<PAGE>
FORM S-4
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON SEPTEMBER 4, 1998
REGISTRATION NO. 333-61211
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- --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
------------------------
AMENDMENT NO. 1
TO
FORM S-4
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
------------------------
RADIO UNICA CORP.
AND OTHER REGISTRANTS*
(Exact name of registrant as specified in its charter)
<TABLE>
<S> <C> <C>
DELAWARE 513111 65-0776004
(State or other Jurisdiction (Primary Standard Industrial (I.R.S. Employer
of Incorporation or Classification Code Number) Identification
Organization) No.)
</TABLE>
------------------------
8400 N.W. 52ND STREET, SUITE 101
MIAMI, FLORIDA 33166
(305) 463-5000
(Address, including zip code, and telephone number, including
area code, of registrant's principal executive offices)
------------------------
STEVEN E. DAWSON
RADIO UNICA CORP.
8400 N.W. 52ND STREET, SUITE 101
MIAMI, FLORIDA 33166
(305) 463-5000
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
------------------------
COPY TO:
C. KEVIN BARNETTE, ESQ.
SKADDEN, ARPS, SLATE, MEAGHER & FLOM LLP
1440 NEW YORK AVENUE, N.W.
WASHINGTON, D.C. 20005
(202) 371-7000
------------------------
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC:
As soon as practicable after this Registration Statement becomes effective.
IF THE SECURITIES BEING REGISTERED ON THIS FORM ARE BEING OFFERED IN
CONNECTION WITH THE FORMATION OF A HOLDING COMPANY AND THERE IS COMPLIANCE WITH
GENERAL INSTRUCTION G, CHECK THE FOLLOWING BOX. / /
------------------------
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL
FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(a) OF
THE SECURITIES ACT OF 1933 OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(a),
MAY DETERMINE.
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<PAGE>
*OTHER REGISTRANTS
<TABLE>
<CAPTION>
ADDRESS, INCLUDING ZIP
CODE AND TELEPHONE
STATE OR OTHER PRIMARY STANDARD NUMBER, INCLUDING AREA
EXACT NAME OF REGISTRANT JURISDICTION OF INDUSTRIAL I.R.S. EMPLOYER CODE, OF REGISTRANT'S
AS SPECIFIED IN ITS INCORPORATION OR CLASSIFICATION CODE IDENTIFICATION PRINCIPAL EXECUTIVE
CHARTER ORGANIZATION NUMBERS NUMBER OFFICES
- ------------------------- --------------------- --------------------- ----------------- -------------------------
<S> <C> <C> <C> <C>
Oro Spanish Broadcasting, California 513111 94-2678874 8400 N.W. 52nd St. Suite
Inc. 101
Miami, FL 33166
Radio Unica of San Delaware 513111 65-0813274 8400 N.W. 52nd St. Suite
Francisco, Inc. 101
Miami, FL 33166
Radio Unica of San Delaware 513111 52-2114089 8400 N.W. 52nd St. Suite
Francisco License Corp. 101
Miami, FL 33166
Radio Unica of Miami, Delaware 513111 65-0813271 8400 N.W. 52nd St. Suite
Inc. 101
Miami, FL 33166
Radio Unica of Miami Delaware 513111 52-2114091 8400 N.W. 52nd St.
License Corp. Suite 101
Miami, FL 33166
Radio Unica of Los Delaware 513111 65-0812486 8400 N.W. 52nd St. Suite
Angeles, Inc. 101
Miami, FL 33166
Radio Unica of Los Delaware 513111 52-2114088 8400 N.W. 52nd St. Suite
Angeles License Corp. 101
Miami, FL 33166
Radio Unica of San Delaware 513111 65-0812485 8400 N.W. 52nd St. Suite
Antonio, Inc. 101
Miami, FL 33166
Radio Unica Network, Inc. Delaware 513111 65-0812484 8400 N.W. 52nd St. Suite
101
Miami, FL 33166
Radio Unica Sales Corp. Florida 513111 65-0788821 8400 N.W. 52nd St. Suite
101
Miami, FL 33166
</TABLE>
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 20. INDEMNIFICATION OF DIRECTORS AND OFFICERS
The Company's Certificate of Incorporation provides that, to the fullest
extent permitted by the Delaware General Corporation Law (the "DGCL"), no
director of the Company shall be personally liable to the Company or its
stockholders for monetary damages for breach of fiduciary duty as a director;
provided, that, a director shall be liable to the extent provided by applicable
law (1) for any breach of the directors' duty of loyalty to the Company or its
stockholders, (2) for acts or omissions not in good faith or which involve
intentional misconduct or a knowing violation of law, (3) under Section 174 of
the DGCL, or (4) for any transaction from which the director derived any
improper personal benefit.
The Company's Certificate of Incorporation also provides that the Company
shall, to the fullest extent permitted by Section 145 of the DGCL, indemnify any
and all persons whom it shall have power to indemnify under such section from
and against any and all of the expenses, liabilities or other matters referred
to in or covered by such section and shall advance expenses to the fullest
extent permitted thereby. Such right to indemnification and advancement of
expenses shall continue as to a person who has ceased to be a director, officer,
employee or agent and shall inure to the benefit of the heirs, executors and
administrators of such a person. The indemnification and advancement of expenses
provided for therein shall not be deemed exclusive.
Consistent with Section 145 of the DGCL, the Company's Bylaws provide that
the Company shall indemnify any person, to the fullest extent authorized by the
DGCL who was or is a party or is threatened to be made a party to any
threatened, pending or completed action, suit or proceeding, whether civil,
criminal, administrative or investigative (other than an action by or in the
right of the Company) by reason of the fact that he is or was a director,
officer, employee, or agent of the Company, or is or was serving at the request
of the Company as a director, officer, employee or agent of another corporation,
partnership, joint venture, trust or other enterprise (including employee
benefit plans) against expenses (including attorneys' fees), judgments, fines
and amounts paid in settlement actually and reasonably incurred by him in
connection with such action, suit, or proceeding if he acted in good faith and
in a manner he reasonably believed to be in or not opposed to the best interests
of the Company, and, with respect to any criminal action or proceeding, had no
reasonable cause to believe such conduct was unlawful. The termination of any
action, suit or proceeding by judgment, order, settlement, conviction or upon
plea of nolo contendere or its equivalent, shall not, in and of itself, create a
presumption that the person did not act in good faith and in a manner which he
reasonably believed to be in or not opposed to the best interests of the
Company, and, with respect to any criminal action or proceeding, had reasonable
cause to believe that his conduct was unlawful.
Consistent with Section 145 of the DGCL, the Company's Bylaws provide that
the Company shall indemnify any person, to the fullest extent authorized by the
DGCL who was or is a party or is threatened to be made a party to any
threatened, pending, or completed action or suit by or in the right of the
Company to procure a judgment in its favor by reason of the fact that he is or
was a director, officer, employee or agent of the Company, or is or was serving
at the request of the Company as a director, officer, employee or agent of
another corporation, partnership, joint venture, trust or other enterprise
(including employee benefit plans) against expenses (including attorneys' fees)
actually and reasonably incurred by him in connection with the defense or
settlement of such action or suit if he acted in good faith and in a manner he
reasonably believed to be in or not opposed to the best interests of the Company
and except that no indemnification shall be made in respect of any claim, issue
or matter as to which such person shall have been adjudged to be liable to the
Company unless and only to the extent that the court in which such action or
suit was brought shall determine, upon application, that, despite the
adjudication of liability but in view of all the circumstances of the case, such
person is fairly and reasonably entitled to indemnity for such expenses which
such court shall deem proper.
II-1
<PAGE>
Consistent with Section 145 of the DGCL, the Company's Bylaws also provide
that: all reasonable expenses incurred by or on behalf of the indemnitee in
connection with any suit, action or proceeding, may be advanced to the
indemnitee by the Company; the rights to indemnification and to advancement of
expenses conferred in therein shall not be exclusive of any other right which
any person may have or hereafter acquire under any statute, the Certificate of
Incorporation, a By-Law of the Company, agreement, vote of stockholders or
disinterested Directors or otherwise; and the indemnification and advancement of
expenses provided therein shall continue as to a person who has ceased to be a
Director, officer, employee or agent and shall inure to the benefit of the
heirs, executors and administrators of such person.
Section 145 of the DGCL provides that to the extent that a present or former
director or officer of the Company has been successful on the merits or
otherwise in defense of any action, suit or proceeding referred to above, or in
defense of any claim, issue, or matter therein, such person shall be indemnified
against expenses (including attorneys' fees) actually and reasonably incurred by
such person in connection therewith.
Any such indemnification (unless ordered by a court) shall be made by the
Company only as authorized in the specific case upon a determination that
indemnification of the present or former director, officer, employee or agent is
proper in such circumstances because such person has met the applicable standard
of conduct set forth in the paragraphs above. Such determination shall be made
(i) by a majority vote of the directors who are not parties to such action, suit
or proceeding, even though less than a quorum, (ii) by a committee of such
directors designated by majority vote of such directors, even though less than a
quorum, (iii) if there are no such directors, or if such directors so direct, by
independent legal counsel in a written opinion, or (iv) by the stockholders.
Section 145 of the DGCL permits a Delaware business corporation to purchase
and maintain insurance on behalf of any person who is or was a director,
officer, employee or agent of the corporation, or is or was serving at the
request of the corporation as a director, officer, employee or agent of another
corporation, partnership, joint venture, trust, or other enterprise against any
liability asserted against such person and incurred by such person in any such
capacity, or arising out of his status as such, whether or not the corporation
would have the power to indemnify such person against such liability.
The above discussion of Section 145 of the DGCL is not intended to be
exhaustive and is qualified in its entirety by the DGCL.
ITEM 21. EXHIBITS AND FINANCIAL SCHEDULE TABLES
(a) Exhibits:
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION
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<C> <S>
3.1** Certificate of Incorporation of the Company.
3.2 Bylaws of the Company.
3.3 Certificate of Incorporation of Radio Unica of San Francisco, Inc.
3.4 Bylaws of Radio Unica of San Francisco, Inc.
3.5 Certificate of Incorporation of Oro Spanish Broadcasting, Inc.
3.6 Bylaws of Oro Spanish Broadcasting, Inc.
3.7 Certificate of Incorporation of Radio Unica of San Francisco License Corp.
3.8 Bylaws of Radio Unica of San Francisco License Corp.
3.9 Certificate of Incorporation of Radio Unica of Miami, Inc.
</TABLE>
II-2
<PAGE>
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION
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<C> <S>
3.10 Bylaws of Radio Unica of Miami, Inc.
3.11 Certificate of Incorporation of Radio Unica of Miami License Corp.
3.12 Bylaws of Radio Unica of Miami License Corp.
3.13 Certificate of Incorporation of Radio Unica of Los Angeles, Inc.
3.14 Bylaws of Radio Unica of Los Angeles, Inc.
3.15 Certificate of Incorporation of Radio Unica of Los Angeles License Corp.
3.16 Bylaws of Radio Unica of Los Angeles License Corp.
3.17 Certificate of Incorporation of Radio Unica of San Antonio, Inc.
3.18 Bylaws of Radio Unica of San Antonio, Inc.
3.19 Certificate of Incorporation of Radio Unica Network, Inc.
3.20 Bylaws of Radio Unica Network, Inc.
3.21 Certificate of Incorporation of Radio Unica Sales Corp.
3.22 Bylaws of Radio Unica Sales Corp.
4.1** Purchase Agreement, dated July 22, 1998, among the Company, each of the Company's subsidiaries set
forth therein, CIBC Oppenheimer Corp. and Bear, Stearns & Co. Inc.
4.2** Indenture dated as of July 27, 1998 between the Company and Wilmington Trust Company, as Trustee.
4.3** Form of New Note (included as Exhibit A to Exhibit 4.2).
4.4** Form of Guarantee (included as Exhibit G to Exhibit 4.2).
4.5 Registration Rights Agreement, dated as of July 22, 1998, between the Company and CIBC Oppenheimer
Corp. and Bear, Stearns & Co. Inc.
5.1* Opinion of Skadden, Arps, Slate, Meagher & Flom LLP.
10.1* Credit Agreement, dated as of July 8, 1998 among the Company, Holdings, the several banks and other
financial institutions from time to time parties thereto and Canadian Imperial Bank of Commerce, in its
individual capacity and as Agent ("CIBC").
10.2* Form of Guarantee under the Credit Agreement, each dated as of July 8, 1998, by each of the following
subsidiaries of the Company: Radio Unica of San Francisco, Inc., Oro Spanish Broadcasting, Inc., Radio
Unica of San Francisco License Corp., Radio Unica of Miami, Inc., Radio Unica of Miami License Corp.,
Radio Unica of Los Angeles, Inc., Radio Unica of Los Angeles License Corp., Radio Unica of San Antonio,
Inc., Radio Unica Network, Inc. and Radio Unica Sales Corp. in favor of CIBC (included as Exhibit E to
Exhibit 10.1).
10.3* Form of Pledge Agreement, each dated as of July 8, 1998, between CIBC and each of Radio Unica of San
Francisco, Inc., Radio Unica of Miami, Radio Unica of Los Angeles, Inc., Oro Spanish Broadcasting,
Inc., Holdings and the Company (included as Exhibits A, C and F to Exhibit 10.1).
</TABLE>
II-3
<PAGE>
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION
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<C> <S>
10.4* Form of Security Agreement, each dated as of July 8, 1998, between CIBC and each of the following
subsidiaries of the Company: Radio Unica of San Francisco, Inc., Oro Spanish Broadcasting, Inc., Radio
Unica of San Francisco License Corp., Radio Unica of Miami, Inc., Radio Unica of Miami License Corp.,
Radio Unica of Los Ageles, Inc., Radio Unica of Los Angeles License Corp., Radio Unica of San Antonio,
Inc., Radio Unica Network, Inc., and Radio Unica Sales Corp Holdings and the Company (included as
Exhibits B, D and G to Exhibit 10.1).
10.5 Contribution Agreement, dated as of July 8, 1998, among certain of the Company's subsidiaries, Holdings
and CIBC.
10.6 Intellectual Property Security Agreement, dated as of July 8, 1998, between the Company and CIBC.
10.7** Securities Purchase Agreement, dated as of August 11, 1997, by and among the Company, Warburg, Pincus
Ventures, L.P. and the other investors named therein.
10.8** Supplement to Securities Purchase Agreement, dated as of June, 1998, among the Company, Holdings,
Warburg, Pincus Ventures, L.P. and the other investors named therein.
10.9** Stockholders' Agreement, dated as of June 30, 1998, by and among Holdings, Warburg, Pincus Ventures,
L.P., Joaquin Blaya, Herbert Levin and the other persons listed therein.
10.10 Time Brokerage Agreement, dated as of October 31, 1997, by and between the Company and Lotus Oxnard
Corp. relating to KVCA(AM).
10.11 Time Brokerage Agreement, dated as of October 31, 1997, by and between the Company and Texas Lotus
Corp. relating to KZDC(AM).
10.12 Time Brokerage Agreement, dated as of June 9, 1998, by and between Achievement Radio Holdings, Inc. and
the Company relating to WYPA(AM).
10.13* Time Brokerage Agreement, dated as of April 27, 1998, by and between The Freedom Network, Inc. and the
Company relating to KDFT(AM).
10.14 Asset Purchase Agreement, dated as of January 26, 1998, by and among the Company, One-On-One Sports
License of Florida, L.L.C. and One-On-One Sports Radio of Florida, L.L.C.
10.15 Stock Purchase Agreement, dated as of February 20, 1998, by and among the Company, Oro Spanish
Broadcasting, Inc. and Rene De La Rosa.
10.16 Asset Purchase Agreement, dated as of May 20, 1998, by and among the Company, Sinclair Radio of Los
Angeles, Inc. and Sinclair Radio of Los Angeles Licensee, Inc.
10.17 Form of Non Competition and Confidentiality Agreement between each of Joaquin F. Blaya, Herbert M.
Levin and Steven E. Dawson, dated August 13, 1997.
10.18 Agreement, dated as of November 19, 1997, entered into by and between The Miami Herald Publishing
Company and the Company.
10.19 Agreement, dated as of January 15, 1998, entered into by and between Radio Unica Corp. and Jorge Ramos.
10.20 Amended and Restated Artist Agreement, dated as of June 5, 1998, entered into by and between Radio
Unica Network, Inc. and Raque Productions (for services of Pedro Sevcec).
10.21* Independent Contractor Agreement dated as of June 30, 1998 between Radio Unica Network, Inc. and Dra
Isabel, Inc. (for services of Isabel Gomez Bassols)
</TABLE>
II-4
<PAGE>
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION
- ----------- -------------------------------------------------------------------------------------------------------
<C> <S>
10.22 1998 Stock Option Plan of Holdings
10.23 Lease, dated October 21, 1997, between Port of Oakland and Oro Spanish Broadcasting, Inc. (for real
property located in City of Oakland, County of Alameda).
10.24 Lease, dated April 20, 1983, by and between May L. Rotolante and Radio WCMQ, Inc., as assigned to Radio
Unica of Miami, Inc. (for real property in Dade County, Florida).
10.25* Lease, as amended, dated September 19, 1997, by and between KOALA Miami Realty Holding Co., Inc. and
Radio Unica Corp. (for office space located in Dade County, Florida).
10.26* Amendment to Time Brokerage Agreement, dated as of May 20, 1998, by and between The Freedom Network,
Inc. and the Company relating to KDFT(AM).
10.27* Local Programming and Marketing Agreement, dated as of June 1, 1998, by and between Children's Radio of
New York, Inc. and the Company relating to WBAH(AM).
10.28* Stock Purchase Agreement, dated as of June 10, 1998, by and among the Company, Blaya, Inc. and Joaquin
F. Blaya.
10.29* Option Agreement, dated as of October 31, 1997, by and between Lotus Oxnard Corp. and the Company.
10.30* Option Agreement, dated as of October 31, 1998, by and between Texas Lotus Corp. and the Company.
10.31* Option Agreement, dated as of June 9, 1998, by and between Personal Achievement Radio of Illinois, Inc.
and the Company.
21.1** Subsidiaries of the Company.
23.1** Consent of Ernst & Young LLP.
23.2** Consent of Miller, Kaplan, Arase & Co., LLP.
23.3* Consent of Skadden, Arps, Slate, Meagher & Flom LLP (included in exhibit 5.1).
24.1** Power of Attorney (included on signature pages).
25.1** Statement of Eligibility under the Trust Indenture Act of 1939 on Form T-1 of Wilmington Trust Company.
27.1** Financial Data Schedule.
27.2** Financial Data Schedule.
99.1* Form of Letter of Transmittal.
99.2* Form of Notice of Guaranteed Delivery.
</TABLE>
- ------------------------
* To be filed by amendment.
** Previously filed.
(b) Financial Statement Schedules:
All schedules for which provision is made in the applicable accounting
regulations of the Securities and Exchange Commission have been omitted
because they are not required, are inapplicable or the required information
has already been provided elsewhere in the registration statement.
II-5
<PAGE>
ITEM 22. UNDERTAKINGS
INSTRUCTION TO ITEM 511. 1. If the amounts of any items are not known, give
estimates but identify them as such.
The Registrants hereby undertake:
(1) To file, during any period in which offers or sales are being made, a
post-effective amendment to this Registration Statement to:
(i) include any prospectus required by Section 10(a)(3) of the Securities Act;
(ii) reflect in the prospectus any facts or events which, individually or
together, represent a fundamental change in the information in the
Registration Statement. Notwithstanding the foregoing, any increase or
decrease in volume of securities offered (if the total dollar value of
securities offered would not exceed that which was registered) and any
deviation from the low or high end of the estimated maximum offering range
may be reflected in the form of prospectus filed with the Commission
pursuant to Rule 424(b) if, in the aggregate, the changes in volume and
price represent no more than a 20 percent change in the maximum aggregate
offering price set forth in the "Calculation of Registration Fee" table in
the effective registration statement.
(iii) include any additional or changed material information on the plan of
distribution.
(2) For determing liability under the Securities Act, treat each post-effective
amendment as a new registration statement of the securities offered, and the
offering of the securities at that time to be the initial BONA FIDE
offering.
(3) File a post-effective amendment to remove from registration any of the
securities that remain unsold at the end of the offering.
Insofar as indemnification for liabilities arising under the Securities Act
of 1933 (the "Act") may be permitted to directors, officers and controlling
persons of the Registrants pursuant to the foregoing provisions, or otherwise,
the Registrants have been advised that in the opinion of the Securities and
Exchange Commission such indemnification is against public policy as expressed
in the Act and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by the
Registrants of expenses incurred or paid by a director, officer or controlling
person of the Registrants in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling person in
connection with the securities being registered, the Registrants will, unless in
the opinion of its counsel the matter has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in the Act and will
be governed by the final adjudication of such issue.
The undersigned Registrants hereby undertake to respond to requests for
information that is incorporated by reference into the prospectus pursuant to
Item 4, 10(b), 11 or 13 of this form, within one business day of receipt of such
request, and to send the incorporated documents by first class mail or other
equally prompt means. This includes information contained in documents filed
subsequent to the effective date of the registration statement through the date
of responding to the request.
The undersigned Registrants hereby undertake to supply by means of a
post-effective amendment all information concerning a transaction, and the
company being acquired involved therein, that was not the subject of and
included in the registration statement when it became effective.
II-6
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, the
Registrant has duly caused this Registration Statement to be signed on its
behalf by the undersigned, thereunto duly authorized, in the City of Miami,
State of Florida, on this 4th day of September, 1998.
<TABLE>
<S> <C> <C>
RADIO UNICA CORP.
/s/ JOAQUIN F. BLAYA
-----------------------------------------
Name: Joaquin F. Blaya
TITLE: CHAIRMAN OF THE BOARD AND CHIEF
EXECUTIVE OFFICER
</TABLE>
POWER OF ATTORNEY
Each person whose signature appears below on this Registration Statement
hereby constitutes and appoints Joaquin F. Blaya and Steven E. Dawson, and each
of them, with full power to act without the other, his true and lawful
attorney-in-fact and agent, with full power of substitution and resubstitution,
for him and in his name, place and stead, in any and all capacities (unless
revoked in writing) to sign any and all amendments (including post-effective
amendments thereto) to this Registration Statement to which this power of
attorney is attached, and to file the same, with all exhibits thereto, and other
documents in connection therewith, with the Securities and Exchange Commission,
granting to such attorneys-in-fact and agents, and each of them, full power and
authority to do and perform each and every act and thing requisite and necessary
to be done in connection therewith, as full to all intents and purposes as he
might or could do in person, hereby ratifying and confirming all that such
attorneys-in-fact and agents or any of them, or their or his substitute or
substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities indicated, on September 4, 1998.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
- ------------------------------ -------------------------- -------------------
<C> <S> <C>
Chairman of the Board and
/s/ JOAQUIN F. BLAYA Chief Executive Officer
- ------------------------------ (Principal Executive September 4, 1998
Joaquin F. Blaya Officer)
Chief Financial Officer,
/s/ STEVEN E. DAWSON Secretary and Director
- ------------------------------ (Principal Financial and September 4, 1998
Steven E. Dawson Accounting Officer)
/s/ ANDREW C. GOLDMAN Executive Vice President,
- ------------------------------ Business Affairs and September 4, 1998
Andrew C. Goldman Director
/s/ JOHN D. SANTOLERI
- ------------------------------ Director September 4, 1998
John D. Santoleri
</TABLE>
II-7
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, the
Registrant has duly caused this Registration Statement to be signed on its
behalf by the undersigned, thereunto duly authorized, in the City of Miami,
State of Florida, on this 4th day of September, 1998.
ORO SPANISH BROADCASTING, INC.
/s/ JOAQUIN F. BLAYA
-----------------------------------------
Name: Joaquin F. Blaya
TITLE: CHAIRMAN OF THE BOARD AND CHIEF
EXECUTIVE OFFICER
POWER OF ATTORNEY
Each person whose signature appears below on this Registration Statement
hereby constitutes and appoints Joaquin F. Blaya and Steven E. Dawson, and each
of them, with full power to act without the other, his true and lawful
attorney-in-fact and agent, with full power of substitution and resubstitution,
for him and in his name, place and stead, in any and all capacities (unless
revoked in writing) to sign any and all amendments (including post-effective
amendments thereto) to this Registration Statement to which this power of
attorney is attached, and to file the same, with all exhibits thereto, and other
documents in connection therewith, with the Securities and Exchange Commission,
granting to such attorneys-in-fact and agents, and each of them, full power and
authority to do and perform each and every act and thing requisite and necessary
to be done in connection therewith, as full to all intents and purposes as he
might or could do in person, hereby ratifying and confirming all that such
attorneys-in-fact and agents or any of them, or their or his substitute or
substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities indicated, on September 4, 1998.
SIGNATURE TITLE DATE
- ------------------------------ -------------------------- -------------------
Chairman of the Board and
/s/ JOAQUIN F. BLAYA Chief Executive Officer
- ------------------------------ (Principal Executive September 4, 1998
Joaquin F. Blaya Officer)
Chief Financial Officer,
/s/ STEVEN E. DAWSON Secretary and Director
- ------------------------------ (Principal Financial and September 4, 1998
Steven E. Dawson Accounting Officer)
II-8
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, the
Registrant has duly caused this Registration Statement to be signed on its
behalf by the undersigned, thereunto duly authorized, in the City of Miami,
State of Florida, on this 4th day of September, 1998.
RADIO UNICA OF SAN FRANCISCO, INC.
By: /s/ JOAQUIN F. BLAYA
-----------------------------------------
Name: Joaquin F. Blaya
TITLE: CHAIRMAN OF THE BOARD AND CHIEF
EXECUTIVE OFFICER
POWER OF ATTORNEY
Each person whose signature appears below on this Registration Statement
hereby constitutes and appoints Joaquin F. Blaya and Steven E. Dawson, and each
of them, with full power to act without the other, his true and lawful
attorney-in-fact and agent, with full power of substitution and resubstitution,
for him and in his name, place and stead, in any and all capacities (unless
revoked in writing) to sign any and all amendments (including post-effective
amendments thereto) to this Registration Statement to which this power of
attorney is attached, and to file the same, with all exhibits thereto, and other
documents in connection therewith, with the Securities and Exchange Commission,
granting to such attorneys-in-fact and agents, and each of them, full power and
authority to do and perform each and every act and thing requisite and necessary
to be done in connection therewith, as full to all intents and purposes as he
might or could do in person, hereby ratifying and confirming all that such
attorneys-in-fact and agents or any of them, or their or his substitute or
substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities indicated, on September 4, 1998.
SIGNATURE TITLE DATE
- ------------------------------ -------------------------- -------------------
Chairman of the Board and
/s/ JOAQUIN F. BLAYA Chief Executive Officer
- ------------------------------ (Principal Executive September 4, 1998
Joaquin F. Blaya Officer)
Chief Financial Officer,
/s/ STEVEN E. DAWSON Secretary and Director
- ------------------------------ (Principal Financial and September 4, 1998
Steven E. Dawson Accounting Officer)
II-9
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, the
Registrant has duly caused this Registration Statement to be signed on its
behalf by the undersigned, thereunto duly authorized, in the City of Miami,
State of Florida, on this 4th day of September, 1998.
RADIO UNICA OF SAN FRANCISCO LICENSE CORP.
/s/ JOAQUIN F. BLAYA
-----------------------------------------
Name: Joaquin F. Blaya
TITLE: CHAIRMAN OF THE BOARD AND CHIEF
EXECUTIVE OFFICER
POWER OF ATTORNEY
Each person whose signature appears below on this Registration Statement
hereby constitutes and appoints Joaquin F. Blaya and Steven E. Dawson, and each
of them, with full power to act without the other, his true and lawful
attorney-in-fact and agent, with full power of substitution and resubstitution,
for him and in his name, place and stead, in any and all capacities (unless
revoked in writing) to sign any and all amendments (including post-effective
amendments thereto) to this Registration Statement to which this power of
attorney is attached, and to file the same, with all exhibits thereto, and other
documents in connection therewith, with the Securities and Exchange Commission,
granting to such attorneys-in-fact and agents, and each of them, full power and
authority to do and perform each and every act and thing requisite and necessary
to be done in connection therewith, as full to all intents and purposes as he
might or could do in person, hereby ratifying and confirming all that such
attorneys-in-fact and agents or any of them, or their or his substitute or
substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities indicated, on September 4, 1998.
SIGNATURE TITLE DATE
- ------------------------------ -------------------------- -------------------
Chairman of the Board and
/s/ JOAQUIN F. BLAYA Chief Executive Officer
- ------------------------------ (Principal Executive September 4, 1998
Joaquin F. Blaya Officer)
Chief Financial Officer,
/s/ STEVEN E. DAWSON Secretary and Director
- ------------------------------ (Principal Financial and September 4, 1998
Steven E. Dawson Accounting Officer)
II-10
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, the
Registrant has duly caused this Registration Statement to be signed on its
behalf by the undersigned, thereunto duly authorized, in the City of Miami,
State of Florida, on this 4th day of September, 1998.
RADIO UNICA OF MIAMI, INC.
/s/ JOAQUIN F. BLAYA
-----------------------------------------
Name: Joaquin F. Blaya
TITLE: CHAIRMAN OF THE BOARD AND CHIEF
EXECUTIVE OFFICER
POWER OF ATTORNEY
Each person whose signature appears below on this Registration Statement
hereby constitutes and appoints Joaquin F. Blaya and Steven E. Dawson, and each
of them, with full power to act without the other, his true and lawful
attorney-in-fact and agent, with full power of substitution and resubstitution,
for him and in his name, place and stead, in any and all capacities (unless
revoked in writing) to sign any and all amendments (including post-effective
amendments thereto) to this Registration Statement to which this power of
attorney is attached, and to file the same, with all exhibits thereto, and other
documents in connection therewith, with the Securities and Exchange Commission,
granting to such attorneys-in-fact and agents, and each of them, full power and
authority to do and perform each and every act and thing requisite and necessary
to be done in connection therewith, as full to all intents and purposes as he
might or could do in person, hereby ratifying and confirming all that such
attorneys-in-fact and agents or any of them, or their or his substitute or
substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities indicated, on September 4, 1998.
SIGNATURE TITLE DATE
- ------------------------------ -------------------------- -------------------
Chairman of the Board and
/s/ JOAQUIN F. BLAYA Chief Executive Officer
- ------------------------------ (Principal Executive September 4, 1998
Joaquin F. Blaya Officer)
Chief Financial Officer,
/s/ STEVEN E. DAWSON Secretary and Director
- ------------------------------ (Principal Financial and September 4, 1998
Steven E. Dawson Accounting Officer)
II-11
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, the
Registrant has duly caused this Registration Statement to be signed on its
behalf by the undersigned, thereunto duly authorized, in the City of Miami,
State of Florida, on this 4th day of September, 1998.
RADIO UNICA OF MIAMI LICENSE CORP.
/s/ JOAQUIN F. BLAYA
-----------------------------------------
Name: Joaquin F. Blaya
TITLE: CHAIRMAN OF THE BOARD AND CHIEF
EXECUTIVE OFFICER
POWER OF ATTORNEY
Each person whose signature appears below on this Registration Statement
hereby constitutes and appoints Joaquin F. Blaya and Steven E. Dawson, and each
of them, with full power to act without the other, his true and lawful
attorney-in-fact and agent, with full power of substitution and resubstitution,
for him and in his name, place and stead, in any and all capacities (unless
revoked in writing) to sign any and all amendments (including post-effective
amendments thereto) to this Registration Statement to which this power of
attorney is attached, and to file the same, with all exhibits thereto, and other
documents in connection therewith, with the Securities and Exchange Commission,
granting to such attorneys-in-fact and agents, and each of them, full power and
authority to do and perform each and every act and thing requisite and necessary
to be done in connection therewith, as full to all intents and purposes as he
might or could do in person, hereby ratifying and confirming all that such
attorneys-in-fact and agents or any of them, or their or his substitute or
substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities indicated, on September 4, 1998.
SIGNATURE TITLE DATE
- ------------------------------ -------------------------- -------------------
Chairman of the Board and
/s/ JOAQUIN F. BLAYA Chief Executive Officer
- ------------------------------ (Principal Executive September 4, 1998
Joaquin F. Blaya Officer)
Chief Financial Officer,
/s/ STEVEN E. DAWSON Secretary and Director
- ------------------------------ (Principal Financial and September 4, 1998
Steven E. Dawson Accounting Officer)
II-12
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, the
Registrant has duly caused this Registration Statement to be signed on its
behalf by the undersigned, thereunto duly authorized, in the City of Miami,
State of Florida, on this 4th day of September, 1998.
RADIO UNICA OF LOS ANGELES, INC.
/s/ JOAQUIN F. BLAYA
-----------------------------------------
Name: Joaquin F. Blaya
TITLE: CHAIRMAN OF THE BOARD AND CHIEF
EXECUTIVE OFFICER
POWER OF ATTORNEY
Each person whose signature appears below on this Registration Statement
hereby constitutes and appoints Joaquin F. Blaya and Steven E. Dawson, and each
of them, with full power to act without the other, his true and lawful
attorney-in-fact and agent, with full power of substitution and resubstitution,
for him and in his name, place and stead, in any and all capacities (unless
revoked in writing) to sign any and all amendments (including post-effective
amendments thereto) to this Registration Statement to which this power of
attorney is attached, and to file the same, with all exhibits thereto, and other
documents in connection therewith, with the Securities and Exchange Commission,
granting to such attorneys-in-fact and agents, and each of them, full power and
authority to do and perform each and every act and thing requisite and necessary
to be done in connection therewith, as full to all intents and purposes as he
might or could do in person, hereby ratifying and confirming all that such
attorneys-in-fact and agents or any of them, or their or his substitute or
substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities indicated, on September 4, 1998.
SIGNATURE TITLE DATE
- ------------------------------ --------------------------- -------------------
Chairman of the Board and
/s/ JOAQUIN F. BLAYA Chief Executive Officer
- ------------------------------ (Principal Executive September 4, 1998
Joaquin F. Blaya Officer)
Chief Financial Officer,
/s/ STEVEN E. DAWSON Secretary and Director
- ------------------------------ (Principal Financial and September 4, 1998
Steven E. Dawson Accounting Officer)
II-13
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, the
Registrant has duly caused this Registration Statement to be signed on its
behalf by the undersigned, thereunto duly authorized, in the City of Miami,
State of Florida, on this 4th day of September, 1998.
RADIO UNICA OF LOS ANGELES LICENSE CORP.
/s/ JOAQUIN F. BLAYA
-----------------------------------------
Name: Joaquin F. Blaya
TITLE: CHAIRMAN OF THE BOARD AND CHIEF
EXECUTIVE OFFICER
POWER OF ATTORNEY
Each person whose signature appears below on this Registration Statement
hereby constitutes and appoints Joaquin F. Blaya and Steven E. Dawson, and each
of them, with full power to act without the other, his true and lawful
attorney-in-fact and agent, with full power of substitution and resubstitution,
for him and in his name, place and stead, in any and all capacities (unless
revoked in writing) to sign any and all amendments (including post-effective
amendments thereto) to this Registration Statement to which this power of
attorney is attached, and to file the same, with all exhibits thereto, and other
documents in connection therewith, with the Securities and Exchange Commission,
granting to such attorneys-in-fact and agents, and each of them, full power and
authority to do and perform each and every act and thing requisite and necessary
to be done in connection therewith, as full to all intents and purposes as he
might or could do in person, hereby ratifying and confirming all that such
attorneys-in-fact and agents or any of them, or their or his substitute or
substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities indicated, on September 4, 1998.
SIGNATURE TITLE DATE
- ------------------------------ -------------------------- -------------------
Chairman of the Board and
/s/ JOAQUIN F. BLAYA Chief Executive Officer
- ------------------------------ (Principal Executive September 4, 1998
Joaquin F. Blaya Officer)
Chief Financial Officer,
/s/ STEVEN E. DAWSON Secretary and Director
- ------------------------------ (Principal Financial and September 4, 1998
Steven E. Dawson Accounting Officer)
II-14
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, the
Registrant has duly caused this Registration Statement to be signed on its
behalf by the undersigned, thereunto duly authorized, in the City of Miami,
State of Florida, on this 4th day of September, 1998.
RADIO UNICA OF SAN ANTONIO, INC.
/s/ JOAQUIN F. BLAYA
-----------------------------------------
Name: Joaquin F. Blaya
TITLE: CHAIRMAN OF THE BOARD AND CHIEF
EXECUTIVE OFFICER
POWER OF ATTORNEY
Each person whose signature appears below on this Registration Statement
hereby constitutes and appoints Joaquin F. Blaya and Steven E. Dawson, and each
of them, with full power to act without the other, his true and lawful
attorney-in-fact and agent, with full power of substitution and resubstitution,
for him and in his name, place and stead, in any and all capacities (unless
revoked in writing) to sign any and all amendments (including post-effective
amendments thereto) to this Registration Statement to which this power of
attorney is attached, and to file the same, with all exhibits thereto, and other
documents in connection therewith, with the Securities and Exchange Commission,
granting to such attorneys-in-fact and agents, and each of them, full power and
authority to do and perform each and every act and thing requisite and necessary
to be done in connection therewith, as full to all intents and purposes as he
might or could do in person, hereby ratifying and confirming all that such
attorneys-in-fact and agents or any of them, or their or his substitute or
substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities indicated, on September 4, 1998.
SIGNATURE TITLE DATE
- ------------------------------ --------------------------- -------------------
Chairman of the Board and
/s/ JOAQUIN F. BLAYA Chief Executive Officer
- ------------------------------ (Principal Executive September 4, 1998
Joaquin F. Blaya Officer)
Chief Financial Officer,
/s/ STEVEN E. DAWSON Secretary and Director
- ------------------------------ (Principal Financial and September 4, 1998
Steven E. Dawson Accounting Officer)
II-15
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, the
Registrant has duly caused this Registration Statement to be signed on its
behalf by the undersigned, thereunto duly authorized, in the City of Miami,
State of Florida, on this 4th day of September, 1998.
RADIO UNICA NETWORK, INC.
/s/ JOAQUIN F. BLAYA
-----------------------------------------
Name: Joaquin F. Blaya
TITLE: CHAIRMAN OF THE BOARD AND CHIEF
EXECUTIVE OFFICER
POWER OF ATTORNEY
Each person whose signature appears below on this Registration Statement
hereby constitutes and appoints Joaquin F. Blaya and Steven E. Dawson, and each
of them, with full power to act without the other, his true and lawful
attorney-in-fact and agent, with full power of substitution and resubstitution,
for him and in his name, place and stead, in any and all capacities (unless
revoked in writing) to sign any and all amendments (including post-effective
amendments thereto) to this Registration Statement to which this power of
attorney is attached, and to file the same, with all exhibits thereto, and other
documents in connection therewith, with the Securities and Exchange Commission,
granting to such attorneys-in-fact and agents, and each of them, full power and
authority to do and perform each and every act and thing requisite and necessary
to be done in connection therewith, as full to all intents and purposes as he
might or could do in person, hereby ratifying and confirming all that such
attorneys-in-fact and agents or any of them, or their or his substitute or
substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities indicated, on September 4, 1998.
SIGNATURE TITLE DATE
- ------------------------------ -------------------------- -------------------
Chairman of the Board and
/s/ JOAQUIN F. BLAYA Chief Executive Officer
- ------------------------------ (Principal Executive September 4, 1998
Joaquin F. Blaya Officer)
Chief Financial Officer,
/s/ STEVEN E. DAWSON Secretary and Director
- ------------------------------ (Principal Financial and September 4, 1998
Steven E. Dawson Accounting Officer)
II-16
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, the
Registrant has duly caused this Registration Statement to be signed on its
behalf by the undersigned, thereunto duly authorized, in the City of Miami,
State of Florida, on this 4th day of September, 1998.
RADIO UNICA SALES CORP.
/s/ JOAQUIN F. BLAYA
-----------------------------------------
Name: Joaquin F. Blaya
TITLE: CHAIRMAN OF THE BOARD AND CHIEF
EXECUTIVE OFFICER
POWER OF ATTORNEY
Each person whose signature appears below on this Registration Statement
hereby constitutes and appoints Joaquin F. Blaya and Steven E. Dawson, and each
of them, with full power to act without the other, his true and lawful
attorney-in-fact and agent, with full power of substitution and resubstitution,
for him and in his name, place and stead, in any and all capacities (unless
revoked in writing) to sign any and all amendments (including post-effective
amendments thereto) to this Registration Statement to which this power of
attorney is attached, and to file the same, with all exhibits thereto, and other
documents in connection therewith, with the Securities and Exchange Commission,
granting to such attorneys-in-fact and agents, and each of them, full power and
authority to do and perform each and every act and thing requisite and necessary
to be done in connection therewith, as full to all intents and purposes as he
might or could do in person, hereby ratifying and confirming all that such
attorneys-in-fact and agents or any of them, or their or his substitute or
substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities indicated, on September 4, 1998.
SIGNATURE TITLE DATE
- ------------------------------ --------------------------- -------------------
Chairman of the Board and
/s/ JOAQUIN F. BLAYA Chief Executive Officer
- ------------------------------ (Principal Executive September 4, 1998
Joaquin F. Blaya Officer)
Chief Financial Officer,
/s/ STEVEN E. DAWSON Secretary and Director
- ------------------------------ (Principal Financial and September 4, 1998
Steven E. Dawson Accounting Officer)
II-17
<PAGE>
EXHIBIT INDEX
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION
- ----------- -------------------------------------------------------------------------------------------------------
<C> <S>
3.1** Certificate of Incorporation of the Company.
3.2 Bylaws of the Company.
3.3 Certificate of Incorporation of Radio Unica of San Francisco, Inc.
3.4 Bylaws of Radio Unica of San Francisco, Inc.
3.5 Certificate of Incorporation of Oro Spanish Broadcasting, Inc.
3.6 Bylaws of Oro Spanish Broadcasting, Inc.
3.7 Certificate of Incorporation of Radio Unica of San Francisco License Corp.
3.8 Bylaws of Radio Unica of San Francisco License Corp.
3.9 Certificate of Incorporation of Radio Unica of Miami, Inc.
3.10 Bylaws of Radio Unica of Miami, Inc.
3.11 Certificate of Incorporation of Radio Unica of Miami License Corp.
3.12 Bylaws of Radio Unica of Miami License Corp.
3.13 Certificate of Incorporation of Radio Unica of Los Angeles, Inc.
3.14 Bylaws of Radio Unica of Los Angeles, Inc.
3.15 Certificate of Incorporation of Radio Unica of Los Angeles License Corp.
3.16 Bylaws of Radio Unica of Los Angeles License Corp.
3.17 Certificate of Incorporation of Radio Unica of San Antonio, Inc.
3.18 Bylaws of Radio Unica of San Antonio, Inc.
3.19 Certificate of Incorporation of Radio Unica Network, Inc.
3.20 Bylaws of Radio Unica Network, Inc.
3.21 Certificate of Incorporation of Radio Unica Sales Corp.
3.22 Bylaws of Radio Unica Sales Corp.
4.1** Purchase Agreement, dated July 22, 1998, among the Company, each of the Company's subsidiaries set
forth therein, CIBC Oppenheimer Corp. and Bear, Stearns & Co. Inc.
4.2** Indenture dated as of July 27, 1998 between the Company and Wilmington Trust Company, as Trustee.
4.3** Form of New Note (included as Exhibit A to Exhibit 4.2).
4.4** Form of Guarantee (included as Exhibit G to Exhibit 4.2).
4.5 Registration Rights Agreement, dated as of July 22, 1998, between the Company and CIBC Oppenheimer
Corp. and Bear, Stearns & Co. Inc.
5.1* Opinion of Skadden, Arps, Slate, Meagher & Flom LLP.
10.1* Credit Agreement, dated as of July 8, 1998 among the Company, Holdings, the several banks and other
financial institutions from time to time parties thereto and Canadian Imperial Bank of Commerce, in its
individual capacity and as Agent ("CIBC").
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION
- ----------- -------------------------------------------------------------------------------------------------------
<C> <S>
10.2* Form of Guarantee under the Credit Agreement, each dated as of July 8, 1998, by each of the following
subsidiaries of the Company: Radio Unica of San Francisco, Inc., Oro Spanish Broadcasting, Inc., Radio
Unica of San Francisco License Corp., Radio Unica of Miami, Inc., Radio Unica of Miami License Corp.,
Radio Unica of Los Angeles, Inc., Radio Unica of Los Angeles License Corp., Radio Unica of San Antonio,
Inc., Radio Unica Network, Inc. and Radio Unica Sales Corp. in favor of CIBC (included as Exhibit E to
Exhibit 10.1).
10.3* Form of Pledge Agreement, each dated as of July 8, 1998, between CIBC and each of Radio Unica of San
Francisco, Inc., Radio Unica of Miami, Radio Unica of Los Angeles, Inc., Oro Spanish Broadcasting,
Inc., Holdings and the Company (included as Exhibits A, C and F to Exhibit 10.1).
10.4* Form of Security Agreement, each dated as of July 8, 1998, between CIBC and each of the following
subsidiaries of the Company: Radio Unica of San Francisco, Inc., Oro Spanish Broadcasting, Inc., Radio
Unica of San Francisco License Corp., Radio Unica of Miami, Inc., Radio Unica of Miami License Corp.,
Radio Unica of Los Ageles, Inc., Radio Unica of Los Angeles License Corp., Radio Unica of San Antonio,
Inc., Radio Unica Network, Inc., and Radio Unica Sales Corp Holdings and the Company (included as
Exhibits B, D and G to Exhibit 10.1).
10.5 Contribution Agreement, dated as of July 8, 1998, among certain of the Company's subsidiaries, Holdings
and CIBC.
10.6 Intellectual Property Security Agreement, dated as of July 8, 1998, between the Company and CIBC.
10.7** Securities Purchase Agreement, dated as of August 11, 1997, by and among the Company, Warburg, Pincus
Ventures, L.P. and the other investors named therein.
10.8** Supplement to Securities Purchase Agreement, dated as of June, 1998, among the Company, Holdings,
Warburg, Pincus Ventures, L.P. and the other investors named therein.
10.9** Stockholders' Agreement, dated as of June 30, 1998, by and among Holdings, Warburg, Pincus Ventures,
L.P., Joaquin Blaya, Herbert Levin and the other persons listed therein.
10.10 Time Brokerage Agreement, dated as of October 31, 1997, by and between the Company and Lotus Oxnard
Corp. relating to KVCA(AM).
10.11 Time Brokerage Agreement, dated as of October 31, 1997, by and between the Company and Texas Lotus
Corp. relating to KZDC(AM).
10.12 Time Brokerage Agreement, dated as of June 9, 1998, by and between Achievement Radio Holdings, Inc. and
the Company relating to WYPA(AM).
10.13* Time Brokerage Agreement, dated as of April 27, 1998, by and between The Freedom Network, Inc. and the
Company relating to KDFT(AM).
10.14 Asset Purchase Agreement, dated as of January 26, 1998, by and among the Company, One-On-One Sports
License of Florida, L.L.C. and One-On-One Sports Radio of Florida, L.L.C.
10.15 Stock Purchase Agreement, dated as of February 20, 1998, by and among the Company, Oro Spanish
Broadcasting, Inc. and Rene De La Rosa.
10.16 Asset Purchase Agreement, dated as of May 20, 1998, by and among the Company, Sinclair Radio of Los
Angeles, Inc. and Sinclair Radio of Los Angeles Licensee, Inc.
10.17 Form of Non Competition and Confidentiality Agreement between each of Joaquin F. Blaya, Herbert M.
Levin and Steven E. Dawson, dated August 13, 1997.
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION
- ----------- -------------------------------------------------------------------------------------------------------
<C> <S>
10.18 Agreement, dated as of November 19, 1997, entered into by and between The Miami Herald Publishing
Company and the Company.
10.19 Agreement, dated as of January 15, 1998, entered into by and between Radio Unica Corp. and Jorge Ramos.
10.20 Amended and Restated Artist Agreement, dated as of June 5, 1998, entered into by and between Radio
Unica Network, Inc. and Raque Productions (for services of Pedro Sevcec).
10.21* Independent Contractor Agreement dated as of June 30, 1998 between Radio Unica Network, Inc. and Dra
Isabel, Inc. (for services of Isabel Gomez Bassols)
10.22 1998 Stock Option Plan of Holdings
10.23 Lease, dated October 21, 1997, between Port of Oakland and Oro Spanish Broadcasting, Inc. (for real
property located in City of Oakland, County of Alameda).
10.24 Lease, dated April 20, 1983, by and between May L. Rotolante and Radio WCMQ, Inc., as assigned to Radio
Unica of Miami, Inc. (for real property in Dade County, Florida).
10.25* Lease, as amended, dated September 19, 1997, by and between KOALA Miami Realty Holding Co., Inc. and
Radio Unica Corp. (for office space located in Dade County, Florida).
10.26* Amendment to Time Brokerage Agreement, dated as of May 20, 1998, by and between The Freedom Network,
Inc. and the Company relating to KDFT(AM).
10.27* Local Programming and Marketing Agreement, dated as of June 1, 1998, by and between Children's Radio of
New York, Inc. and the Company relating to WBAH(AM).
10.28* Stock Purchase Agreement, dated as of June 10, 1998, by and among the Company, Blaya, Inc. and Joaquin
F. Blaya.
10.29* Option Agreement, dated as of October 31, 1997, by and between Lotus Oxnard Corp. and the Company.
10.30* Option Agreement, dated as of October 31, 1998, by and between Texas Lotus Corp. and the Company.
10.31* Option Agreement, dated as of June 9, 1998, by and between Personal Achievement Radio of Illinois, Inc.
and the Company.
21.1** Subsidiaries of the Company.
23.1** Consent of Ernst & Young LLP.
23.2** Consent of Miller, Kaplan, Arase & Co., LLP.
23.3* Consent of Skadden, Arps, Slate, Meagher & Flom LLP (included in exhibit 5.1).
24.1** Power of Attorney (included on signature pages).
25.1** Statement of Eligibility under the Trust Indenture Act of 1939 on Form T-1 of Wilmington Trust Company.
27.1** Financial Data Schedule.
27.2** Financial Data Schedule.
99.1* Form of Letter of Transmittal.
99.2* Form of Notice of Guaranteed Delivery.
</TABLE>
- ------------------------
* To be filed by amendment.
** Previously filed.
<PAGE>
Exhibit 3.2
BY-LAWS
OF
RADIO UNICA CORP.
(A Delaware Corporation)
ARTICLE I
STOCKHOLDERS
1. CERTIFICATES REPRESENTING STOCK.
(a) Every holder of stock in the Corporation shall be entitled to have
a certificate signed by, or in the name of, the Corporation by the Chairman or
Vice-Chairman of the Board of Directors, if any, or by the President or a
Vice-President and by the Treasurer or an Assistant Treasurer or the Secretary
or an Assistant Secretary of the Corporation representing the number of shares
owned by such person in the Corporation. If such certificate is countersigned by
a transfer agent other than the Corporation or its employee or by a registrar
other than the Corporation or its employee, any other signature on the
certificate may be a facsimile. In case any officer, transfer agent, or
registrar who has signed or whose facsimile signature has been placed upon a
certificate shall have ceased to be such officer, transfer agent or registrar
before such certificate is issued, it may be issued by the Corporation with the
same effect as if such person were such officer, transfer agent or registrar at
the date of issue.
(b) Whenever the Corporation shall be authorized to issue more than one
class of stock or more than one series of any class of stock, and whenever the
Corporation shall issue any shares of its stock as partly paid stock, the
certificates representing shares of any such class or series or of any such
partly paid stock shall set forth thereon the statements prescribed by the
General Corporation Law. Any restrictions on the transfer or registration of
transfer of any shares of stock of any class or series shall be noted
conspicuously on the certificate representing such shares.
<PAGE>
(c) The Corporation may issue a new certificate of stock in place of
any certificate theretofore issued by it, alleged to have been lost, stolen or
destroyed, and the Board of Directors may require the owner of any lost, stolen
or destroyed certificate, or such person's legal representative, to give the
Corporation a bond sufficient to indemnify the Corporation against any claim
that may be made against it on account of the alleged loss, theft or destruction
of any such certificate or the issuance of any such new certificate.
2. FRACTIONAL SHARE INTERESTS.
The Corporation may, but shall not be required to, issue fractions of a
share.
3. STOCK TRANSFERS.
Upon compliance with provisions restricting the transfer or
registration of transfer of shares of stock, if any, transfers or registration
of transfer of shares of stock of the Corporation shall be made only on the
stock ledger of the Corporation by the registered holder thereof, or by such
person's attorney thereunto authorized by power of attorney duly executed and
filed with the Secretary of the Corporation or with a transfer agent or a
registrar, if any, and on surrender of the certificate or certificates for such
shares of stock properly endorsed and the payment of all taxes due thereon.
4. RECORD DATE FOR STOCKHOLDERS.
(a) In order that the Corporation may determine the stockholders
entitled to notice of or to vote at any meeting of stockholders or any
adjournment thereof, the Board of Directors may fix a record date, which record
date shall not precede the date upon which the resolution fixing the record date
is adopted by the Board of Directors, and which record date shall not be more
than sixty nor less than ten days before the date of such meeting. If no record
date has been fixed by the Board of Directors, the record date for determining
stockholders entitled to notice of or to vote at a meeting of stockholders shall
be at the close of business on the day next preceding the day on which notice
is given, or, if notice is waived, at the close of business on the day next
preceding the day on which the meeting is held. A determination of stockholders
of record entitled to notice of or to vote at a meeting of stockholders shall
apply to any adjournment of the meeting; provided, however, that the Board of
Directors may fix a new record date for the adjourned meeting.
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(b) In order that the Corporation may determine the stockholders
entitled to receive payment of any dividend or other distribution or allotment
of any rights or the stockholders entitled to exercise any rights in respect of
any change, conversion or exchange of stock, or for the purpose of any other
lawful action, the Board of Directors may fix a record date, which record date
shall not precede the date upon which the resolution fixing the record date is
adopted, and which record date shall be not more than sixty days prior to such
action. If no record date has been fixed, the record date for determining
stockholders for any such purpose shall be at the close of business on the day
on which the Board of Directors adopts the resolution relating thereto.
5. MEANING OF CERTAIN TERMS.
As used herein in respect of the right to notice of a meeting of
stockholders or a waiver thereof or to participate or vote thereat or to consent
or dissent in writing in lieu of a meeting, as the case may be, the term "share"
or "shares" or "share of stock" or "shares of stock" or "stockholder" or
"stockholders" refers to an outstanding share or shares of stock and to a holder
or holders of record of outstanding shares of stock when the Corporation is
authorized to issue only one class of shares of stock, and said reference is
also intended to include any outstanding share or shares of stock and any holder
or holders of record of outstanding shares of stock of any class upon which or
upon whom the Certificate of Incorporation confers such rights where there are
two or more classes or series of shares of stock or upon which or upon whom the
General Corporation Law confers such rights notwithstanding that the Certificate
of Incorporation may provide for more than one class or series of shares of
stock, one or more of which are limited or denied such rights thereunder;
provided, however, that no such right shall vest in the event of an increase or
a decrease in the authorized number of shares of stock of any class or series
which is otherwise denied voting rights under the provisions of the Certificate
of Incorporation, including any preferred stock which is denied voting rights
under the provisions of the resolution or resolutions adopted by the Board of
Directors with respect to the issuance thereof.
6. STOCKHOLDER MEETINGS.
(a) TIME. The annual meeting shall be held on the date and at the time
fixed, from time to time, by the Board of Directors. A special meeting shall be
held on the date and at the time fixed by the Board of Directors.
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(b) PLACE. Annual meetings and special meetings shall be held at such
place, within or without the State of Delaware, as the Board of Directors may,
from time to time, fix. Whenever the Board of Directors shall fail to fix such
place, the meeting shall be held at the registered office of the Corporation in
the State of Delaware.
(c) CALL. Annual meetings and special meetings may be called by the
Board of Directors or by any officer instructed by the Board of Directors to
call the meeting.
(d) NOTICE OR WAIVER OF NOTICE. Written notice of all meetings shall be
given, stating the place, date and hour of the meeting. The notice of an annual
meeting shall state that the meeting is called for the election of Directors and
for the transaction of other business which may properly come before the
meeting, and shall (if any other action which could be taken at a special
meeting is to be taken at such annual meeting), state such other action or
actions as are known at the time of such notice. The notice of a special meeting
shall in all instances state the purpose or purposes for which the meeting is
called. If any action is proposed to be taken which would, if taken, entitle
stockholders to receive payment for their shares of stock, the notice shall
include a statement of that purpose and to that effect. Except as otherwise
provided by the General Corporation Law, a copy of the notice of any meeting
shall be given, personally or by mail, not less than ten days nor more than
sixty days before the date of the meeting, unless the lapse of the prescribed
period of time shall have been waived, and directed to each stockholder at such
person's address as it appears on the records of the Corporation. Notice by mail
shall be deemed to be given when deposited, with postage thereon prepaid, in the
United States mail. If a meeting is adjourned to another time, not more than
thirty days hence, and/or to another place, and if an announcement of the
adjourned time and place is made at the meeting, it shall not be necessary to
give notice of the adjourned meeting unless the Board of Directors, after
adjournment, fixes a new record date for the adjourned meeting. Notice need not
be given to any stockholder who submits a written waiver of notice before or
after the time stated therein. Attendance of a person at a meeting of
stockholders shall constitute a waiver of notice of such meeting, except when
the stockholder attends a meeting for the express purpose of objecting, at the
beginning of the meeting, to the transaction of any business because the meeting
is not lawfully called or convened. Neither the business to be transacted, nor
the purpose of, any regular or special meeting of the stockholders need be
specified in any written waiver of notice.
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(e) STOCKHOLDER LIST. There shall be prepared and made, at least ten
days before every meeting of stockholders, a complete list of the stockholders,
arranged in alphabetical order, and showing the address of each stockholder and
the number of shares registered in the name of each stockholder. Such list shall
be open to the examination of any stockholder, for any purpose germane to the
meeting, during ordinary business hours, for a period of at least ten days prior
to the meeting either at a place within the city where the meeting is to be
held, which place shall be specified in the notice of the meeting, or if not so
specified, at the place where the meeting is to be held. The list shall also be
produced and kept at the time and place of the meeting during the whole time
thereof, and may be inspected by any stockholder who is present. The stock
ledger shall be the only evidence as to who are the stockholders entitled to
examine the stock ledger, the list required by this section or the books of the
Corporation, or to vote at any meeting of stockholders.
(f) CONDUCT OF MEETING. Meetings of the stockholders shall be presided
over by one of the following officers in the order of seniority and if present
and acting: the Chairman of the Board, if any, the Vice-Chairman of the Board,
if any, the President, a Vice President, a chairman for the meeting chosen by
the Board of Directors or, if none of the foregoing is in office and present and
acting, by a chairman to be chosen by the stockholders. The Secretary of the
Corporation or, in such person's absence, an Assistant Secretary, shall act as
secretary of every meeting, but if neither the Secretary nor an Assistant
Secretary is present the chairman for the meeting shall appoint a secretary of
the meeting.
(g) PROXY REPRESENTATION. Every stockholder may authorize another
person or persons to act for such stockholder by proxy in all matters in which a
stockholder is entitled to participate, whether by waiving notice of any
meeting, voting or participating at a meeting, or expressing consent or dissent
without a meeting. Every proxy must be signed by the stockholder or by such
person's attorney-in-fact. No proxy shall be voted or acted upon after three
years from its date unless such proxy provides for a longer period. A duly
executed proxy shall be irrevocable if it states that it is irrevocable and, if,
and only as long as, it is coupled with an interest sufficient in law to support
an irrevocable power. A proxy may be made irrevocable regardless of whether the
interest with which it is coupled is an interest in the stock itself or an
interest in the Corporation generally.
(h) INSPECTORS AND JUDGES. The Board of Directors, in advance of any
meeting, may, but need not, appoint one or more inspectors of election or judges
of the vote, as the case may be, to act at the meeting or any adjournment
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thereof. If an inspector or inspectors or judge or judges are not appointed by
the Board of Directors, the person presiding at the meeting may, but need not,
appoint one or more inspectors or judges. In case any person who may be
appointed as an inspector or judge fails to appear or act, the vacancy may be
filled by appointment made by the person presiding thereat. Each inspector or
judge, if any, before entering upon the discharge of such person's duties, shall
take and sign an oath faithfully to execute the duties of inspector or judge at
such meeting with strict impartiality and according to the best of his ability.
The inspectors or judges, if any, shall determine the number of shares of stock
outstanding and the voting power of each, the shares of stock represented at the
meeting, the existence of a quorum and the validity and effect of proxies,
receive votes, ballots or consents, hear and determine all challenges and
questions arising in connection with the right to vote, count and tabulate all
votes, ballots or consents, determine the result, and do such other acts as are
proper to conduct the election or vote with fairness to all stockholders. On
request of the person presiding at the meeting, the inspector or inspectors or
judge or judges, if any, shall make a report in writing of any challenge,
question or matter determined by such person or persons and execute a
certificate of any fact so found.
(i) QUORUM. Except as the General Corporation Law or these By-Laws may
otherwise provide, the holders of a majority of the outstanding shares of stock
entitled to vote shall constitute a quorum at a meeting of stockholders for the
transaction of any business. The stockholders present may adjourn the meeting
despite the absence of a quorum. When a quorum is once present to organize a
meeting, it is not broken by the subsequent withdrawal of any shareholders.
(j) VOTING. Each stockholder entitled to vote in accordance with the
terms of the Certificate of Incorporation and of these By-Laws, or, with respect
to the issuance of preferred stock, in accordance with the terms of a resolution
or resolutions of the Board of Directors, shall be entitled to one vote, in
person or by proxy, for each share of stock entitled to vote held by such
stockholder. In the election of Directors, a plurality of the votes present at
the meeting shall elect. Any other action shall be authorized by a majority of
the votes cast except where the Certificate of Incorporation or the General
Corporation Law prescribes a different percentage of votes and/or a different
exercise of voting power.
Voting by ballot shall not be required for corporate action except as
otherwise provided by the General Corporation Law.
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7. STOCKHOLDER ACTION WITHOUT MEETINGS.
Any action required to be taken, or any action which may be taken, at
any annual or special meeting of stockholders, may be taken without a meeting,
without prior notice and without a vote, if a consent or consents in writing,
setting forth the action so taken, shall be signed by the holders of the
outstanding stock having not less than the minimum number of votes that would be
necessary to authorize or take such action at a meeting at which all shares
entitled to vote thereon were present and voted. Prompt notice of the taking of
the corporate action without a meeting by less than unanimous written consent
shall be given to those stockholders who have not consented in writing and shall
be delivered to the Corporation by delivery to its registered office in
Delaware, its principal place of business or an officer or agent of the
Corporation having custody of the book in which proceedings of meetings of
stockholders are recorded. Delivery made to the Corporation's registered office
shall be by hand or by certified or registered mail, return receipt requested.
ARTICLE II
DIRECTORS
1. FUNCTIONS AND DEFINITION.
The business and affairs of the Corporation shall be managed
by or under the direction of the Board of Directors of the Corporation. The use
of the phrase "whole Board" herein refers to the total number of Directors which
the Corporation would have if there were no vacancies.
2. QUALIFICATIONS AND NUMBER.
A Director need not be a stockholder, a citizen of the United
States, or a resident of the State of Delaware. The initial Board of Directors
shall consist of three persons. Thereafter the number of Directors constituting
the whole board shall be at least one. Subject to the foregoing limitation and
except for the first Board of Directors, such number may be fixed from time to
time by action of the stockholders or of the Board of Directors, or, if the
number is not fixed, the number shall be three. The number of Directors may be
increased or decreased by action of the stockholders or of the Board of
Directors.
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3. ELECTION AND TERM.
The first Board of Directors, unless the members thereof shall
have been named in the Certificate of Incorporation, shall be elected by the
incorporator or incorporators and shall hold office until the first annual
meeting of stockholders and until their successors have been elected and
qualified or until their earlier resignation or removal. Any Director may resign
at any time upon written notice to the Corporation. Thereafter, Directors who
are elected at an annual meeting of stockholders, and Directors who are elected
in the interim to fill vacancies and newly created Directorships, shall hold
office until the next annual meeting of stockholders and until their successors
have been elected and qualified or until their earlier resignation or removal.
In the interim between annual meetings of stockholders or of special meetings of
stockholders called for the election of Directors and/or for the removal of one
or more Directors and for the filling of any vacancies in the Board of
Directors, including vacancies resulting from the removal of Directors for
cause or without cause, any vacancy in the Board of Directors may be filled by
the vote of a majority of the remaining Directors then in office, although less
than a quorum, or by the sole remaining Director.
4. MEETINGS.
(a) TIME. Regular meetings shall be held at such time as the Board
shall fix. Special meetings may be called upon notice.
(b) FIRST MEETING. The first meeting of each newly elected Board may be
held immediately after each annual meeting of the stockholders at the same place
at which the meeting is held, and no notice of such meeting shall be necessary
to call the meeting, provided a quorum shall be present. In the event such first
meeting is not so held immediately after the annual meeting of the stockholders,
it may be held at such time and place as shall be specified in the notice given
as provided for special meetings of the Board of Directors, or at such time and
place as shall be fixed by the consent in writing of all of the Directors.
(c) PLACE. Meetings, both regular and special, shall be held at such
place within or without the State of Delaware as shall be fixed by the Board.
(d) CALL. No call shall be required for regular meetings for which the
time and place have been fixed. Special meetings may be called by or at the
direction
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of the Chairman of the Board, if any, the Vice-Chairman of the Board, if any, or
the President, or of a majority of the Directors.
(e) NOTICE OR ACTUAL OR CONSTRUCTIVE WAIVER. No notice shall be
required for regular meetings for which the time and place have been fixed.
Written, oral or any other mode of notice of the time and place shall be given
for special meetings at least twenty-four hours prior to the meeting; notice may
be given by telephone of telefax (in which case it is effective when given) or
by mail (in which case it is effective seventy-two hours after mailing by
prepaid first class mail). The notice of any meeting need not specify the
purpose of the meeting. Any requirement of furnishing a notice shall be waived
by any Director who signs a written waiver of such notice before or after the
time stated therein. Attendance of a Director at a meeting of the Board shall
constitute a waiver of notice of such meeting, except when the Director attends
a meeting for the express purpose of objecting, at the beginning of the meeting,
to the transaction of any business because the meeting is not lawfully called or
convened.
(f) QUORUM AND ACTION. A majority of the whole Board shall constitute a
quorum except when a vacancy or vacancies prevents such majority, whereupon a
majority of the Directors in office shall constitute a quorum, provided that
such majority shall constitute at least one-third (1/3) of the whole Board. Any
Director may participate in a meeting of the Board by means of a conference
telephone or similar communications equipment by means of which all Directors
participating in the meeting can hear each other, and such participation in a
meeting of the Board shall constitute presence in person at such meeting. A
majority of the Directors present, whether or not a quorum is present, may
adjourn a meeting to another time and place. Except as herein otherwise
provided, and except as otherwise provided by the General Corporation Law, the
act of the Board shall be the act by vote of a majority of the Directors present
at a meeting, a quorum being present. The quorum and voting provisions herein
stated shall not be construed as conflicting with any provisions of the General
Corporation Law and these By-Laws which govern a meeting of Directors held to
fill vacancies and newly created Directorships in the Board.
(g) CHAIRMAN OF THE MEETING. The Chairman of the Board, if any and if
present and acting, shall preside at all meetings. Otherwise, the Vice-Chairman
of the Board, if any and if present and acting, or the President, if present and
acting, or any other Director chosen by the Board, shall preside.
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5. REMOVAL OF DIRECTORS.
Any or all of the Directors may be removed for cause or
without cause by the stockholders.
6. COMMITTEES.
The Board of Directors may, by resolution passed by a majority
of the whole Board, designate one or more committees, each committee to consist
of one or more of the Directors of the Corporation. The Board may designate one
or more Directors as alternate members of any committee, who may replace any
absent or disqualified member at any meeting of the committee. Any such
committee, to the extent provided in the resolution of the Board, shall have and
may exercise the powers of the Board of Directors in the management of the
business and affairs of the Corporation, and may authorize the seal of the
Corporation to be affixed to all papers which may require it. In the absence or
disqualification of any member of any such committee or committees, the members
thereof present at any meeting and not disqualified from voting, whether or not
they constitute a quorum, may unanimously appoint another member of the Board of
Directors to act at the meeting in the place of any such absent or disqualified
member.
7. ACTION IN WRITING.
Any action required or permitted to be taken at any meeting of
the Board of Directors or any committee thereof may be taken without a meeting
if all members of the Board or committee, as the case may be, consent thereto in
writing, and the writing or writings are filed with the minutes of proceedings
of the Board or committee.
ARTICLE III
OFFICERS
1. EXECUTIVE OFFICERS.
The Board of Directors may elect or appoint a Chairman of the
Board of Directors, a President, one or more Vice Presidents (which may be
denominated with additional descriptive titles), a Secretary, one or more
Assistant Secretaries, a
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Treasurer, one or more Assistant Treasurers and such other officers as it may
determine. Any number of offices may be held by the same person.
2. TERM OF OFFICE: REMOVAL.
Unless otherwise provided in the resolution of election or
appointment, each officer shall hold office until the meeting of the Board of
Directors following the next annual meeting of stockholders and until such
officer's successor has been elected and qualified or until the earlier
resignation or removal of such officer. The Board of Directors may remove any
officer for cause or without cause.
3. AUTHORITY AND DUTIES.
All officers, as between themselves and the Corporation, shall
have such authority and perform such duties in the management of the Corporation
as may be provided in these By-Laws, or, to the extent not so provided, by the
Board of Directors.
4. THE CHAIRMAN OF THE BOARD OF DIRECTORS.
The Chairman of the Board of Directors, if present and acting,
shall preside at all meetings of the Board of Directors, otherwise, the
President, if present, shall preside, or if the President does not so preside,
any other Director chosen by the Board shall preside.
5. THE PRESIDENT.
The President shall be the chief operating officer of the
Corporation.
6. VICE PRESIDENTS.
Any Vice President that may have been appointed, in the
absence or disability of the President, shall perform the duties and exercise
the powers of the President, in the order of their seniority, and shall perform
such other duties as the Board of Directors shall prescribe.
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7. THE SECRETARY.
The Secretary shall keep in safe custody the seal of the
Corporation and affix it to any instrument when authorized by the Board of
Directors, and shall perform such other duties as may be prescribed by the Board
of Directors. The Secretary (or in such officer's absence, an Assistant
Secretary, but if neither is present another person selected by the Chairman for
the meeting) shall have the duty to record the proceedings of the meetings of
the stockholders and Directors in a book to be kept for that purpose.
8. THE TREASURER.
The Treasurer shall have the care and custody of the corporate
funds, and other valuable effects, including securities, and shall keep full and
accurate accounts of receipts and disbursements in books belonging to the
Corporation and shall deposit all moneys and other valuable effects in the name
and to the credit of the Corporation in such depositories as may be designated
by the Board of Directors. The Treasurer shall disburse the funds of the
Corporation as may be ordered by the Board, taking proper vouchers for such
disbursements, and shall render to the President and Directors, at the regular
meetings of the Board, or whenever they may require it, an account of all
transactions as Treasurer and of the financial condition of the Corporation. If
required by the Board of Directors, the Treasurer shall give the Corporation a
bond for such term, in such sum and with such surety or sureties as shall be
satisfactory to the Board for the faithful performance of the duties of such
office and for the restoration to the Corporation, in case of such person's
death, resignation, retirement or removal from office, of all books, papers,
vouchers, money and other property of whatever kind in such person's possession
or under such person's control belonging to the Corporation.
ARTICLE IV
CORPORATE SEAL
AND
CORPORATE BOOKS
The corporate seal shall be in such form as the Board of
Directors shall prescribe. The books of the Corporation may be kept within or
without the
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State of Delaware, at such place or places as the Board of directors may, from
time to time, determine.
ARTICLE V
FISCAL YEAR
The fiscal year of the Corporation shall be fixed, and shall
be subject to change, by the Board of Directors.
ARTICLE VI
INDEMNITY
(a) Any person who was or is a party or threatened to be made a party
to any threatened, pending or completed action, suit or proceeding, whether
civil, criminal, administrative or investigative (other than an action by or in
the right of the Corporation) by reason of the fact that he or she is or was a
Director, officer, employee or agent of the Corporation or is or was serving at
the request of the Corporation as director, officer, employee or agent of
another corporation, partnership, joint venture, trust or other enterprise
(including employee benefit plans) (hereinafter an "indemnitee"), shall be
indemnified and held harmless by the Corporation to the fullest extent
authorized by the General Corporation Law, as the same exists or may hereafter
be amended (but, in the case of any such amendment, only to the extent that such
amendment permits the Corporation to provide broader indemnification than
permitted prior thereto), against expenses (including attorneys' fees),
judgments, fines and amounts paid in settlement actually and reasonably incurred
by such indemnitee in connection with such action, suit or proceeding, if the
indemnitee acted in good faith and in a manner he or she reasonably believed to
be in or not opposed to the best interests of the Corporation, and with respect
to any criminal action or proceeding, had no reasonable cause to believe such
conduct was unlawful. The termination of the proceeding, whether by judgment,
order, settlement, conviction or upon a plea of nolo contendere or its
equivalent, shall not, of itself, create a presumption that the person did not
act in good faith and in a manner which he or she reasonably believed to be in
or not opposed to the best interests of the Corporation and, with respect to any
criminal action or proceeding, had reasonable cause to believe such conduct was
unlawful.
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(b) Any person who was or is a party or is threatened to be made a
party to any threatened, pending or completed action or suit by or in the right
of the Corporation to procure a judgment in its favor by reason of the fact that
he or she is or was a Director, officer, employee or agent of the Corporation,
or is or was serving at the request of the Corporation as a director, officer,
employee or agent of another Corporation, partnership, joint venture, trust or
other enterprise (including employee benefit plans) shall be indemnified and
held harmless by the Corporation to the fullest extent authorized by the General
Corporation Law, as the same exists or may hereafter be amended (but, in the
case of any such amendment, only to the extent that such amendment permits the
Corporation to provide broader indemnification than permitted prior thereto),
against expenses (including attorneys' fees) actually and reasonably incurred by
him or her in connection with the defense or settlement of such action or suit
if he or she acted in good faith and in a manner he or she reasonably believed
to be in or not opposed to the best interests of the Corporation and except that
no indemnification shall be made in respect of any claim, issue or matter as to
which such person shall have been adjudged to be liable to the Corporation
unless and only to the extent that the Court in which such suit or action was
brought, shall determine, upon application, that, despite the adjudication of
liability but in view of all the circumstances of the case, such person is
fairly and reasonably entitled to indemnity for such expenses which such court
shall deem proper.
(c) All reasonable expenses incurred by or on behalf of the indemnitee
in connection with any suit, action or proceeding, may be advanced to the
indemnitee by the Corporation.
(d) The rights to indemnification and to advancement of expenses
conferred in this article shall not be exclusive of any other right which any
person may have or hereafter acquire under any statute, the Certificate of
Incorporation, a By-Law of the Corporation, agreement, vote of stockholders or
disinterested Directors or otherwise.
(e) The indemnification and advancement of expenses provided by this
article shall continue as to a person who has ceased to be a Director, officer,
employee or agent and shall inure to the benefit of the heirs, executors and
administrators of such person.
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Exhibit 3.3
CERTIFICATE OF INCORPORATION
OF
RADIO UNICA OF SAN FRANCISCO, INC.
FIRST: The name of the Corporation is Radio Unica of San
Francisco, Inc. (hereinafter the "Corporation").
SECOND: The address of the registered office of the
Corporation in the State of Delaware is 1209 Orange Street, in the City of
Wilmington, County of New Castle. The name of its registered agent at that
address is The Corporation Trust Company.
THIRD: The purpose of the Corporation is to engage in any
lawful act or activity for which a corporation may be organized under the
General Corporation Law of the State of Delaware as set forth in Title 8 of the
Delaware Code (the "GCL").
FOURTH: The total number of shares of stock which the
Corporation shall have authority to issue is one thousand (1000) shares of
Common Stock, each having a par value of one penny ($.01).
FIFTH: The name and mailing address of the Sole Incorporator
is as follows:
Lynn T. Buckley
P.O. Box 636
Wilmington, DE 19899
SIXTH: The following provisions are inserted for the
management of the business and the conduct of the affairs of the Corporation,
and for further definition, limitation and regulation of the powers of the
Corporation and of its directors and stockholders:
(1) The business and affairs of the Corporation shall be
managed by or under the direction of the Board of Directors.
<PAGE>
(2) The directors shall have concurrent power with the
stockholders to make, alter, amend, change, add to or repeal the
By-Laws of the Corporation.
(3) The number of directors of the Corporation shall be as
from time to time fixed by, or in the manner provided in, the By-Laws
of the Corporation. Election of directors need not be by written ballot
unless the By-Laws so provide.
(4) No director shall be personally liable to the Corporation
or any of its stockholders for monetary damages for breach of fiduciary
duty as a director, except for liability (i) for any breach of the
director's duty of loyalty to the Corporation or its stockholders, (ii)
for acts or omissions not in good faith or which involve intentional
misconduct or a knowing violation of law, (iii) pursuant to Section 174
of the GCL or (iv) for any transaction from which the director derived
an improper personal benefit. Any repeal or modification of this
Article SIXTH by the stockholders of the Corporation shall not
adversely affect any right or protection of a director of the
Corporation existing at the time of such repeal or modification with
respect to acts or omissions occurring prior to such repeal or
modification.
(5) In addition to the powers and authority hereinbefore or by
statute expressly conferred upon them, the directors are hereby
empowered to exercise all such powers and do all such acts and things
as may be exercised or done by the Corporation, subject, nevertheless,
to the provisions of the GCL, this Certificate of Incorporation, and
any By-Laws adopted by the stockholders; provided, however, that no
By-Laws hereafter adopted by the stockholders shall invalidate any
prior act of the directors which would have been valid if such By-Laws
had not been adopted.
SEVENTH: Meetings of stockholders may be held within or
without the State of Delaware, as the By-Laws may provide. The books of the
Corporation may be kept (subject to any provision contained in the GCL) outside
the State of Delaware at such place or places as may be designated from time to
time by the Board of Directors or in the By-Laws of the Corporation.
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EIGHTH: The Corporation reserves the right to amend, alter,
change or repeal any provision contained in this Certificate of Incorporation,
in the manner now or hereafter prescribed by statute, and all rights conferred
upon stockholders herein are granted subject to this reservation.
I, THE UNDERSIGNED, being the Sole Incorporator hereinbefore
named, for the purpose of forming a corporation pursuant to the GCL, do make
this Certificate, hereby declaring and certifying that this is my act and deed
and the facts herein stated are true, and accordingly have hereunto set my hand
this 5th day of February, 1998.
\s\ Lynn T. Buckley
-----------------------------
Lynn T. Buckley
Sole Incorporator
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Exhibit 3.4
BY-LAWS
OF
RADIO UNICA OF SAN FRANCISCO, INC.
(A Delaware Corporation)
ARTICLE I
STOCKHOLDERS
1. CERTIFICATES REPRESENTING STOCK.
(a) Every holder of stock in the Corporation shall be entitled
to have a certificate signed by, or in the name of, the Corporation by the
Chairman or Vice-Chairman of the Board of Directors, if any, or by the President
or a Vice President and by the Treasurer or an Assistant Treasurer or the
Secretary or an Assistant Secretary of the Corporation representing the number
of shares owned by such person in the Corporation. If such certificate is
countersigned by a transfer agent other than the Corporation or its employee or
by a registrar other than the Corporation or its employee, any other signature
on the certificate may be a facsimile. In case any officer, transfer agent, or
registrar who has signed or whose facsimile signature has been placed upon a
certificate shall have ceased to be such officer, transfer agent or registrar
before such certificate is issued, it may be issued by the Corporation with the
same effect as if such person were such officer, transfer agent or registrar at
the date of issue.
(b) Whenever the Corporation shall be authorized to issue more
than one class of stock or more than one series of any class of stock, and
whenever the Corporation shall issue any shares of its stock as partly paid
stock, the certificates representing shares of any such class or series or of
any such partly paid stock shall set forth thereon the statements prescribed by
the General Corporation Law. Any restrictions on the transfer or registration of
transfer of any shares of stock of any class or series shall be noted
conspicuously on the certificate representing such shares.
<PAGE>
(c) The Corporation may issue a new certificate of stock in
place of any certificate theretofore issued by it, alleged to have been lost,
stolen or destroyed, and the Board of Directors may require the owner of any
lost, stolen or destroyed certificate, or such person's legal representative, to
give the Corporation a bond sufficient to indemnify the Corporation against any
claim that may be made against it on account of the alleged loss, theft or
destruction of any such certificate or the issuance of any such new certificate.
2. FRACTIONAL SHARE INTERESTS.
The Corporation may, but shall not be required to, issue fractions of a
share.
3. STOCK TRANSFERS.
Upon compliance with provisions restricting the transfer or
registration of transfer of shares of stock, if any, transfers or registration
of transfer of shares of stock of the Corporation shall be made only on the
stock ledger of the Corporation by the registered holder thereof, or by such
person's attorney thereunto authorized by power of attorney duly executed and
filed with the Secretary of the Corporation or with a transfer agent or a
registrar, if any, and on surrender of the certificate or certificates for such
shares of stock properly endorsed and the payment of all taxes due thereon.
4. RECORD DATE FOR STOCKHOLDERS.
(a) In order that the Corporation may determine the
stockholders entitled to notice of or to vote at any meeting of stockholders or
any adjournment thereof, the Board of Directors may fix a record date, which
record date shall not precede the date upon which the resolution fixing the
record date is adopted by the Board of Directors, and which record date shall
not be more than sixty nor less than ten days before the date of such meeting.
If no record date has been fixed by the Board of Directors, the record date for
determining stockholders entitled to notice of or to vote at a meeting of
stockholders shall be at the close of business on the day next preceding the day
on which notice is given, or, if notice is waived, at the close of business on
the day next preceding the day on which the meeting is held. A determination of
stockholders of record entitled to notice of or to vote at a meeting of
stockholders shall apply to any adjournment of the meeting; provided, however,
that the Board of Directors may fix a new record date for the adjourned meeting.
(b) In order that the Corporation may determine the
stockholders entitled to receive payment of any dividend or other distribution
or allotment of any rights or
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the stockholders entitled to exercise any rights in respect of any change,
conversion or exchange of stock, or for the purpose of any other lawful action,
the Board of Directors may fix a record date, which record date shall not
precede the date upon which the resolution fixing the record date is adopted,
and which record date shall be not more than sixty days prior to such action. If
no record date has been fixed, the record date for determining stockholders for
any such purpose shall be at the close of business on the date on which the
Board of Directors adopts the resolution relating thereto.
5. MEANING OF CERTAIN TERMS.
As used herein in respect of the right to notice of a meeting of
stockholders or a waiver thereof or to participate or vote thereat or to consent
or dissent in writing in lieu of a meeting, as the case may be, the term "share"
or "shares" or "share of stock" or "shares of stock" or "stockholder" or
"stockholders" refers to an outstanding share or shares of stock and to a holder
or holders of record of outstanding shares of stock when the Corporation is
authorized to issue only one class of shares of stock, and said reference is
also intended to include any outstanding share or shares of stock and any holder
or holders of record of outstanding shares of stock of any class upon which or
upon whom the Certificate of Incorporation confers such rights where there are
two or more classes or series of shares of stock or upon which or upon whom the
General Corporation Law confers such rights notwithstanding that the Certificate
of Incorporation may provide for more than one class or series of shares of
stock, one or more of which are limited or denied such rights thereunder;
provided, however, that no such right shall vest in the event of an increase or
a decrease in the authorized number of shares of stock of any class or series
which is otherwise denied voting rights under the provisions of the Certificate
of Incorporation, including any preferred stock which is denied voting rights
under the provisions of the resolution or resolutions adopted by the Board of
Directors with respect to the issuance thereof.
6. STOCKHOLDER MEETINGS.
(a) TIME. The annual meeting shall be held on the date and at
the time fixed, from time to time, by the Board of Directors. A special meeting
shall be held on the date and at the time fixed by the Board of Directors.
(b) PLACE. Annual meetings and special meetings shall be held
at such place, within or without the State of Delaware, as the Board of
Directors may, from time to time, fix. Whenever the Board of Directors shall
fail to fix such place, the
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meeting shall be held at the registered office of the Corporation in the State
of Delaware.
(c) CALL. Annual meetings and special meetings may be called
by the Board of Directors or by any officer instructed by the Board of Directors
to call the meeting.
(d) NOTICE OR WAIVER OF NOTICE. Written notice of all meetings
shall be given, stating the place, date and hour of the meeting. The notice of
an annual meeting shall state that the meeting is called for the election of
Directors and for the transaction of other business which may properly come
before the meeting, and shall (if any other action which could be taken at a
special meeting is to be taken at such annual meeting), state such other action
or actions as are known at the time of such notice. The notice of a special
meeting shall in all instances state the purpose or purposes for which the
meeting is called. If any action is proposed to be taken which would, if taken,
entitle stockholders to receive payment for their shares of stock, the notice
shall include a statement of that purpose and to that effect. Except as
otherwise provided by the General Corporation Law, a copy of the notice of any
meeting shall be given, personally or by mail, not less than ten days nor more
than sixty days before the date of the meeting, unless the lapse of the
prescribed period of time shall have been waived, and directed to each
stockholder at such person's address as it appears on the records of the
Corporation. Notice by mail shall be deemed to be given when deposited, with
postage thereon prepaid, in the United States mail. If a meeting is adjourned to
another time, not more than thirty days hence, and/or to another place, and if
an announcement of the adjourned time and place is made at the meeting, it shall
not be necessary to give notice of the adjourned meeting unless the Board of
Directors, after adjournment, fixes a new record date for the adjourned meeting.
Notice need not be given to any stockholder who submits a written waiver of
notice before or after the time stated therein. Attendance of a person at a
meeting of stockholders shall constitute a waiver of notice of such meeting,
except when the stockholder attends a meeting for the express purpose of
objecting, at the beginning of the meeting, to the transaction of any business
because the meeting is not lawfully called or convened. Neither the business to
be transacted, nor the purpose of, any regular or special meeting of the
stockholders need be specified in any written waiver of notice.
(e) STOCKHOLDER LIST. There shall be prepared and made, at
least ten days before every meeting of stockholders, a complete list of the
stockholders, arranged in alphabetical order, and showing the address of each
stockholder and the
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number of shares registered in the name of each stockholder. Such list shall be
open to the examination of any stockholder, for any purpose germane to the
meeting, during ordinary business hours, for a period of at least ten days prior
to the meeting either at a place within the city where the meeting is to be
held, which place shall be specified in the notice of the meeting, or if not so
specified, at the place where the meeting is to be held. The list shall also be
produced and kept at the time and place of the meeting during the whole time
thereof, and may be inspected by any stockholder who is present. The stock
ledger shall be the only evidence as to who are the stockholders entitled to
examine the stock ledger, the list required by this section or the books of the
Corporation, or to vote at any meeting of stockholders.
(f) CONDUCT OF MEETING. Meetings of the stockholders shall be
presided over by one of the following officers in the order of seniority and if
present and acting: the Chairman of the Board, if any, the Vice-Chairman of the
Board, if any, the President, a Vice President, a chairman for the meeting
chosen by the Board of Directors or, if none of the foregoing is in office and
present and acting, by a chairman to be chosen by the stockholders. The
Secretary of the Corporation or, in such person's absence, an Assistant
Secretary, shall act as secretary of every meeting, but if neither the Secretary
nor an Assistant Secretary is present the chairman for the meeting shall appoint
a secretary of the meeting.
(g) PROXY REPRESENTATION. Every stockholder may authorize
another person or persons to act for such stockholder by proxy in all matters in
which a stockholder is entitled to participate, whether by waiving notice of any
meeting, voting or participating at a meeting, or expressing consent or dissent
without a meeting. Every proxy must be signed by the stockholder or by such
person's attorney-in-fact. No proxy shall be voted or acted upon after three
years from its date unless such proxy provides for a longer period. A duly
executed proxy shall be irrevocable if it states that it is irrevocable and, if,
and only as long as, it is coupled with an interest sufficient in law to support
an irrevocable power. A proxy may be made irrevocable regardless of whether the
interest with which it is coupled is an interest in the stock itself or an
interest in the Corporation generally.
(h) INSPECTORS AND JUDGES. The Board of Directors, in advance
of any meeting, may, but need not, appoint one or more inspectors of election or
judges of the vote, as the case may be, to act at the meeting or any adjournment
thereof. If an inspector or inspectors or judge or judges are not appointed by
the Board of Directors, the person presiding at the meeting may, but need not,
appoint one or more inspectors or judges. In case any person who may be
appointed as an
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inspector or judge fails to appear or act, the vacancy may be filled by
appointment made by the person presiding thereat. Each inspector or judge, if
any, before entering upon the discharge of such person's duties, shall take and
sign an oath faithfully to execute the duties of inspector or judge at such
meeting with strict impartiality and according to the best of his ability. The
inspectors or judges, if any, shall determine the number of shares of stock
outstanding and the voting power of each, the shares of stock represented at the
meeting, the existence of a quorum and the validity and effect of proxies,
receive votes, ballots or consents, hear and determine all challenges and
questions arising in connection with the right to vote, count and tabulate all
votes, ballots or consents, determine the result, and do such other acts as are
proper to conduct the election or vote with fairness to all stockholders. On
request of the person presiding at the meeting, the inspector or inspectors or
judge or judges, if any, shall make a report in writing of any challenge,
question or matter determined by such person or persons and execute a
certificate of any fact so found.
(i) QUORUM. Except as the General Corporation Law or these
By-Laws may otherwise provide, the holders of a majority of the outstanding
shares of stock entitled to vote shall constitute a quorum at a meeting of
stockholders for the transaction of any business. The stockholders present may
adjourn the meeting despite the absence of a quorum. When a quorum is once
present to organize a meeting, it is not broken by the subsequent withdrawal of
any shareholders.
(j) VOTING. Each stockholder entitled to vote in accordance
with the terms of the Certificate of Incorporation and of these By-Laws, or,
with respect to the issuance of preferred stock, in accordance with the terms of
a resolution or resolutions of the Board of Directors, shall be entitled to one
vote, in person or by proxy, for each share of stock entitled to vote held by
such stockholder. In the election of Directors, a plurality of the votes present
at the meeting shall elect. Any other action shall be authorized by a majority
of the votes cast except where the Certificate of Incorporation or the General
Corporation Law prescribes a different percentage of votes and/or a different
exercise of voting power.
Voting by ballot shall not be required for corporate action except as
otherwise provided by the General Corporation Law.
7. STOCKHOLDER ACTION WITHOUT MEETINGS.
Any action required to be taken, or any action which may be taken, at
any annual or special meeting of stockholders, may be taken without a meeting,
without
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prior notice and without a vote, if a consent or consents in writing, setting
forth the action so taken, shall be signed by the holders of the outstanding
stock having not less than the minimum number of votes that would be necessary
to authorize or take such action at a meeting at which all shares entitled to
vote thereon were present and voted. Prompt notice of the taking of the
corporate action without a meeting by less than unanimous written consent shall
be given to those stockholders who have not consented in writing and shall be
delivered to the Corporation by delivery to its registered office in Delaware,
its principal place of business or an officer or agent of the Corporation having
custody of the book in which proceedings of meetings of stockholders are
recorded. Delivery made to the Corporation's registered office shall be by hand
or by certified or registered mail, return receipt requested.
ARTICLE II
DIRECTORS
1. FUNCTIONS AND DEFINITION.
The business and affairs of the Corporation shall be managed
by or under the direction of the Board of Directors of the Corporation. The use
of the phrase "whole Board" herein refers to the total number of Directors which
the Corporation would have if there were no vacancies.
2. QUALIFICATIONS AND NUMBER.
A Director need not be a stockholder, a citizen of the United
States, or a resident of the State of Delaware. The initial Board of Directors
shall consist of three (3) persons. Thereafter the number of Directors
constituting the whole board shall be at least one. Subject to the foregoing
limitation and except for the first Board of Directors, such number may be fixed
from time to time by action of the stockholders or of the Board of Directors,
or, if the number is not fixed, the number shall be three. The number of
Directors may be increased or decreased by action of the stockholders or of the
Board of Directors.
3. ELECTION AND TERM.
The first Board of Directors, unless the members thereof shall
have been named in the Certificate of Incorporation, shall be elected by the
incorporator or
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incorporators and shall hold office until the first annual meeting of
stockholders and until their successors have been elected and qualified or until
their earlier resignation or removal. Any Director may resign at any time upon
written notice to the Corporation. Thereafter, Directors who are elected at an
annual meeting of stockholders, and Directors who are elected in the interim to
fill vacancies and newly created Directorships, shall hold office until the next
annual meeting of stockholders and until their successors have been elected and
qualified or until their earlier resignation or removal. In the interim between
annual meetings of stockholders or of special meetings of stockholders called
for the election of Directors and/or for the removal of one or more Directors
and for the filling of any vacancies in the Board of Directors, including
vacancies resulting from the removal of Directors for cause or without cause,
any vacancy in the Board of Directors may be filled by the vote of a majority of
the remaining Directors then in office, although less than a quorum, or by the
sole remaining Director.
4. MEETINGS.
(a) TIME. Regular meetings shall be held at such time as the
Board shall fix. Special meetings may be called upon notice.
(b) FIRST MEETING. The first meeting of each newly elected
Board may be held immediately after each annual meeting of the stockholders at
the same place at which the meeting is held, and no notice of such meeting shall
be necessary to call the meeting, provided a quorum shall be present. In the
event such first meeting is not so held immediately after the annual meeting of
the stockholders, it may be held at such time and place as shall be specified in
the notice given as provided for special meetings of the Board of Directors, or
at such time and place as shall be fixed by the consent in writing of all of the
Directors.
(c) PLACE. Meetings, both regular and special, shall be held
at such place within or without the State of Delaware as shall be fixed by the
Board.
(d) CALL. No call shall be required for regular meetings for
which the time and place have been fixed. Special meetings may be called by or
at the direction of the Chairman of the Board, if any, the Vice-Chairman of the
Board, if any, or the President, or of a majority of the Directors.
(e) NOTICE OR ACTUAL OR CONSTRUCTIVE WAIVER. No notice shall
be required for regular meetings for which the time and place have been fixed.
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Written, oral or any other mode of notice of the time and place shall be given
for special meetings at least twenty-four hours prior to the meeting; notice may
be given by telephone of telefax (in which case it is effective when given) or
by mail (in which case it is effective seventy-two hours after mailing by
prepaid first class mail). The notice of any meeting need not specify the
purpose of the meeting. Any requirement of furnishing a notice shall be waived
by any Director who signs a written waiver of such notice before or after the
time stated therein. Attendance of a Director at a meeting of the Board shall
constitute a waiver of notice of such meeting, except when the Director attends
a meeting for the express purpose of objecting, at the beginning of the meeting,
to the transaction of any business because the meeting is not lawfully called or
convened.
(f) QUORUM AND ACTION. A majority of the whole Board shall
constitute a quorum except when a vacancy or vacancies prevents such majority,
whereupon a majority of the Directors in office shall constitute a quorum,
provided that such majority shall constitute at least one-third (1/3) of the
whole Board. Any Director may participate in a meeting of the Board by means of
a conference telephone or similar communications equipment by means of which all
Directors participating in the meeting can hear each other, and such
participation in a meeting of the Board shall constitute presence in person at
such meeting. A majority of the Directors present, whether or not a quorum is
present, may adjourn a meeting to another time and place. Except as herein
otherwise provided, and except as otherwise provided by the General Corporation
Law, the act of the Board shall be the act by vote of a majority of the
Directors present at a meeting, a quorum being present. The quorum and voting
provisions herein stated shall not be construed as conflicting with any
provisions of the General Corporation Law and these By-Laws which govern a
meeting of Directors held to fill vacancies and newly created Directorships in
the Board.
(g) CHAIRMAN OF THE MEETING. The Chairman of the Board, if any
and if present and acting, shall preside at all meetings. Otherwise, the
Vice-Chairman of the Board, if any and if present and acting, or the President,
if present and acting, or any other Director chosen by the Board, shall preside.
5. REMOVAL OF DIRECTORS.
Any or all of the Directors may be removed for cause or
without cause by the stockholders.
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6. COMMITTEES.
The Board of Directors may, by resolution passed by a majority
of the whole Board, designate one or more committees, each committee to consist
of one or more of the Directors of the Corporation. The Board may designate one
or more Directors as alternate members of any committee, who may replace any
absent or disqualified member at any meeting of the committee. Any such
committee, to the extent provided in the resolution of the Board, shall have and
may exercise the powers of the Board of Directors in the management of the
business and affairs of the Corporation, and may authorize the seal of the
Corporation to be affixed to all papers which may require it. In the absence or
disqualification of any member of any such committee or committees, the members
thereof present at any meeting and not disqualified from voting, whether or not
they constitute a quorum, may unanimously appoint another member of the Board of
Directors to act at the meeting in the place of any such absent or disqualified
member.
7. ACTION IN WRITING.
Any action required or permitted to be taken at any meeting of
the Board of Directors or any committee thereof may be taken without a meeting
if all members of the Board or committee, as the case may be, consent thereto in
writing, and the writing or writings are filed with the minutes of proceedings
of the Board or committee.
ARTICLE III
OFFICERS
1. EXECUTIVE OFFICERS.
The Board of Directors may elect or appoint a Chairman of the
Board of Directors, a President, one or more Vice Presidents (which may be
denominated with additional descriptive titles), a Secretary, one or more
Assistant Secretaries, a Treasurer, one or more Assistant Treasurers and such
other officers as it may determine. Any number of offices may be held by the
same person.
2. TERM OF OFFICE: REMOVAL.
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Unless otherwise provided in the resolution of election or
appointment, each officer shall hold office until the meeting of the Board of
Directors following the next annual meeting of stockholders and until such
officer's successor has been elected and qualified or until the earlier
resignation or removal of such officer. The Board of Directors may remove any
officer for cause or without cause.
3. AUTHORITY AND DUTIES.
All officers, as between themselves and the Corporation, shall
have such authority and perform such duties in the management of the Corporation
as may be provided in these By-Laws, or, to the extent not so provided, by the
Board of Directors.
4. THE CHAIRMAN OF THE BOARD OF DIRECTORS.
The Chairman of the Board of Directors, if present and acting,
shall preside at all meetings of the Board of Directors, otherwise, the
President, if present, shall preside, or if the President does not so preside,
any other Director chosen by the Board shall preside. The Chairman of the Board
of Directors shall be the chief executive officer of the Corporation.
5. THE PRESIDENT.
The President shall be the chief operating officer of the
Corporation.
6. VICE PRESIDENTS.
Any Vice President that may have been appointed, in the
absence or disability of the President, shall perform the duties and exercise
the powers of the President, in the order of their seniority, and shall perform
such other duties as the Board of Directors shall prescribe.
7. THE SECRETARY.
The Secretary shall keep in safe custody the seal of the
Corporation and affix it to any instrument when authorized by the Board of
Directors, and shall perform such other duties as may be prescribed by the Board
of Directors. The Secretary (or in such officer's absence, an Assistant
Secretary, but if neither is
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present another person selected by the Chairman for the meeting) shall have the
duty to record the proceedings of the meetings of the stockholders and Directors
in a book to be kept for that purpose.
8. THE TREASURER.
The Treasurer shall have the care and custody of the corporate
funds, and other valuable effects, including securities, and shall keep full and
accurate accounts of receipts and disbursements in books belonging to the
Corporation and shall deposit all moneys and other valuable effects in the name
and to the credit of the Corporation in such depositories as may be designated
by the Board of Directors. The Treasurer shall disburse the funds of the
Corporation as may be ordered by the Board, taking proper vouchers for such
disbursements, and shall render to the President and Directors, at the regular
meetings of the Board, or whenever they may require it, an account of all
transactions as Treasurer and of the financial condition of the Corporation. If
required by the Board of Directors, the Treasurer shall give the Corporation a
bond for such term, in such sum and with such surety or sureties as shall be
satisfactory to the Board for the faithful performance of the duties of such
office and for the restoration to the Corporation, in case of such person's
death, resignation, retirement or removal from office, of all books, papers,
vouchers, money and other property of whatever kind in such person's possession
or under such person's control belonging to the Corporation.
ARTICLE IV
CORPORATE SEAL
AND
CORPORATE BOOKS
The corporate seal shall be in such form as the Board of
Directors shall prescribe. The books of the Corporation may be kept within or
without the State of Delaware, at such place or places as the Board of directors
may, from time to time, determine.
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ARTICLE V
FISCAL YEAR
The fiscal year of the Corporation shall be fixed, and shall
be subject to change, by the Board of Directors.
ARTICLE VI
INDEMNITY
(a) Any person who was or is a party or threatened to be made
a party to any threatened, pending or completed action, suit or proceeding,
whether civil, criminal, administrative or investigative (other than an action
by or in the right of the Corporation) by reason of the fact that he or she is
or was a Director, officer, employee or agent of the Corporation or is or was
serving at the request of the Corporation as director, officer, employee or
agent of another corporation, partnership, joint venture, trust or other
enterprise (including employee benefit plans) (hereinafter an "indemnitee"),
shall be indemnified and held harmless by the Corporation to the fullest extent
authorized by the General Corporation Law, as the same exists or may hereafter
be amended (but, in the case of any such amendment, only to the extent that such
amendment permits the Corporation to provide broader indemnification than
permitted prior thereto), against expenses (including attorneys' fees),
judgments, fines and amounts paid in settlement actually and reasonably incurred
by such indemnitee in connection with such action, suit or proceeding, if the
indemnitee acted in good faith and in a manner he or she reasonably believed to
be in or not opposed to the best interests of the Corporation, and with respect
to any criminal action or proceeding, had no reasonable cause to believe such
conduct was unlawful. the termination of the proceeding, whether by judgment,
order, settlement, conviction or upon a plea of nolo contendere or its
equivalent, shall not, of itself, create a presumption that the person did not
act in good faith and in a manner which he or she reasonably believed to be in
or not opposed to the best interests of the Corporation and, with respect to any
criminal action or proceeding, had reasonable cause to believe such conduct was
unlawful.
(b) Any person who was or is a party or is threatened to be
made a party to any threatened, pending or completed action or suit by or in the
right of the
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Corporation to procure a judgment in its favor by reason of the fact that he or
she is or was a Director, officer, employee or agent of the Corporation, or is
or was serving at the request of the corporation as a director, officer,
employee or agent of another Corporation, partnership, joint venture, trust or
other enterprise (including employee benefit plans) shall be indemnified and
held harmless by the Corporation to the fullest extent authorized by the General
Corporation Law, as the same exists or may hereafter be amended (but, in the
case of any such amendment, only to the extent that such amendment permits the
Corporation to provide broader indemnification than permitted prior thereto),
against expenses (including attorneys' fees) actually and reasonably incurred by
him or her in connection with the defense or settlement of such action or suit
if he or she acted in good faith and in a manner he or she reasonably believed
to be in or not opposed to the best interests of the Corporation and except that
no indemnification shall be made in respect of any claim, issue or matter as to
which such person shall have been adjudged to be liable to the Corporation
unless and only to the extent that the Court in which such suit or action was
brought, shall determine, upon application, that, despite the adjudication of
liability but in view of all the circumstances of the case, such person is
fairly and reasonably entitled to indemnity for such expenses which such court
shall deem proper.
(c) All reasonable expenses incurred by or on behalf of the
indemnitee in connection with any suit, action or proceeding, may be advanced to
the indemnitee by the Corporation.
(d) The rights to indemnification and to advancement of
expenses conferred in this article shall not be exclusive of any other right
which any person may have or hereafter acquire under any statute, the
Certificate of Incorporation, a By-Law of the Corporation, agreement, vote of
stockholders or disinterested Directors or otherwise.
(e) The indemnification and advancement of expenses provided
by this article shall continue as to a person who has ceased to be a Director,
officer, employee or agent and shall inure to the benefit of the heirs,
executors and administrators of such person.
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Exhibit 3.5
ARTICLES OF INCORPORATION
OF
ORO SPANISH BROADCASTING, INC.
The undersigned, desiring to form a corporation under the laws of the
State of California, declares:
FIRST: The name of this corporation is:
ORO SPANISH BROADCASTING, INC.
SECOND: The purpose of this corporation is to engage in any lawful act
or activity for which a corporation may be organized under the General
Corporation Law of California other than the banking business, the trust company
business or the practice of a profession permitted to be incorporated by the
California Corporations Code.
THIRD: The number of directors of the corporation shall be fixed by
the By-Laws.
FOURTH: The name and address in this state of the corporation's
initial agent for service of process is Rene de La Rosa, No. 8 Wilshire Court,
Daly City, California 94015.
FIFTH: The corporation is authorized to issue one million (1,000,000)
shares of capital stock, all of one class, to be designated "Common Stock."
SIXTH: No distinction shall exist between the shares of the
corporation or the holders thereof.
<PAGE>
IN WITNESS WHEREOF, the undersigned, who is the incorporator of this
corporation, has executed these Articles of Incorporation on April 24, 1980.
/s/ Rene de La Rosa
----------------------------
Rene de La Rosa
DECLARATION
I, Rene de La Rosa, hereby declare that I am the person who executed
the foregoing Articles of Incorporation of Oro Spanish Broadcasting, Inc., and
that said Articles of Incorporation are my own act and deed.
Executed in San Francisco, California, this 24th day of April, 1980.
/s/ Rene de La Rosa
----------------------------
Rene de La Rosa
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Exhibit 3.6
BYLAWS OF ORO SPANISH BROADCASTING, INC.
ARTICLE I. OFFICES
Section 1.01. Address: The corporation shall have its principal executive
office in San Francisco, California, and may have offices at such other places
within or without this State as the Board of Directors may from time to time
designate.
ARTICLE II. DIRECTORS
Section 2.01. Responsibility of Board. Subject to the provisions of the
General Corporation Law and to any limitations in the Articles of Incorporation
of the corporation relating to action required to be approved by the
shareholders, as that term is defined in Section 153 of the California
Corporations Code, or by the outstanding shares, as that term is defined in
Section 152 of the Code, the business and affairs of the corporation shall be
managed and all corporate powers shall be exercised by or under the direction of
the Board of Directors. The Board may delegate the management of the day-to-day
operation of the business of the corporation to a management company or other
person, provided that the business and affairs of the corporation shall be
managed and all corporate powers shall be exercised under the ultimate direction
of the Board.
Section 2.02. Number of Directors. The number of directors of this
corporation shall be three.
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Section 2.03. Election and Term of Office. Directors shall be elected at
each annual meeting of shareholders to hold office until the next annual
meeting.
Section 2.04. Removal of Directors. Any individual director or the entire
Board of Directors may be removed from office in the manner provided by law.
Section 2.05. Filling Vacancies. (a) Except as otherwise provided in the
Articles of Incorporation of the corporation or in these Bylaws, and except for
a vacancy created by the removal of a director, vacancies on the Board may be
filled by a majority of the directors then in office, whether or not less than a
quorum, or by a sole remaining director.
(b) Unless the Articles of Incorporation of the corporation should be
amended, or a Bylaw should be adopted by the shareholders to provide that
vacancies occurring in the Board by reason of the removal of directors may be
filled by the Board, such vacancies may be filled only by approval of the
shareholder as that term is defined in Section 153 of the California
Corporations Code. Any vacancy authorized to be but not filled by the directors
may be filled by the shareholders and any such election by written consent
requires the consent of a majority of the outstanding shares entitled to vote.
Section 2.06. Call of Meetings. Meetings of the Board may be called by the
Chairman of the Board, if any there be, or the President, or any Vice President,
or the Secretary, or any two directors of the corporation.
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Section 2.07. Place of Meetings. All meetings of the Board shall be held at
the corporation's principal executive office.
Section 2.08. Time of Regular Meetings. Regular meetings of the Board shall
be held, without call or notice, immediately following each annual meeting of
the shareholders of the corporation.
Section 2.09. Notice of Special Meetings. (a) Notice of any special meeting
of the Board shall be given to each director by first-class mail, postage
prepaid, at least four (4) days in advance of the meeting or delivered in person
or by telephone or telegraph at-least forty-eight (48) hours in advance of the
meeting.
(b) No notice need be given to any director who signs a waiver of notice,
whether before or after the meeting, or who attends the meeting without
protesting prior thereto or at its commencement the lack of notice to such
director.
Section 2.10. Quorum. A majority of the authorized number of directors
consti tutes a quorum of the Board for the transaction of business except as
hereinafter provided.
Section 2.11. Transactions of Board. Except as otherwise provided in the
Articles, in these Bylaws, or by law, every act or decision done or made by a
majority of the directors present at a duly held meeting at which a quorum is
present is the act of the Board, provided, however, that any meeting at which a
quorum was initially present may continue to transact business notwithstanding
the withdrawal of directors if any action taken is approved by at least a
majority of the required quorum for such meeting.
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Section 2.12. Adjournment. A majority of the directors present at any
meeting, whether or not a quorum is present, may adjourn the meeting to another
time and place. If the meeting is adjourned for more than twenty-four (24)
hours, notice of the adjournment to another time or place must be given prior to
the time of the adjourned meeting to the directors who were not present at the
time of the adjournment.
Section 2.13. Conduct of Meetings. The Chairman of the Board, or if there
is no such officer the President, or, in his absence, any director selected by
the directors present, shall preside at meetings of the Board of Directors. The
Secretary of the corporation or, in the Secretary's absence, any person
appointed by the presiding officer shall act as Secretary of the Board. Board
members may participate in any such meeting through the use of conference
telephone or similar communications equipment, so long as all members
participating in such meeting can hear one another. Such participation
constitutes personal presence at the meeting.
Section 2.14. Compensation. Directors shall receive such compensation for
their services and reimbursement for their expenses as shall be determined from
time to time by resolution of the Board.
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notwithstanding the withdrawal of directors if any action taken is approved by
at least a majority of the required quorum for such meeting.
Section 2.12. Adjournment. A majority of the directors present at any
meeting, whether or not a quorum is present, may adjourn the meeting to another
time and place. If the meeting is adjourned for more than twenty-four (24)
hours, notice of the adjournment to another time or place must be given prior to
the time of the adjourned meeting to the directors who were not present at the
time of the adjournment.
Section 2.13. Conduct of Meetings. The Chairman of the Board, or if there
is no such officer the President, or, in his absence, any director selected by
the directors present, shall preside at meetings of the Board of Directors. The
Secretary of the corporation or, in the Secretary's absence, any person
appointed by the presiding officer shall act as Secretary of the Board. Board
members may participate in any such meeting through the use of conference
telephone or similar communications equipment, so long as all members
participating in such meeting can hear one another. Such participation
constitutes persona presence at the meeting.
Section 2.14. Compensation. Directors shall receive such compensation for
their services and reimbursement for their expenses as shall be determined from
time to time by resolution of the Board.
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Section 2.15. Indemnification. The corporation has power to indemnify any
person who is or was a director, officer, employee, or other agent of this
corporation or of its predecessor, or is or was serving as such of another
corporation, partnership, joint venture, trust, or other enterprise, at the
request of this corporation against expenses, judgments, fines, settlements, and
other amounts actually and reasonably incurred in connection with any
threatened, pending, or completed action or proceeding, whether civil, criminal,
administrative, or investigative, as provided in Section 317 of the California
Corporations Code, as that section now exists or may hereafter from time to time
be amended to provide.
ARTICLE III. SHAREHOLDERS' MEETINGS
Section 3.01. Place of Meetings. Meetings of the shareholders shall be held
at the corporation's principal executive office.
Section 3.02. Time of Meeting. The annual meeting of shareholders shall be
held on the first Tuesday of April of each year at 4:00 P.M. If this day falls
on a legal holiday, the annual meeting shall be held at the same time on the
next following business day thereafter.
Section 3.03. Persons Entitled to Call Special Meetings. Special meetings
of the shareholders may be called at any time by the Board of Directors, the
Chairman of the
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Board, if any there be, the President of the corporation, or the holders of
shares entitled to cast not less than ten (10) percent of the votes at the
meeting.
Section 3.04. Notice of Meeting. Notice of annual and special meetings of
the shareholders shall be given as provided in Section 601 of the Corporations
Code as that section now exists or may hereafter from time to time be amended to
provide.
Section 3.05. Waiver of Notice and Other Defects. The transactions of any
meeting of shareholders, however called and noticed and wherever held, are as
valid as though had at a meeting duly held after regular call and notice, if a
quorum is present either in person or by proxy and if, either before or after
the meeting, each of the persons entitled to vote not present in person or by
proxy signs a written waiver of notice or a consent to the holding of the
meeting or an approval of the minutes thereof. All such waivers, consents, and
approvals must be filed with the corporate records or made a part of the minutes
of the meeting. Attendance by a person at the meeting also constitutes a waiver
of notice to that person if he or she fails to object at the beginning of the
meeting to the transaction of business because the meeting was not lawfully
called or convened, but such attendance does not constitute a waiver of the
right to object to the consideration of matters required by law or these Bylaws
to be included in the notice but not so included if the objection is expressly
made at the meeting.
Section 3.06. Quorum. A majority of the shares entitled to vote,
represented inn person or by proxy, constitutes a quorum for the transaction of
business. Business may be
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continued after withdrawal of enough shareholders to leave less than a quorum,
provided any action taken (other than adjournment) is approved by at least a
majority of the shares required to constitute a quorum. In the absence of a
quorum, any meeting may be adjourned from time to time by a majority vote of the
shares represented in person or by proxy.
Section 3.07. Election by Ballot. Elections for directors need not be by
ballot unless a shareholder demands election by ballot at the meeting and before
the voting begins.
Section 3.08. Voting. Except as otherwise provided in the Articles of
Incorporation or by agreement or by the General Corporation Law, shareholders
on the record date are entitled to notice and to vote, notwithstanding the
transfer of any shares on the books of the corporation after the record date.
ARTICLE IV. OFFICERS
Section 4.01. Offices. This corporation shall have a President, a Vice
President, a Secretary, a Treasurer, and such other officers, including a
Chairman of the Board, as the Board of Directors may from time to time designate
and appoint. Any two or more offices may be held by one person except that one
person may not hold both the offices of President and Vice President or
President and Secretary. The office of Vice President and any office designated
by the Board may be left unfilled for any period in the discretion of
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the Board. All officers shall be chosen by, and, subject to any rights an
officer may have under an employment contract with the corporation, shall hold
office at the pleasure of, the Board which shall fix their compensation.
Section 4.02. Chairman of the Board. The Chairman of the Board, if there be
such an officer, shall, if present, preside at all meetings of the Board and
perform such other powers and duties as may from time to time be assigned by the
Board or prescribed by law or by these Bylaws.
Section 4.03. President. Subject to such supervisory powers as may be given
by the Board of Directors to the Chairman of the Board, if there be such an
officer, the President shall be the chief executive officer of the corporation
and shall perform all the duties commonly incident to that office. The President
shall preside at all meetings of the shareholders and, if there is no Chairman
of the Board, at all meetings of the Board.
Section 4.04. Vice President. The Vice President, or the Vice Presidents in
the order of their seniority, may assume and perform the duties of the President
in the absence or disability of the President or whenever the office of
President is vacant, and shall perform such other duties and have such other
powers as the Board or the President shall from time to time designate.
Section 4.05. Secretary. The Secretary shall see that all notices are duly
given in accordance with the provisions of these Bylaws or as required by law;
shall keep the minutes of all proceedings of shareholders and of the Board; and
shall perform such other
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duties as are incident to the office of Secretary or as are assigned from time
to time by the Board or by the President.
Section 4.06. Treasurer. The Treasurer shall receive and have custody of
all funds and securities of the corporation; keep and maintain adequate and
correct books and records of account and of the corporation's assets and
liabilities; and shall perform such other duties as may be assigned from time to
time by the Board or by the President.
ARTICLE V. EXECUTION OF INSTRUMENTS
Section 5.01. Execution. The Board of Directors may, in its discretion,
determine the method and by resolution designate the signatory officer or
officers, or other person or persons, to execute any corporate instrument or
document, or to sign the corporate name without limitation, except where
otherwise provided by law, and such execution or signature shall be binding on
the corporation.
ARTICLE VI. ISSUANCE AND TRANSFER OF SHARES
Section 6.01. Shareholder's Right to Certificate. Every holder of shares in
the corporation shall be entitled to a certificate certifying the number of
shares and the class or series of shares owned by him or her. This right extends
to fractional shares and partly paid shares if such shares are issued by the
corporation.
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Section 6.02. Share Certificates. The certificates shall be in such form
and device as shall be provided by the Board of Directors and shall fully comply
with the provisions of the Corporations Code of the State of California. The
certificates shall be signed by the Chairman of the Board, if any, or the
President or a Vice President and by the Treasurer or an Assistant Treasurer or
the Secretary or any Assistant Secretary of the corporation, and the seal of the
corporation shall be affixed thereto.
Section 6.03. Exchange of Certificates. If the Articles of Incorporation
are amended in any way affecting the statements contained in the certificates
for outstanding shares, or it becomes desirable for any reason, in the
discretion of the Board of Directors, to cancel any outstanding certificate for
shares and issue a new certificate therefor conforming to the rights of the
holder, the Board may order any holders of outstanding certificates to surrender
and exchange them for new certificates within a reasonable time to be fixed by
the Board.
Section 6.04. Replacement of Certificates. No new certificates shall be
issued until the former certificate for the shares represented thereby shall
have been surrendered and cancelled, except in the case of a lost, stolen, or
destroyed certificate. In this latter case the corporation must, if so requested
by the shareholder, issue a new certificate, provided it has received no notice
that the certificate has been acquired by a bona fide purchaser, but it may
require the giving of a bond or other adequate security sufficient to
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indemnify it against any claim that may be made against it on account of the
alleged loss, theft, or destruction of the certificate or the issuance of the
new certificate.
Section 6.05. Transfer of Shares. Shares of the corporation may be
transferred by endorsement by the signature of the owner, his authorized agent,
attorney, or legal representative, and the delivery of the certificate; but such
transfer is not valid, except as to the parties thereto, until the same is so
entered on the books of the corporation so as to show the names of the parties
by whom and to whom transferred, the number of the certificate, and the number
or designation of the shares and the date of the transfer, and until the old
certificate is surrendered to the corporation and canceled.
Section 6.06. Duty of Corporation to Register Transfer. The corporation is
under a duty to register the transfer when the certificate, properly indorsed,
is presented to it with a request to register transfer; reasonable assurance is
given that the endorsements are genuine and effective; the corporation has no
duty to inquire into adverse claims or it has discharged any such duty; and any
applicable law relating to the collection of taxes has been complied with.
Section 6.07. Liability for Partly Paid Shares. The transferor and
transferee of partly paid shares, if any are issued, shall be liable to the
corporation for the unpaid balance of such shares as provided by law.
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Section 6.08. Alternative System in Lieu of Certificates. Notwithstanding
the foregoing provisions of this Article VI, the corporation may, if any of its
securities are registered under the United States Securities Exchange Act of
1934, adopt a system of issuance, recordation, and transfer of its shares by
electronic or other means not involving any issuance of certificates, if the
system has been approved by the California Commis sioner of Corporations or the
United States Securities and Exchange Commission or if it is authorized in any
statute of the United States.
ARTICLE VII. CORPORATE RECORDS AND REPORTS
Section 7.01. Keeping Records. The corporation shall keep adequate and
correct books and records of account and shall keep minutes of the proceedings
of its sharehold ers, Board of Directors, and Board committees, and shall keep
at its principal executive office, or at the office of its transfer agent or
registrar, a record of its shareholders, giving the names and addresses of all
shareholders and the number and class of shares held by each. The minutes must
be kept in written form. The other books and records shall be kept either in
written form or in any other form capable of being converted into written form.
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Section 7.02. Inspection by Shareholders and Directors. Any shareholder
shall have the right on written demand to inspect and copy the record of
shareholders, the accounting books and records, and the minutes as provided by
law. Each director shall have the absolute right at any reasonable time to
inspect and copy all books, records, and documents of every kind and to inspect
the physical properties of the corporation.
Section 7.03. Waiver of Annual Report. So long as this corporation has less
than one hundred (100) holders of record of its shares, determined as provided
in Section 605 of the Corporations Code, no annual report shall be sent to
shareholders or be required.
ARTICLE VIII. AMENDMENT OF BYLAWS
Section 8.01. By Shareholders and Directors. These Bylaws may, from time to
time and at any time, be amended or repealed, and new or additional bylaws
adopted, by approval of the outstanding shares, as that term is defined in
Section 152 of the California Corporations Code, or, subject to any restrictions
imposed by the Articles of Incorporation on the power of the Board of Directors
to adopt, amend, or repeal Bylaws, by approval of the Board, provided, however,
that such Bylaws may not contain any provision in conflict with law or with the
Articles of this corporation, and, provided further, that: (l) after shares are
issued a Bylaw changing the number of directors or from a fixed to a variable
Board can be adopted only by approval of the outstanding shares; and (2) any
such Bylaw reducing the number of directors below five (5) cannot be adopted if
the votes cast against
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its adoption at a shareholder's meeting, or the shares not consenting in the
case of action by written consent, are equal to more than sixteen and two-thirds
(16 2/3) percent of the outstanding shares entitled to vote.
CERTIFICATE OF SECRETARY
I certify that:
1. I am the Secretary of Oro Spanish Broadcasting, Inc.
2. The attached Bylaws are the Bylaws of the corporation approved by the
Board of Directors on April 28, 1980, at a meeting duly held.
Dated: April 28, 1980.
/s/ Barry A. Murphy
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Barry A. Murphy, Secretary
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Exhibit 3.7
CERTIFICATE OF INCORPORATION
OF
RADIO UNICA OF SAN FRANCISCO LICENSE CORP.
The undersigned, a natural person, for the purpose of organizing a
corporation for conducting the business and promoting the purposes
hereinafter stated, under the provisions and subject to the requirements of
the laws of the State of Delaware (particularly Chapter 1, Title 8 of the
Delaware Code and the acts amendatory thereof and supplemental thereto, and
known, identified and referred to as the "General Corporation Law of the
State of Delaware") hereby certifies that:
FIRST: The name of this Corporation (hereinafter called the "Corporation")
is Radio Unica of San Francisco License Corp.
SECOND: The address, including street, number, city and county, of the
registered office of the Corporation in the State of Delaware is Corporation
Trust Center, 1209 Orange Street, City of Wilmington, County of New Castle (zip
code 19801); and the name of the registered agent of the Corporation in the
State of Delaware at such address is The Corporation Trust Company.
THIRD: The nature of the business and of the purposes to be conducted and
promoted by the Corporation are to conduct any lawful business, to promote any
lawful purpose, and to engage in any lawful act or activity for which
corporations may be organized under the General Corporation Law of the State of
Delaware.
FOURTH: The total number of shares of stock which the Corporation shall
have authority to issue is one thousand (1,000) shares, all of which are of a
par value of one cent ($.01) each, and all of which are of one class and are
designated as Common Stock.
FIFTH: The name and mailing address of the incorporator are as follows:
Martin H. Neidell, c/o Stroock & Stroock & Lavan LLP, 180 Maiden Lane, New
York, New York 10038.
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SIXTH: Whenever a compromise or arrangement is proposed between this
Corporation and its creditors or any class of them and/or between this
Corporation and its stockholders or any class of them, any court of equitable
jurisdiction within the State of Delaware may, on the application in a summary
way of this Corporation or any creditor or stockholder thereof or on the
application of any receiver or receivers appointed for this Corporation under
the provisions of Section 291 of Title 8 of the Delaware Code or on the
application of trustees in dissolution or of any receiver or receivers appointed
for this Corporation under the provisions of Section 279 of Title 8 of the
Delaware Code, order a meeting of the creditors or class of creditors, and/or of
the stockholders or class of stockholders, of this Corporation, as the case may
be, to be summoned in such manner as the said court directs. If a majority in
number representing three-fourths in value of the creditors or class of
creditors, and/or of the stockholders or class of stockholders, of this
Corporation, as the case may be, agree to any compromise or arrangement and to
any reorganization of this Corporation as a consequence of such compromise or
arrangement, the said compromise or arrangement and the said reorganization
shall, if sanctioned by the court to which the said application has been made,
be binding on all the creditors or class of creditors, and/or on all the
stockholder or class of stockholders, of this Corporation, as the case may be,
and also on this Corporation.
SEVENTH: The original By-Laws of the Corporation shall be adopted by the
incorporator. Thereafter, the power to make, alter, or repeal the By-Laws, and
to adopt any new By-Law, shall be vested in the Board of Directors.
EIGHTH: To the fullest extent that the General Corporation Law of the State
of Delaware, as it exists on the date hereof or as it may hereafter be amended,
permits the limitation or elimination of the liability of directors, no director
of this Corporation shall be personally liable to this Corporation or its
stockholders for monetary damages for breach of fiduciary duty as a director.
Notwithstanding the foregoing, a director shall be liable to the extent provided
by applicable law (1) for any breach of the directors' duty of loyalty to the
Corporation or its stockholders, (2) for acts or omissions not in good faith or
which involve intentional misconduct or a knowing violation of law, (3) under
Section 174 of the General Corporation Law of the State of Delaware, or (4) for
any transaction from which the director derived any improper personal benefit.
Neither the amendment or repeal of this Article, nor the adoption of any
provision of this Certificate of Incorporation inconsistent with this Article
shall adversely affect any right or protection of a director of the Corporation
existing at the time of such amendment or repeal.
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NINTH: The Corporation shall, to the fullest extent permitted by Section
145 of the General Corporation Law of the State of Delaware, as the same may be
amended and supplemented, or by any successor thereto, indemnify any and all
persons whom it shall have power to indemnify under said section from and
against any and all of the expenses, liabilities or other matters referred to in
or covered by said section. The Corporation shall advance expenses to the
fullest extent permitted by said section. Such right to indemnification and
advancement of expenses shall continue as to a person who has ceased to be a
director, officer, employee or agent and shall inure to the benefit of the
heirs, executors and administrators of such a person. The indemnification and
advancement of expenses provided for herein shall not be deemed exclusive of any
other rights to which those seeking indemnification or advancement of expenses
may be entitled under any By-Law, agreement, vote of stockholders or
disinterested directors or otherwise.
Executed at New York, New York on July 1, 1998.
/s/Martin H. Neidell
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Martin H. Neidell, Incorporator
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Exhibit 3.8
BY-LAWS
OF
RADIO UNICA OF SAN FRANCISCO LICENSE CORP.
(A Delaware Corporation)
ARTICLE I
STOCKHOLDERS
1. CERTIFICATES REPRESENTING STOCK.
(a) Every holder of stock in the Corporation shall be entitled to have
a certificate signed by, or in the name of, the Corporation by the Chairman or
Vice-Chairman of the Board of Directors, if any, or by the President or a
Vice-President and by the Treasurer or an Assistant Treasurer or the Secretary
or an Assistant Secretary of the Corporation representing the number of shares
owned by such person in the Corporation. If such certificate is countersigned by
a transfer agent other than the Corporation or its employee or by a registrar
other than the Corporation or its employee, any other signature on the
certificate may be a facsimile. In case any officer, transfer agent, or
registrar who has signed or whose facsimile signature has been placed upon a
certificate shall have ceased to be such officer, transfer agent or registrar
before such certificate is issued, it may be issued by the Corporation with the
same effect as if such person were such officer, transfer agent or registrar at
the date of issue.
(b) Whenever the Corporation shall be authorized to issue more than one
class of stock or more than one series of any class of stock, and whenever the
Corporation shall issue any shares of its stock as partly paid stock, the
certificates representing shares of any such class or series or of any such
partly paid stock shall set forth thereon the statements prescribed by the
General Corporation Law. Any restrictions on the transfer or registration of
transfer of any shares of stock of any class or series shall be noted
conspicuously on the certificate representing such shares.
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(c) The Corporation may issue a new certificate of stock in place of
any certificate theretofore issued by it, alleged to have been lost, stolen or
destroyed, and the Board of Directors may require the owner of any lost, stolen
or destroyed certificate, or such person's legal representative, to give the
Corporation a bond sufficient to indemnify the Corporation against any claim
that may be made against it on account of the alleged loss, theft or destruction
of any such certificate or the issuance of any such new certificate.
2. FRACTIONAL SHARE INTERESTS.
The Corporation may, but shall not be required to, issue fractions of a
share.
3. STOCK TRANSFERS.
Upon compliance with provisions restricting the transfer or
registration of transfer of shares of stock, if any, transfers or registration
of transfer of shares of stock of the Corporation shall be made only on the
stock ledger of the Corporation by the registered holder thereof, or by such
person's attorney thereunto authorized by power of attorney duly executed and
filed with the Secretary of the Corporation or with a transfer agent or a
registrar, if any, and on surrender of the certificate or certificates for such
shares of stock properly endorsed and the payment of all taxes due thereon.
4. RECORD DATE FOR STOCKHOLDERS.
(a) In order that the Corporation may determine the stockholders
entitled to notice of or to vote at any meeting of stockholders or any
adjournment thereof, the Board of Directors may fix a record date, which record
date shall not precede the date upon which the resolution fixing the record date
is adopted by the Board of Directors, and which record date shall not be more
than sixty nor less than ten days before the date of such meeting. If no record
date has been fixed by the Board of Directors, the record date for determining
stockholders entitled to notice of or to vote at a meeting of stockholders shall
be at the close of business on the day next preceding the day on which notice
is given, or, if notice is waived, at the close of business on the day next
preceding the day on which the meeting is held. A determination of stockholders
of record entitled to notice of or to vote at a meeting of stockholders shall
apply to any adjournment of the meeting; provided, however, that the Board of
Directors may fix a new record date for the adjourned meeting.
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(b) In order that the Corporation may determine the stockholders
entitled to receive payment of any dividend or other distribution or allotment
of any rights or the stockholders entitled to exercise any rights in respect of
any change, conversion or exchange of stock, or for the purpose of any other
lawful action, the Board of Directors may fix a record date, which record date
shall not precede the date upon which the resolution fixing the record date is
adopted, and which record date shall be not more than sixty days prior to such
action. If no record date has been fixed, the record date for determining
stockholders for any such purpose shall be at the close of business on the day
on which the Board of Directors adopts the resolution relating thereto.
5. MEANING OF CERTAIN TERMS.
As used herein in respect of the right to notice of a meeting of
stockholders or a waiver thereof or to participate or vote thereat or to consent
or dissent in writing in lieu of a meeting, as the case may be, the term "share"
or "shares" or "share of stock" or "shares of stock" or "stockholder" or
"stockholders" refers to an outstanding share or shares of stock and to a holder
or holders of record of outstanding shares of stock when the Corporation is
authorized to issue only one class of shares of stock, and said reference is
also intended to include any outstanding share or shares of stock and any holder
or holders of record of outstanding shares of stock of any class upon which or
upon whom the Certificate of Incorporation confers such rights where there are
two or more classes or series of shares of stock or upon which or upon whom the
General Corporation Law confers such rights notwithstanding that the Certificate
of Incorpo ration may provide for more than one class or series of shares of
stock, one or more of which are limited or denied such rights thereunder;
provided, however, that no such right shall vest in the event of an increase or
a decrease in the authorized number of shares of stock of any class or series
which is otherwise denied voting rights under the provisions of the Certificate
of Incorporation, including any preferred stock which is denied voting rights
under the provisions of the resolution or resolutions adopted by the Board of
Directors with respect to the issuance thereof.
6. STOCKHOLDER MEETINGS.
(a) TIME. The annual meeting shall be held on the date and at the time
fixed, from time to time, by the Board of Directors. A special meeting shall be
held on the date and at the time fixed by the Board of Directors.
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(b) PLACE. Annual meetings and special meetings shall be held at such
place, within or without the State of Delaware, as the Board of Directors may,
from time to time, fix. Whenever the Board of Directors shall fail to fix such
place, the meeting shall be held at the registered office of the Corporation in
the State of Delaware.
(c) CALL. Annual meetings and special meetings may be called by the
Board of Directors or by any officer instructed by the Board of Directors to
call the meeting.
