-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, VOSI3RNNeTp59BAqY+GKiUz4Sl2R97BjwIO5j8wWHYd2uKH1bvMtrMLswzUGi5FF AZNpCNQ4IUUei99/tbrVOQ== 0000912057-97-021988.txt : 19970627 0000912057-97-021988.hdr.sgml : 19970627 ACCESSION NUMBER: 0000912057-97-021988 CONFORMED SUBMISSION TYPE: 8-K/A PUBLIC DOCUMENT COUNT: 4 CONFORMED PERIOD OF REPORT: 19970611 ITEM INFORMATION: Other events ITEM INFORMATION: Financial statements and exhibits FILED AS OF DATE: 19970626 SROS: NASD FILER: COMPANY DATA: COMPANY CONFORMED NAME: JACOR COMMUNICATIONS INC CENTRAL INDEX KEY: 0000702808 STANDARD INDUSTRIAL CLASSIFICATION: RADIO BROADCASTING STATIONS [4832] IRS NUMBER: 310978313 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: 8-K/A SEC ACT: 1934 Act SEC FILE NUMBER: 000-12404 FILM NUMBER: 97630313 BUSINESS ADDRESS: STREET 1: 50 E RIVERCENTER BLVD STREET 2: 12TH FLOOR CITY: COVINGTON STATE: KY ZIP: 41011 BUSINESS PHONE: 6066552267 8-K/A 1 FORM 8-K UNITED STATES SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 FORM 8-K/A CURRENT REPORT PURSUANT TO SECTION 13 OR 15(D) OF THE SECURITIES AND EXCHANGE ACT OF 1934 Date of Report: June 11, 1997 JACOR COMMUNICATIONS, INC. DELAWARE (State or Other Jurisdiction of Incorporation) 0-12404 31-0978313 (Commission File No.) (IRS Employer Identification No.) 50 East RiverCenter Boulevard 12th Floor Covington, KY 41017 (606)655-2267 ITEM 5. OTHER EVENTS On June 12, 1997, Jacor Communications, Inc. (the "Company") announced that its wholly owned subsidiary, Jacor Communications Company ("JCC"), would issue $150 million of ten year senior subordinated notes at 8 3/4% (the "1997 8 3/4% Notes"). The offering of the 1997 8 3/4% Notes was completed on June 17, 1997 in accordance with the provisions of Rule 144A promulgated under the Securities Act of 1933, as amended (the "Securities Act") and pursuant to the Purchase Agreement dated June 11, 1997, by and among JCC, the Company, JCC's subsidiaries (collectively, the "Guarantors"), Donaldson, Lufkin & Jenrette Securities Corporation, Chase Securities Inc. and Merrill Lynch, Pierce, Fenner & Smith Incorporated ("Purchase Agreement"). The 1997 8 3/4% Notes have interest payment dates of June 15 and December 15, commencing on December 15, 1997. The 1997 8 3/4% Notes are guaranteed by the Company and by the Guarantors on a joint and several basis. The 1997 8 3/4% Note Indenture contains certain covenants which impose certain limitations and restrictions on the ability of Jacor to incur additional indebtedness, pay dividends or make other distributions, make certain loans and investments, apply the proceeds of asset sales (and use the proceeds thereof), create liens, enter into certain transactions with affiliates, merge, consolidate or transfer substantially all of its assets and make investments in unrestricted subsidiaries. If a change of control occurs, JCC will be required to offer to repurchase all outstanding 1997 8 3/4% Notes at a price equal to 101% of their principal amount, plus accrued and unpaid interest, if any, to the date of repurchase. There can be no assurance that JCC will have sufficient funds to purchase all of the 1997 8 3/4% Notes in the event of a change of control offer or that JCC would be able to obtain financing for such purpose on favorable terms, if at all. In addition, the Credit Facility restricts JCC's ability to repurchase the 1997 8 3/4% Notes, including pursuant to a change of control offer. Furthermore, a change of control under the 1997 8 3/4% Note Indenture will result in a default under the Credit Facility. As used herein, a "Change of Control" means (i) any merger or consolidation of JCC with or into any person or any sale, transfer or other conveyance, whether direct or indirect, of all or substantially all of any of the assets of JCC, on a consolidated basis, in one transaction or a series of related transactions, if, immediately after giving effect to such transaction(s), any "person" or "group" (as such terms are used for purposes of Sections 13(d) and 14(d) of the Exchange Act, whether or not applicable) (other than an Excluded Person) is or becomes the "beneficial owner," directly or indirectly, of more than 50% of the total voting power in the aggregate normally entitied to vote in the election of directors, managers, or trustees, as applicable, of the transferee(s) or surviving entity or entities, (ii) any "person" or "group" (as such terms are used for purposes of Sections 13(d) and 14(d) of the Exchange Act, whether or not applicable) (other than an Excluded Person) is or becomes the "beneficial owner," directly or indirectly, of more than 50% of the total voting power in the aggregate of all classes of Capital Stock of JCC then outstanding normally entitled to vote in elections of directors, or (iii) during any period of 12 consecutive months after the Issue Date, individuals who at the beginning of any such 12-month period constituted the Board of Directors of JCC (together with any new directors whose election by such Board or whose nomination for election by the shareholders of JCC was approved by a vote of majority of the directors then still in office who were either directors at the beginning of such period or whose election or nomination for election was previously so approved) cease for any reason to constitute a majority of the Board of Directors of JCC then in office. The events of default under the 1997 8 3/4% Note Indenture include various events of default customary for such type of agreement, including the failure to pay principal and interest when due on the 1997 8 3/4% Notes, cross defaults on other indebtedness for borrowed monies in excess of $5.0 million (which indebtedness would therefore include the Credit Facility, the LYONs, the 1996 10 1/8% Notes and the 1996 9 3/4% Notes) and certain events of bankruptcy, insolvency and reorganization. Pursuant to the Registration Rights Agreement dated June 17, 1997 (the "Registration Rights Agreement"), the Company and the Guarantors have agreed, for the benefit of the holders of the 1997 8 3/4% Notes, that they will use their reasonable best efforts to file on or before September 15, 1997, a registration statement under the Securities Act relating to an exchange offer for the 1997 8 3/4% Notes and the guarantees for new notes which will have terms substantially identical to the 1997 8 3/4% Notes, except that the new notes will not contain transfer restrictions. The summary herein of certain provisions of the Purchase Agreement, the 1997 8 3/4% Note Indenture and the Registration Rights Agreement does not purport to be complete and is subject to, and is qualified in its entirety, by reference to, all provisions of such agreements, copies of which are attached as exhibits hereto. ITEM 7. FINANCIAL STATEMENTS AND EXHIBITS 2.1 Purchase Agreement dated June 11, 1997, by and among JCC, the Company, the Subsidiary Guarantors named therein, Donaldson, Lufkin & Jenrette Securities Corporation, Chase Securities Inc. and Merrill Lynch, Pierce, Fenner & Smith Incorporated. 4.1 Indenture dated June 17, 1997, among JCC, the Company, the Subsidiary Guarantors named therein (the "Subsidy Guarantors") and the Bank of New York for JCC's 8 3/4% Senior Subordinated Notes due 2007 and the Company's and the Subsidiary Guarantors' Guaranty thereof. 4.2 Registration Rights Agreement dated as of June 17, 1997, among JCC, the Company, the Subsidiary Guarantors named therein, Donaldson, Lufkin & Jenrette Securities Corporation, Chase Securities Inc. and Merrill Lynch, Pierce, Fenner & Smith Incorporated. 99.1 Press Release dated June 12, 1997* - ---------------- * Previously filed 2 Signatures Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized. JACOR COMMUNICATIONS, INC. June 26, 1997 BY: /s/ R. Christopher Weber ------------------------------------------- R. Christopher Weber, Senior Vice President and Chief Financial Officer 3 EX-2.1 2 EXHIBIT 2.1 JACOR COMMUNICATIONS COMPANY 8 3/4% Senior Subordinated Notes Due 2007 Payment of Principal and Interest Unconditionally Guaranteed by Jacor Communications, Inc. and the other Guarantors named herein PURCHASE AGREEMENT June 11, 1997 DONALDSON, LUFKIN & JENRETTE SECURITIES CORPORATION CHASE SECURITIES INC. MERRILL LYNCH, PIERCE, FENNER & SMITH INCORPORATED c/o Donaldson, Lufkin & Jenrette Securities Corporation 277 Park Avenue New York, New York 10172 Ladies and Gentlemen: Subject to the terms and conditions herein contained, Jacor Communications Company, a Florida corporation ("JCC") and a wholly owned subsidiary of Jacor Communications, Inc.(the "Company"), proposes to issue and sell to Donaldson, Lufkin & Jenrette Securities Corporation ("DLJ"), Chase Securities Inc. and Merrill Lynch, Pierce, Fenner & Smith Incorporated (collectively, the "Initial Purchasers") an aggregate of $150,000,000 principal amount of its 8 3/4% Senior Subordinated Notes due 2007 (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.; EFM Programming, Inc.; F.M.I. Pennsylvania, Inc.; GACC-N26LB, Inc.; GACC-340, Inc.; Georgia Network Equipment, Inc.; Great American Merchandising Group, Inc.; Great American Television Productions, Inc.; Inmobilaria Radial, S.A. de C.V.; Jacor Broadcasting Corporation; Jacor Broadcasting of Atlanta, Inc.; Jacor Broadcasting of Colorado, Inc.; Jacor Broadcasting of Florida, Inc.; Jacor Broadcasting of Knoxville, Inc.; Jacor Broadcasting of St. Louis, Inc.; Jacor Broadcasting of San Diego, Inc.; Jacor Broadcasting of Sarasota, Inc.; Jacor Broadcasting of Tampa Bay, Inc.; Jacor Cable, Inc.; Location Productions, Inc.; Location Productions II, Inc.; Noble Broadcast Center, Inc.; Noble Broadcast Group, Inc.; Noble Broadcast Holdings, Inc.; Noble Broadcast Licenses, Inc.; Noble Broadcast of Colorado, Inc.; Noble Broadcast of St. Louis, Inc.; Noble Broadcast of San Diego, Inc.; Noble Broadcast of Toledo, Inc.; Nobro, S.C.; Nova Marketing Group, Inc.; Regent Broadcasting of Charleston, Inc.; Regent Broadcasting of Kansas City, Inc.; Regent Broadcasting of Las Vegas, Inc.; Regent Broadcasting of Las Vegas II, Inc.; Regent Broadcasting of Louisville, Inc.; Regent Broadcasting of Louisville II, Inc.; Regent Broadcasting of Salt Lake City, Inc.; Regent Broadcasting of Salt Lake City II, Inc.; Regent Licensee of Charleston, Inc.; Regent Licensee of Kansas City, Inc.; Regent Licensee of Las Vegas, Inc.; Regent Licensee of Las Vegas II, Inc; Regent Licensee of Louisville, Inc.; Regent Licensee of Louisville II, Inc.; Regent Licensee of Salt Lake City, Inc.; Regent Licensee of Salt Lake City II, Inc.; Sports Radio Broadcasting, Inc.; Sports Radio, Inc.; Taft-TCI Satellite Services, Inc.; The Sy Fischer Company Agency, Inc.; WHOK, Inc.; and VTTV Productions, each a direct or indirect subsidiary of the Company or any successor entity, whether by merger, consolidation, change of name or otherwise (collectively, the "Guarantors" and together with "JCC", the "Issuers".) The Securities are to be issued pursuant to the provisions of an indenture to be dated as of June 17, 1997 (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 and the Indenture are more fully described in the Offering Memorandum (as hereinafter defined). Capitalized terms used herein without definition have the respective meanings specified in the Offering Memorandum. 2 The Securities are being issued and sold to repay in part outstanding indebtedness under the Credit Facility (defined below) and for general corporate purposes. The Securities will be offered and sold to you without being registered under the Securities Act of 1933, as amended (the "Act"), in reliance on an exemption therefrom. The Company has prepared an offering memorandum dated June 11, 1997 (such offering memorandum including all documents incorporated or deemed incorporated by reference therein and all financial statements and exhibits contained or incorporated therein, in the form first furnished to the Initial Purchasers for use in connection with the offering of the Securities, being hereinafter referred to as the "Offering Memorandum"), setting forth information regarding the Company, its Subsidiaries (as hereinafter defined), including JCC, and the Securities. The Company hereby confirms that it has authorized the use of the Offering Memorandum in connection with the offering and resale of the Securities. Holders (including subsequent transferees) of the Securities will have the registration rights set forth in the Registration Rights Agreement (the "Registration Rights Agreement"), to be dated the Closing Date (as hereinafter defined), in substantially the form of Exhibit A hereto, for so long as such Securities constitute "Registrable Securities" (as defined in the Registration Rights Agreement). Pursuant to the Registration Rights Agreement, the Company will agree to file with the Securities and Exchange Commission (the "Commission") under the circumstances set forth therein, (i) a registration statement under the Act (the "Exchange Offer Registration Statement") registering an issue of senior subordinated notes and guarantees identical in all material respects to the Securities (the "Exchange Securities") to be offered in exchange for the Securities (the "Exchange Offer") and (ii) under certain circumstances, a registration statement pursuant to Rule 415 under the Act (the "Shelf Registration Statement"). The Pending Transactions include, among other things, the merger (the "Premiere Merger") of PRN Holding Acquisition Corp. ("PRN Holding"), a subsidiary of the Company with and into Premiere Radio Networks, Inc. ("Premiere") pursuant to an Agreement and Plan of Merger 3 (the "Premiere Merger Agreement"), dated as of April 7, 1997 by and among the Company, Jacor Communications Company and PRN Holding. This Purchase Agreement, the Indenture, the Registration Rights Agreement and all related agreements and documents executed in connection with the Pending Transactions are collectively referred to herein as the "Transaction Documents." 1. 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 Issuers agree to issue and sell to each of the Initial Purchasers, and each of the Initial Purchasers agrees, severally and not jointly, to purchase from the Issuers, 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 98% of the principal amount thereof (the "Purchase Price"). 2. DELIVERY AND PAYMENT. Delivery to you of and payment for the Securities shall be made at 9:00 A.M., New York City time, on the fourth business day (which may be varied by agreement among the Company and you) (such time and date being referred to as the "Closing Date") following the date of this Agreement, 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. One or more of the Securities in definitive form, registered in the name of Cede and Co., as nominee of The Depository Trust Company ("DTC"), or such other name(s) as the Initial Purchasers may request in writing upon at least two business days' notice to the Company, having an aggregate principal amount corresponding to the aggregate principal amount of Securities sold pursuant to Rule 144A under the Act, as such rule may be amended from time to time ("Rule 144A"), to qualified institutional buyers within the meaning of Rule 144A ("QIBs") (collectively, the "Global Securities"), and one or more Securities in definitive form, registered in such names and denominations as the Initial Purchasers may so request, having an aggregate principal amount corresponding to the 4 aggregate principal amount of the Securities sold to institutional "accredited investors", as defined in Rule 501(a)(1), (2), (3) or (7) of Regulation D under the Act, that make certain representations and agreements to JCC (each, an "Accredited Institution", and together with QIBs, the "Eligible Purchasers") (collectively, the "Certificated Securities"), shall be delivered by the Company to the Initial Purchasers on the Closing Date with any transfer taxes payable upon initial issuance thereof duly paid by JCC, for your respective accounts against payment by the Initial Purchasers of the purchase price thereof by wire transfer of same day funds to such bank account as JCC shall designate at least two business days prior to the Closing Date. The Global Securities and Certificated Securities in definitive form shall be made available to you at the offices of DLJ (or at 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. 3. AGREEMENTS OF THE ISSUERS. The Issuers, as applicable, agree with each of you that: (a) They will advise you promptly and, if requested by any of you, confirm such advice in writing, of the happening of any event during such period as in your reasonable judgment you are required to deliver an Offering Memorandum in connection with sales of the Securities by you which makes any statement of a material fact made in the Offering Memorandum untrue or which requires the making of any additions to or changes in the Offering Memorandum (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. Each of the Issuers shall use its reasonable best efforts to prevent the issuance of any order suspending the qualification or exemption of the Securities under any state securities or Blue Sky laws, and, if at any time, 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 Issuers shall use every reasonable effort to obtain the withdrawal or lifting of such order at the earliest possible time. 5 (b) They will not make any amendment or supplement to the Offering Memorandum, of which you shall not previously have been advised and provided a copy within two business days or such shorter period of time as may be reasonable under the circumstances prior to the delivery thereof or to which you shall reasonably object. The Issuers shall promptly prepare, upon your reasonable request, any amendment or supplement to the Offering Memorandum that may be necessary or advisable in connection with resales. (c) The Company will furnish to you and to those persons who you identify to the Company, without charge, as many copies of the Offering Memorandum (and of any amendments or supplements thereto) as you may reasonably request. The Issuers consent to your use of the Offering Memorandum, and any amendments and supplements thereto, in connection with offers and resales of the Securities contemplated hereunder. (d) If, during such period as in your reasonable judgment you are required to deliver the Offering Memorandum in connection with sales of the Securities by you, any event shall occur as a result of which it becomes necessary to amend or supplement the Offering Memorandum in order to make the statements therein, in light of the circumstances existing as of the date the Offering Memorandum is delivered to a purchaser, not misleading, or if it is necessary to amend or supplement the Offering Memorandum to comply with any law, the Issuers will promptly prepare an appropriate amendment or supplement to the Offering Memorandum so that the statements in the Offering Memorandum, as so amended or supplemented, will not, in the light of the circumstances existing as of the date the Offering Memorandum is so delivered, be misleading, and will comply with applicable law, and will furnish to you without charge such number of copies thereof as you may reasonably request. (e) The Issuers 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 6 of such jurisdictions as you may request (provided, that none of the Issuers shall be obligated to qualify as a foreign corporation in any jurisdiction in which it is not so qualified or to take any action that would subject it to general consent to service of process in any jurisdiction in which it is not now so subject or to subject itself to taxation in any such jurisdiction). The Issuers will continue such qualification in effect so long as required by law for distribution of the Securities. (f) After the Securities have been exchanged, the Company will, so long as the Securities are outstanding, file on a timely basis with the Commission, to the extent such filings are accepted by the Commission, and whether or not the Company has a class of securities registered under the Securities and Exchange Act of 1934, as amended (the "Exchange Act"), the annual reports, quarterly reports and other documents that the Company would be required to file if it were subject to Section 13 or Section 15 of the Exchange Act. For so long as you are making a market in the Securities, but in no event more than five years from the date hereof, the Company will furnish to you copies of all such reports and information, together with such other documents, reports and information as shall be furnished by the Company to the holders generally of the Securities, and such other information concerning the Company and its Subsidiaries as you reasonably may request. (g) For so long as and at any time that it is not subject to Section 13 or 15(d) of the Exchange Act, JCC, upon request of any holder of the Securities, will furnish to such holder, and to any prospective purchaser or purchasers of the Securities designated by such holder, information satisfying the requirements of subsection (d)(4)(i) of Rule 144A under the Act; PROVIDED, HOWEVER, that the Company's obligations under this Section 4(g) shall terminate upon the earlier of (i) the date the Exchange Offer is concluded and the exchange of the Exchange Securities for the Securities tendered therein is consummated or (ii) the date the Shelf Registration Statement is declared effective by the Commission; provided further that, notwithstanding the foregoing proviso, the Company shall be obligat- 7 ed to deliver, upon request, any information required by Rule 144A(d)(4) under the Act to prospective purchasers of the Securities during any period during which, pursuant to the Registration Rights Agreement, the Shelf Registration Statement is required to be effective, but such effectiveness has been suspended or revoked for any reason. (h) During the period of five years hereafter, the Company will furnish to you (i) as soon as available, a copy of each report of the Company mailed to shareholders or filed with the Commission, and (ii) from time to time such other information concerning the Company as you may request. (i) Whether or not the transactions contemplated hereby are consummated or this Agreement is terminated, the Company and JCC will pay and be responsible for all costs, expenses, fees and taxes in connection with or incident to (i) the printing, processing, distribution and delivery of each Offering Memorandum and all amendments or supplements thereto, (ii) the printing processing, execution, distribution and delivery of this Agreement, any memorandum 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 or qualification of the Securities for offer and sale under the securities or Blue Sky laws of the jurisdictions referred to in paragraph 3(e) above including, in each case, the fees and disbursements of counsel relating to such registration or qualification and memorandum relating thereto and any filing fees in connection therewith), (v) furnishing such copies of the Offering Memorandum, and all amendments and supplements to any of them, as may be reasonably requested by you, (vi) filing, registration and clearance with the NASD(as defined herein) in connection with the offering of the Securities (including any filing fees in connection therewith and the fees and disbursements of counsel relating thereto) and the designation of the Securities as PORTAL Securities, (vii) the rating agencies, (viii) the printing, processing, execution, distribution and delivery of the Transaction Documents and all other 8 agreements, memoranda, correspondence and other documents, printed, distributed and delivered in connection with the Transaction Documents and (ix) the performance by the Company and JCC 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. (j) The Company and JCC will use the proceeds from the sale of the Securities in the manner described in the Offering Memorandum under the caption "Use of Proceeds." (k) The Company will use its reasonable best efforts to, and will use its reasonable best efforts to cooperate with you to, cause the Securities to be designated PORTAL securities in accordance with the rules and regulations of the National Association of Securities Dealers (the "NASD"). (l) The Issuers will not voluntarily claim, and will actively resist any attempts to claim, the benefit of any usury laws against the holders of the Securities. (m) The Issuers 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) Except in connection with the Exchange Offer or the filing of the Shelf Registration Statement, as the case may be, the Issuers will not, and will not authorize or knowingly permit any person acting on their behalf to, solicit any offer to buy or offer to sell the Securities by means of any form of general solicitation or general advertising (including, without limitation, as such terms are used in Regulation D under the Act) or in any manner involving a public offering within the meaning of Section 4(2) of the Act. 9 (o) Neither the Company nor any affiliate (as such term is defined in Rule 501(b) under the Act) of the Company will offer, sell or solicit offers to buy or otherwise negotiate in respect of any "security" (as defined in the Act) which could reasonably be expected to be integrated with the sale of the Securities in a manner that would require the registration of the Securities under the Act. (p) Each Security will bear the following legend until such legend shall no longer be necessary or advisable because the Securities are no longer subject to the restrictions on transfer described therein: "THIS NOTE (OR ITS PREDECESSOR) HAS NOT BEEN REGISTERED UNDER THE U.S. SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT") AND, ACCORDINGLY, MAY NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED WITHIN THE UNITED STATES OR TO, OR FOR THE ACCOUNT OR BENEFIT OF, U.S. PERSONS, EXCEPT AS SET FORTH IN THE FOLLOWING SENTENCE. BY ITS ACQUISITION HEREOF OR OF A BENEFICIAL INTEREST HEREIN, THE HOLDER (1) REPRESENTS THAT (A) IT IS A "QUALIFIED INSTITUTIONAL BUYER" (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT) (A "QIB"), (B) IT IS ACQUIRING THIS NOTE IN AN OFFSHORE TRANSACTION IN COMPLIANCE WITH REGULATION S UNDER THE SECURITIES ACT OR (C) IT IS AN INSTITUTIONAL "ACCREDITED INVESTOR" (AS DEFINED IN RULE 501(A)(1), (2), (3) OR (7) OF REGULATION D UNDER THE SECURITIES ACT) (AN "IAI"), (2) AGREES THAT IT WILL NOT, WITHIN THE TIME PERIOD REFERRED TO UNDER RULE 144(k) (TAKING INTO ACCOUNT THE PROVISIONS OF RULE 144(d) UNDER THE SECURITIES ACT, IF APPLICABLE) UNDER THE SECURITIES ACT AS IN EFFECT ON THE DATE OF THE TRANSFER OF THIS NOTE, RESELL OR OTHERWISE TRANSFER THIS NOTE EXCEPT (A) TO THE COMPANY OR ANY GUARANTOR, (B) TO A PERSON WHOM THE HOLDER REASONABLY BELIEVES IS A QIB PURCHASING FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QIB IN COMPLIANCE WITH RULE 144A UNDER THE SECURITIES ACT, (C) IN AN OFFSHORE TRANSACTION MEETING THE REQUIREMENTS OF RULE 904 OF THE SECURITIES ACT, (D) PURSUANT TO THE EXEMPTION FROM REGISTRATION PROVIDED BY 10 RULE 144 UNDER THE SECURITIES ACT (IF AVAILABLE), (E) TO AN IAI WHICH PRIOR TO SUCH TRANSFER, FURNISHES TO THE TRUSTEE A SIGNED LETTER CONTAINING CERTAIN REPRESENTATIONS AND AGREEMENTS RELATING TO THE REGISTRATION OF TRANSFER OF THIS NOTE (THE FORM OF WHICH LETTER CAN BE OBTAINED FROM THE TRUSTEE) AND, IF SUCH TRANSFER IS IN RESPECT OF AN AGGREGATE PRINCIPAL AMOUNT OF NOTES AT THE TIME OF TRANSFER OF LESS THAN $250,000, AN OPINION OF COUNSEL ACCEPTABLE TO THE COMPANY THAT SUCH TRANSFER IS IN COMPLIANCE WITH THE SECURITIES ACT OR (F) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT AND, IN EACH CASE, IN ACCORDANCE WITH APPLICABLE STATE SECURITIES LAWS, AND (3) AGREES THAT IT WILL DELIVER TO EACH PERSON TO WHOM THIS NOTE OR AN INTEREST HEREIN IS TRANSFERRED A NOTICE SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND. AS USED HEREIN, THE TERMS "OFFSHORE TRANSACTION", "UNITED STATES" AND "U.S. PERSON" HAVE THE MEANINGS GIVEN THEM BY RULE 902 OF REGULATION S UNDER THE SECURITIES ACT. THE INDENTURE CONTAINS A PROVISION REQUIRING THE TRUSTEE TO REFUSE TO REGISTER ANY TRANSFER OF THIS NOTE IN VIOLATION OF THE FOREGOING RESTRICTIONS." (q) During the period beginning on the date of this Agreement and continuing to and including the Closing Date, except as described in the Offering Memorandum with respect to the Pending Transactions, there will be no transactions entered into by the Company or any of its subsidiaries (each a "Subsidiary" and, collectively, the "Subsidiaries"), which are material with respect to the Company or any of the Subsidiaries, respectively, taken individually or as a whole, as determined in accordance with the provisions and Rule 3-05 of Regulation S-X or other standards for materiality as may be agreed upon by the Company and the Initial Purchasers 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. 4. ISSUERS' REPRESENTATIONS AND WARRANTIES. The Issuers represent and warrant to each of you that: 11 (a) The Offering Memorandum, as of its date, contains all the information that, if requested by a prospective purchaser, would be required to be provided pursuant to Rule 144A(d)(4) under the Act. The Offering Memorandum does not, and at the Closing Date, the Offering Memorandum and any amendment or supplement thereto 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, in 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 Offering Memorandum (or any supplement or amendment thereto) based upon and conforming with information relating to any Initial Purchaser furnished to the Company by DLJ in writing by or on behalf of any Initial Purchaser, expressly for use therein. The Issuers acknowledge for all purposes under this Agreement that the statements with respect to price and discount and the last paragraph on the cover page of the Offering Memorandum and the information contained in the last two sentences of the third paragraph, the fourth sentence of the fourth paragraph and the last three paragraphs under the caption "Plan of Distribution" in the Offering Memorandum, the information regarding stabilization on the inside front cover of the Offering Memorandum (or any amendment or supplement thereto) constitute the only written information furnished to the Company by DLJ or on behalf of any Initial Purchaser expressly for use in the Offering Memorandum (or any amendment or supplement thereto) and that the Initial Purchasers shall not be deemed to have provided any other information (and therefore are not responsible for any such statement or omission). No contract or document that would be required to be described in the Offering Memorandum if the Offering Memorandum were contained in a registration statement on Form S-1 under the Act is not so described. (b) The Company and each of its Subsidiaries and Premiere 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 12 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 the Registration Rights 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"). (c) All of the issued and outstanding shares of capital stock of, or other ownership interests in, each Subsidiary have been duly and validly authorized and issued, and all of the shares of capital stock of, or other ownership interests in, each Subsidiary are owned, directly or through Subsidiaries, by the Company and, upon completion of the transactions contemplated by the Transaction Documents, all of the shares of capital stock of, or other ownership interests in the assets of Premiere will be owned directly or through Subsidiaries, by the Company. All such shares of capital stock are fully paid and nonassessable, and are owned free and clear of any security interest, mortgage, pledge, claim, lien or encumbrance (each, a "Lien"), except for Liens arising under the Credit Agreement, dated as of June 12, 1996, as amended and restated as of February 14, 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 13 capital stock of, or other ownership interest in, any Subsidiary and, with respect to Premiere, except for the Premiere Merger and stock options issued by Premiere which options will be cancelled in connection with the Premiere Merger. (d) The authorized, issued and outstanding capital stock of the Company is as set forth in the Offering Memorandum 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. (e) None of the Company, any of the Subsidiaries and Premiere is in violation of their respective charters or bylaws or in default in the performance of any bond, debenture, note or any other evidence of indebtedness or any indenture, mortgage, deed of trust or other contract, lease or other instrument to which the Company or any of the Subsidiaries or Premiere is a party or by which any of them is bound, or to which any of the property or assets of the Company or any of the Subsidiaries or Premiere is subject, except, in the case of Premiere, as could not have a Material Adverse Effect. (f) The Transaction Documents have been duly authorized and validly executed and delivered by the Issuers, as applicable, and constitute valid and legally binding agreements of the Issuers, as applicable, enforceable against the Issuers, 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, other than the Issuers). (g) The execution and delivery of this Agreement, the Registration Rights Agreement, the Indenture and the Securities by the Issuers, the issuance and sale of the Securities, the performance of this Agreement, the Registration Rights 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 Issuers and Premiere, as applicable, and the consummation of the Pending Transac- 14 tions 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 Premiere or any of the terms or provisions of, except, in the case of Premiere, as could not have a Material Adverse Effect or (2) constitute a default or cause an acceleration of any obligation under or result in the imposition or creation of (or the obligation to create or impose) a Lien with respect to, any bond, note, debenture or other evidence of indebtedness or any indenture, mortgage, deed of trust or other agreement or instrument to which the Company or any of the Subsidiaries or Premiere is a party or by which it or any of them is bound, or to which any properties of the Company or any of the Subsidiaries or Premiere is or may be subject, except, in the case of Premiere, as could not have a Material Adverse Effect, or (3) contravene any order of any court or governmental agency or body having jurisdiction over the Company or any of the Subsidiaries or Premiere 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 Premiere or any of their respective properties, except, in the case of Premiere, as could not have a Material Adverse Effect. (h) 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 Premiere or any of their respective properties, which would be required to be disclosed in the Offering Memorandum if it were a prospectus that was part of a registration statement filed under the Act, 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 that would be required to be described in the Offering Memorandum if it were a 15 prospectus that was part of a registration statement filed under the Act is not so described. (i) To the best knowledge of the Company, no action has been taken with respect to the Company or any of its Subsidiaries, and no statute, rule or regulation or order has been enacted, adopted or issued by any governmental agency which prevents the issuance of the Securities, prevents or suspends the use of the Offering Memorandum or suspends the sale of the Securities in any jurisdiction referred to in Section 3(e) 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 its Subsidiaries which would prevent the issuance of the Securities, prevent or suspend the use of the Offering Memorandum or suspend the sale of the Securities in any jurisdiction referred to in Section 3(e) hereof; no action, suit or proceeding before any court or arbitrator or any governmental body, agency or official (domestic or foreign) is pending against or, to the knowledge of the Company, threatened against, the Company or any of its Subsidiaries which, if adversely determined, could reasonably be expected to (a) interfere with or adversely affect the issuance of the Securities, or (b) in any manner invalidate this Agreement, the Registration Rights Agreement or the Indenture; and every request of any securities authority or agency of any jurisdiction for additional information (to be included in the Offering Memorandum or otherwise) has been complied with in all material respects or responded to in a manner acceptable to such securities authority. (j) (i) None of the Company, any of the Subsidiaries and Premiere 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 16 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 would be required to be disclosed in the Offering Memorandum if it were a prospectus that was part of a registration statement filed under the Act; 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, Premiere and any of the other parties to the Transaction Documents (the "Pending Transaction Parties") with respect to the properties and radio stations to be purchased or sold pursuant to the Transaction Documents (the "Pending Properties") has received any communication (written or oral), whether from a governmental authority or otherwise, alleging any such violation or noncompliance, and there are no circumstances, either past, present or that are reasonably foreseeable, that may lead to such violation in the future, (B) there is no pending or threatened claim, action, investigation or notice (written or oral) by any person or entity alleging potential liability for investigatory, cleanup, or governmental responses costs, or natural resources or property damages, or personal injuries, attorney's fees or penalties relating to (x) the presence, or release into the environment, of any Material of Environmental Concern at any location owned or operated by the Company, any of the Subsidiaries, Premiere, 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 would be required to be disclosed in the Offering Memorandum if it were a prospectus that was part of a registration statement filed under the Act, 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, Premiere, and the Pending Transaction Par- 17 ties with respect to the Pending Properties, or against any person or entity whose liability for any Environmental Claim the Company, any of the Subsidiaries, Premiere, 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 Premiere conducts a periodic review of the effect of Environmental Laws on the business, operations and properties of the in the course of which it identifies and evaluates associated costs and liabilities (including, without limitation, any capital or operating expenditures required for clean-up, closure of properties or compliance with Environmental Laws or any permit, license or approval, any related constraints on operating activities and any potential liabilities to third parties); on the basis of such review, the Company and the Subsidiaries, have reasonably concluded that such associated costs and liabilities could not have a Material Adverse Effect. (k) None of the Company, any of the Subsidiaries, Premiere, and to the knowledge of the Company, the Pending Transaction Parties with respect to the Pending Properties, has violated any Federal, state or local law relating to discrimination in the hiring, promotion or pay of employees nor any applicable wage or hour laws, nor any provisions of the Employee Retirement Income Security Act of 1974 ("ERISA") or the rules and regulations promulgated thereunder, nor has the Company or any of the Subsidiaries or Premiere 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 Premiere 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 rela- 18 tions 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 Premiere 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 Premiere 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, Premiere, 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. (l) Based on the "Notice to Investors" section of the Offering Memorandum, the execution and delivery of this Agreement and the Transaction Documents, and the sale of the Securities to be purchased by the Initial Purchasers will not involve any non-exempt prohibited transaction within the meaning of Section 406 of the Employee Retirement Income Security Act of 1974, as amended, or the rules and regulations promulgated thereunder ("ERISA") or Section 4975 of the Internal Revenue Code of 1986, as amended, or the rules, regulations and published interpretations promulgated thereunder (the "Code"). No condition exists or event or transaction has occurred in connection with any employee benefit plan maintained by the Company or any of its ERISA Affiliates that could result in the Company or any such ERISA Affiliate incurring any liability, fine or penalty that could, singly or in the aggregate, have a Material Adverse Effect. With respect to any employee pension benefit plan that is subject to Title 19 IV of ERISA, except as adequately disclosed in the Offering Memorandum, (i) the fair market value of the assets of such employee pension benefit plan equals or exceeds the present value of the liabilities of such pension plan (as determined in accordance with the actuarial methods and assumptions set forth in the latest actuarial report for such employee pension benefit plan), except where the failure to so equal or exceed would not, singly or in the aggregate, have a Material Adverse Effect and (ii) there exists no accumulated funding deficiency which would have, singly or in the aggregate, a Material Adverse Effect. The terms "employee benefit plan," "employee pension benefit plan" and "party in interest" shall have the meanings assigned to such terms in Section 3 of ERISA, the term "Affiliate" shall have the meaning assigned to such term in Section 407(d)(7) of ERISA, and the term "disqualified person" shall have the meaning assigned to such term in Section 4975 of the Code. (m) The Company, each of its Subsidiaries and Premiere each have good and marketable title, free and clear of all Liens, to all property and assets described in the Offering Memorandum as being owned by it, except for (i) Liens pursuant to the Credit Facility and (ii) Liens on general office equipment which are not material to the Company's operations. All leases to which the Company, the Subsidiaries or Premiere are a party are valid and binding and no default has occurred or is continuing thereunder and the Company, each of its Subsidiaries and Premiere 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 Premiere. (n) 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. and PAM Media, Inc. (the "Combined E.F.M. Companies"), and Premiere filed, to be filed or incorporated by reference as part of the Offering Memorandum are independent public accountants with respect to the Company, the Subsidiaries 20 and the Combined E.F.M. Companies and Premiere, as required by the Act. The consolidated historical and PRO FORMA financial statements, together with related schedules and notes, set forth in the Offering Memorandum comply as to form in all material respects with the requirements of the Act. Such historical financial statements fairly present the consolidated financial position of the Company, the Subsidiaries and the Combined E.F.M. Companies and Premiere, 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 Offering Memorandum and the Transaction Documents. The other financial and statistical information and data included in the Offering Memorandum, historical and PRO FORMA, are, in all material respects, accurately presented and prepared on a basis consistent with such financial statements and the books and records of the Company and the Combined E.F.M. Companies and Premiere. (o) Subsequent to the respective dates as of which information is given in the Offering Memorandum and up to the Closing Date, none of the Company, any of the Subsidiaries or Premiere have incurred any liabilities or obligations, direct or contingent, which are material to the Company and the Subsidiaries taken as a whole, nor entered into any transaction not in the ordinary course of business and there has not been, singly or in the aggregate, any material adverse change, or any development which could reasonably be expected to involve a material adverse change, in the properties, business, results of operations, condition (financial or otherwise), affairs or prospects of the Company and the Subsidiaries taken as a whole (a "Material Adverse Change"). 21 (p) All tax returns required to be filed by the Company, any of the Subsidiaries and Premiere 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. (q) No authorization, approval or consent or order of, or filing with, any court or governmental body or agency is necessary in connection with the transactions contemplated by the Pending Transactions, except such as may be required by the NASD or have been obtained and made under the Act, the Exchange Act, the Trust Indenture Act of 1939, as amended (the "TIA") or state securities or "Blue Sky" laws or regulations. Neither the Company nor any of its affiliates is presently doing business with the government of Cuba or with any person or affiliate located in Cuba. (r) (i) Each of the Company, the Subsidiaries and Premiere 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 Offering Memorandum, 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 Premiere and, to the knowledge of the Company, the Pending Transaction Parties with respect to the Pending 22 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 Offering Memorandum as owned and operated by any of the Company, the Subsidiaries or Premiere, 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. (s) 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. (t) Except as disclosed in the Offering Memorandum, 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. (u) Each of the Company, the Subsidiaries and Premiere 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 Premiere, 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 Mate- 23 rial Adverse Change. The use of such Intellectual Property in connection with the business and operations of each of the Company, the Subsidiaries and Premiere, and, to the knowledge of the Company, the Pending Transaction Parties with respect to the Pending Properties does not, to the Company's knowledge, infringe on the rights of any person except where any such infringement has not resulted in, or could not reasonably be expected to result in any Material Adverse Change. (v) Each certificate signed by any officer of any Issuer and delivered to the Initial Purchasers or counsel for the Initial Purchasers shall be deemed to be a representation and warranty by the applicable Issuer to each Initial Purchaser as to the matters covered thereby. (w) Each of the Company, the Subsidiaries and Premiere 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. (x) The Company has applied to have the Securities designated as PORTAL securities in accordance with the rules and regulations of the NASD. (y) Neither the Company nor any affiliate (as such term is defined in Rule 501(b) under the Act) has, directly or through any agent, sold, offered for sale, solicited offers to buy or otherwise negotiated in respect of, any security (as defined in the Act) which is or will be integrated with the sale of the Securities in a manner that would require the registration of the Securities under the Act. 24 (z) None of the Company, its Subsidiaries and any officer, director or other person (other than you, as to whom the Company makes no representation) acting on its behalf has engaged, in connection with the offering of the Securities, in any form of general solicitation or general advertising, including but not limited to the methods described in Rule 502(c) under the Act. (aa) Assuming the accuracy of your representations contained Section 5 hereof and your compliance with your agreements therein set forth, it is not necessary, in connection with the sale and delivery of the Securities to you and the offer and resale of the Securities by you, in each case in the manner contemplated by this Agreement and the Offering Memorandum, to register the Securities under the Act or to qualify the Indenture under the TIA. (aa) Each of the Company, the Subsidiaries and Premiere 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 Premiere, and, to the knowledge of the Company, the Pending Transaction Parties with respect to the Pending Properties, has received notice from any insurer or agent of such insurer that substantial capital improvements or other expenditures will have to be made in order to continue such insurance. All such insurance is outstanding and duly in force on the date hereof and will be outstanding and duly in force on the Closing Date. (bb) Neither the Company nor Premiere 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 Premiere, respectively, which the Company knows 25 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 Premiere has participated, directly or indirectly, in any boycotts or other similar practices in contravention of law affecting any of its actual or potential customers. (cc) Neither the Company nor Premiere owns any "margin securities" as that term is defined in Regulations G and U of the Board of Governors of the Federal Reserve System (the "Federal Reserve Board"), and, except as disclosed in the Offering Memorandum, 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 Offering Memorandum 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 Offering Memorandum as programmed by the Company or any of its Subsidiaries, which licenses expire on the dates set forth in the Offering Memorandum. (ee) Each person described in the Offering Memorandum as a person to whom the Company or any of the Subsidiaries provides programming pursuant to an exclusive sales agency agreement (a "Mexican Licensee"), has been issued by the Mexican government all necessary Mexican licenses (which are in full force and effect) for the operation of the commercial radio broadcast station identified in the Offering Memorandum as programmed by the Company or any of its Subsidiaries. Each of the Company and its 26 Subsidiaries have all Authorizations necessary to deliver programming to the Mexican Licensees. (ff) Each of the Company, its Subsidiaries and Premiere 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, Premiere 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 Premiere 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', Premiere or its subsidiaries', or, to the knowledge of the Company, the Pending Transaction Parties or their subsidiaries' with respect to the Pending Properties, or, to the knowledge of the Company, any Licensees' FCC licenses or which could reasonably be expected to result in any material adverse effect upon any of the Company's Subsidiaries, Premiere or its subsidiaries, or, to the 27 knowledge of the Company, the Pending Transaction Parties or their subsidiaries with respect to the Pending Properties, or, to the knowledge of the Company, any Licensees' operation of its respective stations and which could reasonably be expected to, singly or in the aggregate, have a Material Adverse Effect, nor does the Company have reason to believe that the FCC licenses with respect to the Stations will not be renewed for a full eight year term when such FCC licenses are due for renewal. (hh) The execution, delivery and performance of the obligations by the Company under this Agreement are not and will not be contrary to the Communications Act, as amended, will not result in any violation of the FCC's published rules and regulations, will not cause any forfeiture or impairment of any FCC license of any of the Stations by or before the FCC, and will not require any consent, approval or authorization of the FCC. (ii) The execution, delivery and performance of the obligations by each of the Issuers, as applicable, PRN Holding and Premiere (each, a "Premiere Transaction Party" and, collectively, the "Premiere 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. 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 Premiere Transaction Parties and, to the knowledge of the Company, the Pending Transac- 28 tion 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 Premiere 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 Premiere Transaction Party and, to the knowledge of the Company, the Pending Transaction Parties, enforceable against each Premiere Transaction Party or Pending Transaction Party, as applicable, in accordance with its terms; except as set forth in the Offering Memorandum, 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 Premiere 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 Premiere 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 under 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 Initial Purchasers; and none of the Premiere 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. 29 (kk) The execution, delivery and performance by the Premiere Transaction Parties, to the extent each is a party thereto, of each of the Transaction Documents, and the consummation by the respective Premiere 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 Premiere 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 Premiere 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 Premiere Transaction Party, or any of their respective properties or assets, which violation, conflict, breach or default would have a Material Adverse Effect. (ll) The Premiere Merger has been duly authorized by the Premiere 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 Initial Purchasers 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 30 has been delivered to the Initial Purchasers; there exists as of the date hereof (after giving effect to the transactions contemplated by the Transaction Documents) no event or condition which would constitute a default or an event of default (in each case as defined in the Credit Facility) under the Credit Facility, and no event or condition which would constitute a default or an event of default (in each case as defined in each of the Transaction Documents) under any of the Transaction Documents other than the Credit Facility, which would result in a Material Adverse Effect or materially adversely effect the ability of each of the Company or Premiere to consummate the transactions contemplated by the Transaction Documents. (nn) No director, officer or substantial shareholder of the Company has a 5% or greater interest (or no such persons collectively have a 10% or greater interest), directly or indirectly, in Premiere. (oo) The shares of Common Stock to be issued pursuant to the Premiere Merger Agreement and pursuant to the terms of the other Pending Transactions, will not, in the aggregate, have upon issuance, voting power equal to or in excess of 20% of the voting power outstanding before the issuance of the Common Stock or securities convertible into or exercisable for Common Stock. (pp) The Company has filed with the Commission all filings that are required to be filed as of the date hereof with respect to the financial statements of each of the Premiere 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. (qq) The Indenture, as of the date hereof and at the Closing Date, will conform in all material respects to the requirements of the TIA applicable to an indenture which is qualified under the TIA. 31 (ss) Each of the representations and warranties contained in each of the Transaction Documents are true and correct on and as of the date hereof, except as could not have a Material Adverse Effect. 5. INITIAL PURCHASERS' REPRESENTATIONS AND WARRANTIES. Each of the Initial Purchasers, represents and warrants, severally and not jointly, to the Company and the Guarantors and agrees that: (a) Such Initial Purchaser is either a QIB or an Accredited Institution, in either case, with such knowledge and experience in financial and business matters as is necessary in order to evaluate the merits and risks of an investment in the Series A Notes. (b) Such Initial Purchaser (A) is not acquiring the Series A Notes with a view to any distribution thereof or with any present intention of offering or selling any of the Series A Notes in a transaction that would violate the Act or the securities laws of any state of the United States or any other applicable jurisdiction and (B) will be reoffering and reselling the Securities only to (x) QIBs in reliance on the exemption from the registration requirements of the Act provided by Rule 144A, and (y) Accredited Institutions that execute and deliver a letter containing certain representations and agreements in the form attached as ANNEX A to the Offering Memorandum. (c) Such Initial Purchaser agrees that no form of general solicitation or general advertising (within the meaning of Regulation D under the Act) has been or will be used by such Initial Purchaser or any of its representatives in connection with the offer and sale of the Securities pursuant hereto, including, but not limited to, articles, notices or other communications published in any newspaper, magazine or similar medium or broadcast over television or radio, or any seminar or meeting whose attendees have been invited by any general solicitation or general advertising. (d) Such Initial Purchaser agrees that such Initial Purchaser will solicit offers to buy the 32 Securities only from, and will offer to sell the Securities only to, Eligible Purchasers. Each Initial Purchaser further agrees that it will offer to sell the Securities only to, and will solicit offers to buy the Securities only from (A) QIBs who, in purchasing the Securities, will be deemed to have represented and agreed that (x) they are purchasing the Securities for their own accounts or accounts with respect to which they exercise sole investment discretion and that they or such accounts are QIBs and (y) they acknowledge that any sale of such Securities will be made in reliance of Rule 144A under the Act and (B) Accredited Institutions who make the representations contained in, and execute and return to the Initial Purchaser, a certificate in the form of Annex A attached to the Offering Memorandum and (2) Eligible Purchasers that agree that (x) Securities purchased by them may not be resold, pledged or otherwise transferred except within the time period referred to under Rule 144(k) (taking into account the provisions of Rule 144(d) under the Act, if applicable) under the Act, as in effect on the date of the transfer of such Securities, only (I) to JCC, (II) to a person whom the holder reasonably believes is a QIB purchasing in a transaction meeting the requirements of Rule 144A under the Act, (III) pursuant to the exemption from registration provided by Rule 144 or Regulation S under the Act (if available), (IV) to an Accredited Institution which prior to such transfer, furnishes to the Trustee a signed letter containing certain representations and agreements relating to the registration of transfer of this Security (the form of which is substantially the same as Annex A of the Offering Memorandum) and, if such transfer is in respect of an aggregate principal amount of Securities at the time of transfer of less than $250,000, an opinion of counsel acceptable to JCC that such transfer is in compliance with the Act or (V) pursuant to an effective registration statement under the Act and, in each case, in accordance with applicable state securities laws, and (y) will inform each subsequent holder that such subsequent holder is required to, notify any subsequent purchaser from it of the foregoing. 6. INDEMNIFICATION. 