in the Prospectus as a person to whom the
Company or any of the Subsidiaries provides programming pursuant to a local
marketing agreement or a joint sales agreement (a "Licensee") has been
issued by the FCC an FCC license (which is in full force and effect) for
the operation of the commercial radio broadcast station identified in the
Prospectus as programmed by the Company or any of its Subsidiaries, which
licenses expire on the dates set forth in the Prospectus.
(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
20
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 Nationwide with
respect to the Nationwide Stations and, to the knowledge of the Company,
the Pending Transaction Parties with respect to the Pending Properties, has
filed with the FCC all material reports, documents, instruments,
information and applications required to be filed pursuant to the FCC's
rules, regulations and requests. No notice has been issued by the FCC
which could permit, or after notice or lapse of time or both could permit,
revocation or termination of any FCC license of any of the Subsidiaries,
Nationwide with respect to the Nationwide Stations or, to the knowledge of
the Company, the Pending Transaction Parties with respect to the Pending
Properties, or to the knowledge of the Company, of any of the Licensees
prior to the expiration dates thereof or which could reasonably be expected
to result in any other material impairment of any of the Subsidiaries', or
Nationwide with respect to the Nationwide Stations or its subsidiaries, or,
to the knowledge of the Company, the Pending Transaction Parties or their
subsidiaries with respect to the Pending Properties, or, to the knowledge
of the Company, of any of the Licensees' rights thereunder and which could
reasonably be expected to, singly or in the aggregate, have a Material
Adverse Effect.
(gg) Each of the Company's radio and television stations (the
"Stations") is now operating, and has operated, in compliance in all
material respects with the Communications Act of 1934, as amended (the
"Communications Act"), and the published rules and regulations of the FCC.
There is not issued, outstanding or pending any Notice of Violation, Notice
of Apparent Liability, Order to Show Cause, material complaint or
investigation by or before the FCC which could materially threaten or
materially adversely affect any of the Company's or any of its
Subsidiaries', Nationwide with respect to the Nationwide Stations, or, to
the knowledge of the Company, the Pending Transaction Parties or their
subsidiaries' with respect to the Pending Properties, or, to the knowledge
of the Company, any Licensees' FCC licenses or which could reasonably be
expected to result in any material adverse effect upon any of the Company's
Subsidiaries, Nationwide with respect to the Nationwide Stations, or, to
the knowledge of the Company, the Pending Transaction Parties or their
subsidiaries with respect to the Pending Properties, or, to the knowledge
of the Company, any Licensees' operation of its respective stations and
which could reasonably be expected to, singly or in the aggregate, have a
21
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) Other than for the divestiture of two radio stations in San
Diego, California as described in the Prospectus, the execution, delivery
and performance of the obligations by JCC, Citicasters Co. and Nationwide
(each, a "Nationwide Transaction Party" and, collectively, the "Nationwide
Transaction Parties") and, to the knowledge of the Company, by the Pending
Transaction Parties with respect to the Pending Properties to the extent
each is a party to the Transaction Documents are not and will not be
contrary to the Communications Act, will not result in any violation of the
FCC's published rules and regulations, will not cause any forfeiture or
impairment of any FCC license of any of the Stations by or before the FCC,
and will not require any consent, approval or authorization of the FCC.
Other than the applications relating to the divestiture of two radio
stations in San Diego, California, all necessary applications, exhibits or
other filings required by the FCC for transfer of control of the Stations
now controlled by the Pending Transaction Parties with respect to the
Pending Properties pursuant to the applicable Transaction Documents have
been filed with the FCC (the "Transfer Applications"). To the best of the
Company's knowledge, there are no circumstances that would cause the FCC to
reject the Transfer Applications.