(d) NOTICE OR WAIVER OF NOTICE. Written notice of all meetings shall be
given, stating the place, date and hour of the meeting. The notice of an annual
meeting shall state that the meeting is called for the election of Directors and
for the transaction of other business which may properly come before the
meeting, and shall (if any other action which could be taken at a special
meeting is to be taken at such annual meeting), state such other action or
actions as are known at the time of such notice. The notice of a special meeting
shall in all instances state the purpose or purposes for which the meeting is
called. If any action is proposed to be taken which would, if taken, entitle
stockholders to receive payment for their shares of stock, the notice shall
include a statement of that purpose and to that effect. Except as otherwise
provided by the General Corporation Law, a copy of the notice of any meeting
shall be given, personally or by mail, not less than ten days nor more than
sixty days before the date of the meeting, unless the lapse of the prescribed
period of time shall have been waived, and directed to each stockholder at such
person's address as it appears on the records of the Corporation. Notice by mail
shall be deemed to be given when deposited, with postage thereon prepaid, in the
United States mail. If a meeting is adjourned to another time, not more than
thirty days hence, and/or to another place, and if an announcement of the
adjourned time and place is made at the meeting, it shall not be necessary to
give notice of the adjourned meeting unless the Board of Directors, after
adjournment, fixes a new record date for the adjourned meeting. Notice need not
be given to any stockholder who submits a written waiver of notice before or
after the time stated therein. Attendance of a person at a meeting of
stockholders shall constitute a waiver of notice of such meeting, except when
the stockholder attends a meeting for the express purpose of objecting, at the
beginning of the meeting, to the transaction of any business because the meeting
is not lawfully called or convened. Neither the business to be transacted, nor
the purpose of, any regular or special meeting of the stockholders need be
specified in any written waiver of notice.
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(e) STOCKHOLDER LIST. There shall be prepared and made, at least ten
days before every meeting of stockholders, a complete list of the stockholders,
arranged in alphabetical order, and showing the address of each stockholder and
the number of shares registered in the name of each stockholder. Such list shall
be open to the examination of any stockholder, for any purpose germane to the
meeting, during ordinary business hours, for a period of at least ten days prior
to the meeting either at a place within the city where the meeting is to be
held, which place shall be specified in the notice of the meeting, or if not so
specified, at the place where the meeting is to be held. The list shall also be
produced and kept at the time and place of the meeting during the whole time
thereof, and may be inspected by any stockholder who is present. The stock
ledger shall be the only evidence as to who are the stockholders entitled to
examine the stock ledger, the list required by this section or the books of the
Corporation, or to vote at any meeting of stockholders.
(f) CONDUCT OF MEETING. Meetings of the stockholders shall be presided
over by one of the following officers in the order of seniority and if present
and acting: the Chairman of the Board, if any, the Vice-Chairman of the Board,
if any, the President, a Vice President, a chairman for the meeting chosen by
the Board of Directors or, if none of the foregoing is in office and present and
acting, by a chairman to be chosen by the stockholders. The Secretary of the
Corporation or, in such person's absence, an Assistant Secretary, shall act as
secretary of every meeting, but if neither the Secretary nor an Assistant
Secretary is present the chairman for the meeting shall appoint a secretary of
the meeting.
(g) PROXY REPRESENTATION. Every stockholder may authorize another
person or persons to act for such stockholder by proxy in all matters in which a
stockholder is entitled to participate, whether by waiving notice of any
meeting, voting or participating at a meeting, or expressing consent or dissent
without a meeting. Every proxy must be signed by the stockholder or by such
person's attorney-in-fact. No proxy shall be voted or acted upon after three
years from its date unless such proxy provides for a longer period. A duly
executed proxy shall be irrevocable if it states that it is irrevocable and, if,
and only as long as, it is coupled with an interest sufficient in law to support
an irrevocable power. A proxy may be made irrevocable regardless of whether the
interest with which it is coupled is an interest in the stock itself or an
interest in the Corporation generally.
(h) INSPECTORS AND JUDGES. The Board of Directors, in advance of any
meeting, may, but need not, appoint one or more inspectors of election or judges
of the vote, as the case may be, to act at the meeting or any adjournment
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thereof. If an inspector or inspectors or judge or judges are not appointed by
the Board of Directors, the person presiding at the meeting may, but need not,
appoint one or more inspectors or judges. In case any person who may be
appointed as an inspector or judge fails to appear or act, the vacancy may be
filled by appointment made by the person presiding thereat. Each inspector or
judge, if any, before entering upon the discharge of such person's duties, shall
take and sign an oath faithfully to execute the duties of inspector or judge at
such meeting with strict impartiality and according to the best of his ability.
The inspectors or judges, if any, shall determine the number of shares of stock
outstanding and the voting power of each, the shares of stock represented at the
meeting, the existence of a quorum and the validity and effect of proxies,
receive votes, ballots or consents, hear and determine all challenges and
questions arising in connection with the right to vote, count and tabulate all
votes, ballots or consents, determine the result, and do such other acts as are
proper to conduct the election or vote with fairness to all stockholders. On
request of the person presiding at the meeting, the inspector or inspectors or
judge or judges, if any, shall make a report in writing of any challenge,
question or matter determined by such person or persons and execute a
certificate of any fact so found.
(i) QUORUM. Except as the General Corporation Law or these By-Laws may
otherwise provide, the holders of a majority of the outstanding shares of stock
entitled to vote shall constitute a quorum at a meeting of stockholders for the
transaction of any business. The stockholders present may adjourn the meeting
despite the absence of a quorum. When a quorum is once present to organize a
meeting, it is not broken by the subsequent withdrawal of any shareholders.
(j) VOTING. Each stockholder entitled to vote in accordance with the
terms of the Certificate of Incorporation and of these By-Laws, or, with respect
to the issuance of preferred stock, in accordance with the terms of a resolution
or resolutions of the Board of Directors, shall be entitled to one vote, in
person or by proxy, for each share of stock entitled to vote held by such
stockholder. In the election of Directors, a plurality of the votes present at
the meeting shall elect. Any other action shall be authorized by a majority of
the votes cast except where the Certificate of Incorporation or the General
Corporation Law prescribes a different percentage of votes and/or a different
exercise of voting power.
Voting by ballot shall not be required for corporate action except as
otherwise provided by the General Corporation Law.
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7. STOCKHOLDER ACTION WITHOUT MEETINGS.
Any action required to be taken, or any action which may be taken, at
any annual or special meeting of stockholders, may be taken without a meeting,
without prior notice and without a vote, if a consent or consents in writing,
setting forth the action so taken, shall be signed by the holders of the
outstanding stock having not less than the minimum number of votes that would be
necessary to authorize or take such action at a meeting at which all shares
entitled to vote thereon were present and voted. Prompt notice of the taking of
the corporate action without a meeting by less than unanimous written consent
shall be given to those stockholders who have not consented in writing and shall
be delivered to the Corporation by delivery to its registered office in
Delaware, its principal place of business or an officer or agent of the
Corporation having custody of the book in which proceedings of meetings of
stockholders are recorded. Delivery made to the Corporation's registered office
shall be by hand or by certified or registered mail, return receipt requested.
ARTICLE II
DIRECTORS
1. FUNCTIONS AND DEFINITION.
The business and affairs of the Corporation shall be managed
by or under the direction of the Board of Directors of the Corporation. The use
of the phrase "whole Board" herein refers to the total number of Directors which
the Corporation would have if there were no vacancies.
2. QUALIFICATIONS AND NUMBER.
A Director need not be a stockholder, a citizen of the United
States, or a resident of the State of Delaware. The initial Board of Directors
shall consist of three persons. Thereafter the number of Directors constituting
the whole board shall be at least one. Subject to the foregoing limitation and
except for the first Board of Directors, such number may be fixed from time to
time by action of the stockholders or of the Board of Directors, or, if the
number is not fixed, the number shall be three. The number of Directors may be
increased or decreased by action of the stockholders or of the Board of
Directors.
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3. ELECTION AND TERM.
The first Board of Directors, unless the members thereof shall
have been named in the Certificate of Incorporation, shall be elected by the
incorporator or incorporators and shall hold office until the first annual
meeting of stockholders and until their successors have been elected and
qualified or until their earlier resignation or removal. Any Director may resign
at any time upon written notice to the Corporation. Thereafter, Directors who
are elected at an annual meeting of stockholders, and Directors who are elected
in the interim to fill vacancies and newly created Directorships, shall hold
office until the next annual meeting of stockholders and until their successors
have been elected and qualified or until their earlier resignation or removal.
In the interim between annual meetings of stockholders or of special meetings of
stockholders called for the election of Directors and/or for the removal of one
or more Directors and for the filling of any vacancies in the Board of
Directors, including vacancies resulting from the removal of Directors for
cause or without cause, any vacancy in the Board of Directors may be filled by
the vote of a majority of the remaining Directors then in office, although less
than a quorum, or by the sole remaining Director.
4. MEETINGS.
(a) TIME. Regular meetings shall be held at such time as the Board
shall fix. Special meetings may be called upon notice.
(b) FIRST MEETING. The first meeting of each newly elected Board may be
held immediately after each annual meeting of the stockholders at the same place
at which the meeting is held, and no notice of such meeting shall be necessary
to call the meeting, provided a quorum shall be present. In the event such first
meeting is not so held immediately after the annual meeting of the stockholders,
it may be held at such time and place as shall be specified in the notice given
as provided for special meetings of the Board of Directors, or at such time and
place as shall be fixed by the consent in writing of all of the Directors.
(c) PLACE. Meetings, both regular and special, shall be held at such
place within or without the State of Delaware as shall be fixed by the Board.
(d) CALL. No call shall be required for regular meetings for which the
time and place have been fixed. Special meetings may be called by or at the
direction
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of the Chairman of the Board, if any, the Vice-Chairman of the Board, if any, or
the President, or of a majority of the Directors.
(e) NOTICE OR ACTUAL OR CONSTRUCTIVE WAIVER. No notice shall be
required for regular meetings for which the time and place have been fixed.
Written, oral or any other mode of notice of the time and place shall be given
for special meetings at least twenty-four hours prior to the meeting; notice may
be given by telephone of telefax (in which case it is effective when given) or
by mail (in which case it is effective seventy-two hours after mailing by
prepaid first class mail). The notice of any meeting need not specify the
purpose of the meeting. Any requirement of furnishing a notice shall be waived
by any Director who signs a written waiver of such notice before or after the
time stated therein. Attendance of a Director at a meeting of the Board shall
constitute a waiver of notice of such meeting, except when the Director attends
a meeting for the express purpose of objecting, at the beginning of the meeting,
to the transaction of any business because the meeting is not lawfully called or
convened.
(f) QUORUM AND ACTION. A majority of the whole Board shall
constitute a quorum except when a vacancy or vacancies prevents such
majority, whereupon a majority of the Directors in office shall constitute a
quorum, provided that such majority shall constitute at least one-third (1/3)
of the whole Board. Any Director may participate in a meeting of the Board by
means of a conference telephone or similar communications equipment by means
of which all Directors participating in the meeting can hear each other, and
such participation in a meeting of the Board shall constitute presence in
person at such meeting. A majority of the Directors present, whether or not
a quorum is present, may adjourn a meeting to another time and place. Except
as herein otherwise provided, and except as otherwise provided by the General
Corporation Law, the act of the Board shall be the act by vote of a majority
of the Directors present at a meeting, a quorum being present. The quorum and
voting provisions herein stated shall not be construed as conflicting with
any provisions of the General Corporation Law and these By-Laws which govern
a meeting of Directors held to fill vacancies and newly created Directorships
in the Board.
(g) CHAIRMAN OF THE MEETING. The Chairman of the Board, if any and if
present and acting, shall preside at all meetings. Otherwise, the Vice-Chairman
of the Board, if any and if present and acting, or the President, if present and
acting, or any other Director chosen by the Board, shall preside.
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5. REMOVAL OF DIRECTORS.
Any or all of the Directors may be removed for cause or
without cause by the stockholders.
6. COMMITTEES.
The Board of Directors may, by resolution passed by a majority
of the whole Board, designate one or more committees, each committee to consist
of one or more of the Directors of the Corporation. The Board may designate one
or more Directors as alternate members of any committee, who may replace any
absent or disqualified member at any meeting of the committee. Any such
committee, to the extent provided in the resolution of the Board, shall have and
may exercise the powers of the Board of Directors in the management of the
business and affairs of the Corporation, and may authorize the seal of the
Corporation to be affixed to all papers which may require it. In the absence or
disqualification of any member of any such committee or committees, the members
thereof present at any meeting and not disqualified from voting, whether or not
they constitute a quorum, may unanimously appoint another member of the Board of
Directors to act at the meeting in the place of any such absent or disqualified
member.
7. ACTION IN WRITING.
Any action required or permitted to be taken at any meeting of
the Board of Directors or any committee thereof may be taken without a meeting
if all members of the Board or committee, as the case may be, consent thereto in
writing, and the writing or writings are filed with the minutes of proceedings
of the Board or committee.
ARTICLE III
OFFICERS
1. EXECUTIVE OFFICERS.
The Board of Directors may elect or appoint a Chairman of the
Board of Directors, a President, one or more Vice Presidents (which may be
denominated with additional descriptive titles), a Secretary, one or more
Assistant Secretaries, a
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Treasurer, one or more Assistant Treasurers and such other officers as it may
determine. Any number of offices may be held by the same person.
2. TERM OF OFFICE: REMOVAL.
Unless otherwise provided in the resolution of election or
appointment, each officer shall hold office until the meeting of the Board of
Directors following the next annual meeting of stockholders and until such
officer's successor has been elected and qualified or until the earlier
resignation or removal of such officer. The Board of Directors may remove any
officer for cause or without cause.
3. AUTHORITY AND DUTIES.
All officers, as between themselves and the Corporation, shall
have such authority and perform such duties in the management of the Corporation
as may be provided in these By-Laws, or, to the extent not so provided, by the
Board of Directors.
4. THE CHAIRMAN OF THE BOARD OF DIRECTORS.
The Chairman of the Board of Directors, if present and acting,
shall preside at all meetings of the Board of Directors, otherwise, the
President, if present, shall preside, or if the President does not so preside,
any other Director chosen by the Board shall preside. The Chairman of the Board
of Directors shall be the chief executive officer of the Corporation.
5. THE PRESIDENT.
The President shall be the chief operating officer of the
Corporation.
6. VICE PRESIDENTS.
Any Vice President that may have been appointed, in the
absence or disability of the President, shall perform the duties and exercise
the powers of the President, in the order of their seniority, and shall perform
such other duties as the Board of Directors shall prescribe.
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7. THE SECRETARY.
The Secretary shall keep in safe custody the seal of the
Corporation and affix it to any instrument when authorized by the Board of
Directors, and shall perform such other duties as may be prescribed by the Board
of Directors. The Secretary (or in such officer's absence, an Assistant
Secretary, but if neither is present another person selected by the Chairman for
the meeting) shall have the duty to record the proceedings of the meetings of
the stockholders and Directors in a book to be kept for that purpose.
8. THE TREASURER.
The Treasurer shall have the care and custody of the corporate
funds, and other valuable effects, including securities, and shall keep full and
accurate accounts of receipts and disbursements in books belonging to the
Corporation and shall deposit all moneys and other valuable effects in the name
and to the credit of the Corporation in such depositories as may be designated
by the Board of Directors. The Treasurer shall disburse the funds of the
Corporation as may be ordered by the Board, taking proper vouchers for such
disbursements, and shall render to the President and Directors, at the regular
meetings of the Board, or whenever they may require it, an account of all
transactions as Treasurer and of the financial condition of the Corporation. If
required by the Board of Directors, the Treasurer shall give the Corporation a
bond for such term, in such sum and with such surety or sureties as shall be
satisfactory to the Board for the faithful performance of the duties of such
office and for the restoration to the Corporation, in case of such person's
death, resignation, retirement or removal from office, of all books, papers,
vouchers, money and other property of whatever kind in such person's possession
or under such person's control belonging to the Corporation.
ARTICLE IV
CORPORATE SEAL
AND
CORPORATE BOOKS
The corporate seal shall be in such form as the Board of
Directors shall prescribe. The books of the Corporation may be kept within or
without the
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State of Delaware, at such place or places as the Board of directors may, from
time to time, determine.
ARTICLE V
FISCAL YEAR
The fiscal year of the Corporation shall be fixed, and shall
be subject to change, by the Board of Directors.
ARTICLE VI
INDEMNITY
(a) Any person who was or is a party or threatened to be made a party
to any threatened, pending or completed action, suit or proceeding, whether
civil, criminal, administrative or investigative (other than an action by or in
the right of the Corporation) by reason of the fact that he or she is or was a
Director, officer, employee or agent of the Corporation or is or was serving at
the request of the Corporation as director, officer, employee or agent of
another corporation, partner ship, joint venture, trust or other enterprise
(including employee benefit plans) (hereinafter an "indemnitee"), shall be
indemnified and held harmless by the Corporation to the fullest extent
authorized by the General Corporation Law, as the same exists or may hereafter
be amended (but, in the case of any such amendment, only to the extent that such
amendment permits the Corporation to provide broader indemni fication than
permitted prior thereto), against expenses (including attorneys' fees),
judgments, fines and amounts paid in settlement actually and reasonably incurred
by such indemnitee in connection with such action, suit or proceeding, if the
indemnitee acted in good faith and in a manner he or she reasonably believed to
be in or not opposed to the best interests of the Corporation, and with respect
to any criminal action or proceeding, had no reasonable cause to believe such
conduct was unlawful. The termination of the proceeding, whether by judgment,
order, settlement, conviction or upon a plea of nolo contendere or its
equivalent, shall not, of itself, create a presumption that the person did not
act in good faith and in a manner which he or she reasonably believed to be in
or not opposed to the best interests of the Corporation and, with respect to any
criminal action or proceeding, had reasonable cause to believe such conduct was
unlawful.
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(b) Any person who was or is a party or is threatened to be made a
party to any threatened, pending or completed action or suit by or in the right
of the Corporation to procure a judgment in its favor by reason of the fact that
he or she is or was a Director, officer, employee or agent of the Corporation,
or is or was serving at the request of the Corporation as a director, officer,
employee or agent of another Corporation, partnership, joint venture, trust or
other enterprise (including employee benefit plans) shall be indemnified and
held harmless by the Corporation to the fullest extent authorized by the General
Corporation Law, as the same exists or may hereafter be amended (but, in the
case of any such amendment, only to the extent that such amendment permits the
Corporation to provide broader indemnification than permitted prior thereto),
against expenses (including attorneys' fees) actually and reasonably incurred by
him or her in connection with the defense or settlement of such action or suit
if he or she acted in good faith and in a manner he or she reasonably believed
to be in or not opposed to the best interests of the Corporation and except that
no indemnification shall be made in respect of any claim, issue or matter as to
which such person shall have been adjudged to be liable to the Corporation
unless and only to the extent that the Court in which such suit or action was
brought, shall determine, upon application, that, despite the adjudication of
liability but in view of all the circumstances of the case, such person is
fairly and reasonably entitled to indem nity for such expenses which such court
shall deem proper.
(c) All reasonable expenses incurred by or on behalf of the indemnitee
in connection with any suit, action or proceeding, may be advanced to the
indemnitee by the Corporation.
(d) The rights to indemnification and to advancement of expenses con
ferred in this article shall not be exclusive of any other right which any
person may have or hereafter acquire under any statute, the Certificate of
Incorporation, a By-Law of the Corporation, agreement, vote of stockholders or
disinterested Directors or otherwise.
(e) The indemnification and advancement of expenses provided by this
article shall continue as to a person who has ceased to be a Director, officer,
employee or agent and shall inure to the benefit of the heirs, executors and
administrators of such person.
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Exhibit 3.9
CERTIFICATE OF INCORPORATION
OF
RADIO UNICA OF MIAMI, INC.
FIRST: The name of the Corporation is Radio Unica of Miami,
Inc. (hereinafter the "Corporation").
SECOND: The address of the registered office of the
Corporation in the State of Delaware is 1209 Orange Street, in the City of
Wilmington, County of New Castle. The name of its registered agent at that
address is The Corporation Trust Company.
THIRD: The purpose of the Corporation is to engage in any
lawful act or activity for which a corporation may be organized under the
General Corporation Law of the State of Delaware as set forth in Title 8 of the
Delaware Code (the "GCL").
FOURTH: The total number of shares of stock which the
Corporation shall have authority to issue is one thousand (1000) shares of
Common Stock, each having a par value of one penny ($.01).
FIFTH: The name and mailing address of the Sole Incorporator
is as follows:
Lynn T. Buckley
P.O. Box 636
Wilmington, DE 19899
SIXTH: The following provisions are inserted for the
management of the business and the conduct of the affairs of the Corporation,
and for further definition, limitation and regulation of the powers of the
Corporation and of its directors and stockholders:
(1) The business and affairs of the Corporation shall be
managed by or under the direction of the Board of Directors.
<PAGE>
(2) The directors shall have concurrent power with the
stockholders to make, alter, amend, change, add to or repeal the
By-Laws of the Corporation.
(3) The number of directors of the Corporation shall be as
from time to time fixed by, or in the manner provided in, the By-Laws
of the Corporation. Election of directors need not be by written ballot
unless the By-Laws so provide.
(4) No director shall be personally liable to the Corporation
or any of its stockholders for monetary damages for breach of fiduciary
duty as a director, except for liability (i) for any breach of the
director's duty of loyalty to the Corporation or its stockholders, (ii)
for acts or omissions not in good faith or which involve intentional
misconduct or a knowing violation of law, (iii) pursuant to Section 174
of the GCL or (iv) for any transaction from which the director derived
an improper personal benefit. Any repeal or modification of this
Article SIXTH by the stockholders of the Corporation shall not
adversely affect any right or protection of a director of the
Corporation existing at the time of such repeal or modification with
respect to acts or omissions occurring prior to such repeal or
modification.
(5) In addition to the powers and authority hereinbefore or by
statute expressly conferred upon them, the directors are hereby
empowered to exercise all such powers and do all such acts and things
as may be exercised or done by the Corporation, subject, nevertheless,
to the provisions of the GCL, this Certificate of Incorporation, and
any By-Laws adopted by the stockholders; provided, however, that no
By-Laws hereafter adopted by the stockholders shall invalidate any
prior act of the directors which would have been valid if such By-Laws
had not been adopted.
SEVENTH: Meetings of stockholders may be held within or
without the State of Delaware, as the By-Laws may provide. The books of the
Corporation may be kept (subject to any provision contained in the GCL) outside
the State of Delaware at such place or places as may be designated from time to
time by the Board of Directors or in the By-Laws of the Corporation.
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EIGHTH: The Corporation reserves the right to amend, alter,
change or repeal any provision contained in this Certificate of Incorporation,
in the manner now or hereafter prescribed by statute, and all rights conferred
upon stockholders herein are granted subject to this reservation.
I, THE UNDERSIGNED, being the Sole Incorporator hereinbefore
named, for the purpose of forming a corporation pursuant to the GCL, do make
this Certificate, hereby declaring and certifying that this is my act and deed
and the facts herein stated are true, and accordingly have hereunto set my hand
this 5th day of February, 1998.
/s/ Lynn T. Buckley
------------------------------
Lynn T. Buckley
Sole Incorporator
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Exhibit 3.10
BY-LAWS
OF
RADIO UNICA OF MIAMI, INC.
(A Delaware Corporation)
ARTICLE I
---------
STOCKHOLDERS
------------
1. CERTIFICATES REPRESENTING STOCK.
(a) Every holder of stock in the Corporation shall be entitled
to have a certificate signed by, or in the name of, the Corporation by the
Chairman or Vice-Chairman of the Board of Directors, if any, or by the President
or a Vice President and by the Treasurer or an Assistant Treasurer or the
Secretary or an Assistant Secretary of the Corporation representing the number
of shares owned by such person in the Corporation. If such certificate is
countersigned by a transfer agent other than the Corporation or its employee or
by a registrar other than the Corporation or its employee, any other signature
on the certificate may be a facsimile. In case any officer, transfer agent, or
registrar who has signed or whose facsimile signature has been placed upon a
certificate shall have ceased to be such officer, transfer agent or registrar
before such certificate is issued, it may be issued by the Corporation with the
same effect as if such person were such officer, transfer agent or registrar at
the date of issue.
(b) Whenever the Corporation shall be authorized to issue more
than one class of stock or more than one series of any class of stock, and
whenever the Corporation shall issue any shares of its stock as partly paid
stock, the certificates representing shares of any such class or series or of
any such partly paid stock shall set forth thereon the statements prescribed by
the General Corporation Law. Any restrictions on the transfer or registration of
transfer of any shares of stock of any class or series shall be noted
conspicuously on the certificate representing such shares.
<PAGE>
(c) The Corporation may issue a new certificate of stock in
place of any certificate theretofore issued by it, alleged to have been lost,
stolen or destroyed, and the Board of Directors may require the owner of any
lost, stolen or destroyed certificate, or such person's legal representative, to
give the Corporation a bond sufficient to indemnify the Corporation against any
claim that may be made against it on account of the alleged loss, theft or
destruction of any such certificate or the issuance of any such new certificate.
2. FRACTIONAL SHARE INTERESTS.
The Corporation may, but shall not be required to, issue fractions of a
share.
3. STOCK TRANSFERS.
Upon compliance with provisions restricting the transfer or
registration of transfer of shares of stock, if any, transfers or registration
of transfer of shares of stock of the Corporation shall be made only on the
stock ledger of the Corporation by the registered holder thereof, or by such
person's attorney thereunto authorized by power of attorney duly executed and
filed with the Secretary of the Corporation or with a transfer agent or a
registrar, if any, and on surrender of the certificate or certificates for such
shares of stock properly endorsed and the payment of all taxes due thereon.
4. RECORD DATE FOR STOCKHOLDERS.
(a) In order that the Corporation may determine the
stockholders entitled to notice of or to vote at any meeting of stockholders or
any adjournment thereof, the Board of Directors may fix a record date, which
record date shall not precede the date upon which the resolution fixing the
record date is adopted by the Board of Directors, and which record date shall
not be more than sixty nor less than ten days before the date of such meeting.
If no record date has been fixed by the Board of Directors, the record date for
determining stockholders entitled to notice of or to vote at a meeting of
stockholders shall be at the close of business on the day next preceding the day
on which notice is given, or, if notice is waived, at the close of business on
the day next preceding the day on which the meeting is held. A determination of
stockholders of record entitled to notice of or to vote at a meeting of
stockholders shall apply to any adjournment of the meeting; provided, however,
that the Board of Directors may fix a new record date for the adjourned meeting.
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(b) In order that the Corporation may determine the
stockholders entitled to receive payment of any dividend or other distribution
or allotment of any rights or the stockholders entitled to exercise any rights
in respect of any change, conversion or exchange of stock, or for the purpose of
any other lawful action, the Board of Directors may fix a record date, which
record date shall not precede the date upon which the resolution fixing the
record date is adopted, and which record date shall be not more than sixty days
prior to such action. If no record date has been fixed, the record date for
determining stockholders for any such purpose shall be at the close of business
on the date on which the Board of Directors adopts the resolution relating
thereto.
5. MEANING OF CERTAIN TERMS.
As used herein in respect of the right to notice of a meeting of
stockholders or a waiver thereof or to participate or vote thereat or to consent
or dissent in writing in lieu of a meeting, as the case may be, the term "share"
or "shares" or "share of stock" or "shares of stock" or "stockholder" or
"stockholders" refers to an outstanding share or shares of stock and to a holder
or holders of record of outstanding shares of stock when the Corporation is
authorized to issue only one class of shares of stock, and said reference is
also intended to include any outstanding share or shares of stock and any holder
or holders of record of outstanding shares of stock of any class upon which or
upon whom the Certificate of Incorporation confers such rights where there are
two or more classes or series of shares of stock or upon which or upon whom the
General Corporation Law confers such rights notwithstanding that the Certificate
of Incorporation may provide for more than one class or series of shares of
stock, one or more of which are limited or denied such rights thereunder;
provided, however, that no such right shall vest in the event of an increase or
a decrease in the authorized number of shares of stock of any class or series
which is otherwise denied voting rights under the provisions of the Certificate
of Incorporation, including any preferred stock which is denied voting rights
under the provisions of the resolution or resolutions adopted by the Board of
Directors with respect to the issuance thereof.
6. STOCKHOLDER MEETINGS.
(a) TIME. The annual meeting shall be held on the date and at
the time fixed, from time to time, by the Board of Directors. A special meeting
shall be held on the date and at the time fixed by the Board of Directors.
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(b) PLACE. Annual meetings and special meetings shall be held
at such place, within or without the State of Delaware, as the Board of
Directors may, from time to time, fix. Whenever the Board of Directors shall
fail to fix such place, the meeting shall be held at the registered office of
the Corporation in the State of Delaware.
(c) CALL. Annual meetings and special meetings may be called
by the Board of Directors or by any officer instructed by the Board of Directors
to call the meeting.
(d) NOTICE OR WAIVER OF NOTICE. Written notice of all meetings
shall be given, stating the place, date and hour of the meeting. The notice of
an annual meeting shall state that the meeting is called for the election of
Directors and for the transaction of other business which may properly come
before the meeting, and shall (if any other action which could be taken at a
special meeting is to be taken at such annual meeting), state such other action
or actions as are known at the time of such notice. The notice of a special
meeting shall in all instances state the purpose or purposes for which the
meeting is called. If any action is proposed to be taken which would, if taken,
entitle stockholders to receive payment for their shares of stock, the notice
shall include a statement of that purpose and to that effect. Except as
otherwise provided by the General Corporation Law, a copy of the notice of any
meeting shall be given, personally or by mail, not less than ten days nor more
than sixty days before the date of the meeting, unless the lapse of the
prescribed period of time shall have been waived, and directed to each
stockholder at such person's address as it appears on the records of the
Corporation. Notice by mail shall be deemed to be given when deposited, with
postage thereon prepaid, in the United States mail. If a meeting is adjourned to
another time, not more than thirty days hence, and/or to another place, and if
an announcement of the adjourned time and place is made at the meeting, it shall
not be necessary to give notice of the adjourned meeting unless the Board of
Directors, after adjournment, fixes a new record date for the adjourned meeting.
Notice need not be given to any stockholder who submits a written waiver of
notice before or after the time stated therein. Attendance of a person at a
meeting of stockholders shall constitute a waiver of notice of such meeting,
except when the stockholder attends a meeting for the express purpose of
objecting, at the beginning of the meeting, to the transaction of any business
because the meeting is not lawfully called or convened. Neither the business to
be transacted, nor the purpose of, any regular or special meeting of the
stockholders need be specified in any written waiver of notice.
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(e) STOCKHOLDER LIST. There shall be prepared and made, at
least ten days before every meeting of stockholders, a complete list of the
stockholders, arranged in alphabetical order, and showing the address of each
stockholder and the number of shares registered in the name of each stockholder.
Such list shall be open to the examination of any stockholder, for any purpose
germane to the meeting, during ordinary business hours, for a period of at least
ten days prior to the meeting either at a place within the city where the
meeting is to be held, which place shall be specified in the notice of the
meeting, or if not so specified, at the place where the meeting is to be held.
The list shall also be produced and kept at the time and place of the meeting
during the whole time thereof, and may be inspected by any stockholder who is
present. The stock ledger shall be the only evidence as to who are the
stockholders entitled to examine the stock ledger, the list required by this
section or the books of the Corporation, or to vote at any meeting of
stockholders.
(f) CONDUCT OF MEETING. Meetings of the stockholders shall be
presided over by one of the following officers in the order of seniority and if
present and acting: the Chairman of the Board, if any, the Vice-Chairman of the
Board, if any, the President, a Vice President, a chairman for the meeting
chosen by the Board of Directors or, if none of the foregoing is in office and
present and acting, by a chairman to be chosen by the stockholders. The
Secretary of the Corporation or, in such person's absence, an Assistant
Secretary, shall act as secretary of every meeting, but if neither the Secretary
nor an Assistant Secretary is present the chairman for the meeting shall appoint
a secretary of the meeting.
(g) PROXY REPRESENTATION. Every stockholder may authorize
another person or persons to act for such stockholder by proxy in all matters in
which a stockholder is entitled to participate, whether by waiving notice of any
meeting, voting or participating at a meeting, or expressing consent or dissent
without a meeting. Every proxy must be signed by the stockholder or by such
person's attorney-in-fact. No proxy shall be voted or acted upon after three
years from its date unless such proxy provides for a longer period. A duly
executed proxy shall be irrevocable if it states that it is irrevocable and, if,
and only as long as, it is coupled with an interest sufficient in law to support
an irrevocable power. A proxy may be made irrevocable regardless of whether the
interest with which it is coupled is an interest in the stock itself or an
interest in the Corporation generally.
(h) INSPECTORS AND JUDGES. The Board of Directors, in advance
of any meeting, may, but need not, appoint one or more inspectors of election or
judges of the vote, as the case may be, to act at the meeting or any adjournment
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thereof. If an inspector or inspectors or judge or judges are not appointed by
the Board of Directors, the person presiding at the meeting may, but need not,
appoint one or more inspectors or judges. In case any person who may be
appointed as an inspector or judge fails to appear or act, the vacancy may be
filled by appointment made by the person presiding thereat. Each inspector or
judge, if any, before entering upon the discharge of such person's duties, shall
take and sign an oath faithfully to execute the duties of inspector or judge at
such meeting with strict impartiality and according to the best of his ability.
The inspectors or judges, if any, shall determine the number of shares of stock
outstanding and the voting power of each, the shares of stock represented at the
meeting, the existence of a quorum and the validity and effect of proxies,
receive votes, ballots or consents, hear and determine all challenges and
questions arising in connection with the right to vote, count and tabulate all
votes, ballots or consents, determine the result, and do such other acts as are
proper to conduct the election or vote with fairness to all stockholders. On
request of the person presiding at the meeting, the inspector or inspectors or
judge or judges, if any, shall make a report in writing of any challenge,
question or matter determined by such person or persons and execute a
certificate of any fact so found.
(i) QUORUM. Except as the General Corporation Law or these
By-Laws may otherwise provide, the holders of a majority of the outstanding
shares of stock entitled to vote shall constitute a quorum at a meeting of
stockholders for the transaction of any business. The stockholders present may
adjourn the meeting despite the absence of a quorum. When a quorum is once
present to organize a meeting, it is not broken by the subsequent withdrawal of
any shareholders.
(j) VOTING. Each stockholder entitled to vote in accordance
with the terms of the Certificate of Incorporation and of these By-Laws, or,
with respect to the issuance of preferred stock, in accordance with the terms of
a resolution or resolutions of the Board of Directors, shall be entitled to one
vote, in person or by proxy, for each share of stock entitled to vote held by
such stockholder. In the election of Directors, a plurality of the votes present
at the meeting shall elect. Any other action shall be authorized by a majority
of the votes cast except where the Certificate of Incorporation or the General
Corporation Law prescribes a different percentage of votes and/or a different
exercise of voting power.
Voting by ballot shall not be required for corporate action except as
otherwise provided by the General Corporation Law.
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7. STOCKHOLDER ACTION WITHOUT MEETINGS.
Any action required to be taken, or any action which may be taken, at
any annual or special meeting of stockholders, may be taken without a meeting,
without prior notice and without a vote, if a consent or consents in writing,
setting forth the action so taken, shall be signed by the holders of the
outstanding stock having not less than the minimum number of votes that would be
necessary to authorize or take such action at a meeting at which all shares
entitled to vote thereon were present and voted. Prompt notice of the taking of
the corporate action without a meeting by less than unanimous written consent
shall be given to those stockholders who have not consented in writing and shall
be delivered to the Corporation by delivery to its registered office in
Delaware, its principal place of business or an officer or agent of the
Corporation having custody of the book in which proceedings of meetings of
stockholders are recorded. Delivery made to the Corporation's registered office
shall be by hand or by certified or registered mail, return receipt requested.
ARTICLE II
----------
DIRECTORS
---------
1. FUNCTIONS AND DEFINITION.
The business and affairs of the Corporation shall be managed
by or under the direction of the Board of Directors of the Corporation. The use
of the phrase "whole Board" herein refers to the total number of Directors which
the Corporation would have if there were no vacancies.
2. QUALIFICATIONS AND NUMBER.
A Director need not be a stockholder, a citizen of the United
States, or a resident of the State of Delaware. The initial Board of Directors
shall consist of three (3) persons. Thereafter the number of Directors
constituting the whole board shall be at least one. Subject to the foregoing
limitation and except for the first Board of Directors, such number may be fixed
from time to time by action of the stockholders or of the Board of Directors,
or, if the number is not fixed, the number shall be three. The number of
Directors may be increased or decreased by action of the stockholders or of the
Board of Directors.
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3. ELECTION AND TERM.
The first Board of Directors, unless the members thereof shall
have been named in the Certificate of Incorporation, shall be elected by the
incorporator or incorporators and shall hold office until the first annual
meeting of stockholders and until their successors have been elected and
qualified or until their earlier resignation or removal. Any Director may resign
at any time upon written notice to the Corporation. Thereafter, Directors who
are elected at an annual meeting of stockholders, and Directors who are elected
in the interim to fill vacancies and newly created Directorships, shall hold
office until the next annual meeting of stockholders and until their successors
have been elected and qualified or until their earlier resignation or removal.
In the interim between annual meetings of stockholders or of special meetings of
stockholders called for the election of Directors and/or for the removal of one
or more Directors and for the filling of any vacancies in the Board of
Directors, including vacancies resulting from the removal of Directors for cause
or without cause, any vacancy in the Board of Directors may be filled by the
vote of a majority of the remaining Directors then in office, although less than
a quorum, or by the sole remaining Director.
4. MEETINGS.
(a) TIME. Regular meetings shall be held at such time as the
Board shall fix. Special meetings may be called upon notice.
(b) FIRST MEETING. The first meeting of each newly elected
Board may be held immediately after each annual meeting of the stockholders at
the same place at which the meeting is held, and no notice of such meeting shall
be necessary to call the meeting, provided a quorum shall be present. In the
event such first meeting is not so held immediately after the annual meeting of
the stockholders, it may be held at such time and place as shall be specified in
the notice given as provided for special meetings of the Board of Directors, or
at such time and place as shall be fixed by the consent in writing of all of the
Directors.
(c) PLACE. Meetings, both regular and special, shall be held
at such place within or without the State of Delaware as shall be fixed by the
Board.
(d) CALL. No call shall be required for regular meetings for
which the time and place have been fixed. Special meetings may be called by or
at the direction
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of the Chairman of the Board, if any, the Vice-Chairman of the Board, if any, or
the President, or of a majority of the Directors.
(e) NOTICE OR ACTUAL OR CONSTRUCTIVE WAIVER. No notice shall
be required for regular meetings for which the time and place have been fixed.
Written, oral or any other mode of notice of the time and place shall be given
for special meetings at least twenty-four hours prior to the meeting; notice may
be given by telephone of telefax (in which case it is effective when given) or
by mail (in which case it is effective seventy-two hours after mailing by
prepaid first class mail). The notice of any meeting need not specify the
purpose of the meeting. Any requirement of furnishing a notice shall be waived
by any Director who signs a written waiver of such notice before or after the
time stated therein. Attendance of a Director at a meeting of the Board shall
constitute a waiver of notice of such meeting, except when the Director attends
a meeting for the express purpose of objecting, at the beginning of the meeting,
to the transaction of any business because the meeting is not lawfully called or
convened.
(f) QUORUM AND ACTION. A majority of the whole Board shall
constitute a quorum except when a vacancy or vacancies prevents such majority,
whereupon a majority of the Directors in office shall constitute a quorum,
provided that such majority shall constitute at least one-third (1/3) of the
whole Board. Any Director may participate in a meeting of the Board by means of
a conference telephone or similar communications equipment by means of which all
Directors participating in the meeting can hear each other, and such
participation in a meeting of the Board shall constitute presence in person at
such meeting. A majority of the Directors present, whether or not a quorum is
present, may adjourn a meeting to another time and place. Except as herein
otherwise provided, and except as otherwise provided by the General Corporation
Law, the act of the Board shall be the act by vote of a majority of the
Directors present at a meeting, a quorum being present. The quorum and voting
provisions herein stated shall not be construed as conflicting with any
provisions of the General Corporation Law and these By-Laws which govern a
meeting of Directors held to fill vacancies and newly created Directorships in
the Board.
(g) CHAIRMAN OF THE MEETING. The Chairman of the Board, if any
and if present and acting, shall preside at all meetings. Otherwise, the
Vice-Chairman of the Board, if any and if present and acting, or the President,
if present and acting, or any other Director chosen by the Board, shall preside.
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5. REMOVAL OF DIRECTORS.
Any or all of the Directors may be removed for cause or
without cause by the stockholders.
6. COMMITTEES.
The Board of Directors may, by resolution passed by a majority
of the whole Board, designate one or more committees, each committee to consist
of one or more of the Directors of the Corporation. The Board may designate one
or more Directors as alternate members of any committee, who may replace any
absent or disqualified member at any meeting of the committee. Any such
committee, to the extent provided in the resolution of the Board, shall have and
may exercise the powers of the Board of Directors in the management of the
business and affairs of the Corporation, and may authorize the seal of the
Corporation to be affixed to all papers which may require it. In the absence or
disqualification of any member of any such committee or committees, the members
thereof present at any meeting and not disqualified from voting, whether or not
they constitute a quorum, may unanimously appoint another member of the Board of
Directors to act at the meeting in the place of any such absent or disqualified
member.
7. ACTION IN WRITING.
Any action required or permitted to be taken at any meeting of
the Board of Directors or any committee thereof may be taken without a meeting
if all members of the Board or committee, as the case may be, consent thereto in
writing, and the writing or writings are filed with the minutes of proceedings
of the Board or committee.
ARTICLE III
-----------
OFFICERS
--------
1. EXECUTIVE OFFICERS.
The Board of Directors may elect or appoint a Chairman of the
Board of Directors, a President, one or more Vice Presidents (which may be
denominated with additional descriptive titles), a Secretary, one or more
Assistant Secretaries, a
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Treasurer, one or more Assistant Treasurers and such other officers as it may
determine. Any number of offices may be held by the same person.
2. TERM OF OFFICE: REMOVAL.
Unless otherwise provided in the resolution of election or
appointment, each officer shall hold office until the meeting of the Board of
Directors following the next annual meeting of stockholders and until such
officer's successor has been elected and qualified or until the earlier
resignation or removal of such officer. The Board of Directors may remove any
officer for cause or without cause.
3. AUTHORITY AND DUTIES.
All officers, as between themselves and the Corporation, shall
have such authority and perform such duties in the management of the Corporation
as may be provided in these By-Laws, or, to the extent not so provided, by the
Board of Directors.
4. THE CHAIRMAN OF THE BOARD OF DIRECTORS.
The Chairman of the Board of Directors, if present and acting,
shall preside at all meetings of the Board of Directors, otherwise, the
President, if present, shall preside, or if the President does not so preside,
any other Director chosen by the Board shall preside. The Chairman of the Board
of Directors shall be the chief executive officer of the Corporation.
5. THE PRESIDENT.
The President shall be the chief operating officer of the
Corporation.
6. VICE PRESIDENTS.
Any Vice President that may have been appointed, in the
absence or disability of the President, shall perform the duties and exercise
the powers of the President, in the order of their seniority, and shall perform
such other duties as the Board of Directors shall prescribe.
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7. THE SECRETARY.
The Secretary shall keep in safe custody the seal of the
Corporation and affix it to any instrument when authorized by the Board of
Directors, and shall perform such other duties as may be prescribed by the Board
of Directors. The Secretary (or in such officer's absence, an Assistant
Secretary, but if neither is present another person selected by the Chairman for
the meeting) shall have the duty to record the proceedings of the meetings of
the stockholders and Directors in a book to be kept for that purpose.
8. THE TREASURER.
The Treasurer shall have the care and custody of the corporate
funds, and other valuable effects, including securities, and shall keep full and
accurate accounts of receipts and disbursements in books belonging to the
Corporation and shall deposit all moneys and other valuable effects in the name
and to the credit of the Corporation in such depositories as may be designated
by the Board of Directors. The Treasurer shall disburse the funds of the
Corporation as may be ordered by the Board, taking proper vouchers for such
disbursements, and shall render to the President and Directors, at the regular
meetings of the Board, or whenever they may require it, an account of all
transactions as Treasurer and of the financial condition of the Corporation. If
required by the Board of Directors, the Treasurer shall give the Corporation a
bond for such term, in such sum and with such surety or sureties as shall be
satisfactory to the Board for the faithful performance of the duties of such
office and for the restoration to the Corporation, in case of such person's
death, resignation, retirement or removal from office, of all books, papers,
vouchers, money and other property of whatever kind in such person's possession
or under such person's control belonging to the Corporation.
ARTICLE IV
CORPORATE SEAL
AND
CORPORATE BOOKS
The corporate seal shall be in such form as the Board of
Directors shall prescribe. The books of the Corporation may be kept within or
without the
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State of Delaware, at such place or places as the Board of directors may, from
time to time, determine.
ARTICLE V
---------
FISCAL YEAR
-----------
The fiscal year of the Corporation shall be fixed, and shall
be subject to change, by the Board of Directors.
ARTICLE VI
----------
INDEMNITY
---------
(a) Any person who was or is a party or threatened to be made
a party to any threatened, pending or completed action, suit or proceeding,
whether civil, criminal, administrative or investigative (other than an action
by or in the right of the Corporation) by reason of the fact that he or she is
or was a Director, officer, employee or agent of the Corporation or is or was
serving at the request of the Corporation as director, officer, employee or
agent of another corporation, partnership, joint venture, trust or other
enterprise (including employee benefit plans) (hereinafter an "indemnitee"),
shall be indemnified and held harmless by the Corporation to the fullest extent
authorized by the General Corporation Law, as the same exists or may hereafter
be amended (but, in the case of any such amendment, only to the extent that such
amendment permits the Corporation to provide broader indemnification than
permitted prior thereto), against expenses (including attorneys' fees),
judgments, fines and amounts paid in settlement actually and reasonably incurred
by such indemnitee in connection with such action, suit or proceeding, if the
indemnitee acted in good faith and in a manner he or she reasonably believed to
be in or not opposed to the best interests of the Corporation, and with respect
to any criminal action or proceeding, had no reasonable cause to believe such
conduct was unlawful. the termination of the proceeding, whether by judgment,
order, settlement, conviction or upon a plea of nolo contendere or its
equivalent, shall not, of itself, create a presumption that the person did not
act in good faith and in a manner which he or she reasonably believed to be in
or not opposed to the best interests of the Corporation and, with respect to any
criminal action or proceeding, had reasonable cause to believe such conduct was
unlawful.
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(b) Any person who was or is a party or is threatened to be
made a party to any threatened, pending or completed action or suit by or in the
right of the Corporation to procure a judgment in its favor by reason of the
fact that he or she is or was a Director, officer, employee or agent of the
Corporation, or is or was serving at the request of the corporation as a
director, officer, employee or agent of another Corporation, partnership, joint
venture, trust or other enterprise (including employee benefit plans) shall be
indemnified and held harmless by the Corporation to the fullest extent
authorized by the General Corporation Law, as the same exists or may hereafter
be amended (but, in the case of any such amendment, only to the extent that such
amendment permits the Corporation to provide broader indemnification than
permitted prior thereto), against expenses (including attorneys' fees) actually
and reasonably incurred by him or her in connection with the defense or
settlement of such action or suit if he or she acted in good faith and in a
manner he or she reasonably believed to be in or not opposed to the best
interests of the Corporation and except that no indemnification shall be made in
respect of any claim, issue or matter as to which such person shall have been
adjudged to be liable to the Corporation unless and only to the extent that the
Court in which such suit or action was brought, shall determine, upon
application, that, despite the adjudication of liability but in view of all the
circumstances of the case, such person is fairly and reasonably entitled to
indemnity for such expenses which such court shall deem proper.
(c) All reasonable expenses incurred by or on behalf of the
indemnitee in connection with any suit, action or proceeding, may be advanced to
the indemnitee by the Corporation.
(d) The rights to indemnification and to advancement of
expenses conferred in this article shall not be exclusive of any other right
which any person may have or hereafter acquire under any statute, the
Certificate of Incorporation, a By-Law of the Corporation, agreement, vote of
stockholders or disinterested Directors or otherwise.
(e) The indemnification and advancement of expenses provided
by this article shall continue as to a person who has ceased to be a Director,
officer, employee or agent and shall inure to the benefit of the heirs,
executors and administrators of such person.
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Exhibit 3.11
CERTIFICATE OF INCORPORATION
OF
RADIO UNICA OF MIAMI LICENSE CORP.
The undersigned, a natural person, for the purpose of organizing a
corporation for conducting the business and promoting the purposes
hereinafter stated, under the provisions and subject to the requirements of
the laws of the State of Delaware (particularly Chapter 1, Title 8 of the
Delaware Code and the acts amendatory thereof and supplemental thereto, and
known, identified and referred to as the "General Corporation Law of the
State of Delaware") hereby certifies that:
FIRST: The name of this Corporation (hereinafter called the
"Corporation") is Radio Unica of Miami License Corp.
SECOND: The address, including street, number, city and county, of the
registered office of the Corporation in the State of Delaware is Corporation
Trust Center, 1209 Orange Street, City of Wilmington, County of New Castle
(zip code 19801); and the name of the registered agent of the Corporation in
the State of Delaware at such address is The Corporation Trust Company.
THIRD: The nature of the business and of the purposes to be conducted
and promoted by the Corporation are to conduct any lawful business, to
promote any lawful purpose, and to engage in any lawful act or activity for
which corporations may be organized under the General Corporation Law of the
State of Delaware.
FOURTH: The total number of shares of stock which the Corporation shall
have authority to issue is one thousand (1,000) shares, all of which are of a
par value of one cent ($.01) each, and all of which are of one class and are
designated as Common Stock.
FIFTH: The name and mailing address of the incorporator are as follows:
Martin H. Neidell, c/o Stroock & Stroock & Lavan LLP, 180 Maiden Lane, New
York, New York 10038.
<PAGE>
SIXTH: Whenever a compromise or arrangement is proposed between this
Corporation and its creditors or any class of them and/or between this
Corporation and its stockholders or any class of them, any court of equitable
jurisdiction within the State of Delaware may, on the application in a
summary way of this Corporation or any creditor or stockholder thereof or on
the application of any receiver or receivers appointed for this Corporation
under the provisions of Section 291 of Title 8 of the Delaware Code or on the
application of trustees in dissolution or of any receiver or receivers
appointed for this Corporation under the provisions of Section 279 of Title 8
of the Delaware Code, order a meeting of the creditors or class of creditors,
and/or of the stockholders or class of stockholders, of this Corporation, as
the case may be, to be summoned in such manner as the said court directs. If
a majority in number representing three-fourths in value of the creditors or
class of creditors, and/or of the stockholders or class of stockholders, of
this Corporation, as the case may be, agree to any compromise or arrangement
and to any reorganization of this Corporation as a consequence of such
compromise or arrangement, the said compromise or arrangement and the said
reorganization shall, if sanctioned by the court to which the said
application has been made, be binding on all the creditors or class of
creditors, and/or on all the stockholder or class of stockholders, of this
Corporation, as the case may be, and also on this Corporation.
SEVENTH: The original By-Laws of the Corporation shall be adopted by the
incorporator. Thereafter, the power to make, alter, or repeal the By-Laws,
and to adopt any new By-Law, shall be vested in the Board of Directors.
EIGHTH: To the fullest extent that the General Corporation Law of the
State of Delaware, as it exists on the date hereof or as it may hereafter be
amended, permits the limitation or elimination of the liability of directors,
no director of this Corporation shall be personally liable to this
Corporation or its stockholders for monetary damages for breach of fiduciary
duty as a director. Notwithstanding the foregoing, a director shall be liable
to the extent provided by applicable law (1) for any breach of the directors'
duty of loyalty to the Corporation or its stockholders, (2) for acts or
omissions not in good faith or which involve intentional misconduct or a
knowing violation of law, (3) under Section 174 of the General Corporation
Law of the State of Delaware, or (4) for any transaction from which the
director derived any improper personal benefit. Neither the amendment or
repeal of this Article, nor the adoption of any provision of this Certificate
of Incorporation inconsistent with this Article shall adversely affect any
right or protection of a director of the Corporation existing at the time of
such amendment or repeal.
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NINTH: The Corporation shall, to the fullest extent permitted by Section
145 of the General Corporation Law of the State of Delaware, as the same may
be amended and supplemented, or by any successor thereto, indemnify any and
all persons whom it shall have power to indemnify under said section from and
against any and all of the expenses, liabilities or other matters referred to
in or covered by said section. The Corporation shall advance expenses to the
fullest extent permitted by said section. Such right to indemnification and
advancement of expenses shall continue as to a person who has ceased to be a
director, officer, employee or agent and shall inure to the benefit of the
heirs, executors and administrators of such a person. The indemnification and
advancement of expenses provided for herein shall not be deemed exclusive of
any other rights to which those seeking indemnification or advancement of
expenses may be entitled under any By-Law, agreement, vote of stockholders or
disinterested directors or otherwise.
Executed at New York, New York on June 29, 1998.
/s/Martin H. Neidell
-------------------------------
Martin H. Neidell, Incorporator
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Exhibit 3.12
BY-LAWS
OF
RADIO UNICA OF MIAMI LICENSE CORP.
(A Delaware Corporation)
ARTICLE I
STOCKHOLDERS
1. CERTIFICATES REPRESENTING STOCK.
(a) Every holder of stock in the Corporation shall be entitled to have
a certificate signed by, or in the name of, the Corporation by the Chairman or
Vice-Chairman of the Board of Directors, if any, or by the President or a
Vice-President and by the Treasurer or an Assistant Treasurer or the Secretary
or an Assistant Secretary of the Corporation representing the number of shares
owned by such person in the Corporation. If such certificate is countersigned by
a transfer agent other than the Corporation or its employee or by a registrar
other than the Corporation or its employee, any other signature on the
certificate may be a facsimile. In case any officer, transfer agent, or
registrar who has signed or whose facsimile signature has been placed upon a
certificate shall have ceased to be such officer, transfer agent or registrar
before such certificate is issued, it may be issued by the Corporation with the
same effect as if such person were such officer, transfer agent or registrar at
the date of issue.
(b) Whenever the Corporation shall be authorized to issue more than one
class of stock or more than one series of any class of stock, and whenever the
Corporation shall issue any shares of its stock as partly paid stock, the
certificates representing shares of any such class or series or of any such
partly paid stock shall set forth thereon the statements prescribed by the
General Corporation Law. Any restrictions on the transfer or registration of
transfer of any shares of stock of any class or series shall be noted
conspicuously on the certificate representing such shares.
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(c) The Corporation may issue a new certificate of stock in place of
any certificate theretofore issued by it, alleged to have been lost, stolen or
destroyed, and the Board of Directors may require the owner of any lost, stolen
or destroyed certificate, or such person's legal representative, to give the
Corporation a bond sufficient to indemnify the Corporation against any claim
that may be made against it on account of the alleged loss, theft or destruction
of any such certificate or the issuance of any such new certificate.
2. FRACTIONAL SHARE INTERESTS.
The Corporation may, but shall not be required to, issue fractions of a
share.
3. STOCK TRANSFERS.
Upon compliance with provisions restricting the transfer or
registration of transfer of shares of stock, if any, transfers or registration
of transfer of shares of stock of the Corporation shall be made only on the
stock ledger of the Corporation by the registered holder thereof, or by such
person's attorney thereunto authorized by power of attorney duly executed and
filed with the Secretary of the Corporation or with a transfer agent or a
registrar, if any, and on surrender of the certificate or certificates for such
shares of stock properly endorsed and the payment of all taxes due thereon.
4. RECORD DATE FOR STOCKHOLDERS.
(a) In order that the Corporation may determine the stockholders
entitled to notice of or to vote at any meeting of stockholders or any
adjournment thereof, the Board of Directors may fix a record date, which record
date shall not precede the date upon which the resolution fixing the record date
is adopted by the Board of Directors, and which record date shall not be more
than sixty nor less than ten days before the date of such meeting. If no record
date has been fixed by the Board of Directors, the record date for determining
stockholders entitled to notice of or to vote at a meeting of stockholders shall
be at the close of business on the day next preceding the day on which notice
is given, or, if notice is waived, at the close of business on the day next
preceding the day on which the meeting is held. A determination of stockholders
of record entitled to notice of or to vote at a meeting of stockholders shall
apply to any adjournment of the meeting; provided, however, that the Board of
Directors may fix a new record date for the adjourned meeting.
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(b) In order that the Corporation may determine the stockholders
entitled to receive payment of any dividend or other distribution or allotment
of any rights or the stockholders entitled to exercise any rights in respect of
any change, conversion or exchange of stock, or for the purpose of any other
lawful action, the Board of Directors may fix a record date, which record date
shall not precede the date upon which the resolution fixing the record date is
adopted, and which record date shall be not more than sixty days prior to such
action. If no record date has been fixed, the record date for determining
stockholders for any such purpose shall be at the close of business on the day
on which the Board of Directors adopts the resolution relating thereto.
5. MEANING OF CERTAIN TERMS.
As used herein in respect of the right to notice of a meeting of
stockholders or a waiver thereof or to participate or vote thereat or to consent
or dissent in writing in lieu of a meeting, as the case may be, the term "share"
or "shares" or "share of stock" or "shares of stock" or "stockholder" or
"stockholders" refers to an outstanding share or shares of stock and to a holder
or holders of record of outstanding shares of stock when the Corporation is
authorized to issue only one class of shares of stock, and said reference is
also intended to include any outstanding share or shares of stock and any holder
or holders of record of outstanding shares of stock of any class upon which or
upon whom the Certificate of Incorporation confers such rights where there are
two or more classes or series of shares of stock or upon which or upon whom the
General Corporation Law confers such rights notwithstanding that the Certificate
of Incorpo ration may provide for more than one class or series of shares of
stock, one or more of which are limited or denied such rights thereunder;
provided, however, that no such right shall vest in the event of an increase or
a decrease in the authorized number of shares of stock of any class or series
which is otherwise denied voting rights under the provisions of the Certificate
of Incorporation, including any preferred stock which is denied voting rights
under the provisions of the resolution or resolutions adopted by the Board of
Directors with respect to the issuance thereof.
6. STOCKHOLDER MEETINGS.
(a) TIME. The annual meeting shall be held on the date and at the time
fixed, from time to time, by the Board of Directors. A special meeting shall be
held on the date and at the time fixed by the Board of Directors.
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(b) PLACE. Annual meetings and special meetings shall be held at such
place, within or without the State of Delaware, as the Board of Directors may,
from time to time, fix. Whenever the Board of Directors shall fail to fix such
place, the meeting shall be held at the registered office of the Corporation in
the State of Delaware.
(c) CALL. Annual meetings and special meetings may be called by the
Board of Directors or by any officer instructed by the Board of Directors to
call the meeting.
(d) NOTICE OR WAIVER OF NOTICE. Written notice of all meetings shall be
given, stating the place, date and hour of the meeting. The notice of an annual
meeting shall state that the meeting is called for the election of Directors and
for the transaction of other business which may properly come before the
meeting, and shall (if any other action which could be taken at a special
meeting is to be taken at such annual meeting), state such other action or
actions as are known at the time of such notice. The notice of a special meeting
shall in all instances state the purpose or purposes for which the meeting is
called. If any action is proposed to be taken which would, if taken, entitle
stockholders to receive payment for their shares of stock, the notice shall
include a statement of that purpose and to that effect. Except as otherwise
provided by the General Corporation Law, a copy of the notice of any meeting
shall be given, personally or by mail, not less than ten days nor more than
sixty days before the date of the meeting, unless the lapse of the prescribed
period of time shall have been waived, and directed to each stockholder at such
person's address as it appears on the records of the Corporation. Notice by mail
shall be deemed to be given when deposited, with postage thereon prepaid, in the
United States mail. If a meeting is adjourned to another time, not more than
thirty days hence, and/or to another place, and if an announcement of the
adjourned time and place is made at the meeting, it shall not be necessary to
give notice of the adjourned meeting unless the Board of Directors, after
adjournment, fixes a new record date for the adjourned meeting. Notice need not
be given to any stockholder who submits a written waiver of notice before or
after the time stated therein. Attendance of a person at a meeting of
stockholders shall constitute a waiver of notice of such meeting, except when
the stockholder attends a meeting for the express purpose of objecting, at the
beginning of the meeting, to the transaction of any business because the meeting
is not lawfully called or convened. Neither the business to be transacted, nor
the purpose of, any regular or special meeting of the stockholders need be
specified in any written waiver of notice.
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(e) STOCKHOLDER LIST. There shall be prepared and made, at least ten
days before every meeting of stockholders, a complete list of the stockholders,
arranged in alphabetical order, and showing the address of each stockholder and
the number of shares registered in the name of each stockholder. Such list shall
be open to the examination of any stockholder, for any purpose germane to the
meeting, during ordinary business hours, for a period of at least ten days prior
to the meeting either at a place within the city where the meeting is to be
held, which place shall be specified in the notice of the meeting, or if not so
specified, at the place where the meeting is to be held. The list shall also be
produced and kept at the time and place of the meeting during the whole time
thereof, and may be inspected by any stockholder who is present. The stock
ledger shall be the only evidence as to who are the stockholders entitled to
examine the stock ledger, the list required by this section or the books of the
Corporation, or to vote at any meeting of stockholders.
(f) CONDUCT OF MEETING. Meetings of the stockholders shall be presided
over by one of the following officers in the order of seniority and if present
and acting: the Chairman of the Board, if any, the Vice-Chairman of the Board,
if any, the President, a Vice President, a chairman for the meeting chosen by
the Board of Directors or, if none of the foregoing is in office and present and
acting, by a chairman to be chosen by the stockholders. The Secretary of the
Corporation or, in such person's absence, an Assistant Secretary, shall act as
secretary of every meeting, but if neither the Secretary nor an Assistant
Secretary is present the chairman for the meeting shall appoint a secretary of
the meeting.
(g) PROXY REPRESENTATION. Every stockholder may authorize another
person or persons to act for such stockholder by proxy in all matters in which a
stockholder is entitled to participate, whether by waiving notice of any
meeting, voting or participating at a meeting, or expressing consent or dissent
without a meeting. Every proxy must be signed by the stockholder or by such
person's attorney-in-fact. No proxy shall be voted or acted upon after three
years from its date unless such proxy provides for a longer period. A duly
executed proxy shall be irrevocable if it states that it is irrevocable and, if,
and only as long as, it is coupled with an interest sufficient in law to support
an irrevocable power. A proxy may be made irrevocable regardless of whether the
interest with which it is coupled is an interest in the stock itself or an
interest in the Corporation generally.
(h) INSPECTORS AND JUDGES. The Board of Directors, in advance of any
meeting, may, but need not, appoint one or more inspectors of election or judges
of the vote, as the case may be, to act at the meeting or any adjournment
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thereof. If an inspector or inspectors or judge or judges are not appointed by
the Board of Directors, the person presiding at the meeting may, but need not,
appoint one or more inspectors or judges. In case any person who may be
appointed as an inspector or judge fails to appear or act, the vacancy may be
filled by appointment made by the person presiding thereat. Each inspector or
judge, if any, before entering upon the discharge of such person's duties, shall
take and sign an oath faithfully to execute the duties of inspector or judge at
such meeting with strict impartiality and according to the best of his ability.
The inspectors or judges, if any, shall determine the number of shares of stock
outstanding and the voting power of each, the shares of stock represented at the
meeting, the existence of a quorum and the validity and effect of proxies,
receive votes, ballots or consents, hear and determine all challenges and
questions arising in connection with the right to vote, count and tabulate all
votes, ballots or consents, determine the result, and do such other acts as are
proper to conduct the election or vote with fairness to all stockholders. On
request of the person presiding at the meeting, the inspector or inspectors or
judge or judges, if any, shall make a report in writing of any challenge,
question or matter determined by such person or persons and execute a
certificate of any fact so found.
(i) QUORUM. Except as the General Corporation Law or these By-Laws may
otherwise provide, the holders of a majority of the outstanding shares of stock
entitled to vote shall constitute a quorum at a meeting of stockholders for the
transaction of any business. The stockholders present may adjourn the meeting
despite the absence of a quorum. When a quorum is once present to organize a
meeting, it is not broken by the subsequent withdrawal of any shareholders.
(j) VOTING. Each stockholder entitled to vote in accordance with the
terms of the Certificate of Incorporation and of these By-Laws, or, with respect
to the issuance of preferred stock, in accordance with the terms of a resolution
or resolutions of the Board of Directors, shall be entitled to one vote, in
person or by proxy, for each share of stock entitled to vote held by such
stockholder. In the election of Directors, a plurality of the votes present at
the meeting shall elect. Any other action shall be authorized by a majority of
the votes cast except where the Certificate of Incorporation or the General
Corporation Law prescribes a different percentage of votes and/or a different
exercise of voting power.
Voting by ballot shall not be required for corporate action except as
otherwise provided by the General Corporation Law.
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7. STOCKHOLDER ACTION WITHOUT MEETINGS.
Any action required to be taken, or any action which may be taken, at
any annual or special meeting of stockholders, may be taken without a meeting,
without prior notice and without a vote, if a consent or consents in writing,
setting forth the action so taken, shall be signed by the holders of the
outstanding stock having not less than the minimum number of votes that would be
necessary to authorize or take such action at a meeting at which all shares
entitled to vote thereon were present and voted. Prompt notice of the taking of
the corporate action without a meeting by less than unanimous written consent
shall be given to those stockholders who have not consented in writing and shall
be delivered to the Corporation by delivery to its registered office in
Delaware, its principal place of business or an officer or agent of the
Corporation having custody of the book in which proceedings of meetings of
stockholders are recorded. Delivery made to the Corporation's registered office
shall be by hand or by certified or registered mail, return receipt requested.
ARTICLE II
DIRECTORS
1. FUNCTIONS AND DEFINITION.
The business and affairs of the Corporation shall be managed
by or under the direction of the Board of Directors of the Corporation. The use
of the phrase "whole Board" herein refers to the total number of Directors which
the Corporation would have if there were no vacancies.
2. QUALIFICATIONS AND NUMBER.
A Director need not be a stockholder, a citizen of the United
States, or a resident of the State of Delaware. The initial Board of Directors
shall consist of three persons. Thereafter the number of Directors constituting
the whole board shall be at least one. Subject to the foregoing limitation and
except for the first Board of Directors, such number may be fixed from time to
time by action of the stockholders or of the Board of Directors, or, if the
number is not fixed, the number shall be three. The number of Directors may be
increased or decreased by action of the stockholders or of the Board of
Directors.
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3. ELECTION AND TERM.
The first Board of Directors, unless the members thereof shall
have been named in the Certificate of Incorporation, shall be elected by the
incorporator or incorporators and shall hold office until the first annual
meeting of stockholders and until their successors have been elected and
qualified or until their earlier resignation or removal. Any Director may resign
at any time upon written notice to the Corporation. Thereafter, Directors who
are elected at an annual meeting of stockholders, and Directors who are elected
in the interim to fill vacancies and newly created Directorships, shall hold
office until the next annual meeting of stockholders and until their successors
have been elected and qualified or until their earlier resignation or removal.
In the interim between annual meetings of stockholders or of special meetings of
stockholders called for the election of Directors and/or for the removal of one
or more Directors and for the filling of any vacancies in the Board of
Directors, including vacancies resulting from the removal of Directors for
cause or without cause, any vacancy in the Board of Directors may be filled by
the vote of a majority of the remaining Directors then in office, although less
than a quorum, or by the sole remaining Director.
4. MEETINGS.
(a) TIME. Regular meetings shall be held at such time as the Board
shall fix. Special meetings may be called upon notice.
(b) FIRST MEETING. The first meeting of each newly elected Board may be
held immediately after each annual meeting of the stockholders at the same place
at which the meeting is held, and no notice of such meeting shall be necessary
to call the meeting, provided a quorum shall be present. In the event such first
meeting is not so held immediately after the annual meeting of the stockholders,
it may be held at such time and place as shall be specified in the notice given
as provided for special meetings of the Board of Directors, or at such time and
place as shall be fixed by the consent in writing of all of the Directors.
(c) PLACE. Meetings, both regular and special, shall be held at such
place within or without the State of Delaware as shall be fixed by the Board.
(d) CALL. No call shall be required for regular meetings for which the
time and place have been fixed. Special meetings may be called by or at the
direction
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of the Chairman of the Board, if any, the Vice-Chairman of the Board, if any, or
the President, or of a majority of the Directors.
(e) NOTICE OR ACTUAL OR CONSTRUCTIVE WAIVER. No notice shall be
required for regular meetings for which the time and place have been fixed.
Written, oral or any other mode of notice of the time and place shall be given
for special meetings at least twenty-four hours prior to the meeting; notice may
be given by telephone of telefax (in which case it is effective when given) or
by mail (in which case it is effective seventy-two hours after mailing by
prepaid first class mail). The notice of any meeting need not specify the
purpose of the meeting. Any requirement of furnishing a notice shall be waived
by any Director who signs a written waiver of such notice before or after the
time stated therein. Attendance of a Director at a meeting of the Board shall
constitute a waiver of notice of such meeting, except when the Director attends
a meeting for the express purpose of objecting, at the beginning of the meeting,
to the transaction of any business because the meeting is not lawfully called or
convened.
(f) QUORUM AND ACTION. A majority of the whole Board shall constitute a
quorum except when a vacancy or vacancies prevents such majority, whereupon a
majority of the Directors in office shall constitute a quorum, provided that
such majority shall constitute at least one-third (1/3) of the whole Board. Any
Director may participate in a meeting of the Board by means of a conference
telephone or similar communications equipment by means of which all Directors
partici pating in the meeting can hear each other, and such participation in
a meeting of the Board shall constitute presence in person at such meeting. A
majority of the Direc tors present, whether or not a quorum is present, may
adjourn a meeting to another time and place. Except as herein otherwise
provided, and except as otherwise provided by the General Corporation Law,
the act of the Board shall be the act by vote of a majority of the Directors
present at a meeting, a quorum being present. The quorum and voting
provisions herein stated shall not be construed as conflicting with any
provisions of the General Corporation Law and these By-Laws which govern a
meeting of Directors held to fill vacancies and newly created Directorships
in the Board.
(g) CHAIRMAN OF THE MEETING. The Chairman of the Board, if any and if
present and acting, shall preside at all meetings. Otherwise, the Vice-Chairman
of the Board, if any and if present and acting, or the President, if present and
acting, or any other Director chosen by the Board, shall preside.
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5. REMOVAL OF DIRECTORS.
Any or all of the Directors may be removed for cause or
without cause by the stockholders.
6. COMMITTEES.
The Board of Directors may, by resolution passed by a majority
of the whole Board, designate one or more committees, each committee to consist
of one or more of the Directors of the Corporation. The Board may designate one
or more Directors as alternate members of any committee, who may replace any
absent or disqualified member at any meeting of the committee. Any such
committee, to the extent provided in the resolution of the Board, shall have and
may exercise the powers of the Board of Directors in the management of the
business and affairs of the Corporation, and may authorize the seal of the
Corporation to be affixed to all papers which may require it. In the absence or
disqualification of any member of any such committee or committees, the members
thereof present at any meeting and not disqualified from voting, whether or not
they constitute a quorum, may unanimously appoint another member of the Board of
Directors to act at the meeting in the place of any such absent or disqualified
member.
7. ACTION IN WRITING.
Any action required or permitted to be taken at any meeting of
the Board of Directors or any committee thereof may be taken without a meeting
if all members of the Board or committee, as the case may be, consent thereto in
writing, and the writing or writings are filed with the minutes of proceedings
of the Board or committee.
ARTICLE III
OFFICERS
1. EXECUTIVE OFFICERS.
The Board of Directors may elect or appoint a Chairman of the
Board of Directors, a President, one or more Vice Presidents (which may be
denominated with additional descriptive titles), a Secretary, one or more
Assistant Secretaries, a
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Treasurer, one or more Assistant Treasurers and such other officers as it may
determine. Any number of offices may be held by the same person.
2. TERM OF OFFICE: REMOVAL.
Unless otherwise provided in the resolution of election or
appointment, each officer shall hold office until the meeting of the Board of
Directors following the next annual meeting of stockholders and until such
officer's successor has been elected and qualified or until the earlier
resignation or removal of such officer. The Board of Directors may remove any
officer for cause or without cause.
3. AUTHORITY AND DUTIES.
All officers, as between themselves and the Corporation, shall
have such authority and perform such duties in the management of the Corporation
as may be provided in these By-Laws, or, to the extent not so provided, by the
Board of Directors.
4. THE CHAIRMAN OF THE BOARD OF DIRECTORS.
The Chairman of the Board of Directors, if present and acting,
shall preside at all meetings of the Board of Directors, otherwise, the
President, if present, shall preside, or if the President does not so preside,
any other Director chosen by the Board shall preside. The Chairman of the Board
of Directors shall be the chief executive officer of the Corporation.
5. THE PRESIDENT.
The President shall be the chief operating officer of the
Corporation.
6. VICE PRESIDENTS.
Any Vice President that may have been appointed, in the
absence or disability of the President, shall perform the duties and exercise
the powers of the President, in the order of their seniority, and shall perform
such other duties as the Board of Directors shall prescribe.
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7. THE SECRETARY.
The Secretary shall keep in safe custody the seal of the
Corporation and affix it to any instrument when authorized by the Board of
Directors, and shall perform such other duties as may be prescribed by the Board
of Directors. The Secretary (or in such officer's absence, an Assistant
Secretary, but if neither is present another person selected by the Chairman for
the meeting) shall have the duty to record the proceedings of the meetings of
the stockholders and Directors in a book to be kept for that purpose.
8. THE TREASURER.
The Treasurer shall have the care and custody of the corporate
funds, and other valuable effects, including securities, and shall keep full and
accurate accounts of receipts and disbursements in books belonging to the
Corporation and shall deposit all moneys and other valuable effects in the name
and to the credit of the Corporation in such depositories as may be designated
by the Board of Directors. The Treasurer shall disburse the funds of the
Corporation as may be ordered by the Board, taking proper vouchers for such
disbursements, and shall render to the President and Directors, at the regular
meetings of the Board, or whenever they may require it, an account of all
transactions as Treasurer and of the financial condition of the Corporation. If
required by the Board of Directors, the Treasurer shall give the Corporation a
bond for such term, in such sum and with such surety or sureties as shall be
satisfactory to the Board for the faithful performance of the duties of such
office and for the restoration to the Corporation, in case of such person's
death, resignation, retirement or removal from office, of all books, papers,
vouchers, money and other property of whatever kind in such person's possession
or under such person's control belonging to the Corporation.
ARTICLE IV
CORPORATE SEAL
AND
CORPORATE BOOKS
The corporate seal shall be in such form as the Board of
Directors shall prescribe. The books of the Corporation may be kept within or
without the
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State of Delaware, at such place or places as the Board of directors may, from
time to time, determine.
ARTICLE V
FISCAL YEAR
The fiscal year of the Corporation shall be fixed, and shall
be subject to change, by the Board of Directors.
ARTICLE VI
INDEMNITY
(a) Any person who was or is a party or threatened to be made a party
to any threatened, pending or completed action, suit or proceeding, whether
civil, criminal, administrative or investigative (other than an action by or in
the right of the Corporation) by reason of the fact that he or she is or was a
Director, officer, employee or agent of the Corporation or is or was serving at
the request of the Corporation as director, officer, employee or agent of
another corporation, partner ship, joint venture, trust or other enterprise
(including employee benefit plans) (hereinafter an "indemnitee"), shall be
indemnified and held harmless by the Corporation to the fullest extent
authorized by the General Corporation Law, as the same exists or may hereafter
be amended (but, in the case of any such amendment, only to the extent that such
amendment permits the Corporation to provide broader indemnification than
permitted prior thereto), against expenses (including attorneys' fees),
judgments, fines and amounts paid in settlement actually and reasonably incurred
by such indemnitee in connection with such action, suit or proceeding, if the
indemnitee acted in good faith and in a manner he or she reasonably believed to
be in or not opposed to the best interests of the Corporation, and with respect
to any criminal action or proceeding, had no reasonable cause to believe such
conduct was unlawful. The termination of the proceeding, whether by judgment,
order, settlement, conviction or upon a plea of nolo contendere or its
equivalent, shall not, of itself, create a presumption that the person did not
act in good faith and in a manner which he or she reasonably believed to be in
or not opposed to the best interests of the Corporation and, with respect to any
criminal action or proceeding, had reasonable cause to believe such conduct was
unlawful.
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(b) Any person who was or is a party or is threatened to be made a
party to any threatened, pending or completed action or suit by or in the right
of the Corporation to procure a judgment in its favor by reason of the fact that
he or she is or was a Director, officer, employee or agent of the Corporation,
or is or was serving at the request of the Corporation as a director, officer,
employee or agent of another Corporation, partnership, joint venture, trust or
other enterprise (including employee benefit plans) shall be indemnified and
held harmless by the Corporation to the fullest extent authorized by the General
Corporation Law, as the same exists or may hereafter be amended (but, in the
case of any such amendment, only to the extent that such amendment permits the
Corporation to provide broader indemnification than permitted prior thereto),
against expenses (including attorneys' fees) actually and reasonably incurred by
him or her in connection with the defense or settlement of such action or suit
if he or she acted in good faith and in a manner he or she reasonably believed
to be in or not opposed to the best interests of the Corporation and except that
no indemnification shall be made in respect of any claim, issue or matter as to
which such person shall have been adjudged to be liable to the Corporation
unless and only to the extent that the Court in which such suit or action was
brought, shall determine, upon application, that, despite the adjudication of
liability but in view of all the circumstances of the case, such person is
fairly and reasonably entitled to indemnity for such expenses which such court
shall deem proper.
(c) All reasonable expenses incurred by or on behalf of the indemnitee
in connection with any suit, action or proceeding, may be advanced to the
indemnitee by the Corporation.
(d) The rights to indemnification and to advancement of expenses con
ferred in this article shall not be exclusive of any other right which any
person may have or hereafter acquire under any statute, the Certificate of
Incorporation, a By-Law of the Corporation, agreement, vote of stockholders or
disinterested Directors or otherwise.
(e) The indemnification and advancement of expenses provided by this
article shall continue as to a person who has ceased to be a Director, officer,
employee or agent and shall inure to the benefit of the heirs, executors and
administrators of such person.
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Exhibit 3.13
CERTIFICATE OF INCORPORATION
OF
RADIO UNICA OF LOS ANGELES, INC.
THE UNDERSIGNED, in order to form a Corporation for the purpose hereinafter
stated, under and pursuant to the provisions of the General Corporation Law of
the State of Delaware, does hereby certify, that:
FIRST: The name of the Corporation is RADIO UNICA OF LOS ANGELES, INC.
SECOND: The registered agent and the address of the Corporation's
registered office in the State of Delaware are Incorporating Services, Ltd., 15
E. North Street, Dover, Delaware, Kent County, 19901.
THIRD: The purpose of the Corporation is to engage in any and all lawful
acts or activities for which Corporations may be organized under the General
Corporation Law of the State of Delaware.
FOURTH: The total number of shares which the Corporation shall have the
authority to issue is 5,000 shares of capital stock. All shares shall have a par
value of $.01 each.
FIFTH: Stockholders may, by simple majority vote, adopt, alter, amend
and/or repeal from time to time the bylaws of the Corporation which shall govern
to the extent not inconsistent with any statute, the Certificate of
Incorporation or any valid agreement among the shareholders.
SIXTH: The directors of the Corporation shall not be personally liable to
the Corporation or to stockholders or any other person for monetary damages for
breach of fiduciary duties as a
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director, and are fully indemnified and held harmless by the Corporation to the
fullest extent permitted under 8 Del. C 145 of the General Corporation Law of
Delaware.
SEVENTH: The incorporator of the Corporation is Sharon R. Liebman whose
address is 701 Brickell Avenue, Suite 3000, Miami, Florida 33131. The powers of
the incorporator are to terminate upon the nomination by the incorporator of the
initial Board of Directors, which shall be vested with all authority and powers
authorized under the General Corporate Law of Delaware.
IN WITNESS WHEREOF, I have hereunto subscribed my name this 30th day of
December, 1997.
/s/ Sharon R. Liebman
---------------------------
Sharon R. Liebman
Sole Incorporator
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Exhibit 3.14
BYLAWS
OF
RADIO UNICA OF LOS ANGELES, INC.
a Delaware corporation
ARTICLE I
STOCKHOLDERS
l. CERTIFICATES REPRESENTING STOCK. Certificates representing
stock in the corporation shall be signed by, or in the name of, the corporation
by the Chairman or Vice-Chairman of the Board of Directors, if any, or by the
President or a Vice-President and by the Treasurer or an Assistant Treasurer or
the Secretary or an Assistant Secretary of the corporation. Any or all the
signatures on any such certificate may be a facsimile. In case any officer,
transfer agent, or registrar who has signed or whose facsimile signature has
been placed upon a certificate shall have ceased to be such officer, transfer
agent, or registrar before such certificate is issued, it may be issued by the
corporation with the same effect as if he were such officer, transfer agent, or
registrar at the date of issue.
Whenever the corporation shall be authorized to issue more than one
class of stock or more than one series of any class of stock, and whenever the
corporation shall issue any shares of its stock as partly paid stock, the
certificates representing shares of any such class or series or of any such
partly paid stock shall set forth thereon the statements prescribed by the
Delaware Corporation Law. Any restrictions on the transfer or registration of
transfer of any shares of stock of any class or series shall be noted
conspicuously on the certificate representing such shares.
The corporation may issue a new certificate of stock or uncertificated
shares in place of any certificate theretofore issued by it, alleged to have
been lost, stolen, or destroyed, and the Board of Directors may require the
owner of the lost, stolen, or destroyed certificate, or his legal
representative, to give the corporation a bond sufficient to indemnify the
corporation against any claim that may be made against it on account of the
alleged loss, theft, or destruction of any such certificate or the issuance of
any such new certificate or uncertificated shares.
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2. UNCERTIFICATED SHARES. Subject to any conditions imposed by
the Delaware Corporation Law, the Board of Directors of the corporation may
provide by resolution or resolutions that some or all of any or all classes or
series of the stock of the corporation shall be uncertificated shares. Within a
reasonable time after the issuance or transfer of any uncertificated shares, the
corporation shall send to the registered owner thereof any written notice
prescribed by the Delaware Corporation Law.
3. FRACTIONAL SHARE INTERESTS. The corporation may, but shall
not be required to, issue fractions of a share. If the corporation does not
issue fractions of a share, it shall (l) arrange for the disposition of
fractional interests by those entitled thereto, (2) pay in cash the fair value
of fractions of a share as of the time when those entitled to receive such
fractions are determined, or (3) issue scrip or warrants in registered form
(either represented by a certificate or uncertificated) or bearer form
(represented by a certificate) which shall entitle the holder to receive a full
share upon the surrender of such scrip or warrants aggregating a full share. A
certificate for a fractional share or an uncertificated fractional share shall,
but scrip or warrants shall not unless otherwise provided therein, entitle the
holder to exercise voting rights, to receive dividends thereon, and to
participate in any of the assets of the corporation in the event of liquidation.
The Board of Directors may cause scrip or warrants to be issued subject to the
conditions that they shall become void if not exchanged for certificates
representing full shares or uncertificated full shares, before a specified date,
or subject to the conditions that the shares for which scrip or warrants are
exchangeable may be sold by the corporation and the proceeds thereof distributed
to the holders of scrip or warrants, or subject to any other conditions which
the Board of Directors may impose.
4. STOCK TRANSFERS. Upon compliance with provisions
restricting the transfer or registration of transfer of shares of stock, if any,
transfers or registration of transfers of shares of stock of the corporation
shall be made only on the stock ledger of the corporation by the registered
holder thereof, or by his attorney thereunto authorized by power of attorney
duly executed and filed with the Secretary of the corporation or with a transfer
agent or a registrar, if any, and, in the case of shares represented by
certificates, on surrender of the certificate or certificates for such shares of
stock properly endorsed and the payment of all taxes due thereon.
5. RECORD DATE FOR STOCKHOLDERS. In order that the corporation
may determine the stockholders entitled to notice of or to vote at any meeting
of stockholders or any adjournment thereof, the Board of Directors may fix a
record date, which record date shall not precede the date upon which the
resolution fixing the record date is adopted by the Board of Directors, and
which record date shall not be more than sixty nor less than ten days before the
date of such meeting. If no record date is fixed by the Board of Directors, the
record date for determining stockholders entitled to notice of or to vote at a
meeting of stockholders shall be at the close of business on the day next
preceding the day on which notice is given, or,
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if notice is waived, at the close of business on the day next preceding the day
on which the meeting is held. A determination of stockholders of record entitled
to notice of or to vote at a meeting of stockholders shall apply to any
adjournment of the meeting; provided, however, that the Board of Directors may
fix a new record date for the adjourned meeting. In order that the corporation
may determine the stockholders entitled to consent to corporate action in
writing without a meeting, the Board of Directors may fix a record date, which
record date shall not precede the date upon which the resolution date is adopted
by the Board of Directors, and which date shall not be more than ten days after
the date upon which the record date is adopted by the Board of Directors. If no
record date has been fixed by the Board of Directors, the record date for
determining the stockholders entitled to consent to corporate action in writing
without a meeting, when no prior action by the Board of Directors is required by
the Delaware Corporation Law, shall be the first date on which a signed written
consent setting forth the action taken or proposed to be taken is delivered to
the corporation by delivery to its registered office in the State of Delaware,
its principal place of business, or an officer or agent of the corporation
having custody of the book in which proceedings of meetings of stockholders are
recorded. Delivery made to the corporation's registered office shall be by hand
or by certified or registered mail, return receipt requested. If no record date
has been fixed by the Board of Directors and prior action by the Board of
Directors is required by the Delaware Corporation Law, the record date for
determining stockholders entitled to consent to corporate action in writing
without a meeting shall be at the close of business on the day on which the
Board of Directors adopts the resolution taking such prior action, in order that
the corporation may determine the stockholders entitled to receive payment of
any dividend or other distribution or allotment of any rights or the
stockholders entitles to exercise any rights in respect of any change,
conversion, or exchange of stock, or for the purpose of any other lawful action,
the Board of Directors may fix a record date, which record date shall not
precede the date upon which the resolution fixing the record date is adopted,
and which record date shall be not more than sixty days prior to such action. If
no record date is fixed, the record date for determining stockholders for any
such purpose shall be at the close of business on the day on which the Board of
Directors adopts the resolution relating thereto.
6. MEANING OF CERTAIN TERMS. As used herein in respect of the right to
notice of a meeting of stockholders or a waiver thereof or to participate or
vote thereat or to consent or dissent in writing in lieu of a meeting, as the
case may be, the term "share" or "shares" or "share of stock" or "shares of
stock" or "stockholder" or "stockholders" refers to an outstanding share or
shares of stock and to a holder or holders of record of outstanding shares of
stock when the corporation is authorized to issue only one class of shares of
stock, and said reference is also intended to include any outstanding share or
shares of stock and any holder or holders of record of outstanding shares of
stock of any class upon which or upon whom the certificate of incorporation
confers such rights where there are two or more classes or series of shares of
stock or upon which or upon whom the Delaware Corporation Law confers such
rights notwithstanding that the certificate of incorporation may provide for
more than one class or
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series of shares of stock, one or more of which are limited or denied such
rights thereunder; provided, however, that no such right shall vest in the event
of an increase or a decrease in the authorized number of shares of stock of any
class or series which is otherwise denied voting rights under the provisions of
the certificate of incorporation, except as any provision of law may otherwise
require.
7. STOCKHOLDER MEETINGS.
TIME. The annual meeting shall be held on the date and at the
time fixed, from time to time, by the directors, provided, that the first annual
meeting shall be held on a date within thirteen months after the organization of
the corporation, and each successive annual meeting shall be held on a date
within thirteen months after the date of the preceding annual meeting. A special
meeting shall be held on the date and at the time fixed by the directors.
PLACE. Annual meetings and special meetings shall be held at
such place, within or without the State of Delaware, as the directors may, from
time to time, fix. Whenever the directors shall fail to fix such place, the
meeting shall be held at the registered office of the corporation in the State
of Delaware.
CALL. Annual meetings and special meetings may be called by
the directors or by any officer instructed by the directors to call the meeting.
NOTICE OR WAIVER OF NOTICE. Written notice of all meetings
shall be given, stating the place, date, and hour of the meeting and stating the
place within the city or other municipality or community at which the list of
stockholders of the corporation may be examined. The notice of an annual meeting
shall state that the meeting is called for the election of directors and for the
transaction of other business which may properly come before the meeting, and
shall (if any other action which could be taken at a special meeting is to be
taken at such annual meeting) state the purpose or purposes. The notice of a
special meeting shall in all instances state the purpose or purposes for which
the meeting is called. The notice of any meeting shall also include, or be
accompanied by, any additional statements, information, or documents prescribed
by the Delaware Corporation Law. Except as otherwise provided by the Delaware
Corporation Law, a copy of the notice of any meeting shall be given, personally
or by mail, not less than ten days nor more than sixty days before the date of
the meeting, unless the lapse of the prescribed period of time shall have been
waived, and directed to each
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stockholder at his record address or at such other address which he may have
furnished by request in writing to the Secretary of the corporation. Notice by
mail shall be deemed to be given when deposited, with postage thereon prepaid,
in the United States Mail. If a meeting is adjourned to another time, not more
than thirty days hence, and/or to another place, and if an announcement of the
adjourned time and/or place is made at the meeting, it shall not be necessary to
give notice of the adjourned meeting unless the directors, after adjournment,
fix a new record date for the adjourned meeting. Notice need not be given to any
stockholder who submits a written waiver of notice signed by him before or after
the time stated therein. Attendance of a stockholder at a meeting of
stockholders shall constitute a waiver of notice of such meeting, except when
the stockholder attends the meeting for the express purpose of objecting, at the
beginning of the meeting, to the transaction of any business because the meeting
is not lawfully called or convened. Neither the business to be transacted at,
nor the purpose of, any regular or special meeting of the stockholders need be
specified in any written waiver of notice.
STOCKHOLDER LIST. The officer who has charge of the stock
ledger of the corporation shall prepare and make, at least ten days before every
meeting of stockholders, a complete list of the stockholders, arranged in
alphabetical order, and showing the address of each stockholder and the number
of shares registered in the name of each stockholder. Such list shall be open to
the examination of any stockholder, for any purpose germane to the meeting,
during ordinary business hours, for a period of at least ten days prior to the
meeting, either at a place within the city or other municipality or community
where the meeting is to be held, which place shall be specified in the notice of
the meeting, or if not so specified, at the place where the meeting is to be
held. The list shall also be produced and kept at the time and place of the
meeting during the whole time thereof, and may be inspected by any stockholder
who is present. The stock ledger shall be the only evidence as to who are the
stockholders entitled to examine the stock ledger, the list required by this
section or the books of the corporation, or to vote at any meeting of
stockholders.
CONDUCT OF MEETING. Meetings of the stockholders shall be
presided over by one of the following officers in the order of seniority and if
present and acting the Chairman of the Board, if any, the Vice Chairman of the
Board, if any, the President, a Vice-President, or, if none of the foregoing is
in office and present and acting, by a chairman to be chosen by the
stockholders. The Secretary of the corporation, or in his absence, an Assistant
Secretary, shall act as secretary of every meeting, but if neither the Secretary
nor an Assistant Secretary is present the Chairman of the meeting shall appoint
a secretary of the meeting.
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PROXY REPRESENTATION. Every stockholder may authorize another
person or persons to act for him by proxy in all matters in which a stockholder
is entitled to participate, whether by waiving notice of any meeting, voting or
participating at a meeting, or expressing consent or dissent without a meeting.
Every proxy must be signed by the stockholder or by his attorney-in-fact. No
proxy shall be voted or acted upon after three years from its date unless such
proxy provides for a longer period. A duly executed proxy shall be irrevocable
if it states that it is irrevocable and, if, and only as long as, it is coupled
with an interest sufficient in law to support an irrevocable power. A proxy may
be made irrevocable regardless of whether the interest with which it is coupled
is an interest in the stock itself or an interest in the corporation generally.
INSPECTORS. The directors, in advance of any meeting, may, but
need not, appoint one or more inspectors of election to act at the meeting or
any adjournment thereof. If an inspector or inspectors are not appointed, the
person presiding at the meeting may, but need not, appoint one or more
inspectors. In case any person who may be appointed as an inspector fails to
appear or act, the vacancy may be filled by appointment made by the directors in
advance of the meeting or at the meeting by the person presiding thereat. Each
inspector, if any, before entering upon the discharge of his duties, shall take
and sign an oath faithfully to execute the duties of inspectors at such meeting
with strict impartiality and according to the best of his ability. The
inspectors, if any, shall determine the number of shares of stock outstanding
and the voting power of each, the shares of stock represented at the meeting,
the existence of a quorum, the validity and effect of proxies, and shall receive
votes, ballots, or consents, hear and determine all challenges and questions
arising in connection with the right to vote, count and tabulate all votes,
ballots, or consents, determine the result, and so such acts as are proper to
conduct the election or vote with fairness to all stockholders. On request of
the person presiding at the meeting, the inspector or inspectors, if any, shall
make a report in writing of any challenge, question, or matter determined by him
or them and execute a certificate of any fact found by him or them. Except as
otherwise required by the Delaware General Corporation Law, the provisions of
that Section shall not apply to the corporation.
QUORUM. The holders of a majority of the outstanding shares of
stock shall constitute a quorum at a meeting of stockholders for the transaction
of any business. The stockholders present may adjourn the meeting despite the
absence of a quorum.
VOTING. Each share of stock shall entitle the holders thereof
to one vote. Directors shall be elected by a plurality of the vote of the shares
present in person or represented by proxy at the meeting and entitled to vote on
the election of directors. Any other action shall
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be authorized by a majority of the votes cast except where the Delaware
Corporation Law prescribes a different percentage of votes and/or a different
exercise of voting power, and except as may be otherwise prescribed by the
provisions of the certificate of incorporation and these Bylaws. In the election
of directors, and for any other action, voting need not be by ballot.
8. STOCKHOLDER ACTION WITHOUT MEETINGS. Any action required
by the Delaware Corporation Law to be taken at any annual or special meeting
of stockholders, or any action which may be taken at any annual or special
meeting of stockholders, may be taken without a meeting, without prior notice
and without a vote, if a consent in writing, setting forth the action so
taken, shall be signed by the holders of outstanding stock having, not less
than the minimum number of votes that would be necessary to authorize or take
such action at a meeting at which all shares entitled to vote thereon were
present and voted. Prompt notice of the taking of the corporate action
without a meeting by less that unanimous written consent shall be given to
those stockholders who have not consented in writing. Action taken pursuant
to this paragraph shall be subject to the provisions of the Delaware General
Corporation Law.
ARTICLE II
DIRECTORS
l. FUNCTIONS AND DEFINITION. The business and affairs of the
corporation shall be managed by or under the direction of the Board of Directors
of the corporation. The Board of Directors shall have the authority to fix the
compensation of the members thereof. The use of the phrase "whole board" herein
refers to the total number of directors which the corporation would have if
there were no vacancies.
2. QUALIFICATIONS AND NUMBER. A director need not be a
stockholder, a citizen of the United States, or a resident of the State of
Delaware. The initial Board of Directors shall consist of three (3) persons.
Thereafter the number of directors constituting the whole board shall be at
least one. Subject to the foregoing limitation and except for the first Board of
Directors, such number may be fixed from time to time by action of the
stockholders or of the directors, or, if the number is not fixed, the number
shall be one. The number of directors may be increased or decreased by action of
the stockholders or of the directors.
3. ELECTION AND TERM. The first Board of Directors, unless the
members thereof shall have been named in the certificate of incorporation, shall
be elected by
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the incorporator or incorporators and shall hold office until the first annual
meeting of stockholders and until their successors are elected and qualified or
until their earlier resignation or removal. Any director may resign at any time
upon written notice to the corporation. Thereafter, directors who are elected at
an annual meeting of stockholders, and directors who are elected in the interim
to fill vacancies and newly created directorships, shall hold office until the
next annual meeting of stockholders and until their successors are elected and
qualified or until their earlier resignation or removal. Except as the Delaware
Corporation Law may otherwise require, in the interim between annual meetings of
stockholders or of special meetings of stockholders called for the election of
directors and/or for the removal of one or more directors and for the filling of
any vacancy in that connection, newly created directorships and any vacancies in
the Board of Directors, including unfilled vacancies resulting from the removal
of directors for cause or without cause, may be filled by the vote of a majority
of the remaining directors then in office, although less than a quorum, or by
the sole remaining director.
4. MEETINGS.
TIME. Meetings shall be held at such time as the Board shall
fix except that the first meeting of a newly elected Board shall be held as soon
after its election as the directors may conveniently assemble.
PLACE. Meetings shall be held at such place within or without
the State of Delaware as shall be fixed by the Board.
CALL. No call shall be required for regular meetings for which
the time and place have been fixed. Special meetings may be called by or, at the
direction of the Chairman of the Board, if any, the Vice Chairman of the Board,
if any, of the President, or of a majority of the directors in office.
NOTICE OR ACTUAL OR CONSTRUCTIVE WAIVER. No notice shall be
required for regular meetings for which the time and place have been fixed.
Written, oral, or any other mode of notice of the time and place shall be given
for special meetings in sufficient time for the convenient assembly of the
directors thereat. Notice need not be given to any director or to any member of
a committee of directors who submits a written waiver of notice signed by him
before or after the time stated there in. Attendance of any such person at a
meeting shall constitute a waiver of, notice of such meeting, except when he
attends a meeting
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for the express purpose of objecting, at the beginning of the meeting, to the
transaction of any business because the meeting is not lawfully called or
convened. Neither the business to be transacted at, nor the purpose of, any
regular or special meeting of the directors need by specified in any written
waiver of notice.
QUORUM AND ACTION. A majority of the whole Board shall
constitute a quorum except when a vacancy or vacancies prevents such majority,
whereupon a majority of the directors in office shall constitute a quorum,
provided, that such majority shall constitute at least one-third of the whole
Board. A majority of the directors present, whether or not a quorum is present,
may adjourn a meeting to another time and place. Except as herein otherwise
provided, and except as otherwise provided by the Delaware Corporation Law, the
vote of the majority of the directors present at a meeting at which a quorum is
present shall be the act of the Board. The quorum and voting provisions herein
stated shall not be construed as conflicting with any provisions of the Delaware
Corporation Law and these Bylaws which govern a meeting of directors held to
fill vacancies and newly created directorships in the Board or action of
disinterested directors.
Any member or members of the Board of Directors or of any committee
designated by the Board, may participate in a meeting of the Board, or any such
committee, as the case may be, by means of conference telephone or similar
communications equipment by means of which all persons participating in the
meeting can hear each other.
CHAIRMAN OF THE MEETING. The Chairman of the Board, if any and
if present and acting, shall preside at all meetings. Otherwise, the
Vice-Chairman of the Board, if any and if present and acting, or the President,
if present and acting, or any other director chosen by the Board, shall preside.
5. REMOVAL OF DIRECTORS. Except as may otherwise be provided
by the Delaware Corporation Law, any director or the entire Board of Directors
may be removed, with or without cause, by the holders of a majority of the
shares then entitled to vote at an election of directors.
6. COMMITTEES. The Board of Directors may, by resolution
passed by a majority of the whole Board, designate one or more committees, each
committee to consist of one or more of the directors of the corporation. The
Board may designate one or more directors as alternate members of any committee,
who may replace any absent or disqualified member at any meeting of the
committee. In the absence or disqualification of any member of any such
committee or committees, the member or members thereof present at any meeting
and not
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disqualified from voting, whether or not he or they constitute a quorum, may
unanimously appoint another member of the Board of Directors to act at the
meeting in the place of any such absent or disqualified member. Any such
committee, to the extent provided in the resolution of the Board, shall have and
may exercise the powers and authority of the Board of Directors in the
management of the business and affairs of the corporation with the exception of
any authority the delegation of which is prohibited by the Delaware General
Corporation Law, and may authorize the seal of the corporation to be affixed to
all papers which may require it.
7. WRITTEN ACTION. Any action required or permitted to be
taken at any meeting of the Board of Directors or any committee thereof may be
taken without a meeting if all members of the Board or committee, as the case
may be, consent thereto in writing, and the writing or writings are filed with
the minutes of proceedings of the Board or committee.
ARTICLE III
OFFICERS
The officers of the corporation shall consist of a President,
a Secretary, a Treasurer, and, if deemed necessary, expedient, or desirable by
the Board of Directors, a Chairman of the Board, a Vice Chairman of the Board,
an Executive Vice-President, one or more other Vice Presidents, one or more
Assistant Secretaries, one or more Assistant Treasurers, and such other officers
with such titles as the resolution of the Board of Directors choosing them shall
designate. Except as may otherwise be provided in the resolution of the Board of
Directors choosing him, no officer other than the Chairman or Vice-Chairman of
the Board, if any, need be a director. Any number of offices may be held by the
same person, as the directors may determine.
Unless otherwise provided in the resolution choosing him, each
officer shall be chosen for a term which shall continue until the meeting of the
Board of Directors following the next annual meeting of stockholders and until
his successor shall have been chosen and qualified.
All officers of the corporation shall have such authority and
perform such duties in the management and operation of the corporation as shall
be prescribed in the resolutions of the Board of Directors designating and
choosing such officers and prescribing their authority and duties as are
incident to their office except to the extent that such resolutions may be
inconsistent therewith. The Secretary or an Assistant Secretary of the
corporation shall record all of the proceedings of all meetings and actions in
writing of stockholders, directors, and committees of directors, and shall
exercise such additional authority and perform such additional duties as the
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Board shall assign to him. Any officer may be removed, with or without cause, by
the Board of Directors. Any vacancy in any office may be filled by the Board of
Directors.
ARTICLE IV
CORPORATE SEAL
The corporate seal shall be in such form as the Board of
Directors shall prescribe.
ARTICLE V
FISCAL YEAR
The fiscal year of the corporation shall be fixed, and shall
be subject to change, by the Board of Directors.
ARTICLE VI
CONTROL OVER BYLAWS
Subject to the provisions of the certificate of incorporation
and the provisions of the Delaware Corporation Law, the power to amend, alter,
or repeal these Bylaws and to adopt new Bylaws may be exercised by the Board of
Directors or by the stockholders.
I HEREBY CERTIFY that the foregoing is a full, true, and correct copy
of the Bylaws of RADIO UNICA OF LOS ANGELES, INC., a Delaware corporation, as in
effect on the date hereof.
Dated: December 30, 1997
/s/ Steve E. Dawson
---------------------------
Steven E. Dawson, Secretary
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Exhibit 3.15
CERTIFICATE OF INCORPORATION
OF
RADIO UNICA LOS ANGELES LICENSE CORP.
The undersigned, a natural person, for the purpose of organizing a
corporation for conducting the business and promoting the purposes
hereinafter stated, under the provisions and subject to the requirements of
the laws of the State of Delaware (particularly Chapter 1, Title 8 of the
Delaware Code and the acts amendatory thereof and supplemental thereto, and
known, identified and referred to as the "General Corporation Law of the
State of Delaware") hereby certifies that:
FIRST: The name of this Corporation (hereinafter called the "Corporation")
is Radio Unica of Los Angeles License Corp.
SECOND: The address, including street, number, city and county, of the
registered office of the Corporation in the State of Delaware is Corporation
Trust Center, 1209 Orange Street, City of Wilmington, County of New Castle (zip
code 19801); and the name of the registered agent of the Corporation in the
State of Delaware at such address is The Corporation Trust Company.
THIRD: The nature of the business and of the purposes to be conducted and
promoted by the Corporation are to conduct any lawful business, to promote any
lawful purpose, and to engage in any lawful act or activity for which
corporations may be organized under the General Corporation Law of the State of
Delaware.
FOURTH: The total number of shares of stock which the Corporation shall
have authority to issue is one thousand (1,000) shares, all of which are of a
par value of one cent ($.01) each, and all of which are of one class and are
designated as Common Stock.
FIFTH: The name and mailing address of the incorporator are as follows:
Martin H. Neidell, c/o Stroock & Stroock & Lavan LLP, 180 Maiden Lane, New
York, New York 10038.
<PAGE>
SIXTH: Whenever a compromise or arrangement is proposed between this
Corporation and its creditors or any class of them and/or between this
Corporation and its stockholders or any class of them, any court of equitable
jurisdiction within the State of Delaware may, on the application in a summary
way of this Corporation or any creditor or stockholder thereof or on the
application of any receiver or receivers appointed for this Corporation under
the provisions of Section 291 of Title 8 of the Delaware Code or on the
application of trustees in dissolution or of any receiver or receivers appointed
for this Corporation under the provisions of Section 279 of Title 8 of the
Delaware Code, order a meeting of the creditors or class of creditors, and/or of
the stockholders or class of stockholders, of this Corporation, as the case may
be, to be summoned in such manner as the said court directs. If a majority in
number representing three-fourths in value of the creditors or class of
creditors, and/or of the stockholders or class of stockholders, of this
Corporation, as the case may be, agree to any compromise or arrangement and to
any reorganization of this Corporation as a consequence of such compromise or
arrangement, the said compromise or arrangement and the said reorganization
shall, if sanctioned by the court to which the said application has been made,
be binding on all the creditors or class of creditors, and/or on all the
stockholder or class of stockholders, of this Corporation, as the case may be,
and also on this Corporation.
SEVENTH: The original By-Laws of the Corporation shall be adopted by the
incorporator. Thereafter, the power to make, alter, or repeal the By-Laws, and
to adopt any new By-Law, shall be vested in the Board of Directors.
EIGHTH: To the fullest extent that the General Corporation Law of the State
of Delaware, as it exists on the date hereof or as it may hereafter be amended,
permits the limitation or elimination of the liability of directors, no director
of this Corporation shall be personally liable to this Corporation or its
stockholders for monetary damages for breach of fiduciary duty as a director.
Notwithstanding the foregoing, a director shall be liable to the extent provided
by applicable law (1) for any breach of the directors' duty of loyalty to the
Corporation or its stockholders, (2) for acts or omissions not in good faith or
which involve intentional misconduct or a knowing violation of law, (3) under
Section 174 of the General Corporation Law of the State of Delaware, or (4) for
any transaction from which the director derived any improper personal benefit.
Neither the amendment or repeal of this Article, nor the adoption of any
provision of this Certificate of Incorporation inconsistent with this Article
shall adversely affect any right or protection of a director of the Corporation
existing at the time of such amendment or repeal.
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NINTH: The Corporation shall, to the fullest extent permitted by Section
145 of the General Corporation Law of the State of Delaware, as the same may be
amended and supplemented, or by any successor thereto, indemnify any and all
persons whom it shall have power to indemnify under said section from and
against any and all of the expenses, liabilities or other matters referred to in
or covered by said section. The Corporation shall advance expenses to the
fullest extent permitted by said section. Such right to indemnification and
advancement of expenses shall continue as to a person who has ceased to be a
director, officer, employee or agent and shall inure to the benefit of the
heirs, executors and administrators of such a person. The indemnification and
advancement of expenses provided for herein shall not be deemed exclusive of any
other rights to which those seeking indemnification or advancement of expenses
may be entitled under any By-Law, agreement, vote of stockholders or
disinterested directors or otherwise.
Executed at New York, New York on July 1, 1998.
/s/Martin H. Neidell
-----------------------------------
Martin H. Neidell, Incorporator
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<PAGE>
Exhibit 3.16
BY-LAWS
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OF
--
RADIO UNICA OF LOS ANGELES LICENSE CORP.
----------------------------------------
(A Delaware Corporation)
ARTICLE I
---------
STOCKHOLDERS
-------------
1. CERTIFICATES REPRESENTING STOCK.
(a) Every holder of stock in the Corporation shall be entitled to have a
certificate signed by, or in the name of, the Corporation by the Chairman or
Vice-Chairman of the Board of Directors, if any, or by the President or a
Vice-President and by the Treasurer or an Assistant Treasurer or the Secretary
or an Assistant Secretary of the Corporation representing the number of shares
owned by such person in the Corporation. If such certificate is countersigned by
a transfer agent other than the Corporation or its employee or by a registrar
other than the Corporation or its employee, any other signature on the
certificate may be a facsimile. In case any officer, transfer agent, or
registrar who has signed or whose facsimile signature has been placed upon a
certificate shall have ceased to be such officer, transfer agent or registrar
before such certificate is issued, it may be issued by the Corporation with the
same effect as if such person were such officer, transfer agent or registrar at
the date of issue.
(b) Whenever the Corporation shall be authorized to issue more than one
class of stock or more than one series of any class of stock, and whenever the
Corporation shall issue any shares of its stock as partly paid stock, the
certificates representing shares of any such class or series or of any such
partly paid stock shall set forth thereon the statements prescribed by the
General Corporation Law. Any restrictions on the transfer or registration of
transfer of any shares of stock of any class or series shall be noted
conspicuously on the certificate representing such shares.
<PAGE>
(c) The Corporation may issue a new certificate of stock in place of any
certificate theretofore issued by it, alleged to have been lost, stolen or
destroyed, and the Board of Directors may require the owner of any lost, stolen
or destroyed certificate, or such person's legal representative, to give the
Corporation a bond sufficient to indemnify the Corporation against any claim
that may be made against it on account of the alleged loss, theft or destruction
of any such certificate or the issuance of any such new certificate.
2. FRACTIONAL SHARE INTERESTS.
The Corporation may, but shall not be required to, issue fractions of a
share.
3. STOCK TRANSFERS.
Upon compliance with provisions restricting the transfer or registration of
transfer of shares of stock, if any, transfers or registration of transfer of
shares of stock of the Corporation shall be made only on the stock ledger of the
Corporation by the registered holder thereof, or by such person's attorney
thereunto authorized by power of attorney duly executed and filed with the
Secretary of the Corporation or with a transfer agent or a registrar, if any,
and on surrender of the certificate or certificates for such shares of stock
properly endorsed and the payment of all taxes due thereon.
4. RECORD DATE FOR STOCKHOLDERS.
(a) In order that the Corporation may determine the stockholders entitled
to notice of or to vote at any meeting of stockholders or any adjournment
thereof, the Board of Directors may fix a record date, which record date shall
not precede the date upon which the resolution fixing the record date is adopted
by the Board of Directors, and which record date shall not be more than sixty
nor less than ten days before the date of such meeting. If no record date has
been fixed by the Board of Directors, the record date for determining
stockholders entitled to notice of or to vote at a meeting of stockholders shall
be at the close of business on the day next preceding the day on which notice
is given, or, if notice is waived, at the close of business on the day next
preceding the day on which the meeting is held. A determination of stockholders
of record entitled to notice of or to vote at a meeting of stockholders shall
apply to any adjournment of the meeting; provided, however, that the Board of
Directors may fix a new record date for the adjourned meeting.
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(b) In order that the Corporation may determine the stockholders entitled
to receive payment of any dividend or other distribution or allotment of any
rights or the stockholders entitled to exercise any rights in respect of any
change, conversion or exchange of stock, or for the purpose of any other lawful
action, the Board of Directors may fix a record date, which record date shall
not precede the date upon which the resolution fixing the record date is
adopted, and which record date shall be not more than sixty days prior to such
action. If no record date has been fixed, the record date for determining
stockholders for any such purpose shall be at the close of business on the day
on which the Board of Directors adopts the resolution relating thereto.
5. MEANING OF CERTAIN TERMS.
As used herein in respect of the right to notice of a meeting of
stockholders or a waiver thereof or to participate or vote thereat or to consent
or dissent in writing in lieu of a meeting, as the case may be, the term "share"
or "shares" or "share of stock" or "shares of stock" or "stockholder" or
"stockholders" refers to an outstanding share or shares of stock and to a holder
or holders of record of outstanding shares of stock when the Corporation is
authorized to issue only one class of shares of stock, and said reference is
also intended to include any outstanding share or shares of stock and any holder
or holders of record of outstanding shares of stock of any class upon which or
upon whom the Certificate of Incorporation confers such rights where there are
two or more classes or series of shares of stock or upon which or upon whom the
General Corporation Law confers such rights notwithstanding that the Certificate
of Incorporation may provide for more than one class or series of shares of
stock, one or more of which are limited or denied such rights thereunder;
provided, however, that no such right shall vest in the event of an increase or
a decrease in the authorized number of shares of stock of any class or series
which is otherwise denied voting rights under the provisions of the Certificate
of Incorporation, including any preferred stock which is denied voting rights
under the provisions of the resolution or resolutions adopted by the Board of
Directors with respect to the issuance thereof.
6. STOCKHOLDER MEETINGS.
(a) TIME. The annual meeting shall be held on the date and at the time
fixed, from time to time, by the Board of Directors. A special meeting shall be
held on the date and at the time fixed by the Board of Directors.
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<PAGE>
(b) PLACE. Annual meetings and special meetings shall be held at such
place, within or without the State of Delaware, as the Board of Directors may,
from time to time, fix. Whenever the Board of Directors shall fail to fix such
place, the meeting shall be held at the registered office of the Corporation in
the State of Delaware.
(c) CALL. Annual meetings and special meetings may be called by the Board
of Directors or by any officer instructed by the Board of Directors to call the
meeting.
(d) NOTICE OR WAIVER OF NOTICE. Written notice of all meetings shall be
given, stating the place, date and hour of the meeting. The notice of an annual
meeting shall state that the meeting is called for the election of Directors and
for the transaction of other business which may properly come before the
meeting, and shall (if any other action which could be taken at a special
meeting is to be taken at such annual meeting), state such other action or
actions as are known at the time of such notice. The notice of a special meeting
shall in all instances state the purpose or purposes for which the meeting is
called. If any action is proposed to be taken which would, if taken, entitle
stockholders to receive payment for their shares of stock, the notice shall
include a statement of that purpose and to that effect. Except as otherwise
provided by the General Corporation Law, a copy of the notice of any meeting
shall be given, personally or by mail, not less than ten days nor more than
sixty days before the date of the meeting, unless the lapse of the prescribed
period of time shall have been waived, and directed to each stockholder at such
person's address as it appears on the records of the Corporation. Notice by mail
shall be deemed to be given when deposited, with postage thereon prepaid, in the
United States mail. If a meeting is adjourned to another time, not more than
thirty days hence, and/or to another place, and if an announcement of the
adjourned time and place is made at the meeting, it shall not be necessary to
give notice of the adjourned meeting unless the Board of Directors, after
adjournment, fixes a new record date for the adjourned meeting. Notice need not
be given to any stockholder who submits a written waiver of notice before or
after the time stated therein. Attendance of a person at a meeting of
stockholders shall constitute a waiver of notice of such meeting, except when
the stockholder attends a meeting for the express purpose of objecting, at the
beginning of the meeting, to the transaction of any business because the meeting
is not lawfully called or convened. Neither the business to be transacted, nor
the purpose of, any regular or special meeting of the stockholders need be
specified in any written waiver of notice.
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<PAGE>
(e) STOCKHOLDER LIST. There shall be prepared and made, at least ten days
before every meeting of stockholders, a complete list of the stockholders,
arranged in alphabetical order, and showing the address of each stockholder and
the number of shares registered in the name of each stockholder. Such list shall
be open to the examination of any stockholder, for any purpose germane to the
meeting, during ordinary business hours, for a period of at least ten days prior
to the meeting either at a place within the city where the meeting is to be
held, which place shall be specified in the notice of the meeting, or if not so
specified, at the place where the meeting is to be held. The list shall also be
produced and kept at the time and place of the meeting during the whole time
thereof, and may be inspected by any stockholder who is present. The stock
ledger shall be the only evidence as to who are the stockholders entitled to
examine the stock ledger, the list required by this section or the books of the
Corporation, or to vote at any meeting of stockholders.
(f) CONDUCT OF MEETING. Meetings of the stockholders shall be presided over
by one of the following officers in the order of seniority and if present and
acting: the Chairman of the Board, if any, the Vice-Chairman of the Board, if
any, the President, a Vice President, a chairman for the meeting chosen by the
Board of Directors or, if none of the foregoing is in office and present and
acting, by a chairman to be chosen by the stockholders. The Secretary of the
Corporation or, in such person's absence, an Assistant Secretary, shall act as
secretary of every meeting, but if neither the Secretary nor an Assistant
Secretary is present the chairman for the meeting shall appoint a secretary of
the meeting.
(g) PROXY REPRESENTATION. Every stockholder may authorize another person or
persons to act for such stockholder by proxy in all matters in which a
stockholder is entitled to participate, whether by waiving notice of any
meeting, voting or participating at a meeting, or expressing consent or dissent
without a meeting. Every proxy must be signed by the stockholder or by such
person's attorney-in-fact. No proxy shall be voted or acted upon after three
years from its date unless such proxy provides for a longer period. A duly
executed proxy shall be irrevocable if it states that it is irrevocable and, if,
and only as long as, it is coupled with an interest sufficient in law to support
an irrevocable power. A proxy may be made irrevocable regardless of whether the
interest with which it is coupled is an interest in the stock itself or an
interest in the Corporation generally.
(h) INSPECTORS AND JUDGES. The Board of Directors, in advance of any
meeting, may, but need not, appoint one or more inspectors of election or judges
of the vote, as the case may be, to act at the meeting or any adjournment
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<PAGE>
thereof. If an inspector or inspectors or judge or judges are not appointed by
the Board of Directors, the person presiding at the meeting may, but need not,
appoint one or more inspectors or judges. In case any person who may be
appointed as an inspector or judge fails to appear or act, the vacancy may be
filled by appointment made by the person presiding thereat. Each inspector or
judge, if any, before entering upon the discharge of such person's duties, shall
take and sign an oath faithfully to execute the duties of inspector or judge at
such meeting with strict impartiality and according to the best of his ability.
The inspectors or judges, if any, shall determine the number of shares of stock
outstanding and the voting power of each, the shares of stock represented at the
meeting, the existence of a quorum and the validity and effect of proxies,
receive votes, ballots or consents, hear and determine all challenges and
questions arising in connection with the right to vote, count and tabulate all
votes, ballots or consents, determine the result, and do such other acts as are
proper to conduct the election or vote with fairness to all stockholders. On
request of the person presiding at the meeting, the inspector or inspectors or
judge or judges, if any, shall make a report in writing of any challenge,
question or matter determined by such person or persons and execute a
certificate of any fact so found.
(i) QUORUM. Except as the General Corporation Law or these By-Laws may
otherwise provide, the holders of a majority of the outstanding shares of stock
entitled to vote shall constitute a quorum at a meeting of stockholders for the
transaction of any business. The stockholders present may adjourn the meeting
despite the absence of a quorum. When a quorum is once present to organize a
meeting, it is not broken by the subsequent withdrawal of any shareholders.
(j) VOTING. Each stockholder entitled to vote in accordance with the terms
of the Certificate of Incorporation and of these By-Laws, or, with respect to
the issuance of preferred stock, in accordance with the terms of a resolution or
resolutions of the Board of Directors, shall be entitled to one vote, in person
or by proxy, for each share of stock entitled to vote held by such stockholder.
In the election of Directors, a plurality of the votes present at the meeting
shall elect. Any other action shall be authorized by a majority of the votes
cast except where the Certificate of Incorporation or the General Corporation
Law prescribes a different percentage of votes and/or a different exercise of
voting power.
Voting by ballot shall not be required for corporate action except as
otherwise provided by the General Corporation Law.
6
<PAGE>
7. STOCKHOLDER ACTION WITHOUT MEETINGS.
Any action required to be taken, or any action which may be taken, at any
annual or special meeting of stockholders, may be taken without a meeting,
without prior notice and without a vote, if a consent or consents in writing,
setting forth the action so taken, shall be signed by the holders of the
outstanding stock having not less than the minimum number of votes that would be
necessary to authorize or take such action at a meeting at which all shares
entitled to vote thereon were present and voted. Prompt notice of the taking of
the corporate action without a meeting by less than unanimous written consent
shall be given to those stockholders who have not consented in writing and shall
be delivered to the Corporation by delivery to its registered office in
Delaware, its principal place of business or an officer or agent of the
Corporation having custody of the book in which proceedings of meetings of
stockholders are recorded. Delivery made to the Corporation's registered office
shall be by hand or by certified or registered mail, return receipt requested.
ARTICLE II
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DIRECTORS
---------
1. FUNCTIONS AND DEFINITION.
The business and affairs of the Corporation shall be managed by or under
the direction of the Board of Directors of the Corporation. The use of the
phrase "whole Board" herein refers to the total number of Directors which the
Corporation would have if there were no vacancies.
2. QUALIFICATIONS AND NUMBER.
A Director need not be a stockholder, a citizen of the United States, or a
resident of the State of Delaware. The initial Board of Directors shall consist
of three persons. Thereafter the number of Directors constituting the whole
board shall be at least one. Subject to the foregoing limitation and except for
the first Board of Directors, such number may be fixed from time to time by
action of the stockholders or of the Board of Directors, or, if the number is
not fixed, the number shall be three. The number of Directors may be increased
or decreased by action of the stockholders or of the Board of Directors.
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<PAGE>
3. ELECTION AND TERM.
The first Board of Directors, unless the members thereof shall have been
named in the Certificate of Incorporation, shall be elected by the
incorporator or incorporators and shall hold office until the first annual
meeting of stockholders and until their successors have been elected and
qualified or until their earlier resignation or removal. Any Director may
resign at any time upon written notice to the Corporation. Thereafter,
Directors who are elected at an annual meeting of stockholders, and Directors
who are elected in the interim to fill vacancies and newly created
Directorships, shall hold office until the next annual meeting of
stockholders and until their successors have been elected and qualified or
until their earlier resignation or removal. In the interim between annual
meetings of stockholders or of special meetings of stockholders called for
the election of Directors and/or for the removal of one or more Directors and
for the filling of any vacancies in the Board of Directors, including
vacancies resulting from the removal of Directors for cause or without cause,
any vacancy in the Board of Directors may be filled by the vote of a majority
of the remaining Directors then in office, although less than a quorum, or by
the sole remaining Director.
4. MEETINGS.
(a) TIME. Regular meetings shall be held at such time as the Board shall
fix. Special meetings may be called upon notice.
(b) FIRST MEETING. The first meeting of each newly elected Board may be
held immediately after each annual meeting of the stockholders at the same place
at which the meeting is held, and no notice of such meeting shall be necessary
to call the meeting, provided a quorum shall be present. In the event such first
meeting is not so held immediately after the annual meeting of the stockholders,
it may be held at such time and place as shall be specified in the notice given
as provided for special meetings of the Board of Directors, or at such time and
place as shall be fixed by the consent in writing of all of the Directors.
(c) PLACE. Meetings, both regular and special, shall be held at such place
within or without the State of Delaware as shall be fixed by the Board.
(d) CALL. No call shall be required for regular meetings for which the time
and place have been fixed. Special meetings may be called by or at the direction
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<PAGE>
of the Chairman of the Board, if any, the Vice-Chairman of the Board, if any, or
the President, or of a majority of the Directors.
(e) NOTICE OR ACTUAL OR CONSTRUCTIVE WAIVER. No notice shall be required
for regular meetings for which the time and place have been fixed. Written, oral
or any other mode of notice of the time and place shall be given for special
meetings at least twenty-four hours prior to the meeting; notice may be given by
telephone of telefax (in which case it is effective when given) or by mail (in
which case it is effective seventy-two hours after mailing by prepaid first
class mail). The notice of any meeting need not specify the purpose of the
meeting. Any requirement of furnishing a notice shall be waived by any Director
who signs a written waiver of such notice before or after the time stated
therein. Attendance of a Director at a meeting of the Board shall constitute a
waiver of notice of such meeting, except when the Director attends a meeting for
the express purpose of objecting, at the beginning of the meeting, to the
transaction of any business because the meeting is not lawfully called or
convened.
(f) QUORUM AND ACTION. A majority of the whole Board shall constitute a
quorum except when a vacancy or vacancies prevents such majority, whereupon a
majority of the Directors in office shall constitute a quorum, provided that
such majority shall constitute at least one-third (1/3) of the whole Board.
Any Director may participate in a meeting of the Board by means of a
conference telephone or similar communications equipment by means of which
all Directors participating in the meeting can hear each other, and such
participation in a meeting of the Board shall constitute presence in person
at such meeting. A majority of the Directors present, whether or not a
quorum is present, may adjourn a meeting to another time and place. Except as
herein otherwise provided, and except as otherwise provided by the General
Corporation Law, the act of the Board shall be the act by vote of a majority
of the Directors present at a meeting, a quorum being present. The quorum and
voting provisions herein stated shall not be construed as conflicting with
any provisions of the General Corporation Law and these By-Laws which govern
a meeting of Directors held to fill vacancies and newly created Directorships
in the Board.
(g) CHAIRMAN OF THE MEETING. The Chairman of the Board, if any and if
present and acting, shall preside at all meetings. Otherwise, the Vice-Chairman
of the Board, if any and if present and acting, or the President, if present and
acting, or any other Director chosen by the Board, shall preside.
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<PAGE>
5. REMOVAL OF DIRECTORS.
Any or all of the Directors may be removed for cause or without cause by
the stockholders.
6. COMMITTEES.
The Board of Directors may, by resolution passed by a majority of the whole
Board, designate one or more committees, each committee to consist of one or
more of the Directors of the Corporation. The Board may designate one or more
Directors as alternate members of any committee, who may replace any absent or
disqualified member at any meeting of the committee. Any such committee, to the
extent provided in the resolution of the Board, shall have and may exercise the
powers of the Board of Directors in the management of the business and affairs
of the Corporation, and may authorize the seal of the Corporation to be affixed
to all papers which may require it. In the absence or disqualification of any
member of any such committee or committees, the members thereof present at any
meeting and not disqualified from voting, whether or not they constitute a
quorum, may unanimously appoint another member of the Board of Directors to act
at the meeting in the place of any such absent or disqualified member.
7. ACTION IN WRITING.
Any action required or permitted to be taken at any meeting of the Board of
Directors or any committee thereof may be taken without a meeting if all members
of the Board or committee, as the case may be, consent thereto in writing, and
the writing or writings are filed with the minutes of proceedings of the Board
or committee.
ARTICLE III
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OFFICERS
--------
1. EXECUTIVE OFFICERS.
The Board of Directors may elect or appoint a Chairman of the Board of
Directors, a President, one or more Vice Presidents (which may be denominated
with additional descriptive titles), a Secretary, one or more Assistant
Secretaries, a
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Treasurer, one or more Assistant Treasurers and such other officers as it may
determine. Any number of offices may be held by the same person.
2. TERM OF OFFICE: REMOVAL.
Unless otherwise provided in the resolution of election or appointment,
each officer shall hold office until the meeting of the Board of Directors
following the next annual meeting of stockholders and until such officer's
successor has been elected and qualified or until the earlier resignation or
removal of such officer. The Board of Directors may remove any officer for cause
or without cause.
3. AUTHORITY AND DUTIES.
All officers, as between themselves and the Corporation, shall have such
authority and perform such duties in the management of the Corporation as may be
provided in these By-Laws, or, to the extent not so provided, by the Board of
Directors.
4. THE CHAIRMAN OF THE BOARD OF DIRECTORS.
The Chairman of the Board of Directors, if present and acting, shall
preside at all meetings of the Board of Directors, otherwise, the President, if
present, shall preside, or if the President does not so preside, any other
Director chosen by the Board shall preside. The Chairman of the Board of
Directors shall be the chief executive officer of the Corporation.
5. THE PRESIDENT.
The President shall be the chief operating officer of the Corporation.
6. VICE PRESIDENTS.
Any Vice President that may have been appointed, in the absence or
disability of the President, shall perform the duties and exercise the powers of
the President, in the order of their seniority, and shall perform such other
duties as the Board of Directors shall prescribe.
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7. THE SECRETARY.
The Secretary shall keep in safe custody the seal of the Corporation and
affix it to any instrument when authorized by the Board of Directors, and shall
perform such other duties as may be prescribed by the Board of Directors. The
Secretary (or in such officer's absence, an Assistant Secretary, but if neither
is present another person selected by the Chairman for the meeting) shall have
the duty to record the proceedings of the meetings of the stockholders and
Directors in a book to be kept for that purpose.
8. THE TREASURER.
The Treasurer shall have the care and custody of the corporate funds, and
other valuable effects, including securities, and shall keep full and accurate
accounts of receipts and disbursements in books belonging to the Corporation and
shall deposit all moneys and other valuable effects in the name and to the
credit of the Corporation in such depositories as may be designated by the Board
of Directors. The Treasurer shall disburse the funds of the Corporation as may
be ordered by the Board, taking proper vouchers for such disbursements, and
shall render to the President and Directors, at the regular meetings of the
Board, or whenever they may require it, an account of all transactions as
Treasurer and of the financial condition of the Corporation. If required by the
Board of Directors, the Treasurer shall give the Corporation a bond for such
term, in such sum and with such surety or sureties as shall be satisfactory to
the Board for the faithful performance of the duties of such office and for the
restoration to the Corporation, in case of such person's death, resignation,
retirement or removal from office, of all books, papers, vouchers, money and
other property of whatever kind in such person's possession or under such
person's control belonging to the Corporation.
ARTICLE IV
----------
CORPORATE SEAL
--------------
AND
---
CORPORATE BOOKS
---------------
The corporate seal shall be in such form as the Board of Directors shall
prescribe. The books of the Corporation may be kept within or without the
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State of Delaware, at such place or places as the Board of directors may, from
time to time, determine.
ARTICLE V
---------
FISCAL YEAR
-----------
The fiscal year of the Corporation shall be fixed, and shall be subject to
change, by the Board of Directors.
ARTICLE VI
----------
INDEMNITY
---------
(a) Any person who was or is a party or threatened to be made a party to
any threatened, pending or completed action, suit or proceeding, whether civil,
criminal, administrative or investigative (other than an action by or in the
right of the Corporation) by reason of the fact that he or she is or was a
Director, officer, employee or agent of the Corporation or is or was serving at
the request of the Corporation as director, officer, employee or agent of
another corporation, partnership, joint venture, trust or other enterprise
(including employee benefit plans) (hereinafter an "indemnitee"), shall be
indemnified and held harmless by the Corporation to the fullest extent
authorized by the General Corporation Law, as the same exists or may hereafter
be amended (but, in the case of any such amendment, only to the extent that such
amendment permits the Corporation to provide broader indemnification than
permitted prior thereto), against expenses (including attorneys' fees),
judgments, fines and amounts paid in settlement actually and reasonably incurred
by such indemnitee in connection with such action, suit or proceeding, if the
indemnitee acted in good faith and in a manner he or she reasonably believed to
be in or not opposed to the best interests of the Corporation, and with respect
to any criminal action or proceeding, had no reasonable cause to believe such
conduct was unlawful. The termination of the proceeding, whether by judgment,
order, settlement, conviction or upon a plea of nolo contendere or its
equivalent, shall not, of itself, create a presumption that the person did not
act in good faith and in a manner which he or she reasonably believed to be in
or not opposed to the best interests of the Corporation and, with respect to any
criminal action or proceeding, had reasonable cause to believe such conduct was
unlawful.
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(b) Any person who was or is a party or is threatened to be made a party to
any threatened, pending or completed action or suit by or in the right of the
Corporation to procure a judgment in its favor by reason of the fact that he or
she is or was a Director, officer, employee or agent of the Corporation, or is
or was serving at the request of the Corporation as a director, officer,
employee or agent of another Corporation, partnership, joint venture, trust or
other enterprise (including employee benefit plans) shall be indemnified and
held harmless by the Corporation to the fullest extent authorized by the General
Corporation Law, as the same exists or may hereafter be amended (but, in the
case of any such amendment, only to the extent that such amendment permits the
Corporation to provide broader indemnification than permitted prior thereto),
against expenses (including attorneys' fees) actually and reasonably incurred by
him or her in connection with the defense or settlement of such action or suit
if he or she acted in good faith and in a manner he or she reasonably believed
to be in or not opposed to the best interests of the Corporation and except that
no indemnification shall be made in respect of any claim, issue or matter as to
which such person shall have been adjudged to be liable to the Corporation
unless and only to the extent that the Court in which such suit or action was
brought, shall determine, upon application, that, despite the adjudication of
liability but in view of all the circumstances of the case, such person is
fairly and reasonably entitled to indemnity for such expenses which such court
shall deem proper.
(c) All reasonable expenses incurred by or on behalf of the indemnitee in
connection with any suit, action or proceeding, may be advanced to the
indemnitee by the Corporation.
(d) The rights to indemnification and to advancement of expenses conferred
in this article shall not be exclusive of any other right which any person may
have or hereafter acquire under any statute, the Certificate of Incorporation, a
By-Law of the Corporation, agreement, vote of stockholders or disinterested
Directors or otherwise.
(e) The indemnification and advancement of expenses provided by this
article shall continue as to a person who has ceased to be a Director, officer,
employee or agent and shall inure to the benefit of the heirs, executors and
administrators of such person.