33 (a) The Issuers, jointly and severally, agree to indemnify and hold harmless (i) each of the Initial Purchasers 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 Initial Purchasers (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 Initial Purchasers 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 Offering Memorandum (including any amendment or supplement thereto) 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 light of the circumstances under which they were made, not misleading, PROVIDED, HOWEVER, that except insofar as such losses, claims, damages, liabilities, judgments, actions or expenses are caused by an untrue statement or omission or alleged untrue statement or omission that is made in reliance upon and in conformity with information relating to any of the Initial Purchasers furnished in writing to the Issuers by DLJ expressly for use in the Offering Memorandum. 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 Issuers or an Indemnified Person. (b) In case any action or proceeding (including any governmental investigation) shall be brought 34 or asserted against any of the Indemnified Persons with respect to which indemnity may be sought against the Issuers, such Initial Purchaser (or the Initial Purchaser controlled by such controlling person) shall promptly notify the Company in writing (provided, that the failure to give such notice shall not relieve the Issuers 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 Issuers (regardless of whether it is ultimately determined that an Indemnified Party is not entitled to indemnification hereunder). The Issuers 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 Issuers 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 Issuers, jointly and severally, agree to indemnify and hold harmless any Indemnified Person from and against any loss, claim, damage, liability or expense by reason of any settlement of any action effected with the written consent of the Company. Notwithstanding the foregoing sentence, if at any time an Indemnified Person shall have requested the Issuers to reimburse the Indemnified Person for fees and expenses of counsel as contemplated by the second sentence of this paragraph, the Issuers, 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 Issuers shall not have reimbursed the Indemnified Person in accordance with such request prior to the date of such settlement. The Issuers shall not, without the prior written consent of each Indemnified Person, settle or compromise or consent to the entry of judgment in or 35 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 Initial Purchasers agrees, severally and not jointly, to indemnify and hold harmless the Issuers, their directors, any person controlling (within the meaning of Section 15 of the Act or Section 20 of the Exchange Act) the Issuers, and the officers, directors, partners, employees, representatives and agents of each such person, to the same extent as the foregoing indemnity from the Issuers to each of the Indemnified Persons, but only with respect to claims and actions based on information relating to such Initial Purchaser furnished in writing by DLJ expressly for use in the Offering Memorandum. (d) If the indemnification provided for in this Section 6 is unavailable to an indemnified party in respect of any losses, claims, damages, liabilities, judgments, actions or expenses referred to herein, then each indemnifying party, in lieu of indemnifying such indemnified party, shall contribute to the amount paid or payable by such indemnified party as a result of such losses, claims, damages, liabilities, judgments, actions and expenses (i) in such proportion as is appropriate to reflect the relative benefits received by the indemnifying party on the one hand and the indemnified party on the other hand from the offering of the Securities or (ii) if the allocation provided by clause (i) above is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (i) above but also the relative fault of the indemnifying parties and the indemnified party, as well as any other relevant equitable considerations. The relative benefits received by the Issuers, on the one hand, and any of the Initial Purchasers, on the other hand, shall be deemed to be in the same pro- 36 portion as the total proceeds from the offering (net of discounts and commissions but before deducting expenses) received by the Issuers bear to the total discounts and commissions received by such Initial Purchaser, in each case as set forth in the table on the cover page of the Offering Memorandum. The relative fault of the Issuers and the Initial Purchasers 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 Issuers or the Initial Purchasers 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 Issuers set forth herein shall be in addition to any liability or obligation the Issuers may otherwise have to any Indemnified Person. The Issuers and the Initial Purchasers 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 Initial Purchasers 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 Initial Purchasers (and its related Indemnified Persons) shall be required to contribute, in the aggregate, any amount in excess of the amount by which the total discounts and commissions applicable to the Securities purchased by such Initial Purchaser exceeds the amount of any damages which such Initial Purchaser 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 37 (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 Initial Purchasers' obligations to contribute pursuant to this Section 6(d) are several in proportion to the respective number of Securities purchased by each of the Initial Purchasers hereunder and not joint. 7. CONDITIONS OF THE INITIAL PURCHASERS' OBLIGATIONS. The several obligations of the Initial Purchasers 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 Issuers 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 Offering Memorandum shall have been printed and copies distributed to the Initial Purchasers as promptly as practicable following the date of this Agreement or at such other date and time as to which you may agree, (ii) and no stop order suspending the sale of the Securities by the Commission or in any jurisdiction referred to in Section 3(e) of this Agreement shall have been issued and no proceeding for that purpose shall have been commenced or shall be pending or threatened. (c) No action shall have been taken and no statute, rule, regulation or order shall have been enacted, adopted or issued by any governmental agency which would, as of the Closing Date, prevent the issuance of the Securities; and no injunction, restraining order or order of any nature by a Federal or state court of competent jurisdiction shall have been issued as of the Closing Date which would prevent the issuance of the Securities or the consummation of the Pending Transactions. 38 (d) (i) Since the date hereof or since the dates as of which information is given in the Offering Memorandum, 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 Offering Memorandum, 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 Offering Memorandum. (e) The Securities shall have been designated PORTAL securities in accordance with the rules and regulations adopted by the NASD relating to trading in the PORTAL market. (f) 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. (g) 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 Initial Purchasers), 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, 39 has the requisite corporate power and authority to own, lease and operate its properties and to conduct its business as described in the Offering Memorandum, and is duly qualified as a foreign corporation and in good standing in each jurisdiction where the ownership, leasing or operation of property or the conduct of its business requires such qualification, except where the failure to be so qualified could not be reasonably expected to have, singly or in the aggregate, a Material Adverse Effect; and (B) the Issuers have the requisite corporate power and authority to execute, deliver and perform this Agreement and the Registration Rights Agreement; (ii) the Transaction Documents have been duly authorized, executed and delivered by the Issuers, as applicable; (iii) the authorized, issued and outstanding capital stock of the Company is as set forth in the Offering Memorandum under "Capitalization"; (iv) all of the issued and outstanding shares of capital stock of, or other ownership interests in, each Subsidiary have been duly and validly authorized and issued, and the shares of capital stock of, or other ownership interests in, each Subsidiary are owned, directly or through Subsidiaries, by the Company, are fully paid and nonassessable, and are owned free and clear of any Lien, except for Liens pursuant to the Credit Facility; (v) to the knowledge of such counsel (after due inquiry) there are no outstanding subscriptions, rights, warrants, options, calls, convertible securities, commitments of sale or Liens related to or entitling any person to purchase or otherwise to acquire any shares of the capital stock of, or other ownership interest in, any Subsidiary except as disclosed in the Offering Memorandum; 40 (vi) neither the Company nor any of the Subsidiaries is (A) an "investment company" or a company "controlled" by an investment company within the meaning of the Investment Company Act of 1940, as amended, or (B) a "holding company" or a "subsidiary company" of a holding company, or an "affiliate" thereof within the meaning of the Public Utility Holding Company Act of 1935, as amended; (vii) neither the consummation of the transactions contemplated by this Agreement nor the sale, issuance, execution or delivery of the Securities, will violate Regulation G, T, U or X of the Board of Governors of the Federal Reserve System; (viii) when authenticated in accordance with the terms of the Indenture and delivered to and paid for in accordance with the terms of this Agreement, the Guarantee and the Securities will constitute valid and legally binding obligations of the Guarantors and JCC, respectively, enforceable against the Guarantors and JCC, respectively, in accordance with their respective terms and entitled to the benefits of the Indenture, subject to applicable bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and similar laws affecting creditors' rights and remedies generally and to general principles of equity (regardless of whether enforcement is sought in a proceeding at law or in equity) and except to the extent that a waiver of rights under any usury laws may be unenforceable; (ix) the Indenture, assuming due authorization, execution and delivery thereof by the Trustee, constitutes a valid and legally binding agreement of the Issuers, respectively, enforceable against the Issuers, 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 proceed- 41 ing 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 Offering Memorandum; (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 that would be required to be disclosed in the Offering Memorandum if it were a prospectus that was part of a registration statement filed under the Act which is not adequately disclosed in the Offering Memorandum; (xii) the descriptions in the Offering Memorandum of statutes, legal and governmental proceedings and contracts and other documents are accurate in all material respects and fairly present the information that would be required to be shown if it were a prospectus that was part of a registration statement filed under the Act; and such counsel does not know of any legal or governmental proceedings that would be required to be described in the Offering Memorandum if it were a prospectus that was part of a registration statement filed under the Act which are not described as required or of any contracts or documents of a character that would be required to be described in the Offering Memorandum if it were a prospectus that was part of a registration statement filed under the Act which are not described 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) assuming the accuracy of the representations and warranties of the Company 42 contained in paragraphs (y) and (z) of Section 4, and your representations and warranties contained in Section 5 of this Agreement, and assuming compliance by the Company with the covenants of the Company contained in Section 3 and by you with your agreements contained in Section 5 of this Agreement, the issuance and sale of the Securities to you and the offering, resale and delivery of the Securities by you, in each case in the manner contemplated in the Offering Memorandum, are exempt from the registration requirements of the Act and it is not necessary to qualify the Indenture 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 Issuers of the transactions contemplated by this Agreement, except such as have been obtained and made under 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 Issuers, as applicable, or Premiere, of the transactions contemplated by the applicable Transaction Documents, except as disclosed in the Offering Memorandum; the execution and delivery of this Agreement, the Registration Rights Agreement and the Indenture, the issuance and sale of the Securities, the performance of this Agreement and the consummation of the transactions contemplated by this Agreement will not result in a breach or violation of any of (A) any of the respective charters or bylaws of the Company or any of the Subsidiaries or (B) to the knowledge of such counsel (after due inquiry), the terms or provisions of any agreement or instrument which is filed as an exhibit to the Company's most recent annual report on Form 10-K, each subsequently filed quarterly report on Form 10-Q and current report on Form 8-K, to which the Company or any Subsidiaries is a party or by which any of them is bound or to which any of the properties of the Company 43 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) 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; (xvi) 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 Premiere are a party or by which any of them may be bound that would be required to be described in the Offering Memorandum if it were a prospectus that was part of a registration statement filed under the Act other than those described therein 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 that would be required to be so described, or any agreement identified on a schedule attached to the opinion, except for defaults which could not rea- 44 sonably be expected to have a Material Adverse Effect; (xvii) the Company, the Subsidiaries and Premiere, 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; (xviii) the Transaction Documents, assuming the authorization, execution and delivery thereof by the parties other than the Issuers, as applicable, and Premiere 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 (xix) the approval of the transactions contemplated by the Transaction Documents by the shareholders of the Company is not required. (2) Such counsel shall additionally state that such counsel has participated in conferences with officers and other representatives of the Company, representatives of the independent public accountants for the Company, your representatives and your counsel in connection with the preparation of the Offering Memorandum and has considered the matters 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 Offering Memorandum (as amended or supplemented, if 45 applicable), as of the date thereof and as of the date hereof, contained an untrue statement of a material fact or omitted to state a material fact necessary 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 Offering Memorandum. (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 Offering Memorandum (including the statements incorporated by reference in the Offering Memorandum, 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 A 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 B (for purposes of this opinion only, the "Jacor Stations"). Except for the pending applications noted on Schedule A hereto, the Licenses are in full force and effect (and the time within which any administrative or judicial appeal, reconsideration, rehearing or other 46 review might be sought has lapsed with respect to the grant of the authorizations for the currently effective terms, and no such appeal, reconsideration, rehearing, or other review has been taken or instituted), and are held by the relevant Subsidiary, and the expiration date of each License is set forth in Schedule A hereto. Except as indicated on Schedule C to this opinion, the Licenses are not subject to any conditions imposed by the FCC other than those that appear on the Licenses or are customarily imposed by the FCC on radio stations of the same class and type. (iii) Except as listed in Schedule D hereto, there is no proceeding or other administrative action pending or, to such counsel's knowledge, threatened, before the FCC against the Company or any Subsidiary, which, if adversely determined, would materially and adversely affect the business or financial condition of the Company and its Subsidiaries, taken as a whole. To such counsel's knowledge, except as listed on Schedule E to this opinion, the Company and the Subsidiaries have filed with the FCC during the current license term of each License all material reports and forms required to be filed by the Company and the Subsidiaries with the FCC with respect to the Jacor Stations. (iv) The execution 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 Purchase Agreement, the Registration Rights Agreement and the Indenture, (i) do not violate the Communications Act, (ii) do not violate any of the Rules, (iii) do not violate the terms of any of the Licenses, (iv) do not cause any forfeiture or impairment of any License and (v) do not require any consent, approval or authorization of the FCC that has not been obtained. Except as indicated on Schedule F, all necessary applications required by the FCC as of the date hereof for the transfer of control or assignment of the licenses of the 47 stations described in the Offering Memorandum 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, counsel for the Company, to the effect that: (i) when authenticated in accordance with the terms of the Indenture and delivered to and paid for in accordance with the terms of this Agreement, the Guarantee and the Securities will constitute valid and legally binding obligations of the Guarantors and JCC, respectively, enforceable against the Guarantors and JCC, in accordance with their respective terms and entitled to the benefits of the Indenture, subject to applicable bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and similar laws affecting creditors' rights and remedies generally and to general principles of equity (regardless of whether enforcement is sought in a proceeding at law or in equity) and except to the extent that a waiver of rights under any usury laws may be unenforceable; and (ii) the Indenture, assuming due authorization, execution and delivery thereof by the Trustee, constitutes a valid and legally binding agreement of the Issuers, enforceable against each of the Issuers, 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 (h) You shall have received an opinion, dated the Closing Date, of Skadden, Arps, Slate, Meagher & Flom LLP ("Skadden Arps"), counsel for the Initial 48 Purchasers, in form and substance reasonably satisfactory to you. (i) 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., and Ernst & Young LLP, independent public accountants, with respect to the financial statements and certain financial information contained in the Offering Memorandum for each of (i) the Company and the Combined E.F.M. Companies and (ii) Premier, respectively. (j) Prior to or concurrently with the purchase and sale of the Securities hereunder, the Company shall have obtained the approval of the Agents under the Credit Facility approving JCC's issuance of the Notes and the Guarantors' guarantee thereof. (k) 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. (l) Prior to the Closing Date, the Company shall have furnished to you such further information, certificates and documents as you may reasonably request. (m) There shall have been no amendments, alterations, modifications, or waivers of any provisions of the Transaction Documents since the date of the execution and delivery thereof by the parties thereto other than those which under the Act are not required to be disclosed in the Offering Memorandum or any supplement thereto and which have been disclosed to the Initial Purchasers prior to the date hereof. 49 (n) Each of the Issuers, as applicable, and Premiere, 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. (o) Except as is disclosed to the Initial Purchasers in writing, the representations and warranties of the Issuers, as applicable, and Premiere set forth in the Transaction Documents shall be true, accurate and complete in all respects. 8. DEFAULTS. If on the Closing Date any of the Initial Purchasers 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 Initial Purchaser(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 Initial Purchasers, each non-defaulting Initial Purchaser 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 Initial Purchasers, 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 Initial Purchaser or Initial Purchasers, 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 Initial Purchaser 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 Initial Purchaser. If, on the Closing Date any of the Initial Purchasers 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 Initial Purchaser(s) and arrangements satisfactory to the other Initial Purchaser(s) and the Issue- 50 rs 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 Initial Purchaser(s) or the Issuers, except as otherwise provided in this Section 8. In any such case that does not result in termination of this Agreement, the Initial Purchasers or the Issuers may postpone the Closing Date for not longer than seven (7) days, in order that the required changes, if any, in the Offering Memorandum or any other documents or arrangements may be effected. Any action taken under this paragraph shall not relieve a defaulting Initial Purchaser from liability in respect of any default by any such Initial Purchaser under this Agreement. 9. EFFECTIVE DATE OF AGREEMENT AND TERMINATION. This Agreement shall become effective upon the execution and delivery of this Agreement by the parties hereto. 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 of this Agreement, any Material Adverse Change occurs which, in the judgment of any Initial Purchaser, make it impracticable or inadvisable to market the Securities or to enforce contracts for the sale of the Securities, (ii) any outbreak or escalation of hostilities or other national or international calamity or crisis or material adverse change in the financial markets of the United States or elsewhere, or any other substantial national or international calamity or emergency if the effect of such outbreak, escalation, calamity, crisis or emergency would, in the judgment of any Initial Purchaser, make it impracticable or inadvisable to market the Securities or to enforce contracts for the sale of the Securities, (iii) any suspension or limitation of trading generally in securities on the New York Stock Exchange, the American Stock Exchange, the Nasdaq Stock Market or in the over-the-counter markets or any setting of minimum prices for trading on such exchanges or markets, (iv) any declaration of a general banking moratorium by Federal, New York or 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 51 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 Initial Purchaser, 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 Initial Purchasers 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 Initial Purchasers or by or on behalf of the Company, the officers or directors of the Company or any controlling person of the Company, (ii) acceptance of the Securities and payment for them hereunder and (iii) termination of this Agreement. If this Agreement shall be terminated by the Initial Purchasers pursuant to clauses (i) or (vii) of the second paragraph of this Section 9 or because of the failure or refusal on the part of the Company to comply with the terms or to fulfill any of the conditions of this Agreement, the Company agrees to reimburse you for all out-of-pocket expenses (including the fees and disbursements of counsel) incurred by you. Notwithstanding any termination of this Agreement, the Company shall be liable for all expenses which it has agreed to pay pursuant to Section 3(i) 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 River Center Boulevard, 12th Floor, Covington, Kentucky 41011, Attention: Randy Michaels, 52 President, 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 Initial Purchaser, 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 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 bene- 53 fit of and shall be binding upon the Company, the Initial Purchasers, 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 Initial Purchasers 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 Initial Purchaser 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 Initial Purchaser 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. 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. 54 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 and Secretary 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.; EFM PROGRAMMING, INC.; F.M.I. PENNSYLVANIA, INC.; GACC- N26LB, INC.; GACC-340, INC.; GEORGIA NETWORK EQUIPMENT, INC.; GREAT AMERICAN MERCHANDISING GROUP, INC.; GREAT AMERICAN TELEVISION PRODUCTIONS, INC.; INMOBILARIA RADIAL, S.A. DE C.V.*; JACOR BROADCASTING CORPORATION; JACOR BROADCASTING OF ATLANTA, INC.; JACOR BROADCASTING OF COLORADO, INC.; JACOR BROADCASTING OF FLORIDA, INC.; JACOR BROADCASTING OF KNOXVILLE, INC.; JACOR BROADCASTING OF ST. LOUIS, INC.; JACOR BROADCASTING OF SAN DIEGO, INC.; JACOR BROADCASTING OF SARASOTA, INC.; JACOR BROADCASTING OF TAMPA BAY, INC.; JACOR CABLE, INC.; LOCATION PRODUCTIONS, INC.; LOCATION PRODUC- 55 TIONS II, INC.; NOBLE BROADCAST CENTER, INC.; NOBLE BROADCAST GROUP, INC.; NOBLE BROADCAST HOLDINGS, INC.; NOBLE BROADCAST LICENSES, INC.; NOBLE BROADCAST OF COLORADO, INC.; NOBLE BROADCAST OF ST. LOUIS, INC.; NOBLE BROADCAST OF SAN DIEGO, INC.; NOBLE BROADCAST OF TOLEDO, INC.; NOBRO, S.C.*; NOVA MARKETING GROUP, INC.; REGENT BROADCASTING OF CHARLESTON, INC.; REGENT BROADCASTING OF KANSAS CITY, INC.; REGENT BROADCASTING OF LAS VEGAS, INC.; REGENT BROADCASTING OF LAS VEGAS II, INC.; REGENT BROADCASTING OF LOUISVILLE, INC., REGENT BROADCASTING OF LOUISVILLE II, INC.; REGENT BROADCASTING OF SALT LAKE CITY, INC.; REGENT BROADCASTING OF SALT LAKE CITY II, INC.; REGENT LICENSEE OF CHARLESTON, INC.; REGENT LICENSEE OF KANSAS CITY, INC.; REGENT LICENSEE OF LAS VEGAS, INC.; REGENT LICENSEE OF LAS VEGAS II, INC; REGENT LICENSEE OF LOUISVILLE, INC.; REGENT LICENSEE OF LOUISVILLE II, INC.; REGENT LICENSEE OF SALT LAKE CITY, INC.; REGENT LICENSEE OF SALT LAKE CITY, INC.; SPORTS RADIO BROADCASTING, INC.; SPORTS RADIO, INC.; TAFT-TCI SATELLITE SERVICES, INC.; THE SY FISCHER COMPANY AGENCY, INC.; WHOK, INC.; AND VTTV PRODUCTIONS By: /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 56 The foregoing Purchase Agreement is hereby confirmed and accepted as of the date first above written. DONALDSON, LUFKIN & JENRETTE SECURITIES CORPORATION CHASE SECURITIES INC. MERRILL, LYNCH, PIERCE, FENNER & SMITH INCORPORATED Acting on behalf of themselves By: DONALDSON, LUFKIN & JENRETTE SECURITIES CORPORATION By: /s/ Michael K. Hooks ------------------------------------ Name: Michael K. Hooks Title: Managing Director 57 SCHEDULE I Amount of Securities Initial Purchasers - ------------------- be Purchased - ------------------------------------------------------------------- Donaldson, Lufkin & Jenrette Securities Corporation . . . . . . . . . . . . . . . . . . . . . . . $50,000,000 Chase Securities Inc.. . . . . . . . . . . . . . . . . . . . . . . . $50,000,000 Merrill Lynch, Pierce, Fenner & Smith Incorporated . . . . . . . . . . . . . . . . . . . . . . . . $50,000,000 ----------- ----------- Total . . . . . . . . . . . . . . . . . . . . . . . . . . . . .$150,000,000 EX-4.1 3 EXHIBIT 4.1 - -------------------------------------------------------------------------------- - -------------------------------------------------------------------------------- JACOR COMMUNICATIONS COMPANY ISSUER, AND JACOR COMMUNICATIONS, INC., PARENT GUARANTOR AND UNCONDITIONALLY GUARANTEED BY THE SUBSIDIARY GUARANTORS NAMED HEREIN AND THE BANK OF NEW YORK TRUSTEE ------------------------------ INDENTURE Dated as of June 17, 1997 -------------------------- $150,000,000 83/4% Senior Subordinated Notes due 2007 - -------------------------------------------------------------------------------- - -------------------------------------------------------------------------------- TABLE OF CONTENTS PAGE ---- ARTICLE I DEFINITIONS AND INCORPORATION BY REFERENCE . . . . 1 SECTION 1.1. Definitions. . . . . . . . . . . . . . . . . . . . . 1 SECTION 1.2. Incorporation by Reference of TIA. . . . . . . . . . 29 SECTION 1.3. Rules of Construction. . . . . . . . . . . . . . . . 30 ARTICLE II THE SECURITIES . . . . . . . . . . . 30 SECTION 2.1. Form and Dating. . . . . . . . . . . . . . . . . . . 30 SECTION 2.2. Execution and Authentication . . . . . . . . . . . . 31 SECTION 2.3. Registrar and Paying Agent . . . . . . . . . . . . . 32 SECTION 2.4. Paying Agent to Hold Assets in Trust. . . . . . . . . . . . . . . . . . . . . 33 SECTION 2.5. Securityholder Lists . . . . . . . . . . . . . . . . 34 SECTION 2.6. Transfer and Exchange. . . . . . . . . . . . . . . . 35 SECTION 2.7. Replacement Securities . . . . . . . . . . . . . . . 42 SECTION 2.8. Outstanding Securities . . . . . . . . . . . . . . . 42 SECTION 2.9. Treasury Securities. . . . . . . . . . . . . . . . . 43 SECTION 2.10. Temporary Securities . . . . . . . . . . . . . . . . 43 SECTION 2.11. Cancellation . . . . . . . . . . . . . . . . . . . . 44 SECTION 2.12. Defaulted Interest . . . . . . . . . . . . . . . . . 44 SECTION 2.13. CUSIP Numbers. . . . . . . . . . . . . . . . . . . . 46 ARTICLE III REDEMPTION . . . . . . . . . . . . 46 SECTION 3.1. Right of Redemption. . . . . . . . . . . . . . . . . 46 SECTION 3.2. Notices to Trustee and Paying Agent. . . . . . . . . . . . . . . . . . . 46 SECTION 3.3. Selection of Securities to Be Redeemed . . . . . . . . . . . . . . . . . . . 47 SECTION 3.4. Notice of Redemption . . . . . . . . . . . . . . . . 47 SECTION 3.5. Effect of Notice of Redemption . . . . . . . . . . . 49 SECTION 3.6. Deposit of Redemption Price. . . . . . . . . . . . . 49 SECTION 3.7. Securities Redeemed in Part. . . . . . . . . . . . . 50 i PAGE ---- ARTICLE IV COVENANTS. . . . . . . . . . . . . 50 SECTION 4.1. Payment of Securities. . . . . . . . . . . . . . . . 50 SECTION 4.2. Maintenance of Office or Agency. . . . . . . . . . . 50 SECTION 4.3. Limitation on Restricted Payments. . . . . . . . . . 51 SECTION 4.4. Corporate Existence. . . . . . . . . . . . . . . . . 52 SECTION 4.5. Payment of Taxes and Other Claims. . . . . . . . . . 53 SECTION 4.6. Maintenance of Properties and Insurance . . . . . . . . . . . . . . . . . . 53 SECTION 4.7. Compliance Certificate; Notice of Default. . . . . . . . . . . . . . . . . . . . 54 SECTION 4.8. Reports. . . . . . . . . . . . . . . . . . . . . . . 55 SECTION 4.9. Limitation on Status as Investment Company. . . . . . . . . . . . . . . . 55 SECTION 4.10. Limitation on Transactions with Affiliates . . . . . . . . . . . . . . . . . 56 SECTION 4.11. Limitation on Incurrence of Additional Indebtedness and Disqualified Capital Stock. . . . . . . . . . . . 56 SECTION 4.12 Limitations on Dividends and Other Payment Restrictions Affecting Subsidiaries. . . . . . . . . . . . . . 57 SECTION 4.13. Limitations on Layering Indebtedness; Liens . . . . . . . . . . . . . . . 58 SECTION 4.14. Limitation on Sale of Assets and Subsidiary Stock. . . . . . . . . . . . . . . 59 SECTION 4.15. Limitation on Asset Swaps. . . . . . . . . . . . . . 65 SECTION 4.16. Limitation on Lines of Business. . . . . . . . . . . 65 SECTION 4.17. Restriction on Sale and Issuance of Subsidiary Stock . . . . . . . . . . . . . . . 66 SECTION 4.18. Waiver of Stay, Extension or Usury Laws. . . . . . . . . . . . . . . . . . . . 66 SECTION 4.19. 144A Information Requirement . . . . . . . . . . . . 66 ARTICLE V SUCCESSOR CORPORATION. . . . . . . . . . 67 SECTION 5.1. Limitation on Merger, Sale or Consolidation . . . . . . . . . . . . . . . . . . 67 SECTION 5.2. Successor Corporation Substituted. . . . . . . . . . 68 ii PAGE ---- ARTICLE VI EVENTS OF DEFAULT AND REMEDIES . . . . . . . 64 SECTION 6.1. Events of Default. . . . . . . . . . . . . . . . . . 68 SECTION 6.2. Acceleration of Maturity Date; Rescission and Annulment. . . . . . . . . . . . . 70 SECTION 6.3. Collection of Indebtedness and Suits for Enforcement by Trustee. . . . . . . . . . . . . . . . . . . . 72 SECTION 6.4. Trustee May File Proofs of Claim . . . . . . . . . . . . . . . . . . . . . . 73 SECTION 6.5. Trustee May Enforce Claims Without Possession of Securities. . . . . . . . . . . . . . . . . . . . 74 SECTION 6.6. Priorities . . . . . . . . . . . . . . . . . . . . . 74 SECTION 6.7. Limitation on Suits. . . . . . . . . . . . . . . . . 75 SECTION 6.8. Unconditional Right of Holders to Receive Principal, Premium and Interest. . . . . . . . . . . . . . . . . . . 76 SECTION 6.9. Rights and Remedies Cumulative . . . . . . . . . . . 76 SECTION 6.10. Delay or Omission Not Waiver . . . . . . . . . . . . 77 SECTION 6.11. Control by Holders . . . . . . . . . . . . . . . . . 77 SECTION 6.12. Waiver of Past Default . . . . . . . . . . . . . . . 77 SECTION 6.13. Undertaking for Costs. . . . . . . . . . . . . . . . 78 SECTION 6.14. Restoration of Rights and Remedies. . . . . . . . . . . . . . . . . . . . . 79 ARTICLE VII TRUSTEE . . . . . . . . . . . . . 79 SECTION 7.1. Duties of Trustee. . . . . . . . . . . . . . . . . . 79 SECTION 7.2. Rights of Trustee. . . . . . . . . . . . . . . . . . 81 SECTION 7.3. Individual Rights of Trustee . . . . . . . . . . . . 82 SECTION 7.4. Trustee's Disclaimer . . . . . . . . . . . . . . . . 82 SECTION 7.5. Notice of Default. . . . . . . . . . . . . . . . . . 83 SECTION 7.6. Reports by Trustee to Holders. . . . . . . . . . . . 83 SECTION 7.7. Compensation and Indemnity . . . . . . . . . . . . . 83 SECTION 7.8. Replacement of Trustee . . . . . . . . . . . . . . . 85 SECTION 7.9. Successor Trustee by Merger, Etc . . . . . . . . . . 86 SECTION 7.10. Eligibility; Disqualification. . . . . . . . . . . . 86 iii PAGE ---- SECTION 7.11. Preferential Collection of Claims Against the Company. . . . . . . . . . . . 86 ARTICLE VIII DISCHARGE; LEGAL DEFEASANCE AND COVENANT DEFEASANCE . . 87 SECTION 8.1. Discharge; Option to Effect Legal Defeasance or Covenant Defeasance. . . . . . . . . . . . . . . . . . . . 87 SECTION 8.2. Legal Defeasance and Discharge . . . . . . . . . . . 87 SECTION 8.3. Covenant Defeasance. . . . . . . . . . . . . . . . . 88 SECTION 8.4. Conditions to Legal or Covenant Defeasance. . . . . . . . . . . . . . . . . . . . 89 SECTION 8.5. Deposited Cash and U.S. Government Obligations to be Held in Trust; Other Miscellaneous Provisions. . . . . . . . . . . . . 91 SECTION 8.6. Repayment to the Company . . . . . . . . . . . . . . 91 SECTION 8.7. Reinstatement. . . . . . . . . . . . . . . . . . . . 92 ARTICLE IX AMENDMENTS, SUPPLEMENTS AND WAIVERS . . . . . . 93 SECTION 9.1. Supplemental Indentures Without Consent of Holders. . . . . . . . . . . . 93 SECTION 9.2. Amendments, Supplemental Indentures and Waivers with Consent of Holders . . . . . . . . . . . . . 94 SECTION 9.3. Compliance with TIA. . . . . . . . . . . . . . . . . 95 SECTION 9.4. Revocation and Effect of Consents. . . . . . . . . . 96 SECTION 9.5. Notation on or Exchange of Securities. . . . . . . . . . . . . . . . . . . . 97 SECTION 9.6. Trustee to Sign Amendments, Etc. . . . . . . . . . . 97 ARTICLE X SUBORDINATION. . . . . . . . . . . . 97 SECTION 10.1. Securities Subordinated to Senior Debt . . . . . . . . . . . . . . . . . . . 97 iv PAGE ---- SECTION 10.2. No Payment on Securities in Certain Circumstances . . . . . . . . . . . . . . 98 SECTION 10.3. Securities Subordinated to Prior Payment of All Senior Debt on Dissolution, Liquidation or Reorganization. . . . . . . . . . . . . . . . . . 100 SECTION 10.4. Securityholders to Be Subrogated to Rights of Holders of Senior Debt . . . . . . . . . . . . . . . . . . . 101 SECTION 10.5. Obligations of the Company and the Guarantors Unconditional. . . . . . . . . . . 102 SECTION 10.6. Trustee Entitled to Assume Payments Not Prohibited in Absence of Notice . . . . . . . . . . . . . . . . 104 SECTION 10.7. Application by Trustee of Assets Deposited with It. . . . . . . . . . . . . 104 SECTION 10.8. Subordination Rights Not Impaired by Acts or Omissions of the Company, the Guarantors or Holders of Senior Debt . . . . . . . . . . . . 104 SECTION 10.9. Securityholders Authorize Trustee to Effectuate Subordination of Securities . . . . . . . . . . . 105 SECTION 10.10. Right of Trustee to Hold Senior Debt . . . . . . . . . . . . . . . . . . . 105 SECTION 10.11. Article X Not to Prevent Events of Default. . . . . . . . . . . . . . . . . . . . 106 SECTION 10.12. No Fiduciary Duty of Trustee to Holders of Senior Debt. . . . . . . . . . . . . . 106 ARTICLE XI RIGHT TO REQUIRE REPURCHASE . . . . . . . . 106 SECTION 11.1. Repurchase of Securities at Option of the Holder Upon a Change of Control . . . . . . . . . . . . . . . 106 ARTICLE XII GUARANTY. . . . . . . . . . . . . 110 SECTION 12.1. Guaranty . . . . . . . . . . . . . . . . . . . . . . 110 v PAGE ---- SECTION 12.2. Execution and Delivery of Guaranty. . . . . . . . . . . . . . . . . . . . . 113 SECTION 12.3. Subsidiary Guarantors. . . . . . . . . . . . . . . . 113 SECTION 12.4. Guarantor May Consolidate, Etc., on Certain Terms. . . . . . . . . . . . . . . . . 113 SECTION 12.5. Release of Guarantors. . . . . . . . . . . . . . . . 115 SECTION 12.6. Certain Bankruptcy Events. . . . . . . . . . . . . . 116 ARTICLE XIII MISCELLANEOUS. . . . . . . . . . . . 116 SECTION 13.1. TIA Controls . . . . . . . . . . . . . . . . . . . . 116 SECTION 13.2. Notices. . . . . . . . . . . . . . . . . . . . . . . 116 SECTION 13.3. Communications by Holders with Other Holders . . . . . . . . . . . . . . . . . . 118 SECTION 13.4. Certificate and Opinion as to Conditions Precedent. . . . . . . . . . . . . . . 118 SECTION 13.5. Statements Required in Certificate or Opinion. . . . . . . . . . . . . . 118 SECTION 13.6. Rules by Trustee, Paying Agent, Registrar . . . . . . . . . . . . . . . . . . . . 119 SECTION 13.7. Non-Business Days. . . . . . . . . . . . . . . . . . 119 SECTION 13.8. Governing Law. . . . . . . . . . . . . . . . . . . . 119 SECTION 13.9. No Adverse Interpretation of Other Agreements. . . . . . . . . . . . . . . . . 120 SECTION 13.10. No Recourse against Others . . . . . . . . . . . . . 120 SECTION 13.11. Successors . . . . . . . . . . . . . . . . . . . . . 120 SECTION 13.12. Duplicate Originals. . . . . . . . . . . . . . . . . 121 SECTION 13.13. Severability . . . . . . . . . . . . . . . . . . . . 121 SECTION 13.14. Table of Contents, Headings, Etc . . . . . . . . . . 121 SECTION 13.15. Registration Rights. . . . . . . . . . . . . . . . . 121 SIGNATURES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 122 Exhibit A - Form of Security . . . . . . . . . . . . . . . . . . . . . . A-1 vi INDENTURE, dated as of June 17, 1997, by and among Jacor Communications Company, a Florida corporation (the "Company"), Jacor Communications, Inc., a Delaware corporation (the "Parent Guarantor"), the Subsidiary Guarantors referred to below and The Bank of New York, a New York banking corporation, as trustee (the "Trustee"). Each party hereto agrees as follows for the equal and ratable benefit of the Holders of the Company's 83/4% Series A Senior Subordinated Notes due 2007 and for the 83/4% Series B Subordinated Notes due 2007: ARTICLE I DEFINITIONS AND INCORPORATION BY REFERENCE SECTION 1.1 DEFINITIONS. "ACCELERATION NOTICE" shall have the meaning specified in Section 6.2. "ACCEPTANCE AMOUNT" shall have the meaning specified in Section 4.14. "ACQUIRED INDEBTEDNESS" means Indebtedness or Disqualified Capital Stock of any person existing at the time such person becomes a Subsidiary of the Company, including by designation, or is merged or consolidated into or with either of the Company or one of its Subsidiaries; provided, that such Indebtedness was not incurred in anticipation of, or in connection with, and was outstanding prior to such person becoming a Subsidiary of the Company. "ACQUISITION" means the purchase or other acquisition of any person or substantially all the assets of any person by any other person, whether by purchase, merger, consolidation, or other transfer, and whether or not for consideration. "AFFILIATE" means any person directly or indirectly controlling or controlled by or under direct or indirect common control with the Company. For purposes of this definition, the term "control" means the power to direct the management and policies of a person, directly or through one or more intermediaries, whether through the ownership of voting securities, by contract, or otherwise, PROVIDED, that, a Beneficial Owner of 10% or more of the total voting power normally entitled to vote in the election of directors, managers or trustees, as applicable, shall for such purposes be deemed to constitute control. "AFFILIATE TRANSACTION" shall have the meaning specified in Section 4.10. "AGENT" means any authenticating agent, Registrar, Paying Agent or transfer agent. "ASSET SALE" shall have the meaning specified in Section 4.14. "ASSET SALE DATE" shall have the meaning specified in Section 4.14. "ASSET SALE OFFER" shall have the meaning specified in Section 4.14. "ASSET SALE OFFER AMOUNT" shall have the meaning specified in Section 4.14. "ASSET SALE OFFER PERIOD" shall have the meaning specified in Section 4.14. "ASSET SALE OFFER PRICE" shall have the meaning specified in Section 4.14. "ASSET SWAP" means the execution of a definitive agreement, subject only to regulatory approval and other customary closing conditions, that the Company in good faith believes will be satisfied, for a substantially concurrent purchase and sale, or exchange, of Productive Assets between the Company or any of its Subsidiaries and another person or group of affiliated persons; provided that any amendment to or waiver of any closing condition which individually or in the aggregate is material to the Asset Swap shall be deemed to be a new Asset Swap. "AVERAGE LIFE" means, as of the date of determination, with respect to any security or instrument, the quotient obtained by dividing (i) the sum of (a) the product of the number of years from the date of determination to the date or dates of each successive scheduled principal (or redemption) payment of such security or instrument and (b) the amount of each such respective principal (or redemption) 2 payment by (ii) the sum of all such principal (or redemption) payments. "BANKRUPTCY LAW" means Title 11, U.S. Code, or any similar Federal, state or foreign law for the relief of debtors. "BENEFICIAL OWNER" or "BENEFICIAL OWNER" for purposes of the definition of Change of Control has the meaning attributed to it in Rules 13d-3 and 13d-5 under the Exchange Act (as in effect on the Issue Date) whether or not applicable, except that a "person" shall be deemed to have "beneficial ownership" of all shares that any such person has the right to acquire, whether such right is exercisable immediately or only after the passage of time. "BOARD OF DIRECTORS" means, with respect to any person, the Board of Directors of such person or any committee of the Board of Directors of such person authorized, with respect to any particular matter, to exercise the power of the Board of Directors of such person. "BOARD RESOLUTION" means, with respect to any person, a duly adopted resolution of the Board of Directors of such or the executive committee of such Board of Directors of such person. "BUSINESS DAY" means each Monday, Tuesday, Wednesday, Thursday and Friday which is not a day on which banking institutions in New York, New York are authorized or obligated by law or executive order to close. "CAPITAL STOCK" means, with respect to any corporation, any and all shares, interests, rights to purchase (other than convertible or exchangeable Indebtedness), warrants, options, participations or other equivalents of or interests (however designated) in stock issued by that corporation. "CAPITAL LEASE" means a lease, the payments on which would be capitalized for financial reporting purposes in accordance with GAAP. "CAPITALIZED LEASE OBLIGATIONS" means rental obligations under a lease that are required to be capitalized for financial reporting purposes in accordance with GAAP, and the amount of Indebtedness represented by such 3 obligations shall be the capitalized amount of such obligations, as determined in accordance with GAAP. "CASH" or "CASH" means such coin or currency of the United States of America as at the time of payment shall be legal tender for the payment of public and private debts. "CASH EQUIVALENT" means (i) securities issued directly or fully guaranteed or insured by the United States of America or any agency or instrumentality thereof (provided that the full faith and credit of the United States of America is pledged in support thereof) or (ii) time deposits and certificates of deposit with, and commercial paper issued by the parent corporation of, any domestic commercial bank of recognized standing having capital and surplus in excess of $500.0 million and commercial paper issued by others rated at least A-2 or the equivalent thereof by Standard & Poor's Corporation or at least P-2 or the equivalent thereof by Moody's Investors Service, Inc. and in each case maturing within one year after the date of acquisition. "CHANGE OF CONTROL" means any transaction or series of transactions in which any of the following occurs: (i) any merger or consolidation of the Company with or into any person or any sale, transfer or other conveyance, whether direct or indirect, of all or substantially all of any of the assets of the Company, on a consolidated basis, in one transaction or a series of related transactions, if, immediately after giving effect to such transaction(s), any "person" or "group" (as such terms are used for purposes of Sections 13(d) and 14(d) of the Exchange Act, whether or not applicable) (other than an Excluded Person) is or becomes the "beneficial owner," directly or indirectly, of more than 50% of the total voting power in the aggregate normally entitled to vote in election of directors, managers, or trustees, as applicable, of the transferee(s) or surviving entity or entities, (ii) any "person" or "group" (as such terms are used for purposes of Sections 13(d) and 14(d) of the Exchange Act, whether or not applicable) (other than an Excluded Person) is or becomes the "beneficial owner," directly or indirectly, of more than 50% of the total voting power in the aggregate of all classes of Capital Stock of the Company then outstanding normally entitled to vote in elections of directors, or 4 (iii) during any period of 12 consecutive months after the Issue Date, individuals who at the beginning of any such 12-month period constituted the Board of Directors of the Company (together with any new directors whose election by such Board or whose nomination for election by the shareholders of JCC was approved by a vote of a majority of the directors then still in office who were either directors at the beginning of such period or whose election or nomination for election was previously so approved) cease for any reason to constitute a majority of the Board of Directors of the Company then in office. "CHANGE OF CONTROL OFFER" shall have the meaning specified in Section 11.1. "CHANGE OF CONTROL OFFER PERIOD" shall have the meaning specified in Section 11.1. "CHANGE OF CONTROL PURCHASE DATE" shall have the meaning specified in Section 11.1. "CHANGE OF CONTROL PURCHASE PRICE" shall have the meaning specified in Section 11.1. "CHANGE OF CONTROL PUT DATE" shall have the meaning specified in Section 11.1. "CODE" means the Internal Revenue Code of 1986, as amended. "COMMISSION" means the SEC. "COMPANY" means the party named as the "Company" in the first paragraph of this Indenture until a successor replaces it pursuant to the applicable provisions of this Indenture and, thereafter, shall mean such successor. The foregoing sentence shall likewise apply to any subsequent such successor or successors. "CONSOLIDATED" or "CONSOLIDATED" means determined on a consolidated basis in accordance with GAAP. "CONSOLIDATED EBITDA" means, with respect to any person, for any period, the Consolidated Net Income of such person for such period adjusted to add thereto (to the extent deducted from net revenues in determining Consolidated Net Income), without duplication, the sum of (i) Consoli- 5 dated income tax expense, (ii) Consolidated depreciation and amortization expense, provided that consolidated depreciation and amortization of a Subsidiary that is a less than wholly owned Subsidiary shall only be added to the extent of the equity interest of the Company in such Subsidiary, (iii) other noncash charges (including amortization of goodwill and other intangibles), (iv) Consolidated Fixed Charges, and less the amount of all cash payments made by such person or any of its Subsidiaries during such period to the extent such payments relate to non-cash charges that were added back in determining Consolidated EBITDA for such period or any prior period. "CONSOLIDATED FIXED CHARGES" of any person means, for any period, the aggregate amount (without duplication and determined in each case in accordance with GAAP) of (a) interest expensed or capitalized, paid, accrued, or scheduled to be paid or accrued (including, in accordance with the following sentence, interest attributable to Capitalized Lease Obligations) of such person and its Consolidated Subsidiaries during such period, including (i) original issue discount and non-cash interest payments or accruals on any Indebtedness, (ii) the interest portion of all deferred payment obligations, and (iii) all commissions, discounts and other fees and charges owed with respect to bankers' acceptances and letters of credit financings and currency and Interest Swap and Hedging Obligations, in each case to the extent attributable to such period, and (b) the amount of dividends accrued or payable (or guaranteed) by such person or any of its Consolidated Subsidiaries in respect of Preferred Stock (other than by Subsidiaries of such person to such person or such person's wholly owned Subsidiaries). For purposes of this definition, (x) interest on a Capitalized Lease Obligation shall be deemed to accrue at an interest rate reasonably determined by the Company to be the rate of interest implicit in such Capitalized Lease Obligation in accordance with GAAP and (y) interest expense attributable to any Indebtedness represented by the guaranty by such person or a Subsidiary of such person of an obligation of another person shall be deemed to be the interest expense attributable to the Indebtedness guaranteed. "CONSOLIDATED NET INCOME" means, with respect to any person for any period, the net income (or loss) of such person and its Consolidated Subsidiaries (determined on a consolidated basis in accordance with GAAP) for such period, adjusted to exclude (only to the extent included in comput- 6 ing such net income (or loss) and without duplication): (a) all gains or losses which are either noncash or extraordinary (as determined in accordance with GAAP) or are either unusual or nonrecurring (including any gain from the sale or other disposition of assets outside the ordinary course of business or from the issuance or sale of any capital stock), (b) the net income, if positive, of any person, other than a wholly owned Consolidated Subsidiary, in which such person or any of its Consolidated Subsidiaries has an interest, except to the extent of the amount of any dividends or distributions actually paid in cash to such person or a wholly owned Consolidated Subsidiary of such person during such period, but in any case not in excess of such person's PRO RATA share of such person's net income for such period, (c) the net income or loss of any person acquired in a pooling of interests transaction for any period prior to the date of such acquisition, (d) the net income, if positive, of any of such person's Consolidated Subsidiaries to the extent that the declaration or payment of dividends or similar distributions is not at the time permitted by operation of the terms of its charter or bylaws or any other agreement, instrument, judgment, decree, order, statute, rule or governmental regulation applicable to such Consolidated Subsidiary. "CONSOLIDATED SUBSIDIARY" means, for any person, each Subsidiary of such person (whether now existing or hereafter created or acquired) the financial statements of which are consolidated for financial statement reporting purposes with the financial statements of such person in accordance with GAAP. "COVENANT DEFEASANCE" shall have the meaning specified in Section 8.3. "CREDIT FACILITY" means the Credit Agreement dated as of June 12, 1996, and as amended and restated as of February 14, 1997, by and among Chase Manhattan Bank, as Administrative Agent, Banque Paribas, as Documentation Agent, and Bank of America, Illinois, as Syndication Agent, certain financial institutions from time to time party thereto, including any related notes, guarantees, collateral documents, instruments, letters of credit, reimbursement obligations and other agreements executed by or binding on the Company, any of its Subsidiaries and/or the Parent Guarantor (or any successors or assigns) in connection therewith (collectively, the "Related Documents"), as such 7 Credit Agreement and/or Related Documents may be amended, restated, supplemented, renewed, replaced or otherwise modified from time to time whether or not with the same agent, trustee, representative lenders or holders, and, subject to the proviso to the next succeeding sentence, irrespective of any changes in the terms and conditions thereof. Without limiting the generality of the foregoing, the term "Credit Facility" shall include agreements in respect of Interest Swap and Hedging Obligations with lenders (or affiliates thereof) party to the Credit Facility and shall also include any amendment, amendment and restatement, renewal, extension, restructuring, supplement or modification in whole or in part to any Credit Facility and all refundings, refinancings and replacements in whole or in part of any Credit Facility, including, without limitation, any agreement or agreements (i) extending the maturity of any Indebtedness incurred thereunder or contemplated thereby, (ii) adding or deleting borrowers or guarantors thereunder, (iii) increasing the amount of Indebtedness incurred thereunder or available to be borrowed thereunder, provided that on the date such Indebtedness is incurred it would be permitted by paragraph (f) under the definition of Permitted Indebtedness, or (iv) otherwise altering the terms and conditions thereof. "CUSTODIAN" means any receiver, trustee, assignee, liquidator, sequestrator or similar official under any Bankruptcy Law. "DEFAULT" means any event or condition that is, or after notice or passage of time or both would be, an Event of Default. "DEFAULTED INTEREST" shall have the meaning specified in Section 2.12. "DEFINITIVE SECURITIES" means Securities that are in the form of Security attached hereto as Exhibit A that does not include the paragraph and schedule referred to in footnotes 1 and 2, respectively. "DEPOSITARY" means, with respect to the Securities issuable or issued in whole or in part in global form, the person specified in Section 2.3 as the Depositary with respect to the Securities, until a successor shall have been appointed and become such pursuant to the applicable provi- 8 sion of this Indenture, and, thereafter, "Depositary" shall mean or include such successor. "DISQUALIFIED CAPITAL STOCK" means (a) except as set forth in (b), with respect to any person, Equity Interests of such person that, by its terms or by the terms of any security into which it is convertible, exercisable or exchangeable, is, or upon the happening of an event or the passage of time would be, required to be redeemed or repurchased (including at the option of the holder thereof) by such person or any of its Subsidiaries, in whole or in part, on or prior to the Stated Maturity of the Securities, and (b) with respect to any Subsidiary of such person (including with respect to any Subsidiary of the Company), any Equity Interests other than any common equity with no preference, privileges, or redemption or repayment provisions. "DTC" shall have the meaning specified in Section 2.3. "EQUITY INTEREST" of any person means any shares, interests, participations or other equivalents (however designated) in such person's equity, and shall in any event include any Capital Stock issued by, or partnership interests in, such person. "ERISA" means the Employee Retirement Income Security Act of 1974, as amended from time to time, and any successor statute. "EVENT OF DEFAULT" shall have the meaning specified in Section 6.1. "EVENT OF LOSS" means, with respect to any property or asset, any (i) loss, destruction or damage of such property or asset or (ii) any condemnation, seizure or taking, by exercise of the power of eminent domain or otherwise, of such property or asset, or confiscation or requisition of the use of such property or asset. "EXCESS PROCEEDS" shall have the meaning specified in Section 4.14. "EXCHANGE ACT" means the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated by the SEC thereunder. 9 "EXCLUDED PERSON" means Zell/Chilmark Fund L.P. and all Related Persons of such person. "EXCHANGE SECURITIES" means the 8 3/4% Series B Senior Subordinated Notes due 2007, as supplemented from time to time in accordance with the terms hereof, to be issued pursuant to this Indenture in connection with the offer to exchange Securities for the Initial Securities that may be made by the Company and the Guarantors pursuant to the Registration Rights Agreement that contains the changes referred to in footnotes 1, 2, 4, 5 and 7 to the form of Security attached hereto as Exhibit A. "EXEMPTED AFFILIATE TRANSACTION" means (a) customary employee compensation arrangements approved by a majority of independent (as to such transactions) members of the Board of Directors of the Company, (b) dividends permitted under Section 4.3 of this Indenture payable, in form and amount, on a PRO RATA basis to all holders of Common Stock of the Parent Guarantor, (c) transactions solely between the Company and any of its Wholly owned Subsidiaries or solely among Wholly owned Subsidiaries of the Company, and (d) payments to Zell/Chilmark Fund L.P or its Affiliates for reasonable and customary fees and expenses for financial advisory and investment banking services provided to the Parent Guarantor and the Company, and (e) payments to the Parent Guarantor made in accordance with the Tax Sharing Agreement. "EXISTING ASSETS" means assets of the Company existing at the Issue Date (other than cash, Cash Equivalents or inventory held for resale in the ordinary course of business) and including proceeds of any sale of such assets and assets acquired in whole or in part with proceeds from the sale from any such assets. "EXISTING INDEBTEDNESS" means, with respect to the Company, Indebtedness existing or outstanding at the Issue Date. "FAIR MARKET VALUE" or "FAIR MARKET VALUE" means, with respect to any assets or properties, the amount at which such assets or properties would change hands between a willing buyer and a willing seller, within a commercially reasonable time, each having reasonable knowledge of the relevant facts, neither being under a compulsion to sell or buy, as such amount is determined by (i) the Board of Direc- 10 tors of either of the Company acting in good faith or (ii) an appraisal or valuation firm of national or regional standing selected by the Company, with experience in the appraisal or valuation of properties or assets of the type for which Fair Market Value is being determined. "FINAL PUT DATE" shall have the meaning specified in Section 4.14. "FUTURE SUBSIDIARY GUARANTOR" shall have the meaning specified in Section 12.3. "GAAP" means United States generally accepted accounting principles set forth in the opinions and pronouncements of the Accounting Principles Board of the American Institute of Certified Public Accountants and statements and pronouncements of the Financial Accounting Standards Board or in such other statements by such other entity as approved by a significant segment of the accounting profession as in effect on the Issue Date unless otherwise specified. "GLOBAL SECURITY" means a Security that contains the paragraph and schedule referred to in footnotes 3 and 6, respectively, in the form of Security attached hereto as Exhibit A. "GUARANTOR" means (i) the Parent Guarantor identified in the following sentence and (ii) any Subsidiary Guarantors that are or become Guarantors pursuant to the terms of this Indenture, but excluding any Persons whose guarantees have been released pursuant to the terms of this Indenture. The Parent Guarantor is Jacor Communications, Inc., a Delaware corporation. "GUARANTY" shall have the meaning provided in Section 12.1. "HOLDER" or "SECURITYHOLDER" means the person in whose name a Security is registered on the Registrar's books. "INCUR" or "INCUR" shall have the meaning specified in Section 4.11. "INCURRENCE DATE" shall have the meaning specified in Section 4.11. 