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EXHIBIT 2
SPANISH BROADCASTING SYSTEM, INC.
9 5/8% SENIOR SUBORDINATED NOTES
UNDERWRITING AGREEMENT
October 28, 1999
▇▇▇▇▇▇ BROTHERS INC .
CIBC WORLD MARKETS CORP.
c/▇ ▇▇▇▇▇▇ Brothers Inc.
Three World ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Dear Sirs:
Spanish Broadcasting System, Inc., a Delaware corporation (the
"Company") proposes to issue and sell to the several underwriters named in
Schedule 1 hereto (the "Underwriters"), an aggregate of $235 million principal
amount of 9 5/8% Senior Subordinated Notes due 2009 (the "Notes") to be
guaranteed (the "Subsidiary Guarantees") by certain of the Company's
subsidiaries specified in the Indenture (as hereinafter defined)(the "Subsidiary
Guarantors") and to be issued under an indenture (the "Indenture") dated
November 2, 1999, by and between the Company, the Subsidiary Guarantors and the
Bank of New York, as trustee (the "Trustee").
It is understood that the Company is currently entering into an
agreement (the "Equity Underwriting Agreement"), pursuant to which an aggregate
of 21,787,400 shares (the "Firm Stock") of the Company's Class A Common Stock,
par value $.0001 share (the "Class A Common Stock") , will be sold by the
Company and certain selling stockholders of the Company to the several
Underwriters named in Schedule 1 to the Equity Underwriting Agreement (the
"Underwriters").
Section 1. Representations, Warranties and Agreements of the Company.
The Company represents, warrants and agrees that:
(a) A registration statement on Form S-1 with respect to the Notes
has (i) been prepared by the Company in conformity with the requirements of the
Securities Act of 1933, as amended (the "Securities Act"), and the rules and
regulations (the "Rules and Regulations") of the Securities and Exchange
Commission (the "Commission") thereunder, (ii) been filed with the Commission
under the Securities Act, and (iii) become effective under the Securities Act
(other than any Rule 462 Registration Statement to be filed after the execution
of this Agreement which will become effective no later than the day after the
execution of this Agreement). Copies of such registration statement and each of
the amendments thereto have been delivered by the Company to you. As used in
this Agreement, "Effective Time" means the date and the time as of which such
registration statement, or the most recent post-effective amendment thereto, if
any, was declared effective by the Commission; "Effective Date" means the date
of the Effective Time; "Preliminary Prospectus" means each prospectus, included
in such registration statement, or amendments thereof, before it became
effective under the Securities Act and any prospectus filed with the Commission
by the Company with the consent of the Underwriters pursuant to Rule 424(a) of
the Rules and Regulations; "Registration Statement" means such registration
statement, including all material incorporated by reference therein, as amended
at the Effective Time, including all
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information contained in the final prospectus filed with the Commission pursuant
to Rule 424(b) of the Rules and Regulations and deemed to be a part of the
registration statement as of the Effective Time pursuant to Rule 430A of the
Rules and Regulations; and "Prospectus" means the prospectus in the form first
used to confirm sales of the Notes. If the Company has filed an abbreviated
registration statement to register additional Notes pursuant to Rule 462(b)
under the Securities Act (the "Rule 462 Registration Statement"), then any
reference herein to the term "Registration Statement" shall be deemed to include
such Rule 462 Registration Statement. The Commission has not issued any order
preventing or suspending the use of any Preliminary Prospectus.
(b) The Registration Statement conforms, and the Prospectus and
any further amendments or supplements to the Registration Statement or the
Prospectus will, when they become effective or are filed with the Commission, as
the case may be, conform in all respects to the requirements of the Securities
Act and the Rules and Regulations and do not and will not, as of the applicable
effective date (as to the Registration Statement and any amendment thereto) and
as of the applicable filing date (as to the Prospectus and any amendment or
supplement thereto) 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 not misleading; provided that no representation or warranty
is made as to information contained in or omitted from the Registration
Statement or the Prospectus in reliance upon and in conformity with written
information furnished to the Company by or on behalf of any Underwriter
specifically for inclusion therein.
(c) The Company and each of its subsidiaries (as defined in
Section 14) have been duly incorporated and are validly existing as corporations
in good standing under the laws of their respective jurisdictions of
incorporation, are duly qualified to do business and are in good standing as
foreign corporations in each jurisdiction in which their respective ownership or
lease of property or the conduct of their respective businesses requires such
qualification, except where the failure to be so qualified would not have a
material adverse effect on the general affairs, management, consolidated
financial position, stockholders' equity or results of operation of the Company
and its subsidiaries taken as whole (a "Material Adverse Effect"). The Company
and each of its subsidiaries have all power and authority necessary to own or
hold their respective properties and to conduct the businesses in which they are
engaged; and none of the subsidiaries of the Company other than ▇▇▇▇▇▇▇
Holdings, Inc., SBS of Greater New York, Inc., Spanish Broadcasting System of
Florida, Inc., Spanish Broadcasting System of Greater Miami, Inc., Spanish
Broadcasting System, Inc., (a New Jersey corporation), Spanish Broadcasting
System of Illinois, Inc. and Spanish Broadcasting System of ▇▇▇ Antonio, Inc. is
a "significant subsidiary," as such term is defined in Rule 405 of the Rules and
Regulations.
(d) The Company has an authorized capitalization as set forth in
the Prospectus, and all of the issued shares of capital stock of the Company
have been duly and validly authorized and issued, are fully paid and
non-assessable and conform to the description thereof contained in the
Prospectus; and all of the issued shares of capital stock of each subsidiary of
the Company have been duly and validly authorized and issued and are fully paid
and non-assessable and (except for directors' qualifying shares) are owned
directly or indirectly by the Company, free and clear of all liens,
encumbrances, equities or claims and none of such shares of capital stock was
issued in violation of preemptive or other similar rights arising by operation
of law, under the charter and by-laws of the Company or under any agreement to
which the Company or any subsidiary is a party or otherwise.
(e) This Agreement has been duly authorized, executed and
delivered by the Company and each of the other documents relating to this
Agreement to which the Company is a party has been duly authorized, executed and
delivered by the Company.
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(f) The Indenture between the Company, the Subsidiary Guarantors
and the Trustee has been duly qualified under the Trust Indenture Act of 1939,
as amended (the "Trust Indenture Act") and has been duly authorized, executed
and delivered by the Company and the Subsidiary Guarantors and is a valid and
legally binding agreement of the Company and the Subsidiary Guarantors,
enforceable in accordance with its terms except as (i) the enforceability
thereof may be limited by bankruptcy, insolvency or similar laws affecting
creditor's rights generally and (ii) rights of acceleration and the availability
of equitable remedies may be limited by equitable principles of general
applicability.
(g) The Notes and the Subsidiary Guarantees have been duly
authorized and, when executed, authenticated and issued in accordance with the
provisions of the Indenture and delivered to and paid for by the purchasers
thereof, will be in the form contemplated by and will be entitled to the
benefits of, the Indenture and will be validly issued and free and clear of all
liens and restrictions on transfer and will constitute valid and legally binding
obligations of the Company and the Subsidiary Guarantors, enforceable in
accordance with their respective terms except as (i) enforceability thereof may
be limited by bankruptcy, insolvency or similar laws affecting creditors' rights
generally and (ii) rights of acceleration and the availability of equitable
remedies may be limited by equitable principles of general applicability.