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Exhibit 3.17
CERTIFICATE OF INCORPORATION
OF
RADIO UNICA OF SAN ANTONIO, INC.
THE UNDERSIGNED, in order to form a Corporation for the purpose hereinafter
stated, under and pursuant to the provisions of the General Corporation Law of
the State of Delaware, does hereby certify, that:
FIRST: The name of the Corporation is RADIO UNICA OF SAN ANTONIO, INC.
SECOND: The registered agent and the address of the Corporation's
registered office in the State of Delaware are Incorporating Services, Ltd.,
15 E. North Street, Dover, Delaware, Kent County, 19901.
THIRD: The purpose of the Corporation is to engage in any and all lawful
acts or activities for which Corporations may be organized under the General
Corporation Law of the State of Delaware.
FOURTH: The total number of shares which the Corporation shall have the
authority to issue is 5,000 shares of capital stock. All shares shall have a par
value of $.01 each.
FIFTH: Stockholders may, by simple majority vote, adopt, alter, amend
and/or repeal from time to time the bylaws of the Corporation which shall govern
to the extent not inconsistent with any statute, the Certificate of
Incorporation or any valid agreement among the shareholders.
SIXTH: The directors of the Corporation shall not be personally liable to
the Corporation or to stockholders or any other person for monetary damages for
breach of fiduciary duties as a director, and are fully indemnified and held
harmless by the Corporation to the fullest extent permitted under 8.Del. C 145
of the General Corporation Law of Delaware.
<PAGE>
SEVENTH: The incorporator of the Corporation is Sharon R. Liebman whose
address is 701 Brickell Avenue, Suite 3000, Miami, Florida 33131. The powers of
the incorporator are to terminate upon the nomination by the incorporator of the
initial Board of Directors, which shall be vested with all authority and powers
authorized under the General Corporate Law of Delaware.
IN WITNESS WHEREOF, I have hereunto subscribed my name this 30th day of
December, 1997.
/s/ Sharon R. Liebman
---------------------------
Sharon R. Liebman
Sole Incorporator
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Exhibit 3.18
BYLAWS
OF
RADIO UNICA OF SAN ANTONIO, INC.
a Delaware corporation
ARTICLE I
STOCKHOLDERS
l. CERTIFICATES REPRESENTING STOCK. Certificates representing stock
in the corporation shall be signed by, or in the name of, the corporation by
the Chairman or Vice-Chairman of the Board of Directors, if any, or by the
President or a Vice-President and by the Treasurer or an Assistant Treasurer
or the Secretary or an Assistant Secretary of the corporation. Any or all the
signatures on any such certificate may be a facsimile. In case any officer,
transfer agent, or registrar who has signed or whose facsimile signature has
been placed upon a certificate shall have ceased to be such officer, transfer
agent, or registrar before such certificate is issued, it may be issued by
the corporation with the same effect as if he were such officer, transfer
agent, or registrar at the date of issue.
Whenever the corporation shall be authorized to issue more than one
class of stock or more than one series of any class of stock, and whenever
the corporation shall issue any shares of its stock as partly paid stock, the
certificates representing shares of any such class or series or of any such
partly paid stock shall set forth thereon the statements prescribed by the
Delaware Corporation Law. Any restrictions on the transfer or registration of
transfer of any shares of stock of any class or series shall be noted
conspicuously on the certificate representing such shares.
The corporation may issue a new certificate of stock or uncertificated
shares in place of any certificate theretofore issued by it, alleged to have
been lost, stolen, or destroyed, and the Board of Directors may require the
owner of the lost, stolen, or destroyed certificate, or his legal
representative, to give the corporation a bond sufficient to indemnify the
corporation against any claim that may be made against it on account of the
alleged loss, theft, or destruction of any such certificate or the issuance
of any such new certificate or uncertificated shares.
2. UNCERTIFICATED SHARES. Subject to any conditions imposed by
the Delaware Corporation Law, the Board of Directors of the corporation may
provide by resolution
<PAGE>
or resolutions that some or all of any or all classes or series of the stock
of the corporation shall be uncertificated shares. Within a reasonable time
after the issuance or transfer of any uncertificated shares, the corporation
shall send to the registered owner thereof any written notice prescribed by
the Delaware Corporation Law.
3. FRACTIONAL SHARE INTERESTS. The corporation may, but shall not
be required to, issue fractions of a share. If the corporation does not issue
fractions of a share, it shall (l) arrange for the disposition of fractional
interests by those entitled thereto, (2) pay in cash the fair value of
fractions of a share as of the time when those entitled to receive such
fractions are determined, or (3) issue scrip or warrants in registered form
(either represented by a certificate or uncertificated) or bearer form
(represented by a certificate) which shall entitle the holder to receive a
full share upon the surrender of such scrip or warrants aggregating a full
share. A certificate for a fractional share or an uncertificated fractional
share shall, but scrip or warrants shall not unless otherwise provided
therein, entitle the holder to exercise voting rights, to receive dividends
thereon, and to participate in any of the assets of the corporation in the
event of liquidation. The Board of Directors may cause scrip or warrants to
be issued subject to the conditions that they shall become void if not
exchanged for certificates representing full shares or uncertificated full
shares, before a specified date, or subject to the conditions that the shares
for which scrip or warrants are exchangeable may be sold by the corporation
and the proceeds thereof distributed to the holders of scrip or warrants, or
subject to any other conditions which the Board of Directors may impose.
4. STOCK TRANSFERS. Upon compliance with provisions restricting the
transfer or registration of transfer of shares of stock, if any, transfers or
registration of transfers of shares of stock of the corporation shall be made
only on the stock ledger of the corporation by the registered holder thereof,
or by his attorney thereunto authorized by power of attorney duly executed
and filed with the Secretary of the corporation or with a transfer agent or a
registrar, if any, and, in the case of shares represented by certificates, on
surrender of the certificate or certificates for such shares of stock
properly endorsed and the payment of all taxes due thereon.
5. RECORD DATE FOR STOCKHOLDERS. In order that the corporation may
determine the stockholders entitled to notice of or to vote at any meeting of
stockholders or any adjournment thereof, the Board of Directors may fix a
record date, which record date shall not precede the date upon which the
resolution fixing the record date is adopted by the Board of Directors, and
which record date shall not be more than sixty nor less than ten days before
the date of such meeting. If no record date is fixed by the Board of
Directors, the record date for determining stockholders entitled to notice of
or to vote at a meeting of stockholders shall be at the close of business on
the day next preceding the day on which notice is given, or, if notice is
waived, at the close of business on the day next preceding the day on which
the
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meeting is held. A determination of stockholders of record entitled to notice
of or to vote at a meeting of stockholders shall apply to any adjournment of
the meeting; provided, however, that the Board of Directors may fix a new
record date for the adjourned meeting. In order that the corporation may
determine the stockholders entitled to consent to corporate action in writing
without a meeting, the Board of Directors may fix a record date, which record
date shall not precede the date upon which the resolution date is adopted by
the Board of Directors, and which date shall not be more than ten days after
the date upon which the record date is adopted by the Board of Directors. If
no record date has been fixed by the Board of Directors, the record date for
determining the stockholders entitled to consent to corporate action in
writing without a meeting, when no prior action by the Board of Directors is
required by the Delaware Corporation Law, shall be the first date on which a
signed written consent setting forth the action taken or proposed to be taken
is delivered to the corporation by delivery to its registered office in the
State of Delaware, its principal place of business, or an officer or agent of
the corporation having custody of the book in which proceedings of meetings
of stockholders are recorded. Delivery made to the corporation's registered
office shall be by hand or by certified or registered mail, return receipt
requested. If no record date has been fixed by the Board of Directors and
prior action by the Board of Directors is required by the Delaware
Corporation Law, the record date for determining stockholders entitled to
consent to corporate action in writing without a meeting shall be at the
close of business on the day on which the Board of Directors adopts the
resolution taking such prior action, in order that the corporation may
determine the stockholders entitled to receive payment of any dividend or
other distribution or allotment of any rights or the stockholders entitles to
exercise any rights in respect of any change, conversion, or exchange of
stock, or for the purpose of any other lawful action, the Board of Directors
may fix a record date, which record date shall not precede the date upon
which the resolution fixing the record date is adopted, and which record date
shall be not more than sixty days prior to such action. If no record date is
fixed, the record date for determining stockholders for any such purpose
shall be at the close of business on the day on which the Board of Directors
adopts the resolution relating thereto.
6. MEANING OF CERTAIN TERMS. As used herein in respect of the right
to notice of a meeting of stockholders or a waiver thereof or to participate
or vote thereat or to consent or dissent in writing in lieu of a meeting, as
the case may be, the term "share" or "shares" or "share of stock" or "shares
of stock" or "stockholder" or "stockholders" refers to an outstanding share
or shares of stock and to a holder or holders of record of outstanding shares
of stock when the corporation is authorized to issue only one class of shares
of stock, and said reference is also intended to include any outstanding
share or shares of stock and any holder or holders of record of outstanding
shares of stock of any class upon which or upon whom the certificate of
incorporation confers such rights where there are two or more classes or
series of shares of stock or upon which or upon whom the Delaware Corporation
Law confers such rights notwithstanding that the certificate of incorporation
may provide for more than one class or series of shares of stock, one or more
of which are limited or denied such rights thereunder; provided, however,
that no such right shall vest in the event of an increase or a decrease in the
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<PAGE>
authorized number of shares of stock of any class or series which is
otherwise denied voting rights under the provisions of the certificate of
incorporation, except as any provision of law may otherwise require.
7. STOCKHOLDER MEETINGS.
TIME. The annual meeting shall be held on the date and at the time
fixed, from time to time, by the directors, provided, that the first annual
meeting shall be held on a date within thirteen months after the organization
of the corporation, and each successive annual meeting shall be held on a
date within thirteen months after the date of the preceding annual meeting. A
special meeting shall be held on the date and at the time fixed by the
directors.
PLACE. Annual meetings and special meetings shall be held at such
place, within or without the State of Delaware, as the directors may, from
time to time, fix. Whenever the directors shall fail to fix such place, the
meeting shall be held at the registered office of the corporation in the
State of Delaware.
CALL. Annual meetings and special meetings may be called by the
directors or by any officer instructed by the directors to call the meeting.
NOTICE OR WAIVER OF NOTICE. Written notice of all meetings shall be
given, stating the place, date, and hour of the meeting and stating the place
within the city or other municipality or community at which the list of
stockholders of the corporation may be examined. The notice of an annual
meeting shall state that the meeting is called for the election of directors
and for the transaction of other business which may properly come before the
meeting, and shall (if any other action which could be taken at a special
meeting is to be taken at such annual meeting) state the purpose or purposes.
The notice of a special meeting shall in all instances state the purpose or
purposes for which the meeting is called. The notice of any meeting shall
also include, or be accompanied by, any additional statements, information,
or documents prescribed by the Delaware Corporation Law. Except as otherwise
provided by the Delaware Corporation Law, a copy of the notice of any meeting
shall be given, personally or by mail, not less than ten days nor more than
sixty days before the date of the meeting, unless the lapse of the prescribed
period of time shall have been waived, and directed to each stockholder at
his record address or at such other address which he may have furnished by
request in writing to the Secretary of the corporation. Notice by mail shall
be deemed to be given when deposited, with postage thereon prepaid, in the
United States Mail. If a meeting is
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<PAGE>
adjourned to another time, not more than thirty days hence, an or to another
place, and if an announcement of the adjourned time and/or place is made at
the meeting, it shall not be necessary to give notice of the adjourned
meeting unless the directors, after adjournment, fix a new record date for
the adjourned meeting. Notice need not be given to any stockholder who
submits a written waiver of notice signed by him before or after the time
stated therein. Attendance of a stockholder at a meeting of stockholders
shall constitute a waiver of notice of such meeting, except when the
stockholder attends the meeting for the express purpose of objecting, at the
beginning of the meeting, to the transaction of any business because the
meeting is not lawfully called or convened. Neither the business to be
transacted at, nor the purpose of, any regular or special meeting of the
stockholders need be specified in any written waiver of notice.
STOCKHOLDER LIST. The officer who has charge of the stock ledger of
the corporation shall prepare and make, at least ten days before every
meeting of stockholders, a complete list of the stockholders, arranged in
alphabetical order, and showing the address of each stockholder and the
number of shares registered in the name of each stockholder. Such list shall
be open to the examination of any stockholder, for any purpose germane to the
meeting, during ordinary business hours, for a period of at least ten days
prior to the meeting, either at a place within the city or other municipality
or community where the meeting is to be held, which place shall be specified
in the notice of the meeting, or if not so specified, at the place where the
meeting is to be held. The list shall also be produced and kept at the time
and place of the meeting during the whole time thereof, and may be inspected
by any stockholder who is present. The stock ledger shall be the only
evidence as to who are the stockholders entitled to examine the stock ledger,
the list required by this section or the books of the corporation, or to vote
at any meeting of stockholders.
CONDUCT OF MEETING. Meetings of the stockholders shall be presided
over by one of the following officers in the order of seniority and if
present and acting the Chairman of the Board, if any, the Vice Chairman of
the Board, if any, the President, a Vice-President, or, if none of the
foregoing is in office and present and acting, by a chairman to be chosen by
the stockholders. The Secretary of the corporation, or in his absence, an
Assistant Secretary, shall act as secretary of every meeting, but if neither
the Secretary nor an Assistant Secretary is present the Chairman of the
meeting shall appoint a secretary of the meeting.
PROXY REPRESENTATION. Every stockholder may authorize another
person or persons to act for him by proxy in all matters in which a
stockholder is entitled to participate, whether by waiving notice of any
meeting, voting or participating at a meeting, or expressing consent or
dissent without a meeting. Every proxy must be signed by the stockholder or
by his
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attorney-in-fact. No proxy shall be voted or acted upon after three years
from its date unless such proxy provides for a longer period. A duly executed
proxy shall be irrevocable if it states that it is irrevocable and, if, and
only as long as, it is coupled with an interest sufficient in law to support
an irrevocable power. A proxy may be made irrevocable regardless of whether
the interest with which it is coupled is an interest in the stock itself or
an interest in the corporation generally.
INSPECTORS. The directors, in advance of any meeting, may, but need
not, appoint one or more inspectors of election to act at the meeting or any
adjournment thereof. If an inspector or inspectors are not appointed, the
person presiding at the meeting may, but need not, appoint one or more
inspectors. In case any person who may be appointed as an inspector fails to
appear or act, the vacancy may be filled by appointment made by the directors
in advance of the meeting or at the meeting by the person presiding thereat.
Each inspector, if any, before entering upon the discharge of his duties,
shall take and sign an oath faithfully to execute the duties of inspectors at
such meeting with strict impartiality and according to the best of his
ability. The inspectors, if any, shall determine the number of shares of
stock outstanding and the voting power of each, the shares of stock
represented at the meeting, the existence of a quorum, the validity and
effect of proxies, and shall receive votes, ballots, or consents, hear and
determine all challenges and questions arising in connection with the right
to vote, count and tabulate all votes, ballots, or consents, determine the
result, and so such acts as are proper to conduct the election or vote with
fairness to all stockholders. On request of the person presiding at the
meeting, the inspector or inspectors, if any, shall make a report in writing
of any challenge, question, or matter determined by him or them and execute a
certificate of any fact found by him or them. Except as otherwise required by
the Delaware General Corporation Law, the provisions of that Section shall
not apply to the corporation.
QUORUM. The holders of a majority of the outstanding shares of
stock shall constitute a quorum at a meeting of stockholders for the
transaction of any business. The stockholders present may adjourn the meeting
despite the absence of a quorum.
VOTING. Each share of stock shall entitle the holders thereof to
one vote. Directors shall be elected by a plurality of the vote of the shares
present in person or represented by proxy at the meeting and entitled to vote
on the election of directors. Any other action shall be authorized by a
majority of the votes cast except where the Delaware Corporation Law
prescribes a different percentage of votes and/or a different exercise of
voting power, and except as may be otherwise prescribed by the provisions of
the certificate of incorporation and these Bylaws. In the election of
directors, and for any other action, voting need not be by ballot.
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8. STOCKHOLDER ACTION WITHOUT MEETINGS. Any action required by the
Delaware Corporation Law to be taken at any annual or special meeting of
stockholders, or any action which may be taken at any annual or special
meeting of stockholders, may be taken without a meeting, without prior notice
and without a vote, if a consent in writing, setting forth the action so
taken, shall be signed by the holders of outstanding stock having, not less
than the minimum number of votes that would be necessary to authorize or take
such action at a meeting at which all shares entitled to vote thereon were
present and voted. Prompt notice of the taking of the corporate action
without a meeting by less that unanimous written consent shall be given to
those stockholders who have not consented in writing. Action taken pursuant
to this paragraph shall be subject to the provisions of the Delaware General
Corporation Law.
ARTICLE II
DIRECTORS
l. FUNCTIONS AND DEFINITION. The business and affairs of the
corporation shall be managed by or under the direction of the Board of
Directors of the corporation. The Board of Directors shall have the authority
to fix the compensation of the members thereof. The use of the phrase "whole
board" herein refers to the total number of directors which the corporation
would have if there were no vacancies.
2. QUALIFICATIONS AND NUMBER. A director need not be a stockholder,
a citizen of the United States, or a resident of the State of Delaware. The
initial Board of Directors shall consist of three (3) persons. Thereafter the
number of directors constituting the whole board shall be at least one.
Subject to the foregoing limitation and except for the first Board of
Directors, such number may be fixed from time to time by action of the
stockholders or of the directors, or, if the number is not fixed, the number
shall be one. The number of directors may be increased or decreased by action
of the stockholders or of the directors.
3. ELECTION AND TERM. The first Board of Directors, unless the
members thereof shall have been named in the certificate of incorporation,
shall be elected by the incorporator or incorporators and shall hold office
until the first annual meeting of stockholders and until their successors are
elected and qualified or until their earlier resignation or removal. Any
director may resign at any time upon written notice to the corporation.
Thereafter, directors who are elected at an annual meeting of stockholders,
and directors who are elected in the interim to fill vacancies and newly
created directorships, shall hold office until the next annual meeting of
stockholders and until their successors are elected and qualified or
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until their earlier resignation or removal. Except as the Delaware
Corporation Law may otherwise require, in the interim between annual meetings
of stockholders or of special meetings of stockholders called for the
election of directors and/or for the removal of one or more directors and for
the filling of any vacancy in that connection, newly created directorships
and any vacancies in the Board of Directors, including unfilled vacancies
resulting from the removal of directors for cause or without cause, may be
filled by the vote of a majority of the remaining directors then in office,
although less than a quorum, or by the sole remaining director.
4. MEETINGS.
TIME. Meetings shall be held at such time as the Board shall fix
except that the first meeting of a newly elected Board shall be held as soon
after its election as the directors may conveniently assemble.
PLACE. Meetings shall be held at such place within or without the
State of Delaware as shall be fixed by the Board.
CALL. No call shall be required for regular meetings for which the
time and place have been fixed. Special meetings may be called by or, at the
direction of the Chairman of the Board, if any, the Vice Chairman of the
Board, if any, of the President, or of a majority of the directors in office.
NOTICE OR ACTUAL OR CONSTRUCTIVE WAIVER. No notice shall be
required for regular meetings for which the time and place have been fixed.
Written, oral, or any other mode of notice of the time and place shall be
given for special meetings in sufficient time for the convenient assembly of
the directors thereat. Notice need not be given to any director or to any
member of a committee of directors who submits a written waiver of notice
signed by him before or after the time stated there in. Attendance of any
such person at a meeting shall constitute a waiver of, notice of such
meeting, except when he attends a meeting for the express purpose of
objecting, at the beginning of the meeting, to the transaction of any
business because the meeting is not lawfully called or convened. Neither the
business to be transacted at, nor the purpose of, any regular or special
meeting of the directors need by specified in any written waiver of notice.
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QUORUM AND ACTION. A majority of the whole Board shall constitute a
quorum except when a vacancy or vacancies prevents such majority, whereupon a
majority of the directors in office shall constitute a quorum, provided, that
such majority shall constitute at least one-third of the whole Board. A
majority of the directors present, whether or not a quorum is present, may
adjourn a meeting to another time and place. Except as herein otherwise
provided, and except as otherwise provided by the Delaware Corporation Law,
the vote of the majority of the directors present at a meeting at which a
quorum is present shall be the act of the Board. The quorum and voting
provisions herein stated shall not be construed as conflicting with any
provisions of the Delaware Corporation Law and these Bylaws which govern a
meeting of directors held to fill vacancies and newly created directorships
in the Board or action of disinterested directors.
Any member or members of the Board of Directors or of any committee
designated by the Board, may participate in a meeting of the Board, or any
such committee, as the case may be, by means of conference telephone or
similar communications equipment by means of which all persons participating
in the meeting can hear each other.
CHAIRMAN OF THE MEETING. The Chairman of the Board, if any and if
present and acting, shall preside at all meetings. Otherwise, the
Vice-Chairman of the Board, if any and if present and acting, or the
President, if present and acting, or any other director chosen by the Board,
shall preside.
5. REMOVAL OF DIRECTORS. Except as may otherwise be provided by the
Delaware Corporation Law, any director or the entire Board of Directors may
be removed, with or without cause, by the holders of a majority of the shares
then entitled to vote at an election of directors.
6. COMMITTEES. The Board of Directors may, by resolution passed by
a majority of the whole Board, designate one or more committees, each
committee to consist of one or more of the directors of the corporation. The
Board may designate one or more directors as alternate members of any
committee, who may replace any absent or disqualified member at any meeting
of the committee. In the absence or disqualification of any member of any
such committee or committees, the member or members thereof present at any
meeting and not disqualified from voting, whether or not he or they
constitute a quorum, may unanimously appoint another member of the Board of
Directors to act at the meeting in the place of any such absent or
disqualified member. Any such committee, to the extent provided in the
resolution
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of the Board, shall have and may exercise the powers and authority of the
Board of Directors in the management of the business and affairs of the
corporation with the exception of any authority the delegation of which is
prohibited by the Delaware General Corporation Law, and may authorize the
seal of the corporation to be affixed to all papers which may require it.
7. WRITTEN ACTION. Any action required or permitted to be taken at
any meeting of the Board of Directors or any committee thereof may be taken
without a meeting if all members of the Board or committee, as the case may
be, consent thereto in writing, and the writing or writings are filed with
the minutes of proceedings of the Board or committee.
ARTICLE III
OFFICERS
The officers of the corporation shall consist of a President, a
Secretary, a Treasurer, and, if deemed necessary, expedient, or desirable by
the Board of Directors, a Chairman of the Board, a Vice Chairman of the
Board, an Executive Vice-President, one or more other Vice-Presidents, one or
more Assistant Secretaries, one or more Assistant Treasurers, and such other
officers with such titles as the resolution of the Board of Directors
choosing them shall designate. Except as may otherwise be provided in the
resolution of the Board of Directors choosing him, no officer other than the
Chairman or Vice-Chairman of the Board, if any, need be a director. Any
number of offices may be held by the same person, as the directors may
determine.
Unless otherwise provided in the resolution choosing him, each
officer shall be chosen for a term which shall continue until the meeting of
the Board of Directors following the next annual meeting of stockholders and
until his successor shall have been chosen and qualified.
All officers of the corporation shall have such authority and
perform such duties in the management and operation of the corporation as
shall be prescribed in the resolutions of the Board of Directors designating
and choosing such officers and prescribing their authority and duties as are
incident to their office except to the extent that such resolutions may be
inconsistent therewith. The Secretary or an Assistant Secretary of the
corporation shall record all of the proceedings of all meetings and actions
in writing of stockholders, directors, and committees of directors, and shall
exercise such additional authority and perform such additional duties as the
Board shall assign to him. Any officer may be removed, with or without cause,
by the Board of Directors. Any vacancy in any office may be filled by the
Board of Directors.
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ARTICLE IV
CORPORATE SEAL
The corporate seal shall be in such form as the Board of Directors
shall prescribe.
ARTICLE V
FISCAL YEAR
The fiscal year of the corporation shall be fixed, and shall be
subject to change, by the Board of Directors.
ARTICLE VI
CONTROL OVER BYLAWS
Subject to the provisions of the certificate of incorporation and
the provisions of the Delaware Corporation Law, the power to amend, alter, or
repeal these Bylaws and to adopt new ByLaws may be exercised by the Board of
Directors or by the stockholders.
I HEREBY CERTIFY that the foregoing is a full, true, and correct copy of
the Bylaws of RADIO UNICA OF SAN ANTONIO, INC., a Delaware corporation, as in
effect on the date hereof.
Dated: December 30, 1997
/s/ Steven E. Dawson
------------------------------------
Steven E. Dawson, Secretary
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Exhibit 3.19
CERTIFICATE OF INCORPORATION
OF
RADIO UNICA NETWORK, INC.
THE UNDERSIGNED, in order to form a Corporation for the purpose hereinafter
stated, under and pursuant to the provisions of the General Corporation Law of
the State of Delaware, does hereby certify, that:
FIRST: The name of the Corporation is RADIO UNICA NETWORK, INC.
SECOND: The registered agent and the address of the Corporation's
registered office in the State of Delaware are Incorporating Services, Ltd., 15
E. North Street, Dover, Delaware, Kent County, 19901.
THIRD: The purpose of the Corporation is to engage in any and all lawful
acts or activities for which Corporations may be organized under the General
Corporation Law of the State of Delaware.
FOURTH: The total number of shares which the Corporation shall have the
authority to issue is 5,000 shares of capital stock. All shares shall have a par
value of $.01 each.
FIFTH: Stockholders may, by simple majority vote, adopt, alter, amend
and/or repeal from time to time the bylaws of the Corporation which shall govern
to the extent not inconsistent with any statute, the Certificate of
Incorporation or any valid agreement among the shareholders.
SIXTH: The directors of the Corporation shall not be personally liable to
the Corporation or to stockholders or any other person for monetary damages for
breach of fiduciary duties as a director, and are fully indemnified and held
harmless by the Corporation to the fullest extent permitted under 8.Del. C 145
of the General Corporation Law of Delaware.
<PAGE>
SEVENTH: The incorporator of the Corporation is Sharon R. Liebman whose
address is 701 Brickell Avenue, Suite 3000, Miami, Florida 33131. The powers of
the incorporator are to terminate upon the nomination by the incorporator of the
initial Board of Directors, which shall be vested with all authority and powers
authorized under the General Corporate Law of Delaware.
IN WITNESS WHEREOF, I have hereunto subscribed my name this 30th day of
December, 1997.
/s/ Sharon R. Liebman
-------------------------------
Sharon R. Liebman
Sole Incorporator
2
<PAGE>
Exhibit 3.20
BYLAWS
OF
RADIO UNICA NETWORK, INC.
a Delaware corporation
ARTICLE I
STOCKHOLDERS
l. CERTIFICATES REPRESENTING STOCK. Certificates
representing stock in the corporation shall be signed by, or in the name of,
the corporation by the Chairman or Vice-Chairman of the Board of Directors,
if any, or by the President or a Vice-President and by the Treasurer or an
Assistant Treasurer or the Secretary or an Assistant Secretary of the
corporation. Any or all the signatures on any such certificate may be a
facsimile. In case any officer, transfer agent, or registrar who has signed
or whose facsimile signature has been placed upon a certificate shall have
ceased to be such officer, transfer agent, or registrar before such
certificate is issued, it may be issued by the corporation with the same
effect as if he were such officer, transfer agent, or registrar at the date
of issue.
Whenever the corporation shall be authorized to issue more than one
class of stock or more than one series of any class of stock, and whenever
the corporation shall issue any shares of its stock as partly paid stock, the
certificates representing shares of any such class or series or of any such
partly paid stock shall set forth thereon the statements prescribed by the
Delaware Corporation Law. Any restrictions on the transfer or registration of
transfer of any shares of stock of any class or series shall be noted
conspicuously on the certificate representing such shares.
The corporation may issue a new certificate of stock or
uncertificated shares in place of any certificate theretofore issued by it,
alleged to have been lost, stolen, or destroyed, and the Board of Directors
may require the owner of the lost, stolen, or destroyed certificate, or his
legal representative, to give the corporation a bond sufficient to indemnify
the corporation against any claim that may be made against it on account of
the alleged loss, theft, or destruction of any such certificate or the
issuance of any such new certificate or uncertificated shares.
<PAGE>
2. UNCERTIFICATED SHARES. Subject to any conditions imposed
by the Delaware Corporation Law, the Board of Directors of the corporation
may provide by resolution or resolutions that some or all of any or all
classes or series of the stock of the corporation shall be uncertificated
shares. Within a reasonable time after the issuance or transfer of any
uncertificated shares, the corporation shall send to the registered owner
thereof any written notice prescribed by the Delaware Corporation Law.
3. FRACTIONAL SHARE INTERESTS. The corporation may, but
shall not be required to, issue fractions of a share. If the corporation does
not issue fractions of a share, it shall (l) arrange for the disposition of
fractional interests by those entitled thereto, (2) pay in cash the fair
value of fractions of a share as of the time when those entitled to receive
such fractions are determined, or (3) issue scrip or warrants in registered
form (either represented by a certificate or uncertificated) or bearer form
(represented by a certificate) which shall entitle the holder to receive a
full share upon the surrender of such scrip or warrants aggregating a full
share. A certificate for a fractional share or an uncertificated fractional
share shall, but scrip or warrants shall not unless otherwise provided
therein, entitle the holder to exercise voting rights, to receive dividends
thereon, and to participate in any of the assets of the corporation in the
event of liquidation. The Board of Directors may cause scrip or warrants to
be issued subject to the conditions that they shall become void if not
exchanged for certificates representing full shares or uncertificated full
shares, before a specified date, or subject to the conditions the shares for
which scrip or warrants are exchangeable may be sold by the corporation and
the proceeds thereof distributed to the holders of scrip or warrants, or
subject to any other conditions which the Board of Directors may impose.
4. STOCK TRANSFERS. Upon compliance with provisions
restricting the transfer or registration of transfer of shares of stock, if
any, transfers or registration of transfers of shares of stock of the
corporation shall be made only on the stock ledger of the corporation by the
registered holder thereof, or by his attorney thereunto authorized by power
of attorney duly executed and filed with the Secretary of the corporation or
with a transfer agent or a registrar, if any, and, in the case of shares
represented by certificates, on surrender of the certificate or certificates
for such shares of stock properly endorsed and the payment of all taxes due
thereon.
5. RECORD DATE FOR STOCKHOLDERS. In order that the
corporation may determine the stockholders entitled to notice of or to vote
at any meeting of stockholders or any adjournment thereof, the Board of
Directors may fix a record date, which record date shall not precede the date
upon which the resolution fixing the record date is adopted by the Board of
Directors, and which record date shall not be more than sixty nor less than
ten days before the date of such meeting. If no record date is fixed by the
Board of Directors, the record date for determining stockholders entitled to
notice of or to vote at a meeting of stockholders shall be at the close of
business on the day next preceding the day on which notice is given, or, if
notice is waived, at the close of business on the day next preceding the day
on which the meeting is held.
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A determination of stockholders of record entitled to notice of or to vote at
a meeting of stockholders shall apply to any adjournment of the meeting;
provided, however, that the Board of Directors may fix a new record date for
the adjourned meeting. In order that the corporation may determine the
stockholders entitled to consent to corporate action in writing without a
meeting, the Board of Directors may fix a record date, which record date
shall not precede the date upon which the resolution date is adopted by the
Board of Directors, and which date shall not be more than ten days after the
date upon which the record date is adopted by the Board of Directors. If no
record date has been fixed by the Board of Directors, the record date for
determining the stockholders entitled to consent to corporate action in
writing without a meeting, when no prior action by the Board of Directors is
required by the Delaware Corporation Law, shall be the first date on which a
signed written consent setting forth the action taken or proposed to be taken
is delivered to the corporation by delivery to its registered office in the
State of Delaware, its principal place of business, or an officer or agent of
the corporation having custody of the book in which proceedings of meetings
of stockholders are recorded. Delivery made to the corporation's registered
office shall be by hand or by certified or registered mail, return receipt
requested. If no record date has been fixed by the Board of Directors and
prior action by the Board of Directors is required by the Delaware
Corporation Law, the record date for determining stockholders entitled to
consent to corporate action in writing without a meeting shall be at the
close of business on the day on which the Board of Directors adopts the
resolution taking such prior action, in order that the corporation may
determine the stockholders entitled to receive payment of any dividend or
other distribution or allotment of any rights or the stockholders entitles to
exercise any rights in respect of any change, conversion, or exchange of
stock, or for the purpose of any other lawful action, the Board of Directors
may fix a record date, which record date shall not precede the date upon
which the resolution fixing the record date is adopted, and which record date
shall be not more than sixty days prior to such action. If no record date is
fixed, the record date for determining stockholders for any such purpose
shall be at the close of business on the day on which the Board of Directors
adopts the resolution relating thereto.
6. MEANING OF CERTAIN TERMS. As used herein in respect of the right
to notice of a meeting of stockholders or a waiver thereof or to participate
or vote thereat or to consent or dissent in writing in lieu of a meeting, as
the case may be, the term "share" or "shares" or "share of stock" or "shares
of stock" or "stockholder" or "stockholders" refers to an outstanding share
or shares of stock and to a holder or holders of record of outstanding shares
of stock when the corporation is authorized to issue only one class of shares
of stock, and said reference is also intended to include any outstanding
share or shares of stock and any holder or holders of record of outstanding
shares of stock of any class upon which or upon whom the certificate of
incorporation confers such rights where there are two or more classes or
series of shares of stock or upon which or upon whom the Delaware Corporation
Law confers such rights notwithstanding that the certificate of incorporation
may provide for more than one class or series of shares of stock, one or more
of which are limited or denied such rights thereunder; provided, however,
that no such right shall vest in the event of an increase or a decrease in
the authorized number of
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<PAGE>
shares of stock of any class or series which is otherwise denied voting
rights under the provisions of the certificate of incorporation, except as
any provision of law may otherwise require.
7. STOCKHOLDER MEETINGS.
TIME. The annual meeting shall be held on the date and at
the time fixed, from time to time, by the directors, provided, that the first
annual meeting shall be held on a date within thirteen months after the
organization of the corporation, and each successive annual meeting shall be
held on a date within thirteen months after the date of the preceding annual
meeting. A special meeting shall be held on the date and at the time fixed by
the directors.
PLACE. Annual meetings and special meetings shall be held
at such place, within or without the State of Delaware, as the directors may,
from time to time, fix. Whenever the directors shall fail to fix such place,
the meeting shall be held at the registered office of the corporation in the
State of Delaware.
CALL. Annual meetings and special meetings may be called
by the directors or by any officer instructed by the directors to call the
meeting.
NOTICE OR WAIVER OF NOTICE. Written notice of all meetings
shall be given, stating the place, date, and hour of the meeting and stating
the place within the city or other municipality or community at which the
list of stockholders of the corporation may be examined. The notice of an
annual meeting shall state that the meeting is called for the election of
directors and for the transaction of other business which may properly come
before the meeting, and shall (if any other action which could be taken at a
special meeting is to be taken at such annual meeting) state the purpose or
purposes. The notice of a special meeting shall in all instances state the
purpose or purposes for which the meeting is called. The notice of any
meeting shall also include, or be accompanied by, any additional statements,
information, or documents prescribed by the Delaware Corporation Law. Except
as otherwise provided by the Delaware Corporation Law, a copy of the notice
of any meeting shall be given, personally or by mail, not less than ten days
nor more than sixty days before the date of the meeting, unless the lapse of
the prescribed period of time shall have been waived, and directed to each
stockholder at his record address or at such other address which he may have
furnished by request in writing to the Secretary of the corporation. Notice
by mail shall be deemed to be given when deposited, with postage thereon
prepaid, in the United States Mail. If a meeting is adjourned to another
time, not more than thirty
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<PAGE>
days hence, and/or to another place, and if an announcement of the adjourned
time and/or place is made at the meeting, it shall not be necessary to give
notice of the adjourned meeting unless the directors, after adjournment, fix
a new record date for the adjourned meeting. Notice need not be given to any
stockholder who submits a written waiver of notice signed by him before or
after the time stated therein. Attendance of a stockholder at a meeting of
stockholders shall constitute a waiver of notice of such meeting, except when
the stockholder attends the meeting for the express purpose of objecting, at
the beginning of the meeting, to the transaction of any business because the
meeting is not lawfully called or convened. Neither the business to be
transacted at, nor the purpose of, any regular or special meeting of the
stockholders need be specified in any written waiver of notice.
STOCKHOLDER LIST. The officer who has charge of the stock
ledger of the corporation shall prepare and make, at least ten days before
every meeting of stockholders, a complete list of the stockholders, arranged
in alphabetical order, and showing the address of each stockholder and the
number of shares registered in the name of each stockholder. Such list shall
be open to the examination of any stockholder, for any purpose germane to the
meeting, during ordinary business hours, for a period of at least ten days
prior to the meeting, either at a place within the city or other municipality
or community where the meeting is to be held, which place shall be specified
in the notice of the meeting, or if not so specified, at the place where the
meeting is to be held. The list shall also be produced and kept at the time
and place of the meeting during the whole time thereof, and may be inspected
by any stockholder who is present. The stock ledger shall be the only
evidence as to who are the stockholders entitled to examine the stock ledger,
the list required by this section or the books of the corporation, or to vote
at any meeting of stockholders.
CONDUCT OF MEETING. Meetings of the stockholders shall be
presided over by one of the following officers in the order of seniority and
if present and acting the Chairman of the Board, if any, the Vice Chairman of
the Board, if any, the President, a Vice-President, or, if none of the
foregoing is in office and present and acting, by a chairman to be chosen by
the stockholders. The Secretary of the corporation, or in his absence, an
Assistant Secretary, shall act as secretary of every meeting, but if neither
the Secretary nor an Assistant Secretary is present the Chairman of the
meeting shall appoint a secretary of the meeting.
PROXY REPRESENTATION. Every stockholder may authorize
another person or persons to act for him by proxy in all matters in which a
stockholder is entitled to participate, whether by waiving notice of any
meeting, voting or participating at a meeting, or expressing consent or
dissent without a meeting. Every proxy must be signed by the stockholder or
by his attorney-in-fact. No proxy shall be voted or acted upon after three
years from its date unless such
5
<PAGE>
proxy provides for a longer period. A duly executed proxy shall be
irrevocable if it states that it is irrevocable and, if, and only as long as,
it is coupled with an interest sufficient in law to support an irrevocable
power. A proxy may be made irrevocable regardless of whether the interest
with which it is coupled is an interest in the stock itself or an interest in
the corporation generally.
INSPECTORS. The directors, in advance of any meeting, may,
but need not, appoint one or more inspectors of election to act at the
meeting or any adjournment thereof. If an inspector or inspectors are not
appointed, the person presiding at the meeting may, but need not, appoint one
or more inspectors. In case any person who may be appointed as an inspector
fails to appear or act, the vacancy may be filled by appointment made by the
directors in advance of the meeting or at the meeting by the person presiding
thereat. Each inspector, if any, before entering upon the discharge of his
duties, shall take and sign an oath faithfully to execute the duties of
inspectors at such meeting with strict impartiality and according to the best
of his ability. The inspectors, if any, shall determine the number of shares
of stock outstanding and the voting power of each, the shares of stock
represented at the meeting, the existence of a quorum, the validity and
effect of proxies, and shall receive votes, ballots, or consents, hear and
determine all challenges and questions arising in connection with the right
to vote, count and tabulate all votes, ballots, or consents, determine the
result, and so such acts as are proper to conduct the election or vote with
fairness to all stockholders. On request of the person presiding at the
meeting, the inspector or inspectors, if any, shall make a report in writing
of any challenge, question, or matter determined by him or them and execute a
certificate of any fact found by him or them. Except as otherwise required by
the Delaware General Corporation Law, the provisions of that Section shall
not apply to the corporation.
QUORUM. The holders of a majority of the outstanding shares
of stock shall constitute a quorum at a meeting of stockholders for the
transaction of any business. The stockholders present may adjourn the meeting
despite the absence of a quorum.
VOTING. Each share of stock shall entitle the holders
thereof to one vote. Directors shall be elected by a plurality of the vote of
the shares present in person or represented by proxy at the meeting and
entitled to vote on the election of directors. Any other action shall be
authorized by a majority of the votes cast except where the Delaware
Corporation Law prescribes a different percentage of votes and/or a different
exercise of voting power, and except as may be otherwise prescribed by the
provisions of the certificate of incorporation and these Bylaws. In the
election of directors, and for any other action, voting need not be by ballot.
6
<PAGE>
8. STOCKHOLDER ACTION WITHOUT MEETINGS. Any action required
by the Delaware Corporation Law to be taken at any annual or special meeting
of stockholders, or any action which may be taken at any annual or special
meeting of stockholders, may be taken without a meeting, without prior notice
and without a vote, if a consent in writing, setting forth the action so
taken, shall be signed by the holders of outstanding stock having, not less
than the minimum number of votes that would be necessary to authorize or take
such action at a meeting at which all shares entitled to vote thereon were
present and voted. Prompt notice of the taking of the corporate action
without a meeting by less that unanimous written consent shall be given to
those stockholders who have not consented in writing. Action taken pursuant
to this paragraph shall be subject to the provisions of the Delaware General
Corporation Law.
ARTICLE II
DIRECTORS
l. FUNCTIONS AND DEFINITION. The business and affairs of
the corporation shall be managed by or under the direction of the Board of
Directors of the corporation. The Board of Directors shall have the authority
to fix the compensation of the members thereof. The use of the phrase "whole
board" herein refers to the total number of directors which the corporation
would have if there were no vacancies.
2. QUALIFICATIONS AND NUMBER. A director need not be a
stockholder, a citizen of the United States, or a resident of the State of
Delaware. The initial Board of Directors shall consist of three (3) persons.
Thereafter the number of directors constituting the whole board shall be at
least one. Subject to the foregoing limitation and except for the first Board
of Directors, such number may be fixed from time to time by action of the
stockholders or of the directors, or, if the number is not fixed, the number
shall be one. The number of directors may be increased or decreased by action
of the stockholders or of the directors.
3. ELECTION AND TERM. The first Board of Directors, unless
the members thereof shall have been named in the certificate of
incorporation, shall be elected by the incorporator or incorporators and
shall hold office until the first annual meeting of stockholders and until
their successors are elected and qualified or until their earlier resignation
or removal. Any director may resign at any time upon written notice to the
corporation. Thereafter, directors who are elected at an annual meeting of
stockholders, and directors who are elected in the interim to fill vacancies
and newly created directorships, shall hold office until the next annual
meeting of stockholders and until their successors are elected and qualified
or until their earlier resignation or removal. Except as the Delaware
Corporation Law may otherwise require, in the interim
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<PAGE>
between annual meetings of stockholders or of special meetings of
stockholders called for the election of directors and/or for the removal of
one or more directors and for the filling of any vacancy in that connection,
newly created directorships and any vacancies in the Board of Directors,
including unfilled vacancies resulting from the removal of directors for
cause or without cause, may be filled by the vote of a majority of the
remaining directors then in office, although less than a quorum, or by the
sole remaining director.
4. MEETINGS.
TIME. Meetings shall be held at such time as the Board
shall fix except that the first meeting of a newly elected Board shall be
held as soon after its election as the directors may conveniently assemble.
PLACE. Meetings shall be held at such place within or
without the State of Delaware as shall be fixed by the Board.
CALL. No call shall be required for regular meetings for
which the time and place have been fixed. Special meetings may be called by
or, at the direction of the Chairman of the Board, if any, the Vice Chairman
of the Board, if any, of the President, or of a majority of the directors in
office.
NOTICE OR ACTUAL OR CONSTRUCTIVE WAIVER. No notice shall be
required for regular meetings for which the time and place have been fixed.
Written, oral, or any other mode of notice of the time and place shall be
given for special meetings in sufficient time for the convenient assembly of
the directors thereat. Notice need not be given to any director or to any
member of a committee of directors who submits a written waiver of notice
signed by him before or after the time stated there in. Attendance of any
such person at a meeting shall constitute a waiver of, notice of such
meeting, except when he attends a meeting for the express purpose of
objecting, at the beginning of the meeting, to the transaction of any
business because the meeting is not lawfully called or convened. Neither the
business to be transacted at, nor the purpose of, any regular or special
meeting of the directors need by specified in any written waiver of notice.
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<PAGE>
QUORUM AND ACTION. A majority of the whole Board shall
constitute a quorum except when a vacancy or vacancies prevents such
majority, whereupon a majority of the directors in office shall constitute a
quorum, provided, that such majority shall constitute at least one-third of
the whole Board. A majority of the directors present, whether or not a quorum
is present, may adjourn a meeting to another time and place. Except as herein
otherwise provided, and except as otherwise provided by the Delaware
Corporation Law, the vote of the majority of the directors present at a
meeting at which a quorum is present shall be the act of the Board. The
quorum and voting provisions herein stated shall not be construed as
conflicting with any provisions of the Delaware Corporation Law and these
Bylaws which govern a meeting of directors held to fill vacancies and newly
created directorships in the Board or action of disinterested directors.
Any member or members of the Board of Directors or of any committee
designated by the Board, may participate in a meeting of the Board, or any
such committee, as the case may be, by means of conference telephone or
similar communications equipment by means of which all persons participating
in the meeting can hear each other.
CHAIRMAN OF THE MEETING. The Chairman of the Board, if any
and if present and acting, shall preside at all meetings. Otherwise, the
Vice-Chairman of the Board, if any and if present and acting, or the
President, if present and acting, or any other director chosen by the Board,
shall preside.
5. REMOVAL OF DIRECTORS. Except as may otherwise be
provided by the Delaware Corporation Law, any director or the entire Board of
Directors may be removed, with or without cause, by the holders of a majority
of the shares then entitled to vote at an election of directors.
6. COMMITTEES. The Board of Directors may, by resolution
passed by a majority of the whole Board, designate one or more committees,
each committee to consist of one or more of the directors of the corporation.
The Board may designate one or more directors as alternate members of any
committee, who may replace any absent or disqualified member at any meeting
of the committee. In the absence or disqualification of any member of any
such committee or committees, the member or members thereof present at any
meeting and not disqualified from voting, whether or not he or they
constitute a quorum, may unanimously appoint another member of the Board of
Directors to act at the meeting in the place of any such absent or
disqualified member. Any such committee, to the extent provided in the
resolution of the Board, shall have and may exercise the powers and authority
of the Board of Directors in the management of the business and affairs of
the corporation with the exception of any authority the
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<PAGE>
delegation of which is prohibited by the Delaware General Corporation Law,
and may authorize the seal of the corporation to be affixed to all papers
which may require it.
7. WRITTEN ACTION. Any action required or permitted to be
taken at any meeting of the Board of Directors or any committee thereof may
be taken without a meeting if all members of the Board or committee, as the
case may be, consent thereto in writing, and the writing or writings are
filed with the minutes of proceedings of the Board or committee.
ARTICLE III
OFFICERS
The officers of the corporation shall consist of a
President, a Secretary, a Treasurer, and, if deemed necessary, expedient, or
desirable by the Board of Directors, a Chairman of the Board, a Vice Chairman
of the Board, an Executive Vice-President, one or more other Vice-Presidents,
one or more Assistant Secretaries, one or more Assistant Treasurers, and such
other officers with such titles as the resolution of the Board of Directors
choosing them shall designate. Except as may otherwise be provided in the
resolution of the Board of Directors choosing him, no officer other than the
Chairman or Vice-Chairman of the Board, if any, need be a director. Any
number of offices may be held by the same person, as the directors may
determine.
Unless otherwise provided in the resolution choosing him,
each officer shall be chosen for a term which shall continue until the
meeting of the Board of Directors following the next annual meeting of
stockholders and until his successor shall have been chosen and qualified.
All officers of the corporation shall have such authority
and perform such duties in the management and operation of the corporation as
shall be prescribed in the resolutions of the Board of Directors designating
and choosing such officers and prescribing their authority and duties as are
incident to their office except to the extent that such resolutions may be
inconsistent therewith. The Secretary or an Assistant Secretary of the
corporation shall record all of the proceedings of all meetings and actions
in writing of stockholders, directors, and committees of directors, and shall
exercise such additional authority and perform such additional duties as the
Board shall assign to him. Any officer may be removed, with or without cause,
by the Board of Directors. Any vacancy in any office may be filled by the
Board of Directors.
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ARTICLE IV
CORPORATE SEAL
The corporate seal shall be in such form as the Board of
Directors shall prescribe.
ARTICLE V
FISCAL YEAR
The fiscal year of the corporation shall be fixed, and
shall be subject to change, by the Board of Directors.
ARTICLE VI
CONTROL OVER BYLAWS
Subject to the provisions of the certificate of
incorporation and the provisions of the Delaware Corporation Law, the power
to amend, alter, or repeal these Bylaws and to adopt new Bylaws may be
exercised by the Board of Directors or by the stockholders.
I HEREBY CERTIFY that the foregoing is a full, true, and correct
copy of the Bylaws of RADIO UNICA NETWORK, INC., a Delaware corporation, as
in effect on the date hereof.
Dated: December 30, 1997
/s/ Steven E. Dawson
--------------------------------
Steven E. Dawson, Secretary
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Exhibit 3.21
CERTIFICATE OF INCORPORATION
----------------------------
OF
--
RADIO UNICA SALES CORP.
-----------------------
The undersigned incorporators to these articles of incorporation hereby
associate themselves together to form a corporation under the laws of the
State of Florida.
ARTICLE I
---------
NAME
----
The name of this corporation is Radio Unica Sales Corp.
ARTICLE II
----------
GENERAL NATURE OF BUSINESS
--------------------------
The corporation may engage in any activity or business permitted under the
laws of the United States and of the State of Florida.
ARTICLE III
-----------
CAPITAL STOCK
-------------
The maximum number of shares of stock that this corporation is authorized to
have outstanding at any one time is 1,000 shares of common stock having a
nominal or par value of One ($1.00) Dollar per share. All said shares shall
be payable in cash, property, labor or services at a valuation to be fixed by
the Board of Directors at a meeting called for that purpose. Property, labor
or services may be purchased or paid for with capital stock at a just
valuation to be fixed by the Board of Directors.
ARTICLE IV
----------
INITIAL CAPITAL
---------------
The amount of capital with which this corporation will begin business is not
less than $100.
<PAGE>
ARTICLE V
---------
TERM OF EXISTENCE
-----------------
This corporation is to exist perpetually.
ARTICLE VI
----------
ADDRESS
-------
The initial mailing address of the principal office of this corporation in
the State of Florida is C/O 101 Madeira Avenue, Coral Gables, Fl 33134. The
Board of Directors may from time to time move the principal office to another
address in Florida.
ARTICLE VII
-----------
DIRECTORS
---------
This corporation shall have not less than one director, however, the number
of directors may be increased or diminished from time to time by By-laws
adopted by the Stockholders, but shall never be less than one.
ARTICLE VIII
------------
INCORPORATOR
------------
The name and mailing address of the incorporator of these articles of
incorporation is Arazoza, Comas, de Torres, Fernandez-Fraga, P.A., 101
Madeira Avenue, Coral Gables, Fl. 33134.
ARTICLE IX
----------
AMENDMENT
---------
These articles of incorporation may be amended in the manner provided by law.
Every amendment shall be approved by the Board of Directors, proposed by them
to the Stockholders, and approved at a stockholders' meeting by two thirds of
the stock entitled to vote thereon, unless all the directors and all the
stockholders sign a written statement
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manifesting their intention that a certain amendment of these articles of
incorporation be made.
ARTICLE X
---------
REGISTERED OFFICE AND REGISTERED AGENT
--------------------------------------
Radio Unica Sales Corp., desiring to organize under the laws of the State of
Florida, with its principal office as indicated in the Articles of
Incorporation at the County of Dade, State of Florida, hereby designates
Arazoza, Comas, de Torres, Fernandez-Fraga, P.A. as its Registered Agent, to
accept services within the State. The registered office of the corporation
shall be 101 Madeira Avenue, Coral Gables, Florida.
WITNESS the hand and seal of the incorporator in Dade County, State
of Florida, this 23 day of Sept, 1997.
/s/ Gaston Comas
--------------------------------------
Gaston Comas as Managing
Director of Arazoza, Comas, de Torres,
Fernandez-Fraga, P.A.
STATE OF FLORIDA )
) SS:
COUNTY OF DADE )
PERSONALLY offered before me, Gaston Comas as Managing Director of
Arazoza, Comas, de Torres, Fernandez-Fraga, P.A., to me well known to be the
incorporator to the foregoing Articles of Radio Unica Sales Corp. who being
by me first duly sworn, acknowledges that he signed the same for the purposes
therein expressed.
WITNESS my hand and seal at Coral Gables, Dade County, Florida this
23rd day of Sept, 1997.
/s/ Ana M. Bascuas
------------------------------------
NOTARY PUBLIC, STATE OF FLORIDA
AT LARGE
[SEAL]
My commission expires:
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CERTIFICATE OF DESIGNATION
--------------------------
REGISTERED AGENT/REGISTERED OFFICE
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Pursuant to the provisions of Section 607.0501, Florida Statutes, the
undersigned corporation, organized under the laws of the State of Florida,
submits the following statement in designating the registered
office/registered agent, in the State of Florida.
1. The name of the corporation is Radio Unica Sales Corp.
2. The name and address of the registered agent and office is:
Arazoza, Comas, de Torres, Fernandez-Fraga, P.A.
101 Madeira Avenue
Coral Gables, Florida 33134
/s/ Gaston Comas
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Gaston Comas,
Managing Director
Date: 9/23/97
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Having been named as registered agent and to accept service of process for
the above stated corporation at the place designated in this certificate, I
hereby accept the appointment as Registered Agent and agree to act in this
capacity. I further agree to comply with the provisions of all statutes
relating to the proper and complete performance of my duties, and I am
familiar with and accept the obligations of my position as registered agent.
/s/ Gaston Comas
---------------------------------
Gaston Comas,
Managing Director of
Arazoza, Comas, de Torres,
Fernandez-Fraga, P.A.
Date: 9/23/97
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Exhibit 3.22
RADIO UNICA SALES CORP.
* * * * *
B Y - L A W S
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ARTICLE I
OFFICERS
Section 1. The registered office shall be in the County of Dade, State
of Florida.
Section 2. The corporation may also have offices at such other places
both within and without the State of Florida as the board of directors may from
time to time determine or the business of the corporation may require.
ARTICLE II
MEETINGS OF STOCKHOLDERS
Section 1. All meetings of the stockholders for the election of
directors shall be held in the County of Dade, State of Florida, at such place
as may be fixed from time to time by the board of directors, or at such other
place either within or without the State of Florida as shall be designated from
time to time by the board of directors and stated in the notice of the meeting.
Meetings of stockholders for any other purpose may be held at such time and
place, within or without the State of Florida, as shall be stated in the meeting
or in a duly executed waiver of notice thereof.
Section 2. Annual meetings of stockholders, commencing with the year
1998, shall be held on the first day of January if not a legal holiday, and if a
legal holiday, then on the next secular day following, at 1:00 P.M., or at such
other date and time as shall be designated from time to time by the board of
directors and stated in the notice of the meeting, at which they shall elect by
a plurality vote a board of directors and transact such other business as may
properly be brought before the meeting.
Section 3. Written notice of the annual meeting stating the place, date
and hour of the meeting shall be given to each stockholder entitled to vote at
such meeting not less than ten nor more than sixty days before the date of the
meeting.
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Section 4. The officer who has charge of the stock ledger of the
corporation shall prepare and make, at least ten days before every meeting of
stockholders, a complete list of the stockholders entitled to vote at meeting,
arranged in alphabetical order, and showing the address of each stockholder and
the number of shares registered in the name of each stockholder. Such list shall
be open to the examination of any stockholder, for any purpose germane to the
meeting, during ordinary business hours, for a period of at least ten days prior
to the meeting, either at a place within the city where the meeting is to be
held, which place shall be specified in the notice of the meeting, or, if not so
specified, at the place where the meeting is to be held. The list shall also be
produced and kept at the time and place of the meeting during the whole time
thereof, and may be inspected by any stockholder who is present.
Section 5. Special meetings of the stockholders, for any purpose or
purposes, unless otherwise prescribed by statute or by the certificate of
incorporation, may be called by the president and shall be called by the
president or secretary at the request in writing of a majority of the board of
directors, or at the request in writing of stockholders owning a majority in
amount of the entire capital stock of the corporation issued and outstanding and
entitled to vote. Such request shall state the purpose or purposes of the
proposed meeting.
Section 6. Written notice of a special meeting stating the place, date
and hour of the meeting and the purpose or purposes for which the meeting is
called, shall be given not less than ten nor more than sixty days before the
date of the meeting, to each stockholder entitled to vote at such meeting.
Section 7. Business transacted at any special meeting of stockholders
shall be limited to the purposes stated in the notice.
Section 8. The holders of a majority of the stock issued and
outstanding and entitled to vote thereat, present in person or represented by
proxy, shall constitute a quorum at all meetings of the stockholders for the
transaction of business except as otherwise provided by statute or by the
certificate of incorporation. If, however, such quorum shall not be present or
represented at any meeting of the stockholders, the stockholders entitled to
vote thereat, present in person or represented by proxy, shall have power to
adjourn the meeting from time to time, without notice other than announcement at
the meeting, until a quorum shall be present or represented. At such adjourned
meeting at which a quorum shall be present or represented any business may be
transacted which might have been transacted at the meeting as originally
notified. If the adjournment is for more than thirty days, or if after the
adjournment a new record date is fixed for the adjourned meeting, a notice of
the adjourned meeting shall be given to each stockholder of record entitled to
vote at the meeting.
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Section 9. When a quorum is present at any meeting, the vote of the
holders of a majority of the stock having voting power present in person or
represented by proxy shall decide any question brought before such meeting,
unless the question is one upon which by express provision of the statutes or of
the certificate of incorporation, a different vote is required in which case
such express provision shall govern and control the decision of such question.
Section 10. Unless otherwise provided in the certificate of
incorporation each stockholder shall at every meeting of the stockholders be
entitled to one vote in person or by proxy for each share of the capital stock
having voting power held by such stockholder, but no proxy shall be voted on
after three years from its date, unless the proxy provides for a longer period.
Section 11. Unless otherwise provided in the certificate of
incorporation, any action required to be taken at any annual or special meeting
of stockholders of the corporation, or any action which may be taken at any
annual or special meeting of such stockholders, may be taken without a meeting,
without prior notice and without a vote, if a consent in writing, setting forth
the action so taken, shall be signed by the holders of outstanding stock having
not less than the minimum number of votes that would be necessary to authorize
or take such action at a meeting at which all shares entitled to vote thereon
were present and voted. Prompt notice of the taking of the corporate action
without a meeting by less than unanimous written consent shall be given to those
stockholders who have not consented in writing.
ARTICLES III
DIRECTORS
Section 1. The number of directors which shall constitute the whole
board shall be not less than one nor more than eleven. The first board shall
consist of one director. Thereafter, within the limits above specified, the
number of directors shall be determined by resolution of the board of directors
or by the stockholders at the annual meeting. The directors shall be elected at
the annual meeting of the stockholders, except as provided in Section 2 of this
Article, and each director elected and qualified. Directors need not be
stockholders.
Section 2. Vacancies and newly created directorships resulting from any
increase in the authorized number of directors may be filled by a majority of
the directors then in office, though less than a quorum, or by a sole remaining
director, and the directors so chosen shall hold office until the next annual
election and until their successors are duly elected and shall qualify, unless
sooner displaced. If there are no directors in office, then an election of
directors may be held in the manner provided by statute. If, at the time of
filling any vacancy
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or any newly created directorship, the directors then in office shall constitute
less than a majority of the whole board (as constituted immediately prior to any
such increase), any court may, upon application of any stockholder or
stockholders holding at least ten percent of the total number of the shares at
the time outstanding having the right to vote for such directors, summarily
order an election to be held to fill any such vacancies or newly created
directorships, or to replace the directors chosen by the directors then in
office.
Section 3. The business of the corporation shall be managed by or under
the direction of its board of directors which may exercise all such powers of
the corporation and do all such lawful acts and things as are not by statute or
by the certificate of incorporation or by these by-laws directed or required to
be exercised or done by the stockholders.
MEETINGS OF THE BOARD OF DIRECTORS
Section 4. The board of directors of the corporation may hold meetings,
both regular and special, either within or without the State of Florida.
Section 5. The first meeting of each newly elected board of directors
shall be held at such time and place as shall be fixed by the vote of the
stockholders at the annual meeting and no notice of such meeting shall be
necessary to the newly elected directors in order legally to constitute the
meeting, provided a quorum shall be present. In the event of the failure of the
stockholders to fix the time or place or such first meeting of the newly elected
board of directors, or in the event such meeting is not held at the time and
place so fixed by the stockholders, the meeting may be held at such time and
place as shall be specified in a notice given as hereinafter provided for
special meetings of the board of directors, or as shall be specified in a
written waiver signed by all of the directors.
Section 6. Regular meetings of the board of directors may be held
without notice at such time and at such place as shall from time to time be
determined by the board.
Section 7. Special meetings of the board may be called by the president
without notice to each director; special meetings shall be called by the
president or secretary in like manner and on like notice on the written request
of two directors unless the board consists of only one director; in which case
special meetings shall be called by the president or secretary in like manner
and on like notice on the written request of the sole director.
Section 8. At all meetings of the board a majority of the directors
shall constitute a quorum for the transaction of business and the act of a
majority of the directors present at any meeting at which there is a quorum
shall be the act of the board of directors, except as may be otherwise
specifically provided by statute or by the certificate of incorporation. If a
quorum shall not be present at any meeting of the board of directors the
directors present thereat may adjourn the meeting from time to time, without
notice other than announcement at the meeting, until a quorum shall be present.
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Section 9. Unless otherwise restricted by the certificate of
incorporation or these by-laws, any action required or permitted to be taken at
any meeting of the board of directors or of any committee thereof may be taken
without a meeting, if all members of the board or committee, as the case may be,
consent thereto in writing, and the writing or writings are filed with the
minutes of proceedings of the board or committee.
Section 10. Unless otherwise restricted by the certificate of
incorporation or these by-laws, members of the board of directors, or any
committee designated by the board of directors, may participate in a meeting of
the board of directors, or any committee, by means of conference telephone or
similar communications equipment by means of which all persons participating in
the meeting can hear each other, and such participation in a meeting shall
constitute presence in person at the meeting.
COMMITTEES OF DIRECTORS
Section 11. The board of directors may, by resolution passed by a
majority of the whole board, designate one or more committees, each committee to
consist of one or more of the directors of the corporation. The board may
designate one or more directors as alternate members of any committee, who may
replace any absent or disqualified member at any meeting of the committee.
Any such committee, to the extent provided in the resolution of the
board of directors, shall have and may exercise all the powers and authority of
the board of directors in the management of the business and affairs of the
corporation, and my authorize the seal of the corporation to be affixed to all
papers which may require it; but no such committee shall have the power or
authority in reference to amending the certificate of incorporation, (except
that a committee may, to the extent authorized in the resolution or resolutions
providing for the issuance of shares of stock adopted by the board of directors
as provided by law fix any of the preferences or rights of such shares relating
to dividends, redemption, dissolution, any distribution of assets of the
corporation or the conversion into, or the exchange of such shares for, shares
of any other class or classes or any other series of the same or any other class
or classes of stock of the corporation) adopting an agreement of merger or
consolidation, recommending to the stockholders the sale, lease or exchange of
all or substantially all of the corporation's property and assets, recommending
to the stockholders a dissolution of the corporation or a revocation of a
dissolution, or amending the by-laws of the corporation; and,
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unless the resolution or the certificate of incorporation expressly so provide,
no such committee shall have the power or authority to declare a dividend or to
authorize the issuance of stock or to adopt a certificate of ownership and
merger. Such committee or committees shall have such name or names as may be
determined from time to time by resolution adopted by the board of directors.
Section 12. Each committee shall keep regular minutes of its meetings
and report the same to the board of directors when required.
COMPENSATION OF DIRECTORS
Section 13. Unless otherwise restricted by the certificate of
incorporation or these by-laws, the board of directors shall have the authority
to fix the compensation of directors. The directors may be paid their expenses,
if any, of attendance at each meeting of the board of directors and may be paid
a fixed sum for attendance at each meeting of the board of directors or a stated
salary as director. No such payment shall preclude any director from serving the
corporation in any other capacity and receiving compensation therefor. Members
of special or standing committees may be allowed like compensation for attending
committee meetings.
REMOVAL OF DIRECTORS
Section 14. Unless otherwise restricted by the certificate of
incorporation or by law, any director or the entire board of directors may be
removed, with or without cause, by the holders of a majority of shares entitled
to vote at an election of directors.
ARTICLE IV
NOTICES
Section 1. Whenever, under the provisions of the statutes or of the
certificate of incorporation or of these by-laws, notice is required to be given
to any director or stockholder, it shall not be construed to mean personal
notice, but such notice may be given in writing, by mail, addressed to such
director or stockholder, at his address as it appears on the records of the
corporation, with postage thereon prepaid, and such notice shall be deemed to be
given at the time when the same shall be deposited in the United States mail.
Notice to directors may also be given by telegram.
Section 2. Whenever any notice is required to be given under the
provisions of the statues or of the certificate of incorporation or of these
by-laws, a waiver thereof in writing, signed by the person or persons entitled
to said notice, whether before or after the time stated therein, shall be deemed
equivalent thereto.
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ARTICLE V
OFFICERS
Section 1. The officers of the corporation shall be chosen by the board
of directors and shall be a president, a vice-president, a secretary and a
treasurer. The board of directors may also choose additional vice-presidents,
and one or more assistant secretaries and assistant treasurers. Any number of
offices may be held by the same person, unless the certificate of incorporation
or these by-laws otherwise provide.
Section 2. The board of directors at its first meeting after each
annual meeting of stockholders shall choose a president, one or more
vice-presidents, a secretary and a treasurer.
Section 3. The board of directors may appoint such other officers and
agents as it shall deem necessary who shall hold their offices for such terms
and shall exercise such powers and perform such duties as shall be determined
from time to time by the board.
Section 4. The salaries of all officers and agents of the corporation
shall be fixed by the board of directors.
Section 5. The officers of the corporation shall hold office until
their successors are chosen and qualify. Any officer elected or appointed by the
board of directors may be removed at any time by the affirmative vote of a
majority of the board of directors. Any vacancy occurring in any office of the
corporation shall be filled by the board of directors.
THE PRESIDENT
Section 6. The president shall be the chief executive officer of the
corporation, shall preside at all meetings of the stockholders and the board of
directors, shall have general and active management of the business of the
corporation and shall see that all orders and resolutions of the board of
directors are carried into effect.
Section 7. He shall execute bonds, mortgages and other contracts
requiring a seal, under the sal of the corporation, except where required or
permitted by law to be otherwise signed and executed and except where the
signing and execution thereof shall be expressly delegated by the board of
directors to some other officer or agent of the corporation.
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THE VICE-PRESIDENTS
Section 8. In the absence of the president or in the event of his
inability or refusal to act, the vice-president (or in the event there be more
than one vice-president, the vice-presidents in the order designated by the
directors, or in the absence of any designation, then in the order of their
election) shall perform the duties of the president, and when so acting, shall
have all the powers of and be subject to all the restrictions upon the
president. The vice-presidents shall perform such other duties and have such
other powers as the board of directors may from time to time prescribe.
THE SECRETARY AND ASSISTANT SECRETARY
Section 9. The secretary shall attend all meetings of the board of
directors and all meetings of the stockholders and record all the proceedings of
the meetings of the corporation and of the board of directors in a book to be
kept for that purpose and shall perform like duties for the standing committees
when required. He shall give, or cause to be given, notice of all meetings of
the stockholders and special meetings of the board of directors, and shall
perform such other duties as may be prescribed by the board of directors or
president, under whose supervision he shall be. He shall have custody of the
corporate seal of the corporation and he, or an assistant secretary, shall have
authority to affix the same to any instrument requiring it and when so affixed,
it may be attested by his signature or by the signature of such assistant
secretary. The board of directors may give general authority to any other
officer to affix the seal of the corporation and to attest the affixing by this
signature.
Section 10. The assistant secretary, or if there be more than one, the
assistant secretaries in the order determined by the board of directors (or it
there be no such determination, then in the order of their election) shall, in
the absence of the secretary or in the event of his inability or refusal to act,
perform the duties and exercise the powers of the secretary and shall perform
such other duties and have such other powers as the board of directors may from
time to time prescribe.
THE TREASURER AND ASSISTANT TREASURERS
Section 11. The treasurer shall have the custody of the corporate funds
and securities and shall keep full and accurate accounts of receipts and
disbursements in books belonging to the corporation and shall deposit all moneys
and other valuable effects in the name and to the credit of the corporation in
such depositories as may be designated by the board of directors.
Section 12. He shall disburse the funds of the corporation as may be
ordered by the board of directors, taking proper vouchers for such
disbursements, and shall render to the president and the board of directors, at
its regular meetings, or when the board of directors
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so requires, an account of all his transactions as treasurer and of the
financial condition of the corporation.
Section 13. If required by the board of directors, he shall give the
corporation a bond (which shall be renewed every six years) in such sum and with
such surety or sureties as shall be satisfactory to the board of directors for
the faithful performance of the duties of his office and for the restoration to
the corporation, in case of his death, resignation, retirement or removal from
office, of all books, papers, vouchers, money and other property of whatever
kind in his possession or under his control belonging to the corporation.
Section 14. The assistant treasurer, or if there shall be more than
one, the assistant treasurers in the order determined by the board of directors
(or if there be no such determination, then in the order of their election)
shall, in the absence of the treasurer or in the event of his inability or
refusal to act, perform the duties and exercise the powers of the treasurer and
shall perform such other duties and have such other powers as the board of
directors may from time to time prescribe.
ARTICLE VI
CERTIFICATES FOR SHARES
Section 1. The shares of the corporation shall be represented by a
certificate or shall be uncertificated. Certificates shall be signed by, or in
the name of the corporation by, the chairman or vice-chairman of the board of
directors, or the president or a vice-president and the treasurer or an
assistant treasurer, or the secretary or an assistant secretary of the
corporation.
Within a reasonable time after the issuance or transfer of
uncertificated stock, the corporation shall send to the registered owner thereof
a written notice containing the information required to be set forth or stated
on certificates pursuant to applicable law or a statement that the corporation
will furnish without charge to each stockholder who so requests the powers,
designations, preferences and relative participating, optional or other special
rights of each class of stock or series thereof and the qualifications,
limitations or restrictions of such preferences and/or rights.
Section 2. Any of or all the signatures on a certificate may be
facsimile. In case any officer, transfer agent or registrar who has signed or
whose facsimile signature has been placed upon a certificate shall have ceased
to be such officer, transfer agent or registrar before such certificate is
issued, it my be issued by the corporation with the same effect as if he were
such officer, transfer agent or registrar at the date of issue.
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LOST CERTIFICATES
Section 3. The board of directors may direct a new certificate or
certificates or uncertificated shares to be issues in place of any certificate
or certificates theretofore issued by the corporation alleged to have been lost,
stolen or destroyed, upon the making of an affidavit of that fact by the person
claiming the certificate or stock to be lost, stolen or destroyed. When
authorizing such issue of anew certificate or certificates or uncertificated
shares, the board of directors may, in its discretion and as a condition
precedent to the issuance thereof, require the owner of such lost, stolen or
destroyed certificate or certificates, or his legal representative, to advertise
the same in such manner as it shall require and/or to given the corporation a
bond in such sum as it may direct as indemnity against any claim that may be
made against the corporation with respect to the certificate alleged to have
been lost, stolen or destroyed.
TRANSFER OF STOCK
Section 4. Upon surrender to the corporation or the transfer agent of
the corporation of a certificate for shares duly endorsed or accompanied by
proper evidence of succession, assignation or authority to transfer, it shall be
the duty of the corporation to issue a new certificate to the person entitled
thereto, cancel the old certificate and record the transaction upon its book.
Upon receipt of proper transfer instructions from the registered owner of
uncertificated shares such uncertificated shares shall be canceled and issuance
of new equivalent uncertificated shares or certificated shares shall be made to
the person entitled thereto and the transaction shall be recorded upon the books
of the corporation.
FIXING RECORD DATE
Section 5. In order that the corporation may determine the stockholders
entitled to notice of or to vote at any meeting of stockholders or any
adjournment thereof, or to express consent to corporate action in writing
without a meeting, or entitled to receive payment of any dividend or other
distribution or allotment of any rights, or entitled to exercise any rights in
respect of any change conversion or exchange of stock or for the purpose of any
other lawful action, the board of directors may fix, in advance, a record date,
which shall not be more than sixty nor less than ten days before the date of
such meeting, nor more than sixty days prior to any other action. A
determination of stockholders of record entitled to notice of or to vote at a
meeting of stockholders shall apply to any adjournment of the meeting; provided,
however, that the board of directors may fix a new record date for the adjourned
meeting.
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REGISTERED STOCKHOLDERS
Section 6. The corporation shall be entitled to recognize the exclusive
right of a person registered on its books as the owner of shares to receive
dividends, and to vote as such owner, and to hold liable for calls and
assessments a person registered on its books as the owner of shares, and shall
not be bound to recognize any equitable or other claim to or interest in such
share or shares on the part of any other person, whether or not it shall have
express or other notice thereof, except as otherwise provided by the laws of
Florida.
ARTICLE VII
GENERAL PROVISIONS
DIVIDENDS
Section 1. Dividends upon the capital stock of the corporation, subject
to the provisions of the certificate of incorporation, if any, may be declared
by the board of directors at any regular or special meeting, pursuant to law.
Dividends may be paid in cash, in property, or in shares of the capital stock,
subject to the provisions of the certificate of incorporation.
Section 2. Before payment of any dividend, there may be set aside out
of any funds of the corporation available for dividends such sum or sums as the
directors from time to time, in their absolute discretion, think proper as a
reserve or reserves to meet contingencies, or for equalizing dividends, or for
repairing or maintaining any property of the corporation, or for such other
purpose as the directors shall think conducive to the interest of the
corporation, and the directors may modify or abolish any such reserve in the
manner in which it was created.
ANNUAL STATEMENT
Section 3. The board of directors shall present at each annual meeting,
and at any special meeting of the stockholders when called for by vote of the
stockholders, a full and clear statement of the business and condition of the
corporation.
CHECKS
Section 4. All checks or demands for money and notes of the corporation
shall be signed by such officer of officers or such other person or persons as
the board of directors may from time to time designate.
FISCAL YEAR
Section 5. The fiscal year of the corporation shall be fixed by
resolution of the board of directors.
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SEAL
Section 6. The corporate seal shall have inscribed thereon the name of
the corporation, the year of its organization and the words "Corporate Seal,
Florida". The seal may be used by causing it or a facsimile thereof to be
impressed or affixed or reproduced or otherwise.
INDEMNIFICATION
Section 7. The corporation shall indemnify its officers, directors,
employees and agents to the extent permitted by the General Corporation Law of
Florida.
ARTICLE VIII
AMENDMENTS
Section 1. These by-laws may be altered, amended or repealed or new
by-laws may be adopted by the stockholders or by the board of directors, when
such power is conferred upon the board of directors by the certificate of
incorporation at any regular meeting of the stockholders or of the board of
directors or at any special meeting of the stockholders or of the board of
directors if notice of such alteration, amendment, repeal or adoption of new
by-laws be contained in the notice of such special meeting. If the power to
adopt, amend or repeal by-laws is conferred upon the board of directors by the
certificate of incorporation it shall not divest or limit the power of the
stockholders to adopt, amend or repeal by-laws.
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Exhibit 4.5
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REGISTRATION RIGHTS AGREEMENT
dated as of
July 22, 1998
among
RADIO UNICA CORP.
and
THE GUARANTORS PARTY HERETO
and
CIBC OPPENHEIMER CORP.
BEAR, STEARNS & CO. INC.
as Initial Purchasers
- --------------------------------------------------------------------------------
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TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page
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<S> <C> <C>
1. Definitions................................................................................1
2. Exchange Offer.............................................................................5
3. Shelf Registration.........................................................................9
4. Additional Interest.......................................................................10
5. Registration Procedures...................................................................13
6. Registration Expenses.....................................................................23
7. Indemnification...........................................................................25
8. Rules 144 and 144A........................................................................29
9. Underwritten Registrations................................................................29
10. Miscellaneous.............................................................................30
(a) Remedies.........................................................................30
(b) Enforcement......................................................................30
(c) No Inconsistent Agreements.......................................................30
(d) Adjustments Affecting Registrable Notes..........................................30
(e) Amendments and Waivers...........................................................30
(f) Notices..........................................................................31
(g) Successors and Assigns...........................................................31
(h) Counterparts.....................................................................32
(i) Headings.........................................................................32
(j) Governing Law....................................................................32
(k) Severability.....................................................................32
(l) Entire Agreement.................................................................32
(m) Joint and Several Obligations....................................................32
(n) Notes Held by the Obligors or Their Affiliates...................................32
</TABLE>
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REGISTRATION RIGHTS AGREEMENT (the "Agreement") dated as of
July 22, 1998, by and among RADIO UNICA CORP., a Delaware corporation (the
"Company"), the guarantors party hereto (the "Guarantors," and together with the
Company, the "Obligors") and CIBC OPPENHEIMER CORP. and BEAR, STEARNS & CO.
INC., as initial purchasers (the "Initial Purchasers").
This Agreement is entered into in connection with the Purchase
Agreement, dated as of July 22, 1998, among the Obligors and the Initial
Purchasers (the "Purchase Agreement") relating to the issuance and sale by the
Company to the Initial Purchasers of up to $158,088,000 aggregate principal
amount at maturity of the Company's senior discount notes due 2006 (the
"Notes"), which are guaranteed on a senior unsecured basis, jointly and
severally, by the Guarantors. In order to induce the Initial Purchasers to enter
into the Purchase Agreement, the Obligors have agreed to provide the
registration rights set forth in this Agreement to the Initial Purchasers and
its direct and indirect transferees and assigns. The execution and delivery of
this Agreement is a condition to the Initial Purchasers' obligation to purchase
the Notes under the Purchase Agreement.
The parties hereby agree as follows:
1. Definitions
As used in this Agreement, the following terms shall have the
following meanings:
Accreted Value: As of any date prior to August 1, 2002, an
amount per $1,000 principal amount at maturity of Notes that is equal to the sum
of (a) the initial offering price of each Note and (b) the portion of the excess
of the principal amount at maturity of each Note over such initial offering
price which shall have been amortized on a daily basis and compounded
semiannually on each August 1 and February 1 at the rate of 11 3/4% per annum
from the Issue Date through the date of determination computed on the basis of a
360-day year of twelve 30-day months; and, as of any date on or after August 1,
2002, the Accreted Value of each Note shall mean the aggregate principal amount
at maturity of such Note.
Additional Interest: See Section 4(a).
Advice: See Section 5.
<PAGE>
Applicable Period: See Section 2(b).
Assessed Damage Amount: See Section 4(a).
Closing: See the Purchase Agreement.
Company: See the introductory paragraph to this Agreement.
Consummation Date: The 180th day after the Issue Date.
Effectiveness Date: The 150th day after the Issue Date.
Effectiveness Period: See Section 3(a).
Event Date: See Section 4(b).
Exchange Act: The Securities Exchange Act of 1934, as
amended, and the rules and regulations of the SEC promulgated thereunder.
Exchange Notes: See Section 2(a).
Exchange Offer: See Section 2(a).
Exchange Registration Statement: See Section 2(a).
Filing Date: The 60th day after the Issue Date.
Guarantors: See the introductory paragraph to this Agreement.
Holder: Any registered holder of a Registrable Note or
Registrable Notes.
Indemnified Person: See Section 7(c).
Indemnifying Person: See Section 7(c).
Indenture: The Indenture, dated as of ___, 1998, by and among
the Company, the Guarantors and Wilmington Trust Company, as trustee, pursuant
to
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which the Notes are being issued, as amended or supplemented from time to time
in accordance with the terms thereof.
Initial Purchasers: See the introductory paragraph to this
Agreement.
Initial Shelf Registration: See Section 3(a).
Inspectors: See Section 5(o).
Issue Date: The Closing Date (as defined in the Purchase
Agreement).
NASD: See Section 5(t).
Notes: See the introductory paragraph to this Agreement.
Obligors: See the introductory paragraph to this Agreement.
Participant: See Section 7(a).
Participating Broker-Dealer: See Section 2(b).
Person: An individual, corporation, limited liability company,
partnership, joint venture, association, joint stock company, trust,
unincorporated organization or government (including any agency or political
subdivision thereof).
Private Exchange: See Section 2(b).
Private Exchange Notes: See Section 2(b).
Prospectus: The prospectus included in any Registration
Statement (including, without limitation, any prospectus subject to completion
and a 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), as amended or supplemented by
any prospectus supplement, with respect to the terms of the offering of any
portion of the Registrable Notes covered by such Registration Statement, and all
other amendments and supplements to the Prospectus, including post-effective
amendments, and all material incorporated by reference or deemed to be
incorporated by reference in such Prospectus.
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Purchase Agreement: See the introductory paragraphs to this
Agreement.
Records: See Section 5(o).
Registrable Notes: The Notes upon original issuance of the
Notes and at all times subsequent thereto and, if issued, the Private Exchange
Notes, until in the case of any such Notes or any such Private Exchange Notes,
as the case may be, (i) a Registration Statement covering such Notes or such
Private Exchange Notes has been declared effective by the SEC and such Notes or
such Private Exchange Notes, as the case may be, have been exchanged and/or
disposed of in accordance with such effective Registration Statement, (ii) such
Notes or such Private Exchange Notes, as the case may be, are eligible to be
sold in compliance with Rule 144, (iii) in the case of any Note, such Note has
been exchanged for an Exchange Note or Exchange Notes pursuant to an Exchange
Offer or (iv) such Notes or such Private Exchange Notes, as the case may be,
cease to be outstanding.
Registration Default: See Section 4(a).
Registration Statement: Any registration statement of the
Obligors, including, but not limited to, the Exchange Registration Statement,
which covers any of the Registrable Notes pursuant to the provisions of this
Agreement, including the Prospectus, 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.
Rule 144: Rule 144 promulgated under the Securities Act, as
such Rule may be amended from time to time, or any similar rule (other than Rule
144A) or regulation hereafter adopted by the SEC providing for offers and sales
of securities made in compliance therewith resulting in offers and sales by
subsequent holders that are not affiliates of an issuer of such securities being
free of the registration and prospectus delivery requirements of the Securities
Act.
Rule 144A: Rule 144A promulgated under the Securities Act, as
such Rule may be amended from time to time, or any similar rule (other than Rule
144) or regulation hereafter adopted by the SEC providing for offers and sales
of securities made in compliance therewith resulting in offers and sales by
subsequent holders that are not affiliates of an issuer of such securities being
free of the registration and prospectus delivery requirements of the Securities
Act.
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Rule 415: Rule 415 promulgated under the Securities Act, 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 Act: The Securities Act of 1933, as amended, and
the rules and regulations of the SEC promulgated thereunder.
Shelf Notice: See Section 2(c).
Shelf Registration: See Section 3(b).
Subsequent Shelf Registration: See Section 3(b).
TIA: The Trust Indenture Act of 1939, as amended.
Trustee: The trustee under the Indenture.
underwritten registration or underwritten offering: A
registration under the Securities Act in which securities of the Company are
sold to an under writer(s) for reoffering to the public.
2. Exchange Offer
(a) Unless such an offer is not permitted by applicable law or
SEC policy, each Obligor, jointly and severally, agrees to use its reasonable
best efforts to file with the SEC as soon as practicable after the Closing, but
in no event later than the Filing Date, a registration statement covering an
offer to exchange (the "Ex change Offer") any and all of the Registrable Notes
for a like aggregate principal amount at maturity of debt securities of the
Company, guaranteed by the Guarantors, which are identical in all material
respects to the Notes (the "Exchange Notes"), guaranteed by the Guarantors (and
which are entitled to the benefits of the Indenture or a trust indenture which
is identical in all material respects 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 which, in either case, has been qualified under the
TIA), except that the Exchange Notes shall have been registered pursuant to an
effective registration statement under the Securities Act and will not contain
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<PAGE>
terms with respect to transfer restrictions. The Exchange Offer will be
registered under the Securities Act on the appropriate form (the "Exchange
Registration Statement"), and the Exchange Offer will comply with all applicable
tender offer rules and regulations under the Exchange Act. Each Obligor jointly
and severally agrees to use its reasonable best efforts to (x) cause the
Exchange Registration Statement to become effective under the Securities Act on
or before the Effectiveness Date; (y) keep the Exchange Offer open for at least
30 days (or longer if required by applicable law) after the date that notice of
the Exchange Offer is mailed to Holders; and (z) consummate the Exchange Offer
with respect to all Notes validly tendered on or prior to the 60th day following
the date the Exchange Registration Statement is declared effective (in any event
on or prior to the Consummation Date) (or, in the event of any extension of the
Exchange Offer required by applicable law, the earliest day following any such
extension). Each Holder who participates in the Exchange Offer will be required
to represent that any Exchange Notes 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 Notes in violation of
the provisions of the Securities Act, that such Holder is not an affiliate of
any Obligor within the meaning of Rule 405 promulgated under the Securities Act
or if it is such an affiliate, that it will comply with the registration and
prospectus delivery requirements of the Securities Act, to the extent
applicable, and that is not acting on behalf of any Person who could not
truthfully make the foregoing representations. Upon consummation of the Exchange
Offer in accordance with this Section 2, the provisions of this Agreement shall
continue to apply, mutatis mutandis, solely with respect to Registrable Notes
that are Private Exchange Notes and Exchange Notes held by Participating
Broker-Dealers, and the Obligors shall have no further obligation to register
Registrable Notes (other than Private Exchange Notes and Exchange Notes held by
Participating Broker-Dealers) pursuant to Section 3 of this Agreement.
(b) The Obligors shall include within the Prospectus contained
in the Exchange Registration Statement a section entitled "Plan of
Distribution," reasonably acceptable to the Initial 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 promulgated
under the Exchange Act) of Exchange Notes received by such broker-dealer in the
Exchange Offer (a "Participating Broker-Dealer"), whether such positions or
policies have been publicly disseminated by the staff of the SEC or such
positions or policies, in the reasonable judgment of the Initial Purchasers,
represent the prevailing views of the staff of the SEC. Such "Plan
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<PAGE>
of Distribution" section shall also allow the use of the 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 Notes.
Each Obligor shall use its reasonable best efforts to keep the
Ex change 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 such period of time as such Persons must comply with such
requirements in order to resell the Exchange Notes, provided that such period
shall not exceed 180 days (or such longer period if extended pursuant to the
last paragraph of Section 5) (the "Applicable Period").
If, prior to consummation of the Exchange Offer, either of the
Initial Purchasers holds any Notes acquired by it and having, or which are
reasonably likely to be determined to have, the status as an unsold allotment in
the initial distribution, the Obligors upon the request of such Initial
Purchaser shall, simultaneously with the delivery of the Exchange Notes in the
Exchange Offer, issue and deliver to such Initial Purchaser, in exchange (the
"Private Exchange") for the Notes held by such Initial Purchaser, a like
principal amount at maturity of debt securities of the Obligors that are
identical in all material respects to the Exchange Notes (the "Private
Exchange"), guaranteed by the Guarantors (and which are entitled to the benefits
of the Indenture) except for the placement of a restrictive legend on the
Private Ex change Notes. If possible, the Private Exchange Notes shall bear the
same CUSIP number as the Exchange Notes. The Accreted Value will accrete as set
forth in the Indenture and interest on the Exchange Notes and Private Exchange
Notes will accrue from the last interest payment date on which interest was paid
on the Notes surrendered in exchange therefor or, if no interest has been paid
on the Notes, from the Issue Date. Holders of Exchange Notes and Private
Exchange Notes shall vote together as a class on all matters under the
Indenture.
In connection with the Exchange Offer, the Obligors shall:
(i) mail to each Holder a copy of the Prospectus forming part
of the Exchange Registration Statement, together with an appropriate
letter of transmittal and related documents;
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<PAGE>
(ii) utilize the services of a depositary for the Exchange
Offer with an address in the Borough of Manhattan, The City of New
York; and
(iii) permit Holders to withdraw tendered Notes at any time
prior to the close of business, New York City 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
or the Private Exchange, as the case may be, the Obligors shall:
(i) accept for exchange all Notes tendered and not validly
withdrawn pursuant to the Exchange Offer or the Private Exchange; and
(ii) deliver, or cause to be delivered, promptly to each
Holder of Notes, Exchange Notes or Private Exchange Notes, as the case
may be, equal in principal amount at maturity to the Notes of such
Holder so accepted for exchange.
(c) If (1) prior to the consummation of the Exchange Offer,
the Obligors or Holders of at least a majority in aggregate principal amount at
maturity of the Registrable Notes reasonably determine in good faith that (i)
the Exchange Notes would not, upon receipt, be freely transferable by such
Holders which are not affiliates (within the meaning of the Securities Act) of
the Obligors without restriction under the Securities Act and without
restrictions under applicable state securities laws or (ii) after conferring
with counsel, the SEC is unlikely to permit the commencement of the Exchange
Offer prior to the Effectiveness Date, (2) subsequent to the consummation of the
Private Exchange, any holder of the Private Exchange Notes so requests but in no
event subsequent to 290 days following the consummation of the Exchange Offer
or (3) the Exchange Offer is commenced and not consummated prior to the
Consummation Date, then the Obligors shall promptly deliver to the Holders
written notice thereof (the "Shelf Notice") and shall file an Initial Shelf
Registration pursuant to Section 3. The parties hereto agree that following the
delivery of a Shelf Notice to the Holders of Registrable Notes (in the
circumstances contemplated by clauses (1) and (3) of the preceding sentence),
the Obligors shall not have any further obligation to conduct the Exchange Offer
or the Private Exchange under this Section 2.
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<PAGE>
3. Shelf Registration
If a Shelf Notice is required to be delivered as contemplated
by Section 2(c) then:
(a) Initial Shelf Registration. The Obligors shall prepare and
file with the SEC a Registration Statement for an offering to be made on a
continuous basis pursuant to Rule 415 covering all of the then existing
Registrable Notes (the "Initial Shelf Registration"). If the Obligors shall have
not yet filed an Exchange Registration Statement, each Obligor shall use its
reasonable best efforts to file with the SEC the Initial Shelf Registration on
or prior to the Filing Date. In any other instance, each Obligor shall use its
reasonable best efforts to file with the SEC the Initial Shelf Registration as
promptly as practicable but, in any event, within 45 days following delivery of
the Shelf Notice. The Initial Shelf Registration shall be on Form S-1 or another
appropriate form permitting registration of such Registrable Notes for resale by
such Holders in the manner or manners reasonably designated by them (including,
without limitation, one or more underwritten offerings). The Obligors shall not
permit any securities other than the Registrable Notes to be included in the
Initial Shelf Registration or any Subsequent Shelf Registration. Each Obligor
shall use its reasonable best efforts to cause the Initial Shelf Registration to
be declared effective under the Securities Act, if an Exchange Registration
Statement has not yet been declared effective, on or prior to the Effectiveness
Date, or, in any other instance, as soon as practicable after the filing thereof
and in no event later than 90 days after filing of the Initial Shelf
Registration, and to keep the Initial Shelf Registration continuously effective
under the Securities Act until the date which is 24 months from the date on
which such Initial Shelf Registration is declared effective (subject to
extension pursuant to the last paragraph of Section 5 hereof), or such shorter
period ending when (i) all Registrable Notes covered by the Initial Shelf
Registration have been sold in the manner set forth and as contemplated in the
Initial Shelf Registration, (ii) a Subsequent Shelf Registration covering all of
the Registrable Notes has been declared effective under the Securities Act or
(iii) such Registrable Notes are eligible for resale pursuant to Rule 144(k)
under the Securities Act (the "Effectiveness Period").
(b) Subsequent Shelf Registrations. If the Initial Shelf
Registration or any Subsequent Shelf Registration ceases to be effective for
any reason at any time prior to the termination of the Effectiveness Period,
each Obligor shall use its reasonable best efforts to promptly restore the
effectiveness thereof, and in any event shall, within 45 days of such cessation
of effectiveness, amend the Shelf Registration
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<PAGE>
in a manner reasonably expected to restore the effectiveness thereof, or file an
additional "shelf" Registration Statement pursuant to Rule 415 covering all of
the then existing Registrable Notes (a "Subsequent Shelf Registration"). If a
Subsequent Shelf Registration is filed, each Obligor shall use its reasonable
best efforts to cause the Subsequent Shelf Registration to be declared effective
as soon as practicable after such filing and to keep such Registration Statement
continuously effective for a period equal to the number of days in the
Effectiveness Period less the aggregate number of days during which the Initial
Shelf Registration or any Subsequent Shelf Registration was previously
continuously effective. As used herein the term "Shelf Registration" means the
Initial Shelf Registration and any Subsequent Shelf Registration.
(c) Supplements and Amendments. The Obligors 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 or if required by the Securities Act. The Obligors shall
promptly supplement and amend the Shelf Registration if any such supplement or
amendment is reasonably requested by the Holders of a majority in aggregate
principal amount of the Registrable Notes covered by such Registration Statement
or by any underwriter(s) of such Registrable Notes.
4. Additional Interest
(a) The Obligors and the Initial Purchasers agree that the
Holders of Registrable Notes will suffer damages if the Obligors fail to fulfill
their obligations under Section 2 or Section 3 hereof and that it would not be
feasible to ascertain the extent of such damages with precision. Accordingly,
the Company agrees to pay additional interest on the Notes ("Additional
Interest") ( or "Assessed Damage Amounts" to the extent the Company elects to
make payments under section 4(c) herein) under the circumstances and to the
extent set forth below:
(i) if neither the Exchange Registration Statement nor the
Initial Shelf Registration has been filed on or prior to the Filing
Date;
(ii) if neither the Exchange Registration Statement nor the
Initial Shelf Registration has been declared effective on or prior to
the Effectiveness Date;
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(iii) if an Initial Shelf Registration required by Section
2(c) (2) has not been filed on or prior to the date 45 days after
delivery of the Shelf Notice;
(iv) if an Initial Shelf Registration required by Section 2(c)
(2) has not been declared effective on or prior to the date 125 days
after the delivery of the Shelf Notice; and/or
(v) if (A) the Company has not exchanged the Exchange Notes
for all Notes validly tendered in accordance with the terms of the
Exchange Offer on or prior to 180 days after the Issue Date or (B) the
Exchange Registration Statement ceases to be effective at any time
prior to the time that the Ex change Offer is consummated as to all
Notes validly tendered or (C) if applicable, the Shelf Registration has
been declared effective and such Shelf Registration ceases to be
effective at any time prior to the termination of the Effectiveness
Period.
(each such event referred to in clauses (i) through (v) above is a "Registration
Default"). The sole remedy available to Holders of the Notes for a Registration
Default will be the accrual of Additional Interest as follows: the per annum
interest rate on the Notes will increase by 50 basis points during the first
90-day period following the occurrence of a Registration Default and until it is
waived or cured; and the per annum interest rate will increase by an additional
25 basis points for each subsequent 90-day period during which the Registration
Default remains uncured, up to a maximum additional interest rate of 200 basis
points per annum, provided, however, that (x) only Holders of Private Exchange
Notes shall be entitled to receive Additional Interest as a result of a
Registration Default pursuant to clause (iii) or (iv); (y) the Obligors shall in
no event be required to pay Additional Interest for more than one Registration
Default at any given time and (z) (1) upon the filing of the Ex change
Registration Statement or the Initial Shelf Registration (in the case of (i)
above), (2) upon the effectiveness of the Exchange Registration Statement or a
Shelf Registration (in the case of (ii) above), (3) upon the filing of the Shelf
Registration (in the case of (iii) above), (4) upon the effectiveness of the
Shelf Registration (in the case of (iv) above), or (5) upon the exchange of
Exchange Notes for all Notes tendered or the effectiveness of a Shelf
Registration (in the case of (v) (A) above), or upon the subsequent
effectiveness of the Exchange Registration Statement which had ceased to remain
effective or the effectiveness of a Shelf Registration (in the case of (v) (B)
above), or upon the subsequent effectiveness of the Shelf Registration which had
ceased to remain effective (in the case of (v) (C) above), Additional Interest
on
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the Notes as a result of such clause (i), (ii), (iii), (iv) or (v) (or the
relevant subclause thereof), as the case may be, shall cease to accrue and the
interest rate on the Notes will revert to the interest rate originally borne by
the Notes.
(b) The Obligors shall notify the Holders within one business
day after each and every date on which an event occurs in respect of which
Additional Interest is required to be paid (an "Event Date"). Any amounts of
Additional Interest due pursuant to (a) (i) , (a) (ii) , (a) (iii) , (a) (iv) or
(a) (v) of this Section 4 will be payable in cash semi-annually on each regular
interest payment date specified in the Indenture (to the Holders of record on
the regular record date therefor (specified in the Indenture) immediately
preceding such dates), commencing with the first such date occurring after any
such Additional Interest commences to accrue and until such Registration Default
is cured, immediately available funds in sums sufficient to pay such Additional
Interest. The amount of Additional Interest will be determined by multiplying
the applicable Additional Interest rate by the Accreted Value (in the case of
any such determination on or prior to August 1, 2002) or the principal amount at
maturity (in the case of any such determination after August 1, 2002) of the
Registrable Notes, multiplied by a fraction, the numerator of which is the
number of days such Additional Interest rate was applicable during such period
(determined on the basis of a 360-day year comprised of twelve 30-day months
and, in the case of a partial month, the actual number of days elapsed), and the
denominator of which is 360.
(c) Notwithstanding paragraph (b) above, the Obligors are not
required to pay Additional Interest prior to the time cash interest is payable
on the Notes; provided, however, that should the Obligors elect to defer payment
of the Additional Interest (such amount, and any interest payable with respect
thereto, the "Assessed Damage Amount") subsequent to the time such Additional
Interest would otherwise be payable under paragraph (b) above, the Assessed
Damage Amount will bear interest at the same rate as the Notes until such time
of payment.
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5. Registration Procedures
In connection with the filing of any Registration Statement
pursuant to Section 2 or 3 hereof, the Obligors shall effect such registrations
to permit the sale of the securities covered thereby in accordance with the
intended method or methods of disposition thereof, and pursuant thereto the
Obligors shall:
(a) Prepare and file with the SEC, as provided herein, a
Registration Statement or Registration Statements as prescribed by Section 2 or
3, and use their respective reasonable best efforts to cause each such
Registration Statement to become effective and remain effective as provided
herein, provided that, if (1) such filing is pursuant to Section 3, or (2) a
Prospectus contained in an Exchange Registration Statement filed pursuant to
Section 2 is required to be delivered under the Securities Act by any
Participating Broker-Dealer who seeks to sell Exchange Notes during the
Applicable Period, before filing any Registration Statement or Prospectus or any
amendments or supplements thereto, the Obligors shall, upon written request,
furnish to and afford the Holders of the Registrable Notes covered by such
Registration Statement and each such Participating Broker-Dealer, as the case
may be, their counsel and the managing underwriter(s), 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 (to the extent practicable, at least 5 business days prior
to such filing). The Obligors shall not file any Registration Statement or
Prospectus or any amendments or supplements thereto in respect of which the
Holders 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
Registrable Notes covered by such Registration Statement, or such Participating
Broker-Dealer, as the case may be, their counsel, or the managing
underwriter(s), if any, shall reasonably object.
(b) Prepare and file with the SEC such amendments and
post-effective amendments to each Shelf Registration or Exchange 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; cause the related Prospectus to be supplemented by
any prospectus supplement required by applicable law, and as so supplemented to
be filed pursuant to Rule 424 (or any similar provisions then in force) under
the Securities Act; and
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<PAGE>
comply with the provisions of the Securities Act and the Exchange Act applicable
to them with respect to the disposition of all securities covered by such
Registration 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 Obligors shall
be deemed not to have used their reasonable best efforts to keep a Registration
Statement effective during the Applicable Period if any of them voluntarily
takes any action that would result in selling Holders of the Registrable Notes
covered thereby or Participating Broker-Dealers seeking to sell Exchange Notes
not being able to sell such Registrable Notes or such Exchange Notes during that
period unless such action is required by applicable law or unless the Obligors
comply with this Agreement, including without limitation, the provisions of
clauses 5(c) (v) and (vi) below.
(c) If (1) a Shelf Registration is filed pursuant to Section
3, or (2) a Prospectus contained in an Exchange Registration Statement filed
pursuant to Section 2 is required to be delivered under the Securities Act by
any Participating Broker-Dealer who seeks to sell Exchange Notes during the
Applicable Period, notify the selling Holders of Registrable Notes, or each such
Participating Broker-Dealer, as the case may be, their counsel and the managing
underwriter(s), 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 thereto has been filed, and, with respect
to a Registration Statement or any post-effective amendment thereto, when the
same has become effective under the Securities Act (including in such notice a
written statement that any Holder may, upon request, obtain, without charge, one
conformed copy of such Registration Statement or post-effective amendment
thereto including financial statements and schedules, documents incorporated or
deemed to be incorporated by reference and exhibits), (ii) of the issuance by
the SEC 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 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 Registrable Notes or resales of Exchange Notes by
Participating Broker-Dealers the representations and warranties of the Obligors
contained in any agreement (including any underwriting agreement) contemplated
by Section 5(n) below cease to be true and correct, (iv) of the receipt by any
of the Obligors of any notification with respect to the suspension of the
qualification or
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exemption from qualification of a Registration Statement or any of the
Registrable Notes or the Exchange Notes to be sold by any Participating
Broker-Dealer for offer or sale in any jurisdiction, or the initiation or
threatening of any proceeding for such purpose, (v) of the happening of any
event or any information becoming known that makes any statement made in such
Registration Statement or related 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, or amendments or supplements to,
such Registration Statement, Prospectus or 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, and that in the case of
the 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 the light of the circumstances under which they
were made, not misleading, and (vi) of any Obligor's reasonable determination
that a post-effective amendment to a Registration Statement would be necessary
or appropriate.
(d) If (1) a Shelf Registration is filed pursuant to Section
3, or (2) a Prospectus contained in an Exchange Registration Statement filed
pursuant to Section 2 is required to be delivered under the Securities Act by
any Participating Broker-Dealer who seeks to sell Exchange Notes during the
Applicable Period, use their reasonable 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 Registrable Notes
or the Exchange Notes to be sold by any Participating Broker-Dealer, for sale in
any jurisdiction, and, if any such order is issued, to use their reasonable best
efforts to obtain the withdrawal of any such order as promptly as practicable.
(e) If a Shelf Registration is filed pursuant to Section 3 and
if requested by the managing underwriter(s), if any, or the Holders of a
majority in aggregate principal amount of the Registrable Notes being sold in
connection with an underwritten offering, (i) promptly incorporate in a
Prospectus supplement or post-effective amendment such information as the
managing underwriter(s), if any, or such Holders reasonably request to be
included therein and (ii) make all required filings of such Prospectus
supplement or such post-effective amendment as soon as practicable after the
Company has received notification of the matters to be incorporated in such
Prospectus supplement or post-effective amendment.
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(f) If (1) a Shelf Registration is filed pursuant to Section
3, or (2) a Prospectus contained in an Exchange Registration Statement filed
pursuant to Section 2 is required to be delivered under the Securities Act by
any Participating Broker-Dealer who seeks to sell Exchange Notes during the
Applicable Period, furnish to each selling Holder of Registrable Notes who so
requests and to each such Participating Broker-Dealer who so requests and to
counsel and the managing underwriter(s), if any, without charge, one conformed
copy of the Registration Statement or Registration Statements and each
post-effective amendment thereto, including financial statements and 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, or (2) a Prospectus contained in an Exchange Registration Statement filed
pursuant to Section 2 is required to be delivered under the Securities Act by
any Participating Broker-Dealer who seeks to sell Exchange Notes during the
Applicable Period, deliver to each selling Holder of Registrable Notes, or each
such Participating Broker-Dealer, as the case may be, their counsel, and the
managing underwriter or underwriters, if any, 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, each Obligor hereby consents to the use of
such Prospectus and each amendment or supplement thereto by each of the selling
Holders of Registrable Notes or each such Participating Broker-Dealer, as the
case may be, and the managing underwriter or underwriters or agents, if any, and
dealers (if any), in connection with the offering and sale of the Registrable
Notes covered by, or the sale by Participating Broker-Dealers of the Exchange
Notes pursuant to, such Prospectus and any amendment or supplement thereto.
(h) Prior to any public offering of Registrable Notes or any
delivery of a Prospectus contained in the Exchange Registration Statement by any
Participating Broker-Dealer who seeks to sell Exchange Notes during the
Applicable Period, to use their reasonable best efforts to register or qualify,
and to cooperate
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with the selling Holders of Registrable Notes or each such Participating
Broker-Dealer, as the case may be, the managing underwriter or underwriters, if
any, and their respective counsel in connection with the registration or
qualification of (or exemption from such registration or qualification), such
Registrable Notes for offer and sale under the securities or Blue Sky laws of
such jurisdictions within the United States as any selling Holder, Participating
Broker-Dealer, or the managing under writer or underwriters, if any, reasonably
request in writing, provided that where Exchange Notes held by Participating
Broker-Dealers or Registrable Notes are offered other than through an
underwritten offering, the Obligors agree to cause their counsel to perform Blue
Sky investigations and file registrations and qualifications required to be
filed pursuant to this Section 5(h); keep each such registration or
qualification (or exemption therefrom) 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 Notes held by Participating Broker-Dealers or
the Registrable Notes covered by the applicable Registration Statement; provided
that no Obligor shall be required to (A) qualify generally to do business in any
jurisdiction where it is not then so qualified, (B) take any action that would
subject it to general service of process in any such jurisdiction where it is
not then so subject or (C) subject itself to taxation in any such jurisdiction
where it is not otherwise so subject.
(i) If a Shelf Registration is filed pursuant to Section 3,
cooperate with the selling Holders of Registrable Notes and the managing
underwriter or underwriters, if any, to facilitate the timely preparation and
delivery of certificates representing Registrable Notes 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
Registrable Notes to be in such denominations and registered in such names as
the managing underwriter or underwriters, if any, or Holders may reasonably
request.
(j) Use their reasonable best efforts to cause the Registrable
Notes covered by the Registration Statement to be registered with or approved by
such other governmental agencies or authorities as may be necessary to enable
the seller or sellers thereof or the managing underwriter or underwriters, if
any, to consummate the disposition of such Registrable Notes, except as may be
required solely as a consequence of the nature of such selling Holder's
business, in which case each Obligor will cooperate in all reasonable respects
with the filing of such Registration Statement and the granting of such
approvals.
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(k) If (1) a Shelf Registration is filed pursuant to Section
3, or (2) a Prospectus contained in an Exchange Registration Statement filed
pursuant to Section 2 is required to be delivered under the Securities Act by
any Participating Broker-Dealer who seeks to sell Exchange Notes during the
Applicable Period, upon the occurrence of any event contemplated by paragraph 5
(c) (v) or 5 (c) (vi), as promptly as reasonably practicable prepare and
(subject to Section 5(a)) file with the SEC, at the joint and several expense of
each Obligor, a supplement or posteffective 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 Registrable
Notes being sold thereunder or to the purchasers of the Exchange Notes 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 the light of the circumstances under which they were
made, not misleading.
(l) Use their reasonable best efforts to cause the Registrable
Notes covered by a Registration Statement or the Exchange Notes, as the case may
be, to be rated with the appropriate rating agencies, if so requested by the
Holders of a majority in aggregate principal amount of Registrable Notes covered
by such Registration Statement or the Exchange Notes, as the case may be, or the
managing underwriter or underwriters, if any.
(m) Prior to the effective date of the first Registration
Statement relating to the Registrable Notes, (i) issue certificates for the
Registrable Notes or Exchange Notes, as the case may be, in a form eligible for
deposit with The Depository Trust Company and (ii) provide a CUSIP number for
the Registrable Notes or Exchange Notes, as the case may be.
(n) In connection with an underwritten offering of Registrable
Notes pursuant to a Shelf Registration, enter into an underwriting agreement
upon such reasonable terms and conditions as are customary in underwritten
offerings of debt securities similar to the Notes and take all such other
actions as are reasonably requested by the managing underwriter(s), if any, in
order to expedite or facilitate the registration or the disposition of such
Registrable Notes, and in such connection, (i) make such reasonable
representations and warranties to the managing underwriter or
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underwriters on behalf of any underwriters, with respect to the business of the
Company and the Registration Statement, 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 of
debt securities similar to the Notes, and confirm the same if and when
requested; (ii) obtain opinions of counsel to the Obligors and updates thereof
in form and substance reasonably satisfactory to the managing underwriter or
underwriters, addressed to the managing underwriter or underwriters covering the
matters customarily covered in opinions received in underwritten offerings of
debt securities similar to the Notes and such other customary matters as may be
reasonably requested by the managing underwriter(s); (iii) obtain "cold comfort"
letters and updates thereof in form and substance reasonably satisfactory to the
managing underwriter or underwriters from the independent certified public
accountants of the Obligors (and, if necessary, any other independent certified
public accountants of any business acquired by the Company for which financial
statements and financial data are, or are required to be, included in the
Registration Statement), addressed to the managing underwriter or underwriters
on behalf of any 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 of debt securities similar to the Notes and such
other matters as may be reasonably requested by the managing underwriter or
underwriters; and (iv) if an underwriting agreement is entered into, the same
shall contain indemnification 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 Registrable
Notes covered by such Registration Statement and the managing underwriter or
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.
(o) If (1) a Shelf Registration is filed pursuant to Section
3, or (2) a Prospectus contained in an Exchange Registration Statement filed
pursuant to Section 2 is required to be delivered under the Securities Act by
any Participating Broker-Dealer who seeks to sell Exchange Notes during the
Applicable Period, make available for inspection by any selling Holder of such
Registrable Notes being sold, or each such Participating Broker-Dealer, as the
case may be, the managing under writer or underwriters participating in any such
disposition of Registrable Notes, if
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any, and any attorney, accountant or other agent retained by any such selling
Holder or each such Participating Broker-Dealer, as the case may be
(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 Company (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 Company
to supply all information in each case reasonably requested by any such
Inspector in connection with such Registration Statement. Records which the
Company determines, in good faith, to be confidential and any Records which they
notify the Inspectors are confidential shall not be disclosed by the Inspectors
unless (i) the disclosure of such Records is necessary to avoid or correct a
material misstatement or material omission in such Registration Statement, (ii)
the release of such Records is ordered pursuant to a subpoena or other order
from a court of competent jurisdiction or (iii) the information in such Records
has been made generally available to the public. Each selling Holder of such
Registrable Notes and each such Participating Broker-Dealer or underwriter will
be required to agree that information obtained by it as a result of such
inspections shall be deemed confidential and shall not be used by it as the
basis for any market transactions in the securities of the Obligors or for any
purpose other than in connection with such Registration Statement unless and
until such is made generally available to the public. Each selling Holder of
such Registrable Notes and each such Participating Broker-Dealer will be
required to further agree that it will, upon learning that disclosure of such
Records is sought in a court of competent jurisdiction, give prompt notice to
the Company and allow the Company to undertake appropriate action to prevent
disclosure of the Records deemed confidential at their expense.
(p) Provide an indenture trustee for the Registrable Notes or
the Exchange Notes, as the case may be, and cause the Indenture or the trust
indenture provided for in Section 2 (a), as the case may be, to be qualified
under the TIA not later than the effective date of the Exchange Registration
Statement or the first Registration Statement relating to the Registrable Notes;
and in connection there with, cooperate with the trustee under any such
indenture and Holders of the Registrable Notes 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 their respective reasonable best
efforts to cause such trustee to execute, all forms and documents required to be
filed with the SEC to enable such indenture to be so qualified in a timely
manner.
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(q) Comply in all material respects with all applicable rules
and regulations of the SEC and make generally available to its securityholders
earnings statements satisfying the provisions of Section 11(a) of the Securities
Act and Rule 158 thereunder (or any similar rule promulgated under the
Securities Act) no later than 90 days after the end of any 12-month period (i)
commencing at the end of any fiscal quarter in which Registrable Notes are sold
to underwriters in a firm commitment or best efforts underwritten offering and
(ii) if not sold to underwriters in such an offering, commencing on the first
day of the first fiscal quarter of the Company after the effective date of a
Registration Statement, which statements shall cover said 12-month periods.
(r) Upon consummation of an Exchange Offer or a Private
Exchange, obtain an opinion of counsel to the Obligors, in a form reasonable and
customary for underwritten offerings of debt securities similar to the Notes, ad
dressed to the Trustee for the benefit of all Holders of Registrable Notes
participating in the Exchange Offer or the Private Exchange, as the case may be,
and which includes an opinion that (i) each Obligor has duly authorized,
executed and delivered the Exchange Notes and Private Exchange Notes and the
related indenture and (ii) each of the Exchange Notes or the Private Exchange
Notes, as the case may be, and the Purchase Agreement constitute a legal, valid
and binding obligation of each Obligor, enforceable against each Obligor in
accordance with its respective terms (with reasonable and customary exceptions
and qualifications).
(s) If an Exchange Offer or a Private Exchange is to be
consummated, upon delivery of the Registrable Notes by Holders to the Obligors
(or to such other Person as directed by the Obligors) in exchange for the
Exchange Notes or the Private Exchange Notes, as the case may be, the Obligors
shall mark, or cause to be marked, on such Registrable Notes that such
Registrable Notes are being canceled in exchange for the Exchange Notes or the
Private Exchange Notes, as the case may be; and, in no event shall such
Registrable Notes be marked as paid or otherwise satisfied.
(t) Cooperate with each seller of Registrable Notes covered by
any Registration Statement and the managing underwriter(s), if any,
participating in the disposition of such Registrable Notes and their respective
counsel in connection with any filings required to be made with the National
Association of Securities Dealers, Inc. (the "NASD").
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(u) Use their respective reasonable best efforts to take all
other reasonable steps necessary to effect the registration of the Registrable
Notes covered by a Registration Statement contemplated hereby.
The Obligors may require each seller of Registrable Notes or
Participating Broker-Dealer as to which any registration is being effected to
furnish to the Obligors such information regarding such seller or Participating
Broker-Dealer and the distribution of such Registrable Notes or Exchange Notes
to be sold by such Participating Broker-Dealer, as the case may be, as the
Obligors may, from time to time, reasonably request. The Obligors may exclude
from such registration the Registrable Notes of any seller or Participating
Broker-Dealer who fails to furnish such information within a reasonable time
after receiving such request. Each seller as to which any Shelf Registration is
being effected agrees to furnish promptly to the Obligors all information
required to be disclosed in order to make the information previously furnished
to the Obligors by such seller not materially misleading.
Each Holder of Registrable Notes and each Participating
Broker-Dealer agrees by acquisition of such Registrable Notes or Exchange Notes
to be sold by such Participating Broker-Dealer, as the case may be, that, upon
receipt of any notice from the Company of the happening of any event of the kind
described in Section 5 (c) (ii), 5 (c) (iv), 5 (c) (v) or 5 (c) (vi) hereof,
such Holder will forthwith discontinue disposition of such Registrable Notes
covered by such Registration Statement or Prospectus or Exchange Notes to be
sold by such Holder or Participating Broker-Dealer, as the case may be, until
such Holder's or Participating Broker-Dealer's receipt of the copies of the
supplemented or amended Prospectus contemplated by Section 5(k), or until it is
advised in writing (the "Advice") by the Company that the use of the applicable
Prospectus may be resumed, and has received copies of any amendments or
supplements thereto. If so requested by an Obligor, each Holder will use
commercially reasonable efforts to deliver to the requesting Obligor (at such
Obligor's cost) all copies, other than permanent file copies, then in such
Holder's possession, of the requested Prospectus within a reasonable period
after receipt of such notice. In the event the Company shall give any such
notice, each of the Effectiveness Period and the Applicable Period shall be
extended by the number of days during such periods from and including the date
of the giving of such
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notice to and including the date when each seller of Registrable Notes covered
by such Registration Statement or Exchange Notes to be sold by such Holder or
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.
6. Registration Expenses
(a) All reasonable fees and expenses incident to the
performance of or compliance with this Agreement by the Obligors shall be borne
by the Obligors, jointly and severally, 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
Registrable Notes or Exchange Notes and determination of the eligibility of the
Registrable Notes or Exchange Notes for investment under the laws of such
jurisdictions in the United States (x) where the Holders of Registrable Notes
are located, in the case of the Exchange Notes, or (y) as provided in Section
5(h), in the case of Registrable Notes or Exchange Notes to be sold by a
Participating Broker-Dealer during the Applicable Period)), (ii) printing
expenses (including, without limitation, expenses of printing certificates for
Registrable Notes or Exchange Notes in a form eligible for deposit with The
Depository Trust Company and of printing Prospectuses if the printing of
Prospectuses is reasonably requested by the managing underwriter or
underwriters, if any, or, in respect of Registrable Notes or Exchange Notes to
be sold by any Participating Broker-Dealer during the Applicable Period, if
reasonably requested by the Holders of a majority in aggregate principal amount
at maturity of the Registrable Notes included in any Registration Statement or
of such Exchange Notes, as the case may be), (iii) messenger, telephone and
delivery expenses related thereto, (iv) reasonable fees and disbursements of
counsel for the Obligors and reasonable fees and disbursements of special
counsel for the sellers of Registrable Notes (subject to the provisions of
Section 6(b)), (v) fees and disbursements of all independent certified public
accountants referred to in Section 5(n) (iii) (including, without limitation,
the expenses of
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any special audit and "cold comfort" letters required by or incident to such
performance), (vi) rating agency fees, (vii) Securities Act liability
insurance, if the Obligors desire such insurance, (viii) fees and expenses of
the Trustee and its counsel, (ix) fees and expenses of all other Persons
retained by the Obligors, (x) internal expenses of the Obligors (including,
without limitation, all salaries and expenses of officers and employees of the
Obligors performing legal or accounting duties), (xi) the expense of any annual
audit, (xii) the fees and expenses incurred in connection with any 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, underwriting agreements, indentures, securities sales agreements and
any other documents necessary in order to comply with this Agreement. In the
event of an underwritten offering of Registrable Notes the Company shall not be
responsible for any "roadshow" expenses in connection therewith.
(b) In connection with any Shelf Registration here-under, the
Obligors, jointly and severally, shall reimburse the Holders of the Registrable
Notes being registered in such registration for the reasonable fees and
disbursements of not more than one counsel (in addition to appropriate local
counsel) chosen by the Holders of a majority in aggregate principal amount at
maturity of the Registrable Notes to be included in such Registration Statement
and other reasonable out-of-pocket expenses of the Holders of Registrable Notes
incurred in connection with the registration of the Registrable Notes.
(c) Notwithstanding any of the foregoing, the Obligors shall
not have any obligation to pay any underwriting fees, discounts or commissions
attributable to the sale of Registrable Notes.
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7. Indemnification
(a) Each Obligor, jointly and severally, agrees to indemnify
and hold harmless each Holder of Registrable Notes and each Participating
Broker-Dealer selling Exchange Notes during the Applicable Period, the officers
and directors of each such Person, and each Person, if any, who controls any
such Person within the meaning of either Section 15 of the Securities Act or
Section 20 of the Exchange Act (each, a "Participant"), from and against any and
all losses, claims, damages and liabilities (including, without limitation, the
reasonable legal fees and other expenses actually incurred in connection with
any suit, action or proceeding or any claim asserted) caused by, arising out of
or based upon any untrue statement or alleged untrue statement of a material
fact contained in any Registration Statement or Prospectus (as amended or
supplemented if the Company shall have furnished any amendments or supplements
thereto) or any preliminary Prospectus, or caused by, arising out of or based
upon any omission or alleged omission to state therein a material fact required
to be stated therein or necessary to make the statements therein, in the 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 Participant furnished
to the Company in writing by such Participant expressly for use therein;
provided that the foregoing indemnity with respect to any preliminary Prospectus
shall not inure to the benefit of any Participant (or to the benefit of an
officer or director of such Participant or any Person controlling such
Participant) from whom the Person asserting any such losses, claims, damages or
liabilities purchased Registrable Notes or Exchange Notes if such untrue
statement or omission or alleged untrue statement or omission made in such
preliminary Prospectus is eliminated or remedied in the related Prospectus (as
amended or supplemented if the Company shall have furnished any amendments or
supplements thereto) and a copy of the related Prospectus (as so amended or
supplemented) shall have been furnished to such Participant at or prior to the
sale of such Registrable Notes or Exchange Notes, as the case may be, to such
Person.
(b) Each Participant will be required to agree, severally and
not jointly, to indemnify and hold harmless the Obligors, their respective
directors and officers and each Person who controls any of the Obligors within
the meaning of Section 15 of the Securities Act or Section 20 of the Exchange
Act to the same extent
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as the foregoing indemnity from the Obligors to each Participant, but only with
reference to information relating to such Participant furnished to the Obligors
in writing by such Participant expressly for use in any Registration Statement
or Prospectus, any amendment or supplement thereto, or any preliminary
Prospectus. The liability of any Participant under this paragraph (b) shall in
no event exceed the proceeds received by such Participant from sales of
Registrable Notes or Exchange Notes giving rise to such obligations.
(c) 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 paragraph (a) or (b) of this Section 7, such Person (the "Indemnified
Person") shall promptly notify the Person against whom such indemnity may be
sought (the "Indemnifying Person") in writing, and the Indemnifying Person, upon
request of the Indemnified Person, shall retain one counsel reasonably
satisfactory to the Indemnified Person to represent the Indemnified Person and
any others the Indemnifying Person may reasonably designate in such proceeding
and shall pay the reasonable fees and expenses incurred by such counsel related
to such proceeding. In any such proceeding, any Indemnified Person 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 Person unless (i) the Indemnifying
Person and the Indemnified Person shall have mutually agreed in writing to the
contrary, (ii) the Indemnifying Person has failed to retain counsel reasonably
satisfactory to the Indemnified Person or (iii) the named parties in any such
proceeding (including any impleaded parties) include both the Indemnifying
Person and the Indemnified Person and such Indemnified Person shall have been
advised by counsel that there may be one or more legal defenses available to it
which are different from or additional to those available to any such
Indemnifying Person. It is understood that the Indemnifying Person shall not, in
connection with any proceeding or related proceeding in the same jurisdiction,
be liable for the reasonable fees and expenses of more than one separate law
firm (in addition to any local counsel) for all Indemnified Persons, and that
all such reasonable fees and expenses shall be reimbursed as they are incurred.
Any such separate firm for the Participants and such control Persons of
Participants shall be designated in writing by Participants who sold a majority
in interest of Registrable Notes and Exchange Notes sold by all such
Participants and any such separate firm for the Obligors, their directors,
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their officers and such control Persons of the Obligors shall be designated in
writing by the Obligors. 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 is a final judgment for the plaintiff for
which the Indemnified Person is entitled to indemnification pursuant to this
Agreement, the Indemnifying Person agrees to indemnify any Indemnified Person
from and against any loss or liability by reason of such settlement or judgment.
Notwithstanding the foregoing sentence, if at any time an Indemnified Person
shall have requested an Indemnifying Person to reimburse the Indemnified Person
for reasonable fees and expenses incurred by counsel as contemplated by the
third sentence of this paragraph, the Indemnifying Person agrees that it shall
be liable for any settlement of any proceeding effected without its written
consent if (i) such settlement is entered into more than 60 days after receipt
by such Indemnifying Person of the aforesaid request and (ii) such Indemnifying
Person shall not have reimbursed the Indemnified Person in accordance with such
request prior to the date of such settlement; provided, however, that the
Indemnifying Person shall not be liable for any settlement effected without its
consent pursuant to this sentence if the Indemnifying Party is contesting, in
good faith, the request for reimbursement. No Indemnifying Person shall, without
the prior written consent of the Indemnified Person, effect any settlement of
any pending or threatened proceeding in respect of which any Indemnified Person
is a party and indemnity has been sought hereunder by such Indemnified Person,
unless such settlement includes an unconditional release (or any other release
reasonably acceptable to the Indemnified Person) of such Indemnified Person from
all liability on claims that are the subject matter of such proceeding.
(d) If the indemnification provided for in paragraphs (a) and
(b) of this Section 7 is unavailable to an Indemnified Person in respect of any
losses, claims, damages or liabilities referred to therein (other than as a
result of the proviso set forth in Section 7(a)), then each Indemnifying Person
under such paragraphs, in lieu of indemnifying such Indemnified Person
thereunder, shall contribute to the amount paid or payable by such Indemnified
Person as a result of such losses, claims, damages or liabilities in such
proportion as is appropriate to reflect the relative fault of the Obligors on
the one hand and the Participants on the other in connection with the statements
or omissions that resulted in such losses, claims, damages or liabilities, as
well as any other relevant equitable considerations. The
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relative fault of the Obligors on the one hand and the Participants 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 Obligors or by
the Participants and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or omission.
(e) 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 the Participants 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 Person as a result of the losses,
claims, damages and liabilities referred to in the immediately preceding
paragraph shall be deemed to include, subject to the limitations set forth
above, any reasonable legal or other expenses actually incurred by such
Indemnified Person in connection with investigating or defending any such action
or claim. Notwithstanding the provisions of this Section 7, in no event shall a
Participant be required to contribute any amount in excess of the amount by
which proceeds received by such Participant from sales of Registrable Notes or
Exchange Notes exceeds the amount of any damages that such Participant 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.
(f) The indemnity and contribution agreements contained in
this Section 7 will be in addition to any liability which the Indemnifying
Persons may otherwise have to the Indemnified Persons referred to above.
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8. Rules 144 and 144A
Each Obligor covenants that it will file the reports required
to be filed by it under the Securities Act and the Exchange Act and the rules
and regulations adopted by the SEC thereunder in a timely manner and, if at any
time the Company is not required to file such reports, it will, upon the request
of any Holder of Registrable Notes, make publicly available other information of
a like nature so long as necessary to permit sales pursuant to Rule 144 or Rule
144A. Each Obligor further covenants that so long as any Registrable Notes
remain outstanding to make available to any Holder of Registrable Notes in
connection with any sale thereof, the information required by Rule 144A(d) (4)
under the Securities Act in order to permit resales of such Registrable Notes
pursuant to (a) such Rule 144A, or (b) any similar rule or regulation hereafter
adopted by the SEC.
9. Underwritten Registrations
If any of the Registrable Notes covered by any Shelf
Registration are to be sold in an underwritten offering, the investment banking
firm or firms that will underwrite the offering and the manager or managers that
will manage the offering will be selected by the Holders of a majority in
aggregate principal amount of such Registrable Notes included in such offering
and shall be reasonably acceptable to the Obligors.
No Holder of Registrable Notes may participate in any
underwritten offering hereunder unless such Holder (a) agrees to sell such
Holder's Registrable Notes 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 reasonably
required under the terms of such underwriting arrangements.
29
<PAGE>
10. Miscellaneous
(a) Remedies. In the event of a breach by any Obligor of any
of its obligations under this Agreement, other than the occurrence of an event
which requires payment of Additional Interest, each Holder of Registrable Notes,
in addition to being entitled to exercise all rights provided herein, in the
Indenture, or, in the case of the Initial 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. Each Obligor, jointly and
severally, agrees that monetary damages would not be adequate compensation for
any loss incurred by reason of a breach by it of any of the provisions of this
Agreement and hereby further agrees, jointly and severally, that, in the event
of any action for specific performance in respect of such breach, it shall waive
the defense that a remedy at law would be adequate.
(b) Enforcement. The Trustee shall be authorized to enforce
the provisions of this Agreement for the ratable benefit of the Holders.
(c) No Inconsistent Agreements. No Obligor has entered, as of
the date hereof, and no Obligor shall enter, after the date of this Agreement,
into any agreement with respect to any of their securities that is inconsistent
with the rights granted to the Holders of Registrable Notes in this Agreement or
otherwise conflicts with the provisions hereof. No Obligor has entered or will
enter into any agreement with respect to any of its securities which will grant
to any Person piggy-back rights with respect to a Registration Statement
required to be filed under this Agreement.
(d) Adjustments Affecting Registrable Notes. No Obligor shall,
directly or indirectly, take any action with respect to the Registrable Notes as
a class that would adversely affect the ability of the Holders of Registrable
Notes to include such Registrable Notes in a registration undertaken pursuant to
this Agreement.
(e) Amendments and Waivers. The provisions of this Agreement,
including the provisions of this sentence, may not be amended, modified or
supplemented, and waivers or consents to departures from the provisions hereof
may not be given, unless the Obligors have obtained the written consent of
Holders of at least a majority of the then outstanding aggregate principal
amount at maturity of Registrable Notes. Notwithstanding the foregoing, a waiver
or consent to depart from the provisions hereof with respect to a matter that
relates exclusively to the rights of Holders of Registrable Notes whose
securities are being sold pursuant to a
30
<PAGE>
Registration Statement and that does not directly or indirectly affect, impair,
limit or compromise the rights of other Holders of Registrable Notes may be
given by Holders of at least a majority in aggregate principal amount at
maturity of the Registrable Notes 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.
(f) 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 courier or telecopier:
(i) if to a Holder of Registrable Notes or any Participating
Broker-Dealer, at the most current address given by the Trustee to the
Obligors; and
(ii) if to the Obligors, to Radio Unica Corp., 8400 N.W. 52nd
Street, Suite 101, Miami, FL 33166, Attention: Chief Financial Officer,
with a copy to Skadden, Arps, Slate, Meagher & Flom LLP, 1440 New York
Avenue, N.W., Washington, D.C. 20005-2111, Attention: C. Kevin
Barnette, Esq.
All such notices and communications shall be deemed to have
been duly given: (i) when delivered by hand, if personally delivered; (ii) five
business days after being deposited in the mail, postage prepaid, if mailed;
(iii) one business day after being timely delivered to a next-day courier; and
(iv) when receipt is acknowledged by the addressee, if telecopied.
(g) Successors and Assigns. This Agreement shall inure to the
benefit of and be binding upon the successors and assigns of each of the
parties, including without limitation and without the need for an express
assignment, subsequent Holders of Registrable Notes; provided that, with respect
to the indemnity and contribution agreements in Section 7, each Holder of
Registrable Notes subsequent to the Initial Purchasers shall be bound by the
terms thereof if such Holder elects to include Registrable Notes in a Shelf
Registration; provided, how ever, that this Agreement shall not inure to the
benefit of or be binding upon a successor or assign of a Holder unless and
except to the extent such successor or assign holds Registrable Notes.
31
<PAGE>
(h) 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.
(i) Headings. The headings in this Agreement are for
convenience of reference only and shall not limit or otherwise affect the
meaning hereof.
(j) Governing 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 PER FORMED WITHIN THE STATE OF NEW YORK, WITHOUT REGARD TO
PRINCIPLES OF CONFLICTS OF LAW. EACH OF THE PARTIES HERETO AGREES 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.
(k) 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 reasonable 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.
(l) Entire Agreement. This Agreement, together with the
Purchase Agreement and the Indenture, is intended by the parties 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.
(m) Joint and Several Obligations. Unless otherwise stated
herein, each of the obligations of the Obligors under this Agreement shall be
joint and several obligations of each of them.
(n) Notes Held by the Obligors or Their Affiliates. Whenever
the consent or approval of Holders of a specified percentage of Registrable
Notes is required hereunder, Registrable Notes held by the Obligors or their
affiliates (as such term is defined in Rule 405 under the Securities Act) shall
not be counted in deter-
32
<PAGE>
mining whether such consent or approval was given by the Holders of such
required percentage.
33
<PAGE>
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.
Very truly yours,
RADIO UNICA CORP.
By: /s/ Joaquin F. Blaya
---------------------------------
Name: Joaquin F. Blaya
Title: Chairman and Chief
Executive Officer
RADIO UNICA OF SAN FRANCISCO INC.
By: /s/ Joaquin F. Blaya
---------------------------------
Name: Joaquin F. Blaya
Title: Chairman and Chief
Executive Officer
ORO SPANISH BROADCASTING, INC.
By: /s/ Joaquin F. Blaya
---------------------------------
Name: Joaquin F. Blaya
Title: Chairman and Chief
Executive Officer
34
<PAGE>
RADIO UNICA OF SAN FRANCISCO
LICENSE CORP.
By: /s/ Joaquin F. Blaya
---------------------------------
Name: Joaquin F. Blaya
Title: Chairman and Chief
Executive Officer
RADIO UNICA OF MIAMI, INC.
By: /s/ Joaquin F. Blaya
---------------------------------
Name: Joaquin F. Blaya
Title: Chairman and Chief
Executive Officer
RADIO UNICA OF MIAMI LICENSE CORP.