11 "INDEBTEDNESS" of any person means, without duplication, (a) all liabilities and obligations, contingent or otherwise, of such any person, (i) in respect of borrowed money (whether or not the recourse of the lender is to the whole of the assets of such person or only to a portion thereof), (ii) evidenced by bonds, notes, debentures or similar instruments, (iii) representing the balance deferred and unpaid of the purchase price of any property or services, except those incurred in the ordinary course of its business that would constitute ordinarily a trade payable to trade creditors, (iv) evidenced by bankers' acceptances or similar instruments issued or accepted by banks, (v) relating to any Capitalized Lease Obligation, or (vi) evidenced by a letter of credit or a reimbursement obligation of such person with respect to any letter of credit; (b) all net obligations of such person under Interest Swap and Hedging Obligations; (c) all liabilities and obligations of others of the kind described in the preceding clause (a) or (b) that such person has guaranteed or that is otherwise its legal liability or which are secured by any assets or property of such person and all obligations to purchase, redeem or acquire any Equity Interests; and (d) all Disqualified Capital Stock of such person (valued at the greater of its voluntary or involuntary maximum fixed repurchase price plus accrued and unpaid dividends). For purposes hereof, the "maximum fixed repurchase price" of any Disqualified Capital Stock which does not have a fixed repurchase price shall be calculated in accordance with the terms of such Disqualified Capital Stock as if such Disqualified Capital Stock were purchased on any date on which Indebtedness shall be required to be determined pursuant to this Indenture, and if such price is based upon, or measured by, the Fair Market Value of such Disqualified Capital Stock, such Fair Market Value to be determined in good faith by the board of directors of the issuer (or managing general partner of the issuer) of such Disqualified Capital Stock. "INDENTURE" means this Indenture, as amended or supplemented from time to time in accordance with the terms hereof. "INITIAL PURCHASERS" means Donaldson, Lufkin & Jenrette Securities Corporation, Chase Securities Inc. and Merrill Lynch, Pierce, Fenner & Smith Incorporated. "INITIAL SECURITIES" means the 8 3/4% Series A Senior Subordinated Notes due 2007, as supplemented from time to 12 time in accordance with the terms hereof, issued under this Indenture that contains changes referred to in footnotes 1, 2, 4, 5 and 7 to the form of Security attached hereto as Exhibit A. "INTEREST PAYMENT DATE" means the stated due date of an installment of interest on the Securities. "INTEREST SWAP AND HEDGING OBLIGATION" means any obligation of any person pursuant to any interest rate swap agreement, interest rate cap agreement, interest rate collar agreement, interest rate exchange agreement, currency exchange agreement or any other agreement or arrangement designed to protect against fluctuations in interest rates or currency values, including, without limitation, any arrangement whereby, directly or indirectly, such person is entitled to receive from time to time periodic payments calculated by applying either a fixed or floating rate of interest on a stated notional amount in exchange for periodic payments made by such person calculated by applying a fixed or floating rate of interest on the same notional amount. "INVESTMENT" by any person in any other person means (without duplication) (a) the acquisition (whether by purchase, merger, consolidation or otherwise) by such person (whether for cash, property, services, securities or otherwise) of capital stock, bonds, notes, debentures, partnership or other ownership interests or other securities, including any options or warrants, of such other person or any agreement to make any such acquisition; (b) the making by such person of any deposit with, or advance, loan or other extension of credit to, such other person (including the purchase of property from another person subject to an understanding or agreement, contingent or otherwise, to resell such property to such other person) or any commitment to make any such advance, loan or extension (but excluding accounts receivable or deposits arising in the ordinary course of business); (c) other than guarantees of Indebtedness of the Company or any Guarantors to the extent permitted by the covenant "Limitation on Incurrence of Additional Indebtedness and Disqualified Capital Stock" or the definition of Permitted Indebtedness, the entering into by such person of any guarantee of, or other credit support or contingent obligation with respect to, Indebtedness or other liability of such other person (other than the endorsement of instruments for deposit or collection in the ordinary 13 course of business); and (d) the making of any capital contribution by such person to such other person. "ISSUE DATE" means the date of first issuance of the Securities under this Indenture. "JACOR" means Jacor Communications, Inc., a Delaware corporation. "JUNIOR SECURITY" means any Qualified Capital Stock and any Indebtedness of the Company or a Guarantor, as applicable, that is subordinated in right of payment to Senior Debt at least to the same extent as the Securities or the Guarantees, as applicable, and has no scheduled installment of principal due, by redemption, sinking fund payment or otherwise, on or prior to the Stated Maturity of the Securities; provided, that in the case of subordination in respect of Senior Debt under the Credit Facility, "Junior Security" shall mean any Qualified Capital Stock and any Indebtedness of the Company or the Guarantors, as applicable, that (i) has a final maturity date occurring after the final maturity date of, all Senior Debt outstanding under the Credit Facility on the date of issuance of such Qualified Capital Stock or Indebtedness, (ii) is unsecured, (iii) has an Average Life longer than the security for which such Qualified Capital Stock or Indebtedness is being exchanged, and (iv) by their terms or by law are subordinated to Senior Debt outstanding under the Credit Facility on the date of issuance of such Qualified Capital Stock or Indebtedness at least to the same extent as the Securities. "LEGAL DEFEASANCE" shall have the meaning specified in Section 8.2. "LEVERAGE RATIO" of any person on any date of determination (the "Transaction Date") means the ratio, on a PRO FORMA basis, of (a) the sum of the aggregate outstanding amount of Indebtedness and Disqualified Capital Stock of such person and its Subsidiaries as of the date of calculation on a consolidated basis in accordance with GAAP to (b) the aggregate amount of Consolidated EBITDA of such person attributable to continuing operations and business (exclusive of amounts attributable to operations and businesses permanently discontinued or disposed of) for the Reference Period; PROVIDED, that for purposes of such calculation, (i) Acquisitions which occurred during the Reference Period or subsequent to the Reference Period and on or prior to the 14 Transaction Date shall be assumed to have occurred on the first day of the Reference Period, (ii) transactions giving rise to the need to calculate the Leverage Ratio shall be assumed to have occurred on the first day of the Reference Period, (iii) the incurrence of any Indebtedness or issuance of any Disqualified Capital Stock during the Reference Period or subsequent to the Reference Period and on or prior to the Transaction Date (and the application of the proceeds therefrom to the extent used to refinance or retire other Indebtedness) shall be assumed to have occurred on the first day of such Reference Period, and (iv) the Consolidated Fixed Charges of such person attributable to interest on any Indebtedness or dividends on any Disqualified Capital Stock bearing a floating interest (or dividend) rate shall be computed on a PRO FORMA basis as if the average rate in effect from the beginning of the Reference Period to the Transaction Date had been the applicable rate for the entire period, unless such person or any of its Subsidiaries is a party to an Interest Swap or Hedging Obligation (which shall remain in effect for the 12-month period immediately following the Transaction Date) that has the effect of fixing the interest rate on the date of computation, in which case such rate (whether higher or lower) shall be used. "LIEN" means any mortgage, charge, pledge, lien (statutory or otherwise), privilege, security interest, or other encumbrance upon or with respect to any property of any kind, real or personal, movable or immovable, now owned or hereafter acquired. "MATURITY DATE" means, when used with respect to the Securities, the date specified on such Security as the fixed date on which the final installment of principal of such Security is due and payable (in the absence of any acceleration thereof pursuant to the provisions of this Indenture regarding acceleration of Indebtedness or any Change of Control Offer or Asset Sale Offer). "NET CASH PROCEEDS" means the aggregate amount of cash or Cash Equivalents received by the Company in the case of a sale of Qualified Capital Stock and by the Company and its Subsidiaries in respect of an Asset Sale or an Event of Loss plus, in the case of an issuance of Qualified Capital Stock of the Company upon any exercise, exchange or conversion of securities (including options, warrants, rights and convertible or exchangeable debt) of the Company that were issued for cash on or after the Issue Date, the amount of 15 cash originally received by the Company upon the issuance of such securities (including options, warrants, rights and convertible or exchangeable debt) less, in each case, the sum of all payments, fees, commissions and (in the case of Asset Sales, reasonable and customary), expenses (including, without limitation, the fees and expenses of legal counsel and investment banking fees and expenses) incurred in connection with such Asset Sale, Event of Loss or sale of Qualified Capital Stock, and, in the case of an Asset Sale only, less an amount (estimated reasonably and in good faith by the Company or the amount actually incurred, if greater) of income, franchise, sales and other applicable taxes required to be paid by the Company or any of its Subsidiaries in connection with such Asset Sale. "9 3/4% NOTES" means the 9 3/4% Senior Subordinated Notes due December 15, 2006 issued by the Company pursuant to an Indenture dated as of December 17, 1996 among Jacor Communications Company, Jacor Communications, Inc., as Parent Guarantor, the Subsidiary Guarantors named therein and The Bank of New York, as Trustee. "NON-GUARANTOR SUBSIDIARY" means any Subsidiary that is not a Guarantor. "NOTICE OF DEFAULT" shall have the meaning specified in Section 6.1(3). "OBLIGATION" means any principal, premium or interest payment, or monetary penalty, or damages, due by the Company or any Guarantor under the terms of the Securities or this Indenture. "OFFERING MEMORANDUM" means the Offering Memorandum of the Company and the Guarantors dated June 11, 1997 with respect to the Securities. "OFFICER" means, with respect to the Company or the Guarantors, the Chief Executive Officer, the President, any Senior Vice President, the Chief Financial Officer, the Treasurer, the Controller, or the Secretary of the Company or Guarantor (as applicable). "OFFICERS' CERTIFICATE" means, with respect to the Company or the Guarantors, a certificate signed by two Officers or by an Officer and an Assistant Secretary of the Company or the Guarantors (as applicable) and otherwise com- 16 plying with the requirements of Sections 13.4 and 13.5, and delivered to the Trustee or an Agent, as applicable. "OPINION OF COUNSEL" means a written opinion from legal counsel who is reasonably acceptable to the Trustee (which may include counsel to the Trustee or the Company including an employee of the Company) or an Agent, as applicable, complying with the requirements of Sections 13.4 and 13.5, and delivered to the Trustee or an Agent, as applicable. "OUTSTANDING" as used with reference to the Securities shall have the meaning specified in Section 2.8 hereof. "PARENT" or "PARENT" of any person means a corporation which at the date of determination owns, directly or indirectly, a majority of the Voting Stock of such person or of a Parent of such person. "PARENT GUARANTOR" means Jacor Communications, Inc., a Delaware corporation. "PAYING AGENT" has the meaning specified in Section 2.3. "PAYMENT DEFAULT" has the meaning specified in Section 10.2. "PAYMENT NOTICE" shall have the meaning set out in Section 10.2. "PERMITTED INDEBTEDNESS" means any of the following: (a) the Company and its Subsidiaries may incur Indebtedness solely in respect of bankers acceptances, letters of credit and performance bonds (to the extent that such incurrence does not result in the incurrence of any obligation to repay any obligation relating to borrowed money of others), all in the ordinary course of business in accordance with customary industry practices, in amounts and for the purposes customary in the Company's industry; provided, that the aggregate principal amount outstanding of such Indebtedness (including any Indebtedness issued to refinance, refund or replace such Indebtedness) shall at no time exceed $5.0 million; 17 (b) the Company may incur Indebtedness to any Wholly owned Subsidiary Guarantor, and any Wholly owned Subsidiary Guarantor may incur Indebtedness to any other Wholly owned Subsidiary Guarantor or to the Company; provided, that in the case of Indebtedness of the Company, such obligations shall be unsecured and subordinated in all respects to the Company's obligations pursuant to the Securities and the date of any event that causes such Subsidiary Guarantor to no longer be a Wholly owned Subsidiary shall be an Incurrence Date; (c) the Company and the Guarantors may incur Indebtedness evidenced by the Securities and the Guarantees and represented by this Indenture up to the amounts specified therein as of the date hereof; (d) the Company and the Guarantors, as applicable, may incur Refinancing Indebtedness with respect to any Indebtedness or Disqualified Capital Stock, as applicable, which Indebtedness was incurred pursuant to the Leverage Ratio in Section 4.11 hereof or clause (c) of this definition; (e) the Company and its Subsidiaries may incur Indebtedness in an aggregate amount outstanding at any time (including any Indebtedness issued to refinance, replace, or refund such Indebtedness) of up to $5.0 million; (f) the Company and the Guarantors may incur Indebtedness incurred pursuant to the Credit Facility up to an aggregate principal amount outstanding (including any Indebtedness issued to refinance, refund or replace such Indebtedness in whole or in part) at any time of $600.0 million, plus accrued interest and additional expense and reimbursement obligations with respect thereto and such additional amounts as may be deemed to be outstanding in the form of Interest Swap and Hedging Obligations with lenders (or affiliates thereof) party to the Credit Facility, minus the amount of any such Indebtedness retired with Net Cash Proceeds from any Asset Sale; (g) the Company and the Guarantors may incur Indebtedness under Interest Swap and Hedging Obligations that do not increase the Indebtedness of the Company other than as a result of fluctuations in interest or foreign currency exchange rates provided that such Interest Swap and 18 Hedging Obligations are incurred for the purpose of providing interest rate protection with respect to Indebtedness permitted under this Indenture or to provide currency exchange protection in connection with revenues generated in currencies other than U.S. dollars; (h) Subsidiaries may incur Acquired Indebtedness if the Company at the time of such incurrence could incur such Indebtedness pursuant to the Leverage Ratio in Section 4.11; and (i) the Company and its Subsidiaries may incur Indebtedness existing on the Issue Date. "PERMITTED INVESTMENT" means: (a) Investments in any of the Securities; (b) Cash Equivalents; (c) intercompany loans to the extent permitted under clause (b) of the definition of "Permitted Indebtedness" and intercompany security agreements relating thereto; (d) loans, advances or investments in existence on the Issue Date; (e) Investments in a person substantially all of whose assets are of a type generally used in a Related Business (an "Acquired Person") if, as a result of such Investments, (i) the Acquired Person immediately thereupon is or becomes a Subsidiary of the Company, or (ii) the Acquired Person immediately thereupon either (1) is merged or consolidated with or into the Company or any of its Subsidiaries and the surviving person is the Company or a Subsidiary of the Company or (2) transfers or conveys all or substantially all of its assets, or is liquidated into, the Company or any of its Subsidiaries; (f) Investments in a person with whom the Company or any of its Subsidiaries have entered into, (i) local market agreements or time brokerage agreements pursuant to which the Company or any one of its Subsidiaries programs substantial portions of the broadcast day on such person's radio broadcast station(s) and sells advertising time during such program segments for its own account or 19 (ii) joint sales agreements pursuant to which the Company or any of its Subsidiaries sells substantially all of the advertising time for such person's radio broadcast station(s); (g) Investments that are in persons which will have the purpose of furthering the operations of the Company and its Subsidiaries not to exceed $10.0 million; and (h) demand deposit accounts maintained in the ordinary course of business. "PERMITTED LIEN" means: (a) Liens existing on the Issue Date; (b) Liens imposed by governmental authorities for taxes, assessments or other charges or levies not yet subject to penalty or which are being contested in good faith and by appropriate proceedings, if adequate reserves with respect thereto are maintained on the books of the Company in accordance with GAAP as of the date of determination; (c) statutory liens of carriers, warehousemen, mechanics, materialmen, landlords, repairmen or other like Liens arising by operation of law in the ordinary course of business provided that (i) the underlying obligations are not overdue for a period of more than 60 days, or (ii) such Liens are being contested in good faith and by appropriate proceedings and adequate reserves with respect thereto are maintained on the books of the Company in accordance with GAAP as of the date of determination; (d) Liens securing the performance of bids, trade contracts (other than borrowed money), leases, statutory obligations, surety and appeal bonds, performance bonds and other obligations of a like nature incurred in the ordinary course of business and deposits made in the ordinary course of business to secure obligations of public utilities; (e) easements, rights-of-way, zoning, building restrictions, reservations, encroachments, exceptions, covenants, similar restrictions and other similar encumbrances or title defects which, singly or in the aggregate, 20 do not in any case materially detract from the value of the property, subject thereto (as such property is used by the Company or any of its Subsidiaries) or interfere with the ordinary conduct of the business of the Company or any of its Subsidiaries; (f) Liens arising by operation of law in connection with judgments, provided, that the execution or other enforcement of such Liens is effectively stayed and that the claims secured thereby are being contested in good faith by appropriate proceedings; (g) pledges or deposits made in the ordinary course of business in connection with workers' compensation, unemployment insurance and other types of social security legislation; (h) Liens securing Indebtedness of a person existing at the time such person becomes a Subsidiary or is merged with or into the Company or a Subsidiary or Liens securing Indebtedness incurred in connection with an Acquisition, provided that such Liens were in existence prior to the date of such acquisition, merger or consolidation, were not incurred in anticipation thereof, and do not extend to any other assets; (i) leases or subleases granted to other persons in the ordinary course of business not materially interfering with the conduct of the business of the Company or any of its Subsidiaries or materially detracting from the value of the relative assets of the Company or any of its Subsidiaries; (j) Liens arising from precautionary Uniform Commercial Code financing statement filings regarding operating leases entered into by the Company or any of its Subsidiaries in the ordinary course of business; (k) Liens securing Refinancing Indebtedness incurred to refinance any Indebtedness that was previously so secured in a manner no more adverse to the Holders of the Securities than the terms of the Liens securing such refinanced Indebtedness provided that the Indebtedness secured is not increased and the lien is not extended to any additional assets or property; 21 (l) Liens in favor of the Administrative Agent pursuant to the Credit Facility; and (m) Liens on property of a Subsidiary of the Company provided that such Liens secure only obligations owing by such Subsidiary to the Company or another Subsidiary of the Company. "PERSON" or "PERSON" means any corporation, individual, limited liability company, joint stock company, joint venture, partnership, unincorporated association, governmental regulatory entity, country, state or political subdivision thereof, trust, municipality or other entity. "PLAN OF LIQUIDATION" means a plan that provides for, contemplates or the effectuation of which is preceded or accompanied by (whether or not substantially contemporaneously) (i) the sale, lease, conveyance or other disposition of all or substantially all of the assets of the Company otherwise than as an entirety or substantially as an entirety and (ii) the distribution of all or substantially all of the proceeds of such sale, lease, conveyance or other disposition and all or substantially all of the remaining assets of the Company to holders of Capital Stock of the Company. "PREFERRED STOCK" as applied to the Capital Stock of any corporation, means Capital Stock ranking prior to the shares of any other class of Capital Stock of said corporation as to the payment of dividends or the distribution of assets on any voluntary or involuntary liquidation. "PRESENT SUBSIDIARY GUARANTORS" means After MidNite Entertainment, Inc.; 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.; EFM Programming, Inc.; F.M.I. Pennsylvania, Inc.; GACC-N26LB, Inc.; GACC-340, Inc.; Georgia Network Equipment, Inc.; Great American Merchandising Group, Inc.; Great American Television Productions, Inc.; Inmobilaria Radial, S.A. de C.V.; Jacor Broadcasting Corporation; Jacor Broadcasting of Atlanta, Inc.; Jacor Broadcasting of Colorado, Inc.; Jacor Broadcasting of Florida, Inc.; Jacor Broadcasting of Knoxville, Inc.; Jacor Broadcasting of St. Louis, Inc.; Jacor Broadcasting of San Diego, Inc.; Jacor Broadcasting of Sarasota, Inc.; Jacor Broadcasting of Tampa Bay, Inc.; Jacor Cable, 22 Inc.; Jacor/Premiere Holding, Inc.; Location Productions, Inc.; Location Productions II, Inc.; Noble Broadcast Center, Inc.; Noble Broadcast Group, Inc.; Noble Broadcast Holdings, Inc.; Noble Broadcast Licenses, Inc.; Noble Broadcast of Colorado, Inc.; Noble Broadcast of St. Louis, Inc.; Noble Broadcast of San Diego, Inc.; Noble Broadcast of Toledo, Inc.; Nobro, S.C.; Nova Marketing Group, Inc.; Premiere Radio Networks, Inc.; Regent Broadcasting of Charleston, Inc.; Regent Broadcasting of Kansas City, Inc.; Regent Broadcasting of Las Vegas, Inc.; Regent Broadcasting of Las Vegas II, Inc.; Regent Broadcasting of Louisville, Inc., Regent Broadcasting of Louisville II, Inc.; Regent Broadcasting of Salt Lake City, Inc.; Regent Broadcasting of Salt Lake City II, Inc.; Regent Licensee of Charleston, Inc.; Regent Licensee of Kansas City, Inc.; Regent Licensee of Las Vegas, Inc.; Regent Licensee of Las Vegas II, Inc; Regent Licensee of Louisville, Inc.; Regent Licensee of Louisville II, Inc.; Regent Licensee of Salt Lake City, Inc.; Regent Licensee of Salt Lake City II, Inc.; Sports Radio Broadcasting, Inc.; Sports Radio, Inc.; Taft-TCI Satellite Services, Inc.; The Sy Fischer Company Agency, Inc.; WHOK, Inc.; and VTTV Productions, each a direct or indirect subsidiary of the Company or any successor entity, whether by merger, consolidation, change of name or otherwise. "PRO RATA PORTION" shall have the meaning specified in Section 12.1. "PRODUCTIVE ASSETS" means assets of a kind used or usable by the Company and its Subsidiaries in a Related Business. "PROPERTY" means any right or interest in or to property or assets of any kind whatsoever, whether real, personal or mixed and whether tangible or intangible. "PUBLIC OFFERING" means a firm commitment underwritten primary offering of Capital Stock of the Parent Guarantor or the Company. "QUALIFIED CAPITAL STOCK" means any Capital Stock of the Company that is not Disqualified Capital Stock. "QUALIFIED EXCHANGE" means any legal defeasance, redemption, retirement, repurchase or other acquisition of Capital Stock or Indebtedness of the Company issued on or after the Issue Date with the Net Cash Proceeds received by 23 the Company from the substantially concurrent sale of Qualified Capital Stock or any exchange of Qualified Capital Stock for any Capital Stock or Indebtedness issued on or after the Issue Date. "RECORD DATE" means a Record Date specified in the Securities whether or not such Record Date is a Business Day. "REDEMPTION DATE," when used with respect to any Security to be redeemed, means the date fixed for such redemption pursuant to Article III of this Indenture and Paragraph 5 in the form of Security. "REDEMPTION PRICE," when used with respect to any Security to be redeemed, means the redemption price for such redemption pursuant to Paragraph 5 in the form of Security, which shall include, without duplication, in each case, accrued and unpaid interest to the Redemption Date (subject to the provisions of Section 3.5). "REFERENCE PERIOD" with regard to any Person means the four full fiscal quarters (or such lesser period during which such person has been in existence) ended immediately preceding any date upon which any determination is to be made pursuant to the terms of the Securities or this Indenture. "REFINANCING INDEBTEDNESS" means Indebtedness or Disqualified Capital Stock (a) issued in exchange for, or the proceeds from the issuance and sale of which are used substantially concurrently to repay, redeem, defease, refund, refinance, discharge or otherwise retire for value, in whole or in part, or (b) constituting an amendment, modification or supplement to, or a deferral or renewal of ((a) and (b) above are, collectively, a "Refinancing"), any Indebtedness or Disqualified Capital Stock in a principal amount or, in the case of Disqualified Capital Stock, liquidation preference, not to exceed (after deduction of reasonable and customary fees and expenses incurred in connection with the Refinancing) the lesser of (i) the principal amount or, in the case of Disqualified Capital Stock, liquidation preference, of the Indebtedness or Disqualified Capital Stock so Refinanced and (ii) if such Indebtedness being Refinanced was issued with an original issue discount, the accredited value thereof (as determined in accordance with GAAP) at the time of such Refinancing; provided, that (A) 24 such Refinancing Indebtedness of any Subsidiary of the Company shall only be used to Refinance outstanding Indebtedness or Disqualified Capital Stock of such Subsidiary, (B) such Refinancing Indebtedness shall (x) not have an Average Life shorter than the Indebtedness or Disqualified Capital Stock to be so refinanced at the time of such Refinancing and (y) in all respects, be no less subordinated or junior, if applicable, to the rights of Holders of the Securities than was the Indebtedness or Disqualified Capital Stock to be refinanced and (C) such Refinancing Indebtedness shall have no installment of principal (or redemption payment) scheduled to come due earlier than the scheduled maturity of any installment of principal of the Indebtedness or Disqualified Capital Stock to be so refinanced which was scheduled to come due prior to the Stated Maturity. "REGISTRAR" shall have the meaning specified in Section 2.3. "REGISTRATION RIGHTS AGREEMENT" means the Registration Rights Agreement dated as of June 17, 1997 by and among the Initial Purchasers, the Company and the Guarantors, as such agreement may be amended, modified or supplemented from time to time in accordance with the terms thereof. "RELATED BUSINESS" means the business conducted (or proposed to be conducted) by the Company and its Subsidiaries as of the Issue Date and any and all businesses that in the good faith judgment of the Board of Directors of the Company are materially related businesses. "RELATED PERSON" means any person who controls, is controlled by or is under common control with an Excluded Person; PROVIDED that for purposes of this definition "control" means the beneficial ownership of more than 50% of the total voting power of a person normally entitled to vote in the election of directors, managers or trustees, as applicable of a person. "REPRESENTATIVE" means Chase Manhattan Bank in its capacity as Administrative Agent for lenders pursuant to the New Credit Facility, and not in its individual capacity as a lender, and any successor Administrative Agent appointed pursuant to the Credit Facility. 25 "REQUIRED LENDERS" means lenders under the Credit Facility whose PRO RATA shares (as defined therein), pursuant to the Credit Facility, are in the aggregate at least 66 2/3%. "RESTRICTED INVESTMENT" means, in one or a series of related transactions any Investment other than investments in Permitted Investments; provided, however, that a merger of another person with or into the Company or a Subsidiary Guarantor shall not be deemed to be a Restricted Investment so long as the surviving entity is the Company or a direct Wholly owned Subsidiary Guarantor. "RESTRICTED PAYMENT" means with respect to any person, (a) the declaration or payment of any dividend or other distribution in respect of Equity Interests of such person or any parent or Subsidiary of such person, (b) any payment on account of the purchase, redemption or other acquisition or retirement for value of Equity Interests of such person or any Subsidiary or parent of such person, (c) other than with the proceeds from the substantially concurrent sale of, or in exchange for, Refinancing Indebtedness any purchase, redemption, or other acquisition or retirement for value of, any payment in respect of any amendment of the terms of or any defeasance of, any Subordinated Indebtedness, directly or indirectly, by such person or a parent or Subsidiary of such person prior to the scheduled maturity, any scheduled repayment of principal, or scheduled sinking fund payment, as the case may be, of such Indebtedness and (d) any Restricted Investment by such person; provided, however, that the term "Restricted Payment" does not include (i) any dividend, distribution or other payment on or with respect to Capital Stock of an issuer to the extent payable solely in shares of Qualified Capital Stock of such issuer; (ii) any dividend, distribution or other payment to the Company, or to any Wholly owned Subsidiary Guarantor, by any of the Subsidiaries of the Company; or (iii) loans or advances to any Guarantor the proceeds of which are used by such Subsidiary Guarantor in a Related Business activity of such Subsidiary Guarantor. "SEC" means the Securities and Exchange Commission. "SECURITIES" means the Initial Securities and the Exchange Securities. 26 "SECURITIES ACT" means the Securities Act of 1933, as amended, and the rules and regulations of the SEC promulgated thereunder. "SECURITIES CUSTODIAN" means the Registrar, as custodian with respect to the Securities in global form, or any successor entity thereto. "SECURITYHOLDER" or "HOLDER" means any person in whose name a Security is registered on the Registrar's books. "SENIOR DEBT" of the Company or any Guarantor means Indebtedness (including any monetary obligation in respect of the Credit Facility, and interest, whether or not such interest is allowed or allowable, accruing on Indebtedness incurred pursuant to the Credit Facility at the contracted-for rate whether accruing on, before or after the commencement of any proceeding under any bankruptcy, insolvency or similar law) of the Company or such Guarantor arising under the Credit Facility or that, by the terms of the instrument creating or evidencing such Indebtedness, is expressly designated Senior Debt and made senior in right of payment to the Securities or the applicable Guaranty; provided, that in no event shall Senior Debt include (a) Indebtedness to any Subsidiary of the Company or any officer, director or employee of the Company or any Subsidiary of the Company, (b) Indebtedness incurred in violation of the terms of this Indenture, (c) Indebtedness to trade creditors, (d) Disqualified Capital Stock and (e) any liability for taxes owed or owing by the Company or such Guarantor. "SIGNIFICANT SUBSIDIARY" shall have the meaning provided under Regulation S-X of the Securities Act, in effect on the Issue Date. "SPECIAL RECORD DATE" for payment of any Defaulted Interest means a date fixed by the Paying Agent pursuant to Section 2.12. "STATED MATURITY," when used with respect to any Security, means June 15, 2007. "SUBORDINATED INDEBTEDNESS" means Indebtedness of the Company or a Guarantor that is subordinated in right of payment to the Securities or such Guaranty, as applicable, 27 in any respect or has a stated maturity on or after the Stated Maturity. "SUBSIDIARY" with respect to any person, means (i) a corporation a majority of whose Capital Stock with voting power, under ordinary circumstances, to elect directors is at the time, directly or indirectly, owned by such person, by such person and one or more Subsidiaries of such person or by one or more Subsidiaries of such person, (ii) any other person (other than a corporation) in which such person, one or more Subsidiaries of such person, or such person and one or more Subsidiaries of such person, directly or indirectly, at the date of determination thereof has at least majority ownership interest, or (iii) a partnership in which such person or a Subsidiary of such person is, at the time, a general partner and in which such person, directly or indirectly, at the date of determination thereof has at least a majority ownership interest. "SUBSIDIARY GUARANTORS" means (i) the Present Subsidiary Guarantors and (ii) Future Subsidiary Guarantors (other than Excluded Subsidiaries) that become Subsidiary Guarantors pursuant to the terms of this Indenture, but excluding any Persons whose guarantees have been released pursuant to the terms of this Indenture. "TAX SHARING AGREEMENT" means any agreements between the Company and the Parent Guarantor pursuant to which the Company may make payments to the Parent Guarantor with respect to the Company's Federal, state, or local income or franchise tax liabilities where the Company is included in a consolidated, unitary or combined return filed by the Parent Guarantor; PROVIDED, HOWEVER, that the payment by the Company under such agreement may not exceed the liability of the Company for such taxes if it had filed its income tax returns as a separate company. "10 1/8% NOTES" means the 10 1/8% Senior Subordinated Notes due June 15, 2006 issued by JCAC, Inc. (predecessor to the Company) pursuant to an Indenture dated as of June 12, 1996 among JCAC, Inc., Jacor Communication Inc., as Initial Guarantor and First Trust of Illinois, National Association. "TIA" means the Trust Indenture Act of 1939, as amended, (15 U.S. Code Sections 77aaa-77bbbb) as in effect on the date of the execution of this Indenture, except as provided in Section 9.3. 28 "TRANSFER INSTRUMENTS" shall have the meaning specified in Section 12.2. "TRANSFER RESTRICTED SECURITIES" means Securities that bear or are required to bear the legend set forth in Section 2.6(g) of this Indenture. "TRUSTEE" means the party named as such in this Indenture until a successor replaces it in accordance with the provisions of this Indenture and thereafter means such successor. "TRUST OFFICER" means any officer within the corporate trust department (or any successor group) of the Trustee or any other officer of the Trustee customarily performing functions similar to those performed by the Persons who at that time shall be such officers, and also means, with respect to a particular corporate trust matter, any other officer of the Trustee to whom such trust matter is referred because of his knowledge of and familiarity with the particular subject. "U.S. GOVERNMENT OBLIGATIONS" means direct non-callable obligations of, or noncallable obligations guaranteed by, the United States of America for the payment of which obligation or guarantee the full faith and credit of the United States of America is pledged. "VOTING STOCK" means, with respect to any specified person, capital stock with voting power, under ordinary circumstances, to elect directors of such Person. "WHOLLY OWNED SUBSIDIARY" means a Subsidiary all the Equity Interests of which are owned by the Company or one or more Wholly owned Subsidiaries of the Company. SECTION 1.2. INCORPORATION BY REFERENCE OF TIA. Whenever this Indenture refers to a provision of the TIA, such provision is incorporated by reference in and made a part of this Indenture. The following TIA terms used in this Indenture have the following meanings: "COMMISSION" means the SEC. "INDENTURE SECURITIES" means the Securities. 29 "INDENTURE SECURITYHOLDER" means a Holder or a Securityholder. "INDENTURE TO BE QUALIFIED" means this Indenture. "INDENTURE TRUSTEE" or "INSTITUTIONAL TRUSTEE" means the Trustee. "OBLIGOR" on the indenture securities means the Company, each Guarantor and any other obligor on the Securities. All other TIA terms used in this Indenture that are defined by the TIA, defined by TIA reference to another statute or defined by SEC rule and not otherwise defined herein have the meanings assigned to them thereby. SECTION 1.3. RULES OF CONSTRUCTION. Unless the context otherwise requires: (1) a term has the meaning assigned to it; (2) an accounting term not otherwise defined has the meaning assigned to it in accordance with GAAP; (3) "or" is not exclusive; (4) words in the singular include the plural, and words in the plural include the singular; (5) provisions apply to successive events and transactions; (6) "herein," "hereof" and other words of similar import refer to this Indenture as a whole and not to any particular Article, Section or other subdivision; and (7) references to Sections or Articles means reference to such Section or Article in this Indenture, unless stated otherwise. ARTICLE II THE SECURITIES 30 SECTION 2.1. FORM AND DATING. The Securities and the Trustee's certificate of authentication, in respect thereof, shall be substantially in the form of Exhibit A hereto, which Exhibit is part of this Indenture. The Securities may have notations, legends or endorsements required by law, stock exchange rule or usage. The Company shall approve the form of the Securities and any notation, legend or endorsement on them. Any such notations, legends or endorsements not contained in the form of Security attached as Exhibit A hereto shall be delivered in writing to the Trustee. Each Security shall be dated the date of its authentication. The terms and provisions contained in the forms of Securities shall constitute, and are hereby expressly made, a part of this Indenture and, to the extent applicable, the Company and the Trustee, by their execution and delivery of this Indenture, expressly agree to such terms and provisions and to be bound thereby. SECTION 2.2. EXECUTION AND AUTHENTICATION. Two Officers shall sign, or one Officer shall sign and one Officer shall attest to, the Security for the Company by manual or facsimile signature. The Company's seal, if any, shall be impressed, affixed, imprinted or reproduced on the Securities and may be in facsimile form. If an Officer whose signature is on a Security was an Officer at the time of such execution but no longer holds that office at the time the Trustee authenticates the Security, the Security shall be valid nevertheless and the Company shall nevertheless be bound by the terms of the Securities and this Indenture. A Security shall not be valid until an authorized signatory of the Trustee manually signs the certificate of authentication on the Security but such signature shall be conclusive evidence that the Security has been authenticated pursuant to the terms of this Indenture. The Trustee shall authenticate or cause to be authenticated Securities for original issue in the aggregate principal amount of up to $150,000,000 upon a written order of the Company in the form of an Officers' Certificate. The Officers' Certificate shall specify the amount of Securities 31 to be authenticated and the date on which the Securities are to be authenticated. The aggregate principal amount of Securities outstanding at any time may not exceed $150,000,000, except as provided in Section 2.7. Upon the written order of the Company in the form of an Officers' Certificate, the Trustee shall authenticate Securities in substitution of Securities originally issued to reflect any name changes of the Company. The Trustee may appoint an authenticating agent acceptable to the Company to authenticate Securities. Unless otherwise provided in the appointment, an authenticating agent may authenticate Securities whenever the Trustee may do so. Each reference in this Indenture to authentication by the Trustee includes authentication by such agent. An authenticating agent has the same rights as an Agent to deal with the Company, any Affiliate of the Company, or any of its Subsidiaries. Securities shall be issuable only in fully registered form, without coupons, in denominations of $1,000 and integral multiples thereof. SECTION 2.3. REGISTRAR AND PAYING AGENT. The Company shall maintain an office or agency in the Borough of Manhattan, The City of New York, where Securities may be presented for registration of transfer or exchange ("Registrar") and an office or agency of the Company where Securities may be presented for payment ("Paying Agent") and where notices and demands to or upon the Company in respect of the Securities may be served. The Company may act as Registrar or Paying Agent, except that, for the purposes of Articles III, VIII, XI, and Section 4.14 and as otherwise specified in this Indenture, neither the Company nor any Affiliate of the Company shall act as Paying Agent. The Registrar shall keep a register of the Securities and of their transfer and exchange. The Company may have one or more co-Registrars and one or more additional Paying Agents. The term "Registrar" includes any co-registrar and the term "Paying Agent" includes any additional Paying Agent. The Company hereby initially appoints the Trustee as Registrar and Paying Agent, and by its acknowledgement and acceptance on the signature page hereto, the Trustee hereby agrees so to act. 32 The Company shall enter into an appropriate written agency agreement with any Agent (including the Paying Agent) not a party to this Indenture, which agreement shall implement the provisions of this Indenture that relate to such Agent, and shall furnish a copy of each such agreement to the Trustee. The Company shall promptly notify the Trustee in writing of the name and address of any such Agent. If the Company fails to maintain a Registrar or Paying Agent, the Trustee shall act as such. The Company initially appoints The Depository Trust Company ("DTC") to act as Depositary with respect to the Global Securities. The Company initially appoints the Registrar to act as Securities Custodian with respect to the Global Securities. Upon the occurrence of an Event of Default described in Section 6.1(4) or (6), the Trustee shall, or upon the occurrence of any other Event of Default by notice to the Company, the Registrar and the Paying Agent, the Trustee may, assume the duties and obligations of the Registrar and the Paying Agent hereunder. SECTION 2.4. PAYING AGENT TO HOLD ASSETS IN TRUST. The Company shall require each Paying Agent other than the Trustee to agree in writing that such Paying Agent shall hold in trust for the benefit of Holders or the Trustee all assets held by the Paying Agent for the payment of principal of, premium, if any, or interest on, the Securities (whether such assets have been distributed to it by the Company or any other obligor on the Securities), and shall notify the Trustee in writing of any Default in making any such payment. If a Subsidiary of the Company acts as Paying Agent, it shall segregate such assets and hold them as a separate trust fund for the benefit of the Holders or the Trustee. The Company at any time may require a Paying Agent to distribute all assets held by it to the Trustee and account for any assets disbursed and the Trustee may at any time during the continuance of any payment Default or any Event of Default, upon written request to a Paying Agent, require such Paying Agent to distribute all assets held by it to the Trustee and to account for any assets distributed. Upon distribution to the Trustee of all assets that shall have been delivered by the Company to the Paying Agent, the 33 Paying Agent (if other than the Company) shall have no further liability for such assets. SECTION 2.5. SECURITYHOLDER LISTS. The Registrar shall preserve in as current a form as is reasonably practicable the most recent list available to it of the names and addresses of Holders and shall otherwise comply with TIA Section 312(a). If the Trustee or any Paying Agent is not the Registrar, the Company shall furnish to the Trustee on or before the third Business Day preceding each Interest Payment Date and at such other times as the Trustee or any such Paying Agent may request in writing a list in such form and as of such date as the Trustee or any such Paying Agent reasonably may require of the names and addresses of Holders and the Company shall otherwise comply with TIA Section 312(a). SECTION 2.6. TRANSFER AND EXCHANGE. (a) TRANSFER AND EXCHANGE OF DEFINITIVE SECURITIES. When Definitive Securities are presented to the Registrar with a request: (x) to register the transfer of such Definitive Securities; or (y) to exchange such Definitive Securities for an equal principal amount of Definitive Securities of other authorized denominations; the Registrar shall register the transfer or make the exchange as requested if its reasonable requirements for such transaction are met; PROVIDED, HOWEVER, that the Definitive Securities surrendered for registration of transfer or exchange: (i) shall be duly endorsed or accompanied by a written instrument of transfer in form reasonably satisfactory to the Company and the Registrar, duly executed by the Holder thereof or his attorney duly authorized in writing; and (ii) in the case of Transfer Restricted Securities that are Definitive Securities, shall be accompanied by the following additional information and documents, as applicable: 34 (A) if such Transfer Restricted Security is being delivered to the Registrar by a Holder for registration in the name of such Holder, without transfer, a certification from such Holder to that effect (in substantially the form set forth on the reverse of the Security); or (B) if such Transfer Restricted Security is being transferred to a "qualified institutional buyer" (within the meaning of Rule 144A promulgated under the Securities Act), that is aware that any sale of Securities to it will be made in reliance on Rule 144A under the Securities Act and that is acquiring such Transfer Restricted Security for its own account, or for the account of another such "qualified institutional buyer", a certification from such Holder to that effect (in substantially the form set forth on the reverse of the Security); or (C) if such Transfer Restricted Security is being pursuant to an exemption from registration in accordance with Rule 144, or Regulation S under the Securities Act, or pursuant to an effective registration statement under the Securities Act, a certification from such Holder to that effect (in substantially the form set forth on the reverse of the Security); or (D) if such Transfer Restricted Security is being transferred to an institutional "accredited investor" within the meaning of subparagraph (a)(1), (2), (3) or (7) of Rule 501 under the Securities Act, that is purchasing the Security for its own account or for the account of such an institutional "accredited investor", in each case in a minimum principal amount of $250,000, not with a view to or for offer for sale in connection with any distribution in violation of the Securities Act, a certification from such Holder to that effect (in substantially the form set forth on the reverse of the Security) and a signed transferee letter of representation in substantially the form set forth in the Offering Memorandum. 35 (b) RESTRICTIONS ON TRANSFER OF A DEFINITIVE SECURITY FOR A BENEFICIAL INTEREST IN A GLOBAL SECURITY. A Definitive Security may not be exchanged for a beneficial interest in a Global Security except upon satisfaction of the requirements set forth below. Upon receipt by the Registrar of a Definitive Security, duly endorsed or accompanied by appropriate instruments of transfer, in form satisfactory to the Registrar, together with: (i) if such Definitive Security is a Transfer Restricted Security, certification, substantially in the form set forth on the reverse of the Security, that such Definitive Security is being transferred to a "qualified institutional buyer" (as defined in Rule 144A under the Securities Act) in accordance with Rule 144A under the Securities Act; and (ii) whether or not such Definitive Security is a Transfer Restricted Security, written instructions directing the Registrar to make, or to direct the Securities Custodian to make, an endorsement on the Global Security to reflect an increase in the aggregate principal amount of the Securities represented by the Global Security, then the Registrar shall cancel such Definitive Security and cause, or direct the Securities Custodian to cause, in accordance with the standing instructions and procedures existing between the Depositary and the Securities Custodian, the aggregate principal amount of Securities represented by the Global Security to be increased accordingly. If no Global Securities are then outstanding, the Company shall issue and the Trustee shall authenticate a new Global Security in the appropriate principal amount. (c) TRANSFER AND EXCHANGE OF GLOBAL SECURITIES. The transfer and exchange of Global Securities or beneficial interests therein shall be effected through the Depositary, in accordance with this Indenture and the procedures of the Depositary therefor. (d) TRANSFER OF A BENEFICIAL INTEREST IN A GLOBAL SECURITY FOR A DEFINITIVE SECURITY. (i) Any Person having a beneficial interest in a Global Security may upon request exchange such beneficial interest for a Definitive Security. 