(h) The execution, delivery and performance of this Agreement, the
Indenture, the Notes and the Subsidiary Guarantees and the consummation of the
transactions contemplated hereby, thereby and in the Registration Statement and
the Prospectus (including the issuance and sale of the Notes and the Subsidiary
Guarantees and the use of proceeds from the sale of the Notes as described under
the caption "Use of Proceeds") will not conflict with or result in a breach or
violation of any of the terms or provisions of, or constitute a default under,
any indenture, mortgage, deed of trust, loan agreement or other agreement,
license or instrument to which the Company or any of its subsidiaries is a party
or by which the Company or any of its subsidiaries is bound or to which any of
the property or assets of the Company or any of its subsidiaries is subject,
except for such defaults which, individually or in the aggregate, would not
result in a Material Adverse Effect, nor will such actions result in any
violation of the provisions of the charter, certificate of designation, by-laws
or similar governing document of the Company or any of its subsidiaries or any
statute or any order, rule or regulation of any court or governmental agency or
body having jurisdiction over the Company or any of its subsidiaries or any of
their properties or assets; and except for the registration of the Notes and the
Subsidiary Guarantees under the Securities Act and such consents, approvals,
authorizations, registrations or qualifications as may be required under the
Exchange Act of 1934, as amended (the "Exchange Act") and applicable state
securities laws in connection with the purchase and distribution of the Notes by
the Underwriters, no consent, approval, authorization or order of, or filing or
registration with, any such court or governmental agency or body is required for
the execution, delivery and performance of this Agreement, the Indenture, the
Notes or the Subsidiary Guarantees and the consummation of the transactions
contemplated hereby or thereby, including the issuance, sale and delivery of the
Notes to be issued, sold and delivered by the Company hereunder.
(i) Except as described in the Prospectus, there are no contracts,
agreements or understandings between the Company and any person granting such
person the right to require the Company to file a registration statement under
the Securities Act with respect to any securities of the Company owned or to be
owned by such person or to require the Company to include such securities in the
securities registered pursuant to the Registration Statement or in any
securities being registered pursuant to any other registration statement filed
by the Company under the Securities Act.
(j) Except as described in the Prospectus, the Company has not
sold or issued any securities, or securities that are convertible into other
securities, with terms that are substantially similar
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to the Notes during the six-month period preceding the date of the Prospectus,
including any sales pursuant to Rule 144A under, or Regulations D or S of, the
Securities Act.
(k) The Company has not taken and will not take, directly or
indirectly, any action designed to cause or result in, or which constitutes or
which might reasonably be expected to constitute, the stabilization or
manipulation of the price of the Notes to facilitate the sale or resale of the
Notes.
(l) Neither the Company nor any of its subsidiaries has sustained,
since the date of the latest audited financial statements included in the
Prospectus, any loss or interference with its business from fire, explosion,
flood or other calamity, whether or not covered by insurance, or from any labor
dispute or court or governmental action, order or decree, otherwise than as set
forth or contemplated in the Prospectus that would result in a Material Adverse
Effect; and, since such date, there has not been any change in the capital stock
or long-term debt of the Company or any of its subsidiaries or any material
adverse change, or any development involving a prospective material adverse
change, in or affecting the general affairs, management, consolidated financial
position, stockholders' equity, results of operations, business or prospects of
the Company and its subsidiaries, otherwise than as set forth or contemplated in
the Prospectus.
(m) The financial statements (including the related notes and
supporting schedules) filed as part of the Registration Statement or included in
the Prospectus present fairly the financial condition and results of operations
of the entities purported to be shown thereby, at the dates and for the periods
indicated, and have been prepared in conformity with generally accepted
accounting principles applied on a consistent basis throughout the periods
involved.
(n) Immediately after the sale of the Notes by the Company
hereunder, the aggregate amount of Notes which shall have been issued and sold
by the Company hereunder and of any debt securities of the Company (other than
the Notes) that shall have been issued and sold pursuant to the Registration
Statement will not exceed the amount of debt securities registered under the
Registration Statement.
(o) No default or event of default with respect to any
Indebtedness (as such term is defined in the Indenture) or will exist as a
result of the execution and delivery of this Agreement or the consummation of
the transactions contemplated hereby and each of the Company and its
subsidiaries has duly performed or observed all material obligations,
agreements, covenants or conditions contained in any contract, indenture,
mortgage, agreement or instrument relating to any Indebtedness.
(p) None of the Company or its subsidiaries, or any agent acting
on their behalf, has taken or will take any action that might cause this
Agreement or the sale of the Notes to violate Regulation G, T, U or X of the
Board of Governors of the Federal Reserve System, in each case as in effect, or
as the same may hereafter be in effect, on the Closing Date.
(q) The Notes and the Indenture conform, in all material respects,
to the descriptions thereof in the Prospectus.
(r) Immediately after the consummation of the transactions
contemplated by this Agreement, the fair value and present fair saleable value
of the assets of the Company will exceed the sum of its stated liabilities and
identified contingent liabilities; the Company is not, nor will the Company be,
after giving effect to the execution, delivery and performance of this Agreement
and the consummation of the transactions contemplated hereby, (i) left with
unreasonably small capital with which to carry on its business as it is proposed
to be conducted, (ii) unable to pay its debts (contingent and otherwise) as they
mature or (iii) otherwise insolvent.
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(s) To the best knowledge of the Company, KPMG LLP, who have
certified certain financial statements of the Company, whose report appears in
the Prospectus and who have delivered the initial letter referred to in Section
7(e) hereof, are independent public accountants as required by the Securities
Act and the Rules and Regulations.
(t) The Company and each of its subsidiaries have good and
marketable title in fee simple to all real property and good and valid title to
all material personal property owned by them, in each case free and clear of all
liens, encumbrances and defects, except such as are described in the Prospectus
or such as do not materially affect the value of such property and do not
materially interfere with the use made and proposed to be made of such property
by the Company and its subsidiaries; and all assets held under lease by the
Company and its subsidiaries are held by them under valid, subsisting and
enforceable leases, with such exceptions as are not material and do not
interfere with the use made and proposed to be made of such property and
buildings by the Company and its subsidiaries.
(u) The Company and each of its subsidiaries carry, or are covered
by, insurance in such amounts and covering such risks as is reasonably adequate
for the conduct of their respective businesses and the value of their respective
properties and as is customary for companies engaged in similar businesses in
similar industries.
(v) The Company and each of its subsidiaries own, license or
possess adequate rights to use all material patents, patent applications,
trademarks, service marks, trade names, trademark registrations, service ▇▇▇▇
registrations, copyrights and licenses necessary for the conduct of their
respective businesses and have no reason to believe that the conduct of their
respective businesses will conflict with, and have not received any notice of
any claim of conflict with, any such rights of others, except as disclosed in
the Prospectus or where the failure to so own, license or possess such rights
would not, individually or in the aggregate, have a Material Adverse Effect.
(w) There are no legal or governmental proceedings pending to
which the Company or any of its subsidiaries is a party or of which any property
or assets of the Company or any of its subsidiaries is the subject which, if
determined adversely to the Company or any of its subsidiaries, might have a
Material Adverse Effect; and to the best of the Company's knowledge, no such
proceedings are threatened or contemplated by governmental authorities or
threatened by others.
(x) There are no contracts, arrangements or other documents which
are required to be described in the Prospectus or filed as exhibits to the
Registration Statement by the Securities Act or by the Rules and Regulations
which have not been described in the Prospectus or filed as exhibits to the
Registration Statement or incorporated by reference therein as permitted by the
Rules and Regulations.
(y) No relationship, direct or indirect, exists between or among
the Company on the one hand, and any of its former or present directors,
officers, stockholders, customers or suppliers on the other hand, which is
required to be described in the Prospectus which is not so described.
(z) No labor disturbance by the employees of the Company exists
or, to the knowledge of the Company, is imminent, which might be expected to
have a Material Adverse Effect.
(aa) The Company is in compliance in all material respects with
all presently applicable provisions of the Employee Retirement Income Security
Act of 1974, as amended, including the regulations and published interpretations
thereunder ("ERISA"); no "reportable event" (as defined in Section 4043 of
ERISA) has occurred with respect to any "defined benefit plan" (as defined in
Section 3(35) of ERISA) for which the Company would have any liability; the
Company has not incurred and does not expect to incur liability under (i) Title
IV of ERISA with respect to termination of, or withdrawal
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from, any "defined benefit plan" or (ii) Sections 412 or 4971 of the Internal
Revenue Code of 1986, as amended, including the regulations and published
interpretations thereunder (the "Code"); and each "defined benefit plan" for
which the Company has any liability or to which it makes contributions that is
intended to be qualified under Section 401(a) of the Code is so qualified in all
material respects and nothing has occurred, whether by action or by failure to
act, which would cause the loss of such qualification.