By: /s/ Joaquin F. Blaya
---------------------------------
Name: Joaquin F. Blaya
Title: Chairman and Chief
Executive Officer
RADIO UNICA OF LOS ANGELES, INC.
By: /s/ Joaquin F. Blaya
---------------------------------
Name: Joaquin F. Blaya
Title: Chairman and Chief
Executive Officer
RADIO UNICA OF LOS ANGELES LICENSE
CORP.
By: /s/ Joaquin F. Blaya
---------------------------------
Name: Joaquin F. Blaya
Title: Chairman and Chief
Executive Officer
35
<PAGE>
RADIO UNICA OF SAN ANTONIO, INC.
By: /s/ Joaquin F. Blaya
---------------------------------
Name: Joaquin F. Blaya
Title: Chairman and Chief
Executive Officer
RADIO UNICA NETWORK, INC.
By: /s/ Joaquin F. Blaya
---------------------------------
Name: Joaquin F. Blaya
Title: Chairman and Chief
Executive Officer
RADIO UNICA SALES CORP.
By: /s/ Joaquin F. Blaya
---------------------------------
Name: Joaquin F. Blaya
Title: Chairman and Chief
Executive Officer
36
<PAGE>
1. The foregoing Agreement is
2. hereby confirmed and accepted as
3. of the date first above written.
4. CIBC OPPENHEIMER CORP.
5. BY: /s/ Dan Schrupp
------------------------------
6. Name: Dan Schrupp
7. Title: Director
8. BEAR, STEARNS & CO. INC.
9. By:
------------------------------
10. Name:
11. Title:
37
<PAGE>
1. The foregoing Agreement is
2. hereby confirmed and accepted as
3. of the date first above written.
4. CIBC OPPENHEIMER CORP.
5. BY:
------------------------------
6. Name:
7. Title:
8. BEAR, STEARNS & CO. INC.
9. By: /s/ Mark Goldstein
------------------------------
10. Name: Mark Goldstein
11. Title: Managing Director
38
<PAGE>
Exhibit 10.5
CONTRIBUTION AGREEMENT
CONTRIBUTION AGREEMENT (this "Agreement") is entered into as
of July 8, 1998 among RADIO UNICA OF SAN FRANCISCO, RADIO UNICA OF MIAMI, INC.,
RADIO UNICA OF LOS ANGELES, INC., ORO SPANISH BROADCASTING, INC., RADIO UNICA OF
MIAMI LICENSE CORP., RADIO UNICA OF LOS ANGELES LICENSE CORP., RADIO UNICA OF
SAN FRANCISCO LICENSE CORP., RADIO UNICA OF SAN ANTONIO, INC., RADIO UNICA
NETWORK, INC. AND RADIO UNICA SALES CORP., each a Delaware corporation, (each a
"Subsidiary" and, collectively, the "Subsidiaries").
W I T N E S S E T H :
WHEREAS, Radio Unica Corp., a Delaware corporation (the
"Borrower") has entered into the Credit Agreement dated as of July 8, 1998
between the Borrower, the several banks and other financial instituions from
time to time party thereto (the "Lenders") and Canadian Imperial Bank of
Commerce, as agent for the Lenders (the "Agent") (as further amended,
supplemented, waived or otherwise modified from time to time, the "Credit
Agreement"; terms defined therein being used herein as defined therein); and
WHEREAS, in connection therewith, each Subsidiary has entered
into a Guarantee dated as of the date hereof in favor of the Agent for the
benefit of the Lenders, pursuant to which such Subsidiary has guaranteed all the
Obligations of the Borrower (such Guarantees, as the same may be amended,
supplemented or modified from time to time, are collectively referred to as the
"Subsidiary Guarantees"); and
WHEREAS, the Borrower owns, directly or indirectly, all the
Capital Stock of each of the Subsidiaries and each of the Subsidiaries derives
substantial direct and indirect benefit from the Borrower entering into the
Credit Agreement and obtaining Loans thereunder;
NOW, THEREFORE, in consideration of the premises and the
covenants hereafter contained, and to induce each of the Subsidiaries to enter
into its respective Subsidiary Guarantee, it is agreed as follows:
The parties agree as among themselves that, to the extent any
payment of the Obligations of the Borrower is required to be made under a
Subsidiary Guarantee, each Subsidiary shall be responsible for a portion of such
payment equal to the product of (a) a fraction, the numerator of which is the
net worth (determined in accordance with GAAP) of such Subsidiary on the date of
such payment and the denominator of which is the aggregate net worth (computed
as aforesaid) of the Subsidiaries (such fraction is referred to in the case of
any Subsidiary as its "Net Worth Fraction"), multiplied by (b) the amount of
such payment (such product being such Subsidiary's "Contribution Amount"). To
the extent that any Subsidiary (the
<PAGE>
"Paying Subsidiary") shall make a payment in respect of the Obligations of the
Borrower under its Subsidiary Guarantee in excess of its Contribution Amount,
each of the other Subsidiaries shall reimburse the Paying Subsidiary in an
amount equal to the excess of such other Subsidiary's Contribution Amount over
the amount actually paid by such other Subsidiary (if any); provided, that in no
event will such other Subsidiary pay an aggregate amount in excess of its
Contribution Amount.
This Agreement is only intended to define the relative rights
of the Subsidiaries, and nothing set forth in this Agreement is intended to or
shall impair the obligations of the Subsidiaries, jointly and severally, to pay
to the Lender the Obligations as and when the same shall become due and payable
in accordance with the terms of their respective Subsidiary Guarantees.
The parties hereto acknowledge that the right to contribution
hereunder shall constitute an asset of the Subsidiaries to which such
contribution is owing.
The parties hereto acknowledge and agree that the Agent and
the Lenders are intended third-party beneficiaries of this Agreement and that
this Agreement may not be terminated, amended or modified in a manner that would
adversely affect the Lenders without the prior written consent of the Lenders.
The parties hereto acknowledge and agree that this Agreement
has been entered into to support the arrangement set forth in the Credit
Agreement, which is governed by the laws of the State of New York. The parties
hereto desire that this Agreement be interpreted in a manner consistent with the
interpretation of the Credit Agreement and to that end have agreed that this
Agreement will be governed by and construed in accordance with the laws of the
State of New York and in such selection have relied, among other items, upon
Section 5-1401 of the General Obligations Law of the State of New York.
2
<PAGE>
IN WITNESS WHEREOF, each of the Subsidiaries has executed and
delivered this Agreement as of the date first above written.
RADIO UNICA OF SAN FRANCISCO
RADIO UNICA OF MIAMI, INC.
RADIO UNICA OF LOS ANGELES, INC.
ORO SPANISH BROADCASTING, INC.
RADIO UNICA OF MIAMI LICENSE CORP.
RADIO UNICA OF LOS ANGELES LICENSE CORP.
RADIO UNICA OF SAN FRANCISCO LICENSE CORP.
RADIO UNICA OF SAN ANTONIO, INC.
RADIO UNICA NETWORK, INC.
RADIO UNICA SALES CORP.
By:/s/
----------------------------------------
Name:
Title:
<PAGE>
Exhibit 10.6
INTELLECTUAL PROPERTY SECURITY AGREEMENT
THIS INTELLECTUAL PROPERTY SECURITY AGREEMENT (the
"Agreement") is made as of July 8, 1998, by and between RADIO UNICA CORP., a
Delaware corporation (the "Grantor" or the "Borrower") and CANADIAN IMPERIAL
BANK OF COMMERCE, as agent for the Lenders (in such capacity, the "Agent") under
the Credit Agreement dated as of July 8, 1998 (as further amended, restated,
supplemented or otherwise modified from time to time, the "Credit Agreement")
among RADIO UNICA HOLDINGS CORP., a Delaware corporation (the "Parent"), the
Borrower, the several banks and other financial institutions from time to time
parties thereto (the "Lenders") and the Agent.
W I T N E S S E T H:
WHEREAS, pursuant to the Credit Agreement, the Lenders have
severally agreed to make Loans to the Grantor upon the terms and subject to the
conditions set forth therein, to be evidenced by the Notes issued by the Grantor
thereunder; and
WHEREAS, it is a condition precedent to the obligation of the
Lenders to make their respective Loans to the Grantor under the Credit Agreement
that the Grantor shall have executed and delivered this Agreement to the Agent
for the ratable benefit of the Lenders;
NOW, THEREFORE, in consideration of the premises and to induce
the Agent and the Lenders to enter into the Credit Agreement and the Lenders to
make their respective Loans to the Grantor under the Credit Agreement, the
Grantor hereby agrees with the Agent, for the ratable benefit of the Lenders, as
follows:
1. Defined Terms.
(a) Unless otherwise defined herein, each capitalized term
used herein that is defined in the Credit Agreement shall have the meaning
specified for such term in the Credit Agreement. Unless otherwise defined herein
or in the Credit Agreement, all terms defined in Article 9 of the Uniform
Commercial Code in effect as of the date hereof in the State of New York are
used herein as defined therein as of the date hereof.
(b) The words "hereof", "herein" and "hereunder" and words of
like import when used in this Agreement shall refer to this Agreement as a whole
and not to any particular provision of this Agreement, and section references
are to this Agreement unless otherwise specified.
(c) All terms defined in this Agreement in the singular shall
have comparable meanings when used in the plural, and vice versa, unless
otherwise specified.
<PAGE>
2. Security Interest in Trademarks. To secure the complete and
timely payment, performance and satisfaction of all the Obligations, the Grantor
hereby grants to the Agent, for the benefit of the Agent and the Lenders, a
security interest in, as and by way of a first mortgage and security interest
having priority over all other security interests, with power of sale to the
extent permitted by applicable law, all the Grantor's now owned or existing and
hereafter acquired or arising:
(i) trademarks, registered trademarks, trademark applications,
service marks, registered service marks and service mark applications,
including, without limitation, the trademarks, registered trademarks,
trademark applications, service marks, registered service marks and
service mark applications (in each case, if any) listed on Schedule A
attached hereto and made a part hereof, and (a) all renewals thereof,
(b) all income, royalties, damages and payments now and hereafter due
and/or payable under and with respect thereto, including, without
limitation, payments under all licenses entered into in connection
therewith and damages and payments for past or future infringements or
dilutions thereof, (c) the right to sue for past, present and future
infringements and dilutions thereof, (d) the goodwill of the Grantor's
business symbolized by the foregoing and connected therewith, and (e)
all the Grantor's rights corresponding thereto throughout the world
(all the foregoing trademarks, registered trademarks and trademark
applications, and service marks, registered service marks and service
mark applications, together with the items described in clauses (a)-(e)
in this paragraph 2(i), are sometimes hereinafter individually and/or
collectively referred to as the "Trademarks"); and
(ii) rights under or interest in any trademark license
agreements or service mark license agreements with any other party,
whether the Grantor is a licensee or licensor under any such license
agreement, including, without limitation, those trademark license
agreements and service mark license agreements listed on Schedule B
attached hereto and made a part hereof, in each case to the extent
assignable without violation thereof, together with any goodwill
connected with and symbolized by any such trademark license agreements
or service mark license agreements, and the right (if and to the extent
the Grantor has such right) to prepare for sale and sell any and all
Inventory now or hereafter owned by the Grantor and now or hereafter
covered by such licenses (all the foregoing are hereinafter referred to
collectively as the "Licenses").
3. Restrictions on Future Agreements. The Grantor will not,
without the Agent's prior written consent, enter into any agreement, including,
without limitation, any license agreement, which is inconsistent with this
Agreement, and the Grantor further agrees that, without the Agent's prior
written consent which will not be unreasonably withheld, it will not take any
action, and will use its best efforts not to permit any action to be taken by
others, including, without limitation, licensees, or fail to take any action,
which would in any respect adversely affect the validity or enforcement of the
rights transferred to the Agent under this Agreement or the rights associated
with any material Trademarks or Licenses, and in particular, the Grantor will
not permit to lapse or become abandoned any Trademark or License, except in
-2-
<PAGE>
the event such License terminates by its terms or is not, consistent with
ordinary business practices, renewed by Grantor.
4. New Trademarks and Licenses. The Grantor represents and
warrants that (a) the Trademarks listed on Schedule A include all the registered
trademarks, common law trademarks, trademark applications, registered service
marks and service mark applications now owned or held by the Grantor, (b) the
Licenses listed on Schedule B include all the trademark license agreements and
service mark license agreements under which the Grantor is the licensee or
licensor and which are material individually or in the aggregate to the
operation of the business of the Grantor and (c) other than the rights of any
party to the Licenses with respect to the Trademarks, no Liens in such
Trademarks and Licenses have been granted by the Grantor to any Person other
than the Agent. If, prior to the termination of this Agreement, the Grantor
shall (i) obtain rights to any new trademarks, registered trademarks, trademark
applications, service marks, registered service marks or service mark
applications, (ii) become entitled to the benefit of any trademarks, registered
trademarks, trademark applications, trademark licenses, trademark license
renewals, service marks, registered service marks, service mark applications,
service mark licenses or service mark license renewals whether as licensee or
licensor, or (iii) enter into any new trademark license agreement or service
mark license agreement, the provisions of paragraph 3 above shall automatically
apply thereto. The Grantor shall give to the Agent written notice of events
described in clauses (i), (ii) and (iii) of the preceding sentence within 30
days of the occurrence of any such event. The Grantor hereby authorizes the
Agent to modify this Agreement unilaterally (i) by amending Schedule A to
include any future trademarks, registered trademarks, trademark applications,
service marks, registered service marks and service mark applications owned or
held by Grantor or to prepare this Agreement for filing with the Patent and
Trademark Office and by amending Schedule B to include any trademark license
agreements and service mark license agreements to which Grantor becomes a party,
which are Trademarks or Licenses under paragraph 2 above or are described in
this paragraph 4, and (ii) by filing with the U.S. Patent and Trademark Office,
in addition to and not in substitution for this Agreement, a duplicate original
of this Agreement containing on Schedule A or B thereto, as the case may be,
such future trademarks, registered trademarks, trademark applications, service
marks, registered service marks and service mark applications, and trademark
license agreements and service mark license agreements.
5. Royalties. The Grantor hereby agrees that the use by the
Agent of the Trademarks and Licenses as authorized hereunder in connection with
the Agent's exercise of its rights and remedies under paragraph 13 or pursuant
to the Security Agreements shall be coextensive with the Grantor's rights
thereunder and with respect thereto and without any liability for royalties or
other related charges from the Agent and the Lenders to the Grantor.
6. Further Assignments and Security Interests. The Grantor
agrees not to sell or assign its respective interests in, or grant any license
under, the Trademarks or the Licenses without the prior and express written
consent of the Agent, except licenses granted in the ordinary course of
business.
-3-
<PAGE>
7. Nature and Continuation of the Agent's Security Interest;
Termination of the Agent's Security Interest; Release of Collateral. This
Agreement is made for collateral security purposes only. This Agreement shall
create a continuing security interest in the Trademarks and Licenses and shall
terminate only when the Obligations have been paid in full in cash and the
Credit Agreement and the Security Agreements have been terminated. Upon such
termination and at the written request of the Grantor or its successors or
assigns, and at the cost and expense of the Grantor or its successors or
assigns, the Agent shall execute in a timely manner such instruments, documents
or agreements as are necessary or desirable to terminate the Agent's security
interest in the Trademarks and the Licenses, subject to any disposition thereof
which may have been made by the Agent pursuant to this Agreement or the Security
Agreement of even date herewith signed by the Grantor.
8. Duties of the Grantor. The Grantor shall have the duty (i)
to prosecute diligently any material trademark application or service mark
application that is part of the Trademarks pending as of the date hereof or
hereafter until the termination of this Agreement and (ii) to make any
application for and diligently prosecute the registration of any trademark or
service mark that the Grantor has not obtained as of the date hereof which the
Agent, after consultation with the Grantor, reasonably determines may have
significant value and to be registrable. The Grantor further agrees (i) not to
abandon any Trademark or License without the prior written consent of the Agent
if such abandonment would have a Material Adverse Effect, and (ii) to use its
reasonable best efforts to obtain and maintain in full force and effect the
Trademarks and the Licenses that are or shall be necessary or economically
desirable in the operation of the Grantor's business. Any expenses incurred in
connection with the foregoing shall be borne by the Grantor. Neither the Agent
nor any of the Lenders shall have any duty with respect to the Trademarks and
Licenses. Without limiting the generality of the foregoing, neither the Agent
nor any of the Lenders shall be under any obligation to take any steps necessary
to preserve rights in the Trademarks or Licenses against any other parties, but
the Agent may do so at its option from and after the occurrence of an Event of
Default, and all expenses incurred in connection therewith shall be for the sole
account of the Grantor and shall be added to the Obligations secured hereby.
9. The Agent's Right to Sue. Upon the occurrence and during
the continuance of an Event of Default, the Agent shall have the right, but
shall not be obligated, to bring suit in its own name to enforce the Trademarks
and the Licenses and, if the Agent shall commence any such suit, the Grantor
shall, at the request of the Agent, do any and all lawful acts and execute any
and all proper documents required by the Agent in aid of such enforcement. The
Grantor shall, upon demand, promptly reimburse the Agent for all actual costs
and expenses incurred by the Agent in the exercise of its rights under this
paragraph 9 (including, without limitation, reasonable fees and expenses of
counsel for the Agent).
10. Waivers. The Agent's failure, at any time or times
hereafter, to require strict performance by the Grantor of any provision of this
Agreement shall not waive, affect or diminish any right of the Agent thereafter
to demand strict compliance and performance therewith nor shall any course of
dealing between the Grantor and the Agent have such effect.
-4-
<PAGE>
No single or partial exercise of any right hereunder shall preclude any other or
further exercise thereof or the exercise of any other right. None of the
undertakings, agreements, warranties, covenants and representations of the
Grantor contained in this Agreement shall be deemed to have been suspended or
waived by the Agent unless such suspension or waiver is in writing signed by an
officer of the Agent and directed to the Grantor specifying such suspension or
waiver.
11. Severability. If any provision of this Agreement is held
to be prohibited or unenforceable in any jurisdiction the substantive laws of
which are held to be applicable hereto, such prohibition or unenforceability
shall not affect the validity or enforceability of the remaining provisions
hereof and shall not invalidate or render unenforceable such provision in any
other jurisdiction.
12. Modification. This Agreement cannot be altered, amended or
modified in any way, except as specifically provided in paragraph 4 hereof or by
a writing signed by the parties hereto.
13. Cumulative Remedies; Power of Attorney. The Grantor
agrees, upon the request of the Agent and promptly following such request, to
take any action and execute any instrument which the Agent may deem necessary or
advisable to accomplish the purposes of this Agreement. The Grantor hereby
irrevocably designates, constitutes and appoints the Agent (and all Persons
designated by the Agent in its sole and absolute discretion) as the Grantor's
true and lawful attorney-in-fact, and authorizes the Agent and any of the
Agent's designees, in the Grantor's or the Agent's name, from and after the
occurrence and during the continuance of an Event of Default, to take any action
and execute any instrument which the Agent may deem necessary or advisable to
accomplish the purposes of this Agreement, including, without limitation, (i) to
endorse the Grantor's name on all applications, documents, papers and
instruments necessary or desirable for the Agent in the use, prosecution or
protection of the Trademarks or the Licenses, (ii) to assign, pledge, convey or
otherwise transfer title in or dispose of the Trademarks or the Licenses to
anyone on commercially reasonable terms, (iii) to grant or issue any exclusive
or nonexclusive license under the Trademarks or under the Licenses, to anyone on
commercially reasonable terms, and (iv) to take any other actions with respect
to the Trademarks or, to the extent permitted, the Licenses as the Agent deems
in its own or the Lenders' best interest. The Grantor hereby ratifies all that
such attorney shall lawfully do or, to the extent permitted, cause to be done by
virtue hereof. This power of attorney is coupled with an interest and shall be
irrevocable until all the Obligations shall have been paid in full in cash and
the Credit Agreement shall have been terminated. The Grantor acknowledges and
agrees that this Agreement is not intended to limit or restrict in any way the
rights and remedies of the Agent or the other Lenders under the Agreement, but
rather is intended to facilitate the exercise of such rights and remedies.
The Agent shall have, in addition to all other rights and
remedies given it by the terms of this Agreement, all rights and remedies
allowed by law and the rights and remedies of a secured party under the Uniform
Commercial Code as enacted in any jurisdiction in which the
-5-
<PAGE>
Trademarks or the Licenses may be located or deemed located. If an Event of
Default has occurred and is continuing and the Agent has elected to exercise any
of its remedies under Section 9-504 or Section 9-505 of the Uniform Commercial
Code with respect to the Trademarks and Licenses, the Grantor agrees to assign,
convey and otherwise transfer title in and to the Trademarks and the Licenses to
the Agent or any transferee of the Agent and to execute and deliver to the Agent
or any such transferee all such agreements, documents and instruments as may be
necessary, in the Agent's sole discretion, to effect such assignment, conveyance
and transfer. All the Agent's rights and remedies with respect to the Trademarks
and the Licenses, whether established hereby, by the Security Agreements, by any
other agreements or by law, shall be cumulative and may be exercised separately
or concurrently. Notwithstanding anything set forth herein to the contrary, it
is hereby expressly agreed that if an Event of Default has occurred and is
continuing, the Agent may exercise any of the rights and remedies provided in
this Agreement, the Security Agreements and any of the other Loan Documents. The
Grantor agrees that any notification of intended disposition of any of the
Trademarks and Licenses required by law shall be deemed reasonably and properly
given if given at least ten (10) days before such disposition; provided,
however, that the Agent may give any shorter notice that is commercially
reasonable under the circumstances.
14. Successors and Assigns. This Agreement shall be binding
upon the Grantor and its successors and assigns, and shall inure to the benefit
of each of the Lenders and its nominees, successors and assigns. The Grantor's
successors and assigns shall include, without limitation, a receiver, trustee or
debtor-in-possession of or for the Grantor; provided, however, that the Grantor
shall not voluntarily assign or transfer its rights or obligations hereunder
without the Agent's prior written consent.
15. Governing Law. This Agreement shall be governed by, and be
construed and interpreted in accordance with, the law (without regards to
conflict of law provisions (other than Section 5-1401 of the General Obligations
Law)) of the State of New York, except for perfection and enforcement of
security interests and liens in other jurisdictions to the extent the law of
another jurisdiction, is pursuant to the laws of such jurisdiction, mandatorily
applicable.
16. Notices. All notices or other communications hereunder
shall be given in the manner and to the addresses set forth in Section 10.2 of
the Credit Agreement.
17. Authority of Agent. The Grantor acknowledges that the
rights and responsibilities of the Agent under this Agreement with respect to
any action taken by the Agent or the exercise or non-exercise by the Agent of
any option, right, request, judgment or other right or remedy provided for
herein or resulting or arising out of this Agreement shall, as between the Agent
and the Lenders, be governed by the Credit Agreement and by such other
agreements with respect thereto as may exist from time to time among them, but,
as between the Agent and the Grantor, the Agent shall be conclusively presumed
to be acting as agent for the Lenders with full and valid authority so to act or
refrain from acting, and the Grantor shall not be under any obligation, or
entitlement, to make any inquiry respecting such authority.
-6-
<PAGE>
18. Termination; Release. Upon the repayment of all the
Obligations in full and the termination of the Commitments, this Agreement shall
terminate, and the Agent, at the request and expense of the Grantor, will
promptly execute and deliver to the Grantor the proper instruments acknowledging
the termination of this Agreement, and will duly assign, transfer and deliver to
Grantor (without recourse and without any representation or warranty of any
kind) such of the Collateral as may be in the possession of the Agent and has
not theretofore been disposed of or otherwise applied or released.
19. Reinstatement. This Agreement shall continue to be
effective or be reinstated, as the case may be, if at any time any amount
received by the Lenders in respect of the Obligations is rescinded or must
otherwise be restored or returned by such Lender upon the insolvency,
bankruptcy, dissolution, liquidation or reorganization of the Grantor or upon
the appointment of any intervenor or conservator of, or trustee or similar
official for, the Grantor or any substantial part of its assets, or upon the
entry of an order by a bankruptcy court avoiding payment of such amount, or
otherwise, all as though such payments had not been made.
20. Section Titles. The section titles herein are for
convenience of reference only, and shall not affect in any way the
interpretation of any of the provisions hereof.
21. Execution in Counterparts. This Agreement may be executed
in any number of counterparts and by different 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.
22. Submission to Jurisdiction and Service of Process. The
Grantor agrees that the terms of Section 10.12 of the Credit Agreement with
respect to submission to jurisdiction and service of process shall apply equally
to this Agreement.
23. Waiver of Bond. The Grantor waives the posting of any bond
otherwise required of the Agent in connection with any judicial process or
proceeding to realize on any of the Trademarks or Licenses or any other security
for the Obligations, to enforce any judgment or other court order entered in
favor of the Agent, or to enforce by specific performance, temporary restraining
order, or preliminary or permanent injunction, this Agreement or any other
agreement or document between the Agent and the Grantor.
24. WAIVER OF JURY TRIAL. EACH OF THE GRANTOR AND THE AGENT
WAIVES ANY RIGHT TO TRIAL BY JURY IN ANY DISPUTE, WHETHER SOUNDING IN CONTRACT,
TORT, OR OTHERWISE, BETWEEN THE AGENT AND THE GRANTOR ARISING OUT OF OR RELATED
TO THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT OR ANY OTHER INSTRUMENT,
DOCUMENT, OR AGREEMENT EXECUTED OR DELIVERED IN CONNECTION HEREWITH. EITHER THE
GRANTOR OR THE AGENT MAY FILE AN ORIGINAL COUNTERPART OR A COPY OF THIS
AGREEMENT WITH ANY COURT AS
-7-
<PAGE>
WRITTEN EVIDENCE OF THE CONSENT OF THE PARTIES HERETO TO THE WAIVER OF THEIR
RIGHT TO TRIAL BY JURY.
25. Conflicts with Security Agreement. In the event of any
irreconcilable conflicts between the terms of this Agreement and of the Security
Agreement of even date herewith signed by the Grantor, the terms of this
Agreement shall be controlling.
-8-
<PAGE>
IN WITNESS WHEREOF, the parties hereto have duly
executed this Agreement as of the day and year first above written.
RADIO UNICA CORP.
By: /s/ Steven E. Dawson
--------------------------------
Name: Steven E. Dawson
Title: C.F.O.
CANADIAN IMPERIAL BANK OF COMMERCE,
as Agent
By: /s/ Deborah Strek
--------------------------------
Name: Deborah Strek
Title: Managing Director
<PAGE>
Schedule A
to
Intellectual Property Security Agreement
Dated as of July 8, 1998
Trademarks, etc., and Applications
Radio Unica Series 95-193,060 filed on November 1, 1996
<PAGE>
Schedule B
to
Intellectual Property Security Agreement
Dated as of July 8, 1998
License Agreements
None
<PAGE>
STATE OF NEW YORK )
) SS
COUNTY OF NEW YORK )
On the 8th day of July, 1998, before me personally came Steven
E. Dawson , to me known, who being by me duly sworn, did depose and say that
he/she resides at ______________________; that he/she is the Chief Financial
Officer of Radio Unica Corp., the corporation described in and which accepted
and agreed to the foregoing instrument; and that he/she signed his/her name
thereto by authority of the board of directors of said general partner.
/s/ David E. Philley
------------------------
Notary Public
[SEAL]
<PAGE>
STATE OF NEW YORK )
) SS
COUNTY OF NEW YORK )
On the 8 th day of July, 1998, before me personally came
Deborah Strek , to me known, who being by me duly sworn, did depose and say that
he/she resides at 425 Lexington Ave., NY NY 10017 ; that he/she is a Managing
Director of Canadian Imperial Bank of Commerce, the corporation described in and
which accepted and agreed to the foregoing instrument; and that he/she signed
his/her name thereto by authority of the board of directors of said corporation.
/s/ H. Scott Kenyon
---------------------------
Notary Public
[SEAL]
<PAGE>
Exhibit 10.10
TIME BROKERAGE AGREEMENT
THIS TIME BROKERAGE AGREEMENT ("Agreement"), dated as of October 31,
1997, is made and entered into by and between Radio Unica Corp., a Delaware
corporation ("Unica"), and Lotus Oxnard Corp., a California corporation
("Lotus").
WHEREAS, Lotus is the owner and operator of radio station KVCA, 670
kHz, licensed to Simi Valley, California (the "Station");
WHEREAS, Unica and Lotus have entered into that certain Option
Agreement, dated as of October 31, 1997 (the "Option Agreement"), pursuant to
which Lotus has granted to Unica an option (the "Option") to purchase
substantially all of the assets of the Station pursuant to the Asset Purchase
Agreement (the "Asset Purchase Agreement") attached as an exhibit to the Option
Agreement;
WHEREAS, Lotus desires to make available to Unica substantial
broadcasting time on the Station; and
WHEREAS, Unica is engaged in the business of radio broadcasting and
desires to avail itself of the Station's available broadcast time through
December 31, 2001.
NOW, THEREFORE, in consideration of the premises and the mutual
covenants and agreements herein contained, Unica and Lotus agree as follows:
1. Commencement Date and Facilities.
Commencing 12:01 a.m. on Monday, January 5, 1998 (the "Operational
Commencement Date"), Lotus shall broadcast, or cause to be broadcast, over the
Station transmission facilities certain programming, consisting of programs,
announcements and advertising (the "Programming"), originating at Unica's studio
and delivered to Lotus by Unica in compliance with the provisions of Section
5(a) of this Agreement. Unica shall deliver the Programming to Lotus's
transmitter site at Unica's exclusive cost, by means reasonably acceptable to
Lotus.
2. Term.
This Agreement is effective immediately and, unless sooner terminated,
extended or renewed as hereinafter provided, shall end on December 31, 2001 (the
"Initial Term"). In the event the Option is exercised by Unica, the Initial Term
of this Agreement shall end upon the Closing (as defined in the Asset Purchase
Agreement) or the termination of the Asset Purchase Agreement pursuant to the
terms thereof, it being expressly agreed and understood that termination of the
Asset Purchase Agreement shall not result in the Initial Term of this Agreement
ending prior to December 31, 2001. At any time prior to October 1, 2001, Unica,
at its sole option, by written notice to Lotus, may renew this Agreement, in
which case this Agreement, unless sooner terminated, shall end on December 31,
2004 (the "Renewal Term," and together with the Initial Term, the "Term").
<PAGE>
3. Payments by Unica.
(a) Unica hereby agrees to pay Lotus (i) during the Initial
Term, a quarterly fee (prorated for partial quarters) as provided in Attachment
A to this Agreement and (ii) if this Agreement is renewed pursuant to the last
sentence of Section 2, then, during the Renewal Term, a quarterly fee (prorated
for partial quarters) as provided in Attachment B to this Agreement. Amounts
payable by Unica to Lotus pursuant to this Agreement shall be payable in advance
without notice or demand on the first business day of each quarter during the
term hereof, except that Unica shall pay Lotus, on the date hereof, the full
amount due hereunder for the first quarter of 1998, such amount to be paid by
wire transfer of funds to an account specified by Lotus in writing. All payments
to Lotus hereunder shall be made without deductions or offset and shall be
non-refundable, except as otherwise provided in this Agreement. During the
Initial Term, Unica's obligation to make the payments called for by this Section
3(a) shall be secured as set forth in Section 20.1(i).
(b) Subsequent payments will be made by check delivered to
Lotus at 6290 Sunset Blvd., Suite 1600, Los Angeles, CA 90028, or such other
address as Lotus may select pursuant to Section 27 hereof, provided that, if
Lotus has given wire transfer instructions to Unica, Unica will be required to
make all payments by wire transfer of funds to the account specified by Lotus.
(c) Unica shall be solely responsible for and shall pay in a
timely manner all direct and indirect costs incurred by Unica in producing,
providing and delivering the Programming including, but not limited to, (i)
program costs, (ii) sales costs, (iii) Station advertising and promotion costs,
(iv) costs related to Unica's audio lines to Lotus's studio or transmitter, (v)
salaries, payroll taxes, insurance, health benefits and related costs of
personnel employed by Unica in connection with the Programming supplied to
Lotus, sales and promotion of radio time and, (vi) income, gross receipts,
sales, personal property, and other taxes of any nature whatsoever and costs
related to Unica's programming of the Station.
(d) The failure of Lotus to demand or insist upon timely and
full payment of any payment due hereunder, shall not constitute a waiver of
Unica's obligations under this Section 3.
4. Payments by Lotus.
Lotus shall be solely responsible for and shall pay in a timely manner
the following costs of the Station: (i) rents, utilities, insurance and
maintenance costs relating to the Station's tower and transmitter site
facilities and other real and personal property relating to, or used by, the
Station; (ii) Lotus's telephone, sale or delivery and postal service expenses
relating to the Station; (iii) the salaries, payroll taxes, insurance, health
benefits and related costs of personnel employed by Lotus in the operation of
the Station following the Operational Commencement Date; and (iv) income, gross
receipts, sales, personal property, excise or any
2
<PAGE>
other taxes of any nature whatsoever pertaining to the Station and costs related
to the production and broadcast of material supplied by Lotus pursuant to
Section 5(b) of this Agreement ("Lotus Programming").
5. Programs.
(a) Unica shall furnish or cause to be furnished, at its own
cost, material in broadcast-ready form for broadcast on the Station pursuant to
this Agreement at all times other than the times of the Lotus Programming, and
all such Unica programs shall accord with the Communications Act of 1934, as
amended (as so amended, the "Act"), and all other applicable statutes and
Federal Communications Commission ("FCC") policies and requirements. All rights,
including without limitation all ownership rights and rights of use, relating to
the Programming shall belong exclusively to Unica, and Lotus shall have no
rights of any kind in or to such programs and hereby disclaims all rights
thereto.
(b) Lotus reserves the following periods to present Lotus
Programming: Sunday mornings from 6:00 a.m. to 10:00 a.m. Upon reasonable notice
from Lotus, Unica instead of Lotus will program those hours at Unica's expense
and Unica will retain any proceeds resulting therefrom.
6. Employment.
(a) Lotus shall be solely responsible for, and shall indemnify
Unica, its directors, officers, employees, contractors, agents, or affiliates
from and against, all claims, costs, losses, liability, damages, and other
expenses (including reasonable professional fees and disbursements) relating to,
salaries, taxes, insurance, severance, bonuses and other benefits or obligations
due or payable to: (i) all personnel (other than employees of Unica) used in the
production of Lotus Programming hereunder or necessary to fulfill Lotus's
obligations hereunder; and (ii) all employees of Lotus.
(b) Unica shall be solely responsible for, and shall indemnify
Lotus, its directors, officers, employees, contractors, agents or affiliates
from and against, all claims, costs, losses, liability, damages, and other
expenses (including reasonable professional fees and disbursements) relating to,
salaries, taxes, insurance, severance, bonuses, and other benefits or
obligations due or payable to: (i) all personnel (other than employees of Lotus)
used in the production of the Programming hereunder or necessary to fulfill
Unica's obligations hereunder; and (ii) all employees of Unica.
7. Handling of Mail and Public File.
To the extent that either Lotus or Unica receives or handles mail,
cables, telecopies, telephone calls or other communications in connection with
any material broadcast over the Station during the term of this Agreement, the
party promptly shall (a) advise the other, in
3
<PAGE>
writing, of any public or FCC complaint or inquiry concerning the Programming or
the Lotus Programming, or both and (b) deliver to the other a copy of any
written communications from the public or the FCC. Unica also shall deliver to
Lotus copies of all operating and programming information relating to Unica,
including, without limitation, the Station's operating logs, necessary to
maintain the public file and other records required to be kept by FCC
regulations, rules and policies. During the term of this Agreement, Unica, as to
the Programming, also shall maintain and deliver to the Station and Lotus such
records and information required by the FCC to be placed in the public
inspection file of the Station relating to the broadcast of political
programming and advertisements, in accordance with the provisions of Sections
73.1943 and 73.3526 of the FCC's rules, and pertaining to the broadcast of
sponsored programming addressing political issues or controversial issues of
public importance, in accordance with the provisions of Section 73.1212 of the
FCC's rules. Unica also shall consult with Lotus concerning the Programming to
ensure that the Station is compliant with the Act and all other applicable
statutes and the rules, regulations and policies of the FCC, as announced from
time to time, with respect to the carriage of political advertisements and
programming (including, without limitation, the rights of candidates and, as
appropriate, others to "equal opportunities") and the charges permitted
therefor. Unica shall provide to the Station such documentation relating to the
Programming as Lotus reasonably shall request. Lotus shall be responsible for
providing the personnel necessary to maintain a complete public file (as
required by the FCC) and to compile and file all required quarterly
issues/programs lists for the Station.
8. Maintenance of Equipment.
(a) The transmitter equipment and antennas used for the
Station's broadcasts owned by Lotus (the "Transmission Equipment") shall be
maintained by Lotus in a condition consistent with good engineering practices
and in compliance in all material respects with the Act and all other applicable
rules, regulations and technical standards of the FCC. Subject to the provisions
of Section 20.2(g) of this Agreement, Lotus shall maintain power and modulation
of the Station broadcasts in a manner consistent with Lotus's past practices.
All capital expenditures reasonably required to maintain the technical quality
of the Station's Transmission Equipment and its compliance with applicable laws
and regulations shall be made at the sole expense and in the sole discretion of
Lotus. Except for maintenance of the Transmission Equipment and subject to the
provisions of Section 20.2(g) of this Agreement, Lotus shall have no obligation
to obtain or maintain any equipment necessary to the broadcast by Unica of the
Programming covered by this Agreement.
(b) All equipment whether or not owned by Lotus necessary for
the delivery of the Programming and the Lotus Programming to the Station's
transmitter site and all transmitter equipment and antennas owned by Unica shall
be paid for and/or maintained by Unica in a condition consistent with good
engineering practices and in compliance in all material respects with the Act
and all other applicable rules, regulations and technical standards of the FCC.
All capital expenditures reasonably required to maintain the technical quality
of the
4
<PAGE>
broadcast equipment and its compliance with applicable laws and regulations
shall be made at the sole expense and in the sole discretion of Unica. Upon
termination or expiration of this Agreement, other than pursuant to the Closing
(as defined in the Asset Purchase Agreement), at Lotus's request, Unica promptly
shall remove any of its property, at its sole cost and under Lotus's
supervision, from any premises of the Station.
9. Responsibility for Production Expenses.
Unica shall pay for all costs associated with producing, providing and
delivering the Programming and sale of radio time, all fees to ASCAP, BMI and
SESAC and any other music licensing organization, attributable to the
Programming and any other copyright fees attributable to the Programming. Unica
shall pay any costs associated with any affiliation with any network.
10. Control of the Station.
During the term of this Agreement, Lotus shall maintain ultimate and
unfettered control over the Station's facilities and Unica agrees that it will
permit Lotus to take any and all steps necessary to maintain such control
continuously throughout the term of this Agreement. Lotus and Unica acknowledge
and agree that Lotus's responsibility to retain control is an essential element
of the continuing validity and legality of this Agreement. Lotus shall provide
and pay for: (a) a General Manager for the Station, who shall be headquartered
at Unica's studio (which, initially, will be located at 123 South Figueroa
Street, Los Angeles, California 90012, and which location may change from time
to time) and who shall report solely to, and be accountable solely to, Lotus and
who shall direct the day-to-day operations of the Station; and (b) such other
engineering, programming and other personnel as are necessary to fulfill Lotus's
obligations under this Agreement, including but not limited to personnel
necessary for any remote control facilities to be manned by Lotus's personnel to
meet FCC operating requirements, all in accordance with FCC policies, which
currently require Lotus to employ at the Station at least one full time
management employee (who shall be the General Manager referred to in clause (a)
of this Section 10) and one full time staff employee (or part time employees
equivalent to one full time staff employee), who shall serve as a receptionist
for Lotus and for Unica and whose compensation and benefits shall be paid fifty
percent (50%) by Lotus and fifty percent (50%) by Unica and who shall be housed
at Unica's studio at no cost to Lotus. It is expressly understood that Unica
possesses studios for the production of the Programming. At such studios and at
Unica's exclusive cost, Unica will provide the General Manager of the Station
with an office and Lotus with facilities for the production of Lotus Programming
hereunder. Lotus shall retain control, said control to be reasonably exercised,
over the policies, programming and operations of the Station, including, without
limitation, the right to decide whether to accept or reject any programming or
advertisements, and the right to take any other actions necessary to comply with
the laws of the United States and of the State of California and the rules,
regulations and policies of the FCC, including the FCC rule prohibiting
unauthorized transfers of control. Lotus shall maintain its main studio
5
<PAGE>
(currently located at 6290 Sunset Boulevard, Suite 1600, Los Angeles, California
90028, and which location may change from time to time) within the Station's
principal community contour and Unica shall take such actions as Lotus may
reasonably request to ensure such requirements are met. Unica shall not
represent, warrant or hold itself out as the Station's owner and shall sell all
advertising time and enter into all agreements in its own name. Lotus reserves
the right to refuse to broadcast any program or programs containing matter which
is, or in the reasonable opinion of Lotus may be, violative of any right, law,
or governmental rule, regulation or policy.
11. Special Events.
Lotus has the right to reject any of the Programming and to substitute
on a temporary basis a program that, in the reasonable opinion of Lotus, is of
greater local or national importance. Lotus confirms that no Programming shall
be rejected on the basis of Programming performance or ratings, advertiser
reaction or the availability of alternative programming (including, but not
limited to, sporting events or paid programming) that Lotus believes to be more
profitable or more attractive. Unica shall deliver a program schedule to Lotus
four (4) weeks in advance and, in the event of such rejection and substitution,
Lotus shall give Unica written notice of such rejection and substitution, and
the reasons therefor, at least three (3) weeks in advance of the scheduled
broadcast, or as soon thereafter as possible (including an explanation of the
cause of any lesser notice). In the event of such preemption, Unica shall
receive a payment credit in an amount equal to the loss of revenue by Unica
which shall equal the loss of the Station's local and national revenues and the
Station's allocation of Radio Unica network revenues. The Station's allocation
of Radio Unica network revenues shall be equal to the percentage of Radio Unica
network revenues that is the same percentage determined by dividing the Hispanic
population of the Los Angeles market by the total Hispanic population reached by
the Radio Unica network.
12. Force Majeure.
Any failure or impairment (i.e., failure to broadcast at Station's full
authorized power) of facilities or any delay or interruption in broadcast
programs, or failure at any time to furnish facilities, in whole or in part, for
broadcasting, due to any acts of God, strikes or threats thereof or force
majeure or due to any other causes beyond the reasonable control of Lotus or
Unica shall not constitute a breach of this Agreement and Lotus or Unica, as the
case may be, will not be liable to the other party hereto therefor, provided
such party uses reasonable diligence to correct such failure or impairment as
soon as is reasonably possible.
13. Station's IDs.
Lotus hereby grants to Unica an exclusive license to use such call
letters and other identifiers as are currently used by the Station (the
"Station's Licensed Identifiers") in connection with the broadcast of Unica's
programs on the Station, but for no other purpose.
6
<PAGE>
The license granted herein shall expire on the expiration or earlier termination
of this Agreement. Unica shall use the Station's Licensed Identifiers in Unica's
programming in a manner consistent with the use thereof by Lotus in broadcasts
of the Station immediately prior to the Operational Commencement Date during the
entire term of this Agreement and as may be required by the Act or the rules,
regulations and policies of the FCC. In addition, Lotus agrees, at Unica's cost,
to cooperate with Unica in applying for a change or changes in the Station's
Licensed Identifiers ("New Station Identifiers") should such a change be deemed
appropriate by Unica, so long as such New Station Identifiers are not offensive
or contrary to the public interest.
14. Payola.
Unica shall provide Lotus with payola affidavits, substantially in the
form attached hereto as Attachment C, signed by such of Unica's employees and at
such times as Lotus may reasonably request in writing, and shall notify Lotus
promptly of any violations it learns of relating to the Act, including Sections
317 and 508 thereof.
15. Compliance with Law and Other Agreements.
Unica and Lotus shall, throughout the term of this Agreement, comply in
all material respects with the Act, the rules, regulations and policies of the
FCC, the terms of the Station's FCC licenses and all other laws and regulations
applicable to the conduct of Station business.
16. Indemnification; Warranty.
Each party (as the case may be, the "Indemnitor") shall indemnify and
hold harmless the other party (as the case may be, the "Indemnitee"), its
directors, officers, employees, agents and affiliates, from and against any and
all liability, including without limitation all reasonable attorneys fees,
arising out of or incident to the programming furnished by the Indemnitor, any
breach of this Agreement by the Indemnitor or the conduct of the Indemnitor, its
directors, officers, employees, contractors, agents or affiliates. Without
limiting the generality of the foregoing, Indemnitor shall indemnify and hold
and save the Indemnitee, its directors, officers, employees, agents and
affiliates harmless against liability for libel, slander, infringement of
trademarks, trade names, or program titles, violation of rights of privacy, and
infringement of copyrights and proprietary rights resulting from the programming
furnished by the Indemnitor. On and after January 5, 1998, each party will
maintain not less than $1 million of libel and slander insurance, and shall
provide evidence of such insurance to the other party by December 23, 1997 and
on an annual basis thereafter. Lotus shall be a certificate holder with respect
to Unica's libel and slander insurance and shall be notified by the insurance
carrier within thirty (30) days of a lapse in coverage for Unica. Each party's
obligation to hold the other harmless against the liabilities specified above
shall survive any termination or expiration of this Agreement for a period of
twelve (12) months.
7
<PAGE>
17. Events of Default.
Each of the following shall constitute an "Event of Default" under this
Agreement:
17.1. Default in Covenants. Unica's or Lotus's material non-observance
or material non-performance of any covenant or agreement contained herein, other
than a material non-observance or material non-performance that constitutes
either a Lotus Material Adverse Event or an Unica Material Adverse Event (each
as defined below), (provided, however, that such default shall not constitute an
Event of Default hereunder unless such default is not cured within twenty (20)
business days after delivery of written notice thereof to the breaching party by
the non-breaching party); or
17.2. Breach of Representation. Unica's or Lotus's material breach of
any representation or warranty herein, or in any certificate or document
furnished pursuant to the provisions hereof, which shall prove to have been
false or misleading in any material respect, as of the time made or furnished,
and not cured within twenty (20) business days after delivery of written notice
thereof to the breaching party by the non-breaching party; or
17.3. Insolvency. The voluntary filing by Unica or Lotus (or an
involuntary filing with respect to Unica or Lotus not vacated within ninety (90)
days after such filing) of a petition for reorganization or dissolution under
federal bankruptcy laws or under substantially equivalent state laws.
17A. Material Adverse Event.
17A.1. Unica Material Adverse Event. A "Unica Material Adverse
Event" shall mean the occurrence of either of the following events: (i) Unica's
failure to make the payments required under Section 3 of this Agreement when the
same are due and payable hereunder; provided, however, that such failure shall
not constitute a Unica Material Adverse Event unless such failure is not cured
within twenty (20) business days after delivery of written notice thereof by
Lotus to Unica, or (ii) Unica's complete failure to provide any Programming for
a period of six (6) consecutive months.
17A.2. Lotus Material Adverse Event. A "Lotus Material Adverse
Event" shall mean the occurrence of either of the following events: (i) a
material adverse change in, or event having an effect on, the Station or its
ability or the exercise of its ability to broadcast the Programming, including,
but not limited to, a reduction of twenty-five percent (25%) or more of the
Population Average (as defined below); provided, however, that such reduction
shall not constitute a Lotus Material Adverse Event unless such reduction is not
cured within ninety (90) days after delivery of written notice thereof by Unica
to Lotus; and provided, further, that a Lotus Material Adverse Event shall be
deemed not to have occurred as a result of (a) any failure by Unica to provide
Programming, (b) Lotus's exercise of its right under the last sentence of
Section 10 and (c) Lotus's exercise of its right pursuant to Section 11, or (ii)
Lotus's
8
<PAGE>
failure to acquire good, record and marketable fee simple title to the real
property listed on Attachment D to this Agreement by December 31, 1997. The
"Population Average" shall mean, at any point in time, (x) the sum of the
population within the Station's five (5) millivolts/meter daytime contour and
the population within the Station's five (5) millivolts/meter nighttime contour
(y) divided by two (2).
17B. Arbitration.
Any dispute or controversy arising with respect to or in connection
with this Agreement, including, without limitation, the remedy for an Event of
Default, but excluding the occurrence of any Lotus Material Adverse Event or
Unica Material Adverse Event, shall be submitted to final and binding
arbitration promptly following written notice by either party hereto to the
other party. Any such arbitration shall be conducted in accordance with the
Commercial Arbitration Rules then in effect of the American Arbitration
Association and as set forth herein. The arbitration shall be conducted by a
sole arbitrator and shall be held in California. The arbitrator shall have the
power to award equitable as well as legal relief against a defaulting party and
to award costs. The award of the arbitrator shall be final and binding upon the
parties.
18. Termination.
18.1. Termination Upon A Material Adverse Event. If there is a Unica
Material Adverse Event, Lotus, at its sole option, by written notice to Unica,
may terminate this Agreement. If there is a Lotus Material Adverse Event, Unica,
at its sole option, by written notice to Lotus, may terminate this Agreement.
18.2 Effect of Termination. Upon termination of this Agreement,
pursuant to this Section 18, each party shall be free to pursue any and all
remedies available at law, in equity or otherwise. Lotus, in addition to its
other legal and equitable rights and remedies under this Agreement or under
applicable law, shall be entitled immediately to cease making available to Unica
any further broadcast time or broadcast transmission and facilities, and all
amounts accrued or payable to Lotus prior to the date of termination which have
not been paid shall be immediately due and payable. Unica, in addition to its
other legal and equitable rights and remedies under this Agreement or under
applicable law, shall be entitled immediately to cease providing any further
Programming to be broadcast on the Station, and any amounts which have been
prepaid to Lotus for any partial quarter beyond the termination date shall be
immediately due and payable to Unica subject to the return by Unica of all
confidential information with respect to the Station, the removal by Unica of
any of its property from the Station's premises and Unica's discharge of its
obligations under Section 18.3.
18.3. Liabilities Upon Termination. Unica shall pay all debts and
obligations resulting from its use of the Station's air time and transmission
facilities, including, without limitation, accounts payable and net barter
balances relating to the period on and after the Operational
9
<PAGE>
Commencement Date and prior to the termination of this Agreement and shall be
entitled to the revenues and other credits for that period and Lotus shall be
entitled to retain the revenues and other credits arising from the Lotus
Programming.
18.4. Specific Performance. In addition to a party's rights of
termination hereunder (and in addition to any other remedies available to it or
provided under law), in the event of a Unica Material Adverse Event or a Lotus
Material Adverse Event, the aggrieved party may seek specific performance of
this Agreement, in which case the other party shall waive the defense of an
adequate remedy at law and interpose no opposition, legal or otherwise, as to
the propriety of specific performance as a remedy hereunder.
19. Revenues.
Unica shall receive all revenues attributable to the Programming on and
from the Operational Commencement Date and for the period thereafter during the
Term of this Agreement. Lotus shall receive all revenues attributable to the
Lotus Programming during the Term of this Agreement.
20. Representations, Warranties and Covenants.
20.1 Unica represents and warrants to, and covenants with, Lotus that:
(a) This Agreement has been duly executed and delivered by
Unica, and constitutes its valid and binding obligation, enforceable against it
in accordance with its terms, except as limited by laws affecting the
enforcement of creditor's rights generally or equitable principles. Unica has
all necessary corporate power and authority to enter into and perform its
obligations under this Agreement and to consummate the transactions contemplated
hereby. The execution, delivery and performance of this Agreement have been duly
and validly authorized by all necessary corporate action on Unica's part.
(b) No consent of any other party and no consent, license,
approval or authorization of, or exemption by, or filing, restriction or
declaration with, any governmental authority, bureau, agency or regulatory
authority, is required in connection with the execution, delivery or performance
by Unica of this Agreement.
(c) The execution, delivery and performance of this Agreement
will not violate any provision in Unica's certificate of incorporation or
by-laws, nor will it constitute or result in the breach of any term, condition
or provision of, or constitute a default under, or accelerate or permit the
acceleration of any performance required by, any agreement or other instrument
to which Unica is a party or by which any part of its property is bound, or
violate any law, regulations, judgment or order binding upon Unica.
10
<PAGE>
(d) No proceeding is pending or, to the knowledge of Unica,
threatened against Unica before any court, government agency or arbitral
tribunal that would enjoin or prohibit, or which otherwise questions the
validity of, any action taken or to be taken in connection with this Agreement.
(e) The Programming shall include (i) public service
announcements (including, at Lotus's request from time to time, a reasonable
number of public service announcements of local interest); (ii) an announcement
in form sufficient to meet the station identification requirements of the FCC at
the beginning of each hour; (iii) an announcement at the beginning of each
segment of programming to indicate the program time has been purchased by Unica;
and (iv) any other announcement that may be required by applicable law or
regulations (including, but not limited to, Emergency Broadcast System tests).
(f) The performing rights to all music contained in the
Programming, if any, shall be licensed to Unica by BMI, ASCAP, SESAC or the
composer directly or shall be in the public domain.
(g) Unica shall timely pay any and all expenses or obligations
of any kind or nature which Unica is obligated to pay hereunder or relating to
the provision of the Programming hereunder, in each case when such payments
become due unless such payments are disputed in good faith by Unica.
(h) Unica shall provide to Lotus, on the 10th of the next
succeeding month, monthly documentation of the Programming it has broadcast
during the prior month that address the problems, needs and interests of the
Station's community.
(i) Unica shall, beginning on January 5, 1998 and at all times
during the Initial Term thereafter, provide to Lotus a financial instrument in
the amount of $2,500,000 to secure the payments required to be made pursuant to
Section 3(a) of this Agreement; provided, however, that from time to time after
January 1, 2001, the amount of such financial instrument will decline to equal
the sum of any payments scheduled for the remainder of the year 2001. On January
5, 1998, such financial instrument shall be in the form of cash deposited into
an escrow account pursuant to the terms of the Escrow Agreement, dated as of
even date herewith, by and among Unica, Lotus and the Escrow Agent (as defined
in the Escrow Agreement). Thereafter, the form and substance of the financial
instrument called for by this Section 20.1(i) shall be determined from time to
time by Unica, subject to the consent of Lotus which shall not be unreasonably
withheld.
20.2 Lotus represents and warrants to, and covenants with, Unica that:
(a) This Agreement has been duly executed and delivered by Lotus, and
constitutes its valid and binding obligation, enforceable against it in
accordance with its terms, except as limited by laws affecting the enforcement
of creditor's rights generally or equitable principles.
11
<PAGE>
Lotus has all necessary corporate power and authority to enter into and perform
its obligations under this Agreement and to consummate the transactions
contemplated hereby. The execution, delivery and performance of this Agreement
have been duly and validly authorized by all necessary corporate action on
Lotus' part.
(b) No consent of any other party and no consent, license, approval or
authorization of, or exemption by, of filing, restriction or declaration with,
any governmental authority, bureau, agency or regulatory authority, is required
in connection with the execution, delivery or performance by Lotus of this
Agreement.
(c) The execution, delivery and performance of this Agreement will not
violate any provision of Lotus' articles of incorporation or by-laws, nor will
it constitute or result in the breach of any term, condition or provision of, or
constitute a default under, or accelerate or permit the acceleration of any
performance required by any agreement or other instrument to which Lotus is a
party or by which any part of its property is bound, or violate any law,
regulation, judgment or order binding upon Lotus.
(d) No proceeding is pending or, to the knowledge of Lotus, threatened
against Lotus before any court, governmental agency or arbitral tribunal that
would enjoin or prohibit, or which otherwise questions the validity of, any
action taken or to be taken in connection with this Agreement.
(e) Lotus Programming shall be designed to serve the interest of the
Station's service area.
(f) During the Term of this Agreement, Lotus will hold all licenses and
other permits and authorizations necessary for the operation of the Station, and
such licenses, permits and authorizations are and will be in full force and
effect throughout the Term of this Agreement. There is not pending, or to
Lotus's best knowledge, threatened, any action by the FCC or by any other party
to revoke, cancel, suspend, refuse to renew or modify adversely any of such
licenses, permits or authorizations. To the best of Lotus's knowledge, Lotus is
not in violation of any statute, ordinance, rule, regulation, policy, order or
decree of any federal, state or local entity, court or authority having
jurisdiction over it or the Station, which would have an adverse effect upon
Lotus, its assets, the Station or upon Lotus's ability to perform this
Agreement. Lotus shall not take any action or omit to take any action which
would have an adverse impact upon Lotus, its assets, the Station or upon Lotus'
ability to perform this Agreement. All reports and application required to be
filed with the FCC or any other governmental body during the Term of this
Agreement will be filed in a timely and complete manner. Lotus has, and
throughout the Term of this Agreement will maintain, good title to, or rights by
license, lease or other agreement to use, all of the assets and properties used
in the operation of the Station. During the Term of this Agreement, Lotus shall
not dispose of, transfer, assign or pledge any of such assets and properties,
except with the prior written
12
<PAGE>
consent of Unica, if such action would adversely affect Lotus's performance
hereunder or the business and operations of Lotus or the Station permitted
hereby.
(g) Lotus shall use its best efforts:
(i) to complete the upgrade of the Station from 1 KW
nighttime to 3 KW nighttime, pursuant to FCC construction
permit BP-960117AB, by the target date of April 30, 1998;
(ii) to have KBOI(AM), in Boise, Idaho, reduce
nighttime interference to the Station, essentially as
contemplated in FCC application BP-970415AE and any resulting
construction permit, with a target date of October 15, 1998;
and
(iii) to complete the upgrade of the Station to
between 30 KW and 50 KW daytime/nighttime.
The inability of Lotus to satisfy a target date in this Section 20(g) shall not
relieve Lotus of the obligation to use its best efforts to accomplish the
undertakings in as timely a fashion as possible.
21. Modification and Waiver.
No modification or waiver of any provision of this Agreement shall in
any event be effective unless the same shall be in writing and signed by the
parties, and then such waiver and consent shall be effective only in the
specific instance and for the purpose for which given.
22. Delay in Exercise of Remedies; Remedies Cumulative.
No failure or delay on the part of Lotus or Unica in exercising any
right or power hereunder shall operate as a waiver thereof, nor shall any single
or partial exercise of any such right or power, or any abandonment or
discontinuance of steps to enforce such a right or power, preclude any other or
further exercise thereof or the exercise of any other right or power. The rights
and remedies of Lotus and Unica herein provided are cumulative and are not
exclusive of any right or remedies which they may otherwise have.
23. Construction.
This Agreement shall be construed in accordance with the internal
substantive (that is, without reference to conflict of) laws of the State of
Delaware and the obligations of the parties hereto are subject to all Federal,
state or municipal laws or regulations now or hereafter in force and to the
regulations and policies of the FCC and all other governmental bodies or
authorities presently or hereafter duly constituted. The parties believe that
the terms of this
13
<PAGE>
Agreement meet all of the requirements of current FCC policy for time brokerage
agreements for radio stations and agree that they shall negotiate in good faith
to meet any FCC concern with respect to this Agreement if they are incorrectly
interpreting current FCC policy or if FCC policy as hereafter modified so
requires. If the parties cannot agree to a modification or modifications deemed
necessary by either party to meet FCC requirements, the termination provisions
of Section 18 above shall apply. The parties further agree that they will make
all required filings with the FCC with respect to this Agreement.
24. Headings.
The headings contained in this Agreement are included for convenience
only and no such heading shall in any way alter the meaning of any provision.
25. Successors and Assigns.
This Agreement shall be binding upon and inure to the benefit of the
parties and their respective permitted successors and assigns, including,
without limitation, any permitted transferees or assignees of any kind of the
FCC licenses for the Station.
26. Counterpart Signatures.
This Agreement may be signed in one or more counterparts, each of which
shall be deemed a duplicate original, binding on the parties hereto
notwithstanding that the parties are not signatory to the same original or the
same counterpart.
27. Notices.
Any notice required hereunder shall be in writing and any payment,
notice or other communications shall be deemed given when delivered by hand or
one (1) day after deposit with a recognized overnight courier for overnight
delivery and addressed as follows:
(a) if to Unica:
Radio Unica Corp.
8400 N.W. 52nd Street
Suite 101
Miami, Florida 33176
Attn: Joaquin F. Blaya
with a required copy to:
14
<PAGE>
Skadden, Arps, Slate, Meagher & Flom LLP
1440 New York Avenue, N.W.
Washington, D.C. 20005
Attn: John C. Quale, Esq.
(b) If to Lotus:
Lotus Oxnard Corp.
6290 Sunset Boulevard
Suite 1600
Los Angeles, California 90028
Attn: Howard A. Kalmenson
with a required copy to:
Robinson Silverman Pearce Aronsohn & Berman LLP
1290 Avenue of the Americas
New York, New York 10104
Attn: Jerome S. Boros, Esq.
or such other address as the addressee may have specified in a notice
duly given to the sender as provided herein.
28. Entire Agreement.
This Agreement (together with the Attachments hereto) and the Option
Agreement embody the entire agreement between the parties regarding the subject
matter hereof and there are no other agreements, representations, warranties, or
understandings, oral or written, between them with respect to the subject matter
hereof. No alteration, modification or change of this Agreement shall be valid
unless it is embodied in a written instrument signed by both of the parties.
29. Severability and Assignment.
If any provision or provisions contained in this Agreement are held to
be invalid, illegal or unenforceable, this shall not affect any other provision
hereof, and this Agreement shall be construed as if such invalid, illegal or
unenforceable provision or provisions had not been contained herein, provided
that the benefits afforded each party hereunder are not materially changed.
Neither party may assign this Agreement without the prior written consent of the
other party and any purported assignment without such consent shall be null and
void and of no legal force or effect, provided that either party may assign this
Agreement if it would constitute a pro forma assignment (on Form 316) under
Section 73.3540(f) of the FCC's rules.
15
<PAGE>
30. No Joint Venture.
The parties agree that nothing herein shall constitute a joint venture
or a principal-agent relationship between them. The parties acknowledge that
call letters, trademarks and other intellectual property shall at all times
remain the property of the respective parties and that neither party shall
obtain any ownership interest in the other party's intellectual property by
virtue of this Agreement.
31. Access to Records.
Each of Lotus and Unica agrees to permit the other party hereto and its
agents and representatives access to all books and records relating to the
operation of the Station that may be in its possession.
32. Beneficiaries.
Nothing in this Agreement, express or implied, is intended to confer on
any person other than the parties hereto and their respective successors and
assigns any rights, remedies, obligations, or liabilities under or by reason of
this Agreement.
33. Further Assurances.
Subject to the terms and conditions herein provided, each of the
parties hereto agrees to use its commercially reasonable efforts to take or
cause to be taken all such further actions, and to do, or cause to be done, all
things necessary, proper or advisable in order to fully effectuate the purposes,
terms and conditions of this Agreement.
16
<PAGE>
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on
the date first above written.
RADIO UNICA CORP.
By: /s/ Joaquin F. Blaya
------------------------
Joaquin F. Blaya
Chairman & C.E.O.
LOTUS OXNARD CORP.
By:
------------------------
Howard A. Kalmenson
President
17
<PAGE>
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the date
first above written.
RADIO UNICA CORP.
By:
------------------------
Joaquin F. Blaya
President
LOTUS OXNARD CORP.
By: /s/ Howard A. Kalmenson
------------------------
Howard A. Kalmenson
President
17
<PAGE>
Attachment A
<TABLE>
<CAPTION>
Payment Due Date Amount
---------------- ------
<S> <C>
Upon execution $500,000
April 1, 1998 $500,000
July 1, 1998 $500,000
October 1, 1998 $500,000
January 1, 1999 $550,000
April 1, 1999 $550,000
July 1, 1999 $550,000
October 1, 1999 $550,000
January 1, 2000 $600,000
April 1, 2000 $600,000
July 1, 2000 $600,000
October 1, 2000 $600,000
January 1, 2001 $650,000
April 1, 2001 $650,000
July 1, 2001 $650,000
October 1, 2001 $650,000
Quarters commencing on
January 1, 2002 through
December 31, 2002 (other
than pursuant to renewal
under the last sentence
of Section 2) $390,000
Quarters commencing on
January 1, 2003 or later
(other than pursuant to
renewal under the last
sentence of Section 2) $500,000
</TABLE>
A-1
<PAGE>
Attachment B
<TABLE>
<CAPTION>
Payment Due Date Amount
---------------- ------
<S> <C>
January 1, 2002 $500,000
April 1, 2002 $500,000
July 1, 2002 $500,000
October 1, 2002 $500,000
January 1, 2003 $550,000
April 1, 2003 $550,000
July 1, 2003 $550,000
October 1, 2003 $550,000
January 1, 2004 $600,000
April 1, 2004 $600,000
July 1, 2004 $600,000
October 1, 2004 $600,000
</TABLE>
B-1
<PAGE>
Attachment C
FORM OF PAYOLA AFFIDAVIT
City of _______________________ )
County of ____________________ ) SS:
State of ______________________ )
ANTI-PAYOLA/PLUGOLA AFFIDAVIT
________________________________, being first duly sworn, deposes and says as
follows:
1. He/She is ________________________________ for _____________________________.
Position
2. He/She has acted in the above capacity since _______________________________.
3. No matter has been broadcast by Station KVCA for which service, money or
other valuable consideration has been directly or indirectly paid, or
promised to, or charged, or accepted, by him/her from any person, which
matter at the time so broadcast has not been announced or otherwise
indicated as paid for or furnished by such person.
4. So far as he/she is aware, no matter has been broadcast by Station KVCA
for which service, money, or other valuable consideration has been
directly or indirectly paid, or promised to, or charged, or accepted by
Station KVCA or by any independent contractor engaged by Station KVCA in
furnishing programs, from any person, which matter at the time so
broadcast has not been announced or otherwise indicated as paid for or
furnished by such person.
-------------------------------------
Affiant
Subscribed and sworn to before me this __ day of __________, 19__.
- --------------------------------------
Notary Public
My Commission expires: ________________
C-1
<PAGE>
Attachment D
That portion of Lot 75, Rancho Tapo, Subdivision No. 3, in the County of
Ventura, State of California, according to the Map recorded in Book 8, Page 26
of Miscellaneous Records (Maps), in the office of the County Recorder of said
County, as such portion of said Lot 75 is shown as Parcel B on that certain
Parcel Map Waiver and Lot Line Adjustment recorded February 8, 1990, as
Instrument No. 90-020583, of Official Records.
D-1
<PAGE>
Exhibit 10.11
TIME BROKERAGE AGREEMENT
THIS TIME BROKERAGE AGREEMENT ("Agreement"), dated as of October 31,
1997, is made and entered into by and between Radio Unica Corp., a Delaware
corporation ("Unica"), and Texas Lotus Corp., a Texas corporation ("Lotus").
WHEREAS, Lotus is the owner and operator of radio station KZDC, 1250
kHz, licensed to San Antonio, Texas (the "Station");
WHEREAS, Unica and Lotus have entered into that certain Option
Agreement, dated as of October 31, 1997 (the "Option Agreement"), pursuant to
which Lotus has granted to Unica an option (the "Option") to purchase
substantially all of the assets of the Station pursuant to the Asset Purchase
Agreement (the "Asset Purchase Agreement") attached as an exhibit to the Option
Agreement;
WHEREAS, Lotus desires to make available to Unica substantial
broadcasting time on the Station; and
WHEREAS, Unica is engaged in the business of radio broadcasting and
desires to avail itself of the Station's available broadcast time through
December 31, 2001.
NOW, THEREFORE, in consideration of the premises and the mutual
covenants and agreements herein contained, Unica and Lotus agree as follows:
1. Commencement Date and Facilities.
Commencing 12:01 a.m. on Monday, January 5, 1998 (the "Operational
Commencement Date"), Lotus shall broadcast, or cause to be broadcast, over the
Station transmission facilities certain programming, consisting of programs,
announcements and advertising (the "Programming"), originating at Unica's studio
and delivered to Lotus by Unica in compliance with the provisions of Section
5(a) of this Agreement. Unica shall deliver the Programming to Lotus's
transmitter site at Unica's exclusive cost, by means reasonably acceptable to
Lotus.
2. Term.
This Agreement is effective immediately and, unless sooner terminated,
extended or renewed as hereinafter provided, shall end on December 31, 2001 (the
"Initial Term"). In the event the Option is exercised by Unica, the Initial Term
of this Agreement shall end upon the Closing (as defined in the Asset Purchase
Agreement) or the termination of the Asset Purchase Agreement pursuant to the
terms thereof, it being expressly agreed and understood that termination of the
Asset Purchase Agreement shall not result in the Initial Term of this Agreement
ending prior to December 31, 2001. At any time prior to October 1, 2001, Unica,
<PAGE>
at its sole option, by written notice to Lotus, may renew this Agreement, in
which case this Agreement, unless sooner terminated, shall end on December 31,
2004 (the "Renewal Term," and together with the Initial Term, the "Term").
3. Payments by Unica.
(a) Unica hereby agrees to pay Lotus (i) during the Initial Term, a
quarterly fee (prorated for partial quarters) as provided in Attachment A to
this Agreement and (ii) if this Agreement is renewed pursuant to the last
sentence of Section 2, then, during the Renewal Term, a quarterly fee (prorated
for partial quarters) as provided in Attachment B to this Agreement. Amounts
payable by Unica to Lotus pursuant to this Agreement shall be payable in advance
without notice or demand on the first business day of each quarter during the
term hereof, except that Unica shall pay Lotus, on the date hereof, the full
amount due hereunder for the first quarter of 1998, such amount to be paid by
wire transfer of funds to an account specified by Lotus in writing. All payments
to Lotus hereunder shall be made without deductions or offset and shall be
non-refundable, except as otherwise provided in this Agreement.
(b) Subsequent payments will be made by check delivered to Lotus at
6290 Sunset Blvd., Suite 1600, Los Angeles, CA 90028, or such other address as
Lotus may select pursuant to Section 27 hereof, provided that, if Lotus has
given wire transfer instructions to Unica, Unica will be required to make all
payments by wire transfer of funds to the account specified by Lotus.
(c) Unica shall be solely responsible for and shall pay in a timely
manner all direct and indirect costs incurred by Unica in producing, providing
and delivering the Programming including, but not limited to, (i) program costs,
(ii) sales costs, (iii) Station advertising and promotion costs, (iv) costs
related to Unica's audio lines to Lotus's studio or transmitter, (v) salaries,
payroll taxes, insurance, health benefits and related costs of personnel
employed by Unica in connection with the Programming supplied to Lotus, sales
and promotion of radio time and, (vi) income, gross receipts, sales, personal
property, and other taxes of any nature whatsoever and costs related to Unica's
programming of the Station.
(d) The failure of Lotus to demand or insist upon timely and full
payment of any payment due hereunder, shall not constitute a waiver of Unica's
obligations under this Section 3.
4. Payments by Lotus.
Lotus shall be solely responsible for and shall pay in a timely manner
the following costs of the Station: (i) rents, utilities, insurance and
maintenance costs relating to the Station's tower and transmitter site
facilities and other real and personal property relating to, or used by, the
Station; (ii) Lotus's telephone, sale or delivery and postal service expenses
relating to the Station; (iii) the salaries, payroll taxes, insurance, health
benefits and related costs of
2
<PAGE>
personnel employed by Lotus in the operation of the Station following the
Operational Commencement Date; and (iv) income, gross receipts, sales, personal
property, excise or any other taxes of any nature whatsoever pertaining to the
Station and costs related to the production and broadcast of material supplied
by Lotus pursuant to Section 5(b) of this Agreement ("Lotus Programming").
5. Programs.
(a) Unica shall furnish or cause to be furnished, at its own cost,
material in broadcast-ready form for broadcast on the Station pursuant to this
Agreement at all times other than the times of the Lotus Programming, and all
such Unica programs shall accord with the Communications Act of 1934, as amended
(as so amended, the "Act"), and all other applicable statutes and Federal
Communications Commission ("FCC") policies and requirements. All rights,
including without limitation all ownership rights and rights of use, relating to
the Programming shall belong exclusively to Unica, and Lotus shall have no
rights of any kind in or to such programs and hereby disclaims all rights
thereto.
(b) Lotus reserves the following periods to present Lotus Programming:
Sunday mornings from 6:00 a.m. to 10:00 a.m. Upon reasonable notice from Lotus,
Unica instead of Lotus will program those hours at Unica's expense and Unica
will retain any proceeds resulting therefrom.
6. Employment.
(a) Lotus shall be solely responsible for, and shall indemnify Unica,
its directors, officers, employees, contractors, agents, or affiliates from and
against, all claims, costs, losses, liability, damages, and other expenses
(including reasonable professional fees and disbursements) relating to,
salaries, taxes, insurance, severance, bonuses and other benefits or obligations
due or payable to: (i) all personnel (other than employees of Unica) used in the
production of Lotus Programming hereunder or necessary to fulfill Lotus's
obligations hereunder; and (ii) all employees of Lotus.
(b) Unica shall be solely responsible for, and shall indemnify Lotus,
its directors, officers, employees, contractors, agents or affiliates from and
against, all claims, costs, losses, liability, damages, and other expenses
(including reasonable professional fees and disbursements) relating to,
salaries, taxes, insurance, severance, bonuses, and other benefits or
obligations due or payable to: (i) all personnel (other than employees of Lotus)
used in the production of the Programming hereunder or necessary to fulfill
Unica's obligations hereunder; and (ii) all employees of Unica.
7. Handling of Mail and Public File.
To the extent that either Lotus or Unica receives or handles mail,
cables, telecopies, telephone calls or other communications in connection with
any material broadcast over the
3
<PAGE>
Station during the term of this Agreement, the party promptly shall (a) advise
the other, in writing, of any public or FCC complaint or inquiry concerning the
Programming or the Lotus Programming, or both and (b) deliver to the other a
copy of any written communications from the public or the FCC. Unica also shall
deliver to Lotus copies of all operating and programming information relating
to Unica, including, without limitation, the Station's operating logs, necessary
to maintain the public file and other records required to be kept by FCC
regulations, rules and policies. During the term of this Agreement, Unica, as to
the Programming, also shall maintain and deliver to the Station and Lotus such
records and information required by the FCC to be placed in the public
inspection file of the Station relating to the broadcast of political
programming and advertisements, in accordance with the provisions of Sections
73.1943 and 73.3526 of the FCC's rules, and pertaining to the broadcast of
sponsored programming addressing political issues or controversial issues of
public importance, in accordance with the provisions of Section 73.1212 of the
FCC's rules. Unica also shall consult with Lotus concerning the Programming to
ensure that the Station is compliant with the Act and all other applicable
statutes and the rules, regulations and policies of the FCC, as announced from
time to time, with respect to the carriage of political advertisements and
programming (including, without limitation, the rights of candidates and, as
appropriate, others to "equal opportunities") and the charges permitted
therefor. Unica shall provide to the Station such documentation relating to the
Programming as Lotus reasonably shall request. Lotus shall be responsible for
providing the personnel necessary to maintain a complete public file (as
required by the FCC) and to compile and file all required quarterly
issues/programs lists for the Station.
8. Maintenance of Equipment.
(a) The transmitter equipment and antennas used for the Station's
broadcasts owned by Lotus (the "Transmission Equipment") shall be maintained by
Lotus in a condition consistent with good engineering practices and in
compliance in all material respects with the Act and all other applicable rules,
regulations and technical standards of the FCC. Lotus shall maintain power and
modulation of the Station broadcasts in a manner consistent with Lotus's past
practices. All capital expenditures reasonably required to maintain the
technical quality of the Station's Transmission Equipment and its compliance
with applicable laws and regulations shall be made at the sole expense and in
the sole discretion of Lotus. Except for maintenance of the Transmission
Equipment, Lotus shall have no obligation to obtain or maintain any equipment
necessary to the broadcast by Unica of the Programming covered by this
Agreement.
(b) All equipment whether or not owned by Lotus necessary for the
delivery of the Programming and the Lotus Programming to the Station's
transmitter site and all transmitter equipment and antennas owned by Unica shall
be paid for and/or maintained by Unica in a condition consistent with good
engineering practices and in compliance in all material respects with the Act
and all other applicable rules, regulations and technical standards of the FCC.
All capital expenditures reasonably required to maintain the technical quality
of the broadcast equipment and its compliance with applicable laws and
regulations shall be made
4
<PAGE>
at the sole expense and in the sole discretion of Unica. Upon termination or
expiration of this Agreement, other than pursuant to the Closing (as defined in
the Asset Purchase Agreement), at Lotus's request, Unica promptly shall remove
any of its property, at its sole cost and under Lotus's supervision, from any
premises of the Station.
9. Responsibility for Production Expenses.
Unica shall pay for all costs associated with producing, providing and
delivering the Programming and sale of radio time, all fees to ASCAP, BMI and
SESAC and any other music licensing organization, attributable to the
Programming and any other copyright fees attributable to the Programming. Unica
shall pay any costs associated with any affiliation with any network.
10. Control of the Station.
During the term of this Agreement, Lotus shall maintain ultimate and
unfettered control over the Station's facilities and Unica agrees that it will
permit Lotus to take any and all steps necessary to maintain such control
continuously throughout the term of this Agreement. Lotus and Unica acknowledge
and agree that Lotus's responsibility to retain control is an essential element
of the continuing validity and legality of this Agreement. Lotus shall provide
and pay for: (a) a General Manager for the Station, who shall report solely to,
and be accountable solely to, Lotus and who shall direct the day-to-day
operations of the Station; and (b) such other engineering, programming and other
personnel as are necessary to fulfill Lotus's obligations under this Agreement,
including but not limited to personnel necessary for any remote control
facilities to be manned by Lotus's personnel to meet FCC operating requirements,
all in accordance with FCC policies, which currently require Lotus to employ at
the Station at least one full time management employee (who shall be the General
Manager referred to in clause (a) of this Section 10) and one full time staff
employee (or part time employees equivalent to one full time staff employee),
who shall serve as a receptionist for Lotus and for Unica and whose compensation
and benefits shall be paid fifty percent (50%) by Lotus and fifty percent (50%)
by Unica and who shall be housed at Lotus's studio. Lotus shall retain control,
said control to be reasonably exercised, over the policies, programming and
operations of the Station, including, without limitation, the right to decide
whether to accept or reject any programming or advertisements, and the right to
take any other actions necessary to comply with the laws of the United States
and of the State of Texas and the rules, regulations and policies of the FCC,
including the FCC rule prohibiting unauthorized transfers of control. Lotus
shall maintain its main studio within the Station's principal community contour
and Unica shall take such actions as Lotus may reasonably request to ensure such
requirements are met. Unica shall not represent, warrant or hold itself out as
the Station's owner and shall sell all advertising time and enter into all
agreements in its own name. Lotus reserves the right to refuse to broadcast any
program or programs containing matter which is, or in the reasonable opinion of
Lotus may be, violative of any right, law, or governmental rule, regulation or
policy.
5
<PAGE>
11. Special Events.
Lotus has the right to reject any of the Programming and to substitute
on a temporary basis a program that, in the reasonable opinion of Lotus, is of
greater local or national importance. Lotus confirms that no Programming shall
be rejected on the basis of Programming performance or ratings, advertiser
reaction or the availability of alternative programming (including, but not
limited to, sporting events or paid programming) that Lotus believes to be more
profitable or more attractive. Unica shall deliver a program schedule to Lotus
four (4) weeks in advance and, in the event of such rejection and substitution,
Lotus shall give Unica written notice of such rejection and substitution, and
the reasons therefor, at least three (3) weeks in advance of the scheduled
broadcast, or as soon thereafter as possible (including an explanation of the
cause of any lesser notice). In the event of such preemption, Unica shall
receive a payment credit in an amount equal to the loss of revenue by Unica
which shall equal the loss of the Station's local and national revenues and the
Station's allocation of Radio Unica network revenues. The Station's allocation
of Radio Unica network revenues shall be equal to the percentage of Radio Unica
network revenues that is the same percentage determined by dividing the Hispanic
population of the San Antonio market by the total Hispanic population reached by
the Radio Unica network.
12. Force Majeure.
Any failure or impairment (i.e., failure to broadcast at Station's full
authorized power) of facilities or any delay or interruption in broadcast
programs, or failure at any time to furnish facilities, in whole or in part, for
broadcasting, due to any acts of God, strikes or threats thereof or force
majeure or due to any other causes beyond the reasonable control of Lotus or
Unica shall not constitute a breach of this Agreement and Lotus or Unica, as the
case may be, will not be liable to the other party hereto therefor, provided
such party uses reasonable diligence to correct such failure or impairment as
soon as is reasonably possible.
13. Station's IDs.
Lotus hereby grants to Unica an exclusive license to use such call
letters and other identifiers as are currently used by the Station (the
"Station's Licensed Identifiers") in connection with the broadcast of Unica's
programs on the Station, but for no other purpose. The license granted herein
shall expire on the expiration or earlier termination of this Agreement. Unica
shall use the Station's Licensed Identifiers in Unica's programming in a manner
consistent with the use thereof by Lotus in broadcasts of the Station
immediately prior to the Operational Commencement Date during the entire term of
this Agreement and as may be required by the Act or the rules, regulations and
policies of the FCC. In addition, Lotus agrees, at Unica's cost, to cooperate
with Unica in applying for a change or changes in the Station's Licensed
Identifiers ("New Station Identifiers") should such a change be deemed
appropriate by Unica, so long as such New Station Identifiers are not offensive
or contrary to the public interest.
6
<PAGE>
14. Payola.
Unica shall provide Lotus with payola affidavits, substantially in the
form attached hereto as Attachment C, signed by such of Unica's employees and at
such times as Lotus may reasonably request in writing, and shall notify Lotus
promptly of any violations it learns of relating to the Act, including Sections
317 and 508 thereof.
15. Compliance with Law and Other Agreements.
Unica and Lotus shall, throughout the term of this Agreement, comply in
all material respects with the Act, the rules, regulations and policies of the
FCC, the terms of the Station's FCC licenses and all other laws and regulations
applicable to the conduct of Station business.
16. Indemnification; Warranty.
Each party (as the case may be, the "Indemnitor") shall indemnify and
hold harmless the other party (as the case may be, the "Indemnitee"), its
directors, officers, employees, agents and affiliates, from and against any and
all liability, including without limitation all reasonable attorneys fees,
arising out of or incident to the programming furnished by the Indemnitor, any
breach of this Agreement by the Indemnitor or the conduct of the Indemnitor, its
directors, officers, employees, contractors, agents or affiliates. Without
limiting the generality of the foregoing, Indemnitor shall indemnify and hold
and save the Indemnitee, its directors, officers, employees, agents and
affiliates harmless against liability for libel, slander, infringement of
trademarks, trade names, or program titles, violation of rights of privacy, and
infringement of copyrights and proprietary rights resulting from the programming
furnished by the Indemnitor. On and after January 5, 1998, each party will
maintain not less than $1 million of libel and slander insurance, and shall
provide evidence of such insurance to the other party by December 23, 1997 and
on an annual basis thereafter. Lotus shall be a certificate holder with respect
to Unica's libel and slander insurance and shall be notified by the insurance
carrier within thirty (30) days of a lapse in coverage for Unica. Each party's
obligation to hold the other harmless against the liabilities specified above
shall survive any termination or expiration of this Agreement for a period of
twelve (12) months.
17. Events of Default.
Each of the following shall constitute an "Event of Default" under this
Agreement:
17.1. Default in Covenants. Unica's or Lotus's material non-observance
or material non-performance of any covenant or agreement contained herein, other
than a material non-observance or material non-performance that constitutes
either a Lotus Material Adverse Event or an Unica Material Adverse Event (each
as defined below), (provided, however, that such default shall not constitute an
Event of Default hereunder unless such default is not cured within twenty (20)
business days after delivery of written notice thereof to the breaching party by
the non-breaching party); or
7
<PAGE>
17.2. Breach of Representation. Unica's or Lotus's material breach of
any representation or warranty herein, or in any certificate or document
furnished pursuant to the provisions hereof, which shall prove to have been
false or misleading in any material respect, as of the time made or furnished,
and not cured within twenty (20) business days after delivery of written notice
thereof to the breaching party by the non-breaching party; or
17.3. Insolvency. The voluntary filing by Unica or Lotus (or an
involuntary filing with respect to Unica or Lotus not vacated within ninety (90)
days after such filing) of a petition for reorganization or dissolution under
federal bankruptcy laws or under substantially equivalent state laws.
17A. Material Adverse Event.
17A.1. Unica Material Adverse Event. A "Unica Material Adverse
Event" shall mean the occurrence of either of the following events: (i) Unica's
failure to make the payments required under Section 3 of this Agreement when the
same are due and payable hereunder; provided, however, that such failure shall
not constitute a Unica Material Adverse Event unless such failure is not cured
within twenty (20) business days after delivery of written notice thereof by
Lotus to Unica, or (ii) Unica's complete failure to provide any Programming for
a period of six (6) consecutive months.
17A.2. Lotus Material Adverse Event. A "Lotus Material Adverse
Event" shall mean a material adverse change in, or event having an effect on,
the Station or its ability or the exercise of its ability to broadcast the
Programming, including, but not limited to, a reduction of twenty-five percent
(25%) or more of the Population Average (as defined below); provided, however,
that such reduction shall not constitute a Lotus Material Adverse Event unless
such reduction is not cured within ninety (90) days after delivery of written
notice thereof by Unica to Lotus; and provided, further, that a Lotus Material
Adverse Event shall be deemed not to have occurred as a result of (a) any
failure by Unica to provide Programming, (b) Lotus's exercise of its right under
the last sentence of Section 10 and (c) Lotus's exercise of its right pursuant
to Section 11. The "Population Average" shall mean, at any point in time, (x)
the sum of the population within the Station's five (5) millivolts/meter daytime
contour and the population within the Station's five (5) millivolts/meter
nighttime contour (y) divided by two (2).
17B. Arbitration.
Any dispute or controversy arising with respect to or in connection
with this Agreement, including, without limitation, the remedy for an Event of
Default, but excluding the occurrence of any Lotus Material Adverse Event or
Unica Material Adverse Event, shall be submitted to final and binding
arbitration promptly following written notice by either party hereto to the
other party. Any such arbitration shall be conducted in accordance with the
Commercial Arbitration Rules then in effect of the American Arbitration
Association and as set forth herein. The arbitration shall be conducted by a
sole arbitrator and shall be held in Texas.
8
<PAGE>
The arbitrator shall have the power to award equitable as well as legal relief
against a defaulting party and to award costs. The award of the arbitrator shall
be final and binding upon the parties.
18. Termination.
18.1. Termination Upon A Material Adverse Event. If there is a Unica
Material Adverse Event, Lotus, at its sole option, by written notice to Unica,
may terminate this Agreement. If there is a Lotus Material Adverse Event, Unica,
at its sole option, by written notice to Lotus, may terminate this Agreement.
18.2 Effect of Termination. Upon termination of this Agreement,
pursuant to this Section 18, each party shall be free to pursue any and all
remedies available at law, in equity or otherwise. Lotus, in addition to its
other legal and equitable rights and remedies under this Agreement or under
applicable law, shall be entitled immediately to cease making available to Unica
any further broadcast time or broadcast transmission and facilities, and all
amounts accrued or payable to Lotus prior to the date of termination which have
not been paid shall be immediately due and payable. Unica, in addition to its
other legal and equitable rights and remedies under this Agreement or under
applicable law, shall be entitled immediately to cease providing any further
Programming to be broadcast on the Station, and any amounts which have been
prepaid to Lotus for any partial quarter beyond the termination date shall be
immediately due and payable to Unica subject to the return by Unica of all
confidential information with respect to the Station, the removal by Unica of
any of its property from the Station's premises and Unica's discharge of its
obligations under Section 18.3.
18.3. Liabilities Upon Termination. Unica shall pay all debts and
obligations resulting from its use of the Station's air time and transmission
facilities, including, without limitation, accounts payable and net barter
balances relating to the period on and after the Operational Commencement Date
and prior to the termination of this Agreement and shall be entitled to the
revenues and other credits for that period and Lotus shall be entitled to retain
the revenues and other credits arising from the Lotus Programming.
18.4. Specific Performance. In addition to a party's rights of
termination hereunder (and in addition to any other remedies available to it or
provided under law), in the event of a Unica Material Adverse Event or a Lotus
Material Adverse Event, the aggrieved party may seek specific performance of
this Agreement, in which case the other party shall waive the defense of an
adequate remedy at law and interpose no opposition, legal or otherwise, as to
the propriety of specific performance as a remedy hereunder.
19. Revenues.
Unica shall receive all revenues attributable to the Programming on and
from the Operational Commencement Date and for the period thereafter during the
Term of this
9
<PAGE>
Agreement. Lotus shall receive all revenues attributable to the Lotus
Programming during the Term of this Agreement.
20. Representations, Warranties and Covenants.
20.1 Unica represents and warrants to, and covenants with, Lotus that:
(a) This Agreement has been duly executed and delivered by Unica, and
constitutes its valid and binding obligation, enforceable against it in
accordance with its terms, except as limited by laws affecting the enforcement
of creditor's rights generally or equitable principles. Unica has all necessary
corporate power and authority to enter into and perform its obligations under
this Agreement and to consummate the transactions contemplated hereby. The
execution, delivery and performance of this Agreement have been duly and validly
authorized by all necessary corporate action on Unica's part.
(b) No consent of any other party and no consent, license, approval or
authorization of, or exemption by, or filing, restriction or declaration with,
any governmental authority, bureau, agency or regulatory authority, is required
in connection with the execution, delivery or performance by Unica of this
Agreement.
(c) The execution, delivery and performance of this Agreement will not
violate any provision in Unica's certificate of incorporation or by-laws, nor
will it constitute or result in the breach of any term, condition or provision
of, or constitute a default under, or accelerate or permit the acceleration of
any performance required by, any agreement or other instrument to which Unica is
a party or by which any part of its property is bound, or violate any law,
regulations, judgment or order binding upon Unica.
(d) No proceeding is pending or, to the knowledge of Unica, threatened
against Unica before any court, government agency or arbitral tribunal that
would enjoin or prohibit, or which otherwise questions the validity of, any
action taken or to be taken in connection with this Agreement.
(e) The Programming shall include (i) public service announcements
(including, at Lotus's request from time to time, a reasonable number of public
service announcements of local interest); (ii) an announcement in form
sufficient to meet the station identification requirements of the FCC at the
beginning of each hour; (iii) an announcement at the beginning of each segment
of programming to indicate the program time has been purchased by Unica; and
(iv) any other announcement that may be required by applicable law or
regulations (including, but not limited to, Emergency Broadcast System tests).
(f) The performing rights to all music contained in the Programming, if
any, shall be licensed to Unica by BMI, ASCAP, SESAC or the composer directly or
shall be in the public domain.
10
<PAGE>
(g) Unica shall timely pay any and all expenses or obligations of any
kind or nature which Unica is obligated to pay hereunder or relating to the
provision of the Programming hereunder, in each case when such payments become
due unless such payments are disputed in good faith by Unica.
(h) Unica shall provide to Lotus, on the 10th of the next succeeding
month, monthly documentation of the Programming it has broadcast during the
prior month that address the problems, needs and interests of the Station's
community.
20.2 Lotus represents and warrants to, and covenants with, Unica that:
(a) This Agreement has been duly executed and delivered by Lotus, and
constitutes its valid and binding obligation, enforceable against it in
accordance with its terms, except as limited by laws affecting the enforcement
of creditor's rights generally or equitable principles. Lotus has all necessary
corporate power and authority to enter into and perform its obligations under
this Agreement and to consummate the transactions contemplated hereby. The
execution, delivery and performance of this Agreement have been duly and validly
authorized by all necessary corporate action on Lotus' part.
(b) No consent of any other party and no consent, license, approval or
authorization of, or exemption by, of filing, restriction or declaration with,
any governmental authority, bureau, agency or regulatory authority, is required
in connection with the execution, delivery or performance by Lotus of this
Agreement.
(c) The execution, delivery and performance of this Agreement will not
violate any provision of Lotus' articles of incorporation or by-laws, nor will
it constitute or result in the breach of any term, condition or provision of, or
constitute a default under, or accelerate or permit the acceleration of any
performance required by any agreement or other instrument to which Lotus is a
party or by which any part of its property is bound, or violate any law,
regulation, judgment or order binding upon Lotus.
(d) No proceeding is pending or, to the knowledge of Lotus, threatened
against Lotus before any court, governmental agency or arbitral tribunal that
would enjoin or prohibit, or which otherwise questions the validity of, any
action taken or to be taken in connection with this Agreement.
(e) Lotus Programming shall be designed to serve the interest of the
Station's service area.
(f) During the Term of this Agreement, Lotus will hold all licenses and
other permits and authorizations necessary for the operation of the Station, and
such licenses, permits and authorizations are and will be in full force and
effect throughout the Term of this Agreement. There is not pending, or to
Lotus's best knowledge, threatened, any action by the FCC or by any other party
to revoke, cancel, suspend, refuse to renew or modify adversely any
11
<PAGE>
of such licenses, permits or authorizations. To the best of Lotus's knowledge,
Lotus is not in violation of any statute, ordinance, rule, regulation, policy,
order or decree of any federal, state or local entity, court or authority having
jurisdiction over it or the Station, which would have an adverse effect upon
Lotus, its assets, the Station or upon Lotus's ability to perform this
Agreement. Lotus shall not take any action or omit to take any action which
would have an adverse impact upon Lotus, its assets, the Station or upon Lotus'
ability to perform this Agreement. All reports and application required to be
filed with the FCC or any other governmental body during the Term of this
Agreement will be filed in a timely and complete manner. Lotus has, and
throughout the Term of this Agreement will maintain, good title to, or rights by
license, lease or other agreement to use, all of the assets and properties used
in the operation of the Station. During the Term of this Agreement, Lotus shall
not dispose of, transfer, assign or pledge any of such assets and properties,
except with the prior written consent of Unica, if such action would adversely
affect Lotus's performance hereunder or the business and operations of Lotus or
the Station permitted hereby.
(g) At all times during the Term of this Agreement, Lotus shall make
available to Unica, on the premises of the Station, an office, a studio and
appropriate space for the installation of a satellite dish or the use of an
existing satellite dish.
21. Modification and Waiver.
No modification or waiver of any provision of this Agreement shall in
any event be effective unless the same shall be in writing and signed by the
parties, and then such waiver and consent shall be effective only in the
specific instance and for the purpose for which given.
22. Delay in Exercise of Remedies; Remedies Cumulative.
No failure or delay on the part of Lotus or Unica in exercising any
right or power hereunder shall operate as a waiver thereof, nor shall any single
or partial exercise of any such right or power, or any abandonment or
discontinuance of steps to enforce such a right or power, preclude any other or
further exercise thereof or the exercise of any other right or power. The rights
and remedies of Lotus and Unica herein provided are cumulative and are not
exclusive of any right or remedies which they may otherwise have.
23. Construction.
This Agreement shall be construed in accordance with the internal
substantive (that is, without reference to conflict of) laws of the State of
Delaware and the obligations of the parties hereto are subject to all Federal,
state or municipal laws or regulations now or hereafter in force and to the
regulations and policies of the FCC and all other governmental bodies or
authorities presently or hereafter duly constituted. The parties believe that
the terms of this Agreement meet all of the requirements of current FCC policy
for time brokerage agreements for radio stations and agree that they shall
negotiate in good faith to meet any FCC concern
12
<PAGE>
with respect to this Agreement if they are incorrectly interpreting current FCC
policy or if FCC policy as hereafter modified so requires. If the parties cannot
agree to a modification or modifications deemed necessary by either party to
meet FCC requirements, the termination provisions of Section 18 above shall
apply. The parties further agree that they will make all required filings with
the FCC with respect to this Agreement.
24. Headings.
The headings contained in this Agreement are included for convenience
only and no such heading shall in any way alter the meaning of any provision.
25. Successors and Assigns.
This Agreement shall be binding upon and inure to the benefit of the
parties and their respective permitted successors and assigns, including,
without limitation, any permitted transferees or assignees of any kind of the
FCC licenses for the Station.
26. Counterpart Signatures.
This Agreement may be signed in one or more counterparts, each of which
shall be deemed a duplicate original, binding on the parties hereto
notwithstanding that the parties are not signatory to the same original or the
same counterpart.
27. Notices.
Any notice required hereunder shall be in writing and any payment,
notice or other communications shall be deemed given when delivered by hand or
one (1) day after deposit with a recognized overnight courier for overnight
delivery and addressed as follows:
(a) if to Unica:
Radio Unica Corp.
8400 N.W. 52nd Street
Suite 101
Miami, Florida 33176
Attn: Joaquin F. Blaya
with a required copy to:
Skadden, Arps, Slate, Meagher & Flom LLP
1440 New York Avenue, N.W.
Washington, D.C. 20005
Attn: John C. Quale, Esq.
13
<PAGE>
(b) If to Lotus:
Texas Lotus Corp.
c/o Lotus Communications Corp.
6290 Sunset Boulevard
Suite 1600
Los Angeles, California 90028
Attn: Howard A. Kalmenson
with a required copy to:
Robinson Silverman Pearce Aronsohn & Berman LLP
1290 Avenue of the Americas
New York, New York 10104
Attn: Jerome S. Boros, Esq.
or such other address as the addressee may have specified in a notice
duly given to the sender as provided herein.
28. Entire Agreement.
This Agreement (together with the Attachments hereto) and the Option
Agreement embody the entire agreement between the parties regarding the subject
matter hereof and there are no other agreements, representations, warranties, or
understandings, oral or written, between them with respect to the subject matter
hereof. No alteration, modification or change of this Agreement shall be valid
unless it is embodied in a written instrument signed by both of the parties.
29. Severability and Assignment.
If any provision or provisions contained in this Agreement are held to
be invalid, illegal or unenforceable, this shall not affect any other provision
hereof, and this Agreement shall be construed as if such invalid, illegal or
unenforceable provision or provisions had not been contained herein, provided
that the benefits afforded each party hereunder are not materially changed.
Neither party may assign this Agreement without the prior written consent of the
other party and any purported assignment without such consent shall be null and
void and of no legal force or effect, provided that either party may assign this
Agreement if it would constitute a pro forma assignment (on Form 316) under
Section 73.3540(f) of the FCC's rules.
30. No Joint Venture.
The parties agree that nothing herein shall constitute a joint venture
or a principal-agent relationship between them. The parties acknowledge that
call letters, trademarks and other intellectual property shall at all times
remain the property of the respective parties and that
14
<PAGE>
neither party shall obtain any ownership interest in the other party's
intellectual property by virtue of this Agreement.
31. Access to Records.
Each of Lotus and Unica agrees to permit the other party hereto and its
agents and representatives access to all books and records relating to the
operation of the Station that may be in its possession.
32. Beneficiaries.
Nothing in this Agreement, express or implied, is intended to confer on
any person other than the parties hereto and their respective successors and
assigns any rights, remedies, obligations, or liabilities under or by reason of
this Agreement.
33. Further Assurances.
Subject to the terms and conditions herein provided, each of the
parties hereto agrees to use its commercially reasonable efforts to take or
cause to be taken all such further actions, and to do, or cause to be done, all
things necessary, proper or advisable in order to fully effectuate the purposes,
terms and conditions of this Agreement.
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<PAGE>
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on
the date first above written.
RADIO UNICA CORP.
By: /s/ Joaquin F. Blaya
---------------------------
Joaquin F. Blaya
President
TEXAS LOTUS CORP.
By:
---------------------------
Howard A. Kalmenson
President
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<PAGE>
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on
the date first above written.
RADIO UNICA CORP.
By:
---------------------------
Joaquin F. Blaya
President
TEXAS LOTUS CORP.
By: /s/ Howard A. Kalmenson
---------------------------
Howard A. Kalmenson
President
16
<PAGE>
Attachment A
<TABLE>
<CAPTION>
Payment Due Date Amount
- ---------------- ------
<S> <C>
Upon execution $50,000
April 1, 1998 $50,000
July 1, 1998 $50,000
October 1, 1998 $50,000
January 1, 1999 $56,250
April 1, 1999 $56,250
July 1, 1999 $56,250
October 1, 1999 $56,250
January 1, 2000 $62,500
April 1, 2000 $62,500
July 1, 2000 $62,500
October 1, 2000 $62,500
January 1, 2001 $68,750
April 1, 2001 $68,750
July 1, 2001 $68,750
October 1, 2001 $68,750
Quarters commencing on January 1, 2002 through
December 31, 2002 (other than pursuant to renewal
under the last sentence of Section 2) $41,250
Quarters commencing on January 1, 2003 or later
(other than pursuant to renewal under the last
sentence of Section 2) $50,000
</TABLE>
A-1
<PAGE>
Attachment B
<TABLE>
<CAPTION>
Payment Due Date Amount
- ---------------- ------
<S> <C>
January 1, 2002 $50,000
April 1, 2002 $50,000
July 1, 2002 $50,000
October 1, 2002 $50,000
January 1, 2003 $55,000
April 1, 2003 $55,000
July 1, 2003 $55,000
October 1, 2003 $55,000
January 1, 2004 $60,500
April 1, 2004 $60,500
July 1, 2004 $60,500
October 1, 2004 $60,500
</TABLE>
B-1
<PAGE>
Attachment C
FORM OF PAYOLA AFFIDAVIT
City of _______________________ )
County of ____________________ ) SS:
State of ______________________ )
ANTI-PAYOLA/PLUGOLA AFFIDAVIT
__________________________, being first duly sworn, deposes and says as follows:
1. He/She is ____________________________ for ___________________________.
Position
2. He/She has acted in the above capacity since _________________________.
3. No matter has been broadcast by Station KZDC for which service, money
or other valuable consideration has been directly or indirectly paid,
or promised to, or charged, or accepted, by him/her from any person,
which matter at the time so broadcast has not been announced or
otherwise indicated as paid for or furnished by such person.
4. So far as he/she is aware, no matter has been broadcast by Station KZDC
for which service, money, or other valuable consideration has been
directly or indirectly paid, or promised to, or charged, or accepted by
Station KZDC or by any independent contractor engaged by Station KZDC
in furnishing programs, from any person, which matter at the time so
broadcast has not been announced or otherwise indicated as paid for or
furnished by such person.
-------------------------------------
Affiant
Subscribed and sworn to before me
this __ day of __________, 19__.
- --------------------------------------
Notary Public
My Commission expires: ________________
C-1
[cad 228]g
<PAGE>
Exhibit 10.12
TIME BROKERAGE AGREEMENT
This Time Brokerage Agreement ("Agreement") is made and entered into as
of June 9, 1998, by and between Achievement Radio Holdings, Inc., a Delaware
corporation ("Achievement"), and Radio Unica Corp., a Delaware corporation
("Unica").
W I T N E S S E T H
WHEREAS, Personal Achievement Radio of Illinois, Inc. is the FCC
licensee (the "FCC Licensee") of commercial AM broadcast station WYPA (AM),
licensed to broadcast on frequency 820 kHz at Chicago, Illinois (the "Station");
WHEREAS, Achievement has entered into an agreement to purchase 100
shares of common stock of the FCC Licensee, representing all of the issued and
outstanding capital stock of the FCC Licensee;
WHEREAS, an application is pending before the Federal Communications
Commission (the "FCC"or the "Commission") to transfer control of the FCC
Licensee and the Station to Achievement;
WHEREAS, Unica and FCC Licensee have agreed to enter into an Option
Agreement, (the "Option Agreement"), pursuant to which Achievement, following
the transfer of control of the FCC Licensee and the Station, will grant to Unica
an option (the "Option") to purchase substantially all of the assets of the
Station pursuant to the Asset Purchase Agreement (the "Asset Purchase
Agreement") attached as an exhibit to the Option Agreement;
WHEREAS, Achievement desires to make available to Unica substantial
broadcasting
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time on the Station subject to the terms of this Agreement; and
WHEREAS, Unica is engaged in the business of radio broadcasting and
desires to avail itself of the Station's available broadcast time.
NOW, THEREFORE, for and in consideration of the mutual
covenants herein contained, the parties hereto have agreed and do agree as
follows:
1. Commencement Date And Facilities. Commencing 12:01 a.m. on Tuesday,
June 9, 1998 or upon the closing of the transaction to transfer control of the
FCC Licensee and the Station to Achievement, whichever is later, (the
"Commencement Date"), Achievement shall broadcast, or cause to be broadcast,
over the Station transmission facilities certain programming, consisting of
programs, announcements and advertising (the "Programming"), originating at the
Station's studio facility or delivered to Achievement by Unica in compliance
with the provisions of this Agreement. Unica shall deliver the Programming to
the Station's studio or transmitter site at Unica's exclusive cost, by satellite
or other means reasonably acceptable to Achievement. On the Commencement Date,
Achievement agrees to use its best efforts to cause the FCC Licensee to execute
a counterpart of this Agreement, dated as of the Commencement Date, and such
other instruments as may be reasonably necessary to confirm the undertaking of
the FCC Licensee to be bound by the terms and provisions of this Agreement.
2. License To Use Studio Facilities. Unica is hereby granted a license
to utilize the Station's studio facilities located at 401 North Wabash Ave.,
Suite 605, Chicago, Illinois (the "Premises") during the term of this Agreement
subject to Achievement continuing control over such facilities as provided
elsewhere hereunder. During the term of this Agreement, Unica shall be obligated
to make no payments for the license to use the Station's studio facilities
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other than the fee called for by Section 4 hereof. Unica shall not make any
material physical improvements or changes to the Premises without the prior
written consent of the FCC Licensee, which consent shall not be unreasonably
denied nor delayed; provided, however, that Unica may, at its own expense,
install on the Premises such equipment, including, without limitation, satellite
receivers, as necessary to permit Unica to broadcast the Programming on the
Station. Such installation shall be subject to the FCC Licensee's approval and
supervision and consistent with the FCC Licensee's lease for such studio. Title
to any such equipment installed on the Premises by Unica shall remain with
Unica. Unica does not assume, and shall not be deemed to assume, under this
Agreement or otherwise by reason of the transactions contemplated by this
Agreement, any liabilities, obligations or commitments of the FCC Licensee of
any nature whatsoever, regardless of whether arising from or relating to the
ownership, operations or business of the Station. This Agreement shall not
constitute an assignment of any contract or lease to which the FCC Licensee is a
party, including without limitation any studio or tower leases. Consistent with
this Agreement, the FCC Licensee shall continue to perform all of its
obligations under all contracts, leases and other agreements in a timely manner
and otherwise keep all such contracts and leases in full force and effect.
3. Term. The term of this Agreement shall commence on the Commencement
Date. Starting on the Commencement Date Achievement agrees to make broadcast
time available to Unica as described below and to cause to be broadcast on the
Station Unica radio programs. This Agreement shall continue for a period of
twelve (12) months from the Commencement Date, unless sooner terminated,
extended or renewed as hereinafter provided (the "Initial Term"). In the event
the Option is exercised by Unica, the Term (as defined below)
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of this Agreement shall end upon the Closing (as defined in the Asset Purchase
Agreement) or the termination of the Asset Purchase Agreement pursuant to the
terms thereof; provided, however, that it is expressly agreed and understood by
the parties that, subject to the provisions of Section 11.2 and Section 11.3
hereof, termination of the Asset Purchase Agreement shall not result in the
Initial Term of this Agreement ending prior to the date that is twelve (12)
months from the Commencement Date. Unica, at its sole option, by giving written
notice to Achievement at least four (4) months prior to the ending of the
Initial Term, may (subject to the provisions of the Option Agreement) extend the
term of this Agreement for an additional twelve (12) months (the "Renewal Term,"
and together with the Initial Term the "Term").
4. Consideration.
Unica hereby agrees to pay Achievement a monthly fee of One
Hundred and Eighteen Thousand Dollars ($118,000) per month during the Initial
Term and One Hundred and Twenty One Thousand, Five Hundred and Forty Dollars
($121,540) per month during the Renewal Term. In the event that the Term
includes any partial month, the parties hereto agree that the monthly fee for
such partial month shall be prorated accordingly based upon the number of days
in that particular month. Amounts payable by Unica to Achievement pursuant to
this Agreement shall be paid in advance without notice or demand on the first
business day of each month during the term hereof, except, that Unica shall pay
to Achievement on the Commencement Date the fee due for the first month pursuant
to this Section, prorated accordingly. Payments will be made by check delivered
to Achievement at the address specified in Section 13 hereof, or such other
address as Achievement may select, provided that, if Achievement has given wire
transfer instructions to Unica, Unica will be required to
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make all payments by wire transfer of funds to the account specified by
Achievement.
5. Broadcast Operations.
5.1. Unica Programming. Commencing on the Commencement Date,
Unica shall furnish or cause to be furnished, at its own cost, material in
broadcast-ready form for broadcast on the Station pursuant to this Agreement at
all times other than the times of Achievement programming (the "Programming
Time"), and all such Unica programs shall accord with the Communications Act of
1934, as amended (as so amended, the "Act"), and all other applicable statutes
and FCC policies and requirements. The Programming provided by Unica shall be
sufficient for the Station to meet the minimum operating requirements under the
FCC rules and the Station's FCC license. Both parties acknowledge that the
Station is licensed to operate only during daytime hours specified by the FCC.
All rights, including without limitation all ownership rights and rights of use,
relating to the Programming shall belong exclusively to Unica, and Achievement,
except as provided herein, shall have no rights of any kind in or to such
programs and hereby disclaims all rights thereto.
5.2 Achievement Programming. Achievement reserves the
following periods to present Achievement programming: Saturday mornings from
6:00 a.m. to 8:00 a.m. or, during months when the station is not licensed to
commence operations at 6:00 a.m., the first two hours of licensed operation on
Saturday morning. Upon reasonable notice from Achievement, Unica instead of
Achievement will program those hours at Unica's expense and Unica will retain
any proceeds resulting therefrom. The fee provided in Section 4 shall not be
adjusted regardless of whether Unica programs this period.
5.3. Maintenance. The FCC Licensee shall use its best efforts,
if
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commercially reasonable and possible, to schedule and perform any maintenance
work affecting the operation of the Station at times other than during drive
time and World Cup Soccer matches. In the event that such maintenance work
cannot be scheduled and performed at such other times, the FCC Licensee shall
notify Unica, if possible, and an appropriate time will be determined after
consultation with Unica. The parties acknowledge, however, that the Station's
antenna currently is diplexed with that of WSBC, which is not owned by the FCC
Licensee, and that maintenance work on the WSBC facility is beyond the control
of the FCC Licensee or Achievement.
5.4. Interruption Of Normal Operations; Force Majeure. Any
failure or impairment of facilities or any delay or interruption in the
broadcast of programs, in whole or in part, due to a cause beyond the control of
Achievement, shall not constitute a breach of this Agreement by Achievement. If
the Station suffers loss or damage of any nature to its transmission facilities
which results in the interruption of service or the inability of the Station to
operate with its maximum authorized facilities, Achievement shall immediately
notify Unica.
6. Station Programming Policies.
6.1. Broadcast Station Programming Policy Statement.
Achievement has adopted, and the FCC Licensee and Achievement will enforce, a
Broadcast Station Programming Policy Statement for the Station (the "Policy
Statement"), a copy of which appears as Attachment I hereto. Unica agrees and
covenants that all programming, advertising spots, promotional material and
announcements that it provides for broadcast on the Station shall comply in all
material respects with (i) the Policy Statement; (ii) all applicable federal,
state and local laws and regulations, including the rules and regulations of the
FCC and the Federal Trade
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Commission ("FTC"), and the Act; and (iii) all subsequent changes to such rules
and regulations and the Act. Unica acknowledges that neither Achievement nor the
FCC Licensee has urged, counseled or advised the use of any unfair business
practice. If either Achievement or the FCC Licensee determines that a program
supplied by Unica, within its sole discretion, does not comply with the Policy
Statement or conform to the rules and regulations of the FCC it may, upon prior
written notice to Unica (to the extent time permits such notice), suspend or
cancel such program without liability to Achievement or the FCC Licensee,
subject to Section 8.2 herein.
6.2. Unica Compliance With Copyright Act. Unica represents
and warrants to Achievement that Unica has full legal authority for the
broadcast of its programming on the Station, and that Unica shall not provide
for broadcast of any material in violation of the Copyright Act or any
copyright rules and regulations. All music supplied by Unica shall be: (i)
licensed by ASCAP, SESAC or BMI; (ii) in the public domain; or (iii) cleared
at the source by Unica. Unica shall be responsible for payment of all such
license fees. The right to use the programming and to authorize its use in
any manner shall be and remain vested in Unica.
6.3. Sales. Unica shall retain all revenues from the sale
of advertising time within the programming it provides to Achievement. Unica
shall be responsible for payment of the commissions due to any national sales
representative engaged by it for the purpose of selling national advertising
which is carried during the programming it provides to Achievement.
Achievement shall retain all revenues from its sale of Station's advertising
during the hours each week in which Achievement provides the Station with its
own programming outside of the Programming Time.
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6.4. Payola. Unica agrees that it will not accept any
consideration, compensation, gift or gratuity of any kind whatsoever, regardless
of its value or form, including, but not limited to, a commission, discount,
bonus, material, supplies or other merchandise, services or labor (collectively
"Consideration"), whether or not pursuant to written contracts or agreements
between Unica and merchants or advertisers, unless the payer is identified in
the program for which Consideration was provided as having paid for or furnished
such Consideration, in accordance with the Act and FCC requirements. Unica
agrees that every six (6) months, or more frequently at the request of the FCC
Licensee or Achievement, it will execute and provide Achievement with a Payola
Affidavit from each of its employees involved with the Station substantially in
the form attached hereto as Attachment II.
6.5. Cooperation On Programming. Unica shall provide the FCC
Licensee with information concerning such of Unica's programs as are responsive
to community issues, as the FCC Licensee shall reasonably request, so as to
assist the FCC Licensee in the satisfaction of its public service programming
obligations. Unica shall also provide Achievement upon request such other
information necessary to enable the FCC Licensee to prepare records and reports
required by the Commission or other local, state or federal government entities,
including quarterly issues/programs lists.
6.6. Station Identifiers and EAS. Unica shall cooperate with
the FCC Licensee to ensure compliance with the FCC rules regarding the broadcast
of hourly station identifiers and the emergency alert system. Achievement hereby
grants to Unica an exclusive license to use such call letters and other
identifiers as are currently used by the Station (the "Station's Licensed
Identifiers") in connection with the broadcast of Unica's programs on the
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Station, but for no other purpose. The license granted herein shall expire on
the expiration or earlier termination of this Agreement. Unica shall use the
Station's Licensed Identifiers in Unica's programming in a manner consistent
with the use thereof by Achievement in broadcasts of the Station immediately
prior to the Commencement Date during the entire term of this Agreement and as
may be required by the Act or the rules, regulations and policies of the FCC. In
addition, the FCC Licensee agrees, at Unica's cost, to cooperate with Unica in
applying for a change or changes in the Station's Licensed Identifiers ("New
Station Identifiers") should such a change be deemed appropriate by Unica, so
long as such New Station Identifiers are not offensive or contrary to the public
interest.
6.7. Political Advertising. Unica shall cooperate with the FCC
Licensee to comply with all rules of the FCC regarding political broadcasting,
including those requiring access by any qualified political candidate for
federal elective office, and the Station's political broadcast policies. Unica
shall promptly supply to the FCC Licensee such information, including all
inquiries concerning the broadcast of political advertising, as may be necessary
to comply with FCC rules and policies, including the lowest unit rate, equal
opportunities, reasonable access, political file and related requirements of
federal law and regulations. Achievement shall cause the FCC Licensee to
develop, in consultation with Unica, a statement which discloses its political
broadcasting policies to political candidates, and Unica shall follow those
policies and rates in the sale of political programming and advertising. In the
event that Unica fails to satisfy the political broadcasting requirements under
the Act and the rules and regulations of the FCC and such failure inhibits the
FCC Licensee in its compliance with the political broadcasting requirements of
the FCC, then to the extent reasonably necessary to assure
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such compliance, Unica shall either (i) promptly reimburse the FCC Licensee for
the cost of rebates to political advertisers or (ii) release broadcast time
and/or advertising availabilities to the FCC Licensee at no cost to the FCC
Licensee.
6.8. Handling Of Mail. Except as required to comply with FCC
rules and policies following consummation of the assignment, including those
regarding the maintenance of the public inspection file, Achievement and the FCC
Licensee shall not be required to receive or handle mail, cables, telegraph or
telephone calls in connection with programs provided by Unica unless Achievement
at the request of Unica has agreed in writing to do so.
6.9. Insurance. Unica shall maintain throughout the term of
this Agreement insurance sufficient to cover general liability and errors and
omissions with regard to the programming it provides the Station. Such insurance
shall name Achievement as an insured party.
6.10. Achievement Control Of Programming. Achievement and the
FCC Licensee shall maintain absolute rights to suspend or preempt programming as
provided in Section 6.1 herein, and the FCC Licensee's right to suspend or
preempt programming as provided in Section 8.1 herein.
7. Responsibility For Employees And Expenses. Unica shall employ and be
responsible for the salaries, commissions, taxes, insurance and all other
related costs of all personnel and property involved in the production and
delivery of Unica's programming. Whenever on the Station's premises, Unica's
personnel shall be subject to the supervision and direction of the FCC Licensee.
Unica shall be responsible for all liabilities, debts and obligations of Unica
based upon the purchase of air time and delivery of programming including,
without
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limitation, accounts payable, barter agreements and unaired advertisements.
Achievement shall cause the FCC Licensee to provide Unica with ground or roof
rights as necessary for a satellite receive dish up to 3.5 meters in diameter to
receive Unica's programming at or near the Station's studio facility, subject to
the approval of the FCC Licensee's landlord. The FCC Licensee shall be
responsible for the salaries of its own employees at the Station.
8. FCC Licensee's Operation Of Station. Notwithstanding any other
provision of this Agreement, the FCC Licensee shall have full authority and
power over the operation of the Station during the period of this Agreement,
including the Station's finances, personnel and programming policies.
8.1 FCC Licensee Control Of Station Operations. Unica
agrees that the FCC Licensee shall retain control over the policies, programming
and operations of the Station; including, without limitation, (i) the right to
accept or reject any programming or advertisements provided by Unica pursuant to
Section 6.1, (ii) the right to preempt any programs provided by Unica that are
not in the public interest, or in order to broadcast a program deemed by the FCC
Licensee to be of greater national, regional or local interest, and (iii) the
right to take any other actions necessary for compliance with federal, state and
local laws, the Act and the rules, regulations and policies of other federal
government entities, including the FTC and the Department of Justice. The FCC
Licensee shall use its best efforts, to the extent possible, to give Unica
reasonable notice of its intention to preempt Unica's programs. The FCC Licensee
also shall retain the right to break into Unica's programming in case of an
emergency.
8.2. Preemption Or Rejection Of Programming; Service
Interruption.
In the event that the FCC Licensee or Achievement
ntentionally preempts or
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rejects programming from Unica for any reason based upon the content of such
programming, pursuant to the terms of this Agreement, Unica shall receive a
payment credit in an amount equal to the loss of revenue by Unica which shall
equal the loss of the Station's local and national revenues and the Station's
allocation of Radio Unica network revenues. The Station's allocation of Radio
Unica network revenues shall be equal to the percentage of Radio Unica network
revenues that is the same percentage determined by dividing the Hispanic
population of the Chicago market by the total Hispanic population reached by the
Radio Unica network. Unica shall provide Achievement with documentation
sufficient to support its calculation regarding lost revenue. The amount due to
Unica following the proration shall be deducted from the next monthly payment
made by Unica to Achievement. In the event that the Station experiences a
Service Interruption as defined herein, the amount due to Achievement for that
month pursuant to Section 4 of this Agreement shall be prorated based on the
percentage that the total hours in that calendar month of Programming not aired
due to a Service Interruption bears to the total amount of Programming that
Unica would have broadcast over the Station during the month if no Service
Interruption had occurred. The amount due to Unica following the proration shall
be deducted from the next monthly payment made by Unica to Achievement;
provided, however, that no credit shall be given based upon a Service
Interruption unless the Service Interruptions in any month exceed two (2) hours
in the aggregate. Moreover, no credit shall be given for any Service
Interruption caused by the negligent or intentional act or omission of Unica
and/or its employees or agents. For purposes of this section, "Service
Interruption" is defined as the Station being off the air, or not operating with
at least ninety percent (90%) of its licensed power, during the Programming Time
but shall not include the Station being off
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the air in whole or in part, due to a cause beyond the reasonable control of
Achievement.
8.3. Licensee Responsibility For FCC Compliance. The FCC
Licensee shall at all times be solely responsible for meeting all of the
Commission's requirements with respect to public service programming, for
maintaining the political and public inspection files and the Station logs, for
the preparation of issues/programs lists, and for retaining and supervising an
engineer to ensure compliance with the Commission's rules and regulations
governing the technical operation of the Station. Unica shall provide the FCC
Licensee with information necessary to maintain all necessary records to permit
the FCC Licensee to meet its obligations under this paragraph.
9. Indemnification.
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9.1. Unica shall indemnify and hold the FCC Licensee,
Achievement and their respective officers, directors, shareholders, agents, and
employees harmless against any and all claims, damages, liabilities, costs, and
expenses (including by way of example and without limitation, reasonable
attorneys' fees) (individually or collectively "Damages") arising out of (a)
libel, slander, illegal competition or trade practice, infringement of
trademarks, trade names, or program titles, violation of rights of privacy,
infringement of copyrights or proprietary rights and any other violations of the
rights of any third party, resulting from the broadcast of the Unica's programs,
or (b) any action taken by Unica or its employees or agents with respect to the
Station, or any failure by Unica or its employees or agents to take any action
with respect to the Station, including but not limited to Unica's payment and
performance of obligations and liabilities, unless resulting from a failure by
Achievement to perform hereunder, or (c) Unica's breach of any of its
representations, warranties or covenants set forth in this Agreement. Unica's
obligation to hold Achievement harmless under this Section shall survive a
termination of this Agreement until the expiration of all applicable statutes of
limitations.
9.2. Achievement and the FCC Licensee shall indemnify and hold
Unica and its officers, directors, shareholders, agents, and employees harmless
against any and all Damages arising out of (a) libel, slander, illegal
competition or trade practice, infringement of trademarks, trade names, or
program titles, violation of rights of privacy, infringement of copyrights or
proprietary rights and any other violations of the rights of any third party,
resulting from the broadcast of Achievement's or the FCC Licensee's programs, or
(b) any action taken by Achievement or the FCC Licensee or their employees or
agents with respect to the Station, or any failure by Achievement or the FCC
Licensee or their employees or agents to take any action
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with respect to the Station, including but not limited to Achievement's and the
FCC Licensee's payment and performance obligations and liabilities, unless
resulting from a failure by Unica to perform hereunder, or (c) Achievement's or
the FCC Licensee's breach of any of its representations, warranties or covenants
set forth in this Agreement. Achievement and the FCC Licensee's obligation to
hold Unica harmless under this Agreement shall survive any termination of this
Agreement until the expiration of all applicable statutes of limitations.
10. Default.
10.1. Events Of Default. The following shall, after the
expiration of the applicable cure periods, constitute Events of Default:
(i) Unica's failure to timely make any of the
monthly payments as provided in Section 4 hereto.
(ii) the default by either party hereto in the
material observance or performance of any covenant, condition or agreement
contained herein, or if either party (a) shall make general assignment for the
benefit of creditors, or (b) files or has filed against it a petition for
bankruptcy, reorganization or an arrangement for the benefit of creditors, or
for the appointment of a receiver, trustee or creditor representative for the
property or assets of such party under any federal or state insolvency law,
which, if filed against such party, has not been dismissed or discharged within
sixty (60) days;
(ii) if any material representation or warranty
herein made by either party hereto, or in any certificate or document furnished
by either party to the other pursuant to the provisions hereof, shall prove to
have been false or misleading in any material respect as of the time made or
furnished.
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10.2. Cure Periods. An Event of Default shall not be deemed to
have occurred until five (5) business days after the non-defaulting party has
provided the defaulting party with written notice specifying the event or events
that if not cured would constitute an Event of Default and specifying the action
necessary to cure the default within such period. This period may be extended
for a reasonable period of time, if the defaulting party is acting in good faith
to cure the default and such default is not materially adverse to the other
party.
11. Termination.
11.1. This Agreement shall terminate on the first anniversary
of the Commencement Date, unless terminated, extended or renewed as provided in
Section 3 or Section 11 hereof.
11.2. Termination Upon Default. Upon the occurrence of an
Event of Default, the non-defaulting party may terminate this Agreement provided
that it is not also in material default hereunder. Notwithstanding the
foregoing, nor any provision of this Agreement, any termination of this
Agreement: (a) shall not constitute an election of remedies with regard to such
default or such termination; and (b) shall not affect, or limit, the ability of
the non-defaulting party to avail itself of any and all remedies which otherwise
would have been available to it, at law or in equity.
11.3 Termination Upon Order Of Governmental Authority. If this
Agreement is challenged at the FCC, whether or not in connection with the
Station's license renewal application, counsel for the FCC Licensee and
Achievement and counsel for the Unica shall jointly defend the Agreement and the
parties' performance thereunder throughout all FCC proceedings at the sole
expense of the Unica. If portions of this Agreement are questioned,
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challenged or disapproved by the FCC, then the parties shall reform the
Agreement as necessary to satisfy the FCC's concerns. If the parties are unable
to reform the Agreement as necessary to satisfy such concerns, this Agreement
shall terminate. In the event that a federal, state or local government
authority designates a hearing with respect to the continuation or renewal of
any authorization held by the FCC Licensee for the operation of the Station or
initiates any revocation or other proceeding with respect to the authorizations
issued to the FCC Licensee for the operation of the Station, and Achievement
elects to contest the action, then Achievement shall be responsible for its
expenses incurred as a consequence of any such proceeding; provided, however,
that Unica shall at its own expense cooperate and comply with any reasonable
request of Achievement to assemble and provide information relating to Unica's
performance under this Agreement to the appropriate government authority. In the
event of termination of this Agreement pursuant to any government order(s),
including a revocation or non-renewal of any authorization held by the FCC
Licensee, Unica shall pay to Achievement any fees due but unpaid as of the date
of termination as may be permitted by such order(s).
11.4. Cooperation Upon Termination. If this Agreement is
terminated, for whatever reason, the parties agree to reasonably cooperate with
one another to enable Unica to fulfill advertising or other programming
contracts then outstanding, in which event Achievement shall receive as
compensation for the carriage of such programming that which otherwise would
have been paid to Unica. Upon termination of this Agreement, all sums owing to
Achievement prior to the date of termination which have not been paid shall be
paid in full and Unica shall be entitled immediately to cease providing any
further Programming to be broadcast on the Station, and any amounts which have
been prepaid to Achievement beyond the termination
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date shall be immediately due and payable to Unica; provided, however, that if
such termination is not as a result of a default by Achievement under this
Agreement, Achievement may require Unica to continue to provide Programming to
the Station (at no cost to Unica) for an additional sixty (60) days after the
termination date.
11.5. Specific Performance. In addition to its rights of
termination hereunder (and in addition to any other remedies available to it or
provided under law), each party may seek specific performance of this Agreement,
in which case the other party shall waive the defense of an adequate remedy at
law and interpose no opposition, legal or otherwise, as to the propriety of
specific performance as a remedy hereunder.
12. Representations, Warranties And Covenants. Both
Achievement and Unica represent that they are legally qualified, empowered and
able to enter into this Agreement, and that the execution, delivery and
performance hereof shall not constitute a breach or violation of any agreement,
contract or other obligation to which either party is subject or by which it is
bound. Without limiting the foregoing, Unica certifies that this Agreement
complies and will continue to comply with the Commission's multiple ownership
rules and policies, including 47 C.F.R. ss. 73.3555, as now in effect or
hereinafter amended.
13. Notices. All necessary notices and requests permitted or
required under this Agreement shall be in writing and shall be sent (i) by
facsimile transmission to the telecopy numbers listed herein, (ii) mailed by
certified mail, return receipt requested, postage prepaid, to the addresses
listed herein, or (iii) sent for overnight delivery via a nationally-recognized
overnight delivery service to the addresses listed herein. Such notices and
requests shall be deemed to have been given (i) if sent by facsimile, upon
sender's receipt of a facsimile
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confirmation sheet, (ii) if mailed, upon receipt evidenced by return
signature card by postal service to sender, or (iii) if sent for overnight
delivery, upon receipt evidenced by confirmation of delivery by delivery
service.
If to Unica: Radio Unica Corp.
8400 N.W. 52nd Street
Suite 101
Miami, FL 33166
Attn: Joaquin F. Blaya
FAX: (305) 442-4077
With copy to: Skadden Arps Slate Meagher & Flom LLP
1440 New York Avenue, NW
Washington, DC 20005-2111
Attn: John C. Quale Esq.
FAX: (202) 371-7475
If to Achievement
and or
the FCC Licensee: Achievement Radio Holdings, Inc.
c/o TSG Capital Group L.L.C.
177 Broad Street
12th Floor
Stamford, CT 06901
Attn: Darryl Thompson
FAX: (203) 406-1590
With copy to: Fleischman and Walsh, L.L.P.
1400 Sixteenth Street, N.W.
Suite 600
Washington, D.C. 20036
Attn: Howard A. Topel, Esq.
FAX: (202) 745-0916
14. Arbitration. Any dispute arising under or related to
this Agreement shall be resolved by binding arbitration in Washington, D.C. in
accordance with the then existing Rules of Practice and Procedure of Judicial
Arbitration & Mediation Services, Inc., and judgment
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upon any award rendered by the arbitrator(s) may be entered by any State or
Federal Court having jurisdiction thereof. The prevailing party shall be awarded
all of its legal fees, disbursements and costs of arbitration.
15. Modification And Waiver. No modification of any
provision of this Agreement shall in any event be effective unless it is in
writing and then such modification shall be effective only in the specific
instance and for the purpose for which given.
16. Construction. This Agreement shall be construed in accordance
with the Communications Act of 1934, as amended, the laws of the State of
Delaware and the rules, regulations and policies of the Commission.
17. Assignment. This Agreement may not be assigned by Unica
without the approval of Achievement, except for an entity under common control.
Achievement and the FCC Licensee may assign this Agreement to another entity
under common control; to any licensee of the Station; or to another third party
with the approval of Unica.
18. Counterpart Signatures. This Agreement may be
signed in one or more counterparts, each of which shall be deemed a duplicate
original, binding on the parties hereto notwithstanding that the parties are not
signatory to the original or the same counterpart. This Agreement shall be
effective as of the date first above written.
19. Entire Agreement. This Agreement (together with the
Attachments hereto) and the Option Agreement constitute the entire agreement
between the parties and there are no other agreements, representations,
warranties or understanding, oral or written, between them with respect to the
subject matter hereof. No alteration, modification or change of this Agreement
shall be valid unless by like written instrument executed by an authorized
principal.
20
<PAGE>
20. No Partnership Or Joint Venture Created; Expenses.
Nothing in this Agreement shall be construed to make Achievement and Unica
partners or joint venturers or to afford any rights to any third party other
than as expressly provided herein. Each party shall bear its own expenses in
connection with its performance under this Agreement.
21. Severability. Subject to the provisions hereof, in the
event any provision contained in this Agreement is held to be invalid, illegal
or unenforceable, such holding shall not affect any other provision hereof and
this Agreement shall be construed as if such invalid, illegal or unenforceable
provision had not been contained herein.
22. Confidentiality, Public Notices. Unica, the FCC
Licensee and Achievement each agrees that it will use its best efforts to keep
confidential (except for disclosure requirements of federal or state securities
laws and securities markets along with such disclosure to attorneys, bankers,
underwriters investors, etc. as may be appropriate in the furtherance of this
transaction, or disclosure requirements of the FCC) all information of a
confidential nature obtained by it from each of the other parties, including the
terms of any proposal, in connection with the transactions contemplated by this
Agreement. Unica and Achievement shall jointly prepare and determine the timing
of any press release or other announcement to the public or the news media
relating to the execution of this Agreement. No party hereto will issue any
press release or make any other public announcement relating to the transactions
contemplated by this Agreement without the prior consent of each other party
hereto, except that any party may make any disclosure required to be made by it
under applicable law (including federal or state securities laws and the
regulations of securities markets) if it determines in good faith that it is
appropriate to do so and gives prior notice to each other party
21
<PAGE>
hereto.
IN WITNESS WHEREOF, the parties have executed this Agreement to be
effective as of the date first above written.