36 Upon receipt by the Registrar of written instructions or such other form of instructions as is customary for the Depositary from the Depositary or its nominee on behalf of any Person having a beneficial interest in a Global Security, and upon receipt by such Registrar of a written instruction or such other form of instructions as is customary for the Depositary or the Person designated by the Depositary as having such a beneficial interest in a Transfer Restricted Security only, the following additional information and documents (all of which may be submitted by facsimile): (A) if such beneficial interest is being transferred to the Person designated by the Depositary as being the beneficial owner, a certification from such person to that effect (in substantially the form set forth on the reverse of the Security); or (B) if such beneficial interest is being transferred to a "qualified institutional buyer" (within the meaning of Rule 144A promulgated under the Securities Act), that is aware that any sale of Securities to it will be made in reliance on Rule 144A under the Securities Act and that is acquiring such Transfer Restricted Security for its own account, or for the account of another such "qualified institutional buyer", a certification to that effect from the transferor (in substantially the form set forth on the reverse of the Security); or (C) if such beneficial interest is being transferred pursuant to an exemption from registration in accordance with Rule 144, or Regulation S under the Securities Act, or pursuant to an effective registration statement under the Securities Act, a certification to that effect (in substantially the form set forth on the reverse of the Security); or (D) if such beneficial interest is being transferred to an institutional "accredited investor" within the meaning of subparagraph (a)(1), (2), (3) or (7) of Rule 501 under the Securities Act, that is purchasing the Security for its own account or for the account of such an 37 institutional "accredited investor", in each case in a minimum principal amount of $250,000, not with a view to or for offer for sale in connection with any distribution in violation of the Securities Act, a certification from such Holder to that effect (in substantially the form set forth on the reverse of the Security) and a signed transferee letter of representation in substantially the form set forth in the Offering Memorandum. then the Registrar or the Securities Custodian, at the direction of the Trustee, will cause, in accordance with the standing instructions and procedures existing between the Depositary and the Securities Custodian, the aggregate principal amount of the Global Security to be reduced and, following such reduction, the Company will execute and the Trustee's authenticating agent will authenticate and deliver to the transferee a Definitive Security. (ii) Definitive Securities issued in exchange for a beneficial interest in a Global Security pursuant to this Section 2.6(d) shall be registered in such names and in such authorized denominations as the Depositary, pursuant to instructions from its direct or indirect participants or otherwise, shall instruct the Registrar. The Registrar shall deliver such Definitive Securities to the persons in whose names such Securities are so registered. (e) RESTRICTIONS ON TRANSFER AND EXCHANGE OF GLOBAL SECURITIES. Notwithstanding any other provisions of this Indenture (other than the provisions set forth in subsection (f) of this Section 2.6), a Global Security may not be transferred as a whole except by the Depositary to a nominee of the Depositary or by a nominee of the Depositary to the Depositary or another nominee of the Depositary or by the Depositary or any such nominee to a successor Depositary or a nominee of such successor Depositary. (f) AUTHENTICATION OF DEFINITIVE SECURITIES IN ABSENCE OF DEPOSITARY. If at any time: (i) the Depositary for the Securities notifies the Company that the Depositary is unwilling or unable to continue as Depositary for the Global Securities and a successor Depositary for the Global 38 Securities is not appointed by the Company within 90 days after delivery of such notice; or (ii) the Company, in its sole discretion, notifies the Trustee and the Registrar in writing that it elects to cause the issuance of Definitive Securities under this Indenture, then the Company will execute, and the Trustee, upon receipt of an Officers' Certificate requesting the authentication and delivery of Definitive Securities, will, or its authenticating agent will, authenticate and deliver Definitive Securities, in an aggregate principal amount equal to the principal amount of the Global Securities, in exchange for such Global Securities. (g) LEGENDS. (i) Except as permitted by the following paragraph (ii), each Security certificate evidencing the Global Securities and the Definitive Securities (and all Securities issued in exchange therefor or substitution thereof) shall bear a legend in substantially the following form: "THIS NOTE (OR ITS PREDECESSOR) HAS NOT BEEN REGISTERED UNDER THE U.S. SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT") AND, ACCORDINGLY, MAY NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED WITHIN THE UNITED STATES OR TO, OR FOR THE ACCOUNT OR BENEFIT OF, U.S. PERSONS, EXCEPT AS SET FORTH IN THE FOLLOWING SENTENCE. BY ITS ACQUISITION HEREOF OR OF A BENEFICIAL INTEREST HEREIN, THE HOLDER (1) REPRESENTS THAT (A) IT IS A "QUALIFIED INSTITUTIONAL BUYER" (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT) (A "QIB"), (B) IT IS ACQUIRING THIS NOTE IN AN OFFSHORE TRANSACTION IN COMPLIANCE WITH REGULATION S UNDER THE SECURITIES ACT OR (C) IT IS AN INSTITUTIONAL "ACCREDITED INVESTOR" (AS DEFINED IN RULE 501(A)(1), (2), (3) OR (7) OF REGULATION D UNDER THE SECURITIES ACT) (AN "IAI"), (2) AGREES THAT IT WILL NOT, WITHIN THE TIME PERIOD REFERRED TO UNDER RULE 144(k) (TAKING INTO ACCOUNT THE PROVISIONS OF RULE 144(d) UNDER THE SECURITIES ACT, IF APPLICABLE) UNDER THE SECURITIES ACT AS IN EFFECT ON THE DATE OF THE TRANSFER OF THIS NOTE, RESELL OR OTHERWISE TRANSFER 39 THIS NOTE EXCEPT (A) TO THE COMPANY OR ANY GUARANTOR, (B) TO A PERSON WHOM THE HOLDER REASONABLY BELIEVES IS A QIB PURCHASING FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QIB IN COMPLIANCE WITH RULE 144A UNDER THE SECURITIES ACT, (C) IN AN OFFSHORE TRANSACTION MEETING THE REQUIREMENTS OF RULE 904 OF THE SECURITIES ACT, (D) PURSUANT TO THE EXEMPTION FROM REGISTRATION PROVIDED BY RULE 144 UNDER THE SECURITIES ACT (IF AVAILABLE), (E) TO AN IAI WHICH PRIOR TO SUCH TRANSFER, FURNISHES TO THE TRUSTEE A SIGNED LETTER CONTAINING CERTAIN REPRESENTATIONS AND AGREEMENTS RELATING TO THE REGISTRATION OF TRANSFER OF THIS NOTE (THE FORM OF WHICH LETTER CAN BE OBTAINED FROM THE TRUSTEE) AND, IF SUCH TRANSFER IS IN RESPECT OF AN AGGREGATE PRINCIPAL AMOUNT OF NOTES AT THE TIME OF TRANSFER OF LESS THAN $250,000, AN OPINION OF COUNSEL ACCEPTABLE TO THE COMPANY THAT SUCH TRANSFER IS IN COMPLIANCE WITH THE SECURITIES ACT OR (F) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT AND, IN EACH CASE, IN ACCORDANCE WITH APPLICABLE STATE SECURITIES LAWS, AND (3) AGREES THAT IT WILL DELIVER TO EACH PERSON TO WHOM THIS NOTE OR AN INTEREST HEREIN IS TRANSFERRED A NOTICE SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND. AS USED HEREIN, THE TERMS "OFFSHORE TRANSACTION", "UNITED STATES" AND "U.S. PERSON" HAVE THE MEANINGS GIVEN THEM BY RULE 902 OF REGULATION S UNDER THE SECURITIES ACT. THE INDENTURE CONTAINS A PROVISION REQUIRING THE TRUSTEE TO REFUSE TO REGISTER ANY TRANSFER OF THIS NOTE IN VIOLATION OF THE FOREGOING RESTRICTIONS." (ii) Upon any sale or transfer of a Transfer Restricted Security (including any Transfer Restricted Security represented by a Global Security) pursuant to Rule 144 under the Act or an effective registration statement under the Act: (A) in the case of any Transfer Restricted Security that is a Definitive Security, the Registrar shall permit the Holder thereof to exchange such Transfer Restricted Security for a Definitive Security that does not bear the legend set forth above and rescind any restriction on the transfer of such Transfer Restricted Security; and 40 (B) any such Transfer Restricted Security represented by a Global Security shall not be subject to the provisions set forth in (i) above (such sales or transfers being subject only to the provisions of Section 2.6(c) of this Indenture); PROVIDED, HOWEVER, that with respect to any request for an exchange of a Transfer Restricted Security that is represented by a Global Security for a Definitive Security that does not bear a legend, which request is made in reliance upon Rule 144, the Holder thereof shall certify in writing to the Registrar that such request is being made pursuant to Rule 144 (such certification to be substantially in the form set forth on the reverse of the Security). (h) CANCELLATION AND/OR ADJUSTMENT OF GLOBAL SECURITY. At such time as all beneficial interests in a Global Security have either been exchanged for Definitive Securities, redeemed, repurchased or cancelled, such Global Security shall be returned to or retained and cancelled by the Registrar. At any time prior to such cancellation, if any beneficial interest in a Global Security is exchanged for Definitive Securities, redeemed, repurchased or cancelled, the principal amount of Securities represented by such Global Security shall be reduced and an endorsement shall be made on such Global Security, by the Registrar or the Securities Custodian, at the direction of the Registrar, to reflect such reduction. (i) OBLIGATIONS WITH RESPECT TO TRANSFERS AND EXCHANGES OF SECURITIES. (i) To permit registrations of transfers and exchanges, the Company shall execute and the Trustee or any authenticating agent of the Trustee shall authenticate Definitive Securities and Global Securities at the Registrar's request. (ii) No service charge shall be made to a Holder for any registration of transfer or exchange, but the Company may require payment of a sum sufficient to cover any transfer tax, assessments, or similar governmental charge payable in connection therewith (other than any such transfer taxes, assessments, or similar governmental charge payable upon exchanges or 41 transfers pursuant to Section 2.10, 3.7, 4.14(8), 9.5, or 11.1 (final paragraph)). (iii) The Registrar shall not be required to register the transfer of or exchange (a) any Definitive Security selected for redemption in whole or in part pursuant to Article III, except the unredeemed portion of any Definitive Security being redeemed in part, or (b) any Security for a period beginning 15 Business Days before the mailing of a notice of an offer to repurchase pursuant to Article XI or Section 4.14 hereof or redemption of Securities pursuant to Article III hereof and ending at the close of business on the day of such mailing. (iv) The Trustee shall have no obligation or duty to monitor, determine or inquire as to compliance with any restrictions on transfer imposed under this Indenture or under applicable law with respect to any transfer of any interest in any Security (including any transfers between or among Depositary participants or beneficial owners of interests in any Global Security) other than to require delivery of such certificates and other documentation or evidence as are expressly required by, and to do so if and when expressly required by the terms of, this Indenture, and to examine the same to determine substantial compliance as to form with the express requirements thereof. SECTION 2.7. REPLACEMENT SECURITIES. If a mutilated Security is surrendered to the Registrar or if the Holder of a Security claims and submits an affidavit or other evidence, satisfactory to the Registrar, to the Registrar to the effect that the Security has been lost, destroyed or wrongfully taken, the Company shall issue and the Trustee or any authenticating agent of the Trustee shall authenticate a replacement Security if the Registrar's requirements are met. Such Holder must provide an indemnity bond or other indemnity, sufficient in the judgment of both the Company and the Registrar, to protect the Company, the Trustee or any Agent from any loss which any of them may suffer if a Security is replaced. In the case of any lost Security that will become due and payable within 30 days, the Company can choose to pay such Security rather than replacing such Security. The Company may charge 42 such Holder for its reasonable, out-of-pocket expenses in replacing a Security. Every replacement Security is an additional obligation of the Company. SECTION 2.8. OUTSTANDING SECURITIES. Securities outstanding at any time are all the Securities that have been authenticated by the Trustee (including any Security represented by a Global Security) except those cancelled by the Registrar, those delivered to the Registrar for cancellation, those reductions in the interest in a Global Security effected by the Registrar hereunder, those paid pursuant to Section 2.7 and those described in this Section 2.8 as not outstanding. A Security does not cease to be outstanding because the Company or an Affiliate of the Company holds the Security, except as provided in Section 2.9. If a Security is replaced pursuant to Section 2.7 (other than a mutilated Security surrendered for replacement), it ceases to be outstanding unless the Registrar receives proof satisfactory to it that the replaced Security is held by a BONA FIDE purchaser. A mutilated Security ceases to be outstanding upon surrender of such Security and replacement thereof pursuant to Section 2.7. If on a Redemption Date or the Maturity Date the Paying Agent (other than the Company or an Affiliate of the Company) holds Cash or U.S. Government Obligations sufficient to pay all of the principal and interest and premium, if any, due on the Securities payable on that date and payment of the Securities called for redemption is not otherwise prohibited, then on and after that date such Securities cease to be outstanding and interest on them ceases to accrue. SECTION 2.9. TREASURY SECURITIES. In determining whether the Holders of the required principal amount of Securities have concurred in any direction, amendment, supplement, waiver or consent, Securities owned by the Company or Affiliates of the Company shall be disregarded, except that, for the purposes of determining whether the Trustee shall be protected in relying on any such direction, amendment, supplement, waiver or consent, 43 only Securities that a Trust Officer of the Trustee actually knows are so owned shall be disregarded. SECTION 2.10. TEMPORARY SECURITIES. Until Definitive Securities are ready for delivery, the Company may prepare and the Trustee shall authenticate temporary Securities. Temporary Securities shall be substantially in the form of Definitive Securities but may have variations that the Company reasonably and in good faith consider appropriate for temporary Securities. Without unreasonable delay, the Company shall prepare and the Trustee shall, upon receipt of a written order of the Company in the form of an Officers' Certificate, authenticate Definitive Securities in exchange for temporary Securities. Until so exchanged, the temporary Securities shall in all respects be entitled to the same benefits under this Indenture as permanent Securities authenticated and delivered hereunder. SECTION 2.11. CANCELLATION. The Company at any time may deliver Securities to the Registrar for cancellation. The Trustee and the Paying Agent shall forward to the Registrar any Securities surrendered to them for registration of transfer, exchange or payment. The Registrar, or at the direction of the Registrar, the Trustee or the Paying Agent (other than the Company or an Affiliate of the Company), and no one else, shall cancel and, return to the Company all Securities surrendered for registration of transfer, exchange, payment or cancellation. Subject to Section 2.7, the Company may not issue new Securities to replace Securities that have been paid or delivered to the Registrar for cancellation. No Securities shall be authenticated in lieu of or in exchange for any Securities cancelled as provided in this Section 2.11, except as expressly permitted in the form of Securities and as permitted by this Indenture. SECTION 2.12. DEFAULTED INTEREST. Any interest on any Security which is payable, but is not punctually paid or duly provided for, on any Interest Payment Date plus, to the extent lawful, any interest payable on the defaulted interest at the rate and in the manner provided in Section 4.1 hereof and the Security (herein called "Defaulted Interest") shall forthwith cease to be 44 payable to the registered holder on the relevant Record Date, and such Defaulted Interest may be paid by the Company, at its election in each case, as provided in clause (1) or (2) below: (1) The Company may elect to make payment of any Defaulted Interest to the persons in whose names the Securities are registered at the close of business on a Special Record Date for the payment of such Defaulted Interest, which shall be fixed in the following manner. The Company shall notify the Trustee and the Paying Agent in writing of the amount of Defaulted Interest proposed to be paid on each Security and the date of the proposed payment, and at the same time the Company shall deposit with the Paying Agent an amount of Cash equal to the aggregate amount proposed to be paid in respect of such Defaulted Interest or shall make arrangements satisfactory to the Paying Agent for such deposit prior to the date of the proposed payment, such Cash when deposited to be held in trust for the benefit of the persons entitled to such Defaulted Interest as provided in this clause (1). Thereupon the Paying Agent shall fix a Special Record Date for the payment of such Defaulted Interest which shall be not more than 15 days and not less than 10 days prior to the date of the proposed payment and not less than 10 days after the receipt by the Paying Agent of the notice of the proposed payment. The Paying Agent shall promptly notify the Company and the Trustee of such Special Record Date and, in the name and at the expense of the Company, shall cause notice of the proposed payment of such Defaulted Interest and the Special Record Date therefor to be mailed, first-class postage prepaid, to each Holder at his address as it appears in the Security register not less than 10 days prior to such Special Record Date. Notice of the proposed payment of such Defaulted Interest and the Special Record Date therefor having been mailed as aforesaid, such Defaulted Interest shall be paid to the persons in whose names the Securities (or their respective predecessor Securities) are registered on such Special Record Date and shall no longer be payable pursuant to the following clause (2). (2) The Company may make payment of any Defaulted Interest in any other lawful manner not inconsistent with the requirements of any securities ex- 45 change on which the Securities may be listed, and upon such notice as may be required by such exchange, if, after notice given by the Company to the Trustee and the Paying Agent of the proposed payment pursuant to this clause, such manner shall be deemed practicable by the Trustee and the Paying Agent. Subject to the foregoing provisions of this Section, each Security delivered under this Indenture upon registration of transfer of or in exchange for or in lieu of any other Security shall carry the rights to interest accrued and unpaid, and to accrue, which were carried by such other Security. SECTION 2.13. CUSIP NUMBERS. The Company in issuing the Securities may use "CUSIP" numbers (if then generally in use), and, if so, the Trustee shall use "CUSIP" numbers in notices of redemption as a convenience to Holders; PROVIDED that any such notice may state that no representation is made as to the correctness of such numbers either as printed on the Securities or as contained in any notice of a redemption and that reliance may be placed only on the other identification numbers printed on the Securities, and any such redemption shall not be affected by any defect in or omission of such numbers. The Company will promptly notify the Trustee of any change in the "CUSIP" numbers. ARTICLE III REDEMPTION SECTION 3.1. RIGHT OF REDEMPTION. Redemption of Securities, as permitted by the provisions of this Indenture, shall be made in accordance with such provisions and this Article III. The Company will not have the right to redeem any Securities prior to June 15, 2002. On or after June 15, 2002, the Company will have the right to redeem all or any part of the Securities pursuant to Paragraph 5 thereof, in each case (subject to the right of Holders of record on a Record Date to receive interest due on an Interest Payment Date that is on or prior to such Redemption Date, and subject to the provisions set 46 forth in Section 3.5), including accrued and unpaid interest to the Redemption Date. SECTION 3.2. NOTICES TO TRUSTEE AND PAYING AGENT. If the Company elects to redeem Securities pursuant to Paragraph 5 of the Securities, it shall notify the Trustee and the Paying Agent in writing of the Redemption Date and the principal amount of Securities to be redeemed and whether it wants the Paying Agent to give notice of redemption to the Holders. If the Company elects to reduce the principal amount of Securities to be redeemed pursuant to Paragraph 5 of the Securities by crediting against any such redemption Securities it has not previously delivered to the Trustee and the Paying Agent for cancellation, it shall so notify the Trustee, in the form of an Officers' Certificate, and the Paying Agent of the amount of the reduction and deliver such Securities with such notice. The Company shall give each notice to the Trustee and the Paying Agent provided for in this Section 3.2 at least 45 days before the Redemption Date (unless a shorter notice shall be satisfactory to the Trustee and the Paying Agent). Any such notice may be cancelled at any time prior to notice of such redemption being mailed to any Holder and shall thereby be void and of no effect. SECTION 3.3. SELECTION OF SECURITIES TO BE REDEEMED. If less than all of the Securities are to be redeemed pursuant to Paragraph 5 thereof, the Trustee shall select the Securities to be redeemed by lot or by such other method as the Trustee shall determine to be appropriate and fair. The Trustee shall make the selection from the Securities outstanding and not previously called for redemption and shall promptly notify the Company and the Paying Agent in writing of the Securities selected for redemption and, in the case of any Security selected for partial redemption, the principal amount thereof to be redeemed. Securities in denominations of $1,000 may be redeemed only in whole. The Trustee may select for redemption portions (equal to $1,000 or any integral multiple thereof) of the 47 principal of Securities that have denominations larger than $1,000. Provisions of this Indenture that apply to Securities called for redemption also apply to portions of Securities called for redemption. SECTION 3.4. NOTICE OF REDEMPTION. At least 30 days but not more than 60 days before a Redemption Date, the Company shall mail a notice of redemption by first class mail, postage prepaid, to the Trustee, the Paying Agent and each Holder whose Securities are to be redeemed. At the Company's request, the Paying Agent shall give the notice of redemption in the Company's name and at the Company's expense. Each notice for redemption shall identify the Securities to be redeemed and shall state: (1) the Redemption Date; (2) the Redemption Price, including the amount of accrued and unpaid interest to be paid upon such redemption; (3) the name, address and telephone number of the Paying Agent; (4) that Securities called for redemption must be surrendered to the Paying Agent at the address specified in such notice to collect the Redemption Price; (5) that, unless the Company defaults in its obligation to deposit with the Paying Agent Cash, or U.S. Government Obligations which through the scheduled payment of principal and interest in respect thereof in accordance with their terms will provide, not later than one day before the due date of any payment, Cash in an amount to fund the Redemption Price, in accordance with Section 3.6 hereof or such redemption payment is otherwise prohibited, interest on Securities called for redemption ceases to accrue on and after the Redemption Date and the only remaining right of the Holders of such Securities is to receive payment of the Redemption Price, including accrued and unpaid interest to the Redemption Date, upon surrender to the Paying Agent of the Securities called for redemption and to be redeemed; 48 (6) if any Security is being redeemed in part, the portion of the principal amount, equal to $1,000 or any integral multiple thereof, of such Security to be redeemed and that, after the Redemption Date, and upon surrender of such Security, a new Security or Securities in aggregate principal amount equal to the unredeemed portion thereof will be issued; (7) if less than all the Securities are to be redeemed, the identification of the particular Securities (or portion thereof) to be redeemed, as well as the aggregate principal amount of such Securities to be redeemed and the aggregate principal amount of Securities to be outstanding after such partial redemption; (8) the CUSIP number of the Securities to be redeemed; and (9) that the notice is being sent pursuant to this Section 3.4 and pursuant to the optional redemption provisions of Paragraph 5 of the Securities. SECTION 3.5. EFFECT OF NOTICE OF REDEMPTION. Once notice of redemption is mailed in accordance with Section 3.4, Securities called for redemption become due and payable on the Redemption Date and at the Redemption Price, including accrued and unpaid interest to the Redemption Date. Upon surrender to the Paying Agent, such Securities called for redemption shall be paid at the Redemption Price, including interest, if any, accrued and unpaid to the Redemption Date; PROVIDED that if the Redemption Date is after a regular Record Date and on or prior to the Interest Payment Date to which such Record Date relates, the accrued interest shall be payable to the Holder of the redeemed Securities registered on the relevant Record Date; and PROVIDED, FURTHER, that if a Redemption Date is a non-Business Day, payment shall be made on the next succeeding Business Day and no interest shall accrue for the period from such Redemption Date to such succeeding Business Day. SECTION 3.6. DEPOSIT OF REDEMPTION PRICE. On or prior to 10 a.m., New York City time, on the Redemption Date, the Company shall deposit with the Paying Agent (other than the Company or an Affiliate of the Company) Cash or U.S. Government Obligations sufficient to pay 49 the Redemption Price of, including accrued and unpaid interest on, all Securities to be redeemed on such Redemption Date (other than Securities or portions thereof called for redemption on that date that have been delivered by the Company to the Registrar for cancellation). The Paying Agent shall promptly return to the Company any Cash or U.S. Government Obligations so deposited which is not required for that purpose upon the written request of the Company. If the Company complies with the preceding paragraph and the other provisions of this Article III and payment of the Securities called for redemption is not otherwise prohibited, interest on the Securities to be redeemed will cease to accrue on the applicable Redemption Date, whether or not such Securities are presented for payment. Notwithstanding anything herein to the contrary, if any Security surrendered for redemption in the manner provided in the Securities shall not be so paid upon surrender for redemption because of the failure of the Company to comply with the preceding paragraph, interest shall continue to accrue and be paid from the Redemption Date until such payment is made on the unpaid principal, and, to the extent lawful, on any interest not paid on such unpaid principal, in each case at the rate and in the manner provided in Section 4.1 hereof and the Security. SECTION 3.7. SECURITIES REDEEMED IN PART. Upon surrender of a Security that is to be redeemed in part, the Company shall execute and the Trustee shall authenticate and deliver to the Holder, without service charge to the Holder, a new Security or Securities equal in principal amount to the unredeemed portion of the Security surrendered. ARTICLE IV COVENANTS SECTION 4.1. PAYMENT OF SECURITIES. The Company shall pay the principal of and interest and premium, if applicable, on the Securities on the dates and in the manner provided herein and in the Securities. An installment of principal of or interest and premium, if applicable, on the Securities shall be considered 50 paid on the date it is due if the Trustee or Paying Agent (other than the Company, a Subsidiary of the Company or an Affiliate of the Company) holds for the benefit of the Holders, on or before 10:00 a.m. New York City time on that date, Cash deposited and designated for and sufficient to pay the installment. The Company shall pay interest on overdue principal and on overdue installments of interest at the rate specified in the Securities compounded semi-annually, to the extent lawful. SECTION 4.2. MAINTENANCE OF OFFICE OR AGENCY. The Company shall maintain in the Borough of Manhattan, The City of New York, an office or agency where Securities may be presented or surrendered for payment, where Securities may be surrendered for registration of transfer or exchange and where notices and demands to or upon the Company in respect of the Securities and this Indenture may be served. The Company shall give prompt written notice to the Trustee and the Paying Agent of the location, and any change in the location, of such office or agency. If at any time the Company shall fail to maintain any such required office or agency or shall fail to furnish the Trustee and the Paying Agent with the address thereof, such presentations, surrenders, notices and demands may be made or served at the address of the Trustee set forth in Section 13.2. The Company may also from time to time designate one or more other offices or agencies where the Securities may be presented or surrendered for any or all such purposes and may from time to time rescind such designations; PROVIDED, HOWEVER, that no such designation or rescission shall in any manner relieve the Company of its obligation to maintain an office or agency in the Borough of Manhattan, The City of New York, for such purposes. The Company shall give prompt written notice to the Trustee and the Paying Agent of any such designation or rescission and of any change in the location of any such other office or agency. The Company hereby initially designates the principal corporate trust office of the Paying Agent as such office. 51 SECTION 4.3. LIMITATION ON RESTRICTED PAYMENTS. On and after the Issue Date the Company shall not, and shall not permit any of its Subsidiaries to, directly or indirectly, make any Restricted Payment, if, after giving effect to such Restricted Payment on a PRO FORMA basis, (1) a Default or an Event of Default shall have occurred and be continuing, (2) the Company is not permitted to incur at least $1.00 of additional Indebtedness pursuant to the Leverage Ratio in Section 4.11, or (3) the aggregate amount of all Restricted Payments made by the Company and its Subsidiaries, including after giving effect to such proposed Restricted Payment, from and after the Issue Date, would exceed the sum of (a)(x) 100% of the aggregate Consolidated EBITDA of the Company and its Consolidated Subsidiaries for the period (taken as one accounting period), commencing on the first day of the first full fiscal quarter commencing after the Issue Date, to and including the last day of the fiscal quarter ended immediately prior to the date of each such calculation (or, in the event Consolidated EBITDA for such period is a deficit, then minus 100% of such deficit) less (y) 1.4 times Consolidated Fixed Charges for the same period plus (b) the aggregate Net Cash Proceeds received by the Company from the sale of its Qualified Capital Stock (other than (i) to a Subsidiary of the Company and (ii) to the extent applied in connection with a Qualified Exchange), after the Issue Date. The foregoing clauses (2) and (3) of the immediately preceding paragraph, however, will not prohibit (w) payments to the Parent Guarantor to reimburse the Parent Guarantor for reasonable and necessary corporate and administrative expenses, (x) Restricted Investments, PROVIDED, that, after giving PRO FORMA effect to such Restricted Investment, the aggregate amount of all such Restricted Investments made on or after the Issue Date that are outstanding (after giving effect to any such Restricted Investments that are returned to the Company or the Subsidiary Guarantor that made such prior Restricted Investment, without restriction, in cash on or prior to the date of any such calculation) at any time does not exceed $25.0 million, (y) a Qualified Exchange and (z) the payment of any dividend on Qualified Capital Stock within 60 days after the date of its declaration if such dividend could have been made on the date of such declaration in compliance with the foregoing provisions. The full amount of any Restricted Payment made 52 pursuant to the foregoing clauses (x) and (z) of the immediately preceding sentence, however, will be deducted in the calculation of the aggregate amount of Restricted Payments available to be made pursuant to clause (3) of the immediately preceding paragraph. SECTION 4.4. CORPORATE EXISTENCE. Subject to Article V, the Company and the Guarantors shall do or cause to be done all things necessary to preserve and keep in full force and effect their respective corporate existence in accordance with the respective organizational documents of each of them (as the same may be amended from time to time) and the rights (charter and statutory) and corporate franchises of the Company and the Guarantors; PROVIDED, HOWEVER, nothing in this Section will prohibit the Company or any Guarantor from engaging in any transaction permitted under Section 12.4 or Section 12.5 hereof and PROVIDED FURTHER that neither the Company nor any Guarantor shall be required to preserve any right or franchise if (a) the Board of Directors of the Company shall determine that the preservation thereof is no longer desirable in the conduct of the business of such entity and (b) the loss thereof is not disadvantageous in any material respect to the Holders. SECTION 4.5. PAYMENT OF TAXES AND OTHER CLAIMS. Except with respect to immaterial items, the Company and the Guarantors shall, and shall cause each of their Subsidiaries to, pay or discharge or cause to be paid or discharged, before the same shall become delinquent, (i) all taxes, assessments and governmental charges (including withholding taxes and any penalties, interest and additions to taxes) levied or imposed upon the Company and the Guarantors or any of their Subsidiaries or any of their respective properties and assets; and (ii) all lawful claims, whether for labor, materials, supplies, services or anything else, which have become due and payable and which by law have or may become a Lien upon the property and assets of the Company and the Guarantors or any of their Subsidiaries; PROVIDED, HOWEVER, that neither the Company nor any of the Guarantors shall be required to pay or discharge or cause to be paid or discharged any such tax, assessment, charge or claim whose amount, applicability or validity is being contested in good faith by appropriate proceedings and for which 53 disputed amounts adequate reserves have been established in accordance with GAAP. SECTION 4.6. MAINTENANCE OF PROPERTIES AND INSURANCE. The Company and the Guarantors shall cause all material properties used or useful to the conduct of their business and the business of each of their Subsidiaries to be maintained and kept in good condition, repair and working order (reasonable wear and tear excepted) and supplied with all necessary equipment and shall cause to be made all necessary repairs, renewals, replacements, betterments and improvements thereof, all as in their reasonable judgment may be necessary, so that the business carried on in connection therewith may be properly conducted at all times; PROVIDED, HOWEVER, that nothing in this Section 4.6 shall prevent the Company or any Guarantor from discontinuing any operation or maintenance of any of such properties, or disposing of any of them, if such discontinuance or disposal is (a), in the judgment of the Board of Directors of the Company, desirable in the conduct of the business of such entity and (b) not disadvantageous in any material respect to the Holders. The Company and the Guarantors shall provide, or cause to be provided, for themselves and each of their Subsidiaries, insurance (including appropriate self-insurance) against loss or damage of the kinds that, in the reasonable, good faith opinion of the Company is adequate and appropriate for the conduct of the business of the Company, the Guarantors and such Subsidiaries. SECTION 4.7. COMPLIANCE CERTIFICATE; NOTICE OF DEFAULT. (a) The Company shall deliver to the Trustee within 120 days after the end of its fiscal year an Officers' Certificate, one of the signers of which shall be the principal executive, principal financial or principal accounting officer of the Company, complying with Section 314(a)(4) of the TIA and stating that a review of its activities and the activities of its Subsidiaries, if any, during the preceding fiscal year has been made under the supervision of the signing Officers with a view to determining whether the Company has kept, observed, performed and fulfilled its obligations under this Indenture (without regard 54 to notice requirements or grace periods)and further stating, as to each such Officer signing such certificate, whether or not the signer knows of any failure by the Company or any Guarantor to comply with any conditions or covenants in this Indenture and, if such signer does know of such a failure to comply, the certificate shall describe such failure with particularity. The Officers' Certificate shall also notify the Trustee should the relevant fiscal year end on any date other than the current fiscal year end date. (b) The Company shall, so long as any of the Securities are outstanding, deliver to the Trustee, promptly upon becoming aware of any Default or Event of Default, an Officers' Certificate specifying such Default or Event of Default and what action the Company is taking or proposes to take with respect thereto. The Trustee shall not be deemed to have knowledge of any Default or any Event of Default unless one of its Trust Officers receives written notice thereof from the Company or any of the Holders. SECTION 4.8. REPORTS. For so long as the Parent Guarantor or any successor thereto is subject to the reporting requirements of Section 13 or 15(d) of the Exchange Act and the Company is a wholly owned Subsidiary of the Parent Guarantor, the Company shall deliver to the Trustee, and to each Holder, the Parent Guarantor's annual and quarterly reports pursuant to Section 13 or 15(d) of the Exchange Act, within 15 days after such reports have been filed with the Commission; PROVIDED, HOWEVER; in the event either (i) the Parent Guarantor or a successor as set forth above is no longer subject to the reporting requirements of Section 13 or 15(d) of the Exchange Act or (ii) the Company is no longer a wholly owned Subsidiary of the Parent Guarantor or a successor as set forth above, then whether or not the Company is subject to the reporting requirements of Section 13 or 15(d) of the Exchange Act, the Company shall deliver to the Trustee and, to each Holder, within 15 days after it is or would have been (if it were subject to such reporting obligations) required to file such with the Commission, annual and quarterly financial statements substantially equivalent to financial statements that would have been included in reports filed with the Commission, if the Company were subject to the requirements of Section 13 or 15(d) of the Exchange Act, including, with respect to annual information only, a report thereon by the Company's certified independent ac- 55 countants as such would be required in such reports to the Commission, and, in each case, together with a management's discussion and analysis of financial condition and results of operations which would be so required and, to the extent permitted by the Exchange Act or the Commission (if it were subject to such reporting obligations), file with the Commission the annual, quarterly and other reports which it is or would have been required to file with the Commission. Delivery of such reports, information and documents to the Trustee is for informational purposes only and the Trustee's receipt of such shall not constitute constructive notice of any information contained therein or determinable from information contained therein, including the Company's compliance with any of its covenants hereunder (as to which the Trustee is entitled to rely exclusively on Officers' Certificates). SECTION 4.9. LIMITATION ON STATUS AS INVESTMENT COMPANY. Neither the Company nor any Subsidiary shall become an "investment company" (as that term is defined in the Investment Company Act of 1940, as amended), or otherwise become subject to regulation under the Investment Company Act. SECTION 4.10. LIMITATION ON TRANSACTIONS WITH AFFILIATES. After the Issue Date, the Company shall not, and shall not permit any of its Subsidiaries to, enter into any contract, agreement, arrangement or transaction with any Affiliate (an "Affiliate Transaction") or any series of related Affiliate Transactions (other than Exempted Affiliate Transactions) (i) unless it is determined that the terms of such Affiliate Transaction are fair and reasonable to the Company, and no less favorable to the Company than could have been obtained in an arm's length transaction with a non-Affiliate and, (ii) if involving consideration to either party in excess of $5.0 million, unless such Affiliate Transaction(s) is evidenced by (A) an Officers' Certificate addressed and delivered to the Trustee certifying that such Affiliate Transaction (or Transactions) has been approved by a majority of the members of the Board of Directors 56 of the Company that are disinterested in such transaction or, (B) in the event there are no members of the Board of Directors of the Company who are disinterested in such transaction, then so long as the Company is a wholly owned Subsidiary of the Parent Guarantor, an Officers' Certificate addressed and delivered to the Trustee certifying that such Affiliate Transaction (or Transactions) have been approved by a majority of the members of the Board of Directors of the Parent Guarantor that are disinterested in such transaction and (iii) if involving consideration to either party in excess of $10.0 million, unless in addition the Company, prior to the consummation thereof, obtains a written favorable opinion as to the fairness of such transaction to the Company from a financial point of view from an independent investment banking firm of national reputation. SECTION 4.11. LIMITATION ON INCURRENCE OF ADDITIONAL INDEBTEDNESS AND DISQUALIFIED CAPITAL STOCK. Except as set forth below, neither the Company nor any of the Company's Subsidiaries shall, directly or indirectly, issue, assume, guaranty, incur, become directly or indirectly liable with respect to (including as a result of an Acquisition), or otherwise become responsible for, contingently or otherwise (individually and collectively, to "incur" or, as appropriate, an "incurrence"), any Indebtedness or any Disqualified Capital Stock (including Acquired Indebtedness) other than Permitted Indebtedness. Notwithstanding the foregoing limitations, the Company may incur Indebtedness and Disqualified Capital Stock in addition to Permitted Indebtedness: if (i) no Default or Event of Default shall have occurred and be continuing at the time of, or would occur after giving effect on a PRO FORMA basis to, such incurrence of Indebtedness or Disqualified Capital Stock and (ii) on the date of such incurrence (the "Incurrence Date"), the Leverage Ratio of the Company for the Reference Period immediately preceding the Incurrence Date, after giving effect on a PRO FORMA basis to such incurrence of such Indebtedness or Disqualified Capital Stock and, to the extent set forth in the definition of Leverage Ratio, the use of proceeds thereof, would be less than 7.0 to 1. Indebtedness or Disqualified Capital Stock of any person which is outstanding at the time such person becomes a Subsidiary of the Company (including upon designation of any subsidiary or other person as a Subsidiary) or is merged with or into or consolidated with the Company or a Subsidiary of the Company shall be deemed to have been Incurred at the time such Person becomes such a Subsidiary of the Compa- 57 ny or is merged with or into or consolidated with the Company or a Subsidiary of the Company, as applicable. SECTION 4.12. LIMITATIONS ON DIVIDENDS AND OTHER PAYMENT RESTRICTIONS AFFECTING SUBSIDIARIES. Neither the Company nor any of its Subsidiaries shall permit any of their Subsidiaries to, create, assume or suffer to exist any consensual restriction on the ability of any Subsidiary of the Company to pay dividends or make other distributions to or on behalf of, or to pay any obligation to or on behalf of, or otherwise to transfer assets or property to or on behalf of, or make or pay loans or advances to or on behalf of, the Company or any Subsidiary of the Company, except (a) restrictions imposed by the Securities or this Indenture, (b) restrictions imposed by applicable law, (c) existing restrictions under Indebtedness outstanding on the Issue Date, (d) restrictions under any Acquired Indebtedness not incurred in violation of this Indenture or any agreement relating to any property, asset, or business acquired by the Company or any of its Subsidiaries, which restrictions in each case existed at the time of acquisition, were not put in place in connection with or in anticipation of such acquisition and are not applicable to any person, other than the person acquired, or to any property, asset or business, other than the property, assets and business so acquired, (e) any such restriction or requirement imposed by Indebtedness incurred under paragraph (f) under the definition of Permitted Indebtedness, provided such restriction or requirement is no more restrictive than that imposed by the Credit Facility as of the Issue Date, (f) restrictions with respect solely to a Subsidiary of the Company imposed pursuant to a binding agreement which has been entered into for the sale or disposition of all or substantially all of the Equity Interests or assets of such Subsidiary, provided such restrictions apply solely to the Equity Interests or assets of such Subsidiary which are being sold, and (g) in connection with and pursuant to permitted Refinancings, replacements of restrictions imposed pursuant to clauses (a), (c) or (d) of this paragraph that are not more restrictive than those being replaced and do not apply to any other person or assets than those that would have been covered by the restrictions in the Indebtedness so refinanced. Notwithstanding the foregoing, neither (a) customary provisions restricting subletting or assignment of any lease entered into in the ordinary course of business, consistent with industry practice, or other stan- 58 dard non-assignment clauses in contracts entered into in the ordinary course of business, (b) Capital Leases or agreements governing purchase money Indebtedness which contain restrictions of the type referred to above with respect to the property covered thereby, nor (c) Liens permitted under the terms hereof on assets securing Senior Debt incurred pursuant to the Leverage Ratio in Section 4.11 or permitted pursuant to the definition of Permitted Indebtedness, shall in and of themselves be considered a restriction on the ability of the applicable Subsidiary to transfer such agreement or assets, as the case may be. SECTION 4.13. LIMITATIONS ON LAYERING INDEBTEDNESS; LIENS. The Company and its Subsidiaries shall not, and shall not permit any of their Subsidiaries to, directly or indirectly, incur, or, other than with respect to the 10 1/8% Notes and the 9 3/4% Notes, suffer to exist (a) any Indebtedness that is subordinate in right of payment to any other Indebtedness of the Company or a Guarantor unless, by its terms, such Indebtedness (i) has a maturity date subsequent to the Stated Maturity of the Securities and an Average Life longer than that of the Securities and (ii) is subordinate in right of payment to, or ranks PARI PASSU with, the Securities or the Guarantees, as applicable, or (b) other than Permitted Liens, any Lien upon any of properties or assets, whether now owned or hereafter acquired, or upon any income or profits therefrom securing Indebtedness other than (1) Liens securing Senior Debt incurred pursuant to the Leverage Ratio in accordance with Section 4.11 and (2) Liens securing Senior Debt incurred as permitted pursuant to the definition of Permitted Indebtedness. SECTION 4.14. LIMITATION ON SALE OF ASSETS AND SUBSIDIARY STOCK. The Company and its Subsidiaries shall not, and shall not permit any of their Subsidiaries to, in one or a series of related transactions, sell, transfer, or otherwise dispose of, any of its property, business or assets, including by merger or consolidation (in the case of a Guarantor or a Subsidiary of the Company), and including any sale or other transfer or issuance of any Equity Interests of any direct or indirect Subsidiary of the Company, whether by the Company or a direct or indirect Subsidiary thereof (an "Asset Sale"), unless (1) within 450 days after the date of 59 such Asset Sale, the Net Cash Proceeds therefrom (the "Asset Sale Offer Amount") are (a) applied to the optional redemption of the Securities in accordance with the terms hereof and the Securities or to the repurchase of the Securities pursuant to an irrevocable, unconditional cash offer (the "Asset Sale Offer") to repurchase Securities at a purchase price (the "Asset Sale Offer Price") of 100% of principal amount, plus accrued interest to the date of payment, (b) invested in assets and property (other than notes, bonds, obligations and securities) which in the good faith reasonable judgment of the Board of the Company will immediately constitute or be a part of a Related Business of the Company or a Subsidiary (if it continues to be a Subsidiary) immediately following such transaction or (c) used to permanently retire or reduce Senior Debt or Indebtedness permitted pursuant to paragraphs (d), (e) or (f) under the definition of Permitted Indebtedness (including that in the case of a revolver or similar arrangement that makes credit available, such commitment is so permanently reduced by such amount), (2) with respect to any Asset Sale or related series of Asset Sales involving securities, property or assets with an aggregate fair market value in excess of $2.5 million, at least 75% of the consideration for such Asset Sale or series of related Asset Sales (excluding the amount of (A) any Indebtedness (other than the Securities) that is required to be repaid or assumed (and is either repaid or assumed by the transferee of the related assets) by virtue of such Asset Sale and which is secured by a Lien on the property or asset sold and (B) property received by the Company or any such Subsidiary from the transferee that within 90 days of such Asset Sale is converted into cash or Cash Equivalents) consists of cash or Cash Equivalents (other than in the case of an Asset Swap or where the Company is exchanging all or substantially all the assets of one or more Related Businesses operated by the Company or its Subsidiaries (including by way of the transfer of capital stock) for all or substantially all the assets (including by way of the transfer of capital stock) constituting one or more Related Businesses operated by another person, in which event the foregoing requirement with respect to the receipt of cash or Cash Equivalents shall not apply), (3) no Default or Event of Default shall have occurred and be continuing at the time of, or would occur after giving effect, on a PRO FORMA basis, to, such Asset Sale, and (4) the Board of the Company determines in good faith that the Company or such Subsidiary, as applicable, receives fair market value for such Asset Sale. 60 Notwithstanding the foregoing provisions of the first paragraph of this covenant, with respect to an Asset Sale Offer, the Company shall not commence an Asset Sale Offer for the Securities until such time as an Asset Sale Offer for the 10 1/8% Notes and the 9 3/4 Notes in each case if required, has been completed. To the extent that any Excess Proceeds remain after expiration of an Asset Sale Offer Period for the 10 1/8% Notes and the 9 3/4% Notes, the Company shall use the remaining Net Cash Proceeds, to the extent "Excess Proceeds" (as defined herein) exceeds $5,000,000, to commence an Asset Sale Offer for the Securities; PROVIDED, that with respect to the 10 1/8% Notes or the 9 3/4% Notes this paragraph shall be of no further force and effect upon the earlier of (w) the maturity of the 10 1/8% Notes or the 9 3/4% Notes, respectively, (x) the date upon which defeasance of the 10 1/8% Notes or the 9 3/4% Notes becomes effective, respectively, (y) the date on which there are no longer any 10 1/8% Notes or 9 3/4% Notes outstanding in accordance with the terms of the indenture governing the 10 1/8% Notes or the 9 3/4% Notes, respectively, and (z) the date on which the Limitation on Sale of Assets and Subsidiary Stock covenant no longer applies in accordance with the terms of this Indenture governing the 10 1/8% Notes or the 9 3/4% Notes, respectively. In addition, notwithstanding the foregoing provisions of the first paragraph of this covenant: (i) the Company and its Subsidiaries may convey, sell, lease, transfer, assign or otherwise dispose of assets pursuant to an in accordance with the provisions of Section 5.1; (ii) the Company and its Subsidiaries may sell or dispose of inventory or damaged, worn out or other obsolete property in the ordinary course of business so long as such property is no longer necessary for the proper conduct of the business of the Company or such Subsidiary, as applicable; and (iii) any of the Company's Subsidiaries may convey, sell, transfer, assign or otherwise dispose of assets to, or merge with or into, the Company or any of its Wholly owned Subsidiary Guarantors. The Company shall accumulate all Net Cash Proceeds (including any cash as and when received from the proceeds of any property which itself was acquired in consideration 61 of an Asset Sale), and the aggregate amount of such accumulated Net Cash Proceeds not used for the purposes permitted and within the time provided by this Section 4.14 is referred to as the "Excess Proceeds." For purposes of this Section 4.14, "Excess Proceeds Date" means each date on which the Excess Proceeds exceeds $5,000,000. Not later than ten Business Days after each Excess Proceeds Date, the Company will commence an Asset Sale Offer, to the Holders to purchase, on a PRO RATA basis, for Cash, Securities having a principal amount equal to the Excess Proceeds Amount at the Asset Sale Offer Price, equal to 100% of principal amount, plus accrued but unpaid interest to, and including, the date (the "Purchase Date"), the Securities tendered are purchased and paid for in accordance with this Section 4.14. The Asset Sale Offer shall remain open for twenty Business Days, except to the extent that a longer period is required by applicable law, but in any case not more than sixty Business Days after such Excess Proceeds Date. Notice of an Asset Sale Offer will be sent on or before the commencement of any Asset Sale Offer, by first-class mail, by the Company to each Holder at its registered address, with a copy to the Trustee. The notice to the Holders will contain all information, instructions and materials required by applicable law or otherwise material to such Holders' decision to tender Securities pursuant to the Asset Sale Offer. The notice, which (to the extent consistent with this Indenture) shall govern the terms of the Asset Sale Offer, shall state: (1) that the Asset Sale Offer is being made pursuant to such notice and this Section 4.14; (2) the Asset Sale Offer Amount, the Asset Sale Offer Price (including the amount of accrued and unpaid interest), the Final Put Date (as defined below), and the Purchase Date, which Purchase Date shall be on or prior to 60 Business Days following the Excess Proceeds Date; (3) that any Security or portion thereof not tendered or 62 accepted for payment will continue to accrue interest; (4) that, unless the Company defaults in depositing Cash with the Paying Agent in accordance with the immediately following paragraph of this Section 4.14 or such payment is otherwise prevented, any Security, or portion thereof, accepted for payment pursuant to the Asset Sale Offer shall cease to accrue interest after the Purchase Date; (5) that Holders electing to have a Security, or portion thereof, purchased pursuant to an Asset Sale Offer will be required to surrender the Security, with the form entitled "Option of Holder to Elect Purchase" on the reverse of the Security completed, to the Paying Agent (which may not for purposes of this Section 4.14, notwithstanding anything in this Indenture to the contrary, be the Company or any Affiliate of the Company) at the address specified in the notice prior to the close of business on the earlier of (a) the third Business Day prior to the Purchase Date and (b) the third Business Day following the expiration of the Asset Sale Offer (such earlier date being the "Final Put Date"); (6) that Holders will be entitled to withdraw their elections, in whole or in part, if the Paying Agent (which may not for purposes of this Section 4.14, notwithstanding any other provision of this Indenture, be the Company or any Affiliate of the Company) receives, up to the close of business on the Final Put Date, a facsimile transmission or 63 letter setting forth the name of the Holder, the principal amount of the Securities the Holder is withdrawing and a statement that such Holder is withdrawing his election to have such principal amount of Securities purchased; (7) that if Securities in a principal amount in excess of the principal amount of Securities to be acquired pursuant to the Asset Sale Offer are tendered and not withdrawn, the Trustee shall select the Securities to be purchased on a PRO RATA basis (with such adjustments as may be deemed appropriate by the Company so that only Securities in denominations of $1,000 or integral multiples of $1,000 shall be acquired); (8) that Holders whose Securities were purchased only in part will be issued new Securities equal in principal amount to the unpurchased portion of the Securities surrendered; and (9) a brief description of the circumstances and relevant facts regarding such Asset Sales. On or before a Purchase Date, the Company shall, to the extent lawful, (i) accept for payment Securities or portions thereof properly tendered pursuant to the Asset Sale Offer on or before the Final Put Date (on a PRO RATA basis if required pursuant to paragraph (7) of this Section 4.14), (ii) deposit with the Paying Agent Cash sufficient to pay the Asset Sale Offer Price for all Securities or portions thereof so tendered and accepted and (iii) deliver to the Paying Agent Securities so accepted together with an Officers' Certificate stating the Securities or portions thereof being purchased by the Company. The Paying Agent shall on each Purchase Date mail or deliver to Holders of 64 Securities so accepted payment in an amount equal to the Asset Sale Offer Price for such Securities, and the Trustee shall promptly authenticate and mail or deliver to such Holders a new Security equal in principal amount to any unpurchased portion of the Security surrendered; PROVIDED that if the Purchase Date is after a regular Record Date and on or prior to the Interest Payment Date to which such Record Date relates, the accrued interest shall be payable to the Holder of the purchased Securities registered on the relevant Record Date. Any Security not so accepted shall be promptly mailed or delivered by the Company to the Holder thereof. All Net Cash Proceeds from an Event of Loss shall be applied to the restoration, repair or replacement of the asset so affected or invested, used for prepayment of Senior Debt, or used to repurchase Securities, all within the period and as otherwise provided above in clauses 1(a), 1(b) or 1(c) of the first paragraph of this covenant. In addition to the foregoing, the Company will not, and will not permit any of its Subsidiaries to, directly or indirectly make any Asset Sale of any of the Equity Interests of any Subsidiary except pursuant to an Asset Sale of all the Equity Interests of such Subsidiary. Any such Asset Sale Offer shall comply with all applicable laws, rules and regulations, including Regulation 14E of the Exchange Act and the rules and regulations thereunder and all other applicable Federal and State securities laws, if applicable, and any provisions of this Indenture that conflict with such laws shall be deemed to be superseded by the provisions of such laws. If the amount required to be paid by the Company in order to acquire all Securities duly tendered by Holders (and not withdrawn) pursuant to an Asset Sale Offer (the "Acceptance Amount"), made pursuant to the second paragraph of this Section 4.14 is less than the Asset Sale Offer Amount, the excess of the Asset Sale Offer Amount over the Acceptance Amount may be used by the Company for general corporate purposes without restriction, unless otherwise restricted by the other provisions of this Indenture. Upon consummation of any Asset Sale Offer made in accordance with the terms of this Indenture, the Accumulated Amount will be reduced to zero irrespective of the amount of Securities tendered pursuant to the Asset Sale Offer. 65 Notwithstanding the foregoing provisions of clause (1)(b) in the first paragraph of this Section 4.14, the Company may invest in a controlling interest in the Capital Stock of an entity engaged in a Related Business; PROVIDED, that concurrently with such an Investment, such entity becomes a Subsidiary Guarantor. SECTION 4.15. LIMITATION ON ASSET SWAPS. Neither the Company nor any of its Subsidiaries shall, and shall not permit any of their Subsidiaries to, in one or a series of related transactions, directly or indirectly, engage in any Asset Swaps, unless: (i) at the time of entering into the agreement to swap assets and immediately after giving effect to the proposed Asset Swap, no Default or Event of Default shall have occurred and be continuing or would occur as a consequence thereof; (ii) the Company would, after giving PRO FORMA effect to the proposed Asset Swap, have been permitted to incur at least $1.00 of additional Indebtedness pursuant to the Leverage Ratio; (iii) the respective fair market values of the assets being purchased and sold by the Company or any of its Subsidiaries (as determined in good faith by the management of the Company or, if such Asset Swap includes consideration in excess of $2.5 million by the Board of Directors of the Company, as evidenced by a Board Resolution) are substantially the same at the time of entering into the agreement to swap assets; and (iv) at the time of the consummation of the proposed Asset Swap, the percentage of any decline in the fair market value (determined as aforesaid) of the asset or assets being acquired by the Company and its Subsidiaries shall not be significantly greater than the percentage of any decline in the fair market value (determined as aforesaid) of the assets being disposed of by the Company or its Subsidiaries, calculated from the time the agreement to swap assets was entered into. SECTION 4.16. LIMITATION ON LINES OF BUSINESS. The Company and its Subsidiaries shall not, and shall not permit any of their Subsidiaries to, directly or indirectly, engage to any substantial extent in any line or lines of business activity other than that which, in the reasonable good faith judgment of the Board of Directors of the Company is a Related Business. 66 SECTION 4.17. RESTRICTION ON SALE AND ISSUANCE OF SUBSIDIARY STOCK. Neither the Company nor the Guarantors shall sell, or permit any of their Subsidiaries to issue or sell, any Equity Interests of any Subsidiary of the Company to any person other than the Company or a Wholly owned Subsidiary of the Company, except for Equity Interests with no preferences or special rights or privileges and with no redemption or prepayment provisions. SECTION 4.18. WAIVER OF STAY, EXTENSION OR USURY LAWS. Each of the Company and the Guarantors covenants (to the extent that it may lawfully do so) that it will not at any time insist upon, plead, or in any manner whatsoever claim or take the benefit or advantage of, any stay or extension law or any usury law or other law which would prohibit or forgive the Company or any Guarantor from paying all or any portion of the principal of, premium of, or interest on the Securities as contemplated herein, wherever enacted, now or at any time hereafter in force, or which may affect the covenants or the performance of this Indenture; and (to the extent that it may lawfully do so) each of the Company and the Guarantors hereby expressly waives all benefit or advantage of any such law, and covenants that it will not hinder, delay or impede the execution of any power herein granted to the Trustee or any Paying Agent, but will suffer and permit the execution of every such power as though no such law had been enacted. SECTION 4.19. 144A INFORMATION REQUIREMENT. The Company shall furnish to the Holders of the Securities, securities analysts, and prospective purchasers of Securities designated by the Holders of Transfer Restricted Securities, upon their request, the information required to be delivered pursuant to Rule 144A(d)(4) under the Securities Act until such time as either the Company has concluded an offer to exchange the Exchange Securities for the Initial Securities or a registration statement relating to resales of the Securities has become effective under the Securities Act. The Company shall also furnish such information during the pendency of any suspension of effectiveness of such resale registration statement. 