(bb) The Company has filed all federal, state and local income and
franchise tax returns required to be filed through the date hereof and has paid
all taxes shown as due thereon, and no tax deficiency has been determined
adversely to the Company or any of its subsidiaries which has had (nor does the
Company have any knowledge of any tax deficiency which, if determined adversely
to the Company or any of its subsidiaries, might have) a Material Adverse
Effect. The are no tax audits presently being conducted which, if determined
adversely to the Company or any of its subsidiaries, could have a Material
Adverse Effect.
(cc) Since the date as of which information is given in the
Prospectus through the date hereof, and except as may otherwise be disclosed in
the Prospectus, the Company has not (i) issued or granted any securities, (ii)
incurred any material liability or obligation, direct or contingent, other than
liabilities and obligations which were incurred in the ordinary course of
business, (iii) entered into any transaction not in the ordinary course of
business, or (iv) declared or paid any dividend on its capital stock.
(dd) The Company (i) makes and keeps accurate books and records,
and (ii) maintains internal accounting controls which provide reasonable
assurance that (A) transactions are executed in accordance with management's
general or specific authorization, (B) transactions are recorded as necessary to
permit preparation of its financial statements and to maintain accountability
for its assets, (C) access to its assets is permitted only in accordance with
management's general or specific authorization and (D) the reported
accountability for its assets is compared with existing assets at reasonable
intervals.
(ee) Neither the Company nor any of its subsidiaries (i) is in
violation of its charter, certificate of designation, by-laws or similar
governing document, (ii) is in default in any material respect, and no event has
occurred which, with notice or lapse of time or both, would constitute such a
default, in the due performance or observance of any term, covenant or condition
contained in any indenture, mortgage, deed of trust, loan agreement or other
agreement or instrument to which it is a party or by which it is bound or to
which any of its properties or assets is subject or (iii) is in violation in any
material respect of any law, ordinance, governmental rule, regulation or court
decree to which it or its property or assets may be subject.
(ff) Each of the radio stations owned, operated, programmed, or to
which sales and marketing services are provided, by the Company and its
subsidiaries is validly licensed by the Federal Communications Commission (the
"FCC") and no administrative or judicial proceedings are pending before or, to
the knowledge of the Company or its subsidiaries, threatened by the FCC with
respect to such licenses; the Company and its subsidiaries possess adequate
certificates, authorizations, consents, orders, approvals, licenses or permits
which are in full force and effect issued by all appropriate governmental
agencies or bodies necessary to the ownership of their respective properties and
the conduct of the businesses now operated by them and have not received any
notice of proceedings relating to the revocation or modification of any such
certificate, authority, consent, order, approval, license or permit and the
Company and its subsidiaries are in compliance in all material respects with the
Communications Act of 1934, as amended, and the rules, regulations and policies
of the FCC.
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(gg) The Company believes the statistical and market-related data
included in the Prospectus are accurate and are based on or derived from
reliable sources.
(hh) There has been no storage, disposal, generation, manufacture,
refinement, transportation, handling or treatment of toxic wastes, medical
wastes, hazardous wastes or hazardous substances by the Company or any of its
subsidiaries (or, to the knowledge of the Company, any of their predecessors in
interest) at, upon or from any of the property now or previously owned or leased
by the Company or its subsidiaries in violation of any applicable law,
ordinance, rule, regulation, order, judgment, decree or permit or which would
require remedial action under any applicable law, ordinance, rule, regulation,
order, judgment, decree or permit, except for any violation or remedial action
which would not have, or could not be reasonably likely to have, singularly or
in the aggregate with all such violations and remedial actions, a Material
Adverse Effect; there has been no material spill, discharge, leak, emission,
injection, escape, dumping or release of any kind onto such property or into the
environment surrounding such property of any toxic wastes, medical wastes, solid
wastes, hazardous wastes or hazardous substances due to or caused by the Company
or any of its subsidiaries or with respect to which the Company or any of its
subsidiaries have knowledge, except for any such spill, discharge, leak,
emission, injection, escape, dumping or release which would not have or would
not be reasonably likely to have, singularly or in the aggregate with all such
spills, discharges, leaks, emissions, injections, escapes, dumpings and
releases, a Material Adverse Effect; and the terms "hazardous wastes", "toxic
wastes", "hazardous substances" and "medical wastes" shall have the meanings
specified in any applicable local, state, federal and foreign laws or
regulations with respect to environmental protection.
(ii) Neither the Company nor any subsidiary is, or, as of the
Closing Date after giving effect to the application of the net proceeds as
described in the Prospectus, will be, an "investment company" as defined in the
Investment Company Act of 1940, as amended.
(jj) The Company has complied with, and is and will be in
compliance with, the provisions of that certain Florida act relating to
disclosure of doing business with Cuba, codified as Section 517.075 of the
Florida statutes, and the rules and regulations thereunder or is exempt
therefrom.
Section 2. Purchase of the Notes by the Underwriters. On the basis of
the representations and warranties contained in, and subject to the terms and
conditions of, this Agreement, the Company agrees to sell the Notes to the
several Underwriters and each of the Underwriters, severally and not jointly,
agrees to purchase the aggregate principal amount of Notes set opposite that
Underwriter's name in Schedule 1 hereto. Each Underwriter will purchase such
aggregate principal amount of Notes at an aggregate purchase price equal to 97%
of the principal amount thereof (the "Purchase Price").
The Company shall not be obligated to deliver any of the Notes to be
delivered on the Delivery Date (as hereinafter defined), except upon payment for
all the Notes to be purchased on the Delivery Date as provided herein.
Section 3. Offering of Notes by the Underwriters.
Upon authorization by the Underwriters of the release of the Notes, the
several Underwriters propose to offer the Notes for sale upon the terms and
conditions set forth in the Prospectus.
Section 4. Delivery of and Payment for the Notes. Delivery of and
payment for the Notes shall be made at the office of ▇▇▇▇▇▇ & ▇▇▇▇▇ LLP, ▇▇▇
▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ at 10:00 A.M., New York City time, on the
third full business day following the date of this Agreement or at such other
date or place as shall be determined by agreement between the Underwriters and
the Company. This date and time are sometimes referred to as the "Delivery
Date." On the Delivery Date, the Company shall deliver or cause to be delivered
certificates representing the Notes to the Underwriters for the
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account of each Underwriter against payment to or upon the order of the Company
of the purchase price by certified or official bank check or checks payable in
or wire transfer in immediately available funds; provided, that the amount of
such payment shall be reduced by one days' interest on the amount of gross
proceeds at the Underwriters' cost of borrowing such funds plus any other
expenses associated with such payment of immediately available funds. Time shall
be of the essence, and delivery at the time and place specified pursuant to this
Agreement is a further condition of the obligation of each Underwriter
hereunder. Upon delivery, the Notes shall be registered in such names and in
such denominations as the Underwriters shall request in writing not less than
two full business days prior to the Delivery Date. For the purpose of expediting
the checking and packaging of the certificates for the Notes, the Company shall
make the certificates representing the Notes available for inspection by the
Underwriters in New York, New York, not later than 2:00 P.M., New York City
time, on the business day prior to the Delivery Date.