Achievement Radio Holdings, Inc.:
By: /s/Darryl Thompson
---------------------------------
Darryl Thompson
President
Radio Unica Corp.:
By: /s/Joaquin F. Blaya
---------------------------------
Joaquin F. Blaya
Chairman and Chief Executive Officer
22
<PAGE>
IN WITNESS WHEREOF, the parties have executed this Agreement to be
effective as of the date first above written.
Achievement Radio Holdings, Inc.:
By: /s/Darryl Thompson
---------------------------------
Darryl Thompson
President
Radio Unica Corp.:
By:
---------------------------------
Joaquin F. Blaya
Chairman and Chief Executive Officer
Personal Achievement Radio of Illinois, Inc., hereby agrees to
the terms of this Agreement and further agrees, as of the Commencement Date (as
defined in this Agreement), to be bound by the terms and provisions hereof.
Personal Achievement Radio Of Illinois, Inc.:
By: /s/ Darryl Thompson
---------------------------------
Name:
Title:
23
<PAGE>
ATTACHMENT I
Broadcast Station Programming Policy Statement
The following sets forth the policies generally applicable to the
presentation of programming and advertising over Radio Station WYPA(AM),
Chicago, Illinois. All programming and advertising broadcast by the station must
conform to these policies and to the provisions of the Communications Act of
1934, as amended [the "Act"], and the Rules and Regulations of the Federal
Communications Commission ["FCC"]. This policy shall be in addition to any other
programming requirements set forth in the Time Brokerage Agreement.
Station Identification
The station must broadcast a station identification announcement once
an hour as close to the hour as feasible in a natural break in the programming.
The announcement must include (1) the station's call letters (currently,
"WYPA"); followed immediately by (2) the station's community of license
("Chicago, Illinois").
Broadcast of Telephone Conversations
Before recording a telephone conversation for broadcast or broadcasting
such a conversation simultaneously with its occurrence, any party to the call
must be informed that the call will be broadcast or will be recorded for later
broadcast, and the party's consent to such broadcast must be obtained. This
requirement does not apply to calls initiated by the other party which are made
in a context in which it is customary for the station to broadcast telephone
calls.
Sponsorship Identification
When money, service, or other valuable consideration is either directly
or indirectly paid or promised as part of an arrangement to transmit any
programming, the station at the time of broadcast shall announce (1) that the
matter is sponsored, either in whole or in part; and (2) by whom or on whose
behalf the matter is sponsored. Products or services furnished to the station in
consideration for an identification of any person, product, service, trademark
or brand name shall be identified in this manner.
In the case of any political or controversial issue broadcast for which
any material or service is furnished as an inducement for its transmission, an
announcement shall be made at the beginning and conclusion of the broadcast
stating (1) the material or service that has been furnished; and (2) the
person(s) or association(s) on whose behalf the programming is transmitted.
However, if the broadcast is 5 minutes duration or less, the required
announcement need only be made either at its beginning or end.
<PAGE>
Prior to any sponsored broadcast involving political matters or
controversial issues, the station shall obtain a list of the chief executive
officers, members of the executive committee or board of directors of the
sponsoring organization and shall place this list in the station's public
inspection file.
Payola/Plugola
The station, its personnel, or its programmers shall not accept or
agree to accept from any person any money, service, or other valuable
consideration for the broadcast of any matter unless such fact is disclosed to
the station so that all required station identification announcements can be
made. All persons responsible for station programming must, from time to time,
execute such documents as may be required by station management to confirm their
understanding of and compliance with the FCC's sponsorship identification
requirements.
Rebroadcasts
The station shall not rebroadcast the signal of any other broadcast
station without first obtaining such station's prior written consent to such
rebroadcast.
Fairness
Station shall seek to afford coverage to contrasting viewpoints
concerning controversial issues of public importance.
Personal Attacks
The station shall not air attacks upon the honesty, character,
integrity or like personal qualities of any identified person or group. If such
an attack should nonetheless occur during the presentation of views on a
controversial issue of public importance, those responsible for programming
shall submit a tape or transcript of the broadcast to station management and to
the person attacked within 48 hours, and shall offer the person attacked a
reasonable opportunity to respond.
Political Editorials
Unless specifically authorized by Licensee, Broker shall not air any
editorial which either endorses or opposes a legally qualified candidate for
public office.
Political Broadcasting
All "uses" of the station by legally qualified candidates for elective
office shall be in accordance with the Act and the FCC's Rules and policies,
including without limitation, equal opportunities requirements, reasonable
access requirements, lowest unit charge requirements
<PAGE>
and similar rules and regulations.
Obscenity and Indecency
The Station shall not broadcast any obscene material. Material is
deemed to be obscene if the average person, applying contemporary community
standards in the local community, would find that the material, taken as a
whole, appeals to the prurient interest; depicts or describes in a patently
offensive way sexual conduct specifically defined by applicable state law; and
taken as a whole, lacks serious literary artistic, political or scientific
value.
The station shall not broadcast any indecent material outside of the
periods of time prescribed by the Commission. Material is deemed to be indecent
if it includes language or material that, in context, depicts or describes, in
terms patently offensive as measured by contemporary community standards for the
broadcast medium, sexual or excretory activities or organs.
Billing
No entity which sells advertising for airing on the station shall
knowingly issue any bill, invoice or other document which contains false
information concerning the amount charged or the broadcast of advertising which
is the subject of the bill or invoice. No entity which sells advertising for
airing on the station shall misrepresent the nature or content of aired
advertising, nor the quantity, time of day, or day on which such advertising was
broadcast.
Contests
Any contests conducted on the station shall be conducted substantially
as announced or advertised. Advertisements or announcements concerning such
contests shall fully and accurately disclose the contest's material terms. No
contest description shall be false, misleading or deceptive with respect to any
material term.
Hoaxes
The station shall not knowingly broadcast false information concerning
a crime or catastrophe.
Lottery
The station shall not advertise or broadcast any information concerning
any lottery (except any Illinois or other state lottery). The station may
advertise and provide information about lotteries conducted by non-profit
groups, governmental entities and in ceratin situations,
<PAGE>
by commercial organizations, if and only if there is no state or local
restriction or ban on such advertising or information and the lottery is legal
under state or local law. Any and all lottery advertising must first be approved
by station management.
Advertising
Station shall comply with all federal, state and local laws concerning
advertising, including without limitation, all laws concerning misleading
advertising, and the advertising of alcoholic beverages.
<PAGE>
ATTACHMENT II
Form of Payola Affidavit
City of )
------------------- )
County of ) SS:
----------------- )
State of )
------------------
ANTI-PAYOLA/PLUGOLA AFFIDAVIT
, being first duly sworn, deposes and says as
- ---------------------------------
follows:
1. I am for .
----------------------- ------------------------
Position
2. I have acted in the above capacity since .
----------------
3. No matter has been broadcast by Station WYPA(AM) which service, money
or other valuable consideration has been directly or indirectly paid,
or promised to, or charged, or accepted, by me from any person, which
matter at the time so broadcast has not been announced or otherwise
indicated as paid for or furnished by such person.
4. So far as I am aware, no matter has been broadcast by Station WYPA for
which service, money, or other valuable consideration has been directly
or indirectly paid, or promised to, or charged, or accepted by Station
WYPA or by any independent contractor engaged by Station WYPA in
furnishing programs, from any person, which matter at the time so
broadcast has not been announced or otherwise indicated as paid for or
furnished by such person.
5. In future, I will not pay, promise to pay, request, or receive any
service, money, or any other valuable consideration, direct or
indirect, from a third party, in exchange for the influencing of, or
the attempt to influence, the preparation or presentation of broadcast
matter on Station WYPA.
6. Nothing contained herein is intended to, or shall prohibit receipt or
acceptance of anything with the expressed knowledge and approval of my
employer, but henceforth any such approval must be given in writing by
someone expressly authorized to give such approval.
<PAGE>
7. Except as disclosed below, I, my spouse and all members of my immediate
family hold no present direct or indirect ownership interest in (other
than an investment in a corporation whose stock is publicly held); do
not serve as an officer or director of, whether with or without
compensation; and do not serve as an employee of, any person, firm or
corporation engaged in:
1. The publishing of music;
2. The production, distribution (including wholesale and retail
sales outlets), manufacture or exploitation of music, films,
tapes, recordings or electrical transcriptions of any program
material intended for radio broadcast use;
3. The exploitation, promotion, or management or persons
rendering artistic, production and/or other services in the
entertainment field;
4. The ownership or operation of one or more radio or television
stations;
5. The wholesale or retail sale of records intended for public
purchase;
6. Advertising on Station WYPA, or any other station owned by
Achievement (excluding nominal stockholdings in publicly owned
companies).
8. The facts and circumstances relating to any exceptions to the foregoing
are as follows:
---------------------------------------------------------------------
---------------------------------------------------------------------
---------------------------------------------------------------------
-----------------------------
Affiant
Subscribed and sworn to before me this
day of , 19 .
- ------- ------------------- ---
- ---------------------------------------
Notary Public
My commission expires: .
--------------------------
<PAGE>
Exhibit 10.14
ASSET PURCHASE AGREEMENT
by and among
ONE-ON-ONE SPORTS LICENSE OF FLORIDA, L.L.C.,
ONE-ON-ONE SPORTS RADIO OF FLORIDA, L.L.C.
and
RADIO UNICA CORP.
for
RADIO STATIONS
WNMA(AM) 1210 kHz and WCMQ (AM) 1700 kHz
MIAMI SPRINGS, FLORIDA
dated as of
January 26, 1998
<PAGE>
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page
<S> <C>
RECITALS ...................................................................................1
ARTICLE 1. DEFINITIONS AND REFERENCES............................................1
ARTICLE 2. SALE AND PURCHASE OF ASSETS; PURCHASE PRICE;
ADJUSTMENTS; ASSUMPTION OF LIABILITY..................................6
2.1. Asset Sale and Purchase of Assets.....................................6
2.1(a) FCC Licenses............................................6
2.1(b) Real Property...........................................7
2.1(c) Tangible Personal Property..............................7
2.1(d) Intellectual Property...................................7
2.1(e) Contracts...............................................7
2.1(f) Files and Records.......................................7
2.1(g) Third-Party Claims......................................7
2.1(h) Permits and Licenses....................................7
2.2. Excluded Assets.......................................................7
2.2(a) Third Party Claims......................................8
2.2(b) Personal Property Disposed Of...........................8
2.2(c) Insurance...............................................8
2.2(d) Certain Books and Records...............................8
2.2(e) Rights under this Agreement.............................8
2.2(f) Excluded Contracts......................................8
2.2(g) Cash, Receivables and Cash Equivalents..................8
2.2(h) Intellectual Property...................................8
2.2(i) Off-Site Equipment......................................8
2.2(j) Excluded Transmitter Site Equipment.....................9
2.2(k) RASR TBA Related Equipment..............................9
2.3. Consideration.........................................................9
2.4. Payment of Purchase Price.............................................9
2.5. Adjustments...........................................................9
2.6. Assumption of Liabilities............................................10
ARTICLE 3. REPRESENTATIONS AND WARRANTIES BY SELLERS............................11
3.1. Organization and Standing............................................11
3.2. Authorization........................................................11
3.3. Compliance with Laws.................................................11
3.4. Required Consents; No Conflicts......................................12
3.5. Absence of Litigation................................................12
</TABLE>
<PAGE>
<TABLE>
<S> <C> <C>
3.6. Ownership and Condition of Assets....................................12
3.6(a) Owned Real Property....................................12
3.6(b) Leased Real Property...................................12
3.6(c) Personal Property......................................15
3.7. FCC Matters..........................................................15
3.8. Intellectual Property................................................16
3.9. Reports and Records..................................................16
3.10. Material Contracts; Scheduled Contracts..............................16
3.11. Taxes................................................................16
3.12. Labor Relations; Employee Benefits...................................17
3.13. Environmental Matters................................................17
3.14. Insurance............................................................18
3.15. Disclosure...........................................................18
ARTICLE 4. REPRESENTATIONS AND WARRANTIES BY BUYER..............................18
4.1. Organization and Standing............................................18
4.2. Authorization........................................................19
4.3. Required Consents; No Conflicts......................................19
4.4. Absence of Litigation................................................19
4.5. Qualification of Buyer...............................................20
4.6. Disclosure...........................................................20
ARTICLE 5. PRE-CLOSING FILINGS AND UNDERTAKINGS.................................20
5.1. Applications for FCC Consent.........................................20
5.2. Sharing Information..................................................20
5.3. Environmental Reports................................................21
ARTICLE 6. COVENANTS AND AGREEMENTS OF SELLERS..................................21
6.1. Negative Covenants...................................................21
6.1(a) Dispositions; Mergers..................................22
6.1(b) Additional Agreements..................................22
6.1(c) Contract Breaches......................................22
6.1(d) Actions Affecting FCC Licenses or Contracts............22
6.2. Affirmative Covenants................................................22
6.2(a) Normal Operations......................................22
6.2(b) FCC Matters............................................22
6.2(c) Actions................................................22
6.2(d) Transfer Tax: Bulk Sales...............................23
6.2(e) Access.................................................23
6.2(f) Encumbrances...........................................23
6.2(g) Insurance..............................................23
6.2(h) Violations.............................................23
6.2(i) Interruption in Broadcast Operations...................23
</TABLE>
ii
<PAGE>
<TABLE>
<S> <C> <C>
6.2(j) Environmental Matters..................................23
6.2(k) Consents...............................................24
6.2(l) Updating...............................................24
6.2(m) Consents of Lenders....................................24
6.3. Confidentiality......................................................24
ARTICLE 7. COVENANTS AND AGREEMENTS OF BUYER....................................25
7.1. Confidentiality......................................................25
7.2. Actions..............................................................25
7.3. Access...............................................................25
7.4. Notice of Certain Events.............................................26
7.5 Buyout Payment.......................................................26
ARTICLE 8. MUTUAL COVENANTS AND UNDERSTANDINGS
OF SELLERS AND BUYER.................................................26
8.1. Possession and Control...............................................26
8.2. Risk of Loss.........................................................26
8.3. Allocation of Purchase Price.........................................27
8.4. Public Announcements.................................................27
8.5. Employee Matters.....................................................27
8.6. Unwind Agreement.....................................................28
8.7 Time Brokerage Agreement.............................................28
ARTICLE 9. CONDITIONS PRECEDENT TO BUYER'S OBLIGATION
TO CLOSE.............................................................28
9.1. Representations and Covenants........................................28
9.2. Consents.............................................................29
9.3. Delivery of Documents................................................29
9.4. FCC Consent..........................................................29
9.5. Legal Proceedings....................................................29
9.6. Estoppel Certificates................................................29
9.7. Time Brokerage Agreement.............................................29
ARTICLE 10. CONDITIONS PRECEDENT TO SELLERS' OBLIGATION
TO CLOSE.............................................................30
10.1. Representations and Covenants........................................30
10.2. Delivery by Buyer....................................................30
10.3. FCC Consent..........................................................30
10.4. Legal Proceedings....................................................30
10.5. Time Brokerage Agreement.............................................30
ARTICLE 11. THE CLOSING..........................................................31
11.1. Closing..............................................................31
</TABLE>
iii
<PAGE>
<TABLE>
<S> <C> <C>
11.2. Delivery by Sellers..................................................31
11.2(a) Contracts, Agreements and Instruments..................31
11.2(b) Consents...............................................31
11.2(c) UCC Report.............................................31
11.2(d) Certified Consents.....................................32
11.2(e) Members' Certificates..................................32
11.2(f) Sellers' IRS Form 8594.................................32
11.2(g) Expense Payment........................................32
11.2(h) Opinions of Counsel....................................32
11.2(i) Unwind Agreement.......................................32
11.2(j) Other Documents........................................32
11.3. Delivery by Buyer....................................................33
11.3(a) Purchase Price Payment.................................33
11.3(b) Buyer Documents........................................33
11.3(c) Certified Resolutions and Corporate Documents..........33
11.3(d) Officers' Certificate..................................33
11.3(e) Buyer's IRS Form 8594..................................33
11.3(f) Expense Payment........................................33
11.3(g) Opinion of Counsel.....................................33
11.3(h) Unwind Agreement.......................................33
11.3(i) Buyout Payment.........................................33
11.3(j) Other Documents........................................34
ARTICLE 12. SURVIVAL; INDEMNIFICATION............................................34
12.1. Survival of Representations..........................................34
12.2. Indemnification by Sellers...........................................34
12.3. Indemnification by Buyer.............................................35
12.4. Conditions of Indemnification........................................35
ARTICLE 13. TERMINATION..........................................................37
13.1. Termination..........................................................37
13.2. Effect of Termination................................................38
ARTICLE 14. REMEDIES.............................................................38
14.1. Default by Sellers...................................................38
14.2. Default by Buyer.....................................................38
14.3. Specific Performance.................................................39
14.4. Remedies Not Exclusive...............................................39
ARTICLE 15. GENERAL PROVISIONS...................................................39
15.1. Further Assurances...................................................39
15.2. Mail.................................................................40
15.3. Brokers..............................................................40
</TABLE>
iv
<PAGE>
<TABLE>
<S> <C> <C>
15.4. Expenses.............................................................40
15.5. Notices..............................................................40
15.6. Waiver...............................................................42
15.7. Benefit and Assignment...............................................42
15.8. Entire Agreement; Amendment..........................................43
15.9. Severability.........................................................43
15.10. Headings.............................................................43
15.11. Governing Law........................................................43
15.12. Signature in Counterparts............................................43
</TABLE>
v
<PAGE>
ASSET PURCHASE AGREEMENT
THIS ASSET PURCHASE AGREEMENT (the "Agreement") is entered
into as of the 26th day of January, 1998 by and among ONE-ON-ONE SPORTS LICENSE
OF FLORIDA, L.L.C., a Delaware limited liability company ("One-On-One License"),
ONE-ON-ONE SPORTS RADIO OF FLORIDA, L.L.C., a Delaware limited liability company
("One-On-One Radio") (One-On-One License and One-On-One Radio are collectively
referred to herein as "Sellers"), and RADIO UNICA CORP., a Delaware corporation
("Buyer").
RECITALS
WHEREAS, One-On-One License is the licensee of radio station
WNMA(AM), Miami Springs, Florida, operating at 1210 kHz, and the permitee of
radio station WCMQ(AM), Miami Springs, Florida, operating at 1700 kHz
(collectively referred to herein as the "Station"); and
WHEREAS, One-On-One License is a subsidiary of One-On-One
Radio; and
WHEREAS, Sellers wish to sell, and Buyer wishes to buy, all of
the assets used or useful in connection with the ownership and operation of the
Station, other than the Excluded Assets (as defined below), all in accordance
with and subject to the terms and conditions set forth below; and
WHEREAS, One-On-One Radio and Buyer are simultaneously
entering into that certain Time Brokerage Agreement dated as of the date hereof
(the "TBA"), whereby One-On-One Radio shall make available to Buyer
substantially all of the broadcasting time on the Station's operations at 1210
kHz from the Operational Commencement Date (as defined in the TBA) through and
including the Closing Date (as defined herein).
NOW, THEREFORE, in consideration of the foregoing and of the
mutual covenants and agreements hereinafter set forth, the parties hereto hereby
agree as follows:
ARTICLE 1.
DEFINITIONS AND REFERENCES
Unless the context otherwise specifies or requires, terms used
herein shall have the respective meanings assigned thereto as follows (such
definitions to be equally applicable to both the singular and plural forms of
the terms defined). Unless otherwise specified, all references herein to
"Articles" or "Sections" are to Articles or Sections of this Agreement.
<PAGE>
Additional Agreements means any and all Contracts, agreements
and leases executed and delivered by Sellers between the date hereof and the
Closing Date.
Adjustment Date shall have the meaning specified in Section
2.5.
Affiliate means, as to any entity, any other entity which
owns, is owned by or is under common control with such entity.
Assets shall have the meaning specified in Section 2.1.
Assignment Applications shall have the meaning specified in
Section 5.1.
Assignment of Contracts means an Assignment of Contracts,
dated as of the Closing Date and executed by Sellers, in form and substance
reasonably satisfactory to Buyer and Sellers with respect to Contracts as to
which consents have been obtained pursuant to Section 6.2(k).
Assignment of Leases means an Assignment of Leases, dated as
of the Closing Date and executed by Sellers, in form and substance reasonably
satisfactory to Buyer and Sellers.
Assignment of FCC Licenses means an Assignment of FCC
Licenses, dated as of the Closing Date and executed by Sellers, in form and
substance reasonably satisfactory to Buyer and Sellers.
Assumed Liabilities means the Scheduled Contracts and the
Additional Agreements, and any liabilities and agreements assumed by Buyer
hereunder.
Bill of Sale means a Bill of Sale and Assignment of Assets,
dated as of the Closing Date and executed by Sellers, in form and substance
reasonably satisfactory to Buyer and Sellers.
Buyer Documents means, collectively, this Agreement and any
other agreement to be executed and delivered by Buyer hereunder or as otherwise
contemplated herein.
Buyer Indemnified Parties shall have the meaning specified in
Section 12.2.
Buyout Payment shall have the meaning specified in Section
7.5.
Closing means the closing of the purchase and sale of the
Assets (other than the Excluded Assets) and the assumption of the Assumed
Liabilities.
2
<PAGE>
Closing Date means the time and date on which the Closing
takes place, as established by Section 11.1.
Code means the Internal Revenue Code of 1986, as amended.
Communications Act means the Communications Act of 1934, as
amended, and the rules and regulations of the FCC promulgated pursuant thereto.
Contracts shall have the meaning specified in Section 2.1(e).
Encumbrances means any mortgages, pledges, liens, claims,
security interests, agreements, restrictions, defects in title, easements or
encumbrances.
Environmental Laws means the Comprehensive Environmental
Response, Compensation and Liability Act of 1980 ("CERCLA"), as amended by the
Superfund Amendments and Reauthorization Act of 1986 ("SARA"), 42 U.S.C. ss.
9601 et seq.; the Toxic Substances Control Act ("TSCA"), 15 U.S.C. ss. 2601 et
seq.; the Hazardous Materials Transportation Act, 49 U.S.C. ss. 1802 et seq.;
the Resource Conservation and Recovery Act ("RCRA"), 42 U.S.C. ss. 9601 et seq.;
the Clean Water Act ("CWA"), 33 U.S.C. ss. 1251 et seq.; the Safe Drinking Water
Act, 42 U.S.C. ss. 300f et seq.; the Clean Air Act ("CAA"), 42 U.S.C. ss. 7401
et seq.; or any other applicable federal, state, or local laws, regulations,
ordinances, decrees, rules, judgments, orders or directives now or hereinafter
in effect relating to the protection of human health, safety or the environment,
or otherwise relating to Hazardous Materials generation, production, use,
storage, treatment, transportation or disposal.
ERISA mean Employee Retirement Income Security Act of 1974, as
amended.
Escrow Agent shall have the meaning specified in Section
2.4(a).
Escrow Agreement shall have the meaning specified in Section
2.4(a).
Escrow Deposit shall have the meaning specified in Section
2.4(a).
Excluded Assets shall have the meaning specified in Section
2.2.
FAA means the Federal Aviation Administration.
FCC means the Federal Communications Commission.
FCC Consent means an order or orders of the FCC consenting to
the assignment to Buyer of the FCC Licenses for the Station.
3
<PAGE>
FCC Licenses shall have the meaning specified in Section
2.1(a).
Final Order means an FCC Consent as to which the time for
filing a request for administrative or judicial review, or for instituting
administrative review sua sponte, shall have expired without any such filing
having been made or notice of such review having been issued; or, in the event
of such filing or review sua sponte, as to which such filing or review shall
have been disposed of favorably to the grant and the time for seeking further
relief with respect thereto shall have expired without any request for such
further relief having been filed.
GAAP means generally accepted accounting principles.
Governmental Approvals shall have the meaning specified in
Section 3.6(b).
Governmental Authority means any agency, board, bureau, court,
commission, department, instrumentality or administration of the United States
government, any state government or any local or other governmental body in a
state of the United States or the District of Columbia.
Hazardous Materials means any wastes, substances, or materials
(whether solids, liquids or gases) that are defined or regulated as hazardous or
toxic under any Environmental Law, including without limitation, substances
defined as "hazardous wastes," "hazardous substances," "toxic substances,"
"radioactive materials," or other similar designations in any Environmental
Laws. "Hazardous Materials" includes, without limitation, polychlorinated
biphenyls (PCBs), asbestos, lead-based paints and petroleum and petroleum
products.
Indemnified Party and Indemnifying Party shall have the
respective meanings specified in Section 12.4(a).
Intellectual Property shall have the meaning specified in
Section 2.1(d).
IRS means the Internal Revenue Service.
Leased Improvements shall have the meaning specified in
Section 3.6(b).
Leased Real Property shall have the meaning specified in
Section 3.6(b).
Leases shall have the meaning specified in Section 3.6(b).
Losses means any and all demands, claims, complaints, actions
or causes of action, suits, proceedings, investigations, arbitrations,
assessments, losses, damages (including diminution in value), liabilities,
obligations (including those arising out of any action, such as any settlement
or compromise thereof or judgment or award therein) and any costs and
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expenses, including, without limitation to, interest, penalties and reasonable
attorneys' fees and disbursements.
Material Adverse Effect means, except as otherwise
specifically provided herein, any event or condition which has a material
adverse effect (financial or otherwise) on the Assets, other than the Excluded
Assets, to be acquired hereunder, taken as a whole.
Material Contracts means those Scheduled Contracts that are
designated as Material Contracts in Schedule 2.1(e).
Ordinary Course of Business means, with respect to Sellers,
the ordinary course of business consistent with past practices of Sellers.
Permitted Encumbrances means (a) easements that do not
materially adversely affect the full use and enjoyment of the Real Property for
the purposes for which it is currently used or detract from the value of the
Real Property in any material respect; (b) imperfections of title and
non-consensual encumbrances, if any, which, in the aggregate, do not detract
from the marketability or value of the properties subject thereto in any
material respect and do not impair the operations of the owner thereof; (c)
liens for taxes not yet due and payable; and (d) liens of Sellers' lenders, all
of which shall be removed at the Closing.
Purchase Price shall have the meaning specified in Section
2.3.
RASR TBA means that certain Time Brokerage Agreement, dated as
of September 29, 1997, by and between One-On-One Radio and RASR, L.L.C.
Real Property shall have the meaning specified in Section
2.1(b).
Scheduled Contracts means those Contracts listed or described
in Schedule 2.1(e).
Sellers' Indemnified Parties shall have the meaning specified
in Section 12.3.
Sellers' Tax Returns means all federal, state, local, foreign
and other applicable Tax returns and declarations of estimated Tax reports
required to be filed by Sellers.
Station shall have the meaning set forth in the recitals.
Taxes means all federal, state and local taxes (including,
without limitation, income, profit, franchise, sales, use, real property,
personal property, ad valorem, excise, employment, social security and wage
withholding taxes) and installments of estimated taxes, assessments,
deficiencies, levies, imports, duties, license fees, registration fees,
withholdings,
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or other similar charges of every kind, character or description imposed by any
Governmental Authorities, and any interest, penalties or additions to tax
imposed thereon or in connection therewith.
TBA shall have the meaning set forth in the recitals.
Transaction Documents means, collectively, this Agreement, the
Assignment of Leases, the Bill of Sale, the Assignment of FCC Licenses, the
Assignment of Contracts and any other agreements to be executed and delivered by
any Sellers hereunder or as otherwise contemplated herein.
Transmitter Site shall mean that leased site located at 14025
Northwest 102 Avenue Miami Springs, Florida. (Lots 18, 19 and 20 in the SE 1/4
section 20-52-40 Chambers Land Company Subdivision).
WARN Act shall have the meaning specified in Section 8.5.
ARTICLE 2.
SALE AND PURCHASE OF ASSETS; PURCHASE PRICE;
ADJUSTMENTS; ASSUMPTION OF LIABILITY
2.1. Asset Sale and Purchase of Assets.
Subject to the terms and conditions hereof and in reliance
upon the representations, warranties, covenants and agreements contained herein,
at the Closing, Sellers shall sell, assign, transfer, convey and deliver to
Buyer, and Buyer agrees to purchase from Sellers, all of Sellers' right, title
and interest in the following property, free and clear of all mortgages,
security interests, liens or similar claims by third parties (other than
Permitted Encumbrances), but excluding the Excluded Assets described in Section
2.2 (collectively, the "Assets"). Subject to the provisions of Sections 2.2 and
6.1(a), Assets shall include all such assets (excluding the Excluded Assets)
existing on the date hereof and all such assets acquired between the date hereof
and midnight (Eastern Time) on the date immediately preceding the Closing Date.
The Assets shall consist of all of Sellers' right, title and
interest in, to and under the following:
2.1(a) FCC Licenses. All licenses, permits and other
authorizations issued by the FCC to Sellers for the operation of the Station
(the "FCC Licenses"), including without limitation those listed or described in
Schedule 2.1(a), and all applications therefor, together with any renewals,
extensions or modifications thereof and additions thereto;
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2.1(b) Real Property. All realty, fixtures, easements, rights
of way, leasehold interests in real estate, buildings and improvements,
including any undivided interest in any of the foregoing, located at or
pertaining to the Transmitter Site ("Real Property"), including but not limited
to those listed or described in Schedule 2.1(b);
2.1(c) Tangible Personal Property. All of the furniture,
fixtures, furnishings, machinery, computers, equipment (mobile or otherwise),
inventory, supplies, antenna installations, towers, office materials and other
tangible property located at the Transmitter Site used or useful in the
operation of the Station (it being expressly acknowledged that no studio
facility is used by the Station or is being conveyed to Buyer), including but
not limited to the property listed or described in Schedule 2.1(c), but
excluding the property listed or described in Schedule 2.2(j);
2.1(d) Intellectual Property. All of Sellers' rights in and to
the call letters of the Station(the "Intellectual Property"), and all goodwill
associated therewith, which are listed or described in Schedule 2.1(d);
2.1(e) Contracts. The contracts, commitments, plans,
agreements, leases, arrangements, undertakings and licenses, including
Additional Agreements, which relate to the ownership, operation, business or use
of the Station or any of the Assets (collectively, "Contracts"), which are
listed or described in Schedule 2.1(e);
2.1(f) Files and Records. All engineering, business and other
books, customer lists, papers, logs, files and records pertaining to the Assets,
including without limitation all records required by the FCC to be kept by the
Station;
2.1(g) Third-Party Claims. All rights and claims of Sellers
whether mature, contingent or otherwise, against third parties relating to the
Assets (other than the Excluded Assets), whether in tort, contract, or
otherwise, under or pursuant to all warranties, representations and guarantees
made by manufacturers, suppliers or vendors; and
2.1(h) Permits and Licenses. All permits, approvals, orders,
authorizations, consents, licenses, certificates, franchises, exemptions of, or
filings or registrations with, any court or Governmental Authority (other than
the FCC) in any jurisdiction, which have been issued or granted to or are owned
or used by Sellers in connection with the business and operation of the Station
and ownership of the Assets and all pending applications therefor.
2.2. Excluded Assets.
Notwithstanding anything to the contrary in this Agreement,
there shall be excluded from the Assets and retained by Sellers, to the extent
in existence at midnight (Eastern Time) on the date immediately preceding the
Closing Date, all assets not specified in Section 2.1, including the following
assets (collectively, the "Excluded Assets"):
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2.2(a) Third Party Claims. All rights and claims of Sellers,
including any Affiliate thereof, against third parties relating to Taxes and to
property or equipment repaired, replaced or restored by Sellers prior to the
Closing;
2.2(b) Personal Property Disposed Of. All tangible personal
property disposed of in the Ordinary Course of Business as permitted by this
Agreement;
2.2(c) Insurance. All contracts of insurance and any life
insurance plans and the assets thereof, including, without limitation, prepaid
insurance expenses; and all insurance proceeds or claims of Sellers relating to
property or equipment repaired, replaced or restored by Sellers prior to the
Closing;
2.2(d) Certain Books and Records. All of (i) duplicated copies
of any books, records, accounts, checks, payment records, Tax records (including
payroll, unemployment, real estate and other Tax records) and other similar
books, records and information of the Sellers relating to the Assets, (ii) all
records prepared by or on behalf of Sellers in connection with the sale of the
Station, (iii) all records and documents relating to any Excluded Assets, and
(iv) all records and documents not related to the Assets or the operation of the
Station;
2.2(e) Rights under this Agreement. All of the Sellers' rights
under or pursuant to this Agreement or any other rights in favor of Sellers
pursuant to the other agreements contemplated hereby;
2.2(f) Excluded Contracts. All Contracts that have terminated
or expired prior to the Closing in the Ordinary Course of Business or as
otherwise permitted by this Agreement and all contracts, commitments, plans,
agreements, leases, arrangements, undertakings and licenses not identified in
Schedule 2.1(e), including, without limitation, all employment agreements;
2.2(g) Cash, Receivables and Cash Equivalents. All cash,
inter-company receivables, account receivables, note receivables, bank deposits,
prepayments, overpayments, other cash equivalents and/or investment securities;
2.2(h) Intellectual Property. The name "One-On-One Sports" or
any derivation thereof;
2.2(i) Off-Site Equipment. All tangible personal property not
located at the Transmitter Site, including (i) any studio equipment and (ii) all
furniture, fixtures, furnishings, machinery, computers, equipment, inventory,
supplies, materials and other tangible property at the Station's office located
at 14645 N.W. 77th Avenue, Suite 102, Miami Lakes, Florida 33014;
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2.2(j) Excluded Transmitter Site Equipment. All satellite
remote equipment relating to the Station, including, without limitation, all
equipment listed or described on Schedule 2.2(j); provided, that, at Buyer's
option, such satellite remote equipment (other than the Starguide satellite
receivers and the Potomac instruments 1901-3 antenna monitor) shall be included
in the Assets and the Purchase Price shall be increased by an amount equal to
Seventeen Thousand Dollars ($17,000); and
2.2(k) RASR TBA Related Equipment. All equipment paid for or
reimbursed by RASR, L.L.C. pursuant to the RASR TBA.
2.3. Consideration.
The consideration for the conveyance and assignment of the
Assets described herein, in addition to the assumption of Assumed Liabilities by
Buyer as set forth in Section 2.6 (the "Purchase Price"), shall be Nine Million
Dollars ($9,000,000), as adjusted pursuant to Section 2.5.
2.4. Payment of Purchase Price.
(a) Upon the execution of this Agreement, Buyer shall deposit
the amount of One Million Dollars ($1,000,000) into escrow (the "Escrow
Deposit"). The total Escrow Deposit shall be held by The Chase
Manhattan Bank (together with any successor thereto, the "Escrow
Agent") pursuant to the terms and conditions of the escrow agreement
executed on the date hereof (the "Escrow Agreement") in the form of
Exhibit A hereto. At the Closing, the Escrow Deposit shall be paid by
Escrow Agent to Sellers and credited to the Purchase Price at Closing
and the interest earned thereon shall be paid to Buyer. If the Closing
does not occur due to the reason specified in Section 14.2 hereof, the
total Escrow Deposit, together with any interest earned thereon, shall
be paid to Sellers as liquidated damages as specified in Section 14.2.
If the Closing does not occur for any other reason, the total Escrow
Deposit, together with any interest earned thereon, shall be returned
to Buyer.
(b) Eight Million Dollars ($8,000,000), plus or minus any
adjustments or increases made pursuant to Section 2.2(j) or 2.5, shall
be paid by the Buyer on the Closing Date by wire transfer of
immediately available funds to such bank or other financial institution
as shall be designated by Sellers at least one (1) business day prior
to the Closing Date.
2.5. Adjustments.
The operation of the Station and the normal operating expenses
attributable thereto through midnight of the day immediately preceding the
Closing Date (the "Adjustment Date") shall be for the account of Sellers and
thereafter for the account of Buyer, and all such
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expenses (other than expenses excluded from Assumed Liabilities, none of which
shall be payable by the Buyer) shall be allocated, charged or prorated
accordingly. Expenses for goods or services received both before and after the
Adjustment Date, power and utilities charges, frequency discounts, commissions,
license fees, and rents and similar prepaid and deferred items shall be prorated
between Sellers and Buyer as of the Adjustment Date in accordance with GAAP. All
property taxes, special assessments and similar charges or liens imposed against
the Real Property and personal property attributable to any period of time up to
and including the Adjustment Date, whether payable in installments or otherwise,
shall be the responsibility of Sellers, and amounts payable with respect to such
special assessments, charges or liens attributable to any period of time after
the Adjustment Date shall be the responsibility of Buyer, and such charges shall
be adjusted as required hereunder. As of the Closing Date, the Sellers shall
calculate the aggregate positive or negative balance, as the case may be, with
respect to all trade and barter agreements that constitute Scheduled Contracts
or Additional Agreements entered into in accordance with Section 6.1(b). To the
extent that any of the foregoing prorations and adjustments cannot be determined
as of the Closing Date, Buyer and Sellers shall conduct a final accounting and
make any further payments, as required on a date mutually agreed upon, within
ninety (90) days after the Closing and the net amount, if any, due to or due
from Buyer as the result of such prorations and adjustments shall be paid to or
by Buyer, as the case may be, within fifteen (15) business days following such
final accounting.
2.6. Assumption of Liabilities.
2.6(a) At the Closing, Buyer shall assume and become liable
for the following: (i) the liabilities and obligations of Sellers attributable
to all periods after the Adjustment Date under the Scheduled Contracts and (ii)
the liabilities and obligations of Sellers attributable to all periods after the
Adjustment Date under any Additional Agreements entered into after the date
hereof in compliance with Section 6.1(b).
2.6(b) Except for (i) those liabilities and obligations
expressly assumed by Buyer pursuant to Section 2.6(a) hereof, (ii) those
liabilities for which Buyer has received a credit under Section 2.5, and (iii)
liabilities and obligations of Sellers arising under Contracts (exclusive of
Additional Agreements) which are not Scheduled Contracts but which Buyer, in its
sole discretion, elects to assume on or after the Closing Date, Buyer shall have
no responsibility for any liabilities or obligations of any kind or description
whether connected with the business and operations of the Station or the
Sellers, including to any employee of Sellers, or otherwise arising from the
ownership or operation of any of the Assets or the business and operations of
the Station or the Sellers prior to the Closing Date.
2.6(c) After the Closing Date, Sellers shall have no
responsibility (i) for any Assumed Liabilities, (ii) in connection with any
Permitted Encumbrances, or (iii) for any costs that Buyer agrees to assume
pursuant to Section 5.3(c) hereof.
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ARTICLE 3.
REPRESENTATIONS AND WARRANTIES BY SELLERS
Sellers represent and warrant to Buyer as follows:
3.1. Organization and Standing.
Each Seller is a limited liability company duly organized,
validly existing and in good standing under the laws of the State of Delaware
and has all requisite power and authority to carry on its business as now being
conducted. Each Seller has all requisite power and authority to execute and
deliver this Agreement and the other Transaction Documents and to consummate the
transactions contemplated hereby and thereby. Neither the nature of the business
of the Station, nor the character of the properties owned, leased or otherwise
held by Sellers for use in the Station's business makes any qualification
necessary in any other state, country, territory or jurisdiction other than as
set forth in Schedule 3.1 and each Seller is qualified to do business in any
such jurisdictions.
3.2. Authorization.
The execution, delivery and performance of this Agreement and
the other Transaction Documents to be executed and the consummation of the
transactions contemplated hereby and thereby have been duly and validly
authorized by all necessary corporate or other proceedings on the part of each
Seller and no other corporate or other proceedings or actions on the part of
either Sellers, their respective managers or their respective members is
necessary therefor. This Agreement constitutes, and upon execution and delivery
each other Transaction Document will constitute, a valid and binding agreement
and obligation of each Seller, enforceable in accordance with their respective
terms.
3.3. Compliance with Laws.
Sellers are not in violation of, and have not received any
notice asserting any material noncompliance by Sellers with, any applicable
statute, law, rule or regulation, whether federal, state, local or otherwise, in
connection with the ownership of the Assets. Sellers have complied and are in
compliance, in all material respects, with all laws, regulations and
governmental orders applicable to Sellers' operation of the Station and
ownership of the Assets. Sellers have obtained and hold all permits, licenses
and approvals (none of which has been rescinded and all of which are in full
force and effect) from all Governmental Authorities necessary in order to
conduct the operations of the Station in accordance with applicable law, as
presently conducted and to own, use and maintain the Assets.
3.4. Required Consents; No Conflicts.
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3.4(a) Except as set forth in Schedule 3.4(a) or in connection
with the filings referred to in Section 5.1, the execution, delivery and
performance by Sellers of the Transaction Documents will not require the
consent, approval, authorization or permit of, or filing with, or notification
to any person, entity or Governmental Authority, except the consents of third
parties to the assignment of the Contracts as indicated on Schedule 2.1(e) and
those which would not materially affect Sellers' ability to consummate the
transactions contemplated by this Agreement.
3.4(b) Except as set forth in Schedule 3.4(b), the execution
and delivery of the Transaction Documents, the fulfillment of and the compliance
with the respective terms and provisions of each, and the consummation of the
transactions described in each, do not and will not (i) conflict with or violate
any law, regulation, order, award, judgment, injunction or decree applicable to
or affecting Sellers, the Assets (other than the Excluded Assets) or the
Station, (ii) conflict with or result in any breach of or constitute a default
(or an event which with notice or lapse of time or both would become a default)
under any contract to which either Seller is a party or by which either Seller
is bound or to which any of the Assets or the Station is subject or affected
(except with respect to consents of third parties referred to in Section
3.4(a)), or result in the creation of any Encumbrance upon the Assets, or (iii)
conflict with or violate any provision of either Seller's certificate of
formation or limited liability company agreement, except, in each case, as would
not materially affect Sellers' ability to consummate the transactions
contemplated by this Agreement.
3.5. Absence of Litigation.
Except as set forth and described in Schedule 3.5, there is no
action, suit, investigation, claim, arbitration or litigation pending or, to the
best of Sellers' knowledge, threatened against, affecting or involving the
Assets, the Station or the business and operations of the Station, or the
transactions contemplated by this Agreement or any other Transaction Document,
at law or in equity, or before or by any court, arbitrator or Governmental
Authority, and the Station is not operating under or subject to an order, award,
judgment, writ, decree, determination or injunction of any court, arbitrator or
Governmental Authority.
3.6. Ownership and Condition of Assets.
3.6(a) Owned Real Property. The Sellers own no real property
used in the operation of the Station.
3.6(b) Leased Real Property. All of the real property leased
by Sellers as tenant or lessee is identified on Schedule 2.1(b) (collectively
referred to herein as the "Leased Real Property").
(i) Leases. All of the leases of any of the Leased
Real Property (collectively, the "Leases") are as set forth on Schedule 2.1(b).
The copies of the Leases set
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forth in Schedule 2.1(b) are complete, accurate, true and correct copies of each
of the Leases. The information with respect to each of the Leases set forth in
Schedule 2.1(b) is complete, accurate, true and correct in all material
respects. With respect to each of the Leases, except as set forth on Schedule
2.1(b):
(A) each of the Leases is in full force and effect
on the terms set forth therein and has not been modified,
amended, or altered, in writing or otherwise;
(B) all obligations of the landlord or lessor
under the Leases that have accrued have been performed, and no
landlord or lessor is in default under or in arrears in the
payment of any sum or in the performance of any obligation
required of it under any Lease, and no circumstance presently
exists which, with notice or the passage of time, or both, would
give rise to a default by the landlord or lessor under any Lease
except, in all such cases, as such as will not materially detract
from the marketability or value of the Leased Real Property and
do not impair the operations of the lessee thereof in any
respect;
(C) all obligations of the tenant or lessee under
the Leases that have accrued have been performed, and Sellers is
not in default under or in arrears in the payment of any sum or
in the performance of any obligation required of it under any
Lease, and no circumstance presently exists which, with notice or
the passage of time, or both, would give rise to a default by
Sellers except, in all such cases, as such as will not materially
detract from the marketability or value of the Leased Real
Property and do not impair the operations of the lessee thereof
in any respect; and
(D) there are no consents of any landlord or
lessor required to transfer the Leased Real Property to Buyer.
(ii) Title and Description. Sellers holds a valid and
enforceable lease hold interest in the Leased Real Property pursuant to the
Leases, subject only to the right of reversion of the landlord or lessor under
the Leases and Permitted Encumbrances.
(iii) Physical Condition. Except as set forth on
Schedule 2.1(b), to Sellers' knowledge, there is no defect in the physical
condition of any improvements located on or constituting a part of the Leased
Real Property (the "Leased Improvements"). To Sellers' knowledge, the Leased
Real Property, including, without limitation, the Leased Improvements, is in
good condition and repair and is adequate for the uses to which it is being put,
and the Leased Real Property is not in need of maintenance or repairs except for
ordinary, routine maintenance and repairs which are not material in nature or
cost. To the best of Sellers' knowledge, the soil condition of the Leased Real
Property is such that it will support all of the improvements thereon for the
foreseeable life of the improvements without the need for unusual or new
subsurface excavations, fill, footings, caissons or other installations.
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(iv) Utilities. To the best of Sellers' knowledge,
all water, sewer, gas, electric, telephone, drainage and other utility
equipment, facilities and services required by law or necessary for the
operation of the Leased Real Property as it is now improved and operated are
installed and connected pursuant to valid permits, are sufficient to service the
Leased Real Property and are in good operating condition except in such case as
will not materially detract from the marketability or value of the Leased Real
Property and do not impair the operations of the lessee thereof.
(v) Compliance with Law; Government Approvals.
Sellers has received no notice from any Governmental Authority of any violation
of any zoning, building, fire, water, use, health, or other law, ordinance,
code, regulation, license, permit or authorization issued in respect of any of
the Leased Real Property that has not been heretofore corrected, and know of no
such violation or violations that now exist that would materially detract from
the marketability or value of the Leased Real Property or impair the operations
of the lessee thereof in any material respect. To the best of Sellers'
knowledge, improvements located on or constituting a part of the Leased Real
Property and the construction, installation, use and operation thereof
(including, without limitation, the construction, installation, use and
operation of any signs located thereon) are in compliance with all applicable
municipal, state, federal or other governmental laws, ordinances, codes,
regulations, licenses, permits and authorizations, including, without
limitation, applicable zoning, building, fire, water, use or health laws,
ordinances, codes, regulations, licenses, permits and authorizations, and there
are presently in effect all certificates of occupancy, licenses, permits and
authorizations required by law, ordinance, code or regulation or by any
governmental or private authority having jurisdiction over the ownership or
operation of the Sellers' businesses or any of the Assets, including the Station
and the Leased Real Property or any portion thereof, or the occupancy thereof or
any present use thereof, exclusive of the FCC Consents (collectively,
"Governmental Approvals"), except such non-compliance as will not materially
detract from the marketability or value of the Leased Real Property and do not
impair the operations of the lessee thereof in any respect. All Governmental
Approvals required by law, ordinance, code, regulation or otherwise to be held
by the tenant of any of the Leased Real Property shall be transferred to Buyer
at Closing, if and to the extent transferrable. There is legally enforceable
pedestrian and vehicular access to the Leased Real Property.
(vi) Real Property Taxes. Except as set forth in
Schedule 2.1(b), Sellers have received no notice of any pending or threatened
special assessment or reassessment of all or any portion of any of the Leased
Real Property.
(vii) Condemnation. To Sellers' knowledge, there is
no pending or threatened condemnation of all or any part of the Leased Real
Property.
(viii) Insurability. Sellers has not received any
notice from any insur ance company of any material defects or inadequacies in
the Leased Real Property or any part
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thereof, which would materially, adversely affect the insurability of the same
or of any termination or threatened termination of any policy of insurance.
3.6(c) Personal Property. Schedule 2.1(c) contains a complete
description of all of Sellers' machinery, equipment and other tangible personal
property that is located at the Transmitter Site and is material to the
operation of the Station (other than Excluded Assets) (collectively, the
"Material Equipment"). Sellers have good and marketable title to all of the
Material Equipment. None of such Material Equipment is subject to any mortgage,
pledge, lien, conditional sale agreement, security agreement, encumbrance or
other charge, except for Permitted Encumbrances. The Material Equipment is
sufficient for Buyer to continue the operations of the Station in accordance
with applicable law as conducted by Sellers. Except as otherwise specified in
Schedule 2.1(c), all Material Equipment of Sellers is in good repair and working
order, ordinary wear and tear excepted, and Sellers have maintained all Material
Equipment in compliance with good engineering and customary business practice
and all Material Equipment is otherwise sufficient to permit the Station to
operate in accordance with the FCC Licenses and the rules and regulations of the
FCC.
3.7. FCC Matters.
3.7(a) One-On-One License holds the FCC Licenses set forth and
described on Schedule 2.1(a). The FCC Licenses constitute all of the licenses,
permits and authorizations from the FCC that are necessary or required for
and/or used in the business and operations of the Station. The FCC Licenses are
valid and in full force and effect through the dates set forth on Schedule
2.1(a). Except as set forth on Schedule 2.1(a), no application, action or
proceeding is pending for the renewal or modification of any of the FCC
Licenses, and, except for actions or proceedings affecting radio broadcast
stations generally and the proceedings set forth in Schedule 3.7(a) hereto, no
application, complaint, action or proceeding is pending or, to the best of
Sellers' knowledge, threatened that may result in the (i) denial of an
application for renewal, (ii) the revocation, modification, non-renewal or
suspension of any of the FCC Licenses, (iii) the issuance of a cease-and-desist
order, or (iv) the imposition of any administrative or judicial sanction with
respect to the Station.
3.7(b) The Station, its physical facilities, electrical and
mechanical systems and transmitting equipment (i) are being operated in all
respects in compliance with the specifications of the applicable FCC Licenses,
and (ii) are being operated in compliance in all respects with all requirements
of the Communications Act. Sellers have complied with all requirements of the
FCC and the FAA with respect to the construction and/or alteration of Sellers'
antenna structures, and "no hazard" determinations for each antenna structure
have been obtained.
3.7(c) Sellers and the Station are in compliance with the
Communications Act.
3.7(d) Sellers know of no facts, conditions or events relating
to Sellers or the Station that might cause the FCC to have a legally valid basis
to deny the assignment of the
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FCC Licenses as provided for in this Agreement or not to renew any of the FCC
Licenses in the ordinary course.
3.8. Intellectual Property.
Except as set forth on Schedule 2.1(d), Sellers pay no royalty
to anyone for use of the Intellectual Property and have the right to bring
action for the infringement thereof to the extent permitted by applicable law.
Sellers do not have any knowledge and have not received any notice to the effect
that their use of the Intellectual Property in their renderings of services
relating to the business of the Stations infringes on any Intellectual Property
right of another. Sellers have the right pursuant to the rules and regulations
of the FCC to the use of the various call letters set forth on Schedule 2.1(d).
3.9. Reports and Records.
All reports, statements and other documents relating to the
Station currently required to be filed by Sellers with the FCC or any other
Governmental Authority in connection with, or as a result of, Sellers' operation
of the Station or ownership of the Assets have been filed and complied with and
were true, correct and complete in all material respects when filed. All such
reports, statements and other documents shall continue to be filed on a current
basis until the Closing Date, and will be true, correct, and complete in all
respects.
3.10. Material Contracts; Scheduled Contracts.
Schedule 2.1(e) contains a listing and true copies of all
Material Contracts as of the date hereof. Except as set forth in Schedule 3.10,
each Scheduled Contract is in full force and effect, and constitutes a legal,
valid and binding obligation of, and is legally enforceable against the
applicable Seller. Except as set forth in Schedule 3.10, each Seller, where
applicable, and, to the best of such Sellers' knowledge, the other parties
thereto, have complied with all of the provisions of such Scheduled Contracts
and are not in default thereunder in any material respect, and there has not
occurred any event which (whether with or without notice or lapse of time) would
constitute such a default. To Sellers' knowledge, except as set forth in
Schedule 3.10, there has not been any threatened cancellation of any Scheduled
Contract or any outstanding dispute thereunder.
3.11. Taxes.
3.11(a) Each Seller has (or, in the case of returns becoming
due after the date hereof and on or before the Closing Date, will have prior to
the Closing Date) duly filed all Sellers' Tax Returns required to be filed by
such Seller on or before the Closing Date with respect to all applicable Taxes
and have paid all Taxes shown to be due on such Sellers' Tax Returns.
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3.11(b) Except as set forth in Schedule 3.11(b), there is no
action, suit, proceeding, audit, investigation or claim pending or, to Sellers'
knowledge, threatened in respect of any Taxes for which either Seller is liable,
nor, to Sellers' knowledge, has any deficiency or claim for any such Taxes been
proposed, asserted or threatened.
3.12. Labor Relations; Employee Benefits
Sellers are in compliance in all material respects with all
applicable laws and regulations relating to employment at the Station including,
without limitation, provisions relating to wages, hours, collective bargaining,
safety and health, work authorization, equal employment opportunity,
unemployment compensation, workers' compensation and employee benefits. There
are no collective bargaining agreements, employment agreements between Sellers
and their employees not terminable at will or professional service contracts not
terminable at will relating to the Station or the business and operations
thereof. The consummation of the transactions contemplated hereby will not cause
Buyer to incur or suffer any liability relating to, or obligation to pay,
severance, termination, or other payments to any person or entity, or any
liability under any employee benefit plans of Sellers, including, without
limitation, any liability under the Code or ERISA.
3.13. Environmental Matters.
3.13(a) There are no pending or, to the best of Sellers'
knowledge, threatened actions, suits, claims, legal proceedings or other
proceedings based on, and Sellers have not received any notice of any complaint,
order, directive, citation, notice of responsibility, notice of potential
responsibility, or information request from any Governmental Authority arising
out of or attributable to: (i) the presence at any part of the Real Property of
Hazardous Materials; (ii) the release or threatened release into the environment
from the Real Property (including, without limitation, into any storm drain,
sewer, septic system or publicly owned treatment works) of any Hazardous
Materials; (iii) the off-site disposal of Hazardous Materials originating on or
from the Real Property or the Assets of Sellers; (iv) any facility operations or
procedures of Sellers relating to the Station or the Assets that do not conform
to requirements of the Environmental Laws; or (v) any violation of Environmental
Laws at any part of the Real Property or otherwise arising from any of Sellers'
activities relating to the Station or the Assets involving Hazardous Materials.
3.13(b) Each Seller is in compliance, in all material
respects, with all applicable Environmental Laws, including having obtained and
maintained all permits, licenses, certificates, and approvals required under any
Environmental Law. A true and complete list of all such permits, licenses,
certificates and approvals, all of which are valid and in full force and effect,
is set out in Schedule 3.13(b).
3.13(c) To the best of Sellers' knowledge, there have been no
releases of Hazardous Materials on, at, in, under or from the Real Property that
would require investigation and/or remediation under any applicable
Environmental Law.
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3.13(d) Other than in compliance with the Communications Act,
the operation of the Station does not cause or result in exposure of workers or
the general public to levels of radio frequency radiation in excess of the
"Radio Frequency Protection Guides" recommended in "American National Standard
Safety Levels with Respect to Human Exposure to Radio Frequency Electromagnetic
Fields 300 kHz to 100 gHz" (ANSI C95.1-1982), issued by the American National
Standards Institute. Renewal of the FCC Licenses would not constitute a "major
action" within the meaning of Section 1.1301, et seq., of the FCC's rules.
3.14. Insurance.
Schedule 3.14 contains a list of all policies of title,
property, fire, casualty, liability, life, workmen's compensation, libel and
slander, and other forms of insurance of any kind relating to the Assets (other
than the Excluded Assets) or the business and operations of the Station and
owned or held by Sellers as of the date hereof. All such policies are in full
force and effect.
3.15. Disclosure.
The representations and warranties of Sellers in this
Agreement and the other information furnished by Sellers to Buyer in connection
with the execution, delivery and performance of this Agreement and the
consummation of the transactions contemplated hereby, do not contain any untrue
statement of a material fact or omit to state a material fact required to be
stated in order to make such information not materially misleading. Except for
facts affecting the radio industry generally, there is no fact known to either
Seller which can reasonably be expected to have a Material Adverse Effect.
ARTICLE 4.
REPRESENTATIONS AND WARRANTIES BY BUYER
Buyer represents and warrants to Sellers as follows:
4.1. Organization and Standing.
Buyer is a corporation duly organized, validly existing and in
good standing under the laws of the State of Delaware and has all requisite
power and authority to carry on its business as now being conducted. Buyer has
all requisite power and authority to execute and deliver this Agreement and to
consummate the transactions contemplated hereby.
4.2. Authorization.
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The execution, delivery and performance of this Agreement and
the consummation of the transactions contemplated hereby have been duly and
validly authorized by all necessary corporate proceedings on the part of Buyer
and no other corporate proceedings or actions on the part of Buyer, its board of
directors or its shareholders is necessary therefor. This Agreement constitutes
a valid and binding agreement and obligation of Buyer, enforceable in accordance
with its terms.
4.3. Required Consents; No Conflicts.
4.3(a) Except in connection with the filings referred to in
Section 5.1, the execution, delivery and performance by Buyer of this Agreement
will not require the consent, approval, authorization or permit of, or filing
with, or notification to any person, entity or Governmental Authority, except
which would not materially affect Buyer's ability to consummate the transactions
contemplated by this Agreement.
4.3(b) The execution and delivery of this Agreement, the
fulfillment of and the compliance with the terms and provisions hereof, and the
consummation of the transactions described herein, do not and will not (i)
conflict with or violate any law, regulation, order, award, judgment, injunction
or decree applicable to or affecting Buyer, (ii) conflict with or result in any
breach of or constitute any default (or an event which with notice or the lapse
of time or both would become a default) under any contract to which Buyer is a
party or by which Buyer is bound or to which any of the Buyer's assets are
subject or affected, or result in the acceleration of any indebtedness of Buyer,
or (iii) conflict with or violate any provision of Buyer's certificate of
incorporation or by-laws, except, in each case, as would not materially affect
Buyer's ability to consummate the transactions contemplated by this Agreement.
4.4. Absence of Litigation.
There is no action, suit, investigation, claim, arbitration or
litigation pending or, to the best of Buyer's knowledge, threatened against,
affecting or involving the transactions contemplated by this Agreement or that
would affect Buyers' ability to perform its obligations under this Agreement, at
law or in equity, or before or by any court, arbitrator or Governmental
Authority, and the Buyer is not operating under or subject to an order, award,
judgment, writ, decree, determination or injunction of any court, arbitrator or
Governmental Authority that would affect the transactions contemplated by this
Agreement or its ability to perform its obligations under this Agreement.
4.5. Qualification of Buyer.
Buyer knows of no facts or circumstances that would cause
Buyer not to meet any qualification to be the assignee of the FCC Licenses or
that Buyer believes will delay a routine grant of the Assignment Applications.
4.6. Disclosure.
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The representations and warranties of Buyer in this Agreement
and the other information furnished by Buyer to Sellers in connection with the
execution, delivery and performance of this Agreement and the consummation of
the transactions contemplated hereby, do not contain any untrue statement of a
material fact or omit to state a material fact required to be stated in order to
make such information not misleading.
ARTICLE 5.
PRE-CLOSING FILINGS AND UNDERTAKINGS
5.1. Applications for FCC Consent.
As promptly as practicable and no later than five (5) business
days following the execution of this Agreement, Sellers and Buyer shall jointly
file one or more applications with the FCC requesting its consent to the
assignment of the FCC Licenses for the Station from Sellers to Buyer (the
"Assignment Applications"). The Sellers and Buyer will diligently take, or fully
cooperate in the taking of, all necessary and proper steps, and provide any
additional information reasonably requested, and use their respective reasonable
commercial efforts to resolve objections that may be asserted by the FCC or any
third party, in order to obtain promptly the requested consent and approval of
the Assignment Applications by the FCC. Notwithstanding anything in this
Agreement to the contrary, this Section 5.1 shall survive the Closing until the
FCC Consent becomes a Final Order. No assignment of the FCC Licenses shall occur
without the prior written consent of the FCC.
5.2. Sharing Information.
Each party hereto shall as promptly as possible, and in any
event within two (2) business days, inform the other of any material
communications between such party and the FCC or any other Governmental
Authority regarding this Agreement or the transactions contemplated hereby. If
any party receives a request for additional information or documentary material
from any such Governmental Authority, then such party shall endeavor in good
faith to make, or cause to be made, as promptly as practicable and after
consultation with the other party, an appropriate response to such request.
5.3. Environmental Reports.
5.3(a) By January 30, 1998, Buyer may obtain, at its sole
expense, phase one environmental assessments of all Real Property (collectively,
the "Phase I Reports"). If, upon receipt of the Phase I Reports, the Buyer has
reasonable grounds to believe that there is contamination with Hazardous
Materials it shall have the right to obtain, within thirty (30)
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days following receipt of the Phase I Reports, a phase II environmental
assessment report (the "Phase II Report"), at its sole expense, with respect to
any or all of the Real Property.
5.3(b) The Phase I Reports and the Phase II Reports will be
prepared by a nationally recognized firm of environmental engineers as may
reasonably be selected by the Buyer. The Sellers agree to cooperate with the
Buyer and with all third parties in permitting the Buyer to obtain in a timely
manner the Phase I Reports and the Phase II Reports.
5.3(c) If the Phase I Reports or the Phase II Reports show any
condition reportable under applicable Environmental Laws, Buyer shall notify
Sellers of such condition within twenty-four (24) hours following receipt of
such information, which notice shall include a copy of the Phase I Reports or
the Phase II Reports with which Buyer is satisfied. If the cost to cure or
remediate any condition or problem with which Buyer is reasonably dissatisfied
is less than Fifty Thousand Dollars ($50,000), individually, and less than Two
Hundred Thousand Dollars ($200,000), in the aggregate, Sellers shall be
obligated to so cure or remediate such problem on or before the Closing Date. If
the cost to cure or remediate such problem or condition is equal to or in excess
of Fifty Thousand Dollars ($50,000), individually, or Two Hundred Thousand
Dollars ($200,000), in the aggregate, or cannot reasonably be determined, or
such condition cannot reasonably be cured or remediated by Sellers prior to the
Closing Date, Sellers shall have no obligation to undertake corrective action
and if Sellers shall elect not to take such action, Buyer shall have the right
to either waive its rights with respect thereto and proceed with the Closing or
to terminate this Agreement pursuant to the terms of Section 13 hereof.
ARTICLE 6.
COVENANTS AND AGREEMENTS OF SELLERS
Subject to Section 8.1 below, Sellers covenant and agree with
Buyer as follows:
6.1. Negative Covenants.
Pending and prior to the Closing, Sellers will not, without
the prior written consent or approval of Buyer, which shall not be unreasonably
withheld, do or agree to do any of the following, as such actions relate to the
Station or the Assets:
6.1(a) Dispositions; Mergers. Sell, assign, lease or otherwise
transfer or dispose of any of the Assets; or merge or consolidate with or into
any other entity or enter into any Contracts relating thereto; provided,
however, that Sellers may sell, assign, lease or otherwise transfer or dispose
of any Asset in the Ordinary Course of Business provided that either (i) it is
replaced or (ii) the sale proceeds in respect of such Asset are held for the
benefit of the Buyer.
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6.1(b) Additional Agreements. Acquire or enter into any
Additional Agreements except in the Ordinary Course of Business, or renew,
extend, amend, alter, modify, replace or otherwise change any Scheduled
Contract, except in the Ordinary Course of Business.
6.1(c) Contract Breaches. Do or omit to do any act (or permit
such action or omission) which will cause a material breach of any Contract to
which either Seller is a party or by which either Seller is bound.
6.1(d) Actions Affecting FCC Licenses or Contracts. Take any
action that jeopardizes the validity or enforceability of or rights under the
FCC Licenses, or take any action under any Scheduled Contract that would have a
Material Adverse Effect.
6.2. Affirmative Covenants.
Pending and prior to the Closing Date, Sellers will, as such
actions relate to the Station or the Assets:
6.2(a) Normal Operations. Subject to the terms and conditions
of this Agreement (including, without limitation, Section 6.1) (i) carry on the
business and activities of the Station in the Ordinary Course of Business; (ii)
pay or otherwise satisfy all obligations (cash and barter) of the Station in the
Ordinary Course of Business; (iii) maintain all Assets in customary repair,
order and condition; and (iv) maintain their books of account, records, and
files in substantially the same manner as heretofore maintained.
6.2(b) FCC Matters. (i) Maintain the validity of the FCC
Licenses, and comply in all material respects with all requirements of the FCC
Licenses and the rules and regulations of the FCC; and (ii) deliver to Buyer,
within ten (10) business days after filing, copies of any reports, applications
or responses to the FCC related to the Station that are filed between the date
of this Agreement and the Closing Date.
6.2(c) Actions. Take all actions under the applicable laws and
regulations of any state having jurisdiction over Sellers necessary to
effectuate the transactions contemplated by this Agreement and by the other
Transaction Documents.
6.2(d) Transfer Tax: Bulk Sales. If any laws pertaining to
bulk sales apply to the transactions contemplated hereby, Sellers will indemnify
the Buyer against any and all debts, claims, unpaid bills, attachments,
injunctions or other writs and against any and all loss on account of charges,
assessments, damages or expenses incurred by the Buyer, except to the extent
assumed by the Buyer hereunder, on account of failure to comply with such laws
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pertaining to bulk sales. Payment of any claims under the immediately preceding
sentence shall be made promptly in cash upon demand.
6.2(e) Access. Sellers shall (i) give to Buyer and Buyer's
authorized representatives access during normal business hours to Sellers'
properties, books, records, Contracts, commitments, Transmitter Site facilities,
premises, and equipment and to Sellers' officers and employees, agents and
representatives (including, without limitation, the independent accountants of
Sellers) relating to the Assets and (ii) permit Buyer and Buyer's consulting
engineers and independent contractors, at Buyer's expense, to conduct
engineering and other inspections of the Station and the Assets, provided that
all access under subparagraphs (i) and (ii) shall be upon reasonable prior
notice and in a manner that will not interfere with the Station's operations.
6.2(f) Encumbrances. Pay in full all liabilities associated
with and use its reasonable commercial efforts to obtain discharges of all
mortgages, security interests, liens and similar claims by third parties
encumbering the Assets (other than Permitted Encumbrances) at or prior to the
Closing Date.
6.2(g) Insurance. Maintain in full force and effect all of
their existing casualty, liability, and other insurance through the day
following the Closing Date in amounts not less than those in effect on the date
hereof.
6.2(h) Violations. Upon receiving notice or otherwise becoming
aware of any violation relating to the FCC Licenses, any violation by the
Station of any rules and regulations of the FCC, or any material violations
under any other applicable laws and regulations, promptly notify Buyer and, at
Sellers' expense, use reasonable commercial efforts to cure all such violations
prior to the Closing Date.
6.2(i) Interruption in Broadcast Operations. Promptly notify
Buyer in writing if the Station ceases to broadcast at its authorized power for
more than 48 consecutive hours. Such notice shall specify the reason or reasons
for such cessation and the corrective measures taken or to be taken by Sellers.
6.2(j) Environmental Matters. (i) Promptly furnish to Buyer
written notice of any material discharge of any Hazardous Materials or of any
actions or notices described in Section 3.13; and (ii) any material change in
the information set forth in Section 3.13 or Schedule 3.13(b).
6.2(k) Consents. Use commercially reasonable efforts to obtain
any third party consents required to assign to Buyer all Material Contracts and
to obtain third party consents to all other Contracts. If, on the Closing Date,
Sellers have not obtained any required consent for the assignment of any
Material Contract to Buyer and the Closing occurs, then after the Closing Date,
Sellers will continue to use commercially reasonable efforts, and the Buyer will
cooperate
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with Sellers, to obtain any such consent and/or to remove any other impediments
to the assignment of any such Material Contract. From and after the Closing,
until the valid assignment of all such Material Contracts, Sellers will take
such lawful actions as are reasonably necessary to assure that Buyer shall
receive the benefits of, and shall be obligated to perform the obligations of
Sellers under, all such Material Contracts after the Closing Date to the same
extent as if Buyer were a party thereunder (and Buyer agrees to cooperate with
Sellers in connection with any such actions and to enter into, at the time of
the Closing, any lawful arrangements in furtherance thereof (but at no
additional cost to Buyer other than such costs as Buyer would incur as a party
to such Material Contracts)).
6.2(l) Updating. Prior to the Closing Date, provide Buyer with
documentation regarding any material changes to the Schedules hereto including,
without limitation, copies of Additional Agreements.
6.2(m) Consent of Lenders. Use best efforts to obtain the
consents of their lenders under any and all existing credit facilities which are
required to consummate the transactions contemplated by this Agreement. If such
consents are not obtained by January 30, 1998, Sellers shall have the right to
terminate this Agreement pursuant to the terms of Section 13 hereof; provided,
that Sellers must provide Buyer with a notice of termination not later than 5:30
p.m. (EST) on January 30, 1998.
6.3. Confidentiality.
Sellers shall maintain strict confidentiality with respect to
all documents and information furnished to Sellers by or on behalf of Buyer or
retained by Sellers pursuant to Section 2.1(f). Nothing shall be deemed to be
confidential information that: (a) is known to Sellers at the time of its
disclosure to Sellers; (b) becomes publicly known or available other than
through disclosure by Sellers; (c) is received by Sellers from a third party not
actually known by Sellers to be bound by a confidentiality agreement with or
obligation to Buyer; or (d) is independently developed by Sellers as clearly
evidenced by its records. Notwithstanding the foregoing provisions of this
Section 6.3, Sellers may disclose such confidential information (x) to the
extent required or deemed advisable to comply with applicable laws and
regulations, (y) to its officers, managers, members, employees, representatives,
financial advisors, attorneys, accountants, lenders and agents and to its
members' officers and directors with respect to the transactions contemplated
hereby (so long as such parties are informed of the confidentiality of such
information), and (z) to any Governmental Authority in connection with the
transactions contemplated hereby. In the event this Agreement is terminated,
Sellers will return to Buyer all confidential information prepared or furnished
by Buyer relating to the transactions contemplated hereunder, whether obtained
before or after the execution of this Agreement.
ARTICLE 7.
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COVENANTS AND AGREEMENTS OF BUYER
Buyer covenants and agrees with Sellers as follows:
7.1. Confidentiality.
Buyer shall maintain strict confidentiality with respect to
all documents and information furnished to Buyer by or on behalf of Sellers.
Nothing shall be deemed to be confidential information that: (a) is known to
Buyer at the time of its disclosure to Buyer; (b) becomes publicly known or
available other than through disclosure by Buyer; (c) is received by Buyer from
a third party not actually known by Buyer to be bound by a confidentiality
agreement with or obligation to Sellers; or (d) is independently developed by
Buyer as clearly evidenced by its records. Notwithstanding the foregoing
provisions of this Section 7.1, Buyer may disclose such confidential information
(x) to the extent required or deemed advisable to comply with applicable laws
and regulations, (y) to its officers, directors, employees, representatives,
financial advisors, attorneys, accountants, and agents with respect to the
transactions contemplated hereby (so long as such parties are informed of the
confidentiality of such information), and (z) to any Governmental Authority in
connection with the transactions contemplated hereby. In the event this
Agreement is terminated, Buyer will return to Sellers all confidential
information prepared or furnished by Sellers relating to the transactions
contemplated hereunder, whether obtained before or after the execution of this
Agreement.
7.2. Actions.
Prior to the Closing, Buyer shall take all action under the
applicable laws and regulations of any state having jurisdiction over Buyer
necessary to effectuate the transactions contemplated by this Agreement.
7.3. Access.
Buyer agrees to (i) maintain all of the books and records of
the Station existing on the Closing Date for a period of ten (10) years from the
Closing Date, unless earlier released by Sellers and (ii) give Sellers and
Sellers' authorized representatives full and complete access upon reasonable
notice during normal business hours to such books and records of the Station
existing on the Closing Date.
7.4. Notice of Certain Events.
Buyer agrees to promptly notify Sellers of any fact or
circumstance of which Buyer becomes aware after the date of this Agreement that
would reasonably be expected to cause it not to meet any qualification to be the
assignee of the FCC Licenses or that it believes may delay a routine grant of
the Assignment Applications. Buyer will use its reasonable
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commercial efforts to remedy such fact or circumstance. Buyer will not take any
action that Buyer knows, or has reason to believe, would result in the
occurrence of any such fact or circumstance.
7.5. Buyout Payment.
Upon the earlier of (i) Closing, (ii) the termination of this
Agreement and (iii) June 1, 1998, Buyer agrees to pay Sellers an amount equal to
Fifty Thousand Dollars ($50,000) (the "Buyout Payment") by wire transfer of
immediately available funds to such bank or other financial institution as shall
be designated by Sellers in consideration of Sellers' lost revenue in respect of
Sellers' existing national and local advertising contracts which would have run
on the Station after the date hereof.
ARTICLE 8.
MUTUAL COVENANTS AND UNDERSTANDINGS
OF SELLERS AND BUYER
8.1. Possession and Control.
Notwithstanding any other provision of this Agreement or any
Transaction Document, between the date hereof and the Closing Date, Buyer shall
not directly or indirectly control, supervise or direct, or attempt to control,
supervise or direct, the business and operations of the Station, and such
operation, including complete control and supervision of all programming,
finances and employment shall be the sole responsibility of Sellers; provided,
however, that Buyer shall be entitled (i) to provide programming to the Station
pursuant to the TBA, and (ii) to inspect the Assets as provided in Section
6.2(e). On and after the Closing Date, Sellers shall have no control over, or
right to intervene, supervise, direct or participate in, the business and
operations of the Station.
8.2. Risk of Loss.
8.2(a) The risk of loss or damage by fire or other casualty or
cause to the Assets until the Closing Date shall be upon Sellers. In the event
of such loss or damage prior to the Closing Date, Sellers shall use reasonable
commercial efforts to restore, replace or repair the damaged Assets in
accordance with Sellers' past practices at Sellers' sole cost and expense. In
the event such loss or damage shall not be restored, replaced, or repaired as of
the Closing Date, Buyer shall proceed with the Closing and receive at Closing a
reduction of the Purchase Price in an amount which, net of any insurance
proceeds paid by Sellers to Buyer, or the value of any rights to receive
insurance proceeds which are assigned by Sellers to Buyer, is sufficient to pay
for such restoration, replacement or repair.
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8.2(b) In the event that any loss or damage described in
Section 8.2(a) shall not be restored, replaced or repaired as of the Closing
Date, Sellers may defer the Closing Date until such restorations, replacements
or repairs are made, so long as such restorations, replacements or repairs are
made within sixty (60) days after the date the Closing would have occurred in
the absence of such loss or damage.
8.2(c) Notwithstanding anything contained herein to the
contrary, to the extent that any loss or damage by fire or other casualty or
cause to the Assets occurs as a result of or arises out of Buyer's operation of
the Station pursuant to the TBA, Sellers shall have no liability hereunder for
such loss, and Buyers shall proceed with the Closing with no reduction to the
Purchase Price.
8.3. Allocation of Purchase Price.
Buyer and Sellers will allocate the Purchase Price payable by
Buyer hereunder in accordance with the requirements of Section 1060 of the Code.
A preliminary allocation shall be prepared by Buyer and the final allocation
shall be determined by mutual agreement of the parties prior to the Closing.
Buyer and Sellers further agree to file their respective federal income tax
returns and other tax returns in a manner consistent with such final allocation.
8.4. Public Announcements.
Sellers and Buyer shall consult with each other before making
any public statements with respect to this Agreement or the transactions
contemplated herein and shall not issue any such press release or make any such
public statement without the prior written consent of the other party, which
shall not be unreasonably withheld, conditioned or delayed; provided, however,
that a party may, without the prior consultation with or written consent of the
other party, issue such press release or make such public statement as may be
required by Law or any listing agreement with a national securities exchange to
which Sellers or Buyer (or any affiliate of Sellers or Buyer) is a party if it
has used all reasonable efforts to consult with the other party and to obtain
such party's consent but has been unable to do so in a timely manner.
8.5. Employee Matters.
All employees of the Station shall be and remain Sellers'
employees, with Sellers having full authority and control over their actions,
and Buyer shall not assume the status of an employer or a joint employer of, or
incur or be subject to any liability or obligations of an employer with respect
to, any such employees unless and until actually hired by Buyer. Sellers shall
be solely responsible for any and all liabilities and obligations Sellers may
have to the employees of the Station, including, without limitation,
compensation, severance pay, incentive bonuses, health expenses, and accrued
vacation time, sick leave and obligations under any of Sellers' employee benefit
plans. Sellers shall comply with the
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provisions of the Worker Adjustment and Retraining and Notification Act (the
"WARN Act") and similar laws and regulations, if applicable, and shall be solely
responsible for any and all liabilities, penalties, fines, or other sanctions
that may be assessed or otherwise due under such applicable laws and regulations
on account of the dismissal or termination of the employees of the Station by
Sellers.
8.6. Unwind Agreement.
Pursuant to Sections 9.4 of this Agreement, the parties agree
to close the transactions contemplated by this Agreement prior to the FCC
Consent becoming a Final Order and to enter into an unwind agreement, at
Closing, in substantially the form attached as Exhibit B hereto (the "Unwind
Agreement").
8.7 Time Brokerage Agreement.
Upon execution of this Agreement, One-On-One Radio and Buyer
shall enter into the TBA.
ARTICLE 9.
CONDITIONS PRECEDENT TO
BUYER'S OBLIGATION TO CLOSE
The obligations of Buyer to purchase the Assets and to proceed
with the Closing are subject to the satisfaction (or waiver in writing by Buyer)
at or prior to the Closing of each of the following conditions:
9.1. Representations and Covenants.
Each of the representations and warranties (other than those
representations and warranties which by their terms are as of a specific date)
of Sellers made in this Agreement or in any other Transaction Document shall be
true and correct, as though made on or as of the Closing Date, and Sellers shall
have performed and complied with all covenants and agreements required by this
Agreement or any other Transaction Document to be performed or complied with by
Sellers prior to the Closing.
9.2. Consents.
Sellers shall have either (a) obtained prior to the Closing
Date all consents, authorizations or approvals necessary to effect valid
assignments to Buyer of the Material Contracts (including any Additional
Agreement that either (i) replaces any Material Contract or (ii) the subject
matter and value of which is substantially similar to any of the Material
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Contracts, but excluding those Material Contracts that have expired in the
Ordinary Course of Business prior to the Closing Date), except for the FCC
Consent, which shall be governed by Section 9.4 or (b) entered into an
arrangement pursuant to Section 6.2(k) hereof with respect such Material
Contracts.
9.3. Delivery of Documents.
Sellers shall have delivered to Buyer the Transaction
Documents required to be delivered by Sellers to Buyer pursuant to Section 11.2.
9.4. FCC Consent.
The FCC Consent shall have been granted and shall be in full
force and effect (but without having waited for the FCC Consent to become a
Final Order).
9.5. Legal Proceedings.
No Governmental Authority shall have enacted, enforced, issued
or entered any law, rule, regulation or order, including in connection with any
action or proceeding brought by a third party (not subsequently dismissed,
settled or otherwise terminated), which prohibits or invalidates the
transactions contemplated by this Agreement or any other Transaction Document or
prevents, limits, restricts or impairs the ownership, use or operation of the
Assets or the Station by Buyer, other than an action or proceeding instituted by
Buyer.
9.6. Estoppel Certificates.
Sellers shall have obtained and delivered prior to Closing an
estoppel certificate, dated within 10 days prior to the Closing, from each of
the landlords of the Leases set forth in Schedule 2.1(b), in form and substance
reasonably satisfactory to Buyer.
9.7. Time Brokerage Agreement.
The TBA and all agreements contemplated therein shall have
become effective in accordance with the terms and conditions thereof and, from
and after the date the TBA and such agreements are to first become effective
through and including the Closing Date, the TBA and such agreements shall have
not been terminated due to One-On-One Radio's breach thereof.
ARTICLE 10.
CONDITIONS PRECEDENT TO
SELLERS' OBLIGATION TO CLOSE
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The obligations of Sellers to sell, transfer, convey and
deliver the Assets (other than the Excluded Assets) and to proceed with the
Closing are subject to the satisfaction (or waiver in writing by Sellers) at or
prior to the Closing of each of the following conditions:
10.1. Representations and Covenants.
Each of the representations and warranties of Buyer made in
this Agreement shall be true and correct, as though made on or as of the Closing
Date, and Buyer shall have performed and complied with all covenants and
agreements required by this Agreement or any other Transaction Document to be
performed or complied with by Buyer prior to the Closing.
10.2. Delivery by Buyer.
Buyer shall have delivered to Sellers (i) the Purchase Price
and (ii) any other document required to be delivered by Buyer to Sellers
pursuant to Section 11.3.
10.3. FCC Consent.
The FCC Consent shall have been obtained.
10.4. Legal Proceedings.
No Governmental Authority shall have enacted, enforced,
issued or entered any law, rule, regulation or order, including in connection
with any action or proceeding brought by a third party, (not subsequently
dismissed, settled, or otherwise terminated) which prohibits or invalidates the
transactions contemplated by this Agreement, any other Buyer Document or any
Transaction Document, other than an action or proceeding instituted by Sellers.
10.5. Time Brokerage Agreement.
The TBA and all agreements contemplated therein shall have
become effective in accordance with the terms and conditions thereof and, from
and after the date the TBA and such agreements are to first become effective
through and including the Closing Date, the TBA and such agreements shall have
not terminated due to Buyer's breach thereof.
ARTICLE 11.
THE CLOSING
11.1. Closing.
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11.1(a) Unless otherwise agreed upon in writing by Buyer and
Sellers, the Closing Date shall be on the fifteenth (15th) business day
following the grant of the FCC Consent.
11.1(b) The Closing shall be held at such time of day and
place or places as the parties may agree.
11.2. Delivery by Sellers.
At or before the Closing, Sellers shall deliver to Buyer the
following:
11.2(a) Contracts, Agreements and Instruments. The following
Transaction Documents dated as of the Closing Date and duly executed by Sellers,
in form and substance reasonably satisfactory to counsel to Buyer and sufficient
to transfer and convey to Buyer all of Sellers' right, title and interest (of
the quality required in this Agreement) in and to the Assets other than the
Excluded Assets:
(i) the Assignment of Leases;
(ii) the Bill of Sale;
(iii) the Assignment of FCC Licenses;
(iv) the Assignment of Contracts; and
(v) all such other general instruments of
transfer, assignment and
conveyance, grant deeds, certificates of title, assignments, estoppel
certificates for Leased Real Property, evidences of consent or waiver, and other
instruments or documents in form and substance satisfactory to Buyer, as shall
be necessary to evidence the sale, assignment, transfer and conveyance of the
Assets other than the Excluded Assets to Buyer in accordance with this
Agreement.
11.2(b) Consents. Originals of all consents obtained
pursuant to Section 6.2(k).
11.2(c) UCC Report. A report dated not more than ten (10)
days prior to the Closing Date of the appropriate filing officers in the
jurisdictions specified in Schedule 3.1 evidencing no judgments, financing
statements, tax liens, mechanics', materialmen's or other statutory liens on
file with respect to the Assets, and, if such report evidences that judgments,
financing statements, tax liens, mechanics', materialmen's or other statutory
liens are on file with respect to any of the Assets, a termination statement or
other appropriate document signed by the secured party or lienholder
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evidencing the release or termination of such financing statement or such lien
or a pay-off letter from such secured party or lienholder indicating that such
party or lienholder will provide such release or termination statement upon
receipt of payment from the proceeds of the sale contemplated herein.
11.2(d) Certified Consents. A copy of (i) a written consent
signed by each Seller's members and certified as being correct and complete and
then in full force and effect, authorizing the execution, delivery and
performance of the Transaction Documents, and the consummation of the
transactions contemplated thereby, and (ii) a copy of the certificate of
formation and the limited liability company agreement of each Seller, certified
by the members of each Seller as being true, correct and complete as of the
Closing Date.
11.2(e) Members' Certificates.
(i) Certificates from each Seller signed on
behalf of such Seller by each of their members certifying that all conditions
set forth in Section 9.1 (giving effect to any updated Schedules pursuant to
Section 6.2(l)) have been satisfied; and
(ii) Certificates signed by the members of each
Seller as to the authorization of the officers of such members executing any
Transaction Document on behalf of such Seller.
11.2(f) Sellers' IRS Form 8594. Internal Revenue Service
Form 8594 completed by Sellers in connection with the acquisition of the Assets
by Buyer.
11.2(g) Expense Payment. A check or checks, or other
evidence of payment acceptable to Buyer, with respect to the expenses payable by
Sellers, if any, as described in Section 15.4.
11.2(h) Opinions of Counsel. The opinions of Winston &
Strawn and Fletcher, Heald & Hildreth, P.L.C., counsel to Sellers, in form and
substance reasonably satisfactory to Buyer.
11.2(i) Unwind Agreement. The Unwind Agreement (unless at
the time of the Closing the FCC Consent shall have become a Final Order).
11.2(j) Other Documents. Such other documents to be
delivered by Sellers hereunder as are reasonably necessary for Buyer to
effectuate and document the transactions contemplated hereby.
11.3. Delivery by Buyer.
At or before the Closing, Buyer shall deliver to Sellers the
following:
11.3(a) Purchase Price Payment. The Purchase Price.
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11.3(b) Buyer Documents. Such certificates, instruments or
documents as Sellers may reasonably request in order to effect and document the
transactions contemplated hereby.
11.3(c) Certified Resolutions and Corporate Documents. A
copy of (i) the resolutions of the board of directors of Buyer, certified as
being correct and complete and then in full force and effect, authorizing the
execution, delivery and performance of this Agreement and the consummation of
the transactions contemplated hereby and (ii) a copy of the certificate of
incorporation and by-laws of Buyer, certified by the corporate secretary of
Buyer as being true, correct and complete as of the Closing Date.
11.3(d) Officers' Certificate.
(i) A certificate of Buyer signed by its
president and corporate secretary certifying that all conditions set forth in
Section 10.1 have been satisfied; and
(ii) a certificate signed by the corporate
secretary of Buyer as to the incumbency of the officer of Buyer executing this
Agreement on behalf of the Buyer.
11.3(e) Buyer's IRS Form 8594. Internal Revenue Service Form
8594 completed by Buyer in connection with the acquisition of the Assets by
Buyer.
11.3(f) Expense Payment. A check or checks, or other
evidence of payment acceptable to Sellers, with respect to the expenses payable
by Buyer, if any, as described in Section 15.4.
11.3(g) Opinion of Counsel. The opinion of Skadden, Arps,
Slate, Meagher & Flom LLP, counsel to Buyer, in form and substance reasonably
satisfactory to Sellers.
11.3(h) Unwind Agreement. The Unwind Agreement (unless at
the time of the Closing the FCC Consent shall have become a Final Order).
11.3(i) Buyout Payment. The Buyout Payment.
11.3(j) Other Documents. Such other documents to be
delivered by Buyer hereunder as are reasonably necessary for Sellers to
effectuate the transactions contemplated herein.
ARTICLE 12.
SURVIVAL; INDEMNIFICATION
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12.1. Survival of Representations.
Except as otherwise set forth herein, all representations
and warranties, covenants and agreements of Sellers and Buyer contained in or
made pursuant to this Agreement or in any certificate furnished pursuant hereto
shall survive the Closing Date and shall remain in full force and effect for a
period of twelve (12) months after the Closing Date, except that the
representations and warranties of Sellers contained in Section 3.13 shall
survive the Closing Date and shall remain in full force and effect for a period
of eighteen (18) months after the Closing Date. Except as set forth in Section
5.3(c), all such representations and warranties, covenants, and agreements shall
also survive and be unaffected by (and shall not be deemed waived by) any
investigation, audit, appraisal, or inspection at any time made by or on behalf
of any party hereto. Notwithstanding anything herein to the contrary, any
representation, warranty, covenant or agreement which is the subject of a claim
which is asserted in writing prior to the expiration of the applicable period
set forth above shall survive with respect to such claim or dispute until the
final resolution thereof.
12.2. Indemnification by Sellers.
Except as set forth in Section 5.3(c) and subject to the
conditions and provisions of Section 12.4, Sellers agrees to indemnify, defend
and hold harmless Buyer and Buyer's respective directors, officers, managers and
employees ("Buyer Indemnified Parties") from and against and in respect of any
and all Losses, asserted against, resulting to, imposed upon or incurred by the
Buyer Indemnified Parties, directly or indirectly, by reason of or resulting
from (a) any liability or obligation of or claim against Buyer Indemnified
Parties (whether absolute, accrued, contingent or otherwise and whether a
contractual or any other type of liability or obligation or claim) not expressly
assumed by Buyer pursuant to Section 2.6, arising out of, relating to or
resulting from the businesses of Sellers, or relating to or resulting from the
Assets or the business and operations of the Station during the period prior to
the Closing Date; (b) any misrepresentation or breach of the warranties of
Sellers contained in or made pursuant to any Transaction Document; (c) any
noncompliance by Sellers with any covenants, agreements or undertakings of
Sellers contained in or made pursuant to any Transaction Document including
without limitation any failure to comply with applicable Bulk Sales laws; (d)
any employment related practices, policies, Contracts, decisions, actions or
omissions by Sellers with respect to any of Sellers' employees or former
employees or otherwise with respect to any employee benefit plan or arrangement
sponsored or maintained by Sellers or any Affiliate of Sellers or; (e) any
breach by Sellers of any Scheduled Contract; (f) any pre-closing breach by
Sellers of either (x) any Contract assumed by Buyer pursuant to Section 2.6(b)
(iii) or (y) any Additional Agreement that constitutes an Assumed Liability.
12.3. Indemnification by Buyer.
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Subject to the conditions and provisions of Section 12.4,
Buyer hereby agrees to indemnify, defend and hold harmless Sellers, their
members and their respective directors, officers and employees ("Sellers
Indemnified Parties") from, against and with respect to any and all Losses,
asserted against, resulting to, imposed upon or incurred by Sellers Indemnified
Parties, directly or in indirectly, by reason of or resulting from (a) any
liability or obligation of or claims against Sellers Indemnified Parties
(whether absolute, accrued, contingent or otherwise and whether contractual, Tax
or any other type of liability or obligation or claim) expressly assumed by
Buyer pursuant to Section 2.6; (b) any misrepresentation or breach of the
warranties of Buyer contained in or made pursuant to any Buyer Document; (c) any
noncompliance by Buyer with any covenants, agreements or undertakings of Buyer
contained in or made pursuant to any Buyer Document; (d) any liability or
obligation of or claims against Sellers Indemnified Parties (whether absolute,
accrued, contingent or otherwise and whether a contractual, Tax or any other
type of liability or obligation or claim) arising out of, relating to or
resulting from the business of Buyer, or relating to or resulting from the
Assets (other than the Excluded Assets) or the Assumed Liabilities, or the
business and operations of the Station during the period from and after the
Closing Date; (e) any failure by Buyer to obtain and hold any permit, license or
approval from any Governmental Authority necessary in order to conduct the
operations of the Station in accordance with applicable law and to own, use and
maintain the Assets; and (f) any decision by Buyer to close the transactions
contemplated by this Agreement notwithstanding a failure by Sellers to obtain
any consent, authorization or approval, including Governmental Approvals
relating to the assignment of governmental permits, orders or authorizations,
and consents, authorizations and approvals of non-governmental third parties
necessary to effect valid assignments or transfers to Buyer of any Asset,
including any Material Contract set forth on Schedule 2.1(e), or any Additional
Agreement.
12.4. Conditions of Indemnification.
The obligations and liabilities of Sellers and of Buyer
hereunder with respect to their respective indemnities pursuant to this Article
12, shall be subject to the following terms and conditions:
12.4(a) The party seeking indemnification (the "Indemnified
Party") must give the other party or parties, as the case may be (the
"Indemnifying Party"), notice specifying in reasonable detail the nature of any
such Losses promptly after the Indemnified Party receives notice thereof;
provided that the failure to give such notice shall not affect the rights of the
Indemnified Party hereunder except to the extent that the Indemnifying Party's
defense shall have been materially impaired.
12.4(b) The Indemnifying Party shall have the right, absent
a conflict of interest, to undertake, by counsel or other representatives of its
own choosing, the defense of such Losses at the Indemnifying Party's risk and
expense.
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12.4(c) In the event that the Indemnifying Party shall elect
not to undertake such defense, or, within a reasonable time after notice from
the Indemnified Party of any such Losses, shall fail to defend, the Indemnified
Party (upon further written notice to the Indemnifying Party) shall have the
right to undertake the defense, compromise or settlement of such Losses, by
counsel or other representatives of its own choosing, on behalf of and for the
account and risk of the Indemnifying Party (subject to the right of the
Indemnifying Party to assume defense under Section 12.4(b) hereof at any time
prior to settlement, compromise or final determination thereof). In such event,
the Indemnifying Party shall pay to the Indemnified Party, in addition to the
other sums required to be paid hereunder, the costs and expenses incurred by the
Indemnified Party in connection with such defense, compromise or settlement as
and when such costs and expenses are so incurred.
12.4(d) Anything in this Section 12.4 to the contrary
notwithstanding, (i) if there is a reasonable probability that Losses may
materially and adversely affect the Indemnified Party other than as a result of
money damages or other money payments, the Indemnified Party shall have the
right, at its own cost and expense, to participate in the defense, compromise or
settlement of the Losses, (ii) the Indemnifying Party shall not, without the
Indemnified Party's written consent, which shall not be unreasonably withheld,
settle or compromise any Losses or consent to entry of any judgment which does
not include as an unconditional term thereof the giving by the claimant or the
plaintiff to the Indemnified Party of a release from all liability in respect of
such Losses in form and substance satisfactory to the Indemnified Party, and
(iii) in the event that the Indemnifying Party undertakes defense of any Losses,
the Indemnified Party, by counsel or other representative of its own choosing
and at its sole cost and expense, shall have the right to consult with the
Indemnifying Party and its counsel or other representatives concerning such
Losses and the Indemnifying Party and the Indemnified Party and their respective
counsel or other representatives shall cooperate with respect to such Losses and
(iv) in the event that the Indemnifying Party undertakes defense of any Losses,
the Indemnifying Party shall have an obligation to keep the Indemnified Party
informed of the status of the defense of such Losses and furnish the Indemnified
Party with all documents, instruments and information that the Indemnified party
shall reasonably request in connection therewith.
12.4(e) No claim for indemnification shall be made by either
Indemnified Party unless the aggregate losses of such Indemnified Party exceed
Fifty Thousand Dollars ($50,000) (the "Threshold Amount"), whereupon, the
Indemnified Party shall be entitled to indemnification hereunder by the
Indemnifying Party for any such aggregate losses in excess of the Threshold
Amount. Notwithstanding any other provision of this Agreement, the maximum
liability that any Indemnifying Party shall have for indemnification claims
hereunder shall not exceed Nine Million Dollars ($9,000,000) in the aggregate.
12.4(f) The indemnification obligations under this Article
12 with respect to Sections 12.2(b) and 12.3(b) shall expire twelve (12) months
following the Closing Date; provided, that, if any such indemnification claim
under such Sections has been asserted in
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writing prior to the stated expiration of the applicable period set forth above,
then any indemnification obligation with respect thereto shall survive until
final resolution thereof.
12.4(g) If any indemnity claim relates to the cleanup of
Hazardous Materials, such cleanup shall be required only to the extent that it
is required by a Governmental Authority pursuant to an Environmental Law.
ARTICLE 13.
TERMINATION
13.1. Termination.
This Agreement may be terminated at any time prior to the
Closing by:
13.1(a) the mutual consent, in writing, of Sellers and
Buyer;
13.1(b) Buyer, by written notice of termination delivered to
Sellers, if Sellers are in material default of their obligations hereunder and
have failed to cure such default to Buyer's reasonable satisfaction within
thirty (30) days following written notice of such default sent by Buyer to
Sellers;
13.1(c) Buyer, pursuant to, and in accordance with Sections
5.3;
13.1(d) Sellers, pursuant to, and in accordance with Section
6.2(m);
13.1(e) Sellers, by written notice of termination delivered
to Buyer, if Buyer is in material default of its obligations hereunder and has
failed to cure such default to Sellers' reasonable satisfaction within thirty
(30) days following written notice of such default sent by Sellers to Buyer;
13.1(f) automatically, without the need for further action
on the part of any party hereto, upon the first date on which the denial of the
FCC Consent becomes a Final Order; or
13.1(g) by any party not then in default hereunder if for
any reason the Closing has not occurred within one year following the date of
this Agreement (as such date may be extended by mutual agreement of the
parties).
13.2. Effect of Termination.
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In the event this Agreement is terminated as provided in
Section 13.1(a), (c), (d), (f) or(g), this Agreement shall be deemed null, void
and of no further force or effect, and the parties hereto shall be released from
all future obligations hereunder with respect to the Station; provided, however,
that the obligations of Buyer and Sellers as in Sections 6.3, 7.1, 13.2, 15.3
and 15.4, shall survive such termination. If this Agreement is subject to
termination as provided in Sections 13.1(b) or (e), the rights of the parties
shall be governed by Article 14.
ARTICLE 14.
REMEDIES
14.1. Default by Sellers.
If this Agreement is terminable by Buyer pursuant to Section
13.1(b) and Buyer is not in material default or material breach of this
Agreement, Buyer shall be entitled:
(i) to require Sellers to consummate and specifically
perform the sale in accordance with Section 14.3, if necessary through
injunction or other court order or process; or
(ii) by written notice to Sellers, to terminate this
Agreement; and
(iii) to pursue any and all remedies against Sellers
available at law or in equity.
14.2. Default by Buyer.
If this Agreement is terminated pursuant to Section 13.1(e)
and Seller is not in material default or material breach of this Agreement,
Sellers shall be paid the Escrow Deposit, together with any interest earned
thereon, as liquidated damages, it being agreed that such payment shall
constitute full payment for any and all damages suffered by Sellers by reason
thereof and that Sellers shall have no rights to or claims for damages from
Buyer or its Affiliates other than as set forth in this Agreement.
14.3. Specific Performance.
Sellers acknowledges that the Assets to be sold and
delivered to Buyer pursuant to this Agreement are unique and that Buyer has no
adequate remedy at law if Sellers shall fail to perform any of its obligations
hereunder, and Sellers therefore confirms and agrees that Buyer's right to
specific performance is essential to protect the rights and interests of Buyer.
Accordingly, Sellers hereby agree that if this Agreement is terminable by Buyer
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pursuant to Section 13.1(b) and Buyer is not in material default or material
breach of this Agreement, Buyer shall have the right to have all obligations,
undertakings, agreements and other provisions of this Agreement specifically
performed by Sellers and that Buyer shall have the right to obtain an order or
decree of such specific performance in any of the courts of the United States or
of any state or other political subdivision thereof.
14.4. Remedies Not Exclusive.
The remedies provided in this Article 14 shall be cumulative
and not exclusive.
ARTICLE 15.
GENERAL PROVISIONS
15.1. Further Assurances.
Subject to the terms and conditions herein provided, each of
the parties hereto agrees to use its commercially reasonable efforts to take or
cause to be taken all such further actions, and to do, or cause to be done, all
things necessary, proper or advisable under applicable laws and regulations to
consummate and make effective the transactions contemplated by this Agreement or
in order to fully effectuate the purposes, terms and conditions of this
Agreement (including, without limitation, executing, delivering and filing or
causing to be executed, delivered and filed such further documents and
instruments and obtaining such consents (including Governmental Approvals), as
may be necessary or reasonably requested in connection with the consummation of
the transactions contemplated hereby). In case at any time after the Closing
Date any further action is necessary to carry out the purposes of this
Agreement, including, without limitation, the securing of consents of third
parties, each party hereto shall use its reasonable best efforts to take all
such necessary action.
15.2. Mail.
Sellers hereby authorizes and empowers Buyer from and after
the Closing Date (a) to receive and open mail addressed to the Station and (b)
to deal with the contents thereof in any manner Buyer sees fit, provided such
mail and the contents thereof relate to the Station or the Assets (other than
the Excluded Assets) or to any of the Assumed Liabilities. Sellers agrees to
deliver to Buyer any mail, checks or other documents received by it pertaining
to the Station or the Assets (other than the Excluded Assets) or any of the
Assumed Liabilities. Buyer agrees to deliver to Sellers any mail which it
receives to which it is not entitled by reason of the Agreement or otherwise and
to which Sellers is entitled.
15.3. Brokers.
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Sellers represent to Buyer that Sellers have not engaged, or
incurred any liability (for any brokerage fees, finders' fees, commissions or
otherwise) to, any broker, finder or agent in connection with the transactions
contemplated by this Agreement; Buyer represents to Sellers that Buyer has not
engaged, or incurred any unpaid liability (for any brokerage fees, finders'
fees, commissions or otherwise) to, any broker, finder or agent in connection
with the transactions contemplated by this Agreement; and Sellers agree to
indemnify Buyer, and Buyer agrees to indemnify Sellers, against any claims
asserted against the other parties for any such fees or commissions by any
person purporting to act or to have acted for or on behalf of the indemnifying
party. Notwithstanding any other provision of this Agreement, this Section 15.3
shall survive the Closing without limitation.
15.4. Expenses.
Each party hereto shall pay its own expenses incurred in
connection with this Agreement and in the preparation for and consummation of
the transactions provided for herein. Notwithstanding the foregoing, (a) Buyer
and Sellers shall share equally any expenses in connection with any transfer,
sales, filing or use Taxes or fees applicable to, imposed upon or arising out of
the transactions contemplated hereby including, without limitation, any transfer
Tax or filing fee relating to the assignment of the FCC Licenses or the transfer
of Real Property or personal property and (b) Buyer shall pay all expenses with
respect to Phase I Reports and Phase II Reports.
15.5. Notices.
All notices, demands, requests, or other communications
which may be or are required to be given or made by any party to any other party
pursuant to this Agreement shall be in writing and shall be hand delivered,
mailed by first-class registered or certified mail, return receipt requested,
postage prepaid, delivered by overnight air courier, or transmitted by facsimile
transmission addressed as follows:
(i) If to Buyer:
Radio Unica Corp.
8400 N.W. 52nd Street
Suite 101
Miami, Florida 33176
Attention: Joaquin F. Blaya
Facsimile: (305) 442-4077
with a copy (which shall not constitute notice) to:
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Skadden, Arps, Slate, Meagher & Flom LLP
1440 New York Avenue
Washington, D.C. 20005
Attention: John C. Quale
Facsimile: (202) 393-5760
(ii) If to Sellers:
One-On-One Sports, Inc.
1935 Techny Rd.
Suite 18
Northbrook, Illinois 60062
Attention: Christopher J. Brennan
Facsimile: (847) 509-1677
with a copy (which shall not constitute notice) to:
Winston & Strawn
35 West Wacker Drive
Chicago, Illinois 60601
Attention: Gregory S. Murray
Facsimile: (312) 558-5700
and
Fletcher, Heald & Hildreth, P.L.C.
11th Floor
1300 North 17th Street
Rosslyn, Virginia 22209
Attention: Richard Hildreth
Facsimile: (703) 812-0486
or such other address as the addressee may indicate by written notice to the
other parties.
Each notice, demand, request, or communication which shall
be given or made in the manner described above shall be deemed sufficiently
given or made for all purposes at such time as it is delivered to the addressee
(with the return receipt, the delivery receipt, the facsimile transmission
confirmation or the affidavit of messenger being deemed conclusive but not
exclusive evidence of such delivery) or at such time as delivery is refused by
the addressee upon presentation.
15.6. Waiver.
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No delay or failure on the part of any party hereto in
exercising any right, power or privilege under this Agreement or under any other
instrument or document given in connection with or pursuant to this Agreement
shall impair any such right, power or privilege or be construed as a waiver of
any default or any acquiescence therein. No single or partial exercise of any
such right, power or privilege shall preclude the further exercise of such
right, power or privilege, or the exercise of any other right, power or
privilege. No waiver shall be valid against any party hereto unless made in
writing and signed by the party against whom enforcement of such waiver is
sought and then only to the extent expressly specified therein.
15.7. Benefit and Assignment.
15.7(a) Except as hereinafter specifically provided in this
Section 15.7, no party hereto shall assign this Agreement, in whole or in part,
whether by operation of law or otherwise, without the prior written consent of
Sellers (if the assignor is Buyer) or Buyer (if the assignor is Sellers); and
any purported assignment contrary to the terms hereof shall be null, void and of
no force and effect. Buyer shall have the right to assign this Agreement to any
entity or entities controlling, controlled by, or under common control with
Buyer so long as any such assignment will not delay the Closing beyond the date
on which any Closing would otherwise occur in accordance with this Agreement;
provided, however, that no such assignment by Buyer shall release Buyer from its
obligations hereunder. Any assignment in accordance with the terms hereof shall
become effective upon delivery of written notice in accordance with Section
15.5.
15.7(b) This Agreement shall be binding upon and shall inure
to the benefit of the parties hereto and their respective successors and assigns
as permitted hereunder. No person or entity other than the parties hereto is or
shall be entitled to bring any action to enforce any provision of this Agreement
against any of the parties hereto, and the covenants and agreements set forth in
this Agreement shall be solely for the benefit of, and shall be enforceable only
by, the parties hereto or their respective successors and assigns as permitted
hereunder.
15.8. Entire Agreement; Amendment.
This Agreement, including the Schedules hereto and the other
instruments and documents referred to herein or delivered pursuant hereto
contain the entire agreement among the parties with respect to the subject
matter hereof and supersede all prior oral or written agreements, commitments or
understandings with respect to such matters. No amendment, modification or
discharge of this Agreement shall be valid or binding unless set forth in
writing and duly executed by the parties hereto.
15.9. Severability.
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If any part of any provision of this Agreement or any other
contract, agreement, document or writing given pursuant to or in connection with
this Agreement shall be invalid or unenforceable under applicable law, such part
shall be ineffective to the extent of such invalidity or unenforceability only,
without in any way affecting the remaining parts of such provisions or the
remaining provisions of said contract, agreement, document or writing.
15.10. Headings.
The headings of the sections and subsections contained in
this Agreement are inserted for convenience only and do not form a part or
affect the meaning, construction or scope thereof.
15.11. Governing Law.
This Agreement, the rights and obligations of the parties
hereto, and any claims or disputes relating thereto, shall be governed by and
construed under and in accordance with the laws of the State of Delaware,
excluding the choice of law rules thereof.
15.12. Signature in Counterparts.
This Agreement may be executed in separate counterparts,
none of which need contain the signatures of all parties, each of which shall be
deemed to be an original, and all of which taken together constitute one and the
same instrument.
43
<PAGE>
IN WITNESS WHEREOF, each of the parties hereto has executed
this Asset Purchase Agreement, or has caused this Asset Purchase Agreement to be
duly executed and delivered in its name on its behalf, all as of the day and
year first above written.
Sellers
ONE-ON-ONE SPORTS LICENSE OF FLORIDA, L.L.C
By: One-On-One Sports Radio of Florida, L.L.C.
By: One-On-One Sports Radio Stations, Inc.
By: /s/ Christopher J. Brennan
-------------------------------------
Christopher J. Brennan
President
By: One-On-One Sports Radio of Florida, Inc.
By: /s/ Christopher J. Brennan
-------------------------------------
Christopher J. Brennan
President
By: One-On-One Sports Radio Stations, Inc.
By: /s/ Christopher J. Brennan
-------------------------------------
Christopher J. Brennan
President
ONE-ON-ONE SPORTS RADIO OF FLORIDA, L.L.C.
By: One-On-One Sports Radio Stations, Inc.
By: /s/ Christopher J. Brennan
-------------------------------------
Christopher J. Brennan
President
By: One-On-One Sports Radio of Florida, Inc.
By: /s/ Christopher J. Brennan
-------------------------------------
Christopher J. Brennan
President
44
<PAGE>
BUYER
RADIO UNICA CORP.
By: /s/ Joaquin F. Blaya
-------------------------------------
Joaquin F. Blaya
Chairman and Chief Executive Officer
45
<PAGE>
ONE-ON-ONE SPORTS, INC.
JOINDER AGREEMENT
As a material inducement for Buyer to enter into the foregoing
Asset Purchase Agreement of even date herewith and for other valuable
consideration, the receipt and adequacy of which are hereby acknowledged,
One-On-One Sports, Inc., a Delaware corporation ("Parent") and the ultimate
parent of each Seller, hereby joins in and agrees to be bound by the provisions
of the Asset Purchase Agreement as they relate to Sellers. In addition, Parent
acknowledges and agrees that (i) any claim of Buyer arising under the Asset
Purchase Agreement or under any other Transaction Document may be asserted
against Parent and (ii) Parent shall be jointly and severally liable under the
Asset Purchase Agreement and the other Transaction Documents for any default in
the performance of the obligations of Sellers under such documents or for the
breach by either Seller of any representation, warranty, covenant or agreement
contained in such documents to the extent of Sellers' liability.
Parent represents and warrants to Buyer as follows: (a) Parent
is a corporation duly organized, validly existing and in good standing under the
laws of the State of Delaware; (b) Parent has all requisite power and authority
to execute and deliver this Joinder Agreement and to consummate the transactions
contemplated hereby; (c) the execution, delivery and performance of this Joinder
Agreement and the consummation of the transactions contemplated hereby have been
duly and validly authorized by all necessary corporate proceedings on the part
of Parent and no other corporate proceedings or actions on the part of Parent,
its board of directors or its shareholders is necessary therefor; and (d) this
Joinder Agreement constitutes a valid and binding agreement and obligation of
Parent, enforceable in accordance with its terms.
Dated as of this 26th, day of January, 1998.
ONE-ON-ONE SPORTS, INC.
By: /s/ Christopher J. Brennan
------------------------------
Name: Christopher J. Brennan
Title: President
46
<PAGE>
Exhibit 10.15
- ------------------------------------------------------------------------------
STOCK PURCHASE AGREEMENT
by and among
ORO SPANISH BROADCASTING, INC.,
RADIO UNICA of SAN FRANCISCO, INC.
and
RENE DE LA ROSA
dated as of
February 20, 1998
- ------------------------------------------------------------------------------
<PAGE>
TABLE OF CONTENTS
<TABLE>
<CAPTION>
<S> <C>
RECITALS..........................................................................................................1
ARTICLE I DEFINITIONS AND REFERENCES..............................................................................2
ARTICLE II SALE AND PURCHASE OF COMMON SHARES AND CONSIDERATION
FOR COVENANT NOT TO COMPETE.......................................................................................7
Section 2.1 Sale and Purchase of Common Shares; Entry into Covenant not to
Compete.......................................................................7
Section 2.2 Consideration.................................................................7
Section 2.3 Payment of Purchase Price.....................................................8
Section 2.4 Purchase Price Adjustment.....................................................9
ARTICLE III REPRESENTATIONS AND WARRANTIES OF SELLER AND COMPANY.................................................10
Section 3.1 Organization and Standing....................................................10
Section 3.2 Authorization................................................................11
Section 3.3 Compliance with Laws.........................................................11
Section 3.4 Required Consents; No Conflicts..............................................11
Section 3.5 Financial Statements.........................................................12
Section 3.6 Absence of Certain Changes or Events. ......................................12
Section 3.7 Absence of Litigation........................................................13
Section 3.8 Ownership of the Shares......................................................13
Section 3.9 Real Property................................................................13
Section 3.10 Tangible Personal Property...................................................14
Section 3.11 Capitalization...............................................................14
Section 3.12 FCC Matters..................................................................15
Section 3.13 Intellectual Property........................................................16
Section 3.14 Reports and Records..........................................................16
Section 3.15 Contracts; Scheduled Contracts...............................................16
Section 3.16 Taxes........................................................................17
Section 3.17 Employee Benefit Plans; Labor Relations......................................18
Section 3.18 Environmental Matters........................................................19
Section 3.19 Insurance....................................................................20
Section 3.20 Powers of Attorney; Guarantees...............................................20
Section 3.21 Disclosure...................................................................20
ARTICLE IV REPRESENTATIONS AND WARRANTIES BY BUYER...............................................................20
Section 4.1 Organization and Standing....................................................20
Section 4.2 Authorization................................................................21
Section 4.3 Required Consents; No Conflicts..............................................21
Section 4.4 Absence of Litigation........................................................21
Section 4.5 Qualification of Buyer.......................................................21
</TABLE>
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<TABLE>
<CAPTION>
<S> <C>
Section 4.6 Investment...................................................................22
Section 4.7 Disclosure...................................................................22
ARTICLE V PRE-CLOSING FILINGS AND UNDERTAKINGS...................................................................22
Section 5.2 Sharing Information..........................................................22
ARTICLE VI COVENANTS AND AGREEMENTS OF THE COMPANY AND SELLER....................................................23
Section 6.1 Conduct of Business of the Company...........................................23
Section 6.2 Affirmative Covenants........................................................25
Section 6.3 De La Rosa Negative Covenants................................................26
Section 6.4 Confidentiality. The Company and Seller.....................................26
Section 6.5 No Solicitation..............................................................27
Section 6.6 Use of Proceeds..............................................................27
Section 6.7 Giants Contract..............................................................27
Section 6.8 Noncompetition...............................................................27
ARTICLE VII COVENANTS AND AGREEMENTS OF BUYER....................................................................28
Section 7.1 Confidentiality..............................................................28
Section 7.2 Notice of Certain Events.....................................................28
ARTICLE VIII MUTUAL COVENANTS AND UNDERSTANDINGS OF
THE COMPANY, SELLER AND BUYER...................................................................................29
Section 8.1 Possession and Control.......................................................29
Section 8.2 Public Announcements.........................................................29
Section 8.4 Unwind Agreement.............................................................29
ARTICLE IX CONDITIONS PRECEDENT TO BUYER'S OBLIGATION TO CLOSE...................................................30
Section 9.1 Representations and Covenants................................................30
Section 9.2 FCC Order....................................................................30
Section 9.3 Legal Proceedings............................................................30
Section 9.4 No Adverse Action or Decision................................................30
Section 9.5 Approvals and Consents.......................................................30
Section 9.6 Material Adverse Change......................................................31
Section 9.7 Delivery by the Company and Seller...........................................31
Section 9.8 Time Brokerage Agreement.....................................................31
Section 9.9 Bank of America Consent......................................................31
ARTICLE X CONDITIONS PRECEDENT TO DE LA ROSA'S OBLIGATION TO CLOSE...............................................31
Section 10.1 Representations and Covenants................................................31
Section 10.2 FCC Order....................................................................32
Section 10.3 Legal Proceedings............................................................32
Section 10.4 No Adverse Action or Decision................................................32
Section 10.5 Delivery by Buyer............................................................32
ARTICLE XI THE CLOSING...........................................................................................32
</TABLE>
i
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<CAPTION>
<S> <C>
Section 11.1 Closing......................................................................32
Section 11.2 Delivery by the Company and Seller...........................................32
Section 11.3 Delivery by Buyer............................................................33
ARTICLE XII SURVIVAL; INDEMNIFICATION............................................................................34
Section 12.1 Survival of Representations..................................................34
Section 12.3 Indemnification by Buyer.....................................................36
Section 12.4 Indemnification Procedure....................................................37
Section 12.5 Remedies Cumulative..........................................................37
Section 12.6 Consequential Damages........................................................38
ARTICLE XIII TERMINATION.........................................................................................38
Section 13.1 Termination..................................................................38
Section 13.2 Effect of Termination........................................................39
ARTICLE XIV REMEDIES.............................................................................................39
Section 14.1 Default by the Company or Seller.............................................39
Section 14.2 Default by Buyer.............................................................39
Section 14.3 Specific Performance.........................................................39
Section 14.4 Remedies Not Exclusive.......................................................40
ARTICLE XV GENERAL PROVISIONS....................................................................................40
Section 15.1 Further Assurances...........................................................40
Section 15.2 Brokers......................................................................40
Section 15.3 Expenses.....................................................................40
Section 15.4 Notices......................................................................41
Section 15.5 Waiver.......................................................................42
Section 15.6 Benefit and Assignment.......................................................42
Section 15.7 Entire Agreement; Amendment..................................................43
Section 15.8 Severability.................................................................43
Section 15.9 Headings.....................................................................43
Section 15.10 Governing Law................................................................43
Section 15.11 Signature in Counterparts....................................................43
Section 15.12 No Prejudice.................................................................43
Section 15.13 Specific Performance.........................................................43
Section 15.14 Obligations Under De La Rosa Consulting Agreement............................44
Section 15.16 Guaranty.....................................................................44
</TABLE>
ii
<PAGE>
STOCK PURCHASE AGREEMENT
THIS STOCK PURCHASE AGREEMENT (this "Agreement") is entered
into as of the 20th day of February, 1998 by and among ORO SPANISH BROADCASTING,
INC., a California corporation (the "Company"), Rene De La Rosa, an individual
("De La Rosa" or Seller") and RADIO UNICA OF SAN FRANCISCO, INC., a Delaware
corporation ("Buyer").
RECITALS
WHEREAS, the Company is the licensee of radio station KIQI,
1010 kHz, San Francisco, California (the "Station");
WHEREAS, De La Rosa is the sole record and beneficial owner of
all of the issued and outstanding shares of common stock of the Company, par
value $1.00 per share (the "Common Shares");
WHEREAS, Seller wishes to sell, and Buyer wishes to buy, all
of the Common Shares, all in accordance with and subject to the terms and
conditions set forth below;
WHEREAS, Seller wishes to enter into a covenant which will
prevent him from engaging in certain activities for a certain period of time;
WHEREAS, Buyer and the Company are simultaneously entering
into a Time Brokerage Agreement, dated as of the date hereof (the "TBA"),
whereby the Company shall make available to Buyer substantially all of the
broadcasting time on the Station through and including the Closing Date (as
defined herein); and
WHEREAS, Buyer and De La Rosa are simultaneously entering into
a Consulting Agreement dated as of the date hereof (the "De La Rosa Consulting
Agreement"), whereby De La Rosa shall provide certain services to Buyer.
NOW, THEREFORE, in consideration of the foregoing and of the
mutual covenants and agreements hereinafter set forth, the parties hereto hereby
agree as follows:
<PAGE>
ARTICLE I
DEFINITIONS AND REFERENCES
Unless the context otherwise specifies or requires, terms used
herein shall have the respective meanings assigned thereto as follows (such
definitions to be equally applicable to both the singular and plural forms of
the terms defined). Unless otherwise specified, all references herein to
"Articles" or "Sections" are to Articles or Sections of this Agreement.
Additional Agreements means any and all Contracts executed and
delivered by Sellers between the date hereof and the Closing Date.
Affiliate means, as to any entity, any other entity which
owns, is owned by or is under common control with such entity.
Applicable Law means any federal, state or local statute, law,
ordinance, rule, regulation, order, writ, injunction, judgment or decree
applicable to a Person or any such Person's Subsidiaries, properties or assets.
Assets shall mean the assets of the Company used or useful in
the operation of the Station or the Company's business.
Audited Statements shall have the meaning specified in Section
3.5.
Bank of America Loan shall mean the outstanding debt owed by
the Company to the Bank of America.
Bank of America Release shall mean a letter or such other
correspondence from the Bank of America indicating that the Company has fully
satisfied and been released from any and all of its obligations under the Bank
of America Loan.
Buyer Indemnitees shall have the meaning specified in Section
12.2.
Closing Date Balance Sheet means the balance sheet of the
Company as of the Common Stock Closing Date prepared on the Common Closing Date
by the Company in accordance with GAAP and reviewed by Buyer's independent
public accountants.
Closing means the closing of the purchase and sale of the
Common Shares and Seller's entry into the covenant set forth in Section 6.8.
Closing Date means the time and date on which the Closing
takes place, as established by Section 11.1.
2
<PAGE>
Code means the Internal Revenue Code of 1986, as amended.
Common Shares shall have the meaning specified in the
recitals.
Communications Act means the Communications Act of 1934, as
amended, and the rules and regulations of the FCC promulgated pursuant thereto.
Contracts means all written contracts, commitments, plans,
agreements, leases, arrangements, undertakings and licenses, including
Additional Agreements which relate to the ownership, operation, business or use
of the Station or any of the Common Shares.
De La Rosa Consulting Agreement shall mean the Consulting
Agreement, dated as of the date hereof, by and between De La Rosa and the
Company.
Encumbrances means any mortgages, pledges, liens, claims,
security interests, agreements, restrictions, defects in title, easements or
encumbrances.
Environmental Laws means the Comprehensive Environmental
Response, Compensation and Liability Act of 1980 ("CERCLA"), as amended by the
Superfund Amendments and Reauthorization Act of 1986 ("SARA"), 42 U.S.C. ss.
9601 et seq.; the Toxic Substances Control Act ("TSCA"), 15 U.S.C. ss. 2601 et
seq.; the Hazardous Materials Transportation Act, 49 U.S.C. ss. 1802 et seq.;
the Resource Conservation and Recovery Act ("RCRA"), 42 U.S.C. ss. 9601 et seq.;
the Clean Water Act ("CWA"), 33 U.S.C. ss. 1251 et seq.; the Safe Drinking Water
Act, 42 U.S.C. ss. 300f et seq.; the Clean Air Act ("CAA"), 42 U.S.C. ss. 7401
et seq.; or any other applicable federal, state, or local laws, regulations,
ordinances, decrees, rules, judgments, orders or directives now or hereinafter
in effect relating to the protection of human health, safety or the environment,
or otherwise relating to Hazardous Materials generation, production, use,
storage, treatment, transportation or disposal.
ERISA mean Employee Retirement Income Security Act of 1974, as
amended.
Escrow Agent shall have the meaning specified in Section 2.3.
Escrow Agreement shall mean the Escrow Agreement, dated as of
the date hereof, by and among Buyer, De La Rosa and the Escrow Agent.
Escrow Deposit shall have the meaning specified in Section
2.3.
Existing Contract shall have the meaning specified in Section
3.15.
FAA means the Federal Aviation Administration.
3
<PAGE>
FCC means the Federal Communications Commission.
FCC Licenses means all licenses, permits and other
authorizations issued by the FCC to the Company for the operation of the
Station.
FCC Order means an order or orders of the FCC consenting to
the transfer of control to Buyer of the Company.
Final Order means an FCC Order as to which the time for filing
a request for administrative or judicial review, or for instituting
administrative review sua sponte, shall have expired without any such filing
having been made or notice of such review having been issued; or, in the event
of such filing or review sua sponte, as to which such filing or review shall
have been disposed of favorably to the grant and the time for seeking further
relief with respect thereto shall have expired without any request for such
further relief having been filed.
Financial Statements shall have the meaning specified in
Section 3.5.
GAAP means generally accepted accounting principles as used in
the United States as in effect at the time any applicable financial statements
were prepared or any act requiring the application of GAAP was performed.
Giants Contract shall have the meaning specified in Section
6.7.
Governmental Authority means any agency, board, bureau, court,
commission, department, instrumentality or administration of the United States
government, any state government or any local or other governmental body in a
state of the United States or the District of Columbia.
Hazardous Materials means any wastes, substances, or materials
(whether solids, liquids or gases) that are defined or regulated as hazardous or
toxic under any Environmental Law, including without limitation, substances
defined as "hazardous wastes," "hazardous substances," "toxic substances,"
"radioactive materials," or other similar designations in any Environmental
Laws. "Hazardous Materials" includes, without limitation, polychlorinated
biphenyls (PCBs), asbestos, lead-based paints and petroleum and petroleum
products.
Indemnification Notice shall have the meaning specified in
Section 12.4.
Indemnified Party and Indemnitor shall have the respective
meanings specified in Section 12.4..
Intellectual Property shall have the meaning specified in
Section 3.13.
4
<PAGE>
IRS means the Internal Revenue Service.
Liens means all liens, mortgages, pledges, charges, claims,
restrictions, defects in title, easements or other encumbrances.
Losses means any action, claim, charge, suit, proceeding,
investigation, cost, damage, disbursement, expense, liability, loss, injury,
response costs, deficiency, penalty, diminution in value, settlement or
obligation of any kind or nature, including but not limited to interest,
penalties, fines, legal, accounting and other professional fees and expenses
incurred in the investigation, collection, prosecution, determination and
defense of claims, amounts paid in settlement, any incidental or consequential
damages and any punitive damages payable to third parties.
Material Adverse Effect means (i) a material adverse effect on
the assets, liabilities, business, condition (financial or other), or prospects
of the Company or (ii) an event that would prevent in any material respect or
materially delay the performance by De La Rosa or the Company of its obligations
under this Agreement or would materially interfere with the ability of the
parties hereto to consummate the transactions contemplated hereby.
Net Barter Liability Position shall have the meaning specified
in Section 2.4.
Note Maturity Date shall have the meaning specified in Section
2.3.
Ordinary Course of Business means, with respect to the
Company, the ordinary course of business consistent with past practices of the
Company.
Other Transaction Agreements means the De La Rosa Consulting
Agreement, the TBA and the Escrow Agreement.
Overage shall have the meaning specified in Section 2.4.
Per Share Value shall have the meaning specified in Section
2.3.
Person means any individual, corporation, company, partnership
(limited or general), joint venture, limited liability company, association,
trust or other entity.
Post-Closing Escrow Deposit shall have the meaning specified
in Section 2.3.
Pre-Closing Tax Periods shall have the meaning specified in
Section 12.2.
Promissory Note shall have the meaning specified in Section
2.3.
Post-Closing Tax Periods shall have the meaning specified in
Section 12.2.
5
<PAGE>
Purchase Price shall have the meaning specified in Section 2.2.
Preferred Stock.
Real Property means all real property, and all buildings and
other improvements thereon, (i) owned or leased by the Company or (ii) held by
the Company and used or useful in the business or operations of the Station;
provided, however, that, this definition shall specifically exclude all real
property located in Tehama, Calusa and Amador.
Real Property Interests means all interests in real property,
including fee estates, leaseholds and subleaseholds, purchase options,
easements, licenses, rights to access, and rights of way, and all buildings and
other improvements, thereon, (i) owned or leased by the Company or (ii) held by
the Company and used or useful in the business or operations of the Station,
together with any additions thereto between the date of this Agreement and the
Closing Date; provided, however, that this definition shall specifically exclude
all interests in real property located in Tehama, Calusa and Amador.
Returns means any returns, declarations, reports, estimates,
schedules, information returns or other documents (including any related or
supporting information) with respect to Taxes.
Seller Indemnitees shall have the meaning specified in Section
12.3.
Shortage shall have the meaning specified in Section 2.4.
Station shall have the meaning specified in the recitals.
Stock Payment shall have the meaning specified in Section 2.3.
Survival Period shall have the meaning specified in Section
12.1.
Tangible Personal Property means all machinery, equipment,
tools, vehicles, furniture, leasehold improvements, office equipment, plant,
inventory, spare parts, and other tangible personal property (i) owned or leased
by the Company or (ii) held by the Company and used or useful in the business or
operations of the Station, including the Station transmitters, together with any
additions thereto between the date of this Agreement and the Closing Date;
provided, however, that, this definition shall specifically exclude the Mercedes
sports utility vehicle and the Mercedes automobile used by De La Rosa.
Taxes shall mean any taxes, charges, duties, fees, imposts,
levies or other assessments, including, without limitation, all net income,
gross income, sales, use, franchise, profits, service, gross receipts, capital,
ad valorem, value added, transfer, inventory, capital stock, license,
registration, environmental, social security, unemployment, severance, stamp,
recording, occupation, withholding, payroll, employment, excise, or property
including
6
<PAGE>
personal intangible and real taxes and estimated taxes, assessments or charges
of any kind whatsoever together with interest and any penalties, fines, duties,
fees, levies, additions, to tax or additional amounts with respect thereto.
TBA means the Time Brokerage Agreement, dated as of the date
hereof, by and between the Company and Buyer.
Transaction Agreements means this Agreement and the Other
Transaction Agreements.
Transfer of Control Applications shall have the meaning
specified in Section 5.1.
Unaudited Statements shall have the meaning specified in
Section 3.5.
Unwind Agreement shall have the meaning specified in Section
8.3.
Working Capital shall mean the Company's current assets minus
its liabilities (as such terms are defined by and determined in accordance with
GAAP), as adjusted pursuant to Section 2.4.
Working Capital Statement shall have the meaning specified in
Section 2.4.
ARTICLE II
SALE AND PURCHASE OF COMMON SHARES AND CONSIDERATION FOR
COVENANT NOT TO COMPETE
Section 2.1 Sale and Purchase of Common Shares; Entry into
Covenant not to Compete. Subject to the terms and conditions hereof and in
reliance upon the representations, warranties, covenants and agreements
contained herein, at the Closing (as defined herein): (i) Seller shall sell,
assign, transfer, convey and deliver to Buyer, and Buyer agrees to purchase from
Seller, all of the Common Shares, free and clear of all Encumbrances and (ii)
Seller shall enter into the covenant set forth in Section 6.8 hereof.
Section 2.2 Consideration. If, as of the Closing Date, the
Company is free and clear of all indebtedness, the aggregate consideration for
Seller's sale of the Common Shares and Seller's agreement to enter into the
covenant set forth in Section 6.8 hereof (the "Purchase Price") shall be Twelve
Million Dollars ($12,000,000), as adjusted pursuant to Section 2.4 hereof. If,
however, the Company has outstanding debt as of the Closing Date, (i) Buyer
agrees to assume such debt and to pay any outstanding balances thereon (which
amounts are estimated on Schedule 2.3(b)) at Closing and (ii) the amount paid by
Buyer for the purchase of the Common Shares shall be adjusted from Eleven
Million Five Hundred Thousand Dollars
7
<PAGE>
($11,500,000) to Seven Million One Hundred and Twenty Thousand Dollars
($7,120,000) (or to such other amount as shall be calculated by deducting the
aggregate amount of the Company's outstanding debt which is paid by Buyer at
Closing pursuant to Clause (i) of Section 2.3(b) from Eleven Million Five
Hundred Thousand Dollars ($11,500,000)).
Section 2.3 Payment of Purchase Price.
(a) Upon the execution of this Agreement, Buyer shall deposit
the amount of One Million Dollars ($1,000,000) into escrow (the "Escrow
Deposit"). The total Escrow Deposit shall be held by First Union National Bank
(together with any successor thereto, the "Escrow Agent") pursuant to the terms
and conditions of that certain Escrow Agreement executed on the date hereof. At
the Closing, Nine Hundred Thousand Dollars ($900,000) of the total Escrow
Deposit shall be paid by the Escrow Agent to Seller and credited to the Purchase
Price at Closing. The remaining One Hundred Thousand Dollars ($100,000) of the
total Escrow Deposit (the "Post-Closing Escrow Deposit"), together with any
interest earned on the Escrow Deposit, shall be held by the Escrow Agent for a
period of six (6) months from the Closing Date, unless dispersed on an earlier
date pursuant to Section 2.4 hereof, to cover the potential purchase price
adjustment pursuant to Section 2.4 hereof. If the Closing does not occur due to
the reason specified in Section 14.2 hereof, the total Escrow Deposit, together
with any interest earned thereon, shall be paid to Seller as liquidated damages
as specified in Section 14.2. If the Closing does not occur for any other
reason, the Escrow Deposit, together with any interest earned thereon, shall be
forthwith paid to Buyer.
(b) An aggregate amount of Five Million Dollars ($5,000,000),
shall be paid by the Buyer on the Closing Date as follows: (i) the amounts
specified on Schedule 2.3(b) shall be paid directly to the creditors of the
Company that are listed thereon (or to such other creditors for such amounts as
may be designated by Seller at least three (3) business days prior to the
Closing Date; provided, that, in no event shall such amounts total more than
Five Million Dollars ($5,000,000)) and (ii) the difference, if any, between Five
Million Dollars ($5,000,000) and the aggregate amount paid pursuant to clause
(i) of this Section 2.3(b) shall be paid by wire transfer of immediately
available funds to such bank or other financial institution as shall be
designated by Seller at least three (3) business days prior to the Closing Date.
(c) A promissory note (the "Promissory Note") in the principal
amount of Six Million Dollars ($6,000,000) from the Buyer made payable to the
Seller shall be delivered to Seller on the Closing Date. The Promissory Note
shall be substantially in the form of Exhibit A hereto. The Promissory Note
shall bear interest at the annual rate of eight (8) percent, payable monthly.
The principal amount of the Promissory Note shall be due and payable in full on
the date which is five (5) years from the Closing Date (the "Note Maturity
Date"); provided, however, that, if by notice given not later than sixty (60)
business days prior to the Note Maturity Date, Seller advises Buyer that it
wishes to receive a portion, but not more than twenty five (25) percent, of the
principal amount then outstanding under the Promissory Note in shares of the
Company's common stock (the "Stock Payment"), then Buyer and Seller shall
negotiate in good
8
<PAGE>
faith to agree upon the terms of the Stock Payment and the per share value of
the Company's common stock as of the Note Maturity Date (the "Per Share Value").