67 ARTICLE V SUCCESSOR CORPORATION SECTION 5.1. LIMITATION ON MERGER, SALE OR CONSOLIDATION. (a) The Company will not, directly or indirectly, consolidate with or merge with or into another person or sell, lease, convey or transfer all or substantially all of its assets (computed on a consolidated basis), whether in a single transaction or a series of related transactions, to another person or group of affiliated persons or adopt a Plan of Liquidation, unless (i) either (a) the Company is the continuing entity or (b) the resulting, surviving or transferee entity or in the case of a Plan of Liquidation, the entity which receives the greatest value from such Plan of Liquidation is a corporation organized under the laws of the United States, any state thereof or the District of Columbia and expressly assumes by supplemental indenture all of the obligations of the Company in connection with the Securities and this Indenture; (ii) no Default or Event of Default shall exist or shall occur immediately after giving effect on a PRO FORMA basis to such transaction; and (iii) immediately after giving effect to such transaction on a PRO FORMA basis, the consolidated resulting, surviving or transferee entity or, in the case of a Plan of Liquidation, the entity which receives the greatest value from such Plan of Liquidation would immediately thereafter be permitted to incur at least $1.00 of additional Indebtedness pursuant to the Leverage Ratio set forth in Section 4.11. (b) For purposes of clause (a), the sale, lease, conveyance, assignment, transfer, or other disposition of all or substantially all of the properties and assets of one or more Subsidiaries of the Company, which properties and assets, if held by the Company instead of such Subsidiaries, would constitute all or substantially all of the properties and assets of the Company on a consolidated basis, shall be deemed to be the transfer of all or substantially all of the properties and assets of the Company. 68 SECTION 5.2. SUCCESSOR CORPORATION SUBSTITUTED. Upon any consolidation or merger or any transfer of all or substantially all of the assets of the Company or consummation of a Plan of Liquidation in accordance with Section 5.1 hereof, the successor corporation formed by such consolidation or into which the Company is merged or to which such transfer is made or, in the case of a Plan of Liquidation, the entity which receives the greatest value from such Plan of Liquidation shall succeed to, and be substituted for, and may exercise every right and power of, the Company under this Indenture with the same effect as if such successor corporation had been named herein as the Company, and when a successor corporation duly assumes all of the obligations of the Company pursuant hereto and pursuant to the Securities, the Company shall be released from such obligations under the Securities and this Indenture except with respect to any obligations that arise from or are related to, such transaction. ARTICLE VI EVENTS OF DEFAULT AND REMEDIES SECTION 6.1. EVENTS OF DEFAULT. "Event of Default," wherever used herein, means any one of the following events (whatever the reason for such Event of Default and whether it shall be caused voluntarily or involuntarily or effected, without limitation, by operation of law or pursuant to any judgment, decree or order of any court or any order, rule or regulation of any administrative or governmental body): (1) failure by the Company to pay any installment of interest upon the Securities as and when the same becomes due and payable, and the continuance of any such failure for a period of 30 days; (2) failure by the Company to pay all or any part of the principal of or premium, if any, on the Securities when and as the same becomes due and payable at maturity, upon redemption, by acceleration, or otherwise, including, without limitation, default in the payment of the Change of Control Purchase Price in 69 accordance with Article XI or the Asset Sale Offer Price in accordance with Section 4.14, or otherwise; (3) failure by the Company or any Guarantor to observe or perform any other covenant or agreement contained in the Securities or this Indenture and, subject to certain exceptions, the continuance of such failure for a period of 60 days after written notice is given to the Company by the Trustee or to the Company and the Trustee by the Holders of at least 25% in aggregate principal amount of the Securities outstanding, specifying such default or breach, requiring it to be remedied and stating that such notice is a "Notice of Default" hereunder; (4) decree, judgment, or order by a court of competent jurisdiction shall have been entered adjudicating the Company or any of its Significant Subsidiaries as bankrupt or insolvent, or approving as properly filed a petition seeking reorganization of the Company or any of its Significant Subsidiaries under any bankruptcy or similar law, and such decree or order shall have continued undischarged and unstayed for a period of 60 consecutive days; or a decree, judgment or order of a court of competent jurisdiction appointing a receiver, liquidator, trustee, or assignee in bankruptcy or insolvency for the Company, any of its Significant Subsidiaries, or any substantial part of the property of any such Person, or for the winding up or liquidation of the affairs of any such Person, shall have been entered, and such decree, judgment, or order shall have remained in force undischarged and unstayed for a period of 60 days; (5) default in any issue of Indebtedness of the Company or any of its Subsidiaries with an aggregate principal amount in excess of $5.0 million, in either case (a) resulting from the failure to pay principal at final maturity, or (b) as a result of which the maturity of such Indebtedness has been accelerated prior to its stated maturity; (6) the Company or any of its Significant Subsidiaries shall institute proceedings to be adjudicated a voluntary bankrupt, or shall consent to the filing of a bankruptcy proceeding against it, or shall file a petition or answer or consent seeking reorgani- 70 zation under any bankruptcy or similar law or similar statute, or shall consent to the filing of any such petition, or shall consent to the appointment of a Custodian, receiver, liquidator, trustee, or assignee in bankruptcy or insolvency of it or any substantial part of its assets or property, or shall make a general assignment for the benefit of creditors, or shall admit in writing its inability to pay its debts generally as they become due, fail generally to pay its debts as they become due, or take any corporate action in furtherance of any of the foregoing; or (7) final unsatisfied judgments not covered by insurance aggregating in excess of $5.0 million at any one time shall be rendered against the Company or any of its Subsidiaries and not stayed, bonded or discharged for a period (during which execution shall not be effectively stayed) of 60 days (or, in the case of any such final judgment which provides for payment over time, which shall so remain unstayed, unbonded or undischarged beyond any applicable payment date provided therein). SECTION 6.2. ACCELERATION OF MATURITY DATE; RESCISSION AND ANNULMENT. If an Event of Default occurs and is continuing (other than an Event of Default specified in Section 6.1(4) or (6) relating to the Company or its Significant Subsidiaries) then in every such case, unless the principal of all of the Securities shall have already become due and payable, either the Trustee or the Holders of 25% in aggregate principal amount of the Securities outstanding, by a notice in writing to the Company (and to the Trustee if given by Holders) (an "Acceleration Notice"), may declare all of the principal and accrued interest thereon to be due and payable immediately; provided, however, that if any Senior Debt is outstanding pursuant to the New Credit Facility upon a declaration of such acceleration, such principal and interest shall be due and payable upon the earlier of (x) the third Business Day after the sending to the Company and the Representative of such written notice, unless such Event of Default is cured or waived prior to such date and (y) the date of acceleration of any Senior Debt under the New Credit Facility. In the event a declaration of acceleration resulting from an Event of Default described in Section 6.1(5) above has occurred and is continuing, such declaration of 71 acceleration shall be automatically annulled if such default is cured or waived or the holders of the Indebtedness which is the subject of such default have rescinded their declaration of acceleration in respect of such Indebtedness within five days thereof and the Trustee has received written notice or such cure, wavier or rescission and no other Event of Default described in Section 6.1(5) above has occurred that has not been cured or waived within five days of the declaration of such acceleration in respect of such Indebtedness. If an Event of Default specified in Section 6.1(4) or (6) above, relating to the Company or any Significant Subsidiary occurs, all principal and accrued interest thereon will be immediately due and payable on all outstanding Securities without any declaration or other act on the part of Trustee or the Holders. At any time after such a declaration of acceleration being made and before a judgment or decree for payment of the money due has been obtained by the Trustee as hereinafter provided in this Article VI, the Holders of not less than a majority in aggregate principal amount of then outstanding Securities, by written notice to the Company and the Trustee, may rescind, on behalf of all Holders, any such declaration of acceleration if: (1) the Company has paid or deposited with the Trustee Cash sufficient to pay (A) all overdue interest on all Securities, (B) the principal of (and premium, if any, applicable to) any Securities which would become due other than by reason of such declaration of acceleration, and interest thereon at the rate borne by the Securities, (C) to the extent that payment of such interest is lawful, interest upon overdue 72 interest at the rate borne by the Securities, (D) all sums paid or advanced by the Trustee hereunder and the compensation, expenses, disbursements and advances of the Trustee and its agents and counsel, and any other amounts due the Trustee under Section 7.7, and (2) all Events of Default, other than the non-payment of the principal of, premium, if any, and interest on Securities which have become due solely by such declaration of acceleration, have been cured or waived as provided in Section 6.12, including, if applicable, any Event of Default relating to the covenants contained in Section 11.1. Notwithstanding the previous sentence of this Section 6.2, no waiver shall be effective against any Holder for any Event of Default or event which with notice or lapse of time or both would be an Event of Default with respect to (i) any covenant or provision which cannot be modified or amended without the consent of the Holder of each outstanding Security affected thereby, unless all such affected Holders agree, in writing, to waive such Event of Default or other event and (ii) any provision requiring supermajority approval to amend, unless such default has been waived by such a supermajority. No such waiver shall cure or waive any subsequent default or impair any right consequent thereon. SECTION 6.3. COLLECTION OF INDEBTEDNESS AND SUITS FOR ENFORCEMENT BY TRUSTEE. The Company covenants that if an Event of Default in payment of principal, premium, or interest specified in clause (1) or (2) of Section 6.1 occurs and is continuing, the Company shall, upon demand of the Trustee, pay to it, for the benefit of the Holders of such Securities, the whole amount then due and payable on such Securities for principal, premium (if any) and interest, and, to the extent that payment of such interest shall be legally enforceable, interest on any overdue principal (and premium, if any) and 73 on any overdue interest, at the rate borne by the Securities, and, in addition thereto, such further amount as shall be sufficient to cover the costs and expenses of collection, including compensation to, and expenses, disbursements and advances of the Trustee and its agents and counsel and all other amounts due the Trustee under Section 7.7. If the Company fails to pay such amounts forthwith upon such demand, the Trustee, in its own name and as trustee of an express trust in favor of the Holders, may institute a judicial proceeding for the collection of the sums so due and unpaid, may prosecute such proceeding to judgment or final decree and may enforce the same against the Company or any other obligor upon the Securities and collect the moneys adjudged or decreed to be payable in the manner provided by law out of the property of the Company or any other obligor upon the Securities, wherever situated. If an Event of Default occurs and is continuing, the Trustee may in its discretion proceed to protect and enforce its rights and the rights of the Holders by such appropriate judicial proceedings as the Trustee shall deem most effective to protect and enforce any such rights, whether for the specific enforcement of any covenant or agreement in this Indenture or in aid of the exercise of any power granted herein, or to enforce any other proper remedy. SECTION 6.4. TRUSTEE MAY FILE PROOFS OF CLAIM. In case of the pendency of any receivership, insolvency, liquidation, bankruptcy, reorganization, arrangement, adjustment, composition or other judicial proceeding relative to the Company or any other obligor upon the Securities or the property of the Company or of such other obligor or their creditors, the Trustee (irrespective of whether the principal of the Securities shall then be due and payable as therein expressed or by declaration or otherwise and irrespective of whether the Trustee shall have made any demand on the Company for the payment of overdue principal and premium, if any, or interest) shall be entitled and empowered, by intervention in such proceeding or otherwise to take any and all actions under the TIA, including (1) to file and prove a claim for the whole amount of principal (and premium, if any) and interest owing and unpaid in respect 74 of the Securities and to file such other papers or documents as may be necessary or advisable in order to have the claims of the Trustee (including any claim for the reasonable compensation, expenses, disbursements and advances of the Trustee and its agent and counsel and all other amounts due the Trustee under Section 7.7) and of the Holders allowed in such judicial proceeding, and (2) to collect and receive any moneys or other property payable or deliverable on any such claims and to distribute the same; and any custodian, receiver, assignee, trustee, liquidator, sequestrator or other similar official in any such judicial proceeding is hereby authorized by each Holder to make such payments to the Trustee and, in the event that the Trustee shall consent to the making of such payments directly to the Holders, to pay to the Trustee any amount due it for the reasonable compensation, expenses, disbursements and advances of the Trustee and its agents and counsel, and any other amounts due the Trustee under Section 7.7. Nothing herein contained shall be deemed to authorize the Trustee to authorize or consent to or accept or adopt on behalf of any Holder any plan of reorganization, arrangement, adjustment, or composition affecting the Securities or the rights of any Holder thereof or to authorize the Trustee to vote in respect of the claim of any Holder in any such proceeding. SECTION 6.5. TRUSTEE MAY ENFORCE CLAIMS WITHOUT POSSESSION OF SECURITIES. All rights of action and claims under this Indenture or the Securities may be prosecuted and enforced by the Trustee without the possession of any of the Securities or the production thereof in any proceeding relating thereto, and any such proceeding instituted by the Trustee shall be brought in its own name as trustee of an express trust in favor of the Holders, and any recovery of judgment shall, after provision for the payment of compensation to, and expenses, disbursements and advances of the Trustee, its 75 agents and counsel and all other amounts due the Trustee under Section 7.7, be for the ratable benefit of the Holders of the Securities in respect of which such judgment has been recovered. SECTION 6.6. PRIORITIES. Any money collected by the Trustee pursuant to this Article VI shall be applied in the following order, at the date or dates fixed by the Trustee and, in case of the distribution of such money on account of principal, premium (if any) or interest, upon presentation of the Securities and the notation thereon of the payment if only partially paid and upon surrender thereof if fully paid: FIRST: To the Trustee in payment of all amounts due pursuant to Section 7.7; SECOND: To the Holders in payment of the amounts then due and unpaid for principal of, premium (if any) and interest on, the Securities in respect of which or for the benefit of which such money has been collected, ratably, without preference or priority of any kind, according to the amounts due and payable on such Securities for principal, premium (if any) and interest, respectively; and THIRD: To the Company or such other Person as may be lawfully entitled thereto, the remainder, if any. The Trustee may, but shall not be obligated to, fix a record date and payment date for any payment to the Holders under this Section 6.6. SECTION 6.7. LIMITATION ON SUITS. No Holder of any Security shall have any right to order or direct the Trustee to institute any proceeding, judicial or otherwise, with respect to this Indenture, or for the appointment of a receiver or trustee, or for any other remedy hereunder, unless (A) such Holder has previously given written notice to the Trustee of a continuing Event of Default; (B) the Holders of not less than 25% in aggregate principal amount of then outstanding Securi- 76 ties shall have made written request to the Trustee to institute proceedings in respect of such Event of Default in its own name as Trustee hereunder; (C) such Holder or Holders have offered to the Trustee reasonable security or indemnity against the costs, expenses and liabilities to be incurred or reasonably probable to be incurred in compliance with such request; (D) the Trustee for 60 days after its receipt of such notice, request and offer of indemnity has failed to institute any such proceeding; and (E) no direction inconsistent with such written request has been given to the Trustee during such 60-day period by the Holders of a majority in aggregate principal amount of the outstanding Securities; it being understood and intended that no one or more Holders shall have any right in any manner whatsoever by virtue of, or by availing of, any provision of this Indenture to affect, disturb or prejudice the rights of any other Holders, or to obtain or to seek to obtain priority or preference over any other Holders or to enforce any right under this Indenture, except in the manner herein provided and for the equal and ratable benefit of all the Holders. SECTION 6.8. UNCONDITIONAL RIGHT OF HOLDERS TO RECEIVE PRINCIPAL, PREMIUM AND INTEREST. Notwithstanding any other provision of this Indenture, the Holder of any Security shall have the right, which is absolute and unconditional, to receive payment of the principal of, and premium (if any) and interest on, such Security on the Maturity Dates of such payments as expressed in such Security (in the case of redemption, the Redemption Price on the applicable Redemption Date, in the case of the Change of Control Payment, on the applicable Change of Control Payment Date, and in the case of the Asset Sale Offer Price, on the Purchase Date) and to institute suit for the enforcement of any such payment after such respective dates, and such rights shall not be impaired without the consent of such Holder. 77 SECTION 6.9. RIGHTS AND REMEDIES CUMULATIVE. Except as otherwise provided with respect to the replacement or payment of mutilated, destroyed, lost or stolen Securities in Section 2.7, no right or remedy herein conferred upon or reserved to the Trustee or to the Holders is intended to be exclusive of any other right or remedy, and every right and remedy shall, to the extent permitted by law, be cumulative and in addition to every other right and remedy given hereunder or now or hereafter existing at law or in equity or otherwise. The assertion or employment of any right or remedy hereunder, or otherwise, shall not prevent the concurrent assertion or employment of any other appropriate right or remedy. SECTION 6.10. DELAY OR OMISSION NOT WAIVER. No delay or omission by the Trustee or by any Holder of any Security to exercise any right or remedy arising upon any Event of Default shall impair the exercise of any such right or remedy or constitute a waiver of any such Event of Default. Every right and remedy given by this Article VI or by law to the Trustee or to the Holders may be exercised from time to time, and as often as may be deemed expedient, by the Trustee or by the Holders, as the case may be. SECTION 6.11. CONTROL BY HOLDERS. The Holder or Holders of a majority in aggregate principal amount of then outstanding Securities shall have the right to direct the time, method and place of conducting any proceeding for any remedy available to the Trustee or exercising any trust or power conferred upon the Trustee, PROVIDED, that (1) such direction shall not be in conflict with any rule of law or with this Indenture or involve the Trustee in personal liability, (2) the Trustee shall not determine that the action so directed would be unjustly prejudicial to the Holders not taking part in such direction, and (3) the Trustee may take any other action deemed proper by the Trustee which is not inconsistent with such direction. 78 SECTION 6.12. WAIVER OF PAST DEFAULT. Subject to Section 6.8, and prior to the declaration of acceleration of the maturity of the Securities, the Holder or Holders of not less than a majority in aggregate principal amount of the outstanding Securities may, on behalf of all Holders, waive any past default hereunder and its consequences, except a default (A) in the payment of the principal of, premium, if any, or interest on, any Security as specified in clauses (1) and (2) of Section 6.1 and not yet cured, (B) in respect of a covenant or provision hereof which, under Article IX, cannot be modified or amended without the consent of the Holder of each outstanding Security affected, or (C) in respect of any provision hereof which, under Article IX, cannot be modified, amended or waived without the consent of the Holders of a supermajority of the aggregate principal amount of the Securities at the time outstanding; PROVIDED, that any such waiver may be effected with the consent of the Holders of a supermajority of the aggregate principal amount of the Securities then outstanding. Upon any such waiver, such default shall cease to exist, and any Event of Default arising therefrom shall be deemed to have been cured, for every purpose of this Indenture; but no such waiver shall extend to any subsequent or other default or impair the exercise of any right arising therefrom. SECTION 6.13. UNDERTAKING FOR COSTS. All parties to this Indenture agree, and each Holder of any Security by his acceptance thereof shall be deemed to have agreed, that in any suit for the enforcement of any right or remedy under this Indenture, or in any suit against the Trustee for any action taken, suffered or omitted to be taken by it as Trustee, any court may in its discretion require the filing by any party litigant in such suit of an undertaking to pay the costs of such suit, and that such court may in its discretion assess reasonable 79 costs, including reasonable attorneys' fees and expenses, against any party litigant in such suit, having due regard to the merits and good faith of the claims or defenses made by such party litigant; but the provisions of this Section 6.13 shall not apply to any suit instituted by the Company, to any suit instituted by the Trustee, to any suit instituted by any Holder, or group of Holders, holding in the aggregate more than 10% in aggregate principal amount of the outstanding Securities, or to any suit instituted by any Holder for enforcement of the payment of principal of, or premium (if any) or interest on, any Security on or after the respective Maturity Date expressed in such Security (including, in the case of redemption, on or after the Redemption Date). SECTION 6.14. RESTORATION OF RIGHTS AND REMEDIES. If the Trustee or any Holder has instituted any proceeding to enforce any right or remedy under this Indenture and such proceeding has been discontinued or abandoned for any reason, or has been determined adversely to the Trustee or to such Holder, then and in every case, subject to any determination in such proceeding, the Company, the Guarantors, the Trustee and the Holders shall be restored severally and respectively to their former positions hereunder and thereafter all rights and remedies of the Trustee and the Holders shall continue as though no such proceeding had been instituted. ARTICLE VII TRUSTEE The Trustee hereby accepts the trust imposed upon it by this Indenture and covenants and agrees to perform the same, as herein expressed, subject to the terms hereof. SECTION 7.1. DUTIES OF TRUSTEE. (a) If an Event of Default has occurred and is continuing, the Trustee shall exercise such of the rights and powers vested in it by this Indenture and use the same degree of care and skill in their exercise as a prudent Person would exercise or use under the circumstances in the conduct of his own affairs. 80 (b) Except during the continuance of an Event of Default: (1) The Trustee need perform only those duties as are specifically set forth in this Indenture and no others, and no covenants or obligations shall be implied in or read into this Indenture which are adverse to the Trustee, and (2) In the absence of bad faith on its part, the Trustee may conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon certificates or opinions furnished to the Trustee and conforming to the requirements of this Indenture. However, in the case of any such certificates or opinions which by any provision hereof are specifically required to be furnished to the Trustee, the Trustee shall examine the certificates and opinions to determine whether or not they conform to the requirements of this Indenture. (c) The Trustee may not be relieved from liability for its own negligent action, its own negligent failure to act, or its own willful misconduct, except that: (1) This paragraph does not limit the effect of paragraph (b) of this Section 7.1, (2) The Trustee shall not be liable for any error of judgment made in good faith by a Trust Officer, unless it is proved that the Trustee was negligent in ascertaining the pertinent facts, and (3) The Trustee shall not be liable with respect to any action it takes or omits to take in good faith in accordance with a direction received by it pursuant to Section 6.11. (d) No provision of this Indenture shall require the Trustee to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder or to take or omit to take any action under this Indenture or at the request, order or direction of the Holders or in the exercise of any of its rights or powers if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity 81 against such risk or liability is not reasonably assured to it. (e) Every provision of this Indenture that in any way relates to the Trustee is subject to paragraphs (a), (b), (c), (d) and (f) of this Section 7.1. (f) The Trustee shall not be liable for interest on any assets received by it except as the Trustee may agree in writing with the Company. Assets held in trust by the Trustee need not be segregated from other assets except to the extent required by law. SECTION 7.2. RIGHTS OF TRUSTEE. Subject to Section 7.1: (a) The Trustee may conclusively rely on any document believed by it to be genuine and to have been signed or presented by the proper Person. The Trustee need not investigate any fact or matter stated in the document. (b) Before the Trustee acts or refrains from acting, it may consult with counsel of its selection and may require an Officers' Certificate or an Opinion of Counsel, which shall conform to Sections 13.4 and 13.5. The Trustee shall not be liable for any action it takes or omits to take in good faith in reliance on such certificate or advice of counsel. (c) The Trustee may act through its attorneys and agents and shall not be responsible for the misconduct or negligence of any agent appointed with due care. (d) The Trustee shall not be liable for any action it takes or omits to take in good faith which it believes to be authorized or within its rights or powers conferred upon it by this Indenture, nor for any action permitted to be taken or omitted hereunder by any Agent. (e) The Trustee shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, notice, request, direction, consent, order, bond, debenture, or other paper or document, but the Trustee, in its discretion, may make such further inquiry or investigation into such facts or matters as it may see fit. 82 (f) The Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this Indenture at the request, order or direction of any of the Holders, pursuant to the provisions of this Indenture, unless such Holders shall have offered to the Trustee reasonable security or indemnity against the costs, expenses and liabilities which may be incurred therein or thereby. (g) Unless otherwise specifically provided for in this Indenture, any demand, request, direction or notice from the Company or any Guarantor shall be sufficient if signed by an Officer of the Company or such Guarantor, as applicable. (h) The Trustee shall have no duty to inquire as to the performance of the Company's or any Guarantor's covenants in Article IV hereof or as to the performance by any Agent of its duties hereunder. In addition, the Trustee shall not be deemed to have knowledge of any Default or Event of Default except any Default or Event of Default of which the Trustee shall have received written notification or with respect to which a Trust Officer shall have actual knowledge. (i) Whenever in the administration of this Indenture the Trustee shall deem it desirable that a matter be proved or established prior to taking, suffering or omitting any action hereunder, the Trustee (unless other evidence be herein specifically prescribed) may, in the absence of bad faith on its part, rely upon an Officers' Certificate. SECTION 7.3. INDIVIDUAL RIGHTS OF TRUSTEE. The Trustee in its individual or any other capacity may become the owner or pledgee of Securities and may otherwise deal with the Company, any Guarantor, any of their Subsidiaries, or their respective Affiliates with the same rights it would have if it were not Trustee. Any Agent may do the same with like rights. However, the Trustee must comply with Sections 7.10 and 7.11. SECTION 7.4. TRUSTEE'S DISCLAIMER. The Trustee makes no representation as to the validity or adequacy of this Indenture or the Securities and 83 it shall not be accountable for the Company's use of the proceeds from the Securities, and it shall not be responsible for any statement in the Securities, other than the Trustee's certificate of authentication (if executed by the Trustee), or the use or application of any funds received by a Paying Agent other than the Trustee. SECTION 7.5. NOTICE OF DEFAULT. If a Default or an Event of Default occurs and is continuing and if it is known to the Trustee, the Trustee shall mail to each Securityholder notice of the uncured Default or Event of Default within 90 days after such Default or Event of Default occurs. Except in the case of a Default or an Event of Default in payment of principal (or premium, if any) of, or interest on, any Security (including the payment of the Change of Control Purchase Price on the Change of Control Payment Date, the payment of the Redemption Price on the Redemption Date and the payment of the Offer Price on the Purchase Date), the Trustee may withhold the notice if and so long as a Trust Officer in good faith determines that withholding the notice is in the interest of the Securityholders. SECTION 7.6. REPORTS BY TRUSTEE TO HOLDERS. Within 60 days after each May 15 beginning with the May 15, 1998 following the date of this Indenture, the Trustee shall, if required by law, mail to each Securityholder a brief report dated as of such May 15 that complies with TIA Section 313(a). The Trustee also shall comply with TIA Sections 313(b) and 313(c). The Company shall promptly notify the Trustee in writing if the Securities become listed on any stock exchange or automatic quotation system. A copy of each report at the time of its mailing to Securityholders shall be mailed to the Company and filed with the SEC and each stock exchange, if any, on which the Securities are listed. SECTION 7.7. COMPENSATION AND INDEMNITY. The Company and the Guarantors jointly and severally agree to pay to the Trustee from time to time such compensation as shall be agreed upon in writing between the 84 Company and the Trustee for its services. The Trustee's compensation shall not be limited by any law on compensation of a trustee of an express trust. The Company and the Guarantors shall reimburse the Trustee upon request for all reasonable disbursements, expenses and advances incurred or made by it in accordance with this Indenture. Such expenses shall include the reasonable compensation, disbursements and expenses of the Trustee's agents, accountants, experts and counsel. The Company and the Guarantors jointly and severally agree to indemnify the Trustee (in its capacity as Trustee) and each of its officers and each of them, directors, attorneys-in-fact and agents for, and hold it harmless against, any and all claim, demand, damage, expense (including but not limited to reasonable compensation, disbursements and expenses of the Trustee's agents and counsel), loss or liability incurred by it without negligence or bad faith on the part of the Trustee, arising out of or in connection with the acceptance or administration of this trust and its rights or duties hereunder including the reasonable costs and expenses of defending itself against any claim or liability in connection with the exercise or performance of any of its powers or duties hereunder. The Trustee shall notify the Company promptly of any claim asserted against the Trustee for which it may seek indemnity. The Company and the Guarantors shall defend the claim and the Trustee shall provide reasonable cooperation at the Company's and the Guarantors' expense in the defense. The Trustee may have separate counsel and the Company and the Guarantors shall pay the reasonable fees and expenses of such counsel. The Company and the Guarantors need not pay for any settlement made without their written consent. The Company and the Guarantors need not reimburse any expense or indemnify against any loss or liability to the extent incurred by the Trustee through its negligence, bad faith or willful misconduct. To secure the Company's and the Guarantors' payment obligations in this Section 7.7, the Trustee shall have a lien prior to the Securities on all assets held or collected by the Trustee, in its capacity as Trustee, except assets held in trust to pay principal and premium, if any, of or interest on particular Securities. When the Trustee incurs expenses or renders services after an Event of Default specified in Section 6.1(4) 85 or (6) occurs, the expenses and the compensation for the services are intended to constitute expenses of administration under any Bankruptcy Law. The Company's and the Guarantors' obligations under this Section 7.7 and any lien arising hereunder shall survive the resignation or removal of the Trustee, the discharge of the Company's and the Guarantors' obligations pursuant to Article VIII of this Indenture and any rejection or termination of this Indenture under any Bankruptcy Law. SECTION 7.8. REPLACEMENT OF TRUSTEE. The Trustee may resign by so notifying the Company in writing. The Holder or Holders of a majority in aggregate principal amount of the outstanding Securities may remove the Trustee by so notifying the Company and the Trustee in writing and may appoint a successor trustee with the Company's consent. The Company may remove the Trustee if: (a) the Trustee fails to comply with Section 7.10; (b) the Trustee is adjudged bankrupt or insolvent; (c) a receiver, Custodian, or other public officer takes charge of the Trustee or its property; or (d) the Trustee becomes incapable of acting. If the Trustee resigns or is removed or if a vacancy exists in the office of Trustee for any reason, the Company shall promptly appoint a successor Trustee. Within one year after the successor Trustee takes office, the Holder or Holders of a majority in aggregate principal amount of the Securities may appoint a successor Trustee to replace the successor Trustee appointed by the Company. A successor Trustee shall deliver a written acceptance of its appointment to the retiring Trustee and to the Company. Immediately after that and provided that all sums owing to the retiring Trustee provided for in Section 7.7 have been paid, the retiring Trustee shall transfer all property held by it as trustee to the successor Trustee, subject to the lien provided in Section 7.7, the resignation 86 or removal of the retiring Trustee shall become effective, and the successor Trustee shall have all the rights, powers and duties of the Trustee under this Indenture. A successor Trustee shall mail notice of its succession to each Holder. If a successor Trustee does not take office within 60 days after the retiring Trustee resigns or is removed, the retiring Trustee, the Company or the Holder or Holders of at least 10% in aggregate principal amount of the outstanding Securities may petition, at the expense of the Company, any court of competent jurisdiction for the appointment of a successor Trustee. If the Trustee fails to comply with Section 7.10, any Securityholder may petition any court of competent jurisdiction for the removal of the Trustee and the appointment of a successor Trustee. Notwithstanding replacement of the Trustee pursuant to this Section 7.8, the Company and the Guarantors' obligations under Section 7.7 shall continue for the benefit of the retiring Trustee. SECTION 7.9. SUCCESSOR TRUSTEE BY MERGER, ETC. If the Trustee consolidates with, merges or converts into, or transfers all or substantially all of its corporate trust business to, another corporation, the resulting, surviving or transferee corporation without any further act shall, if such resulting, surviving or transferee corporation is otherwise eligible hereunder, be the successor Trustee. SECTION 7.10. ELIGIBILITY; DISQUALIFICATION. The Trustee shall at all times satisfy the requirements of TIA Section 310(a)(1), (2) and (5). The Trustee shall have a combined capital and surplus of at least $25,000,000 as set forth in its most recent published annual report of condition. The Trustee shall comply with TIA Section 310(b). SECTION 7.11. PREFERENTIAL COLLECTION OF CLAIMS AGAINST THE COMPANY. The Trustee shall comply with TIA Section 311(a), excluding any creditor relationship listed in TIA Section 311(b). A 87 Trustee who has resigned or been removed shall be subject to TIA Section 311(a) to the extent indicated. ARTICLE VIII DISCHARGE; LEGAL DEFEASANCE AND COVENANT DEFEASANCE SECTION 8.1. DISCHARGE; OPTION TO EFFECT LEGAL DEFEASANCE OR COVENANT DEFEASANCE. This Indenture shall cease to be of further effect (except that the Company's and the Guarantors' obligations under Section 7.7 and the Trustee's and the Paying Agent's obligations under Sections 8.6 and 8.7 shall survive) when all outstanding Securities theretofore authenticated and issued have been delivered (other than destroyed, lost or stolen Securities that have been replaced or paid) to the Trustee for cancellation and the Company or the Guarantors have paid all sums payable hereunder. In addition, the Company may, at its option and at any time, elect to have Section 8.2 or may, at any time, elect to have Section 8.3 applied to all outstanding Securities upon compliance with the conditions set forth below in this Article VIII. SECTION 8.2. LEGAL DEFEASANCE AND DISCHARGE. Upon the Company's exercise under Section 8.1 of the option applicable to this Section 8.2, the Company and the Guarantors shall be deemed to have been discharged from their respective obligations with respect to all outstanding Securities on the date the conditions set forth below are satisfied (hereinafter, "Legal Defeasance"). For this purpose, such Legal Defeasance means that the Company shall be deemed to have paid and discharged the entire Indebtedness represented by the outstanding Securities, which shall thereafter be deemed to be "outstanding" only for the purposes of Section 8.5 and the other Sections of this Indenture referred to in (a) and (b) below, and to have satisfied all its other obligations under such Securities and this Indenture (and the Trustee, on demand of and at the expense of the Company, shall execute proper instruments acknowledging the same), except for the following which shall survive until otherwise terminated or discharged hereunder: (a) the rights of Holders of outstanding Securities to receive solely from the trust fund described in Section 8.4, and as more fully set forth in such section, payments in respect of 88 the principal of, premium, if any, and interest on such Securities when such payments are due, (b) the Company's obligations with respect to such Securities under Sections 2.4, 2.6, 2.7, 2.10 and 4.2, (c) the rights, powers, trusts, duties and immunities of the Trustee hereunder and the Company's and the Guarantors' obligation in connection therewith and (d) this Article VIII. Upon Legal Defeasance as provided herein, the Guaranty of each Guarantor shall be fully released and discharged and the Trustee shall promptly execute and deliver to the Company any documents reasonably requested by the Company to evidence or effect the foregoing. Subject to compliance with this Article VIII, the Company may exercise its option under this Section 8.2 notwithstanding the prior exercise of its option under Section 8.3 with respect to the Securities. SECTION 8.3. COVENANT DEFEASANCE. Upon the Company's exercise under Section 8.1 of the option applicable to this Section 8.3, the Company and the Guarantors shall be released from their respective obligations under the covenants contained in Sections 4.3, 4.5, 4.6, 4.7, 4.8, 4.9, 4.10, 4.11, 4.12, 4.13, 4.14, 4.15, 4.16 and 4.17, Article V, Article XI and Article XII with respect to the outstanding Securities on and after the date the conditions set forth below are satisfied (hereinafter, "Covenant Defeasance"), and the Securities shall thereafter be deemed not "outstanding" for the purposes of any direction, waiver, consent or declaration or act of Holders (and the consequences of any thereof) in connection with such covenants, but shall continue to be deemed "outstanding" for all other purposes hereunder. For this purpose, such Covenant Defeasance means that, with respect to the outstanding Securities, the Company need not comply with and shall have no liability in respect of any term, condition or limitation set forth in any such covenant, whether directly or indirectly, by reason of any reference elsewhere herein to any such covenant or by reason of any reference in any such covenant to any other provision herein or in any other document (and Section 6.1(3) shall not apply to any such covenant), but, except as specified above, the remainder of this Indenture and such Securities shall be unaffected thereby. In addition, upon the Company's exercise under Section 8.1 of the option applicable to this Section 8.3, Sections 6.1(3) through 6.1(7) shall not constitute Events of Default. Upon Covenant Defeasance, as provided herein, the Guaranty of each Guarantor shall be fully released and dis- 89 charged and the Trustee shall promptly execute and deliver to the Company any documents reasonably requested by the Company to evidence or effect the foregoing. SECTION 8.4. CONDITIONS TO LEGAL OR COVENANT DEFEASANCE. The following shall be the conditions to the application of either Section 8.2 or Section 8.3 to the outstanding Securities: (a) The Company shall irrevocably have deposited or caused to be deposited with the Trustee (or another trustee satisfactory to the Trustee satisfying the requirements of Section 7.10 who shall agree to comply with the provisions of this Article VIII applicable to it) as trust funds in trust for the purpose of making the following payments, specifically pledged as security for, and dedicated solely to, the benefit of the Holders of such Securities, (a) Cash in an amount, or (b) U.S. Government Obligations which through the scheduled payment of principal and interest in respect thereof in accordance with their terms will provide, not later than one day before the due date of any payment, Cash in an amount, or (c) a combination thereof, in such amounts, as in each case will be sufficient, in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered to the Trustee, to pay and discharge and which shall be applied by the Paying Agent (or other qualifying trustee) to pay and discharge the principal of, premium, if any, and interest on the outstanding Securities on the Stated Maturity or on the applicable Redemption Date, as the case may be, of such principal or installment of principal, premium, if any, or interest; PROVIDED that the Paying Agent shall have been irrevocably instructed to apply such Cash and the proceeds of such U.S. Government Obligations to said payments with respect to the Securities. The Paying Agent shall promptly advise the Trustee in writing of any Cash or Securities deposited pursuant to this Section 8.4; (b) In the case of an election under Section 8.2, the Company shall have delivered to the Trustee an Opinion of Counsel in the United States reasonably acceptable to the Trustee confirming that (i) the Company have received from, or there has been published by, the Internal Revenue Service a ruling or (ii) since the date of this Indenture there has been a change in the applicable Federal 90 income tax law, in either case to the effect that, and based thereon such opinion shall confirm that, the Holders of the outstanding Securities will not recognize income, gain or loss for Federal income tax purposes as a result of such Legal Defeasance and will be subject to Federal income tax on the same amounts, in the same manner and at the same times as would have been the case if such Legal Defeasance had not occurred; (c) In the case of an election under Section 8.3, the Company shall have delivered to the Trustee an Opinion of Counsel in the United States to the effect that the Holders of the outstanding Securities will not recognize income, gain or loss for Federal income tax purposes as a result of such Covenant Defeasance and will be subject to Federal income tax in the same amount, in the same manner and at the same times as would have been the case if such Covenant Defeasance had not occurred; (d) No Default or Event of Default with respect to the Securities shall have occurred and be continuing on the date of such deposit or, in so far as Section 6.1(4) or Section 6.1(6) is concerned, at any time in the period ending on the 91st day after the date of such deposit (it being understood that this condition is a condition subsequent which shall not be deemed satisfied until the expiration of such period, but in the case of Covenant Defeasance, the covenants which are defeased under Section 8.3 will cease to be in effect unless an Event of Default under Section 6.1(4) or Section 6.1(6) occurs during such period); (e) Such Legal Defeasance or Covenant Defeasance shall not result in a breach or violation of, or constitute a default under, this Indenture or any other material agreement or instrument to which the Company, the Guarantors, or any of their Subsidiaries is a party or by which any of them is bound; (f) In the case of an election under either Section 8.2 or 8.3, the Company shall have delivered to the Trustee an Officers' Certificate stating that the deposit made by the Company pursuant to its election under Section 8.2 or 8.3 was not made by the Company with the intent of preferring the Holders over other creditors of the Company or with the intent of defeating, hindering, delaying or defrauding creditors of the Company or others; 91 (g) The Company shall have delivered to the Trustee an Officers' Certificate stating that the conditions precedent provided for have been complied with; and (h) The Company shall have delivered to the Trustee an Opinion of Counsel stating that the conditions set out in Section 8.4(a)(with respect to the validity and perfection of the security interest), (b), (c) and (e) above. (i) The Company or the Parent Guarantor shall have delivered to the Trustee any required consent of the lenders under the Credit Facility to such defeasance or covenant defeasance, as the case may be. SECTION 8.5. DEPOSITED CASH AND U.S. GOVERNMENT OBLIGATIONS TO BE HELD IN TRUST; OTHER MISCELLANEOUS PROVISIONS. Subject to Section 8.6, all Cash and U.S. Government Obligations (including the proceeds thereof) deposited with the Paying Agent (or other qualifying trustee, collectively for purposes of this Section 8.5, the "Paying Agent") pursuant to Section 8.4 in respect of the outstanding Securities shall be held in trust and applied by the Paying Agent, in accordance with the provisions of such Securities and this Indenture, to the payment, either directly or through any other Paying Agent as the Trustee may determine, to the Holders of such Securities of all sums due and to become due thereon in respect of principal, premium, if any, and interest, but such money need not be segregated from other funds except to the extent required by law. The Company shall pay and indemnify the Trustee against any tax, fee or other charge imposed on or assessed against the U.S. Government Obligations deposited pursuant to Section 8.4 or the principal and interest received in respect thereof other than any such tax, fee or other charge which by law is for the account of the Holders of Outstanding Securities. SECTION 8.6. REPAYMENT TO THE COMPANY. Anything in this Article VIII to the contrary notwithstanding, the Trustee or the Paying Agent shall deliver or pay to the Company from time to time upon the 92 request of the Company any Cash or U.S. Government Obligations held by it as provided in Section 8.4 hereof which in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered to the Trustee (which may be the opinion delivered under Section 8.4(a) hereof), are in excess of the amount thereof that would then be required to be deposited to effect an equivalent Legal Defeasance or Covenant Defeasance. Any Cash and U.S. Government Obligations (including the proceeds thereof) deposited with the Trustee or any Paying Agent, or then held by the Company, in trust for the payment of the principal of, premium, if any, or interest on any Security and remaining unclaimed for two years after such principal, and premium, if any, or interest has become due and payable shall be paid to the Company on its request; and the Holder of such Security shall thereafter look only to the Company for payment thereof, and all liability of the Trustee or such Paying Agent with respect to such trust money shall thereupon cease; PROVIDED, HOWEVER, that the Trustee or such Paying Agent, before being required to make any such repayment, may at the expense of the Company cause to (i) be published once, in the NEW YORK TIMES and THE WALL STREET JOURNAL (national edition), or (ii) mail to each such Holder, notice that such money remains unclaimed and that, after a date specified therein, which shall not be less than 30 days from the date of such notification or publication, any unclaimed balance of such money then remaining will be repaid to the Company. SECTION 8.7. REINSTATEMENT. If the Trustee or Paying Agent is unable to apply any Cash or U.S. Government Obligations in accordance with Section 8.2 or 8.3, as the case may be, by reason of any order or judgment of any court or governmental authority enjoining, restraining or otherwise prohibiting such application, then the Company's and the Guarantors' obligations under this Indenture and the Securities shall be revived and reinstated as though no deposit had occurred pursuant to Section 8.2 or 8.3 until such time as the Trustee or Paying Agent is permitted to apply such money in accordance with Section 8.2 and 8.3, as the case may be; PROVIDED, HOWEVER, that, if the Company makes any payment of principal of, premium, if any, or interest on any Security following the 93 reinstatement of its obligations, the Company shall be subrogated to the rights of the Holders of such Securities to receive such payment from the Cash and U.S. Government Obligations held by the Trustee or Paying Agent. ARTICLE IX AMENDMENTS, SUPPLEMENTS AND WAIVERS SECTION 9.1. SUPPLEMENTAL INDENTURES WITHOUT CONSENT OF HOLDERS. Without the consent of any Holder, the Company or any Guarantor, when authorized by Board Resolutions, and the Trustee, at any time and from time to time, may enter into one or more indentures supplemental hereto, in form satisfactory to the Trustee, for any of the following purposes: (1) to cure any ambiguity, defect, or inconsistency, or make any other provisions with respect to matters or questions arising under this Indenture which shall not be inconsistent with the provisions of this Indenture, provided such action pursuant to this clause shall not adversely affect the interests of any Holder in any respect; (2) to add to the covenants of the Company or the Guarantors for the benefit of the Holders, or to surrender any right or power herein conferred upon the Company or the Guarantors; (3) to provide for additional collateral for or additional Guarantors of the Securities; (4) to evidence the succession of another Person to the Company, and the assumption by any such successor of the obligations of the Company, herein and in the Securities in accordance with Article V; (5) to comply with the TIA; (6) to evidence the succession of another corporation to any Guarantor and assumption by any such successor of the Guaranty of such Guarantor (as set forth in Section 12.4) in accordance with Article XIII; 94 (7) to evidence the release of any Guarantor in accordance with Article XII; (8) to evidence and provide for the acceptance of appointment hereunder by a successor Trustee with respect to the Securities; or SECTION 9.2. AMENDMENTS, SUPPLEMENTAL INDENTURES AND WAIVERS WITH CONSENT OF HOLDERS. Subject to Section 6.8, with the consent of the Holders of not less than a majority in aggregate principal amount of then outstanding Securities, by written act of said Holders delivered to the Company and the Trustee, the Company or any Guarantor, when authorized by Board Resolutions, and the Trustee may amend or supplement this Indenture or the Securities or enter into an indenture or indentures supplemental hereto for the purpose of adding any provisions to or changing in any manner or eliminating any of the provisions of this Indenture or the Securities or of modifying in any manner the rights of the Holders under this Indenture or the Securities. Subject to Section 6.8, the Holder or Holders of not less than a majority in aggregate principal amount of then outstanding Securities may waive compliance by the Company or any Guarantor with any provision of this Indenture or the Securities. Notwithstanding any of the above, however, no such amendment, supplemental indenture or waiver shall without the consent of the Holders of not less than 75% of the aggregate principal amounts of Securities at the time outstanding alter the terms or provisions of Section 11.1 or Section 11.2 in a manner adverse to the Holders; and no such amendment, supplemental indenture or waiver shall, without the consent of the Holder of each outstanding Security affected thereby: (1) change the Stated Maturity on any Security, or reduce the principal amount thereof or the rate (or extend the time for payment) of interest thereon or any premium payable upon the redemption thereof, or change the place of payment where, or the coin or currency in which, any Security or any premium or the interest thereon is payable, or impair the right to institute suit for the enforcement of any such payment on or after the Stated Maturity thereof (or in the case of redemption, on or after the Redemption Date), or reduce the Change of Control Purchase Price or the Asset Sale Offer Price or alter the provisions (including the defined terms used herein) regard- 95 ing the right of the Company to redeem the Securities in a manner adverse the Holders; or (2) reduce the percentage in principal amount of the outstanding Securities, the consent of whose Holders is required for any such amendment, supplemental indenture or wavier provided for in this Indenture; or (3) modify any of the waiver provisions, except to increase any required percentage or to provide that certain other provision of this Indenture cannot be modified or waived without the consent of the Holder of each outstanding Note affected thereby. Notwithstanding any of the above, however, no such amendment, supplemental indenture or waiver shall without the consent of the Representative on behalf of the Required Lenders amend, waive or otherwise modify the terms or provisions of Article X in a manner adverse to the Lenders (as defined in the New Credit Facility). It shall not be necessary for the consent of the Holders under this Section 9.2 to approve the particular form of any proposed amendment, supplement or waiver, but it shall be sufficient if such consent approves the substance thereof. After an amendment, supplement or waiver under this Section becomes effective, the Company shall mail to the Holders affected thereby a notice briefly describing the amendment, supplement or waiver. Any failure of the Company to mail such notice, or any defect therein, shall not, however, in any way impair or affect the validity of any such supplemental indenture or waiver. After an amendment, supplement or waiver under this Section 9.2 or Section 9.4 becomes effective, it shall bind each Holder. In connection with any amendment, supplement or waiver under this Article IX, the Company may, but shall not be obligated to, offer to any Holder who consents to such amendment, supplement or waiver, or to all Holders, consideration for such Holder's consent to such amendment, supplement or waiver. 