Section 5. Further Agreements of the Company. The Company agrees:
(a) To prepare the Prospectus in a form approved by the
Underwriters and to file such Prospectus pursuant to Rule 424(b) under the
Securities Act not later than Commission's close of business on the second
business day following the execution and delivery of this Agreement or, if
applicable, such earlier time as may be required by Rule 430A(a)(3) under the
Securities Act; to make no further amendment or any supplement to the
Registration Statement or to the Prospectus except as permitted herein; to
advise the Underwriters, promptly after it receives notice thereof, of the time
when any amendment to the Registration Statement has been filed or becomes
effective or any supplement to the Prospectus or any amended Prospectus has been
filed and to furnish the Underwriters with copies thereof; to advise the
Underwriters, promptly after it receives notice thereof, of the issuance by the
Commission of any stop order or of any order preventing or suspending the use of
any Preliminary Prospectus or the Prospectus, of the suspension of the
qualification of the Notes for offering or sale in any jurisdiction, of the
initiation or threatening of any proceeding for any such purpose, or of any
request by the Commission for the amending or supplementing of the Registration
Statement or the Prospectus or for additional information; and, in the event of
the issuance of any stop order or of any order preventing or suspending the use
of any Preliminary Prospectus or the Prospectus or suspending any such
qualification, to use promptly its best efforts to obtain its withdrawal;
(b) To furnish promptly to each of the Underwriters and to counsel
for the Underwriters a signed copy of the Registration Statement as originally
filed with the Commission, and each amendment thereto filed with the Commission,
including all consents and exhibits filed therewith;
(c) To deliver promptly to the Underwriters such number of the
following documents as the Underwriters shall reasonably request: (i) conformed
copies of the Registration Statement as originally filed with the Commission and
each amendment thereto (in each case excluding exhibits other than this
Agreement and the computation of the Ratio of Earnings to Fixed Charges) and
(ii) each Preliminary Prospectus, the Prospectus and any amended or supplemented
Prospectus; and, if the delivery of a prospectus is required at any time after
the Effective Time in connection with the offering or sale of the Notes or any
other securities relating thereto and if at such time any events shall have
occurred as a result of which the Prospectus as then amended or supplemented
would include an untrue statement of a material fact or omit to state any
material fact necessary in order to make the statements therein, in the light of
the circumstances under which they were made when such Prospectus is delivered,
not misleading, or, if for any other reason it shall be necessary to amend or
supplement the Prospectus in order to comply with the Securities Act, to notify
the Underwriters and, upon their request, to prepare and furnish without charge
to each Underwriter and to any dealer in securities as many copies as the
Underwriters may from time to time reasonably request of an amended or
supplemented Prospectus which will correct such statement or omission or effect
such compliance.
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(d) To file promptly with the Commission any amendment to the
Registration Statement or the Prospectus or any supplement to the Prospectus
that may, in the judgment of the Company or the Underwriters, be required by the
Securities Act or requested by the Commission;
(e) Prior to filing with the Commission any amendment to the
Registration Statement or supplement to the Prospectus or any Prospectus
pursuant to Rule 424 of the Rules and Regulations, to furnish a copy thereof to
the Underwriters and counsel for the Underwriters and obtain the consent of the
Underwriters to the filing;
(f) As soon as practicable after the Effective Date, to make
generally available to the Company's security holders and to deliver to the
Underwriters an earnings statement of the Company and its subsidiaries (which
need not be audited) complying with Section 11(a) of the Securities Act and the
Rules and Regulations (including, at the option of the Company, Rule 158);
(g) For a period of five years following the Effective Date, to
furnish to the Underwriters copies of all materials furnished by the Company to
its shareholders and holders of Notes and all public reports and all reports and
financial statements furnished by the Company to the principal national
securities exchange upon which the Class A Common Stock or Notes may be listed
pursuant to requirements of or agreements with such exchange or to the
Commission pursuant to the Exchange Act or any rule or regulation of the
Commission thereunder;
(h) Promptly from time to time to take such action as the
Underwriters may reasonably request to qualify the Notes for offering and sale
under the securities laws of such jurisdictions as the Underwriters may request
and to comply with such laws so as to permit the continuance of sales and
dealings therein in such jurisdictions for as long as may be necessary to
complete the distribution of the Notes; provided that in connection therewith
the Company shall not be required to qualify as a foreign corporation or to file
a general consent to service of process in any jurisdiction;
(i) To apply the net proceeds from the sale of the Notes as set
forth in the Prospectus; and
(j) To take such steps as shall be necessary to ensure that
neither the Company nor any subsidiary shall become an "investment company" as
defined in the Investment Company Act of 1940, as amended.
Section 6. Expenses. The Company agrees to pay (a) the costs incident
to the authorization, issuance, sale and delivery of the Notes and any taxes
payable in that connection; (b) the costs incident to the preparation, printing
and filing under the Securities Act of the Registration Statement and any
amendments and exhibits thereto; (c) the costs of distributing the Registration
Statement as originally filed and each amendment thereto and any post-effective
amendments thereof (including, in each case, exhibits), any Preliminary
Prospectus, the Prospectus and any amendment or supplement to the Prospectus,
all as provided in this Agreement; (d) the costs of producing and distributing
this Agreement and the Indenture, and any other related documents in connection
with the offering, purchase, sale and delivery of the Notes; (e) the filing fees
incident to securing the review by the National Association of Securities
Dealers, Inc. of the terms of sale of the Notes; (f) any applicable listing or
other fees; (g) the fees and expenses (not in excess, in the aggregate, of
$10,000) of qualifying the Notes under the securities laws of the several
jurisdictions as provided in Section 5(h) and of preparing, printing and
distributing a Blue Sky Memorandum (including related fees and expenses of
counsel to the Underwriters); (h) any fees charged by securities rating agencies
for rating the Notes; (i) the costs and expenses of the Company relating to
investor presentations on any "road show" undertaken in connection with the
marketing of the offering of the Notes, including, without limitation, expenses
associated with the production of road show
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slides and graphics, fees and expenses of any consultants engaged in connection
with the road show presentations with the prior approval of the Company, travel
and lodging expenses of the representatives and officers of the Company and any
such consultants, and the cost of any aircraft chartered in connection with the
road show (i) and (j) all other costs and expenses incident to the performance
of the obligations of the Company under this Agreement; provided that, except as
provided in this Section 6 and in Section 10 the Underwriters shall pay their
own costs and expenses, including the costs and expenses of their counsel, any
transfer taxes on the Notes which they may sell and the expenses of advertising
any offering of the Notes made by the Underwriters.
Section 7. Conditions of Underwriters' Obligations. The respective
obligations of the Underwriters hereunder are subject to the accuracy, when made
and on the Delivery Date, of the representations and warranties of the Company
contained herein, to the performance by the Company of its obligations
hereunder, and to each of the following additional terms and conditions:
(a) The Prospectus shall have been timely filed with the
Commission in accordance with Section 5(a); no stop order suspending the
effectiveness of the Registration Statement or any part thereof shall have been
issued and no proceeding for that purpose shall have been initiated or
threatened by the Commission; and any request of the Commission for inclusion of
additional information in the Registration Statement or the Prospectus or
otherwise shall have been complied with.
(b) No Underwriter shall have discovered and disclosed to the
Company on or prior to the Delivery Date that the Registration Statement or the
Prospectus or any amendment or supplement thereto contains an untrue statement
of fact which, in the opinion of ▇▇▇▇▇▇ & ▇▇▇▇▇ LLP, counsel for the
Underwriters, is material or omits to state a fact which, in the opinion of such
counsel, is material and is required to be stated therein or is necessary to
make the statements therein not misleading.
(c) All corporate proceedings and other legal matters incident to
the authorization, form and validity of this Agreement, the Indenture, the
Notes, the Registration Statement and the Prospectus, and all other legal
matters relating to this Agreement, and the transactions contemplated hereby
shall be reasonably satisfactory in all material respects to counsel for the
Underwriters, and the Company shall have furnished to such counsel all documents
and information that they may reasonably request to enable them to pass upon
such matters.