(jj) The Nationwide Transaction Parties and, to the knowledge of the
Company, the Pending Transaction Parties, have, to the extent each is or
will be a party thereto, all requisite corporate power and authority to
execute, deliver and perform their respective obligations under each of the
Transaction Documents; each of the Transaction Documents has been duly and
validly authorized, executed and delivered by the Nationwide Transaction
Parties and, to the knowledge of the Company, the Pending Transaction
Parties, to the extent each is a party thereto, and each constitutes a
valid and legally binding agreement of the Nationwide Transaction Parties
and, to the knowledge of the Company, the Pending Transaction Parties,
enforceable against each Nationwide Transaction Party or Pending
22
Transaction Party, as applicable, in accordance with its terms; except as
set forth in the Prospectus, no consent, approval, authorization or order
of any court or governmental agency or body is required for the performance
of any of the Transaction Documents by each of the Nationwide Transaction
Parties or, to the knowledge of the Company, each Pending Transaction
Party, to the extent each is a party thereto, or the consummation by each
of the Nationwide Transaction Parties, or to the knowledge of the Company,
each of the Pending Transaction Parties, of any of the transactions
contemplated thereby, except such as may be required and have been
obtained, or upon effectiveness of the Registration Statement, will have
been obtained, under the Act, the Exchange Act, the TIA, or state
securities or "Blue Sky" laws or regulations or such as may be required by
the NASD in connection with the purchase and distribution of the Securities
by the Underwriters; and none of the Nationwide Transaction Parties, is (i)
in violation of its charter or bylaws, (ii) in violation of any statute,
judgment, decree, order, rule or regulation applicable to any of them or
any of their respective properties or assets, which violation would have a
Material Adverse Effect, or (iii) in default in the performance or
observance of any obligation, agreement, covenant or condition contained in
any of the Transaction Documents or any other contract, indenture,
mortgage, deed of trust, loan agreement, note, lease, license, franchise
agreement, permit, Authorizations, certificate or agreement or instrument
to which any of them is a party or to which any of them is subject, which
default would have a Material Adverse Effect.
23
(kk) The execution, delivery and performance by the Nationwide
Transaction Parties, to the extent each is a party thereto, of each of the
Transaction Documents, and the consummation by the respective Nationwide
Transaction Parties of the transactions contemplated thereby, will not
violate, conflict with or constitute or result in a breach of or a default
under (or an event which, with notice or lapse of time, or both, would
constitute a breach of or a default under) any of (i) the terms or
provisions of any of the Transaction Documents or any other indenture,
mortgage, deed of trust, loan agreement, note, lease, license, franchise
agreement, or agreement or instrument to which a Nationwide Transaction
Party, is a party or to which any of their respective properties or assets
are subject, which violation, conflict, breach or default would have a
Material Adverse Effect, (ii) the charter or bylaws of the Nationwide
Transaction Party, or (iii) any statute, judgment, decree, order, rule or
regulation of any court, governmental agency or other body or self
regulatory organization applicable to each Nationwide Transaction Party, or
any of their respective properties or assets, which violation, conflict,
breach or default would have a Material Adverse Effect.
(ll) The Nationwide Acquisition has been duly authorized by the
Nationwide Transaction Parties and the transactions contemplated by the
Transaction Documents have been approved, to the extent required, by all
appropriate corporate action; approval of the transactions contemplated by
the Transaction Documents by the shareholders of the Company is not
required.