96 SECTION 9.3. COMPLIANCE WITH TIA. Every amendment, waiver or supplement of this Indenture or the Securities shall comply with the TIA as then in effect. SECTION 9.4. REVOCATION AND EFFECT OF CONSENTS. Until an amendment, waiver or supplement becomes effective, a consent to it by a Holder is a continuing consent by the Holder and every subsequent Holder of a Security or portion of a Security that evidences the same debt as the consenting Holder's Security, even if notation of the consent is not made on any Security. However, any such Holder or subsequent Holder may revoke the consent as to his Security or portion of his Security by written notice to the Company or the Person designated by the Company as the Person to whom consents should be sent if such revocation is received by the Company or such Person before the date on which the Trustee receives an Officers' Certificate certifying that the Holders of the requisite principal amount of Securities have consented (and not theretofore revoked such consent) to the amendment, supplement or waiver. The Company may, but shall not be obligated to, fix a record date for the purpose of determining the Holders entitled to consent to any amendment, supplement or waiver, which record date shall be the date so fixed by the Company notwithstanding the provisions of the TIA. If a record date is fixed, then notwithstanding the last sentence of the immediately preceding paragraph, those Persons who were Holders at such record date, and only those Persons (or their duly designated proxies), shall be entitled to revoke any consent previously given, whether or not such Persons continue to be Holders after such record date. No such consent shall be valid or effective for more than 90 days after such record date. After an amendment, supplement or waiver becomes effective, it shall bind every Securityholder, unless it makes a change described in any of clauses (1) through (3) of Section 9.2, in which case, the amendment, supplement or waiver shall bind only each Holder of a Security who has consented to it and every subsequent Holder of a Security or portion of a Security that evidences the same debt as the consenting Holder's Security; PROVIDED, that any such waiver shall not impair or affect the right of any Holder to re- 97 ceive payment of principal and premium of and interest on a Security, on or after the respective dates set for such amounts to become due and payable expressed in such Security, or to bring suit for the enforcement of any such payment on or after such respective dates. SECTION 9.5. NOTATION ON OR EXCHANGE OF SECURITIES. If an amendment, supplement or waiver changes the terms of a Security, the Trustee may require the Holder of the Security to deliver it to the Registrar or require the Holder to put an appropriate notation on the Security. The Trustee may place an appropriate notation on the Security about the changed terms and return it to the Holder. Alternatively, if the Company or the Trustee so determines, the Company in exchange for the Security shall issue and the Trustee shall authenticate a new Security that reflects the changed terms. Any failure to make the appropriate notation or to issue a new Security shall not affect the validity of such amendment, supplement or waiver. SECTION 9.6. TRUSTEE TO SIGN AMENDMENTS, ETC. The Trustee shall execute any amendment, supplement or waiver authorized pursuant to this Article IX; PROVIDED, that the Trustee may, but shall not be obligated to, execute any such amendment, supplement or waiver which affects the Trustee's own rights, duties or immunities under this Indenture. The Trustee shall be entitled to receive, and shall be fully protected in relying upon, an Opinion of Counsel stating that the execution of any amendment, supplement or waiver authorized pursuant to this Article IX is authorized or permitted by this Indenture. ARTICLE X SUBORDINATION SECTION 10.1. SECURITIES SUBORDINATED TO SENIOR DEBT. The Company and the Guarantors and each Holder, by its acceptance of Securities, agree that (a) the payment of the principal of and interest on the Securities and (b) any other payment in respect of the Securities, including on account of the acquisition or redemption of the Securities by the Company or the Guarantors (including, without limita- 98 tion, pursuant to Article III or Section 4.1, 4.14, 11.1, 11.2 or Article XII is expressly made and shall be subordinated in right of payment, to the extent and in the manner provided in this Article X, to the prior payment in full in Cash of all existing and future Senior Debt of the Company and the Guarantors and that these subordination provisions are for the benefit of the holders of Senior Debt. This Article X shall constitute a continuing offer to all Persons who, in reliance upon such provisions, become holders of, or continue to hold, Senior Debt, and such provisions are made for the benefit of the holders of Senior Debt, and such holders are made obligees hereunder and any one or more of them may enforce such provisions. SECTION 10.2. NO PAYMENT ON SECURITIES IN CERTAIN CIRCUMSTANCES. (a) No payment (including any payment which may be payable to any Holder by reason of the subordination of any other indebtedness or other obligations to, or guarantee of, the Securities) or distribution (by set-off or otherwise) shall be made by or on behalf of the Company or a Guarantor, as applicable, on account of the Securities, including the principal of, premium, if any, or interest on the Securities (including any repurchases of Securities) or any other amounts with respect thereto or on account of the redemption provisions of the Securities for cash or property (other than Junior Securities), (i) upon the maturity of any Senior Debt of the Company or such Guarantor by lapse of time, acceleration (unless waived) or otherwise, unless and until all principal of, premium, if any, and the interest on, and all other amounts with respect to, such Senior Debt shall first be paid in full in Cash or otherwise to the extent each of the holders of Senior Debt accept satisfaction of amounts due to such holder by settlement in other than Cash, or (ii) in the event of default in payment of any principal of, or premium, if any, or interest on, or any other amounts with respect to, Senior Debt of the Company or such Guarantor when the same becomes due and payable, whether at maturity or at a date fixed for prepayment or by declaration or otherwise (each of the foregoing, a "Payment Default") unless and until such Payment Default has been cured or waived or otherwise has ceased to exist. (b) Upon (i) the happening of a default (other than a Payment Default) that permits the holders of 99 Senior Debt (or a percentage thereof) to declare such Senior Debt to be due and payable and (ii) written notice of such default given to the Company and the Trustee by the Representative under the Credit Facility or by the holders of an aggregate of at least $25.0 million principal amount outstanding of any other Senior Debt or their representative at such holders' direction (a "Payment Notice"), then, unless and until such default has been cured or waived or otherwise has ceased to exist, no payment (including any payment which may be payable to any Holder by reason of the subordination of any other indebtedness or other obligations to, or guarantee of, the Securities) or distribution (by set-off or otherwise) may be made by or on behalf of the Company or any Guarantor which is an obligor under such Senior Debt on account of the principal of, premium, if any, or interest on the Securities (including any repurchases of any of the Securities), or any other amount with respect thereto, or on account of the redemption provision of the Securities, in any such case, other than payments made with Junior Securities. Notwithstanding the foregoing, unless the Senior Debt in respect of which such default exists has been declared due and payable in its entirety within 179 days after the Payment Notice is delivered as set forth above (such period being hereinafter referred to as the "Payment Blockage Period") (and such declaration has not been rescinded or waived), at the end of the Payment Blockage Period (and assuming that no Payment Default Exists), unless Section 10.3 shall be applicable the Company and the Guarantors shall not be prohibited by the subordination provisions from paying all sums then due and not paid to the Holders of the Securities during the Payment Blockage Period due to the foregoing prohibitions and to resume all other payments as and when due on the Securities. Any number of Payment Notices may be given; PROVIDED, HOWEVER; that (i) not more than one Payment Notice shall be given within a period of any 360 consecutive days, and (ii) no default that existed upon the date of delivery of such Payment Notice (whether or not such event of default is on the same issue of Senior Debt) shall be made the basis for the commencement of any other Payment Blockage Period. (c) In furtherance of the provisions of Section 10.1, in the event that, notwithstanding the foregoing provisions of this Section 10.2, any payment or distribution of assets in respect of the Securities, including principal of or interest on the Securities or to defease or acquire any of the Securities (including repurchases of Securities 100 pursuant to Section 4.14, 11.1 or 11.2) for Cash, property or securities (excluding payments made with Junior Securities), or on account of the redemption provisions of the Securities, shall be made by the Company or any of the Guarantors and received by the Trustee, by any Holder or by any Paying Agent (or, if the Company is acting as the Paying Agent, money for any such payment shall be segregated and held in trust), at a time when such payment or distribution was prohibited by the provisions of this Section 10.2, then, unless such payment or distribution is no longer prohibited by this Section 10.2, such payment or distribution (subject to the provisions of Section 10.7) shall be received and held in trust by the Trustee or such Holder or Paying Agent for the benefit of the holders of Senior Debt of the Company or such Guarantor, and shall be paid or delivered by the Trustee or such Holders or such Paying Agent, as the case may be, to the holders of Senior Debt of the Company or such Guarantor remaining unpaid or their representative or representatives, or to the trustee or trustees under any indenture pursuant to which any instruments evidencing such Senior Debt of the Company or such Guarantor may have been issued, ratably according to the aggregate amounts unpaid on account of such Senior Debt held or represented by each, for application to the payment of all Senior Debt in full in Cash or otherwise to the extent each of the holders of such Senior Debt accept satisfaction of amounts due by settlement in other than Cash after giving effect to all concurrent payments and distributions to or for the holders of such Senior Debt. SECTION 10.3. SECURITIES SUBORDINATED TO PRIOR PAYMENT OF ALL SENIOR DEBT ON DISSOLUTION, LIQUIDATION OR REORGANIZATION. Upon any distribution of assets of the Company or any Guarantor or upon any dissolution, winding up, total or partial liquidation or reorganization of the Company or any Guarantor, whether voluntary or involuntary, in bankruptcy, insolvency, receivership or a similar proceeding or upon assignment for the benefit of creditors or any marshalling of assets or liabilities: (a) the holders of all Senior Debt of the Company or such Guarantor, as applicable, shall first be entitled to receive payments in full of all amounts of Senior Debt in Cash or otherwise to the extent each of such holders accepts satisfaction of amounts due by settlement in 101 other than Cash or before the Holders are entitled to receive any payment (including any payment which may be payable to any Holder by reason of the subordination of any other indebtedness or other obligations to, or guarantee of, the Securities) or distribution on account of the principal of, premium, if any, and any interest on, or other amounts with respect to, the Securities (other than Junior Securities); (b) any payment or distribution of assets of the Company or such Guarantor of any kind or character from any source, whether in cash, property or securities (other than Junior Securities), to which the Holders or the Trustee on behalf of the Holders would be entitled (by set-off or otherwise) except for the provisions of this Article X, shall be paid by the liquidating Trustee or agent or other person making such a payment or distribution, directly to the holders of such Senior Debt or their representative to the extent necessary to make payment in full on all such Senior Debt remaining unpaid, after giving effect to all concurrent payments or distributions to the holders of such Senior Debt; and (c) in the event that, notwithstanding the foregoing, any payment or distribution of assets of the Company or any Guarantor (other than the Junior Securities), shall be received by the Trustee or the Holders at a time when such payment or distribution shall be prohibited by the foregoing provisions, such payment or distribution shall be held in trust for the benefit of the holders of such Senior Debt, and shall be paid or delivered by the Trustee or such Holders, as the case may be, to the holders of such Senior Debt remaining unpaid or to their representative or representatives, or to the trustee or trustees under any indenture pursuant to which any instruments evidencing any of such Senior Debt held or represented by each, for application to the payment of all such Senior Debt may have been issued, ratably according to the aggregate principal amounts remaining unpaid on account of such Senior Debt remaining unpaid, to the extent necessary to pay all such Senior Debt in full in Cash or otherwise to the extent each of the holders of such Senior Debt accept satisfaction of amounts due by settlement in other than Cash after giving effect to any concurrent payment or distribution to the holders of such Senior Debt. 102 SECTION 10.4. SECURITYHOLDERS TO BE SUBROGATED TO RIGHTS OF HOLDERS OF SENIOR DEBT. Subject to the payment in full in Cash of all Senior Debt of the Company or any Guarantor as provided herein, the Holders of Securities shall be subrogated to the rights of the holders of such Senior Debt to receive payments or distributions of assets of the Company applicable to the Senior Debt until all amounts owing on the Securities shall be paid in full, and for the purpose of such subrogation no such payments or distributions to the holders of such Senior Debt by or on behalf of the Company or any Guarantor, or by or on behalf of the Holders by virtue of this Article X, which otherwise would have been made to the Holders shall, as between the Company or any Guarantor and the Holders, be deemed to be payment by the Company or any Guarantor or on account of such Senior Debt, it being understood that the provisions of this Article X are and are intended solely for the purpose of defining the relative rights of the Holders, on the one hand, and the holders of such Senior Debt, on the other hand. If any payment or distribution to which the Holders would otherwise have been entitled but for the provisions of this Article X shall have been applied, pursuant to the provisions of this Article X, to the payment of amounts payable under Senior Debt of the Company or any Guarantor, then the Holders shall be entitled to receive from the holders of such Senior Debt any payments or distributions received by such holders of Senior Debt in excess of the amount sufficient to pay all amounts payable under or in respect of such Senior Debt in full in Cash or otherwise to the extent each of such holders accepts satisfaction of amounts due by settlement in other than Cash. SECTION 10.5. OBLIGATIONS OF THE COMPANY AND THE GUARANTORS UNCONDITIONAL. Nothing contained in this Article X or elsewhere in this Indenture or in the Securities is intended to or shall impair, as between the Company and any Guarantors and the Holders, the obligation of each such Person, which is absolute and unconditional, to pay to the Holders the principal of, premium, if any, and interest on the Securities as and when the same shall become due and payable in accordance with their terms, or is intended to or shall affect the relative rights of the Holders and creditors of the Company 103 and the Guarantors other than the holders of the Senior Debt, nor shall anything herein or therein prevent the Trustee or any Holder from exercising all remedies otherwise permitted by applicable law upon default under this Indenture, subject to the rights, if any, under this Article X, of the holders of Senior Debt in respect of Cash, property or securities of the Company and the Guarantors received upon the exercise of any such remedy. Notwithstanding anything to the contrary in this Article X or elsewhere in this Indenture or in the Securities, upon any distribution of assets of the Company and the Guarantors referred to in this Article X, the Trustee, subject to the provisions of Sections 7.1 and 7.2, and the Holders shall be entitled to rely upon any order or decree made by any court of competent jurisdiction in which such dissolution, winding up, liquidation or reorganization proceedings are pending, or a certificate of the liquidating Trustee or agent or other Person making any distribution to the Trustee or to the Holders for the purpose of ascertaining the Persons entitled to participate in such distribution, the holders of the Senior Debt and other Indebtedness of the Company or any Guarantor, the amount thereof or payable thereon, the amount or amounts paid or distributed thereon and all other facts pertinent thereto or to this Article X so long as such court has been apprised of the provisions of, or the order, decree or certificate makes reference to, the provisions of this Article X. Nothing in this Section 10.5 shall apply to the claims of, or payments to, the Trustee under or pursuant to Section 7.7. Subject to the provisions of Section 7.1, the Trustee shall be entitled to rely on the delivery to it of a written notice by a person representing himself to be a holder of Senior Debt (or a trustee or agent on behalf of such holder) to establish that such notice has been given by a holder of Senior Debt (or a trustee or agent on behalf of any such holder). In the event that the Trustee determines in good faith that further evidence is required with respect to the right of a person as a holder of Senior Debt to participate in any payment or distribution pursuant to this Article X, the Trustee may request such person to furnish evidence to the reasonable satisfaction of the Trustee as to the amount of Senior Debt held by such person, the extent to which such person is entitled to participate in such payment or distribution and any other facts pertinent to the rights of such person under this Article X, and if such evidence is not furnished, the Trustee may defer any payment which it 104 may be required to make for the benefit of such person pursuant to the terms of this Indenture pending judicial determination as to the rights of such person to receive such payment. SECTION 10.6. TRUSTEE ENTITLED TO ASSUME PAYMENTS NOT PROHIBITED IN ABSENCE OF NOTICE. The Trustee shall not at any time be charged with knowledge of the existence of any facts which would prohibit the making of any payment to or by the Trustee unless and until the Trustee or any Paying Agent shall have received, no later than one Business Day prior to such payment, written notice thereof from the Company or from one or more holders of Senior Debt or from any representative therefor and, prior to the receipt of any such written notice, the Trustee, subject to the provisions of Sections 7.1 and 7.2, shall be entitled in all respects conclusively to assume that no such fact exists. SECTION 10.7. APPLICATION BY TRUSTEE OF ASSETS DEPOSITED WITH IT. Amounts deposited in trust with the Trustee pursuant to and in accordance with Article VIII shall be for the sole benefit of Securityholders and, to the extent (i) the making of such deposit by the Company shall not be in contravention of any term or provision of the New Credit Facility and (ii) allocated for the payment of Securities, shall not be subject to the subordination provisions of this Article X. Otherwise, any deposit of assets with the Trustee or the Agent (whether or not in trust) for the payment of principal of or interest on any Securities shall be subject to the provisions of Sections 10.1, 10.2, 10.3 and 10.4. SECTION 10.8. SUBORDINATION RIGHTS NOT IMPAIRED BY ACTS OR OMISSIONS OF THE COMPANY, THE GUARANTORS OR HOLDERS OF SENIOR DEBT. No right of any present or future holders of any Senior Debt to enforce subordination provisions contained in this Article X shall at any time in any way be prejudiced or impaired by any act or failure to act on the part of the Company or any Guarantor or by any act or failure to act, in good faith, by any such holder, or by any noncompliance by the Company or any Guarantor with the terms of this Indenture, regardless of any knowledge thereof which any such 105 holder may have or be otherwise charged with. The holders of Senior Debt may at any time and from time to time without the consent of or notice to the Trustee or the Holders of the Securities without incurring any responsibility to the Holders extend, renew, modify or amend the terms of the Senior Debt or any security therefor and release, sell or exchange such security and otherwise deal freely with the Company and the Guarantors and any person liable in any manner for the collection of Senior Debt, all without affecting the subordination provisions or liabilities or obligations of the parties to this Indenture or the Holders or to the holders of the Senior Debt. SECTION 10.9. SECURITYHOLDERS AUTHORIZE TRUSTEE TO EFFECTUATE SUBORDINATION OF SECURITIES. Each Holder of the Securities by his acceptance thereof authorizes and expressly directs the Trustee on his behalf to take such action as may be necessary or appropriate to effectuate the subordination provisions contained in this Article X and to protect the rights of the Holders pursuant to this Indenture, and appoints the Trustee his attorney-in-fact for such purpose, including, in the event of any dissolution, winding up, liquidation or reorganization of the Company or any Guarantor (whether in bankruptcy, insolvency or receivership proceedings or upon an assignment for the benefit of creditors or any other marshalling of assets and liabilities of the Company or any Guarantor), the immediate filing of a claim for the unpaid balance of his Securities in the form required in said proceedings and cause said claim to be approved. If the Trustee does not file a proper claim or proof of debt in the form required in such proceeding prior to 30 days before the expiration of the time to file such claim or claims, then the holders of the Senior Debt or their representative are or is hereby authorized to have the right to file and are or is hereby authorized to file an appropriate claim for and on behalf of the Holders of said Securities. Nothing herein contained shall be deemed to authorize the Trustee or the holders of Senior Debt or their representative to authorize or consent to or accept or adopt on behalf of any Securityholder any plan of reorganization, arrangement, adjustment or composition affecting the Securities or the rights of any Holder thereof, or to authorize the Trustee or the holders of Senior Debt or their representative to vote in respect of the claim of any Securityholder in any such proceeding. 106 SECTION 10.10. RIGHT OF TRUSTEE TO HOLD SENIOR DEBT. The Trustee shall be entitled to all of the rights set forth in this Article X in respect of any Senior Debt at any time held by it to the same extent as any other holder of Senior Debt, and nothing in this Indenture shall be construed to deprive the Trustee of any of its rights as such holder. SECTION 10.11. ARTICLE X NOT TO PREVENT EVENTS OF DEFAULT. The failure to make a payment on account of principal of, premium, if any, or interest on the Securities by reason of any provision of this Article X shall not be construed as preventing the occurrence of a Default or an Event of Default under Section 6.1 or in any way prevent the Holders from exercising any right hereunder other than the right to receive payment on the Securities. SECTION 10.12. NO FIDUCIARY DUTY OF TRUSTEE TO HOLDERS OF SENIOR DEBT. The Trustee shall not be deemed to owe any fiduciary duty to the holders of Senior Debt, and shall not be liable to any such holders (other than for its willful misconduct or negligence) if it shall in good faith mistakenly pay over or distribute to the Holders of Securities or the Company, any Guarantor or any other Person, cash, property or securities to which any holders of Senior Debt shall be entitled by virtue of this Article X or otherwise. Nothing in this Section 10.12 shall affect the obligation of any other such Person to hold such payment for the benefit of, and to pay such payment over to, the holders of Senior Debt or their representative. With respect to the holders of Senior Debt, the Trustee undertakes to perform or to observe only such of its covenants or obligations as are specifically set forth in this Article X and no implied covenants or obligations with respect to holders of Senior Debt shall be read into this Indenture against the Trustee. 107 ARTICLE XI RIGHT TO REQUIRE REPURCHASE SECTION 11.1. REPURCHASE OF SECURITIES AT OPTION OF THE HOLDER UPON A CHANGE OF CONTROL. (a) In the event that a Change of Control has occurred, each Holder shall have the right, at such Holder's option, pursuant to an irrevocable and unconditional offer by the Company (the "Change of Control Offer"), to require the Company to repurchase all or any part of such Holder's Securities (PROVIDED, that the principal amount of such Securities at maturity must be $1,000 or an integral multiple thereof) on a date (the "Change of Control Purchase Date") that is no later than 35 Business Days after the Occurrence of such Change of Control, at a cash price (the "Change of Control Purchase Price") equal to 101% of the principal amount thereof, together with accrued and unpaid interest, if any, to the Change of Control Purchase Date. (b) In the event of a Change of Control, the Company shall be required to commence a Change of Control Offer as follows: (1) the Change of Control Offer shall commence within 10 Business Days following the occurrence of the Change of Control; (2) the Change of Control Offer shall remain open for 20 Business Days, except to the extent that a longer period is required by applicable law, but in any case not more than 35 Business Days following commencement (the "Change of Control Offer Period"); (3) upon the expiration of a Change of Control Offer, the Company shall promptly purchase all of the properly tendered Securities at the Change of Control Purchase Price; (4) if the Change of Control Payment Date is on or after a Record Date and on or before the related interest payment date, any accrued interest will be paid to the Person in whose name a Security is registered at the close of business on such Record Date, and no additional interest will be payable to 108 Securityholders who tender Securities pursuant to the Change of Control Offer; (5) the Company shall provide the Trustee and the Paying Agent with notice of the Change of Control Offer at least three Business Days before the commencement of any Change of Control Offer; and (6) on or before the commencement of any Change of Control Offer, the Company or the Registrar (upon the request and at the expense of the Company) shall send, by first-class mail, a notice to each of the Securityholders, which (to the extent consistent with this Indenture) shall govern the terms of the Change of Control Offer and shall state: (i) that the Change of Control Offer is being made pursuant to such notice and this Section 11.1 and that all Securities, or portions thereof, tendered will be accepted for payment; (ii) the Change of Control Purchase Price (including the amount of accrued and unpaid interest, subject to clause (b)(4) above), the Change of Control Purchase Date and the Change of Control Put Date (as defined below); (iii) that any Security, or portion thereof, not tendered or accepted for payment will continue to accrue interest; (iv) that, unless the Company defaults in depositing Cash with the Paying Agent in accordance with the last paragraph of this Section 11.1 or such payment is prevented, any Security, or portion thereof, accepted for payment pursuant to the Change of Control Offer shall cease to accrue interest after the Change of Control Purchase Date; (v) that Holders electing to have a Security, or portion thereof, purchased pursuant to a Change of Control Offer will be required to surrender the Security, with the form entitled "Option of Holder to Elect Purchase" on the reverse of the Security completed, to the Paying Agent (which may not for purposes of this Section 11.1, notwithstanding anything in this Indenture to the contrary, be the Company or any Affil- 109 iate of the Company) at the address specified in the notice prior to the close of business on the earlier of (a) the third Business Day prior to the Change of Control Payment Date and (b) the third Business Day following the expiration of the Change of Control Offer (such earlier date being the "Change of Control Put Date"); (vi) that Holders will be entitled to withdraw their election, in whole or in part, if the Paying Agent (which may not for purposes of this Section 11.1, notwithstanding anything in this Indenture to the contrary, be the Company or any Affiliate of the Company) receives, up to the close of business on the Change of Control Put Date, a facsimile transmission or letter setting forth the name of the Holder, the principal amount of the Securities the Holder is withdrawing and a statement that such Holder is withdrawing his election to have such principal amount of Securities purchased; and (vii) a brief description of the events resulting in such Change of Control. Any such Change of Control Offer shall comply with all applicable provisions of Federal and state laws, including those regulating tender offers, if applicable, and any provisions of this Indenture which conflict with such laws shall be deemed to be superseded by the provisions of such laws. On or before the Change of Control Purchase Date, the Company shall (i) accept for payment Securities or portions thereof properly tendered pursuant to the Change of Control Offer on or before the Change of Control Put Date, (ii) deposit with the Paying Agent Cash sufficient to pay the Change of Control Purchase Price for all Securities or portions thereof so tendered and (iii) deliver to the Registrar Securities so accepted together with an Officers' Certificate listing the aggregate principal amount of the Securities or portions thereof being purchased by the Company. The Paying Agent shall on the Change of Control Purchase Date or promptly thereafter mail to Holders of Securities so accepted payment in an amount equal to the Change of Control Purchase Price for such Securities, and the Trustee or its authenticating agent shall promptly authenticate and the Registrar shall mail or deliver (or cause to be transferred 110 by book entry) to such Holders a new Security equal in principal amount to any unpurchased portion of the Security surrendered; provided, however, that each such new Security will be in a principal amount of $1,000 or an integral multiple thereof. Any Securities not so accepted shall be promptly mailed or delivered by the Company to the Holder thereof. The Company will publicly announce the results of the Change of Control Offer on or as soon as practicable after the consummation thereof. ARTICLE XII GUARANTY SECTION 12.1. GUARANTY. (a) In consideration of good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, each of the Guarantors hereby irrevocably and unconditionally guarantees (the "Guaranty"), jointly and severally, to each Holder of a Security authenticated and delivered by the Trustee and to the Trustee and its successors and assigns, irrespective of the validity and enforceability of this Indenture, the Securities or the obligations of the Company under this Indenture or the Securities, that: (w) the principal and premium (if any) of and interest on the Securities will be paid in full when due, whether at the Maturity Date or Interest Payment Date, by acceleration, call for redemption, upon a Change of Control Offer, upon an Asset Sale Offer or otherwise; (x) all other obligations of the Company to the Holders or the Trustee under this Indenture or the Securities will be promptly paid in full or performed, all in accordance with the terms of this Indenture and the Securities; and (y) in case of any extension of time of payment or renewal of any Securities or any of such other obligations, they will be paid in full when due or performed in accordance with the terms of the extension or renewal, whether at maturity, by acceleration, call for redemption, upon a Change of Control Offer, upon an Asset Sale Offer or otherwise. Failing payment when due of any amount so guaranteed for whatever reason, each Guarantor shall be jointly and severally obligated to pay the same before failure so to pay becomes an Event of Default. If the Company or a Guarantor defaults in the payment of the principal of, premium, if any, or interest on, the Securities when and as the same shall become due, whether upon 111 maturity, acceleration, call for redemption, upon a Change of Control Offer, upon an Asset Sale Offer or otherwise, without the necessity of action by the Trustee or any Holder, each Guarantor shall be required, jointly and severally, to promptly make such payment in full. (b) Each Guarantor hereby agrees that its obligations with regard to this Guaranty shall be unconditional, irrespective of the validity, regularity or enforceability of the Securities or this Indenture, the absence of any action to enforce the same, any delays in obtaining or realizing upon or failures to obtain or realize upon collateral, the recovery of any judgment against the Company, any action to enforce the same or any other circumstances that might otherwise constitute a legal or equitable discharge or defense of a guarantor (except as provided in Sections 12.4 and 12.5). Each Guarantor hereby waives diligence, presentment, demand of payment, filing of claims with a court in the event of insolvency or bankruptcy of the Company, any right to require a proceeding first against the Company or right to require the prior disposition of the assets of the Company to meet its obligations, protest, notice and all demands whatsoever and covenants that this Guaranty will not be discharged (except to the extent released pursuant to Section 12.4 or 12.5) except by complete performance of the obligations contained in the Securities and this Indenture. (c) If any Holder or the Trustee is required by any court or otherwise to return to either the Company or any Guarantor, or any Custodian, trustee, or similar official acting in relation to the Company or such Guarantor, any amount paid by either the Company or such Guarantor to the Trustee or such Holder, this Guaranty, to the extent theretofore discharged, shall be reinstated in full force and effect (except to the extent released pursuant to Section 12.4 or 12.5). Each Guarantor agrees that it will not be entitled to any right of subrogation in relation to the Holders in respect of any obligations guaranteed hereby until payment in full of all obligations guaranteed hereby. Each Guarantor further agrees that, as between such Guarantor, on the one hand, and the Holders and the Trustee, on the other hand, (i) the maturity of the obligations guaranteed hereby may be accelerated as provided in Section 6.2 for the purposes of this Guaranty, notwithstanding any stay, injunction or other prohibition preventing such acceleration as to the Company of the obligations guaranteed hereby, and (ii) in the event of any declaration of acceleration of 112 those obligations as provided in Section 6.2, those obligations (whether or not due and payable) will forthwith become due and payable by each of the Guarantors for the purpose of this Guaranty. (d) Each Guarantor and by its acceptance of a Security issued hereunder each Holder hereby confirms that it is the intention of all such parties that the guarantee by such Guarantor set forth in Section 12.1(a) not constitute a fraudulent transfer or conveyance for purpose of any Bankruptcy Law, the Uniform Fraudulent Conveyance Act, the Uniform Fraudulent Transfer Act or any similar Federal or state law. To effectuate the foregoing intention, the Holders and such Guarantor hereby irrevocably agree that the obligations of such Guarantor under its guarantee set forth in Section 12.1(a) shall be limited to the maximum amount as will, after giving effect to all other contingent and fixed liabilities of such Guarantor and after giving effect to any collections from or payments made by or on behalf of any other Guarantor in respect of the obligations of such other Guarantor under its guarantee or pursuant to the following paragraph of this Section 12.1(d), result in the obligations of such Guarantor under such guarantee not constituting such a fraudulent transfer or conveyance. Each Guarantor that makes any payment or distribution under Section 12.1(a) shall be entitled to a contribution from each other Guarantor equal to its Pro Rata Portion of such payment or distribution. For purposes of the foregoing, the "Pro Rata Portion" of any Guarantor means the percentage of the net assets of all Guarantors held by such Guarantor, determined in accordance with GAAP. (e) It is the intention of each Guarantor and the Company that the obligations of each Guarantor hereunder shall be joint and several and in, but not in excess of, the maximum amount permitted by applicable law. Accordingly, if the obligations in respect of the Guaranty would be annulled, avoided or subordinated to the creditors of any Guarantor by a court of competent jurisdiction in a proceeding actually pending before such court as a result of a determination both that such Guaranty was made without fair consideration and, immediately after giving effect thereto, such Guarantor was insolvent or unable to pay its debts as they mature or left with an unreasonably small capital, then the obligations of such Guarantor under such Guaranty shall be reduced by such court if and to the extent 113 such reduction would result in the avoidance of such annulment, avoidance or subordination; PROVIDED, HOWEVER, that any reduction pursuant to this paragraph shall be made in the smallest amount as is strictly necessary to reach such result. For purposes of this paragraph, "fair consideration", "insolvency", "unable to pay its debts as they mature", "unreasonably small capital" and the effective times of reductions, if any, required by this paragraph shall be determined in accordance with applicable law. SECTION 12.2. EXECUTION AND DELIVERY OF GUARANTY. Each Guarantor shall be deemed to have signed on each Security issued hereunder the notation of guarantee set forth on the form of the Securities attached hereto as Exhibit A to the same extent as if the signature of such Guarantor appeared on such Security. The delivery of any Security by the Trustee, after the authentication thereof hereunder, shall constitute due delivery of the guaranty set forth in Section 12.1 on behalf of each Guarantor. The notation of a guaranty set forth on any Security shall be null and void and of no further effect with respect to the guaranty of any Guarantor which, pursuant to Section 12.4 or Section 12.5, is released from such guaranty. SECTION 12.3. SUBSIDIARY GUARANTORS. (i) All present Subsidiaries of the Company and their Subsidiaries (other than the Excluded Subsidiaries), and (ii) all future Subsidiaries of the Company and their Subsidiaries (other than Excluded Subsidiaries), which are not prohibited from becoming guarantors by law or by the terms of any Acquired Indebtedness or any agreement (other than an agreement entered into in connection with the transaction resulting in such person becoming a Subsidiary of the Company or its Subsidiaries) to which such Subsidiary is a party ("Future Subsidiary Guarantors"), jointly and severally, will guaranty irrevocably and unconditionally all principal, premium, if any, and interest on the Securities on a senior subordinated basis; PROVIDED, HOWEVER, that upon any change in the law, Acquired Indebtedness or any agreement (whether by expiration, termination or otherwise) which no longer prohibits a Subsidiary of the Company from becoming a Subsidiary Guarantor, such Subsidiary shall immediately thereafter become a Subsidiary Guarantor; PROVIDED, FURTHER, in the event that any Subsidiary of the Company or 114 their Subsidiaries becomes a guarantor of any other Indebtedness of the Company or any of its Subsidiaries or any of their Subsidiaries, such Subsidiary shall immediately thereafter become a Subsidiary Guarantor. SECTION 12.4. GUARANTOR MAY CONSOLIDATE, ETC., ON CERTAIN TERMS. (a) Nothing contained in this Indenture or in any of the Securities shall prevent any consolidation or merger of a Guarantor with or into the Company or any other Guarantor. Upon any such consolidation or merger, the guarantees (as set forth in Section 12.1) of the Guarantor which is not the survivor of the merger or consolidation, and of any Subsidiary of such Guarantor that is also a Guarantor, shall be released and shall no longer have any force or effect. (b) Nothing contained in this Indenture shall prevent any sale or conveyance of assets of any Guarantor (whether or not constituting all or substantially all of the assets of such Guarantor) to any Person, provided that the Company shall comply with the provisions of Section 4.14 and 4.17, and provided further that, in the event that all or substantially all of the assets of a Guarantor are sold or conveyed, the guarantees of such Guarantor (as set forth in Section 12.1) shall be released and shall no longer have any force or effect. (c) Except as provided in Section 12.4(a) or Section 12.5, each Guarantor shall not, directly or indirectly, consolidate with or merge with or into another Person, unless (i) either (a) the Guarantor is the continuing entity or (b) the resulting or surviving entity is a corporation organized under the laws of the United States, any state thereof or the District of Columbia and expressly assumes by supplemental indenture all of the obligations of the Guarantor in connection with the Securities and this Indenture; (ii) no Default or Event of Default would occur as a consequence of (after giving effect, on a PRO FORMA basis, to) such transaction; and (iii) the Guarantor has delivered to the Trustee an Officers' Certificate and an Opinion of Counsel, each stating that such consolidation or merger and if a supplemental indenture is required, such supplemental indenture comply with this Indenture and that all conditions precedent herein relating to such transaction have been satisfied. 115 (d) Upon any consolidation or merger of a Guarantor in accordance with Section 12.4 hereof, the successor corporation formed by such consolidation or into which the Guarantor is merged shall succeed to, and be substituted for, and may exercise every right and power of, the Guarantor under this Indenture with the same effect as if such successor corporation had been named herein as the Guarantor, and when a successor corporation duly assumes all of the obligations of the Guarantor pursuant hereto and pursuant to the Securities, the Guarantor shall be released from such obligations. SECTION 12.5. RELEASE OF GUARANTORS. (a) Without any further notice or action being required by any Person, any Guarantor, and each Subsidiary of such Guarantor that is also a Guarantor, shall be fully and conditionally released and discharged from all obligations under its guarantee and this Indenture, upon (i) the sale or other disposition of all or substantially all of the assets or properties of such Guarantor, or 50% or more of the Equity Interests of any such Guarantor to Persons other than the Company and their Subsidiaries or (ii) the consolidation or merger of any such Guarantor with any Person other than the Company or a Subsidiary of the Company, if, as a result of such consolidation or merger, Persons other than the Company and their Subsidiaries beneficially own more than 50% of the capital stock of such Guarantor, PROVIDED that, in either such case, the Net Cash Proceeds of such sale, disposition, merger or consolidation are applied in accordance with Section 4.14 of this Indenture; or (iii) a Legal Defeasance or Covenant Defeasance, as set forth in Article VIII. (b) The releases and discharges set forth in Section 12.5(a) shall be effective (i) in the case of releases and discharges effected pursuant to clause (i) or (ii) of Section 12.5(a) by virtue of a sale, disposition, consolidation or merger, on the date of consummation thereof and (ii) in the case of releases and discharges effected pursuant to clause (iii) of Section 12.5(a), upon the date of Covenant Defeasance or Legal Defeasance, as applicable. At the written request of the Company, the Trustee shall promptly execute and deliver appropriate instruments in forms reasonably acceptable to the Company evidencing and further implementing any releases and discharges pursuant to 116 the foregoing provisions. If the Company desires the instruments evidencing or implementing any releases or discharges to be executed prior to the effectiveness of such releases and discharges as set forth above, such instruments may be made conditional upon the occurrence of the events necessary to cause the effectiveness of such releases and discharges, as specified in the first sentence of this Section 12.5. (c) Notwithstanding the foregoing provisions of this Article XII, (i) any Guarantor whose guarantee would otherwise be released pursuant to the provisions of this Section 12.5 may elect, by written notice to the Trustee, to maintain such guarantee in effect notwithstanding the event or events that otherwise would cause the release of such guarantee (which election to maintain such guarantee in effect may be conditional or for a limited period of time), and (ii) any Subsidiary of the Company which is not a Guarantor may elect, by written notice to the Trustee, to become a Guarantor (which election may be conditional or for a limited period of time). SECTION 12.6. CERTAIN BANKRUPTCY EVENTS. Each Guarantor hereby covenants and agrees, to the fullest extent that it may do so under applicable law, that in the event of the insolvency, bankruptcy, dissolution, liquidation or reorganization of the Company, such Guarantor shall not file (or join in any filing of), or otherwise seek to participate in the filing of, any motion or request seeking to stay or to prohibit (even temporarily) execution on the Guaranty and hereby waives and agrees not to take the benefit of any such stay of execution, whether under Section 362 or 105 of the Bankruptcy Law or otherwise. ARTICLE XIII MISCELLANEOUS SECTION 13.1. TIA CONTROLS. If any provision of this Indenture limits, qualifies, or conflicts with the duties imposed by operation of the TIA, the imposed duties, upon qualification of this Indenture under the TIA, shall control. 117 SECTION 13.2. NOTICES. Any notices or other communications to the Company or any Guarantor, Paying Agent, Registrar, Securities Custodian, transfer agent or the Trustee required or permitted hereunder shall be in writing, and shall be sufficiently given if made by hand delivery, by telecopier or registered or certified mail, postage prepaid, return receipt requested, addressed as follows: if to the Company or any Guarantor: Jacor Communications Company 50 East RiverCenter Boulevard, 12th Floor Covington, Kentucky 41011 Attention: Treasurer Telephone: (606) 655-2267 Telecopy: (606) 655-9345 if to the Trustee: The Bank of New York 101 Barclay Street, Floor 21 West New York, New York 10286 Attention: Corporate Trust Trustee Administration Telephone: (212) 815-5741 Telecopy: (212) 815-5915 Any party by notice to each other party may designate additional or different addresses as shall be furnished in writing by such party. Any notice or communication to any party shall be deemed to have been given or made as of the date so delivered, if personally delivered; when receipt is acknowledged, if telecopied; and five Business Days after mailing if sent by registered or certified mail, postage prepaid (except that a notice of change of address shall not be deemed to have been given until actually received by the addressee). Any notice or communication mailed to a Securityholder shall be mailed to him by first class mail or other equivalent means at his address as it appears on the registration books of the Registrar and shall be 118 sufficiently given to him if so mailed within the time prescribed. Failure to mail a notice or communication to a Securityholder or any defect in it shall not affect its sufficiency with respect to other Securityholders. If a notice or communication is mailed in the manner provided above, it is duly given, whether or not the addressee receives it. SECTION 13.3. COMMUNICATIONS BY HOLDERS WITH OTHER HOLDERS. Securityholders may communicate pursuant to TIA Section 312(b) with other Securityholders with respect to their rights under this Indenture or the Securities. The Company, the Trustee, the Registrar and any other Person shall have the protection of TIA Section 312(c). SECTION 13.4. CERTIFICATE AND OPINION AS TO CONDITIONS PRECEDENT. Upon any request or application by the Company or any Guarantor to the Trustee to take any action under this Indenture, such Person shall furnish to the Trustee: (1) an Officers' Certificate (in form and substance reasonably satisfactory to the Trustee) stating that, in the opinion of the signers, all conditions precedent, if any, provided for in this Indenture relating to the proposed action have been met; and (2) an Opinion of Counsel (in form and substance reasonably satisfactory to the Trustee), stating that, in the opinion of such counsel, all such conditions precedent have been met; PROVIDED, HOWEVER, that in the case of any such request or application as to which the furnishing of particular documents is specifically required by any pro- 119 vision of this Indenture, no additional certificate or opinion need be furnished under this Section 13.4. SECTION 13.5. STATEMENTS REQUIRED IN CERTIFICATE OR OPINION. Each certificate or opinion with respect to compliance with a condition or covenant provided for in this Indenture shall include: (1) a statement that the Person making such certificate or opinion has read such covenant or condition; (2) a brief statement as to the nature and scope of the examination or investigation upon which the statements or opinions contained in such certificate or opinion are based; (3) a statement that, in the opinion of such Person, he has made such examination or investigation as is necessary to enable him to express an informed opinion as to whether or not such covenant or condition has been met; and (4) a statement as to whether or not, in the opinion of each such Person, such condition or covenant has been met; PROVIDED, HOWEVER, that with respect to matters of fact an Opinion of Counsel may rely on an Officers' Certificate or certificates of public officials. 120 SECTION 13.6. RULES BY TRUSTEE, PAYING AGENT, REGISTRAR. The Trustee may make reasonable rules for action by or at a meeting of Securityholders. The Paying Agent or Registrar may make reasonable rules for its functions. SECTION 13.7. NON-BUSINESS DAYS. If a payment date is not a Business Day at such place, payment may be made at such place on the next succeeding day that is a Business Day, and no interest shall accrue for the intervening period. SECTION 13.8. GOVERNING LAW. THIS INDENTURE AND THE SECURITIES SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, AS APPLIED TO CONTRACTS MADE AND PERFORMED WITHIN THE STATE OF NEW YORK. EACH OF THE COMPANY AND THE GUARANTORS HEREBY IRREVOCABLY SUBMITS TO THE JURISDICTION OF ANY NEW YORK STATE COURT SITTING IN THE BOROUGH OF MANHATTAN IN THE CITY OF NEW YORK OR ANY FEDERAL COURT SITTING IN THE BOROUGH OF MANHATTAN IN THE CITY OF NEW YORK IN RESPECT OF ANY SUIT, ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS INDENTURE AND THE SECURITIES, AND IRREVOCABLY ACCEPTS FOR ITSELF AND IN RESPECT OF ITS PROPERTY, GENERALLY AND UNCONDITIONALLY, JURISDICTION OF THE AFORESAID COURTS. EACH OF THE COMPANY AND THE GUARANTORS IRREVOCABLY WAIVES, TO THE FULLEST EXTENT IT MAY EFFECTIVELY DO SO UNDER APPLICABLE LAW, ANY OBJECTION WHICH THEY MAY NOW OR HEREAFTER HAVE TO THE LAYING OF THE VENUE OF ANY SUCH SUIT, ACTION OR PROCEEDING BROUGHT IN ANY SUCH COURT AND ANY CLAIM THAT ANY SUCH SUIT, ACTION OR PROCEEDING BROUGHT IN ANY SUCH COURT HAS BEEN BROUGHT IN AN INCONVENIENT FORUM. NOTHING HEREIN SHALL AFFECT THE RIGHT OF THE TRUSTEE OR ANY SECURITYHOLDER TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY LAW OR TO COMMENCE LEGAL PROCEEDINGS OR OTHERWISE PROCEED AGAINST THE COMPANY AND THE GUARANTORS IN ANY OTHER JURISDICTION. 121 SECTION 13.9. NO ADVERSE INTERPRETATION OF OTHER AGREEMENTS. This Indenture may not be used to interpret another indenture, loan or debt agreement of the Company or any Guarantor or any of their respective Subsidiaries. Any such indenture, loan or debt agreement may not be used to interpret this Indenture. SECTION 13.10. NO RECOURSE AGAINST OTHERS. No direct or indirect stockholder, partner, employee, officer or director, as such, past, present or future of the Company, the Guarantors or any successor entity, shall have any personal liability in respect of the obligations of the Company or the Guarantors under the Securities or this Indenture by reason of his or its status as such stockholder, partner, employee, officer or director. Each Securityholder by accepting a Security waives and releases all such liability. Such waiver and release are part of the consideration for the issuance of the Securities. SECTION 13.11. SUCCESSORS. All agreements of the Company and the Guarantors in this Indenture and the Securities shall bind its successor. All agreements of the Trustee in this Indenture shall bind its successor. SECTION 13.12. DUPLICATE ORIGINALS. All parties may sign any number of copies or counterparts of this Indenture. Each signed copy or counterpart shall be an original, but all of them together shall represent the same agreement. SECTION 13.13. SEVERABILITY. In case any one or more of the provisions in this Indenture or in the Securities shall be held invalid, illegal or unenforceable, in any respect for any reason, the validity, legality and enforceability of any such provision in every other respect and of the remaining provisions shall not in any way be affected or impaired thereby, it being intended that all of the provi- 122 sions hereof shall be enforceable to the full extent permitted by law. SECTION 13.14. TABLE OF CONTENTS, HEADINGS, ETC. The Table of Contents, Cross-Reference Table and headings of the Articles and the Sections of this Indenture have been inserted for convenience of reference only, are not to be considered a part hereof and shall in no way modify or restrict any of the terms or provisions hereof. SECTION 13.15. REGISTRATION RIGHTS. Certain Holders of Securities may be entitled to certain registration rights with respect to such Securities pursuant to, and subject to the terms of, the Registration Rights Agreement. 