(d) ▇▇▇▇, Scholer, Fierman, ▇▇▇▇ & Handler LLP shall have
furnished to the Underwriters their written opinion, as counsel to the Company,
addressed to the Underwriters and dated the Delivery Date, in form and substance
reasonably satisfactory to the Underwriters, to the effect that:
(i) The Company and each of its subsidiaries have been duly
incorporated and are validly existing as corporations in good standing under the
laws of their respective jurisdictions of incorporation, are duly qualified to
do business and are in good standing as foreign corporations in each
jurisdiction in which their respective ownership or lease of property or the
conduct of their respective businesses requires such qualification and have all
power and authority necessary to own or hold their respective properties and
conduct the businesses in which they are engaged;
(ii) The Company has an authorized capitalization as set
forth in the Prospectus, and all of the issued shares of capital stock of the
Company have been duly and validly authorized and issued, are fully paid and
nonassessable and conform to the description thereof contained in the
Prospectus; and all of the issued shares of capital stock of each subsidiary of
the Company have been duly and validly authorized and issued and are fully paid,
non-assessable and (except for directors' qualifying shares) are owned directly
or indirectly by the Company, free and clear of all liens, encumbrances,
equities or claims and none of such shares of capital stock was issued in
violation of
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preemptive or other similar rights arising by operation of law, under the
charter and by-laws of the Company or under any agreement known to such counsel
to which the Company or any subsidiary is a party or otherwise;
(iii) The Notes have been duly authorized, executed and
issued by the Company and the Subsidiary Guarantors have been duly authorized,
executed and issued by the Subsidiary Guarantors and, assuming due
authentication thereof by the Trustee and upon payment and delivery in
accordance with the terms of the Underwriting Agreement, will be entitled to the
benefits of the Indenture and will be validly issued and free and clear of all
liens and restrictions on transfer and will constitute valid and legally binding
obligations of the Company and the Subsidiary Guarantors enforceable against the
Company and the Subsidiary Guarantors in accordance with their terms except as
(i) enforceability thereof may be limited by bankruptcy, insolvency or similar
laws affecting creditors' rights generally and (ii) rights of acceleration and
the availability of equitable remedies may be limited by equitable principles of
general applicability;
(iv) The Notes and the Subsidiary Guarantees conform to the
descriptions thereof contained in the Registration Statement, the Prospectus and
the Indenture. The Indenture conforms to the description thereof in the
Registration Statement and the Prospectus;
(v) To the best of such counsel's knowledge and other than
as set forth in the Prospectus, there are no legal or governmental proceedings
pending to which the Company or any of its subsidiaries is a party or of which
any property or assets of the Company or any of its subsidiaries is the subject
which, if determined adversely to the Company or any of its subsidiaries, might
have a material adverse effect on the consolidated financial position,
stockholders' equity, results of operations, business or prospects of the
Company and its subsidiaries taken as a whole; and, to the best of such
counsel's knowledge, no such proceedings are threatened or contemplated by
governmental authorities or threatened by others;
(vi) The Registration Statement has been declared effective
under the Securities Act and the Indenture was qualified under the Trust
Indenture Act, the Prospectus was filed with the Commission pursuant to the
subparagraph of Rule 424(b) of the Rules and Regulations specified in such
opinion on the date specified therein and no stop order suspending the
effectiveness of the Registration Statement has been issued and, to the
knowledge of such counsel, no proceeding for that purpose is pending or
threatened by the Commission;
(vii) The Registration Statement and the Prospectus and any
further amendments or supplements thereto made by the Company prior to such
Delivery Date (except for the financial statements and financial schedules and
other financial and statistical data included therein, as to which such counsel
need express no belief) comply as to form in all material respects with the
requirements of the Securities Act and the Rules and Regulations;
(viii) The statements contained in the Prospectus under the
captions "Risk Factors- Government Regulation," "Risk Factors- Antitrust
Matters," "Description of Notes," "Description of Other Indebtedness," "Certain
Federal Income Tax Considerations," "Business -- Antitrust," "Business --
Federal Regulation of Radio Broadcasting," "Business- FCC Licenses," "Executive
Compensation- Employment Agreement and Arrangements," "Executive Compensation-
Option Plan," "Executive Compensation- Limitation on Directors' and Officers'
Liability," insofar as they describe contracts, agreements or other legal
documents or they describe federal statutes, rules and regulations, constitute a
fair summary thereof;
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(ix) To the best of such counsel's knowledge, there are no
contracts, arrangements or other documents which are required to be described in
the Prospectus or filed as exhibits to the Registration Statement by the
Securities Act or by the Rules and Regulations which have not been described or
filed as exhibits to the Registration Statement or incorporated therein as
permitted by the Rules and Regulations;
(x) This Agreement has been duly authorized, executed and
delivered by the Company and each Principal Subsidiary; and each of the other
documents relating to the this Agreement to which the Company or any Principal
Subsidiary is a party has been duly authorized, executed and delivered by the
Company and each Principal Subsidiary;
(xi) The Indenture has been duly authorized, executed and
delivered by the Company and the Subsidiary Guarantors and duly qualified under
the Trust Indenture Act of 1939, as amended (the "Trust Indenture Act") and
assuming due authorization, execution and delivery thereof by the Trustee,
constitutes a valid and, legally binding obligation of the Company and each
Subsidiary Guarantor enforceable against the Company and each Subsidiary
Guarantor in accordance with its terms except as (i) enforceability thereof may
be limited by bankruptcy, insolvency or similar laws affecting creditors' rights
generally and (ii) rights of acceleration and the availability of equitable
remedies may be limited by equitable principles of general applicability;
(xii) The issue and sale of the Notes and the Subsidiary
Guarantees being delivered on the Delivery Date by the Company and the
Subsidiary Guarantors pursuant to this Agreement and the execution, delivery and
compliance by the Company the Principal Subsidiaries, and the Subsidiary
Guarantors with all of the provisions of this Agreement, the Indenture, the
Notes and the Subsidiary Guarantees and each of the other documents to be
entered into in connection with the consummation of the transactions
contemplated hereby, thereby and in the Registration Statement and the
Prospectus (including the issuance and sale of the Notes and the Subsidiary
Guarantees and the use of proceeds from the sale of the Notes as described under
the caption "Use of Proceeds") will not conflict with or result in a breach or
violation of any of the terms or provisions of, or constitute a default under,
any indenture, mortgage, deed of trust, loan agreement or other agreement,
license (including FCC Licenses (as hereinafter defined )) or instrument known
to such counsel to which the Company or any of its subsidiaries is a party or by
which the Company or any of its subsidiaries is bound or to which any of the
property or assets of the Company or any of its subsidiaries is subject, nor
will such actions result in any violation of the provisions of the charter,
certificate of designation, by-laws or similar governing document of the Company
or any of its subsidiaries or any New York or federal statute, rule or
regulation (including the Federal Communications Laws (as hereinafter defined))
or any order, judgment or decree known to such counsel; and, except for the
registration of the Notes and the Subsidiary Guarantees under the Securities Act
and such consents, approvals, authorizations, registrations or qualifications as
may be required under the Exchange Act and applicable state securities laws in
connection with the purchase and distribution of the Notes by the Underwriters,
no consent, approval, authorization or order of, or filing or registration with,
any such court or governmental agency or body (including pursuant to the
Communications Act of 1934, as amended and the rules, regulations and
administrative orders promulgated thereunder (collectively, the Federal
Communications Laws")) is required for the execution, delivery and performance
of this Agreement, the Indenture, the Notes or the Subsidiary Guarantees or any
of the other documents to be entered into in connection with this Agreement by
the Company the Principal Subsidiaries and the Guarantor Subsidiaries and the
consummation of the transactions contemplated hereby or thereby, including the
issue, sale and delivery of the Notes to be issued, sold and delivered by the
Company hereunder;
(xiii) Except as described in the Prospectus, to the best
of such counsel's knowledge, there are no contracts, agreements or
understandings between the Company and any person
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granting such person the right (other than rights which have been waived or
satisfied) to require the Company to file a registration statement under the
Securities Act with respect to any securities of the Company owned or to be
owned by such person or to require the Company to include such securities in the
securities registered pursuant to the Registration Statement or in any
securities being registered pursuant to any other registration statement filed
by the Company under the Securities Act;
(xiv) The Company and its subsidiaries are the holders of
the FCC licenses listed in an attachment to such opinion (the "FCC Licenses"),
all of which are in full force and effect, for the maximum term customarily
issued, with no material conditions, restrictions or qualifications other than
as described in the Prospectus, and to such counsel's knowledge, such FCC
Licenses constitute all of the commercial radio station licenses necessary for
the Company and the subsidiaries to operate their radio stations as described in
the Prospectus;
(xv) There are no published or, to such counsel's
knowledge, unpublished FCC orders, decrees or rulings outstanding against the
Company or any of its subsidiaries or any pending or threatened actions, suits
or proceedings against the Company or any of its subsidiaries by or before the
FCC that seek to revoke, or if determined adversely to the Company or any of its
subsidiaries, would have a material adverse effect on the Company and its
subsidiaries taken as whole or would result in a revocation or nonrenewal of,
any of the FCC Licenses, other than as disclosed in the Registration Statement
or Prospectus;
(xvi) Neither the Company nor any subsidiary is an
"investment company" as defined in the Investment Company Act of 1940, as
amended;
In rendering such opinion, such counsel may state that their opinion is
limited to matters governed by the Federal laws of the United States of America,
the laws of the State of New York and the General Corporation Law of the State
of Delaware. Such opinion shall also be to the effect that (x) such counsel has
acted as counsel to the Company in connection with the preparation of the
Registration Statement and (y) based on the foregoing, no facts have come to the
attention of such counsel which lead them to believe that the Registration
Statement (except for the financial statements and financial schedules and other
financial, statistical and market data included therein, as to which such
counsel need express no belief) as of the Effective Date, contained any untrue
statement of a material fact or omitted to state a material fact required to be
stated therein or necessary in order to make the statements therein not
misleading, or that the Prospectus (except as stated above) contains any untrue
statement of a material fact or omits to state a material fact required to be
stated therein or necessary in order to make the statements therein, in light of
the circumstances under which they were made, not misleading. The foregoing
opinion and statement may be qualified by a statement to the effect that such
counsel does not assume any responsibility for the accuracy, completeness or
fairness of the statements contained in the Registration Statement or the
Prospectus (other than as set forth in clause (viii) above).