(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, the LYONs due 2011, the 10-1/8% Notes, the 9-3/4% Notes, the
8-3/4% Notes or the LYONs, respectively) under the Credit Facility, the
24
LYONs due 2011, the 10-1/8% Notes, the 9-3/4% Notes, the 8-3/4% Notes or
the LYONs, respectively, and no event or condition which would
constitute a default or an event of default (in each case as defined in
each of the Transaction Documents) under any of the Transaction
Documents other than the Credit Facility, the LYONs due 2011, the 10-1/8%
Notes, the 9-3/4% Notes, the 8-3/4% Notes or the LYONs, which would
result in a Material Adverse Effect or materially adversely effect the
ability of each of the Company or Nationwide to consummate the
transactions contemplated by the Transaction Documents. For purposes of
this Agreement, "LYONS DUE 2011" means the liquid yield option notes due
2011 issued by the Company pursuant to an Indenture, dated as of June
12, 1996, by and between the Company and the Bank of New York; "10-1/8%
NOTES" means the 10-1/8% Senior Subordinated Notes due 2006 issued by
JCAC, Inc. (predecessor to JCC), pursuant to an Indenture, dated as of
June 12, 1996, by and among JCAC, Inc., the Company and First Trust of
Illinois, National Association; "9-3/4% NOTES" means the 9-3/4% Senior
Subordinated Notes due 2006 issued by JCC pursuant to an Indenture,
dated as of December 17, 1996, by and among JCC, the Company, the
Subsidiary Guarantors named therein and the Bank of New York; and "8-3/4%
NOTES" means the 8-3/4% Senior Subordinated Notes due 2007 issued
by JCC pursuant to an Indenture, dated as of June 11, 1997, by and among
JCC, the Company, the Subsidiary Guarantors named therein and the Bank
of New York.
(nn) The Company has filed with the Commission all filings that are
required to be filed as of the date hereof with respect to the financial
statements of each of the Nationwide Transaction Parties and each of the
Pending Transaction Parties in filings made under the Act and under the
Exchange Act, specifically as required by Rule 3-05 of Regulation S-X and
General Instructions and Item 7 of Form 8-K.
(oo) 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.
(pp) The Company meets the requirements for registering an offering
of securities with the Commission on registration statement Form S-3
pursuant to the standards for those Forms prior to October 21, 1992.
25
(qq) The LYONs have received a rating of B3 from Moody's Investors
Service ("Moody's"); and the Securities have received a rating of B2 from
Moody's.
(rr) Immediately after any sale of the Securities, the LYONs and the
Shares by the Company or JCC, as applicable, the aggregate amount of
securities that have been issued and sold by the Company or JCC, as
applicable, (including the Securities, the LYONs and the Shares) will not
exceed the amount of securities registered under the Registration
Statement.
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 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
26
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 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
27
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 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
28
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 Prospectus. 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 any amount in excess
of the amount by which the total underwriting discount applicable to the
Securities underwritten by it and distributed to the public exceeds the
amount of any damages which such Underwriter has otherwise been required to
pay by reason of such untrue or alleged untrue statement or omission or
alleged omission. No person guilty of fraudulent misrepresentation (within
the meaning of Section 11(f) of the Act) shall be entitled to contribution
from any person who was not guilty of such fraudulent misrepresentation.
The Underwriters' obligations to contribute pursuant to this Section 6(d)
are several in proportion to the respective number of Securities purchased
by each of the Underwriters hereunder and not joint.
29
The remedies provided for in this Section 6 are not exclusive and
shall not limit any rights or remedies which may otherwise be available to any
Indemnified Party at law or in equity.
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, the LYONs, or the Shares; and no injunction,
restraining order or order of any nature by a Federal or state court of
competent jurisdiction shall have been issued as of the Closing Date
which would prevent the issuance of the Securities or the consummation
of the transactions contemplated by the Transaction Documents.