123 SIGNATURES IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be duly executed as of the date first written above. JACOR COMMUNICATIONS COMPANY By: /s/ R. CHRISTOPHER WEBER ----------------------------------- Name: R. Christopher Weber Title: Senior Vice President, Chief Financial Officer & Secretary PARENT GUARANTOR JACOR COMMUNICATIONS, INC. By: /s/ R. CHRISTOPHER WEBER ----------------------------------- Name: R. Christopher Weber Title: Senior Vice President, Chief Financial Officer & Secretary SUBSIDIARY GUARANTORS: BROADCAST FINANCE, INC. By: /s/ R. CHRISTOPHER WEBER ----------------------------------- Name: R. Christopher Weber Title: Senior Vice President and Assistant Secretary CINE FILMS, INC. By: /s/ R. CHRISTOPHER WEBER ----------------------------------- Name: R. Christopher Weber Title: Senior Vice President and Assistant Secretary 124 CINE GUARANTORS, INC. By: /s/ R. CHRISTOPHER WEBER ----------------------------------- Name: R. Christopher Weber Title: Senior Vice President and Assistant Secretary CINE GUARANTORS II, INC. By: /s/ R. CHRISTOPHER WEBER ----------------------------------- Name: R. Christopher Weber Title: Senior Vice President and Assistant Secretary CINE GUARANTORS II, LTD. By: /s/ R. CHRISTOPHER WEBER ----------------------------------- Name: R. Christopher Weber Title: Senior Vice President and Assistant Secretary CINE MOBILE SYSTEMS INT'L N.V. By: /s/ R. CHRISTOPHER WEBER ----------------------------------- Name: R. Christopher Weber Title: Senior Vice President and Assistant Secretary CINE MOVIL S.A. DE C.V. By: /s/ R. CHRISTOPHER WEBER ----------------------------------- Name: R. Christopher Weber Title: Senior Vice President and Assistant Secretary 125 CITICASTERS CO. By: /s/ R. CHRISTOPHER WEBER ----------------------------------- Name: R. Christopher Weber Title: Senior Vice President and Assistant Secretary EFM PROGRAMMING, INC. By: /s/ R. CHRISTOPHER WEBER ----------------------------------- Name: R. Christopher Weber Title: Senior Vice President and Assistant Secretary F.M.I. PENNSYLVANIA, INC. By: /s/ R. CHRISTOPHER WEBER ----------------------------------- Name: R. Christopher Weber Title: Senior Vice President and Assistant Secretary GACC-N26LB, INC. By: /s/ R. CHRISTOPHER WEBER ----------------------------------- Name: R. Christopher Weber Title: Senior Vice President and Assistant Secretary GACC-340, INC. By: /s/ R. CHRISTOPHER WEBER ----------------------------------- Name: R. Christopher Weber Title: Senior Vice President and Assistant Secretary 126 GEORGIA NETWORK EQUIPMENT, INC. By: /s/ R. CHRISTOPHER WEBER ----------------------------------- Name: R. Christopher Weber Title: Senior Vice President and Assistant Secretary GREAT AMERICAN MERCHANDISING GROUP, INC. By: /s/ R. CHRISTOPHER WEBER ----------------------------------- Name: R. Christopher Weber Title: Senior Vice President and Assistant Secretary GREAT AMERICAN TELEVISION PRODUCTIONS, INC. By: /s/ R. CHRISTOPHER WEBER ----------------------------------- Name: R. Christopher Weber Title: Senior Vice President and Assistant Secretary INMOBILARIA RADIAL, S.A. DE C.V. By: /s/ R. CHRISTOPHER WEBER ----------------------------------- Name: R. Christopher Weber Title: Senior Vice President and Assistant Secretary JACOR BROADCASTING CORPORATION By: /s/ R. CHRISTOPHER WEBER ----------------------------------- Name: R. Christopher Weber Title: Senior Vice President and Assistant Secretary 127 JACOR BROADCASTING OF ATLANTA, INC. By: /s/ R. CHRISTOPHER WEBER ----------------------------------- Name: R. Christopher Weber Title: Senior Vice President and Assistant Secretary JACOR BROADCASTING OF COLORADO, INC. By: /s/ R. CHRISTOPHER WEBER ----------------------------------- Name: R. Christopher Weber Title: Senior Vice President and Assistant Secretary JACOR BROADCASTING OF FLORIDA, INC. By: /s/ R. CHRISTOPHER WEBER ----------------------------------- Name: R. Christopher Weber Title: Senior Vice President and Assistant Secretary JACOR BROADCASTING OF KNOXVILLE, INC. By: /s/ R. CHRISTOPHER WEBER ----------------------------------- Name: R. Christopher Weber Title: Senior Vice President and Assistant Secretary 128 JACOR BROADCASTING OF ST. LOUIS, INC. By: /s/ R. CHRISTOPHER WEBER ----------------------------------- Name: R. Christopher Weber Title: Senior Vice President and Assistant Secretary JACOR BROADCASTING OF SAN DIEGO, INC. By: /s/ R. CHRISTOPHER WEBER ----------------------------------- Name: R. Christopher Weber Title: Senior Vice President and Assistant Secretary JACOR BROADCASTING OF SARASOTA, INC. By: /s/ R. CHRISTOPHER WEBER ----------------------------------- Name: R. Christopher Weber Title: Senior Vice President and Assistant Secretary JACOR BROADCASTING OF TAMPA BAY, INC. By: /s/ R. CHRISTOPHER WEBER ----------------------------------- Name: R. Christopher Weber Title: Senior Vice President and Assistant Secretary 129 JACOR CABLE, INC. By: /s/ R. CHRISTOPHER WEBER ----------------------------------- Name: R. Christopher Weber Title: Senior Vice President and Assistant Secretary LOCATION PRODUCTIONS, INC. By: /s/ R. CHRISTOPHER WEBER ----------------------------------- Name: R. Christopher Weber Title: Senior Vice President and Assistant Secretary LOCATION PRODUCTIONS II, INC. By: /s/ R. CHRISTOPHER WEBER ----------------------------------- Name: R. Christopher Weber Title: Senior Vice President and Assistant Secretary NOBLE BROADCAST CENTER, INC. By: /s/ R. CHRISTOPHER WEBER ----------------------------------- Name: R. Christopher Weber Title: Senior Vice President and Assistant Secretary NOBLE BROADCAST GROUP, INC. By: /s/ R. CHRISTOPHER WEBER ----------------------------------- Name: R. Christopher Weber Title: Senior Vice President and Assistant Secretary 130 NOBLE BROADCAST HOLDINGS, INC. By: /s/ R. CHRISTOPHER WEBER ----------------------------------- Name: R. Christopher Weber Title: Senior Vice President and Assistant Secretary NOBLE BROADCAST LICENSES, INC. By: /s/ R. CHRISTOPHER WEBER ----------------------------------- Name: R. Christopher Weber Title: Senior Vice President and Assistant Secretary NOBLE BROADCAST OF COLORADO, INC. By: /s/ R. CHRISTOPHER WEBER ----------------------------------- Name: R. Christopher Weber Title: Senior Vice President and Assistant Secretary NOBLE BROADCAST OF ST. LOUIS, INC. By: /s/ R. CHRISTOPHER WEBER ----------------------------------- Name: R. Christopher Weber Title: Senior Vice President and Assistant Secretary NOBLE BROADCAST OF SAN DIEGO, INC. By: /s/ R. CHRISTOPHER WEBER ----------------------------------- Name: R. Christopher Weber Title: Senior Vice President and Assistant Secretary 131 NOBLE BROADCAST OF TOLEDO, INC. By: /s/ R. CHRISTOPHER WEBER ----------------------------------- Name: R. Christopher Weber Title: Senior Vice President and Assistant Secretary NOBRO, S.C. By: /s/ R. CHRISTOPHER WEBER ----------------------------------- Name: R. Christopher Weber Title: Treasurer NOVA MARKETING GROUP, INC. By: /s/ R. CHRISTOPHER WEBER ----------------------------------- Name: R. Christopher Weber Title: Senior Vice President and Assistant Secretary REGENT BROADCASTING OF CHARLESTON, INC. By: /s/ R. CHRISTOPHER WEBER ----------------------------------- Name: R. Christopher Weber Title: Senior Vice President and Assistant Secretary REGENT BROADCASTING OF KANSAS CITY, INC. By: /s/ R. CHRISTOPHER WEBER ----------------------------------- Name: R. Christopher Weber Title: Senior Vice President and Assistant Secretary 132 REGENT BROADCASTING OF LAS VEGAS, INC. By: /s/ R. CHRISTOPHER WEBER ----------------------------------- Name: R. Christopher Weber Title: Senior Vice President and Assistant Secretary REGENT BROADCASTING OF LAS VEGAS II, INC. By: /s/ R. CHRISTOPHER WEBER ----------------------------------- Name: R. Christopher Weber Title: Senior Vice President and Assistant Secretary REGENT BROADCASTING OF LOUISVILLE, INC. By: /s/ R. CHRISTOPHER WEBER ----------------------------------- Name: R. Christopher Weber Title: Senior Vice President and Assistant Secretary REGENT BROADCASTING OF LOUISVILLE II, INC. By: /s/ R. CHRISTOPHER WEBER ----------------------------------- Name: R. Christopher Weber Title: Senior Vice President and Assistant Secretary 133 REGENT BROADCASTING OF SALT LAKE CITY, INC. By: /s/ R. CHRISTOPHER WEBER ----------------------------------- Name: R. Christopher Weber Title: Senior Vice President and Assistant Secretary REGENT BROADCASTING OF SALT LAKE CITY II, INC. By: /s/ R. CHRISTOPHER WEBER ----------------------------------- Name: R. Christopher Weber Title: Senior Vice President and Assistant Secretary REGENT LICENSEE OF CHARLESTON, INC. By: /s/ R. CHRISTOPHER WEBER ----------------------------------- Name: R. Christopher Weber Title: Senior Vice President and Assistant Secretary REGENT LICENSEE OF KANSAS CITY, INC. By: /s/ R. CHRISTOPHER WEBER ----------------------------------- Name: R. Christopher Weber Title: Senior Vice President and Assistant Secretary 134 REGENT LICENSEE OF LAS VEGAS, INC. By: /s/ R. CHRISTOPHER WEBER ----------------------------------- Name: R. Christopher Weber Title: Senior Vice President and Assistant Secretary REGENT LICENSEE OF LAS VEGAS II, INC By: /s/ R. CHRISTOPHER WEBER ----------------------------------- Name: R. Christopher Weber Title: Senior Vice President and Assistant Secretary REGENT LICENSEE OF LOUISVILLE, INC. By: /s/ R. CHRISTOPHER WEBER ----------------------------------- Name: R. Christopher Weber Title: Senior Vice President and Assistant Secretary REGENT LICENSEE OF LOUISVILLE II, INC. By: /s/ R. CHRISTOPHER WEBER ----------------------------------- Name: R. Christopher Weber Title: Senior Vice President and Assistant Secretary 135 REGENT LICENSEE OF SALT LAKE CITY, INC. By: /s/ R. CHRISTOPHER WEBER ----------------------------------- Name: R. Christopher Weber Title: Senior Vice President and Assistant Secretary REGENT LICENSEE OF SALT LAKE CITY II, INC. By: /s/ R. CHRISTOPHER WEBER ----------------------------------- Name: R. Christopher Weber Title: Senior Vice President and Assistant Secretary SPORTS RADIO BROADCASTING, INC. By: /s/ R. CHRISTOPHER WEBER ----------------------------------- Name: R. Christopher Weber Title: Senior Vice President and Assistant Secretary SPORTS RADIO, INC. By: /s/ R. CHRISTOPHER WEBER ----------------------------------- Name: R. Christopher Weber Title: Senior Vice President and Assistant Secretary TAFT-TCI SATELLITE SERVICES, INC. By: /s/ R. CHRISTOPHER WEBER ----------------------------------- Name: R. Christopher Weber Title: Senior Vice President and Assistant Secretary 136 THE SY FISCHER COMPANY AGENCY, INC. By: /s/ R. CHRISTOPHER WEBER ----------------------------------- Name: R. Christopher Weber Title: Senior Vice President and Assistant Secretary WHOK, INC. By: /s/ R. CHRISTOPHER WEBER ----------------------------------- Name: R. Christopher Weber Title: Senior Vice President and Assistant Secretary VTTV PRODUCTIONS By: /s/ R. CHRISTOPHER WEBER ----------------------------------- Name: R. Christopher Weber Title: Senior Vice President and Assistant Secretary 137 PREMIERE RADIO NETWORKS, INC. By: /s/ R. CHRISTOPHER WEBER ----------------------------------- Name: R. Christopher Weber Title: Senior Vice President JACOR/PREMIERE HOLDING, INC. By: /s/ R. CHRISTOPHER WEBER ----------------------------------- Name: R. Christopher Weber Title: Senior Vice President and Assistant Secretary AFTER MIDNITE ENTERTAINMENT, INC. By: /s/ R. CHRISTOPHER WEBER ----------------------------------- Name: R. Christopher Weber Title: Senior Vice President 138 THE BANK OF NEW YORK, as Trustee By: /s/ LUCILLE FIRRINCIELI ----------------------------------- Name: Lucille Firrincieli Title: Assistant Vice President 139 Exhibit A [FORM OF SECURITY] JACOR COMMUNICATIONS COMPANY 8 3/4% SERIES A(1) SENIOR SUBORDINATED NOTE DUE 2007 CUSIP: No. $ _________ Jacor Communications Company, a Florida corporation (hereinafter called the "Company" which term includes any successors under the Indenture hereinafter referred to), for value received, hereby promises to pay to _______, or registered assigns, the principal sum of _____ Dollars, on June 15, 2007. Interest Payment Dates: June 15 and December 15; commencing December 15, 1997. Record Dates: June 1 and December 1 Reference is made to the further provisions of this Security on the reverse side, which will, for all purposes, have the same effect as if set forth at this place. IN WITNESS WHEREOF, the Company has caused this Instrument to be duly executed under its corporate seal. Dated: Jacor Communications Company a Florida corporation By: ------------------------------------ Name: Title: Attest: ----------- Secretary ----------- (1) Series A should be replaced with Series B in the Exchange Securities. A-1 FORM OF TRUSTEE'S CERTIFICATE OF AUTHENTICATION This is one of the Securities described in the within-mentioned Indenture. THE BANK OF NEW YORK as Trustee By: --------------------- Authorized Signatory Dated: A-2 JACOR COMMUNICATIONS COMPANY 8 3/4% SERIES A(2) SENIOR SUBORDINATED NOTE DUE 2007 Unless and until it is exchanged in whole or in part for Securities in definitive form, this Security may not be transferred except as a whole by the Depositary to a nominee of the Depositary or by a nominee of the Depositary to the Depositary or another nominee of the Depositary or by the Depositary or any such nominee to a successor Depositary or a nominee of such successor Depositary. Unless this certificate is presented by an authorized representative of The Depository Trust Company (55 Water Street, New York, New York) ("DTC"), to the Company or their agent for registration of transfer, exchange or payment, and any certificate issued is registered in the name of Cede & Co. or such other name as requested by an authorized representative of DTC (and any payment is made to Cede & Co. or such other entity as is requested by an authorized representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner hereof, Cede & Co. , has an interest herein.(3) THIS NOTE (OR ITS PREDECESSOR) HAS NOT BEEN REGISTERED UNDER THE U.S. SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT") AND, ACCORDINGLY, MAY NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED WITHIN THE UNITED STATES OR TO, OR FOR THE ACCOUNT OR BENEFIT OF, U.S. PERSONS, EXCEPT AS SET FORTH IN THE FOLLOWING SENTENCE. BY ITS ACQUISITION HEREOF OR OF A BENEFICIAL INTEREST HEREIN, THE HOLDER (1) REPRESENTS THAT (A) IT IS A "QUALIFIED INSTITUTIONAL BUYER" (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT) (A "QIB"), (B) IT IS ACQUIRING THIS NOTE IN AN OFFSHORE TRANSACTION IN COMPLIANCE WITH REGULATION S UNDER THE SECURITIES ACT OR (C) IT IS AN INSTITUTIONAL "ACCREDITED INVESTOR" (AS DEFINED IN RULE - ------------------ (2) Series A should be replaced with Series B in the Exchange Security. (3) This paragraph should only be added if the Security is issued in global form. A-3 501(A)(1), (2), (3) OR (7) OF REGULATION D UNDER THE SECURITIES ACT) (AN "IAI"), (2) AGREES THAT IT WILL NOT, WITHIN THE TIME PERIOD REFERRED TO UNDER RULE 144(k) (TAKING INTO ACCOUNT THE PROVISIONS OF RULE 144(d) UNDER THE SECURITIES ACT, IF APPLICABLE) UNDER THE SECURITIES ACT AS IN EFFECT ON THE DATE OF THE TRANSFER OF THIS NOTE, RESELL OR OTHERWISE TRANSFER THIS NOTE EXCEPT (A) TO THE COMPANY OR ANY GUARANTOR, (B) TO A PERSON WHOM THE HOLDER REASONABLY BELIEVES IS A QIB PURCHASING FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QIB IN COMPLIANCE WITH RULE 144A UNDER THE SECURITIES ACT, (C) IN AN OFFSHORE TRANSACTION MEETING THE REQUIREMENTS OF RULE 904 OF THE SECURITIES ACT, (D) PURSUANT TO THE EXEMPTION FROM REGISTRATION PROVIDED BY RULE 144 UNDER THE SECURITIES ACT (IF AVAILABLE), (E) TO AN IAI WHICH PRIOR TO SUCH TRANSFER, FURNISHES TO THE TRUSTEE A SIGNED LETTER CONTAINING CERTAIN REPRESENTATIONS AND AGREEMENTS RELATING TO THE REGISTRATION OF TRANSFER OF THIS NOTE (THE FORM OF WHICH LETTER CAN BE OBTAINED FROM THE TRUSTEE) AND, IF SUCH TRANSFER IS IN RESPECT OF AN AGGREGATE PRINCIPAL AMOUNT OF NOTES AT THE TIME OF TRANSFER OF LESS THAN $250,000, AN OPINION OF COUNSEL ACCEPTABLE TO JCC THAT SUCH TRANSFER IS IN COMPLIANCE WITH THE SECURITIES ACT OR (F) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT AND, IN EACH CASE, IN ACCORDANCE WITH APPLICABLE STATE SECURITIES LAWS, AND (3) AGREES THAT IT WILL DELIVER TO EACH PERSON TO WHOM THIS NOTE OR AN INTEREST HEREIN IS TRANSFERRED A NOTICE SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND. AS USED HEREIN, THE TERMS "OFFSHORE TRANSACTION", "UNITED STATES" AND "U.S. PERSON" HAVE THE MEANINGS GIVEN THEM BY RULE 902 OF REGULATION S UNDER THE SECURITIES ACT. THE INDENTURE CONTAINS A PROVISION REQUIRING THE TRUSTEE TO REFUSE TO REGISTER ANY TRANSFER OF THIS NOTE IN VIOLATION OF THE FOREGOING RESTRICTIONS. (4) 1. INTEREST. - ------------------ (4) This paragraph should be included only for the Initial Securities. A-4 Jacor Communications Company, a Florida corporation (hereinafter called the "Company," which term includes any successors under the Indenture hereinafter referred to), promises to pay interest on the principal amount of this Security at the rate of 8 3/4% per annum from the date of issuance until maturity. To the extent it is lawful, the Company promises to pay interest on any interest payment due but unpaid on such principal amount at a rate of 8 3/4% per annum compounded semi-annually. The Company will pay interest semi-annually on June 15 and December 15 of each year or, if any such day is not a Business Day, on the next succeeding Business Day (each, an "Interest Payment Date"), commencing December 15, 1997. Interest on the Securities will accrue from the most recent date to which interest has been paid or, if no interest has been paid on the Securities, from the date of issuance. Interest will be computed on the basis of a 360-day year consisting of twelve 30-day months. 2. METHOD OF PAYMENT. The Company shall pay interest on the Securities (except defaulted interest) to the Persons who are the registered Holders at the close of business on June 1 and December 1 immediately preceding the Interest Payment Date. Holders must surrender Securities to a Paying Agent to collect principal payments. Except as provided below, the Company shall pay principal and interest in such coin or currency of the United States of America as at the time of payment shall be legal tender for payment of public and private debts ("Cash"). The Securities will be payable as to principal, premium and interest at the office or agency of the Company maintained for such purpose within or without the City and State of New York or, at the option of the Company, payment of principal, premium and interest may be made by check mailed to the Holders at their addresses set forth in the register of Holders, and provided that payment by wire transfer of immediately available funds will be required with respect to principal of and interest and premium on all Global Securities and all other Securities the Holders of which shall have provided written wire transfer instructions to the Company or the Paying Agent at least 15 days prior to the date for payment. 3. PAYING AGENT AND REGISTRAR. A-5 Initially, The Bank of New York will act as Paying Agent and Registrar. The Company may change any Paying Agent, Registrar or co-Registrar without notice to the Holders. The Company or any of its Subsidiaries may, subject to certain exceptions, act as Paying Agent, Registrar or co-Registrar. 4. INDENTURE. The Company issued the Securities under an Indenture, dated as of June 17, 1997 (the "Indenture"), among the Company, Jacor Communications, Inc., a Delaware corporation (the "Parent Guarantor"), the Subsidiary Guarantors named therein (the "Subsidiary Guarantors" together with the Parent Guarantor, the "Guarantors"), and The Bank of New York (the "Trustee" which term includes any successor Trustee under the Indenture). Capitalized terms herein are used as defined in the Indenture unless otherwise defined herein. The terms of the Securities include those stated in the Indenture and those made part of the Indenture by reference to the Trust Indenture Act, as in effect on the date of the Indenture. The Securities are subject to all such terms, and Holders of Securities are referred to the Indenture and said Act for a statement of them. The Securities are senior subordinated obligations of the Company limited in aggregate principal amount to $150,000,000. The Securities are, to the extent and in the manner provided in the Indenture, subordinate and subject in right of payment to the prior payment in full of all Senior Debt of the Company, whether outstanding on the date of the Indenture or thereafter created, incurred, assumed or guaranteed. Each Holder of this Security, by accepting the same, (a) agrees to and shall be bound by such provisions, (b) authorizes and directs the Trustee on his behalf to take such action as may be provided in the Indenture and (c) appoints the Trustee his attorney-in-fact for such purpose. The Securities are guaranteed on a senior subordinated basis by the Guarantors. 5. REDEMPTION. The Securities may be redeemed, in whole or in part, at any time on or after June 15, 2002, at the option of the Company, at the Redemption Price (expressed as a percentage of principal amount) set forth below with respect to the indicated Redemption Date, in each case (subject to the right of Holders of record on a Record Date that is on or prior to such Redemption Date to receive interest due on the A-6 Interest Payment Date to which such Record Date relates), plus any accrued but unpaid interest to the Redemption Date. The Securities may not be so redeemed prior to June 15, 2002. If redeemed during the 12-month period commencing June 15, Redemption Price -------------------- -------------------- 2002 . . . . . . . . . 104.375% 2003 . . . . . . . . . 102.917% 2004 . . . . . . . . . 101.458% 2005 and thereafter. . 100.000% Any such redemption will comply with Article III of the Indenture. 6. NOTICE OF REDEMPTION. Notice of redemption will be sent by first class mail, at least 30 days and not more than 60 days prior to the Redemption Date to the Holder of each Security to be redeemed at such Holder's last address as then shown upon the registry books of the Registrar. Securities may be redeemed in part in multiples of $1,000 only. Except as set forth in the Indenture, from and after any Redemption Date, if monies for the redemption of the Securities called for redemption shall have been deposited with the Paying Agent on such Redemption Date and payment of the Securities called for redemption is not otherwise prohibited, the Securities called for redemption will cease to bear interest and the only right of the Holders of such Securities will be to receive payment of the Redemption Price. 7. DENOMINATIONS; TRANSFER; EXCHANGE. The Securities are in registered form, without coupons, in denominations of $1,000 and integral multiples of $1,000. A Holder may register the transfer of, or exchange Securities in accordance with, the Indenture. The Registrar may require a Holder, among other things, to furnish appropriate endorsements and transfer documents and to pay any taxes and fees required by law or permitted by the Indenture. The Registrar need not register the transfer A-7 of or exchange any Securities (a) selected for redemption except the unredeemed portion of any Security being redeemed in part or (b) for a period beginning 15 Business Days before the mailing of a notice of an offer to repurchase or redemption and ending at the close of business on the day of such mailing. 8. PERSONS DEEMED OWNERS. The registered Holder of a Security may be treated as the owner of it for all purposes. 9. UNCLAIMED MONEY. If money for the payment of principal or interest remains unclaimed for two years, the Trustee and the Paying Agent(s) will pay the money back to the Company at their written request. After that, all liability of the Trustee and such Paying Agent(s) with respect to such money shall cease. 10. DISCHARGE PRIOR TO REDEMPTION OR MATURITY. Except as set forth in the Indenture, if the Company irrevocably deposits with the Trustee, in trust, for the benefit of the Holders, Cash, U.S. Government Obligations or a combination thereof, in such amounts as will be sufficient in the opinion of a nationally recognized firm of independent public accountants, to pay the principal of, premium, if any, and interest on the Securities to redemption or maturity and comply with the other provisions of the Indenture relating thereto, the Company will be discharged from certain provisions of the Indenture and the Securities (including the restrictive covenants described in paragraph 12 below, but excluding their obligation to pay the principal of and interest on the Securities). Upon satisfaction of certain additional conditions set forth in the Indenture, the Company may elect to have its obligations discharged with respect to outstanding Securities. 11. AMENDMENT; SUPPLEMENT; WAIVER. Subject to certain exceptions, the Indenture or the Securities may be amended or supplemented with the written consent of the Holders of at least a majority in aggregate principal amount of the Securities then outstanding, and any existing Default or Event of Default or compliance A-8 with any provision may be waived with the consent of the Holders of a majority in aggregate principal amount of the Securities then outstanding. An amendment, supplement or waiver with respect to Section 11.1 (Change of Control Offer) in a manner adverse to the Holders, requires not less than 75% of the aggregate principal amount of the Securities then outstanding. Without notice to or consent of any Holder, the parties thereto may under certain circumstances amend or supplement the Indenture or the Securities to, among other things, cure any ambiguity, defect or inconsistency, or make any other change that does not adversely affect the rights of any Holder of a Security. 12. RESTRICTIVE COVENANTS. The Indenture imposes certain limitations on the ability of the Company and the Guarantors to, among other things, incur additional Indebtedness and Disqualified Equity Interests, pay dividends or make certain other restricted payments, enter into certain transactions with Affiliates, incur Liens, sell assets, merge or consolidate with any other Person or transfer (by lease, assignment or otherwise) substantially all of the properties and assets of the Company. The limitations are subject to a number of important qualifications and exceptions. The Company must periodically report to the Trustee on compliance with such limitations. 13. REPURCHASE AT OPTION OF HOLDER. (a) If there is a Change of Control, the Company shall be required to offer to purchase on the Change of Control Purchase Date all outstanding Securities at a purchase price equal to 101% of the principal amount thereof, together with accrued interest to the Change of Control Purchase Date. Holders of Securities will receive a Change of Control Offer from the Company prior to any related Change of Control Purchase Date and may elect to have such Securities purchased by completing the form entitled "Option of Holder to Elect Purchase" appearing below. (b) The Indenture imposes certain limitations on the ability of the Company, the Guarantors or any of their respective Subsidiaries to sell assets. In the event the proceeds from a permitted Asset Sale exceed certain amounts, as specified in the Indenture, the Company will be required to use the proceeds of such Asset Sale in the manner re- A-9 quired by the Indenture, including (i) to reinvest such proceeds in its business, (ii) to repay Senior Debt, (iii) to make an offer to purchase the 10 1/8% Notes, (iv) to make an offer to purchase the 9 3/4% Notes or (v) to make an offer to purchase a certain amount of each Holder's Securities at 100% of the principal amount thereof, plus accrued interest, if any, to the purchase date. 14. NOTATION OF GUARANTY. As set forth more fully in the Indenture, the Persons constituting Guarantors from time to time, in accordance with the provisions of the Indenture, unconditionally and jointly and severally guarantee, in accordance with Section 12.1 of the Indenture, to the Holder and to the Trustee and its successors and assigns, that (i) the principal of and interest on the Security will be paid, whether at the Maturity Date or Interest Payment Dates, by acceleration, call for redemption upon a Change of Control Offer, upon an Asset Sale Offer or otherwise, and all other obligations of the Company to the Holder or the Trustee under the Indenture or this Security will be promptly paid in full or performed, all in accordance with the terms of the Indenture and this Security, and (ii) in the case of any extension of payment or renewal of this Security or any of such other obligations, they will be paid in full when due or performed in accordance with the terms of such extension or renewal, whether at the Maturity Date, as so extended, by acceleration, call for redemption, upon a Change of Control Offer, upon an Asset Sale Offer or otherwise. Such guarantees shall cease to apply, and shall be null and void, with respect to any Guarantor who, pursuant to Article XII of the Indenture, is released from its guarantees, or whose guarantees otherwise cease to be applicable pursuant to the terms of the Indenture. 15. SUCCESSORS. When a successor assumes all the obligations of its predecessor under the Securities and the Indenture, the predecessor will be released from those obligations. 16. DEFAULTS AND REMEDIES. If an Event of Default occurs and is continuing (other than an Event of Default relating to certain events of bankruptcy, insolvency or reorganization), then in every A-10 such case, unless the principal of all of the Securities shall have already become due and payable, either the Trustee or the Holders of 25% in aggregate principal amount of Securities then outstanding may declare all the Securities to be due and payable immediately in the manner and with the effect provided in the Indenture. Holders of Securities may not enforce the Indenture or the Securities except as provided in the Indenture. The Trustee may require indemnity satisfactory to it before it enforces the Indenture or the Securities. Subject to certain limitations, Holders of a majority in aggregate principal amount of the Securities then outstanding may direct the Trustee in its exercise of any trust or power. The Trustee may withhold from Holders of Securities notice of any continuing Default or Event of Default (except a Default in payment of principal or interest), if it determines that withholding notice is in their interest. 17. TRUSTEE OR AGENT DEALINGS WITH THE COMPANY. The Trustee and each Agent under the Indenture, in its individual or any other capacity, may make loans to, accept deposits from, and perform services for the Company or its Affiliates, and may otherwise deal with the Company or its Affiliates as if it were not the Trustee and such Agent. 18. NO RECOURSE AGAINST OTHERS. No direct or indirect stockholder, partner, employee, officer or director, as such, past, present or future, of the Company, the Guarantors or any successor entity shall have any personal liability in respect of the obligations of the Company or the Guarantors under the Securities or the Indenture by reason of his or its status as such stockholder, partner, employee, officer or director. Each Holder of a Security by accepting a Security waives and releases all such liability. The waiver and release are part of the consideration for the issuance of the Securities. 19. AUTHENTICATION. This Security shall not be valid until the Trustee or authenticating agent signs the certificate of authentication on the other side of this Security. A-11 20. ABBREVIATIONS AND DEFINED TERMS. Customary abbreviations may be used in the name of a Holder of a Security or an assignee, such as: TEN COM (= tenants in common), TEN ENT (= tenants by the entireties), JT TEN (= joint tenants with right of survivorship and not as tenants in common), CUST (= Custodian), and U/G/M/A (= Uniform Gifts to Minors Act). 21. CUSIP NUMBERS. Pursuant to a recommendation promulgated by the Committee on Uniform Security Identification Procedures, the Company will cause CUSIP numbers to be printed on the Securities as a convenience to the Holders of the Securities. No representation is made as to the accuracy of such numbers as printed on the Securities and reliance may be placed only on the other identification numbers printed hereon. 22. ADDITIONAL RIGHTS OF HOLDERS OF TRANSFER RESTRICTED SECURITIES. (5) In addition to the rights provided to Holders of Securities under the Indenture, Holders of Securities shall have all the rights set forth in the Registration Rights Agreement. 23. ADDITIONAL RIGHTS OF HOLDERS OF SECURITIES. The Company will furnish to any Holder upon written request and without charge a copy of the Indenture. Requests may be made to: Jacor Communications Company 50 East RiverCenter Boulevard 12th Floor Covington, Kentucky 41011 Attn: Corporate Secretary 24. GOVERNING LAW. - -------------------- (5) This paragraph shall be included only for the Initial Securities. A-12 The Indenture and the Securities shall be governed by and construed in accordance with the internal laws of the State of New York. A-13 FORM OF ASSIGNMENT I or we assign this Security to - ------------------------------------------------------------------------------- - ------------------------------------------------------------------------------- - ------------------------------------------------------------------------------- (Print or type name, address and zip code of assignee) Please insert Social Security or other identifying number of assignee - ------------------------- and irrevocably appoint __________ agent to transfer this Security on the books of the Company. The agent may substitute another to act for him. Dated: Signed: ---------- -------------------------------------------- - ----------------------------------------------------------------------- (Sign exactly as name appears on the other side of this Security) Signature Guaranty* - -------------------------- * NOTICE: The Signature must be guaranteed by an Institution which is a member of one of the following recognized signature Guarantee programs: (I) The Securities Transfer Agent Medallion Program (STAMP); (ii) The New York Stock Exchange Medallion Program (MNSP); (iii) The New York Stock Exchange Medallion Program (SEMP) or (iv) in such other guarantee program acceptable to the Trustee. A-14 OPTION OF HOLDER TO ELECT PURCHASE If you want to elect to have this Security purchased by the Company pursuant to Section 4.14 or Article XI of the Indenture, check the appropriate box: / / Section 4.14 / /Section 11.1 If you want to elect to have only part of this Security purchased by the Company pursuant to Section 4.14 or Article XI of the Indenture, as the case may be, state the amount you want to be purchased: $________ Date: Signature: ---------------- ----------------------------------------- (Sign exactly as your name appears on the other side of this Security) Signature Guaranty** - -------------------- ** NOTICE: The Signature must be guaranteed by an Institution which is a member of one of the following recognized signature Guarantee Programs: (I) The Securities Transfer Agent Medallion Program (STAMP); (ii) The New York Stock Exchange Medallion Program (MNSP); (iii) The Stock Exchange Medallion Program (SEMP) or (iv) in such other guarantee program acceptable to the Trustee. A-15 SCHEDULE OF EXCHANGES OF DEFINITIVE SECURITIES(6) The following exchanges of a part of this Global Security for Definitive Securities have been made:
Amount of Amount of Principal Amount Signature of decrease in increase in of this Global authorized Signa Principal Amount Principal Amount Security following tory of Trustee or Date of of this Global of this Global such decrease (or Securities Exchange Security Security increase) Custodian - ----------------------------------------------------------------------------------------------------------
- --------------------- (6) This schedule should only be added if the Security is issued in global form. A-16 CERTIFICATE TO BE DELIVERED UPON EXCHANGE OR REGISTRATION OF TRANSFER OF SECURITIES(7) Re: 8 3/4% SERIES A SENIOR SUBORDINATED NOTES DUE 2007 OF JACOR COMMUNICATIONS COMPANY This Certificate relates to $______ principal amount of Securities held in (check applicable box) _____ book-entry or ______ definitive form by _____ (the "Transferor"). The Transferor (check applicable box): / / has requested the Registrar by written order to deliver in exchange for its beneficial interest in the Global Security held by the Depositary a Security or Securities in definitive, registered form of authorized denominations and an aggregate principal amount equal to its beneficial interest in such Global Security (or the portion thereof indicated above); or / / has requested the Registrar by written order to exchange or register the transfer of a Security or Securities. In connection with such request and in respect of each such Security, the Transferor does hereby certify that Transferor is familiar with the Indenture relating to the above-captioned Securities and as provided in Section 2.6 of such Indenture, the transfer of this Security does not require registration under the Securities Act (as defined below) because: / / Such Security is being acquired for the Transferor's own account, without transfer (in satisfaction of Section 2.6(a)(ii)(A) or Section 2.6(d)(i)(A) of the Indenture). - --------------------- (7) This certificate shall be included only for the Initial Securities. A-17 / / Such Security is being transferred to a "qualified institutional buyer" (within the meaning of Rule 144A promulgated under the Securities Act), that is aware that any sale of Securities to it will be made in reliance on Rule 144A under the Securities Act and that is acquiring such Transfer Restricted Security for its own account, or for the account of another such "qualified institutional buyer" (in satisfaction of Section 2.06(a)(ii)(B) or Section 2.06 (d)(i)(B) of the Indenture). / / Such Security is being transferred pursuant to an exemption from registration in accordance with Rule 144, or Regulation S under the Securities Act, or pursuant to an effective registration statement under the Securities Act (in satisfaction of Section 2.6(a)(ii)(C) or Section 2.6(d)(i)(C) of the Indenture). / / Such Security is being transferred to an institutional "accredited investor" within the meaning of subparagraph (a)(1), (2), (3) or (7) of Rule 501 under the Securities Act, that is purchasing such Security for its own account or for the account of such an institutional "accredited investor" in each case in a minimum principal amount of $250,000, not with a view to or for offer for sale in connection with any distribution in violation of the Securities Act. A signed transferee letter of representation accompanies this Certificate (in satisfaction of Section 2.6(a)(ii)(D) or Section 2.6(d)(i)(D) of the Indenture) ------------------------------------- [INSERT NAME OF TRANSFEROR] By: --------------------------------- Date: --------------------- A-18 CERTIFICATE TO BE DELIVERED UPON EXCHANGE OR REGISTRATION OF TRANSFER OF SECURITIES(8) Re: 8 3/4% SERIES B SENIOR SUBORDINATED NOTES DUE 2007 OF JACOR COMMUNICATIONS COMPANY This Certificate relates to $______ principal amount of Securities held in (check applicable box) _____ book-entry or ______ definitive form by _____ (the "Transferor"). The Transferor (check applicable box): / / has requested the Registrar by written order to deliver in exchange for its beneficial interest in the Global Security held by the Depositary a Security or Securities in definitive, registered form of authorized denominations and an aggregate principal amount equal to its beneficial interest in such Global Security (or the portion thereof indicated above); or / / has requested the Registrar by written order to exchange or register the transfer of a Security or Securities. - ------------------------- (8) This certificate shall be included only for the Exchange Securities. A-19 EX-4.2 4 EXHIBIT 4.2 REGISTRATION RIGHTS AGREEMENT Dated as of June 17, 1997 by and among JACOR COMMUNICATIONS COMPANY as Issuer, JACOR COMMUNICATIONS, INC., as Parent Guarantor, the Subsidiary Guarantors named on the signature pages hereof, and DONALDSON, LUFKIN & JENRETTE SECURITIES CORPORATION, CHASE SECURITIES INC., and MERRILL LYNCH, PIERCE, FENNER & SMITH INCORPORATED as Purchasers REGISTRATION RIGHTS AGREEMENT THIS REGISTRATION RIGHTS AGREEMENT (the "AGREEMENT") is made and entered into as of June 17, 1997 by and among Jacor Communications Company, a Florida corporation (the "ISSUER"), Jacor Communications, Inc., a Delaware corporation and the parent company of the Issuer ("JACOR"), the Subsidiary Guarantors named on the signature pages hereof, and Donaldson, Lufkin & Jenrette Securities Corporation, Chase Securities Inc. and Merrill Lynch, Pierce, Fenner & Smith Incorporated (collectively, the "PURCHASERS"). This Agreement is made pursuant to the Purchase Agreement dated June 11, 1997 among the Issuer, Jacor, the Subsidiary Guarantors named on the signatures pages hereof and the Purchasers (the "PURCHASE AGREEMENT"), which provides for the sale by the Issuer to the Purchasers of $150,000,000 aggregate principal amount of the Issuer's 8 3/4% Senior Subordinated Notes due 2007 (the "NOTES") which Notes are guaranteed (the "Guarantees") by the Guarantors (as defined herein) (the Guarantees and the Notes are collectively referred to herein as the "Securities"). In order to induce the Purchasers to enter into the Purchase Agreement, the Issuer, Jacor and the Subsidiary Guarantors named on the signature pages hereof have agreed to provide to the Purchasers and their respective direct and indirect transferees, among other things, the registration rights for the Securities set forth in this Agreement. The execution of this Agreement is a condition to the closing of the transactions contemplated by the Purchase Agreement. NOW THEREFORE, in consideration of the mutual agreements set forth herein and in the Purchase Agreement, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereby agree as follows: SECTIONS 1. DEFINITIONS. As used in this Agreement, the following terms shall have the following meanings (and, unless otherwise indicated, capitalized terms used herein without definition shall have the meanings ascribed to them by the Purchase Agreement): ADVICE: See Section 5 hereof. APPLICABLE PERIOD: See Section 2 hereof. BENEFICIAL OWNER: In the case of Securities held by The Depository Trust Company or another similar depositary, a beneficial owner of such Securities. BLACKOUT PERIOD: See Section 5 hereof. BUSINESS COMBINATION BLACKOUT PERIOD: See Section 5 hereof. EFFECTIVENESS PERIOD: See Section 3 hereof. EFFECTIVENESS TARGET DATE: See Section 4 hereof. EXCHANGE ACT: The Securities Exchange Act of 1934, as amended, and the rules and regulations of the SEC promulgated thereunder. EXCHANGE OFFER: See Section 2 hereof. EXCHANGE OFFER REGISTRATION STATEMENT: See Section 2 hereof. EXCHANGE SECURITIES: See Section 2 hereof. GUARANTORS: The Guarantors, as defined in the Indenture, and including, without limitation, Jacor and the Subsidiary Guarantors named on the signature pages hereof. HOLDER: Any registered holder of Transfer Restricted Securities. INDENTURE: The Indenture dated as June 17, 1997 among the Issuer, Jacor, the Subsidiary Guarantors and The Bank of New York, as trustee, pursuant to which the Securities are being issued, as amended or supplemented from time to time in accordance with the terms thereof. INSPECTORS: See Section 5 hereof. ISSUE DATE: The date of first issuance of Securities under the Indenture. ISSUER: Jacor Communications Company, a Florida corporation, until a successor replaces it as the "Company" as defined in, and in accordance with the provisions, of the Indenture, and thereafter means such successor. 2 LIQUIDATED DAMAGES: See Section 4 hereof. MATERIAL BUSINESS COMBINATION: See Section 5 hereof. PARTICIPATING BROKER-DEALER: See Section 2 hereof. PERSON or PERSON: An individual, corporation, partnership, limited liability company, joint stock company, trust, unincorporated association, business association, firm or other legal entity. PROSPECTUS: The prospectus included in any Registration Statement (including, without limitation, any prospectus subject to completion and any prospectus that includes any information previously omitted from a prospectus filed as part of an effective registration statement in reliance upon Rule 430A promulgated under the Securities Act) with respect to the offering of any portion of the Exchange Securities and/or the Transfer Restricted Securities (as applicable) covered by such Registration Statement, and all amendments and supplements to such prospectus (including, without limitation, by the filing of post-effective amendments to any such Registration Statement), and all material incorporated or deemed to be incorporated by reference in such prospectus. PURCHASE AGREEMENT: See the introductory paragraph to this Agreement. PURCHASERS: See the introductory paragraph to this Agreement. REGISTRATION DEFAULT: See Section 4 hereof. REGISTRATION STATEMENT: Any registration statement of the Issuer and the persons who at the time are the Guarantors, including, but not limited to, the Exchange Offer Registration Statement and the Shelf Registration (if any), or that otherwise covers any of the Transfer Restricted Securities or Exchange Securities pursuant to the provisions of this Agreement, including the Prospectus, all information (if any) deemed to be part of such registration statement pursuant to Rule 430A promulgated under the Securities Act, all amendments and supplements to such registration statement, including post-effective amendments, all exhibits, and all material incorporated by reference or deemed to be incorporated by reference in such registration statement. 3 RULE 144: Rule 144 promulgated pursuant to the Securities Act, as currently in effect, as such rule may be amended from time to time, or any similar rule or regulation hereafter adopted by the SEC. RULE 144A: Rule 144A promulgated pursuant to the Securities Act, as currently in effect, as such rule may be amended from time to time, or any similar rule or regulation hereafter adopted by the SEC. RULE 415: Rule 415 promulgated pursuant to the Securities Act, as currently in effect, as such rule may be amended from time to time, or any similar rule or regulation hereafter adopted by the SEC. SEC: The Securities and Exchange Commission. SECURITIES: See the introductory paragraphs to this Agreement. SECURITIES ACT: The Securities Act of 1933, as amended, and the rules and regulations of the SEC promulgated thereunder. SHELF DATE: See Section 2 hereof. SHELF NOTICE: See Section 2 hereof. SHELF REGISTRATION: See Section 3 hereof. TIA: The Trust Indenture Act of 1939, as amended, and the rules and regulations of the SEC promulgated thereunder. TRANSFER RESTRICTED SECURITIES: The Securities upon original issuance thereof and at all times subsequent thereto, until in the case of any such Securities, the earliest of (i) the time at which a Registration Statement covering such Securities has been declared effective by the SEC and such Securities have been disposed of in accordance with and pursuant to such effective Registration Statements, (ii) the time at which such Securities are sold or distributed in compliance with Rule 144, or (iii) the time at which such Securities cease to be outstanding (including, without limitation, upon an exchange of such Securities for Exchange Securities in the Exchange Offer). TRUSTEE: The trustee under the Indenture and, if applicable, the trustee under the indenture governing the Exchange Securities. 4 UNDERWRITTEN REGISTRATION OR UNDERWRITTEN OFFERING: A registration in which securities of the Issuer or a Guarantor are sold to an underwriter for reoffering to the public. For purposes of this agreement, all references to information which is "included" or "contained" in a Registration Statement, Prospectus or preliminary Prospectus, and all references of like import, shall be deemed to mean and include the information incorporated or deemed to be incorporated by reference therein, and all references to any amendment or supplement to a Registration Statement, the Prospectus or any preliminary Prospectus, and all references of like import, shall be deemed to mean and include the filing of any document under the Exchange Act which is incorporated or deemed to be incorporated by reference therein. SECTION 2. EXCHANGE OFFER. (a)The Issuer and the Guarantors agree to use their reasonable best efforts to file with the SEC within 90 days after the Issue Date a registration statement related to an offer to exchange (the "EXCHANGE OFFER") any and all of the Transfer Restricted Securities for a like aggregate principal amount of notes of the Issuer guaranteed on a like basis by the Guarantors (such notes and guarantees, collectively the "EXCHANGE SECURITIES") which Exchange Securities will be (i) substantially identical to (and will carry the same rights to accrued and unpaid interest as) the Securities, except that such Exchange Securities will not contain terms with respect to transfer restrictions and the identity of the Guarantors may be different from the Guarantors that initially guaranteed the Securities pursuant to the Indenture so long as the Securities are at all times guaranteed in compliance with the Indenture, (ii) entitled to the benefits of the Indenture or a trust indenture which is substantially identical to the Indenture (other than such changes to the Indenture or any such identical trust indenture as are necessary to comply with any requirements of the SEC to effect or maintain the qualification thereof under the TIA and except that any provisions with respect to transfer restrictions may be appropriately changed or removed) and which, in either case, has been qualified under the TIA, and (iii) registered pursuant to an effective Registration Statement in compliance with the Securities Act. The Exchange Offer will be registered pursuant to the Securities Act on an appropriate form of Registration Statement (the "EXCHANGE OFFER REGISTRATION STATEMENT") and will comply with all applicable tender offer rules and regulations promulgated pursuant to the Exchange Act and shall be duly registered or qualified pursuant to all applicable state securities or Blue Sky laws; provided that the Issuer and the Guarantors shall not be required to (A) qualify generally to do business in any jurisdiction where they are not 5 then so qualified or (B) subject themselves to general taxation in any jurisdiction where they are not then so subject to taxation. The Exchange Offer shall not be subject to any condition, other than that the Exchange Offer does not violate any applicable law or interpretation of the staff of the SEC. No securities shall be included in the Exchange Offer Registration Statement other than the Transfer Restricted Securities and the Exchange Securities. The Issuer and the Guarantors agree to (x) use their reasonable best efforts to cause the Exchange Offer Registration Statement to become effective pursuant to the Securities Act within 180 days after the Issue Date; (y) keep the Exchange Offer open for not less than 30 days (or such longer period required by applicable law) after the date that the notice of the Exchange Offer referred to below is mailed to Holders; and (z) use their reasonable best efforts to consummate the Exchange Offer within 45 days after the Effectiveness Target Date. Each Holder who participates in the Exchange Offer will be required to represent that any Exchange Securities received by it will be acquired in the ordinary course of its business, that at the time of the consummation of the Exchange Offer such Holder will have no arrangement or understanding with any person to participate in the distribution of the Exchange Securities, and that such Holder is not an "affiliate" of the Issuer or the Guarantors within the meaning of Rule 405 of the Securities Act (or that if it is such an affiliate, it will comply with the registration and prospectus delivery requirements of the Securities Act to the extent applicable). Each Holder that is not a Participating Broker-Dealer will be required to represent that it is not engaged in, and does not intend to engage in, the distribution of the Exchange Securities. Each Holder that (i) is a Participating Broker-Dealer and (ii) will receive Exchange Securities for its own account in exchange for the Transfer Restricted Securities that it acquired as the result of market-making or other trading activities will be required to acknowledge that it will deliver a prospectus as required by law in connection with any resale of such Exchange Securities. Upon consummation of the Exchange Offer in accordance with this Agreement, the Issuer and the Guarantors shall have no further obligation to register Transfer Restricted Securities pursuant to Section 3 of this Agreement. (b)The Issuer and the Guarantors shall include within the Prospectus contained in the Exchange Offer Registration Statement a section entitled "Plan of Distribution," reasonably acceptable to the Purchasers, which shall contain a summary statement of the positions taken or policies made by the staff of the SEC with respect to the potential "underwriter" status of any broker-dealer that is the "beneficial owner" (as defined in Rule 13d-3 under the Exchange Act) of Exchange Securities received by such broker-dealer in the Exchange Offer (a "PARTICIPATING BROKER-DEALER"). Such "Plan of Distribution" section shall also allow the use of the 6 Prospectus by all persons subject to the prospectus delivery requirements of the Securities Act, including all Participating Broker-Dealers, and include a statement describing the means by which Participating Broker-Dealers may resell the Exchange Securities. The Issuer and the Guarantors shall use their reasonable best efforts to keep the Exchange Offer Registration Statement effective and to amend and supplement the Prospectus contained therein in order to permit such Prospectus to be lawfully delivered by all persons subject to the prospectus delivery requirements of the Securities Act for a period commencing on the date on which Exchange Offer Registration Statement is declared effective and ending on the earlier of (i) 180 days after the date on which the Exchange Offer is consummated (or such longer period if extended pursuant to the last paragraph of Section 5 hereof) and (ii) the date on which all Participating Broker-Dealers have sold their Exchange Securities (the "APPLICABLE PERIOD"). In connection with the Exchange Offer, the Issuer shall: (a) mail as promptly as practicable to each Holder a copy of the Prospectus forming part of the Exchange Offer Registration Statement, together with an appropriate letter of transmittal and related documents; (b) utilize the services of a depositary for the Exchange Offer with an address in the Borough of Manhattan, The City of New York; and (c) permit Holders to withdraw tendered Securities at any time prior to the close of business, New York time, on the last business day on which the Exchange Offer shall remain open. As soon as practicable after the close of the Exchange Offer, the Issuer and the Guarantors shall: (i) accept for exchange all Securities validly tendered and not withdrawn pursuant to the Exchange Offer; (ii) deliver to the Trustee for cancellation all Securities so accepted for exchange; and 7 (iii) cause the Trustee to authenticate and deliver promptly to each Holder of Securities so accepted for exchange, Exchange Securities equal in principal amount to the Securities of such Holder so accepted for exchange. (c) If (l) prior to the consummation of the Exchange Offer, applicable interpretations of the staff of the SEC do not permit the Issuer and the Guarantors to effect the Exchange Offer, or (2) if for any other reason the Exchange Offer is not consummated by the date (the "SHELF DATE") that is the earlier of (x) 60 days after the effective date of the Exchange Offer Registration Statement and (y) 240 days after the Issue Date, then the Issuer shall promptly deliver to the Holders and the Trustee written notice thereof (the "SHELF NOTICE") and the Issuer and the Guarantors shall use their reasonable best efforts to file a Registration Statement pursuant to Section 3 hereof. Following the delivery of a Shelf Notice to the Holders of Transfer Restricted Securities, the Issuer and the Guarantors shall not have any further obligation to conduct the Exchange Offer pursuant to this Section 2 provided that the Issuer and the Guarantors shall have the right, at their option, to proceed to consummate the Exchange Offer so long as they shall also comply with their obligations under Section 3 and, to the extent that they shall consummate the Exchange Offer, their obligation to consummate a Shelf Registration shall terminate. SECTION 3. SHELF REGISTRATION. If the Issuer is required to deliver a Shelf Notice as contemplated by Section 2(c) hereof, then: (a)SHELF REGISTRATION. The Issuer and the Guarantors shall prepare and use their reasonable best efforts to file with the SEC, within 45 days after the Shelf Date, a Registration Statement for an offering to be made on a continuous basis pursuant to Rule 415 covering all of the Transfer Restricted Securities (the "SHELF REGISTRATION"). The Shelf Registration shall be on Form S-3 or another appropriate form permitting registration of the Transfer Restricted Securities for resale by the Holders in the manner or manners designated by them (including, without limitation, one or more underwritten offerings). The Issuer and the Guarantors shall not permit any securities other than the Transfer Restricted Securities to be included in the Shelf Registration. The Issuer and the Guarantors shall use their reasonable best efforts, as described in Section 5(b) hereof, to cause the Shelf Registration to be declared effective pursuant to the Securities Act on or prior to the 135th day after the Shelf Date and to keep the Shelf Registration continuously effective under the 8 Securities Act until the date which is 24 months after the Issue Date (or such longer period if extended pursuant to the last paragraph of Section 5 hereof) or such shorter period ending when either (l) all Transfer Restricted Securities covered by the Shelf Registration have been sold in the manner set forth and as contemplated in the Shelf Registration or (2) there cease to be outstanding any Transfer Restricted Securities (the "EFFECTIVENESS PERIOD"). The Issuer shall notify each Holder when such Shelf Registration becomes effective. (b) SUPPLEMENTS AND AMENDMENTS. The Issuer and the Guarantors shall promptly supplement and amend the Shelf Registration if required by the rules, regulations or instructions applicable to the registration form used for such Shelf Registration, if required by the Securities Act or the SEC, or if reasonably requested by the Holders of a majority in aggregate principal amount of the Transfer Restricted Securities covered by such Registration Statement or by any managing underwriter of such Transfer Restricted Securities. (c) PROVISION BY HOLDERS OF CERTAIN INFORMATION IN CONNECTION WITH THE SHELF REGISTRATION STATEMENT. No Holder of Transfer Restricted Securities may include any of its Transfer Restricted Securities in any Shelf Registration pursuant to this Agreement unless and until such Holder furnishes to the Issuer, but only to the extent requested in writing by the Issuer, such information specified in Item 507 or 508, as applicable, of Regulation S-K under the Securities Act relating to such Holder which is required to be included in any Shelf Registration or related Prospectus or preliminary Prospectus. Each Holder of any Transfer Restricted Securities registered pursuant to any Shelf Registration agrees to furnish promptly to the Issuer all information required to be disclosed in order to make the information previously furnished to the Issuer by such Holder not materially misleading. SECTION 4. LIQUIDATED DAMAGES. (a) The Issuer, the Guarantors and the Purchasers agree that the Holders of Transfer Restricted Securities will suffer damages if the Issuer or the Guarantors fail to fulfill their obligations pursuant to Section 2 or Section 3 hereof and that it would not be possible to ascertain the extent of such damages. Accordingly, in the event of such failure by the Issuer or the Guarantors to fulfill such obligations, the Issuer and the Guarantors hereby agree to pay liquidated damages ("LIQUIDATED DAMAGES") to each Holder of Transfer Restricted Securities under the circumstances and to the extent set forth below: 9 (i) if neither the Exchange Offer Registration Statement nor the Shelf Registration has been filed with the SEC on or prior to the date specified for such filing; or (ii) if neither the Exchange Offer Registration Statement nor the Shelf Registration is declared effective by the SEC on or prior to the date specified herein for such effectiveness (the "EFFECTIVENESS TARGET DATE"); or (iii) if an Exchange Offer Registration Statement is declared effective by the SEC and, on or prior to 45 days following the earlier of (i) the effectiveness thereof and (ii) the Effectiveness Target Date, the Issuer and the Guarantors have not exchanged Exchange Securities for all Securities validly tendered and not withdrawn in accordance with the terms of the Exchange Offer; or (iv) the Shelf Registration has been declared effective by the SEC and such Shelf Registration ceases to be effective or such Shelf Registration Statement or the related Prospectus ceases to be usable in connection with the resale of Transfer Restricted Securities at any time during the Effectiveness Period (other than because of a Business Combination Blackout Period); or (v) the Prospectus which is a part of the Exchange Offer Registration Statement ceases to be usable during the Applicable Period (other than because of a Business Combination Blackout Period) in connection with the resale of Exchange Securities by Participating Broker-Dealers; or (vi) there shall have occurred a Business Combination Blackout Period in the 60-day period preceding the end of the Effectiveness Period or the aggregate number of days in all Business Combination Blackout Periods during any 12-month period shall have exceeded 45 days; 10 (any of the foregoing, a "REGISTRATION DEFAULT") then, with respect to the first 90-day period or portion thereof following such Registration Default, the Issuer and the Guarantors shall pay to each Holder of Transfer Restricted Securities (or, in the case of Registration Defaults referred to in clause (v) above, to Participating Broker-Dealers holding Transfer Restricted Securities) Liquidated Damages in an amount equal to $.05 per week per $1,000 principal amount of Transfer Restricted Securities held by such Holder or such Participating Broker-Dealer, as applicable, for each week or portion thereof that the Registration Default continues. The amount of such Liquidated Damages will increase by an additional $.05 per week per $1,000 principal amount of Transfer Restricted Securities with respect to each subsequent 90-day period or portion thereof until all Registration Defaults have been cured; PROVIDED, HOWEVER, that Liquidated Damages shall not at any time exceed $.25 per week per $1,000 principal amount of Transfer Restricted Securities (regardless of whether one or more than one Registration Default is outstanding). Following the cure of all Registration Defaults relating to any Transfer Restricted Securities, the accrual of Liquidated Damages with respect to such Transfer Restricted Securities will cease, provided that Liquidated Damages may thereafter again begin to accrue upon the occurrence of any further Registration Default. A Registration Default under clause (i) above shall be cured on the date that either the Exchange Offer Registration Statement or the Shelf Registration is filed with the SEC; a Registration Default under clause (ii) above shall be cured on the date that either the Exchange Offer Registration Statement or the Shelf Registration is declared effective by the SEC; a Registration Default under clause (iii) above shall be cured on the earlier of the date (A) the Exchange Offer is consummated or (B) the Issuer delivers a Shelf Notice to the Holders of Transfer Restricted Securities; a Registration Default under clause (iv) above shall be cured on the earlier of the date (A) the Shelf Registration again become effective, the Shelf Registration Statement and the related Prospectus are useable in connection with the resale of Transfer Restricted Securities and the Issuer shall have notified Holders that use of such Prospectus may be resumed and shall have delivered to Holders any required amendments or supplements thereto or (B) the Effectiveness Period expires; a Registration Default under clause (v) above shall be cured on the date the Prospectus which is part of the Exchange Offer Registration Statement is useable in connection with the resale of Exchange Securities by Participating Broker-Dealers and the Issuer shall have notified Participating Broker-Dealers that use of such Prospectus may be resumed and shall have delivered to them any required amendments or supplements thereto; and a Registration Default under clause (vi) above resulting from the occurrence of a Business Combination Blackout Period in the 60 day period preceding the end of the Effectiveness Period, or resulting from the 11 aggregate number of days in all Business Combination Blackout Periods in any 12-month period exceeding 45 days, shall be deemed to have been cured when such Business Combination Blackout Period or the then most recent Business Combination Blackout Period, as the case may be, shall have terminated. (b) The Issuer shall notify the Trustee within one business day after each and every date on which a Registration Default occurs. Accrued Liquidated Damages shall be paid by the Issuer and the Guarantors to the Holders on the semi-annual interest payment dates provided in the Indenture to the Holders on the related interest payment record dates or by wire transfer of immediately available funds to the accounts specified by them or by mailing checks to their registered addresses if no such accounts have been specified on or before