(e) The Underwriters shall have received from ▇▇▇▇▇▇ & ▇▇▇▇▇ LLP,
counsel for the Underwriters, such opinion or opinions, dated the Delivery Date,
with respect to the issuance and sale of the Notes, the Registration Statement,
the Prospectus and other related matters as the Underwriters may reasonably
require, and the Company shall have furnished to such counsel such documents as
they reasonably request for the purpose of enabling them to pass upon such
matters.
(f) At the time of execution of this Agreement, the Underwriters
shall have received from each of KPMG LLP and PricewaterhouseCoopers LLP a
letter, in form and substance satisfactory to the Underwriters, addressed to the
Underwriters and dated the date hereof (i) confirming that they are independent
public accountants within the meaning of the Securities Act and are in
compliance with the applicable requirements relating to the qualification of
accountants under Rule 2-01 of Regulation S-X of
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the Commission and (ii) stating, as of the date hereof (or, with respect to
matters involving changes or developments since the respective dates as of which
specified financial information is given in the Prospectus, as of a date not
more than five days prior to the date hereof), the conclusions and findings of
such firm with respect to the financial information and other matters ordinarily
covered by accountants' "comfort letters" to underwriters in connection with
registered public offerings.
(g) With respect to the letters of KPMG LLP and
PricewaterhouseCoopers LLP referred to in the preceding paragraph and delivered
to the Underwriters concurrently with the execution of this Agreement (the
"initial letters"), the Company shall have furnished to the Underwriters letters
(the "bring-down letters") of such accountants, addressed to the Underwriters
and dated the Delivery Date (i) confirming that they are independent public
accountants within the meaning of the Securities Act and are in compliance with
the applicable requirements relating to the qualification of accountants under
Rule 2-01 of Regulation S-X of the Commission, (ii) stating, as of the date of
the bring-down letters (or, with respect to matters involving changes or
developments since the respective dates as of which specified financial
information is given in the Prospectus, as of a date not more than five days
prior to the date of the bring-down letters), the conclusions and findings of
such firm with respect to the financial information and other matters covered by
the initial letters and (iii) confirming in all material respects the
conclusions and findings set forth in the initial letters.
(h) The Company shall have furnished to the Underwriters a
certificate, dated such Delivery Date, of its Chairman of the Board, its
President or a Vice President and its chief financial officer stating that:
(i) The representations, warranties and agreements of the
Company in Section 1 are true and correct as of the Delivery Date; the Company
has complied with all its agreements contained herein; and the conditions set
forth in Sections 7(a), 7(i) and 7(j) have been fulfilled; and
(ii) They have carefully examined the Registration
Statement and the Prospectus and, in their opinion (A) as of the Effective Date,
the Registration Statement and Prospectus did not include any untrue statement
of a material fact and did not omit to state a material fact required to be
stated therein or necessary to make the statements therein not misleading, and
(B) since the Effective Date no event has occurred which should have been set
forth in a supplement or amendment to the Registration Statement or the
Prospectus.
(i) Neither the Company nor any of its subsidiaries shall have
sustained since the date of the latest audited financial statements included in
the Prospectus (A) any loss or interference with its business from fire,
explosion, flood or other calamity, whether or not covered by insurance, or from
any labor dispute or court or governmental action, order or decree, otherwise
than as set forth or contemplated in the Prospectus or (B) since such date there
shall not have been any change in the capital stock or long-term debt of the
Company or any of its subsidiaries or any change, or any development involving a
prospective change, in or affecting the general affairs, management, financial
position, stockholders' equity or results of operations of the Company and its
subsidiaries, otherwise than as set forth or contemplated in the Prospectus, the
effect of which, in any such case described in clause (A) or (B), is, in the
judgment of the Underwriters, so material and adverse as to make it
impracticable or inadvisable to proceed with the public offering or the delivery
of the Notes being delivered on the Delivery Date on the terms and in the manner
contemplated in the Prospectus.
(j) Subsequent to the execution and delivery of this Agreement (i)
no downgrading shall have occurred in the rating accorded the Company's debt
securities by any "nationally recognized statistical rating organization", as
that term is defined by the Commission for purposes of Rule 436(g)(2) of the
Rules and Regulations and (ii) no such organization shall have publicly
announced that it has under
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surveillance or review, with possible negative implications, its rating of any
of the Company's debt securities.
(k) Subsequent to the execution and delivery of this Agreement
there shall not have occurred any of the following: (i) trading in securities
generally on the New York Stock Exchange, the American Stock Exchange, the
Nasdaq Stock Market's National Market or in the over-the-counter market, or
trading in any securities of the Company on any exchange or in the
over-the-counter market, shall have been suspended or minimum prices shall have
been established on any such exchange or such market by the Commission, by such
exchange or by any other regulatory body or governmental authority having
jurisdiction, (ii) a banking moratorium shall have been declared by Federal or
state authorities, (iii) the United States shall have become engaged in
hostilities, there shall have been an escalation in hostilities involving the
United States or there shall have been a declaration of a national emergency or
war by the United States or (iv) there shall have occurred such a material
adverse change in general economic, political or financial conditions (or the
effect of international conditions on the financial markets in the United States
shall be such) as to make it, in the judgment of the Underwriters, impracticable
or inadvisable to proceed with the public offering or delivery of the Notes
being delivered on the Delivery Date on the terms and in the manner contemplated
in the Prospectus.
(l) The closing under the Equity Underwriting Agreement shall have
occurred prior to the closing hereunder on the Delivery Date.
(m) The Company shall have commenced a tender offer and consent
solicitation with respect to its 11% Senior Notes due 2004 (the "2004 Notes")
and 12 -1/2% Senior Notes due 2002 (the "2002 Notes"), and shall have accepted
and paid for, not less than a majority in aggregate principal amount of the
outstanding 2004 Notes and 2002 Notes.
All opinions, letters, evidence and certificates mentioned above or
elsewhere in this Agreement shall be deemed to be in compliance with the
provisions hereof only if they are in form and substance reasonably satisfactory
to counsel for the Underwriters.
Section 8. Indemnification and Contribution.