30
(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 standing
under the laws of its jurisdiction of incorporation, has the
requisite corporate power and authority to own, lease and operate
its properties and to conduct its business as described in the
Registration Statement and the Prospectus, and is duly qualified as
a foreign corporation and in good standing in each jurisdiction
where the ownership, leasing or operation of property or the
conduct of its business requires such qualification, except where
the failure to be so qualified could not be reasonably expected to
have, singly or in the aggregate, a Material Adverse Effect; and
31
(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 are fully paid and
nonassessable, and the shares of capital stock of, or other
ownership interests in, each Subsidiary are owned, directly or
through Subsidiaries, by the Company, and are owned free and clear
of any Lien, except for Liens pursuant to the Credit Facility;
(v) to the knowledge of such counsel (after due inquiry)
there are no outstanding subscriptions, rights, warrants, options,
calls, convertible securities, commitments of sale or Liens related
to or entitling any person to purchase or otherwise to acquire any
shares of the capital stock of, or other ownership interest in, any
Subsidiary except as disclosed in the Prospectus;
(vi) neither the Company nor any of the Subsidiaries is
(A) an "investment company" or a company "controlled" by an
investment company within the meaning of the Investment Company Act
of 1940, as amended, or (B) a "holding company" or a "subsidiary
company" of a holding company, or an "affiliate" thereof within the
meaning of the Public Utility Holding Company Act of 1935, as
amended;
(vii) neither the consummation of the transactions
contemplated by this Agreement nor the sale, issuance, execution or
delivery of the Securities, the LYONs or the Shares will violate
Regulation G, T, U or X of the Board of Governors of the Federal
Reserve System;
32
(viii) when authenticated in accordance with the terms of
the respective indenture and delivered to and paid for in
accordance with the terms of the respective underwriting agreement,
the Securities and the LYONs will constitute valid and legally
binding obligations of the Registrants and the Company,
respectively, enforceable against the Registrants and the Company,
respectively, in accordance with their respective terms and
entitled to the benefits of the respective indenture, subject to
applicable bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium and similar laws affecting creditors'
rights and remedies generally and to general principles of equity
(regardless of whether enforcement is sought in a proceeding at law
or in equity) and except to the extent that a waiver of rights
under any usury laws may be unenforceable;
(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 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
33
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 effectiveness of the Registration Statement or any
part thereof has been issued and no proceedings therefor have been
instituted or are pending or contemplated under the Act; and the
Indenture has been duly qualified under the TIA;
(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 Nationwide with
respect to the Nationwide Stations, of the transactions
contemplated by the applicable Transaction Documents, except as
disclosed in the Prospectus; the execution and delivery of this
Agreement and the Indenture, the issuance and sale of the
Securities, the performance of this Agreement and the consummation
of the transactions contemplated by this Agreement will not result
34
in a breach or violation of any of (A) any of the respective
charters or bylaws of the Company or any of the Subsidiaries or (B)
to the knowledge of such counsel (after due inquiry), the terms or
provisions of any agreement or instrument which is filed as an
exhibit to the Registration Statement and to which the Company or
any of the Subsidiaries is a party or by which any of them is
bound, or to which any of the properties of the Company or any of
the Subsidiaries is subject, or (C) to the knowledge of such
counsel (after due inquiry) constitute a default under, any
statute, rule or regulation to which the Company or any Subsidiary
is bound or to which any of the properties of the Company or any
Subsidiary is subject or (D) any order of any court or governmental
agency or body having jurisdiction over the Company or any of the
Subsidiaries or any of their properties which conflict, breach or
default in each of the cases described in clauses (B), (C) and (D)
could reasonably be expected to have a Material Adverse Effect;
(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 Nationwide with respect to the Nationwide Stations
are a party or by which any of them may be bound that are required
to be described in the Registration Statement or the Prospectus or
to be filed as exhibits to the Registration Statement other than
those described therein or filed as exhibits thereto and (B) no
default exists in the due performance or observance of any
obligation, agreement, covenant or condition contained in any
contract, indenture, mortgage, loan agreement, note, lease or other
instrument so described or filed in the Registration Statement or
the Prospectus or to be filed as exhibits to the Registration
35
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, to the knowledge
of such counsel, Nationwide, to the extent each is a party thereto,
have full corporate power and authority to execute, deliver and
perform its respective obligations under the applicable Transaction
Documents;
(xix) the Transaction Documents, assuming the
authorization, execution and delivery thereof by the parties other
than the Registrants, as applicable, and Nationwide, constitute
valid and legally binding agreements of the respective parties
thereto enforceable against each of the parties, to the extent each
is a party thereto, in accordance with their respective terms
subject to applicable bankruptcy, insolvency, reorganization,
moratorium and similar laws affecting creditors' rights generally
and to principles of equity (regardless of whether enforcement is
sought in a proceeding at law or equity) and except to the extent
that a waiver of rights under usury laws may be unenforceable; and
(xx) the approval of the transactions contemplated by the
Transaction Documents by the stockholders 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 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
36
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, L.L.P., 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-K filed for the year ended December 31, 1996)
that describe provisions of the Communications Act of 1934, as
amended (the "Communications Act"), and the FCC's published rules
or regulations (for purposes of this opinion only, the "Rules") are
accurate descriptions in all material respects.