the fifth business day preceding the semi-annual interest payment date provided in the Indenture (whether or not any interest is then payable on the Securities); provided that, in the case of Securities held in global book-entry form, the payment of Liquidated Damages shall be made in accordance with the Depositary's (as defined in the Indenture) customary procedures; and provided, further, that if any Security is redeemed by the Issuer or purchased by the Issuer pursuant to an Asset Sale Offer or Change of Control Offer (as such terms are defined in the Indenture), then Liquidated Damages payable in respect of the Securities (or portions thereof) to be so redeemed or purchased shall be paid to the person entitled to receive the accrued and unpaid interest on such Securities (or portions thereof) on the relevant redemption date or purchase date; and provided, further, that if the principal of the Securities is declared or becomes due and payable prior to its Stated Maturity (as defined in the Indenture) pursuant to the Indenture, then all accrued and unpaid Liquidated Damages shall also be and become due and payable immediately and, in the event that any such acceleration of the Securities is rescinded or annulled in accordance with the provisions of the Indenture, the acceleration of such Liquidated Damages shall likewise be rescinded and annulled. Liquidated Damages shall accrue from and including the date of the applicable Registration Default to but excluding the date when all Registration Defaults have been cured. SECTION 5. REGISTRATION PROCEDURES. In connection with the registration of any Exchange Securities or Transfer Restricted Securities pursuant to Section 2 or 3 hereof, the Issuer and the Guarantors shall effect such registration to permit the sale of such Exchange Securities or Transfer Restricted Securities (as applicable) in accordance with the intended 12 method or methods of disposition thereof, and pursuant thereto the Issuer and the Guarantors shall: (a) Prepare and use their reasonable best efforts to file with the SEC, a Registration Statement or Registration Statements as prescribed by Section 2 or Section 3 hereof, and use their reasonable best efforts to cause such Registration Statement to become effective and remain effective as provided herein; PROVIDED that if (l) such filing is pursuant to Section 3 hereof or (2) a Prospectus contained in an Exchange Offer Registration Statement filed pursuant to Section 2 hereof is required to be delivered under the Securities Act by any Participating Broker-Dealer who seeks to sell Exchange Securities during the Applicable Period, before filing any Registration Statement or Prospectus or any amendments or supplements thereto, the Issuer shall furnish to the Holders and afford the Holders (and, if applicable, the beneficial owners) of the Transfer Restricted Securities and each such Participating Broker-Dealer, as the case may be, covered by such Registration Statement, their counsel and the managing underwriters, if any, a reasonable opportunity to review copies of all such documents (including copies of any documents to be incorporated by reference therein and all exhibits thereto) proposed to be filed (at least 7 business days prior to such filing, or such later date as is reasonable under the circumstances). The Issuer and the Guarantors shall not file any Registration Statement or Prospectus or any amendments or supplements thereto (including, without limitation, any documents which would, upon filing thereof, be incorporated by reference therein) in respect of which the Holders, pursuant to this Agreement, must be afforded an opportunity to review prior to the filing of such document, if the Holders of a majority in aggregate principal amount of the Transfer Restricted Securities covered by such Registration Statement, or any such Participating Broker-Dealer, as the case may be, their counsel, or the managing underwriters, if any, shall reasonably object. (b) Prepare and file with the SEC such amendments and post-effective amendments to each Shelf Registration and Exchange Offer Registration Statement, as the case may be, as may be necessary to keep such Registration Statement continuously effective for the Effectiveness Period or the Applicable Period, as the case may be (or, if earlier, until such time as no Transfer Restricted Securities are outstanding); use their reasonable best efforts to cause the related Prospectus to be supplemented by any required Prospectus supplement, and as so supplemented to be filed pursuant to Rule 424 (or any similar provisions then in force) under the Securities Act; and comply with the provisions of the Securities Act, the Exchange Act and the rules and regulations of the SEC promulgated thereunder applicable to them with respect to the disposition of all securities covered by such Registration 13 Statement as so amended or in such Prospectus as so supplemented and with respect to the subsequent resale of any Securities being sold by a Participating Broker-Dealer covered by any such Prospectus; the Issuer and the Guarantors shall be deemed not to have used their reasonable best efforts to keep a Registration Statement effective during the Effectiveness Period or the Applicable Period, as applicable, if they voluntarily take any action that would result in selling Holders of the Transfer Restricted Securities covered thereby or Participating Broker-Dealers seeking to sell Exchange Securities not being able to sell such Transfer Restricted Securities or such Exchange Securities during that period, unless (i) such action is required by applicable law or (ii) such action is taken by them in good faith and for valid business reasons (not including avoidance of their obligations hereunder), including, without limitation, the acquisition or divestiture of assets (it being understood and agreed that the provisions of this sentence shall not affect the Issuer's and the Guarantors' joint and several obligations to pay Liquidated Damages in the event that a Registration Statement or Prospectus is not effective or useable in connection with the resale of Transfer Restricted Securities or Exchange Securities, as applicable, under the circumstances set forth in Section 4 of this Agreement). (c) If (l) a Shelf Registration is filed pursuant to Section 3 hereof, or (2) a Prospectus contained in an Exchange Offer Registration Statement filed pursuant to Section 2 hereof is required to be delivered under the Securities Act by any Participating Broker-Dealer who seeks to sell Exchange Securities during the Applicable Period, notify the selling Holders of Transfer Restricted Securities, or each known Participating Broker-Dealer, as the case may be, their counsel (to the extent previously identified to the Issuer) and the managing underwriters, if any, promptly (but in any event within two business days) and confirm such notice in writing, (i) when a Prospectus or any Prospectus supplement or post-effective amendment has been filed, and, with respect to a Registration Statement or any post-effective amendment, when the same has become effective (including in such notice a written statement that any Holder may, upon request, obtain from the Issuer, without charge, one conformed copy of such Registration Statement or post-effective amendment including financial statements and schedules, documents incorporated or deemed to be incorporated by reference and exhibits), (ii) of the issuance of any stop order suspending the effectiveness of a Registration Statement or of any order preventing or suspending the use of any preliminary Prospectus or Prospectus or the initiation of any proceedings for that purpose, (iii) if at any time when a Prospectus is required by the Securities Act to be delivered in connection with sales of the Transfer Restricted Securities the representations and warranties of the Issuer or any Guarantor contained in any agreement (including any underwriting agreement) contemplated by Section 14 5(m) hereof cease to be true and correct, (iv) of the receipt by the Issuer or any Guarantor of any notification with respect to the suspension of the qualification or exemption from qualification of a Registration Statement or any of the Transfer Restricted Securities or Exchange Securities to be sold by any Participating Broker-Dealer for offer or sale in any jurisdiction, or initiation of any proceeding for such purpose, (v) of the happening of any event or any information becoming known that makes any statement made in a Registration Statement, any preliminary Prospectus or Prospectus or any document incorporated or deemed to be incorporated therein by reference untrue in any material respect or that requires the making of any changes in a Registration Statement, any preliminary Prospectus or Prospectus or any such documents so that, in the case of the Registration Statement, it 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 or so that, in the case of a preliminary Prospectus or Prospectus, it 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, in light of the circumstances under which they were made, not misleading, and (vi) of the Issuer's reasonable determination that a post-effective amendment to a Registration Statement would be appropriate. (d) If (l) a Shelf Registration is filed pursuant to Section 3 hereof, or (2) a Prospectus contained in an Exchange Offer Registration Statement filed pursuant to Section 2 hereof is required to be delivered under the Securities Act by any Participating Broker-Dealer who seeks to sell Exchange Securities during the Applicable Period, use their best efforts to prevent the issuance of any order suspending the effectiveness of a Registration Statement or of any order preventing or suspending the use of a Prospectus or suspending the qualification (or exemption from qualification) of any of the Transfer Restricted Securities or the Exchange Securities (as applicable) to be sold by any Participating Broker-Dealer for sale in any jurisdiction, and, if any such order is issued, to use their best efforts to obtain the withdrawal of any such order at the earliest possible moment. (e) If a Shelf Registration is filed pursuant to Section 3 hereof and if requested by the managing underwriters, if any, or the Holders of a majority in aggregate principal amount of the Transfer Restricted Securities being sold in connection with an underwritten offering, (i) use their reasonable best efforts to promptly incorporate in a Prospectus supplement or post-effective amendment such information as the managing underwriters, if any, or such Holders or their respective counsel reasonably request to be included therein, (ii) use their reasonable best efforts 15 to make all required filings of such Prospectus supplement or post-effective amendment as soon as practicable after the Issuer has received notification of the matters to be incorporated in such Prospectus supplement or post-effective amendment, and use their reasonable best efforts to (iii) supplement or make amendments to such Registration Statement with such information as the managing underwriters, if any, or such Holders or counsel reasonably requests to be included therein. (f) if (1) a Shelf Registration is filed pursuant to Section 3 hereof, or (2) a Prospectus contained in an Exchange Offer Registration Statement filed pursuant to Section 2 hereof is required to be delivered under the Securities Act by any Participating Broker-Dealer who seeks to sell Exchange Securities during the Applicable Period, furnish to each selling Holder of Transfer Restricted Securities and to each such Participating Broker-Dealer who so requests, to counsel identified by any Holder or Participating Broker-Dealer, and to each managing underwriter, if any, without charge, one conformed copy of the Registration Statement or Registration Statements and each post-effective amendment thereto, including financial statements, schedules, and, if requested, all documents incorporated or deemed to be incorporated therein by reference and all exhibits. (g) If (1) a Shelf Registration is filed pursuant to Section 3 hereof, or (2) a Prospectus contained in an Exchange Offer Registration Statement filed pursuant to Section 2 hereof is required to be delivered under the Securities Act by any Participating Broker-Dealer who seeks to sell Exchange Securities during the Applicable Period, deliver to each selling Holder and, if applicable, beneficial owner of Transfer Restricted Securities, or each such Participating Broker-Dealer, as the case may be, and to their respective counsel and to the underwriters, if any, and their counsel without charge, as many copies of the Prospectus or Prospectuses (including each form of preliminary Prospectus) and each amendment or supplement thereto and any documents incorporated by reference therein as such persons may reasonably request; and, subject to the last paragraph of this Section 5 hereof, the Issuer and the Guarantors hereby consent to the use of such Prospectus and each amendment or supplement thereto by each of the selling Holders and beneficial owners of Transfer Restricted Securities and each such Participating Broker-Dealer, as the case may be, and the underwriters or agents, if any, and dealers (if any), in connection with the offering and sale of the Transfer Restricted Securities covered by or the sale by Participating Broker-Dealers of the Exchange Securities pursuant to such Prospectus and any amendment or supplement thereto. 16 (h) If an Exchange Offer Registration Statement is filed pursuant to Section 2 hereof, furnish to the Trustee, an opinion, dated the date of consummation of the Exchange Offer, of counsel to the Issuer, to the effect that the Exchange Securities have been duly authorized by the Issuer and, when authenticated and delivered in exchange for the Securities, will be valid and binding obligations of the Issuer, enforceable in accordance with their terms, except as enforcement thereof may be limited by bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance, fraudulent transfer or other similar laws relating to or affecting creditors' rights generally or by general principles of equity, and will be entitled to the benefits of the Indenture and to the further effect that such opinion may be relied upon by each Holder of Exchange Securities. (i) Prior to any public offering of Transfer Restricted Securities or any delivery of a Prospectus contained in the Exchange Offer Registration Statement by any Participating Broker-Dealer who seeks to sell Exchange Securities during the Applicable Period, to use their reasonable best efforts to register or qualify, and to cooperate with the selling Holders of Transfer Restricted Securities or each such Participating Broker-Dealer, as the case may be, the underwriters, if any, and their respective counsel in connection with the registration or qualification (or exemption from such registration or qualification) of such Transfer Restricted Securities for offer and sale under the securities or Blue Sky laws of such jurisdictions as any selling Holder, any selling beneficial owner, any Participating Broker-Dealer, or the managing underwriters reasonably request, PROVIDED that where Exchange Securities held by Participating Broker-Dealers or Transfer Restricted Securities are offered other than through an underwritten offering, the Issuer and the Guarantors agree to cause their counsel to perform Blue Sky investigations and file registrations and qualifications required to be filed pursuant to this Section 5(i) as so requested by the selling Holders (or, if applicable, beneficial owners) or Participating Broker-Dealers; keep each such registration or qualification (or exemption there from) effective during the period such Registration Statement is required to be kept effective and do any and all other acts or things reasonably necessary or advisable to enable the disposition in such jurisdictions of the Exchange Securities held by Participating Broker-Dealers or the Transfer Restricted Securities covered by the applicable Registration Statement; PROVIDED that the Issuer and the Guarantors shall not be required to (A) qualify generally to do business in any jurisdiction where they are not then so qualified or (B) subject themselves to general taxation in any such jurisdiction where they are not then so subject to taxation. 17 (j) If a Shelf Registration is filed pursuant to Section 3 hereof, cooperate with the selling Holders of Transfer Restricted Securities and the managing underwriters, if any, to facilitate the timely preparation and delivery of certificates representing Transfer Restricted Securities to be sold, which certificates shall not bear any restrictive legends and shall be in a form eligible for deposit with The Depository Trust Company, and enable such Transfer Restricted Securities to be in such denominations and registered in such names as the managing underwriters, if any, or Holders may reasonably request. (k) If (l) a Shelf Registration is filed pursuant to Section 3 hereof, or (2) a Prospectus contained in an Exchange Offer Registration Statement filed pursuant to Section 2 hereof is required to be delivered under the Securities Act by any Participating Broker-Dealer who seeks to sell Exchange Securities during the Applicable Period, upon the occurrence of any event contemplated by paragraph 5(c)(v) or 5(c)(vi) above, as promptly as practicable prepare and use their reasonable best efforts to (subject to Section 5(a) hereof) file with the SEC, at the expense of the Issuer and the Guarantors, a supplement or post-effective amendment to the Registration Statement or a supplement to the related Prospectus or any document incorporated or deemed to be incorporated therein by reference, or file any other required document so that, as thereafter delivered to the purchasers of the Transfer Restricted Securities being sold thereunder or to the purchasers of the Exchange Securities to whom such Prospectus will be delivered by a Participating Broker-Dealer, any such Prospectus will not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading. Notwithstanding the foregoing, the Issuer and the Guarantors shall not be required to comply with this Section 5(k) if, and only for so long as (A) either (I) Jacor or any of its subsidiaries shall be engaged in a material acquisition or disposition (a "MATERIAL BUSINESS COMBINATION") and (II) (aa) such Material Business Combination is required to be disclosed in a Registration Statement, the related Prospectus, or any amendment or supplement thereto, or failure by Jacor to disclose such transaction in such Registration Statement, the related Prospectus, or any amendment or supplement thereto, as then amended or supplemented, would cause such Registration Statement to contain an 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, or would cause such related Prospectus to contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, (bb) information regarding the existence of such Material 18 Business Combination has not been made publicly disclosed by or on behalf of Jacor and its subsidiaries and (cc) a majority of the members of the Board of Directors of Jacor determines in the exercise of their good faith judgment that disclosure of such Material Business Combination would not be in the best interest of Jacor and its subsidiaries or would have a material adverse effect on the consummation of such Material Business Combination and (B) Jacor notifies the Holders to suspend use of the relevant Prospectus within two business days after such Board of Directors makes the relevant determination set forth in clause (A); PROVIDED, HOWEVER, that in each such case each of the Applicable Period and the Effectiveness Period shall be extended by the number of days during which the use of the applicable Prospectus in connection with the resale of Transfer Restricted Securities or Exchange Securities, as applicable, was suspended pursuant to the foregoing. (l) Prior to the effective date of the first Registration Statement relating to the Transfer Restricted Securities, (i) provide the Trustee with certificates for the Transfer Restricted Securities in a form eligible for deposit with The Depository Trust Company and (ii) provide a CUSIP number for the Transfer Restricted Securities. (m) In connection with an underwritten offering of Transfer Restricted Securities pursuant to a Shelf Registration enter into an underwriting agreement as is customary in underwritten offerings and take all such other actions as are reasonably requested by the managing underwriters in order to expedite or facilitate the registration or the disposition of such Transfer Restricted Securities, and in such connection, (i) make such representations and warranties to the underwriters, with respect to the business of the Issuer, the Guarantors and their respective subsidiaries and the Registration Statement, any preliminary Prospectus, the Prospectus and documents, if any, incorporated or deemed to be incorporated by reference therein, in each case, as are customarily made by issuers to underwriters in underwritten offerings, and confirm the same if and when requested; (ii) obtain opinions of counsel to the Issuer and Guarantors to such other persons or businesses which have been or are to be acquired by the Issuer, any Guarantor or any of their respective subsidiaries and updates thereof in form and substance reasonably satisfactory to the managing underwriters, addressed to the underwriters covering the matters customarily covered in opinions requested in underwritten offerings and such other matters as may be reasonably requested by underwriters; (iii) obtain "cold comfort" letters and updates thereof in form and substance reasonably satisfactory to the managing underwriters from the independent certified public accountants of the Issuer and the Guarantors (and, if necessary, any other independent certified public accountants 19 of any subsidiary of the Issuer or any of the Guarantors or of any person or business acquired or to be acquired by any of them for which financial statements and financial data are, or are required to be, included in the Registration Statement), addressed to each of the underwriters, such letters to be in customary form and covering matters of the type customarily covered in "cold comfort" letters in connection with underwritten offerings and such other matters as are reasonably requested by underwriters as permitted by Statement on Auditing Standards No. 72; and (iv) if an underwriting agreement is entered into, the same shall contain indemnification and contribution provisions and procedures no less favorable than those set forth in Section 7 hereof (or such other provisions and procedures acceptable to Holders of a majority in aggregate principal amount of Transfer Restricted Securities covered by such Registration Statement and the managing underwriters or agents) with respect to all parties to be indemnified pursuant to said Section. The above shall be done at each closing under such underwriting agreement, or as and to the extent required thereunder. (n) If (l) a Shelf Registration is filed pursuant to Section 3 hereof, or (2) a Prospectus contained in an Exchange Offer Registration Statement filed pursuant to Section 2 hereof is required to be delivered under the Securities Act by any Participating Broker-Dealer who seeks to sell Exchange Securities during the Applicable Period, make available for inspection by each selling Holder and each beneficial owner of such Transfer Restricted Securities being sold, or each such Participating Broker-Dealer, as the case may be, any underwriter participating in any such disposition of Transfer Restricted Securities, if any, and any attorney, accountant or other agent retained by any such selling Holder or beneficial owner or any such Participating Broker-Dealer, as the case may be, or underwriter (collectively, the "INSPECTORS"), at the offices where normally kept, during reasonable business hours, all financial and other records, pertinent corporate documents and properties of the Issuer, the Guarantors and their subsidiaries (collectively, the "RECORDS") as shall be reasonably necessary to enable them to exercise any applicable due diligence responsibilities, and cause the officers, directors and employees of the Issuer and the Guarantors and their respective subsidiaries (and, if applicable, of any person or business acquired or to be acquired by any of them) and their respective counsel and independent accountants to supply all information, and to make themselves available for customary due diligence discussions, in each case as reasonably requested by any such Inspector in connection with such Registration Statement. If requested by the Issuer, each of the Inspectors will agree with the Issuer that Records which the Issuer determines, in good faith to be confidential and which the Issuer notifies the Inspectors in writing are confidential shall not be disclosed by the Inspectors unless 20 (i) the disclosure of such Records is necessary to avoid or correct a misstatement or omission in such Registration Statement or the Prospectus, (ii) the disclosure of such Records is required pursuant to any applicable law or regulation, (iii) the disclosure of such Records is made pursuant to a subpoena or other order of, or request (whether formal or informal) from, any governmental or regulatory body or official or any court or tribunal in connection with any legal, governmental or regulatory proceeding or investigation or the preparation therefor, or (iv) the information in such Records has been made available to the public. (o) Provide an indenture trustee for the Transfer Restricted Securities or the Exchange Securities, as the case may be, and cause the indenture for such Securities to be qualified under the TIA not later than the effective date of the Exchange Offer or the first Registration Statement relating to the Transfer Restricted Securities; and in connection therewith, cooperate with the trustee under any such indenture and the Holders of the Transfer Restricted Securities, to effect such changes to such indenture as may be required for such indenture to be so qualified in accordance with the terms of the TIA; and execute, and use its reasonable best efforts to cause such trustee to execute, all documents as may be required to effect such changes, and all other forms and documents required to be filed with the SEC to enable such indenture to be so qualified in a timely manner. (p) Comply with all applicable rules and regulations of the SEC and, as soon as reasonably practicable, make generally available to its securityholders consolidated earnings statements of Jacor (including a condensed consolidating footnote if required under SEC rules) and, if required by the SEC, earnings statements for the Guarantors or any of their respective subsidiaries (which need not be certified by an independent public accountant) that satisfy the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder. (q) If an Exchange Offer is to be consummated, upon delivery of the Transfer Restricted Securities by Holders to the Issuer (or to such other Person as directed by the Issuer) in exchange for the Exchange Securities, the Issuer and the Guarantors shall mark, or cause to be marked, on such Transfer Restricted Securities that such Transfer Restricted Securities are being cancelled in exchange for the Exchange Securities; in no event shall such Transfer Restricted Securities be marked as paid or otherwise satisfied. (r) Cooperate with each seller of Transfer Restricted Securities covered by any Registration Statement and each underwriter, if any, participating in 21 the disposition of such Transfer Restricted Securities and their respective counsel in connection with any filings required to be made with the National Association of Securities Dealers, Inc. (the "NASD"). (s) Use their reasonable best efforts to take all other steps necessary to effect the registration of the Transfer Restricted Securities covered by a Registration Statement contemplated hereby. (t) Use their reasonable best efforts to cause the Transfer Restricted Securities or the Exchange Securities, as applicable, covered by an effective registration statement required by Section 2 or Section 3 hereof to be rated with appropriate rating agencies, if so requested by the Holders of a majority in aggregate principal amount of Transfer Restricted Securities relating to such registration statement or the managing underwriters in connection therewith, if any. The Issuer may require each seller of Transfer Restricted Securities or Participating Broker-Dealer as to which any registration is being effected to furnish to the Issuer such information regarding such seller or Participating Broker-Dealer and the distribution of such Transfer Restricted Securities or Exchange Securities to be sold by such Participating Broker-Dealer, as the case may be, as the Issuer may, from time to time, reasonably request. The Issuer may exclude from such registration the Transfer Restricted Securities or Exchange Securities of any seller or Participating Broker-Dealer, as the case may be, who fails to furnish such information within a reasonable time after receiving such request. The Issuer may, by notice to Holders, require the Holders to suspend use of the Prospectus which is part of the Shelf Registration Statement (and, in the case of Participating Broker-Dealers, to suspend use of the Prospectus which is part of the Exchange Offer Registration Statement) (i) for any number of periods not to exceed 45 days in the aggregate in any 12-month period (other than the 60-day period preceding the end of the Effectiveness Period) if Jacor or any of its subsidiaries shall be engaged in a Material Business Combination and the condition set forth in the last sentence of Section 5(k) shall have been satisfied or (ii) if any event of the kind described in Section 5(c)(ii), 5(c)(iv), 5(c)(v) or 5(c)(vi) hereof shall have occurred (in each case other than as a result of a Material Business Combination or matters relating thereto) (any period during which the use of such Prospectus is suspended as provided in clause (i) or (ii) above being hereinafter called a "BLACKOUT PERIOD," and any period during which the use of such Prospectus is suspended as provided in clause (i) being hereinafter called a "BUSINESS COMBINATION BLACKOUT PERIOD"). Each Holder 22 of Transfer Restricted Securities and each Participating Broker-Dealer agrees by acquisition of such Transfer Restricted Securities or Exchange Securities to be sold by such Participating Broker-Dealer, as the case may be, that, upon receipt of any notice from the Issuer to suspend the use of the relevant Prospectus because an event or circumstance described in clause (i) or (ii) of the preceding sentence has occurred, such Holder shall forthwith discontinue disposition of such Transfer Restricted Securities covered by such Prospectus or Exchange Securities to be sold by such Participating Broker-Dealer covered by such Prospectus, as the case may be, until such Holder's receipt of the copies of the supplemented or amended Prospectus contemplated by Section 5(k) hereof, or until it is advised in writing (the "ADVICE") by the Issuer that the use of the applicable Prospectus may be resumed, and has received copies of any amendments or supplements thereto. In the event the Issuer shall give any such notice, each of the Effectiveness Period and the Applicable Period shall be extended by the number of days during periods from and including the date of the giving of such notice to and including the date when each seller of Transfer Restricted Securities covered by such Registration Statement or Exchange Securities to be sold by such Participating Broker-Dealer, as the case may be shall have received (x) the copies of the supplemented or amended Prospectus contemplated by Section 5(k) or (y) the Advice. SECTION 6. REGISTRATION EXPENSES. (a) All fees and expenses incident to the performance of or compliance with this Agreement by the Issuer and the Guarantors shall be borne by the Issuer and the Guarantors, whether or not the Exchange Offer or a Shelf Registration is filed or becomes effective, including, without limitation, (i) all registration and filing fees (including, without limitation, (A) fees with respect to filings required to be made with the NASD in connection with an underwritten offering and (B) fees and expenses of compliance with state securities or Blue Sky laws (including, without limitation, reasonable fees and disbursements of counsel in connection with Blue Sky qualifications of the Transfer Restricted Securities or Exchange Securities and determination of the eligibility of the Transfer Restricted Securities or Exchange Securities for investment under the laws of such jurisdictions (x) where the Holders or beneficial owners of Transfer Restricted Securities are located, in the case of the Exchange Securities, or (y) as provided in Section 5(i) hereof, in the case of Transfer Restricted Securities or Exchange Securities to be sold by a Participating Broker-Dealer during the Applicable Period)), (ii) printing expenses (including, without limitation, expenses of printing certificates for Transfer Restricted Securities or Exchange Securities in a form eligible for deposit with The Depository Trust Company 23 and of printing Prospectuses if the printing of Prospectuses is requested by the managing underwriters, if any, or, in respect of Transfer Restricted Securities or Exchange Securities to be sold by any Participating Broker-Dealer during the Applicable Period, by the Holders of a majority in aggregate principal amount of the Transfer Restricted Securities included in any Registration Statement or of such Exchange Securities, as the case may be), (iii) messenger, telephone and delivery expenses, (iv) fees and disbursements of counsel for the Issuer, the Guarantors and their subsidiaries and affiliates and, if applicable, counsel for any person or business acquired or to be acquired by the Issuer, any of the Guarantors or any of their respective subsidiaries, (v) fees and disbursements of all independent certified public accountants referred to in Section 5(m)(iii) hereof (including, without limitation, the expenses of any special audit and "cold comfort" letters required by or incident to such performance), (vi) the fees and expenses of any "qualified independent underwriter" or other independent appraiser participating in an offering pursuant to Section 3 as contemplated by Rule 2720 of the Conduct Rules of the NASD, (vii) rating agency fees, (viii) Securities Act liability insurance, if the Issuer and the Guarantors desire such insurance, (ix) fees and expenses of all other Persons retained by the Issuer and any of the Guarantors, (x) internal expenses of the Issuer and the Guarantors (including, without limitation, all salaries and expenses of officers and employees of the Issuer and the Guarantors performing legal or accounting duties), (xi) the expense of any audit, (xii) the fees and expenses incurred in connection with the listing of the securities to be registered on any securities exchange and (xiii) the expenses relating to printing, word processing and distributing all Registration Statements, Prospectuses, preliminary Prospectuses, amendments or supplements to any of the foregoing, underwriting agreements, securities sales agreements and indentures. Nothing contained in this Section 6 shall require the Issuer or any Guarantor to pay or reimburse any Holder for any underwriting discounts or commissions attributable to the sale of any Transfer Restricted Securities of such Holder in an underwritten offering pursuant to a Registration Statement filed pursuant to Section 3 of this Agreement. (b) In connection with any Shelf Registration hereunder, the Issuer and the Guarantors shall reimburse the Holders and beneficial owners of the Transfer Restricted Securities being registered in such registration for the reasonable fees and disbursements of not more than one counsel chosen by the Holders of a majority in aggregate principal amount of the Transfer Restricted Securities to be included in such Registration Statement and other reasonable out-of-pocket expenses of the Holders and beneficial owners of Transfer Restricted Securities reasonably incurred in connection with the registration of the Transfer Restricted Securities. 24 SECTION 7. INDEMNIFICATION. The Issuer and the Guarantors agree to indemnify and hold harmless (i) each of the Purchasers, each Holder of Transfer Restricted Securities, each beneficial owner of Transfer Restricted Securities, each Holder of Exchange Securities, each beneficial owner of Exchange Securities and each Participating Broker-Dealer, (ii) each person, if any, who controls (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act) any Person referred to in clause (i) (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 such Person referred to in clause (i) 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, or arising out of or in connection with any untrue statement or alleged untrue statement of a material fact contained in any Registration Statement, preliminary Prospectus or Prospectus (in each case as amended or supplemented if the Issuer shall have furnished any amendments or supplements thereto), or caused by, related to, based upon, or arising out of or in connection with any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, except insofar as such losses, claims, damages or liabilities are caused by any untrue statement or omission or alleged untrue statement or omission made in reliance upon and in conformity with information relating to any Indemnified Person furnished to the Issuer in writing by such Indemnified Person expressly for use therein. The Issuer and the Guarantors shall notify the Holders promptly upon becoming aware thereof of the institution, threat or assertion of any claim, proceeding (including any governmental investigation) or litigation of which any of them shall have become aware relating to this Agreement which involves the Issuer, any Guarantor, or an Indemnified Person. In connection with any Registration Statement in which a Holder of Transfer Restricted Securities is participating, such Holder of Transfer Restricted 25 Securities agrees, severally and not jointly, to indemnify and hold harmless the Issuer and each Guarantor, their respective directors, their respective officers who signed such Registration Statement and each person who controls the Issuer or any Guarantor within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act to the same extent as the foregoing indemnity from the Issuer and the Guarantor to each Indemnified Person, but only with reference to information relating to such Indemnified Person furnished to the Issuer in writing by such Indemnified Person expressly for use in any Registration Statement, preliminary Prospectus or Prospectus, (in each case including any amendment or supplement thereto). The liability of any Indemnified Person pursuant to this paragraph shall in no event exceed the net proceeds received by such Indemnified Person from sales of Transfer Restricted Securities giving rise to such obligations. If any suit, action, proceeding (including any governmental or regulatory investigation), claim or demand shall be brought or asserted against any person in respect of which indemnity may be sought pursuant to either of the two preceding paragraphs, such person (the "INDEMNIFIED PARTY") shall promptly notify the person against whom such indemnity may be sought (the "INDEMNIFYING PERSON") in writing, and the indemnifying person shall be entitled to retain counsel reasonably satisfactory to the indemnified party to represent the indemnified party and any others the indemnifying person may reasonably designate in such proceeding and shall pay the reasonable fees and expenses actually incurred by such counsel related to such proceeding. In any such proceeding, any indemnified party shall have the right to retain its own counsel, but the fees and expenses of such counsel shall be at the expense of such indemnified party, unless (i) the indemnifying person and the indemnified party shall have mutually agreed in writing to the contrary, (ii) the indemnifying person failed promptly to assume the defense and employ counsel reasonably satisfactory to the indemnified party or (iii) the named parties to any such action (including any impleaded parties) include both such indemnified party and the indemnifying person, or any affiliate of the indemnifying person, and such indemnified party shall have been advised by counsel that either (x) there may be one or more legal defenses available to it which are different from or additional to those available to the indemnifying person or such affiliate of the indemnifying person or (y) a conflict may exist between such indemnified party and the indemnifying person or such affiliate of the indemnifying person (in which case the indemnifying person shall not have the right to assume the defense of such action on behalf of such indemnified party, it being understood, however, that the indemnifying person shall not, in connection with any one such action or separate but substantially similar or related actions in the same jurisdiction arising out of the same general allegations or circumstances, be liable for 26 the fees and expenses of more than one separate firm of attorneys (in addition to any local counsel) for all such indemnified parties, which firm (together with any such local counsel) shall be designated in writing by those indemnified parties who sold a majority in aggregate principal amount of Transfer Restricted Securities sold by all such indemnified parties, and any such separate firm for the Issuer and the Guarantors, their directors, their officers who signed the Registration Statement and such control persons of the Issuer and the Guarantors shall be designated in writing by the Issuer. The indemnifying person shall not be liable for any settlement of any proceeding effected without its prior written consent, but if settled with such consent or if there be a final judgment for the plaintiff, the indemnifying person agrees to indemnify each indemnified party from and against any and all loss or liability by reason of such settlement or judgment. No indemnifying person shall, without the prior written consent of the indemnified party, effect any settlement of any pending or threatened proceeding in respect of which any indemnified party is or could have been a party and indemnity could have been sought hereunder by such indemnified party, unless such settlement includes an unconditional release of such indemnified party from all liability on claims that are the subject matter of such proceeding. If the indemnification provided for in the first and second paragraphs of this Section 7 is unavailable to an indemnified party in respect of any losses, claims, damages, liabilities or expenses referred to therein (other than by reason of the exceptions provided therein), then each indemnifying person under such paragraphs, in lieu of indemnifying such indemnified party thereunder, shall contribute to the amount paid or payable by such indemnified party as a result of such losses, claims, damages, liabilities, or expenses, as incurred, (i) in such proportion as is appropriate to reflect the relative benefits received by the indemnified party on the one hand and the indemnifying person(s) on the other in connection with the statements or omissions that resulted in such losses, claims, damages, liabilities, or expenses or (ii) if the allocation provided by clause (i) above is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (i) above but also the relative fault of the indemnifying person(s) and the indemnified party, as well as any other relevant equitable considerations. The relative fault of the Issuer and the Guarantors on the one hand and any Indemnified Persons on the other 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 relates to information supplied by the Issuer and the Guarantors or by such Indemnified Person and the parties' relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. 27 The parties agree that it would not be just and equitable if contribution pursuant to this Section 7 were determined by PRO RATA allocation (even if such indemnified parties were treated as one entity for such purpose) or by any other method of allocation that 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 and liabilities referred to in the immediately preceding paragraph shall be deemed to include any reasonable legal or other expenses actually incurred by such indemnified party in connection with investigating or defending any such action or claim. Notwithstanding the provisions of this Section 7, in no event shall an Indemnified Person be required to contribute any amount in excess of the amount by which net proceeds received by such Indemnified Person from sales of Transfer Restricted Securities or Exchange Securities exceeds the amount of any damages that such Indemnified Person 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 Securities Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation. The indemnity and contribution agreements contained in this Section 7 will be in addition to any liability which the indemnifying parties may otherwise have to the indemnified parties referred to above. The Indemnified Persons' obligations to contribute pursuant to this Section 7 are several in proportion to the respective principal amount of Securities sold by each Indemnified Persons hereunder and not joint. SECTION 8. RULES 144 AND 144A The Issuer and the Guarantors covenant that they will file the annual, quarterly and other reports and information required to be filed by the Issuer and the Guarantors pursuant to the Securities Act and the Exchange Act and the rules and regulations adopted by the SEC thereunder in a timely manner (unless such entity is otherwise exempt from filing thereunder) and, upon the request of any Holder or beneficial owner of Transfer Restricted Securities, they will make available to such Holder or beneficial owner of Transfer Restricted Securities in connection with any sale thereof and to any prospective purchaser of such Transfer Restricted Securities from such Holder or beneficial owner, all such other information (if any), required by Rule 144 and Rule 144A under the Securities Act in order to permit sales of such Transfer Restricted Securities pursuant to Rule 144 and Rule 144A. 28 The Issuer and the Guarantors further covenant that they will file the annual, quarterly and other reports and information necessary to satisfy the requirements of Rule 144(d) or any successor provision thereto. The Issuer and the Guarantors further covenant that they will take such further action as any Holder or beneficial owner of Transfer Restricted Securities may reasonably request from time (including, without limitation, providing such information, if any as may be required pursuant to Rule l44A(d)(iv) in order to permit resales of Transfer Restricted Securities pursuant to Rule 144A) to time to enable such Holder or beneficial owner, as applicable, to sell Transfer Restricted Securities without registration under the Securities Act within the limitation of the exemptions provided by (a) Rule 144 and Rule 144A under the Securities Act, as such rules may be amended from time to time, or (b) any similar rule or regulation hereafter adopted by the SEC. SECTION 9. UNDERWRITTEN REGISTRATIONS. If any of the Transfer Restricted Securities covered by any Shelf Registration are to be sold in an underwritten offering, the investment banker or investment bankers and manager or managers that will manage the offering will be selected by the Holders of a majority in aggregate principal amount of such Transfer Restricted Securities included in such offering and reasonably acceptable to the Issuer. No Holder or beneficial owner of Transfer Restricted Securities may participate in any underwritten registration hereunder, unless such Holder or beneficial owner (a) agrees to sell its Transfer Restricted Securities on the basis provided in any underwriting arrangements approved by the Persons entitled hereunder to approve such arrangements and (b) completes and executes all questionnaires, powers of attorney, indemnities, underwriting agreements and other documents required under the terms of such underwriting arrangements. SECTION 10. MISCELLANEOUS. (a) REMEDIES. In the event of a breach by the Issuer or any Guarantor of any of its obligations under this Agreement, each Holder or beneficial owner of Transfer Restricted Securities, in addition to being entitled to exercise all rights provided herein, in the Indenture or, in the case of the Purchasers, in the Purchase Agreement, or granted by law, including recovery of damages, will be entitled to specific performance of its rights under this Agreement. The Issuer and 29 the Guarantors agree that monetary damages would not be adequate compensation for any loss incurred by reason of a breach by any of them of any of the provisions of this Agreement and hereby further agree that, in the event of any action for specific performance in respect of such breach, they shall waive the defense that a remedy at law would be adequate. (b) NO INCONSISTENT AGREEMENTS. The Issuer and the Guarantors have not, as of the date hereof, and they shall not, after the date of this Agreement, enter into any agreement with respect to any of their respective securities that is inconsistent with or conflicts with the rights granted to the Holders of Transfer Restricted Securities in this Agreement or otherwise conflicts with the provisions hereof. The Issuer and the Guarantors have not entered, and will not enter, into any agreement with respect to any of their respective securities which grants or will grant to any Person piggyback registration rights with respect to a Registration Statement. (c) AMENDMENTS AND WAIVERS. Except as provided in Section 10(d) below, the provisions of this Agreement, including the provisions of this sentence, may not be amended, modified or supplemented, and waivers or consents to or departures from the provisions hereof may not be given, unless the Issuer has obtained the written consent of Holders of at least a majority of the then outstanding aggregate principal amount of Transfer Restricted Securities. Notwithstanding the foregoing, a waiver or consent to depart from the provisions with respect to a matter that relates exclusively to the rights of Holders of Transfer Restricted Securities whose securities are being sold pursuant to a Registration Statement and that does not directly or indirectly affect, impair, limit or compromise the rights of other Holders of Transfer Restricted Securities may be given by Holders of at least a majority in aggregate principal amount of the Transfer Restricted Securities being sold by such Holders pursuant to such Registration Statement; PROVIDED that the provisions of this sentence may not be amended, modified or supplemented except in accordance with the provisions of the immediately preceding sentence. (d) AMENDMENTS WITHOUT CONSENT OF HOLDERS. The Issuer shall not enter into any transaction pursuant to Section 5.1 of the Indenture as a result of which another corporation would succeed to and be substituted for the Issuer under the Indenture unless such successor corporation and the Guarantors shall have delivered a written instrument to the Purchasers to the effect that such successor corporation agrees to be bound by and comply with all of the covenants and agreements of, and to make all of the representations and warranties of, the Issuer in this Agreement, and to the further effect that the Guarantors confirm that their 30 respective covenants, agreements, representations and warranties under this Agreement remain in full force and effect. Concurrently with the addition of any person as a Guarantor under the Indenture, such person shall enter into and deliver to the other parties hereto a written instrument whereby such person shall agree to comply with the covenants and agreements of, and to make the representations and warranties of, and otherwise to become, a Guarantor under this Agreement. Upon the release of any Guarantor from its obligations under the Indenture in accordance with the provisions of the Indenture, such Guarantor shall be released from all of its obligations under this Agreement. Any amendments or modifications to this Agreement entered into to reflect any of the transactions referred to in this Section 10(d) may be entered into without the consent of any Holders. (e) NOTICES. All notices and other communications (including, without limitation any notices or other communications to the Trustee) provided for or permitted hereunder shall be made in writing by hand-delivery, registered first-class mail, next-day air courier or telecopier: (i) if to a Holder of Transfer Restricted Securities, at the most current address given by the Trustee to the Issuer; and (ii) if to the Issuer or the Guarantors, Jacor Communications, Inc., 50 East RiverCenter Boulevard, 12th Floor, Covington, Kentucky 41011, Attention: General Counsel, with a copy to Graydon, Head & Ritchey, 1900 Fifth Third Center, P.O. Box 6464, Cincinnati, Ohio 45201, Attention: Richard G. Schmalzl. All such notices and communications shall be deemed to have been duly given: when delivered by hand, if personally delivered; five business days after being deposited in the mail, postage prepaid, if mailed; one business day after being timely delivered to a next-day air courier, if made by next-day air courier: and when receipt is acknowledged by the addressee, if telecopied. Copies of all such notices, demands or other communications shall be concurrently delivered by the Person giving the same to the Trustee under the Indenture at the address specified in such Indenture. (f) SUCCESSORS AND ASSIGNS. This Agreement shall inure to the benefit of and be binding upon the successors and assigns of each of the parties 31 hereto, including, without limitation and without the need for an express assignment, subsequent Holders and beneficial owners of Transfer Restricted Securities. The Issuer and the Guarantors agree that the Holders and beneficial owners of the Securities shall be third party creditor beneficiaries of the agreements made hereunder by the Purchasers, the Issuer and the Guarantors, and each Holder and beneficial owner shall have the right to enforce such agreements directly to the extent it deems such enforcement necessary or advisable to protect its rights hereunder. (g) COUNTERPARTS. This Agreement may be executed in any number of counterparts and by the parties hereto in separate counterparts, each of which when so executed shall be deemed to be an original and all of which taken together shall constitute one and the same agreement. (h) HEADINGS. The headings in this Agreement are for convenience of reference only and shall not limit or otherwise affect the meaning hereof. (i) GOVERNMENT LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, AS APPLIED TO CONTRACTS MADE AND PERFORMED WITHIN THE STATE OF NEW YORK, WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF LAW. EACH OF THE PARTIES HERETO AGREES, TO THE EXTENT PERMITTED BY LAW, TO SUBMIT TO THE JURISDICTION OF THE COURTS OF THE STATE OF NEW YORK IN ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT. (j) SEVERABILITY. If any term, provision, covenant or restriction of this Agreement is held by a court of competent jurisdiction to be invalid, illegal, void or unenforceable the remainder of the terms, provisions, covenants and restrictions set forth herein shall remain in full force and effect and shall in no way be affected, impaired or invalidated, and the parties hereto shall use their best efforts to find and employ an alternative means to achieve the same or substantially the same result as that contemplated by such term, provision, covenant or restriction. It is hereby stipulated and declared to be the intention of the parties hereto that they would have executed the remaining terms, provisions, covenants and restrictions without including any of such that may be hereafter declared invalid, illegal, void or unenforceable. 32 (k) ENTIRE AGREEMENT. This Agreement, together with the Purchase Agreement is intended by the parties hereto as a final expression of their agreement, and is intended to be a complete and exclusive statement of the agreement and understanding of the parties hereto in respect of the subject matter contained herein and therein. (l) SECURITIES HELD BY THE ISSUER THE GUARANTORS OR THEIR AFFILIATES. Whenever the consent or approval of Holders of a specified percentage of Transfer Restricted Securities is required hereunder, Transfer Restricted Securities held by the Issuer, the Guarantors or any of their respective affiliates (as such term is defined in Rule 405 under the Securities Act) shall not be counted in determining whether such consent or approval was given by the Holders of such required percentage. (m) JOINT AND SEVERAL OBLIGATIONS OF THE ISSUER AND GUARANTORS. Anything herein to the contrary notwithstanding, the obligations of the Issuer and the Guarantors hereunder are joint and several. 33 IN WITNESS WHEREOF, the parties have executed this Agreement as of the date first written above. 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 and Secretary Subsidiary Guarantors: JACOR COMMUNICATIONS COMPANY; BROADCAST FINANCE, INC.; CINE FILMS, INC.; CINE GUARANTORS, INC.; CINE GUARANTORS II, INC.; CINE GUARANTORS II, LTD.; CINE MOBILE SYSTEMS INT'L N.V.; CINE MOVIL S.A. DE C.V.; CITICASTERS CO.; EFM PROGRAMMING, INC.; F.M.I. PENNSYLVANIA, INC.; GACC- N26LB, INC.; GACC-340, INC.; GEORGIA NETWORK EQUIPMENT, INC.; GREAT AMERICAN MERCHANDISING GROUP, INC.; GREAT AMERICAN TELEVISION PRODUCTIONS, INC.; INMOBILARIA RADIAL, S.A. DE C.V.*; JACOR BROADCASTING CORPORATION; JACOR BROADCASTING OF ATLANTA, INC.; JACOR BROADCASTING OF COLORADO, INC.; JACOR BROADCASTING OF FLORIDA, INC.; JACOR BROADCASTING OF KNOXVILLE, INC.; JACOR BROADCASTING OF ST. LOUIS, INC.; JACOR BROADCASTING OF SAN DIEGO, INC.; JACOR BROADCASTING OF SARASOTA, INC.; JACOR BROADCASTING OF TAMPA BAY, INC.; JACOR CABLE, INC.; LOCATION PRODUCTIONS, INC.; LOCATION PRODUCTIONS II, INC.; NOBLE BROADCAST CENTER, INC.; NOBLE BROADCAST GROUP, INC.; NOBLE BROADCAST HOLDINGS, INC.; 34 NOBLE BROADCAST LICENSES, INC.; NOBLE BROADCAST OF COLORADO, INC.; NOBLE BROADCAST OF ST. LOUIS, INC.; NOBLE BROADCAST OF SAN DIEGO, INC.; NOBLE BROADCAST OF TOLEDO, INC.; NOBRO, S.C.*; NOVA MARKETING GROUP, INC.; REGENT BROADCASTING OF CHARLESTON, INC.; REGENT BROADCASTING OF KANSAS CITY, INC.; REGENT BROADCASTING OF LAS VEGAS, INC.; REGENT BROADCASTING OF LAS VEGAS II, INC.; REGENT BROADCASTING OF LOUISVILLE, INC., REGENT BROADCASTING OF LOUISVILLE II, INC.; REGENT BROADCASTING OF SALT LAKE CITY, INC.; REGENT BROADCASTING OF SALT LAKE CITY II, INC.; REGENT LICENSEE OF CHARLESTON, INC.; REGENT LICENSEE OF KANSAS CITY, INC.; REGENT LICENSEE OF LAS VEGAS, INC.; REGENT LICENSEE OF LAS VEGAS II, INC; REGENT LICENSEE OF LOUISVILLE, INC.; REGENT LICENSEE OF LOUISVILLE II, INC.; REGENT LICENSEE OF SALT LAKE CITY, INC.; REGENT LICENSEE OF SALT LAKE CITY II, INC.; SPORTS RADIO BROADCASTING, INC.; SPORTS RADIO, INC.; TAFT-TCI SATELLITE SERVICES, INC.; THE SY FISCHER COMPANY AGENCY, INC.; WHOK, INC.; VTTV PRODUCTIONS; JACOR/PREMIERE HOLDING, INC.; PREMIERE RADIO NETWORKS, INC.; AND AFTER MIDNITE ENTERTAINMENT, 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, and those italicized, of which he is Senior Vice President 35 The foregoing Registration Rights Agreement is hereby confirmed and accepted as of the date first above written. DONALDSON, LUFKIN & JENRETTE SECURITIES CORPORATION CHASE SECURITIES INC. MERRILL, LYNCH, PIERCE, FENNER & SMITH INCORPORATED Acting on behalf of themselves By: DONALDSON, LUFKIN & JENRETTE SECURITIES CORPORATION By: /s/ Michael K. Hooks ------------------------------ Name: Michael K. Hooks Title: Managing Director 36 -----END PRIVACY-ENHANCED MESSAGE-----