In the event that Buyer and Seller are unable by the Note Maturity Date to agree
upon the terms of the Stock Payment and the Per Share Value of the Company's
common stock as of the Note Maturity Date, the entire principal amount then
outstanding under the Promissory Note shall be paid solely in immediately
available federal funds in accordance with the terms of the Promissory Note.
Section 2.4 Purchase Price Adjustment.
(a) Within six (6) months after the Closing Date, Buyer shall
deliver, or shall cause the Company to deliver, a statement of the Company's
Working Capital (the "Working Capital Statement"), dated as of the Closing Date.
For purposes of this Agreement, the Company's Working Capital shall be
calculated by deducting the Company's liabilities from the Company's current
assets (as such items are defined by and determined in accordance with GAAP);
provided, that, the parties agree that the Company's outstanding debt under the
Bank of America Loan shall not be included in the calculation of the Company's
Working Capital and; provided, further, that, the parties agree that, (i) if the
amount by which barter liabilities as of the Closing Date exceeds barter
receivables as of the Closing Date (the "Net Barter Liability Position") is less
than Thirty-Five Thousand Dollars ($35,000), such Net Barter Liability Position
shall not be factored into the calculation of the Company's Working Capital and
(ii) if, as of the Closing Date, the Net Barter Liability Position equals or
exceeds Thirty-Five Thousand Dollars ($35,000) such excess Net Barter Liability
Position shall be factored into the calculation of the Company's Working
Capital. The Working Capital Statement shall: (i) set forth the Working Capital
of the Company as of the Closing Date; (ii) be determined in accordance with
GAAP; and (iii) be certified by the President of the Company as having been
prepared consistent with the provisions of this Section 2.4(a). For purposes of
determining the accounts receivable balance as of the Closing Date and the
appropriate allowance for doubtful accounts as of the Closing Date, any
post-Closing adjustments made to such balances shall be in accordance with GAAP
and shall reflect that any payments received by the Company in satisfaction of
any outstanding accounts receivable balance are applied to the oldest such
outstanding balance (i.e., "first in, first out"), unless such application is,
in the Buyer's reasonable discretion, validly disputed by the account debtor. If
Seller so requests, by notice given within two (2) business days after the
delivery of the Working Capital Statement, the Company shall assign to Seller
any accounts receivable owing to the Company from or related to the operation of
the Station prior to the Closing Date which have been deemed uncollectible.
(b) The Working Capital reflected on the Working Capital
Statement shall be conclusive and binding upon the parties unless within two (2)
business days after the delivery of the Working Capital Statement to Seller,
Seller notifies Buyer of his objection thereto. In the event that Buyer and
Seller are unable to resolve any dispute concerning the Working Capital
Statement, the parties shall engage an independent, national or regional
accounting firm which is mutually agreeable to Buyer and Seller to calculate the
Company's Working Capital in accordance with Section 2.4(a) hereof. If Buyer and
Seller are unable to agree upon an
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accounting firm to perform the calculation, Buyer and Seller shall each select
an independent, national or regional accounting firm who will then agree upon a
third independent, national or regional accounting firm to perform the
calculation. The calculation performed by the selected accounting firm will be
conclusive and binding upon the parties.
(c) In the event that the Working Capital as reflected on the
Working Capital Statement is equal to or greater than Zero Dollars ($0): (i) the
Post-Closing Escrow Deposit, together with any interest earned thereon, shall be
paid to Seller; (ii) the interest earned on the Escrow Deposit prior to Closing
shall be paid to Buyer; and (iii) Buyer shall pay the amount, if any, that the
Working Capital exceeds Zero Dollars ($0) (the "Overage") to Seller by wire
transfer of immediately available funds to such bank or other financial
institution as shall be designated by Seller at least three (3) business days
after Seller's receipt of the Working Capital Statement as an increase in the
Purchase Price.
(d) In the event that the Working Capital as reflected on the
Working Capital Statement is less than Zero Dollars ($0), but the amount by
which the Working Capital is less than Zero Dollars ($0) (the "Shortage") is
less than or equal to One Hundred Thousand Dollars ($100,000), (i) the amount of
such Shortage, together with any interest earned thereon, shall be paid to Buyer
out of the Post-Closing Escrow Deposit as a reduction in the Purchase Price and
(ii) the remainder of the Post-Closing Escrow Deposit, if any, together with any
interest earned thereon, shall be paid to Seller.
(e) In the event that the Working Capital as reflected on the
Working Capital Statement is less than Zero Dollars ($0) and the amount of the
Shortage is greater than One Hundred Thousand Dollars ($100,000), the amount of
any such Shortage shall be offset first against the interest and then, if
necessary, against the principal payable under the Promissory Note.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF SELLER AND COMPANY
Seller and the Company jointly and severally represent and warrant to Buyer as
follows:
Section 3.1 Organization and Standing. The Company is a
corporation duly organized, validly existing and in good standing under the laws
of the State of California and has all requisite power and authority to carry on
its business as now being conducted. Neither the nature of the business of the
Station, nor the character of the properties owned, leased or otherwise held by
the Company for use in the Station's business makes any qualification necessary
in any other state, country, territory or jurisdiction other than as set forth
in Schedule 3.1 and the Company is qualified to do business in all such
jurisdictions.
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Section 3.2 Authorization. Each of De La Rosa (except with
respect to the TBA) and the Company has all requisite power and authority and in
the case of De La Rosa, capacity, to execute and deliver this Agreement, the
Escrow Agreement, the TBA and the De La Rosa Consulting Agreement (collectively
with this Agreement, the "Transaction Agreements" and without this Agreement,
the "Other Transaction Agreements"), and to consummate the transactions
contemplated hereby and thereby. The execution, delivery and performance of this
Agreement and the Other Transaction Agreements and the consummation of the
transactions contemplated hereby and thereby have been duly and validly
authorized by all necessary corporate proceedings on the part of the Company and
no other corporate proceedings or actions on the part of the Company, its Board
of Directors or its sole shareholder is necessary therefor. This Agreement and
each of the Other Transaction Agreements have been duly and validly executed and
delivered by each of De La Rosa (except as to the TBA) and the Company and this
Agreement and each of the Other Transaction Documents constitute a valid and
binding agreement and obligation of each of De La Rosa and the Company to the
extent it is a party thereto, enforceable against each of De La Rosa and the
Company to the extent either is a party thereto, in accordance with their
respective terms.
Section 3.3 Compliance with Laws. The Company has complied in
all material respects with all Applicable Laws (other than the Communications
Act which is the subject of Section 3.12) and neither the Company nor De La Rosa
have received any notice asserting noncompliance by the Company or De La Rosa
with any Applicable Laws other than notice of a violation or failure to comply
which would not individually or in the aggregate have a Material Adverse Effect
on the Company. The Company holds all permits, licenses, approvals, certificates
of authority, franchises and other authorizations (none of which has been
rescinded and all of which are in full force and effect) from all Governmental
Authorities necessary in order to conduct the operations of the Station in
accordance with Applicable Laws, as presently conducted. The Company is in
compliance in all material respects with its obligations under such permits,
licenses, approvals, certificates of authority and authorizations.
Section 3.4 Required Consents; No Conflicts. (a) Except as set
forth in Schedule 3.4(a) or in connection with the filings referred to in
Section 5.1, the execution, delivery and performance by Sellers of the
Transaction Agreements will not require the consent, approval, authorization or
permit of, or filing with, or notification to any Person or Governmental
Authority.
(b) Except as set forth in Schedule 3.4(b), the execution and
delivery of the Transaction Agreements and the consummation of the transactions
contemplated hereby and thereby, do not and will not (assuming for purposes of
clauses (i) and (ii) that the consents and approvals referred to in Schedule
3.4(a) or 4.3 are duly obtained) (i) conflict with or violate any Applicable
Laws with respect to the Company or De La Rosa, (ii) conflict with or result in
any breach of or constitute a default (or an event which with notice or lapse of
time or both
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would become a default) under, result in the acceleration of, or create in any
Person the right to accelerate, terminate, or modify, any note, bond, indenture,
mortgage, deed of trust, license, lease, contract or other instrument to which
the Company or its assets or De La Rosa is a party or by which the Company or De
La Rosa is bound or to which the Common Shares or the Station is subject or
affected, or (iii) conflict with or violate any provision of the Company's
Articles of Incorporation or By-Laws.
Section 3.5 Financial Statements. The Company has furnished to
Buyer the audited balance sheet of the Company as of August 31, 1996 and the
audited statements of income, retained earnings and cash flow for the year ended
August 31, 1996, as reported on by Miller, Kaplan, Arase & Company, independent
auditors (the "Audited Statements") and (ii) the Company-prepared balance sheet
of the Company as of August 31, 1997, the Company-prepared statements of income,
retained earnings and cash flow for the year ended August 31, 1997, and the
Company-prepared balance sheet of the Company as of December 31, 1997 (the
"Unaudited Statements"). In addition, the Company will furnish to Buyer within
30 days of the end of each calendar month the interim Company-prepared balance
sheet of the Company, and the interim Company-prepared statements of income,
retained earnings and cash flows for each month until the Closing Date, prepared
in accordance with GAAP (except for the elimination of footnote information)
regardless of whether such financial statements have been reported on by Miller,
Kaplan, Arase & Company. The Audited Statements and the Unaudited Statements
(the "Financial Statements"), including in each case the related notes, fairly
present (and in the case of the financial statements delivered after the date
hereof, will fairly present) the financial position of the Company as of the
respective dates of said balance sheets and the result of the operations of the
Company for the respective periods covered by said statements of income and
retained earnings and changes in financial position (subject, in the case of the
unaudited statements, to year-end audit adjustments), and have been prepared
(and in the case of the financial statements delivered after the date hereof,
will be prepared) in accordance with GAAP (except for the elimination of certain
footnote information in the unaudited statements) consistently applied by the
Company throughout the periods involved, except for accounting changes described
in the related notes. As of the date hereof, except (i) as disclosed on Schedule
3.5 and (ii) for liabilities or obligations which were incurred after December
31, 1997 in the Ordinary Course of Business and consistent with past practices
and which are not material, the Company does not have any liabilities or
obligations as determined in accordance with GAAP (whether absolute, accrued,
contingent or otherwise) which were not either fully reflected or disclosed in
the December 31, 1997 balance sheet and, in the reasonable judgment of the
Company, the reserves referred to in the footnotes to such balance sheet are
appropriate and reasonable. As of the Closing Date, the Company will not have
any liabilities or obligations as determined in accordance with GAAP that are
not fully reflected or disclosed on the Closing Date Balance Sheet.
Section 3.6 Absence of Certain Changes or Events. Except as
set forth and described in Schedule 3.6, since January 1, 1998, there has been
no material adverse change in the business, assets, liabilities, operations,
prospects, or conditions (financial or otherwise), of
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the Company. Except as set forth and described in Schedule 3.6, since January 1,
1998 the Company has not (a) canceled any debts or claims other than in the
Ordinary Course of Business; (b) written down the value of any Assets except
write-downs in the Ordinary Course of Business, none of which, individually or
in the aggregate, constitutes a Material Adverse Effect; (c) entered into any
transactions relating to the business and operations of the Station other than
in the Ordinary Course of Business; (d) made capital expenditures relating to
the Station, or entered into commitments therefor, materially in excess of the
capital expenditures budgets previously delivered to Buyer; (e) made any
material change in any method of accounting or accounting practice except as may
be required under GAAP; (f) amended the articles of incorporation or (g) made
any agreement to do any of the foregoing.
Section 3.7 Absence of Litigation. Except as set forth and
described in Schedule 3.7, there is no action, suit, investigation, claim,
arbitration or litigation pending or, to the best of the Company's or De La
Rosa's knowledge, threatened against, affecting or involving the Common Shares
or De La Rosa with respect to his ability to consummate the transactions
contemplated by the Transaction Agreements, the Company, the Station or the
business and operations of the Station, or the transactions contemplated by this
Agreement or the Other Transaction Agreements, before or by any court,
arbitrator or Governmental Authority, and the Company is not subject to, and the
Station is not operating under or subject to any order, award, judgment, writ,
decree, determination or injunction of any court, arbitrator or Governmental
Authority.
Section 3.8 Ownership of the Shares. De La Rosa is the record
and beneficial owner of the Common Shares. De La Rosa owns the Common Shares
free and clear of all Encumbrances (except for Bank of America's security
interest in the Common Shares). Subject to the terms and conditions of this
Agreement, at the Closing De La Rosa will transfer and convey, and Buyer will
acquire, good and marketable title to the Common Shares, free and clear of all
Encumbrances. De La Rosa is not a party to any option, warrant, purchase right
or other contract or commitment that requires the sale, transfer or other
disposition of any securities of the Company (other than this Agreement). De La
Rosa is not a party to any voting trust, proxy, or other agreement or
understanding with respect to the voting of securities of the Company.
Section 3.9 Real Property. Schedule 3.9 contains a true,
correct and complete description of all Real Property and all Real Property
Interests as of the date hereof. The Real Property Interests listed on Schedule
3.9 comprise all interests in real property necessary to conduct the business
and operations of the Station as now conducted. Except as described on Schedule
3.9 and except for Bank of America's security interest, the Company has good,
record and marketable fee simple title to or a valid leasehold interest in all
of the Real Property and good title to all of the Real Property Interests, in
each case free and clear of all Liens and Encumbrances, except for liens for
current Taxes not yet due and payable and minor imperfections in title which
individually and in the aggregate do not interfere with the use of the Real
Property for which it is used or diminish its value. The Company has
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delivered to Buyer true, correct and complete copies of all deeds and all leases
of Real Property pertaining to the Real Property listed on Schedule 3.9 and will
deliver copies of all deeds and leases entered into after the date hereof, to
the extent permitted hereby. The Company enjoys peaceful and undisturbed
possession under its leases for leased Real Property. The Company has full legal
and practical access to all of the Real Property. All towers, guy anchors, and
buildings and other improvements included in the Assets are located entirely on
the Real Property listed in Schedule 3.9. All Real Property (including the
improvements thereon) (a) is in good condition and repair consistent with its
present use, (b) is available for immediate use in the conduct of the business
and operations of the Station, and (c) complies in all material respects with
all applicable building or zoning codes and the regulations of any Governmental
Authority having jurisdiction. All easements, rights-of-way and licenses
included in the Real Property have been properly recorded in the appropriate
public recording office.
Section 3.10 Tangible Personal Property. Schedule 3.10 lists
all of the Company's Tangible Personal Property as of the date hereof which are
material to the operation of the Company and the Station. The Tangible Personal
Property listed on Schedule 3.10 comprises all material items of Tangible
Personal Property necessary to conduct the business and operations of the Sation
as now conducted and in accordance with Applicable Law and on the Closing Date
the Company will own or have valid leasehold interests in all of the Tangible
Personal Property listed on Schedule 3.10 or such other Tangible Personal
Property necessary to conduct the operations of the Station as now conducted and
in accordance with Applicable Law. Except as described in Schedule 3.10 and
except for Bank of America's security interest, the Company owns and has good
title to each item of Tangible Personal Property owned by it and none of the
Tangible Personal Property owned by the Company is subject to any Liens or
Encumbrances, except for liens for current Taxes not yet due and payable. With
allowance for normal repairs, maintenance, wear, and obsolescence, each item of
Tangible Personal Property is in good operating condition and repair, and is
available for immediate use in the business and operations of the Station. All
items of transmitting and studio equipment included in the Tangible Personal
Property (a) have been maintained in a manner consistent with generally accepted
standards of good engineering practice, and (b) will permit the Station and all
auxiliary broadcast facilities related to the Station to operate in accordance
with the terms of the FCC Licenses and the rules and regulations of the FCC.
Section 3.11 Capitalization. The authorized capital stock of
the Company consists solely of 1,000,000 shares of common stock, par value $1.00
per share, of which 6,000 shares are issued and outstanding and owned by De La
Rosa. All issued and outstanding shares of capital stock of the Company have
been duly authorized, are validly issued and outstanding, are fully paid and non
assessable. No securities issued by the Company were issued in violation of any
statutory or common-law preemptive rights. Except as permitted pursuant to
Section 6.1(g), there are no dividends which have accrued or been declared but
are unpaid on the capital stock of the Company. All Taxes required to be paid in
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connection with the issuance and any transfers of the capital stock of the
Company have been paid by the Seller. There are no outstanding: (i) securities
or instruments convertible into or exercisable for any of the capital stock or
other equity interests of the Company; (ii) options, warrants, subscriptions or
other rights to acquire capital stock or other equity interests of the Company;
or (iii) contracts commitments, agreements or understandings of any kind,
including employee benefit arrangements, relating to the issuance or repurchase
by the Company of (A) any capital stock or other equity interests of the Company
or (B) any securities, options, warrants, rights or instruments convertible into
or exercisable for capital stock or other equity interests of the Company.
Section 3.12 FCC Matters. (a) The Company holds the FCC
Licenses set forth and described on Schedule 3.12(a) and the FCC Licenses listed
on Schedule 3.12(a) constitute all of the licenses, permits and authorizations
from the FCC that are necessary or required for and/or used in the business and
operations of the Station. The FCC Licenses are valid and in full force and
effect through the dates set forth on Schedule 3.12(a). From the date hereof
until the Closing Date the Company will hold all licenses, permits and
authorizations from the FCC that are necessary or required for the business and
operations of the Station and all such licenses, permits and authorizations will
be at the time of the Closing valid and binding and effective through the dates
shown thereon. Except as set forth on Schedule 3.12(a), no application, action
or proceeding is pending for the renewal or modification of any of the FCC
Licenses, and, except for actions or proceedings affecting radio broadcast
stations generally and the proceedings set forth in Schedule 3.7 hereto, no
application, complaint, action or proceeding is pending or, to the best of the
Company's or Seller's knowledge, threatened that may result in the (i) denial of
an application for renewal, (ii) the revocation, modification, non-renewal or
suspension of any of the FCC Licenses, (iii) the issuance of a cease-and-desist
order relating to the FCC Licenses or the Station, or (iv) the imposition of any
administrative or judicial sanction with respect to the Station.
(b) The Station, its physical facilities, electrical and
mechanical systems and transmitting and studio equipment (i) are being operated
in compliance with the specifications of the FCC Licenses or at the time of the
Closing, such other licenses, permits and authorizations then in effect, and
(ii) are being operated in material compliance with all requirements of the
Communications Act. Both the Company and Seller have complied with all
requirements of the FCC and the FAA with respect to the construction and/or
alteration of the Company's antenna structures, and "no hazard" determinations
for each antenna structure have been obtained.
(c) Neither the Company nor Seller know of any facts,
conditions or events relating to the Company or the Station that might cause the
FCC to have a legally valid basis to deny the transfer of control of the FCC
Licenses as provided for in this Agreement or not to renew any of the FCC
Licenses in the ordinary course.
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Section 3.13 Intellectual Property. Except as set forth on
Schedule 3.13 and except for the Bank of America's security interest, the
Company owns or has the right to use all intellectual property used in or
necessary for the conduct of the business and operations of the Station,
including without limitation all patents, trademarks, service marks, trade
names, copyrights, software, trade secrets, call letters, jingles, slogans and
logotypes, including any and all common law rights, applications, registrations,
extensions and renewals relating thereto (collectively, the "Intellectual
Property"), free and clear of all Encumbrances. Schedule 3.13 sets forth a
complete and accurate list of all applications, registrations or patents
included in the Intellectual Property owned by the Company. The Company has
valid and enforceable rights in all its Intellectual Property. To the best of
the Company's and Seller's knowledge, no Intellectual Property is being
infringed by any third party, the Company is not infringing any intellectual
property or other proprietary right of any third party in conducting the
business of the Station, and there is no pending or threatened opposition,
interference, re-examination, cancellation, claim of invalidity or other legal
or governmental proceeding in any jurisdiction involving any of the Intellectual
Property. The Company has the right pursuant to the rules and regulations of the
FCC to the use of the various call letters set forth on Schedule 3.12(a). The
Company pays no royalty to anyone for use of the Intellectual Property.
Section 3.14 Reports and Records. All reports, statements and
other documents relating to the Station required to be filed by the Company or
De La Rosa with the FCC or any other Governmental Authority in connection with,
or as a result of, the Company's operation of the Station or De La Rosa's
ownership of the Common Shares have been filed and complied with and were true,
correct and complete in all material respects when filed. All such reports,
statements and other documents shall continue to be filed on a current basis
until the Closing Date, and will be true, correct, and complete in all respects.
Section 3.15 Contracts; Scheduled Contracts. Schedule 3.15
sets forth a complete and accurate list of all Contracts to which the Company is
a party or by which it or its assets or properties are bound or subject on the
date hereof ("Existing Contracts"). Either the Company or De La Rosa has
provided Buyer with copies of all Existing Contracts. Each Existing Contract is
(except as otherwise set forth on Schedule 3.15 and except for the right to use
the luxury skybox at Candlestick Park which is described in the Giants Contract
(as defined in Section 6.7) which right will be assigned to De La Rosa prior to
Closing) and each contract which the Company may enter after the date hereof in
compliance with this Agreement will be, in full force and effect, and
constitutes or will constitute the legal, valid and binding obligation of, and
is or will be legally enforceable against the Company or De La Rosa or both, as
the case may be. The Company and, to the best of the Company's and Seller's
knowledge, the other parties thereto, have complied with all of the provisions
of the Existing Contracts and are not in default thereunder in any respect, and
there has not occurred any event which (whether with or without notice or lapse
of time) would constitute such a default, except for any such default as would
not have a Material Adverse Effect on the Company. At the time of the Closing,
the Company or De La Rosa or both, as the case may be, shall have complied with
all provisions of and shall not be in default under any contracts
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then in effect and there shall not be in any event which whether with notice or
without notice or lapse of time) would constitute a default thereunder, except
for any such defaults as would not have a Material Adverse Effect on the
Company. To the best of the Company's and Seller's knowledge, there has not been
any threatened cancellation of any Existing Contracts or any outstanding dispute
thereunder and at the time of the Closing, there shall not be any threatened
cancellation of any contract then in effect or any outstanding dispute
thereunder except for any threatened cancellation or dispute as would not have a
Material Adverse Effect on the Company. The Company is not a party to any
agreement which materially limits the freedom of the Company to compete in any
line of business in which it currently operates or with any person.
Section 3.16 Taxes. (a) The Company has duly filed all Returns
required to be filed by it, and all such Returns are true, correct and complete;
has timely paid (or has had paid on its behalf) all Taxes and other charges
shown to be due on such Returns or claimed to be due by any taxing authority;
and has established adequate reserves for unpaid Taxes as required by GAAP with
respect to any period or portion thereof ending prior to or on the date hereof,
and such reserves will continue to be so established with respect to periods
ending prior to or on the Closing Date. The Company has no unpaid deficiency or
assessment from any taxing authority with respect to Taxes or Returns; the
Company has not given or requested any waiver extending the statute of
limitations in connection with any Taxes or Returns. Schedule 3.16(a) discloses
as of the date hereof all years for which Returns of the Company have been
audited or examined by any Governmental Authority, or the statute of limitations
has expired.
(b) There are no liens for Taxes upon the Assets, except for
statutory liens for current Taxes not yet due; and there are no facts which
would give rise to any liens for Taxes.
(c) The Company has complied (and until the Closing Date will
comply) with all applicable laws relating to the payment and withholding of
Taxes, including, without limitation, withholding from employee wages and
payment to the proper taxing authorities all amounts required to be withheld
under applicable law.
(d) The Company has not made payments, is not obligated to
make any payments, and is not a party to any agreement that under certain
circumstances could obligate it to make any payments that will not be deductible
under section 162(m) or section 280G of the Code.
(e) Except for Del Cobre Corporation, a corporation which is
wholly-owned by Seller and which has no activity or assets and is not in the
broadcasting business, the Company has not been a member of an affiliated group
of corporations within the meaning of section 1504 of the Code (or similar state
or local filing group).
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(f) The Company is not a party to, is not bound by and has no
obligation under, any Tax allocation or sharing agreement, or Tax
indemnification agreement or similar contract or arrangement.
(g) The Company has not agreed, and is not required, to make
any adjustments under section 481(a) of the Code by reason of a change in
accounting method or otherwise that have not been fully recognized on prior year
tax returns.
(h) No federal, state, local or foreign audits or other
administrative proceedings or court proceedings exist or have been initiated
with regard to any Taxes or Returns of the Company; the Company has not received
any notice that such an audit is pending or, to the knowledge of Sellers,
threatened with respect to any Taxes due from or with respect to the Company or
any Return filed by or with respect to such entities; and no state of facts
exists or has existed which would constitute grounds for the assessment of any
material tax liability with respect to the Company for the periods which have
not been audited by the IRS.
(i) No power of attorney has been granted by, or with respect
to, the Company with respect to any matter relating to Taxes.
(j) All transfer, documentary, stamp, registration, value
added and other similar such Taxes and fees (including any penalties, additions
and interest) incurred in connection with this Agreement shall be borne by
Sellers, and Sellers will, at Sellers' expense, file all Returns and other
documentation with respect to such Taxes and fees, and if required by law, Buyer
will join in the execution of any such Returns and other documentation.
(k) The Company files Returns (or has Returns filed on its
behalf) in the states, political subdivisions thereof and foreign countries set
forth in Schedule 3.16(k).
(l) All elections with respect to Taxes currently affecting
the Company made through the date hereof are set forth on Schedule 3.16(l).
(m) The Company is not and has not been a U.S. real property
holding corporation (as defined in Section 897(c)(2) of the Code) during the
applicable period specified in Section 897(c)(1)(ii) of the Code.
Section 3.17 Employee Benefit Plans; Labor Relations. (a)
Schedule 3.17(a) contains a true and complete list of each employee benefit plan
covering employees, former employees or directors of the Company, or providing
benefits to such persons in respect of services provided to the Company
(collectively, the "Company Benefit Plans"). The Company has no employee pension
benefit plans within the meaning of Section 3(2) of the Employee Retirement
Income Security Act of 1974, as amended ("ERISA"). Each Company Benefit Plan
intended to provide for the deferral of income, the reduction of salary or other
compensation or to afford other income tax benefits complies with the
requirements of the
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applicable provisions of the Internal Revenue Code or other applicable laws,
rules and regulations required to provide such income tax benefits.
(b) With respect to the Company Benefit Plans
individually and in the aggregate, no event has occurred, and, to the best
knowledge of the Company, there exists no condition or set of circumstances that
could subject the Company to any liability arising under the code or any other
applicable law, which liability, excluding liability for benefit claims and
funding obligations payable in the ordinary course, would have, or insofar as
reasonably can be foreseen, could have, a material adverse effect on the
Company.
(c) Except as set forth in Schedule 3.17(c), (i)
the consummation or announcement of any transaction contemplated by this
Agreement will not result in any (A) payment (whether of severance pay or
otherwise) becoming due from the Company to any officer or director thereof or
to the trustee under any "rabbi trust" or similar arrangement, or (B) benefit
under any Company Benefit Plan being established or becoming accelerated, vested
or payable and (ii) the Company is not a party to (A) any management,
employment, deferred compensation, severance (including any payment, right or
benefit resulting from a change in control), bonus or other contract for
personal services with any officer or director, or (B) any consulting contract
with any person who prior to entering into such contract was a director or
officer of the Company.
(d) As of the date hereof, the Company is not a
party to any collective bargaining agreement or other labor agreement with any
union or labor organization.
Section 3.18 Environmental Matters. (a) There are no pending
or, to the best of the Company's or Seller's knowledge, threatened actions,
suits, claims, legal proceedings or other proceedings based on, and neither the
Company nor Seller has received any notice of any complaint, order, directive,
citation, notice of responsibility, notice of potential responsibility, or
information request from any Governmental Authority arising out of or
attributable to: (i) the presence of Hazardous Materials at any Real Property
owned or leased by the Company; (ii) any facility operations or procedures of
the Company relating to the Station or the Assets that do not conform to
requirements of the Environmental Laws; or (iii) any violation of Environmental
Laws otherwise arising from the Company's activities relating to the Station or
the Assets involving Hazardous Materials.
(b) The Company is in compliance with all applicable
Environmental Laws, including having obtained and maintained all permits,
licenses, certificates, and approvals required under any Environmental Law. A
true and complete list of all such permits, licenses, certificates and
approvals, all of which are valid and in full force and effect, is set out in
Schedule 3.18(b).
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(c) The operation of the Station does not cause or result in
exposure of workers or the general public to levels of radio frequency radiation
in excess of the "Radio Frequency Protection Guides" recommended in "American
National Standard Safety Levels with Respect to Human Exposure to Radio
Frequency Electromagnetic Fields 300 kHz to 100 GHz" (ANSI C95.1-1982), issued
by the American National Standards Institute. Renewal of the FCC Licenses would
not constitute a "major action" within the meaning of Section 1.1301, et seq.,
of the FCC's rules.
Section 3.19 Insurance. The Company maintains insurance
relating to its assets, properties, business, operations and employees, which is
customary and reasonable for a Company of its size engaged in the operation of a
radio station in California. Schedule 3.19 contains a list of all policies of
title, property, fire, casualty, liability, life, workmen's compensation, libel
and slander, and other forms of insurance of any kind relating to the business
and operations of the Station and owned or held by the Company as of the date
hereof. All insurance policies are in full force and effect.
Section 3.20 Powers of Attorney; Guarantees. The Company does
not have any power of attorney outstanding, nor any obligation or liability,
either actual, accruing or contingent, as guarantor, surety, co-signer,
endorser, co-maker or indemnitor (in the case of indemnitor, other than in the
ordinary course of business) in respect of the obligation of any person,
corporation, partnership, joint venture, association, organization or other
entity.
Section 3.21 Disclosure. The representations and warranties of
the Company and Seller in this Agreement and the other information furnished by
the Company and Seller to Buyer in connection with the execution, delivery and
performance of this Agreement and the consummation of the transactions
contemplated hereby, do not contain any untrue statement of a material fact or
omit to state a material fact required to be stated in order to make such
information not misleading. Except for facts affecting the radio industry
generally, there is no fact known to the Company or Seller which can reasonably
be expected to have a Material Adverse Effect.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES BY BUYER
Buyer represents and warrants to the Company and Seller as
follows:
Section 4.1 Organization and Standing. Buyer is a corporation
duly organized, validly existing and in good standing under the laws of the
State of Delaware and has all requisite power and authority to carry on its
business as now being conducted. Buyer has all requisite power and authority to
execute and deliver this Agreement and the Other Transaction Agreements to which
it is a party and to consummate the transactions contemplated hereby and
thereby.
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Section 4.2 Authorization. The execution, delivery and
performance of this Agreement and the Other Transaction Agreements to which it
is a party, and the consummation of the transactions contemplated hereby and
thereby, have been duly and validly authorized by all necessary corporate
proceedings on the part of Buyer and no other corporate proceedings or actions
on the part of Buyer, its Board of Directors or its shareholders is necessary
therefor. This Agreement and the Other Transaction Agreements to which it is a
party each constitute a valid and binding agreement and obligation of Buyer,
enforceable in accordance with their respective terms.
Section 4.3 Required Consents; No Conflicts.
(a) The execution, delivery and performance by Buyer of the
Transaction Agreements to which it is a party will not require Buyer to obtain
or file any consent, approval, authorization or permit of, or filing with, or
notification to any person, entity or Governmental Authority which Buyer does
not have or will not have prior to the Closing, except for any consent,
approval, authorization, permit or filing the failure of which to make or obtain
would not materially affect Buyer's ability to consummate the transactions
contemplated by the Transaction Agreements.
(b) The execution and delivery by Buyer of the Transaction
Agreements to which it is a party and the consummation of the transactions
contemplated hereby and thereby do not and will not (i) conflict with or violate
Applicable Laws applicable to Buyer, (ii) conflict with or result in any breach
of or constitute any default (or an event which with notice or the lapse of time
or both would become a default) under any note, bond, indenture, mortgage, deed
of trust, license, lease, contract or other instrument to which Buyer is a party
or by which Buyer is bound or to which any of the Buyer's assets are subject or
affected, or (iii) conflict with or violate any provision of Buyer's Certificate
of Incorporation or By-Laws, except, in each case, as would not prevent or
materially delay Buyer's ability to consummate the transactions contemplated by
this Agreement.
Section 4.4 Absence of Litigation. There is no action, suit,
investigation, claim, arbitration or litigation pending or, to the best of
Buyer's knowledge, threatened against Buyer affecting or involving Buyer's
ability to consummate the transactions contemplated by this Agreement, before or
by any court, arbitrator or Governmental Authority. As of the date hereof, Buyer
is not subject to an order, award, judgment, writ, decree, determination or
injunction of any court, arbitrator or Governmental Authority that would prevent
or materially delay its ability to consummate the Closing.
Section 4.5 Qualification of Buyer. Buyer is qualified under
the Communications Act to be the controlling entity of the FCC Licenses and
Buyer knows of no facts or circumstances that will delay a routine grant of the
Transfer of Control Applications.
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Section 4.6 Investment. Buyer is acquiring the Common Shares
for investment for its own account, and not with a view to any distribution
thereof.
Section 4.7 Disclosure. The representations and warranties of
Buyer in this Agreement and the other information furnished by Buyer to Sellers
in connection with the execution, delivery and performance of this Agreement and
the consummation of the transactions contemplated hereby, do not contain any
untrue statement of a material fact or omit to state a material fact required to
be stated in order to make such information not misleading.
ARTICLE V
PRE-CLOSING FILINGS AND UNDERTAKINGS
Section 5.1 Applications for FCC Consent. As promptly as
practicable, and in no event later than five (5) business days following the
execution of this Agreement, the Company, Seller and Buyer shall jointly file
one or more applications with the FCC requesting its consent to the transfer of
control of the FCC Licenses for the Station from Seller to Buyer (the "Transfer
of Control Applications"). The Company, Seller and Buyer will diligently take,
or fully cooperate in the taking of, all necessary and proper steps, and provide
any additional information reasonably requested, and use their respective
reasonable commercial efforts to resolve and/or overcome objections that may be
asserted by the FCC or any third party, in order to obtain promptly the
requested consent and approval of the Transfer of Control Applications by the
FCC. Notwithstanding anything in this Agreement to the contrary, if the Closing
occurs before the FCC Order becomes a Final Order, this Section 5.1 shall
survive the Closing until the FCC Order becomes a Final Order. No transfer of
control of the FCC Licenses shall occur without the prior written consent of the
FCC.
Section 5.2 Sharing Information. Each party hereto shall as
promptly as possible, and in any event within two (2) business days, inform the
other of any material communications between such party and the FCC or any other
Governmental Authority regarding this Agreement, the Other Transaction
Agreements or the transactions contemplated hereby or thereby. If any party
receives a request for additional information or documentary material from any
such Governmental Authority, then such party shall endeavor in good faith to
make, or cause to be made, as promptly as practicable and after consultation
with the other party, an appropriate response to such request.
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ARTICLE VI
COVENANTS AND AGREEMENTS OF THE COMPANY AND SELLER
Subject to Section 8.1 below, the Company and Seller covenant
and agree with Buyer as follows:
Section 6.1 Conduct of Business of the Company. From the date
hereof through the Closing Date, the Company, shall not, and De La Rosa shall
cause the Company not to, do or agree to do any of the following without the
prior written consent or approval of Buyer, which consent or approval Buyer may
grant or withhold in its sole and absolute discretion:
(1) Acquire or agree to acquire by merging or
consolidating with, or by purchasing all or a substantial equity interest in or
all or a substantial portion of the assets of, any business or any corporation,
partnership association or other business organization or division thereof or
otherwise acquire or agree to acquire any assets other than assets acquired in
the ordinary course of business which are immaterial in nature or amount;
(2) Sell, assign, lease, or otherwise dispose
of, or agree to sell, assign, lease or otherwise dispose of, all or any part of
the Company's Assets other than Assets which are immaterial in value,
individually and in the aggregate, and not material to the Station's operations
and then only in the ordinary course of business or enter into any agreement to
do the same;
(3) Terminate, adopt, amend or enter into,
except as may be required by applicable law or regulation, any bonus, profit
sharing, severance, termination, compensation, stock option, pension,
retirement, deferred compensation, employment or other employee benefit plan,
agreement, trust, fund, plan or arrangement for the benefit or welfare of its
employees or pay any benefit not required by any plan or arrangement existing on
the date hereof;
(4) Make any tax elections or settle or
compromise any income tax liability or, except as required by law or applicable
accounting standards, change any accounting policies or procedures;
(5) Enter into any new agreement which requires
the payment or performance by Seller of an amount in excess of $100,000 of cash
or services or which amends, modifies or extends any existing contract so as to
impose an obligation on the Company in an amount in excess of $100,000 of cash
or services;
(6) Enter into any new agreement or arrangement
of any nature with an Affiliate of De La Rosa or the Company or a family member
of De La Rosa, except for an
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agreement or arrangement with Adrian De La Rosa in an amount not to exceed
$15,000 annually;
(7) (i) Declare, set aside or pay any dividends
on or make other distributions in respect of any of its capital stock (except
that the Company may, or De La Rosa may cause the Company to, subject to the
provisions of Section 2.4(a), declare a dividend to De La Rosa immediately prior
to the Closing), (ii) Split, combine or reclassify any of its capital stock or
issue or authorize the issuance of any other securities in respect of, in lieu
of or in substitution for, shares of its capital stock or (iii) Directly or
indirectly repurchase, redeem or otherwise acquire, any shares of its capital
stock;
(8) Issue or sell, or authorize or propose the
issuance or sale of, any shares of its capital stock of any class or any
securities convertible into or exchangeable for, or any rights, warrants, calls,
subscriptions or options to acquire, any such shares, or convertible or
exchangeable securities;
(9) Amend its Articles of Incorporation or
By-laws;
(10) Incur any indebtedness, other than trade
payables and the costs associated with a power increase or upgrade, for money
borrowed or issue any debt securities; assume, guarantee, or otherwise become
liable or responsible for the obligations of any other Person; or make any loans
or capital contributions to, or investments in, any other Person;
(11) Enter into any real property lease or any
lease of personal property or extend or modify any existing lease of real or
personal property;
(12) Take any action that is intended or would
result in any of its representations and warranties set forth in this Agreement
being or becoming untrue in any material respect, or in any of the conditions to
the transactions contemplated by this Agreement set forth in Article IX not
being satisfied, or in a violation of any provision of this Agreement except, in
every case, as may be required by Applicable Law;
(13) Change its methods of accounting in effect
at December 31, 1997, except as required by changes in GAAP as concurred to by
the Company's independent auditors;
(14) Transfer or license to any person or entity
or otherwise extend, amend or modify any rights to the Company's intellectual
property;
(15) Take any action that jeopardizes the
validity or enforceability of or rights under the FCC Licenses, or take any
action under any contract that would have a Material Adverse Effect; or
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(16) Enter into any agreement to do any of the
foregoing.
Section 6.2 Affirmative Covenants. From the date hereof until
the Closing Date, the Company will, and De La Rosa shall cause the Company to,
perform the following actions as such actions relate to the Company or Station:
(a) Subject to the terms and conditions of this Agreement
(including, without limitation, Section 6.1) (i) carry on the business and
activities of the Station in the Ordinary Course of Business; (ii) pay or
otherwise satisfy all obligations (cash and barter) of the Station as they come
due and payable; (iii) maintain all Assets in good working, order and condition
subject to normal wear and tear; and (iv) maintain the Company's books of
account, records, and files in substantially the same manner as heretofore
maintained;
(b) (i) Maintain the validity of the FCC Licenses, and comply
in all material respects with all requirements of the FCC Licenses and the rules
and regulations of the FCC; and (ii) deliver to Buyer, within ten (10) business
days after filing, copies of any reports, applications or responses to the FCC
related to the Station that are filed between the date of this Agreement and the
Closing Date;
(c) Operate the business in compliance with all Applicable
Laws and take all actions under the Applicable Laws necessary to effectuate the
transactions contemplated by this Agreement;
(d) (i) Give to Buyer and Buyer's authorized representatives
access during normal business hours to the Company properties, books, records,
contracts, commitments, facilities, premises, and equipment and to the Company's
directors, officers and employees, agents and representatives (including,
without limitation, the independent accountants of the Company), (ii) cause the
Company's outside accountants to cooperate with Buyer's authorized
representatives and make available to such representatives work papers relating
to the Station maintained by such accountants, and (iii) permit Buyer and
Buyer's consulting engineers and independent contractors, at Buyer's expense, to
conduct engineering and other inspections of the Station and the Assets,
provided that all access under subparagraphs (i), (ii) and (iii) shall be upon
reasonable prior notice and in a manner that will not interfere with the
Station's operations;
(e) Maintain in full force and effect all of the Company's
existing casualty, liability, and other insurance through the day following the
Closing Date in amounts not less than those in effect on the date hereof;
(f) Upon receiving notice or otherwise becoming aware of any
violation relating to the FCC Licenses, any violation by the Station of any
rules and regulations of the FCC, or any material violations under any other
applicable laws and regulations, promptly
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notify Buyer and, at the Company's expense, use reasonable commercial efforts to
cure all such violations prior to the Closing Date;
(g) Promptly notify Buyer in writing if the Station ceases to
broadcast at its authorized power for more than 48 consecutive hours, which such
notice shall specify the reason or reasons for such cessation and the corrective
measures taken or to be taken by the Company;
(h) Promptly notify Buyer in writing of (i) any material
discharge of any Hazardous Materials or of any actions or notices described in
Section 3.18 and (ii) any material change in the information set forth in
Section 3.18;
(i) Use its best efforts to extend the daytime and nighttime
coverage contours of the Station to the east, including, without limitation, by
compensating other radio broadcast stations to reduce power or alter their
transmitter location to permit the Station to operate with increased power;
provided, that, the Company shall be obligated to pay only such compensation for
which Buyer agrees to reimburse the Company;
(j) At reasonable intervals following the date hereof, use
reasonable efforts to provide Buyer with documentation regarding any material
changes to the Schedules hereto;
(k) Use its best efforts to obtain the consents listed on
Schedule 3.4(a) hereof; and
(l) Promptly notify Buyer in writing of any default by the
Company under the terms of the Bank of America Loan. The Company further agrees
that in the event of such a default by the Company under the terms of the Bank
of America Loan, Buyer may, but shall not be required to, cure such default;
provided, that, should Buyer choose to cure such default, any payments which
Buyer is obligated to pay the Company pursuant to the TBA shall be reduced by
the amount of any costs incurred by Buyer relating to such cure.
Section 6.3 De La Rosa Negative Covenants. (a) De La Rosa
shall not enter into any option, warrant, purchase agreement or other agreement
that requires the sale of the Common Shares or pledge or otherwise encumber the
Common Shares.
(b) De La Rosa shall not enter into any voting trust, proxy or
other agreement with respect to the voting securities of the Company.
Section 6.4 Confidentiality. The Company and Seller shall
maintain strict confidentiality with respect to all documents and information
furnished to the Company and Seller by or on behalf of Buyer. Nothing shall be
deemed to be confidential information that: (a) is known to the Company and
Seller at the time of its disclosure to the Company and Seller; (b) becomes
publicly known or available other than through disclosure by the Company
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and Seller; (c) is received by the Company and Seller from a third party not
actually known by the Company and Seller to be bound by a confidentiality
agreement with or obligation to Buyer; or (d) is independently developed by the
Company or Seller as clearly evidenced by its records. Notwithstanding the
foregoing provisions of this Section 6.4, the Company and De La Rosa, as the
case may be, may disclose such confidential information (x) to the extent
required or deemed advisable to comply with applicable laws and regulations, (y)
to the Company's officers, directors, employees, and representatives, and to
Sellers' financial advisors, attorneys, accountants, and agents with respect to
the transactions contemplated hereby (so long as such parties are informed of
the confidentiality of such information), and (z) to any Governmental Authority
in connection with the transactions contemplated hereby. In the event this
Agreement is terminated, the Company or Seller shall return to Buyer all
confidential information prepared or furnished by Buyer relating to the
transactions contemplated hereunder, whether obtained before or after the
execution of this Agreement.
Section 6.5 No Solicitation. Neither De La Rosa, nor the
Company, nor any of the Company's officers, directors or Affiliates shall,
directly or indirectly, solicit, elicit, encourage, induce or initiate any
proposals or offers from, or have discussions or negotiations with, or provide
any information to, any Person (other than Buyer) concerning or in connection
with any merger, purchase or sale of substantial assets, purchase or sale of
shares of the Company, issuance of equity securities of the Company,
recapitalization or any other similar transaction involving the Company (other
than in connection with a transaction involving Purchaser). The Company or De La
Rosa, as the case may be, shall promptly notify Purchaser of any proposal,
inquiry or offer relating to any of the foregoing matters received after the
date of this Agreement.
Section 6.6 Use of Proceeds. Seller shall use the proceeds
from the sale of the Common Shares to settle all of the Company's remaining
obligations under the Bank of America Loan. The Company and Seller shall use
their best efforts to obtain the consent of Bank of America to the transactions
contemplated by this Agreement.
Section 6.7 Giants Contract. The Company and Seller will use
their respective best efforts to ensure that the Giants broadcast contract
through radio station KNBR (the "Giants Contract") (i) remains in full force and
effect throughout the entire 1998 baseball season and (ii) permits the Company
to tape-delay broadcast any Giants baseball games which would otherwise conflict
with the broadcast of any World Cup soccer game.
Section 6.8 Noncompetition.
(a) Buyer, the Company and Seller agree that after the
Closing, the Company shall be entitled to the goodwill and going concern value
of the business of the Company and to protect and preserve the same to the
maximum extent permitted by law. The Seller acknowledges that his management and
other contributions to the business of the Company and the operation of the
Station have been uniquely valuable and involve proprietary and other
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information that would be competitively unfair to make available to any
competitor of the Company. For these and other reasons and as an inducement to
the Buyer to enter into this Agreement and the Other Transaction Agreements to
which it is a party, Seller agrees that until the Note Maturity Date, Seller
will not, directly or indirectly, for his own benefit or as agent for another,
own, manage, operate or participate in the ownership, management or operation of
any radio station licensed to San Francisco, California or San Jose, California.
(b) If this Section 6.8 is more restrictive than permitted by
the laws of the jurisdiction in which Buyer seeks enforcement hereof, this
Section 6.8 shall be limited to the extent required to permit enforcement under
such laws.
(c) Buyer and Seller agree that Five Hundred Thousand Dollars
($500,000) of the Purchase Price is allocable to Seller's agreement to enter
into the covenant set forth in this Section 6.8.
ARTICLE VII
COVENANTS AND AGREEMENTS OF BUYER
Buyer covenants and agrees with the Company and Seller as
follows:
Section 7.1 Confidentiality. Buyer shall maintain strict
confidentiality with respect to all documents and information furnished to Buyer
by or on behalf of the Company or Seller. Nothing shall be deemed to be
confidential information that: (a) is known to Buyer at the time of its
disclosure to Buyer; (b) becomes publicly known or available other than through
disclosure by Buyer; (c) is received by Buyer from a third party not actually
known by Buyer to be bound by a confidentiality agreement with or obligation to
the Company or Seller; or (d) is independently developed by Buyer as clearly
evidenced by its records. Notwithstanding the foregoing provisions of this
Section 7.1, Buyer may disclose such confidential information (x) to the extent
required or deemed advisable to comply with applicable laws and regulations, (y)
to its officers, directors, employees, representatives, financial advisors,
attorneys, accountants, and agents with respect to the transactions contemplated
hereby (so long as such parties are informed of the confidentiality of such
information), and (z) to any Governmental Authority in connection with the
transactions contemplated hereby.
Section 7.2 Notice of Certain Events. Buyer agrees that (i)
it shall promptly notify the Company and Seller of any fact or circumstance of
which Buyer becomes aware that would reasonably be expected to cause it not to
meet any qualification to be the controlling entity of the FCC Licenses or that
it believes may delay a routine grant of the Transfer of Control Applications;
(ii) it shall use reasonable commercial efforts to remedy any such fact or
circumstance, and (iii) it shall not take any action that Buyer knows, or has
reason to believe, would result in the occurrence of any such fact or
circumstance.
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ARTICLE VIII
MUTUAL COVENANTS AND UNDERSTANDINGS
OF THE COMPANY, SELLER AND BUYER
Section 8.1 Possession and Control. Notwithstanding any other
provision of this Agreement or any Other Transaction Agreements, between the
date hereof and the Closing Date, Buyer shall not directly or indirectly
control, supervise or direct, or attempt to control, supervise or direct, the
business and operations of the Station, and such operation, including complete
control and supervision of all programming, finances and employment shall be the
sole responsibility of the Company; provided, however, that Buyer shall be
entitled (i) to provide programming to the Station pursuant to the TBA, and (ii)
to inspect the Assets as provided in Section 6.2(d). On and after the Closing
Date, other than as set forth in the De La Rosa Consulting Agreement, De La Rosa
shall have no control over, or right to intervene, supervise, direct or
participate in, the business and operations of the Station.
Section 8.2 Public Announcements. The Company, De La Rosa and
Buyer shall consult with each other before making any public statements with
respect to this Agreement or the transactions contemplated herein and shall not
issue any such press release or make any such public statement without the prior
written consent of the other parties, which shall not be unreasonably withheld,
conditioned or delayed; provided, however, that, a party may, without prior
consultation with or the written consent of the other parties, issue such press
release or make such public statement as may be required by law or any listing
agreement with a national securities exchange to which the Company or Buyer (or
any Affiliate of the Company or Buyer) is a party if it has used all reasonable
efforts to consult with the other parties and to obtain such parties' consent
but has been unable to do so in a timely manner.
Section 8.3 Closing Date Balance Sheet. The parties shall work
together to prepare or to have prepared the Closing Date Balance Sheet at and as
of the Closing Date.
Section 8.4 Unwind Agreement. Pursuant to Section 9.2 hereof,
the parties agree to close the transactions contemplated by this Agreement prior
to the FCC Order becoming a Final Order and to enter into an unwind agreement,
at Closing, in substantially the form attached as Exhibit C hereto (the "Unwind
Agreement").
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ARTICLE IX
CONDITIONS PRECEDENT TO BUYER'S
OBLIGATION TO CLOSE
The obligations of Buyer to purchase the Common Shares and to
proceed with the Closing are subject to the satisfaction (or waiver in writing
by Buyer) at or prior to the Closing of each of the following conditions:
Section 9.1 Representations and Covenants. Each of the
representations and warranties of the Company and Seller made in this Agreement
shall be true and correct in all material respects (except that representations
and warranties qualified by materiality or Material Adverse Effect shall be true
and correct in all respects) as of the date of this Agreement and (except to the
extent such representations and warranties refer to an earlier date) as of the
Closing Date as though made on and as of the Closing Date, and the Company or De
La Rosa, as the case may be, shall have performed and complied in all material
respects with all covenants and agreements required by this Agreement to be
performed or complied with by the Company or De La Rosa prior to the Closing.
Section 9.2 FCC Order. The FCC Order shall have been granted
and shall be in full force and effect (but without having waited for the FCC
Consent to become a Final Order).
Section 9.3 Legal Proceedings. No preliminary or permanent
injunction or any outstanding judgement, order, award, decree or ruling,
including in connection with any action or proceeding brought by a third party
(not subsequently dismissed, settled or otherwise terminated) or by any
Governmental Authority which prohibits or invalidates the transactions
contemplated by this Agreement, or which prohibits the sale of the Common Shares
to Buyer or prevents, limits, restricts or impairs the ownership, use or
operation of the Station by Buyer, other than an action or proceeding instituted
by Buyer, shall have been issued and remain in effect.
Section 9.4 No Adverse Action or Decision. There shall be no
action, suit, investigation or proceeding pending by any public official or
Governmental Authority, or, to the best knowledge of the Company or De La Rosa,
threatened by any public official or Governmental Authority, against or
affecting the Company, its properties or rights, or any of its officers or
directors, before any court, arbitrator or administrative or governmental body
which (i) seeks to restrain, enjoin, prevent the consummation of the
transactions contemplated by this Agreement, or (ii) challenges the validity or
legality of the transactions contemplated by this Agreement or seeks to recover
damages or to obtain other relief in connection with any such transactions.
Section 9.5 Approvals and Consents. The Company and Seller
shall have duly received all authorizations, consents, approvals, licenses,
franchises, permits and
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certificates by or of, and shall have made all filings and effected all
registrations and qualifications with, all Governmental Authorities necessary
for the sale of the Common Shares being sold at the Closing.
Section 9.6 Material Adverse Change. There shall not have
been a change (or any condition, event or development involving a prospective
change) in the business, properties, assets, liabilities, capitalization,
shareholders' equity, condition (financial or otherwise), operations, licenses
or franchises, results of operations or prospects of the Company which is or may
be materially adverse to the Company (unless such a change was caused by Buyer
during the term of the TBA).
Section 9.7 Delivery by the Company and Seller. The Company
and Seller shall have delivered to Buyer all of items required to be delivered
by the Company and Seller to Buyer pursuant to Section 11.1;
Section 9.8 Time Brokerage Agreement. The TBA and all
agreements contemplated therein shall have become effective in accordance with
the terms and conditions thereof and, from and after the date the TBA and such
agreements are to first become effective through and including the Closing Date,
the TBA and such agreements shall have not been terminated due to the Company's
breach thereof.
Section 9.9 Bank of America Consent. Buyer shall have
received a copy of the written consent of Bank of America to the sale of the
Common Shares to Buyer and the Company shall not then be in default under the
Bank America Loan.
ARTICLE X
CONDITIONS PRECEDENT TO
DE LA ROSA'S OBLIGATION TO CLOSE
The obligations of De La Rosa to sell the Common Shares and to
proceed with the Closing are subject to the satisfaction (or waiver in writing
by De La Rosa) at or prior to the Closing of each of the following conditions:
Section 10.1 Representations and Covenants. Each of the
representations and warranties of Buyer made in this Agreement shall be true and
correct in all material respects (except that representations and warranties
qualified by materiality or Material Adverse Effect shall be true and correct in
all respects) as of the date of this Agreement and (except to the extent such
representations and warranties refer to an earlier date) as of the Closing Date
as though made on and as of the Closing Date, and Buyer shall have performed and
complied in all material respects with all covenants and agreements required by
this Agreement to be performed or complied with by Buyer prior to the Closing.
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Section 10.2 FCC Order. The FCC Order shall have been
issued.
Section 10.3 Legal Proceedings. No preliminary or permanent
injunction or any outstanding judgement, order, award, decree or ruling,
including in connection with any action or proceeding brought by a third party
(not subsequently dismissed, settled, or otherwise terminated) or by any
Governmental Authority which prohibits or invalidates the transactions
contemplated by this Agreement or which prohibits the sale of Common Shares to
Buyer other than an action or proceeding instituted by the Company or De La
Rosa, shall have been issued and remain in effect.
Section 10.4 No Adverse Action or Decision. There shall be no
action, suit, investigation or proceeding pending by any public official or
Governmental Authority, or to the best knowledge of Buyer, threatened by any
public official or Governmental Authority, against or affecting the Buyer, any
of its properties or rights or any of its officers or directors, before any
court, arbitrator or administrative or governmental body which (i) seeks to
restrain, enjoin, prevent the consummation of the transactions contemplated by
this Agreement, or (ii) challenges the validity or legality of the transactions
contemplated by this Agreement or seeks to recover damages or to obtain other
relief in connection with any such transactions.
Section 10.5 Delivery by Buyer. Buyer shall have delivered to
Seller (i) the Purchase Price and (ii) all of the items required to be delivered
by Buyer to the Company and Seller pursuant to Section 11.2.
ARTICLE XI
THE CLOSING
Section 11.1 Closing. Unless otherwise agreed upon in
writing by Buyer and Seller, the Closing Date shall be on the fifteenth
(15th) business day following the grant of the FCC Consent. The Closing shall
be held at such time of day and place or places as the parties may agree.
Section 11.2 Delivery by the Company and Seller. At the
Common Stock Closing, the Company or De La Rosa, as the case may be, shall
deliver to Buyer as a condition to Buyer's obligation to purchase and pay for
the Common Shares the following:
(a) A copy of the articles of incorporation and by-laws of the
Company, certified by the corporate secretary of the Company as being true,
correct and complete as of the Closing Date.
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(b) A certificate as to the good standing of the Company in
California, dated as of a date not earlier than ten (10) days prior to the
Closing Date.
(c) A certificate signed by Seller to the effect that as of
the Closing Date, (i) the representations and warranties of Seller set forth in
Article III are true and correct in all material respects and (ii) the
obligations of Seller to be performed hereunder on or prior to the Closing Date
have been performed in all material respects.
(d) A certificate signed by an executive officer of the
Company to the effect that as of the Closing Date, (i) the representations and
warranties of the Company set forth in Article III are true and correct in all
material respects and (ii) the obligations of the Company to be performed
hereunder on or prior to the Closing Date have been performed in all material
respects.
(e) Stock certificates representing the Common Shares duly
executed in blank or accompanied by stock powers duly executed in blank, in
proper form for transfer, with all appropriate stock transfer tax stamps
affixed.
(f) The opinions of Fisher, Wayland, Cooper, Leader & Zaragoza
L.L.P., communications counsel to the Company, and Sanders, Barnet, Goldman,
Simons & Mosk, corporate counsel to the Company, in each case in form and
substance reasonably satisfactory to Buyer.
(g) A copy of the Escrow Agreement executed by De La Rosa.
(h) A fully executed copy of the De La Rosa Consulting
Agreement.
(i) A receipt evidencing payment by Buyer of the Purchase
Price.
(j) Resignations of all members of the Board of Directors of
the Company (other than the director appointed by Buyer) effective as of the
Closing Date.
(k) The Closing Date Balance Sheet.
(l) The Bank of America Release.
(m) A copy of the Unwind Agreement executed by De La Rosa.
(n) Such other documents to be delivered by Seller hereunder
as are reasonably necessary for Buyer to effectuate and document the
transactions contemplated hereby.
Section 11.3 Delivery by Buyer. At the Closing, Buyer
shall deliver to De La Rosa as a condition to De La Rosa's obligation to sell
the Common Shares the following:
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(a) Five Million Dollars ($5,000,000) in immediately available
funds, as set forth in Section 2.3(b).
(b) The Promissory Note.
(c) The Security Agreement (as defined in the Promissory
Notes).
(d) The Pledge Agreement (as defined in the Promissory Note).
(e) A certificate signed by an executive officer of Buyer to
the effect that as of the Common Stock Closing Date, (i) the representations and
warranties of Buyer set forth in Article IV are true and correct in all material
respect, and (ii) the obligations of Buyer to be performed hereunder on or prior
to the Closing Date have been performed in all material respects.
(f) A copy of the Escrow Agreement executed by Buyer.
(g) A copy of the Unwind Agreement executed by Buyer.
(h) The opinion of Skadden, Arps, Slate, Meagher & Flom LLP,
counsel to Buyer, in form and substance reasonably satisfactory to Seller.
(i) A receipt evidencing receipt by Buyer of the Common
Shares.
(j) Such other documents to be delivered by Buyer hereunder as
are reasonably necessary for Seller to effectuate the transactions contemplated
herein.
ARTICLE XII
SURVIVAL; INDEMNIFICATION
Section 12.1 Survival of Representations. Except as
otherwise set forth herein, all representations and warranties, covenants and
agreements of the Company, Seller and Buyer contained in or made pursuant to
this Agreement or in any certificate furnished pursuant hereto shall survive
the Closing Date and shall remain in full force and effect for a period of
eighteen (18) months after the Closing Date (the "Survival Period"), except
that the representations and warranties set forth in Sections 3.16 shall
survive for the applicable statute of limitations period plus six months and
Sections 3.8 and 3.18 shall survive without limitation. All representations
and warranties, covenants, and agreements shall also survive and be
unaffected by (and shall not be deemed waived by) any investigation, audit,
appraisal, or inspection at any time made by or on behalf of any party
hereto. Notwithstanding anything
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herein to the contrary, any representation, warranty, covenant or agreement
which is the subject of a claim which is asserted in writing prior to the
expiration of the applicable period set forth above shall survive with respect
to such claim or dispute until the final resolution thereof. This Section 12.1
shall not limit any covenant or agreement of the parties which contemplate
performance after the Closing, including, without limitation, the covenant set
forth in Section 6.8.
Section 12.2 Indemnification by the Company and Seller. (a)
Subject to the other provisions of this Article XII, prior to the Closing, the
Company and Seller shall be jointly and severally obligated, and from and after
the Closing, Seller shall be obligated, to indemnify, defend and hold harmless
Buyer and its respective successors, assigns and Affiliates and the directors,
officers, agents and employees of any of them (collectively, the "Buyer
Indemnitees," which term shall include the Company after the Closing) from and
against any and all Losses imposed on, incurred or suffered by or asserted
against any Buyer Indemnitee, directly or indirectly, to the extent resulting
from, arising out of or incurred with respect to any breach of any
representation, warranty, covenant or agreement of the Company or Seller
contained in this Agreement and any actual or threatened action or proceeding in
connection therewith; provided, that, neither the Company nor Seller shall have
any obligation pursuant to this Section 12.2(a) for any such Losses which are
caused by Buyer during the term of the TBA.
(b) (1) Prior to the Closing, the Company and Seller shall be
jointly and severally responsible for paying, and shall be jointly and severally
obligated, and from and after the Closing, Seller shall be obligated, to
indemnify and hold the Buyer Indemnitees harmless from and against any Losses in
respect of (A) any Taxes of the Company for any taxable periods ending on or
before the Closing Date ("Pre-Closing Tax Periods"), and for the portion of any
Straddle Period treated as ending on and including the Common Stock Closing Date
pursuant to this paragraph, including without limitation, any Taxes arising from
the transactions contem plated by this Agreement, and (B) any liability arising
from breach of Sellers' representations and warranties contained in Section 3.16
or Sellers' covenants contained in this Section 12.2(b).
For purposes of this Agreement, "Straddle Period" means any
taxable period which includes but does not end on the Closing Date. For purposes
of this Agreement, in the case of any Straddle Period, Taxes of the Company for
the portion of any Straddle Period ending on and including the Closing Date
shall be computed as if such taxable period ended as of the close of business on
the Closing Date.
(2) The Company shall duly prepare, or cause to be
prepared, and file, or cause to be filed, on a timely basis all Returns with
respect to the Company for all Pre- Closing Tax Periods. The Company shall allow
Buyer an opportunity to review and comment upon such Returns. The Company shall
take no position on such Returns that relate to the Company that would have a
Material Adverse Effect. Buyer shall duly prepare, or cause to be prepared, and
file, or cause to be filed, all Returns with respect to the Company for any
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taxable periods beginning after the Closing Date ("Post-Closing Tax Periods")
and any Strad dle Periods.
(3) Except as otherwise provided in this Agreement,
the Company, Seller and Buyer shall jointly control and participate in all
audits and other proceedings relat ing to Taxes of the Company for any Straddle
Period and for any Pre-Closing Tax Period. Neither the Company nor Seller shall
settle any such audit or proceeding without the prior written consent of the
Buyer. With respect to audits and other proceedings for Taxes relating to
Post-Closing Tax Periods, Buyer shall control all proceedings and may make all
decisions taken in connection therewith at Buyer's sole discretion and, without
limiting the foregoing, may in its sole discretion pursue or forego any and all
administrative appeals, proceedings, hearings and conferences with any taxing
authority with respect thereto, and may, in its sole discretion, either pay the
Tax claimed and sue for a refund where applicable law permits such refund suits
or contest the Tax liability in any permissible manner.
(4) Each of the Company, Seller and Buyer shall
provide the other parties with such information and records and make such of its
officers, directors, employees and agents available as may reasonably be
requested by such other party in connection with the preparation of any Return
or any audit or other proceeding that relates to the Company.
(c) The Buyer shall be entitled to recover for any Losses
including, without limitation, Losses incurred by any Buyer Indemnitee and
indemnifiable under Section 12.1(a) or (b), by drawing upon the Escrow Account
(as defined in the Escrow Agreement) established in accordance with the Escrow
Agreement. In the event that the funds in the Escrow Account are insufficient to
compensate the Buyer or any such Buyer Indemnitee, the Company and Seller shall
be jointly and severally liable and after the Closing Date, Seller shall be
liable, for any uncompensated Losses, which may, at the election of Buyer, be
offset in whole or in part, first, against the interest payable under the
Promissory Note and then, if necessary, against the principal amount then
outstanding under the Promissory Note. The amount of any Loss shall be
calculated exclusive of any insurance proceeds received by the Buyer Indemnitee
with respect thereto.
Section 12.3 Indemnification by Buyer. Subject to the other
provisions of this Article XII, Buyer shall indemnify, defend and hold harmless
the Company, Seller and their respective successors, assigns and Affiliates and
the directors, officers, agents and employees of any of them (collectively, the
"Seller Indemnitees") from and against any and all Losses imposed on, incurred
or suffered by or asserted against any Seller Indemnitee, directly or
indirectly, to the extent resulting from arising out of or incurred with respect
to any breach of any representation, warranty, covenant or agreement of Buyer
contained in this Agreement and any actual or threatened action or proceeding in
connection therewith. The amount of any Loss shall be calculated exclusive of
any insurance proceeds received by Seller Indemnitee with respect thereto.
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Section 12.4 Indemnification Procedure. (a) For purposes of
this Article XII, the term "Indemnified Party" shall refer to a Buyer Indemnitee
or a Seller Indemnitee, as the case may be, and the term "Indemnitor" shall
refer to Seller, the Company or Buyer, as the case may be. The Indemnified Party
shall give written notice (the "Indemnification Notice") to the Indemnitor
within ten (10) days after discovery by the Indemnified Party of any matters
giving rise to a claim for indemnification or reimbursement under this
Agreement; provided however, the failure to deliver such notice shall not
prejudice the Indemnified Party's right to indemnification hereunder except to
the extent that the Indemnitee is actually prejudiced thereby. Notwithstanding
the preceding sentence, any such Indemnification Notice must be given before the
end of the Survival Period.
(b) In the event that the Indemnitor advises the
Indemnified Party that the Indemnitor will contest a claim for indemnification
hereunder, or fails, within thirty (30) days of receipt of any Indemnification
Notice to notify, in writing, the Indemnified Party of its election to defend,
settle or compromise, at its sole cost and expense, any action or claim (or
discontinues its defense at any time after it commences such defense), then the
Indemnified Party may, at its option, defend, settle or otherwise compromise or
pay such action or claim. In any event, unless and until the Indemnitor elects
in writing to assume and does so assume the defense of any such claim or action,
the Indemnified Party's costs and expenses arising out of the defense,
settlement or compromise of any such action or claim shall be Losses subject to
indemnification hereunder.
(c) The Indemnified Party shall cooperate fully
with the Indemnitor in connection with any negotiation or defense of any such
action or claim by and shall furnish to the Indemnitor all information
reasonably available to the Indemnified Party which relates to such action or
claim. The Indemnitor shall keep the Indemnified Party fully appraised at all
times as to the status of the defense or any settlement negotiations with
respect thereto. If the Indemnitor elects to defend any such action or claim,
then the Indemnified Party shall be entitled to participate in such defense with
counsel of its choice at its sole cost and expense. If the Indemnitor does not
assume the defense, the Indemnified Party shall keep the Indemnitor appraised at
all times as to the status of the defense; provided, however, that the failure
to keep the Indemnitor so informed shall not affect the obligations of the
Indemnitor hereunder. Payment of indemnification amounts hereunder shall be made
to the person or entity specified by the Indemnified Party. Anything in this
Article XII to the contrary notwithstanding, the Indemnitor shall not, without
the Indemnified Party's prior written consent (which consent shall not be
unreasonably withheld), settle or compromise any claim or consent to entry of
any judgment in respect thereof which imposes any future obligation on the
Indemnified Party or which does not include, as an unconditional term thereof,
the giving by the claimant or the plaintiff to the Indemnified Party, a release
from all liability in respect of such claim.
Section 12.5 Remedies Cumulative. Any Indemnified Party
shall be entitled to such indemnification from time to time and shall be
entitled to rely upon one or more
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provisions of this Agreement without waiving their right to rely upon any other
provisions at the same time or any other time.
Section 12.6 Consequential Damages. For purposes of this
Article XII, the term Loss shall include incidental and consequential damages.
ARTICLE XIII
TERMINATION
Section 13.1 Termination. This Agreement may be terminated
at any time prior to the Closing by:
(a) the mutual consent, in writing, of De La Rosa and Buyer;
(b) Buyer, by written notice of termination delivered to De La
Rosa if either (i) the Company or De La Rosa is in material default of its
respective obligations hereunder (and such default was not caused by any action
of Buyer during the term of the TBA) and has failed to cure such default to
Buyer's reasonable satisfaction within thirty (30) days following written notice
of such default sent by Buyer to the Company or De La Rosa, as appropriate,
provided that Buyer is not in default hereof or (ii) the Company or De La Rosa
fail to notify Buyer if the Station ceases to broadcast at its authorized power
for more than 48 consecutive hours as required by Section 6.2(g) hereof or, even
if such notification is given, the Company or De La Rosa fail to give a
commercially reasonable explanation for such cessation or the lack of corrective
measures;
(c) De La Rosa, by written notice of termination delivered to
Buyer, if Buyer is in material default of its obligations hereunder and has
failed to cure such default to De La Rosa's reasonable satisfaction within
thirty (30) days following written notice of such default sent by De La Rosa to
Buyer, provided that neither De La Rosa nor the Company is in default hereof;
(d) By Buyer or De La Rosa, upon written notice of termination
delivered to De La Rosa or Buyer, as the case may be, in the event the Closing
has failed to occur within six (6) months following the date of this Agreement
(as such date may be extended by mutual agreement of Buyer and De La Rosa);
(e) By either Buyer or De La Rosa if a court of competent
jurisdiction shall have issued an order, decree or ruling permanently
restraining, enjoining or otherwise prohibiting the sale of the Common Shares to
Buyer, and such order, decree, ruling or other action shall have become final
and non-appealable; or
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(f) Automatically, without the need for further action on the
part of any party hereto, upon the first date on which the denial of the FCC
Order becomes a Final Order.
Section 13.2 Effect of Termination. In the event this
Agreement is terminated as provided in this Article XIII, Buyer and De La Rosa
shall be released from all future obligations hereunder with respect to the sale
and purchase of the Common Shares; provided, however, that the obligations of
the parties as in Sections 6.4, 7.1, 15.2 and 15.3 shall survive such
termination. If this Agreement is subject to termination as provided in Sections
13.1(b) or 13.1(c), the rights of the parties shall be governed by Article XIV.
ARTICLE XIV
REMEDIES
Section 14.1 Default by the Company or Seller. If this
Agreement is terminable by Buyer pursuant to Section 13.1(b) and Buyer is not in
material default or material breach of this Agreement, Buyer shall be entitled:
(i) to require Seller to consummate and specifically perform
the sale in accordance with Section 14.3, if necessary through injunction or
other court order or process; or
(ii) by written notice to Seller, to terminate this
Agreement; and
(iii) to pursue any and all remedies against the Company
and Seller available at law or in equity.
Section 14.2 Default by Buyer. If this Agreement is
terminated pursuant to Section 13.1(c) and neither the Company nor Seller is
in material default or material breach of this Agreement, the Company and
Seller shall be paid an aggregate of Five Hundred Thousand Dollars ($500,000)
from the Escrow Deposit, together with any interest earned thereon, as
liquidated damages, it being agreed that such payment shall constitute full
payment for any and all damages suffered by the Company or Seller by reason
thereof and that neither the Company nor Seller shall have rights to or
claims for damages from Buyer or its Affiliates other than as set forth in
this Agreement. The remaining Five Hundred Thousand Dollars ($500,000) of the
Escrow Deposit, together with any interest earned thereon, shall be forthwith
paid to Buyer.
Section 14.3 Specific Performance. The Company and Seller
each acknowledge that the Common Shares are unique and that Buyer has no
adequate remedy at law if the Company and Seller shall fail to perform any of
their obligations hereunder, and Seller therefore confirms and agrees that
Buyer's right to specific performance is essential to protect the rights and
interests of Buyer. Accordingly, Seller hereby agrees that if this Agreement
is terminable by Buyer pursuant to Section 13.1(b) and Buyer is not in
material
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default or material breach of this Agreement, Buyer shall have the right to have
all obligations, undertakings, agreements and other provisions of this Agreement
specifically performed by Seller and that Buyer shall have the right to obtain
an order or decree of such specific performance in any of the courts of the
United States or of any state or other political subdivision thereof.
Section 14.4 Remedies Not Exclusive.
The remedies provided in this Article 14 shall be cumulative
and not exclusive.
ARTICLE XV
GENERAL PROVISIONS
Section 15.1 Further Assurances. Subject to the terms and
conditions herein provided, each of the parties hereto agrees to use its
commercially reasonable efforts to take or cause to be taken all such further
actions, and to do, or cause to be done, all things necessary, proper or
advisable under applicable laws and regulations to consummate and make effective
the transactions contemplated by this Agreement including vesting the good title
to the Common Shares in Buyer after the Closing or in order to fully effectuate
the purposes, terms and conditions of this Agreement (including, without
limitation, executing, delivering and filing or causing to be executed,
delivered and filed such further documents and instruments and obtaining such
consents, as may be necessary or reasonably requested in connection with the
consummation of the transactions contemplated hereby). In case at any time after
the Closing Date any further action is necessary to carry out the purposes of
this Agreement, including, without limitation, the securing of consents of third
parties, each party hereto shall use its best efforts to take all such necessary
action.
Section 15.2 Brokers. Seller represents to Buyer that Seller
has not engaged, or incurred any liability (for any brokerage fees, finders'
fees, commissions or otherwise) to, any broker, finder or agent in connection
with the transactions contemplated by this Agreement or the Other Transaction
Agreements; Buyer represents to Seller that Buyer has not engaged, or incurred
any unpaid liability (for any brokerage fees, finders' fees, commissions or
otherwise) to, any broker, finder or agent in connection with the transactions
contemplated by this Agreement or the Other Transaction Agreements, to which it
is a party; Seller agrees to indemnify Buyer, and Buyer agrees to indemnify
Seller, against any claims asserted against the other parties for any such fees
or commissions by any person purporting to act or to have acted for or on behalf
of the indemnifying party.
Section 15.3 Expenses. Each party hereto shall pay its own
expenses incurred in connection with this Agreement and in the preparation for
and consummation of the
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transactions provided for herein, and De La Rosa shall pay any applicable stock
transfer taxes applicable to the sale of the Common Shares.
Section 15.4 Notices. All notices, demands, requests, or
other communications which may be or are required to be given or made by any
party to any other party pursuant to this Agreement shall be in writing and
shall be hand delivered or delivered by overnight air courier and addressed
as follows:
(i) If to Buyer:
Radio Unica of San Francisco, Inc.
8400 N.W. 52nd Street
Suite 101
Miami, Florida 33166
Attention: Joaquin F. Blaya
with a required copy (which shall not constitute notice) to:
Skadden, Arps, Slate, Meagher & Flom LLP
1440 New York Avenue
Washington, D.C. 20005
Attention: John C. Quale, Esq.
(ii) If to the Company:
Oro Spanish Broadcasting, Inc.
2601 Mission Street
San Francisco, CA 94110
with a required copy (which shall not constitute notice) to:
Sanders, Barnet, Goldman, Simons & Mosk
1901 Avenue of the Stars
Suite 850
Los Angeles, CA 90067
Attention: Bernard Simons, Esq.
(iii) If to De La Rosa:
Rene De La Rosa
8 Wilshire Court
Daly City, CA 94015
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with a required copy (which shall not constitute notice) to:
Sanders, Barnet, Goldman, Simons & Mosk
1901 Avenue of the Stars
Suite 850
Los Angeles, CA 90067
Attention: Bernard Simons, Esq.
or such other address as the addressee may indicate by written notice to the
other parties.
Each notice, demand, delivery, request, or communication which
shall be given or made in the manner described above shall be deemed
sufficiently given or made for all purposes at such time as it is delivered to
the addressee (with the delivery receipt or the affidavit of messenger being
deemed conclusive but not exclusive evidence of such delivery) or at such time
as delivery is refused by the addressee upon presentation.
Section 15.5 Waiver. No delay or failure on the part of any
party hereto in exercising any right, power or privilege under this Agreement or
under any other instrument or document given in connection with or pursuant to
this Agreement shall impair any such right, power or privilege or be construed
as a waiver of any default or any acquiescence therein. No single or partial
exercise of any such right, power or privilege shall preclude the further
exercise of such right, power or privilege, or the exercise of any other right,
power or privilege. No waiver shall be valid against any party hereto unless
made in writing and signed by the party against whom enforcement of such waiver
is sought and then only to the extent expressly specified therein.
Section 15.6 Benefit and Assignment. (a) Except as
hereinafter specifically provided in this Section 15.6, no party hereto shall
assign this Agreement, in whole or in part, whether by operation of law or
otherwise, without the prior written consent of Seller (if the assignor is
Buyer) or Buyer (if the assignor is the Company or De La Rosa); and any
purported assignment contrary to the terms hereof shall be null, void and of
no force and effect. Buyer shall have the right to assign this Agreement to
any entity or entities controlling, controlled by, or under common control
with Buyer so long as any such assignment will not delay the Closing beyond
the date on which the Closing is required to occur in accordance with this
Agreement. Any assignment in accordance with the terms hereof shall become
effective upon delivery of written notice in accordance with Section 15.5.
(b) This Agreement shall be binding upon and shall inure to
the benefit of the parties hereto and their respective successors and assigns
permitted hereunder. No person or entity other than the parties hereto and their
respective successors and permitted assigns is or shall be entitled to bring any
action to enforce any provision of this Agreement against any of the parties
hereto.
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Section 15.7 Entire Agreement; Amendment. This Agreement,
including the Schedules hereto, and the other instruments and documents referred
to herein or delivered pursuant hereto contain the entire agreement among the
parties with respect to the subject matter hereof and supersede all prior oral
or written agreements, commitments or understandings with respect to such
matters (including, without limitation, the Confidentiality and Escrow
Agreement, entered into in November, 1997, by and between Radio Unica Corp., the
Company and Sanders, Barnet, Goldman, Simons & Mosk). No amendment, modification
or discharge of this Agreement shall be valid or binding unless set forth in
writing and duly executed by the parties hereto.
Section 15.8 Severability. If any part of any provision of
this Agreement or any other contract, agreement, document or writing given
pursuant to or in connection with this Agreement shall be invalid or
unenforceable under applicable law, such part shall be ineffective to the extent
of such invalidity or unenforceability only, without in any way affecting the
remaining parts of such provisions or the remaining provisions of said contract,
agreement, document or writing.
Section 15.9 Headings. The headings of the sections and
subsections contained in this Agreement are inserted for convenience only and do
not form a part or affect the meaning, construction or scope thereof.
Section 15.10 Governing Law. This Agreement, the rights and
obligations of the parties hereto, and any claims or disputes relating thereto,
shall be governed by and construed under and in accordance with the laws of the
State of Delaware, without giving effect to the principles of conflicts of law
thereof.
Section 15.11 Signature in Counterparts. This Agreement may
be executed in separate counterparts, none of which need contain the
signatures of all parties, each of which shall be deemed to be an original,
and all of which taken together constitute one and the same instrument.
Section 15.12 No Prejudice. This Agreement has been
prepared by the parties hereto and the terms thereof shall not be construed
in favor of or against any party on account of its participation in such
preparation.
Section 15.13 Specific Performance. Each of the parties
hereto acknowledges and agrees that the other parties hereto would be
irreparably damaged in the event any of the provisions of this Agreement were
not performed in accordance with their specific terms or were otherwise
breached. Accordingly, each of the parties hereto agrees that they each shall
be entitled to an injunction or injunctions to prevent breaches of the
provisions of this Agreement and to enforce specifically this Agreement and
the terms and provisions hereof in any action instituted in any court of the
United States or any state thereof having subject matter
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jurisdiction, in addition to any other remedy to which any of the parties may be
entitled, at law or in equity.
Section 15.14 Obligations Under De La Rosa Consulting
Agreement. The parties recognize that the De La Rosa Consulting Agreement is an
integral part of the transactions contemplated by this Agreement. Consequently,
Buyer and De La Rosa each agree to perform their respective obligations under
the De La Rosa Consulting Agreement.
Section 15.15 Arbitration. Any controversy, dispute, or claim
of whatever nature arising out of, in connection with, or in relation to the
interpretation, performance or breach of this Agreement, including any claim
based on contract, tort, or statute, shall be resolved at the request of any
party to this Agreement, by final and binding arbitration administered by and in
accordance with the then existing Rules of Practice and Procedure of Judicial
Arbitration & Mediation Services, Inc., and judgment upon any award rendered by
the arbitrator(s) may be entered by any State or Federal Court having
jurisdiction thereof. The arbitration shall take place in San Francisco,
California. The prevailing party shall be awarded all of its legal fees,
disbursements and costs of arbitration.
Section 15.16 Guaranty. Radio Unica Corp., a Delaware
corporation, hereby guarantees the complete and timely performance of Buyer's
obligations set forth in this Agreement. If any default shall be made by Buyer
in such performance, Radio Unica Corp. will itself perform, or cause to be
performed, such obligation upon receipt of notice from Seller specifying in
summary form the default. Radio Unica Corp. hereby waives presentment, protests,
demand, action or delinquency in respect of the obligations of Buyer under this
Agreement. Radio Unica Corp. waives all notices of non-performance, notices of
protest, notices of dishonor and notices of acceptance of this guaranty. This
guaranty shall be deemed a continuing guaranty and the above consents and
waivers of Radio Unica Corp. shall remain in full force and effect until the
satisfaction in full of Buyer's obligations under this Agreement.
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IN WITNESS WHEREOF, each of the parties hereto has executed
this Stock Purchase Agreement, or has caused this Stock Purchase Agreement to be
duly executed and delivered in its name on its behalf, all as of the day and
year first above written.
COMPANY
ORO SPANISH BROADCASTING, INC.
By: /s/ Rene De La Rosa
----------------------------------------
Name: Rene De La Rosa
Title: President and General Manager
DE LA ROSA
/s/ Rene De La Ros
----------------------------------------
Rena De La Rosa
BUYER
RADIO UNICA OF SAN FRANCISCO, INC.
By:
-----------------------------------------
Name: Joaquin F. Blaya
Title: Chairman and Chief Executive Officer
WITH REGARD TO SECTION 15.16 ONLY:
RADIO UNICA CORP.
By:
-----------------------------------------
Name: Joaquin F. Blaya
Title: Chairman and Chief Executive Officer
<PAGE>
IN WITNESS WHEREOF, each of the parties hereto has executed
this Stock Purchase Agreement, or has caused this Stock Purchase Agreement to be
duly executed and delivered in its name on its behalf, all as of the day and
year first above written.
COMPANY
ORO SPANISH BROADCASTING, INC.
By:
-------------------------------------
Name: Rene De La Rosa
Title: President and General Manager
DE LA ROSA
-----------------------------------------
Rena De La Rosa
BUYER
RADIO UNICA OF SAN FRANCISCO, INC.
By: /s/ Joaquin F. Blaya
------------------------------------
Name: Joaquin F. Blaya
Title: Chairman and Chief Executive Officer
WITH REGARD TO SECTION 15.15 ONLY:
RADIO UNICA CORP.
By: /s/ Joaquin F. Blaya
----------------------------------------------
Name: Joaquin F. Blaya
Title: Chairman and Chief Executive Officer
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Exhibit 10.16
ASSET PURCHASE AGREEMENT
DATED MAY 20, 1998
BY AND AMONG
RADIO UNICA CORPORATION,
SINCLAIR RADIO OF LOS ANGELES, INC.
AND
SINCLAIR RADIO OF LOS ANGELES LICENSEE, INC.
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TABLE OF CONTENTS
PAGE
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ARTICLE I - CERTAIN DEFINITIONS............................................1
1.1 Terms Defined in this Section..................................1
1.2 Terms Defined Elsewhere in this Agreement......................4
1.3 Rules of Construction..........................................5
ARTICLE II - EXCHANGE AND TRANSFER OF ASSETS;
ASSET VALUE...............5
2.1 Agreement to Exchange and Transfer.............................5
2.2 Excluded Assets................................................6
2.3 Purchase Price.................................................6
2.3.1 Prorations.............................................6
2.3.2 Manner of Determining Adjustments......................7
2.4 Payment of Purchase Price......................................8
2.4.1 Payment of Estimated Purchase Price At Closing.........8
2.4.2 Payments to Reflect Adjustments........................8
2.4.3 Assumption of Liabilities and Obligations..............8
ARTICLE III - REPRESENTATIONS AND WARRANTIES
OF SELLER...................................................9
3.1 Organization and Authority of Seller...........................9
3.2 Authorization and Binding Obligation...........................9
3.3 Absence of Conflicting Agreements; Consents....................9
3.4 Governmental Licenses; FCC Matters............................10
3.5 Real Property.................................................10
3.6 Tangible Personal Property....................................11
3.7 Contracts.....................................................11
3.8 Intangibles...................................................12
3.9 Title to Properties...........................................12
3.10 Financial Information........................................12
3.11 Taxes........................................................12
3.12 Insurance....................................................13
3.13 Reports......................................................13
3.14 Personnel and Employee Benefits...............................13
3.14.1 Employees and Compensation...........................13
3.14.2 Pension Plans........................................14
3.14.3 Welfare Plans........................................14
3.14.4 Benefit Arrangements.................................14
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3.14.5 Multiemployer Plans..................................14
3.15 Labor Relations..............................................14
3.16 Claims and Legal Actions.....................................15
3.17 Environmental Matters........................................15
3.18 Compliance with Laws.........................................16
3.19 Conduct of Business in Ordinary Course.......................17
3.20 Transactions with Affiliates.................................17
3.21 Broker.......................................................17
ARTICLE IV - REPRESENTATIONS AND WARRANTIES
OF BUYER....................................................18
4.1 Organization, Standing and Authority..........................18
4.2 Authorization and Binding Obligation..........................18
4.3 Absence of Conflicting Agreements and Required Consents.......18
4.4 Brokers.......................................................18
4.5 Qualification of Buyer........................................18
4.6 Availability of Funds.........................................19
4.7 No Outside Reliance...........................................19
ARTICLE V - OPERATION OF THE STATION PRIOR
TO CLOSING..................................................19
5.1 Contracts.....................................................20
5.2 Compensation..................................................20
5.3 Encumbrances..................................................20
5.4 Dispositions..................................................20
5.5 Access to Information.........................................20
5.6 Insurance.....................................................20
5.7 Licenses......................................................20
5.8 Obligations...................................................21
5.9 No Inconsistent Action........................................21
5.10 Maintenance of Assets........................................21
5.11 Consents.....................................................21
5.12 Books and Records............................................21
5.13 Notification.................................................21
5.14 Compliance with Laws.........................................21
ARTICLE VI - SPECIAL COVENANTS AND AGREEMENTS.............................21
6.1 FCC Consent .........................21
6.2 Hart-Scott-Rodino.............................................22
6.3 Risk of Loss..................................................22
6.4 Confidentiality...............................................22
6.5 Cooperation...................................................22
6.6 Control of the Station........................................23
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6.7 Title Insurance and Surveys...................................23
6.7.1 Title Insurance on Owned Property.....................23
6.7.2 General Requirements as to Title
Insurance Policies................................23
6.7.3 Surveys...............................................23
6.7.4 Associated Fees and Costs.............................24
6.8 Allocation of Purchase Price..................................24
6.9 Access to Books and Records...................................24
6.10 Purchase of Promissory Note..................................24
6.11 Time Brokerage Agreement.....................................24
6.12 Public Announcements.........................................25
6.13 FCC Compliance..............................................25
ARTICLE VII - CONDITIONS TO OBLIGATIONS OF
BUYER AND SELLER...........................................25
7.1 Conditions to Obligations of Buyer............................25
7.1.1 Representations and Warranties........................25
7.1.2 Covenants and Conditions..............................25
7.1.3 Consents..............................................25
7.1.4 FCC Consent...........................................26
7.1.5 Governmental Authorizations...........................26
7.1.6 Title Reports and Surveys.............................26
7.1.7 Tax, Lien and Judgment Searches.......................26
7.1.8 Deliveries............................................26
7.1.9 Legal Proceedings.....................................26
7.2 Conditions to Obligations of Seller...........................26
7.2.1 Representations and Warranties........................26
7.2.2 Covenants and Conditions..............................26
7.2.3 FCC Consent...........................................26
7.2.4 Deliveries............................................27
ARTICLE VIII - CLOSING AND CLOSING DELIVERIES.............................27
8.1 Closing.......................................................27
8.1.1 Closing Date..........................................27
8.1.2 Closing Place.........................................27
8.2 Deliveries by Seller..........................................28
8.2.1 Conveyancing Documents................................28
8.2.2 Officer's Certificate.................................28
8.2.3 Secretary's Certificate........................28
8.2.4 Consents..............................................28
8.2.5 Licenses, Contracts and Business Records..............29
8.2.6 UCC Report............................................29
8.2.7 Other Documents.......................................29
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8.3 Deliveries by Buyer...........................................29
8.3.1 Closing Payment.......................................29
8.3.2 Officer's Certificate.................................29
8.3.3 Secretary's Certificate...............................29
8.3.4 Assumption Agreements.................................29
8.3.5 Other Documents.......................................30
ARTICLE IX - TERMINATION..................................................30
9.1 Termination by Seller.........................................30
9.1.1 Conditions............................................30
9.1.2 Judgments.............................................30
9.1.3 FCC Hearing Designation...............................30
9.1.4 Dropdead Date.........................................30
9.2 Termination by Buyer..........................................30
9.2.1 Conditions............................................30
9.2.2 Judgments.............................................30
9.2.3 Interruption of Service...............................30
9.2.4 FCC Hearing Designation...............................30
9.2.5 Dropdead Date.........................................30
9.3 Rights on Termination.........................................30
9.4 Specific Performance..........................................31
9.5 Liquidated Damages............................................31
9.6 Attorneys' Fees...............................................31
ARTICLE X - SURVIVAL OF REPRESENTATIONS AND WARRANTIES;
INDEMNIFICATION; CERTAIN REMEDIES.........................................31
10.1 Survival.....................................................31
10.2 Indemnification by Seller....................................32
10.3 Indemnification by Buyer.....................................32
10.4 Procedure for Indemnification................................33
10.5 Certain Limitations..........................................34
ARTICLE XI - MISCELLANEOUS................................................34
11.1 Fees and Expenses............................................34
11.2 Notices......................................................34
11.3 Benefit and Assignment.......................................35
11.4 Further Assurances...........................................36
11.5 GOVERNING LAW................................................36
11.6 Entire Agreement.............................................36
11.7 Waiver of Compliance; Consents...............................36
11.8 Counterparts.................................................36
11.9 Severability.................................................36
11.10 Headings....................................................36
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ASSET PURCHASE AGREEMENT
This ASSET PURCHASE AGREEMENT (this "Agreement") is dated as of May 20,
1998, by and among Sinclair Radio of Los Angeles, Inc., a Maryland corporation
("Sinclair"), Sinclair Radio of Los Angeles Licensee, Inc., a Delaware
corporation ("Licensee" and together with Sinclair, "Seller"), and Radio Unica
Corporation, a Delaware corporation ("Buyer").
R E C I T A L S:
A. Seller owns that certain radio station KBLA (AM), licensed to Santa Monica,
California (the "Station").
B. Seller desires to sell, and Buyer desires to purchase, substantially all of
the assets of the Station, on the terms and conditions hereinafter set forth.
A G R E E M E N T S:
In consideration of the above recitals and of the mutual agreements and
covenants contained in this Agreement, the parties to this Agreement, intending
to be bound legally, agree as follows:
ARTICLE I:
CERTAIN DEFINITIONS.
1.1 Terms Defined in this Section. The following terms, as used in this
Agreement, have the meanings set forth in this Section:
"Accounts Receivable" means the rights of Seller as of the Closing Date to
payment for the sale of advertising time and other goods and services by the
Station prior to the Closing Date.
"Affiliate" means, with respect to any Person, (a) any other Person that,
directly or indirectly through one or more intermediaries, controls, is
controlled by, or is under common control with such Person, or (b) an officer or
director of an Affiliate of such Person within the meaning of clause (a) of this
definition. For purposes of clause (a) of this definition, (i) a Person shall be
deemed to control another Person if such Person (A) has sufficient power to
enable such Person to elect a majority of the board of directors of such Person,
or (B) owns a majority of the beneficial interests in income and capital of such
Person; and (ii) a Persons shall be deemed to control any partnership of which
such Person is a general partner.
"Assets" means the assets to be transferred or otherwise conveyed by Seller to
Buyer under this Agreement, as specified in Section 2.1.
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"Assumed Contracts" means (a) all Contracts, (b) contracts with advertisers for
the sale of advertising time or production services for cash at rates consistent
with past practices, (c) any contracts entered into by Seller between the date
of this Agreement and the Closing Date in compliance with Section 5.1 and (d)
any other Contracts entered into by Seller between the date of this Agreement
and the Closing Date that Buyer agrees in writing to assume.
"Closing" means the consummation of the exchange and acquisition of the Assets
pursuant to this Agreement in accordance with the provisions of Section 8.1.
"Closing Date" means the date on which the Closing occurs, as determined
pursuant to Section 8.1.1.
"Code" means the Internal Revenue Code of 1986, as amended.
"Communications Act" means the Communications Act of 1934, as amended.
"Consents" means the consents, permits, or approvals of government authorities
and other third parties necessary to transfer the Assets to Buyer or otherwise
to consummate the transactions contemplated by this Agreement.
"Contracts" means all contracts, leases, non-governmental licenses and other
agreements (including leases for personal or real property and employment
agreements), written or oral (including any amendments and other modifications
thereto) to which Seller is a party or that are binding upon Seller and that
relate to or affect the Assets or the business or operations of the Station, and
that are in effect on the date of this Agreement.
"Effective Time" means 12:01 a.m., eastern standard time, on the Closing Date.
"ERISA" means the Employee Retirement Income Security Act of 1974, as amended.
"Escrow Deposit" means the sum of Two Million One Hundred Thousand Dollars
($2,100,000) which is being deposited by Buyer with First Union National Bank
(the "Escrow Agent") on the date hereof to secure the obligations of Buyer to
close under this Agreement, with (i) such deposit being held by the Escrow Agent
in accordance with the Escrow Agreement executed among Buyer, Seller and Escrow
Agent on the date hereof, and (ii) the Escrow Deposit, and all earnings thereon,
being paid to Buyer upon Seller's receipt of the Estimated Purchase Price (as
defined in Section 2.4.1 hereof).
"FCC" means the Federal Communications Commission.
"FCC Consent" means action by the FCC granting its consent to the assignment of
the FCC Licenses by Seller to Buyer as contemplated by this Agreement.
"FCC Licenses" means those licenses, permits and authorizations issued by the
FCC to Seller in connection with the business and operations of the Station.
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"HSR" means the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as
amended, and all Laws promulgated pursuant thereto or in connection therewith.
"Intangibles" means all copyrights, trademarks, trade names, service marks,
service names, licenses, patents, permits, jingles, proprietary information,
technical information and data, machinery and equipment warranties, and other
similar intangible property rights and interests (and any goodwill associated
with any of the foregoing) applied for, issued to, or owned by Seller or under
which Seller is licensed or franchised and that are used in the business and
operations of the Station, together with any additions thereto between the date
of this Agreement and the Closing Date.
"Licenses" means all licenses, permits, construction permits and other
authorizations issued by the FCC, the Federal Aviation Administration, or any
other federal, state, or local governmental authorities to Seller, currently in
effect and used in connection with the conduct of the business or operations of
the Station, together with any additions thereto between the date of this
Agreement and the Closing Date.
"LMA" means a local marketing agreement or similar arrangement whereby a party
thereto acquires the right to program a television or radio station from the
licensee of such station.
"Material Contract" means those Assumed Contracts that are designated on
Schedule 3.7 as "Material Contracts."
"Permitted Liens" means (a) liens and encumbrances of a landlord, or other
statutory lien not yet due and payable, or a landlord's liens arising in the
ordinary course of business, (b) liens and encumbrances arising in connection
with equipment or maintenance financing or leasing under the terms of the
Contracts set forth on the Schedules which have been made available to Buyer,
(c) liens and encumbrances arising pursuant to the terms of leases on Real
Property which are subject to any lease or sublease to a third party, (d) liens
and encumbrances for Taxes not yet due and payable or which are being contested
in good faith and by appropriate proceedings if adequate reserves with respect
thereto are maintained on Seller's books in accordance with generally accepted
accounting principles and (e) liens and encumbrances that do not materially
detract from the value of any of the Assets or materially interfere with the use
thereof as currently used.
"Person" means an individual, corporation, association, partnership, joint
venture, trust, estate, limited liability company, limited liability
partnership, or other entity or organization.
"Real Property" means all real property, and all buildings and other
improvements thereon, whether or not owned or held by Seller, used or useful in
the business or operations of the Station.
"Real Property Interests" means all interests in real property, including fee
estates, leaseholds and subleaseholds, purchase options, easements, licenses,
rights to access, and rights of way, and all buildings and other improvements
thereon, owned or held by Seller that are used in the business or operations of
the Station, together with any additions thereto between the date of this
Agreement and the Closing Date.
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"TBA" means the Time Brokerage Agreement, dated as of August 1, 1997, by and
between Seller (as the ultimate assignee of Keymarket of Los Angeles, Inc.) and
Radio Korea U.S.A., Inc. ("Radio Korea").
"Tangible Personal Property" means all machinery, equipment, tools, vehicles,
furniture, leasehold improvements, office equipment, plant, inventory, spare
parts and other tangible personal property owned or held by Seller that is used
in the conduct of the business or operations of the Station, together with any
additions thereto between the date of this Agreement and the Closing Date.
"Tax" means any federal, state, local, or foreign income, gross receipts,
windfall profits, severance, property, production, sales, use, license, excise,
franchise, capital, transfer, employment, withholding, or other tax or
governmental assessment, together with any interest, additions, or penalties
with respect thereto and any interest in respect of such additions or penalties.
"Tax Return" means any tax return, declaration of estimated tax, tax report or
other tax statement, or any other similar filing required to be submitted to any
governmental authority with respect to any Tax.
1.2 Terms Defined Elsewhere in this Agreement. For purposes of this Agreement,
the following terms have the meanings set forth in the sections indicated:
<TABLE>
<CAPTION>
Term Section
- ---- --------
<S> <C>
Benefit Arrangement Section 3.14.1
Buyer Preamble
Claimant Section 10.4.1
Employees Section 3.14.1
ERISA Affiliate Section 3.14.2
Estimated Purchase Price Section 2.4.1
Financial Statements Section 3.10
Indemnifying Party Section 10.4.1
Multiemployer Plan Section 3.14.1
Outside Closing Date Section 8.1.1
Pension Plan Section 3.14.1
Purchase Price Section 2.3
Seller Preamble
Station Recitals
Welfare Plan Section 3.14.1
</TABLE>
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1.3 Rules of Construction. Words used in this Agreement, regardless of the
gender and number specifically used, shall be deemed and construed to include
any other gender and any other number as the context requires. As used in this
Agreement, the word "including" is not limiting, and the word "or" is not
exclusive. Except as specifically otherwise provided in this Agreement in a
particular instance, a reference to a Section or Schedule is a reference to a
Section of this Agreement or a Schedule hereto, and the terms "hereof,"
"herein," and other like terms refer to this Agreement as a whole, including the
Schedules to this Agreement, and not solely to any particular part of this
Agreement. The descriptive headings in this Agreement 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.
ARTICLE II
EXCHANGE AND TRANSFER OF ASSETS; ASSET VALUE.
2.1 Agreement to Exchange and Transfer. Subject to the terms and conditions
set forth in this Agreement and subject to the terms of the TBA, Seller hereby
agrees to transfer, convey, assign and deliver to Buyer on the Closing Date, and
Buyer agrees to acquire, all of Seller's right, title and interest in the
tangible and intangible assets used in connection with the conduct of the
business or operations of the Station, together with any additions thereto
between the date of this Agreement and the Closing Date, but excluding the
assets described in Section 2.2, free and clear of any claims, liabilities,
security interests, mortgages, liens, pledges, conditions, charges, or
encumbrances of any nature whatsoever (other than Permitted Liens), including,
without limitation, the following:
(a) The Tangible Personal Property;
(b) The Real Property Interests;
(c) The Licenses;
(d) The Assumed Contracts;
(e) The Intangibles and all intangible assets of Seller
relating to the Station that are not specifically included within the
Intangibles, including the goodwill of the Station, if any;
(f) All of Seller's proprietary information, technical
information and data, machinery and equipment warranties, maps, computer discs
and tapes, plans, diagrams, blueprints and schematics, including filings with
the FCC relating to the business and operation of the Station;
(g) All choses in action of Seller relating to the Station to
the extent they relate to the period after the Effective Time; and
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(h) All books and records relating to the business or
operations of the Station, including executed copies of the Assumed Contracts,
and all records required by the FCC to be kept by the Station.
2.2 Excluded Assets. The Assets shall exclude the following:
(a) Seller's cash on hand, cash equivalents or deposits held
by Seller, all interest payable in connection therewith and any of Seller's
interest in its short-term investments, bank balances and rights in and to
Seller's bank accounts;
(b) All Accounts Receivable;
(c) All tangible personal property disposed of or consumed in
the ordinary course of business;
(d) All rights and claims of Seller to the extent they relate
to the period prior to the Effective Time, whether mature, contingent or
otherwise, against third parties relating to the Assets or the Stations whether
in tort, contract or otherwise;
(e) All rights to the name "Sinclair" and any logo or
variation thereof;
(f) Any insurance policies, promissory notes, amounts due from
employees, bonds, letters of credit, certificates of deposit, or other similar
items, and any cash surrender value in regard thereto;
(g) Any pension, profit-sharing, or employee benefit plans,
including all of Seller's interest in any Welfare Plan, Pension Plan or Benefit
Arrangement (each as defined in Section 3.14);
(h) All tax returns and supporting materials, all original
financial statements and supporting materials, all books and records that Seller
is required by law to retain, all of Seller's organizational documents and
corporate books and records, and all records of Seller relating to the sale of
the Assets; and
(i) Any interest in and to any refunds of federal, state, or
local franchise, income, or other taxes for periods prior to the Closing Date.
2.3 Purchase Price. The purchase price of the Assets (the "Purchase Price")
shall be Twenty-One Million Dollars ($21,000,000), adjusted as provided below.
2.3.1 Prorations. The Purchase Price shall be increased or
decreased as required to effectuate the proration of revenues and expenses.
Subject to the provisions of the TBA, all revenues and all expenses arising from
the operation of the Station, including tower rental, business and license fees,
utility charges, real and personal property taxes and assessments levied against
the Assets, property and equipment rentals, applicable copyright or other fees,
sales and service charges, taxes (except for taxes arising from the transfer of
the Assets under this Agreement), employee compensation, including wages,
salaries, accrued sick leave and severance pay, but excluding earned vacation
time, and similar prepaid and deferred items, shall
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be prorated between Buyer and Seller in accordance with the principle that
Seller shall receive all revenues and shall be responsible for all expenses,
costs and liabilities allocable to the operations of each Station for the period
prior to the Effective Time for such Station, and Buyer shall receive all
revenues and shall be responsible for all expenses, costs and obligations
allocable to the operations of the Station for the period after the Effective
Time, subject to the following:
(a) There shall be no adjustment for, and Seller shall remain
solely liable with respect to, any obligation or liability not being assumed by
Buyer in accordance with Section 2.4.3. An adjustment and proration shall be
made in favor of Buyer to the extent that Buyer assumes any liability under any
Assumed Contract to refund (or to credit against payments otherwise due) any
security deposit or similar prepayment paid to Seller by any lessee or other
third party.
(b) The Purchase Price shall be reduced to the extent the
value of any advertising time remaining to be run by the Station under its trade
or barter agreements as of the Effective Time exceeds $15,000.
(c) Seller shall be responsible for the payment of all
compensation and commissions owed to the Station's employees up to the Effective
Time.
2.3.2 Manner of Determining Adjustments. The Purchase Price,
taking into account the adjustments and prorations pursuant to Section 2.3.1,
will be determined in accordance with the following procedures:
(a) Seller shall prepare and deliver to Buyer not later than
five days before the Closing Date a preliminary settlement statement which shall
set forth Seller's good faith estimate of the adjustments to the Purchase Price
under Section 2.3.1. The preliminary settlement statement shall (A) contain all
information reasonably necessary to determine the adjustments to the Purchase
Price under Section 2.3.1, to the extent such adjustments can be determined or
estimated as of the date of the preliminary settlement statement, and such other
information as may be reasonably requested by Buyer, and (B) be certified by
Seller to be true and complete to Seller's knowledge as of the date thereof.
(b) Not later than ninety days after the Closing Date, Buyer
will deliver to Seller a statement setting forth Buyer's determination of the
Purchase Price and the calculation thereof pursuant to Section 2.3.1. Buyer's
statement (A) shall contain all information reasonably necessary to determine
the adjustments to the Purchase Price under Section 2.3.1, and such other
information as may be reasonably requested by Seller, and (B) shall be certified
by Buyer to be true and complete to Buyer's knowledge as of the date thereof. If
Seller disputes the amount of the Purchase Price determined by Buyer, it shall
deliver to Buyer within thirty days after its receipt of Buyer's statement a
statement setting forth its determination of the amount of the Purchase Price.
If Seller notifies Buyer of its acceptance of Buyer's statement, or if Seller
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fails to deliver its statement within the thirty-day period specified in the
preceding sentence, Buyer's determination of the Purchase Price shall be
conclusive and binding on the parties as of the last day of the thirty-day
period.
(c) Buyer and Seller shall use good faith efforts to resolve
any dispute involving the determination of the Purchase Price. If the parties
are unable to resolve the dispute within fifteen days following the delivery of
Seller's statement pursuant to Section 2.3.2(b), Buyer and Seller shall jointly
designate an independent certified public accountant, who shall be knowledgeable
and experienced in the operation of radio broadcasting stations, to resolve the
dispute. If the parties are unable to agree on the designation of an independent
certified public accountant, the selection of the accountant to resolve the
dispute shall be submitted to arbitration in accordance with the commercial
arbitration rules of the American Arbitration Association. The accountant's
resolution of the dispute shall be final and binding on the parties, and a
judgment may be entered thereon in any court of competent jurisdiction. Any fees
of this accountant, and, if necessary, for arbitration to pick such accountant,
shall be split equally between the parties.
2.4 Payment of Purchase Price. The Purchase Price shall be paid as
follows:
2.4.1 Payment of Estimated Purchase Price At Closing. The sum
of Twenty-One Million Dollars ($21,000,000), adjusted by the estimated
adjustments as set forth in Seller's preliminary settlement statement pursuant
to Section 2.3.2(a), is referred to as the "Estimated Purchase Price." At the
Closing, Buyer shall pay or cause to be paid to Seller the Estimated Purchase
Price by federal wire transfer of same-day funds pursuant to wire instructions
which wire instructions shall be delivered to Buyer by Seller at least two
business days prior to the Closing Date.
2.4.2 Payments to Reflect Adjustments.
(a) If the Purchase Price as finally determined pursuant to
Section 2.3.2 exceeds the Estimated Purchase Price, Buyer shall pay to Seller,
in immediately available funds within five business days after the date on which
the Purchase Price is determined pursuant to Section 2.3.2, the difference
between the Purchase Price and the Estimated Purchase Price.
(b) If the Purchase Price as finally determined pursuant to
Section 2.3.2 is less than the Estimated Purchase Price, Seller shall pay to
Buyer, in immediately available funds within five business days after the date
on which the Purchase Price is determined pursuant to Section 2.3.2, the
difference between the Purchase Price and the Estimated Purchase Price.
2.4.3 Assumption of Liabilities and Obligations. As of the
Closing Date and subject to Buyer's right to reject the assignment of the TBA,
Buyer shall assume and undertake to pay, discharge and perform all obligations
and liabilities of Seller under the Licenses, the TBA and the other Assumed
Contracts to the extent that either (a) the obligations and liabilities relate
to the time after the Effective Time with respect to the Station or (b) the
Purchase Price was reduced pursuant to Section 2.3.1 as a result of the
proration of such obligations and liabilities. Buyer shall not assume any other
obligations or liabilities of Seller, including, without limitation, (i) any
obligations or liabilities under the Assumed Contracts relating to the period
prior to the Effective Time except insofar as an adjustment therefor is made in
favor of Buyer
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under Section 2.3.1, (ii) any claims or pending litigation or proceedings
relating to the operation of the Station prior to the Closing, (iii) any
obligations or liabilities of Seller under any management incentive, employee
pension, retirement, or other benefit plans, (iv) any obligations or liabilities
of Seller under any collective bargaining agreements, (v) any obligation to any
employee of the Station for severance benefits, vacation time, or sick leave
accrued prior to the Closing Date, (vi) any credit agreements, note purchase
agreements, indentures, capital leases, or other financing arrangements, or
(vii) any obligations or liabilities caused by, arising out of, or resulting
from any action or omission of Seller prior to the Closing, and all such
obligations and liabilities shall remain and be the obligations and liabilities
solely of Seller.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF SELLER.
Seller represents and warrants to Buyer as follows:
3.1 Organization and Authority of Seller. Sinclair is a corporation duly
organized, validly existing and in good standing under the laws of the State of
Maryland. Licensee is a corporation duly organized, validly existing and in good
standing under the laws of the State of Delaware. Each of Sinclair and Licensee
is qualified to do business and has the requisite corporate power and authority
to own, lease and operate its properties, to carry on its business in the State
of California, and to execute, deliver and perform this Agreement and the
documents contemplated hereby according to their respective terms. Neither
Sinclair nor Licensee is a participant in any joint venture or partnership with
any other Person with respect to any part of the operations of the Station or
any of the Assets. Except as a result of the TBA, Sinclair has not entered into
any other arrangement with any other Persons providing any rights to operate the
Station.
3.2 Authorization and Binding Obligation. The execution, delivery and
performance of this Agreement by each of Sinclair and Licensee have been duly
authorized by all necessary corporate action on the part of each of Sinclair and
Licensee. This Agreement has been duly executed and delivered by each of
Sinclair and Licensee and constitutes its legal, valid and binding obligation,
enforceable against it in accordance with its terms except as the enforceability
of this Agreement may be affected by bankruptcy, insolvency, or similar laws
affecting creditors' rights generally and by judicial discretion in the
enforcement of equitable remedies.
3.3 Absence of Conflicting Agreements; Consents. Subject to obtaining the
Consents listed on Schedule 3.3, the FCC Consent and filings required under HSR,
the execution, delivery and performance by each of Sinclair and Licensee of this
Agreement and the documents contemplated hereby (with or without the giving of
notice, the lapse of time, or both): (a) do not require the consent of any third
party; (b) will not conflict with any provision of the Articles of Incorporation
or Bylaws of either of Sinclair or Licensee; (c) will not conflict with, result
in a breach of, or constitute a default under any law, judgment, order,
ordinance, injunction, decree, rule, regulation, or ruling of any court or
governmental instrumentality specifically applicable to either of Sinclair or
Licensee; (d) will not conflict with, constitute grounds for termination of,
result in a breach of, constitute a default under, or accelerate or permit the
acceleration of any performance required by the terms of, any material
agreement, instrument, license, or permit to which either Sinclair or Licensee
is a party or by which either Sinclair or Licensee may be bound legally; and (e)
will not create any
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claim, liability, mortgage, lien, pledge, condition, charge, or encumbrance of
any nature whatsoever upon any of the Assets other than Permitted Liens. Except
for the FCC Consent provided for in Section 3.4, filings required under HSR and
the other Consents described in Schedule 3.3, no consent, approval, permit, or
authorization of, or declaration to, or filing with any governmental or
regulatory authority or any other third party is required (a) to consummate this
Agreement and the transactions contemplated hereby, or (b) to permit Seller to
transfer and convey the Assets to Buyer.
3.4 Governmental Licenses; FCC Matters.
(a) Schedule 3.4 includes a true and complete list of the
Licenses. Seller has made available to Buyer true and complete copies of the
Licenses (including any amendments and other modifications thereto). The
Licenses have been validly issued, and Licensee is the authorized legal holder
thereof. The Licenses listed on Schedule 3.4 comprise all of the licenses,
permits and other authorizations required from any governmental or regulatory
authority for the lawful conduct in all material respects of the business and
operations of the Station in the manner and to the full extent they are now
conducted, and none of the Licenses is subject to any unusual or special
restriction or condition that could reasonably be expected to limit the full
operation of the Station as now operated. The Licenses are in full force and
effect, and the conduct of the business and operations of the Station is in
accordance therewith. Except as set forth on Schedule 3.4, no application,
action or proceeding is pending for the renewal or modification of any of the
Licenses and, except for actions or proceedings affecting radio broadcast
stations generally, no application, complaint, action or proceeding is pending
or, to Seller's knowledge, threatened that may result in the (i) denial of an
application for renewal by the FCC or other granting authority, (ii) the
revocation, modification, non-renewal or suspension of any of the Licenses,
(iii) the issuance of any cease-an-desist orders, or (iv) the imposition of any
administrative or judicial sanction with respect to the Station; provided, to
the extent any application, action or proceeding has been brought by a person or
entity which is not an Affiliate of Seller, the foregoing representation is
provided only to the knowledge of Seller.
(b) Except as set forth on Schedule 3.4, the Station (i) is
being operated in all material respects in accordance with the specifications of
the applicable FCC Licenses as seasonal variances allow and (ii) is being
operated in material compliance in all respects with all requirements of the
Communications Act. Sellers have complied in all material respects with all
requirements of the FCC and the FAA with respect to the Station's antenna
structures.
(c) Except as set forth on Schedule 3.4, Seller knows of no
facts, conditions or events relating to Seller or the Station that might cause
the FCC or other granting authority to have a legally valid basis to deny the
assignment of the Licenses as provided for in this Agreement or not to renew any
of the Licenses in the ordinary course.
3.5 Real Property. Schedule 3.5 contains a complete and accurate description
of all Real Property and all Real Property Interests (including street address,
legal description (where known), owner, and Seller's use thereof). The Real
Property Interests listed on Schedule 3.5 comprise all interests in real
property necessary to conduct the business and operations of the Station as now
conducted. Seller has good and marketable fee simple title to all fee estates
included in the Real Property Interests and good title to all other Real
Property Interests, in each case free and clear of all liens, mortgages,
pledges, covenants, easements, restrictions, encroachments, leases, charges, and
other claims and encumbrances, except for Permitted Liens. With
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respect to each leasehold or subleasehold interest included in the Real Property
Interests, so long as Seller fulfills its obligations under the lease therefor,
Seller has enforceable rights to nondisturbance and quiet enjoyment against its
lessor or sublessor, and, to the knowledge of Seller, no third party holds any
interest in the leased premises with the right to foreclose upon Seller's
leasehold or subleasehold interest. Seller has full legal and practical access
to all of the Real Property. To Seller's knowledge, all Real Property (including
the improvements thereon) (a) is in good condition and repair consistent with
its present use, (b) is available for immediate use in the conduct of the
business and operations of the Station, and (c) complies in all material
respects with all applicable building or zoning codes and the regulations of any
governmental authority having jurisdiction, except to the extent that the
current use by Seller, while permitted, constitutes or would constitute a
"nonconforming use" under current zoning or land use regulations and except to
the extent the failure to satisfy the forgoing statements would not have a
material adverse effect on the business or operations of the Station. To
Seller's knowledge, all water, sewer, gas, electric, telephone, drainage and
other utility equipment, facilities and services required by law or necessary
for the operation of the Real Property as it is now improved and operated are
installed and connected pursuant to valid permits, are sufficient to service the
Real Property and are in good operating condition.
3.6 Tangible Personal Property. Schedule 3.6 lists all material items of
Tangible Personal Property. The Tangible Personal Property listed on Schedule
3.6 comprises all material items of tangible personal property necessary to
conduct the business and operations of the Station as now conducted. Except as
described in Schedule 3.6, Seller owns and has good title to each item of
Tangible Personal Property and none of the Tangible Personal Property owned by
Seller is subject to any security interest, mortgage, pledge, conditional sales
agreement, or other lien or encumbrance, except for Permitted Liens. With
allowance for normal repairs, maintenance, wear and obsolescence, each material
item of Tangible Personal Property is in good operation condition and repair and
is available for immediate use in the business and operations of the Station,
except where such failure or lack of availability would not have a material and
adverse effect on the business or operations of the Station. All items of
transmitting and studio equipment included in the Tangible Personal Property (a)
have been maintained in a manner consistent with generally accepted standards of
good engineering practice, and (b) will permit the Station and any unit
auxiliaries thereto to operate in accordance with the material terms of the FCC
Licenses and the rules and regulations of the FCC and in all material respects
with all other applicable federal, state and local statutes, ordinances, rules
and regulations.
3.7 Contracts. Schedule 3.7 is a true and complete list of all Contracts
except Contracts which are not material to the business and operations of the
Stations and Contracts with advertisers for production or the sale of
advertising time on the Station for cash at rates consistent with past
practices. Seller has delivered to Buyer true and complete copies of all written
Assumed Contracts, true and complete descriptions of all oral Assumed Contracts
(including any amendments and other modifications to such Contracts). Other than
the Contracts listed on Schedule 3.7 (and contracts relating to the Station
entered into by Radio Korea), Seller requires no contract, lease, or other
agreement to enable it to carry on its business in all material respects as now
conducted. All of the Contracts are in full force and effect and are valid,
binding and enforceable in accordance with their terms except as the
enforceability may be affected by bankruptcy, insolvency or similar laws
affecting creditors' rights generally and by judicial discretion in the
enforcement of equitable remedies. Seller is not aware of any intention by any
party to any Contract (a) to terminate such Contract or amend the terms thereof,
(b) to refuse to renew the Contract upon expiration of its term, or (c) to renew
the Contract
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upon expiration only on terms and conditions that are more onerous than those
now existing. Except for the need to obtain the Consents listed on Schedule 3.3,
the exchange and transfer of the Assets in accordance with this Agreement will
not affect the validity, enforceability, or continuation of any of the
Contracts. Seller, and, to the best of Seller's knowledge, the other parties
thereto, have complied in all material respects with all of the material
provisions of the Assumed Contracts and are not in default thereunder in any
material respect, and there has not occurred any event which (whether with or
without notice or lapse of time) would constitute such a default.
3.8 Intangibles. Schedule 3.8 is a true and complete list of all material
Intangibles (exclusive of Licenses listed in Schedule 3.4) that are required to
conduct the business and operations of the Station as now conducted, all of
which are valid and in good standing. Other than with respect to matters
generally affecting the radio broadcasting industry and not particular to
Seller, Seller has not received any notice or demand alleging that Seller is
infringing upon or otherwise acting adversely to any trademarks, trade names,
service marks, service names, copyrights, patents, patent applications,
know-how, methods, or processes owned by any other Person, and there is no claim
or action pending, or to the knowledge of Seller threatened, with respect
thereto.
3.9 Title to Properties. Except as disclosed in Schedule 3.9, Seller has
good and marketable title to the Assets subject to no mortgages, pledges, liens,
security interests, encumbrances, or other charges or rights of others of any
kind or nature except Permitted Liens.
3.10 Financial Information. Seller has furnished Buyer with true and complete
copies of unaudited financial statements of Seller containing a balance sheet
and statement of income as at and for the fiscal year ended December 31, 1997,
and an unaudited balance sheet and statement of income as at and for the three
months ended March 31, 1998 (collectively, the "Financial Statements"). The
Financial Statements have been prepared from the books and records of Seller,
have been prepared in a manner consistent with the audited consolidated
financial statements of Seller's ultimate corporate parent, Sinclair Broadcast
Group, Inc., accurately reflect the books, records and accounts of Seller, and
present fairly the financial condition of Seller as at their respective dates
and the results of operations for the periods then ended. None of the Financial
Statements understates the true costs and expenses of conducting the business or
operations of the Station as currently conducted by Seller or otherwise
inaccurately reflects the operations of the Station. The audited consolidated
financial statements of Sinclair Broadcast Group, Inc. have been prepared in
accordance with generally accepted accounting principles applied on a consistent
basis.
3.11 Taxes. Seller has filed or caused to be filed all Tax Returns that are
required to be filed with respect to the ownership and operation of the Station,
and, except as disclosed on Schedule 3.10, it has paid or caused to be paid all
Taxes shown on those returns or on any tax assessment received by it to the
extent that such Taxes have become due, or has set aside on its books adequate
reserves (segregated to the extent required by generally accepted accounting
principles) with respect thereto. There are no legal, administrative, or tax
proceedings pursuant to which Seller is or could be made liable for any Taxes,
penalties, interest, or other
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charges, the liability for which could extend to Buyer as transferee of the
business of the Station, and no event has occurred that could impose on Buyer
any transferee liability for any Taxes, penalties, or interest due or to become
due from Seller.
3.12 Insurance. Schedule 3.12 is a true and complete list of all insurance
policies of Seller. All policies of insurance listed in Schedule 3.12 are in
full force and effect. During the past three years, no insurance policy of
Seller or the Station has been canceled by the insurer and no application of
Seller for insurance has been rejected by any insurer.
3.13 Reports. All material returns, reports and statements that the Station is
currently required to file with the FCC, the Federal Aviation Administration or
any other governmental authority have been filed, and all reporting requirements
(including maintenance of a public inspection file) of the FCC, the Federal
Aviation Administration and all other governmental authorities have been
complied with in all material respects. All of such returns, reports and
statements, as filed, satisfy all applicable legal requirements.
3.14 Personnel and Employee Benefits.
3.14.1 Employees and Compensation. Schedule 3.14 contains a
true and complete list of all employees of Seller (collectively, the
"Employees") and a description of all compensation arrangements affecting them.
Schedule 3.14 also contains a true and complete list of all employee benefit
plans or arrangements applicable to the Employees, including any:
(a) "Employee welfare benefit plan," as defined in Section
3(1) of ERISA, that is maintained or administered by Seller or to which Seller
contributes or is required to contribute and that covers any Employee or under
which Seller has any liability (a "Welfare Plan");
(b) "Multiemployer pension plan," as defined in Section 3(37)
of ERISA, that is maintained or administered by Seller or to which Seller
contributes or is required to contribute and which covers any Employee or under
that Seller has any liability (a "Multiemployer Plan");
(c) "Employee pension benefit plan," as defined in Section
3(2) of ERISA (other than a Multiemployer Plan), to which Seller contributes or
is required to contribute (a "Pension Plan");
(d) Employee plan that is maintained in connection with any
trust described in Section 501(c)(9) of the Internal Revenue Code of 1986, as
amended; and
(e) Employment, severance, or other similar contract,
arrangement, or policy and each plan or arrangement (written or oral) providing
for insurance coverage (including any self-insured arrangements), workers'
compensation, disability benefits, supplemental unemployment benefits, vacation
benefits, or retirement benefits or for deferred compensation, profit-sharing,
bonuses, stock options, stock appreciation rights, stock purchases, or other
forms of incentive compensation or post-retirement insurance,
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compensation, or benefits that (A) is not a Welfare Plan, Pension Plan, or
Multiemployer Plan, (B) is entered into, maintained, contributed to, or required
to be contributed to by Seller or under which Seller has any liability, and (C)
covers any Employee (collectively, "Benefit Arrangements").
3.14.2 Pension Plans. Except as disclosed on Schedule 3.14,
Seller does not sponsor, maintain, or contribute to any Pension Plan. Each
Pension Plan disclosed on Schedule 3.14 complies currently and has been
maintained in compliance with its terms and, both as to form and in operation,
with the requirements prescribed by any statutes, order, rules and regulations
that are applicable to such plans, including ERISA and the Code. Neither the
Seller nor any trade or business under common control within the meaning of
Sections 414(b), (c), (m) or (o) of the Code ("ERISA Affiliate") has any
material liability to, or with respect to, any Pension Plan subject to the
minimum funding requirements of Section 302 of ERISA or Section 412 of the Code.
Neither Seller nor any ERISA Affiliate knows or has reason to know that any
Pension Plan is subject to any governmental audit or examination, and neither
Seller nor any ERISA Affiliate is subject to any action, suit, or claim with
respect to any Pension Plan. Neither Seller nor any ERISA Affiliate has engaged
in any transaction that could subject Seller to any material liability under
Section 4069 of ERISA. The transactions contemplated by this Agreement will not
subject Seller to any liability under Section 4069 of ERISA.
3.14.3 Welfare Plans. Each Welfare Plan complies currently and
has been maintained in material compliance with its terms and, both as to form
and in operation, in all material respects with the requirements prescribed by
any and all statutes, orders, rules and regulations that are applicable to such
plans, including ERISA and the Code. Seller does not sponsor, maintain, or
contribute to any Welfare Plan that provides health or death benefits to former
employees of the Station other than as required by Section 4980B of the Code.
3.14.4 Benefit Arrangements. Each Benefit Arrangement has been
maintained in substantial compliance with its terms and with the requirements
prescribed by all statutes, orders, rules and regulations that are applicable to
such Benefit Arrangement. Seller has no written contract prohibiting the
termination of any Employee.
3.14.5 Multiemployer Plans. Seller has not at any time been
a participant in any Multiemployer Plan.
3.15 Labor Relations. Except as set forth in Schedule 3.15, Seller is not a
party to or subject to any collective bargaining agreement or written or oral
employment agreement with any Employee. Seller has complied in all material
respects with all laws, rules and regulations relating to the employment of
labor, including those related to wages, hours, collective bargaining,
occupational safety, discrimination, and the payment of social security and
other payroll related taxes, and it has not received any notice alleging that it
has failed to comply with any such laws, rules, or regulations. No
controversies, disputes, or proceedings are pending or, to the knowledge of
Seller, threatened, between it and any Employee (singly or collectively). No
labor union or other collective bargaining unit represents or claims to
represent any of the employees of
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Seller. To the knowledge of Seller, there is no union campaign being conducted
to solicit cards from any Employees to authorize a union to represent any of the
employees of Seller or to request a National Labor Relations Board certification
election with respect to any Employees.
3.16 Claims and Legal Actions. Except for any FCC rulemaking proceedings
generally affecting the radio broadcasting industry and not particular to
Seller, there is no claim, legal action, counterclaim, suit, arbitration, or
other legal, administrative, or tax proceeding, nor any order, decree, or
judgment, in progress or pending, or to the knowledge of Seller threatened,
against or relating to Seller, the Assets, or the business or operations of the
Station, nor does Seller know of any basis for the same. In particular, but
without limiting the generality of the foregoing, there are no applications,
complaints, or proceedings pending or, to the knowledge of Seller, threatened
(a) before the FCC relating to the business or operations of the Station other
than rule making proceedings that affect the radio industry generally, (b)
before any federal or state agency relating to Seller involving charges of
illegal discrimination under any federal or state employment laws or
regulations, or (c) before any federal, state, or local agency relating to
Seller involving zoning issues under any federal, state, or local zoning law,
rule, or regulation.
3.17 Environmental Matters.
3.17.1 Seller has complied in all material respects with all
material laws, rules and regulations of all federal, state and local governments
(and all agencies thereof) concerning the environment, public health and safety,
and employee health and safety, and no charge, complaint, action, suit,
proceeding, hearing, claim, demand, or notice has been filed or, to Seller's
knowledge, commenced against Seller alleging any failure to comply with any such
law, rule, or regulation.
3.17.2 To Seller's knowledge, Seller has no liability (and
there is no reasonable basis related to Seller's past or present operations,
properties, or facilities for any present or future charge, complaint, action,
suit, proceeding, hearing, investigation, claim, or demand against Seller giving
rise to any such liability) under the Comprehensive Environmental Response,
Compensation and Liability Act, the Resource Conservation and Recovery Act, the
Federal Water Pollution Control Act, the Clean Air Act, the Safe Drinking Water
Act, the Toxic Substances Control Act, the Refuse Act, or the Emergency Planning
and Community Right-to-Know Act (each as amended) or any other law, rule, or
regulation of any federal, state, or local government (or agency thereof)
concerning release or threatened release of hazardous substances, public health
and safety, or pollution or protection of the environment.
3.17.3 To Seller's knowledge, Seller has no liability (and
Seller has not handled or disposed of any substance, arranged for the disposal
of any substance, or owned or operated any property or facility in any manner
that could reasonably be expected to form the basis for any present or future
charge, complaint, action, suit, proceeding, hearing, investigation, claim, or
demand (under the common law or pursuant to any statute) against Seller giving
rise to any such liability) for damage to any site, location, or body of water
(surface of subsurface) or for illness or personal injury.
3.17.4 Seller has no liability (and there is no reasonable
basis for any present or future charge, complaint, action, suit, proceeding,
hearing, investigation, claim, or demand against Seller giving rise to any such
liability) under the Occupational Safety and Health Act, as amended, or under
any other law, rule, or regulation of any federal, state, or local government
(or agency thereof) concerning employee health and safety.
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3.17.5 To Seller's knowledge, Seller has no liability (and
Seller has not exposed any employee to any substance or condition that could
reasonably be expected to form the basis for any present or future charge,
complaint, action, suit, proceeding, hearing, investigation, claim, or demand
(under the common law or pursuant to statute) against Seller giving rise to any
such liability) for any illness or personal injury to any employee.
3.17.6 Seller has obtained and been in material compliance
with all of the terms and conditions of all material permits, licenses and other
authorizations that are required under, and to Seller's knowledge, has complied
with all other limitations, restrictions, conditions, standards, prohibitions,
requirements, obligations, schedules and timetables that are contained in, all
federal, state and local laws, rules and regulations (including all codes,
plans, judgments, orders, decrees, stipulations, injunctions and charges
thereunder) relating to public health and safety, worker health and safety, and
pollution or protection of the environment, including laws relating to
emissions, discharges, releases, or threatened releases of pollutants,
contaminants, or chemical, industrial, hazardous, or toxic materials or wastes
into ambient air, surface water, ground water, or lands or otherwise relating to
the manufacture, processing, distribution, use, treatment, storage, disposal,
transport, or handling of pollutants, contaminants, or chemical, industrial,
hazardous, or toxic materials or wastes.
3.17.7 To Seller's knowledge, all properties and equipment of
Seller are and have been free of asbestos and asbestos-related products, PCB's,
methylene chloride, trichloroethylene, 1, 2-trans- dichloroethylene, dioxins,
dibenzofurans, and Extremely Hazardous Substances (as defined in Section 302 of
the Emergency Planning and Community Right-to-Know Act).
3.17.8 To Seller's knowledge, no pollutant, contaminant, or
chemical, industrial, hazardous, or toxic material or waste has ever been
manufactured, buried, stored, spilled, leaked, discharged, emitted, or released
on any Real Property.
3.17.9 Other than in compliance with the Communications Act,
the operation of the Station does not cause or result in exposure to workers or
the general public to levels of radio frequency radiation in excess of the
"Radio Frequency Protection Guides" recommended in "American National Standard
Safety Levels with Respect to Human Exposure to Radio Frequency Electromagnetic
Fields 300 kHz to 100 gHz" (ANSI C95.1-1982), issued by the American National
Standards Institute. Renewal of the Licenses would not constitute a "major
action" within the meaning of Section 1.1301, et seq., of the FCC's rules.
3.18 Compliance with Laws. Seller is not in material violation of, and has
not received any notice asserting any material noncompliance by Seller with any
applicable material statute, law, rule or regulation, whether federal, state,
local or otherwise, in connection with the ownership of the Assets. Seller has
complied and is in compliance, in all material respects, with all material laws,
regulations and governmental orders applicable to Seller's operation of the
Station and ownership of the Assets. Seller has obtained and
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holds all material permits, licenses and approvals (none of which has been
rescinded and all of which are in full force and effect) from all governmental
authorities necessary in order to conduct the operations of the Station in
accordance with applicable law, as presently conducted and to own, use and
maintain the Assets.
3.19 Conduct of Business in Ordinary Course. Since March 31, 1998, Seller
has conducted its business and operations only in the ordinary course and has
not:
3.19.1 suffered any material adverse change in the business,
assets, properties, financial condition, results of operations, or business
prospects of the Station, including any damage, destruction, or loss affecting
any assets used or useful in the conduct of the business of the Station;
3.19.2 made any material increase in compensation payable or
to become payable to any of its employees, or any bonus payment made or promised
to any of its employees, or any material change in personnel policies, employee
benefits, or other compensation arrangements affecting its employees;
3.19.3 made any sale, assignment, lease, or other transfer of
assets other than in the normal and usual course of business with suitable
replacements being obtained therefor;
3.19.4 canceled any debts owed to or claims held by Seller,
except in the normal and usual course of business;
3.19.5 made any changes in Seller's accounting practices;
3.19.6 suffered any material write-down of the value of any
Assets or any material write-off as uncollectible of any accounts receivable; or
3.19.7 transferred or granted any right under, or entered into
any settlement regarding the breach or infringement of, any license, patent,
copyright, trademark, trade name, franchise, or similar right, or modified any
existing right.