(ii) Schedule 1 to this opinion sets forth a complete list
of the main station authorizations issued by the FCC to the Company
and its Subsidiaries (for purposes of this opinion only, the
"Licenses"). To such counsel's knowledge, the Licenses are the
only licenses, permits or authorizations required under the
Communications Act for the broadcast of signals on the main station
frequency of each of the radio stations listed on Schedule 2 (for
purposes of this opinion only, the "Jacor Stations"). Except for
the pending applications noted on Schedule 1 hereto, the Licenses
are in full force and effect (and the time within which any
administrative or judicial appeal, reconsideration, rehearing or
other review might be sought has lapsed with respect to the grant
of the authorizations for the currently effective terms, and no
such appeal, reconsideration, rehearing, or other review has been
taken or instituted), and are held by the relevant Subsidiary as
set forth on Schedule 1 hereto, and the expiration date of each
License is set forth in Schedule 1 hereto. Except as indicated on
Schedule 3 to this opinion, the Licenses are not subject to any
37
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 4 hereto, there is no
proceeding or other administrative action pending or, to such
counsel's knowledge, threatened, before the FCC against the Company
or any Subsidiary, which, if adversely determined, would materially
and adversely affect the business or financial condition of the
Company and its Subsidiaries, taken as a whole. To such counsel's
knowledge, except as listed on Schedule 5 to this opinion, the
Company and the Subsidiaries have filed with the FCC during the
current license term of each License all material reports and forms
required to be filed by the Company and the Subsidiaries with the
FCC with respect to the Jacor Stations.
(iv) The execution and delivery by the Company and any
Subsidiary of the Transaction Documents, and the performance of the
obligations as of the date hereof by the Company under the
Underwriting Agreement and the Indenture, (i) do not violate the
Communications Act, (ii) do not violate any of the Rules, (iii) do
not violate the terms of any of the Licenses, (iv) do not cause any
forfeiture or impairment of any License and (v) do not require any
consent, approval or authorization of the FCC that has not been
obtained; except that 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 FCC Rules or with respect to the
FCC's cross-interest policy (which such policy is summararized at 4
FCC Rcd 2035 (1989)). Except as indicated on Schedule 6, all
necessary applications required by the FCC as of the date hereof
for the transfer of control or assignment of the licenses of the
stations described in the Prospectus under "Pending Radio Station
Transactions" have been filed with the FCC.
(4) An opinion (satisfactory to you and your counsel), dated
the Closing Date of Paul, Hastings, Janofsky & Walker LLP, counsel for the
Company, to the effect that:
38
(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 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 KPMG Peat Marwick, independent public
accountants, containing the information and statements of the type
ordinarily included in accountants' "comfort letters" to Underwriters,
with respect to the financial statements and certain financial
information contained in the Registration Statement and the Prospectus
for each of (i) the Company and the C&L Audited Companies, (ii)
Premiere, and (iii) Nationwide, respectively.
39
(i) Skadden Arps shall have been furnished with such documents and
opinions, in addition to those set forth above, as they may reasonably
require for the purpose of enabling them to review or pass upon the
matters referred to in this Section 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.