(a) The Company and ▇▇▇▇▇▇▇ Holdings, Inc., a New York
corporation, SBS of Greater New York, Inc., a New York corporation, Spanish
Broadcasting System of Florida, Inc., a Florida corporation, Spanish
Broadcasting System, Inc., a New Jersey corporation, Spanish Broadcasting System
of Greater Miami, Inc., a Delaware corporation, Spanish Broadcasting System of
Illinois, Inc., a Delaware corporation, Spanish Broadcasting System of San
Antonio, Inc., a Delaware corporation, (collectively, the "Principal
Subsidiaries"), jointly and severally, shall indemnify and hold harmless each
Underwriter, its officers and employees and each person, if any, who controls
any Underwriter within the meaning of the Securities Act, from and against any
loss, claim, damage or liability, joint or several, or any action in respect
thereof (including, but not limited to, any loss, claim, damage, liability or
action relating to purchases and sales of the Notes), to which that Underwriter,
officer, employee or controlling person may become subject, under the Securities
Act or otherwise, insofar as such loss, claim, damage, liability or action
arises out of, or is based upon, (i) any untrue statement or alleged untrue
statement of a material fact contained in any Preliminary Prospectus, the
Registration Statement or the Prospectus or in any amendment or supplement
thereto, (ii) the omission or alleged omission to state in any Preliminary
Prospectus, the Registration Statement or the Prospectus, or in any amendment or
supplement thereto, any material fact required to be stated therein or necessary
to make the statements therein not misleading, or (iii) any act or failure to
act or any alleged act or failure to act by any Underwriter in connection with,
or relating in any manner to, the Notes or the offering contemplated hereby, and
which is included as part of or referred to in any loss, claim, damage,
liability or action arising out of or based upon matters covered
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by clause (i) or (ii) above (provided that the Company and the Principal
Subsidiaries shall not be liable under this clause (iii) to the extent that it
is determined in a final judgment by a court of competent jurisdiction that such
loss, claim, damage, liability or action resulted directly from any such acts or
failures to act undertaken or omitted to be taken by such Underwriter through
its gross negligence or willful misconduct), and shall reimburse each
Underwriter and each such officer, employee or controlling person promptly upon
demand for any legal or other expenses reasonably incurred by that Underwriter,
officer, employee or controlling person in connection with investigating or
defending or preparing to defend against any such loss, claim, damage, liability
or action as such expenses are incurred; provided, however, that the Company and
the Principal Subsidiaries shall not be liable in any such case to the extent
that any such loss, claim, damage, liability or action arises out of, or is
based upon, any untrue statement or alleged untrue statement or omission or
alleged omission made in any Preliminary Prospectus, the Registration Statement
or the Prospectus, or in any such amendment or supplement, in reliance upon and
in conformity with written information concerning such Underwriter furnished to
the Company by or on behalf of any Underwriter specifically for inclusion
therein which information consists solely of the information specified in
Section 8(e) provided, further however, that the Company and the Principal
Subsidiaries shall not be liable to any Underwriter under the agreement in this
subsection 8(a) with respect to any Prospectus to the extent that any such loss,
claim, damage or liability of such Underwriter results from the fact that such
Underwriter sold Notes to a person as to whom there was not sent or given, at or
prior to written confirmation of such sale, a copy of the Prospectus or of the
Prospectus as then amended or supplemented in any case where such delivery is
required by the Securities Act if the Company previously furnished copies
thereof in the quantity requested in accordance with Section 5(c) hereof to such
Underwriter and the loss, claim, damage or liability of such Underwriter results
from an untrue statement or omission of a material fact contained in the
Prospectus and corrected in the Prospectus or the Prospectus as then amended or
supplemented. The foregoing indemnity agreement is in addition to any liability
which the Company and the Principal Subsidiaries may otherwise have to any
Underwriter or to any officer, employee or controlling person of that
Underwriter. The foregoing indemnity agreement is in addition to any liability
which the Company and the Principal Subsidiaries may otherwise have to any
Underwriter or to any officer, employee or controlling person of that
Underwriter.
(b) Each Underwriter, severally and not jointly, shall indemnify
and hold harmless the Company, its officers and employees, each of its
directors, and each person, if any, who controls the Company within the meaning
of the Securities Act, from and against any loss, claim, damage or liability,
joint or several, or any action in respect thereof, to which the Company or any
such director, officer or controlling person may become subject, under the
Securities Act or otherwise, insofar as such loss, claim, damage, liability or
action arises out of, or is based upon, (i) any untrue statement or alleged
untrue statement of a material fact contained in any Preliminary Prospectus, the
Registration Statement or the Prospectus or in any amendment or supplement
thereto, or (ii) the omission or alleged omission to state in any Preliminary
Prospectus, the Registration Statement or the Prospectus, or in any amendment or
supplement thereto, any material fact required to be stated therein or necessary
to make the statements therein not misleading, but in each case only to the
extent that the untrue statement or alleged untrue statement or omission or
alleged omission was made in reliance upon and in conformity with written
information concerning such Underwriter furnished to the Company by or on behalf
of that Underwriter specifically for inclusion therein, and shall reimburse the
Company and any such director, officer or controlling person for any legal or
other expenses reasonably incurred by the Company or any such director, officer
or controlling person in connection with investigating or defending or preparing
to defend against any such loss, claim, damage, liability or action as such
expenses are incurred. The foregoing indemnity agreement is in addition to any
liability which any Underwriter may otherwise have to the Company or any such
director, officer, employee or controlling person.
(c) Promptly after receipt by an indemnified party under this
Section 8 of notice of any claim or the commencement of any action, the
indemnified party shall, if a claim in respect thereof is
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to be made against the indemnifying party under this Section 8, notify the
indemnifying party in writing of the claim or the commencement of that action;
provided, however, that the failure to notify the indemnifying party shall not
relieve it from any liability which it may have under this Section 8 except to
the extent it has been materially prejudiced by such failure and, provided
further, that the failure to notify the indemnifying party shall not relieve it
from any liability which it may have to an indemnified party otherwise than
under this Section 8. If any such claim or action shall be brought against an
indemnified party, and it shall notify the indemnifying party thereof, the
indemnifying party shall be entitled to participate therein and, to the extent
that it wishes, jointly with any other similarly notified indemnifying party, to
assume the defense thereof with counsel reasonably satisfactory to the
indemnified party. After notice from the indemnifying party to the indemnified
party of its election to assume the defense of such claim or action, the
indemnifying party shall not be liable to the indemnified party under this
Section 8 for any legal or other expenses subsequently incurred by the
indemnified party in connection with the defense thereof other than reasonable
costs of investigation; provided, however, that the Underwriters shall have the
right to employ counsel to represent jointly the Underwriters and their
respective officers, employees and controlling persons who may be subject to
liability arising out of any claim in respect of which indemnity may be sought
by the Underwriters against the Company or the Principal Subsidiaries under this
Section 8 if, in the reasonable judgment of the Underwriters, it is advisable
for the Underwriters and their officers, employees and controlling persons to be
jointly represented by separate counsel, and in that event the fees and expenses
of such separate counsel shall be paid by the Company or the Principal
Subsidiaries, as the case may be. No indemnifying party shall (i) without the
prior written consent of the indemnified parties (which consent shall not be
unreasonably withheld), settle or compromise or consent to the entry of any
judgment with respect to any pending or threatened claim, action, suit or
proceeding in respect of which indemnification or contribution may be sought
hereunder (whether or not the indemnified parties are actual or potential
parties to such claim or action) unless such settlement, compromise or consent
includes an unconditional release of each indemnified party from all liability
arising out of such claim, action, suit or proceeding, or (ii) be liable for any
settlement of any such action effected without its written consent (which
consent shall not be unreasonably withheld), but if settled with the consent of
the indemnifying party or if there be a final judgment of the plaintiff in any
such action, the indemnifying party agrees to indemnify and hold harmless any
indemnified party from and against any loss or liability by reason of such
settlement or judgment.
(d) If the indemnification provided for in this Section 8 shall
for any reason be unavailable to or insufficient to hold harmless an indemnified
party under Section 8(a) or 8(b) in respect of any loss, claim, damage or
liability, or any action in respect thereof, referred to therein, then each
indemnifying party shall, in lieu of indemnifying such indemnified party,
contribute to the amount paid or payable by such indemnified party as a result
of such loss, claim, damage or liability, or action in respect thereof, (i) in
such proportion as shall be appropriate to reflect the relative benefits
received by the Company and the Principal Subsidiaries on the one hand and the
Underwriters on the other from the offering of the Notes 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 Company and
the Principal Subsidiaries on the one hand and the Underwriters on the other
with respect to the statements or omissions which resulted in such loss, claim,
damage or liability, or action in respect thereof, as well as any other relevant
equitable considerations. The relative benefits received by the Company and the
Principal Subsidiaries on the one hand and the Underwriters on the other with
respect to such offering shall be deemed to be in the same proportion as the
total net proceeds from the offering of the Notes purchased under this Agreement
(before deducting expenses) received by the Company and the Principal
Subsidiaries, on the one hand, and the total underwriting discounts and
commissions received by the Underwriters with respect to the Notes purchased
under this Agreement, on the other hand, bear to the total gross proceeds from
the offering of the Notes under this Agreement, in each case as set forth in the
table on the cover page of the Prospectus. The relative fault shall be
determined by reference to whether the untrue or alleged untrue statement of a
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material fact or omission or alleged omission to state a material fact relates
to information supplied by the Company and the Principal Subsidiaries or the
Underwriters, the intent of the parties and their relative knowledge, access to
information and opportunity to correct or prevent such statement or omission.