3.20 Transactions with Affiliates. Except as disclosed in the Financial
Statements, Seller has not been involved in any business arrangement or
relationship with any Affiliate of Seller, and no Affiliate of Seller owns any
property or right, tangible or intangible, that is used in the business of the
Station.
3.21 Broker. Neither Seller nor any Person acting on its behalf has incurred
any liability for any finders' or brokers' fees or commissions in connection
with the transactions contemplated by this Agreement.
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ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF BUYER.
Buyer represents and warrants to Seller as follows:
4.1 Organization, Standing and Authority. Buyer is a corporation duly
organized, validly existing and in good standing under the laws of the State of
Delaware and by the Closing Date will be duly qualified to do business as a
foreign corporation where such qualification is necessary. Buyer has the
requisite corporate power and authority to execute, deliver and perform this
Agreement and the documents contemplated hereby according to their respective
terms and to own the Assets.
4.2 Authorization and Binding Obligation. The execution, delivery and
performance of this Agreement by Buyer have been duly authorized by all
necessary action on the part of Buyer. This Agreement has been duly executed and
delivered by Buyer and constitutes a legal, valid and binding obligation of
Buyer, enforceable against Buyer in accordance with its terms except as the
enforceability of this Agreement may be affected by bankruptcy, insolvency or
similar laws affecting creditors' rights generally and by judicial discretion in
the enforcement of equitable remedies.
4.3 Absence of Conflicting Agreements and Required Consents. Subject to the
receipt of the Consents or as otherwise set forth in this Section 4.3, the
execution, delivery and performance by Buyer of this Agreement and the documents
contemplated hereby (with or without the giving of notice, the lapse of time, or
both): (a) do not require the consent of any third party; (b) will not conflict
with the Articles of Incorporation or Bylaws of Buyer; (c) will not conflict
with, result in a breach of, or constitute a default under, any applicable law,
judgment, order, ordinance, injunction, decree, rule, regulation, or ruling of
any court or governmental instrumentality; and (d) will not conflict with,
constitute grounds for termination of, result in a breach of, constitute a
default under, or accelerate or permit the acceleration of any performance
required by the terms of, any material agreement, instrument, license or permit
to which Buyer is a party or by which Buyer may be bound.
4.4 Brokers. Neither Buyer nor any person or entity acting on its behalf has
incurred any liability for any finders' or brokers' fees or commissions in
connection with the transactions contemplated by this Agreement other than fees
due to the Ted Hepburn Company and to Serafin Brothers, Inc., which fees shall
be the sole responsibility of Buyer.
4.5 Qualification of Buyer.
4.5.1 Except as disclosed in Schedule 4.5.1, Buyer is, and
pending Closing will remain legally, financially and otherwise qualified under
the Communications Act and all rules, regulations and policies of the FCC to
acquire and operate the Station. Except as disclosed in Schedule 4.5.1, there
are no facts or proceedings which would reasonably be expected to disqualify
Buyer under the Communications Act or otherwise from acquiring or operating the
Station or would cause the FCC not to approve the assignment of the FCC License
to Buyer. Except as disclosed in Schedule 4.5.1, Buyer has no knowledge of any
fact or circumstance relating to Buyer or any of Buyer's affiliates that would
reasonably be expected to (a) cause
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the filing of any objection to the assignment of the FCC License to Buyer, or
(b) lead to a delay in the processing by the FCC of the application for such
assignment. Except as disclosed in Schedule 4.5.1, no waiver of any FCC rule or
policy is necessary to be obtained for the grant of the applications for the
assignment of the FCC License to Buyer, nor will processing pursuant to any
exception or rule of general applicability be requested or required in
connection with the consummation of the transactions herein.
4.5.2 As of the date hereof and through the Closing Date,
except as set forth on Schedule 4.5.1, neither Buyer nor any Affiliate of Buyer
(a) owns, controls or operates any television or radio station located in the
DMA in which the Station is located, (b) has any direct or indirect interest,
including, without limitation, any equity, debt, security or any other financial
interest, whether or not "attributable" (as defined in the rules and regulations
of the FCC), or management interest, in (i) any television or radio station
located in the DMA in which the Station is located, or (ii) any applicant
seeking to construct or acquire, by assignment of license or transfer of
control, any such television or radio station (an "Applicant"); or (c) is a
party to any LMA with a television or radio station located in the DMA in which
the Station is located, or with any Applicant. Buyer acknowledges and agrees
that the representations set forth in this Section 4.5.2 shall take into account
and include (a) the consummation of any proposed or pending acquisition (as of
the date hereof and through the Closing Date of television or radio stations
(including the acquisition of the Station) by Buyer or any Affiliate of Buyer or
any Applicant, and (b) any LMA or proposed or pending LMA (as of the date hereof
and through the Closing Date) to which Buyer or any Affiliate of Buyer is or may
become a party.
4.6 Availability of Funds. Buyer will have available on the Closing Date
sufficient funds to enable it to consummate the transactions contemplated
hereby.
4.7 No Outside Reliance. Buyer has not relied and is not relying on any
statement, representation or warranty not made in this Agreement, any Schedule
hereto or any certificate to be delivered to Buyer at the Closing pursuant to
this Agreement. Buyer is not relying on any projections or other predictions
contained or referred to in materials (other than the Schedules) that have been
or may hereafter be provided to Buyer or any of its Affiliates, agents or
representatives, and Seller makes no representations or warranties with respect
to any such projections or other predictions.
ARTICLE V
OPERATION OF THE STATION PRIOR TO CLOSING.
Subject to the terms of the TBA, Seller covenants and agrees that between the
date hereof and the Closing Date, Seller will conduct its business in the
ordinary course in accordance with its past practices (except where such conduct
would conflict with the following covenants or with other obligations of Seller
under this Agreement), and, except as contemplated by this Agreement or with the
prior written consent of Buyer, Seller will act in accordance with the
following:
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5.1 Contracts. Seller will not renew, extend, amend or terminate, or waive
any material right under, any Material Contract, or enter into any contract or
commitment or incur any obligation (including obligations relating to the
borrowing of money or the guaranteeing of indebtedness and obligations arising
from the amendment of any existing Contract, regardless whether such Contract is
a Material Contract) that will be assumed by or be otherwise binding on Buyer
after Closing, except for (a) cash time sales agreements and production
agreements made in the ordinary course of business consistent with Seller's past
practices, (b) the renewal or extension of any existing Contract on its existing
terms in the ordinary course of business, and (c) other contracts entered into
in the ordinary course of business consistent with Seller's past practices that
do not involve consideration, in the aggregate, in excess of $25,000 measured at
Closing. Prior to the Closing Date, Seller shall deliver to Buyer a list of all
Contracts entered into between the date of this Agreement and the Closing Date
and shall make available to Buyer true and complete copies of all such
Contracts. Seller will not do or omit to do any act (or permit such act or
omission) which will result in a material breach of any Contract.
5.2 Compensation. Seller shall not increase the compensation, bonuses, or
other benefits payable or to be payable to any person employed in connection
with the conduct of the business or operations of the Station, except in
accordance with past practices.
5.3 Encumbrances. Seller will not create, assume, or permit to exist any
mortgage, pledge, lien, or other charge or encumbrance affecting any of the
Assets, except for (a) liens that will be removed prior to the Closing Date, and
(b) Permitted Liens.
5.4 Dispositions. Seller will not sell, assign, lease, or otherwise transfer
or dispose of any of the Assets except in the ordinary course of business
provided that either (i) such Assets are replaced with assets of equivalent kind
and value or (ii) the sale proceeds in respect of such Assets are held for the
benefit of Buyer.
5.5 Access to Information. Seller will give to Buyer and its investors,
lenders, counsel, accountants, engineers and other authorized representatives
reasonable access to the Station and all books, records and documents of Seller
which pertain solely to the Station, and will furnish or cause to be furnished
to Buyer and its authorized representatives all information relating to the
Station that they reasonably request (including any financial reports and
operations reports produced with respect to the Station).
5.6 Insurance. Seller shall maintain in full force and effect policies of
insurance of the same type, character and coverage as the policies currently
carried with respect to the business, operations and assets of Seller.
5.7 Licenses. Seller shall not cause or permit, by any act or failure to
act, any of the Licenses required to be listed on Schedule 3.4 to expire or to
be revoked, suspended or modified, or take any action that could reasonably be
expected to cause the FCC or any other governmental authority to institute
proceedings for the suspension, revocation or material adverse modification of
any of the Licenses. Seller shall prosecute with due diligence any applications
to any governmental authority necessary for the operation of the Station.
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5.8 Obligations. Seller shall pay all its obligations as they become due,
consistent with past practices, so that all such obligations shall be current as
of the Closing Date.
5.9 No Inconsistent Action. Seller shall not take any action that is
inconsistent with its obligations under this Agreement in any material respect
or that could reasonably be expected to hinder or delay the consummation of the
transactions contemplated by this Agreement. Neither Seller nor any of its
respective representatives or agents shall, directly or indirectly, solicit,
initiate, or participate in any way in discussions or negotiations with, or
provide any confidential information to, any Person (other than Buyer or any
affiliate or associate of Buyer and their respective representatives and agents)
concerning any possible disposition of the Station, the sale of any material
assets of the Station, or any similar transaction.
5.10 Maintenance of Assets. Seller shall maintain all of the Assets in good
condition (ordinary wear and tear excepted), consistent with their overall
condition on the date of this Agreement, and use, operate and maintain all of
the Assets in a reasonable manner. Seller shall maintain inventories of spare
parts and expendable supplies at levels consistent with past practices. If any
insured or indemnified loss, damage, impairment, confiscation, or condemnation
of or to any of the Assets occurs, Seller shall repair, replace, or restore the
Assets to their prior condition as represented in this Agreement as soon
thereafter as possible, and Seller shall use the proceeds of any claim under any
property damage insurance policy or other recovery solely to repair, replace, or
restore any of the Assets that are lost, damaged, impaired, or destroyed.
5.11 Consents. Seller shall use reasonable efforts to obtain all Consents
without any adverse change in the terms or conditions of any Assumed Contract or
License.
5.12 Books and Records. Seller shall maintain its books and records in
accordance with past practices.
5.13 Notification. Seller shall promptly notify Buyer in writing of any
unusual or material developments with respect to the business or operations of
the Station of which Seller becomes aware and of any material change in any of
the information contained in the representations and warranties contained in
Article III of this Agreement.
5.14 Compliance with Laws. Seller shall comply in all material respects with
all laws, rules and regulations.
ARTICLE VI
SPECIAL COVENANTS AND AGREEMENTS.
6.1 FCC Consent.
6.1.1 The exchange and transfer of the Assets as contemplated
by this Agreement is subject to the prior consent and approval of the FCC
without any conditions which are materially adverse to Buyer.
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6.1.2 Seller and Buyer shall prepare and within ten days after
the date of this Agreement shall file with the FCC an appropriate application
for FCC Consent. The parties shall thereafter prosecute the application with all
reasonable diligence and otherwise use their respective best efforts to obtain a
grant of the application as expeditiously as practicable. Buyer and Seller shall
oppose any petitions to deny or other objections filed with respect to the
application for the FCC Consent and any requests for reconsideration or judicial
review of the FCC Consent.
6.1.3 If the Closing shall not have occurred for any reason
within the original effective period of the FCC Consent, and neither party shall
have terminated this Agreement under Article IX, the parties shall jointly
request an extension of the effective period of the FCC Consent. No extension of
the effective period of the FCC Consent shall limit the exercise either party of
its right to terminate the Agreement under Article IX.
6.2 Hart-Scott-Rodino. Within ten days following the execution of this
Agreement, Seller and Buyer shall complete any filing that may be required
pursuant to HSR (each an "HSR Filing"). Sellers and Buyer shall diligently take,
or fully cooperate in the taking of, all necessary and proper steps, and provide
any additional information reasonably requested in order to comply with, the
requirements of HSR.
6.3 Risk of Loss.
(a) The risk of loss or damage by fire or other casualty or
cause to the Assets until the Closing Date shall be upon Seller. In the event of
such loss or damage prior to the Closing Date, Seller shall use reasonable
commercial efforts to restore, replace or repair the damaged Assets in
accordance with Seller's past practices at Seller's sole cost and expense.
Except as provided in clause (b) of this Section 6.3, in the event such loss or
damage shall not be restored, replaced or repaired as of the Closing Date, Buyer
and Seller shall proceed with the Closing and Buyer shall receive at Closing a
reduction of the Purchase Price in an amount which, net of any insurance
proceeds paid by Seller to Buyer, or the value of any rights to receive
insurance proceeds which are assigned by Seller to Buyer, is sufficient to pay
for such restoration, replacement or repair.
(b) In the event that any loss or damage results in the
regular broadcast transmission of the Station (including its effective radiated
power) to be diminished in any material respect on what would otherwise be the
Closing Date, Buyer may, at its sole option, defer the Closing Date until the
Station's broadcast transmission has been resumed.
6.4 Confidentiality. Except as necessary for the consummation of the
transaction contemplated by this Agreement, including Buyer's obtaining of
financing related hereto, and except as and to the extent required by law, each
party will keep confidential any information obtained from the other party in
connection with the transactions contemplated by this Agreement. If this
Agreement is terminated, each party will return to the other party all
information obtained by the such party from the other party in connection with
the transactions contemplated by this Agreement.
6.5 Cooperation. Buyer and Seller shall cooperate fully with each other and
their respective counsel and accountants in connection with any actions required
to be taken as part of their respective obligations under
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this Agreement, and Buyer and Seller shall execute such other documents as may
be necessary and desirable to the implementation and consummation of this
Agreement, and otherwise use their commercially reasonable efforts to consummate
the transaction contemplated hereby and to fulfill their obligations under this
Agreement. Notwithstanding the foregoing, and except as otherwise expressly
provided in this Agreement, neither Seller nor Buyer shall have any obligation
(a) to expend funds (other than their own reasonable legal fees or incidental
expenses) to obtain any of the Consents or (b) to agree to any adverse change in
any License or Assumed Contract in order to obtain a Consent required with
respect thereto.
6.6 Control of the Station. Prior to Closing except as otherwise required by
Section 6.11, Buyer shall not, directly or indirectly, control, supervise or
direct, or attempt to control, supervise or direct, the operations of the
Station; subject to the TBA, those operations, including complete control and
supervision of all of each Station's programs, employees and policies, shall be
the sole responsibility of Seller.
6.7 Title Insurance and Surveys.
6.7.1 Title Insurance on Owned Property. With respect to each
fee estate included in the Real Property Interests, Seller will obtain and
deliver to Buyer (i) as soon as practicable after the date of this Agreement, a
title commitment disclosing the condition of title to such fee estate and all
easements, rights of way, and restrictions of record with respect thereto, as of
a date not earlier than the date of this Agreement, accompanied by copies of all
instruments evidencing the scope and extent of all such easements, rights of
way, and restrictions of record, and (ii) at or prior to Closing, an ALTA
Owner's Policy of Title Insurance on a form customarily used in the State of
California, issued by a title insurer reasonably satisfactory to Buyer, in an
amount equal to the fair market value of the property and any improvements
thereon (as reasonably determined by Buyer), insuring title to such property to
be in the name of Buyer as of the Closing, subject only to Permitted Liens.
6.7.2 General Requirements as to Title Insurance Policies.
Each title insurance policy obtained and delivered to Buyer pursuant to this
Agreement shall, except to the extent that title insurers in the State of
California are not lawfully permitted to issue such policies, (i) insure title
to the property described in the policy and all recorded easements benefiting
such property, (ii) contain an "extended coverage endorsement" or similar
modification insuring over or otherwise eliminating the general exceptions
customarily contained in title policies, (iii) contain an endorsement insuring
that the property described in the policy is the same real estate shown in the
survey delivered with respect to such property, (iv) contain a "contiguity"
endorsement with respect to any property consisting of more than one record
parcel, and (v) not be subject to any survey exception or any defect or
encroachment disclosed by a survey delivered with respect to the property.
6.7.3 Surveys. With respect to each Real Property Interest as
to which a title insurance policy is to be procured pursuant to this Agreement,
Seller will obtain and deliver to Buyer as soon as practicable after the date of
this Agreement a current survey of the relevant parcel, prepared and certified
to Buyer and to the title insurer of such Real Property Interest by a licensed
surveyor and conforming to current ALTA Minimum Detail Requirements for Land
Title Surveys, disclosing the location of all improvements, easements, party
walls, sidewalks, roadways, utility lines and other matters customarily shown on
such surveys, and showing access affirmatively to public streets and roads.
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6.7.4 Associated Fees and Costs. Buyer shall be responsible
for the costs associated with obtaining the title commitments, title insurance
policies and surveys described above.
6.8 Allocation of Purchase Price. The Purchase Price shall be allocated
among the Assets as agreed to by the Seller and the Buyer within 60 days of the
date hereof for purposes of Section 1060 of the Internal Revenue Code of 1986,
as amended, and Temporary Treasury Regulation Section 1.1060-1T. Buyer and
Seller agree to file with their respective federal income tax returns an initial
asset acquisition statement and any supplemental statements on Internal Revenue
Service Form 8594 required by Temporary Treasury Regulation Section 1.1060-1T,
all in accordance with and accurately reflecting the agreed upon allocation of
Purchase Price as described above.
6.9 Access to Books and Records. Seller shall provide Buyer access and the
right to copy for a period of five years from the Closing Date any books and
records relating to the Assets but not included in the Assets. Buyer shall
provide Seller access and the right to copy for a period of five years after the
Closing Date any books and records relating to the Assets that are included in
the Assets.
6.10 Purchase of Promissory Note. Contemporaneously with the Closing, Buyer
shall purchase from Keymarket of Los Angeles, Inc. that certain Promissory Note,
dated February 1, 1995, of Radio Korea, in the original principal amount of
$175,000, for a purchase price not in excess of $200,000, payable in immediately
available funds, equal to the then outstanding principal amount plus accrued and
unpaid interest as of the Closing Date.
6.11 Time Brokerage Agreement. At the option of Seller, exercisable by
providing written notice to Buyer at any time simultaneously with or after the
execution of the Agreement, Buyer and Seller will enter into a time brokerage
agreement, pursuant to which Buyer will obtain the right to broadcast on the
Station all of the programming thereon other than during a mutually agreeable
two hour period and to provide all services (and retain all revenues) relating
to the sale of advertising time on the Station. Subject to the rights retained
by the Seller as required by applicable law, including the rules and regulations
of the FCC, and a prohibition against moving the Station's main studio location
or making other than certain agreed to format changes, Buyer will exercise
complete discretion in the operation of the Station. In consideration of the
rights obtained by Buyer under the new TBA, Buyer will provide Seller with a
monthly fee of $150,000, together with monthly reimbursement of verifiable,
reasonable operating expenses of the Stations incurred by Seller. Subject to
applicable governmental requirements, the time brokerage agreement shall contain
certain other customary terms and conditions and shall include a term beginning
on a date specified by Seller, but not earlier than 10 business days after
Seller's notice to Buyer pursuant to this Section 6.11 and ending upon the
earlier of (i) the date of the closing of the transactions contemplated by this
Agreement; or (ii) the termination of this Agreement; provided, at Seller's
option following termination of this Agreement as a result of Buyer's breach,
the term of the time brokerage agreement shall not end until up to one year (as
designated by Seller) after termination of this Agreement; provided further, if
Buyer materially breaches the time brokerage agreement following termination of
this Agreement, Buyer shall pay to Seller, as liquidated damages, the sum of the
number of months which would have remained under the TBA had the TBA not been
terminated multiplied by $150,000.
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6.12 Public Announcements. The parties hereto shall consult with each other
before making any public statements with respect to this Agreement or the
transactions contemplated herein and shall not issue any press release or make
any public statement without the prior written consent of the other party, which
shall not be unreasonably withheld, conditioned or delayed; provided, however,
that a party may, without the prior consultation with or written consent of the
other party, issue such press release or make such public statement as may be
required by law or any listing agreement with a national securities exchange to
which Seller or Buyer (or any affiliate of Seller or Buyer) is a party if it has
used all reasonable efforts to consult with the other party and to obtain such
party's consent but has been unable to do so in a timely manner.
6.13 FCC Compliance. Seller agrees to use commercially reasonable efforts to
correct, prior to Closing, the failure of the Station's antenna monitor and base
current ratios to be within the tolerances required by the rules and regulations
of the FCC, as referenced in Schedule 3.4 hereto. To the extent such failures
are not corrected prior to Closing, Seller shall reimburse Buyer, promptly
following receipt of a written invoice, for all out-of-pocket expenses not in
excess of $50,000 (reduced by any expenses incurred by Seller prior to Closing),
incurred by Buyer to correct such failure.
ARTICLE VII
CONDITIONS TO OBLIGATIONS OF BUYER AND SELLER.
7.1 Conditions to Obligations of Buyer. All obligations of Buyer at the
Closing hereunder are subject at Buyer's option to the fulfillment prior to or
at the Closing Date of each of the following conditions:
7.1.1 Representations and Warranties. All representations and
warranties of Seller contained in this Agreement shall be true and complete
(without regard to materiality qualifiers contained therein) at and as of the
Closing Date as though made at and as of that time, except where the failure to
be true and complete will not have a material adverse effect on the Assets or
the business of the Station.
7.1.2 Covenants and Conditions. Seller shall have performed
and complied with all covenants, agreements and conditions required by this
Agreement to be performed or complied with by it prior to or on the Closing
Date, except where the failure to have performed or complied will not have a
material adverse effect on the Assets or the business of the Station.
7.1.3 Consents. All Consents shall have been obtained and
delivered to Buyer (other than any Consent required under any Contract listed on
Schedule 3.7 that is not a Material Contract), without any materially adverse
change in the terms or conditions of any Contract or any License.
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7.1.4 FCC Consent. The FCC Consent shall have been granted
without the imposition on Buyer of any conditions that need not be complied with
by Buyer under Section 6.1 hereof and Seller shall have complied with any
conditions imposed on it by the FCC Consent.
7.1.5 Governmental Authorizations. Seller shall be the holder
of all FCC Licenses and there shall not have been any modification, revocation,
or non-renewal of any License that could have an adverse effect on the Station
or the conduct of its business and operations. No proceeding shall be pending
the effect of which is reasonably likely to be to revoke, cancel, fail to renew,
suspend, or modify adversely any FCC License.
7.1.6 Title Reports and Surveys. Buyer shall have received
reasonably satisfactory title insurance commitments and surveys, as provided for
in Section 6.7.
7.1.7 Tax, Lien and Judgment Searches. Buyer shall have
received reasonably satisfactory searches for tax, lien and judgment filings in
the Secretary of State's records of California, and in the appropriate records
of the applicable counties, such searches having been made no earlier than ten
days prior to the Closing Date.
7.1.8 Deliveries. Seller shall have made all the deliveries to
Buyer described in Section 8.2.
7.1.9 Legal Proceedings. No governmental authority shall have
enacted, enforced, issued or entered any law, rule, regulation or order,
including in connection with any action or proceeding brought by a third party
(not subsequently dismissed, settled or otherwise terminated), which prohibits
or invalidates the transactions contemplated by this Agreement or prevents,
limits, restricts or impairs the ownership, use or operation of the Assets or
the Station by Buyer, other than an action or proceeding instituted by Buyer or
other than any limitation, restriction or impairing which does not have a
material adverse effect on the Assets or the business of the Station.
7.2 Conditions to Obligations of Seller. All obligations of Seller at the
Closing hereunder are subject at Seller's option to the fulfillment prior to or
at the Closing Date of each of the following conditions:
7.2.1 Representations and Warranties. All representations and
warranties of Buyer contained in this Agreement shall be true and complete in
all material respects at and as of the Closing Date as though made at and as of
that time.
7.2.2 Covenants and Conditions. Buyer shall have performed and
complied in all material respects with all covenants, agreements and conditions
required by this Agreement to be performed or complied with by it prior to or on
the Closing Date.
7.2.3 FCC Consent. The FCC Consent shall have been granted
without the imposition on Seller of any conditions that need not be complied
with by Seller under Section 6.1 hereof and Buyer shall have complied with any
conditions imposed on it by the FCC Consent.
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7.2.4 Deliveries. Buyer shall have made all the deliveries
described in Section 8.3.
7.2.5 Legal Proceedings. No governmental authority shall have
enacted, enforced, issued or entered any law, rule, regulation or order,
including in connection with any action or proceeding brought by a third party
(not subsequently dismissed, settled or otherwise terminated), which prohibits
or invalidates the transactions contemplated by this Agreement.
ARTICLE VIII
CLOSING AND CLOSING DELIVERIES.
8.1 Closing.
8.1.1 Closing Date.
(a) Except as provided below in this Section or as otherwise
agreed to by Buyer and Seller, the Closing shall take place at 10:00 a.m. on a
date, to be set by Buyer on at least ten business days' written notice to
Seller, which shall be not earlier than the first business day after the FCC
Consent is granted and not later than the tenth business day after the FCC
Consent is granted.
(b) If any event occurs that prevents signal transmission by
the Station in the normal and usual manner and Seller cannot restore the normal
and usual transmission before the date on which the Closing would otherwise
occur pursuant to this Section 8.1.1, and this Agreement has not been terminated
under Article IX, the Closing shall be postponed until a date within the
effective period of the FCC Consent (as it may be extended pursuant to Buyer's
and Seller's reasonable efforts) to allow Seller to restore the normal and usual
transmission. If the Closing is postponed pursuant to this paragraph, the date
of the Closing shall be mutually agreed to by Seller and Buyer, but no later
than the tenth business day after the restoration of the normal and usual
transmission of the Station's signal.
(c) If there is in effect on the date on which the Closing
would otherwise occur pursuant to this Section 8.1.1 any judgment, decree or
order that would prevent or make unlawful the Closing on that date, the Closing
shall be postponed until a date within the effective period of the FCC Consent
(as it may be extended pursuant to Buyer's and Seller's reasonable efforts), to
be agreed upon by Buyer and Seller, when such judgment, decree, or order no
longer prevents or makes unlawful the Closing. If the Closing is postponed
pursuant to this paragraph, the date of the Closing shall be mutually agreed to
by Seller and Buyer, but no later than the tenth business day following the date
when the Closing is no longer prevented or unlawful.
8.1.2 Closing Place. The Closing shall be held at the offices
of Sinclair Communications, Inc., 2000 W. 41st Street, Baltimore, Maryland
21211, or any other place that is agreed upon by Buyer and Seller.
8.2 Deliveries by Seller. Prior to or on the Closing Date, Seller shall deliver
to Buyer the following, in form and substance reasonably satisfactory to Buyer
and its counsel:
8.2.1 Conveyancing Documents. Duly executed warranty deeds,
bills of sale, motor vehicle titles, assignments, and other transfer documents
that are sufficient to vest good and marketable title
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to the Assets in the name of Buyer, free and clear of all mortgages, liens,
restrictions, encumbrances, claims and obligations except for Permitted Liens;
8.2.2 Officer's Certificate.
(a) A certificate, dated as of the Closing Date, executed on
behalf of Seller by an officer of Seller, certifying: (i) that the
representations and warranties of Seller contained in this Agreement are true
and complete (without regard to materiality qualifiers contained herein) as of
the Closing Date as though made on and as of that date, and (ii) that Seller has
performed and complied with all of its obligations, covenants and agreements in
this Agreement to be performed and complied with on or prior to the Closing
Date, except, in either case, where such failure does not have a material
adverse effect on the Assets or the business of the Station;
(b) A certificate, dated as of the Closing Date, executed on
behalf of Sinclair Communications, Inc. ("Parent") by an officer of Parent,
certifying that the representations and warranties of Parent contained in this
Agreement are true and complete (without regard to materiality qualifiers
contained herein) as of the Closing Date as though made on and as of that date,
except where such failure does not have a material adverse effect on the Assets
or the business of the Station.
8.2.3 Secretary's Certificate.
(a) A certificate, dated as of the Closing Date, executed by
Seller's Secretary: (i) certifying that the resolutions, as attached to such
certificate, were duly adopted by Seller's Board of Directors and shareholders
(if required), authorizing and approving the execution of this Agreement and the
consummation of the transaction contemplated hereby and that such resolutions
remain in full force and effect; and (ii) providing, as attachments thereto, the
Articles of Incorporation of Seller and a Certificate of Good Standing for
Seller certified by an appropriate California state official certified by such
state official as of a date not more than ten days before the Closing Date and
by Seller's Secretary as of the Closing Date, and a copy of Seller's Bylaws as
in effect on the date thereof, certified by Seller's Secretary as of the Closing
Date;
(b) A certificate, dated as of the Closing Date, executed by
Parent's Secretary certifying that the resolutions, as attached to such
certificate, were duly adopted by Parent's Board of Directors authorizing and
approving the execution of this Agreement and the consummation of the
transaction contemplated hereby and that such resolutions remain in full force
and effect.
8.2.4 Consents. Manually executed copies of instrument
evidencing receipt of all of the Consents which have been obtained prior to the
Closing; and
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8.2.5 Licenses, Contracts and Business Records. Originals or,
if not available, copies of all Licenses, including any modifications and
amendments thereto, and all applications, reports, technical information, and
engineering studies relating to the Station and all files required by the FCC to
be maintained by Seller, all Contracts, and other operational data or other
information maintained by Seller in the ordinary course, all blueprints,
schematics, working drawings, plans, projections, statistics and engineering
records relating to the Station, and all other business files and records in the
possession of Seller or any of its Affiliates relating to the Station.
8.2.6 UCC Report. A report dated not more than ten (10) days
prior to the Closing Date of the appropriate filing officers in the applicable
jurisdictions evidencing no judgments, financing statements, tax liens,
mechanics', materialmen's or other statutory liens, except for Permitted Liens,
on file with respect to the Assets, and, if such report evidences that
judgments, financing statements, tax liens, mechanics', materialmen's or other
statutory liens are on file with respect to any of the Assets, a termination
statement or other appropriate document signed by the secured party or
lienholder evidencing the release or termination of such financing statement or
such lien or a pay-off letter from such secured party or lienholder indicating
that such party or lienholder will provide such release or termination statement
upon receipt of payment from the proceeds of the sale contemplated herein.
8.2.7 Other Documents. Such other documents to be delivered by
Seller hereunder as are reasonably necessary for Buyer to effectuate and
document the transactions contemplated hereby.
8.3 Deliveries by Buyer. Prior to or on the Closing Date, Buyer shall deliver to
Seller the following, in form and substance reasonably satisfactory to Seller
and its counsel:
8.3.1 Closing Payment. The payment described in Section
2.4.1;
8.3.2 Officer's Certificate. A certificate, dated as of the
Closing Date, executed on behalf of Buyer by an officer of Buyer, certifying (i)
that the representations and warranties of Buyer contained in this Agreement are
true and complete in all material respects as of the Closing Date as though made
on and as of that date, and (ii) that Buyer has in all material respects
performed and complied with all of its obligations, covenants and agreements in
this Agreement to be performed and complied with on or prior to the Closing
Date;
8.3.3 Secretary's Certificate. A certificate, dated as of the
Closing Date, executed by Buyer's Secretary: (i) certifying that the
resolutions, as attached to such certificate, were duly adopted by Buyer's Board
of Directors, authorizing and approving the execution of this Agreement and the
consummation of the transaction contemplated hereby and that such resolutions
remain in full force and effect; and (ii) providing, as attachments thereto,
Buyer's Certificate of Incorporation and a Certificate of Good Standing
certified by an appropriate Delaware state official and by Buyer's Secretary as
of the Closing Date, and a copy of Buyer's Bylaws as in effect on the date
thereof, certified by Buyer's Secretary as of the Closing Date; and
8.3.4 Assumption Agreements. Appropriate assumption agreements
pursuant to which Buyer shall assume and undertake to perform Seller's
obligations under the Licenses and Assumed Contracts to the extent provided in
Section 2.4.3;
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8.3.5 Other Documents. Such other documents to be delivered by
Buyer hereunder as are reasonably necessary for Seller to effectuate and
document the transactions contemplated hereby.
ARTICLE IX
TERMINATION.
9.1 Termination by Seller. This Agreement may be terminated by Seller and
the exchange and transfer of the Station abandoned, if Seller is not then in
material default, upon written notice to Buyer, upon the occurrence of any of
the following:
9.1.1 Conditions. If on the date that would otherwise be the
Closing Date any of the conditions precedent to the obligations of Seller set
forth in this Agreement has not been satisfied or waived in writing by Seller;
9.1.2 Judgments. If there shall be in effect on the date that
would otherwise be the Closing Date any judgment, decree, or order that would
prevent or make unlawful the Closing; or
9.1.3 Dropdead Date. If the Closing shall not have occurred
on or prior to the first anniversary of the date hereof.
9.2 Termination by Buyer. This Agreement may be terminated by Buyer and the
exchange and transfer of the Station abandoned, if Buyer is not then in material
default, upon written notice to Seller, upon the occurrence of any of the
following:
9.2.1 Conditions. If on the date that would otherwise be the
Closing Date any of the conditions precedent to the obligations of Buyer set
forth in this Agreement has not been satisfied or waived in writing by Buyer;
9.2.2 Judgments. If there shall be in effect on the date that
would otherwise be the Closing Date any judgment, decree, or order that would
prevent or make unlawful the Closing;
9.2.3 Interruption of Service. If any event occurs that (i)
takes the Station off-the-air for a period of thirty days or more, or (ii)
prevents a signal transmission by the Station in the normal and usual manner for
a period of thirty or more days after the date of this Agreement;
9.2.4 Dropdead Date. If the Closing shall not have occurred
on or prior to the first anniversary of the date hereof.
9.3 Rights on Termination. If this Agreement is terminated by Buyer due to
Seller's material breach of any provision of this Agreement, Buyer shall have
all rights and remedies available at law or equity, including the remedy of
specific performance described in Section 9.4 below, but shall in a suit for
damages be limited to actual damages and shall not be entitled to consequential,
incidental or similar damages. If this Agreement is terminated by Seller due to
Buyer's material breach of any provision of this Agreement, Seller shall be
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entitled to receive as liquidated damages the Escrow Deposit, together with all
interest or other proceeds from the investment thereof, less any compensation
due the Escrow Agent. If this Agreement is terminated other than by Seller due
to Buyer's material breach, Buyer shall be entitled to the immediate return of
the Escrow Deposit, together with all interest or other proceeds from the
investment thereof, less any compensation due the Escrow Agent.
9.4 Specific Performance. The parties recognize that if Seller breaches this
Agreement and refuses to perform under the provisions of this Agreement,
monetary damages alone would not be adequate to compensate Buyer for its injury.
Buyer shall therefore be entitled, in addition to any other remedies (subject to
the limitations of Section 9.3) that may be available, to obtain specific
performance of the terms of this Agreement. If any action is brought by Buyer to
enforce this Agreement, Seller shall waive the defense that there is an adequate
remedy at law.
9.5 Liquidated Damages. If this Agreement is terminated by Seller pursuant
to Section 9.1 hereof due to a material breach by Buyer of any provision of this
Agreement, then the amount of the Escrow Deposit, together with all interest or
other proceeds from the investment thereof, less any compensation due the Escrow
Agent, shall be paid to Seller as liquidated damages, it being agreed that such
amount shall constitute full payment for any and all damages suffered by Seller
by reason of Buyer's failure to consummate the transaction contemplated by this
Agreement to occur at the Closing. Buyer and Seller agree in advance that actual
damages would be difficult to ascertain and that the amount then comprising the
Escrow Deposit is a fair and equitable amount to reimburse Seller for damages
sustained due to Buyer's failure to consummate this Agreement at the Closing for
the above-stated reason.
9.6 Attorneys' Fees. In the event of a default by either party that results
in a lawsuit or other proceeding for any remedy available under this Agreement,
the prevailing party shall be entitled to reimbursement from the other party of
its reasonable legal fees and expenses (whether incurred in arbitration, at
trial, or on appeal).
ARTICLE X
SURVIVAL OF REPRESENTATIONS AND WARRANTIES;
INDEMNIFICATION; CERTAIN REMEDIES.
10.1 Survival. Without prejudice to representations and warranties in other
agreements delivered hereunder, all representations and warranties of Buyer and
Seller herein and all covenants of Buyer and Seller herein with respect to
periods prior to Closing shall be deemed continuing representations, warranties
and covenants, and shall survive the Closing for a period of one (1) year. Any
investigations by or on behalf of any party hereto shall not constitute a waiver
as to enforcement of any representation, warranty, or covenant contained in this
Agreement. No notice or information delivered by either party shall affect the
other party's right to rely on any representation, warranty, or covenant made by
such party or relieve such party of any obligations under this Agreement as the
result of a breach of any of its representations and warranties.
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10.2 Indemnification by Seller. After the Closing, and regardless of any
investigation made at any time by or on behalf of Buyer or any information Buyer
may have, but subject to Section 10.5, Seller hereby agrees to indemnify and
hold Buyer harmless against and with respect to, and shall reimburse Buyer for:
10.2.1 Any and all losses, liabilities, or damages (other than
consequential, incidental or similar damages) resulting from any untrue
representation, breach of warranty, or nonfulfillment of any covenant by Seller
contained in this Agreement or in any certificate, document, or instrument
delivered to Buyer under this Agreement;
10.2.2 Any and all obligations of Seller not assumed by
Buyer pursuant to this Agreement;
10.2.3 Any loss, liability, obligation, or damages (other than
consequential, incidental or similar damages) resulting from the failure of the
parties to comply with the provisions of any bulk sales law applicable to the
transfer of the Assets;
10.2.4 Any and all losses, liabilities, or damages (other than
consequential, incidental or similar damages) resulting from the operation or
ownership of the Station prior to the Closing, including any liabilities arising
under the Licenses or the Assumed Contracts that relate to events occurring
prior to the Closing Date; and
10.2.5 Any and all out-of-pocket costs and expenses, including
reasonable legal fees and expenses, incident to any action, suit, proceeding,
claim, demand, assessment, or judgment incident to the foregoing or incurred in
investigating or attempting to avoid the same or to oppose the imposition
thereof, or in enforcing this indemnity.
10.3 Indemnification by Buyer. Subject to Section 10.5, notwithstanding the
Closing, Buyer hereby agrees to indemnify and hold Seller harmless against and
with respect to, and shall reimburse Seller for:
10.3.1 Any and all losses, liabilities, or damages (other than
consequential, incidental or similar damages) resulting from any untrue
representation, breach of warranty, or nonfulfillment of any covenant by Buyer
contained in this Agreement or in any certificate, document, or instrument
delivered to Seller under this Agreement;
10.3.2 Any and all obligations of Seller expressly assumed by
Buyer pursuant to this Agreement;
10.3.3 Any and all losses, liabilities, or damages (other than
consequential, incidental or similar damages) resulting from the operation or
ownership of the Station on or after the Closing Date; and
10.3.4 Any and all out-of-pocket costs and expenses, including
reasonable legal fees and expenses, incident to any action, suit, proceeding,
claim, demand, assessment, or judgment incident to the foregoing or incurred in
investigating or attempting to avoid the same or to oppose the imposition
thereof, or in enforcing this indemnity.
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10.4 Procedure for Indemnification. The procedure for indemnification shall
be as follows:
10.4.1 The party claiming indemnification (the "Claimant")
shall promptly give notice to the party from which indemnification is claimed
(the "Indemnifying Party") of any claim, whether between the parties or brought
by a third party, specifying in reasonable detail the factual basis for the
claim. If the claim relates to an action, suit, or proceeding filed by a third
party against Claimant, such notice shall be given by Claimant within ten
business days after written notice of such action, suit, or proceeding was given
to Claimant; provided, any delay in providing any notice required by this
Section 10.4.1 shall relieve the Indemnifying Party from liability only if, and
to the extent, such delay materially and adversely impacts the rights of the
Indemnifying Party.
10.4.2 With respect to claims solely between the parties,
following receipt of notice from the Claimant of a claim, the Indemnifying Party
shall have thirty days to make such investigation of the claim as the
Indemnifying Party deems necessary or desirable. For the purposes of such
investigation, the Claimant agrees to make available to the Indemnifying Party
and its authorized representatives the information relied upon by the Claimant
to substantiate the claim. If the Claimant and the Indemnifying Party agree at
or prior to the expiration of the thirty-day period (or any mutually agreed upon
extension thereof) to the validity and amount of such claim, the Indemnifying
Party shall immediately pay to the Claimant the full amount of the claim. If the
Claimant and the Indemnifying Party do not agree within the thirty-day period
(or any mutually agreed upon extension thereof), the Claimant may seek
appropriate remedy at law or equity.
10.4.3 With respect to any claim by a third party as to which
the Claimant is entitled to indemnification under this Agreement, the
Indemnifying Party shall have the right at its own expense, to participate in or
assume control of the defense of such claim, and the Claimant shall cooperate
fully with the Indemnifying Party, subject to reimbursement for actual
out-of-pocket expenses incurred by the Claimant as the result of a request by
the Indemnifying Party, provided, however, that Indemnifier may not assume
control of the defense unless it affirms in writing its obligation to indemnify
Claimant for any damages incurred by Claimant with respect to such third-party
claim. If the Indemnifying Party elects to assume control of the defense of any
third-party claim, the Claimant shall have the right to participate in the
defense of such claim at its own expense. If the Indemnifying Party does not
elect to assume control or otherwise participate in the defense of any
third-party claim, it shall be bound by the results obtained in good faith by
the Claimant with respect to such claim.
10.4.4 If a claim, whether between the parties or by a third
party, requires immediate action, the parties will make every effort to reach a
decision with respect thereto as expeditiously as possible.
10.4.5 The indemnifications rights provided in Section 10.2
and Section 10.3 shall extend to the members, partners, shareholders, officers,
directors, employees, representatives and affiliated entities of any Claimant
although for the purpose of the procedures set forth in this Section 10.4, any
indemnification claims by such parties shall be made by and through the
Claimant.
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10.5 Certain Limitations. Notwithstanding anything in this Agreement to the
contrary, neither party shall indemnify or otherwise be liable to the other
party with respect to any claim for any breach of a representation or warranty,
or for the breach of any covenant contained in this Agreement, (a) unless notice
of the claim is given within one (1) year after the Closing Date, and (b) except
to the extent actual damages for all such claims by such party exceed $35,000
(provided the threshold set forth in clause (b) of this Section 10.5 shall not
apply to indemnification claims relating to any failure by Seller to comply with
its covenant set forth in Section 6.14 hereof).
ARTICLE XI
MISCELLANEOUS.
11.1 Fees and Expenses.
11.1.1 Seller shall pay any filing fees, transfer taxes,
document stamps, or other charges levied by any governmental entity on account
of the transfer of the Assets from Seller to Buyer.
11.1.2 Buyer and Seller shall each pay one-half of any fees
charged (i) by the FCC in connection with obtaining the FCC Consent, and (ii) in
connection with the HSR Filing.
11.1.3 Except as otherwise provided in this Agreement, each
party shall pay its own expenses incurred in connection with the authorization,
preparation, execution and performance of this Agreement, including all fees and
expenses of counsel, accountants, agents and representatives. Buyer shall be
responsible for all fees or commissions payable to the Ted Hepburn Company and
to Serafin Brothers, Inc.
11.2 Notices. All notices, demands and requests required or permitted to be
given under the provisions of this Agreement shall be (i) in writing, (ii) sent
by telecopy (with receipt personally confirmed by telephone), delivered by
personal delivery, or sent by commercial delivery service or certified mail,
return receipt requested, (iii) deemed to have been given on the date telecopied
with receipt confirmed, the date of personal delivery, or the date set forth in
the records of the delivery service or on the return receipt, and (iv) addressed
as follows:
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To Seller:
----------
Sinclair Radio of Los Angeles, Inc.
2000 W. 41st Street
Baltimore, MD 21211
Attn: President
Telecopy:(410) 467-5043
Telephone:(410) 467-5005
with a copy Sinclair Communications, Inc.
(which shall 2000 W. 41st Street
not constitute Baltimore, MD 21211
notice) to: Attn: General Counsel
Telecopy:(410) 662-4707
Telephone:(410) 662-1422
To Seller:
----------
Radio Unica Corp.
8400 N.W. 52nd Street, Suite 101
Miami, Florida 33166
Attn: Joaquin F. Blaya
Telecopy:(305) 683-5052
Telephone:(305) 683-5000
with a copy to: John Quale, Esq.
Skadden, Arps, Slate, Meagher & Flom LLP
1440 New York Avenue, NW
Washington, DC 20005
Telecopy:(202) 371-7475
Telephone:(202) 371-7200
or to any other or additional persons and addresses as the parties may from time
to time designate in a writing delivered in accordance with this Section 11.2.
11.3 Benefit and Assignment.
(a) Except as hereinafter specifically provided in this
Section 11.3, no party hereto shall assign this Agreement, in whole or in part,
whether by operation of law or otherwise, without the prior written consent of
Seller (if the assignor is Buyer) or Buyer (if the assignor is Seller) and any
purported assignment contrary to the terms hereof shall be null, void and of no
force and effect. Buyer shall have the right to assign this Agreement to any
entity or entities controlling, controlled by, or under common control with
Buyer so long as any such assignment will not delay the Closing beyond the date
on which any Closing would otherwise occur in accordance with this Agreement;
provided, however, that no such assignment by Buyer
35
<PAGE>
shall release Buyer from its obligations hereunder. Any assignment in accordance
with the terms hereof shall become effective upon delivery of written notice in
accordance with Section 11.2.
(b) This Agreement shall be binding upon and shall inure to
the benefit of the parties hereto and their respective successors and assigns as
permitted hereunder. No person or entity other than the parties hereto is or
shall be entitled to bring any action to enforce any provision of this Agreement
against any of the parties hereto, and the covenants and agreements set forth in
this Agreement shall be solely for the benefit of, and shall be enforceable only
by, the parties hereto or their respective successors and assigns as permitted
hereunder.
11.4 Further Assurances. The parties shall take any actions and execute any
other documents that may be necessary or desirable to the implementation and
consummation of this Agreement.
11.5 GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED, CONSTRUED AND
ENFORCED IN ACCORDANCE WITH THE LAWS OF MARYLAND (WITHOUT REGARD TO THE
CHOICE OF LAW PROVISIONS THEREOF).
11.6 Entire Agreement. This Agreement, the Schedules hereto, and all
documents, certificates and other documents to be delivered by the parties
pursuant hereto, collectively represent the entire understanding and agreement
between Buyer and Seller with respect to the subject matter of this Agreement.
This Agreement supersedes all prior negotiations between the parties and cannot
be amended, supplemented, or changed except by an agreement in writing that
makes specific reference to this Agreement and that is signed by each of the
parties hereto.
11.7 Waiver of Compliance; Consents. Except as otherwise provided in this
Agreement, any failure of any of the parties to comply with any obligation,
representation, warranty, covenant, agreement, or condition herein may be waived
by the party entitled to the benefits thereof only by a written instrument
signed by the party granting such waiver, but such waiver or failure to insist
upon strict compliance with such obligation, representation, warranty, covenant,
agreement, or condition shall not operate as a waiver of, or estoppel with
respect to, any subsequent breach or other failure. Whenever this Agreement
requires or permits consent by or on behalf of any party hereto, such consent
shall be given in writing in a manner consistent with the requirements for a
waiver of compliance as set forth in this Section 11.7.
11.8 Counterparts. This Agreement may be signed in counterparts with the
same effect as if the signature on each counterpart were upon the same
instrument.
11.9 Severability. If any part of any provision of this Agreement or any
other contract, agreement, document or writing given pursuant to or in
connection with this Agreement shall be invalid or unenforceable under
applicable law, such part shall be ineffective to the extent of such invalidity
or unenforceability only, without in any way affecting the remaining parts of
such provisions or the remaining provisions of said contract, agreement,
document or writing.
11.10 Headings. The headings of the sections and subsections contained in
this Agreement are inserted for convenience only and do not form a part or
affect the meaning, construction or scope thereof.
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<PAGE>
IN WITNESS WHEREOF, this Agreement has been executed by the duly
authorized officers of Buyer and Seller as of the date first written above.
SINCLAIR RADIO OF RADIO UNICA CORPORATION
LOS ANGELES, INC.
By:/s/ David B. Amy By: /s/ Steven E. Dawson
-------------------------- --------------------------------
Name: David Amy Name: Steven E. Dawson
Title: Secretary/Treasurer Title: Chief Financial Officer
SINCLAIR RADIO OF
LOS ANGELES LICENSEE, INC.
By:/s/ David B. Amy
----------------------------
Name: David Amy
Title: Secretary/Treasurer
As a material inducement for Buyer to enter into this Asset
Purchase Agreement and for other valuable consideration, the receipt and
adequacy of which are hereby acknowledged, Sinclair Communications, Inc., a
Delaware corporation ("Parent") and the direct or indirect parent of Seller,
hereby joins in and agrees to be bound by the provisions of the Asset Purchase
Agreement as they relate to Seller. In addition, Parent acknowledges and agrees
that (i) any claim of Buyer arising under the Asset Purchase Agreement or under
any other documents called for thereunder (the "Other Documents") may be
asserted against Parent and (ii) Parent shall be jointly and severally liable
under the Asset Purchase Agreement and the Other Documents for any default in
the performance of the obligations of Seller under such documents or for the
breach by Seller of any representation, warranty, covenant or agreement
contained in such documents to the extent of Seller's liability.
Parent represents and warrants to Buyer as follows: (a) Parent
is a corporation duly organized, validly existing and in good standing under the
laws of the State of Delaware; (b) Parent has all requisite power and authority
to execute and deliver this Asset Purchase Agreement and to consummate the
transactions contemplated hereby; (c) the execution, delivery and performance of
this Asset Purchase Agreement and the consummation of the transactions
contemplated hereby have been duly and validly authorized by all necessary
corporate proceedings on the part of Parent and no other corporate proceedings
or actions on the part of Parent, its board of directors or its shareholders is
necessary therefor; and (d) this Asset Purchase Agreement constitutes a valid
and binding agreement and obligation of Parent, enforceable in accordance with
its terms.
Sinclair Communications, Inc.
By: /s/ David B. Amy
-------------------------
Name: David B. Amy
Title: Secretary
37
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Exhibit 10.17
[Form of]
Non-Competition and
Confidentiality Agreement
- -----------------------------
Employee's Name
In consideration and as part of the terms of my employment by Radio
Unica Corp. (together with any subsidiary, the "Employer"), the trust and
confidence reposed in me by Employer with respect thereto, the payment of
compensation to me therefor, and other good and valuable consideration, receipt
and sufficiency of which is hereby acknowledged, I agree as follows:
1. Until the later to occur of (a) five years from the date hereof and
(b) two years after termination of my employment, if I am terminated for cause
or voluntarily resign (it being understood that this paragraph I shall not apply
in the event I am terminated without cause), neither I nor any entity or
corporation in which I may be interested as an individual proprietor, partner,
trustee, director, officer, shareholder, option holder, employee, consultant,
salesman, lender of money or
<PAGE>
guarantor, shall be engaged directly or indirectly in any business directly
competitive to that of Employer or any of its subsidiaries, provided, however,
that the foregoing shall not be deemed to prevent me from investing in
securities if such class of securities in which the investment is so made is
listed on a national securities exchange or is a company the stock of which is
registered under Sections 12 (g) or 15 (d) of the Securities Exchange Act of
1934, so long as such investment holdings do not, in the aggregate, constitute
more than 1% of the voting stock of any company's securities. For the purpose of
this Section, a business shall be deemed directly competitive if it is conducted
in whole or in part anywhere in the United States and if it involves research on
or development, production, marketing or selling of any product, process or
service which resembles or competes with a product, process or service upon or
with which Employer has an interest or which I have worked during my employment,
including any matters relating to Spanish language radio stations.
2. I acknowledge that my training, experience and technical skills are
of such breadth that they can be employed to advantage in other fields and
consequently the foregoing obligation will not unreasonably impair my ability to
engage in business activity after the termination of my present employment.
3. I shall not, during the period of two years after termination of my
employment, if I am terminated for cause or voluntarily resign, hire or offer to
hire or
2
<PAGE>
entice away or in any other manner persuade or attempt to persuade, either in my
individual capacity or as agent for another, any of Employer's officers,
employees, affiliates or agents to discontinue their relationship with Employer
nor divert or attempt to divert from Employer any business whatsoever by
influencing or attempting to influence any customer, affiliate or supplier of
Employer.
4. Except as required in the performance of my duties to Employer, I
will not at any time during or after my employment, directly or indirectly
divulge, furnish, use, publish or make accessible to others any confidential
information. I hereby agree that any records of confidential information
prepared by me or which come into my possession during my employment are and
remain the property of Employer, and if and when my employment shall terminate
for any reason, that all such records and all copies thereof shall be either
left with or returned to Employer. As used herein, the term "confidential
information" shall mean information disclosed to me or known, learned, created
or observed by me as a consequence of or through my employment by Employer, not
generally known in the relevant trade or industry, about Employer's business
activities, products, processes and services, including but not limited to
information concerning purchasing, finances, accounting, engineering, methods,
processes, compositions, technology, formulas, electronic information processing
procedures (including computer software), trade secrets, research and
development programs, business plans, customer lists, potential client lists,
3
<PAGE>
marketing, affiliations, sales and inventions. The term "confidential
information" shall also include within its meaning all tangible property in
which Employer has or shall obtain any right, title or interest and which
contains or could be used to obtain any confidential information as described in
the preceding sentence.
5. This Agreement shall inure to the benefit of and may be enforced by
the Employer and its successors and assigns and shall be binding upon me, and
except for paragraph 1 hereof, my heirs, assigns and legal representatives.
6. This Agreement is divisible and separable so that, if any provision
or provisions hereof shall be held to be invalid, such holding shall not impair
the remaining provisions hereof.
7. I have not entered and will not enter into any agreement
inconsistent herewith. I agree that any breach of this Agreement by me would not
be susceptible to adequate relief by way of damages alone and that, in the event
of such breach, Employer would be entitled to specific performance or injunctive
or other appropriate equitable relief.
8. Notwithstanding anything to the contrary herein, I may spend up to
five percent (5%) of my working time working for Altenis, a Delaware general
partnership, on a tennis tournament in Latin America.
4
<PAGE>
Dated: Aug. 13, 1997 Signature
-------------- -------------------------------
----------------------------------------
Home Address
----------------------------------------
City State
5
<PAGE>
Exhibit 10.18
AGREEMENT
This Agreement ("Agreement") is entered into as of the 19th day of November,
1997, by and between The Miami Herald Publishing Company, an unincorporated
division of Knight-Ridder, Inc., a Florida corporation ("MHPC"), with a business
address at One Herald Plaza, Miami, Florida 33132, and Radio Unica Corp.
("RUC"), a Delaware corporation, with a business address at 8400 N.W. 52nd
Street, Suite 101, Miami, Florida 33166.
PRELIMINARY STATEMENT
MHPC and RUC intend to jointly produce and broadcast a Spanish-language news
format radio program (the "Program") on RUC's owned and/or operated affiliate,
New World Broadcasting, Inc. (the "Affiliate") broadcasting in Miami, Florida
(as of the date of start-up of the Affiliate, on WRBF 1020 AM) and to jointly
sell advertising time on the Program. Each of MHPC and RUC wish to enter into
this Agreement to set forth the terms and conditions that shall govern the
relationship between MHPC and RUC with respect to the Program.
TERMS
1. Term. The initial term of this Agreement shall be five (5) years (the
"Initial Term"), subject to earlier termination in accordance with the terms of
this Agreement. This Agreement shall be renewable, as described below, at the
conclusion of the Initial Term and any subsequent renewal period(s) for
successive renewal periods, each for a duration of five (5) years (each, a
"Renewal Term"), subject to earlier termination in accordance with the terms of
this Agreement. This Agreement shall be deemed renewed at the conclusion of the
Initial Term and any Renewal Term if either party to this Agreement does not
provide written notice of nonrenewal to the other party no later than sixty (60)
calendar days prior to the conclusion of the term then in effect. The Initial
Term and any and all Renewal Terms are referred to collectively in this
Agreement as the "Term."
2. Joint Production; Program Description.
2.1 The parties shall jointly produce the Program upon the terms and
conditions set forth in this Agreement. The Program will be a three (3) hour
Spanish-language news format radio program broadcast on the Affiliate (or any
successor affiliate owned and/or operated by RUC and broadcasting in Miami,
Florida which, upon its succession to the Affiliate shall, subject to Section
6.4 below, be the Affiliate under this Agreement) from 6:00 a.m. to 9:00 a.m.
(or at other times mutually agreeable to the parties, as agreed to in a writing
signed by both parties), Monday through Friday, fifty two (52) weeks a year
during the Term of this Agreement.
2.2 Broadcast of the Program will begin on or about the date of initial
start-up of the Affiliate, currently scheduled for January 15, 1998; provided
that if the date of initial start-up of the Affiliate (and, therefore, the first
broadcast date of the Program) has not occurred by July 1, 1998 for any reason,
then MHPC shall have the right to terminate this Agreement.
<PAGE>
2.3 The Program shall be branded exclusively as an "El Nuevo Herald"
product (meaning that the name of the Program which shall be mutually agreed to
by the parties shall include reference to "El Nuevo Herald") in and on, without
limitation, all on-air references to the Program and all advertising and
promotional material for the Program. Radio Unica and/or the Affiliate shall be
identified where appropriate as the Program carrier and station.
2.4 MHPC shall in its sole discretion select, contract with, pay for
and provide the Program writers, script and content (including the individual(s)
who shall be, and shall receive credit as the writers and producers of the
Program; provided that MHPC shall, with the prior consent of RUC, select,
contract with, pay for and provide the Executive Producer for the Program), and
RUC shall, with the prior consent of MHPC, select, contract with, pay for and
provide, with the prior consent of MHPC, the on-air talent for the Program;
provided that the salary and benefit amounts paid to such individuals shall be
consistent with the Program budgets set forth in Exhibit A attached hereto and
incorporated herein ("Budgets") and shall, subject to Section 4.1 below,
constitute Program Costs, as defined in Exhibit B attached hereto and
incorporated herein. The Program writers shall be employees of MHPC, and the
on-air talent for the Program shall be employees of RUC or the Affiliate.
2.5 The Program will be produced from the Affiliate's studio facilities
located in Miami, Florida, and RUC shall make available to RUC Program staff and
to MHPC Program staff, including Program writers and producers, sufficient
office and/or studio space, whichever needed, for this purpose.
2.6 Other than as specifically provided in this Agreement, details
regarding the Program's format and content, and other Program-related issues,
are to be mutually agreed upon by the parties, with Dave Bauer and/or any other
individuals designated by MHPC's president serving as the representative(s) of
MHPC with respect to decisions regarding these issues and H.M. Levin and/or any
other individuals designated by RUC's chairman serving as the representative(s)
of RUC with respect to decisions regarding these issues. The decisions of each
individual with respect to Program-related issues shall be deemed the decision
of the party he or she represents with respect to those issues.
2.7 The parties acknowledge and agree that the division of certain
responsibilities with respect to the Program accomplished through the terms of
this Agreement will enable the parties to jointly produce the Program. The
parties agree to cooperate with each other to do so in accordance with the terms
of this Agreement.
3. Advertising on the Program; Promotion of the Program.
3.1 For the purposes of this Agreement, the following terms shall have
the following meanings:
3.1.l Advertising Revenue - revenue generated from the sale of
Non-Network Ad Time, consisting of Non-Package Ad Revenue and Radio/Print Ad
Package Revenue within the Program
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3.1.2 Additional Revenue - revenue generated from Program-related
references or activities other than Non-Package Ad Revenue and Radio/Print Ad
Package Revenue
3.1.3 Net Advertising Revenue - Advertising Revenue net of
advertising agency commissions and sales commissions
3.1.4 Non-Network Ad Time - non-network, local advertising time on
the Program
3.1.5 Non-Package Ad Revenue - Advertising Revenue other than
Radio/Print Ad Package Revenue
3.1.6 Print Ad Revenue - the portion of Radio/Print Ad Package
Revenue allocable to the sale of advertising space in "El Nuevo Herald"
3.1.7 Radio/Print Ad Package - package to be offered and sold to
advertisers providing for radio advertising on the Program and print advertising
in "El Nuevo Herald"
3.1.8 Radio/Print Ad Package Revenue - Advertising Revenue
generated by the sale of Radio/Print Ad Packages
Advertising Revenue and Additional Revenue, if any, shall be allocated
between and shared by MHPC and RUC as set forth in Section 4 below.
3.2 The Program will carry no less than twelve (12) minutes of
Non-Network Ad Time per hour.
3.3 Non-Network Ad Time (whether sold by RUC's or Affiliate's sales
staff or MHPC) shall be invoiced and collected by RUC's or the Affiliate's sales
staff, except that Non-Network Ad Time sold in Radio/Print Ad Packages shall be
invoiced and collected solely by MHPC.
3.4 MHPC's sales staff and RUC's sales staff shall jointly develop and
sell the Radio/Print Ad Packages, shall jointly develop a list of potential
purchasers of the Radio/Print Ad Packages and, if appropriate, develop and
deliver joint presentations for the sale of Radio/Print Ad Packages to the
potential advertisers on the list and other potential advertisers. It is
acknowledged and agreed that the print portion of the Radio/Print Ad Packages
may, in MHPC's discretion, in cases where the purchaser is a pre-existing MHPC
advertiser, be applied to an existing contract between the advertiser and MHPC.
3.5 During the time period from the first broadcast date of the Program
on the Affiliate until termination of this Agreement, MHPC will, during each
twelve (12) month period, provide, at no cost to RUC or the Affiliate,
advertising space in "El Nuevo Herald" for RUC to advertise the Affiliate, the
value (in accordance with MHPC's standard local media rates for such advertising
space that are then in effect) of which shall equal no less than the Program
Costs recovered by MHPC during each such twelve (12) month period (the
"Advertising Space"). Notwithstanding the foregoing, MHPC agrees during the
first six (6) months of the Initial Term to provide to RUC advertising space,
the value of which shall equal no less than $100,000 (in accordance with MHPC's
standard local media rates for such advertising space that are then in effect),
in "El Nuevo Herald" for RUC to advertise the Affiliate; provided that such
advertising space shall be credited against the Advertising Space to be provided
to RUC hereunder during the first twelve (12) month
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period of the Advertising Space requirement. The location of all such
advertising space shall be selected by MHPC in its sole discretion.
3.6 RUC shall cause the Affiliate to provide to MHPC forty two (42)
promotional announcements for "El Nuevo Herald" throughout each broadcast week.
Each promotional announcement shall be no less than a duration of thirty (30)
seconds, and the text of each announcement shall be provided by (or agreed to
by) MHPC.
3.7 The Program shall be branded in all advertising and promotional
material for the Program in any form, manner or media as set forth in Section
2.3 above.
4. Program Costs and Revenue.
4.1 The parties agree to the cost estimates and revenue projections for
the Program set forth on the Budgets and agree to jointly produce the Program
substantially in accordance with the Budgets, as they may be revised from time
to time by mutual review by the parties (which review shall occur no less than
once each year during the Term no later than the anniversary date of this
Agreement) and agreement in writing by the parties. If and to the extent that
certain Program Costs paid or incurred by one party exceed the costs set forth
on the relevant Budget for the relevant year by any more than ten (10) percent
without the prior agreement of the other party, then the party that paid or
incurred said costs shall be solely responsible for the amount in excess of the
budgeted cost plus ten (10) percent, meaning that such excess amount is not
recoverable by the party as a Program Cost in accordance with Section 4.2 below.
4.2 Advertising Revenue, excluding Print Ad Revenue, shall be allocated
between and shared by MHPC and RUC as set forth below:
4.2.1 Net Advertising Revenue, excluding Print Ad Revenue, for the
relevant reporting period will flow to each of MHPC and RUC in proportion to the
Program Costs (as defined on Exhibit B) paid or incurred by each such party
during the relevant reporting period (as defined in Section 4.2.3 below), so
that the Program Costs are recovered, in whole or in part, by the parties.
4.2.2 If and to the extent that Net Advertising Revenue, excluding
Print Ad Revenue, exceeds the Program Costs paid or incurred by the parties
during the relevant reporting period, then the excess Net Advertising Revenue
shall be distributed to the parties as follows: Sixty Six (66) percent of the
excess to RUC and thirty four (34) percent of the excess to MHPC.
4.2.3 The relevant "reporting period" as such term is used in this
Agreement shall be the calendar quarter for which Advertising Revenue and
Program Costs are so calculated and allocated. Such allocations and calculations
shall be completely and accurately performed each calendar quarter by RUC's
accounting department, and any distributions in accordance therewith and a
statement indicating the above-referenced calculations and allocations shall be
provided to MHPC and RUC no later than the tenth (10th) day of each calendar
quarter by RUC's accounting department. The parties shall develop and implement
policies and procedures for deposit, withdrawal and distribution of revenues,
and reporting and accounting for revenues and Program Costs, under this
Agreement so that revenues may be accounted for and distributed in accordance
with this Agreement.
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4.2.4 It is understood and agreed that MHPC will collect and
retain all Print Ad Revenue and that neither RUC nor the Affiliate shall have
any right to any of the Print Ad Revenue. MHPC will, as set forth in Section 3.3
above, collect Radio/Print Ad Package Revenue and retain the Print Ad Revenue
portion of such revenue. Radio/Print Ad Package Revenue excluding the Print Ad
Revenue that is collected by MHPC will be handled by MHPC in accordance with the
policies and procedures referred to in Section 4.2.3 above.
4.2.5 It is understood and agreed that the parties shall, by
amendment to this Agreement, agree to the treatment of any Additional Revenue
(including whether Program Costs will be recovered by MHPC and/or RUC from the
Additional Revenue, the percentage of such amounts, prior to or after any such
recovery, to be distributed to each party and the process for collection,
allocation and distribution of the Additional Revenue) in connection with
decisions related to engaging in any activities that may generate Additional
Revenue. MHPC, RUC and the Affiliate shall not engage in any such activities
without the prior written consent of, in the case of RUC and/or the Affiliate,
MHPC and, in the case of MHPC, RUC and without agreement as to the treatment of
Additional Revenue arising from such activities, as described in the immediately
preceding sentence.
4.3 Each party shall have the right no more than once each calendar
year during the Term to audit the Program-related books and records of the other
party during regular business hours upon thirty (30) calendar days' written
notice to the other party for the purpose of assessing the accuracy and validity
of statements, notices of Program Costs paid or incurred and distributions
referred to in Section 4.2 above; provided that the accuracy and validity of
statements and distributions that pre-date the written notice by more than one
(1) year may not be the subject of an audit or otherwise challenged.
5. Option to Add Second Program: Right of First Refusal for Joint
Production of New Program.
5.1 MHPC and RUC shall jointly consider the option of amending this
Agreement to add terms and conditions for a jointly-produced three (3) hour news
radio program to be broadcast, during the first three (3) years of broadcast of
the Program, on the Affiliate between the hours of 4:00 p.m. through 7:00 p.m.
Monday through Friday, fifty two (52) weeks per year during said three (3) year
period. Neither party hereto shall have any obligation to amend this Agreement
to add terms and conditions for, or to otherwise contract with the other party
to jointly produce, such program.
5.2 During the Term of this Agreement, RUC shall not, and shall cause
the Affiliate not to, broadcast (whether broadcast and production are by RUC
and/or the Affiliate and any third party or parties other than MHPC) in Miami,
Florida any additional Spanish-language radio news format program of more than
five (5) minutes in length per hour other than the Program or a program
broadcast by RUC and/or the Affiliate under (and that is referred to on) the
program schedule attached hereto as Exhibit C and incorporated herein ("New
Program"), unless MHPC is granted a right of first refusal with respect to joint
production of the New Program, as further described below, and does not exercise
such right as provided below. RUC shall not, and shall cause the Affiliate not
to, broadcast a New Program during the Term of this Agreement unless (a) RUC
and/or the Affiliate first makes a written offer to MHPC for joint production of
the New Program ("Offer") and (b) MHPC rejects or fails to accept the Offer
within fifteen (15) business days after receipt of the written Offer. The Offer
will contain the same terms and conditions pursuant to which RUC and/or the
Affiliate is prepared to enter into an agreement to jointly produce the New
Program with a party or parties other than MHPC (or upon terms and conditions
similar to those set forth in this Agreement if RUC and/or
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the Affiliate are not considering joint production of the New Program with a
party other than MHPC). If MHPC accepts the Offer, the parties will enter into
an agreement upon the Offer's terms and conditions.
6. Default; Transfer/Sale/Merger; Termination.
6.1 On the first through the fifth anniversary date of this Agreement,
either party to this Agreement may terminate this Agreement due to non-recovery
of Program Costs (as described below) by providing a true and accurate written
notice of said circumstance to the other party no later than ninety (90)
calendar days immediately prior to the anniversary date, on which anniversary
date the termination will take effect. For the purposes of this Section 6.1,
"non-recovery of Program Costs" shall mean that the sum of Net Advertising
Revenue allocated to a particular party pursuant to Section 4.2 above for twelve
(12) consecutive months does not equal or exceed the Program Costs paid or
incurred by that party during such twelve (12) month period.
6.2 The parties may terminate this Agreement by mutual written
agreement, provided that said termination shall take effect ninety (90) calendar
days following the date of said writing, unless otherwise agreed to by the
parties in the writing.
6.3 Except as contemplated by and in addition to other termination
provisions set forth in this Agreement, either party to this Agreement may
terminate this Agreement in the event of a default of any term or condition set
forth in this Agreement by the other party, provided that the terminating party
delivers written notice of such default to the defaulting party and the
defaulting party fails to cure the default or to commence to cure the default
within ten (10) business days following receipt of such notice (in the event of
default by breach of Section 11.1(d), Section 6.5 shall apply).
6.4 RUC shall promptly (within ten (10) business days) provide to MHPC
written notice of execution of any letter of intent or definitive agreement for
sale of the Affiliate by RUC, transfer of operational control of the Affiliate
by RUC, merger of the Affiliate or RUC or sale of substantially all of the
Affiliate's or RUC's assets. RUC shall (and shall cause the Affiliate to), at
the request of MHPC, use their best efforts to cause any such transferee,
purchaser or company surviving after a merger to agree to assume RUC's and the
Affiliate's obligations under this Agreement in connection with any such
transaction. In the event of sale of the Affiliate by RUC, transfer of
operational control of the Affiliate by RUC, merger of the Affiliate or RUC or
sale of substantially all of the Affiliate's or RUC's assets, then this
Agreement shall be terminable at MHPC's election, in its sole discretion, by
written notice to RUC as of the closing of any such sale or transfer or the
consummation of any such merger (or no more than thirty (30) calendar days prior
thereto in anticipation of such event if MHPC so elects by written notice to
RUC).
6.5 In the event that the Program fails to achieve at least a one
average quarter hour share of audience based upon the average of three (3)
consecutive Arbitron Radio Market Reports for the Miami-Ft. Lauderdale area that
contain ratings for the Program, not including the Winter 1998 Arbitron Radio
Market Report for such area, then either party to this Agreement may terminate
this Agreement upon ninety (90) business days' written notice of such
termination and the reason therefor to the other party.
6.6 In the event of termination of this Agreement during the Initial
Term as a result of RUC or Affiliate default pursuant to Section 6.3 above,
neither RUC nor the Affiliate shall, for a period of one (1) year from the date
of the final broadcast of the Program hereunder, broadcast (whether broadcast
and production are by RUC and/or the Affiliate and any third party or parties
other than MHPC) in Miami,
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Florida any additional Spanish-language radio news format program of more than
five (5) minutes in length per hour other than a program broadcast by RUC and/or
the Affiliate under (and that is referred to on) the program schedule attached
hereto as Exhibit C unless such program is jointly produced with MHPC. RUC shall
cause the Affiliate to comply with the terms of this Section 6.6 (as well as
other terms of this Agreement that refer to the Affiliate).
6.7 This Agreement may be terminated as set forth in Section 2.1.
6.8 Upon termination of this Agreement, neither party to this Agreement
shall have any further obligation to the other party, except that the provisions
set forth in Section 19.2 shall survive termination of this Agreement. The
parties shall, within thirty (30) calendar days of termination, settle any
outstanding allocations under Section 4 above and make any distributions
required under Section 4, including provision of a statement indicating any
calculations related to such allocations and/or distributions.
7. Force Majeure. Neither party hereto shall be deemed in default of such
party's obligations hereunder if performance thereof is delayed or becomes
impossible or impractical by reason of any cause beyond such party's control
such as, but not limited to, war, fire, earthquake, strike, accident, civil
commotion, epidemic and acts of government, cancellation or termination of
performance by a third party.
8. Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of Florida.
9. Notice. Any notice hereunder shall be either personally delivered to
the recipient thereof or sent by registered or certified mail return receipt
requested, addressed to the recipient thereof at the address first set forth
above. Any such notice shall be deemed given when placed in the mail or hand
delivered and accepted by the other party.
10. Disclaimer of Partnership and/or Other Ownership Interests. NOTHING
HEREIN CONTAINED SHALL BE CONSTRUED AS CREATING A JOINT VENTURE OR PARTNERSHIP
BETWEEN ANY OF OR AMONG MHPC AND RUC AND ANY OF THEIR AFFILIATES. RUC FURTHER
DISCLAIMS AND ACKNOWLEDGES THAT RUC AND ANY OF ITS AFFILIATES HAS NO INTEREST OR
TITLE TO MHPC, EL NUEVO HERALD AND/OR ANY TRADE NAME(S) OWNED OR USED BY OR IN
CONNECTION WITH THEM. RUC AGREES THAT RUC AND ANY OF ITS AFFILIATES SHALL NOT AT
ANY TIME AFTER THE EXPIRATION OR TERMINATION OF THIS AGREEMENT, USE ANY SUCH
TRADENAME(S) OR ANY NAME SIMILAR THERETO WITHOUT MHPC'S PRIOR WRITTEN CONSENT.
THE RELATIONSHIP BETWEEN THE PARTIES HERETO IS ONE OF "INDEPENDENT CONTRACTOR"
AND NEITHER PARTY TO THIS AGREEMENT IS AN EMPLOYEE, AGENT, SERVANT, PARTNER OR
JOINT VENTURER OF THE OTHER, MEANING THAT, EXCEPT AS EXPRESSLY PROVIDED FOR IN
THIS AGREEMENT NO PARTY TO THIS AGREEMENT HAS THE AUTHORITY, IMPLIED, APPARENT
OR EXPRESSED, TO LAWFULLY BIND THE OTHER WITH RESPECT TO ANY MATTER.
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1l. Warranties, Representations and Covenants.
11.1 RUC hereby warrants, represents and covenants that:
(a) RUC is experienced in the field of radio production and has
the requisite skill and knowledge to professionally and competently jointly
produce the Program and fulfill its obligations hereunder.
(b) No service, material, ideas or other properties furnished by
RUC and utilized by RUC in connection with any services provided under this
Agreement will violate or infringe upon any common law or statutory right of any
person, firm, or corporation, including without limitation, contractual rights,
copyrights and rights of privacy and/or publicity.
(c) RUC is not under any disability, restrictions or prohibition,
whether contractual or otherwise, with respect to RUC's right to execute this
Agreement, and to perform each and every term and provision required to be
performed by RUC under this Agreement.
(d) RUC shall, at all times during the Term, maintain, and shall
cause the Affiliate to maintain, any and all licenses and permits issued by the
Federal Communications Commission or any other regulatory or governmental
authority necessary for the operation of RUC and the Affiliate as radio
broadcasters and for the broadcast of the Program on the Affiliate.
11.2 MHPC hereby warrants, represents and covenants that:
(a) MHPC is not under any disability, restrictions or prohibition,
whether contractual or otherwise, with respect to MHPC's right to execute this
Agreement, and to perform each and every term and provision required to be
performed by MHPC under this Agreement.
(b) MHPC is experienced in the field of news reporting and has the
requisite skill and knowledge to professionally and competently jointly produce
the Program and fulfill its obligations hereunder.
(c) No service material, ideas or other properties furnished by
MHPC and utilized by MHPC in connection with any services provided under this
Agreement will violate or infringe upon any common law or statutory right of any
person, firm or corporation, including, without limitation, contractual rights,
copyrights and rights of privacy and/or publicity.
11.3 The representations, warranties and covenants of this Section 11
are a material inducement to each party and have been relied upon by each party
for purposes of entering into this Agreement.
12. Release, Indemnification and Hold Harmless Covenant. In order to induce
each party to enter into this Agreement, each party (the "Indemnifying Party")
hereby irrevocably and unconditionally releases, discharges, and agrees to
indemnify, defend and hold harmless the other party (the "Indemnified Party"),
and its successors, assigns, employees, representatives, attorneys, affiliates,
shareholders, officers, directors and all other persons or entities acting by,
through or in concert with any of them from all actions, causes of actions,
demands, damages, losses and costs (including attorneys' and paralegal fees) of
any nature
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whatsoever, irrespective of whether arising during or after the Term relating to
or which may arise out of or which are in any manner occasioned by or related
to: any negligent act, omission, action or activity with respect to the Program
by the Indemnifying Party or by persons retained by the Indemnifying Party as
independent contractors or otherwise to provide services with respect to the
Program. If and to the extent proceeds from the insurance referred to in Section
21 may cover any amounts that may be payable by the Indemnifying Party to the
Indemnified Party under this Section 12, then the Indemnified Party agrees that
said proceeds shall satisfy all or a portion of the Indemnifying Party's
liability under this Section 12 and agrees to seek those proceeds prior to
proceeding against the Indemnifying Party for said amounts.
13. Entire Agreement. This Agreement sets forth the entire understanding of
the parties relating to the subject matter hereof. No modifications, amendments,
terminations or discharge of this Agreement or any of the terms and provisions
hereof shall be binding upon either of the parties hereto unless confirmed by a
written instrument signed by the parties.
14. Jurisdiction. The parties hereby irrevocably submit themselves to the
jurisdiction of the Courts of the State of Florida and to the jurisdiction of
the United States District Court for the Southern District of Florida, for the
purposes of any suit, action or other proceeding arising out of, or relating to,
this Agreement and hereby waive and agree not to assert against each other, by
way of motion, as a defense, or otherwise, in any suit, action or proceeding:
(a) any claim that they are not personally subject to the jurisdiction of the
above named Courts or that their property is exempt or immune from set-off,
execution or attachment, either prior to judgment, or in aid of execution and
(b) to the extent permitted by applicable law, any claim that such suit, action
or proceeding is brought in an inconvenient forum or that venue of such suit,
action or proceeding is improper, or that this Agreement or the subject matter
thereof may not be enforced in or by such courts.
15. Attorneys' Fees. In the event of litigation between the parties
regarding this Agreement, the prevailing party shall be entitled to attorneys'
fees and costs, including fees and costs at the appellate level.
16. Assignment. Neither party shall have the right to assign its rights and
obligations hereunder to any person, firm or company absent written consent to
such assignment by the other party.
17. Confidentiality. EACH PARTY HERETO AGREES THAT IT WILL NOT DISCLOSE TO
ANY THIRD PARTY ANY PERSONAL OR BUSINESS INFORMATION, TRADE SECRETS OR OTHER
CONFIDENTIAL INFORMATION OBTAINED, ACQUIRED OR DEVELOPED BY THE PARTY BY VIRTUE
OF THE AGREEMENT RELATING TO THE OTHER PARTY OR ANY OF ITS AFFILIATES,
SHAREHOLDERS, OFFICERS OR REPRESENTATIVES (THE "CONFIDENTIAL INFORMATION"),
WITHOUT THE EXPRESS PRIOR WRITTEN CONSENT OF THE OTHER PARTY (UNLESS DISCLOSURE
IS REQUIRED BY LAW).
18. Successors and Assigns. All obligations and agreements of either party
under this Agreement shall be binding upon, be applicable to and enforceable
against either party, and its successors and assigns.
19. Invalidity of Certain Provisions; Survival.
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19.1 If any term or provision of this Agreement or the application
thereof to any person or circumstances shall, to any extent, be invalid and
unenforceable, the remainder of this Agreement, and the application of such term
or provision to persons or circumstances other than those as to which it is held
invalid and unenforceable, shall not be affected thereby and each term and
provision of this Agreement shall be valid and enforceable to the fullest extent
permitted by law.
19.2 The following Sections of this Agreement shall survive its
scheduled or early termination: 6.6, 6.8, 8, 10, 12, 14, 15, 17 and 20.
20. Remedies. In the event of breach of the terms of Sections 5.2, 6.6 or
17 MHPC shall be entitled to injunctive relief and such other remedies as MHPC
may deem appropriate and allowed by Florida law. RUC hereby consents to the
issuance of an injunction enjoining and restraining RUC from violating the terms
of Sections 5.2, 6.6 or 17 in the event MHPC elects to petition any court of
competent jurisdiction for such injunction. In the event of a default by RUC,
the remedies of MHPC as set forth herein shall be nonexclusive and cumulative.
21. Insurance.
21.1 RUC has acquired as of the date of this Agreement, and will
maintain in full force during the Term (including renewals upon lapsing) at its
cost, the following types of insurance with an insurance carrier or carriers
licensed under the laws of the State of Florida and qualified to do business in
the State of Florida, holding a "Best Key Rating" of "B+" or better, as
subscribed by the A.M. Best Rating Co.: Libel Insurance and General Premises
Liability Insurance with limits of no less than $1,000,000 for any single
party's claim arising out of a single occurrence and no less than $1,000,000 for
all claims arising out of a single occurrence as well as workers compensation
insurance, as required by Florida law.
21.2 MHPC has acquired as of the date of this Agreement, and will
maintain in full force during the Term (including renewals upon lapsing) at its
cost, the following types of insurance with an insurance carrier or carriers
licensed under the laws of the State of Florida and qualified to do business in
the State of Florida, holding a "Best Key Rating" of "B+" or better, as
subscribed by the A.M. Best Rating Co.: Libel Insurance with limits of no less
than $1,000,000 for any single party's claim arising out of a single occurrence
and no less than $1,000,000 for all claims arising out of a single occurrence as
well as workers compensation insurance, as required by Florida law.
21.3 Each party shall furnish to the other party, no later than upon
execution of this Agreement, certificates showing that the insurance required
under this Agreement is in force and fully paid and will furnish to the other
party renewal certificates evidencing the continuation of such insurance
coverage upon the scheduled lapsing or termination of any such insurance
policies. Each of the policies acquired by a party to this Agreement shall
contain a provision to the effect that it may not be cancelled except upon
thirty (30) days prior written notice to the other party to this Agreement.
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IN WITNESS WHEREOF, the parties have entered into this Agreement and set
their hands to same as of the day and year first above written.
THE MIAMI HERALD PUBLISHING
COMPANY, an unincorporated
division of Knight-Ridder,
Inc.
By: /s/ Joe Natoli
----------------------------
Name: Joe Natoli
Date: 11-19-97
--------
RADIO UNICA CORP.
By: /s/ Herbert M. Levin
-----------------------------
Name: Herbert M. Levin
Date: 11/18/97
---------
ACCEPTED AND AGREED
TO BY:
New World Broadcasting, Inc.
By: /s/ Adib Eden
-------------------------
Name: Adib Eden
----------------------
Date: 11/18/97
----------------------
MIA4-531687.12
11
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Exhibit 10.19
AGREEMENT
This Agreement (the "Agreement") dated as of January 15, 1998 is entered
into by and between Radio Unica Corp. ("RUC") having a business address at 2
Alhambra Plaza, Suite 508, Coral Gables, Florida 33134 and Jorge Ramos
("Contractor") having an address at 10546 N.W. 52nd Terrace, Miami, Florida
33178.
The parties agree as follows:
Section 1. Term: RUC agrees to retain Contractor as an independent
contractor to provide the Services (as defined in Section 2 below) upon the
terms and conditions set forth herein from November 17, 1997 through the end of
the 1998 World Cup Event (as defined in Section 2 below) signified by its
closing ceremonies, plus a time period thereafter reasonably necessary to
finalize 1998 World Cup Event matters that are within or related to the Services
hereunder (the "Ending Date"), unless sooner terminated pursuant to the terms
set forth herein (the "Term"). It is acknowledged and agreed that during the
15-day period immediately following the closing ceremonies, Contractor will be
on vacation and will not be available to provide Services during such period. By
way of estimation and not limitation, the Ending Date is estimated to occur on
or prior to August 31, 1998. Contractor hereby agrees to serve in such capacity
and perform the Services during the Term upon the terms and conditions set forth
herein.
Section 2. 1998 World Cup Event/Services:
(a) The 1998 World Cup Soccer Championship Games is a series of soccer
matches (each, a "Match" and collectively, the "Matches"), together with opening
and closing ceremonies for the matches and the Sorteo (each, a "Ceremony" and
collectively, the "Ceremonies"), scheduled to take place in France during the
period from June 10, 1998 through July 12, 1998, except for the Sorteo which is
scheduled to take place during December 1997 (collectively, the "1998 World Cup
Event"). The 1998 World Cup Event will be organized and overseen by the
Federation Internationale de Football Association ("FIFA"). Organizacion de la
Television Iberoamerica ("OTI") owns certain rights to the 1998 World Cup Event,
certain of which were granted by OTI to Univision Network Limited Partnership
("Univision") and certain of which (namely, exclusive Spanish-language radio
broadcast rights in the United States, excluding its territories and
possessions, to the 1998 World Cup Event, the "Radio Rights") were granted by
Univision to RUC under a Radio Broadcasting Rights Agreement (the "Broadcasting
Rights Agreement") between RUC and Univision dated as of July 30, 1997.
(b) (i) During the Term, Contractor shall provide the following services
(the "Services") to RUC:
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(A) Services as producer and host of RUC's Spanish-language radio
broadcasts of each of the Matches and Ceremonies (except for any Matches or
Ceremonies that RUC, in its sole discretion, may choose not to broadcast) using
the Basic Feed, as defined in the Broadcasting Rights Agreement, for the Matches
and the Ceremonies that RUC so chooses to broadcast (collectively, the "Radio
Broadcasts"), as further described in subpart (b)(ii) below;
(B) Scheduling, developing, organizing and conducting any and all
activities necessary in order to pre-produce, produce, host and broadcast the
Radio Broadcasts in accordance with this Agreement and the Broadcasting Rights
Agreement (in particular, and not by way of limitation, in accordance with
Section 1.4 of the Broadcasting Rights Agreement which requires compliance with
restrictions and limitations that may be imposed by FIFA, OTI, the local
sponsoring organization(s) and the host broadcasting organization(s), including,
without limitation, those set forth in Exhibit B to the Broadcasting Rights
Agreement);
(C) Coordinating with FIFA, OTI and Univision, and all other relevant
organizations or persons, as necessary to facilitate and complement the Radio
Broadcasts, including, without limitation, attending necessary planning sessions
with those organizations or persons;
(D) Retaining, directing and supervising staff members, each a "Staff
Member," as necessary and appropriate to assist in connection with the Services
hereunder (such Staff Members will provide services in an independent contractor
relationship with RUC and will be compensated by RUC, subject to subpart (b)
below);
(E) Providing or causing to be provided necessary and appropriate
technical resources for the Radio Broadcasts; and
(F) Providing any other services requested by RUC in connection with,
or as necessary and appropriate to accomplish, pre-production, production and
hosting of the Radio Broadcasts by Contractor, and generally, in connection
with, the Radio Broadcasts.
Subject to the acknowledgments, agreements, representations and warranties
regarding the Telemundo Contract referenced in Section 9 below, Contractor shall
be available at such times and places as RUC shall designate in order to provide
the Services hereunder, including, without limitation, the times and places for
the Matches and Ceremonies that RUC chooses to broadcast. Contractor shall
provide all Services in accordance with all terms of, and shall not act in a
manner that violates any terms of, this Agreement or the portions of the
Broadcasting Rights Agreement attached hereto as Exhibit A, and shall be
responsible for any costs or losses to RUC that may arise from any such
violation. Contractor acknowledges his receipt, review and understanding of said
portions of the Broadcasting Rights Agreement.
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(ii) Contractor shall provide services as producer and host in person
at each of the Matches and Ceremonies that RUC chooses to broadcast, therefore
requiring Contractor's attendance in person at each of those events. More
specifically, Contractor shall, for each of the Radio Broadcasts, use the Basic
Feed, as defined in the Broadcasting Rights Agreement, to produce and edit for
radio broadcast by RUC an audio play-by-play description of the subject Match or
Ceremony containing voice-over descriptions and to incorporate in such
broadcasts the audio soundtrack of the Basic Feed containing background noise,
but not the video signal or any play-by-play or other narrative descriptions
contained in the Basic Feed or provided by Univision, as described in Section
1.2(c) of the Broadcasting Rights Agreement. Contractor shall incorporate into
any such broadcast(s) material requested by RUC, including, without limitation,
references by Contractor to certain commercial sponsors, advertisers or entities
or events related to RUC or the Matches, Ceremonies or related events or
drop-ins, voice-overs, vignettes or promotional mentions by Contractor that
refer to any of such parties or events (and subject to the limited prior
approval rights of Contractor with respect to certain of such references, as set
forth in Section 5 below).
(c) Any decisions with respect to retaining and compensating Staff Members
shall require the prior written consent of RUC's Chief Financial Officer or his
appointee and any retained Staff Member shall be required to sign an independent
contractor agreement with RUC in a reasonable form provided by RUC setting forth
the terms of retention.
(d) RUC shall pay all costs and expenses incurred by Contractor in
connection with his Services hereunder, so long as (i) such costs and expenses
are for items identified in the 1998 World Cup Event budget (the "Budget")
prepared by Contractor, attached hereto as Exhibit B and incorporated herein,
and do not exceed the amounts set forth in the Budget for said items or (ii)
such costs and expenses are agreed to in writing by RUC's Chief Financial
Officer or his appointee prior to Contractor's incurring the costs and expenses.
As between RUC and Contractor, Contractor shall be solely responsible for the
payment of any costs and expenses incurred other than as set forth this Section
2(c).
Section 3. Compensation:
(a) RUC shall pay to Contractor as compensation for his Services hereunder
the sum of $82,000 (the "Compensation Amount"), payable as set forth in Section
3(b) below.
(b) Conditioned upon Contractor's full and faithful performance of all
terms of this Agreement to RUC's reasonable satisfaction, the Compensation
Amount shall be payable to Contractor as follows:
(i) $42,000 on or before January 31, 1998;
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(ii) $20,000 on or before July l, 1998; and
(iii) $20,000 on or before August 15, 1998.
(c) RUC shall use its good faith efforts to make available to Contractor
tickets collectively valued at approximately $2,000, which tickets will be
purchased by Contractor at his sole cost.
Section 4. Independent Contractor Status:
(a) It is expressly understood and agreed that Contractor shall act as an
independent contractor and shall perform the Services under this Agreement as an
independent contractor. The parties intend for this Agreement to create an
independent contractor relationship. Nothing herein shall be construed as
creating a joint venture, partnership, employment or agency relationship between
RUC and Contractor. Accordingly, except as expressly provided in this Agreement,
no party to this Agreement has the authority, implied, apparent or expressed, to
lawfully bind the other with respect to any matter.
(b) RUC is interested in the results to be achieved by this Agreement, and
Contractor will have the power to select the means and methods of performing the
work required hereunder, with instructions from RUC as to the end results to be
accomplished. Contractor acknowledges that he is not an employee, agent or
servant of RUC. RUC shall not withhold, report or pay so-called withholding
taxes with respect to the compensation payable hereunder (such taxes shall
include, without limitation, federal income taxes, federal social security taxes
and Florida unemployment insurance taxes). Notwithstanding the foregoing, should
RUC be subjected to any expense or liability by reason of such failure to
withhold, report or pay such taxes (including, without limitation, penalties,
interest or attorneys' fees), Contractor agrees that he will indemnify and hold
RUC harmless therefrom; accordingly, Contractor shall, upon demand, promptly
reimburse RUC for all such expenses. Contractor will be provided with a 1099
Form or other form required by the applicable state or federal authorities with
respect to Contractor's compensation under this Agreement.
(c) Pursuant to the Florida Worker's Compensation Act, RUC will not provide
worker's compensation insurance to the Contractor. It is understood that RUC
does not agree to use Contractor exclusively. Contractor shall not be eligible
for participation in any of RUC's employee or fringe benefit programs,
including, without limitation, profit sharing, vacation, disability, retirement,
deferred compensation, and medical or disability insurance that RUC may maintain
for its employees.
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Section 5. Ownership of and Rights to Radio Broadcasts and 1998 World Cup
Event Materials: Contractor acknowledges and agrees that he shall have no
ownership interest in the Radio Broadcasts, the Radio Rights or any 1998 World
Cup Event trademarks or 1998 World Cup Event materials created or owned by RUC,
or any portion thereof. Said items shall be owned by RUC, and RUC shall have the
right to exploit any or all of said materials in any form, manner or media
during and after the Term, as between the parties hereto, in RUC's sole
discretion, without limitation and without any further consideration to
Contractor. Contractor acknowledges that his name, voice, performances and
services hereunder and the results and proceeds of those performances and
services may be so exploited by RUC for profit or otherwise by any means or
method. Contractor hereby acknowledges that RUC is the owner of (a) said results
and proceeds, (b) the right to use and to permit others to use Contractor's
name, voice, and biographical material for and in connection with use of said
results and proceeds (it being understood that said right is exclusive to RUC
only as to said result and proceeds) and (c) all rights of every kind and nature
in and to said results and proceeds. In the event that RUC wishes to use said
materials and results and proceeds in connection with a commercial sponsor,
advertiser or other party, RUC shall have the right, in its sole discretion, to
do so; provided that should Contractor be asked to provide additional services
or appearances specifically in connection with said sponsor, advertiser or other
party, then Contractor's prior approval and agreement to said additional
services and appearances shall be required and shall not be unreasonably
withheld. The parties acknowledge and agree that the references mentioned in the
last sentence of Section 2(b)(ii) above shall not constitute "additional
services or appearances specifically in connection with the sponsor, advertiser
or other party," as such phrase is used in the immediately preceding sentence,
unless such references are in the form of pre-recorded commercial advertisements
by Contractor for a sponsor, advertiser or other party that are greater than
thirty (30) continuous seconds in length, which advertisements are aired during
advertising time or commercial breaks, not within the context of a Match or
Ceremony broadcast.
Section 6. Termination:
(a) RUC may terminate this Agreement at any time during the Term for Cause
upon notice thereof to Contractor. For the purposes of this Agreement, "Cause"
shall mean (i) cancellation of the 1998 World Cup Event or RUC's right to
broadcast the Matches and Ceremonies for reasons outside the control of RUC,
(ii) Contractor's willful misconduct in the performance of (or failure or
refusal to perform) the Services hereunder, including, without limitation,
pre-production, hosting or production services, or breach of any term of this
Agreement; (iii) Contractor's fraudulent, reckless, immoral or unlawful behavior
or occurrence of any of the circumstances identified in Section 6(b) below
whether or not in connection with his independent contractor relationship
hereunder or the Services hereunder or (iv) Contractor's negligent performance
of the Services hereunder; (v) the circumstance referenced in the final sentence
of Section 9 below or (vi) a material change in Contractor's voice such that it
is no
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longer appropriate or desirable for radio broadcasts. This Agreement may
also be terminated by RUC if Contractor fails to perform his Services for a
period in excess of twenty (20) days, whether or not consecutive, during the
Term, whether as a result of disability or otherwise.
(b) Contractor shall, during the Term, conduct himself with due regard to
public morals and conventions. If, during the Term, Contractor (i) is charged by
a governmental authority with the commission of a felony or with any offense
involving moral turpitude, (ii) performs any act or makes any oral or written
statement which tends to place RUC or its employees or agents in public
ridicule, controversy or contempt or (iii) performs any act which causes, or can
reasonably be anticipated to cause, substantial impairment of the commercial
value to RUC of the Services hereunder, then such circumstance shall constitute
"Cause" under Section 6(a)(iii) above.
(c) Upon termination of this Agreement under this Section 6, RUC's sole
obligation following termination shall be to pay to Contractor a prorated amount
of the Compensation Amount, calculated as follows. Solely for purposes of
proration of the Compensation Amount hereunder, the parties acknowledge and
agree that the Compensation Amount of $82,000 is compensation for a term from
November 17, 1997 through August 31, 1998 (the "Time Period") and that the
prorated amount payable to Contractor for Services hereunder provided prior to
termination under this Section 6 or otherwise shall be equal to the Compensation
Amount multiplied by (the number of days in the Time Period prior to termination
----------
divided by the total number of days in the Time Period), the "Prorated Amount."
- -------
If the Prorated Amount exceeds the Compensation Amount received by Contractor
prior to any such termination, then said excess amount shall be payable to
Contractor by RUC upon termination. If the Prorated Amount is less than the
Compensation Amount received by Contractor prior to any such termination, then
the difference between said amounts shall be payable by Contractor to RUC upon
termination.
(d) Consistent with the provisions set forth in this Section 6 above that
provide for early termination of this Agreement, this Agreement is not intended
to and does not guarantee or assure RUC's engagement or retention of Contractor
through the conclusion of the 1998 World Cup Event and any such guarantee or
assurance is hereby expressly disclaimed.
(e) Any termination in accordance with this Section 6 is in addition to any
other rights the terminating party may be entitled to by the terms of this
Agreement or by law.
Section 7. Indemnification:
(a) Contractor hereby agrees to indemnify and hold harmless RUC and its
respective directors, officers, agents and employees, from and against any
damages, losses, claims, suits or liabilities or actions, and reasonable
expenses as incurred (including the expense of
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investigation and preparation and reasonable fees and disbursements of RUC and
such persons' counsel) resulting from Contractor's gross negligence or willful
misconduct hereunder or Contractor's breach of this Agreement. The foregoing
agreement shall be in addition to any rights that RUC or any indemnified person
may have at common law or otherwise.
(b) RUC hereby agrees to indemnify and hold harmless Contractor from and
against any damages, losses, claims, suits or liabilities or actions, and
reasonable expenses as incurred (including the expense of investigation and
preparation and reasonable fees and disbursements of Contractor and his counsel)
resulting from RUC's gross negligence or willful misconduct hereunder or RUC's
breach of this Agreement. The foregoing agreement shall be in addition to any
rights that Contractor may have at common law or otherwise.
Section 8. Confidentiality:
(a) Contractor acknowledges and agrees that (i) all of RUC's Confidential
Information (as defined below) is the property of RUC, (ii) Contractor shall
have no right to use any Confidential Information except in connection with the
business of RUC and (iii) Contractor will have access to and will use the
Confidential Information in connection with his relationship with RUC hereunder.
(b) Contractor shall not, directly or indirectly, use, disseminate or
disclose to third parties any Confidential Information. Upon expiration or
termination of the Term, all documents, records and other information containing
Confidential Information shall be returned to RUC.
(c) For the purposes of this Agreement, "Confidential Information" shall
mean any non-public (so long as the information was not made public through
release of the information by Contractor to third parties in violation of this
Section 8) or proprietary information or trade secrets of RUC or any affiliate
of RUC, including without limitation, personnel information, financial
information, customer lists, rate cards, revenue data, supplier lists, ownership
information, plans, analyses, trade secrets, licenses, copyrights and
trademarks, management agreements, know-how, marketing plans, leases and
computer software and any other processed or collected data.
(d) Contractor acknowledges and covenants that any Confidential Information
he has acquired or in the future acquires for or with respect to RUC will be
received and held in confidence and as a fiduciary with respect to RUC.
Contractor hereby assigns to RUC any rights he may have or acquire in RUC
Confidential Information in performance of his Services hereunder.
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Section 9. Representations and Warranties: Contractor represents and
warrants that he has the full authority and right to enter into this Agreement
and the full authority and right to perform the Services under this Agreement.
Contractor further represents and warrants that he is proficiently qualified and
skilled to perform the Services under this Agreement. RUC acknowledges that
Contractor is, as of the date of this Agreement, and may throughout the Term be,
a party to a contract with Telemundo (the "Telemundo Contract") to provide
services as a television program host. RUC acknowledges and agrees that
Contractor will be required to concurrently provide services under the Telemundo
Contract and this Agreement and that Contractor will be required to resolve
conflicts that may arise in connection therewith. Contractor represents and
warrants to RUC, as a material inducement to RUC entering into this Agreement,
that he has informed Telemundo of the existence, scope and nature of this
Agreement, that Telemundo does not object to Contractor's Services hereunder,
that the Telemundo Contract does not prohibit Contractor from entering into this
Agreement or providing Services hereunder and that such conflicts and the
resolution thereof will not materially impair or interfere with Contractor's
ability to provide Services hereunder (in the event that the conflicts do so
materially impair or interfere, in RUC's sole discretion, such circumstance
shall be deemed "Cause" under Section 6(a) hereof). It is understood and agreed
that, except in the event of a conflict involving non-appearance for a Match or
Ceremony broadcast, an isolated, non-repeated conflict shall not constitute such
a material impairment or interference.
Section 10. Survival; Injunctive Relief: The provisions of Sections 4, 5, 7
and 8 above and Sections 12 and 13 below shall survive termination of this
Agreement. In the event Contractor breaches the provisions of Sections 8 above,
in addition to the other remedies at law or in equity that may be available to
RUC, Contractor acknowledges and agrees that RUC shall have grounds for
injunctive relief in addition to any other relief that may be available to RUC.
Section 11. Entire Agreement; Waiver; Severability: This Agreement
constitutes the entire agreement between the parties with respect to the subject
matter hereof. All other previous agreements or writings are therefore
superseded. Any waiver of a party's breach of any provision of this Agreement
shall not be taken, construed, or held to be a waiver for any breach thereafter
or any other provision hereof. Wherever possible, each provision of this
Agreement will be interpreted in such manner as to be effective and valid under
applicable Florida law. However, if any provision of the Agreement is held to be
invalid, illegal or unenforceable, the remaining provisions shall remain in
force as if the invalidated provision did not exist.
Section 12. Jury Waiver; Attorneys' Fees: Each party hereto knowingly,
voluntarily and intentionally waives the right that it may have to a trial by
jury with respect to any actions arising out of or in connection with this
Agreement or Contractor's independent contractor relationship hereunder. In any
action at law or in equity to enforce
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or interpret the terms of this Agreement, the prevailing party shall be entitled
to reasonable attorneys' and paralegal fees, costs and expenses, including fees
and costs at the appellate level, in addition to any other relief to which it
may be entitled.
Section 13. Choice of Law, Venue, Notices: This Agreement shall be governed
by and construed in accordance with the laws of the State of Florida. The venue
for any actions arising out of this Agreement shall be courts located in Dade
County, Florida. Any written notices hereunder shall be sent to the respective
parties at the addresses first set forth above.
Section 14. Modification; Assignment: No modification of any terms of this
Agreement shall be effective unless in writing and signed by both parties to
this Agreement. This Agreement for personal services may not be assigned by
Contractor but may be assigned by RUC, without limitation.
Section 15. Counterparts: This Agreement may be executed and delivered in
two or more counterparts, each of which shall be deemed to be an original and
all of which, taken together, shall be deemed to be one agreement.
Radio Unica Corp.
By: /s/ Steven E. Dawson /s/ Jorge Ramos
------------------------------------- -------------------------
Jorge Ramos
Date: 1/15/98 Date: 1-14-98
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Exhibit 10.20
AMENDED AND RESTATED
ARTIST AGREEMENT
This Amended and Restated Artist Agreement (the "Agreement") is dated
as of June 5, 1998 and is between Radio Unica Network, Inc. a Delaware
corporation (the "Corporation") with a principal place of business located at
8400 N.W. 52nd Street, Miami, Florida 33166 and Raque Productions, a Florida
corporation ("Raque Productions") with a principal place of business located at
7230 S.W. 104th Street, Miami, Florida.
RECITALS
A. Pedro Sevcec (the "Artist") is currently providing services to Radio
Unica Corp., the Corporation's parent company, as the host of a live, Spanish
language radio program pursuant to the terms of a certain Artist Agreement dated
June l, 1997 (the "Original Agreement").
B. Radio Unica Corp., through its wholly-owned subsidiary, the Corporation,
desires to continue to engage Artist through Raque Productions, a corporation
owned and controlled by Artist, and Artist, through Raque Productions, desires
to continue to provide services to Radio Unica Corp. indirectly through the
Corporation in accordance with the terms of this Agreement which amends,
restates and replaces the Original Agreement.
NOW, THEREFORE, in consideration of the mutual undertakings herein set
forth, the parties agree as follows:
(1) Engagement; Exclusivity. The Corporation hereby engages Raque
Productions to cause Artist to render his exclusive (as further described in
Section 9 below) services to the Corporation during the term of this Agreement.
Raque Productions hereby accepts such engagement, and undertakes to, and to
cause the Artist to, perform all the duties and obligations to be performed
hereunder.
(2) Duties and Services.
(a) The Artist's services shall consist of hosting a live
Spanish-language radio program (the "Program") for up to, but no more than,
three (3) hours a day, five (5) days per week, for a total of up to, but no more
than, two hundred sixty (260) shows per year.
(b) Raque Productions shall cause the Artist to make himself available
for a reasonable number of personal appearances at the Corporation's request in
connection with the Program at no additional charge, not to exceed four (4) per
calendar quarter, provided that the appearances do not interfere with the
Artist's prior bona fide professional contractual commitments.
<PAGE>
All reasonable expenses for such appearances including travel and hotels, if
necessary, shall be the responsibility of the party requesting that the Artist
make such an appearance.
(c) Raque Productions shall cause the Artist to record a reasonable
number of personalized promotional announcements for the Program on behalf of
the Corporation and the stations clearing the Program, which announcements shall
be subject to the prior approval of the Corporation. Raque Productions shall
also cause the Artist to provide a reasonable number of live lead-ins and
opening and closing billboards.
(d) In the event that Corporation provides notice to Raque Productions
of any particular subject matter that shall not be addressed or discussed on the
Program, Raque Productions shall cause the Artist not to, following receipt of
said notice from Corporation, address or discuss (or allow to be addressed or
discussed) such subject matter on the Program. Raque Productions shall cause the
Artist to provide to Corporation descriptions of the subject matter for upcoming
Program broadcasts, periodically during the term and promptly upon any request
therefor by the Corporation. In the event that the Corporation provides notice
to Raque Productions of any subject matter (including, without limitation,
references by the Artist to certain commercial sponsors, advertisers or entities
or events related to Corporation or the Program or voice-overs, vignettes or
promotional mentions by the Artist that refer to any such parties or events
requested by Corporation) that Corporation wishes to be referred to, addressed
and discussed on the Program or of any other requests of Corporation with
respect to program format, Raque Productions shall, promptly following receipt
of said notice from Corporation, cause the Artist to comply with Corporation's
request(s) in any such notice.
(3) Term. The term of this Agreement commenced on June 1, 1997 and shall
continue for a period of three (3) years from the date first set forth above
(the "Initial Term"), unless further extended as provided in Section 5 or
Section 14, or sooner terminated as provided in Section 16 or Section 17. The
aforesaid period is herein called the Initial Term.
(4) Compensation. Provided that the services to be performed hereunder are
satisfactorily performed, the Corporation shall pay to Raque Productions for the
services and for all rights herein granted and agreed to be granted to the
Corporation the following:
(a) A creative fee ("Creative Fee") of Forty Thousand dollars ($40,000)
per annum, payable monthly; provided that for the months December 1997 through
September 1998, Creative Fee payments shall be payable in a lump sum amount
equal to $3,333 multiplied by ten (10), or $33,333, on October 1, 1998 or
October 2, 1998.
(b) Additional compensation ("Commission Amounts") of fifteen percent
(15%) of Net Program Revenue (as defined in Exhibit A attached hereto and
incorporated herein), payable thirty (30) days following receipt of Net Program
Revenue; provided that said Commission Amounts shall total no less than $110,000
per 12-month period during the Initial Term (or a pro-rata portion
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thereof for any partial 12-month period) commencing as of December 1, 1997, and
through the remainder of the term ("Minimum Commission Amount") regardless of
the amount of Net Program Revenue generated during the 12-month period during
the Initial Term, with the positive difference (if any) between the Minimum
Commission Amount and all Commission Amounts paid to Raque Productions during
such 12-month period payable to Raque Productions within forty-five (45) days of
the conclusion of each such 12-month period; provided that for the 12-month
period commencing December 1, 1997 and ending November 31, 1998, any such
positive difference will be paid to Raque Productions on October 1, 1998 or
October 2, 1998 (and if and to the extent that Commission Amounts less than or
equal to the amount of the positive difference so paid to Raque Productions on
October 1, 1998 or October 2, 1998 become payable to Raque Productions based
upon Net Program Revenue during October 1998 or November 1998, then such
positive difference amount shall constitute an advance of said October 1998 and
November 1998 Commission Amounts such that no additional Commission Amounts up
to such positive difference amount shall then be payable to Raque Productions).
(c) Artist has been granted certain options to purchase shares of the
Corporation's common stock, which options are represented by the five Stock
Option Certificates attached hereto and incorporated herein as Exhibit B and are
issued pursuant to and governed by the 1997 Stock Option Plan of the Corporation
(the "Plan"). A copy of the Plan is also attached as Exhibit B.
(d) Raque Productions acknowledges that except as specifically
referenced in Section 4(a) above, all compensation payable for services rendered
by the Artist prior to the date first set forth above has been paid by the
Corporation. Upon termination of this Agreement, whether through natural
expiration of the Term, premature termination of term or otherwise (except as
specifically set forth in Section 15(a) below), compensation amounts referenced
in Section 4(a) and 4(b) above shall only be due and payable through the date of
termination (based upon a pro-ration of the Creative Fee amount and the Minimum
Commission Amount through the date of termination).
(5) Option to Extend Term.
(a) In consideration of the execution of this Agreement by the
Corporation, Raque Productions hereby grants to the Corporation the following
rights or options: To extend the term of the Agreement for an additional period
of one (1) year (herein called the First Extension Period) from the expiration
of the Initial Term, upon the same terms and conditions as those herein
contained.
(b) The foregoing option may be exercised no later than thirty (30)
days prior to the expiration of the Initial Term by notice served upon Raque
Productions.
(c) Whenever in this Agreement the words "the terms hereof" or "the
term of this agreement" are used; such words shall mean and include not only the
Initial Term, but also the First Extension Period if the option with respect
thereto is exercised.
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(6) Right of First Refusal. Upon termination or expiration of this Agreement
or termination of the contractor relationship created hereunder, whichever
occurs later, and for a period of six (6) months thereafter, Raque Productions
shall (and shall cause the Artist to) prior to entering into an agreement with a
third party for services on or to any radio station or radio network, first
submit to the Corporation the name of the third party and terms and conditions
which Raque Productions or the Artist is prepared to accept from the third
party, and the Corporation shall have the right, within twenty-one (21) business
days after receipt of such terms and conditions, to notify Raque Productions or
the Artist that the Corporation elects to enter into an agreement with Raque
Productions or the Artist on those identical terms and conditions. If the
Corporation does not respond within the twenty-one (21) business days, Raque
Productions or the Artist shall be free to enter into an agreement with the
third party on the terms and conditions submitted to the Corporation.
(7) Performance. Raque Productions shall cause the Artist to devote all
necessary time, attention and energy to the performance of his services
hereunder; to perform the same conscientiously and to the full limit of his
ability at all times and to promptly and faithfully comply with all the
reasonable instructions, directions, requests, rules and regulations of the
Corporation m connection therewith.
(8) Place of Performance. The services to be rendered hereunder shall be
rendered in Miami-Dade County, Florida or, subject to the approval of the
Corporation, at such place or places outside Miami-Dade County, Florida, taking
into consideration Artist's prior television or other commitments; it being
understood that Artist shall be available to provide services in Miami-Dade
County at each live Program broadcast.
(9) Radio Services Exclusive.
(a) Raque Productions and the Artist agree to the Corporation's
exclusive right to Artist's services in the fields of network or syndicated
radio or continuing radio series in the Spanish language; it being specifically
understood that Artist will not, so long as this Agreement shall continue in
effect, without the Corporation's prior written consent, appear or perform any
services whatsoever, live, by recording, or otherwise, on any radio syndicator
network or on any radio stations in the Spanish language; except that Artist may
make occasional guest appearances on single or continuing programs on network or
local radio stations or radio network, and may additionally, subject to the
prior written consent of the Corporation, which shall not be unreasonably
withheld, provide his services as a spokesperson in commercial advertisements
and product endorsements.
(b) The Corporation recognizes that Artist has, in connection with his
performances on television, granted to others the right to use his name, voice
and likeness for the purpose of promoting and advertising the same. However,
Raque Productions and Artist shall not, during the term hereof, grant any such
right to any others (within the radio industry or any other industry) without
the Corporation's prior written consent, as specified in Section 9(a) above.
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(10) Artist's Conduct. Artist shall not during the term hereof act in a
manner tending to be offensive to decency, morality, or social propriety, or
tending to result in scandal, ridicule or contempt, or tending to provoke any
retaliatory action or boycott against himself or the Corporation.
(11) Ownership of Results and Proceeds.
(a) In addition to Artist's services, the Corporation shall be entitled
to, and shall own solely and exclusively, all the results and proceeds thereof,
and all rights of every kind therein. Raque Productions and Artist acknowledge
and agree that they shall have no ownership interest in the Program or any
Program materials, marks or concepts created or owned by the Corporation, or any
portion thereof. Said items shall be owned by the Corporation, and the
Corporation shall have the right to exploit any or all of said materials in any
form, manner or media during and after the term of this Agreement, as between
the parties hereto, in the Corporation's sole discretion without limitation and
without any further consideration to Raque Productions. The parties agree that
Artist is a contractor "for hire" and that the Program shall be considered a
"work made for hire" under the United States Copyright Act of 1976, as amended.
To the extent that the Program is not deemed a "work made for hire," Artist and
Raque Productions hereby assign to the Corporation all rights, title and
interest in and to the Program. Raque Productions and Artist acknowledge that
Artist's name, voice, performances and services hereunder and the results and
proceeds of those performances and services may be so exploited by the
Corporation for profit or otherwise by any means or method. Raque Productions
and Artist hereby acknowledge that the Corporation is the owner of (i) said
results and proceeds, (ii) the right to use and to permit others to use Artist's
name, voice, and biographical material for an in connection with use of said
results and proceeds (it being understood that said right is exclusive to the
Corporation only as to said result and proceeds) and (iii) all rights of every
kind and nature in and to said results and proceeds.
(b) Raque Productions and Artist hereby assign and transfer to the
Corporation all their right, title and interest in such results and proceeds,
without reservation, condition or limitation. If the Corporation desires to
secure separate assignments thereof, Raque Productions and/or Artist shall
promptly execute and deliver the same to the Corporation upon request.
(c) Raque Productions and Artist shall not transfer or attempt to
transfer to anyone other than the Corporation, any right, title or interest in
or to any of the foregoing, nor shall Raque Productions or Artist at any time
make or purport to make any grant to any third party in derogation thereof.
(d) The provisions of this Section 11 shall remain in full force and
effect regardless of the termination of this Agreement, and regardless of
whether such termination occurs through expiration or as a result of
cancellation by the Corporation.
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(12) Use of Name and Likeness.
(a) Except as otherwise specifically provided in Section 12(b) below,
the Corporation shall have the exclusive right during the term hereof to use
Artist's name, voice and likeness for advertising and promoting the radio
programs and the radio network for which Artist has rendered services to the
Corporation, and the non-exclusive right to use the same after the termination
of this agreement in connection with the above.
(b) The use hereinabove referred shall not, without Raque Productions's
written consent, include the use of Artist's name, voice or likeness for general
commercial purposes, such as the advertising or promotion of a product, service
or station, by way of endorsement or otherwise (notwithstanding references of
the type referred to in the parenthetical in Section 2(d) above which shall not
require the prior written consent of Raque Productions).
(13) Insurance. The Corporation shall have the right to apply, at any time
or from time to time, in its own name or otherwise, and at its own expense, for
life, health, accident or other insurance covering Artist, in order to protect
its interest hereunder. Raque Productions shall and shall cause Artist to assist
the Corporation in procuring such insurance by submitting to the customary
medical examination and by signing such papers as may reasonably be required in
connection therewith. Raque Productions and Artist shall have no right, title or
interest in or to such insurance.
(14) Corporation's Right to Suspend. The Corporation shall have the right to
suspend the operation of this Agreement, both as to services and compensation,
for a period equal to all or any part of the period or aggregate of periods
during which any contingency mentioned in Section 17 occurs. No compensation
shall be due for the duration of such suspension period, either during or after
the period.
(a) The Corporation shall give Raque Productions immediate notice of
any suspension.
(b) Upon the resumption of the operation of this Agreement, the
Corporation shall have the right to extend the term hereof for a period equal to
all or any part of the period of suspension.
(c) Any such right of extension shall be exercised by notice served
upon Raque Productions prior to the expiration of the then current period.
(15) Corporation's Right to Terminate.
(a) Termination by Corporation Without Cause. The Corporation shall
have the right to terminate and cancel this Agreement without cause, at any time
upon ninety (90) days' prior written notice to Raque Productions. Upon
termination without cause, the Corporation shall pay to
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Raque Productions for Artist a severance compensation package equal to three (3)
months of the Creative Fee applicable at the time of termination.
(b) Termination by Corporation for Cause. The Corporation shall have
the right, at its option, to terminate this Agreement at any time upon or during
the occurrence of the following: (1) any contingency mentioned in subsection (a)
of Section 17 if it continues for more than two (2) weeks; or (2) any
contingency mentioned in subsection (b) of Section 17 if it continues for more
than six (6) weeks; or (3) any contingency mentioned in subsections (c), (d) or
(e) of Sections 17.
(c) No Further Obligations. In the event of the termination of this
Agreement in accordance with the foregoing provisions, the Corporation shall
upon such termination, be released from all further obligations to Raque
Productions and Artist hereunder, except that it shall be liable to Raque
Productions for such compensation as may have been unpaid and due prior thereto.
Termination by the Corporation shall not be deemed to be a waiver on its part of
any other rights or remedies it may have by reason of the circumstances on which
the termination is predicated.
(16) Raque Productions's Right to Terminate. Raque Productions shall have
the right to terminate this Agreement any time during the occurrence of any
contingency mentioned in subsection (b) of Section 17 if the Corporation has
suspended this Agreement for such contingency and such suspension continues for
a period of six (6) weeks or more. If Raque Productions elects to terminate as
aforesaid, it shall do so by notifying the Corporation to that effect upon the
expiration of the six-week (6) period. If within five (5) days after receipt of
Raque Productions's notice of termination, the Corporation resumes the payment
of compensation to Raque Productions and continues such payment during the
remainder of the continuance of the contingency, then notwithstanding Raque
Productions's notice, this Agreement shall not be terminated, but shall remain
in full force and effect. However, in that event the Corporation shall not
thereafter have the right to suspend or terminate this Agreement for the same
contingency, whether occurring during the same period of the term hereof or
during any subsequent option period.
(17) Contingencies. The contingencies mentioned in Sections 14, 15 and 16
shall be as follows:
(a) The inability of Artist to fully perform the services required
hereunder by reason of mental or physical incapacity or accident or any other
cause that renders such non-performance excusable at law.
(b) The hampering or interruption of the operation of the Corporation's
business by force majeure or any other cause beyond the Corporation's control,
or the failure to achieve or sustain significant advertiser expenditures and/or
program ratings.
(c) The failure or refusal of Artist to render the services required
hereunder to the best of his ability as, when and wherever instructed by the
Corporation, except for any cause mentioned in subsection (a) or (b) of this
Section 17.
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(d) Artist's failure or inability to qualify for insurance at any time
during the original term hereof or during any option period.
(e) The breach by Raque Productions or Artist of any material provision
of this agreement.
(18) No Obligation to Use Services. Subject to Corporation's obligation to
pay Raque Productions the compensation specified in Section 4 (except as
otherwise provided in Sections 14 and 15) the Corporation shall not be obligated
to use Artist's services, and shall not be liable to Raque Productions or Artist
in any way for failure to do so in whole or in part.
(19) Equitable Relief. It is acknowledged that the services the Artist is to
render to the Corporation are of a special and extraordinary character that
gives them a unique value; that the loss of such services could not be
reasonably or adequately compensated by damages in an action at law; and that a
breach by the Artist of any provision hereof would cause the Corporation
irreparable injury.
(a) Accordingly, the Corporation shall be entitled to injunctive or
other equitable relief to prevent such breach.
(b) Resort by the Corporation to such relief shall not be construed as
a waiver by it of any other rights it might have for damages or otherwise.
(c) If Raque Productions or Artist at any time indicates to the
Corporation that the Artist does not intend to perform his obligations
hereunder, such indication shall constitute a breach hereunder.
(d) The Corporation's rights and remedies by reason of Artist's or
Raque Productions's breach of obligations hereunder shall be cumulative; and the
exercise of any one of more of them shall not be exclusive of any other or
others the Corporation might have under this Agreement by law.
(20) Non-Disclosure of Confidential Information. Raque Productions
acknowledges that the Artist will be given access to Confidential Information of
the Corporation which means all trade practices, plans advertising rate lists,
supplier lists, customer lists, marketing plans, financial information, and all
other compilations of information which relate to the business of the
Corporation, or any affiliate, customer or supplier of the Corporation, and
which the Corporation has not disclosed to the public, or which is not otherwise
generally available to the public. Except with the express prior written consent
by Corporation, Raque Productions shall not, and shall cause Artist not to,
directly or indirectly, communicate, disclose or divulge to any person, or use
for his or its benefit or the benefit of any person, in any manner any
Confidential Information of the Corporation acquired during his or its
relationship with the Corporation, or any other confidential information
concerning the conduct and details of the business of the Corporation prior to
and after
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the date hereof, except as required in the course of rendering services to the
Corporation or as otherwise may be required by law.
(21) Compliance with Section 508 of the Communications Act of 1934. The
parties understand and agree that Raque Productions shall cause Artist to comply
with the provisions of Section 508 of the Communications Act of 1934, as
amended. Without limiting the Corporation's right to terminate for any other
cause, the Corporation shall have the right, upon violation of this provision,
immediately to terminate this Agreement and the contractor relationship created
hereunder for cause.
(22) Right to Contract. Raque Productions represents and warrants to the
Corporation that it has the full right and power to enter into this Agreement
and to cause Artist to perform as described herein; that it and Artist do not
now have, nor will at any time hereafter enter into, any contract or commitment
with any third party that will prevent or interfere with the full and complete
performance of its and Artist's obligations hereunder, or with the full exercise
and enjoyment by the Corporation of its rights hereunder.
(23) Relationship of Parties. The parties agree that Artist is acting as an
independent contractor hereunder in the furnishing of his services to the
Corporation. In connection therewith, Raque Productions shall have and assume
full and exclusive responsibility for, and shall indemnify the Corporation
against, any and all union payments, employer and employee contributions, taxes,
penalties, interest and other sums arising under any federal, state or local
laws, or any collective bargaining agreement, now or hereafter in effect, or
otherwise in connection with services contemplated hereunder. Nothing herein
contained shall be deemed to constitute a partnership between, or a joint
venture by, or any agency relationship between, or an employment relationship
between the parties. Neither party shall hold itself or himself out contrary to
the terms of this clause, by any means whatsoever. Neither party shall be bound
by, or become liable for, any representation commitment, act or omission
whatsoever of the other contrary to the provisions hereof.
(24) Covenant Not to Compete.
(a) During the term hereof and for a period of six (6) months after
this Agreement or the contractor relationship created hereunder has been
terminated for any reason (whichever occurs later), with or without a cause,
Artist shall not to compete directly or indirectly with the Corporation as an
on-air personality, officer or director of, as a consultant to, or as an
investor in any Spanish-language radio station, Spanish-language radio network
or Spanish-language radio station group operator (for example, and not by way of
limitation, Heftel or Spanish Broadcasting Systems) in any market in which the
Program has been broadcast, nor shall Raque Productions or Artist solicit,
interfere with or divert any other person who was, during the term hereof or the
six (6) month period thereafter, an artist, sponsor, on-air personality,
salesman, agent or other representative of the Corporation.
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(b) In view of the Artist's substantial experience in the radio
broadcasting environment and the nature of radio broadcasting, it may be
difficult or impossible for the Corporation to show irreparable injury resulting
from a breach of the covenant not to compete set forth in this Agreement. Raque
Productions agrees therefore that in the event of any breach of the aforesaid
covenant, irreparable injury to the Corporation will be presumed.
(c) Raque Productions agrees that, in the event of any breach by Raque
Productions of the covenant not to compete set forth in this Agreement, the six
(6) month period of noncompetition shall begin at such time as a finding of a
breach is made by a court of law.
(d) If it shall be determined that the duration or geographical limit
of any restriction contained in this covenant is unenforceable, it is the
intention of the parties that the restrictive covenant set forth herein shall
not hereby be terminated but shall be deemed amended to the extent required to
render it valid and enforceable, such amendment to apply only with respect to
the operation of this Section 24.
(25) Notices. All notices hereunder shall be in writing, and shall be served
by registered mail, telegraph or cable, duly addressed to the parties at their
respective addresses hereinabove given. Either party may specify a different
address for such purpose by notice given to the other in the same manner.
If to the Corporation: Joaquin F. Blaya
Radio Unica Corp.
8400 N.W. 52nd Street
Miami, Florida 33166
If to the Artist: Raque Productions
Attention: Pedro Sevcec
7230 S.W. 104th Street
Miami, Florida 33156
(26) Clause Headings. The headings of the clauses in this agreement are
solely for the purpose of convenience. They are not a part hereof, and shall not
be used in the construction of any provision.
(27) Construction. This Agreement shall be construed in accordance with the
laws of the State of Florida.
(28) Waiver. No waiver by either party of the breach of any provision of
this agreement shall be deemed to be a waiver of any preceding or succeeding
breach of the same or similar nature.
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(29) Modification. This agreement may not be changed or modified, nor may
any provision hereof be waived, except by an agreement in writing signed by the
party against whom enforcement of the change or modification is asserted.
(30) Assignment, Etc. This agreement shall ensure to the benefit of, and
shall be binding on, the Corporation's successors and assigns.
(31) Attorney's Fees. If any litigation, including arbitration, arises as a
result of the terms, conditions or provisions of this Agreement, the prevailing
party shall be entitled to recover reasonable attorneys' fees and paralegals'
fees at both the trial and appellate levels, as well as all costs and expenses.
(32) Agreement Complete. This agreement constitutes the entire understanding
between the parties. All previous representations and undertakings, whether oral
or written, have been merged herein.
IN WITNESS WHEREOF, the parties have executed this agreement this 5th day of
June, 1998.
RADIO UNICA NETWORK, INC.
By: /s/ Steven E. Dawson
--------------------------------------
Steven E. Dawson, CFO
RAQUE PRODUCTIONS, a Florida corporation
By: /s/ Pedro Sevcec
--------------------------------------
Pedro Sevcec
AGREED TO AND ACKNOWLEDGED BY:
/s/ Pedro Sevcec
- -------------------------------
Pedro Sevcec
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Exhibit 10.22
1998 STOCK OPTION PLAN
OF
RADIO UNICA HOLDINGS CORP.
1. Purpose. The purpose of this Stock Option Plan is to advance the
interests of the Corporation by encouraging and enabling the acquisition of a
larger personal proprietary interest in the Corporation by directors, key
employees, consultants and independent contractors who are employed by, or
perform services for, the Corporation and its Subsidiaries and upon whose
judgment and keen interest the Corporation is largely dependent for the
successful conduct of its operations. It is anticipated that the acquisition of
such proprietary interest in the Corporation will stimulate the efforts of such
directors, key employees, consultants and independent contractors on behalf of
the Corporation and its Subsidiaries and strengthen their desire to remain with
the Corporation and its Subsidiaries. It is also expected that the opportunity
to acquire such a proprietary interest will enable the Corporation and its
Subsidiaries to attract desirable personnel, directors and other service
providers.
2. Definitions. When used in this Plan, unless the context otherwise
requires:
(a) "Affiliate" with respect to a person shall mean
any person controlling, controlled by or under common control
with such person and any employee of such person.
(b) "Board of Directors" shall mean the Board of
Directors of the Corpo ration, as constituted at any time.
(c) "Cause" shall mean, with respect to the holder of
an Option , (a) a determination by the Board of Directors that
the holder has ceased materially to perform his duties (other
than as a result of such employee's incapacity due to physical
or mental illness or injury), which failure amounts to
intentional and extended neglect of his duties; (b) the
holder's conviction for a felony; (c) the commission by the
holder of an act of fraud or embezzlement; (d) intentional
misappropriation of property of the Corporation to the
holder's own use; or (e) the willful and material breach by
the holder of his obligations which is not cured within 10
days after notice of breach is given to the holder by the
Board of Directors.
<PAGE>
(d) "Chairman of the Board" shall mean the person who
at the time shall be Chairman of the Board of Directors.
(e) "Committee" shall mean the Committee hereinafter
described in Section 3.
(f) "Corporation" shall mean Radio Unica Holdings
Corp.
(g) "Fair Market Value" on a specified date shall
mean the closing price at which one Share is traded on the
stock exchange, if any, on which Shares are primarily traded,
or the last sale price or average of the bid and asked closing
prices at which one Share is traded on the over-the-counter
market, as reported on NASDAQ, but if no Shares were traded on
such date, then on the last previous date on which a Share was
so traded, or, if none of the above are applicable the value
of a Share as established by the Committee for such date using
any reason able method of valuation.
(h) "Initial Public Offering" shall mean the initial
public offering of shares of the Common Stock of the
Corporation pursuant to the Securities Act of 1933, as
amended.
(i) "Options" shall mean the stock options granted
pursuant to this Plan.
(j) "Plan" shall mean this 1998 Stock Option Plan of
Radio Unica Hold ings Corp. as adopted by the Board of
Directors on June 30, 1998, and approved by the shareholders
of the Corporation on June 30, 1998, as such Plan from time to
time may be amended.
(k) "Share" shall mean a share of common stock of the
Corporation.
(l) "Subsidiary" shall mean any corporation 50% or
more of whose stock having general voting power is owned by
the Corporation, or by another Subsid iary as herein defined,
of the Corporation.
3. Committee. The Plan shall be administered by a Committee of the
Board of Directors; provided, however, that from and after the effective date of
the Initial Public Offering, the Committee shall consist of two or more
directors of the Corporation, each of whom shall be a "Non-Employee Director"
within the meaning of Rule 16b-3 under the Securities Exchange Act of 1934, as
from time to time amended (the "Exchange Act"), and an "outside director" within
the meaning of Section 162(m) of the Internal Revenue Code of 1986, as amended
(the "Internal Revenue Code"). The members of the Committee shall be selected by
the Board of Directors. Any member of the Committee may resign by giving written
notice thereof to the Board of Directors, and any member of the Committee may be
removed at any time, with or without
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cause, by the Board of Directors. If, for any reason, a member of the Committee
shall cease to serve, the vacancy shall be filled by the Board of Directors. The
Committee shall establish such rules and procedures as are necessary or
advisable to administer the Plan.
4. Participants. The class of persons who are potential recipients of
Options granted under this Plan consist of (i) directors of the Corporation or a
Subsidiary, (ii) key employees of the Corporation or a Subsidiary, as determined
by the Committee and (iii) consultants and independent contractors used by the
Corporation or a Subsidiary, as determined by the Commit tee in its sole
discretion. The directors, key employees, consultants and independent
contractors to whom Options are granted under this Plan, and the number of
Shares subject to each such Option, shall be determined by the Committee in its
sole discretion, subject, however, to the terms and conditions of this Plan.
Persons to whom Options may be granted include key employees who are also
directors of the Corporation or a Subsidiary, directors who are not also key
employees and consultants and independent contractors who are not also key
employees.
5. Shares. Subject to the provisions of Section 14 hereof, the number
of Shares which may be issued pursuant to the Plan shall not exceed 20,000
shares, which may be either Shares held in treasury or authorized but unissued
Shares. The maximum number of Shares which may be the subject of Options granted
to any individual during any calendar year shall not exceed 3,000 Shares.
At the time an Option is granted, the Committee may, in its sole
discretion, designate whether such Option (a) is to be considered as an
incentive stock option within the meaning of Section 422 of the Internal Revenue
Code, or (b) is not to be treated as an incentive stock option for purposes of
this Plan and the Internal Revenue Code. No Option which is intended to qualify
as an incentive stock option shall be granted under this Plan to any individual
who, at the time of such grant, is not an employee of the Corporation or a
Subsidiary.