(j) Prior to the Closing Date, the Company shall have furnished to
you such further information, certificates and documents as you may
reasonably request.
(k) At the Closing Date, the LYONs and the Shares shall have been
approved for quotation on the Nasdaq Stock Market's SmallCap Market and
Nasdaq National Market, respectively, subject to notice of issuance.
(l) There shall have been no amendments, alterations,
modifications, or waivers of any provisions of the Transaction Documents
since the date of the execution and delivery thereof by the parties
thereto other than those which under the Act are not required to be
disclosed in the Prospectus or any supplement thereto and which have
been disclosed to the Underwriters prior to the date hereof.
(m) Each of the Registrants, as applicable, and Nationwide shall,
to the extent each is a party thereto, have complied in all respects
with all agreements and covenants in the Transaction Documents and
performed all conditions specified therein that the terms thereof
require to be complied with or performed at or prior to the date hereof.
(n) Prior to or concurrently with the purchase and sale of the
Securities hereunder, the Company shall have completed the LYONs
Offering and the Shares Offering.
(o) Except as is disclosed to the Underwriters in writing, the
representations and warranties of the Registrants, as applicable, and
Nationwide set forth in the Transaction Documents shall be true,
accurate and complete in all respects.
(p) Prior to the Closing Date, the Company shall have obtained the
determination of the Administrative Agent (as that term is defined in
40
the Credit Facility) pursuant to Section 6.11(g) of the Credit Facility
that the Securities are substantially similar to the 10-1/8% Notes, the
9-3/4% Notes and the 8-3/4% Notes.
(q) The Registrants shall not have failed on or prior to the
Closing Date to perform or comply with any of the agreements contained
herein.
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 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.
41
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 change in economic conditions or in the
financial markets of the United States or elsewhere, or any other substantial
national or international calamity or emergency if the effect of such outbreak,
escalation, calamity, crisis, change or emergency would, in the judgment of any
Underwriter, make it impracticable or inadvisable to market the Securities on
the terms and in the manner contemplated by the Prospectus, (iii) any suspension
or limitation of trading generally in securities on the New York Stock Exchange,
the American Stock Exchange, the Nasdaq Stock Market or in the over-the-counter
markets or any setting of minimum prices for trading on such exchanges or
markets, (iv) any declaration of a general banking moratorium by Federal, New
York or Kentucky authorities, (v) the taking of any action by any Federal, state
or local government or agency in respect of its monetary or fiscal affairs that
in your judgment has a material adverse effect on the financial markets in the
United States, and would, in your judgment, make it impracticable or inadvisable
to market the Securities or to enforce contracts for the sale of the Securities,
(vi) the enactment, publication, decree, or other promulgation of any 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.
42
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 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, to it at
Jacor Communications, Inc., 50 East RiverCenter Boulevard, 12th Floor,
Covington, Kentucky 41011, Attention: Randy Michaels, Chief Executive
Officer, fax (606) 655-9345, 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 MAY BE HEARD AND DETERMINED IN ANY SUCH COURT. THE COMPANY, ON
43
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.