For purposes of the preceding two sentences, the net proceeds deemed to be
received by the Company shall be deemed to be also for the benefit of the
Principal Subsidiaries and information supplied by the Company shall also be
deemed to have been supplied by the Principal Subsidiaries. The Company and the
Principal Subsidiaries and the Underwriters agree that it would not be just and
equitable if contributions pursuant to this Section were to be determined by pro
rata allocation (even if the Underwriters were treated as one entity for such
purpose) or by any other method of allocation which does not take into account
the equitable considerations referred to herein. The amount paid or payable by
an indemnified party as a result of the loss, claim, damage or liability, or
action in respect thereof, referred to above in this Section shall be deemed to
include, for purposes of this Section 8(e), 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 8(e), no Underwriter shall be required to contribute any amount in
excess of the amount by which the total price at which the Notes underwritten by
it and distributed to the public was offered to the public exceeds the amount of
any damages which such Underwriter has otherwise paid or become liable to pay by
reason of any 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
Underwriters' obligations to contribute as provided in this Section 8(d) are
several in proportion to their respective underwriting obligations and not
joint.
(e) The Underwriters severally confirm and the Company
acknowledges that the statements with respect to the public offering of the
Notes by the Underwriters set forth on the cover page of, and the concession and
reallowance figures appearing under the caption "Underwriting" in, the
Prospectus are correct and constitute the only information concerning such
Underwriters furnished in writing to the Company by or on behalf of the
Underwriters specifically for inclusion in the Registration Statement and the
Prospectus.
Section 9. Termination. The obligations of the Underwriters hereunder
may be terminated by the Underwriters by notice given to and received by the
Company prior to delivery of and payment for the Notes if, prior to that time,
any of the events described in Sections 7(i), 7(j) or 7(k), shall have occurred
or if the Underwriters shall decline to purchase the Notes for any reason
permitted under this Agreement.
Section 10. Reimbursement of Underwriters' Expense. If the Company
shall fail to tender the Notes for delivery to the Underwriters by reason of any
failure, refusal or inability on the part of the Company to perform any
agreement on its part to be performed, or because any other condition of the
Underwriters' obligations hereunder required to be fulfilled by the Company is
not fulfilled, the Company will reimburse the Underwriters for all reasonable
out-of-pocket expenses (including fees and disbursements of counsel) incurred by
the Underwriters in connection with this Agreement and the proposed purchase of
the Notes, and upon demand the Company shall pay the full amount thereof to the
Underwriters.
Section 11. Notices, Etc. All statements, requests, notices and
agreements hereunder shall be in writing, and:
(a) if to the Underwriters, shall be delivered or sent by mail,
telex or facsimile transmission to ▇▇▇▇▇▇ Brothers Inc., Three World Financial
Center, New York, New York 10285, Attention: Syndicate Department (Fax:
▇▇▇-▇▇▇-▇▇▇▇), with a copy, in the case of any notice pursuant to
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Section 8(c), to the Director of Litigation, Office of the General Counsel,
▇▇▇▇▇▇ Brothers Inc., ▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇;
(b) if to the Company, shall be delivered or sent by mail, telex
or facsimile transmission to the address of the Company set forth in the
Registration Statement, Attention: ▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇. (Fax: (▇▇▇) ▇▇▇-▇▇▇▇);
provided, however, that any notice to an Underwriter pursuant to Section 8(c)
shall be delivered or sent by mail, telex or facsimile transmission to such
Underwriter at its address set forth in its acceptance telex to the
Underwriters, which address will be supplied to any other party hereto by the
Underwriters upon request. Any such statements, requests, notices or agreements
shall take effect at the time of receipt thereof. The Company shall be entitled
to act and rely upon any request, consent, notice or agreement given or made on
behalf of the Underwriters by ▇▇▇▇▇▇ Brothers Inc.
Section 12. Persons Entitled to Benefit of Agreement. This Agreement
shall inure to the benefit of and be binding upon the Underwriters and the
Company, and their respective personal representatives and successors. This
Agreement and the terms and provisions hereof are for the sole benefit of only
those persons, except that (A) the representations, warranties, indemnities and
agreements of the Company contained in this Agreement shall also be deemed to be
for the benefit of the person or persons, if any, who control any Underwriter
within the meaning of Section 15 of the Securities Act and (B) the indemnity
agreement of the Underwriters contained in Section 8(b) of this Agreement shall
be deemed to be for the benefit of directors of the Company, officers of the
Company who have signed the Registration Statement and any person controlling
the Company within the meaning of Section 15 of the Securities Act. Nothing in
this Agreement is intended or shall be construed to give any person, other than
the persons referred to in this Section 13, any legal or equitable right, remedy
or claim under or in respect of this Agreement or any provision contained
herein.
Section 13. Survival. The respective indemnities, representations,
warranties and agreements of the Company, the Principal Subsidiaries and the
Underwriters contained in this Agreement or made by or on behalf on them,
respectively, pursuant to this Agreement, shall survive the delivery of and
payment for the Notes and shall remain in full force and effect, regardless of
any investigation made by or on behalf of any of them or any person controlling
any of them.
Section 14. Definition of the Terms "Business Day" and "subsidiary".
For purposes of this Agreement, (a) "business day" means each Monday, Tuesday,
Wednesday, Thursday or Friday which is not a day on which banking institutions
in New York are generally authorized or obligated by law or executive order to
close and (b) "subsidiary" has the meaning set forth in Rule 405 of the Rules
and Regulations.
Section 15. Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of New York.
Section 16. Counterparts. This Agreement may be executed in one or more
counterparts and, if executed in more than one counterpart, the executed
counterparts shall each be deemed to be an original but all such counterparts
shall together constitute one and the same instrument.
Section 17. Headings. The headings herein are inserted for convenience
of reference only and are not intended to be part of, or to affect the meaning
or interpretation of, this Agreement.
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If the foregoing correctly sets forth the agreement between the Company
and the Underwriters, please indicate your acceptance in the space provided for
that purpose below.
Very truly yours,
SPANISH BROADCASTING SYSTEM OF FLORIDA, INC.
By /s/ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇.
-----------------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇.
Title: President
▇▇▇▇▇▇▇ HOLDINGS, INC.
By /s/ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇.
-----------------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇.
Title: President
SBS OF GREATER NEW YORK, INC.
By /s/ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇.
-----------------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇.
Title: President
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If the foregoing correctly sets forth the agreement between the Company
and the Underwriters, please indicate your acceptance in the space provided for
that purpose below.
Very truly yours,
SPANISH BROADCASTING SYSTEM, INC.
By /s/ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇.
----------------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇.
Title: President
SPANISH BROADCASTING SYSTEM, INC.
(A NEW JERSEY CORPORATION)
By /s/ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇.
----------------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇.
Title: President
SPANISH BROADCASTING SYSTEM OF
GREATER MIAMI, INC.
By /s/ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇.
----------------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇.
Title: President
SPANISH BROADCASTING SYSTEM OF
ILLINOIS, INC.
By /s/ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇.
----------------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇.
Title: President
SPANISH BROADCASTING SYSTEM OF
SAN ANTONIO, INC.
By /s/ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇.
----------------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇.
Title: President
Accepted:
▇▇▇▇▇▇ BROTHERS INC.
CIBC WORLD MARKETS CORP.
By ▇▇▇▇▇▇ BROTHERS INC.
By ▇▇▇▇▇▇▇▇▇ Satin
-------------------------------------
Authorized Representative
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SCHEDULE 1
Principal Amount of
U.S. Underwriters Notes to be Purchased
----------------- ---------------------
▇▇▇▇▇▇ Brothers Inc.............................. $141,000,000
CIBC World Markets Corp.......................... $ 94,000,000
Total............................................ $235,000,000