Notwithstanding any other provision of this Plan to the contrary, to
the extent that the aggregate Fair Market Value (determined as of the date an
Option is granted) of the Shares with respect to which Options which are
designated as incentive stock options, and any other incentive stock options,
granted to an employee (under this Plan, or any other incentive stock option
plan maintained by the Corporation or any Subsidiary that meets the requirements
of Section 422 of the Internal Revenue Code) first become exercisable in any
calendar year exceeds $100,000, such Options shall be treated as Options which
are not incentive stock options. Options with respect to which no designation is
made by the Committee shall be deemed to be incentive stock options to the
extent that the $100,000 limitation described in the preceding sentence is met.
This paragraph shall be applied by taking options into account in the order in
which they are granted.
If any Option shall expire, be cancelled or terminate for any reason
without having been exercised in full, the unpurchased Shares subject thereto
may again be made subject to Options under the Plan; provided, however, that
with respect to any Option granted to any person who is
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a "covered employee" as defined in Section 162(m) of the Internal Revenue Code
that is cancelled or as to which the exercise price is reduced, the number of
Shares subject to such Option shall continue to be counted, in accordance with
Section 162(m) of the Internal Revenue Code, against the maximum number of
Shares which may be the subject of Options granted to such person.
Nothing herein contained shall be construed to prohibit the issuance of
Options at different times to the same employee, director, consultant or
independent contractor.
The certificate representing an Option shall be in such form as
determined by the Committee from time to time. A certificate of Option signed by
the Chairman of the Board of Directors or the President or a Vice President of
the Corporation, attested by the Treasurer or an Assistant Treasurer, or
Secretary or an Assistant Secretary of the Corporation and bearing the seal of
the Corporation affixed thereto, shall be issued to each person to whom an
Option is granted. The certificate of Option for an Option shall be legended to
indicate whether or not the Option is an incentive stock option.
6. Price. The price per Share of the Shares to be purchased pursuant to
the exercise of any Option shall be fixed by the Committee at the time of grant
pursuant to a formula or at a fixed price depending on the type of options
granted; provided, however, that the purchase price per share of the Shares to
be purchased pursuant to the exercise of any incentive stock option shall not be
less than the Fair Market Value of a Share on the day on which such Option is
granted.
7. Duration of Options. The duration of any Option granted under this
Plan shall be fixed by the Committee in its sole discretion; provided, however,
that no Option shall remain in effect for a period of more than ten years from
the date upon which the Option is granted.
8. Ten Percent Shareholders. Notwithstanding any other provision of
this Plan to the contrary, no Option which is intended to qualify as an
incentive stock option may be granted under this Plan to any employee who, at
the time the Option is granted, owns shares possessing more than ten percent of
the total combined voting power or value of all classes of stock of the
Corporation, unless the exercise price under such Option is at least 110% of the
Fair Market Value of a Share on the date such Option is granted and the duration
of such Option is no more than five years.
9. Consideration for Options. The Corporation shall obtain such
consideration for the grant of an Option as the Committee in its discretion may
request.
10. Non-Transferability of Options. Options and all rights thereunder
shall be non-transferable and non-assignable by the holder thereof, except to
the extent that the estate of a deceased holder of an Option may be permitted to
exercise them.
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11. Exercise of Options. An Option, after the grant thereof, shall be
exercisable by the holder at such rate and times as may be fixed by the
Committee.
Notwithstanding the foregoing, all or any part of any remaining
unexercised Options granted to any person may be exercised upon the occurrence
of such special circumstance or event as in the opinion of the Committee merits
special consideration.
An Option shall be exercised by the delivery of a written notice duly
signed by the holder thereof to such effect, together with the Option
certificate and the full purchase price of the Shares purchased pursuant to the
exercise of the Option, to the Chairman of the Board or an officer of the
Corporation appointed by the Chairman of the Board for the purpose of receiving
the same. Payment of the full purchase price shall be made as follows: in cash;
by check payable to the order of the Corporation; by delivery to the Corporation
of Shares which shall be valued at their Fair Market Value on the date of
exercise of the Option; or by such other methods as the Committee may permit
from time to time; provided, however, that a holder may not use any Shares
acquired pursuant to the exercise of an option granted under this Plan or any
other stock option plan maintained by the Corporation or any Subsidiary unless
the holder has beneficially owned such Shares for at least six months. No Option
may be granted pursuant to the Plan or exercised at any time when such Option,
or the granting, exercise or payment thereof, may result in the violation of any
law or governmental order or regulation.
Within a reasonable time after the exercise of an Option, the
Corporation shall cause to be delivered to the person entitled thereto, a
certificate for the Shares purchased pursuant to the exercise of the Option. If
the Option shall have been exercised with respect to less than all of the Shares
subject to the Option, the Corporation shall also cause to be delivered to the
person entitled thereto a new Option certificate in replacement of the
certificate surrendered at the time of the exercise of the Option, indicating
the number of Shares with respect to which the Option remains available for
exercise, or the original Option certificate shall be endorsed to give effect to
the partial exercise thereof.
12. Termination of Employment or Service. All or any part of any
Option, to the extent unexercised, shall terminate immediately (i) in the case
of an employee, upon the cessation or termination of the Option holder's
employment by the Corporation and all Subsidiaries, or (ii) in the case of a
director, consultant or independent contractor of the Corporation or a
Subsidiary who is not also an employee of the Corporation or a Subsidiary, upon
the holder's ceasing to serve as a director, consultant or independent
contractor of the Corporation or a Subsidiary, except that in either case the
Option holder shall have until the end of the tenth business day following the
cessation of his employment with the Corporation and Subsidiaries or his service
as a
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director, consultant or independent contractor or the Corporation or a
Subsidiary, as the case may be, and no longer, to exercise any unexercised
Option that he could have exercised on the day on which such employment, or
service as a director, consultant or independent contractor, terminated;
provided that such exercise must be accomplished prior to the expiration of the
term of such Option. Notwithstanding the foregoing, if the cessation of
employment or service as a director, consultant or independent contractor is due
to retirement on or after attaining the age of sixty-five (65) years, or to
disability (to an extent and in a manner as shall be determined in each case by
the Committee in its sole discretion) or to death, the Option holder or the
representative of the Estate or the heirs of a deceased Option holder shall have
the privilege or exercising the Options which are unexercised at the time of
such retirement, or of such disability or death; provided, however, that such
exercise must be accomplished prior to the expiration of the term of such Option
and (a) within three months of the Option holder's retirement or disability, or
(b) within six months of the Option holder's death, as the case may be. If the
employment or service of any Option holder with the Corporation or a Subsidiary
shall be terminated for Cause, all unexercised Options of such Option holder
shall terminate immediately upon such termination of the holder's employment or
service with the Corporation and all Subsidiaries, and an Option holder whose
employment or service with the Corporation and Subsidiaries is so terminated,
shall have no right after such termination of his employment or service with the
Corporation and Subsidiaries.
Nothing contained herein or in the Option certificate shall be
construed to confer on any employee or director any right to be continued in the
employ of the Corporation or any Subsid iary or as a director of the Corporation
or a Subsidiary or derogate from any right of the Corporation and any Subsidiary
to request the resignation of or discharge any employee, director, consultant or
independent contractor (without or with pay), at any time, with or without
Cause.
13. Adjustment of Optioned Shares. If prior to the complete exercise of
any Option there shall be declared and paid a stock dividend upon the common
stock of the Corporation or if the common stock of the Corporation shall be
split up, converted, exchanged, reclassified, or in any way substituted for, the
Option, to the extent that it has not been exercised, shall entitle the holder
thereof upon the future exercise of the Option to such number and kind of
securities or other property subject to the terms of the Option to which he
would have been entitled had he actually owned the Shares subject to the
unexercised portion of the Option at the time of the occurrence of such stock
dividend, split-up, conversion, exchange, reclassification or substitu tion; and
the aggregate purchase price upon the future exercise of the Option shall be the
same as if the originally optioned Shares were being purchased thereunder. Any
fractional shares or securities payable upon the exercise of the Option as a
result of such adjustment shall be payable in cash based upon the Fair Market
Value of such shares or securities at the time of such exercise. If any such
event should occur, the number of Shares with respect to which Options remain to
be issued, or with respect to which Options may be reissued, shall be adjusted
in a similar manner.
Notwithstanding any other provision of the Plan, in the event of a
recapitalization, merger, consolidation, rights offering, separation,
reorganization or liquidation, or any other change in the corporate structure or
outstanding Shares, the Committee may make such equitable adjustments to the
number of Shares and the class of shares available hereunder or to any
outstanding Options as it shall deem appropriate to prevent dilution or
enlargement of rights or Options may be cancelled if so provided in the Option
Certificate relating to an Option.
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14. Issuance of Shares and Compliance with Securities Act. The
Corporation may postpone the issuance and delivery of Shares upon any exercise
of an Option until (a) the admission of such Shares to listing on any stock
exchange on which Shares of the Corporation of the same class are then listed,
and (b) the completion of such registration or other qualification of such
Shares under any State or Federal law, rule or regulation as the Corporation
shall determine to be necessary or advisable. Any person exercising an Option
shall make such representations and furnish such information as may, in the
opinion of counsel for the Corporation, be appropri ate to permit the
Corporation, in the light of the then existence or non-existence with respect to
such Shares of an effective Registration Statement under the Securities Act of
1933, as from time to time amended (the "Securities Act"), to issue the Shares
in compliance with the provisions of the Securities Act or any comparable act.
The Corporation shall have the right, in its sole discretion, to legend any
Shares which may be issued pursuant to the exercise of an Option, or may issue
stop transfer orders in respect thereof.
15. Income Tax Withholding. If the Corporation or a Subsidiary shall be
required to withhold any amounts by reason of any Federal, State or local tax
rules or regulations in respect of the issuance of Shares pursuant to the
exercise of an Option, the Corporation or the Subsidiary shall be entitled to
deduct and withhold such amounts from any cash payments to be made to the holder
of such Option. In any event, the holder shall make available to the Corporation
or Subsidiary, promptly when requested by the Corporation or such Subsidiary,
sufficient funds to meet the requirements of such withholding; and the
Corporation or Subsidiary shall be entitled to take and authorize such steps as
it may deem advisable in order to have such finds made available to the
Corporation or Subsidiary out of any funds or property due or to become due to
the holder of such Option.
16. Administration and Amendment of the Plan. Except as hereinafter
provided, the Board of Directors, or the Committee may at any time withdraw or
from time to time amend the Plan as it relates to, and the terms and conditions
of, any Options not theretofore granted, and the Board of Directors or the
Committee, with the consent of the affected holder of an Option, may at any time
withdraw or from time to time amend the Plan as it relates to, and the terms and
conditions of, any outstanding Option. Notwithstanding the foregoing, any
amendment by the Board of Directors or the Committee which would increase the
number of Shares issuable under Options granted pursuant to the Plan or to any
individual during any calendar year or change the class of persons to whom
Options may be granted shall be subject to the approval of the Shareholders of
the Corporation within one year of such amendment.
Determinations of the Committee as to any question which may arise with
respect to the interpretation of the provisions of the Plan and Options shall be
final. The Committee may authorize and establish such rules, regulations and
revisions thereof not inconsistent with the provisions of the Plan, as it may
deem advisable to make the Plan and Options effective or provide for their
administration, and may take such other action with regard to the Plan and
Options as it shall deem desirable to effectuate their purpose.
7
<PAGE>
17. Final Issuance Date. No Option shall be granted under the Plan
after June 30, 2008.
8
<PAGE>
Exhibit 10.23
L E A S E
(Lease of Real Property
Located in City of Oakland,
County of Alameda)
Between
PORT OF OAKLAND
And
ORO SPANISH BROADCASTING, INC.
Dated
October 21, 1997
<PAGE>
TABLE OF CONTENTS
<TABLE>
<S> <C>
1. Lease and Description of the Property................................ 2
-------------------------------------
1.1. Definitions............................................ 2
-----------
1.2. Lease and Description.................................. 2
---------------------
1.3. Reserved Easements..................................... 2
------------------
1.4. Tideland Grant......................................... 3
--------------
2. Effective Date; Term; Options To Extend Term....................... 3
----------------------------------------------
2.1. Effective Date; Term................................... 3
---------------------
2.2. No Options To Extend Term.............................. 4
-------------------------
3. Use of Premises...................................................... 4
---------------
3.1. Required and Permitted Uses............................ 4
---------------------------
3.2. Limited Uses; Compliance with Law; Indemnity........... 5
----------------------------------------------
3.3. Radio Transmissions Causing Occupational Safety
-------------------------------------------------
and Health Act Violations-Abatement by Lessee.......... 7
------------------------------------------------
3.4. Radio Interference..................................... 7
-------------------
4. Rent; Rent Adjustment; Security Deposit.............................. 8
-----------------------------------------
4.1 Monthly Rent........................................... 8
------------
4.2 Adjustment of Rent..................................... 8
------------------
4.3. Delinquency Charge..................................... 9
------------------
4.4. Accord and Satisfaction................................ 9
-----------------------
4.5. Security Deposit....................................... 9
----------------
4.6 Proration.............................................. 11
---------
5. Standard of Service; Rates and Charges............................... 11
--------------------------------------
6. Condition of the Premises............................................ 11
-------------------------
7. Improvements......................................................... 13
------------
7.1. Improvements by Lessee................................. 13
----------------------
7.2. Construction of Towers Subject to Governmental
-----------------------------------------------
Approval............................................... 13
--------
7.3. Utility Lines, Fencing and Access..................... 14
----------------------------------
7.4. General................................................ 14
-------
7.2. No Improvements by the Port............................ 15
---------------------------
7.3. Prevailing Wage Requirements........................... 15
----------------------------
</TABLE>
i
<PAGE>
<TABLE>
<S> <C>
7.4. Right of Entry for Construction and Maintenance........ 20
-----------------------------------------------
8. Security Concerning Improvements..................................... 20
--------------------------------
9. Title to Improvements................................................ 20
---------------------
10. Maintenance of Premises; Alterations and Additions................... 21
--------------------------------------------------
11. Signs and Advertising................................................ 22
---------------------
12. Utilities............................................................ 23
----------
13. Taxes and Assessments................................................ 23
---------------------
14. Fire Insurance....................................................... 24
---------------
15. Damage or Destruction of Premises.................................... 24
---------------------------------
16. Indemnification and Liability Insurance.............................. 24
---------------------------------------
16.1. Indemnification........................................ 24
---------------
16.2. Special Indemnifications............................... 25
-------------------------
16.2. Liability Insurance.................................... 26
-------------------
16.3. Sublessees............................................. 29
----------
17. Mortgage of Leasehold and Protection of Lender...................... 29
----------------------------------------------
18. Liens, Assignment and Subletting.................................... 31
--------------------------------
18.1. General................................................ 31
-------
18.2. Liens, Attachments, Bankruptcy......................... 32
------------------------------
18.4. Assignments............................................ 32
-----------
19. Toxic Materials; Fumes and Odors; Disposal of Garbage;
------------------------------------------------------
Annoying and Injurious Conduct........................................... 33
- ------------------------------
20. Defaults; Remedies.................................................. 34
-------------------
20.1. Defaults............................................... 34
--------
20.2. Remedies............................................... 35
--------
</TABLE>
ii
<PAGE>
<TABLE>
<S> <C>
21. Surrender and Holding Over.......................................... 37
---------------------------
22. Security and Protection of Premises................................. 38
-----------------------------------
23. Waivers............................................................. 38
-------
24. Right to Inspect Premises........................................... 39
-------------------------
25. Agent for Service of Process....................................... 39
-----------------------------
26. Promotion of Port and Facilities.................................... 39
--------------------------------
27. Estoppel Certificates............................................... 40
----------------------
28. Force Majeure....................................................... 40
-------------
29. Eminent Domain Proceedings.......................................... 41
--------------------------
30. Waiver of Claims.................................................... 41
----------------
31. Extensions of Time.................................................. 42
------------------
32. Successors.......................................................... 42
----------
33. Time of Essence.................................................... 42
----------------
34. Notices............................................................. 42
--------
35. Equal Opportunity Nondiscrimination and Affirmative
---------------------------------------------------
Action:........................................................ 43
-------
35.1. Equal Opportunity; Nondiscrimination................... 43
-------------------------------------
35.3. Employment Resources Development Program............... 45
----------------------------------------
36. Quiet Possession.................................................... 46
----------------
[Intentionally Omitted].................................................. 46
- -----------------------
</TABLE>
iii
<PAGE>
<TABLE>
<S> <C>
38. Trade Names......................................................... 46
-----------
39. Lease the Entire Agreement; Other Agreements........................ 46
---------------------------------------------
40. Applicable Law and Venue............................................ 46
------------------------
41. Real Estate Brokers................................................. 47
-------------------
42. Covenant Against Contingent Fees.................................... 47
--------------------------------
43. Third Party Rights.................................................. 48
------------------
44. Definitions......................................................... 48
------------
45. Warranty of Signatories............................................. 49
------------------------
46. Recordation......................................................... 50
-----------
47. Agreement in Multiple Copies........................................ 50
----------------------------
</TABLE>
<TABLE>
<CAPTION>
Referred to
Exhibits at Pages:
- -------- -----------
<S> <C> <C>
"A" Description of Premises 1, 2, 14,
49
"B" Sketch of Premises 1, 2
"C" Toxic Materials 33, 49
</TABLE>
iv
<PAGE>
L E A S E
THIS LEASE, dated as of October 21, 1997, by and between the CITY OF
OAKLAND, a municipal corporation ("the City"), acting by and through its Board
of Port Commissioners ("the Port"), and ORO SPANISH BROADCASTING, INC., a
California corporation ("Lessee"),
W I T N E S S E T H
WHEREAS, the City of Oakland is the owner in fee of that certain
property located in the Port Area of the City of Oakland on the northerly side
of the Bay Bridge right of way at the City of Oakland Charter line consisting of
land and water area as described in Exhibit "A" and shown on Exhibit "B"
attached hereto and incorporated herein by reference, said property being
referred to hereinafter as "the Property"; and
WHEREAS, the Port is vested with the complete and exclusive power, and
it is the Port's duty for an on behalf of the City with respect to the Port
Area, to make provisions for the needs of commerce, shipping and navigation of
the port, to promote and develop the port, and in the exercise of such power and
fulfillment of such duty, to enter into any lease of City-owned properties in
the Port Area upon such terms and conditions as the Board of Port Commissioners
shall prescribe, which terms and conditions shall include control over the
rates, charges and practices of the Lessee to the extent permitted by law; and
WHEREAS, the Port desires to operate, develop, alter and improve the
Property in order to provide for improvements and facilities which will service
and enhance commerce, shipping and navigation in the Port Area; and
WHEREAS, the Port has determined that commerce, shipping and navigation
of the port will be promoted and enhanced by leasing the Property to Lessee,
consisting of the Premises (as defined in the Lease), for the uses and purposes,
and subject to the terms and conditions, set forth in this Lease;
1
<PAGE>
NOW, THEREFORE, for the better promotion of commerce, shipping and
navigation and the development of the port, and for and in consideration of the
faithful performance of the Port and Lessee of the terms, covenants and
conditions hereof and of the payments herein provided to be made by Lessee, the
Port and Lessee hereby agree as follows:
1. Lease and Description of the Premises:
1.1. Definitions: Definitions of terms used in this Lease are contained
in the Definitions Section of the Lease and elsewhere in the Lease. Those
definitions shall apply unless otherwise provided in the Lease or otherwise
reasonably required given the context in which a term is used in the Lease.
1.2. Lease and Description: The Port has leased and demised, and by
these presents does lease and demise unto Lessee, and Lessee by these presents
does lease, hire and take from the Port the Property which is located in the
Port Area of the City of Oakland, County of Alameda, State of California. The
Property is more particularly described and depicted respectively in attached
Exhibit "A" and Exhibit "B". The Property together with the improvements thereon
from time to time are sometimes hereinafter referred to as "the Premises"
This Lease is subject to (l) all easements, covenants, conditions,
restrictions, reservations, rights of way, liens, encumbrances and other matters
of record, (2) all matters discoverable by physical inspection of the Property
or that would be discovered by an accurate survey of the Property, (3) all
matters known to Lessee or of which Lessee has notice, constructive or otherwise
including, without limitations, those shown on attached Exhibit "A" and Exhibit
"B".
1.3. Reserved Easements: The Port reserves to itself and the right to
grant to others in the future nonexclusive utility easements (including
easements for construction, maintenance, repair, replacement and reconstruction)
over, under, through, across or on the Premises in locations that will not
unreasonably interfere with Lessee's use thereof. Lessee shall not be obligated
to maintain or repair easement facilities unless the need for repair is caused
by Lessee's negligence or other wrongful conduct. Any interference shall be
temporary, and all work on the Premises shall proceed expeditiously. Lessee
shall be given reasonable notice before commencement of any work on the
Premises. Such work shall not result in the closure of any business on the
Premises. In the event the installation or maintenance of such future utility
lines in such easements causes any damage to the Premises, or any portion
thereof, including but not limited to pavement, curbs and sidewalks, the same
shall be repaired by the Port at its expense, if not so repaired by the party
installing and maintaining the line.
2
<PAGE>
The Port also reserves to itself and the right to grant to others in
the future nonexclusive easements over outside portions of the Premises for
purposes of access to other Port property (including, without limitation, access
to property leased by the Port to others and access for purposes such as
maintenance, installation or repair of utilities, use of restrooms, and
construction, maintenance, repair, replacement or reconstruction of improvements
or facilities located on other Port property.)
1.4. Tideland Grant: This Lease and the Premises shall at all times
during the term of the Lease be subject to the limitations, conditions,
restrictions and reservations contained in and prescribed by the act of the
Legislature of the State of California, entitled "An act granting certain
tidelands and submerged lands of the State of California to the City of Oakland
and regulating the management, use and control thereof," approved May 1, 1911
(Stats. 1911, Chapter 657), as amended, and the Charter of said City.
2. Effective Date: Term; Options To Extend Term:
2.1. Effective Date; Term: This Lease shall become effective upon the
effective date of the ordinance authorizing the Lease and the Port Attorney's
approval of the form and legality of this Lease ("the Effective Date") .
However, if (a) because of the referendum process the ordinance does not become
effective immediately upon the expiration of 30 days from and after the date of
its final passage or (b) the Port Attorney does not approve the form and
legality of this Lease within 30 days from and after the date that Lessee and
the Port have executed this Lease, then this Lease shall not become effective
except by mutual written agreement of the Port and Lessee.
The term of this Lease shall commence on the Effective Date and shall
expire midnight December 31, 2007; provided, that the Port reserves the right to
cancel and terminate this Lease during the term thereof upon at least one year
advance written notice to Lessee if (a) the Port determines in its sole
discretion that the Property is required for other Port purposes and (b) the
Port has given notice to terminate any other then effective Port tenancy
agreements for radio transmitter sites in areas adjacent to the Premises under
this Lease.
3
<PAGE>
Upon the request of either party the Port and Lessee shall execute in
recordable form a written supplement to this Lease which states the exact date
of the commencement of the term of this Lease and/or the date that the Lease was
canceled and terminated.
2.2. No Options To Extend Term:No party has any option to extend the
term of this Lease.
3. Use of Premises:
3.1. Required and Permitted Uses: The Premises shall be used
continuously by Lessee only for the construction and maintenance of an AM radio
broadcasting station and for such structures and equipment as may be necessary
or convenient for the carrying of Lessee's AM radio broadcasting business, and
for uses incidental and reasonably related thereto. The Premises shall not be
used for the construction and maintenance of an FM radio broadcasting station,
or any other type of radio broadcasting station using new or different means of
radio broadcasting, or for any other purpose, and specifically shall not be used
for, among other things, assembly, retail, office, manufacturing, residential,
hotel or motel.
It is understood and agreed that the Port shall have the right to use
or permit others to use so much of the surface of the Property as will not
interfere with Lessee's operations.
It is a condition of this Lease that, in connection with the
identification of the radio station on the air, an announcement shall be made to
the effect that the transmitter is located at the Port of Oakland, which
announcement shall be made at the beginning and end of each broadcasting day,
periodically and at regular intervals at least twice between 6:00 a.m. and 12:00
noon, at least twice between 12:00 noon and 6:00 p.m., and at least twice
between 6:00 p.m. and 12:00 midnight.
Lessee and Port agree that a primary purpose and an essential
consideration for this Lease is for the Port to promote, facilitate, aid and
enhance commerce, shipping and navigation in the Port Area. Lessee and the Port
agree that consistent with that primary purpose and essential consideration,
Lessee under this Lease has an affirmative obligation during the entire term of
the Lease to use the Premises for the mandatory purposes specified hereinabove.
Lessee acknowledges that this Lease is a part of the Port's overall planning
efforts to better promote and accommodate commerce and navigation in the Port
Area, and that the terms and conditions specified herein concerning use of the
Premises are and will in the future be an integral part of the Port's overall
planning. Lessee further acknowledges that any uses of the Property inconsistent
with the uses specified herein will contravene the primary purpose of this Lease
and interfere with the promotion and accommodation of commerce and navigation in
the Port Area.
4
<PAGE>
3.2. Limited Uses; Compliance with Law; Indemnity: Lessee shall not use
or permit the Premises, or any part thereof, to be used in whole or in part for
any purpose other than as hereinabove set forth, nor for any use, operation or
activity that would interfere with or impede Port maritime operations or that
would be in violation of any present or future laws, ordinances, general rules
or regulations at any time applicable thereto of any public or governmental
authority, including the City and the Port, including, but not limited to, laws,
ordinances, general rules, permits or regulations relating to human or public
health, the environment, water, sanitation, safety, welfare or the filling of or
discharges to the air or water (collectively solely for purposes of this Section
3.2 "Laws or Regulations"); provided that, any Laws or Regulations adopted by
the Port are of general application and do not unreasonably discriminate against
Lessee. Lessee hereby expressly agrees at all times during the term of this
Lease, at its own cost, to maintain and operate the Premises in a clean,
wholesome and sanitary condition, and Lessee agrees that such obligation shall
apply in all cases, including circumstances such as required maintenance,
cleanup or remediation of any condition, contamination, pollution or nuisance
caused by unknown parties or by known parties other than the Port or the Port's
agents. Lessee shall at all times faithfully obey and comply with all Laws or
Regulations.
Without limiting the generality of the foregoing, to the extent
Lessee's operations or activities or the operations or activities of any
sub-tenant or assignee on the Premises constitute industrial activities within
the meaning of the Federal Water Pollution Control Act, 33 U.S.C. Sections 1251,
et seq. ("CWA") and the regulations promulgated thereunder, Lessee agrees that
it will be responsible for faithfully obeying and complying with such law and
regulations, including, but not limited to, obtaining, if required, an
individual National Pollutant Discharge Elimination System ("NPDES") permit or,
if required, requesting coverage under and faithfully obeying and complying with
the terms and conditions of any applicable General Permit issued pursuant to
such law or regulations.
5
<PAGE>
Lessee may reasonably and in good faith contest any such Law or
Regulation through appropriate proceedings, and, during such contest, Lessee
need not comply therewith provided further, that Lessee shall at all times
reasonably protect the interest of the Port under this Lease, shall indemnify
the Port for all Port expenses (exclusive of general office and administrative
expenses) actually and reasonably incurred as a result of said contest, and
shall promptly comply with any such contested Law or Regulation if any such
contest is resolved against Lessee. Lessee agrees to defend and indemnify the
Port and Port officers, employees and agents from and against any penalties or
charges and administrative and/or judicial proceedings (including, without
limitation, attorneys' fees and legal expenses incurred by the Port in
connection with such penalties or charges and proceedings whether or not any
such penalties or charges are actually imposed) imposed or sought to be imposed
on or involving the Port for any violation or alleged violation, of any such
Laws or Regulations, including Laws or Regulations regarding disabled or
handicapped persons, including without limitation the Americans With
Disabilities Act of 1990, and which violation is not solely the result of the
wrongful acts or omissions on the part of the Port or its officers, agents or
employees.
Lessee further agrees to waive and release the Port and Port officers,
employees, agents and members of the Board of Port Commissioners from any and
all claims, including claims of negligence, and liability that may arise from
any act or failure to act by the Port in connection with the Port's providing
advice, guidance, or assistance to Lessee or any other tenant, sub-tenant or
assignee regarding compliance with any such Laws or Regulations including, but
not limited to the following actions or activities: furnishing educational
materials to and organizing meetings for tenants; explaining the alleged
requirements of the CWA, the regulations promulgated pursuant thereto, or the
terms and conditions or means of complying with any permits required by or
issued pursuant to the CWA; preparing or furnishing draft Storm Water Pollution
Prevention Plans or Group Monitoring Plans, or acting as leader of any Group
Monitoring Plan.
6
<PAGE>
Notwithstanding and in addition to any other provision of this Lease,
Lessee shall maintain for periodic inspection by the Port and, concurrently with
the receipt from or submission to a governmental agency, deliver to Port true
and correct copies of documents (hereinafter referred to as the "Documents"),
except for Documents protected by the attorney client privilege, required to be
provided, filed, lodged, maintained by the Lessee or obtained by or issued to
Lessee pursuant to such Laws or Regulations, including, but not limited to, the
following documents:
Permits; approvals; reports and correspondence; applications for permits,
Notices of Intent, Storm Water Pollution Prevention Plans, Annual
Comprehensive Site Compliance Evaluations, Annual Reports or monitoring
results, or notice of violations relating or pertaining to the Premises.
3.3. Radio Transmissions Causing Occupational Safety and Health Act
Violations - Abatement by Lessee: If evidence of a violation of the Occupational
Safety and Health Act, hereinafter called "OSHA," or of any other safety
regulation is found or discovered in the operation or use of Port container
cranes caused or contributed to in any way from reradiation of Lessee's radio
signals or transmissions, Lessee upon notification by the Port or any other
person or entity of such violation shall immediately take remedial action to
terminate conditions causing or contributing to such violation. If Lessee does
not take such remedial action within fifteen (15) days from notice of such
violation, then this Lease shall terminate without any further notice, at the
option of the Port. Lessee agrees to reimburse the Port all expenses incurred
and revenues lost by the Port as a consequence of Lessee's failure to perform
its obligation as stated in this Paragraph.
3.4. Radio Interference: Lessee expressly agrees to cooperate in
eliminating any objectionable electrical or other interference with any Port
activity which may arise due to the presence of radio signals originating from
the Premises. If, the Port's Chief Engineer, applying pertinent objective
criteria, such as by way of example and not limitation, Federal Communications
Commission (FCC) or California Occupational Safety and Health Act (OSHA)
regulations, determines that the presence of KIQI signals causes objectionable
interference with any significant Port activity including, but not limited to,
the operation or safety of buildings, cranes, ships, or any associated
electrical, electronics, or communications systems, then Lessee will act with
due diligence to eliminate such interference at Lessee's expense. For purposes
of said determination, any material portion of the Port's routine business
operations or any other activity not specified in the preceding sentences, shall
be deemed a significant Port activity where the expense to the Port to protect
against said interference exceeds the sum of Five Hundred and 00/100 ($500.00).
In the event Lessee fails or is unable to eliminate such interference or reduce
it to a level acceptable to the Chief Engineer of the Port within ten (10) days
of the date of mailing written notice from the Chief Engineer of the Port that a
hazard to the safety or personnel or property exists resulting from said
interference, then this Lease shall terminate immediately upon written notice to
Lessee from the Executive Director of the Port. Lessee further agrees that at
least ninety (90) days prior to making any changes, modifications or additions
to the existing and present radio or broadcast signals which will increase
signal strength over Port property Lessee shall submit said changes,
modifications or additions in writing to the Chief Engineer of the Port for his
review and approval.
7
<PAGE>
4. Rent; Rent Adjustment; Security Deposit:
4.1. Monthly Rent: Initial Monthly Rent is $3,750.00 per month.
Lessee shall pay to the Port Monthly Rent on or before the first day of
each and every month during the term of this Lease, without setoff, in advance
and without previous demand.
4.2. Adjustment of Rent: At the end of the first twelve months of the
term of this Lease, and every twelve months thereafter during the remainder of
said term ("Rent Adjustment Date"), the Monthly Rent provided to be paid by
Lessee on or before the first day of each calendar month during said remaining
term, shall be increased by the percentage increase, if any, in the last
Consumer Price Index published prior to the date of each succeeding Rent
Adjustment Date from the last such index published prior to the date of this
Lease; provided that in no event shall the adjusted Monthly Rent be less than
the theretofore existing Monthly Rent. Pending the final determination of the
adjusted Monthly Rent, Lessee shall pay to the Port the amount of the Monthly
Rent payable for the preceding period and if the adjusted Monthly Rent as
finally so determined should exceed the amount of the previously established
Monthly Rent, Lessee shall pay to the Port the accrued excess amount then due
within 30 days after the Port sends to Lessee a written request therefore.
8
<PAGE>
4.3. Delinquency Charge: Any payment required to be made by Lessee
under this Lease (all such payments are hereby agreed to be rent) that remains
due and unpaid under the terms of this Lease for a period of 10 days after it
becomes due and payable shall be subject to a delinquency charge, for violation
of this Lease and as liquidated damages, of $100.00 plus a sum equal to 0.05%
(five one-hundredths of one percent) per day of such delinquent payment for each
day from the date such payment became due and payable until payment has been
received by the Port; provided, however, that said $100.00 amount shall be
adjusted at the same time and by the same percentage amount as Monthly Rent is
adjusted pursuant to Section 4 hereof. Unpaid delinquency charges that accrue
shall be compounded monthly. The delinquency charges provided by this Section
are in addition to all other remedies that the Port may have that are provided
by this Lease or otherwise by law or in equity with respect to any payment that
has become due and has not been paid. The Port as a courtesy may send invoices
to Lessee for Monthly Rent hereunder, but the Port's failure to send an invoice,
or Lessee's late receipt of an invoice, shall in no event excuse or justify
Lessee's non-payment of such rent or payment of such rent later than the first
day of the month.
4.4. Accord and Satisfaction: No payment by Lessee or receipt by the
Port of a lesser amount of any sum due hereunder, shall be deemed to be other
than on account of the earliest due rent or payment, nor shall any endorsement
or statement on any check or any letter accompanying any such check or payment
be deemed an accord and satisfaction, and the Port may accept such check or
payment and pursue any other remedy available in this Lease, at law or in
equity. The Port may accept any partial payment from Lessee without invalidation
of any contractual notice required to be given herein (to the extent such
contractual notice is required) and without invalidation of any notice required
to be given pursuant to California Code of Civil Procedure Section ll6l, et
seq., or of any successor statute there to.
4.5. Security Deposit: Prior to commencement of the term of this Lease,
Lessee shall pay to the Port the sum of $7,405.00, and, in addition, shall pay
to the Port on or before the first day of each month for the first 10 months of
the term of this Lease, the sum of $500.00, all as installment payments of a
security deposit, for a total security deposit of $12,405.00 as of the first day
of the 10th month of the term of this Lease, which sum(s) (and any additions
thereto required hereunder) shall be evidenced by cash or certificates of
deposit payable to the Port, or such other similar interest-bearing instruments
or securities acceptable at the sole discretion of the Port. Said sum(s),
together with any additions thereto required hereunder, is sometimes herein
referred to as "the Deposit". The Deposit shall be retained by the Port as a
debtor and not as a trustee. If Lessee defaults in the performance of any
obligation hereunder, the Port at its election may, but is not required to,
apply any portion of the Deposit as necessary to compensate the Port for the
default, and Lessee, within 10 days after the Port's demand therefor, shall
deposit with the Port the sum that is necessary to restore the Deposit to the
full amount then required by this Lease. Neither the application by the Port of
all or any portion of the Deposit, nor the Port's demand for or acceptance of
money to restore the Deposit, shall result in any waiver of the Port's right
under the Lease and applicable law to declare Lessee in default of the Lease or
to terminate or declare a forfeiture of the Lease. Upon the termination of the
Lease and Lessee's vacation of the Premises, the amount of the Deposit
remaining, after curing Lessee's defaults and compensating the Port for damages
caused by Lessee, shall be returned to Lessee at Lessee's last address known to
the Port.
9
<PAGE>
Interest on interest bearing obligations shall be payable to Lessee by
the issuer thereof. The Port shall not be required to pay to or credit Lessee
with any interest on any Deposit. The issuing bank shall provide that a
certificate of deposit is payable in San Francisco or Oakland.
If Monthly Rent is increased hereunder the then required Deposit shall
be increased by the same percentage as the percentage of increase of the Monthly
Rent. In no event, however, shall the Deposit at any time be decreased. Lessee
shall deposit with the Port the increased amount of the Deposit within 30 days
after the Rent Adjustment Date, or in any case where adjusted rent is determined
hereunder by appraisal, within 30 days after Lessee's receipt of the appraiser's
opinions.
Lessee's payment of the Deposit shall not limit Lessee's liability to
the Port for the payment of amounts due to the Port by Lessee in excess of the
amount of the Deposit.
10
<PAGE>
4.6 Proration: If the date that a monthly rent payment, or an
adjustment thereto, is to commence under this Lease is other than the first day
of a calendar month, or if the term expires or is terminated as of a date other
than the expiration of a calendar month and Lessee quits and surrenders the
Premises in compliance with this Lease, then the monthly rental payment in
question shall be appropriately prorated in accordance with the number of days
in the calendar month involved.
5. Standard of Service; Rates and Charges: Lessee shall construct,
furnish, maintain and operate the Premises, and provide all other services and
facilities offered in connection therewith, in a first-class manner and shall
furnish and maintain a standard of service at least equal to that of the better
class of similar businesses providing similar services and facilities in the San
Francisco Bay Area. Lessee agrees to furnish or cause to be furnished good,
prompt and efficient service and to furnish said service on a fair, reasonable
and reasonably nondiscriminatory basis to all users thereof, and to charge fair,
reasonable and reasonably nondiscriminatory prices for each unit of sale or
service; provided, that Lessee may make reasonable and reasonably
nondiscriminatory discounts, rebates or other similar types of price reductions
to volume purchasers. Upon reasonable prior written notice to Lessee, the Port
shall have reasonable access to and the right to inspect all rental schedules
and schedules of rates or prices for products, services and facilities provided
or performed upon the premises.
6. Condition of the Premises: Except as may be otherwise expressly
provided in this Lease, the taking of possession of the Premises by Lessee shall
in itself constitute acknowledgment that the Premises is in good and tenantable
condition, and Lessee agrees to accept the Property in its presently existing
condition, "as is," and that the Port shall not be obligated to make any
improvements, repairs or modifications thereto, including any abatement of any
environmental condition such as asbestos containing material in or on the
Premises.
Lessee represents and acknowledges that it has made a sufficient
investigation of the conditions of the Property existing immediately prior to
the execution of this Lease (including investigation of the surface, subsurface
and groundwater for toxic materials, including contamination and hazardous
substances) and is satisfied that the Premises will safely support the type of
improvements to be constructed and maintained by Lessee upon the Premises, that
the Premises is otherwise fully fit physically and lawfully for the uses
required and permitted by this Lease, that Lessee accepts all risks associated
therewith and that Lessee shall be solely responsible for all costs, expenses,
losses, damages, claims and liabilities that may result from Lessee's use of the
Premises in their presently existing conditions.
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Lessee specifically acknowledges that except as otherwise may be
expressly provided herein the Port has made no representations concerning the
condition of the Premises or any Improvements and/or the fitness of the Premises
or any Improvements for Lessee's intended use, and/or the compliance of the
Premises and/or any Improvements with any federal, state, or local building code
or ordinance or with any laws or regulations or guidelines regarding disabled or
handicapped persons, including without limitation the Americans With
Disabilities Act of 1990, and Lessee expressly waives any duty which the Port
might have to make any such disclosures. Lessee further agrees that, in the
event Lessee subleases all or any portion of the Property or assigns its
interest in the Lease, Lessee shall indemnify and defend the Port for, from and
against any matters which arise as a result of Lessee's failure to disclose any
relevant information about the Premises to any subtenant or assignee. It is the
intention of the Port and Lessee that the immediately preceding sentence shall
survive any release of Lessee by the Port upon any assignment of the Lease by
Lessee.
Lessee acknowledges that (l) the Port has informed Lessee prior to the
Effective Date that the Port does not know nor have reasonable cause to believe
that any release of hazardous substance has come to be located on or beneath the
Premises; (2) prior to the Effective Date the Port has made available to Lessee
for review and inspection records in the possession or control of the Port which
might reflect the potential existence of hazardous substances on or beneath the
Premises; (3) the Port has provided Lessee access to the Premises for a
reasonable time and upon reasonable terms and conditions for purposes of
providing to Lessee the opportunity to investigate, sample and analyze the soil
and groundwater on the Premises for the presence of hazardous substances; (4) by
signing this Lease Lessee represents to the Port that, except as otherwise may
be stated in an Exhibit attached hereto and by this reference incorporated
herein, Lessee does not know nor have reasonable cause to believe that any
release of hazardous substance has come to be located on or beneath the
Premises; and (5) with respect to any hazardous substance which Lessee knows or
has reasonable cause to believe has come or will come to be located on or
beneath the Premises, Lessee has listed the hazardous substance on an attached
Exhibit. The phrase "hazardous substance," as used herein, has the same meaning
as that phrase has under Section 25359.7 of the California Health and Safety
Code.
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Lessee agrees that, except as otherwise expressly provided in this
Lease, Lessee is solely responsible without any cost or expense to the Port to
take all actions necessary, off as well as on the Premises to improve and
continuously use the Premises as required by this Lease and in compliance with
all applicable laws and regulations.
7. Improvements:
7.1. Improvements by Lessee: Lessee covenants and agrees and it is an
express condition of this Lease that Lessee shall be solely responsible for any
improvements or modifications to the Premises required for Lessee's use thereof,
including without limitation any utility improvements, surface improvements or
fencing.
7.2. Construction of Towers Subject to Governmental Approval: It is
expressly understood and agreed that any tower or towers erected by Lessee upon
the Premises shall have the approval of the Federal Communications Commission
before construction begins, if approval by said Commission is required. In
addition, any such tower or towers shall have the approval of the Federal
Aviation Administration if higher than any other tower in the immediate
vicinity. All towers erected by the Lessee shall be lighted and otherwise
maintained in strict compliance with the Federal Communications Commission
standards. Lessee agrees to maintain and operate the radio broadcasting station
in compliance with all rules, regulations and orders of the Federal
Communications Commission and any other appropriate governmental regulatory
agency. The Lessee shall also install and maintain, at its own cost and expense,
any filters or other equipment required to eliminate any interference of its
station with Port maritime operations or with the operations of any other radio
stations now broadcasting from Port property, and otherwise as required by
order, rule or regulation of the Federal Communications Commission.
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7.3. Utility Lines, Fencing and Access: Lessee shall have the right to
install and maintain necessary utility lines across other available property
owned by the Port, subject to the approval of the location thereof by the Port
and Lessee's obtaining at its sole cost and expense, all required permits.
Subject to the Port's approval of plans and specifications therefor,
and Lessee's obtaining all required permits, Lessee may at its expense fence
portions of the Premises for security purposes, provided that any such fence so
constructed shall be a fence of good quality and with a pleasing appearance. If
any such fence is so constructed, any access ways or roadways in the area
providing access to other Port lands or tenants shall not be barricaded or
obstructed nor shall such fence deny the people of the State of California the
right to fish as guaranteed by Article I, Section 25, of the Constitution of
this State.
Lessee shall have the right of ingress and egress to the Lease premises
over other property owned or controlled by the Port, subject to the prior
written approval of the location thereof by the Port.
Lessee shall also have the right to use such portion of the one hundred
(100) foot strip of land reserved for street purposes (referred to in the
description set forth in attached Exhibit "A"), excepting therefrom that portion
of said strip of land previously quitclaimed to the State of California by
Lessee, as may be required for buried ground system radial wires; provided,
however, that such radial wires shall be buried deep enough so as not to
interfere with any future underground installations made in said strip of land.
The Port's written approval shall be obtained prior to construction of any new
ground utility system or significant modification of the existing ground utility
system within said strip of land.
7.4. General: The layout, specifications, detailed plans and
architectural plans of all Improvements to be constructed upon the Premises and
adjacent thereto shall be subject to the prior written approval of the Port and
the Navy. Lessee warrants that the proposed Improvements if constructed or
installed consistently with the plans and specifications will comply with all
laws and regulations regarding disabled or handicapped persons, including
without limitation the Americans With Disabilities Act of 1990. In addition,
construction or installation of Improvements shall not commence unless and until
Lessee, or its licensed contractor, shall have secured, at no cost to the Port,
all other necessary permits, including, but not limited to, building permits and
any necessary approvals and permits from the San Francisco Bay Conservation and
Development Commission.
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Lessee shall be responsible for the repair of any Port or other
facilities which are damaged as a result of Lessee's construction activities.
7.5. No Improvements by the Port: The Port is not obligated to
construct or install any improvements or make any repairs or alterations on or
off of the Premises. The Port shall have no obligation on account of any
construction, installation, repair or alteration of any improvement by Lessee to
pay for or reimburse Lessee all or any portion of the costs or expenses arising
out of such construction, installation repair or alteration, nor is Lessee
permitted any credit; set off or deduction for all or any portion of such costs
or expenses against any payment Lessee otherwise owes the Port.
7.6. Prevailing Wage Requirements: Lessee agrees that in the
performance of work under this Lease, Lessee shall comply with:
(a) The Public Work Prevailing Wage Requirements, which are the
applicable prevailing wage requirements of California Labor Code Sections 1720
et seq. and Port Ordinance No. 1606, as amended, and which generally apply to
construction, costing more than $1,000.00, which is made on or to Port property
and the cost of which is paid for in whole or in part by the Port's advance or
reimbursement to Lessee or by credit against rent or other sums due the Port;
and
(b) The Private Work Prevailing Wage Requirements of this Lease
which generally apply to all construction, other than construction to which the
Public Work Prevailing Wage requirements apply, which is made on or to Port
property, costing more than $50,000.00.
"Construction" as used herein shall apply to construction, alteration,
demolition or repair work, and the laying of carpet and maintenance work,
provided, that Private Work Prevailing Wage Requirements shall not apply to
maintenance work. "Construction" includes all construction of building core and
shell, tenant improvements and public works that are within the customary
jurisdiction of the construction trades and crafts, whether performed on- or
off-site. Off-site work, performed by Materialmen, as defined under California
Law, is not included in the term "Construction."
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The Private Work Prevailing Wage Requirements shall not apply to tenant
improvements costing less than $50,000.00, nor to tenant improvements for which
the initial building permit for such work is issued more than one year after the
certificate of occupancy is approved on the core and shell. The $50,000.00 cost
shall be adjusted annually pursuant to the CPI.
The following provisions of this subsection apply only if, and to the
extent that, the prevailing wage requirements are applicable.
The prevailing wage requirements shall apply to the employees of any
employer including the Lessee, any tenant of Lessee, any general contractor or
subcontractor or other contractor engaged in construction for the Improvements
by the Lessee, including their successors and assignees, but shall not apply to
supervisory or managerial personnel or to persons employed in the rental,
operation or (in the case of Private Work Prevailing Wage Requirements only)
maintenance of the Premises.
The Lessee shall cause the provisions of this subsection to be
incorporated into each contract and subcontract, and lease agreement which would
be subject to this subsection. In the event the provisions are not so
incorporated, the Lessee shall be liable to the worker in any action or
proceeding for the difference between the prevailing wage rate required to be
paid and the amount actually paid to the worker, including costs and attorney
fees, as if the Lessee were the actual employer.
The prevailing wage requirements of this subsection will be monitored
and enforced by the Port. In addition to any other rights provided by California
law to recover compensation, a worker that has been paid less than the
prevailing wage rates shall have a right to commence an action or proceeding
against the employer of the worker for the difference between the prevailing
wage rates and the amount paid to such worker for each calendar day or portion
thereof for which the worker was paid less than the compensation required to be
paid under the provisions of this subsection. No issue other than that of the
liability of the employer for the amount of unpaid wages allegedly due shall be
determined in such action or proceeding, and the burden shall be on the employer
to establish that the amounts demanded are not due. A worker recovering any or
all of the wages claimed to be due shall recover his costs and attorney fees in
securing such recovery. Nothing in this section shall preclude its enforcement
by the California Division of Labor Standards Enforcement.
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Nothing in this lease shall prevent the employment of any number of
properly registered apprentices, as defined in Chapter 4, Division 3 of the
Labor Code. Every such apprentice shall be paid not less than the standard wage
paid to apprentices under the regulations of the crafts or trade at which the
apprentice is employed, and shall be employed only at the work of the craft or
trade to which the apprentice is registered. The employment and training of each
apprentice shall be in accordance with the provisions of the apprenticeship
standards and apprentice agreements under which the apprentice is in training.
Good faith efforts shall be made to maintain a ratio of apprentices to
journeymen of not less than 20%, if the employer is signatory to an agreement to
train, or otherwise bound to train, apprentices. When submitting the certified
payroll records required hereunder Lessee shall submit documentary proof of the
valid apprentice status of any worker listed as an apprentice.
Lessee agrees that, any action by Lessee or its assignee against the
Port for the recovery of penalties or forfeitures shall be commenced, and
written notice thereof shall be actually received by the Port, within the
ninety-day period after the Port's Chief Engineer notifies Lessee in writing
that the Chief Engineer has determined that the work is complete. Lessee agrees
that such suit on the Lease for alleged breach thereof in not making an advance
or reimbursement or in not permitting a credit to rent or other sums due the
Port is the exclusive remedy of Lessee or the Lessee's assignee with reference
to such penalties or forfeitures. Lessee or Lessee's assignee may bring such
suit without permission of the Port, but the suit shall be limited to the
recovery of the penalties or forfeitures without prejudice to Lessee or Lessee's
assignee's rights in other matters affecting the Lease. Lessee agrees that no
other issues shall be presented to the court in such case and the burden shall
be on the plaintiff to establish plaintiff's right to the penalties or
forfeitures withheld or to be withheld.
Lessee agrees that to the extent that Lessee is required to comply with
the prevailing wage requirements, Lessee shall assure that all workers are paid
the prevailing rate of per diem wages, and travel and subsistence payments
(defined in applicable collective bargaining agreements filed in accordance with
Section 1773.8 of the California Labor Code), in effect on the date of the
Port's first approval of a building permit or other approval of the work. Copies
of the applicable prevailing rate of per diem wages are on file at the Port's
principal office and will be made available to any interested party on request.
Lessee agrees to post a copy of the prevailing rate of per diem wages at each
job site.
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Lessee, as a penalty to the Port, shall forfeit twenty-five dollars
($25.00) for each calendar day, or portion thereof (or such other sum as
specified from time to time by Section 1775 of the California Labor Code), for
each worker paid less than the applicable prevailing rates for such work or
craft in which such worker is employed. The difference between such prevailing
wage rates and the amount paid to each worker for each calendar day or portion
thereof for which each worker was paid less than the prevailing wage rate shall
be paid to each worker by Lessee.
To the extent that there is insufficient money due Lessee as an
advance, reimbursement or credit to cover all penalties forfeited and amounts
due and in all cases where the Lease does not provide for a money payment by the
Port to Lessee, and except in cases where enforcement authority is vested in the
State pursuant to Section 1775 of the California Labor Code, the Port not later
than ninety (90) days after the filing of a valid notice of completion in the
office of the Alameda County Recorder or not later than ninety (90) days after
the Port's acceptance of the work, whichever last occurs, may maintain an action
in any court of competent jurisdiction to recover the penalties and the amounts
due provided for herein. Lessee agrees that no issue other than that of the
liability of Lessee for the penalties allegedly forfeited and amounts due shall
be determined in such action, and the burden shall be upon Lessee to establish
that the penalties and amounts demanded in such action are not due. Out of any
money withheld or recovered or both there shall first be paid the amount due
each worker and if insufficient funds are withheld or recovered or both to pay
each worker in full the money shall be prorated among all such workers.
At least two weeks before the last date Lessee accepts initial bids for
construction Lessee shall file with the Port a written list of the name of all
contractors to whom Lessee has submitted a request for bids. In addition, Lessee
shall file with the Port the name of each contractor with whom it proposes to
contract, together with the name of the subcontractors of all tiers, at least
five (5) working days before entering into the contract.
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Lessee agrees to keep or cause to be kept by each contractor and
subcontractor an accurate payroll record for each worker employed on work
covered by this Paragraph showing all of the information specified in subsection
(a) of Section 1776 of the California Labor Code. All such payroll records shall
be certified, available for inspection and filed in accordance with the
procedures specified in subsections (b) - (e) inclusive of Section 1776 of the
California Labor Code. In addition, copies of such certified payroll records
shall be filed with the Port within a reasonable time not to exceed fifteen (15)
days from close of payroll by the respective employer.
It is understood and agreed that all documents that Lessee is required
to submit to or file with the Port under this subsection shall constitute public
records that shall be available to any member of the public for review or
copying in accordance with the California Public Records Act.
In the event of repetitive breach of the requirements of this
subsection by Lessee, the Port shall be entitled, in addition to all other
remedies hereunder for breach of the Lease, to appoint at Lessee's expense a
special monitor to oversee Lessee's compliance. Fees for said special monitor
shall be billed to Lessee, which fees Lessee agrees to pay as additional rent
within 10 days after Lessee's receipt of such bill. In the event of
noncompliance with the foregoing requirements concerning payroll records which
continues for more than ten (10) days after the Port gives to Lessee written
notice specifying in what respects Lessee must comply, Lessee shall forfeit as a
penalty to the Port for each worker twenty-five dollars ($25) for each calendar
day, or portion thereof, until strict compliance is effectuated.
Lessee shall be responsible for complying with Section 1777.5 of the
California Labor Code concerning apprenticeable occupations, with respect to all
work covered by that section.
Except where the context otherwise requires, the definitions of terms
and phrases contained in the State prevailing wage law, Sections 1720 et seq. of
the California Labor Code, and in the implementing administrative regulations,
shall apply to the same terms and phrases which are used in the prevailing wage
requirements of this subsection.
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7.7. Right of Entry for Construction and Maintenance: The Port and
Lessee each agree that the other shall be permitted to enter upon its property,
as may reasonably be necessary in order for the Port or Lessee to make the
improvements or do other work required by this Lease or in order for the Port to
make improvements to adjacent Port property, and to maintain or repair the
respective party's property that is adjacent to the other party's property. The
right of the Port to enter the Property or the Premises shall extend to the
Port's lessees, and licensees and contractors. A party's exercise of its right
of entry shall not unreasonably interfere with the other party's use of its
property. Any interference shall be temporary and all work on the entering
party's property shall proceed expeditiously as necessary to avoid or minimize
any such interference. A party intending to exercise the right of entry shall
first give to the other party reasonable notice before commencement of any work
on the other party's property. In the event a party's entry results in any
damage to the other party's property, the same shall be repaired expeditiously
at the entering party's expense.
In addition, the Port and Lessee each agree to grant to the other and
to execute such reciprocal easements, agreements or covenants, conditions and
restrictions relating to the Improvements and the improvements to be made by the
Port as may be necessary for the proper and efficient functioning thereof, and
determined jointly, reasonably and in good faith by Lessee and the Port.
8. Security Concerning Improvements: Before the commencement of any
construction work hereunder, Lessee, or its contractors, at no cost or expense
to the Port, shall furnish to the Port such security concerning improvements and
covering any obligation of Lessee under the Prevailing Wage Requirements
provisions of this Lease as the Port may require.
9. Title to Improvements: Lessee shall have title to the Improvements
constructed on the Premises by Lessee under this Lease and such title shall
remain in Lessee during the term of this Lease. No Improvements shall be removed
from the Premises by Lessee at any time without the prior written consent of the
Port. Title to all equipment, furnishings and trade fixtures placed by Lessee
upon the Premises shall remain in Lessee, and replacements, substitutions and
modifications thereof may be made by Lessee throughout the term of this Lease.
Upon expiration of the term of this Lease, or sooner termination thereof, Lessee
covenants to remove its structures to ground level and leave the Premises in a
clean condition; provided, however, that Lessee may with the Port's express
written consent leave all or any portion of said structures on the Premises.
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10. Maintenance of Premises; Alterations and Additions: Lessee agrees that
during the entire term of this Lease, at its own cost and expense, it shall keep
and maintain the Premises, including without limitation the surface, utilities
and fencing, clean and in first-class order, repair and condition. Lessee shall
perform, at its own cost and expense, any and all maintenance, repairs,
rehabilitation, reconstruction and cleanup or removal, including but not limited
to the access road to the Premises, whether required by structural failure or
deterioration or by operations of Lessee, by actions of others or otherwise. The
Port shall have no maintenance, repair, rehabilitation, reconstruction, cleanup,
removal or security obligations of any kind whatsoever with respect to the
Premises.
If for a period of 45 days after written notice from the Port Lessee
shall fail, neglect or refuse to perform, or to commence and continuously and
diligently proceed in good faith to complete, any required repair or
maintenance, the Port may perform such repair or maintenance and Lessee shall
reimburse the Port within 30 days after receipt of notice from the Port
demanding payment for the cost thereof, including the Port's reasonable
administrative overhead. In performing such repair, the Port shall interfere as
little as reasonably possible with Lessee's operations on the Premises. The
making of such repairs or performance of maintenance by the Port shall in no
event be construed as a waiver of the duty of Lessee to make repairs or perform
maintenance as herein provided.
Lessee may make alterations, additions, or betterments to the Premises
only after complete plans and specifications therefore have been submitted to
and approved by the Port and the Navy and after securing, at no cost to the
Port, all necessary building and other permits from the Port, the City and other
appropriate governmental agencies. In addition, Lessee shall maintain, at its
expense, all equipment, furnishings and trade fixtures upon the Premises
required for the maintenance and operation of a business of the type to be
conducted pursuant to this Lease.
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All repairs, modifications alterations or additions to the Premises by
Lessee shall be made in accordance with and shall comply with the requirements
of all applicable laws, regulations, ordinances and permits.
Lessee hereby expressly waives all rights to make repairs at the
expense of Lessor, or in lieu thereof to vacate the Premises, and all of the
other benefits contained in Sections 1941 and 1942 of the Civil Code of the
State of California or any successor statute thereto and any other similar law
now or hereafter in effect.
11. Signs and Advertising: Lessee shall not have the right to place,
construct, or maintain on the glass panes or supports of any windows of the
Improvements, on the doors, or on the exterior walls or roofs thereof or any
interior portions thereof that may be visible from the exterior of the
Improvements, or on any free-standing location on the Premises, any signs,
advertisements, names, insignia, trademarks, descriptive material, and any other
similar item, except solely for installation upon structures on the Property of
a sign or signs indicating the call letters and dialing position of Lessee's
radio station. The Port shall have absolute discretion to withhold approval for
any lighted sign or any sign other than said signs indicating Lessee's radio
station call letters and dialing position. The Port at Lessee's cost may remove
any item placed, constructed, or maintained that does not comply with the
provisions of this Section.
Before termination of this Lease, Lessee shall remove to the
satisfaction of the Port all signs, advertisements, names, insignia, trademarks,
descriptive material and any similar material installed, painted, inscribed or
placed in or upon the Premises, provided that before termination of the Lease
Lessee shall repair and/or repaint the Premises to the satisfaction of the Port
as required on account of such removal.
Lessee shall not place, construct, or maintain on the Premises any
advertisement media that include moving or rotating parts, searchlights,
flashing lights, loudspeakers, phonographs, or other similar visual or audio
media. Lessee shall not solicit business in, on, or about the exterior of the
Improvements, or distribute handbills or other advertising or promotional media
in, on, or about said exterior, except that Lessee shall be entitled to engage
in radio, television and newspaper advertising as is customarily used for the
type of business authorized by and carried on pursuant to this Lease.
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Any sign that Lessee has the right to place, construct, and maintain on
or adjacent to the Premises shall comply with the Port's applicable sign
policies and with all applicable laws, and Lessee shall obtain any approval
required by such laws. The Port makes no representation with respect to Lessee's
ability to obtain such approval.
12. Utilities: Lessee shall pay for all water, gas, heat, electricity,
fuel, power, telephone service, and other utilities, as well as janitor or
watchman services and mechanical fire alarm or security services which may be
furnished to Lessee. The Port reserves the right, but not the obligation, to be
Lessee's sole provider of electricity, gas and/or water. In the event the Port
at Lessee's request, or pursuant to legal requirements, elects to provide or pay
for any utility services, Lessee shall pay the Port for such services or
reimburse to the Port such payment not later than the first day of the calendar
month following Lessee's receipt from the Port of a billing statement for said
services or reimbursement. Any and all other utility services required by Lessee
shall be provided by Lessee at its expense.
13. Taxes and Assessments: The property interests created by this Lease may
be subject to property taxation and Lessee hereunder in whom the possessory
interest is vested may be subject to the payment of property taxes levied on
such interest. Lessee agrees timely to pay all lawful taxes, assessments, fees
or charges which at any time may be levied or charged by the federal government,
the state, county, city or any tax or assessment levying body against the
transfer of the leasehold interest hereunder upon recordation or otherwise, or
upon any activity carried on under this Lease, any interest in this Lease or any
possessory right which Lessee may have in or to any property covered hereby by
reason of its use or occupancy thereof or otherwise, as well as all lawful
taxes, assessments, fees and charges on goods, merchandise, fixtures,
appliances, equipment and property owned by Lessee in or about the Premises.
Lessee agrees timely to submit to appropriate taxing authorities all
required reports, documents and notices with respect to its use, occupancy or
ownership of the Premises or any goods, merchandise, fixtures, appliances,
equipment or other property therein or used in connection with the Premises.
Lessee shall concurrently provide to the Port a full and complete copy of all
such reports, documents and notices submitted to said taxing authorities, and
within 15 days after the request of the Port Lessee shall provide to the Port at
no cost to the Port copies of all such reports, documents and notices.
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Lessee at no cost to the Port reasonably may contest the legal validity
or amount of any such taxes, assessments, or charges for which Lessee is
responsible hereunder, and institute such proceedings as Lessee considers
necessary; provided, however, that Lessee shall at all times defend and
indemnify the Port against any and all losses and costs resulting therefrom, and
protect the Port and the Premises from foreclosure of any lien, and that the
Port shall not be required to join in any proceeding or contest brought by
Lessee.
14. Fire Insurance Neither the Port nor Lessee shall be obligated under
this Lease to carry any casualty insurance on the Premises, including fire and
special extended insurance (all risk) coverage.
15. Damage or Destruction of Premises:If during the term of this Lease the
Premises are totally or partially damaged or destroyed by fire or other casualty
rendering the Premises totally or partially inaccessible or unusable, Lessee
hereby agrees with due diligence to restore the Improvements, and all contents,
furniture, fixtures and equipment therein, to a good and tenantable condition
notwithstanding any inadequacy of insurance proceeds therefor.
In the event of any damage caused by an uninsured casualty, Lessee
shall not be entitled, to any abatement of Monthly Rent.
The Port and Lessee hereby waive the provisions of California Civil
Code Sections 1932 and 1933, and of any other statutes which relate to
termination of a lease when leased property is destroyed and agree that such
event shall be governed by the terms of this Lease.
16. Indemnification and Liability Insurance:
16.1. General Indemnification: Lessee shall defend, indemnify and hold
the Port harmless against all claims, suits, liability and expense for any loss
of, or damage, injury or death to, any person or any property (including the
person or property of the Port or of Lessee, its officers, employees, agents or
invitees), which directly or indirectly arises out of Lessee's occupancy or use
of the Premises or Lessee's activities related thereto, or from the alleged
violation of any civil rights act, including acts regarding disabled or
handicapped persons, including without limitation, the Americans With
Disabilities Act of 1990. Defense counsel by Lessee retained by Lessee under
this Section shall be subject to the Port Attorney's reasonable approval.
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These obligations of Lessee shall not apply to any such loss, damage,
injury or death caused solely by the negligence or other wrongful conduct of the
Port but shall apply under all other circumstances. The obligations of Lessee
under this Section arising by reason of any occurrence taking place during the
term of this Lease, shall survive any termination of this Lease.
For purposes of this subsection, "the Port" shall include the Board of
Port Commissioners and each of its Commissioners, officers, employees and
agents.
The foregoing provisions of this Section are not intended and shall not
be construed to limit in any manner whatsoever the protection or benefits to
which the Port otherwise would be entitled as an additional insured under any
liability insurance maintained or required to be maintained by Lessee under this
Lease.
16.2. Special Indemnifications: In addition to the provisions of
Section 16.1 and without intending in any way to limit or restrict said
provisions in any way, it is an express condition of this Lease that the Port
shall be free from any and all liabilities and claims for damages and/or
suits for or by reason of any death or deaths of or any injury or injuries to
any person or persons or damages to property of any kind whatsoever, whether
the person or property of Lessee, its agents or employees, or third persons,
from any radio or broadcast interference with any Port or Port-related
activity, including, but not limited to, interference with the operation of
safety of buildings, container cranes or ships, and Lessee hereby covenants
and agrees to indemnify and to save harmless the Port from all liabilities,
charges, expenses (including counsel fees) and costs on account of or by
reason of any such death or deaths, injury or injuries, liabilities, claims,
suits or losses however occurring or damages growing out of the same. Lessee
further agrees, if requested by the Port, to take appropriate measures
including but not limited to, adjusting its radio signals so that resonant
frequency energy absorbed by Port of Oakland container cranes does not exceed
a safe level. Such determination as to safety shall be made by the Port's
Chief Engineer applying pertinent objective criteria, such as by way of
example and not limitation, applicable California Occupational Safety and
Health Act (OSHA) regulations.
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It is a further express condition of this Lease that Lessee does hereby
release and forever discharge the Port, members of the Board of Port
Commissioners and its officers, agents and employees from any and all
liabilities, claims, demands, rights and causes of action which the Lessee may
have against it, him, her or them, on account of and in any way respecting
alleged disruption, distortion or any other interference with Lessee's radio
signal transmissions from existing Port container cranes, Port container cranes
which may be installed in the future, or any other marine terminal activities;
and Lessee does hereby covenant and agree to waive any and all such claims and
forever releases and discharges the Port from the same.
16.3. Liability Insurance: Lessee shall maintain in force during the
term of this lease comprehensive general or commercial liability insurance,
including bodily injury and property damage insurance, with such types of
coverage and minimum coverage amounts as may be reasonably requested by the Port
from time to time, but in no event for less than the sum of One Million Dollars
($1,000,000.00) combined single limit per occurrence and in no event with less
than the following coverages:
<TABLE>
<S> <C>
1. Premises or Operations Liability
2. Completed Operations Liability
3. Products Liability
4. Blanket Contractual Liability
5. Owned, Nonowned and Hired Automobiles Liability
6. Personal Injury Liability
7. Broad Form Property Damage Liability
8. Fire Legal Liability
9. Independent Contractors Liability
10. Advertising Liability
</TABLE>
Each policy of insurance maintained pursuant to this Section shall
provide the following:
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(1) The Board of Port Commissioners and each of its Commissioners,
officers, employees and agents named by endorsement as additional insureds;
(2) Coverage shall not be canceled, reduced or non-renewed without
at least 30 days prior written notice to the Port.
(3) Coverage shall be primary and non-contributory. The Port's
insurance and/or self-insurance shall not be called upon to contribute in the
event of loss.
(4) A severability of interest or cross-liability endorsement,
reading generally as follows:
Cross-Liability - In the event of one of the assureds incurring liability to
any other of the assureds, this policy shall cover the assured against whom
claim is or may be made in the same manner as if separate policies had been
issued to each assured. Nothing contained herein shall operate to increase
underwriters' limit of liability.
Lessee also shall maintain in force during the term of this Lease, and
provide to the Port evidence that it does maintain the following, both with a
subrogation waiver endorsement in favor of the Port:
1.Statutory workers compensation insurance coverage under
California law; and
2. Employer's liability coverage in the amount of not less than
One Million Dollars ($1,000,000.00).
Before commencement of the term of this Lease, Lessee shall provide to
the Port an originally executed endorsement or endorsements evidencing all of
the liability insurance required under this Section. Lessee shall provide to the
Port at least 30 days prior to the expiration of any such policy an endorsement
showing that such insurance coverage has been renewed or replaced. If such
coverage is canceled or reduced, then within 15 days after receipt of written
notice of such cancellation or reduction in coverage, but in no event later than
the effective date of cancellation or reduction, Lessee shall provide the Port a
notice of reinstatement or an endorsement or endorsements as appropriate,
showing that the required insurance has been reinstated or replaced. At the
Port's request, Lessee agrees promptly to provide the Port a full, true and
complete copy of each policy required to be maintained hereunder. Each policy
shall be subject to the approval of the Port, which approval shall not
unreasonably be withheld.
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On failure to provide any such endorsement or other document as
required by this Section, Lessee shall be in substantial default of this Lease
and the Port may proceed in accordance with the default section of this Lease.
However, at its option and sole and absolute discretion the Port may, but is not
obligated to, (1) procure upon at least 15 days prior written notice to Lessee
all or portions of the required insurance at Lessee's expense and Lessee shall
pay to the Port the Port's cost of procurement of such insurance upon receipt of
billing from the Port for said cost or (2) approve a program of self-insurance
in lieu of required insurance upon such terms, conditions and limitations as may
be imposed at the Port's sole and absolute discretion.
Deductibles and self-insured retentions shall be permitted only at
Lessee's written request and upon the prior written approval of the Port, which
approval the Port shall not unreasonably withhold or delay and shall be subject
to the following covenants and conditions:
(1) Lessee agrees that for any such deductible or self-insured
retention amount, Lessee shall provide to the Port defense and indemnification
at least equal to the defense and indemnification to which the Port would be
entitled as an additional insured had Lessee provided the above-specified
coverages respectively under Insurance Services Office form number GL 0002 (Ed.
1/73) , Insurance Services Office form number GL 0404, and Insurance Services
Office form number CA 0001 (Ed. 6/92) . It is understood that Lessee's agreement
to provide such defense and indemnification to the Port includes cases where
such defense and indemnification would be required under said insurance policy
forms for claimed loss, damage, injury or death which was caused solely by the
active or passive negligence or other wrongful conduct of the Port.
(2) Lessee agrees that it shall be reasonable in all cases for the
Port to condition its approval of any deductible or self-insured retention in
excess of the first $2,500.00 ("unsecured amount") on Lessee's first depositing
with the Port, as additional security deposit and subject to all of the other
provisions of this Lease applicable to a security deposit, a sum determined by
the Port up to the amount of the deductible or self-insured retention in excess
of the unsecured amount. The Port from time to time but no more frequently than
once each year may adjust the unsecured amount by the percentage increase, if
any, between the last CPI published before the Effective Date and the last CPI
published. Such additional security deposit shall be in the form specified for a
security deposit under other provisions of this Lease, but shall not be
considered for purposes of increasing the security deposit pursuant to
provisions of this Lease other than this Section. The additional security
deposit is solely for the benefit of the Port to secure Lessee's agreement in
item (1) immediately above to defend and indemnify the Port.
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<PAGE>
In any case under this Section that Lessee is required to provide to
the Port an endorsement or copy of a policy and the policy is not available, the
Port agrees to accept in lieu thereof, and on a temporary basis only, a binder
in a form reasonably satisfactory to the Port.
All policies of insurance required by this Lease to be maintained by
Lessee or any sublessee shall be issued by carriers who are Financially
Acceptable.
16.4. Sublessees: Lessee shall include provisions in each sublease that
Lessee enters into with respect to the Premises that (1) the sublessee agrees to
indemnify and hold harmless the Port (as "Port" is defined in the Subsection 1
of this Section) in the same manner as Lessee agrees to indemnify and hold
harmless the Port in accordance with this Section above, and (2) the sublessee
agrees to maintain at all times during the term of the sublease liability
insurance with the coverages described in this Section above, in an amount not
less than $1,000,000.00 combined single limit, and which names the Port an
additional insured; provided, that the Port reasonably may require additional
coverages, and increased amounts, as a condition to consent to a sublease and
from time-to-time thereafter.
17. Mortgage of Leasehold and Protection of Lender: Notwithstanding any
provision to the contrary contained in this Section or in any other provision of
this Lease, Lessee, with the prior written and signed consent of the Port (which
consent shall not unreasonably be withheld) may enter into a Leasehold Mortgage.
Lessee shall have no right to require the Port to encumber the Port's fee
interest in the Property, and notwithstanding anything herein contained to the
contrary, Lessee hereby agrees that Lessee is entitled to enter into Leasehold
Mortgage for only the following purposes: (1) to finance construction of
Improvements required to be constructed under this Lease; (2) to provide for
refinancing of existing financing on the Premises previously approved by the
Port; (3) to finance Lessee's capital additions and equipment, and acquisitions
and/or replacements reasonably required in pursuit of its business activities on
the Premises; and (4) for any other purpose so long as the encumbrance of which
financing together with all existing encumbrances on the leasehold interest
shall not exceed 60% of value of Lessee's leasehold interest in the Premises.
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<PAGE>
Lessee's rights to enter into a Leasehold Mortgage as herein provided
shall be suspended so long as Lessee is in default hereunder and has received
written notice of such default from the Port.
Anything hereinafter contained in this Section to the contrary
notwithstanding, a Lender shall not be entitled to any notice or copy of any
notice from the Port to Lessee under this Lease, and such Lender's consent shall
not be required pursuant to the provisions of this Lease hereinafter set forth,
unless such Lender has provided, by written notice to the Port, the address or
addresses to which such notice, copy of such notice or request for consent shall
be sent, which address or addresses may be changed by such Lender from
time-to-time by written notice to the Port.
Lessee shall promptly provide the Port with a fully executed complete
copy of each Leasehold Mortgage and any and all amendments thereto. Each
Leasehold Mortgage shall contain a provision that all notices of default,
foreclosure and sale shall be given to the Port contemporaneously with service
on Lessee.
A Leasehold Mortgage or amendment there to shall be effective as to the
Port only if and so long as a fully executed complete copy of the entire
agreement and amendments thereto are provided to and approved in writing by the
Port. The Port agrees that it shall not unreasonably delay or deny approval, and
if the Port has not approved or disapproved in writing within 20 working days
after receipt, the Port shall be deemed to have approved.
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<PAGE>
18. Liens, Assignment and Subletting:
18.1. General: Lessee shall not, either directly or indirectly,
voluntarily or involuntarily, assign, hypothecate, encumber or transfer this
Lease or any interest therein or right granted thereby or sublet the whole or
any part of the Premises, or license the use of same, or permit or suffer any
other person or entity to occupy, use or manage (except management by Lessee's
employees) the same, in whole or in part, without the prior written consent of
the Port which consent the Port may withhold and deny in its sole and absolute
discretion.
Except as hereinafter in this Section expressly provided, no
modification of a sublease, assignment or other transfer after the Port's
initial consent shall be effective without the prior written approval of the
Port. Lessee agrees that it immediately shall notify the Port in writing of any
cancellation or surrender of a sublease. In case of a transfer by reason of
death the transferee shall notify the Port in writing of the transfer within 60
days after the death.
Neither this Lease nor any interest therein or right granted thereby
shall be assignable or transferable in proceedings in attachment, garnishment or
execution against Lessee, or in voluntary or involuntary proceedings in
bankruptcy or insolvency or receivership taken by or against Lessee or by any
process of law, and possession of the whole or any part of the demised premises
shall not be divested from Lessee in such proceedings or by any process of law,
without the prior written consent of the Port, which consent the port may
withhold and deny in its sole and absolute discretion.
Any breach of the provisions of this Section shall constitute a default
and shall cause this Lease to terminate immediately at the option of the Port
after not less than 5 days' notice to Lessee.
Unless otherwise provided by resolution adopted by the Board of Port
Commissioners or expressly in this Section, no subletting or assignment, even
with the Port's consent, shall relieve Lessee of its rental or other obligations
hereunder, and Lessee shall continue to be liable as a principal and not as a
guarantor or surety, to the same extent as though no assignment or subletting
had been made.
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<PAGE>
18.2. Liens, Attachments, Bankruptcy: Except as otherwise expressly
provided in this Lease, Lessee shall pay for all labor done and materials
furnished in the repair, replacement, development or improvement of the Premises
and any areas adjacent thereto and shall keep the Premises and such adjacent
land, and Lessee's possessory interest in the Premises, free and clear of any
lien or encumbrance (hereinafter "lien") of any kind whatsoever created by
Lessee.
If a lien is filed, Lessee shall promptly either cause such lien to be
released of record or diligently contest the claim relating to the lien,
provided that if such contest is resolved against Lessee, Lessee promptly shall
cause such lien to be released of record, and if Lessee fails so to do, the Port
shall have the right and option, but not the duty, to pay or otherwise
discharge, stay or prevent the execution of any judgment or lien or both. If the
Port exercises such option, the Port shall not be deemed to have waived the
Port's right to declare a default of this Lease and Lessee shall reimburse the
Port for all sums expended in connection with any such judgment or lien, or
both, including the Port's reasonable attorneys fees and costs, together with
any delinquency charge provided for in this Lease, and said reimbursement shall
be due and payable 10 days from the date the Port gives to Lessee written notice
of any such payments, fees or costs.
Lessee shall not be deemed to be in default if Lessee causes an
attachment or execution to be removed within 45 days of levy, or if Lessee
causes an involuntary proceeding in bankruptcy to be dismissed or receiver to be
removed within 90 days of the date of commencement of said proceeding or
appointment of said receiver.
18.4. Assignments: Assignments or transfers requiring Port consent
include any and all assignments or transfers of any right, title or interest in
this Lease except arising from death or otherwise expressly exempt by the
provisions of this Lease from the requirement for prior Port approval.
An assignment within the meaning of this Section shall include, but is
not limited to, the following:
A. If Lessee is other than a corporation, the transfer of the
Lease or any of Lessee's interests therein to a corporation that is not wholly
owned or controlled by Lessee;
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<PAGE>
B. If Lessee consists of more than one person or entity, or a
combination of a person or persons and an entity or entities, a purported
assignment, voluntary, involuntary, or by operation of law of any interest in
the Lease from one or more such persons or entities, to any other person or
persons or entity or entities whether or not such other person or persons or
entity or entities are Lessees;
C. If Lessee is a partnership, a withdrawal or change, voluntary,
involuntary, or by operation of law, of any general partner (but not of any
limited partner), or the dissolution of the partnership;
D. If Lessee is a corporation, any dissolution, merger,
consolidation, or other reorganization of Lessee, or the sale or other transfer
of a controlling percentage of the capital stock of Lessee, or the sale of more
than 50% of the value of the assets of Lessee whether in one conveyance or
cumulatively in the aggregate in more than one conveyance. The phrase
"controlling percentage" means the ownership of, and the right to vote, stock
possessing at least 50% of the total combined voting power of all classes of
Lessee's capital stock issued, outstanding, and entitled to vote for the
election of directors. This subsection D shall not apply to a corporation the
stock of which is publicly traded through an exchange or over the counter or to
any transfer, distribution or contribution of a controlling percentage of the
capital stock of Lessee (i) by any corporate shareholder of Lessee to one or
more of its own shareholders, or (ii) by any shareholder of Lessee to another
corporation the capital stock of which such shareholder owns a controlling
percentage; provided, however, Lessee shall however give the Port prompt written
notice of each such transfer, distribution or contribution.
19. Toxic Materials; Fumes and Odors; Disposal of Garbage; Annoying and
Injurious Conduct: Exhibit "C", entitled Toxic Materials, is attached to and
made a part of this Lease. The terms and conditions of this Exhibit shall apply
to any Toxic Materials as defined in the Exhibit.
No offensive or dangerous trade, business or occupation shall be
carried on within the Premises, and nothing shall be done on the Premises, other
than as is provided for in the use provisions of this Lease, which will suspend
the insurance upon the Premises or increase the rate of insurance or suspend the
insurance on other structures of the Port; and no machinery or apparatus shall
be used or operated on the Premises which will in any way injure the Premises or
adjacent buildings; provided, however, that nothing in this Section shall
preclude Lessee from bringing, keeping or using on or about the Premises goods,
merchandise, materials, supplies, equipment and machinery as are appropriate or
customary in carrying on its said business, or from carrying on its business in
all respects as is generally usual, so long as Lessee at all times is in full
compliance with the attached Hazardous and Toxic Substances Exhibit and all
laws, regulations, permits, licenses and any other approvals or authorizations
relating to Toxic Materials.
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<PAGE>
Lessee agrees to conduct its operations upon the Premises so as to
reduce to the minimum that is reasonably practicable the emanation from the
Premises of fumes and odors.
Lessee agrees to handle and dispose of its trash, garbage and refuse in
a sanitary manner and not to store or maintain any boxes, cartons, barrels,
trash, debris or refuse in or about the Premises where they will be visible from
any direction outside the Premises. Lessee shall provide its own facilities
within the Premises for the cleaning of garbage cans.
20. Defaults; Remedies: The Port's rights under this Section are subject
to any Leasehold Mortgage Lender provisions of this Lease.
20.1. Defaults: The occurrence of any one or more of the following
events shall constitute a material default and breach of this Lease by Lessee:
(a) The vacating or abandonment of the Premises by Lessee.
(b) The failure by Lessee to make any payment of rent or any other
payment required to be made by Lessee hereunder, as and when due, where such
failure shall continue for a period of 10 days after written notice thereof from
Port to Lessee. In the event that Port serves Lessee with a Notice to Pay Rent
or Quit pursuant to applicable Unlawful Detainer statutes such Notice to Pay
Rent or Quit shall also constitute the notice required by this paragraph (b).
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<PAGE>
(c) The failure by Lessee to observe or perform any of the
covenants, conditions or provisions of this Lease to be observed or performed by
Lessee, other than described in paragraph (b) above, where such failure shall
continue for a period of 30 days after written notice hereof from Port to
Lessee; provided, however that if the nature of Lessee's default is such that
more than 30 days are reasonably required for its cure, then Lessee shall not be
deemed to be in default if Lessee commenced such cure within said 30 day period
and thereafter diligently prosecutes such cure to completion.
(d) (i) The making by Lessee of any general arrangement or
assignment for the benefit of creditors; (ii) Lessee becomes a "debtor" as
defined in 11 U.S.C. Section 101 or any successor statute thereto (unless, in
the case of a petition filed against Lessee, the same is dismissed within 60
days) ; (iii) the appointment of a trustee or receiver to take possession of
substantially all of Lessee's assets located at the Premises or of Lessee's
interest in this Lease, where possession is not restored to Lessee within 30
days; or (iv) the attachment, execution or other judicial seizure of
substantially all of Lessee s assets located at the Premises or of Lessee's
interest in this Lease, where such seizure is not discharged within 30 days;
provided, however, in the event that any provision of this paragraph (d) is
contrary to any applicable law, such provision shall be of no force or effect.
(e) The discovery by Port that any financial statement given to
Port by Lessee, any assignee of Lessee, any successor in interest of Lessee or
any guarantor of Lessee's obligation hereunder, and any of them, was materially
false.
20.2. Remedies: In the event of any such material default or breach by
Lessee, Port may at any time thereafter, with or without notice or demand and
without limiting Port in the exercise of any right or remedy which Port may have
by reason of such default or breach:
(a) Terminate Lessee's right to possession of the Premises by any
lawful means, in which case this Lease shall terminate and Lessee shall
immediately surrender possession of the Premises to Port. In such event Port
shall be entitled to recover from Lessee all damages incurred by Port by reason
of Lessee's default including, but not limited to,
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<PAGE>
(i) The worth at the time of award of the unpaid rent and
sums equivalent to rent required to be paid by Lessee under this Lease that had
been earned at the time of termination;
(ii) The worth at the time of award of the amount by which
the unpaid rent and sums equivalent to rent required to be paid by Lessee under
this Lease that would have been earned after termination until the time of award
exceeds the amount of such rental loss that Lessee proves could have been
reasonably avoided;
(iii) The worth at the time of award of the amount by which
the unpaid rent and sums equivalent to rent required to be paid by Lessee under
this Lease for the balance of the term after the time of award exceeds the
amount of such rental loss that Lessee proves could be reasonably avoided; and
(iv) Any other amounts permitted by law to compensate the
Port for detriment proximately caused by Lessee's default or which in the
ordinary course of events would be likely to result therefrom, including, but
not limited to, the costs and expenses incurred by the Port (A) in retaking
possession of the Premises, (B) in cleaning and making repairs of and
alterations to the Premises reasonably necessary to return the Premises to good
condition for uses permitted by this Lease and in otherwise preparing the
Premises for reletting, (C) in removing, transporting, and storing any of
Lessee's property left at the Premises although the Port shall have no
obligation to remove, transport, or store any of such property, (D) in providing
project management and (E) in reletting the Premises, including, but not limited
to, brokerage commissions, advertising costs, and attorneys' fees.
The "worth at the time of award" of the amounts referred to in items
(i) and (ii) immediately above is computed by allowing interest at the maximum
rate permitted by law. The "worth at the time of award" of the amount referred
to in item (iii) immediately above is computed by discounting such amount at the
discount rate of the Federal Reserve Bank of San Francisco at the time of award
plus one percent (1%)
(b) Avail itself of the remedy described in California Civil Code
Section 1951.4 (lessor may continue lease in effect after lessee's breach and
abandonment and recover rent as it becomes due, if lessee has right to sublet or
assign, subject only to reasonable limitations).
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<PAGE>
(c) In case of abandonment or vacating of the Premises by Lessee,
if the Port elects not to terminate the Lease, Lessee hereby irrevocably
appoints the Port the agent of Lessee to enter upon the Premises and remove any
and all persons and/or property whatsoever situated upon the Premises, and place
all or any portion of said property in storage for account of and at expense of
Lessee. In such case the Port may relet the Premises upon such terms as to it
may seem fit, and if a sufficient sum shall not thus be realized after paying
all expenses enumerated in items A, B, C and D in paragraph (a) (iv) of this
Subsection 20.2 and collecting to satisfy the rent and other sums herein agreed
to be paid, Lessee agrees to satisfy and pay any deficiency, and to pay such
expenses. Lessee hereby exempts and agrees to save harmless the Port from any
cost, loss or damage arising out of or caused (except to the extent caused by
the active negligence of the Port or its agents or contractors) by any such
entry or re-entry upon said Premises and/or the removal of persons and/or
property and storage of such property by the Port or its agents.
(d) Pursue any other remedy now or hereafter available to Port
under the laws or judicial decision of the State of California.
21. Surrender and Holding Over: Lessee covenants that at the expiration of
the term of this Lease or upon its earlier termination it will quit and
surrender the Premises to the Port and remove therefrom all of the structures
thereon to ground level, together with all tenant improvements and all
equipment, furniture and trade fixtures. The Premises shall be surrendered in
good state and condition (reasonable wear and tear and damage by the elements
excepted) , clean and free of all subtenants, Toxic Materials, trash, debris,
equipment, furniture and trade fixtures not required to remain on the Premises
under this Lease, and otherwise in compliance with all the terms of this Lease.
The Port shall have the right upon such termination to enter upon and take
possession of all the Premises. Should Lessee with the Port's written consent
hold over the use of the Premises after this Lease has been terminated in any
manner, such holding over shall be deemed merely a tenancy from month to month
on such terms and conditions, and at a rent (payable monthly in advance), as may
be fixed from time to time by the Port, but otherwise on the same terms and
conditions as herein set forth; provided, however, that rent may be fixed by the
Port from time to time by giving to Lessee written notice thereof at any time
not less than 7 days before the expiration of any such month, to be effective
upon the expiration of such month.
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It is understood and agreed that nothing contained in this Lease shall
give Lessee any right to occupy the Premises at any time after expiration of the
term of this Lease or its earlier termination or termination of any holdover
tenancy by any means whatsoever, and that this Lease shall not create any right
in Lessee for relocation assistance or payment from the Port upon expiration of
the term of this Lease or upon its earlier termination or upon the termination
of any holdover tenancy by any means whatsoever. Lessee acknowledges and agrees
that upon such expiration or termination, it shall not be entitled to, and
expressly hereby waives, any relocation assistance or payment pursuant to the
provisions of Title 1, Division 7, Chapter 16, of the Government Code of the
State of California (Sections 7260 et seq.) with respect to any relocation of
its business or activities upon the expiration of the term of this Lease or upon
its earlier termination or upon the termination of any holdover tenancy by any
means whatsoever.
22. Security and Protection of Premises: Lessee shall assume the sole
responsibility for all personal security and for guarding and safekeeping of and
risk of loss to all property, stock merchandise and equipment stored or located
upon or used in connection with the said Premises.
23. Waivers: No waiver by either party at any time of any of the terms,
conditions or covenants or agreements of this Lease or of any default shall be
deemed or taken as a waiver at any time thereafter of the same or of any other
term, condition or covenant or agreement herein contained, nor of the strict and
prompt performance thereof. No delay, failure or omission of the Port to
re-enter the Premises or to exercise any right, power or privilege, or option,
arising from any default, nor any subsequent acceptance of rent then or
thereafter accrued shall impair any such right, power, privilege or option or be
construed a waiver of any such default or relinquishment thereof, or
acquiescence therein, and no notice by the Port shall be required to restore or
revive time as of the essence after waiver by the Port of default in one or more
instance. No option, right, power, remedy or privilege of the Port shall be
construed as being exhausted by the exercise thereof in one or more instances.
It is agreed that each and all of the rights, powers, options or remedies given
to the Port by this Lease are cumulative, and no one of them shall be exclusive
of the other or exclusive of any remedies provided by law, and that exercise of
one right, power, option or remedy by the Port shall not impair its rights to
any other right, power, option or remedy.
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24. Right to Inspect Premises: The Port or its duly authorized
representatives, or agents and other persons for it, may enter upon the Premises
at any and all reasonable times during the term of this Lease for the purpose of
determining whether or not Lessee is complying with the terms and conditions
hereof or for any other purpose incidental to rights of the Port. The Port shall
not unreasonably interfere with the use and occupancy of Lessee or sublessees
during such entry.
25. Agent for Service of Process: It is expressly agreed and understood
that if Lessee is not a resident of this state, or is an association or
partnership without a member or partner resident of this state, or is a
foreign corporation, then in any such event Lessee shall file with the Port a
designation of a natural person residing in the County of Alameda, State of
California, giving the person's name, residence and business address as
Lessee's agent for the purpose of service of process in any court action
between Lessee and the Port arising out of or based upon this Lease, and the
delivery to such agent of a copy of any process in any such action shall
constitute valid service upon such Lessee. Notwithstanding the foregoing, if
Lessee is a foreign corporation, then in lieu of filing with the Port a
designation as provided above in this Section, Lessee may file with the Port
a certified copy of its designation of agent filed with the California
Secretary of State under California Corporations Code Section 2105. If for
any reason service of such process upon such agent is not possible, then in
such event Lessee may be personally served with such process out of this
state, and Lessee agrees that such service shall constitute valid service
upon such Lessee; and it is further expressly agreed that Lessee is amenable
to the process so served, submits to the jurisdiction of the court so
acquired, and waives any and all objection and protest thereto.
26. Promotion of Port and Facilities: Lessee shall in good faith and with
all reasonable diligence when advertising the Premises seek to promote the
harbor in the City of Oakland in order to promote and aid the commerce and trade
of the Port of Oakland and the use of its facilities. Lessee agrees that any
reference to the Premises in Lessee's brochures and other advertisements shall
include a reference to the Port of Oakland in the name of the Premises.
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<PAGE>
27. Estoppel Certificates: Lessee or the Port, as the case may be, shall
execute, acknowledge and deliver to the other and/or to Lender, promptly upon
request, its certificate certifying' to the best of its knowledge (a) that this
Lease is unmodified and in full force and effect (or, if there have been
modifications, that this Lease is in full force and effect, as modified, and
stating the modifications), (b) the commencement and expiration dates of the
Lease term and the dates, if any, to which the rent has been paid, (c) whether
there are then existing any charges, offsets or defenses against the enforcement
by the Port or Lessee of any agreement, covenant or condition hereof on the part
of the Port or Lessee to be performed or observed (and, if so, specifying the
same), and (d) whether there are then existing any defaults by the Port or
Lessee in the performance or observance by the Port or Lessee of any agreement,
covenant or condition hereof on the part of the Port or Lessee to be performed
or observed and whether any notice has been given to the Port or Lessee of any
default which has not been cured (and, if so, specifying the same).
Lessee and the Port also agree at the request of the other to provide
other information readily available and reasonably related to a transaction and
required therefor by the requesting party; provided, however, that such other
information shall not include financial information or other confidential
information unless required to be provided by other provisions of this Lease,
and a party may condition its supply of such other information upon the
requesting party's prior deposit of a reasonable estimate of costs of providing
such information.
28. Force Majeure: In the event that Lessee or the Port is delayed,
directly or indirectly, from the performance of any act or thing required under
the terms hereof by acts of God, accidents, fire, floods, inclement weather,
governmental action, restrictions, priorities or allocations of any kind and all
kinds, strikes or labor difficulties of any and all kinds, shortages of or delay
in the delivery of material, acts of war, riot and civil commotion, or by any
similar cause reasonably beyond the control of Lessee or the Port, as the case
may be, such failure (except for the payment of rent or other sums required by
this Lease) shall not be deemed to be a breach of this Lease or a violation of
any such covenants and the time within which Lessee or the Port must perform any
said act shall be extended by a period of time equal to the period of delay
arising from any of said causes.
40
<PAGE>
29. Eminent Domain Proceedings: It is mutually agreed that, in the event
the Premises, or any interest therein, shall be taken by paramount governmental
authority in eminent domain proceedings, Lessee shall not be entitled to share
in any award for the value of the land, and Lessee hereby waives any claim to
any part of such award; provided, however, that nothing herein contained shall
be deemed a waiver of any right of Lessee to recover compensation in any such
proceeding for the value of improvements belonging to it which might thus be
taken whether same are affixed to the land or not; and provided further that, if
a portion only of the Premises is taken, nothing herein contained shall be
deemed a waiver of any right of Lessee (as owner of the leasehold interest and
of improvements thereon erected, installed or acquired by Lessee) to recover
severance damages.
Anything contained in this Section to the contrary notwithstanding, all
compensation, damages, reimbursements or other benefits payable to Lessee or
Lessee's subtenants, licensees and concessionaires for or in connection with any
relocation, displacement, inability to relocate, loss of business or loss of
goodwill resulting from or in connection with any taking covered by this Section
shall be payable to and be the sole property of Lessee or Lessee's subtenants,
licensees and concessionaires, as appropriate. In addition, Lessee shall be
entitled to receive all compensation and damages arising from such taking and
payable for or on account of Lessee's trade fixtures and equipment at any time
located on the portion of the Premises so taken, except that compensation and
damages for those trade fixtures that pursuant to this Lease are to remain with
the Premises on surrender shall be paid to the Port.
Lessee acknowledges the Port's reserved power upon payment of just
compensation to exercise its power of eminent domain as to the leasehold estate
created hereunder; provided, however, that the foregoing acknowledgment shall
not be deemed or construed to prejudice or waive any rights of Lessee to
challenge or object to any attempt by the Port so to exercise such power.
30. Waiver of Claims: The Lessee hereby waives any claim against the City
of Oakland, and the Board of Port Commissioners, its officers, agents or
employees, for damage or loss caused by any claim, suit or proceedings directly
or indirectly attacking the validity of this Lease or any part thereof or right
granted thereby or asserting any right or interest in the Premises inconsistent
with rights granted to Lessee by this Lease, or by any judgment or award in any
suit or proceedings instituted by a party other than the Port directly or
indirectly attacking the validity of this Lease, or any part thereof, or by any
judgment or award in any suit or proceeding declaring this Lease null, void or
voidable, or delaying the same, or any part thereof, from being carried out;
provided, however, that such waiver shall not apply or run to any damage or loss
in any way caused by any suit or proceeding directly or indirectly attacking the
validity of this Lease which suit or proceeding is based in whole or in part
upon an alleged "conflict of interest" of any elected or appointed official,
officer, agent or employee of the City of Oakland or the Board of Port
Commissioners of the Port of Oakland, including any "conflict of interest" or
other matter alleged to violate or violating California Government Code Sections
1090 or 1092. The Port and Lessee each agree that it shall not in any way
attempt to have this Lease declared null or void, and that it shall reasonably
cooperate with the other to defend the validity of this Lease and of the rights
and obligations granted by this Lease.
41
<PAGE>
31. Extensions of Time: The Port shall have the right to grant reasonable
extensions of time to Lessee for any purpose or for the performance of any
obligation of Lessee hereunder.
32. Successors: Each and every of the provisions, agreements, terms,
covenants and conditions herein contained to be performed, fulfilled, observed
and kept shall be binding upon the successors and assigns of the parties hereto,
and the rights hereunder, and all rights, privileges and benefits arising under
this Lease and in favor of either party shall be available in favor of the
successors and assigns thereof, respectively; provided no assignment by or
through Lessee in violation of the provisions of this Lease shall vest any
rights in such assignee or successor.
33. Time of Essence: Time is hereby expressly declared to be of the essence
of this Lease.
34. Notices: All notices and other communications made pursuant to or with
regard to this Lease, including without limitation a statutory notice, a notice
of default and a Notice to Pay Rent or Quit, shall be in writing and shall be
deemed properly delivered, given or served when (1) personally delivered against
receipted copy or (2) mailed by certified or registered U.S. mail, postage
prepaid, to the parties at the following addresses:
42
<PAGE>
Port: Executive Director
Port of Oakland
530 Water Street
Oakland, CA 94607
Lessee: Richard Ferdinand
Station Manager
KIQI AM
2601 Mission Street
San Francisco, CA 94110
If notice of any change in its address the other party shall thereafter
give notices at such changed address.
35. Equal Opportunity, Nondiscrimination and Affirmative Action:
35.1. Equal Opportunity; Nondiscrimination: In furtherance of the
Port's long-standing policy to insure that equal employment opportunity is
achieved and nondiscrimination is guaranteed in all Port-related activities, it
is expressly understood and agreed with respect to Lessee's activities upon the
demised premises:
a. That Lessee shall not discriminate against any employee or
applicant for employment because of race, color, religion, sex, actual or
perceived sexual orientation, national origin, age, physical or mental
disability or disability as set forth in the Americans With Disabilities Act of
1990, or veteran's status. Lessee shall take affirmative action to ensure that
applicants and employees are treated fairly. Such action shall include, but not
be limited to the following: employment, upgrading, demotion, or transfer;
recruitment or recruitment advertising; layoff or termination; rates of pay or
other forms of compensation; and selection for training, including
apprenticeship. Lessee agrees to post in conspicuous places, available to
employees and applicants for employment, notices to be provided by the Port's
Director of Equal Opportunity setting forth the provisions of this paragraph.
b. That Lessee shall, in all solicitations or advertisements for
employees placed by or on behalf of Lessee, state that all qualified applicants
will receive consideration for employment without regard to race, color,
religion, sex, actual or perceived sexual orientation, national origin, age,
physical or mental disability or disability as set forth in the Americans With
Disabilities Act of 1990, or veteran's status.
43
<PAGE>
c. That Lessee will send to each labor union or representative of
workers with which he has a collective bargaining agreement or other contract or
understanding, a notice, to be provided by the Port's Director of Equal
Opportunity, advising the labor union or workers' representative of the Lessee's
commitments under this paragraph, and shall post copies of the notice in
conspicuous places available to employees and applicants for employment.
d. That Lessee shall not discriminate by segregation or otherwise
against any person or persons because of race, color, religion, sex, actual or
perceived sexual orientation, age, national origin, physical or mental
disability or disability as set forth in the Americans With Disabilities Act of
1990, or veteran's status in furnishing, or by refusing to furnish, to such
person or persons the use of any public facility upon the demised premises,
including any and all services, privileges, accommodations, and activities
provided thereby.
e. That Lessee shall maintain work force records showing male,
female and minority employees by job category and similar information with
respect to new hires and shall permit the Port's Director of Equal Opportunity
to inspect such records at all reasonable times and not less than annually and
shall submit a summary of such information annually on a form provided by the
Port.
f. That whenever Lessee's total number of employees working at the
Property exceeds fifteen (15) Lessee shall provide the Executive Director or his
designee with a copy of its affirmative action program outlining the steps the
tenant will undertake to promote effective utilization of minorities, women,
handicapped persons, and veterans approved by an appropriate federal and state
agency or by the Port or an affirmative action program required as a result of a
court ordered consent decree. Thereafter any change(s) in the Lessee's
affirmative action program shall be forwarded to the Port within thirty (30)
days of its adoption. Such submissions shall be accorded the same level of
confidentiality as provided for by the state or federal regulations or court
order under which it was originally submitted.
44
<PAGE>
g. That Lessee's noncompliance with the provision of this clause
shall constitute a material breach of this lease. In the event of a breach of
any of the above-stated nondiscrimination and affirmative action covenants, the
Port shall have the right to consider but not be limited to the following:
(1) Terminate this lease and to re-enter and possess said
land and the facilities thereon, and to hold the same as if this lease had never
been made without liability therefor; or
(2) Seek judicial enforcement of said covenants.
h. The Port shall assist Lessee in preparing the required
affirmative action program to secure equal employment opportunities, whenever
such assistance would be beneficial and shall be available to advise and counsel
Lessee in the implementation of Lessee's Affirmative Action Program.
35.2. Employment Resources Development Program: It is expressly
understood and agreed with respect to the Lessee's activities on the Property:
a. That Lessee shall cooperate with the Port's Employment
Resources Development Program ("ERDP") . Lessee understands the Port's ERDP
seeks to serve the needs of Port tenants for a qualified workforce and address
the needs of Oakland's chronically unemployed and underemployed, by identifying
employment opportunities, by identifying employment training and counseling
resources for persons seeking such opportunities and by facilitating the
employment of those persons qualified to fill jobs identified;
b. That the Lessee will notify ERDP of job opportunities open with
the Lessee, either informally, or by providing copies of all advertisements or
solicitations by or on behalf of the Lessee, to the Port's Employment Resources
Development Program Coordinator, so that this office may assist the Lessee by
providing pre-screened, qualified residents of Oakland and others seeking
employment through the Port's ERDP, including minorities, women, handicapped
persons and veterans.
c. That the Lessee shall consider ERDP referrals for employment as
required by this Section and by relevant state or federal equal employment
opportunity law. Lessee retains and at all times shall have the right,
consistent with the Lessee's obligations pursuant to its affirmative action
program both to determine the qualifications of all applicants for employment
and, in its sole discretion, to select the applicant it deems best qualified.
45
<PAGE>
36. Quiet Possession: Lessee, upon performing its obligations hereunder,
and subject to the provisions of the Section hereof entitled "Waiver of Claims",
shall have the quiet and undisturbed possession of the Premises through the term
of this Lease. In no event shall Lessee have the right to terminate this Lease
as a result of the Port's default and Lessee's remedies for the Port's default
shall be limited to damages and/or an injunction.
37. [Intentionally Omitted]
38. Trade Names: The name or names under which Lessee shall elect to
operate the Premises shall be subject to the prior written approval of the Port,
which approval shall not be unreasonably withheld. Lessee agrees to operate only
under the names so approved.
39. Lease the Entire Agreement; Other Agreements: The Lessee agrees that
the provisions of this written Lease constitute the entire agreement between the
Lessee and the Port regarding the demised Premises and the parties' rights and
obligations with respect thereto. No representation, covenant or other matter
oral or written, that is not expressly set forth in this Lease or in documents
expressly referred to in this Lease shall be a part of, modify or affect this
Lease; provided, however, that this Lease may be modified at the sole discretion
of each of the Port and Lessee if the modification is in writing executed by the
Port and Lessee and authorized by ordinance or resolution of the Board of Port
Commissioners. It is expressly acknowledged, understood and agreed that, except
as may otherwise be expressly provided herein, neither the Port nor Lessee shall
have any obligation whatsoever to amend or revise any term or condition of this
Lease, including, without limitation, any amendment or revision relating to
allowable uses of the Property or Premises or to the term or rent, or which may
in any respect modify any rights or obligations of the Port or Lessee under the
provisions of this Lease.
40. Applicable Law and Venue: This Lease shall be construed and
interpreted in accordance with the laws of the State of California. All
disputes that cannot be settled amicably by the parties shall be determined
by a competent state court in Alameda County, California, which state court
shall be the only agency with any authority to determine any such dispute.
Neither party shall commence any action in any other court or attempt to
remove an action to any other court, it being agreed that any violation of
this Section may be specifically enforced by mandatory injunction because
money damages would be an inadequate remedy. The foregoing shall not be
construed to prohibit an appeal of a judgment of said court.
46
<PAGE>
41. Real Estate Brokers: Lessee and the Port each represent that it has not
had dealings with any real estate broker, finder or other similar person, with
respect to this Lease in any manner. Lessee and the Port each shall hold
harmless the other from all damages resulting from any claims that may be
asserted against the other by any broker, finder or other similar person with
whom it has or purportedly has dealt.
42. Covenant Against Contingent Fees: Lessee warrants that no person or
agency has been employed or retained to solicit or obtain this Lease upon an
agreement or understanding for a contingent fee, except a bona fide employee or
agency. For breach or violation of this warranty, the Port shall have the right
to recover three times the full amount of the contingent fee.
"Bona fide agency," as used in this Section means an established
commercial or selling agency, maintained by Lessee for the purpose of securing
business, that neither exerts nor proposes to exert improper influence to
solicit or obtain Port contracts nor holds itself out as being able to obtain
any Port contract or contracts through improper influence.
"Bona fide employee," as used in this Section, means a person, employed
by Lessee and subject to Lessee's supervision and control as to time, place, and
manner of performance, who neither exerts nor proposes to exert improper
influence to solicit or obtain Port contracts nor holds itself out as being able
to obtain any Port contract or contracts through improper influence.
"Contingent fee," as used in this Section, means any commission,
percentage, brokerage, or other fee that is contingent upon the success that a
person or concern has in securing a Port contract.
47
<PAGE>
"Improper influence," as used in this Section, means any influence that
induces or tends to induce a Port Commissioner, employee or officer to give
consideration or to act regarding a Port contract on any basis other than the
merits of the matter.
43. Third Party Rights: Nothing herein is intended to nor shall be
construed to create any rights of any kind whatsoever in third persons or
entities not parties to this Lease.
44. Definitions: The following terms, when used in this Lease with the
initial letter(s) capitalized, whether in the singular or plural, shall have the
following meaning:
"Board": The Board of Port Commissioners of the City of Oakland, acting for and
on behalf of the City.
"City": The City of Oakland.
"Consumer Price Index" or "CPI": The Consumer Price Index for Urban Wage Earners
and Clerical Workers, All Items, San Francisco-Oakland (1982-84 equals 100), of
the Bureau of Labor Statistics of the United States Department of Labor, or the
official successor of said Index. If said Index is changed so that the base year
differs from the base year used in the last index published prior to the
commencement of the term of this Lease, the former Index shall be converted to
the new Index in accordance with the conversion factor published by the United
States Department of Labor, Bureau of Labor Statistics. If said Index is
discontinued or revised during the term of this Lease, such other government
index or computation with which it is replaced, as determined by said Department
or said Bureau, or, failing such determination, such other government index or
computation which is most similar to said Index, shall be used in order to
obtain substantially the same result as would be obtained if said Index had not
been discontinued or revised; provided, that in the event the parties are unable
to agree upon such other government index or computation, it shall be selected
by arbitration pursuant to the rules of the American Arbitration Association.
"Effective Date": The date this Lease becomes effective.
"Executive Director": The Port's Executive Director referred to in the Charter
of the City of Oakland and any other person authorized by the Board to act for
the Executive Director, or the Board.
48
<PAGE>
"Financially Acceptable": A rating of A-VI or higher in the most current
available "Best's Insurance Reports," or such other ratings or carriers as may
be acceptable at the sole discretion of the Port; provided, however, that the
Port may disapprove carriers with an A-VI or higher rating if the Port has a
reasonable basis for such disapproval.
"Improvements": Buildings, landscaping and other permanent improvements located
from time to time on the Property.
"Leasehold Mortgage": Any mortgage, deed of trust or other security instrument
(including, without limitation, an assignment of the rents, issues and profits
generated on or by the Premises) and any obligation relating thereto, which
secures Lessee's repayment of any loan to, and associated obligations of,
Lessee, and in which all or any part of the security consists of an encumbrance
on the leasehold estate created by this Lease, the Improvements, Lessee's trade
fixtures on the Premises, or Lessee's equipment or other personal property used
on or about the Premises.
"Lender": The party or parties who are beneficiaries of a Leasehold Mortgage.
"Port": The Port of Oakland, which consists of the Port Department of the City,
under the exclusive control and management of the Board. In any case under this
Lease that the Port may or shall take any action, the Executive Director is
authorized to take such action unless this Lease provides for action by the
Board or by resolution or ordinance, and except as otherwise provided now or
hereafter by law, the Charter of the City of Oakland, or by resolution or
ordinance of the Board.
"Premises": The Property together with the Improvements.
"Property": The land leased by the Port to Lessee under this Lease. The Property
is depicted in attached Exhibit "A".
"Toxic Materials": Toxic Materials as defined in Exhibit "C" attached hereto.
45. Warranty of Signatories: Each of the persons signing this Lease on
behalf of Lessee represent and warrant to the Port that Lessee is a California
corporation, that each said person has been duly authorized by Lessee to sign
this Lease and that this Lease is a valid and binding obligation of Lessee.
49
<PAGE>
46. Recordation: Lessee and the Port agree that they each shall acknowledge
execution of this Lease, and amendments thereto, sufficient for recordation of
the Lease in the Official Records of Alameda County, California. Unless
otherwise directed by the Port, Lessee agrees to affix to the Lease a notarial
acknowledgment form that is 8 1/2 x 11 inches in size. Lessee agrees to pay to
the Port promptly upon demand any cost or expense incurred by the Port as a
result of Lessee's failure to affix to the Lease a notarial acknowledgment form
that is 8 1/2 x 11 inches in size, or as the result of Lessee's affixing to the
Lease a defective notarial acknowledgment form. Lessee also agrees upon its
execution of the Lease to submit to the Port any statements, reports, and
payments necessary for recordation of the Lease.
47. Agreement in Multiple Copies: This Lease is executed in multiple
copies, each copy of which shall be deemed an original.
IN WITNESS WHEREOF, the parties hereto have caused these presents to be
executed the day and year first above written.
PORT
CITY OF OAKLAND, a municipal
corporation, acting by and
through its Board of Port
Commissioners,
Dated: By
------------------------- -----------------------------
Executive Director
50
<PAGE>
46. Recordation: Lessee and the Port agree that they each shall acknowledge
execution of this Lease, and amendments thereto, sufficient for recordation of
the Lease in the Official Records of Alameda County, California. Unless
otherwise directed by the Port, Lessee agrees to affix to the Lease a notarial
acknowledgment form that is 8 1/2 x 11 inches in size. Lessee agrees to pay to
the Port promptly upon demand any cost or expense incurred by the Port as a
result of Lessee's failure to affix to the Lease a notarial acknowledgment form
that is 8 1/2 x 11 inches in size, or as the result of Lessee's affixing to the
Lease a defective notarial acknowledgment form. Lessee also agrees upon its
execution of the Lease to submit to the Port any statements, reports, and
payments necessary for recordation of the Lease.
47. Agreement in Multiple Copies: This Lease is executed in multiple
copies, each copy of which shall be deemed an original.
IN WITNESS WHEREOF, the parties hereto have caused these presents to be
executed the day and year first above written.
PORT
CITY OF OAKLAND, a municipal
corporation, acting by and
through its Board of Port
Commissioners,
Dated: 12/23/97 By /s/
------------------------- -----------------------------
Executive Director
50
<PAGE>
LESSEE
ORO SPANISH BROADCASTING, INC.,
a California corporation
Dated: By
----------------------------- --------------------------------
--------------------------------
(Print name and title)
THIS LEASE SHALL NOT
BE VALID OR EFFECTIVE FOR
ANY PURPOSE UNLESS AND
UNTIL IT IS SIGNED BY THE
PORT ATTORNEY.
Approved as to form and
legality this__________ day
of ____________________ 19____.
- -------------------------------
Port Attorney
Port Ordinance No.
----
51
<PAGE>
LESSEE
ORO SPANISH BROADCASTING, INC.,
a California corporation
Dated: December 10, 1997 By /s/ Rene De La Rosa
------------------------ ----------------------------
Rene De La Rosa, President
----------------------------
(Print name and title)
THIS LEASE SHALL NOT
BE VALID OR EFFECTIVE FOR
ANY PURPOSE UNLESS AND
UNTIL IT IS SIGNED BY THE
PORT ATTORNEY.
Approved as to form and
legality this 5th day
of January 1998.
/s/
- ---------------------------
Port Attorney
Port Ordinance No. 3397
---------
P.A. # 98-7
------
51
<PAGE>
Exhibit 10.24
ROTOLANTE/WCMQ LEASE
THIS LEASE made this 20th day of April, 1983 by and between MAY L.
ROTOLANTE, hereinafter referred to as Lessor or ROTOLANTE, and RADIO WCMQ, INC.,
hereinafter referred to as Lessee, Tenant, or WCMQ.
WITNESSETH that in consideration of the covenants herein contained on the
part of WCMQ to be kept and performed, ROTOLANTE hereby leases to WCMQ the
following described property:
Lots 18, 19, and 20 in the SE 1/4 Section 20-52-40, CHAMBERS LAND
COMPANY SUBDIVISION, according to the plat thereof, recorded in Plat
Book 2, Page 68, of the public records of Dade County, Florida; less
County Road Right-of-Way over that portion lying within the West 43
feet of the SE 1/4 of said Section 20, and less that portion of Lot 20
presently within the easement for the N.W. 138th Street canal.
TO HAVE AND TO HOLD the same for the term of ten years from the commencement
of the term as hereinafter provided for. The rent for the first ten-year term
shall be the total sum of $313,020.00.
1. WCMQ covenants with ROTOLANTE to pay the rent monthly in advance each
on a first day of each and every month for the initial term as well as each
option term, if the options are exercised.
2. ROTOLANTE hereby grants to WCMQ options to renew the lease for six
consecutive additional five-year terms upon the same terms and conditions as set
forth in this lease, except that the agreed rental shall be increased by
$5,000.00 per annum for each five-year option term. These options shall be and
are self-executing; and it shall be conclusively presumed that WCMQ has
exercised its option unless WCMQ has given notice to ROTOLANTE on or before the
March 1st immediately preceding the then subject option time period. WCMQ's
notice of its intent not to exercise an option likewise cancels all subsequent
options.
3. The annual rental and the amount payable each month for the initial
ten-year term as well as each subsequent five-year option term are set forth in
the schedule below:
<PAGE>
<TABLE>
<CAPTION>
Lease Years Annual Rent Payable Monthly*
----------- ----------- ----------------
<S> <C> <C>
1 - 5 $28,800.00 $2,400.00
6 - 10 33,800.00 2,817.00
11 - 15 38,800.00 3,235.00
16 - 20 43,800.00 3,650.00
21 - 25 48,800.00 4,067.00
26 - 30 53,800.00 4,483.00
31 - 35 58,800.00 4,900.00
36 - 40 63,800.00 5,317.00
</TABLE>
*plus applicable sales tax.
4. WCMQ shall have the right to use and occupy the property herein demised
for the installation, operation, and maintenance of attended and unattended
electronics, transmitters, receivers, towers, earth stations, microwave
equipment, and such other equipment and structures as are reasonable and
necessary in the communications industry and shall have the right to install and
maintain all necessary equipment, appurtenances, facilities, wiring, antennaes,
electrical wires, conduits, and connections as WCMQ may deem necessary.
5. Notwithstanding the foregoing, it is expressly understood and agreed
that any radio or antenna towers to be constructed by WCMQ on the leased
premises during the term hereof shall not exceed a height above ground of 140
feet each.
6. This lease is contingent upon WCMQ obtaining all necessary federal and
local permits and authorizations to construct its proposed facility. The permits
include but are not limited to the FCC, FAA, and Dade County Building permits.
WCMQ shall use its best good-faith efforts to obtain the needed approvals as
expeditiously as possible. If, after six months from the date hereof, WCMQ does
not have the necessary permits but is of the opinion that they will be obtained
in the foreseeable future and WCMQ desires to continue with its efforts to
obtain the permits, then and in that event WCMQ shall pay $1,000.00 to ROTOLANTE
as consideration for an additional six month extension. Upon payment of the
$1,000.00 WCMQ shall have an additional six months in order to obtain the
necessary permits. If the necessary permits are ultimately unobtainable, then
and in that event ROTOLANTE shall retain an additional $1,000.00 from the first
month's rent deposit, hereinafter provided for, and shall refund the balance,
$1,420.00, to WCMQ, if no damage was done to the premises by reason of WCMQ's
test and surveys.
7. This lease is also contingent upon WCMQ obtaining the removal of that
certain 400 foot tower approximately 1 and 1/2 miles south of the demised
premises, said tower currently being owned by Mario Ferro. WCMQ represents that
it has the basis for an understanding with Mr. Ferro for the removal of this
tower and expects to have a written agreement concerning same within the next 30
days. This contingency will be deemed satisfied
2
<PAGE>
if WCMQ does not give ROTOLANTE notice, within 30 days from the date hereof,
that the contingency has not been met. If WCMQ does give notice that the
contingency has not been met, then and in that event the deposit paid this date
shall be returned and this lease deemed terminated.
8. The first ten-year term of this lease shall commence on the first day
of the month following the month in which WCMQ obtains all necessary permits to
start construction. At time of signing this lease WCMQ has paid to ROTOLANTE the
sum of $2,520.00 representing deposit for the first month's ground rent plus 5
percent sales tax.
9. WCMQ may enter the premises prior to commencement of the initial
ten-year term for the purpose of making tests and surveys, provided that at all
times WCMQ shall protect the livestock, if any, on the premises.
10. In addition to the ground rent and sales tax to be paid monthly, WCMQ
shall pay annually to ROTOLANTE when real estate tax bills are issued the real
estate taxes on the land described in this lease plus taxes, if any, imposed on
improvements of WCMQ and/or personal property of WCMQ; however, for any such
year that the county tax assessor approves the Agriculture Exemption on the
demised land, WCMQ shall pay to ROTOLANTE taxes only on the non-exempt
assessment of the demised land, plus any tax that may be assessed on WCMQ's
structures and properties. In order to retain the Agriculture Exemption, WCMQ
shall allow ROTOLANTE's present tenant on adjoining land an access to graze his
livestock on the demised land, after WCMQ fences off whatever structures of his
operation that may be hazardous to livestock or to the public.
11. In the event the current tenant (stock raiser) of ROTOLANTE
relinquishes his lease or does not desire to use the land of ROTOLANTE for
pasture, then WCMQ may sublet the unused portion of the demised premises for any
farm or pasture purpose that would qualify for the Agriculture Exemption on the
annual taxes; and WCMQ shall furnish ROTOLANTE with a copy of the sublet
agreement.
12. It is expressly understood and agreed that ROTOLANTE and WCMQ shall
each use their best good-faith efforts to keep the demised premises qualified
for the Agriculture Exemption on the annual real property taxes.
13. At all times during the term of this lease and any renewals or
extensions hereto, WCMQ shall carry public liability insurance naming ROTOLANTE
as additional insured in minimum amounts of $300,000/$500,000. Said insurance
shall cover in addition to the communications operations of ROTOLANTE the
liability insurance for the agriculture and pasture portion of the premises.
WCMQ shall have the insurance agent furnish a certificate to ROTOLANTE at
inception of the liability coverage and for each renewal.
3
<PAGE>
14. WCMQ hereby assumes full legal responsibility to local, state, and
national authorities for the installation of its equipment and for the operation
thereof on the premises of ROTOLANTE and for proper application for and securing
of all permits and authorizations that are or may become necessary therefor.
15. During the period of construction WCMQ shall carry builders risk
insurance naming ROTOLANTE as additional insured. WCMQ shall further comply with
the mechanics lien law and shall not allow any construction liens to attach to
the land of ROTOLANTE. WCMQ shall replace or repair any pasture grasses damaged
during construction.
16. WCMQ shall promptly execute and comply with all statutes, ordinances,
rules, orders, regulations, and requirements of the federal, state, and local
governments and of any and all their departments and bureaus applicable to said
premises for the correction, prevention, and abatement of nuisances or other
grievances in, upon, or connected with said premises during said term.
17. In the event of litigation between the parties, it is agreed that the
prevailing party shall be entitled to judgment for their reasonable attorneys'
fees, costs, and all costs associated with the litigation whether or not same
are traditionally taxable as costs.
18. This contract shall bind ROTOLANTE and her heirs, assigns,
administrators, legal representatives, executors, or successors as the case may
be and the assigns or successors of WCMQ.
19. It is understood and agreed between the parties hereto that time is of
the essence of this contract, and this applies to all terms and conditions
contained herein.
20. WCMQ shall indemnify and save harmless ROTOLANTE from and against any
and all claims, suits, actions, damages, and/or causes of action arising during
the term of this lease for any personal injury, loss of life, and/or damage to
property sustained in or about the leased premises by reason of or as a result
of WCMQ's occupancy thereof and from and against any orders, judgments, and/or
decrees which may be entered thereon and from and against all costs, counsel
fees, expenses, and liabilities incurred in and about the defense of any such
claim and the investigation thereof; provided, however, that before WCMQ shall
become liable for all of said costs, counsel fees, expenses, liabilities, WCMQ
shall be given notice in writing that the same are about to be incurred and
shall have the option itself to make the necessary investigation and employ
counsel of WCMQ's own selection but satisfactory to ROTOLANTE for the necessary
defense of any claims.
21. Upon expiration or termination of this lease, WCMQ shall remove all of
its structures and equipment, repair any damaged fences and pasture grasses, and
restore the premises to ROTOLANTE in good and clean condition.
4
<PAGE>
22. In the event WCMQ defaults in any respect to its obligations pursuant
to this lease, ROTOLANTE shall give written notice to WCMQ. If the default is
the nonpayment of rent, then and in that event WCMQ shall have ten business days
in which to cure the default. If the default is other than the nonpayment of
rent, then and in that event WCMQ will be given a reasonable time to cure the
default, the nature of the default being taken into consideration as well as all
other salient circumstances in determining a reasonable time.
23. During the term of this lease or any renewal thereof, ROTOLANTE shall
only sell the property upon a bona fide offer to purchase from a third party.
WCMQ is hereby granted the right of first refusal on any bona fide offer to
purchase the demised premises. A bona fide offer to purchase means an offer or
contract with a third party who is not related directly or indirectly to
ROTOLANTE.
24. Notice shall be deemed sufficient if in writing and sent certified
mail, return-receipt requested, as follows:
If to Rotolante: May L. Rotolante
5701 S. W. 77th Terrace
South Miami, Florida 33143
If to WCMQ: Herbert S. Dolgoff
Radio WCMQ, Inc.
1411 Coral Way
Miami, Florida 33145
25. Attached hereto as Exhibit A is a copy of a Memorandum of Lease which
the parties have executed simultaneously with the execution of this lease
agreement. It is expressly understood and agreed that WCMQ shall be free to
place the Memorandum of Lease of record upon the commencement of the first
ten-year term. WCMQ shall not place the Memorandum of Lease of record unless the
first ten-year term has commenced, that is WCMQ has obtained all the necessary
permits to start construction. Upon expiration of the term or any renewal
thereof or upon termination of this lease in accordance with the terms and
conditions hereof, WCMQ shall furnish to ROTOLANTE a fully completed quit claim
deed in the form attached hereto as Exhibit B.
26. This lease may be modified or changed only by a written instrument
executed by both ROTOLANTE and WCMQ.
27. This written lease contains all the representations of agreements and
obligations between ROTOLANTE and WCMQ.
5
<PAGE>
IN WITNESS WHEREOF, the parties have set their hands and seals the day first
above written.
Witnesses:
/s/ /s/ May L. Rotolante (SEAL)
- --------------------- ----------------------------
MAY L. ROTOLANTE
/s/
- ---------------------
RADIO WCMQ, INC.
/s/
- ---------------------
/s/ By: /s/ Herbert S. Dolgoff (SEAL)
- --------------------- ------------------------
HERBERT S. DOLGOFF,
President
6
<PAGE>
MEMORANDUM OF LEASE
This Memorandum of Lease is entered into this 20th day of April, 1983 by and
between MAY L. ROTOLANTE, hereinafter referred to as Lessor or ROTOLANTE, and
RADIO WCMQ, INC., hereinafter referred to as Lessee, Tenant, or WCMQ,
W I T N E S S E T H T H A T :
WHEREAS, that in consideration of the covenants contained in that certain
Lease Agreement of even date between ROTOLANTE and WCMQ whereby ROTOLANTE leased
to WCMQ the following described property:
Lots 18, 19, and 20 in the SE 1/4 Section 20-52-40, CHAMBERS LAND
COMPANY SUBDIVISION, according to the plat thereof, recorded in Plat
Book 2, Page 68, of the public records of Dade County, Florida; less
County Road Right-of-Way over that portion lying within the West 43
feet of the SE 1/4 of said Section 20, and less that portion of Lot 20
presently within the easement for the N.W. 138th Street canal.
WHEREAS, the parties have agreed to place this Memorandum of Lease of record
so as to give record notice of certain provisions of the Lease,
NOW, THEREFORE, in consideration of the premises, the parties acknowledge
that certain of the provisions of the Lease Agreement provide as follows:
1. The Lease has a term of from ten years to 41 years duration.
2. The Lease further provides that to the extent WCMQ's equipment allows,
the property will continue to be utilized by ROTOLANTE, other tenants, or
subtenants for agricultural purposes, either farm or pasture land.
3. The Lease provides WCMQ the right of first refusal on any bona fide offer
to purchase the demised premises.
7
<PAGE>
IN WITNESS WHEREOF, the parties have set their hands and seals the day first
above written.
Witnesses:
/s/ /s/ May L. Rotolante (SEAL)
- --------------------- ----------------------------
MAY L. ROTOLANTE
/s/
- ---------------------
Sworn to and subscribed before me
this 20th day of April, 1983.
/s/
- ----------------------------------
Notary Public, State of Florida
My Commission expires:
(SEAL)
RADIO WCMQ, INC.
/s/
- ----------------------------------
/s/ By:/s/ Herbert S. Dolgoff (SEAL)
- ---------------------------------- -------------------------
HERBERT S. DOLGOFF,
President
Sworn to and subscribed before me
this 20th day of April, 1983.
/s/
- ----------------------------------
Notary Public, State of Florida
My Commission expires:
(SEAL)
8
<PAGE>
ASSIGNMENT OF LEASE AND OWNER'S CONSENT
THIS AGREEMENT, made this 12 day of May, 1998, among One-On-One Sports Radio
of Florida, L.L.C., a Delaware limited liability company ("Assignor"), Radio
Unica of Miami, Inc., a Delaware corporation ("Assignee"), and May L. Rotolante
("Owner").
RECITALS
WHEREAS, Owner is the fee simple owner of that certain real property located
in Miami Springs, Florida, and more fully described in Exhibit A attached hereto
(the "Property").
WHEREAS, by assignment, Assignor leases the Property under that certain
Rotolante/WCMQ Lease dated as of April 20, 1983 by and between May L. Rotolante,
as lessor, and Radio WCMQ, Inc., as tenant, as assigned to Spanish Broadcasting
System of Florida, Inc. ("SBS") in accordance with a Novation of Lease dated as
of December, 1996, and as assigned by SBS to Assignor in accordance with an
Assignment of Lease and Owner's Consent dated as of September 26, 1997
(collectively, the "Lease").
WHEREAS, the parties desire for Assignor to assign its rights and
obligations under the Lease to Assignee.
AGREEMENT:
NOW, THEREFORE, for valuable consideration received, the parties, intending
to be legally bound, agree as follows:
1. Recitals. All of the above recitals are incorporated herein by reference.
2. Assignment. Assignor assigns, conveys and transfers to Assignee, its
successors and assigns, all of the Assignor's rights, title and interest in and
to the Lease. Assignor covenants and agrees that: (i) Assignor has good right
and power to assign the Lease; (ii) the interest hereby assigned is free and
clear from any encumbrances created by Assignor; (iii) Assignor has not waived
any rights under the Lease; and (iv) Assignor, as of the date hereof, has
performed its obligations under the Lease.
3. Acceptance. Assignee accepts Assignor's assignment of the Lease, and
assumes and agrees to keep and perform all the obligations, liabilities,
conditions, covenants and provisions of Assignor under the Lease accruing after
the date hereof. Assignee acknowledges that a proper proration of all rents paid
or due under the Lease has been made with Assignor. Assignee agrees to indemnify
and hold harmless Assignor from and against any and all claims, liabilities,
damages, costs, losses, attorneys' fees and expenses incurred by Assignor and
arising from or related to Assignee's performance of its obligations under the
Lease or its use of the Property subject to the Lease after the date hereof.
Assignor agrees to indemnify and hold harmless Assignee from and against any and
all claims,
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<PAGE>
liabilities, damages, costs, losses, attorneys' fees and expenses incurred by
Assignee and arising from or related to Assignor's performance of its
obligations under the Lease or its use of the Property subject to the Lease
prior to the date hereof. Assignor agrees to indemnify and hold harmless
Assignee from and against any and all claims, liabilities, damages, cost,
losses, attorneys' fees and expenses incurred by Assignee and arising from or
related to Assignor's performance of its obligations under the Lease or its
use of the Property subject to the Lease prior to the date hereof.
4. Further Assurances. Assignor does hereby agree, from and after the date
hereof upon the request of Assignee or its successors and assigns, to execute
such other documents as Assignee or its successors and assigns may reasonably
require in order to obtain the full benefit of this Assignment of Lease and
Owner's Consent and Assignor's obligations hereunder.
5. Consent and Release. Owner consents to this assignment by Assignor to
Assignee of all of the Assignor's rights, obligations, liabilities, title and
interest in and to the Lease as provided in Paragraphs 2 and 3 above and accepts
Assignee as the Lessee under the Lease. Owner warrants that no default presently
exists under the Lease, including the payment of rent.
6. Binding Effect. This Agreement shall be binding on and inure to the
benefit of the parties hereto and their respective heirs, executors,
administrators, successors and assigns.
7. Governing Law. The terms and conditions of this Assignment shall be
governed by and interpreted under the law of the State of Delaware.
8. Counterparts. This Assignment may be executed in separate counterparts,
none of which need contain the signatures of all parties, each of which shall be
deemed to be an original, and all of which taken together constitute one and the
same instrument.
[signature page follows]
2
<PAGE>
ONE-ON-ONE SPORTS RADIO OF
FLORIDA, L.L.C.
By: One-On-One Sports Radio Stations, Inc.
Member
By: /s/ Christopher J. Brennan
-----------------------------------
Name: Christopher J. Brennan
---------------------------------
Title: President
--------------------------------
By: One-On-One Sports Radio Stations, Inc.
Member
By: /s/ Christopher J. Brennan
-----------------------------------
Name: Christopher J. Brennan
---------------------------------
Title: President
--------------------------------
RADIO UNICA OF MIAMI, INC.
By:
-----------------------------------
Joaquin F. Blaya, Chairman and Chief
Executive Officer
MAY L. ROTOLANTE
--------------------------------------
3
<PAGE>
ONE-ON-ONE SPORTS RADIO OF
FLORIDA, L.L.C.
By: One-On-One Sports Radio Stations, Inc.
Member
By:
-----------------------------------
Name:
---------------------------------
Title:
--------------------------------
By: One-On-One Sports Radio Stations, Inc.
Member
By:
-----------------------------------
Name:
---------------------------------
Title:
--------------------------------
RADIO UNICA OF MIAMI, INC.
By:
-----------------------------------
Joaquin F. Blaya, Chairman and Chief
Executive Officer
MAY L. ROTOLANTE
--------------------------------------
3
<PAGE>
ONE-ON-ONE SPORTS RADIO OF
FLORIDA, L.L.C.
By: One-On-One Sports Radio Stations, Inc.
Member
By:
-----------------------------------
Name:
---------------------------------
Title:
--------------------------------
By: One-On-One Sports Radio Stations, Inc.
Member
By:
-----------------------------------
Name:
---------------------------------
Title:
--------------------------------
RADIO UNICA OF MIAMI, INC.
By:/s/ Joaquin F. Blaya
-----------------------------------
Joaquin F. Blaya, Chairman and Chief
Executive Officer
MAY L. ROTOLANTE
--------------------------------------
3
<PAGE>
ONE-ON-ONE SPORTS RADIO OF
FLORIDA, L.L.C.
By: One-On-One Sports Radio Stations, Inc.
Member
By:
-----------------------------------
Name:
---------------------------------
Title:
--------------------------------
By: One-On-One Sports Radio Stations, Inc.
Member
By:
-----------------------------------
Name:
---------------------------------
Title:
--------------------------------
RADIO UNICA OF MIAMI, INC.
By:
-----------------------------------
Joaquin F. Blaya, Chairman and Chief
Executive Officer
MAY L. ROTOLANTE
/s/ May L. Rotolante
--------------------------------------
MAY L. ROTOLANTE, OWNER/LESSOR
LANDLORD
3