44
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: /s/ R. Christopher Weber
--------------------------------
Name: R. Christopher Weber
Title: Senior Vice President and
Chief Financial Officer
JACOR COMMUNICATIONS
COMPANY
By: /s/ R. Christopher Weber
--------------------------------
Name: R. Christopher Weber
Title: Senior Vice President,
Chief Financial Officer
and Secretary
45
BROADCAST FINANCE, INC.; CINE FILMS, INC.; CINE GUARANTORS, INC.; CINE
GUARANTORS II, INC.; CINE GUARANTORS II, LTD.; CINE MOBILE SYSTEMS INT'L. N.V.;
CINE MOVIL S.A. DE C.V.; CITICASTERS CO.; GACC-N26LB, INC.; GREAT AMERICAN
MERCHANDISING GROUP, INC.; GREAT AMERICAN TELEVISION PRODUCTIONS, INC.;
INMOBILIARIA RADIAL, S.A. DE C.V.*; JACOR BROADCASTING CORPORATION; JACOR
BROADCASTING OF ATLANTA, INC.; JACOR BROADCASTING OF CHARLESTON, INC.; JACOR
BROADCASTING OF COLORADO, INC.; JACOR BROADCASTING OF DENVER, INC.; JACOR
BROADCASTING OF FLORIDA, INC.; JACOR BROADCASTING OF KANSAS CITY, INC.; JACOR
BROADCASTING OF LAS VEGAS, INC.; JACOR BROADCASTING OF LAS VEGAS II, INC.; JACOR
BROADCASTING OF LOUISVILLE, INC.; JACOR BROADCASTING OF LOUISVILLE II, INC.;
46
JACOR BROADCASTING OF SALT LAKE CITY, INC.; JACOR BROADCASTING OF SALT LAKE CITY
II, INC.; JACOR BROADCASTING OF ST. LOUIS, INC.; JACOR BROADCASTING OF SAN
DIEGO, INC.; JACOR BROADCASTING OF SARASOTA, INC.; JACOR BROADCASTING OF TAMPA
BAY, INC.; JACOR BROADCASTING OF TOLEDO, INC.; JACOR BROADCASTING OF YOUNGSTOWN,
INC.; JACOR CABLE, INC.; JACOR LICENSEE OF CHARLESTON, INC.; JACOR LICENSEE OF
KANSAS CITY, INC., JACOR LICENSEE OF LAS VEGAS, INC.; JACOR LICENSEE OF LAS
VEGAS II, INC.; JACOR LICENSEE OF LOUISVILLE, INC.; JACOR LICENSEE OF LOUISVILLE
II, INC.; JACOR LICENSEE OF SALT LAKE CITY, INC.; JACOR LICENSEE OF SALT LAKE
CITY II, INC.; JACOR/PREMIERE HOLDING, INC.; JBSL, INC.; LOCATION PRODUCTIONS,
INC.; LOCATION PRODUCTIONS II, INC.; MULTIVERSE ACQUISITION CORP.**; NOBLE
BROADCAST CENTER, INC.; NOBLE BROADCAST GROUP, INC.; NOBLE BROADCAST HOLDINGS,
INC.; NOBLE BROADCAST LICENSES, INC.; NOBLE BROADCAST OF SAN DIEGO, INC.;
NOBRO, S.C*.; NOVA MARKETING GROUP, INC.; NSN NETWORK SERVICES, LTD.; PREMIERE
RADIO NETWORKS, INC.**; RADIO-ACTIVE MEDIA, INC.; SPORTS RADIO BROADCASTING,
INC.; SPORTS RADIO, INC.; THE SY FISCHER COMPANY AGENCY, INC.;VTTV PRODUCTIONS;
AND WHOK, INC.
By: /s/ R. Christopher Weber
--------------------------------
Name: R. Christopher Weber
Title: Senior Vice President and
Assistant Secretary for all
above companies except
those marked with an *,
of which he is Treasurer,
those marked with an **,
of which he is Senior
Vice President
47
The foregoing Underwriting Agreement
is hereby confirmed and accepted
as of the date first above written.
DONALDSON, LUFKIN & JENRETTE
SECURITIES CORPORATION
CHASE SECURITIES INC.
Acting on behalf of themselves
By: DONALDSON, LUFKIN & JENRETTE
SECURITIES CORPORATION
By: /s/ Michael Hooks
---------------------------------
Name: Michael Hooks
Title: Managing Director
48
SCHEDULE 1
AMOUNT OF
SECURITIES TO
UNDERWRITERS BE PURCHASED
- ------------- --------------
Donaldson, Lufkin & Jenrette
Securities Corporation...................... $ 84,000,000
Chase Securities Inc. ........................... $ 36,000,000
-------------
Total ...................................... $120,000,000
=============
49